The Rights of Indians and Tribes [5 ed.] 9780190077587, 9780190077563, 9780190077556, 9780190077570, 9780190077594

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The Rights of Indians and Tribes

The Rights of Indians and Tribes Fifth Edition B Y S T E P H E N L . P EVA R

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Stephen L. Pevar 2024 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Pevar, Stephen L., author. Title: The rights of Indians and tribes / Stephen L. Pevar. Description: New York : Oxford University Press, 2024. | Includes bibliographical references and index. Identifiers: LCCN 2023049574 (print) | LCCN 2023049575 (ebook) | ISBN 9780190077563 (paperback) | ISBN 9780190077556 (hardback) | ISBN 9780190077570 (updf) | ISBN 9780190077587 (epub) | ISBN 9780190077594 (digital-online) Subjects: LCSH: Indians of North America—Civil rights. | Indians of North America—Legal status, laws, etc. | Tribal government—United States. | Tribes—Legal status, laws, etc.—United States. Classification: LCC KIE110 .P48 2024 (print) | LCC KIE110 (ebook) | DDC 342.7308/72—dc23/eng/20231024 LC record available at https://lccn.loc.gov/2023049574 LC ebook record available at https://lccn.loc.gov/2023049575 DOI: 10.1093/​oso/​9780190077556.001.0001 Paperback printed by Marquis Book Printing, Canada Hardback printed by Bridgeport National Bindery, Inc., United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com.

To my immediate family: Laurel, Lianna, and Elena; To the Hoskins family and its matriarch, Margaret; To the Antoine family of the Rosebud Sioux Indian Reservation and its matriarch, Muriel; To the staff of the ACLU, in appreciation for their inspiring dedication to liberty, equality, and racial justice, with whom I had the pleasure of working for forty-​five years; And to the Indian tribes and their members, including my clients, who had the courage to take a stand against injustice and to fight for their rights, and whose efforts and resulting court decisions are among those discussed in these pages.

Contents Foreword  Preface  Author Bio  Map: Indian Reservations and Tribal Communities  Author’s Note on the word Indian 



I. A History of Federal Indian Policy  II. Definitions: Indian, Indian Tribe, Indian Country, and Indian Title 

ix xi xiii xiv xvii

1 29

III. The Trust Responsibility 

47

IV. Indian Treaties 

77



95

V. Federal Power over Indian Affairs 

VI. Tribal Self-​Government 

131

VII. Criminal Jurisdiction in Indian Country 

171

VIII. Civil Jurisdiction in Indian Country 

211

IX. Taxation 

249



275

X. Indian Hunting and Fishing Rights 

XI. Indian Water Rights 

305

XII. Civil Rights of Indians 

329

XIII. The Indian Civil Rights Act 

361

XIV. The Unique Status of Certain Native American Groups 

377

XV. Indian Gaming 

411

XVI. The Indian Child Welfare Act 

433

XVII. Judicial Review 

461

viii Contents Appendix: “Recognized” Indian Tribes: Federal and State  Index  More Praise 

497 519 542

Foreword I first met Steve Pevar, the author of this enlightening book, back in the early 1970s when he was a young, federally funded Indian legal services lawyer on the Rosebud Sioux Indian Reservation in South Dakota. I was just starting my legal career as one of the founders of the Native American Rights Fund, the national Indian legal defense fund, headquartered in Boulder, Colorado. With Indians being the poorest of the poor, very few of them had money for lawyers, but the civil rights movement illustrated the need for legal representation of minorities. Indian legal representation on a broader scale started happening with the establishment on some Indian reservations of Indian legal services programs funded by the Office of Economic Opportunity and the Native American Rights Fund, which received funding from the Ford Foundation in New York City. Since we were among the very few lawyers across the country involved in representing Indians, there were many collaborations between the Native American Rights Fund and the Indian legal services lawyers, such as Steve, in these early days of the modern Native American legal movement. The one thing that we all had in common was a realization that major changes for American Indian people could be made by the use of federal Indian law—​an obscure but emerging field of law consisting of Indian treaties, federal laws and regulations, and the court decisions interpreting those treaties, laws, and regulations. Federal Indian law has as its most important legal principle the recognition of Indian tribes as sovereign nations. Most everyone is familiar with Indian treaties in American history. Treaties are made between sovereign governments, so what is an Indian tribe? A sovereign government! Some people think that Indian treaties are ancient history, but no—​treaties are the supreme law of the land according to the U.S. Constitution unless they have been changed by acts of Congress. It is this ignorance among the general public about Indian treaties, tribal sovereignty, and other Indian rights that makes Steve Pevar’s book—​The Rights of Indians and Tribes—​so important. America needs to be educated about Native Americans. Educating the public about Indian law and Indian

x Foreword rights has always been a priority of the Native American Rights Fund, and we have been pleased to have the ACLU involved in that effort with us. This is the fifth edition of The Rights of Indians and Tribes since 1983, which reflects the growing and dynamic nature of federal Indian law since the early 1970s when Steve and I started in this field of law. There has been more Indian litigation and Indian law development since 1970 than what previously existed—​it has been a phenomenal period of Indian activism legally and politically. This fifth edition of the book is a timely update incorporating the latest developments in this expanding area of law. As with all fields of law, the development of Indian law has been driven by the Indian law decisions of the U.S. Supreme Court. Early on in this modern era of Indian law, there were an inordinate number of Supreme Court decisions favorable to Indians. However, in recent years, as the makeup of the Court has become more conservative, Indian victories in the Court have become more difficult to secure. Tribes are increasingly looking to other avenues of dispute resolution as they move forward with their development. Having a general knowledge about Indian rights is key to a public understanding of Indian policy goals. Without public support, tribal leaders have said that tribal existence would be in jeopardy. Having a book like this that explains complex Indian and tribal rights in simple, easy-​to-​understand terms is invaluable in the critical effort to educate Americans about the first Americans and preserve their existence. John Echohawk Executive Director of the Native American Rights Fund Boulder, Colorado

Preface When I worked for Legal Aid on the Rosebud Sioux Indian Reservation in the early 1970s, we struggled to understand what rights Indians and tribes have under federal law. There was only one comprehensive law book on the subject, and it had been written decades earlier. The Native American Rights Fund in Boulder, Colorado, would hold periodic meetings for attorneys working in this field of the law. As important as those meetings were, we were hamstrung by the lack of written materials. The first edition of this book was published in 1983 in partial response to that problem. I have tried to keep the book current. This is the fifth edition. Federal Indian law is unique, encompassing concepts and rules that are often unexpected and bewildering to those unfamiliar with it. Due to the complexity of federal Indian law, Indians and tribes have difficulty defending their rights—​and, as a result, have lost some of them. Many forces in our society profit by defeating tribal rights, and tribes face difficult odds. By seeking to clarify the confusing principles that comprise federal Indian law, I aim to help Indians and tribes—​and their supporters—​protect and defend tribal rights. It is also my hope that by explaining what the law is, people can more easily determine what the law ought to be in those areas (and there are many) in which federal Indian law is still developing. I would like to thank the people whose encouragement and support were so instrumental to the completion of this book. This includes my immediate family (Laurel, Lianna, and Elena), my two brothers (Peter and Jeff), and my extended family: Margaret Hoskins; Bonnie Hoskins and Jim Llamas; Melissa and David Schreff; Jill Hoskins; David Hoskins and Ann Scheps; Cindy Pevar; and Inger Jorgenson. It also includes my nieces and nephews, who give me hope for the future: Benjamin and Leah Schreff; James Llamas and Zach Poncik; Daniel Schreff and Celina Tsu; William Llamas and Jessica Jackson; Rebecca Schreff; and Sarah and Benjamin Minges. I also wish to acknowledge some dear friends who have inspired me over the years: Barbara Atwood; Barbara Barton; David and Jan Bernard; Mike and Cindy Butyn; Mark Carter; Mark and Nancy Jo Connell; Lea Cooper; Donald “Sonny” Day; Dr. Edwin Fierer; King Golden and Sarah Semlak;

xii Preface James and Carla Huegli; Bill and Karen Huss; Patricia Kelly; Michael and Arlynna Howell Livingston; Marshall and Debbie Matz; Joe McSoud and Julie Stava; Steve Metcalf and Lynne Charles; Philip Murray; Larry and Teresa Nault; Mark Perkell and Suzanne Clark; Sandy and Laurel Rosenberg; Steve Robinson; Reggie Shuford; Nic Scibelli and Sarah Edson; R.G. Steinman; and Steve Trecker. Special thanks to five people who helped prepare the book. Grace Sinnott, Camden Weber, and Cassandra Kellogg spent many hours on research and cite checking. Laurel Hoskins meticulously prepared the map (I am responsible for any omissions or inaccuracies) and helped design the book cover. I was very fortunate to have Dana Pomfret as my line editor.

Author Bio Stephen L. Pevar was a Legal Services attorney on the Rosebud Sioux Indian Reservation in South Dakota from 1971 through 1974. From 1976 through 2022, some forty-​five years, Mr. Pevar served on the national legal staff of the American Civil Liberties Union. Mr. Pevar has litigated more than 175 cases on a broad range of civil liberties issues throughout the United States, focusing on Indigenous rights, freedom of speech, the separation of church and state, and the rights of prisoners. In addition to his litigation, Mr. Pevar has been, and still is, a law school instructor. He taught Federal Indian Law for sixteen years at the University of Denver School of Law, and for five years at NYU Law School. He currently teaches Advanced Federal Indian Law: Contemporary Issues at Yale Law School. He has also lectured extensively on Indigenous rights issues. Mr. Pevar graduated from Princeton University in 1968 and from the University of Virginia School of Law in 1971. He lives in Connecticut with his wife, Laurel. They have two daughters, Lianna and Elena.

Source: © Laurel Hoskins. Published in The Rights of Indians and Tribes by Stephen L. Pevar

Author’s Note on the word Indian Language and terminology are complicated and ever-​changing. When this book was first published, in 1983, the term Indian was still widely used. Over the past several decades, the language in the book has shifted, and now includes Indian, American Indian, and Native American—​but Indian is still the predominant term in the book. While I deeply respect the fact that Indigenous peoples have individual preferences as to how they would like to be addressed, I continue to use Indian in this book, including in the title, for three reasons. First, the term Indian holds specific legal significance because it appears in the U.S. Constitution, federal statutes, and in more than two centuries of court decisions. This book is a law book and draws heavily upon (and often quotes) these prior interpretations, definitions, and rulings. In 2021, when the Restatement of the Law of American Indians was published, the authors chose not to use Native American for similar reasons as I did, as they explained in its introduction. Second, the term Native American includes the Indigenous people of Hawai’i, the Mariana Islands (including Guam), and American Samoa, and this book does not discuss their rights. Thus, it would be inaccurate to entitle this book “The Rights of Native Americans and Tribes.” Lastly, the term Indian continues to be widely accepted and preferred by many Indians and tribes. Dozens of tribes, for instance, use Indian in their names, including the Mississippi Band of Choctaw Indians, the Saginaw Chippewa Indian Tribe, and the Ponca Tribe of Indians of Oklahoma. Similarly, many organizations use Indian or American Indian in their names, including the National Congress of American Indians, the National American Indian Court Judges Association, and the American Indian Movement. A prominent Indian news organization, Indianz.com, recommends the continued use of the word Indian rather than Native American. See https://​www. indi​anz.com/​News/​2018/​08/​16/​ind​ian-​nat​ive-​or-​ind​igen​ous-​which-​one-​ wo.asp. For these reasons, although I use Native American in certain contexts in the book, I primarily use Indian. While language and terminology will continue to evolve, the purpose of this book is, and always was, to empower Indian tribes and their members.

I A History of Federal Indian Policy Millions of people and hundreds of nations inhabited what is now the United States when Europeans first arrived in North America.1 The Indigenous peoples, known today as Indians, American Indians, or Native Americans, * lived in communities spread across the land. Most lived along the coasts, the major rivers, and the Great Lakes, as people in the United States do now. Each nation possessed its own government, culture, and language. According to the 2020 Census, 9.7 million people in the United States identify as American Indian or Alaska Native, about 2.9 percent of the nation’s population.2 Most Indians live west of the Mississippi River, but 10 percent live in the Northeast. The states with the highest number of Indians are California, Arizona, Oklahoma, New Mexico, Texas, and Washington, in that order. The states with the highest percentage of American Indians and Alaska Natives are Alaska (21.9 percent), Oklahoma (16 percent), New Mexico (12.4 percent), South Dakota (11.1 percent), and Montana (9.3 percent).3 Less than one-​fourth of the Indian population lives on an Indian reservation; most Indians live in metropolitan areas outside of Indian reservations.4 The two cities with the highest American Indian and Alaska Native population are New York and Los Angeles, each with more than 75,000.5 There are 326 Indian reservations in the United States covering more than 56 million acres of land (about 2 percent of the country’s land mass).6 Reservations range in size from the 15.4-​million-​acre Navajo Reservation (nearly as large as West Virginia) to several that are fewer than one hundred acres.7 Indian reservations are located in thirty-​five states. There are 574 “federally recognized”8 Indian tribes (referred to as nations, bands, villages, pueblos, rancherias, and communities, depending on the tribe’s preference) in the United States. Alaska is home to 229 of them. The Navajo Nation and the Cherokee Nation are the two largest tribes, each with close to four hundred thousand members.9 * This book uses Indian, American Indian, and Native American in different contexts but, for reasons explained in the Author’s Note, predominantly uses Indian.

The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0001

2  The Rights of Indians and Tribes Native Americans are at, or near, the bottom of every socioeconomic scale and are the most impoverished ethnic and racial group in the country. This predicament is particularly dire on most Indian reservations, where poverty is rampant.10 A report issued in 2020 found that the yearly per capita income of Native Americans in 2017 was $17,584, compared to $31,106 for the U.S. population as a whole, and that 25.4 percent of Native Americans were living in poverty, compared to 13.4 percent of the general population.11 President Barack Obama reported in 2009 that the unemployment rate on some Indian reservations was 80 percent, that 14 percent of reservation homes did not have electricity, and 12 percent of reservation homes lacked access to a safe water supply.12 In 2018, the U.S. Commission on Civil Rights reported that Native Americans fall below the national average in many significant areas, including access to adequate housing, medical care, electricity, and clean water, and have below average income and formal education.13 More than two hundred tribes operate gambling casinos on their reservations, but many of these casinos are not very profitable, although gaming has greatly assisted some tribes raise their standard of living.14 Many Indian reservations are located far from population centers (and, thus, where a casino would not be profitable) and have no valuable natural resources that can be developed, and thus substantial improvements in their economic situations are not likely to occur anytime soon.15 People often ask why so many Indians continue to live on these impoverished reservations. The answer is complex, but much of it has to do with the determination of many tribal members to preserve their ancestral lands and communities, to which their culture and traditions are linked. While millions of people migrated to this country to join the “melting pot,” many Native Americans have a strong desire to maintain their unique culture, spiritual connection to their homelands, and their autonomy and independence.16 An overarching problem that reservation Indians face today is the complexity of federal Indian law, which can be stifling. No other ethnic group is so heavily regulated. The goal of this book is to help clarify federal Indian law—​the laws, regulations, court decisions, and policies that influence and regulate so much of tribal life—​so that Indians and tribes can better understand it and use it to their benefit. One reason federal Indian law is so complex is that the federal government’s Indian policies have fluctuated wildly over the years, and each change in policy spurred changes in the law. At times, the federal government

A History of Federal Indian Policy  3 sought to segregate tribes from white settlers; at other times to annihilate them; at other times to assimilate Indians into mainstream society; and for the past fifty years, the government has tried to rejuvenate tribes and support tribal self-​government.17 Federal Indian law cannot be understood without knowing the historical events and shifting attitudes that shaped it. Therefore, a brief chronological summary is necessary at the outset.

A.  1492–​1787: TRIBAL INDEPENDENCE Sovereign nations were thriving in North America when Christopher Columbus landed in 1492 on the island that he called Hispaniola, which today is home to Haiti and the Dominican Republic. Beginning with Jamestown, Virginia, in 1607, people from England, France, Spain, and the Netherlands began settling on the eastern seaboard of what is now the United States. For the most part, Indian tribes openly welcomed, assisted, and traded with them, and allowed the newcomers to live in their territory. The Europeans recognized that the Indian nations were sovereign governments, and therefore conducted their formal relations with them by treaty. “Indigenous nations signed over one hundred treaties with England, France, and Spain.”18 Unfortunately for the Indians, they were too trusting and misunderstood the intent of the Europeans. When Europeans said they came in peace and would respect Indian lands, the Indians took them at their word. Most Europeans, however, viewed the Indians as pagans and savages and had no intention of keeping their promises. Different European countries had different legal theories regarding whether they had the right to seize Indian land. Some believed the Indians could not own land because they were not Christian, while others believed the Indians forfeited their ownership rights because they were not using the land properly.19 Regardless of the theory, the result was the same: when it served their interests, the settlers remained on peaceful terms with the Indians, but once the settlers became powerful enough to take Indian land, they did. The English fought several wars in New England against Indian tribes, including the Pequot War of 1634–​38 and King Philip’s War in 1675–​76. (King Philip was the English name for Metacom, the leader of the Wampanoag Tribe.) From 1643 to 1645, Dutch settlers in New York fought Kieft’s War against the Lenape Indians. Thousands died on both sides of these wars and entire towns, both colonial and Indian, were destroyed.20

4  The Rights of Indians and Tribes Diseases introduced to the continent by Europeans decimated the Indian population. One colonist reported in 1701 that smallpox had killed more than half the Indians of the Carolinas.21 As whites moved further west, they brought smallpox, measles, typhoid fever, and other diseases with them, inflicting horrific losses on the Indians; for instance, the Arikara and the Omaha, two tribes on the Plains, lost more than 60 percent of their people to disease.22 Another reason for the decline in Indian population was slavery. The English began selling Indians following King Phillip’s War and developed the Indian slave trade into a major business. In the early 1700s in South Carolina alone, the English sold thirty thousand to fifty thousand Indians; many were shipped to the West Indies to become household servants and workers.23 The English obtained some slaves through warfare, but Indian tribes also sold many of their Indian enemy captives to the English.24 While Native Americans were being decimated by disease, war, and enslavement, Europeans were pouring into North America. The population of the colonies “doubled every twenty-​five years and increased 400 percent between 1700 and 1750. The population of North Carolina shot from 45,000 in 1750 to 275,000 in 1775.”25 By 1775, as many as 50,000 whites had already moved west of the Appalachian Mountains. In 1756, the English, having defeated the Dutch and captured New York, went to war against the last remaining major European power in the Northeast—​France. The so-​called French and Indian (or Seven Years’) War ended in 1763. During the war, the most powerful group of Indians in the region, the Iroquois Confederacy,26 sided with the British. Had the Iroquois chosen differently, the people of the United States might speak French today.27 Soon after the British victory over the French in 1763, the English king, George III, appreciative of the Iroquois’ assistance in the war, issued a Royal Proclamation designed to stop the theft of additional Indian land by the colonists. The Proclamation declared that no acquisition of Indian land would be permitted without the consent of the British government. The colonists refused to obey the Proclamation and continued to invade Indian territory and steal Indian land.28 The King’s efforts to enforce the Proclamation and protect Indian land was a major catalyst of the American Revolutionary War. When the Revolutionary War erupted between the colonists and the British in 1775, few tribes were initially drawn into the fray. “Most Indian people seem to have regarded it as a family quarrel in which they had no business

A History of Federal Indian Policy  5 meddling,”29 and opted to remain neutral. The colonists knew, though, that many tribes sympathized with the British because of the Royal Proclamation. Fearing that the tribes would ultimately support the British, the colonists developed a strategy “to carry the war into Indian country, destroy Indian villages, and burn Indian crops” so as to discourage or prevent Indians from giving assistance to the British.30 These preemptive strikes caused many of the eastern tribes to openly support and aid the British, although others, including the Oneida and Tuscarora in New York and the Mohegan and Pequot in Connecticut, sided with their American neighbors.31 Much of the war was fought on Indian land: Indian towns were burned, Indian homes and crops were plundered and destroyed, and Indian people were killed.32 The U.S. Constitution was written in 1787. Its authors, including Benjamin Franklin and John Adams, were influenced by principles employed by the largely democratic tribal governments: voting and consensus, separation of powers, recall, and freedom of religion.33 It appears that Franklin used the structure of the Iroquois Confederacy, a union of six independent nations, as a model for the Albany Plan of 1754, a forerunner of the Constitution.34 In 1988, Congress formally recognized this contribution, adopting Concurrent Resolution 331, which acknowledges that “the confederation of the original 13 colonies into one republic was influenced . . . by the Iroquois Confederacy, as were many of the democratic principles incorporated into the constitution itself.”35

B.  1787–​1828: AGREEMENTS BETWEEN EQUALS After the United States gained its independence from Great Britain following the Revolutionary War, the federal government continued to recognize—​ as Great Britain had done—​that the Indian tribes were independent nations, and immediately began entering into treaties with them. Indeed, one of the first treaties signed by the United States following the adoption of the Constitution was with several Indian tribes, including the Delaware, establishing territorial boundaries and tribal hunting areas.36 It is doubtful that anyone believed at the end of the Revolutionary War that merely by having defeated the British, the United States had acquired any authority over the powerful and independent tribes.37 Thomas Jefferson, for instance, wrote just a few years after the Constitution was adopted that the

6  The Rights of Indians and Tribes Indian tribes maintained “full, undivided, and independent sovereignty,”38 and Henry Knox, President George Washington’s Secretary of War, described them as having the same status as “foreign nations.”39 The Constitution did not extend citizenship to any Indians, who were viewed as citizens of their own nations. In the years immediately following the Revolutionary War, the U.S. government tried to maintain peaceful relations with the Indian tribes. “Indian tribes were very powerful in the 1700s and early 1800s and were a serious threat to the new country.”40 As the Supreme Court noted in 1832, “[t]‌he early journals of Congress exhibit the most anxious desire to conciliate the Indian nations. . . . The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and everything which might excite hostility was avoided.”41 The United States, weakened after years of war with England, needed to avoid war with the Indians. “The Indian nations were militarily powerful and still a threat to the young United States,”42 and they negotiated with the federal government “from a position of strength.”43 The United States remained on friendly terms with the Indian nations “to ensure its own survival.”44 Indian tribes were most concerned about protecting their land, and Congress promptly passed laws to assure them that they had nothing to fear from the United States in that regard. One of Congress’s first acts was the Northwest Ordinance of 1789, which declared: “The utmost good faith shall always be observed towards Indians; their land and property shall never be taken from them without their consent.”45 A year later, Congress passed laws protecting Indians from unscrupulous whites. The laws prohibited non-​ Indians from obtaining Indian land unless they had the consent of the federal government, prohibited non-​Indians from trading with Indians except in compliance with strict federal standards, and authorized the federal government to prosecute non-​Indians who committed crimes against Indians.46 In 1793, Congress prohibited non-​Indians from settling on Indian land, prohibited federal employees from trading with Indians, and exempted Indians from complying with state trade regulations.47 No laws were passed limiting the ability of Indians to govern themselves; Congress continued to respect tribal sovereignty. Non-​Indians, however, continued to move West and steal Indian land, and federal officials did little to stop them.48 Indeed, Thomas Jefferson, President from 1801 to 1809, although outwardly befriending some Indian people,

A History of Federal Indian Policy  7 actively encouraged the removal of tribes, by force if necessary, from land coveted by white settlers.49

C.  1828–​1887: REMOVAL OF THE INDIANS Whereas the prior period was marked by (often begrudging) respect of tribal sovereignty and coexistence, this period was marked by removal of the Indians from the East and segregating them in the West. The United States was now stronger, both economically and militarily, and it no longer needed to avoid hostility with the Indians. Andrew Jackson, who became President in 1828, had assured voters that if elected he would ask Congress to authorize him to remove Indian tribes from the East and open their land for white settlement. He kept his promise. In 1830, Congress passed the Indian Removal Act,50 which authorized the President to “negotiate” with eastern tribes for their relocation west of the Mississippi River. Removal of the eastern tribes and segregating them out West became “the dominant federal Indian policy of the nineteenth century.”51 Indians were seen as “too wild and savage, too racially inferior” to remain in the East.52 By 1838, an estimated eighty thousand eastern Indians had been evicted from their homelands.53 Congress created a literal dumping ground called “Indian Territory” (now within the state of Oklahoma) for many of these tribes. The Cherokee lost so many members along their long, forced march, they call it the “Trail of Tears.” Many treaties written during this period forced Indians to relinquish their homelands. Some tribes were moved more than once, each time signing a treaty in which the federal government guaranteed that their new reservation would be theirs forever. “The government spent much of the nineteenth century emptying the eastern part of the country of Indians and sending them west.”54 After gold was discovered in California in 1848 and in the Black Hills of South Dakota in 1874, thousands of settlers and prospectors flooded the West, openly trespassing on Indian treaty land. At first, the U.S. Army sought to protect the tribes’ right to the land, but in 1875 President Ulysses S. Grant instructed his generals to ignore these treaty violations.55 Massacres of Indian people occurred with regularity. It is estimated that 75 percent of the native peoples of California died of massacres and disease after gold was

8  The Rights of Indians and Tribes discovered in California, a “catastrophic decimation.”56 A tactic adopted by the United States to subdue the Plains Indians was to slaughter the bison on which most of the Indians depended. An estimated thirty to forty million bison populated the West in the mid-​1800s. By the time the slaughter ended in 1893, less than four hundred remained, and Indians were starving.57 Beginning in the mid-​1800s, federal officials decided that “the only successful way to deal with the ‘Indian problem’ was to separate the Indian children completely from their tribes,” place them in boarding schools, and indoctrinate them with Western learning and culture.58 Ultimately, some four hundred boarding schools were established with federal support aimed at “civilizing” Indian children and were typically operated by Christian missionary organizations.59 “Many of these institutions housed more than a thousand students.”60 The children had their long hair cut, they were issued military-​style clothing and lived a military-​style life, and were severely punished if they spoke their native language or practiced their traditions.61 The most notorious institution was the Carlisle Indian School in Carlisle, Pennsylvania, which was established in 1882 through a congressional appropriation. The school’s founder, former Civil War Captain Richard Henry Pratt, stated that his goal was to ”kill the Indian, and save the man.”62 An estimated 830,000 Indian children were sent to these boarding schools and, according to a study issued by the Department of the Interior in May 2022, hundreds and perhaps thousands of children died there.63 Nearly two hundred children’s graves were found at Carlisle alone, with thirteen headstones marked “Unknown.”64 Congress passed several laws during the mid-​ nineteenth century designed to increase federal control over reservation Indians. For instance, Congress created a system of courts to operate on many reservations—​ called “Code of Federal Regulation” (CFR) courts—​that used rules of law similar to those found in state courts.65 In addition, Congress passed a law that, for the first time, authorized federal agents to arrest and prosecute reservation Indians who committed certain major crimes against another reservation Indian.66 In 1871, Congress passed a law that prohibited federal officials from making any additional treaties with Indian tribes.67 This law had both a symbolic and a practical effect. Symbolically, the law reflected the fact that Congress no longer considered tribes as independent nations capable of signing a treaty. The practical effect of the law was that it allowed Congress to limit tribal powers and take Indian land anytime it wanted, simply by passing

A History of Federal Indian Policy  9 a law. Congress immediately began passing laws that took land from tribes that had been promised to them in treaties.68

D.  1887–​1934: ALLOTMENT AND ASSIMILATION In 1887, the federal government altered its Indian policies once again. The policy of removal and segregation was changed to the policy of assimilation. Two very different social forces helped shape this new policy. One was greed: many white settlers coveted the land that Congress had set aside as Indian reservations. The other was humanitarianism: many non-​Indian social reformers, aware that Indians were suffering under the government’s existing policies, began to believe that the best way to help Indians overcome their poverty was by encouraging them to assimilate into white society rather than to remain segregated from white society.69 Although their motives differed, in 1887 both groups joined in compelling Congress to pass the General Allotment Act (GAA), also known as the Dawes Act.70 The GAA authorized the President to divide communally held tribal lands into separate parcels (“allotments”). Once each tribal member received an allotment, the remaining land (the “unallotted” or “surplus” land) would then be sold to non-​Indian farmers and ranchers. It was hoped that the Indian allottees would emulate the work ethic of their new non-​Indian neighbors and would themselves become farmers and ranchers, abandoning their tribal culture. For the first twenty-​five years, these Indian allotments would remain in trust status—​that is, title to the land remained in the hands of the United States—​and thus immune from state taxation but, after that period, the allottees would be issued deeds to their land, allowing them to do whatever they wished with it, even sell it, and the land was now taxable by the state. The GAA, then, had two goals: first, land within Indian reservations would become available for the first time to settlement by non-​Indians. Second, the GAA would eliminate tribal poverty and hasten the assimilation of Indians in white society by turning all of them into farmers and ranchers. The objectives of the GAA, the Supreme Court has noted, “were simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large.”71 “Within a generation or two, it was thought, the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of

10  The Rights of Indians and Tribes white settlers.”72 This drastic shift in policy was “carried out without so much as the pretense of tribal consent.”73 The first goal—​opening Indian reservations to white settlement—​was a huge success. The second goal—​eliminating Indian poverty—​failed miserably. The GAA “proved disastrous for the Indians.”74 In the first place, many allotments were unsuitable for small-​scale agriculture; those that were suitable required money (to purchase farm equipment, seeds, or cattle) that few Indians had or could borrow from banks. Moreover, many Indians did not want to abandon their communal, hunting society to become farmers and ranchers, and viewed such a lifestyle as distasteful.75 It was naïve and unrealistic—​indeed, racist—​to think that Indian life would be improved by confiscating tribal land in violation of treaties, allowing non-​Indians to live on Indian reservations, and deciding for Indians what their lifestyle should be.76 As a result of the GAA, thousands of Indians sold their allotments to white settlers or lost their land in foreclosures when they were unable to pay the real estate taxes that became due after they were issued deeds to their property.77 Of the more than 140 million acres of trust land that tribes possessed in 1887, fewer than 50 million remained in 1934 when the GAA was repealed, resulting in a “monumental raiding of American Indian resources,” including tribal land and the oil, timber, gold, and silver on that land.78 In 1924, Congress passed a law conferring U.S. citizenship on all Indians born in the United States who had not yet become citizens through treaties or statutes.79 Obtaining citizenship, however, did little to improve the economic and political problems Indians faced.80

E.  1934–​1953: INDIAN REORGANIZATION In 1934, federal Indian policy dramatically changed once again and, “perhaps for the first time in American history, the congressional pendulum swung decisively toward favoring tribal sovereignty.”81 An influential study published by the Brookings Institute in 1928, known as the Meriam Report, concluded that the GAA had been a dismal failure.82 The report chronicled the hopeless conditions faced by reservation Indians, including extreme poverty, deadly epidemics, inadequate food, and inadequate formal education.83 Mounting public criticism of the federal government’s Indian policies and a growing sentiment in favor of restoring tribal independence encouraged President Franklin D. Roosevelt to change the policies of previous administrations.84

A History of Federal Indian Policy  11 In 1933, Roosevelt appointed John Collier as Commissioner of Indian Affairs (an office now called the Assistant Secretary of Indian Affairs). Collier, who had long criticized the federal government’s Indian policies, declared in 1934: “No interference with Indian religious life or expression will hereafter be tolerated. The cultural history of Indians is in all respects to be considered equal to that of any non-​Indian group.”85 In June 1934, at Collier’s urging, Congress passed the Indian Reorganization Act (IRA), also known as the Wheeler-​Howard Act.86 The purpose of the IRA was “to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.”87 The IRA was “the first federal Indian policy in over 100 years that did not have the explicit purpose of undermining the status of the Indian nations.”88 The IRA was intended to rejuvenate tribal government and replace assimilation with the promotion of tribal sovereignty and economic self-​sufficiency.89 The IRA protected the tribe’s remaining land base by repealing the GAA and prohibiting the further allotment of tribal land to tribal members.90 The Act restored to tribal ownership any land declared “surplus” under the GAA that had not yet been sold to non-​Indians.91 It also authorized the Secretary of the Interior to add lands to existing reservations and create new reservations for tribes that had lost all their land, and it extended the trust period indefinitely for existing allotments—​ensuring that allottees would not be issued a deed without their consent and that the land would remain immune from state taxation.92 In addition, Indian tribes were encouraged to adopt their own constitutions if they did not already have one, to become federally chartered corporations so they could better engage in business ventures, and to assert their powers of self-​government. The IRA also established a revolving credit fund from which federal loans could be made to IRA tribes.93 Of particular significance, the IRA sought to increase Indian influence in the management of federal Indian programs by requiring that Indians be given a preference in employment within the Bureau of Indian Affairs (BIA), the agency within the Department of the Interior that administers most of those programs.94 Today, thanks to the IRA, more than 85 percent of BIA employees are Native Americans. The IRA has been criticized as paternalistic because, for the most part, tribes were not consulted in its development; ethnocentric because it promoted a system of government inconsistent with traditional Indian values; and insufficient because tribes remained subject to substantial federal control.95 Yet, despite its shortcomings, the IRA was a giant step in the right direction. As one court recently noted, the goal of the IRA was “not

12  The Rights of Indians and Tribes only to stem the loss of Indian land holdings brought on by allotment but also to give tribes the opportunity to re-​establish their governments and land holdings.”96 Other laws were passed during this period that increased funding to tribes to improve reservation roads, homes, health facilities, and community schools. Thus, this period is noteworthy for the federal government’s efforts to rejuvenate tribal governments and their economies after a century of oppression.

F.  1953–​1968: TERMINATION Just nineteen years after passage of the IRA, the federal government reversed course. Dwight D. Eisenhower became President in 1953 and his administration returned to the policy of assimilation, which the government contended was best for the Indians and which would save money for the federal government. The government’s policy became known as termination: termination of the federal government’s trust relationship with, and support services to, Indian tribes.97 In 1953, Congress adopted House Concurrent Resolution No. 108, which declared that federal benefits and services to Indian tribes should end “as rapidly as possible.”98 Between 1953 and 1966, Congress terminated its trust relationship with 109 tribes.99 Each tribe was ordered to cease exercising governmental powers and to disperse all land and property to tribal members. The tribe’s reservation was eliminated, and the state acquired full jurisdiction over this land and the people who resided there. Approximately 2.5 million acres of Indian land were removed from trust status in this manner.100 Congress passed Public Law 83-​280101 (P.L. 280) in 1953, designed to expedite assimilation. This law gave to five states—​California, Minnesota, Nebraska, Oregon, and Wisconsin—​ criminal jurisdiction over reservation Indians, authorizing these states to arrest and prosecute Indians who commit crimes on reservations within the state. (In 1959, when it became a state, Alaska was added as a sixth P.L. 280 state.) In addition, P.L. 280 authorized the other forty-​four states to assume the same criminal jurisdiction given to the six “mandatory” states if the state passed a law agreeing to accept that authority and, as discussed in Chapter VII, several acquired P.L. 280 jurisdiction.

A History of Federal Indian Policy  13 Another program aimed at promoting assimilation was relocation. Created in 1956, the relocation program promised job training and housing assistance to Indians who would leave the reservation for urban areas.102 An estimated thirty-​five thousand Indians entered the relocation program.103 Approximately one-​third of them eventually returned home, often after discovering that the government’s promises of jobs and decent housing were illusory.104 Although heralded as the policy that would set the Indians free,105 the termination years “were a time of great suffering for Native American peoples.”106 Congress terminated 109 tribes, and, in the process, “many Indians lost their homes. Education levels declined while poverty rates ballooned among Indians of terminated tribes.”107 Termination continues to worry tribes today, decades after the end of the termination era. “The risk of total destruction of the Indian community is too great to treat lightly.”108

G.  1968–​THE PRESENT: TRIBAL SELF-​DETERMINATION A monumental shift in federal policy occurred in 1968, reflected in this statement by President Lyndon Johnson: “We must affirm the rights of the first Americans to remain Indians while exercising their rights as Americans. We must affirm their rights to freedom of choice and self-​determination.”109 Inspired by the civil rights movement generally, and Indian activism specifically, the federal government changed course once again. The government’s termination policies were now viewed as destructive and inhumane. President Richard Nixon, who had been Eisenhower’s Vice President in 1953 when termination commenced, denounced termination in 1970, stating: “This, then, must be the goal of any new national policy toward the Indian people: to strengthen the Indian sense of autonomy without threatening his sense of community.”110 In 1983, President Ronald Reagan similarly endorsed tribal self-​determination: “This administration intends to restore tribal governments to their rightful place among governments of this nation and to enable tribal governments, along with State and local governments, to resume control over their own affairs.”111 Since the late 1960s, “Congress has acted to protect and strengthen tribal sovereignty.”112 Current federal policy is aimed at promoting tribal self-​ sufficiency and economic independence, and Congress has created numerous

14  The Rights of Indians and Tribes programs to help achieve that goal. In 1968, for instance, Congress prohibited the states from acquiring any additional authority over Indian reservations under P.L. 280 without the consent of the affected tribe,113 and since 1968, Congress has restored to federal status nearly all the tribes terminated during the termination era.114 Two loan funds, the Indian Financing Act115 and the Native American Programs Act,116 were established in 1974 to loan money to Indians and tribal organizations for economic development. Also in 1974, Congress enacted the Indian Loan Guarantee and Insurance Program,117 which permits the Secretary of the Interior to guarantee up to 90 percent of a loan to Indian borrowers, making banks and other lenders more amenable to lending money to Indians. The Indian Self-​Determination and Education Assistance Act of 1975118 allows tribes to contract with the Bureau of Indian Affairs and the Indian Health Service to operate programs administered by those agencies, including health care, law enforcement, education, and social services programs. The Indian Health Care Improvement Act of 1976119 provides for greater tribal control of reservation health care and increases the government’s commitment to providing reservation health services. The Indian Child Welfare Act of 1978120 gives Indian tribes and Indian families substantial protections against the removal of Indian children from their homes by state agencies and state courts. The Indian Mineral Development Act of 1982121 seeks to help tribes maximize the value of tribal mineral resources. The Indian Tribal Government Tax Status Act of 1982122 extends to Indian tribes many of the tax advantages enjoyed by the states, such as the ability to issue tax-​exempt bonds to finance government programs. The Indian Gaming Regulatory Act of 1988123 confirms the authority of Indian tribes to engage in gaming to raise revenue and promote economic development. The Indian Arts and Crafts Act of 1990124 prohibits goods from being labeled as “Indian” unless they are made by Indians, and permits Indians to recover damages against those who violate the law.125 Also in 1990, Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA),126 which creates a mechanism for tribes to recover religious and cultural items stored in museums (many of which had been looted from graves) and protects any human remains and artifacts found in the future on federal or tribal land. In 1996, Congress passed the Native American Housing Assistance and Self-​Determination Act (NAHASDA),127 which creates two programs that make it easier for tribes to develop and finance affordable housing for tribal members. In 2008, Congress passed a law that allows tribes to administer foster care and adoption programs offered by the

A History of Federal Indian Policy  15 federal government, thus enhancing the ability of tribes to care for displaced Indian children on the reservation.128 In 2013 and again in 2022, Congress amended the Violence Against Women Act (VAWA) and restored to Indian tribes the authority to arrest and prosecute non-​Indians who commit certain crimes of violence against Native American women and children on Indian reservations.129 Thus, for decades now, Congress has promoted “greater tribal autonomy within the framework of a ‘government-​to-​government’ relationship with federal agencies.”130 So, too, have the Presidents, with the notable exception of Donald Trump. Of particular importance, President William Clinton (1993–​2001) issued an executive order in 1994, still in effect, that requires all federal agencies to relate to Indian tribes on a “government-​to-​government” basis, respectful of tribal sovereignty.131 In 2000, Clinton further ordered federal agencies to work to protect “tribal trust resources, and Indian tribal treaty and other rights.”132 President Barack Obama (2009–​16) gained particular praise from Indian country. His administration has been described as “the most supportive administration of tribal interests in American history.”133 An Obama executive order requires federal agencies, from the outset of their deliberations, to engage in meaningful consultation with each tribal government that might be impacted by an action the agency is considering.134 Obama was the first President to convene a meeting with representatives of every federally recognized Indian tribe in the country, and he convened such a meeting each year of his eight-​year tenure. His administration streamlined the process by which Indian tribes could convert into trust status private land they purchased (the “land-​into-​trust” process discussed in Chapter V), and, as a result, more than a half million acres of land was returned to tribal control. His administration settled more than eighty tribal lawsuits pending against federal agencies, some that had been in litigation for decades. One resulted in a $3.4 billion payment to settle claims of federal mismanagement of tribal trust assets, and others resolved water rights claims that helped deliver clean water to tribal communities in several states.135 Obama signed the UN Declaration on the Rights of Indigenous Peoples (discussed in Chapter XII), which recognizes that Indigenous peoples throughout the world have inherent, fundamental rights to sovereignty and to cultural and religious autonomy. Obama designated Bears Ears, a site of cultural and religious significance to American Indian tribes in southeastern Utah, as a National Monument. He also halted the construction of the Dakota Access Pipeline

16  The Rights of Indians and Tribes (DAPL) in North Dakota, which threatened the water and land rights of the Standing Rock Sioux Tribe and other water users, because construction of the pipeline had not passed federal environmental assessments. President Donald Trump (2017–​20), on the other hand, was not a friend of Indian country. Trump, whose casino businesses had been competing with tribal casinos for many years, had “a dark history of levying false accusations and racial attacks against Indian tribes to protect his own casino interests.”136 Within hours of taking office, Trump issued an order reversing the Obama administration’s halt of DAPL. Not long after, the Trump administration also reversed the Obama administration’s decision regarding Bears Ears, removing 85 percent of the land from the monument, thereby allowing oil companies to drill for oil on that property.137 Trump also sought to decrease overall federal spending for Indian programs, and he eliminated several programs that improved the lives of Native Americans.138 His administration attempted to remove land from the Mashpee Wampanoag Tribe, the first time since the termination era that the federal government sought to reduce tribal landholdings.139 And the Trump administration placed into trust status for tribes just one-​eighth as much land as had the Obama administration.140 As Navajo Nation President Jonathan Nez stated, Trump repeatedly “pushed aside” tribal concerns in favor of non-​Indian interests, particularly oil and gas interests.141 The election of Joseph Biden restored a friend of tribal nations to the White House. Within days of taking office on January 20, 2021, Biden issued a memorandum declaring that it was “a priority of my Administration” to respect tribal sovereignty, honor the Indian treaties, and to engage in meaningful tribal consultation with the Indian tribes.142 Biden appointed Deb Haaland as his Secretary of the Interior. Haaland, a member of the Laguna Pueblo of New Mexico, is the first Native American to occupy that position and had spent her career protecting public lands and promoting tribal sovereignty. Within the first few months of her administration, the Department of the Interior reversed many Trump administration policies, including one that prevented tribes in Alaska from participating in the land-​into-​trust program.143 In October 2021, Biden signed a Proclamation restoring the Bears Ears National Monument to its Obama-​era size. In short, for the past half-​century, Congress and most Presidents have supported tribal self-​determination and protected tribal resources. The same cannot be said for the Supreme Court, however; in fact, the opposite is true. Tribal interests have lost nearly three-​quarters of the cases decided by

A History of Federal Indian Policy  17 the Supreme Court involving Indians or tribes since 1986.144 Many of these losses “overturned significant and long-​standing principles of federal Indian law.”145 As Professor Matthew L.M. Fletcher has noted, “there is strong evidence that an institutional bias against tribal interests drives the current Supreme Court.”146 Since 2020, the Court has decided a few cases favorable to tribes, including Haaland v. Brackeen,147 an exceptionally important case (discussed in Chapters V and XVI) that upheld the constitutionality of the Indian Child Welfare Act, but also some unfavorable cases, and only time will tell whether the Court’s anti-​tribal leaning has changed. The COVID-​19 pandemic reached the United States in early 2020. Nearly 1.2 million people in the United States have died from the disease already. The group with the highest number of fatalities per capita is Native Americans. Many Native Americans are vulnerable to COVID because they have underlying health problems such as diabetes and heart disease, are located far from medical centers, and live in small and crowded homes that make isolation of infected persons nearly impossible. In fact, so many Native Americans have died from COVID that their life expectancy has fallen from 71.8 years to 65.2.148 In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act),149 which appropriated $150 billion to assist states, Indian tribes, and local governments respond to the COVID crisis.150 Of that amount, $8 billion was earmarked for payments to “Tribal governments.”151 The following year, Congress enacted a $1.9 trillion stimulus package—​the American Rescue Plan Act—​which included $31 billion to Indian tribes.152 Other legislation, including the Infrastructure Investment and Jobs Act of 2021153 and the Inflation Reduction Act of 2022,154 brought additional money to Indian country. This huge influx of funds has the potential of making transformative and life-​changing improvements in tribal programs and infrastructure, although it is not nearly enough to address all the needs of Indian tribes and their members.

H.  THE FUTURE The future of federal Indian policy is impossible to predict. Today’s era of tribal self-​determination could become tomorrow’s era of termination. Kevin Washburn, Assistant Secretary of Indian Affairs during the Obama administration and now Dean of the University of Iowa School of Law,

18  The Rights of Indians and Tribes recently noted that tribal governments today “have more authority and relative economic power” than at any time in the past two centuries and are “experiencing a renaissance, not just economically, but culturally and governmentally.”155 Still, Mr. Washburn states, Indian tribes “face many of the same challenges faced by developing nations on other continents: poverty, lack of infrastructure, and lack of investment,” and measures to improve these shortcomings “should remain the central strategy in federal efforts to address Indian country poverty.”156 In June 2021, the President of the Navajo Nation, Jonathan Nez, wrote in an editorial: “On the Navajo Nation, home to the largest tribe in the United States, nearly 40 percent of families live without running water or sanitation. Twenty-​seven percent of our homes lack electricity and most lack broadband. Eighty percent of our roads remain unpaved, becoming washboards and sand traps in the dry season, and impassable mud bogs whenever it snows or rains. In other words, throughout much of the Navajo Nation, our infrastructure looks like it’s 1921—​not 2021.”157 Thus, while conditions have improved, they are far from acceptable. Those who wish to honor this nation’s commitments to Indians and tribes must work within the political and social arenas to gather support for tribal self-​ government, self-​determination, and the enforcement of treaty rights. A determined effort must be made to educate the public on the importance of honoring the commitments this country made to Indian tribes more than a century ago in exchange for Indian land and peace.158 There is “no alternative to continued advocacy” on behalf of Indian tribes.159 Similarly, Indian tribes must be prepared for a sustained effort. As Professor Robert J. Miller has stated: “Clearly, Indian governments and peoples must continue their struggle to protect and exercise their self-​determination, governmental, and sovereign rights.”160

Notes 1. One scholar estimates that in 1492 there were five million people and six hundred tribes inhabiting what is now the United States. See Sharon O’Brien, American Indian Tribal Governments 14 (1989). The population could have been higher. See Alvin M. Josephy, Jr., Introduction: The Center of the Universe, in America in 1492: The World of the Indian Peoples before the Arrival of Columbus 3, 6 (Alvin M. Josephy ed., 1992)

A History of Federal Indian Policy  19 2. According to the 2020 Census, the American Indian and Alaska Native population in the United States surged 86.7 percent (up from 5.2 million) between 2010 and 2020. It appears that many more people identify themselves as American Indian or Alaska Native today than previously. See Circe Strum, How the Native American Population in the US Increased by 87% Says More about Whiteness Than about Demographics, The Conversation (Dec. 15, 2021), available at https://​thec​onve​rsat​ion.com/​how-​ the-​nat​ive-​ameri​can-​pop​ulat​ion-​in-​the-​us-​increa​sed-​87-​says-​more-​about-​whiten​ ess-​than-​about-​demog​raph​ics-​170​920. 3. See National Council on Aging, American Indians and Alaska Natives: Key Demographics and Characteristics (Jan. 10, 2023), available at https://​www.ncoa.org/​ arti​cle/​ameri​can-​indi​ans-​and-​ala​ska-​nati​ves-​key-​demog​raph​ics-​and-​char​acte​rist​ ics. However, obtaining reliable census statistics in Indian country is often difficult for a variety of reasons. See Robert Anderson, Sarah Krakoff, & Bethany Berger, American Indian Law: Cases and Commentary 6–​7 (4th ed. 2020). 4. See National Council on Aging, supra note 3. 5. See New York Has the 10th-​Largest Native American Population N.Y. News (Apr. 25, 2022), available at https://​www.new​s10.com/​news/​ny-​news/​new-​york-​has-​10th-​larg​ est-​nat​ive-​ameri​can-​pop​ulat​ion/​#:~:text=​Among%20the%20tri​bes%20in%20mod​ ern,east%20of%20New%20Y​ork%20C​ity; American Indian and Alaska Native Alone and Tribe, L.A. Almanac, available at https://​www.laalma​nac.com/​pop​ulat​ion/​ po15.php; David H. Getches et al., Cases and Materials on Federal Indian Law 17 (7th ed. 2016). 6. See U.S. Dept. of Interior, What Is a Federal Indian Reservation, available at https://​ www.bia.gov/​fre​quen​tly-​asked-​questi​ons#:~:text=​A%20fede​ral%20Ind​ian%20rese​ rvat​ion%20is,on%20beh​alf%20of%20the%20tr​ibe. 7. The reservation of the Jamul Indian Village, a federally recognized tribe in California, is less than seven acres. See https://​sctca.net/​jamul-​ind​ian-​vill​age-​a-​kumey​aay-​ nat​ion/​. 8. The process of obtaining federal recognition is discussed in Chapter XIV, Section E. 9. See https://​www.chero​kee.org/​; Harmeet Kaur, For Many Tribal Nations, the Pandemic Also Brought an Increase in Population, CNN (June 21, 2021), available at https://​ www.cnn.com/​2021/​06/​12/​us/​tri​bal-​nati​ons-​pande​mic-​enr​ollm​ent-​incre​ase-​trnd/​ index.html. 10. Robert J. Miller, Tribal Sovereignty and Economic Efficiency Versus the Courts, 97 Wash. L. Rev. 775, 803 (2022). 11. Overview of Federal Tax Provisions and Analysis of Selected Issues Relating to Native American Tribes and Their Members Scheduled for a Public Hearing Before the Subcommittee on Select Revenue Measures of the House Committee on Ways and Means on March 4, 2020, JCX-​8-​20 (IRS), available at 2020 WL 1237577, at *1. 12. President Barack Obama, Remarks by the President During the Opening of the Tribal Nations Conference (Nov. 5, 2009), available at https://​obam​awhi​teho​use.archi​ves. gov/​the-​press-​off​i ce/​rema​rks-​presid​ent-​dur​ing-​open​ing-​Tri​bal-​nati​ons-​con​fere​nce-​ inte​ract​ive-​dis​cuss​ion-​w.

20  The Rights of Indians and Tribes 13. U.S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans, 15–​17, 171–​76, 203–​04 (Dec. 2018), available at https://​www.usccr.gov/​pubs/​2018/​12-​20-​Bro​ken-​Promi​ses.pdf. 14. See Stephen Cornell & Joseph P. Kalt, American Indian Self-​Determination: The Political Economy of a Policy That Works (Harvard Kennedy School, Nov. 2010), at 7–​8, available at https://​pdfs.sema​ntic​scho​lar.org/​c2b9/​ae2da2480​0dce​ae9c​4b2c​ 2c80​3f4e​5bec​ce5.pdf?_​ga=​2.40594​982.568302​008.158​4921​263-​209​8871​389.158​ 4921​263. 15. See Miller, supra note 10, at 777 (noting that most tribes “do not possess fully functioning economies” and improvement is unlikely without radical changes in federal law and policy). 16. See Kristen A. Carpenter & Angela R. Riley, Privatizing the Reservation?, 71 Stan. L. Rev. 791, 796–​801 (2019); D’Arcy McNickle, They Came Here First 283 (1975); Vine Deloria, Jr., & Clifford M. Lytle, American Indians, American Justice 21 (1983). 17. See United States v. Lara, 541 U.S. 193, 202 (2004) (noting that federal Indian policies “would fluctuate dramatically” in response to shifting attitudes toward Indians). For further information on the history of federal Indian policy, see Francis Prucha, The Great Father: The United States Government and the American Indians (1984); S. Lyman Tyler, A History of Indian Policy (1973) and the bibliography cited at 281–​309; Alvin M. Josephy, Jr., 500 Nations (1994); Deloria & Lytle, supra note 16. For a discussion of history from a Native American perspective, see Ned Blackhawk, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History (2023). 18. Robert J. Miller, American Indian Sovereignty versus the United States (Feb. 2020), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​3541​054, at 10, 13. 19. For a discussion of the various legal theories of land ownership held by the European governments that settled in North America, see Robert A. Williams, The American Indian in Western Legal Thought: The Discourse of Conquest (1990); Bethany R. Berger, Savage Inequalities, 94 Wash. L. Rev. 583, 597–​601 (2019); O’Brien, supra note 1, at 37–​48; Josephy, supra note 17, at 156. See also Pueblo of Jemez v. United States, 790 F.3d 1143, 1152–​53 (10th Cir. 2015). 20. See Carcieri v. Salazar, 555 U.S. 379, 383 (2009) (noting that the Narragansett Tribe in Rhode Island was “decimated” by King Philip’s War). 21. James H. Merrill, The Indians’ New World: The Catawba Experience, in American Encounters: Natives and Newcomers from European Contact to Indian Removal, 1500–​1800, at 30 (Peter Mancall & James H. Merrill eds., 2000). 22. See Richard White, The Winning of the West: The Expansion of the Western Sioux in the Eighteenth and Nineteenth Centuries, in Native Americans and the Law: Native American Law and Colonialism, Before 1776 to 1903, at 325 (John R. Wunder ed., 1996). 23. Gregory Ablavsky, Making Indians “White”: The Judicial Abolition of Native Slavery in Revolutionary Virginia and Its Racial Legacy, 159 U. Pa. L. Rev. 1457, 1465–​66 (2011). See also Andres Resendez, The Other Slavery: The Uncovered Story of Indian Enslavement in America (2016).

A History of Federal Indian Policy  21 24. Ablavsky, supra note 23, at 1466. 25. Colin G. Calloway, The American Revolution in Indian Country 19 (1995). 26. The composition and influence of the Iroquois Confederacy is discussed in Chapter XIV, Section D. 27. See Cadwallader Colden, History of the Five Indian Nations (1958). 28. See Marren Sanders, De Recto, De Jure, or De Facto: Another Look at the History of the U.S./​Tribal Relations, 43 Sw. L. Rev. 171, 176 (2013); Williams, supra note 19, at 234–​35. For a discussion of the difference between how the Indians and the colonists viewed property and the tensions between these groups, see Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 12–​21 (2009). 29. Calloway, supra note 25, at 28. 30. Id. at 47, 65. 31. Id. at 34. 32. Id. 33. Robert A. Williams, American Indian Constitutions and Their Influence on the United States Constitution, Proceedings of American Philosophical Society 34 (2016), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​2739​936. 34. Id. at 36–​40. See also Angelique Townsend EagleWoman, Bringing Balance to Mid-​ North America: Re-​Structuring the Sovereign Relationships Between Tribal Nations and the United States, 41 Balt. L. Rev. 671, 693–​94 (2012); Miller, supra note 18, at 8–​10. Some researchers, however, disagree. See, e.g., Gregory Ablavsky, The Savage Constitution, 63 Duke L. Rev. 999, 1002–​03 (2014). 35. H. Cong. Res. 331 (100th), available at https://​www.govtr​ack.us/​congr​ess/​bills/​100/​ hco​nres​331/​text. 36. Treaty with the Wiandot, Delaware, Ottawa, Chippewa, Pottawatima, and Sac Nations, Jan. 9, 1789, 7 Stat. 28 (ratified on Sept. 27, 1789). See Deloria & Lytle, supra note 16, at 3. 37. See Haaland v. Brackeen, 143 S. Ct. 1609, 1657 (2023) (Gorsuch, J., concurring) (“No one in the Nation’s formative years thought that [the Constitution conferred any authority on Congress to regulate the Indian tribes]”). 38. Notes on Cabinet Opinions (Feb. 26, 1793), in 25 Papers of Thomas Jefferson 271–​ 72 (J. Catanzariti ed. 1992). 39. Letter to G. Washington (July 7, 1789), in 3 Papers of George Washington: Presidential Series 134–​41 (D. Twohig ed. 1989). 40. Miller, supra note 18, at 14. 41. Worcester v. Georgia, 31 U.S. 515, 549 (1832). 42. Robert B. Porter, A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law, 31 U. Mich. J.L. Reform 899, 922 (1998). 43. Deloria & Lytle, supra note 16, at 5. 44. Miller, supra note 18, at 13. 45. Act of Aug. 7, 1789, 1 Stat. 50. For a historical discussion of the Northwest Ordinance, see Pueblo of Jemez v. United States, 790 F.3d 1143, 1153 (10th Cir. 2015). 46. 1 Stat. 137, codified as 25 U.S.C. §§ 68 and 177. See Deloria & Lytle, supra note 16, at 40–​41.

22  The Rights of Indians and Tribes 47. 1 Stat. 329. 48. See Calloway, supra note 25, at 280–​81; Francis Prucha, American Indian Policy in the Formative Years 187 (1962). See also Tyler, supra note 17, at 48–​51. 49. See Edward Adams, Politician in Public, Plotter in Private: How Thomas Jefferson Conquered the West and Robbed Native Americans of Their Birthright, The Blake School (Sept. 2020), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​ _​id=​3776​758; Anthony F.C. Wallace, Jefferson and the Indians: The Tragic Fate of the First Americans (1999). 50. 4 Stat. 411 (Chap. 148). 51. Vine Deloria, Jr., American Indian Policy in the Twentieth Century 242 (1985). 52. Reid Peyton Chambers, Reflections on the Changes in Indian Law, Federal Indian Policies and Conditions on Indian Reservations Since the Late 1960s, 46 Ariz. St. L.J. 730, 740 (2014). 53. See Deloria & Lytle, supra note 16, at 7; Carpenter & Riley, supra note 16, at 804. 54. Public Service Co. of New Mexico v. Barboan, 857 F.3d 1101, 1104 (10th Cir. 2017), cert. denied, 138 S. Ct. 1695 (2018) (citations omitted). 55. See United States v. Sioux Nation, 448 U.S. 371, 378 (1980); Deloria & Lytle, supra note 16, at 7. 56. Sherburne F. Cook, The California Indian and Anglo-​American Culture, in Charles Woilenberg ed., Ethnic Conflict in California History 144–​46 (1970); see also Margaret A. Field, Genocide and the Indians of California, 1769–​1873, Graduate Masters Theses, Paper 141 (U. Mass., 1993), available at https://​schol​arwo​rks.umb. edu/​cgi/​view​cont​ent.cgi?arti​cle=​1142&cont​ext=​mas​ters​_​the​ses. 57. J. Weston Phippen, “Kill Every Buffalo You Can! Every Buffalo Dead Is an Indian Gone,” The Atlantic (May 13, 2016), available at https://​www.thea​tlan​tic.com/​ natio​nal/​arch​ive/​2016/​05/​the-​buff​alo-​kill​ers/​482​349/​; Andrew Isenberg, The Destruction of the Bison: An Environmental History, 1750–​1920 (2000). 58. H.R. Rep. No. 104-​808, at 15. 59. Matthew L.M. Fletcher & Wenona T. Singel, Indian Children and the Federal-​Tribal Relationship, 95 Neb. L. Rev. 885, 942 (2017) (noting that federal officials “resorted to kidnapping Indian children”). 60. H.R. Rep. No. 104-​808, at 15. 61. Tyler, supra note 17, at 88. 62. See Carlisle Indian School Project, available at https://​carl​isle​indi​ansc​hool​proj​ect. com/​past/​. See also Haaland v. Brackeen, 143 S. Ct. 1609, 1642 (2023); Littlefield v. U.S. Dept. of Interior, 85 F.4th 635, 650–​51 (1st Cir. 2023). 63. See Bryan Newland, Federal Indian Boarding School Initiative Investigative Report (May 12, 2022), available at https://​www.bia.gov/​sites/​defa​ult/​files/​dup/​inl​ine-​ files/​bsi_​invest​igat​ive_​repo​rt_​m​ay_​2​022_​508.pdf. One purpose of this report is to describe—​and acknowledge—​the federal government’s significant role in these schools. See https://​www.doi.gov/​pressr​elea​ses/​secret​ary-​haal​and-​announ​ces-​fede​ ral-​ind​ian-​board​ing-​sch​ool-​ini​tiat​ive. For personal accounts of enduring these boarding schools, see Rukmini Callimachi, Lost Lives, Lost Culture: The Forgotten

A History of Federal Indian Policy  23 History of Indian Boarding Schools, N.Y. Times (July 19, 2021), available at https://​ www.nyti​mes.com/​2021/​07/​19/​us/​us-​can​ada-​ind​igen​ous-​board​ing-​resi​dent​ial-​scho​ ols.html?smid=​url-​share. 64. Nick Estes, The U.S. Stole Generations of Indigenous Children to Open the West, High Country News (Oct. 14, 2019), available at https://​www.hcn.org/​iss​ues/​51.17/​ind​ igen​ous-​affa​irs-​the-​us-​stole-​gene​rati​ons-​of-​ind​igen​ous-​child​ren-​to-​open-​the-​west. Many people describe these schools as vehicles of genocide. See Keely R. Redhage, A Genocide the World Has Ignored: Holding Governments and the Catholic Church Accountable for Residential and Boarding Schools through the ICC, 48 Brook. J. Int’l Law 801, 808 (2023). 65. See Denezpi v. United States, 142 S. Ct. 1842, 1843 (2022). These CFR courts are discussed in Chapter VI, notes 62–​63 and accompanying text. 66. 18 U.S.C. § 1153. This law, called the Major Crimes Act (MCA) and discussed in Chapter VII, was part of the government’s assimilation policy. See Deloria & Lytle, supra note 16, at 11; John R. Wunder, Retained by the People: A History of American Indians and the Bill of Rights 36–​37 (1994). 67. 25 U.S.C. § 71. For the reasons Congress passed this law, see Wunder, supra note 66, at 29–​30. Arguably, this law is an unconstitutional usurpation of presidential authority. See David H. Moore & Michalyn Steele, Revitalizing Tribal Sovereignty in Treatymaking, 97 N.Y.U. L. Rev. 137 (2022). 68. The Supreme Court upheld the power of Congress to abrogate treaties in this fashion. See Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). 69. See Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples, 15 Harv. BlackLetter L.J. 107, 112–​21 (1999); Deloria & Lytle, supra note 16, at 8–​11. 70. 24 Stat. 388, as amended, formerly 25 U.S.C. §§ 331–​58 (since repealed). 71. County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 254 (1992). For a discussion of the GAA, see Pommersheim, supra note 28, at 126–​31; Tyler, supra note 17, at 95–​104. 72. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 335 (1998). See also Solem v. Bartlett, 465 U.S. 463, 466 (1984); McGirt v. Oklahoma, 140 S. Ct. 2452, 2463, 2465 (2020). 73. Cobell v. Norton, 532 F. Supp. 2d 37, 40 (D.D.C. 2008), vacated and remanded on other grounds, 573 F.3d 808 (D.C. Cir. 2009). 74. Hodel v. Irving, 481 U.S. 704, 707 (1987). See also Oneida Nation v. Village of Hobart, 968 F.3d 664 669 (7th Cir. 2020) (“The results of the allotment policy were disastrous for Indians.”); Wunder, supra note 66, at 32–​34. 75. See Deloria & Lytle, supra note 16, at 10 (noting that the plains Indians “viewed farming with distaste”); see also Herrera v. Wyoming, 139 S. Ct. 1686, 1692 (2019) (noting that Crow leaders informed treaty negotiators that they did not want to farm because they were hunters). 76. See Carpenter & Riley, supra note 16, at 6–​11.

24  The Rights of Indians and Tribes 77. See Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 26 (D.C. Cir. 2008), cert. denied, 555 U.S. 1137 (2009); Judith V. Royster, The Legacy of Allotment, 27 Ariz. L. Rev. 1, 10–​12 (1995). 78. Matthew L.M. Fletcher, States and the American Indian Citizens, 41 Am. Ind. L. Rev. 319, 330 (2017). See also Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law 95 (2012 ed.) § 1.04, 74. 79. 43 Stat. 984, codified at 8 U.S.C. § 1401(b). Nearly half of the Indians in the country had already become citizens through treaties or statutes, including the GAA, 24 Stat. 388, 390. See Willard H. Rollings, Citizenship and Suffrage: The Native American Struggle for Civil Rights in the West, 1830–​1965, 5 Nev. L.J. 126, 134 (2004). 80. Many Indians resisted efforts to confer citizenship upon them. For a discussion of the motives behind the Citizenship Act and its impact, see Porter, supra note 69, at 123–​28. Porter argues that the Citizenship Act may be unconstitutional. See id. at 135–​38. 81. Public Service Co. of New Mexico v. Barboan, 857 F.3d 1101, 1105 (10th Cir. 2017), cert. denied, 138 S. Ct. 1695 (2018). 82. See Institute for Government Research, The Problem of Indian Administration (Lewis Meriam et al. eds., 1928). See, generally, Getches et al., supra note 5, at 189–​90; Deloria & Lytle, supra note 16, at 12. 83. See Wunder, supra note 66, at 54–​58; Deloria & Lytle, supra note 16, at 12. 84. See Tyler, supra note 17, at 112–​22; Deloria & Lytle, supra note 16, at 13–​14. 85. Commissioner of Indian Affairs, Annual Report 90 (1934). 86. 48 Stat. 984, codified as 25 U.S.C. §§ 5101 et seq. 87. H.R. Rep. No. 1804, at 6 (1934). 88. Porter, supra note 42, at 933. See also Wunder, supra note 66, at 66–​78. 89. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 n.17 (1983). 90. 25 U.S.C. § 5101. See Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 108 (1998). 91. 25 U.S.C. § 5103. 92. 25 U.S.C. §§ 5108, 5110, 5102. 93. 25 U.S.C. § 5113. 94. 25 U.S.C. § 5116. 95. Deloria & Lytle, supra note 16, at 15. 96. Oneida Nation v. Village of Hobart, 968 F.3d 664, 671 (7th Cir. 2020). 97. The federal government’s trust relationship with Indian tribes is the subject of Chapter III. Termination is discussed in Chapter V, Section B. See also Tyler, supra note 17, at 168–​81; Deloria & Lytle, supra note 16, at 17–​21; Prucha, supra note 17, at 1044–​64. 98. H.R. Res. 108, 83rd Cong. (1953). 99. See Wunder, supra note 66, at 102; Cohen’s Handbook, supra note 78, at § 1.07, 95 (noting that seventy tribes were terminated in 1954 alone). 100. Carpenter & Riley, supra note 16, at 822. 101. 67 Stat. 488, codified as 18 U.S.C. § 1162, 28 U.S.C. § 1360. P.L. 280 is discussed at length in Chapter VII.

A History of Federal Indian Policy  25 102. Pub. L. No. 959 (1956). American Public Media has created a 52-​minute video discussing the relocation program available at https://​www.apm​repo​rts.org/​epis​ ode/​2019/​11/​01/​uproo​ted-​the-​1950s-​plan-​to-​erase-​ind​ian-​coun​try. 103. O’Brien, supra note 1, at 86. 104. See id.; Wunder, supra note 66, at 105–​07. 105. See Getches et al., supra note 5, at 200–​04; Wunder, supra note 66, at 101. 106. O’Brien, supra note 1, at 104. See Grand Traverse Band of Ottawa & Chippewa Indians v. Office of the U.S. Attorney, 369 F.3d 960, 961–​62 (6th Cir. 2004) (noting that after being terminated, the Grand Traverse Band of Ottawa and Chippewa Indians “experienced increasing poverty, loss of land base and depletion of the resources of its community”). 107. Carpenter & Riley, supra note 16, at 822. 108. Vine Deloria, Jr., Custer Died for Your Sins 136 (1969). 109. 4 [1968] Weekly Compilation of Presidential Documents, no. 10 (Mar. 6, 1968), available at http://​www.nyfe​dsta​tetr​ibal​cour​tsfo​rum.org/​list​enin​gcon​fere​ nce/​pdfs/​Lyn​donB​John​son.pdf. 110. Message from the President of the United States, Recommendations for Indian Policy, H.R. Doc. No. 91-​363, 91st Cong., 2d Sess. (July 8, 1970), available at https://​www. pre​side​ncy.ucsb.edu/​docume​nts/​spec​ial-​mess​age-​the-​congr​ess-​ind​ian-​affa​irs. 111. Statement on Indian Policy, in 19 Weekly Comp. Pres. Doc. 98 (1983). 112. Public Service Co. of New Mexico v. Barboan, 857 F.3d 1101, 1102 (10th Cir. 2017), cert. denied, 138 S. Ct. 1695 (2018). 113. 25 U.S.C. § 1322. 114. See, e.g., Menominee Restoration Act of Dec. 22, 1973, codified at 25 U.S.C. § 903; Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians Restoration Act of October 17, 1984, codified at 25 U.S.C. §§ 714 et seq. See Wunder, supra note 66, at 170–​72. 115. 25 U.S.C. §§ 1451 et seq. 116. 42 U.S.C. §§ 2991 et seq. 117. 25 U.S.C. § 1481. See United States v. Hump, 515 F. Supp. 3d 1015, 1017 (D.S.D. 2021). 118. Pub. L. No. 93-​638, codified as 25 U.S.C. §§ 450f et seq., and in scattered sections of 5, 25, 42, and 50 U.S.C. This law is discussed in Chapter V, notes 57–​66 and accompanying text. 119. 25 U.S.C. §§ 1613–​82. 120. 25 U.S.C. §§ 1901–​63 (1978). This law is the subject of Chapter XVI. 121. 25 U.S.C. §§ 2101–​08. 122. Pub. L. No. 97-​473, 96 Stat. 2607, codified as amended in scattered sections of 26 U.S.C. 123. 25 U.S.C. §§ 2701–​21. This law is the subject of Chapter XV. 124. 25 U.S.C. §§ 305 et seq. 125. See Native American Arts, Inc. v. The Waldron Corp., 399 F.3d 871 (7th Cir. 2005). 126. Pub. L. No. 101-​601, 104 Stat. 3048 (1990), codified at 25 U.S.C. §§ 3001–​13. 127. 25 U.S.C. §§ 4101–​4243. 128. The Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-​351, 122 Stat. 3949 (2008).

26  The Rights of Indians and Tribes 129. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-​4, tit. IX, 127 Stat. 54, 118–​26 (Mar. 7, 2013), and Pub. L. No. 117-​103, div. W, title VIII, §  804, Mar. 15, 2022, 136 Stat. 898, codified at 25 U.S.C. § 1304. 130. United States v. Lara, 541 U.S. 193, 202 (2004), citing 59 Fed. Reg. 22951 (1994). 131. Presidential Memorandum of Apr. 29, 1994, 59 Fed. Reg. 22951 (1994) (Government-​ to-​Government Relations with Native American Tribal Governments), available at http://​www.usdoj.gov/​arch​ive/​otj/​Pres​iden​tial​_​Sta​teme​nts/​presd​oc1.htm. 132. Presidential Memorandum of Nov. 6, 2000, Exec. Order No. 13084 (Consultation and Coordination with Indian Tribal Governments), 65 Fed. Reg. 67249 (Nov. 9, 2000). 133. Matthew L.M. Fletcher, The Failed Protectors: The Indian Trust and Killers of the Flower Moon, 117 Mich. L. Rev. 1267 (2019). 134. Presidential Memorandum of Nov. 5, 2009 (On Consultation with Indian Tribes), Exec. Order No. 13175 (Nov. 6, 2009). This subject is discussed in Chapter III, notes 103–​57 and accompanying text. 135. See United States Department of Interior Media Advisory, At-​a-​Glance Report on the Department of the Interior’s Actions to Advance Tribal Nations (Dec. 8, 2016), available at https://​www.bia.gov/​as-​ia/​opa/​onl​ine-​press-​rele​ase/​media-​advis​ory-​report​ ing-​purpo​ses-​gla​nce-​rep​ort-​dep​artm​ent-​interi​ors. 136. Bethany R. Berger, Hope for Indian Tribes in the U.S. Supreme Court?: Menominee, Nebraska v. Parker, Bryant, Dollar General . . . And Beyond, 2017 U. Ill. L. Rev. 1901, 1902 (2017). 137. See Eric Lipton & Lisa Friedman, Oil Was Central in Decision to Shrink Bears Ears Monument, Emails Show, N.Y. Times (Mar. 2, 2018), available at https://​www.nyti​ mes.com/​2018/​03/​02/​clim​ate/​bears-​ears-​natio​nal-​monum​ent.html. 138. U.S. Commission on Civil Rights, supra note 13, at 28. 139. Fortunately, a federal court halted the removal. Mashpee Wampanoag Tribe v. Bernhardt, 466 F. Supp. 3d 199 (D.D.C. 2020), appeal dism’d, 2021 WL 1049822 (D.C. Cir. 2021). 140. See Interior, Haaland Reverses Trump Effort on Tribal Land, The Hill (Apr. 27, 2021), available at https://​theh​ill.com/​pol​icy/​ene​rgy-​envi​ronm​ent/​550​461-​inter​ ior-​remo​ves-​trump-​era-​add​itio​nal-​steps-​to-​place-​tri​bal-​land?rl=​1. 141. See Trump’s Impact on Indian Country over Four Years, High Country News (Dec. 16, 2020), available at https://​www.hcn.org/​artic​les/​ind​igen​ous-​affa​irs-​tru​mps-​imp​ act-​on-​ind​ian-​coun​try-​over-​four-​years. 142. Memorandum on Tribal Consultation and Strengthening Nation-​ to-​ Nation Relationships (Jan. 26, 2021), available at https://​www.whi​teho​use.gov/​brief​i ng-​ room/​presi​dent​ial-​acti​ons/​2021/​01/​26/​mem​oran​dum-​on-​tri​bal-​consu​ltat​ion-​and-​ streng​then​ing-​nat​ion-​to-​nat​ion-​relati​onsh​ips/​. 143. See Memorandum M-​37069 (Apr. 27, 2021). 144. See Berger, supra note 136, at 1905. 145. Gregory Smith & Carolyn Mayhew, Apocalypse Now: The Unrelenting Assault on Morton v. Mancari, The Federal Lawyer 47 (Apr. 2013).

A History of Federal Indian Policy  27 146. Matthew L.M. Fletcher, A Short History of Indian Law in the Supreme Court, 40 Hum. Rts. Mag. 4, 6 (Sept. 2018); see also Grant Christensen, Predicting Supreme Court Behavior in Indian Law Cases, 26 Mich. J. Race & L. 65 (2020). 147. 143 S. Ct. 1609 (2023). 148. See Covid’s Death Toll in Indigenous Communities Has No Modern Precedent, N.Y. Times (Sept. 8, 2022), available at https://​www.nyti​mes.com/​2022/​09/​08/​brief​i ng/​ covid-​death-​toll-​nat​ive-​americ​ans.html. 149. Pub. L. 116-​136. 150. 42 U.S.C. § 801(a)(1) and (d)(1). 151. Id. at § 801(a)(2)(B). 152. Pub. L. 117-​2. 153. Pub. L. 117-​58. 154. Pub. L. 117-​169. This law is further discussed in Chapter VI. 155. Kevin Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. 200, 202 (2017). 156. Kevin K. Washburn, Everybody Does Better in Indian Country When Tribes Are Empowered (Mar. 2018), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ ract​_​id=​3152​654. 157. Jonathan Nez, Biden’s Budget Will Be a Boon to Tribes—​As Long as the Red Tape Doesn’t Strangle Us, Washington Post (June 29, 2021), available at https://​www. was​hing​tonp​ost.com/​opini​ons/​2021/​06/​29/​biden-​bud​get-​tri​bes-​red-​tape/​. 158. For a thoughtful discussion of steps to take to improve the legal and cultural status of Indians, see Walter Echo-​Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided 423–​24 (2010), at 431–​58. See also Matthew L.M. Fletcher, The Dark Matter of Federal Indian Law, 75 Maine L. Rev. 305, 318 (2023) (stating that although many federal officials believe that our obligations to Indian tribes have already been fulfilled, “they are wrong”). 159. Robert T. Anderson, Indigenous Rights to Water & Environmental Protection, 53 Harv. C.R.-​C.L. L. Rev. 337, 376 (2018). 160. Miller, supra note 18, at 29.

II Definitions Indian, Indian Tribe, Indian Country, and Indian Title

A. INDIAN Who is an Indian?

There is no universally accepted definition of the word Indian. Each government—​tribal, state, and federal—​determines who is an Indian for purposes of that government’s laws. The same person can be considered an Indian under tribal law but not under federal,1 under federal law but not tribal,2 under tribal law but not state,3 and so forth.4 There are so many different definitions of “Indian” that, as Professor Matthew L.M. Fletcher has noted, “No one can rationally devise a boundary line” between who is an Indian and who is not.5 Congress has created programs which use varying definitions of the word “Indian”; consequently, the same person can qualify for one federal Indian program but not another.6 Some programs base Indian status on being an enrolled member of a federally recognized Indian tribe, while others base Indian status on other factors, such as the person’s blood quantum (the amount of Indian blood the person has) and place of residence.7 Congress has created some programs for Indians without defining the term, leaving it to the federal agencies implementing those programs to determine who is eligible. Some of these agencies have been accused of being too stringent in their definitions.8 The word “Indian” appears twice in the U.S. Constitution.9 In neither place is it defined. The word “Indian” also appears in several early federal laws. It is not defined in any of those laws, either. For instance, a law passed in 1790 gave federal officials the authority to prosecute non-​Indians who commit certain crimes against “peaceable and friendly . . . Indians.”10 The Native American Rights Fund (NARF) in Boulder, Colorado, states on its website that “an Indian is a person who is of some degree Indian blood and is recognized as an Indian by a tribe/​village and/​or the United States,” The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0002

30  The Rights of Indians and Tribes but NARF recognizes that the definition of “Indian” (as well as “Native American”) varies depending on the situation.11 The U.S. Census Bureau takes a simple approach to these definitional problems; every person who self-​identifies as an American Indian on the census form is counted as an American Indian on the census. Certain federal criminal laws apply only to “Indians,” but none of those laws define that term. This leaves it to the courts enforcing those laws to determine who is an Indian. Most federal courts use a two-​part test to determine who is an Indian. First, the government must prove that the defendant has some Indian blood, some identifiable Indian ancestry. Second, the government must prove that the defendant is recognized as an Indian by a tribe or by the federal government,12 although at least one federal appellate court has held that a person is not an “Indian” for purpose of federal criminal prosecution unless that person is a member of a federally recognized Indian tribe.13 Proof that the defendant has Indian blood and is enrolled in a federally recognized tribe establishes Indian status in virtually every situation.14 Each Indian tribe has the exclusive right to determine who qualifies as a member of that tribe.15 Most tribes have a one-​quarter or less blood quantum requirement. In other words, someone can have more non-​Indian blood than Indian blood and still be a member of an Indian tribe. The federal government determines which persons are “Indians” for purposes of federal programs.16 The government may ignore a tribe’s membership list and adopt a different standard.17 To be considered an Indian for federal purposes, an individual must have some Indian blood; consequently, a non-​Indian adopted into an Indian tribe cannot be considered an Indian under federal law.18

Are the Native people of Alaska considered Indians?

The Indigenous peoples of Alaska include a number of groups, among them the Iñupiat, Yup’ik, Aleut, Eyak, Tlingit, Haida, Tmisshian, and American Indian. (The term “Eskimo” is still used by some to identify Alaska Natives but is growing less favored.) These other groups are related to American Indians but are ethnologically distinct from them. When Congress passes a law regarding “Indians,” Congress usually states that the law has equal application to Alaska Natives. There are several federal laws that apply only to Alaska Natives, the most important of which are discussed in Chapter XIV, Section B.

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Are the Indigenous peoples citizens of the United States?

Yes. In 1924, Congress passed a law that grants citizenship to all persons born in the United States “to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.”19 Some Indians had become citizens before 1924 by treaty or federal statute. Today, each Indigenous person born in the United States is a citizen at birth.

B.  INDIAN TRIBE What is an Indian tribe?

As with the term Indian, there is no universally accepted definition of the term Indian tribe.20 Here again, each government—​tribal, state, and federal—​ has its own definition for its own purposes. The Commerce Clause of the U.S. Constitution refers expressly to “Indian Tribes” and recognizes them as distinct governments: “The Congress shall have Power . . . [t]‌o regulate Commerce . . . with foreign nations . . . and with the Indian Tribes.”21 But “Indian Tribes” is not defined in the Constitution.22 The NARF website defines “Indian tribe” as a group of people “bound together by blood ties who were socially, politically, and religiously organized, who lived together in a defined territory and who spoke a common language.”23 Some Indian tribes are recognized as tribes by state governments but not by the federal government. Several of these tribes have reservations that were set aside for them more than a century ago by the state. The state of Connecticut, for instance, recognizes five Indian tribes, all of which have reservations. Only two of these tribes are recognized by the federal government.24 The primary method of obtaining recognition as a tribe by the federal government is by meeting the seven requirements established by the Department of the Interior (DOI). Currently, 574 Indian tribes are federally recognized. The process of obtaining federal recognition (and the controversies surrounding this process) are discussed in Chapter XIV, Section E. Federal recognition guarantees that an Indian tribe will qualify to participate in virtually all federal Indian programs.25 A denial of federal recognition, however, does not automatically disqualify a tribe and its members from every federal program. Tribal members, for example, can still enforce a treaty that their ancestors made with the United States even though the DOI refuses to recognize the continued existence of the tribe.26 Also, tribes not officially

32  The Rights of Indians and Tribes recognized by the DOI may participate in federal programs that Congress has not limited to federally recognized tribes.27 In Yellin v. Confederated Tribes of the Chehalis Reservation (2021),28 the Supreme Court found that Congress had created a COVID-​19 relief program in which certain Alaska Native corporations—​none of which were federally recognized tribes—​ would be considered “Indian tribes” for purposes of that program. Thus, the same group may be considered an Indian tribe in one situation and not in another, depending on how Indian tribe is defined in that situation. Tribes may be defined by their political, rather than by their historical or cultural, identity. For instance, some larger tribes, such as the Lakota (Sioux), Ojibwe (Chippewa), Seneca, and Shoshone, were divided by the federal government, and different bands were placed on different reservations. Although all members remain part of the same tribe culturally, each reservation has acquired its own political identity. South Dakota contains nine federally recognized tribes; each one is politically distinct, but all of them are part of the Sioux Nation. On other occasions, Congress has taken two or more distinct tribes and placed them on one reservation, and these tribes have become one tribe politically. An example is the Fort Belknap Indian Community in Montana, which is one tribe politically but is composed of two distinct tribes, the Gros Ventre (A’aninin) and Assiniboine (Nakoda).29 For a time, it was uncertain whether such “created” tribes could become federally recognized, but Congress passed a law making them eligible for federal recognition.30 Some tribes have many members, while other tribes have few. The Cherokee Nation and the Navajo Nation each have nearly four hundred thousand members, whereas the Cahuilla people, who have been divided into nine tribes in California, have about three thousand members in total.31 Some tribes have large reservations, while others are much smaller. The Navajo Reservation has a land base of 27,000 square miles (nearly the size of West Virginia),32 while the reservation of the Cedarville Rancheria of Northern Paiute Indians in California, which has fewer than twenty voting members, is only seventeen acres.33

Is there a difference between an Indian nation and an Indian tribe?

Each Indian tribe has the right to choose its own name. The policy of the DOI, as one court noted in 2019, “is to approve automatically any name chosen by a tribe.”34 Some tribes prefer to call themselves nations, while

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others call themselves tribes, communities, rancherias, or bands. The terms nation, tribe, community, rancheria, and band have been used interchangeably in Indian treaties and statutes and are used interchangeably in this book.

C.  INDIAN COUNTRY What is Indian country?

Broadly speaking, Indian country is all land under the supervision of the U.S. government that has been set aside primarily for the use of Indians. This includes all land within an Indian reservation and all land outside a reservation that has been placed under federal superintendence and designated primarily for Indian use. As a general rule, state laws do not apply to Indians in Indian country; tribal and federal laws apply instead. If someone says, “The crime took place in Indian country,” this indicates that the state has no authority to prosecute the crime if it was committed by an Indian, unless Congress has granted that authority to the state.35 One of the first questions that must be answered to determine which government may exercise its authority in any given situation is whether the land in question is Indian country.36 “Indian country” is defined in a federal criminal statute, Title 18 of the U.S. Code, Section 1151 (18 U.S.C. Section 1151), which states: “Indian country” . . . means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-​of-​way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-​of-​way running through the same.

Although the definition of Indian country is contained in a criminal statute, courts have applied this definition in civil contexts in determining whether the relevant geographic area is Indian country.37 Just as most crimes by Indians in Indian country are governed by tribal and federal law rather than state law, so are most civil matters undertaken by or involving Indians in Indian country, such as marriage, divorce, inheritance, child custody,

34  The Rights of Indians and Tribes taxation, and contract disputes.38 In a court case, determining whether a territory is Indian country is an issue of law rather than of fact; therefore, a judge makes this determination, not a jury.39 Section 1151 contains three subsections and each one identifies a different territory as being Indian country. Under Subsection (a), Indian country includes all land within the boundaries of an Indian reservation, including land privately owned by a non-​Indian,40 by an Indian, or by the tribe.41 Rights-​of-​way through an Indian reservation, such as railroad tracks, utility power lines, and state and federal highways, remain a part of Indian country.42 Once Congress creates an Indian reservation, the entire reservation remains Indian country until Congress removes all or part of the land from reservation status.43 Even if Congress opens a reservation to settlement by non-​Indians, as Congress often has done, and even if most of the reservation becomes owned by non-​Indians, the entire reservation remains Indian country.44 Under Subsection (b) of Section 1151, Indian country includes “all dependent Indian communities” within the United States. Thus, land located outside a reservation is Indian country if it has been set aside by the federal government primarily for the use, occupancy, or benefit of Indians and is under the superintendence of the federal government.45 The nineteen Pueblos of New Mexico, for instance, are dependent Indian communities rather than Indian reservations because, as explained in Chapter XIV, Section A, the United States acquired New Mexico in a treaty with Mexico that guaranteed that the Pueblos would continue to own their land. Thus, their land is not in trust status and the Pueblos are not considered as “reservations” under Section 1151(a). However, because these lands have been set aside by the federal government for the Pueblos and are under federal supervision, they qualify as Indian country under Section 1151(b).46 Other examples include tribal housing projects,47 federal and tribal schools for Indian children set aside for long-​term use,48 and tribal government buildings49 located on federal trust land outside of an Indian reservation. Indian tribes are not able to create additional areas of Indian country merely by purchasing off-​reservation land.50 If the tribe wants this land to be considered Indian county, it must follow a specific procedure established by Congress, and request that the Secretary of the Interior convert the land into trust status and assign that land to the tribe for its use.51 Nor is off-​reservation land necessarily considered a dependent Indian community merely because it is primarily used and occupied by Indians. The Supreme Court made this clear in Alaska v. Native Village of Venetie Tribal

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Government (1998).52 The Court held in Venetie that the nearly forty million acres of land set aside by Congress for the Native peoples of Alaska was not a dependent Indian community despite the fact that this land is occupied by Alaska Natives, is used primarily by them, and is exempt by federal law from state real estate taxation. Only two factors, the Court said, are relevant in determining if land is a dependent Indian community: whether the federal government intended to set the area apart primarily for Indians or Alaska Natives, and whether the federal government substantially supervises its use.53 In Venetie, the Court held that the lands in Alaska did not satisfy the “intended primarily for Indian use” requirement because the federal law creating this territory transferred the land to state-​chartered corporations that could sell the land to non-​Indians at any time. The Court also held that the lands did not satisfy the “substantial supervision” test because Congress had not placed this land under comprehensive federal control.54 Subsection (c) of Section 1151 includes as Indian country all trust and all restricted allotments of land located outside an Indian reservation.55 (Both trust and restricted allotments are parcels of land that have been assigned by the federal government to an individual Indian and cannot be sold or leased by that person without the consent of the federal government. The difference between the two is that the title to a trust allotment is held by the federal government, whereas the title to a restricted allotment is held by the Indian.) Hundreds of these individual allotments exist today, often as the result of Congress having eliminated the reservation in which these allotments once existed, without extinguishing their federal status. These allotments remain Indian country.56

Are non-​Indians permitted to live in Indian country?

Yes. In fact, most people living in Indian country today are non-​Indians—​ and most of the land in Indian country is owned by non-​Indians—​as a result of laws, such as the General Allotment Act of 1887 (GAA),57 which permitted non-​Indians to purchase land in Indian country. Yet, by virtue of Subsection (a) of Section 1151, the entire reservation remains Indian country.

What is an Indian reservation?

An Indian reservation is land that has been set aside by the federal government for the use and benefit of one or more Indian tribes. Most reservations were created by some formal means, such as a federal treaty or statute, or by an executive order signed by the President. Some were created by implication, as when Congress took action that implied the creation of a reservation for a tribe.58

36  The Rights of Indians and Tribes The terms Indian reservation and Indian country are often used interchangeably, but they are not the same. Indian country is a larger concept because it includes not only all Indian reservations but also all dependent Indian communities, and all trust and restricted allotments located outside a reservation.

What type of land is found in Indian country?

Several types of land can be found within most reservations, all of which is Indian country as a result of Section 1151(a). This includes trust land, allotted trust land, unallotted trust land, and fee land. Trust land is land owned by the federal government that has been set aside for the use of an Indian or tribe, called the “beneficial owner.” There are two types of trust land: allotted and unallotted. Allotted trust land is trust land that the federal government has assigned to an Indian “allottee,” and the assigned parcel is called an “allotment.” Unallotted trust land (often called tribal trust land) is trust land that has been assigned by the federal government to a tribe. Indian trust land, in other words, is either allotted or unallotted, depending on whether the beneficial owner is an Indian or a tribe.59 Fee land (also called “deeded” or “patented” land) is land that is privately owned. Indians and tribes can obtain fee land by purchasing it, inheriting it, or receiving it as a gift, just as everyone else can. (As discussed in Chapter I, the process of allotting tribal land in trust status to tribal members and selling other allotments in fee status to non-​Indians began with the General Allotment Act of 1887.) In 2022 in Oklahoma v. Castro-​Huerta,60 the Supreme Court explained that “Indian country is part of a State, not separate from a State.”61 As a result, the Court said, state authority applies in Indian country “except when preempted . . . by federal law or by principles of tribal self-​government.”62 In Castro-​Huerta, for instance, the Court held that although states are generally preempted by federal law from arresting Indians who commit crimes in Indian country, they may prosecute non-​Indians who commit crimes in Indian country even when the victim in an Indian.

D.  INDIAN TITLE What is Indian title?

After the thirteen original states gained their independence from Great Britain in 1783 and formed the United States, the question arose: Who owns

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all the land still controlled by the original inhabitants? Was it the Indians who had been living on that land for thousands of years or was it the United States? The Supreme Court answered that question in 1823 in Johnson v. McIntosh.63 The specific issue in McIntosh was who owned certain land in what is today southern Illinois: a non-​Indian who had purchased that land prior to the Revolutionary War from the tribe that lived there, or a different non-​Indian who had purchased the same land after the Revolutionary War from the federal government, which had acquired it in a treaty with the tribe. (Essentially, different members of the tribe decades apart sold the same land twice.) The Supreme Court resolved the case by relying on the “Doctrine of Discovery,” a principle created three centuries earlier by the colonizing nations of Europe as a way to carve up the “New World.” Although certain European nations had different versions of the Doctrine, the basic concept was that whichever European nation first “discovered” territory inhabited by non-​Christians acquired the right to exclude all other colonial powers from that territory and to seize control of the land from the “heathens.”64 As Professor Robert J. Miller explains, “The Doctrine claimed to grant the sole right to acquire lands from Indigenous governments, by purchase or by conquest, to the European nation which claimed first discovery.”65 When the Supreme Court applied that doctrine in McIntosh, it resulted in a victory for the second purchaser. The first purchaser bought the land directly from the tribe but, by then, the land was no longer the tribe’s property to sell: the European nations that “discovered” North America had already acquired ownership rights. When the United States won the Revolutionary War, the federal government inherited those property rights from the Europeans. Given that the second purchaser acquired the land from the United States—​the rightful owner—​the second purchaser received valid title, not the first purchaser.66 As one critic has stated, the Doctrine of Discovery was manufactured by European nations “to justify their desires to acquire riches and empires around the world” and “was used to steal Indigenous lands, assets, and rights.”67 The Doctrine, “tainted by colonialism and overt racism,”68 was popular with colonizing nations because it authorized the confiscation of Indigenous lands.69 It is irrational to believe that people who had been living on land for thousands of years lost ownership of that land the moment Europeans first set foot on this continent. Many people have joined with Indigenous Nations worldwide in seeking to disavow the Doctrine of Discovery. Professor Miller

38  The Rights of Indians and Tribes recently stated: “Clearly, all settler societies need to learn how to repudiate and repeal this Doctrine because it is based on ethnocentric, racist, religious, and feudal ideas that have no place in the modern-​day world.”70 In 2009, the Episcopal Church of the United States adopted a resolution entitled “Repudiate the Doctrine of Discovery,” describing the Doctrine as “destructive” of the rights of Indigenous peoples and calling for its repudiation.71 In 2023, the Vatican formally repudiated the church pronouncements (“papal bulls”) on which the Doctrine of Discovery had been formulated.72 Whether the United States or any other colonial nation abandons the Doctrine remains to be seen. Although the Supreme Court in McIntosh stripped tribes of their full ownership rights, it also held that the Indians retained a valuable property right: a right to continue to occupy and use their original (“aboriginal”) land until the federal government decides to use it for another purpose. The federal government could extinguish this possessory interest at any time, the Court said, but until it did so, the Indians had the right to remain on their original territory. This possessory interest has been called Indian title, Indian right of occupancy, and aboriginal title. As explained in Johnson v. McIntosh and in later cases, the principles of Indian title are the following: (1) the Christian nations of Europe acquired the right to own or acquire all the land within the United States when they “discovered” North America, and the United States inherited that right when they defeated the British; (2) Indians retain a right known as “Indian title” to remain on their aboriginal territory until such time as Congress decides to take this land for another purpose; (3) Indian title is a possessory—​not an ownership—​interest unless Congress gives the tribe ownership rights in the land; and (4) Indian title may not be sold by the Indians, or lost, except by an express act of Congress.73 In order to prove the existence of Indian title, a tribe must show by historical evidence that the territory in question was part of its ancestral land and was occupied and controlled exclusively by it.74 A tribe can permit other tribes to occasionally use its land without losing Indian title, but lands continuously used or wandered over by competing tribes cannot be claimed by any of these tribes as Indian title lands.75 The Supreme Court has recognized that Indian title is a valuable property interest, the loss of which “cannot be lightly implied.”76 Unless an Indian tribe has failed for decades to protect its aboriginal interests77 or has relocated to a new reservation and abandoned its ancestral home,78 a tribe

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will be presumed to retain its aboriginal claims unless Congress has taken some formal act that indicates a clear intent to terminate Indian title.79 In one case, the Supreme Court held that an Indian tribe retained Indian title to its aboriginal land even though Congress had passed a statute allowing a railroad to lay tracks on that land because nothing in the statute expressly extinguished the tribal right.80 A tribe’s interest in continued occupancy is so important that the tribe is entitled to bring a court action to eject trespassers.81 Indian title includes the right to occupy the property as well as use its natural resources, such as water and timber, and to hunt and fish on the property.82 When Congress extinguishes Indian title, the tribe is presumed to have lost not only its right to occupy the land but also its right to use the natural resources found on or within the land.83

When the federal government extinguishes Indian title, must it compensate the tribe for the value of its occupancy rights?

There are two kinds of Indian title, recognized and unrecognized. Recognized title carries a legal right that the other does not: the right to compensation if it is terminated by Congress. Indian title becomes recognized when Congress has taken some formal action (whether by treaty, statute, agreement, or confirmation by Congress of an executive order) that exhibits a clear intention to confer upon the tribe a right to permanent occupancy of a particular area of land. Once that occurs, any subsequent removal by the federal government of this protected interest must be compensated, as required by the Just Compensation Clause of the Fifth Amendment to the Constitution.84 On the other hand, Indian title “may be extinguished by the government without compensation,” the Supreme Court has held, if Congress has not formally recognized a right to permanent occupancy.85 The Supreme Court has been criticized for holding that Indian title is not protected by the Fifth Amendment unless it has been officially recognized.86 In 2010, the United States declared its support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).87 Article 26 of the UNDRIP acknowledges that Indigenous peoples “have the right to own, use, develop and control the lands, territories and resources they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.” Article 32 of the UNDRIP

40  The Rights of Indians and Tribes commits the international community to assist Indigenous peoples to protect and preserve their lands and territories. Consistent with that principle, the U.S. Forest Service signed a Memorandum of Understanding with the Pueblo of Jemez in New Mexico in 2010 that recognizes an obligation by the Forest Service to protect and preserve the Pueblo’s ancestral sites, human remains, traditional cultural property, and freedom of worship on land now located in the Santa Fe National Forest that was part of the Pueblo’s aboriginal territory.88

May the courts reverse a decision by Congress to extinguish Indian title?

No. The Supreme Court has held that the extinguishment of Indian title by Congress is not subject to review by the courts;89 however, only Congress has the authority to extinguish Indian title, not a federal agency or even the President.90 The power of Congress in this regard is complete and final (“plenary”), and a court may not invalidate a congressional extinguishment of Indian title. A court may only determine whether the Indian title being extinguished is recognized title for which compensation must be paid.

Notes 1. Nofire v. United States, 164 U.S. 657 (1897); Dawn Eagle v. Yerington Paiute Tribe, 603 F.3d 1161 (9th Cir. 2010), cert. denied, 562 U.S. 1202 (2011). 2. Halbert v. United States, 283 U.S. 753 (1931); United States v. Bruce, 394 F.3d 1215, 1225 n.6 (9th Cir. 2005). 3. See State v. Reber, 171 P.3d 406, 409–​10 (Utah 2007); Montana ex rel. Poll, Lindlief & Juneau v. Montana Ninth Judicial District Court, 851 P.2d 405 (Mont. 1993). 4. See LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993) (holding that an Indian whose tribe was terminated by the federal government was not an “Indian” for purposes of determining criminal jurisdiction); State v. George, 422 P.3d 1142 (Idaho 2018) (holding that even someone ineligible for tribal enrollment was still an Indian for purposes of determining criminal jurisdiction); Schmasow v. Native American Center, 978 P.2d 304 (Mont. 1999) (finding that an Indian from a terminated tribe qualified for an employment preference as an Indian but not for certain other benefits available to Indians); State v. Sebastian, 701 A.2d 13 (Conn. 1997). 5. Matthew L.M. Fletcher, Tribal Membership and Indian Nationhood, Am. Indian L. Rev. (2013), available at https://​rep​osit​ory.law.umich.edu/​artic​les/​2649/​, at 1. 6. See Nell Jessup Newton et al. eds., Felix Cohen’s Handbook of Federal Indian Law § 3.03[4]‌, 180 (2012 ed.). See also Yellin v. Confederated Tribes of Chehalis Reservation, 141 S. Ct. 2434 (2021).

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7. See, e.g., 25 U.S.C. § 5129 (using as factors membership in a federally recognized tribe and residence on an Indian reservation). 8. See Malone v. Bureau of Indian Affairs, 38 F.3d 433 (9th Cir. 1994), and Zarr v. Barlow, 800 F.2d 1484 (9th Cir. 1986). 9. The Constitution excluded “Indians not taxed” from being counted in determining the number of representatives in the House of Representatives to which the state was entitled, and grants Congress the power to regulate “Commerce . . . with the Indian Tribes.” U.S. Const. art. I, §§ 2, 8 (respectively). For a discussion of how “Indians” were viewed and defined in colonial times, see Gregory Ablavsky, “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings, 70 Stan. L. Rev. 1025, 1049–​76 (2018). 10. Trade and Intercourse Act of 1790, ch. 33, § 5, 1 Stat. 137, 138 (amended 1793). 11. Frequently Asked Questions, Native American Rights Fund, http://​narf.org/​pubs/​ misc/​faqs.html. 12. See United States v. Walker, 85 F.4th 973, 978–​82 (10th Cir. 2023); United States v. Stymiest, 581 F.3d 759, 762–​64 (8th Cir. 2009), cert. denied, 559 U.S. 1055 (2010). 13. United States v. Zepeda, 792 F.3d 1103, 1106–​07 (9th Cir. 2015) (en banc), cert. denied, 559 U.S. 1055 (2016). See also St. Cloud v. United States, 702 F. Supp. 1456, 1461 (D.S.D. 1988); State v. Nobles, 838 S.E.2d 373 (N.C. 2020), cert. denied, 141 S. Ct. 365 (2020). For a discussion of how courts have reached inconsistent results in defining “Indian,” see Cohen’s Handbook, supra note 6, § 3.03[4]‌, 177–​80. 14. Stymiest, 581 F.3d at 764 n.2; United States v. Nowlin, 555 Fed. Appx. 820, 823 (10th Cir. 2014). 15. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 327 (2008); United States v. Antelope, 430 U.S. 641, 646 (1977). The requirements for membership in an Indian tribe are discussed in Chapter VI, Section B(2). 16. See United States v. Bruce, 394 F.3d 1215, 1225 n.6 (9th Cir. 2005); Simmons v. Eagle Seelatsee, 244 F. Supp. 808, 813–​15 (E.D. Wash. 1965) (three-​judge court), aff ’d per curiam, 384 U.S. 209 (1966). 17. See Ordinance 59 Association v. U.S. Department of Interior Secretary, 163 F.3d 1150, 1160 (10th Cir. 1998); Martinez v. Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir. 1957). Congress has allowed Indians who are not members of federally recognized tribes to qualify for Indian certain health benefits. See 25 U.S.C. § 1603(13). 18. United States v. Rogers, 45 U.S. 567 (1846); Montana ex rel. Poll, Lindlief & Juneau v. Montana Ninth Judicial District Court, 851 P.2d 405 (Mont. 1993); State v. Attebery, 519 P.2d 53 (Ariz. 1974). 19. 42 Stat. 253, codified as 8 U.S.C. § 1401(a)(2). 20. See Aqua Caliente Tribe v. Sweeney, 932 F. 3d 1207, 1210 n.3 (9th Cir. 2019) (“There is no universally recognized legal definition of the phrase [Indian tribe], and no single federal statute defining it for all purposes.”). 21. U.S. Const. art. I, § 8. 22. See Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 526–​32 (2017). 23. See Native American Rights Fund, supra note 11, at 1. See also Ablavsky, supra note 9, at 1035–​48.

42  The Rights of Indians and Tribes 24. See https://​www.cga.ct.gov/​2002/​rpt/​2002-​R-​0072.htm. 25. See 25 C.F.R. § 83.2. Federal recognition is a prerequisite to an Indian tribe possessing a government-​to-​government relationship with the United States. See Aqua Caliente Tribe v. Sweeney, 932 F. 3d 1207, 1213 (9th Cir. 2019). This subject is discussed in Chapter XIV, Section E. 26. Timpanogos Tribe v. Conway, 286 F.3d 1195, 1203 (10th Cir. 2002); Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir. 1995); United States v. Washington, 384 F. Supp. 312, 406 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). 27. Frank’s Landing Indian Community v. NIGC, 918 F.3d 610 (9th Cir. 2019); Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 57–​59 (2d Cir. 1994); Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Schmasow v. Native American Center, 978 P.2d 304 (Mont. 1999). 28. 141 S. Ct. 2434 (2021). 29. For a history of the reservation, see https://​ftbelk​nap.org/​hist​ory. See also Cherokee Nation of Oklahoma v. Babbitt, 117 F.3d 1489 (D.C. Cir. 1997) (finding that two culturally distinct tribes had become one tribe politically). 30. 25 U.S.C. § 5123(f)–​(g). See Jamul Action Committee v. Simermeyer, 974 F.3d 984, 993 (9th Cir. 2020). 31. The population of the Cherokee and Navajo Nations is discussed in Chapter I, note 9 and accompanying text. For the population of the Cahuilla people, see https://​aug​usti​ netr​ibe-​nsn.gov/​cahui​lla-​peo​ple/​. 32. See Fact Sheet, Discover Navajo, available at https://​www.dis​cove​rnav​ajo.com. 33. See Knighton v. Cedarville Rancheria of Northern Paiute Indians, 922 F.3d 892, 895 (9th Cir. 2019). The Jamul Indian Village in California consists of only a few acres. See Jamul Action Committee, 974 F.3d at 988. 34. Oneida Indian Nation v. U.S. Dept. of Interior, 789 Fed. Appx. 271, 277 (2d Cir. 2019). 35. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020). 36. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 n.1 (1998); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 333 (1998); Hackford v. Utah, 845 F.3d 1325,1327 (10th Cir. 2017). 37. Alaska v. Native Village of Venetie, 522 U.S. at 527 n.1; DeCoteau v. District County Court, 420 U.S. 425, 428 n.2 (1975); Milne v. Hudson, 519 P.3d 511, 514 (Okla. 2022). 38. See cases cited supra in notes 36 and 37, and Oneida Nation v. Village of Hobart, 968 F.3d 664, 673 (7th Cir. 2020). Criminal jurisdiction in Indian country is discussed in Chapter VII, and civil jurisdiction in Chapter VIII. 39. Magnan v. Trammell, 719 F.3d 1159, 1163–​64 (10th Cir. 2013); United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997). 40. 18 U.S.C. § 1151(a). See Seymour v. Superintendent, 368 U.S. 351 (1962); United States v. John, 437 U.S. 634 (1978); Oneida Nation, 968 F.3d at 679; Yankton Sioux Tribe v. Podhradsky, 606 F.3d at 1007. 41. Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Oklahoma Tax Comm’n, 829 F.2d 967 (10th Cir 1987), cert. denied, 487 U.S. 1218 (1988); Yankton Sioux Tribe, 606 F.3d at 1006–​08.

Definitions: Indian, Indian Tribe, Indian Country, and Indian Title

43

42. 18 U.S.C. § 1151(a). See Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 790 F.3d 1000, 1005 (10th Cir. 2015); Gourneau v. Smith, 207 N.W.2d 256 (N.D. 1973). 43. McGirt v. Oklahoma, 140 S. Ct. 2452, 2459, 2482 (2020); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); Oneida Nation, 968 F.3d at 667–​68. 44. McGirt, 140 S. Ct. at 2464. 45. See Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998); United States v. Sandoval, 231 U.S. 28 (1913); Club One Casino, Inc. v. Bernhardt, 959 F.3d 1142, 1150 (9th Cir. 2020), cert. denied, 141 S.Ct. 2792 (2021); Hydro Resources, Inc. v. U.S. Environmental Protection Agency, 608 F.3d 1131 (10th Cir. 2010) (en banc). 46. Sandoval, 231 U.S. 28; Hydro Resources, Inc., 608 F.3d at 1155. 47. United States v. South Dakota, 665 F.2d 837 (8th Cir. 1981), cert. denied, 459 U.S. 823 (1983); United States v. Martine, 442 F.2d 1022 (10th Cir. 1971). Where, however, a tribal housing project has not been set aside by Congress, it is not a dependent Indian community. See Narragansett Indian Tribe v. Narragansett Electric Company, 89 F.3d 908 (1st Cir. 1996); Trenton Indian Housing Auth. v. Poitra, 973 N.W.2d 419 (N.D. 2022). 48. C.M.G. v. Oklahoma, 594 P.2d 798 (Okla. Ct. App.), cert. denied, 444 U.S. 992 (1979). But see State v. Steven B., 352 P.2d 1181 (N.M. 2015) (holding that Indian school on trust land was not a dependent Indian community because the school had not been set aside for long-​term settlement and use by Indians). 49. United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999), cert. denied, 529 U.S. 1108 (2000). 50. See Blunk v. Arizona Department of Transportation, 177 F.3d 879, 883–​84 (9th Cir. 1998); Narragansett Indian Tribe, 89 F.3d 908; Buzzard v. Oklahoma Tax Commission, 992 F.2d 1073 (10th Cir.), cert. denied, 510 U.S. 994 (1993). 51. 25 U.S.C. § 1508. See South Dakota v. U.S. Department of Interior, 487 F.3d 548 (8th Cir. 2007). This conversion process is discussed in Chapter V, Section B(5). 52. 522 U.S. 520 (1998). 53. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 (1998). See also United States v. Arrieta, 436 F.3d 1246, 1250 (10th Cir.), cert. denied, 547 U.S. 1185 (2006). 54. Venetie, 522 U.S. at 533–​34. See also State v. Quintana, 178 P.3d 820 (N.M. 2008). 55. 18 U.S.C. § 1151(c). See United States v. Ramsey, 271 U.S. 467 (1926); Beardslee v. United States, 387 F.2d 280 (8th Cir. 1967). 56. See Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991); DeCoteau v. District County Court, 420 U.S. 425, 427, 429 (1975); Ramsey, 271 U.S. 467; Tempest Recovery Services, Inc. v. Belone, 74 P.3d 67 (N.M. 2003). 57. 25 U.S.C. §§ 331–​ 58. The GAA is discussed in Chapter I, notes 70–​ 78 and accompanying text. See United States v. Cooley, 141 S. Ct. 1638, 1645 (2021) (“most of those who live on Indian reservations are non-​Indians.”). 58. Minnesota v. Hitchcock, 185 U.S. 373, 390 (1902); Sac and Fox Tribe of Mississippi v. Licklider, 576 F.2d 145 (8th Cir. 1978), cert. denied, 439 U.S. 955 (1978). 59. Further categories of trust land are discussed in Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 1001 (8th Cir. 2010), cert. denied, 564 U.S. 1019 (2011).

44  The Rights of Indians and Tribes 60. 142 S. Ct. 2486 (2022). 61. Oklahoma v. Castro-​Huerta, 142 S. Ct. 2486, 2502 (2022). 62. Id. 63. 21 U.S. 543 (1823). 64. See Johnson v. McIntosh, 21 U.S. 543, 577 (1823). 65. Robert J. Miller, American Indian Sovereignty Versus the United States (Feb. 2020), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​3541​054, at 12; see also id. at 16. 66. Johnson v. McIntosh, 21 U.S. at 574–​89. 67. Robert J. Miller, The Doctrine of Discovery: The International Law of Colonialism, The Indigenous Peoples’ J. of L., Culture & Resistance 35 (2019). For a critical analysis of the Doctrine of Discovery, see Walter Echo-​Hawk, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided 55–​84 (2010); Frank Pommersheim, Broken Landscape 112–​14 (2009); Vine Deloria, Jr., Custer Died for Your Sins 30–​31 (1969). 68. Echo-​Hawk, supra note 67, at 77. The author of Johnson v. McIntosh, Chief Justice John Marshall, later called the Doctrine of Discovery an “extravagant and absurd idea.” Worcester v. Georgia, 31 U.S. 515, 544 (1832). 69. Indeed, a contrary ruling—​holding that Indian tribes still owned most of the country—​would have been so unpopular, it would have been unenforceable. See Robert B. Porter, A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law, 31 U. Mich. J.L. Reform 899, 921 (1998). 70. Miller, supra note 67, at 42. 71. See https://​www.episco​pala​rchi​ves.org/​sites/​defa​ult/​files/​anti-​rac​ism/​anti-​rac​ism-​ train​ing/​2009-​D035.pdf. 72. See Nicole Winfield, Responding to Indigenous, Vatican Rejects Discovery Doctrine, AP News (Mar. 20, 2023), available at https://​apn​ews.com/​arti​cle/​vati​can-​ind​igen​ous-​ papal-​bulls-​pope-​fran​cis-​062e3​9ce5​f759​4a81​bb80​d041​7b3f​902. 73. See United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 354 (1941); Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); Alabama-​Coushatta Tribe of Texas v. United States, 2000 WL 1013532 (Fed. Cl. 2000). 74. Santa Fe, 314 U.S. 339; Native Village of Eyak v. Blank, 688 F.3d 619, 623–​26 (9th Cir. 2012) (en banc); Pueblo of Jemez v. United States, 63 F.4th 881, 889–​90 (10th Cir. 2023); Six Nations v. United States, 173 Ct. Cl. 899, 911 (1965). 75. Santa Fe, 314 U.S. at 345; Native Village of Eyak, 688 F.3d at 622; Alabama-​Coushatta Tribe, 2000 WL 1013532 at **12–​14; Strong v. United States, 518 F.2d 556, 561 (Ct. Cl.), cert. denied, 423 U.S. 1015 (1975) (discussing the situations in which exclusive possession is not necessary in order to prove Indian title). 76. Santa Fe, 314 U.S. at 354. See also Pueblo of Jemez, 63 F.4th at 891. 77. See City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 216 (2005). 78. Santa Fe, 314 U.S. at 357–​58; Menominee Indian Tribe v. Thompson, 161 F.3d 449, 462 (7th Cir. 1998), cert. denied, 526 U.S. 1066 (1999). 79. Santa Fe, 314 U.S. 339; Pueblo of Jemez, 63 F.4th at 890–​91; United States v. Gemmill, 535 F.2d 1145, 1148–​49 (9th Cir.), cert. denied, 429 U.S. 982 (1976). See also Greene

Definitions: Indian, Indian Tribe, Indian Country, and Indian Title

45

v. Rhode Island, 398 F.3d 45 (1st Cir. 2005) (finding that Congress had terminated the tribe’s aboriginal title). 80. Santa Fe, 314 U.S. 339. See also Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F.2d 341 (7th Cir.), cert. denied, 464 U.S. 805 (1983). 81. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974). See also Pueblo of Jemez, 63 F.4th at 886. 82. See United States v. Adair, 723 F.2d 1394, 1413–​14 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984). 83. Confederated Tribes of Chehalis Indian Reservation v. State of Washington, 96 F.3d 334, 341–​42 (9th Cir. 1996), cert. denied, 520 U.S. 1168 (1997); Western Shoshone National Council v. Molini, 951 F.2d 200, 202–​03 (9th Cir. 1991), cert. denied, 506 U.S. 822 (1992). 84. Tee-​Hit-​Ton Indians v. United States, 348 U.S. 272 (1955); Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937); Karuk Tribe of California v. Ammon, 209 F.3d 1366, 1373 (Fed. Cir. 2000), cert. denied, 532 U.S. 941 (2001). 85. Tee-​Hit-​Ton, 348 U.S. at 289. See also Karuk Tribe, 209 F.3d at 1380; Inupiat Community of the Arctic Slope v. United States, 680 F.2d 122 (Ct. Cl.), cert. denied, 459 U.S. 969 (1982). 86. See Felix S. Cohen, The Legal Conscience 264–​67 (1960). See also Shoshone Indians v. United States, 324 U.S. 335, 359 (1945) (Douglas, J., dissenting). 87. See  https://​www.un.org/​deve​lopm​ent/​desa/​indige​nous​peop​les/​decl​arat​ion-​on-​the-​ rig​hts-​of-​ind​igen​ous-​peop​les.html. The UNDRIP is discussed in Chapter XII, Section G. 88. See Memorandum of Understanding Between the Pueblo of Jemez and the USDA, Forest Service Santa Fe National Forest (Dec. 20, 2010), available at https://​www. fs.usda.gov/​Inter​net/​FSE_​DO​CUME​NTS/​fsb​dev7​_​020​453.pdf. 89. Santa Fe, 314 U.S. 339. 90. Id.; Pueblo of Jemez, 63 F.4th at 890–​91; United States v. Dann, 873 F.2d 1189, 1195 n.5 (9th Cir.), cert. denied, 493 U.S. 890 (1989).

III The Trust Responsibility There has long existed, the Supreme Court has acknowledged, “a general trust relationship between the United States and the Indian people.”1 As a result of that relationship, the federal government “has charged itself with moral obligations of the highest responsibility and trust, . . . to the fulfillment of which the national honor has been committed.”2 During the past half-​century, Congress has created numerous programs for Indian tribes. Each time, Congress cited the federal government’s trust responsibility as a principal reason for the program’s creation.3 The Indian Self-​Determination and Education Assistance Act of 1975, which authorizes Indian tribes to use federal funds to administer a variety of federal programs on Indian reservations, was enacted to promote “the Federal Government’s unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole.”4 The Indian Health Care Improvement Act of 1976, which funds health services for tribal members, was passed to help fulfill “the Federal Government’s historical and unique relationship with, and resulting responsibility to, the American Indian people.”5 The Indian Tribal Justice Support Act of 1993, which offers administrative and financial assistance to tribal courts, was enacted because the United States “has a trust responsibility to each tribal government that includes the protection of the sovereignty of each tribal government.”6 The American Indian Agricultural Resource Management Act of 1993 was enacted because “the United States has a trust responsibility to protect, conserve, utilize, and manage Indian agricultural lands consistent with its fiduciary obligation and its unique relationship with Indian tribes.”7 The Tribal Law and Order Act of 2010, which strengthens the ability of tribes to combat reservation crime, recognizes that “the United States has distinct legal, treaty, and trust obligations to provide for the public safety of Indian country.”8 The federal government’s trust responsibility, in short, is not only a fundamental principle but a motivating force.

The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0003

48  The Rights of Indians and Tribes

What is the origin of the trust responsibility?

No single event created the federal government’s trust responsibility. Rather, as Congress explained in the Indian Trust Asset Reform Act of 2016, the trust responsibility was created over time “through treaties, statutes, and historical relations with Indian tribes.” It is based on the undeniable fact that Indian tribes “surrendered claims to vast tracts of land” in exchange “for permanent, ongoing performance of Federal trust duties.”9 The United States signed nearly four hundred treaties with Indian tribes between 1787 and 1871 (when Congress ended treaty-​making with tribal nations). These treaties allowed the United States to quickly obtain without further bloodshed what it most wanted: Indian land.10 In exchange, the federal government reserved other lands for these treaty tribes and typically guaranteed that the United States would provide food, clothing, supplies, and various services to the tribes, and would protect them.11 These treaties, as Professor Matthew L.M. Fletcher has stated, urged tribes “to come under the protection of the federal government,” which they agreed to do, forever altering the relationship between the government and the tribes.12 The Treaty of Hopewell, signed with the Cherokee Nation in 1785, guaranteed “peace to all the Cherokees,” assured the Cherokees that they “may have full confidence in the justice of the United States respecting their interests,” and promised to “receive them into the favor and protection of the United States of America.”13 The treaty with the Navajo Nation in 1849 guaranteed that the tribe, in exchange for the land it was relinquishing, would be placed “under the exclusive jurisdiction and protection of the Government” and the federal government would ensure “the permanent prosperity and happiness of said Indians.”14 The 1858 treaty with the Yankton Sioux Tribe guaranteed that the federal government would “protect the said [tribe] in the quiet and peaceful possession” of its reservation lands.15 The United States obtained land and peace in exchange for promises.16 The United States must now keep its end of the bargain.17 This principle, that the federal government has a duty to fulfill its treaty promises and protect and assist Indian tribes, is known as the doctrine of trust responsibility.18 This doctrine is a cornerstone of federal Indian law.19 People often ask why Indians receive free services from the federal government, such as health care. Those services, however, are not “free.” Rather, they are prepaid. Tribes paid dearly for these services when they exchanged their land and other rights for promises of assistance and protection.20 As Kevin Washburn, former Assistant Secretary of Indian Affairs, explained, it

The Trust Responsibility  49 would be appropriate to characterize these services as the “rent” tribes are entitled to collect for their land and for avoiding or ending warfare.21

In what ways can a tribe benefit from having a trust relationship with the United States?

In many ways. Congress has created numerous programs that only those tribes having a trust relationship with the United States—​ the “federally recognized” tribes—​are eligible to receive, including housing, health care, land development, education, loans, employment, and agricultural programs.22 Virtually every federally recognized tribe receives significant financial and technical assistance under one or more of these programs. The hope is someday Indian tribes will once again be economically self-​sufficient. Until then, like most state governments, they need substantial federal assistance to operate their governments and provide services to their citizens.

Does the doctrine of trust responsibility require federal officials to promote and support tribal sovereignty?

The trust responsibility can be viewed either as a narrow or a broad duty. Viewed narrowly, the trust responsibility requires that the federal government provide only those services explicitly set forth in treaties or statutes. Under this view, a guarantee to “protect” a tribe or ensure the “prosperity” and “happiness” of tribal members are concepts too vague to be implemented.23 Under a broad interpretation—​which Congress has been applying for nearly fifty years now—​such promises have significant meaning. They require the federal government to support and facilitate tribal sovereignty, self-​ determination, and economic prosperity.24 As Congress stated in 2016 in the Indian Trust Asset Reform Act, “the responsibility of the United States to Indian tribes includes a duty to promote tribal self-​determination regarding governmental authority and economic development.”25 Thus, a broad application of the trust doctrine “transcends specific treaty promises” and imposes a duty to promote tribal sovereignty and economic self-​sufficiency.26 “A cornerstone of this obligation,” a federal appellate court noted in 2008, “is to promote a tribe’s political integrity.”27 Interpreting the trust responsibility broadly is consistent with the negotiations that occurred when these treaties were signed. Treaties were always written in English and translated by a government agent to tribal leaders. These agents would have given treaty words such as “protection,” “prosperity,” and “happiness” actual meaning and value in their determined

50  The Rights of Indians and Tribes effort to persuade tribes to relinquish their land and end warfare. As discussed in the next chapter, the Supreme Court has developed certain “canons” of treaty interpretation—​consistent with the trust doctrine—​that favor Indian tribes. These canons require that Indian treaties must be interpreted liberally in favor of the treaty tribe, “with any ambiguities resolved in favor of the Indians, and the words of a treaty must be construed in the sense in which they would naturally be understood by the Indians.”28 When these treaties were negotiated, tribes would likely have placed great reliance on the federal government’s promise of protection. It was a significant factor in their decision to sign these treaties. The right of the tribes to forever be protected by the federal government, as Professor Fletcher has explained, is therefore “incredibly valuable.”29 As a result, federal officials should interpret their trust responsibilities broadly and help Indians and tribes to the maximum extent allowable under the treaties and statutes they implement.

How can a statute create a trust responsibility?

It is easy to understand how a treaty can create a trust responsibility because there is an actual exchange of land for promises. No similar exchange occurs when Congress enacts a statute. For two reasons, however, statutes can, and frequently do, create trust responsibilities. First, statutes are the vehicles through which Congress implements its treaty promises. As the Supreme Court has noted, “Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs.”30 Therefore, statutes that create programs and services for tribes should be viewed as extensions of the treaties. Second, many statutes place Indian property under the control of federal agencies and require those agencies to manage that property in the tribe’s best interests. Courts have recognized that these laws necessarily impose a “fiduciary” duty—​the highest degree of responsibility in the law of trusts—​ on the agency to manage these resources wisely and in the manner dictated by Congress.31 In these situations, courts “must infer that Congress intended to impose” fiduciary responsibilities on the agency.32 In short, it is clear that “the trust relationship arises out of statutes.”33

Can the federal government’s trust responsibility be enforced by the courts?

It depends on whether that responsibility is being violated by Congress or by a federal agency that has been directed by Congress to undertake

The Trust Responsibility  51 specific tasks. As discussed in Chapter V, the Supreme Court has held that the Constitution vests Congress with plenary power to regulate Indian affairs, and courts may not order Congress to take any particular action on behalf of Indians or tribes. In fact, if Congress decides to terminate an Indian program—​or even politically terminate an Indian tribe—​a federal court has no authority to prevent it.34 With respect to Congress, the trust responsibility is a moral and ethical, rather than a legally enforceable, duty.35 Indians and tribes, however, can compel federal officials to perform the duties that Congress has delegated to their agencies, and courts must scrutinize their actions to ensure that those duties are fulfilled.36

What standard should courts use in determining whether federal officials have fulfilled their trust responsibilities?

The Supreme Court has held that activities undertaken by the federal government pursuant to its trust obligations must “be judged by the most exacting fiduciary standards.”37 In all situations in which a tribal trust relationship exists, the government has a duty to act in good faith, to remain loyal to the Indian or tribal beneficiary, and to use its expertise on behalf of the beneficiary,38 as is generally true whenever any type of legal trust is created.39 Federal agencies responsible for implementing this nation’s Indian programs have an “overriding duty . . . to deal fairly with Indians,”40 and their actions must be judged by the “stricter standards” that apply to a fiduciary.41 As a result of treaties and statutes, the federal government has created numerous trusts in which Indians and tribes are the beneficiaries. Each trust creates its own set of fiduciary duties. For instance, when a treaty guarantees that the federal government will protect tribal land (as most treaties do), federal agencies are prevented from selling or otherwise disposing of that land unless authorized by Congress;42 from diverting so much water away from that land that the land cannot be productive;43 and from denying Indians the ability to access or use that land.44 When a federal statute places Indian property, such as oil, gas, minerals, or timber, under the comprehensive control and management of federal agencies, the federal government acquires a fiduciary duty to manage those trust resources properly and in the best interests of the Indian beneficiaries.45

In what ways has the trust doctrine evolved over the years?

The trust doctrine has evolved in two significant respects over the years. First, the trust doctrine has evolved from a tool to suppress Indian tribes into a tool to support Indian tribes. Originally, the trust doctrine reflected the

52  The Rights of Indians and Tribes theory developed by the Christian nations of Europe that God had directed them to “civilize” non-​Christians around the world for the “benefit” of the native peoples—​and to do so in whatever ways the Europeans thought appropriate.46 As Walter Echo-​Hawk has explained, European nations developed a “guardianship principle” based on the view that “a Christian nation’s duty is to civilize and Christianize the backward people of the New World.”47 Millions of Indigenous persons were subjugated and had their land confiscated by European nations in the name of guardianship. Soon after the United States gained its independence from Great Britain, the Supreme Court adopted this same guardianship principle. In 1831, the Court described the relationship between Indian tribes and the United States as one that “resembles that of a ward to his guardian.”48 During the first one hundred fifty years, the United States “used the trust relationship to dispossess tribal land, decimate tribal societies, and drive some tribes to political extinction.”49 Supreme Court decisions during those years endorsed the belief that Indians were inferior, incompetent, and uncivilized.50 In 1886, for instance, the Court upheld the authority of Congress to subject reservation Indians to federal criminal laws on the grounds that Indians are “wards of the nation” and Congress has a “duty” to civilize them.51 In 1903, the Court held that Congress could break a treaty with an Indian tribe and confiscate land promised to the tribe in that treaty as an “exercise of guardianship,” acceptable conduct of “a Christian people in their treatment of an ignorant and dependent race.”52 In 1913, the Court upheld a law prohibiting the introduction of alcohol into Indian country on the basis that Indian people are “simple, uninformed, and inferior,” and “the United States, as a superior and civilized nation,” must exercise “a fostering care” over them.53 Fortunately, the United States has evolved. In 1968, President Lyndon B. Johnson submitted a Message to Congress proposing “a new goal for our Indian programs: A goal that ends the old debate about termination of Indian programs and stresses self-​determination; a goal that erases old attitudes of paternalism and promotes partnership self-​help.”54 In 1970, President Richard M. Nixon furthered this evolutionary process when he denounced prior federal policies aimed at assimilating Indian people into white society and recommended instead “a policy in which the Federal government and the Indian community play complementary roles” and where tribal governments independently administer the federal government’s reservation programs.55 Since then, Congress has created dozens of programs that

The Trust Responsibility  53 promote tribal self-​government and economic self-​sufficiency. Moreover, as discussed later in this chapter, various Presidents have issued executive orders requiring federal agencies to relate to Indian tribes on a government-​to-​ government basis. Thus, as Mr. Washburn has noted, the trust doctrine has “evolved from a paternalistic model,” in which the federal government makes decisions for tribes, often to their detriment, “to understanding that the trust responsibility obliges the federal government to support and revitalize tribal governments and even advocate and protect tribal sovereign powers.”56 The view expressed by the Supreme Court in 1831 that Indians are wards of the government is “obsolete in the modern Self-​Determination era.”57 What used to be described as a ward-​to-​guardian relationship is now described as a government-​to-​government relationship.58 The second evolution that has occurred has to do with the Supreme Court. During the first one hundred fifty years of this nation’s history, of the three branches of the federal government, the Supreme Court was the most protective of tribal rights (despite its occasional bad and demeaning rulings). It was the Supreme Court, for instance, that created the canons of construction and liberally interpreted treaties in favor of Indian tribes, protecting essential hunting, fishing, and water rights. In contrast, Congress and the Presidents placed Indian tribes on reservations during those years, broke nearly every treaty they signed with Indian tribes, and promoted the removal of Indian children from their homes and their placement in boarding schools. During the past fifty years, however, the Supreme Court has given the trust doctrine a narrow application and increased the ability of states to extend their laws into Indian country, while Congress and the Presidents (with the notable exception of Donald Trump) have given the trust doctrine a broad application and supported tribal self-​government.59 Not only have Indian tribes lost the vast majority of cases decided by the Court during the past fifty years but, in 2011, the Court stated that the government “assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities.”60 In 2023, in Arizona v. Navajo Nation, the Court further diluted the trust doctrine, holding in a 5–​4 decision that, even when an Indian tribe has an entitlement under federal law to property controlled by federal agencies, such as water, the tribe cannot compel those agencies to assist the tribe to make use of that property unless Congress or the President has expressly imposed such duties on the agencies. According to the Court, “control alone” of tribal property creates only a “bare” trust unless statutes or treaties specify otherwise,

54  The Rights of Indians and Tribes and Indian tribes must look to Congress and the President, not to the courts, to impose those specific trust duties.61 Thus, as Mr. Washburn has noted, while “the political branches have expanded the meaning of the trust responsibility,” the courts “have narrowed the legal enforceability of the trust responsibility to tribes. . . . In some ways, meaningful fulfillment of the federal trust responsibility has been relocated from the courts to the political branches.”62 According to Professor Fletcher, the Supreme Court today is the “largest barrier” to a broad application of the trust doctrine. “At virtually every turn,” Professor Fletcher states, “the Supreme Court seemingly looks for a reason to rule against tribal interests, often guided by the Department of Justice in its quest.”63

What remedies may a court grant when a federal agency is violating its trust responsibilities?

Congress has passed several laws that permit Indians and tribes to seek remedies from a court when a federal agency violates its trust responsibilities. These laws are discussed in Chapter XVII. When a federal agency violates its trust duties, courts must issue an effective remedy. What constitutes an effective remedy will vary with the situation. For instance, if a federal agency has announced plans to construct a dam and the tribe knows that the dam will harm tribal fisheries, the tribe will want to obtain an injunction to prevent that harm from occurring.64 On the other hand, if a federal agency has already injured a trust resource, such as by selling tribal oil and gas at a fraction of its value, the tribe will want to obtain damages to compensate for the loss.65 Both types of remedies—​injunctive relief to prevent future injury, and damages to compensate for past injury—​are available from federal courts in many, but not all, situations. Two Supreme Court cases decided in the early 1980s addressed the question of whether an Indian tribe can obtain money damages from the United States when a federal agency mismanages trust property. In 1980, in United States v. Mitchell (“Mitchell I”),66 tribal members on the Quinault Reservation filed a lawsuit seeking damages against the United States on the grounds that the Department of the Interior (DOI) had mismanaged timber resources on trust land allotted to them under the General Allotment Act of 1887 (GAA).67 The Supreme Court acknowledged that the GAA created a “limited” trust relationship between the federal government and Indian tribes. However, because nothing in the GAA required or even implied a duty to manage timber, the Court said, the Quinault could not obtain money damages under the

The Trust Responsibility  55 GAA for the alleged mismanagement.68 The Court returned (“remanded”) the case to the lower court to consider whether some other statute or regulation might provide a basis for such a remedy. On remand, the trial court concluded once again that the DOI had violated its trust obligations. This time, the court relied on a set of statutes and DOI regulations that imposed specific duties on the DOI to manage tribal timber. The Supreme Court agreed with that conclusion. In 1983 in United States v. Mitchell (“Mitchell II”),69 the Court held that the statutes and regulations cited by the trial court gave the federal government “comprehensive” and “elaborate” control over the growth and harvesting of timber on Indian trust land and regulated “virtually every aspect of forest management.”70 Although nothing in those statutes or regulations expressly conferred a right on tribal members to recover damages for agency mismanagement, the Supreme Court held that a federal law known as the Indian Tucker Act71 “can fairly be interpreted as mandating compensation” whenever Congress places such pervasive control of a tribal resource in the hands of a federal agency and provides express instructions on how to manage it, and the agency then mismanages that resource.72 Because these statutory obligations created a trust responsibility, the Court said, “it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties,” thus recognizing that tribal members, as well as tribes, may be entitled to certain trust duties.73 The decisions in Mitchell I and Mitchell II have become known as the “Mitchell doctrine.” In its later cases, unfortunately, the Supreme Court has given the Mitchell doctrine a narrow application—​which is one reason tribes have been so critical of the Court in recent years. For instance, in Navajo Nation v. United States (2003),74 the Navajo Nation alleged that the Secretary of the Interior, Donald Hodel, had deliberately given the tribe false and misleading information that helped convince the tribe to sell its coal to the Peabody Coal Company for a lower price than the coal was worth. The trial court found that Secretary Hodel had deceived the tribe, thereby violating his trust responsibility, and awarded nearly $600 million in damages to the tribe to compensate for the loss of income. The Supreme Court reversed. The statutes relied on by the Navajo Nation gave to Indian tribes what the Court called the “lead role” in negotiating the sale of tribal coal, with the DOI only overseeing the negotiations.75 Therefore, the Court said, even if Secretary Hodel had deceived the Navajo, the tribe could not recover damages because the final decision was theirs.76

56  The Rights of Indians and Tribes Clearly, the Court’s decision in Navajo Nation dilutes the trust doctrine. Secretary Hodel betrayed the Navajo. The very official to whom the tribe should have been able to turn for advice had deliberately misled them. As Kevin Washburn has commented, Navajo Nation “reflects a weakening of the notion of the federal government as a ‘trustee’ for tribes.”77 In United States v. White Mountain Apache Tribe (2003),78 the Supreme Court held in a 5–​4 decision that the federal government had breached its trust duties when it seized four hundred acres of tribal land, occupied it for many years to operate a school, and then returned the land to the tribe in a dilapidated condition. Although the tribe won, the 5–​4 vote illustrates how difficult it has become to win a trust responsibility case in the Supreme Court. Indeed, in 2009, the Supreme Court in Navajo Nation v. United States79 (“Navajo Nation II”) once again considered a claim by the Navajo Nation that Secretary Hodel had violated his trust responsibilities to the Navajo with respect to the Peabody contract. After losing in 2003, the Navajo returned to the lower federal courts and argued that a network of federal laws that the Nation had not cited in their earlier case created a trust responsibility with respect to the management of its coal. A federal appellate court agreed with the tribe.80 The Supreme Court, however, reversed. The Court held, once more, that because the tribe retained primary control over the terms of the contract and these statutes did not create any specific duties the government had ignored, the government had not violated its trust responsibilities, even if Hodel had deliberately deceived the tribe.81 Moreover, as mentioned earlier, the Supreme Court in 2023 held in Arizona v. Navajo Nation that even when a tribe has a clearly established right to a property that is under the control of a federal agency, a court cannot order the agency to assist the tribe implement or actually use that property unless Congress has expressly imposed that duty on the agency.82 Many federal statutes do confer on federal agencies—​most often, the Bureau of Indian Affairs—​precisely that level of control and management over trust property, including land, minerals, and timber, as well as over money received by federal agencies from the sale or lease of that property (“royalty income”). These statutes create trust responsibilities. For instance, courts have held that when a statute requires a federal agency to collect royalty income on behalf of an Indian or tribal beneficiary, this creates a trust responsibility, and the government’s actions with respect to these funds must be scrutinized under exacting fiduciary standards.83 These standards require in most instances that the agency managing

The Trust Responsibility  57 these funds will: (1) create procedures, policies, and accounting methods that are likely to result in a proper discharge of the agency’s managerial duties;84 (2) ensure that the amount of money collected is the amount contractually owed;85 (3) deposit the money with reasonable promptness into an interest-​bearing or other income-​producing account if the money is not immediately distributed to the beneficiary;86 (4) ensure that the account provides a reasonable rate of return;87 (5) ensure that each beneficiary receives its rightful share of the royalties;88 (6) supply an accurate accounting of all funds collected, invested, and distributed in sufficient detail to allow the beneficiary to determine whether mismanagement of the funds has occurred;89 and (7) follow all instructions set forth by Congress in the applicable statute.90 The most comprehensive case involving mismanagement of Indian royalty income was Cobell v. Salazar (originally Cobell v. Norton), filed in 1996 on behalf of three hundred thousand Indians for whom the federal government had received royalty income. The plaintiffs alleged, and the trial court found, that the federal government had either misplaced, lost, or converted to government use billions of dollars in royalty income. The Secretary of the Interior admitted during the trial that serious errors had been made and that the DOI had not fulfilled its trust obligations. The trial court found a “century-​long reign of mismanagement.”91 On appeal, the appellate court concluded that “Interior’s deplorable record deserves condemnation in the strongest terms.”92 In 2010, Congress approved an omnibus settlement of Cobell,93 although many people criticized the amount of the settlement (nearly $3.4 billion) as unfair and insufficient to compensate for the losses that had occurred.94 In 1999, over two hundred Native American farmers and ranchers filed a class action lawsuit alleging that the U.S. Department of Agriculture (USDA) discriminated against Native American applicants in seeking loans and benefits under several federal agricultural programs. That case, Keepseagle v. Perdue (originally Keepseagle v. Veneman), also resulted in a settlement ($680 million), although some criticized the terms as unfair.95 In numerous contexts, Indians have obtained remedies from courts when federal officials failed to honor their trust obligations. The trust doctrine has assisted Indians in protecting land;96 water rights;97 hunting and fishing rights;98 oil, gas, and other mineral rights;99 the right to tribal sovereignty;100 and the right to proper management of royalty income held in trust accounts.101

58  The Rights of Indians and Tribes As a result of Navajo Nation I and II, Indian tribes now face a dilemma: the more authority they acquire to make decisions regarding their property, the less courts are willing to find federal officials responsible when those decisions turn sour. Along with greater tribal control comes greater tribal responsibility. Tribes must “take the bitter with the sweet,” as one commentator has stated, when they decide to manage resources previously managed by a federal agency.102

What is the duty of consultation?

The importance of consultation cannot be overstated. It is a critical part of the trust responsibility. There would be fewer lawsuits against federal agencies—​ and far greater mutual respect and cooperation—​if federal officials meaningfully consulted with Indian tribes. In 1994, President William F. Clinton issued a presidential memorandum requiring all federal administrative agencies to engage in consultation with Indian tribes: “Each executive department and agency shall consult, to the greatest extent practicable, and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments.”103 In 2000, Clinton issued Executive Order 13175, which directs federal agencies to “establish regular and meaningful consultation” with Indian tribes in “the development of Federal policies that have tribal implications.”104 This executive order, still valid today, requires federal agencies to consult with tribal governments early in the development process before issuing a regulation or policy impacting tribes.105 President George W. Bush endorsed Executive Order 13175 in 2004 in a presidential memorandum entitled “Government-​to-​Government Relationship with Tribal Governments.”106 In 2009, President Barack Obama issued a presidential memorandum also endorsing Executive Order 13175 that described consultation as a “critical ingredient” in the trust relationship and which required each federal agency to create and implement a written tribal consultation policy within ninety days.107 “History has shown,” the memorandum states, “that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results.”108 Within days of taking office in January 2021, President Joseph Biden issued his Memorandum on Tribal Consultation and Strengthening Nation-​to-​Nation Relationships, declaring that “regular, meaningful, and robust consultation with Tribal Nations” is a “priority of my Administration.”109 The following year, the Biden administration issued

The Trust Responsibility  59 detailed standards for tribal consultation, including standards on how to determine when consultation is necessary, the notice that must be provided to tribes, and the way in which consultation should be conducted.110 These presidential proclamations require consultation whenever a tribal interest will be affected, even if that interest is not the primary focus of the agency action.111 As Kevin Washburn has stated, “the United States must never take an action affecting Indian tribes without first consulting with them.”112 Numerous courts have invalidated decisions by federal agencies that were made without adequate consultation with the affected tribe.113 Consultation is about respect. Through meaningful consultation, a federal agency can honor the trust relationship, work with tribes on a government-​ to-​government basis, learn and appreciate tribal values, avoid errors and false presumptions about tribal interests, and make informed decisions.114 As part of the consultation process, federal agencies should (1) inform the tribe of all relevant facts at the outset of the decision-​making process and keep the tribe informed of developments; (2) give the tribe sufficient time to consider the situation before expecting a response; (3) ensure that the process is accessible and convenient to tribal participants; (4) offer to provide the tribe with technical assistance; (5) maintain a dialogue with the tribe and address the tribe’s concerns in a timely manner; (6) consult with the tribal officials who have decision-​making authority on the issue unless directed by those officials to work with their subordinates; (7) consider the situation from the tribe’s perspective; (8) document the consultation process and provide the tribe with a detailed written summary at the conclusion of the process; and (9) if the tribe’s recommendation is not accepted, send a written and detailed explanation of the reasons for that decision.115 More complaints have been made about agency consultation—​or the lack of it—​than almost any other area of federal administration of Indian affairs. In 2016, more than sixty tribes and tribal organizations told federal agencies, according to a government report, that agency officials typically contacted them only after they had already reached a decision, ignored tribal recommendations, failed to provide tribes with enough information or time to make an informed decision, failed to follow the agency’s own consultation policy, dismissed tribal cultural and religious interests as insignificant, and did not treat tribes on a government-​to-​government basis during the consultation process.116 Court decisions, executive orders, and agency regulations currently require only that tribes be consulted, not that they must give their consent.

60  The Rights of Indians and Tribes Many people believe that merely consulting with tribes, as Professor Robert J. Miller recently commented, “without obtaining consent, does not fulfill the United States’ legal duties to Indian nations nor does it honor the history of the United States’ diplomatic relationship with tribal governments. . . .”117 The UN Declaration on the Rights of Indigenous Peoples, signed by every member of the United Nations, states in Article 19 that governments “shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”118

Which statutes require agency consultation with tribes?

Congress has placed consultation duties in several federal laws.119 The Indian Self-​Determination and Education Assistance Act of 1975 (ISDEAA) authorizes Indian tribes to administer programs funded by the Department of Health and Human Services and by the DOI. The Act requires those agencies to consult with tribes in setting up and administering ISDEAA programs.120 The Archaeological Resources Protection Act of 1979 requires consultation with tribal governments before federal agencies approve excavations on tribal land.121 The Native American Graves Protection and Repatriation Act of 1990 requires consultation with tribal governments, traditional religious leaders, and lineal descendants about the disposition of human remains, funerary objects, and other sacred burial items.122 The National Environmental Policy Act of 1969 (NEPA)123 requires the preparation of an environmental impact statement (EIS) for any proposed federal action that may significantly affect environmental quality, in which possible alternatives to the proposed action are explored.124 Although NEPA does not mention Indian tribes, the agency assigned to implement the Act, the Council on Environmental Quality (CEQ), has issued regulations that require agencies to contact affected Indian tribes and provide them with opportunities to participate in the preparation of an EIS.125 Federal courts have the authority to halt agency actions that fail to comply with NEPA requirements.126 The Endangered Species Act of 1973 (ESA)127 requires federal agencies to ensure that any action they undertake is not likely to jeopardize the existence of any species on the list of endangered species, or destroy or adversely modify the critical habitat of any listed species.128 The ESA “reveals a conscious decision by Congress to give endangered species priority

The Trust Responsibility  61 over the primary missions of federal agencies.”129 Section 7 of the ESA130 requires that any federal agency considering action (the “action agency”) consult with the federal agency that has the most expertise in that area (the “expert agency”) to ensure that the proposed action is not likely to jeopardize the continued existence of any endangered species or its habitat.131 The ESA does not require action agencies to consult with affected tribes, but tribes can insist that consultation occur between the action agency and the expert agency.132 Congress passed the National Historic Preservation Act of 1966 (NHPA)133 to help protect and preserve property within the United States that has historic significance.134 Section 106 of the NHPA requires that all federal agencies take historic preservation into consideration in every project those agencies undertake, fund, permit, license, or otherwise approve.135 Federal agencies must allow each party that might be affected by any such undertaking to voice its opinion on the proposed action if the property is listed on, or qualifies for listing on, the National Register of Historic Places.136 The National Register, administered by the National Park Service, an agency within the DOI, is the nation’s official list of properties recognized for their significance in American history, architecture, archeology, engineering, or culture.137 NHPA was amended in 1992 to provide that properties eligible for listing on the National Register include property “of traditional religious and cultural importance to an Indian tribe.” The amendment also requires that federal agencies consult with any federally recognized Indian tribe or Native Hawaiian organization “that attaches religious and cultural significance” to any historic property that may be affected by an agency’s undertaking.138 The consultation requirement applies regardless of whether the historic property is located on or off an Indian reservation,139 but the action must be a federal undertaking and not a purely private one. For instance, before a federal agency may issue a license authorizing the construction of a cellular tower on federal land, the agency must consider whether the tower may affect the historic or cultural interests of an Indian tribe in that property and, if it might, consult with the tribe.140 The agency must also give the Advisory Council on Historic Preservation (ACHP),141 the federal agency that administers NHPA, an opportunity to comment on the project before deciding whether to issue the permit.142 NHPA requires a process, however, not a particular conclusion. “Section 106 review encourages, but does not mandate, preservation.”143

62  The Rights of Indians and Tribes ACHP has issued regulations implementing NHPA.144 The regulations require that consultation with Indian tribes by federal agencies regarding activities covered by NHPA “commence early in the planning process,” “recognize the government-​to-​government relationship between the Federal Government and Indian tribes,” and be “conducted in a manner sensitive to” the tribe’s concerns and needs.145 The burden is on the agency to identify affected tribes, contact them, and invite them to participate in the consultation process.146 The agency must work with all interested parties to implement “alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties.”147 Whenever a tribe notifies a federal agency that it has a cultural or religious interest in a site and the federal agency makes a determination that the proposed undertaking will not adversely affect that interest (a “no adverse effects” determination), the agency must notify the tribe in writing of the reasons for the finding. The tribe has thirty days to file a written objection. If an objection is filed, the agency must consult with the tribe and seek to resolve the disagreement or request that ACHP review the finding. The tribe may also request ACHP review.148 If the disagreement is not resolved, ACHP prepares a written statement of its position and presents it to the head of the agency, after which the agency makes its final decision.149 Section 106 does not require that federal agencies accept tribal recommendations, but it does require the agency to engage in meaningful consultation, during which the views of the tribe will be considered.150 “Government-​to-​government consultation is a background requirement of Section 106 review at every stage.”151 The consultation process must be completed before the agency allows the proposed activity to commence.152 Courts have invalidated agency decisions that failed to comply with the consultation requirements of Section 106.153 In addition to these statutes mandating consultation, many federal agency policies issued in compliance with President Obama’s 2009 memorandum require agency employees to engage in meaningful consultation with Indian tribes when carrying out agency operations. The DOI’s “Policy on Consultation with Indian Tribes” requires that whenever a DOI action may impact tribal interests, prompt and meaningful consultation between the agency and Indian tribes must commence that “will be open and transparent without compromising the rights of Indian tribes or the government-​ to-​government consultation process.”154 USDA’s consultation policy, “Tribal Consultation, Coordination, and Collaboration,” requires all agencies within

The Trust Responsibility  63 USDA to “engage with Tribes in timely and meaningful consultation on policies that have substantial direct effects on one or more Tribes” in order to achieve “information exchange, mutual understanding, and informed decision making” on a government-​to-​government basis.155 The consultation policy of the U.S. Department of Justice (DOJ) requires “meaningful” consultation with affected tribes on any agency action that has “Tribal implications” in a manner “accessible and convenient to Tribal participants” and “conducted through a transparent and accountable process.”156 Although federal agencies now have their own consultation policies, it would still be best if Congress enacted a law that sets forth what is minimally necessary to satisfy the government’s obligations, and which states that tribal consent is required unless some compelling federal interest outweighs the tribe’s request.157

Does the United States have a trust relationship with every Indian tribe?

Under a broad interpretation of the trust doctrine, the federal government has a trust relationship with every Indian tribe.158 The DOI, however, which administers most of the federal government’s Indian programs, believes that only those tribes officially “recognized” by the DOI have a trust relationship with the United States, thereby entitling them to participate in the department’s programs.159 The Supreme Court has yet to determine the extent to which the trust doctrine applies to those tribes that are not federally recognized (the “non-​ recognized” tribes). The prevailing view of lower federal courts is that even if a tribe is non-​recognized, it may have a limited trust relationship with the federal government. For example, courts have held that non-​recognized tribes may file suit to enforce treaties they signed with the United States.160 Courts have also held that non-​recognized tribes and their members may participate in programs and receive benefits or protections that Congress has not restricted to recognized tribes and their members.161

Does the trust doctrine apply to Indians living off the reservation?

Under a broad interpretation of the trust doctrine, the federal government owes trust duties to all Indians, including those living off-​reservation, and courts have recognized the existence of such a duty in narrow situations.162 For the most part, however, off-​reservation Indians have been allowed to

64  The Rights of Indians and Tribes participate only in those few federal programs that Congress has specifically made available to them, unless they return to their reservations to receive the services. Of course, statutes requiring that federal officials provide specific services to off-​reservation Indians create a trust obligation to do so.163

Does the trust responsibility extend to off-​reservation activities that affect reservation Indians?

In certain circumstances, yes. For example, activities by federal agencies undertaken off the reservation that would diminish on-​reservation water supplies164 or pollute reservation air or water165 have been held to violate the trust doctrine. In addition, a duty of consultation often applies to off-​ reservation agency action that would harm a tribal interest.166 The trust doctrine, however, likely does not extend to off-​reservation activities regulated by a federal agency on privately owned land unless a treaty or statute expressly requires the agency to protect tribal interests in such situations.167

May Congress terminate a trust relationship?

Yes. Congress may terminate its trust relationship with an Indian tribe at any time, with or without the tribe’s consent.168 During the termination era discussed in Chapter I, Congress terminated its trust relationships with 109 tribes. In each instance, it accomplished this by passing a law that prohibited the tribe from exercising governmental powers, required the tribe to distribute all of its property and assets to tribal members or to a state-​chartered corporation, eliminated the reservation, and declared that the tribe’s trust relationship with the United States had ended.169 (Fortunately, Congress has since restored to federal status the vast majority of these terminated tribes.) A trust relationship may only be terminated by an express act of Congress; termination will not be implied.170 Even the tribe may not terminate the relationship.171

May Congress assign trust duties to state officials?

Yes. In the same way that Congress may assign trust duties to federal officials, it may assign trust duties to state officials, and Congress has done so on occasion.172

Overall, have federal officials faithfully implemented their trust duties?

Federal officials have often ignored or improperly executed their trust obligations, mismanaged tribal trust resources, and inhibited tribes from

The Trust Responsibility  65 becoming self-​governing.173 Indeed, according to Professor Fletcher, the federal government has fulfilled only a “tiny portion” of its trust duties.174 Ultimately, the fault lies with Congress, which has the responsibility to honor this nation’s treaty commitments and ensure that federal agencies are properly performing their trust duties. Congress, however, has broken most Indian treaties, terminated Indian tribes, and failed to adequately supervise the management of tribal resources by federal agencies. Congress has a trust responsibility to enhance the social and economic well-​being of Indian people, yet Indians are the most disadvantaged and impoverished group in our society.175 In 2018, the U.S. Commission on Civil Rights reported that Native Americans “face significant inequities” compared with non-​Native people in “health, education, housing, and economic measures” based in significant part on “the federal government’s continuing failure to live up to its trust obligations.”176 This is not to suggest that federal agencies always act improperly regarding tribal interests; to the contrary, federal agencies and their thousands of dedicated employees assist tribes in countless ways every day. The Society of American Indian Government Employees (SAIGE) was formed in 2002 by employees of the federal government to help recruit Native Americans to work for the federal service. According to its mission statement, SAIGE’s goal is to “educate Federal agencies in the history and obligations of the Federal Indian Trust responsibility and to assist them in its implementation.”177 Some federal agencies have been sued by non-​Indians who accused them of unfairly protecting tribal interests. The Army Corps of Engineers was sued when it refused to allow a non-​Indian company to construct a fish farm in a manner the Corps believed would interfere with an Indian tribe’s treaty right to fish at that location.178 The National Park Service was sued by non-​Indians for having requested that the public voluntarily refrain from climbing Devil’s Tower (located on Park Service lands in Wyoming) during the weeks that local Indian tribes conduct traditional religious ceremonies at that site.179 The Secretary of Commerce was sued by non-​Indians for restricting their access to certain ocean fisheries, although the Secretary said the restriction was necessary to protect Indian treaty fishing rights.180 The government won each of those cases. Congress and federal agencies cannot always remain loyal to Indians to the exclusion of all other interests.181 However, there is no responsibility more venerable or important than the trust responsibility. Congress and federal officials must honor this nation’s treaty commitments to Indian tribes.

66  The Rights of Indians and Tribes Congress should enact legislation that makes clear to federal officials that the goal of the trust relationship is tribal self-​determination and economic independence, that tribes must be treated on a government-​to-​government basis, and that Indian trust assets must be handled with fiduciary responsibility.182 Congress must also adequately fund the programs it has created to assist Indians and tribes, many of which have been underfunded for years. The U.S. Commission on Civil Rights reported in 2018 that federal funding for tribal programs “remains grossly inadequate to meet the most basic needs the federal government is obligated to provide.”183 Fulfillment of the trust responsibility cannot occur without sufficient funding from Congress.184 Many tribes today struggle just to make payroll and provide basic services to their members. In addition, Congress should continue to allow tribes to administer federal programs on their reservations, and increase the number of programs that tribes may administer, both because tribal officials typically know best what tribal members want and need and because, by administering these programs, they will gain administrative and governmental experience.185 Some people see an inconsistency between aspiring to tribal self-​ government and self-​sufficiency, on the one hand, and insisting on the fulfillment of trust duties, on the other. But the fact is that few tribes, if any, are in a position to be economically independent after hundreds of years of efforts by the United States to undermine, if not destroy, tribal governments. Whatever the drawbacks to the trust doctrine, most tribes need federal assistance, and are entitled to receive it. Until a tribe declines federal support, federal agencies should properly perform their trust duties and foster tribal sovereignty and economic self-​sufficiency.186

Notes 1. United States v. Jicarilla Apache Nation, 564 U.S. 162, 174 (2011), citing United States v. Mitchell, 463 U.S. 206, 225 (1983). See also Haaland v. Brackeen, 143 S. Ct. 1609, 1628 (2023) (internal citation omitted) (recognizing the government’s “distinctive obligation of trust” for Indian tribes and their members); Cobell v. Norton, 240 F.3d 1081, 1098 (D.C. Cir. 2001) (“the government has longstanding and substantial trust obligations to Indians”). 2. Jicarilla Apache Nation, 564 U.S. at 174 (citations omitted). 3. See Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law 420–​21 § 5.04[3]‌[a], 414 (2012 ed.) (“Nearly every piece of modern

The Trust Responsibility  67 legislation dealing with Indian tribes contains a statement reaffirming the trust relationship between tribes and the federal government.”). 4. 25 U.S.C. § 5302(b). 5. 25 U.S.C. § 1601(1). 6. 25 U.S.C.A. §§ 3601(2). 7. 25 U.S.C. § 3701(2). 8. 111th Cong. Pub. L. 211, § 202(a)(1), codified within 25 U.S.C. § 1302. 9. 25 U.S.C. § 5601(4), Pub. L. No. 114-​178, 130 Stat. 432 (June 22, 2016). 10. See Arizona v. Navajo Nation, 143 S. Ct. 1804, 1809 (2023) (noting that in an 1868 treaty, the United States made assurances to the Navajo Nation “in exchange for the Navajos’ promise not to engage in further war”); Northwestern Band of Shoshone Nation v. Wooten, 83 F.4th 1205, 1207 (9th Cir. 2023) (noting that the U.S. wanted the Shoshone to sign a treaty so that the U.S. could obtain land and save lives and money). See also Kevin K. Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. Forum 200, 217–​18 (2017) (“the trust responsibility sprung directly from the recognition that the United States was founded on Indian land” and until that land is returned to the tribes, a “strong moral justification” exists to assist the tribes whose land was confiscated.) Mary C. Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1496–​97 (1994). 11. Wood, supra note 10, at 1497 (footnotes omitted). 12. Matthew L.M. Fletcher, Politics, Indian Law, and the Constitution, 108 Cal. L. Rev. 495, 505–​08 (2020). See also Matthew L.M. Fletcher, The Dark Matter of Federal Indian Law, 75 Maine L. Rev. 305, 309–​14 (2023). 13. A copy of the treaty is available at https://​cata​log.archi​ves.gov/​id/​299​798. 14. Treaty of 1849, 9 Stat. 974, art. I, XI. 15. Treaty of 1858, 11 Stat. 743 at 744. 16. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020) (“At the far end of the Trail of Tears was a promise.”); Herrera v. Wyoming, 139 S. Ct. 1686, 1692–​93 (2019) (noting that “the United States made certain promises to the [Crow] tribe” in exchange for thirty million acres of land); Washington State Dept. of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1016 (2019) (noting that the Yakama Nation “received a reservation and various promises” in exchange for ten million acres of land). 17. Seminole Nation v. United States, 316 U.S. 286, 297 (1942). See also United States v. Mitchell, 463 U.S. 206, 225 (1983); Morton v. Mancari, 417 U.S. 535, 551–​52 (1974); Fletcher, Politics, supra note 12, at 555 (noting that “Indian and tribal legal rights” were acquired through “a bargained-​for exchange.”) 18. See Fletcher, The Dark Matter, supra note 12, at 311 (noting that the federal government’s promise of protection is “also known as the trust responsibility”). For a further discussion of the trust doctrine, see Mary Kathryn Nagle, Nothing to Trust: The Unconstitutional Origins of the Post-​Dawes Act Trust Doctrine, 48 Tulsa L. Rev. 63, 67–​71 (2012); Wood, supra note 10. 19. See Cohen’s Handbook, supra note 3, at § 5.04[3]‌[a], 412 (noting that the trust doctrine is “[o]ne of the basic principles in Indian law”).

68  The Rights of Indians and Tribes 20. See id. at § 22.01[1]‌, 1377 (recognizing that federal services to Indians “were never mere gratuities”). 21. Washburn, supra note 10, at 218. 22. The process by which a tribe can become federally recognized is explained in Chapter XIV, Section E. 23. See Arizona v. Navajo Nation, 143 S. Ct. 1804, 1815 (2023) (holding that although the treaty with the Navajo promised them a “permanent home,” this assurance did not obligate the federal government to take affirmative steps to secure water for the tribe). 24. See Fletcher, Politics, supra note 12, at 505–​08; Wood, supra note 10, at 1497–​1506. 25. 25 U.S.C. § 5602. See also 25 U.S.C. § 4301, recognizing that, due to the “special relationship between the United States and Indian tribes,” Congress should promote tribal economic development by, among other things, encouraging private investment in Indian country. 26. Wood, supra note 10, at 1506. 27. California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1267 (D.C. Cir. 2008). 28. Herrera v. Wyoming, 139 S. Ct. 1686, 1699 (2019) (internal citations omitted). See also Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985); Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034, 1042, 1046 (9th Cir. 2023); Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1462 (10th Cir. 1997). However, as the Supreme Court cautioned in Arizona v. Navajo Nation, 143 S. Ct. 1804, 1809 (2023), the text of the treaty must support the interpretation the tribe wants it to have. 29. Fletcher, The Dark Matter, supra note 12, at 319. 30. Rice v. Cayetano, 528 U.S. 495, 519 (2000). 31. See United States v. Mitchell, 463 U.S. 206, 225 (1983); Loudner v. United States, 108 F.3d 896, 900–​01 (8th Cir. 1997). 32. Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001) (citation omitted). See also Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1347–​48 (Fed. Cir. 2004), cert. denied, 544 U.S. 973 (2005). 33. Cobell v. Kempthorne, 455 F.3d 301, 307 (D.C. Cir. 2006), cert. denied, 549 U.S. 1317 (2007). See also United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011) (noting that “the applicable statute and regulations” establish the scope of the government’s trust obligations). 34. Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). 35. See Tee-​Hit-​Ton Indians v. United States, 348 U.S. 272 (1955). See also United States v. Mitchell, 463 U.S. 206, 225 (1983); Wood, supra note 10, at 512–​13. 36. Mitchell, 463 U.S. at 225; Seminole Nation v. United States, 316 U.S. 286, 296–​97 (1942); United States v. Creek Nation, 295 U.S. 103 (1935). 37. Seminole Nation, 316 U.S. at 296–​97. See also Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339, 1347–​48 (Fed. Cir. 2004), cert. denied, 544 U.S. 973 (2005); Osage Tribe of Indians of Oklahoma v. United States, 72 Fed. Cl. 629, 668 (Fed. Cl. 2006). See Gregory C. Sisk, Yesterday and Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity, 39 Tulsa L. Rev. 313, 334–​40 (2003).

The Trust Responsibility  69 38. See cases cited supra note 36. See also Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006); Shoshone Indian Tribe, 364 F.3d at 1347–​48. 39. Restatement (Third) of Trusts § 2 (2003). See generally Mark Asher, Austin Scott, & William Fletcher, Scott and Asher on Trusts (5th ed. 2009), ch. 2. 40. Morton v. Ruiz, 415 U.S. 199, 236 (1974). 41. Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001) (internal citation omitted). 42. Cramer v. United States, 261 U.S. 219 (1923); Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919). 43. Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D.D.C. 1972), rev’d on other grounds, 499 F.2d 1095 (D.C. Cir. 1974). 44. United States v. Creek Nation, 295 U.S. 103 (1935). 45. See United States v. Mitchell, 463 U.S. 206, 225 (1983); Jicarilla Apache Tribe v. Supron Energy Corp., 782 F.2d 855 (10th Cir. 1986) (en banc), adopting in relevant part 728 F.2d 1555, 1567 (10th Cir. 1984) (dissenting opinion), modified, 793 F.2d 1171 (10th Cir.), cert. denied, 479 U.S. 970 (1986); Klamath Tribes v. United States, 1996 WL 924509 (D. Ore. 1996); Pyramid Lake, 354 F. Supp. 252. 46. See Robert J. Miller, The Doctrine of Discovery: The International Law of Colonialism, The Indigenous Peoples’ J. of L., Culture & Resistance 35 (2019); Frank Pommersheim, Broken Landscape 92–​95 (2009). 47. Walter Echo-​Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided 19 (2010). See also Pommersheim, supra note 46, at 94. 48. Cherokee Nation v. Georgia, 30 U.S. 1, 16–​17 (1831); see also United States v. Rickert, 188 U.S. 432, 437 (1903) (stating that Indians “are yet wards of the nation”). 49. Robert T. Anderson, Indigenous Rights to Water & Environmental Protection, 53 Harv. C.R.-​C.L. L. Rev. 337, 346 (2018). See also Cohen’s Handbook, supra note 3, §§ 1.03[3]‌–​1.03[4](a), 38–​48. 50. See Fletcher, Politics, supra note 12, at 507. 51. United States v. Kagama, 118 U.S. 375, 383, 384 (1886). 52. Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) (internal quotation omitted). For a discussion of Lone Wolf, see Echo-​Hawk, supra note 47, at 161–​86. 53. United States v. Sandoval, 231 U.S. 28, 41, 46 (1913). 54. Special Message to Congress on the Problems of the American Indian: “The Forgotten American,” 1 Pub. Papers 335 (Mar. 6, 1968), available at https://​www.dig​ital​hist​ory. uh.edu/​disp_​t​extb​ook.cfm?smtid=​3&psid=​718. 55. Message from the President of the United States Transmitting Recommendations for Indian Policy, H.R. Doc. No. 363, 91st Cong., 2d Sess. 6 (1970), available at https://​ files.eric.ed.gov/​fullt​ext/​ED042​523.pdf. 56. Washburn, supra note 10, at 201. See also Matthew L.M. Fletcher, Failed Protectors: The Indian Trust and Killers of the Flower Moon, 117 Mich. L. Rev. 1253, 1256 (2019). 57. Anderson, supra note 49, at 357. 58. See, e.g., 25 U.S.C.A. §§ 3601(1), (2). See also Fletcher, Politics, supra note 12, at 507–​ 08; Washburn, supra note 10, at 216.

70  The Rights of Indians and Tribes 59. See Alex Tallchief Skibine, The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy, 8 Colum. J. Race & L. 277, 285–​86 (2018); see also Oklahoma v. Castro-​Huerta, 142 S. Ct. 2486 (2022). 60. United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011) (emphasis added). 61. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1814–​15 (2023). 62. Washburn, supra note 10, at 200; see also Fletcher, supra note 56, at 1266 (noting that the Supreme Court “routinely enables the federal government to ignore or outright reject the duty of protection” that forms the heart of the trust doctrine). 63. See Fletcher, The Dark Matter, supra note 12, at 318. 64. See Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006); United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976); Comanche Nation, Oklahoma v. United States, 393 F. Supp. 2d 1196 (W.D. Okla. 2005). 65. See United States v. Mitchell, 463 U.S. 206, 225 (1983); White Mountain Apache Tribe v. United States, 537 U.S. 465 (2003); Cheyenne-​Arapaho Tribes of Oklahoma v. United States, 966 F.2d 583, 589 (10th Cir. 1992), cert. denied, 507 U.S. 1003 (1993). 66. United States v. Mitchell, 445 U.S. 535 (1980). 67. 25 U.S.C. §§ 331 et seq. 68. Mitchell, 445 U.S. at 542. 69. United States v. Mitchell, 463 U.S. 206 (1983). 70. Id. at 208, 225. 71. 28 U.S.C. § 1505. 72. Mitchell, 463 U.S. at 228 (emphasis added). 73. Id. at 226. See also Fletcher v. United States, 26 F.4th 1314 (10th Cir. 2022); Marceau v. Blackfeet Housing Authority, 540 F.3d 916 (9th Cir. 2008); Ashley v. U.S. Dept. of Interior, 408 F.3d 999 (8th Cir. 2005). 74. United States v. Navajo Nation, 537 U.S. 488 (2003). 75. Id. at 508. 76. Id. at 507–​08. 77. Washburn, supra note 10, at 222. See Fletcher, supra note at 56, at 1265; see also id., at 1267 (“the Department of Justice’s litigation position is that the federal government’s interests always override the trust responsibility.”). 78. United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003). 79. United States v. Navajo Nation, 556 U.S. 287 (2009). 80. Navajo Nation v. United States, 501 F.3d 1327 (Fed. Cir. 2007). 81. United States v. Navajo Nation, 556 U.S. at 290. See also United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011); Menominee Indian Tribe v. United States, 577 U.S. 250 (2016); Inter-​Tribal Council of Arizona v. United States, 125 Fed. Cl. 493, 499–​500 (Fed. Cir. 2020). 82. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1814–​15 (2023). 83. Chippewa Cree Tribe of the Rocky Boy’s Reservation v. United States, 69 Fed. Cl. 639. 650 (Fed. Cl. 2006); Loudner v. United States, 108 F.3d 896, 900–​01 (8th Cir. 1997). See also White Mountain Apache, 537 U.S. at 476. 84. Osage Tribe, 72 Fed. Cl. at 643. 85. Osage Tribe of Indians of Oklahoma v. United States, 68 Fed. Cl. 322, 328 (Fed. Cl. 2005); Shoshone Indian Tribe, 364 F.3d at 1350–​51; Pelt v. Utah, 539 F.3d 1271, 1276 (2008).

The Trust Responsibility  71 86. Osage Tribe of Indians of Oklahoma v. United States, 93 Fed. Cl. 1 (2010). 87. Shoshone Indian Tribe, 364 F.3d at 1348–​49; Chippewa Cree, 69 Fed. Cl. at 656–​62; Pelt, 539 F.3d at 1281. 88. Whiskers v. United States, 600 F.2d 1332, 1334 (10th Cir. 1979); Chippewa Cree, 69 Fed. Cl. at 647–​48. 89. Fletcher v. United States, 730 F.3d 1206, 1212–​16 (10th Cir. 2013); Chippewa Cree, 69 Fed. Cl. at 664; Shoshone Indian Tribe, 364 F.3d at 1351; Pelt, 539 F.3d at 1285; Cobell v. Norton, 240 F.3d 1081, 1103–​05 (D.C. Cir. 2001). Supplying every minute detail is not usually required, however. See Fletcher v. United States, 854 F.3d 1201, 1204 (10th Cir. 2017). 90. See Cobell v. Kempthorne, 455 F.3d 301, 304 (D.C. Cir. 2006). 91. Cobell v. Babbitt, 91 F. Supp. 2d 1, 53 (D.D.C. 1999), aff ’d in relevant part, 240 F.3d 1081 (D.C. Cir. 2001). 92. Cobell v. Kempthorne, 455 F.3d at 333. 93. Claims Resolution Act of 2010, H.R. 4783, 111th Cong. (Dec. 8, 2010). 94. See Brooke Campbell, Cobell Settlement Finalized After Years of Litigation: Victory at Last?, 37 Am. Indian L. Rev. 629 (2013). 95. For a history of the litigation, see Keepseagle v. Perdue, 856 F.3d 1039 (D.C. Cir. 2017), cert. denied, 138 S. Ct. 1326 (2018). 96. White Mountain Apache Tribe v. United States, 537 U.S. 465 (2003); Pit River Tribe v. United States, 469 F.3d 768, 788 (9th Cir. 2006). 97. See Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D.D.C. 1972), rev’d on other grounds, 499 F.2d 1095 (D.C. Cir. 1974). 98. See Parravano v. Babbitt, 70 F.3d 539, 545–​46 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996); United States v. Eberhardt, 789 F.2d 1354 (9th Cir. 1986) (finding a general trust duty to protect Indian fisheries). 99. Woods Petroleum Corp. v. Department of Interior, 47 F.3d 1032, 1038–​41 (10th Cir.) (en banc), cert. denied, 516 U.S. 808 (1995). 100. Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976), aff ’d sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978). 101. See Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001); Loudner v. United States, 108 F.3d 896, 901 (8th Cir. 1997); Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238 (N.D. Cal. 1973). 102. Sisk, supra note 37, at 347. 103. President William F. Clinton, “Memorandum on Government-​ to-​ Government Relations with Native American Tribal Governments,” 30 Weekly Comp. Pres. Doc. (May 2, 1994), 59 Fed. Reg. 22,951 (Apr. 29, 1994). 104. Exec. Order No. 13175, 65 Fed. Reg. 67,249 (Nov. 6, 2000). 105. Id. 106. 2 Pub. Papers 2177 (Sept. 23, 2004). 107. “Memorandum for the Heads of Executive Departments and Agencies: Tribal Consultation,” 74 Fed. Reg. 57,881 (Nov. 9, 2009). 108. Id. 109. Memorandum on Tribal Consultation and Strengthening Nation-​ to-​ Nation Relationships (Jan. 26, 2021), available at https://​www.whi​teho​use.gov/​brief​

72  The Rights of Indians and Tribes ing-​room/​presi​dent​ial-​acti​ons/​2021/​01/​26/​mem​oran​dum-​on-​tri​bal-​consu​ltat​ion-​ and-​streng​then​ing-​nat​ion-​to-​nat​ion-​relati​onsh​ips/​. 110. Memorandum on Uniform Standards for Tribal Consultation, The White House (Nov. 30, 2022), available at https://​www.whi​teho​use.gov/​brief​i ng-​room/​presi​dent​ ial-​acti​ons/​2022/​11/​30/​mem​oran​dum-​on-​unif​orm-​standa​rds-​for-​tri​bal-​consu​ ltat​ion/​. 111. See Exec. Order No. 13175, 65 Fed. Reg. 67,249 (Nov. 6, 2000) (mandating consultation when federal policies “have tribal implications.”). 112. Washburn, supra note 10, at 214. See also Robert J. Miller, Consultation or Consent: The United States Duty to Confer with American Indian Governments, 91 N.D. L. Rev. 37, 43–​44 (2015); Angelique Townsend EagleWoman, Bringing Balance to Mid-​North America: Re-​Structuring the Sovereign Relationships Between Tribal Nations and the United States, 41 U. Balt. L. Rev. 671, 672–​74 (2012); Derek Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21, 24 (1999/​2000). 113. See California Wilderness Coalition v. U.S. Dept. of Energy, 631 F.3d 1072, 1087 (9th Cir. 2011); Pit River Tribe v. United States Forest Service, 469 F.3d 768 (9th Cir. 2006); Pueblo of Sandia v. United States, 50 F.3d 856, 862 (10th Cir. 1995); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979); Nez Perce Tribe v. United States Forest Service, 2013 WL 5212317 (D. Idaho 2013); Quechan Tribe of the Fort Yuma Reservation v. U.S. Dep’t of the Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010); Confed. Tribes and Bands of Yakima Nation v. U.S. Dept. of Agric., 2010 WL 3434091 (E.D. Wash. 2010); Klamath Tribes v. United States, 1996 WL 924509 at *8 (D. Ore. 1996). 114. See Haskew, supra note 112, at 23; see also Troy A. Eid, Beyond Dakota Access Pipeline: Energy Development and the Imperative for Meaningful Tribal Consultation, 95 Denv. L. Rev. 593, 605–​07 (2018) (discussing how energy companies have benefitted from consultation with Indian tribes). 115. See cases cited supra note 113; Miller, supra note 112, at 62–​67; Anderson, supra note 49, at 377; Haskew, supra note 112; Policy on Tribal Consultation 0300.01, Dep’t of Justice (Aug. 29, 2013), available at https://​www.just​ice.gov/​sites/​defa​ult/​files/​otj/​ docs/​doj-​mem​oran​dum-​tibal-​consu​ltat​ion.pdf. 116. Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions, issued by the Dep’t of the Interior, Dep’t of the Army, and Dep’t of Justice (Jan. 2017), at 2, 12–​13, 16–​18, available at https://​www.bia.gov/​sites/​bia.gov/​files/​ ass​ets/​as-​ia/​pdf/​idc2-​060​030.pdf. See also Haskew, supra note 112, at 22–​27. 117. Miller, supra note 112, at 40. 118. United Nations Declaration on the Rights of Indigenous Peoples, Dec. 13, 2007, available at https://​www.un.org/​deve​lopm​ent/​desa/​indige​nous​peop​les/​wp-​cont​ ent/​uplo​ads/​sites/​19/​2018/​11/​UNDRI​P_​E_​web.pdf, at art. 19; see also id., at art. 32(2) (requiring consent “in connection with the development, utilization or exploitation of mineral, water or other resources”). 119. For a list of statutes and regulations requiring consultation with Indian tribes, see http:// ​ w ww.schlos​ s erl ​ awfi ​ l es.com/ ​ c ons​ u lt/ ​ Polici ​ e sRe ​ C ons​ u lt%20w- ​ Indi ​ anTr​ ibe.htm.

The Trust Responsibility  73 120. Pub. L. No. 93-​638, 88 Stat. 2203 (1975). 121. Pub. L. No. 96-​95, 93 Stat. 721, 727 (1979) (codified at 16 U.S.C. § 470ii) (requiring that regulations be issued only after tribal consultations). 122. Pub. L. No. 101-​601, § 5, 104 Stat. 3048, 3052 (1990). 123. 42 U.S.C. §§ 4321 et seq. 124. See 42 U.S.C. § 4332(C) and §§ 4321, 4331; 40 C.F.R. § 1501.1. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–​51 (1989); United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC, 933 F.3d 728, 734–​35 (D.C. Cir. 2019); Dine Citizens Against Ruining Our Environment v. Bernhardt, 923 F.3d 821, 851 (10th Cir. 2019). 125. The regulations are set out in 40 C.F.R. Parts 1500–​1508; see, e.g., 40 C.F.R. § 1501.2(d)(2) (requiring early consultation with Indian tribes). 126. See Dine Citizens Against Ruining Our Environment v. Haaland, 59 F.4th 1016 (10th Cir. 2022); Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm’n, 896 F.3d 520, 538 (D.C. Cir. 2018); Anderson, supra note 49, at 371–​79. 127. 87 Stat. 884, 16 U.S.C. §§ 1531 et seq. 128. 16 U.S.C. § 1536(a)(2). 129. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978) (internal quotations marks omitted). 130. 16 U.S.C. § 1536; see 50 C.F.R. § 402.16. 131. 16 U.S.C. § 1536(a)(2). 132. Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012) (en banc). 133. NHPA, Pub. L. 102-​575, was originally codified in Title 16 of the U.S. Code but was transferred to various sections of Title 54 in 2014. See Pub. L. No. 113-​287, 128 Stat. 3094. 134. 54 U.S.C. § 300101. 135. Section 106 of NHPA is now codified at 54 U.S.C. 306108; see also USDA Reg. 1350–​ 002 (2013), available at https://​usd​asea​rch.usda.gov/​sea​rch?utf8=​ %E2%9C%93&affili​ate=​usda&query=​1350-​02&com​mit=​Sea​rch. 136. See 36 C.F.R. §§ 800.2 & .3(f). 137. The National Register is available at https://​www.nps.gov/​subje​cts/​natio​nalr​egis​ter/​ index.htm. 138. Now codified at 54 U.S.C. § 302706; see also id., at § 306102; 36 C.F.R. §§ 800.2(c)(2) and 800.3(f)(2). 139. See United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC, 933 F.3d 728, 733–​34 (D.C. Cir. 2019). 140. See id. 141. See 54 U.S.C. § 304101. 142. 54 U.S.C. §§ 306108, 302706, 306102; see Advisory Council on Historic Preservation, A Citizen’s Guide to Section 106 Review, available at https://​www.achp.gov/​sites/​defa​ ult/​files/​docume​nts/​2017-​01/​Citiz​enGu​ide.pdf, at 3, 5. 143. See “A Citizen’s Guide,” supra note 142, at 4; United Keetoowah Band, 933 F.3d at 733–​34.

74  The Rights of Indians and Tribes 144. 36 C.F.R. pt. 800. See Te-​Moak Tribe of W. Shoshone of Nevada v. U.S. Dep’t of Interior, 608 F.3d 592, 607 (9th Cir. 2010). 145. 36 C.F.R. §§ 800(2)(c)(2)(ii)(A) & (C). See Dine Citizens Against Ruining Our Environment v. Bernhardt, 923 F.3d 821, 839 (10th Cir. 2019); Muckleshoot Indian Tribe v. U. S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999); Quechan Tribe of the Fort Yuma Reservation v. U.S. Dep’t of the Interior, 755 F. Supp. 2d 1104, 1108–​11 (S.D. Cal. 2010). 146. 36 C.F.R. §§ 800.2(c)(1)–​(4), 800.3(f). See Dine Citizens, 923 F.3d at 846. 147. 36 C.F.R. § 800.6(a). 148. 36 C.F.R. §§ 800.5(c)(2)(i) and (iii). 149. 36 C.F.R. § 800.7(c). 150. Id. at § 800.5. 151. United Keetoowah Band of Cherokee Indians in Oklahoma, 933 F.3d 728, 745 (D.C. Cir. 2019). 152. See 54 U.S.C. § 306108. 153. See Pueblo of Sandia v. United States, 50 F.3d 856, 862 (10th Cir. 1995); Quechan Tribe of the Fort Yuma Reservation v. U.S. Dep’t of the Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010). But see Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm’n, 45 F.4th 291 (D.C. Cir. 2022) (finding that adequate consultation had occurred). 154. “Department of the Interior Policy on Consultation with Indian Tribes,” Order No. 3317 (Dec. 1, 2011). See also DOI Procedures for Consultation with Indian Tribes (2015), available at https://​www.doi.gov/​sites/​doi.gov/​files/​elips/​docume​nts/​ 512-​dm-​5.pdf. 155. U.S. Dep’t of Ag., “Action Plan for Tribal Consultation and Collaboration,” available at http://​www.usda.gov/​docume​nts/​Consu​ltat​ionP​lan.pdf, at 1. 156. U.S. Department of Justice Policy Statement 0300.01, 65 Fed. Reg. 67,249 (Aug. 29, 2013), available at https://​www.just​ice.gov/​sites/​defa​ult/​files/​otj/​docs/​doj-​mem​ oran​dum-​tibal-​consu​ltat​ion.pdf; see also “Attorney General Guidelines Stating Principles for Working with Federally Recognized Indian Tribes,” 79 Fed. Reg. 73905 (Dec. 12, 2014). 157. See Anderson, supra note 49, at 378. 158. See Pit River Tribe v. U.S. Forest Service, 469 F.3d 768, 788 (9th Cir. 2006) (“The federal government owes a fiduciary obligation to all Indian tribes as a class.”) (internal citations omitted). See also United States v. Sandoval, 231 U.S. 28, 48 (1913) (recognizing that a trust relationship exists with the Pueblos of New Mexico, despite the fact that no treaties were signed with any Pueblo). 159. See 25 U.S.C. § 5131(a). See Fletcher, Politics, supra note 12, at 508. The process by which tribes can obtain federal recognition is explained in Chapter XIV, Section E. 160. United States v. Washington, 384 F. Supp. 312, 406 (W.D. Wash. 1974), aff ’d, 520 F.2d 676, 692–​93 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir. 1995). 161. See Yellin v. Confederated Tribes of Chehalis Reservation, 141 S. Ct. 2434 (2021); Greene v. Rhode Island, 398 F.3d 45, 54–​55 (1st Cir. 2005); Alabama-​Coushatta Tribe of Texas v. United States, 2000 WL 1013532 at *46–​47 (Fed. Cl. 2000); Gibson v. Babbitt, 72 F. Supp. 2d 1356, 1360 (S.D. Fla. 1999).

The Trust Responsibility  75 162. See Morton v. Ruiz, 415 U.S. 199, 237–​38 (1974); United States v. Holliday, 70 U.S. 407 (1865); Loudner v. United States, 108 F.3d 896, 901 (8th Cir. 1997); Pelt v. Utah, 2008 WL 723740 at *5 (D. Utah 2008); McNabb for McNabb v. Heckler, 628 F. Supp. 544 (D. Mont. 1986), aff ’d, 829 F.2d 789 (9th Cir. 1987). 163. Loudner, 108 F.3d at 901; Pelt, 2008 WL 723740; Malone v. BIA, 38 F.3d 433, 438 (9th Cir. 1994); St. Paul Intertribal Housing Bd. v. Reynolds, 564 F. Supp. 1408 (D. Minn. 1983); Eric v. Secretary of U.S. Dept. of Housing and Urban Development, 464 F. Supp. 44 (D. Alaska 1978). 164. Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1972), rev’d on other grounds, 499 F.2d 1095 (D.C. Cir. 1974). 165. Nance v. Environmental Protection Agency, 645 F.2d 701 (9th Cir. 1981), cert. denied, 454 U.S. 1081 (1981). 166. See cases cited supra note 126. 167. See Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006). 168. Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968). 169. See, e.g., 25 U.S.C. §§ 564, 677, 691. Termination is further discussed in Chapter V, Section B. 170. Menominee Tribe, 391 U.S. 404; Heckman v. United States, 224 U.S. 413 (1912); United States v. Nice, 241 U.S. 591 (1916). 171. Kennerly v. District Court of 9th Judicial District of Montana, 400 U.S. 423 (1971); Joint Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 380 (1st Cir. 1975). 172. See Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1934 (2022) (noting that in 1968, “Congress assigned its trust responsibilities for the Tribe to Texas” and that Texas subsequently “renounced” those responsibilities); Pelt v. Utah, 104 F.3d 1534, 1544 (10th Cir. 1996) (holding that a tribe can enforce trust responsibilities assigned by Congress to state officials). 173. Numerous court cases finding a breach of the trust doctrine are listed in Chapter XVII, Section C. See also Statement of Daniel I.S.J. Rey-​Bear, Oversight Hearing on Fulfilling the Trust Responsibility: The Foundation of the Government-​to-​Government Relationship, U.S. Sen. Comm. on Indian Affairs (May 17, 2012), https://​www. ind​ian.sen​ate.gov/​sites/​defa​ult/​f iles/​upl​oad/​f iles/​Dan-​Rey-​B ear-​test​imon​y051​ 712.pdf, at 5–​6; Kevin Gover, An Indian Trust for the Twenty-​First Century, 46 Nat. Resources J. 317, 318 (2006). 174. Fletcher, The Dark Matter, supra note 12, at 307. 175. This subject is discussed in Chapter I, notes 10–​15 and accompanying text. See generally Broken Promises: Continuing Federal Funding Shortfall for Native Americans, U.S. Commission on Civil Rights, https://​www.usccr.gov/​pubs/​2018/​12-​20-​Bro​ ken-​Promi​ses.pdf. 176. Broken Promises, supra note 175, at 203. 177. https://​saige.org/​our-​miss​ion/​. 178. Northwest Sea Farms, Inc. v. U.S. Army Corps of Engineers, 931 F. Supp. 1515 (W.D. Wash. 1996). 179. Bear Lodge Multiple Use Ass’n. v. Babbitt, 175 F.3d 814 (10th Cir. 1999), cert. denied, 529 U.S. 1037 (2000).

76  The Rights of Indians and Tribes 180. Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996); Kandra v. United States, 145 F. Supp. 2d 1192 (D. Ore. 2001). 181. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 182 (2011) (noting that the federal government has concerns that often compete with its trust obligations); Nevada v. United States, 463 U.S. 110, 128 (1983). See also Kalispel Tribe of Indians v. U.S. Department of the Interior, 999 F.3d 683, 695 (9th Cir. 2021) (holding that where two tribes have competing interests, the Secretary must consider both but may have to side with one tribe over the other). 182. See Rey-​Bear, supra note 173, at 10; Statement of Matthew L. M. Fletcher Before the Senate Committee on Indian Affairs—​Oversight Hearing on Fulfilling the Federal Trust Responsibility: The Foundation of the Government-​to-​Government Relationship, MSU Legal Studies Research Paper No. 10-​13 (2012), available at https://​ssrn.com/​ abstr​act=​2060​395; Kevin K. Washburn, Everybody Does Better in Indian Country When Tribes Are Empowered, UNM School of Law Research Paper No. 2018-​17 (2018), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​3152​654. 183. Broken Promises, supra note 175, at 4. See also id. at 2. 184. See Washburn, supra note 10, at 217–​20; EagleWoman, supra note 112, at 675–​77. 185. See Washburn, supra note 10, at 207–​08. 186. See Washburn, supra note 10, at 217–​20; Sisk, supra note 37, at 358–​73.

IV Indian Treaties What is a treaty?

“A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations,” the Supreme Court has stated.1 The European countries that settled in North America recognized that Indian tribes are sovereign nations. England, Spain, and France entered into more than one hundred treaties with Indian tribes to acquire land and facilitate commerce and trade.2 The United States conducted its formal relations with Indian tribes through treaties as well. In fact, the first treaty signed by the United States following the onset of the Revolutionary War was with an Indian tribe, the Delaware.3 (The treaty, signed in 1778, obtained permission from the Delaware to cross tribal land to attack the British and even offered the tribe the opportunity to become a state of the United States.)4 Indian tribes were regarded by the Europeans and by the United States as independent nations, the Supreme Court noted in 1832, “capable of making treaties.”5

Who can sign a treaty on behalf of the United States?

Article II, Section 2, Clause 2 of the U.S. Constitution (the “Treaty Clause”) authorizes the President, with the consent of two-​thirds of the Senate, to sign a treaty on behalf of the United States. The Constitution declares that federal treaties and federal laws are “the supreme law of the land.”6 Therefore, if a treaty conflicts with a state constitution or state law, the treaty prevails.7 The Treaty Clause has been cited by the Supreme Court as being a source of federal power over Indian tribes, although nothing in the Clause expressly confers that authority.8 A treaty can be made on any subject. A treaty, however, may not deprive a citizen of a right guaranteed by the Constitution; the Constitution is always superior to any treaty (or law).9 The United States has signed scores of treaties with foreign countries covering such subjects as trade, fishing on the high seas, international travel, rules of war, and climate control.

The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0004

78  The Rights of Indians and Tribes

How many Indian tribes have treaties with the United States?

The U.S. Department of State has compiled an official list of 375 treaties between the United States and Indian tribes, seven of which were signed during the Revolutionary War.10 Most tribes in the lower forty-​eight states have entered into at least one treaty with the federal government.11 Not a single California tribe, however, has a treaty with the United States. Eighteen treaties were negotiated with California tribes, and, in compliance with them, these tribes gave up vast landholdings and moved to small reservations. But the Senate, at the urging of the California legislature, refused to ratify the treaties. In fact, the Senate failed to inform the tribes for some fifty years that their treaties had been rejected, long after the federal government had assigned to non-​Indians the lands relinquished by the tribes.12 Some historians believe there could be as many as two hundred unratified treaties, with the tribes fulfilling their end of the bargain—​but not the United States.13 (Congress passed a law in 1871 ending treaty-​making with Indian tribes, so none of these unratified treaties could be ratified after that year.)14

What do the Indian treaties say?

In the years immediately following the Revolutionary War, Indian tribes were powerful and continued to live within the eastern states and along their borders. Considerable time and effort were devoted by the first several Presidents and their administrations to cultivating friendly relations with these neighboring tribes. President George Washington, for instance, “showed great respect for Indian treaties and handled them in the same fashion as he did international treaties.”15 The United States wanted to avoid warfare with these powerful tribes. The goal of the United States in nearly all its Indian treaties was to obtain Indian land through negotiation rather than warfare. While individual treaties varied from one tribe to another depending on the circumstances, nearly all of them “expressly recognized the sovereignty of the tribes” and many “contained express assurances that the federal government would ‘protect’ the tribes.”16 Most treaties also guaranteed the tribe such inducements as food, clothing, medical care, education, and other services.17 For instance, the 1868 treaty with the Navajo, as the Supreme Court recently noted, “imposed a variety of specific obligations on the United States—​for example,

Indian Treaties  79 building schools and a chapel, providing teachers, and supplying seeds and agricultural implements.”18 Tribes that had particular needs were often provided treaty guarantees that addressed those needs. For instance, many tribes whose members hunted or fished in areas not included as part of their reservation obtained guarantees they could continue to hunt and fish in areas outside their reservation. Numerous tribes in the Northwest subsisted on fish, primarily migrating salmon, that they caught in rivers and in the ocean. In 1853, President Franklin Pierce appointed Isaac Stevens as Governor of the newly created Washington Territory (which included present-​day Washington, Idaho, and western Montana). One of Stevens’ first tasks was to negotiate treaties with the tribes in the Territory that would confine them to relatively small areas, thereby freeing most of the land for settlement by whites. In 1854–​55, Stevens negotiated eleven treaties, usually with multiple tribes participating in each one, that created reservations for the tribes. Each treaty guaranteed the tribes a right to fish at their “usual and accustomed grounds and stations,” or words to that effect, ensuring they could continue to fish outside of their reservations.19 One tribe, the Makah, traditionally hunted whales. The treaty with the Makah Tribe, whose reservation is located on the tip of the Olympic Peninsula in Washington, guarantees the tribe a right “of whaling,” the only treaty to contain such an express guarantee.20 Similarly, treaties with the tribes that lived along the Great Lakes usually guaranteed the right to fish in the Great Lakes and in connecting waters.21 The Yakama Nation in Washington had a long tradition of trading with other tribes. The Yakama treaty assures the tribe “the right, in common with citizens of the United States, to travel upon all public highways.”22 This provision has been interpreted to grant the Yakama an exemption from various state taxes associated with the use of state highways.23 Many tribes living on the plains obtained most of their food by hunting nomadic animals, such as bison and elk. Reluctant to sign treaties placing them on land where their food sources could not be found for parts of the year, these tribes often insisted on treaty provisions guaranteeing them the right to hunt outside the reservation.24 At least nine treaties with Indian tribes contain a “bad men” provision. This provision guarantees that if “bad men among the whites” commit a crime on the reservation, federal agents will arrest and prosecute these lawbreakers and will reimburse any Indian who sustained an injury or loss from that misconduct.25

80  The Rights of Indians and Tribes

Is an Indian treaty a grant of rights to a tribe?

The main purpose of an Indian treaty was to take land from the tribe without warfare. Although certain promises were given by the federal government in exchange, no effort was made in any of these treaties to list the many rights that these sovereign tribal governments retained. An Indian treaty, therefore, should be viewed, the Supreme Court has explained, “not [as] a grant of rights to the Indians, but a grant of rights from them.”26 Typically, these treaties only listed the rights that tribes were relinquishing, not those they were retaining. Thus, tribes have many rights in addition to those listed in treaties. In fact, any right that a sovereign nation would normally possess that is not expressly extinguished by a treaty (or by a subsequent federal statute) is presumptively reserved by the tribe.27 This is a principle of federal Indian law known as the reserved rights doctrine. For example, a tribe reserves the right to fish on its reservation even if that right is not recognized in its treaty; the treaty’s silence on the subject means that this inherent right has not been lost.28 Even when a treaty recognizes a tribe’s right to engage in an activity that the tribe historically engaged in, such as hunting or fishing, the treaty is not viewed as the source of that right. Rather, the treaty merely recognizes rights that the tribe has always possessed.29

Did Indian tribes enter into treaties voluntarily?

When European settlers arrived on this continent in the 1600s, Indian tribes on the East Coast generally welcomed them and allowed them to share their land. As time went on, however, the colonists wanted more and more land, and this often led to conflict with the Indians. After the United States gained its independence from Great Britain, the desire for land—​and friction with Indian tribes—​increased. The War of 1812 between the Americans and the British removed the last vestige of European power within the United States. The federal government, which had grown much stronger over the years, could now focus its military power on the Indians, and Indian treaties became increasingly one-​sided and coercive.30 The Creeks, Choctaws, Chickasaws, Cherokees, and Seminoles, located in the southeastern part of the country, suffered some of the first losses. Between 1816 and 1835, all five tribes were compelled to relinquish most of their ancestral homelands in exchange for land in the “Indian Territory” (now within the state of Oklahoma), and were forcibly relocated there.

Indian Treaties  81 In the decades that followed, tens of thousands of white settlers and prospectors moved westward. One by one, tribes were forced to sign treaties and were placed on reservations, often hundreds of miles from their original homelands.31 A number of tribes signed a series of treaties, each one moving them further west, despite language in their original treaties promising that they would never have to move again. The Ottawa Tribe signed five treaties that moved them from Ohio to Kansas and finally to Oklahoma.32 The Wyandotte Nation, also now in Oklahoma, were relocated several times by the federal government before arriving at their present home.33

Does the United States still enter into treaties with Indian tribes?

No. In 1871, Congress passed a law (Title 25, United States Code, Section 71) that prohibited the federal government from entering into additional treaties with Indian tribes. Since then, Congress has regulated Indian affairs through legislation. Section 71 states in relevant part: “Hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.” Section 71 was passed largely because the House of Representatives disliked being excluded from Indian policymaking. Under the Constitution, treaties are made by the President and the Senate. A federal law, on the other hand, must be passed by both the Senate and the House of Representatives, and then signed by the President. The House is involved in passing a law but not in ratifying a treaty, and the House pressured the Senate into passing Section 71 so that it could participate in formulating Indian policy.34 Several scholars have argued that Section 71 is unconstitutional because the President is vested by the Constitution with the authority to sign treaties on behalf of the United States—​including treaties with Indian tribes—​a power that only a constitutional amendment can rescind, not merely a statute.35 No court, however, has yet addressed this issue. The passage of Section 71 marked a severe loss of legal and political status for Indian tribes. Until this time, Indian tribes had been viewed by the federal government as sovereign nations whose consent was required before the federal government could take any action affecting them. Now, Congress could do anything it wanted to tribes merely by passing a law, regardless of the tribe’s opposition.

82  The Rights of Indians and Tribes

Did Section 71 repeal the earlier Indian treaties? If not, are these treaties valid today?

Section 71 states that “no obligation of any treaty . . . shall be hereby invalidated or impaired.” The passage of Section 71, then, did not affect the existing Indian treaties. Tribes were promised that their treaties created permanent rights.36 In 1854, for example, Senator Sam Houston described the perpetual nature of treaty land assignments in the following terms: “As long as water flows, or grass grows upon the earth, or the sun rises to show your pathway, or you kindle your camp fires, so long shall you be protected by this Government, and never again be removed from your present habitations.”37 Congress subsequently broke nearly every Indian treaty.38 The 1858 treaty with the Yankton Sioux Tribe of South Dakota, for example, resulted in the United States receiving more than eleven million acres of land from the tribe. In exchange, the Yankton Sioux were assigned a reservation of approximately 430,000 acres, along with a promise that the federal government would protect the tribe’s “quiet and peaceful possession” of that land and that no white person would be permitted to live on the reservation without the tribe’s consent.39 Yet by 1934, the federal government had removed three-​quarters of that territory and had allowed non-​Indians to live on land within the reservation.40 The Shoshone Tribe signed a treaty with the United States in 1868 in which the tribe relinquished millions of acres of land and received, in exchange, a reservation in Wyoming, the Wind River Reservation, for their “absolute and undisturbed use.”41 Just ten years later, however, Congress passed a law giving the Arapaho Tribe, a traditional enemy of the Shoshone, common ownership of the Wind River Reservation, and the U.S. Cavalry forcibly moved the Arapaho to the reservation over strenuous protests by both tribes.42 The Fort Laramie Treaty of 1868 with the Lakota (Sioux) guaranteed that certain lands, including the Black Hills of South Dakota, the tribe’s spiritual center, would forever belong to the Lakota unless “at least three-​fourths of all the adult male Indians” gave their written consent, and that non-​Indians could not trespass on that territory.43 In violation of the treaty, however, the U.S. Cavalry, led by Lieutenant Colonel George Armstrong Custer, allowed prospectors to search for gold in the Black Hills. When gold was discovered in 1874, hundreds of prospectors swarmed to the area. President Ulysses S. Grant directed the cavalry not to enforce the no-​trespass provision.44 Soon afterward, the Lakota were asked to sell the Black Hills, which

Indian Treaties  83 they refused to do. In retaliation, the government began withholding the food and provisions guaranteed in the treaty, a “sell-​or-​starve” strategy.45 The Lakota still declined to sell. In 1877, without having obtained the necessary tribal consent, Congress passed a law that removed the Black Hills from the Lakota.46 Then, in 1889, Congress passed another law that removed most of the land that remained Lakota territory and placed various bands of Lakota on separate reservations, where they live today.47 The Supreme Court subsequently acknowledged that the government’s treatment of the Lakota exhibited a “ripe and rank case of dishonorable dealings.”48 Many tribes were subjected to dishonorable dealings at the hands of the federal government. In 1867, Congress ratified a treaty with the Kiowa, Comanche, and Apache tribes in Kansas in which they were promised that none of their treaty lands would be removed from the reservation without the written consent of three-​fourths of all adult male tribal members. Not long afterward, federal officials sought approval from those tribes to relinquish nearly two million acres of reservation land. The tribes refused to consent. Congress then passed a law removing that land. When the tribes challenged this treaty violation, the Supreme Court, in Lone Wolf v. Hitchcock (1903),49 held that Congress has complete discretion to break (“abrogate”) an Indian treaty. According to the Court, a federal law and a federal treaty have equal stature, and just as Congress may pass a law that amends or repeals an earlier law, Congress may pass a law that amends or repeals an earlier treaty. In reaching this decision, the Court called the Indians “an ignorant and dependent race”50 and held that Congress has the authority to abrogate its treaty promises with them at any time. Although the Supreme Court no longer describes Indians as it did in Lone Wolf, it has consistently upheld the principle, as the Court confirmed in 2020, that Congress has “the authority to break its own promises and treaties.”51 The Lone Wolf decision dishonors the word and the integrity of the United States.52 Indians were told during treaty negotiations that they could trust the United States. Based on those assurances, the tribes fulfilled their end of the bargain. Supreme Court Justice Hugo Black stated in a dissenting opinion, criticizing Indian treaty abrogation: “Great nations, like great men, should keep their word.”53 Although Congress has the power to break Indian treaties, it also has the power to enforce and implement these treaties by passing laws that create the programs required by the treaties. Indeed, now that treaty-​making has ended, the primary way for Congress to fulfill its treaty promises is by passing

84  The Rights of Indians and Tribes this type of legislation. The Supreme Court has recognized that “Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs.”54 As the Court recently confirmed, passage of the 1871 law “did not limit Congress’s power [to enact legislation] pursuant to pre-​existing treaties.”55 An Indian legal scholar, Robert A. Williams, Jr., has explained that American Indians place enormous significance on one’s promise. To Indians, a treaty creates a solemn bond between everyone who signs it, and violating a treaty is unpardonable. Treaties are sacred covenants. The tribes that relinquished their lands in treaties fully expected, and still do expect, the United States to keep its word.56

Are tribes entitled to compensation when their treaty rights are abrogated?

Yes. The Fifth Amendment to the Constitution provides that Congress may not deprive anyone of “private property . . . without just compensation.” Indian treaty rights are a form of private property protected by the Just Compensation Clause, the Supreme Court has held.57 Therefore, when Congress abrogates an Indian treaty, it must adequately compensate a tribe for the value of any rights or property that are lost, and the government must pay interest from the day the land was taken until the compensation is paid.58 Money, however, is usually inadequate “compensation” for the loss of sacred lands, the same as when someone’s house burns down with generations of irreplaceable objects.59 The Lakota were awarded more than $100 million in compensation for the loss of the Black Hills, which had been guaranteed to them in the Fort Laramie Treaty of 1868, but taken from them by a statute in 1877.60 Some tribal members filed a lawsuit asking a federal court to order Congress to keep the money but return the land. The court held that the judicial branch of government (the courts) cannot prevent the legislative branch (Congress) from abrogating a treaty and taking Indian land.61 The Lakota, however, do not want the money; they want their sacred lands. To this day, the compensation sits unclaimed in a federal bank.62

How are Indian treaties interpreted when a dispute arises as to their meaning?

Many disputes have arisen over terms used in Indian treaties, often involving valuable interests in land, water, minerals, and hunting and fishing rights.63 The Supreme Court has developed four rules that govern the interpretation

Indian Treaties  85 of Indian treaties, called the canons of treaty construction. First, treaties must be interpreted as the Indians would have understood them at the time the treaty was signed.64 Second, treaties must be construed liberally in favor of the Indians.65 Third, ambiguities in treaties must be resolved in favor of the Indians.66 Finally, treaties should be interpreted as preserving tribal sovereignty and property rights unless a contrary intent is clearly evident.67 As the Supreme Court recently confirmed, abrogation of a treaty right “may not be lightly inferred and treaty rights are to be construed in favor, not against, tribal rights.”68 When interpreting an Indian treaty, courts must consider “the historical context in which it was written and signed”69 and “give effect to the terms as the Indians themselves would have understood them.”70 These canons of construction are intended to help compensate tribes for the fact that they were at a significant disadvantage in the treaty-​making process. For one thing, treaties were always negotiated and written in English, a language most Indians could not speak, read, or write, and the terms of the treaties were explained to the tribes by agents employed by the government. Any doubtful or ambiguous language in a treaty, therefore, should be interpreted against the United States, as the party that wrote it.71 Also, the United States was always in a superior bargaining position due to its military strength, and if the United States wanted to curtail a right that the tribe had, it was in a position to compel that. It would be unfair, therefore, to interpret a treaty as more harmful than it expressly provides. Finally, as explained in Chapter III, a treaty creates a trust relationship between the tribe and the United States, a relationship that requires the federal government to enhance, not injure, tribal interests, so it would be inappropriate to interpret a treaty as more harmful than its plain language requires. The Indian canons are “rooted in the unique trust relationship between the United States and the Indians.”72 The canons have been extremely important to Indian tribes, resulting in favorable court decisions in numerous cases. In 2019, the Supreme Court held that a treaty guaranteeing the Crow Tribe a right to hunt on “unoccupied” land includes land that today is part of a national forest.73 Likewise, courts have held that (1) a treaty that ensures that tribes may fish “in common with citizens of the territory” conferred not just an equal opportunity to catch fish but reserved to the tribes a right to capture up to 50 percent of the available resource;74 (2) a treaty that created a reservation for a tribe to be held “as Indian lands are held” reserved to the tribe enough water to make the reservation productive, even though the treaty said nothing about water rights;75

86  The Rights of Indians and Tribes (3) an agreement that guaranteed a tribe a right “to pasture their livestock” on certain “public lands” reserved to the tribe a priority right to graze their cattle on public lands over competing users;76 (4) a treaty that granted Indians the right to fish in a lake adjoining the reservation reserved to them the right to moor their boats on a shoreline now owned by a municipality, even though no language in the treaty expressly conferred that right;77 and (5) a treaty that granted a tribe “the right, in common with citizens of the United States, to travel upon all public highways,” conferred a right to haul motor fuel on state roads without payment of state fuel taxes,78 and also conferred a right to haul tribal timber on state roads without payment of state licensing fees, even though the treaty did not expressly confer either of those tax immunities.79 Thus, Indian treaties remain enormously important. Still, as the Supreme Court explained in 2023, in order for the canons to apply, the text of the treaty must support the interpretation that the tribe wants to give it.80 These same canons also apply to the interpretation of federal statutes regarding Indians, which often are the vehicles selected by Congress to fulfill treaty promises.81 As the Supreme Court has stated, “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”82

What standards are used to determine whether Congress abrogated a treaty?

In Lone Wolf v. Hitchcock, the Supreme Court held that Congress may abrogate an Indian treaty at any time, but other decisions of the Court have sought to limit the potential harm of that decision. The Court has recognized that Indian treaty rights “are too fundamental to be easily cast aside.”83 Therefore, a court must not deem a treaty to have been abrogated unless Congress has made its intention to do so “clear and plain.”84 Treaty abrogation “may not be lightly inferred.”85 There are narrow instances in which a law’s “surrounding circumstances and legislative history” may demonstrate a congressional intent to abrogate a treaty—​even if the law contains no express statement of abrogation.86 This is known as the implied abrogation standard.87 But it still must be proven that Congress actually considered the effect the law would have on the treaty and decided to abrogate it.88 These principles were confirmed by the Supreme Court in 2020 in McGirt v. Oklahoma.89 The Muskogee (Creek) Reservation in Oklahoma was created by a treaty with the tribe in 1833 (after which the tribe—​and other tribes

Indian Treaties  87 from the Southeast—​were marched to Oklahoma on the “Trail of Tears”). The issue in McGirt was whether, as the state of Oklahoma was claiming, the Muskogee (Creek) Reservation had been eliminated since then. It was undisputed that Congress had already broken the treaty by passing laws allowing non-​Indians to live on the reservation—​despite treaty language promising never to do that. Indeed, as the Court noted, many more non-​Indians now live on the Muskogee (Creek) Reservation than Indians.90 Nevertheless, the Court said, “once a reservation is established, it retains that status until Congress explicitly indicates otherwise,”91 and Congress had not explicitly changed the boundaries of the Muskogee (Creek) Reservation. The Court held, therefore, that the reservation’s boundaries remained intact. “At the far end of the Trail of Tears was a promise,” the Court reminded Oklahoma.92 When Congress seeks to break a treaty promise, it “must clearly express its intent.”93 Given that no such intent was present here, the boundaries of the reservation remained intact.94 Two years after McGirt, however, the Supreme Court decided Oklahoma v. Castro-​Huerta (2022).95 There, the Court held in a 5–​4 vote that Enabling Acts—​which are laws passed by Congress to admit a territory into the Union as a state—​authorize the admitting state to exercise its criminal jurisdiction throughout the entire state unless doing so would conflict with federal law.96 Applying that standard, the Court held that Oklahoma had the authority to arrest and prosecute a non-​Indian who committed a crime against an Indian on the Miscogee (Creek) Reservation, finding nothing in the treaty with the Miscogee that precluded Oklahoma from exercising that jurisdiction. According to the dissent in Castro-​Huerta, however, the treaty did preclude Oklahoma from extending its laws into Indian country when the victim is an Indian. In support, the dissent cited Supreme Court decisions since 1832 which strongly indicate that treaties creating Indian reservations preclude states from exercising authority within that territory when tribal members are involved, unless Congress has expressly authorized the state to act. According to the dissent, allowing state officials to arrest even a non-​ Indian when the victim is a tribal member interferes with tribal sovereignty, protected by the treaties.97

May a federal agency abrogate an Indian treaty?

No. A federal agency may not abrogate an Indian treaty, or consider a treaty to have been abrogated, without specific congressional authorization.98 For example, although Congress has given the Army Corps of Engineers the

88  The Rights of Indians and Tribes general authority to build dams to prevent rivers from flooding, the Corps may not build a dam on land reserved to an Indian tribe without the express consent of Congress.99

May a state abrogate an Indian treaty?

No. A state may not take actions inconsistent with an Indian treaty; treaties “constitute federal law that pre-​empts conflicting state law.”100

How can treaty rights be enforced?

Indians and tribes are entitled to enforce their treaty rights. A violation of an Indian treaty is a violation of federal law. If a violation of an Indian treaty is occurring, a lawsuit may be filed in federal court to halt the violation.101 (The types of lawsuits that may be filed to enforce treaty rights are discussed in Chapter XVII.) Treaty rights may also be raised as a defense to a state102 or federal103 criminal prosecution, and if the treaty protects the activity for which the defendant is being prosecuted, the charges must be dismissed. For example, if state officials arrest an Indian for hunting or fishing out of season, the charge must be dismissed if that person was exercising a treaty right that authorized that activity.104 Indian treaties belong to everyone in the United States. They are not the tribes’ treaties; they are our treaties with the tribes. Today, some of these treaties, such as those reserving valuable off-​reservation hunting and fishing rights, may seem “unfair” to non-​Indians, just as they seemed unfair to the tribes at the time they were signed. But regardless of how they seemed then or now, the citizens of this country have a legal, moral, and ethical duty to enforce these treaties.105 Indians paid dearly for their treaty rights, and the United States must honor and protect them. Some people, calling these treaties “ancient documents,” argue that they no longer need to be enforced. However, the Declaration of Independence and U.S. Constitution are “ancient,” too. As one court observed in enforcing a century-​old treaty, “the mere passage of time has not eroded, and cannot erode, the rights guaranteed by solemn treaties that both sides pledged on their honor to uphold.”106 We expect other nations to live up to their commitments, and we should live up to ours. In 2018, the U.S. Commission on Civil Rights issued a 314-​page report, “Broken Promises: Continuing Federal Funding Shortfall for Native Americans,”107 which examined whether the federal government has honored its treaty obligations to Indian tribes. The Commission found

Indian Treaties  89 widespread violations of Indian treaty rights. Particularly disappointing to the Commission, which had conducted a similar investigation in 2003, is the fact that in several important areas since then, “the U.S. Government has backslid in its treatment of Native Americans.”108 Federal funding for tribal programs necessary to fulfill treaty obligations, the report found, “remains grossly inadequate to meet the most basic needs the federal government is obligated to provide.”109 The United States can—​and must—​do better.

Notes 1. Herrera v. Wyoming, 139 S. Ct. 1686, 1699 (2019) (quoting Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 675 (1979)). 2. See Robert J. Miller, American Indian Sovereignty Versus the United States (Feb. 19, 2020), at 10, available at https://​ssrn.com/​abstr​act=​3541​054; Robert J. Miller, Consultation or Consent: The United States Duty to Confer with American Indian Governments, 91 N.D. L. Rev. 37, 43–​44 (2015). 3. Treaty with the Delaware, Sept. 17, 1778, 7 Stat. 13. 4. Id. art. VI. See Miller, American Indian Sovereignty, supra note 2, at 13–​14. 5. Worcester v. Georgia, 31 U.S. 515, 519 (1832). 6. U.S. Const. art. VI, § 2. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020). 7. See Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 695–​96 (1979); Worcester, 31 U.S. 515; United States v. Forty-​Three Gallons of Whiskey, 93 U.S. 188 (1876). 8. See Haaland v. Brackeen, 143 S. Ct. 1609, 1628 (2023) (“The Treaty Clause . . . provides a second source of power over Indian affairs”). This subject is addressed in Chapter V, notes 5–​7 and accompanying text. 9. Asakura v. City of Seattle, 265 U.S. 332 (1924). 10. See Beth DeFelice, Indian Treaties: A Bibliography, 107:2 Law Library J. 241, 244 (2015). For general background on the making of Indian treaties, see Frances Paul Prucha, American Indian Treaties: The History of a Political Anomaly 1 (1994). 11. For a comprehensive discussion of Indian treaties, see Nell Jessup Newton et al. eds., Felix Cohen’s Handbook of Federal Indian Law § 1.03[2]‌–1​ .03[9], 30–​71 (2012 ed.). 12. See County of Amador v. United States Dept. of Interior, 872 F.3d 1012, 1015–​16 (9th Cir. 2017); Prucha, supra note 10, at 434; Larisa K. Miller, The Secret Treaties with California’s Indians, Prologue Magazine (Fall/​Winter 2013), available at https://​ www.archi​ves.gov/​files/​publi​cati​ons/​prolo​gue/​2013/​fall-​win​ter/​treat​ies.pdf. 13. See Cohen’s Handbook, supra note 11, at § 1.03[5]‌, 58–​59; Raymond J. DeMallie, American Indian Treaty Making: Motives and Meanings, 3 Am. Indian J. 2 (1977). 14. 25 U.S.C. § 71. This law is discussed later in this chapter.

90  The Rights of Indians and Tribes 15. Miller, Consultation or Consent, supra note 2, at 46. 16. Mary C. Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, Utah L. Rev. 1471, 1497 (1994) (footnotes omitted). See also Robert A. Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–​1800 (1999). This subject is discussed further in Chapter III, notes 9–​19 and accompanying text. 17. See Haaland v. Brackeen, 143 S. Ct. 1609, 1657 (2023) (Gorsuch, Sotomayer, Jackson, JJ., concurring) (noting that more than 150 Indian treaties included education-​related provisions); Herrera v. Wyoming, 139 S. Ct. 1686, 1692–​93 (2019) (guaranteeing land, food, clothing, and certain off-​reservation hunting rights); Cohen’s Handbook, supra note 11, at § 1.02[1]‌, 12–​13; Prucha, supra note 10, at 59. 18. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1815 (2023). 19. See, e.g., Treaty of Neah Bay, 12 Stat. 939, art. IV (1855). See generally Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 661–​69 (1979); Midwater Trawler Co-​Operative v. Department of Commerce, 282 F.3d 710, 714 n.1 (9th Cir. 2002); Elizabeth Ann Kronk Warner, Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatening Resources, 94 Neb. L. Rev. 916, 923–​27 (2016). 20. Treaty of Neah Bay, 12 Stat. 939, art. IV (1855). Although the Makah are the only tribe with an express treaty right to harvest whales, other tribes have been acknowledged to have a similar right. See Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1163–​67 (9th Cir. 2017), cert. denied, 139 S. Ct. 106 (2018). 21. See, e.g., Treaty with the Ottawa, 7 Stat. 491; United States v. Michigan, 424 F.3d 438, 441 (6th Cir. 2005). 22. Treaty with the Yakama, art. III, 12 Stat. 951, 952–​53 (1855). 23. See Washington State Dept. of Licensing v. Cougar Den, 139 S. Ct. 1000 (2019); United States v. Smiskin, 487 F.3d 1260, 1264 (9th Cir. 2007). See also Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. Evers, 46 F. 4th 552, 569–​71 (7th Cir. 2022) (finding a treaty-​conferred immunity from state real estate taxation). 24. See Herrera v. Wyoming, 139 S. Ct. 1686 (2019), discussed in Chapter X, notes 92–​104 and accompanying text. 25. See, e.g., Fort Laramie Treaty with the Great Sioux Nation, art. I, April 29, 1868, 15 Stat. 635. For a discussion of this provision, see Garreaux v. United States, 77 Fed. Cl. 726 (2007); Elk v. United States, 70 Fed. Cl. 405 (2006); James D. Leach, “Bad Men Among the Whites” Claims after Richard v. United States, 43 New Mex. L. Rev. 533 (2013). 26. United States v. Winans, 198 U.S. 371 (1905); Northwestern Band of Shoshone Nation v. Wooten, 83 F.4th 1205, 1212 (9th Cir. 2023). 27. Menominee Tribe v. United States, 391 U.S. 404 (1968); United States v. Dion, 476 U.S. 734, 739 (1986); Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983). 28. See Winans, 198 U.S. 371; United States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698, 713 (9th Cir. 2010). 29. Winans, 198 U.S. at 381–​82; United States v. Washington, 135 F.3d 618 (9th Cir. 1998), amended, 157 F.3d 630, 644 (9th Cir. 1998) (noting that a treaty right to take fish “must

Indian Treaties  91 be read as a reservation of the Indians’ pre-​existing rights”); United States v. Adair, 723 F.2d 1394, 1412–​15 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984). 30. See Robert T. Anderson, Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country, 34 Stan. Envtl. L.J. 195, 200 (2015); Charles F. Wilkinson & John Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows, or Grass Grows upon the Earth”—​How Long a Time Is That?, 63 Cal. L. Rev. 601, 608–​ 10 (1975). This subject is discussed in more detail in Chapter I, notes 50–​57 and accompanying text. 31. See Choctaw Nation v. Oklahoma, 397 U.S. 620, 630–​31 (1970); Wilkinson & Volkman, supra note 30, at 608–​11. 32. See Ottawa Tribe of Oklahoma v. Logan, 577 F.3d 634, 638 (6th Cir. 2009). 33. See State of Kansas ex rel. Kobach v. U.S. Dept. of Interior, 72 F.4th 1107, 1113 (10th Cir. 2023). 34. See Antoine v. Washington, 420 U.S. 194, 202 (1975). 35. See Taylor Ledford, Foundations of Sand: Justice Thomas’s Critique of the Indian Plenary Power Doctrine, 43 Am. Indian L. Rev. 167, 199 (2018) (characterizing Section 71 as a “blatantly unconstitutional law”); David H. Moore & Michalyn Steele, Revitalizing Tribal Sovereignty in Treatymaking, 97 N.Y.U. L. Rev. 137, 140–​44 (2022) (arguing that “the 1871 Act is unconstitutional”); Haaland v. Brackeen, 143 S. Ct. 1609, 1650 (2023) (Gorsuch, Sotomayer, Jackson, JJ., concurring). 36. See Wilkinson & Volkman, supra note 30, at 602. 37. Cong. Globe, 33rd Cong., 1st Sess., App. 202 (1854). 38. See Hagen v. Utah, 510 U.S. 399, 404 (1994). 39. Arts. IV, X, 11 Stat. 744, 747. 40. See Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 998–​1000 (8th Cir. 2010), cert. denied, 564 U.S. 1019 (2011). 41. Treaty with the Eastern Band of Shoshone and Bannock Tribes of 1868, 15 Stat. 673, art. II. 42. See Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937); Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339, 1342–​43 (Fed. Cir. 2004), cert. denied, 544 U.S. 973 (2005). See also United States v. Oregon, 470 F.3d 809 (9th Cir. 2006) (discussing how the United States violated its treaty with the Wenatchi Tribe). 43. 15 Stat. 635 Arts. II and XII, respectively. See Alexandra New Holy, The Heart of Everything That Is: Paha Sapa, Treaties, and Lakota Identity, 23 Okla. City U. L. Rev. 317, 318 (Spring–​Summer 1998). 44. Id. at 325–​26; see also United States v. Sioux Nation, 448 U.S. 371, 378 (1980). 45. Edward Lazarus, Black Hills/​White Justice: The Sioux Nation Versus the United States, 1775 to the Present 53–​54, 90–​91 (1991); see also New Holy, supra note 43, at 325. 46. Act of Feb. 28, 1877, 19 Stat. 254. 47. Act of Mar. 2, 1889, ch. 405, 25 Stat. 888. 48. Sioux Nation v. United States, 448 U.S. at 388. 49. 187 U.S. 553 (1903).

92  The Rights of Indians and Tribes 50. Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) (internal citation omitted). See Oneida Nation v. Village of Hobart, 968 F.3d 664, 674 (7th Cir. 2020). 51. McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020). See also South Dakota v. Bourland, 508 U.S. 679, 687 (1993). 52. See Vine Deloria, Jr., Custer Died for Your Sins 35–​60 (1969); Walter Echo-​ Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided 163 (2010); see also id. at 180 (terming Lone Wolf a “frightening case” that “marks a low point in American jurisprudence.”). 53. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting). 54. Rice v. Cayetano, 528 U.S. 495, 519 (2000). 55. Haaland v. Brackeen, 143 S. Ct. 1609, 1628 (2023). 56. Williams, supra note 16, at 47–​50. 57. Shoshone Tribe v. United States, 299 U.S. 476, 497 (1937); Menominee Tribe v. United States, 391 U.S. 404, 413 (1968). See also Menominee Indian Tribe v. Thompson, 161 F.3d 449, 457 (7th Cir. 1998), cert. denied, 526 U.S. 1066 (1999). 58. United States v. Sioux Nation, 448 U.S. 371, 413–​14 (1980); United States v. Shoshone Tribe, 304 U.S. 111 (1938); Menominee Tribe v. United States, 391 U.S. 404 (1968). 59. See Carla F. Fredericks & Jesse D. Heibel, Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause, 89 U. Colo. L. Rev. 477, 529–​32 (2018) (arguing for greater protection of Indian treaty rights). 60. United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). 61. Sioux Tribe of Indians v. United States, 862 F.2d 275 (8th Cir.), cert. denied, 490 U.S. 1075 (1989). 62. See New Holy, supra note 43, at 339–​52. 63. See cases cited supra note 57 (land); Menominee Indian Tribe v. Thompson, 161 F.3d 449, 457 (7th Cir. 1998), cert. denied, 526 U.S. 1066 (1999) (hunting and fishing rights); Winters v. United States, 207 U.S. 564 (1908) (water rights). 64. Herrera v. Wyoming, 139 S. Ct. 1686, 1699, 1701, 1702 (2019); Jones v. Meehan, 175 U.S. 1, 10 (1899); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970). 65. Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 197 (2012); Tulee v. Washington, 315 U.S. 681, 684–​85 (1942); Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 690 (1979); In re CSRBA Case No. 49576, 448 P.3d 322, 340–​41 (Idaho 2019). 66. Herrera, 139 S. Ct. at 1699; Bryan v. Itasca County, Minnesota, 426 U.S. 373, 392 (1976); Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034, 1043 (9th Cir. 2023). This canon does not apply, however, when no ambiguity exists. See Penobscot Nation v. Frey, 3 F.4th 484, 503 (1st Cir. 2021) (en banc), cert. denied, 142 S. Ct. 1669 (2022). 67. See Herrera, 139 S. Ct. at 1696, 1698; Cohen’s Handbook, supra note 11, at § 2.02[1]‌, 113–​14. See generally Alex Tallchief Skibine, Textualism and the Indian Canons of Statutory Construction (2021), available at https://​dc.law.utah.edu/​cgi/​view​cont​ent. cgi?arti​cle=​1292&cont​ext=​scho​lars​hip.

Indian Treaties  93 68. McGirt v. Oklahoma, 140 S. Ct. 2452, 2470 (2020). See also Herrera, 139 S. Ct. at 1699, 1701, 1702; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 194 n.5, 196 (1999); United States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698, 708 (9th Cir. 2010); Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514, 523–​24 (6th Cir.), cert. denied, 549 U.S. 1053 (2006). 69. Washington State Dept. of Licensing v. Cougar Den, 139 S. Ct. 1000, 1012 (2019). 70. Mille Lacs, 526 U.S. at 196. See also Metlakatla Indian Community, 58 F.4th at 1042. These canons are not unique to Indian law but reflect accepted principles of international law. See Seth Davis, Eric Biber, & Elena Kempf, Persisting Sovereignties, 170 U. Penn. L. Rev. 549, 560 (2022). 71. See Mille Lacs, 526 U.S. at 196; United States v. Washington, 853 F.3d. 946, 963 (9th Cir. 2017), cert. denied, 138 S. Ct. 735 (2018). 72. Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985). See also San Carlos Apache Tribe v. Becerra, 53 F.4th 1236, 1240 (9th Cir. 2022). 73. Herrera v. Wyoming, 139 S. Ct. 1686, 1701 (2019). 74. See Passenger Fishing Vessel Ass’n, 443 U.S. 658. Indian fishing rights are the subject of Chapter X. 75. Winters v. United States, 207 U.S. 564 (1908). See also United States v. Adair, 723 F.2d 1394, 1412–​15 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984). 76. Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983). 77. Grand Traverse Band of Ottawa & Chippewa Indians v. Director, Michigan Department of Natural Resources, 141 F.3d 635 (6th Cir.), cert. denied, 525 U.S. 1040 (1998). 78. Washington State Dept. of Licensing v. Cougar Den, 139 S. Ct. 1000, 1012 (2019). 79. Cree v. Flores, 157 F.3d 762 (9th Cir. 1998). See also United States v. Smiskin, 487 F.3d 1260, 1264 (9th Cir. 2007). 80. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1813 (2023). 81. See Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985); Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985); San Carlos Apache Tribe v. Becerra, 53 F.4th 1236, 1244–​45 (9th Cir. 2022); Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461–​ 62 (10th Cir. 1997). 82. Blackfeet Tribe, 471 U.S. at 766. See also Connecticut v. U.S. Department of the Interior, 228 F.3d 82, 92 (2d Cir. 2000), cert. denied, 532 U.S. 1007 (2001). 83. United States v. Dion, 476 U.S. 734, 739 (1986). 84. United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 353 (1941). See also Herrera v. Wyoming, 139 S. Ct. 1686, 1696, 1698 (2019); In re CSRBA Case No. 49576, 448 P.3d 322, 341 (Idaho 2019). 85. McGirt v. Oklahoma, 140 S. Ct. 2452, 2470 (2020). See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999); Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 690 (1979); Smiskin, 487 F.3d at 1264. 86. Mattz v. Arnett, 412 U.S. 481, 505 (1973). 87. See South Dakota v. Bourland, 508 U.S. 679, 687 (1993); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). But see Oregon Department of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 754 (1985).

94  The Rights of Indians and Tribes 88. Herrera v. Wyoming, 139 S. Ct. at 1698; Mille Lacs Band, 526 U.S. at 202–​03; Dion, 476 U.S. at 738–​40; Bourland, 508 U.S. at 693. As discussed in Oneida Nation v. Village of Hobart, 968 F.3d 664, 674 (7th Cir. 2020), the Supreme Court’s 2020 decision in McGirt narrows the application of the implied abrogation standard. 89. 140 S. Ct. 2452 (2020). 90. McGirt, 140 S. Ct. at 2462. 91. Id. at 2469 (internal citation omitted). 92. Id. at 2459. 93. Id. at 2463. See also Village of Hobart, 968 F.3d 664 (applying McGirt in finding that the Oneida Reservation in Wisconsin had not been diminished). 94. As noted in Chapter XIV, Section C, courts in Oklahoma have since applied McGirt to other reservations and held that they, too, had not been diminished or eliminated. 95. 142 S. Ct. 2486 (2022). 96. Oklahoma v. Castro-​Huerta, 142 S. Ct. 2486, 2503 (2022). 97. Id. at 2525–​26 (Gorsuch, J., dissenting). Castro-​Huerta is discussed in more detail in Chapter VII, notes 162–​172. 98. Menominee Tribe v. United States, 391 U.S. 404 (1968); Village of Hobart, 968 F.3d at 670. 99. United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976). See also United States v. Eberhardt, 789 F.2d 1354, 1361 (9th Cir. 1986); Phillips Petroleum Co. v. U.S. Environmental Protection Agency, 803 F.2d 545, 556 (10th Cir. 1986). 100. Washington State Dept. of Licensing v. Cougar Den, 139 S. Ct. 1000, 1013 (2019); Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 675 (1979). See also McGirt, 140 S. Ct. at 2462. 101. See Puyallup Tribe, Inc. v. Dept. of Game of State of Washington, 433 U.S. 165 (1977); Winnebago Tribe, 542 F.2d 1002. 102. See Herrera v. Wyoming, 139 S. Ct. 1686, 1693–​94 (2019); Mattz v. Arnett, 412 U.S. 481, 505 (1973); Cree v. Flores, 157 F.3d 762 (9th Cir. 1998); State v. Jim, 725 P.2d 372 (Ore. 1986). 103. United States v. Cutler, 37 F. Supp. 724 (D. Idaho 1941); United States v. White, 508 F.2d 453 (8th Cir. 1974). See also United States v. Dion, 476 U.S. 734, 739 (1986). 104. Herrera, 139 S. Ct. 1686; Antoine v. Washington, 420 U.S. 194, 202 (1975); Puyallup Tribe, 433 U.S. 165; State v. Buchanan, 978 P.2d 1070 (Wash. 1999). 105. See Williams, supra note 16, at 47–​50; Kronk Warner, supra note 19, at 934–​35; Wilkinson & Volkman, supra note 30, at 659. 106. United States v. Washington, 384 F. Supp. 312, 406 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). See also McGirt v. Oklahoma, 140 S. Ct. 2452, 2482 (2020). 107. U.S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans, available at https://​www.usccr.gov/​pubs/​2018/​12-​20-​ Bro​ken-​Promi​ses.pdf. 108. Id. at 3–​4. 109. Id. at 4.

V Federal Power over Indian Affairs The Indigenous nations of North America surely would not have been so welcoming and neighborly to the Europeans had they known that, within several generations, the successors of those early settlers would claim to possess the absolute right to dominate all Indian tribes in the country and would place them on reservations. For more than a century now, the United States has asserted that it has “plenary authority”—​full and complete power—​over Indian tribes, their members, and their property.1 In 2011, the Supreme Court summarized this position as follows: “The United States retains plenary authority to divest tribes of any attributes of sovereignty. Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government.”2 The Court reiterated that view in 2021, stating: “In all cases, tribal authority remains subject to the plenary authority of Congress.”3 Critics of this so-​called “plenary power doctrine” assert that the United States has no right to regulate tribal governments in any respect.4

A.  THE SOURCE AND SCOPE OF FEDERAL POWER OVER INDIAN TRIBES What is the source of the federal government’s power over Indian tribes?

Over the years, the Supreme Court has relied on four different arguments to rationalize the plenary power doctrine. The reality, however, is that the United States exercises control over Indian tribes because it has the military strength to do so. If the Indian tribes were militarily stronger than the United States, tribes would be as independent today as they were when Europeans first arrived on these shores. Two of the four arguments the federal government has used to justify its plenary power over Indians are based on provisions in the U.S. Constitution. Article I, Section 8, Clause 3 (the Commerce Clause) provides that “Congress shall have the Power . . . to regulate Commerce with foreign Nations, and among The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0005

96  The Rights of Indians and Tribes the several States, and with the Indian Tribes.” Article II, Section 2, Clause 2 (the Treaty Clause) gives the President and the Senate the power to make treaties, including treaties with Indian tribes.5 The Supreme Court first held in 1832,6 and confirmed as recently as 2023, that the Commerce and Treaty Clauses are two sources of Congress’s plenary authority over Indian affairs.7 The third argument the Court has relied on is the principle developed in international law by the conquering nations of Europe that “discovery and conquest [gives] the conquerors sovereignty over and ownership of the lands thus obtained.”8 According to the Supreme Court, the “discovery” of North America by the Europeans and the “conquest” of its inhabitants entitles the United States (as the Europeans’ successor) to enforce its laws over all persons and property within the United States.9 As the nation in control of this territory, the United States may exercise all powers “necessarily inherent” in such a dominant position.10 The doctrine of trust responsibility has been cited by the Supreme Court as a fourth source of federal power over Indians. Many treaties between the United States and Indian tribes contain a guarantee that the federal government will “protect” the tribe. This promise, the Court has held, gives the federal government both the power and the duty to regulate Indians for their protection.11 Each of these justifications for exercising plenary authority over Indian tribes can be—​and has been—​refuted. First, nothing in the language of the Commerce Clause confers any authority on the federal government over Indian tribes, and it was not intended to. The Commerce Clause gives Congress the right to regulate commerce “with foreign Nations” and “with the Indian tribes”—​not exercise power over them or control them. After all, the Constitution was written in 1787, shortly after the United States had won the Revolutionary War against Great Britain. Indian tribes were powerful and independent in 1787. It is unlikely that anyone believed in 1787 that, simply by having defeated the British, the United States had somehow acquired authority to regulate the independent Indigenous nations, and nothing in the Commerce Clause suggests that the Framers held that view.12 Rather, the Commerce Clause was intended to ensure that Congress—​and not the individual states—​had supreme authority to regulate trade with, and develop policy regarding, the Indian tribes.13 The Clause, in other words, was designed to limit what the states could do, not authorize Congress to limit what the tribes could do. Neither the language of the Commerce Clause nor its legislative history supports the plenary power doctrine.

Federal Power over Indian Affairs  97 Similarly, nothing in the language of the Treaty Clause confers any authority on the federal government over Indian tribes. The Treaty Clause merely explains how treaties can be created on behalf of the United States: a treaty must be signed by the President and ratified by the Senate. The United States has signed scores of treaties with foreign nations. Not once has the United States claimed that simply because the United States signed a treaty with a country, the United States acquired plenary power over that country. There is no reason the Treaty Clause should have a different application in regard to Indian tribes. Likewise, it is absurd to claim that Europeans “discovered” North America, where hundreds of independent nations were already thriving. The European nations that first arrived here acquired no greater right to control North America than the Cherokee Nation would have acquired the right to control Europe had they sailed to Spain in 1492 and “discovered” that continent. Lastly, it is a complete misconstruction of the trust doctrine to say that it supports federal power over Indians. As discussed in Chapter III, the trust doctrine requires the federal government to fulfill its treaty promises—​ promises that were made to tribes in exchange for tribal land. The trust doctrine requires that the federal government uphold its end of the bargain; it is not a source of power over Indian tribes. In short, although the plenary power doctrine seems firmly embedded in federal Indian law, it stands on a precarious foundation. As legal scholar Walter Echo-​Hawk has stated, “The plenary-​power doctrine was seemingly plucked out of thin air by the Supreme Court.”14 In the Court’s most recent case discussing the doctrine, Haaland v. Brackeen (2023), three Justices wrote in a concurring opinion that the Constitution was designed to preserve tribal sovereignty, not limit it: “Under our Constitution, Tribes remain independent sovereigns responsible for governing their own affairs.”15 The prevailing Justices in Brackeen, however, reaffirmed the notion that the federal government may exercise plenary power over Indian tribes, even though, as they acknowledged, there is nothing in the Constitution that expressly confers that power on Congress.

What is the scope of federal power over Indians?

Although the Supreme Court has consistently stated that Congress exercises plenary authority over Indian tribes, it has also acknowledged, as it did in Brackeen, that this power “is not absolute.”16 As with every other law passed by Congress, laws enacted to regulate Indian tribes must not violate the

98  The Rights of Indians and Tribes Constitution. Two constitutional provisions of importance in this context are the Due Process Clause and the Just Compensation Clause, both of which are contained in the Fifth Amendment.17 The Due Process Clause provides that no person may be deprived of life, liberty, or property without due process of law. This clause prohibits Congress from passing any law that is arbitrary, unreasonable, or invidiously discriminatory, including laws that impermissibly discriminate on the basis of race.18 As yet, the Supreme Court has not invalidated any of the hundreds of laws Congress has passed regulating Indians or Indian tribes on the grounds that it is arbitrary, unreasonable, or racially discriminatory. The Just Compensation Clause prohibits the federal government from taking private property without paying fair and adequate compensation. Rights and interests given Indians in a treaty are a form of private property protected by the Just Compensation Clause.19 Indians and tribes have made broad use of this clause. Courts have required that fair compensation be paid for the loss of Indian hunting and fishing rights,20 the taking of land previously recognized by the federal government as belonging to an Indian21 or a tribe,22 and the loss of a tribe’s immunity from state taxation.23 It is important to note that the Just Compensation Clause does not prevent Congress from taking the property; it only requires that Congress pay fair compensation for any private property that Congress decides to take. Another constitutional provision that limits the power of Congress in Indian affairs is the Eleventh Amendment,24 which protects a state from being sued without its consent. In Seminole Tribe of Florida v. Florida (1996),25 the Supreme Court invalidated a portion of the Indian Gaming Regulatory Act of 1988 (IGRA). The portion of IGRA that was invalidated sought to authorize Indian tribes to file suit in certain circumstances against any state that refused to negotiate a casino gaming contract in good faith with the tribe. This portion of IGRA, the Court held, violated the Eleventh Amendment.26 Another limitation on Congress is the Tenth Amendment, which provides that those powers not given to Congress by the Constitution “are reserved to the states respectively, or to the people.” In Brackeen, opponents of the Indian Child Welfare Act (ICWA) alleged that certain portions of the ICWA violated the Tenth Amendment, but the Supreme Court rejected that claim.27 In short, congressional authority over Indian tribes is nearly absolute.28 Until fairly recently, as discussed in Chapter I, Congress used its plenary authority far more often to hurt Indian tribes than to help them. “The plenary

Federal Power over Indian Affairs  99 power doctrine has led to many abuses of Native peoples that mar the history of federal Indian law,” including the taking of tribal land, the placement of tribal children in boarding schools, and the termination of Indian tribes.29 As a result of the plenary power doctrine, tribal sovereignty rests in the hands of Congress, and tribes must rely on the integrity of Congress to fulfill the promises the federal government made to them years ago in treaties and agreements in exchange for tribal land and the end of hostilities.30

Given that the U.S. Constitution generally prohibits race discrimination, why is Congress allowed to treat Indians differently than non-​Indians?

Laws passed by Congress as early as 1790 treated Indian tribes and their property differently than non-​Indians and their property.31 Since then, Congress has passed so many laws applicable only to Indians that it created a separate volume of the U.S. Code—​Title 25 (entitled “Indians”)—​in which to place them. Some of these laws are beneficial to Indians, while others are detrimental. Federal laws, for example, provide Indians with certain housing, financial, medical, and educational benefits that non-​Indians are not eligible to receive, while other laws place unique restrictions on Indians and tribes regarding the sale and use of their land. Congress has also enacted criminal laws that apply only to reservation Indians. Yet the Due Process Clause prohibits Congress from invidiously discriminating on the basis of race. Why, then, is Congress allowed to differentiate in this fashion? The answer, according to the Supreme Court, lies in the fact that these laws are not viewed as race legislation. The Commerce Clause of the Constitution expressly authorizes Congress to “regulate Commerce with . . . the Indian tribes”; thus, there is a constitutional basis for enacting laws unique to Indians.32 It is “very hard to argue,” one commentator recently stated, that treating Indians differently than non-​Indians “is unconstitutional when it is mandated by the Constitution itself.”33 Moreover, there are important historical and political reasons for treating Indians differently than non-​Indians. The United States entered into treaties with the Indians not because they were a different race but because of their political status as the original inhabitants of this territory.34 These treaties, the Supreme Court has explained, “confer enforceable special benefits on signatory tribes” based on their “recognized status” as a unique political group.35 Additionally, the federal government has a trust responsibility to assist Indians as a result of treaty commitments.36

100  The Rights of Indians and Tribes As the Supreme Court has stated, “classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the federal government’s relations with Indians.”37 The leading case discussing this principle is Morton v. Mancari, decided by the Supreme Court in 1974.38 At issue in Mancari was a 1934 law, the Indian Preference Act,39 that requires that members of federally recognized Indian tribes receive a hiring preference for job vacancies within the Bureau of Indian Affairs (BIA). Several non-​Indians denied employment at the BIA filed suit contending that the Preference Act constituted impermissible race discrimination in violation of the Due Process Clause. The first issue the Court needed to resolve was whether the Preference Act was race legislation; if it was, the government would have to show a “compelling interest” to justify it—​the rigorous test for all laws that discriminate on the basis of race—​rather than merely a “rational basis” for the law. The “rational basis” standard applies to all laws that do not involve a “suspect classification” (such as race or religion) and is a less stringent standard than “compelling interest.” The Court determined in a unanimous decision that the Preference Act was not race legislation. For one thing, the Court said, the Constitution gives Congress the power to treat Indians “as a separate people” based on their political status.40 Moreover, the Court noted, “The preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. In this sense, the preference is political rather than racial in nature.”41 After finding that the rational basis test applied, the Court held that giving members of federally recognized tribes a preference for BIA jobs was a rational, and therefore permissible, exercise of Congress’s plenary power over Indians.42 It was rational, the Court said, to give Indians greater control within the agency that administers most of the federal government’s Indian programs.43 The Court further noted that Congress had enacted numerous laws “designed to help only Indians,” and if the Preference Act was unconstitutional, those other laws might be, as well. Invalidating all of them would jeopardize “the solemn commitment of the Government toward the Indians.”44

Federal Power over Indian Affairs  101 Under Mancari, then, the first inquiry is whether the statute in question is race legislation; if it is not, then the statute is a valid exercise of congressional authority if it is “tied rationally to the fulfillment of Congress’ unique obligation toward the Indians.”45 Each federal Indian law must be examined in its historical, political, and cultural context to determine if it constitutes race legislation, regardless of whether it imposes advantages or disadvantages on Indian tribes.46 Thus far, the Supreme Court has not found a single federal Indian law to constitute race legislation. Although many non-​Indians consider all laws that provide benefits to Indian tribes as race legislation, the Supreme Court could not adopt that view without reversing its decision in Mancari, which is not likely to happen anytime soon. In 2023, in Brackeen, the Supreme Court described Mancari as setting forth a “bedrock principle,” which recognizes “that Indian status is a political rather than racial classification.”47 Indeed, viewing Indian tribes predominantly as political governments rather than racial groups is how the Europeans, and later the United States, regarded the Indigenous peoples from the outset.48

Does Congress have the authority to discriminate among groups of Indians?

Yes. Laws that discriminate among groups of Indians are reviewed by courts under the same rational basis test as laws that discriminate between Indians and non-​Indians. Congress can create programs in which only some Indians are eligible to participate, such as programs that condition eligibility on possessing a certain degree of tribal blood, if there is a rational basis for that difference.49

B.  IMPLEMENTATION OF FEDERAL POWER The remainder of this chapter examines the many ways in which Congress has implemented its plenary authority through (1) administration of Indian affairs, (2) regulation of tribal governments, (3) termination, (4) regulation of tribal membership, (5) regulation of Indian land, (6) regulation of tribal assets, (7) regulation of individual property, (8) regulation of trade and liquor, and (9) criminal jurisdiction.

102  The Rights of Indians and Tribes

1.  Administration of Indian Affairs What powers has Congress delegated to federal agencies regarding the implementation of Indian policy?

The Constitution divides the federal government into three separate branches: legislative, executive, and judicial. The legislative branch (Congress) makes the law. The executive branch, whose chief officer is the President, administers the law. The judicial branch (the courts) interprets the law. Congress is the only branch of government that has the authority to formulate the federal government’s Indian policies. Congress decides, for instance, whether to support Indian tribes or to terminate them. The executive branch is the only branch of government that has the authority to implement the government’s federal Indian policies. Congress decides which federal agency will implement each particular policy. That agency must then faithfully perform its duties; it may not act beyond the powers conferred by Congress or ignore the duties delegated to it.50 Federal agencies have enormous control over many facets of tribal life because they implement federal policies on a daily basis. Federal agencies within the executive branch are staffed with people under the President’s command. The first agency that Congress created to administer Indian policy, the Office of Indian Affairs, was established in 1824 and placed within the now-​ defunct War Department. In 1849, Congress transferred this agency to the newly created Department of the Interior, where it remains today, although in 1947 the Office of Indian Affairs was renamed the Bureau of Indian Affairs (BIA). The highest official in the Department of the Interior (DOI) is the Secretary of the Interior, and next in line is the Assistant Secretary of the Interior,51 who oversees two agencies: the BIA and the Bureau of Indian Education (BIE). (Prior to 1977, the Assistant Secretary of Indian Affairs was called the Commissioner of Indian Affairs.) Both the Secretary and the Assistant Secretary are appointed by the President but must be confirmed by the Senate. The BIA employs nearly eight thousand people, more than 85 percent of whom are members of federally recognized tribes (as a result of the Indian Preference Act). The BIA administers most of the federal government’s Indian programs. At least three other departments have tribal programs. The Department of Health and Human Services, the Department of Housing, and the

Federal Power over Indian Affairs  103 Department of Agriculture administer, respectively, health care, housing, and agricultural programs for Indians.

What powers have been delegated by Congress to the President?

A law passed by Congress in 1834 gives the President the general power to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs.”52 Currently, however, the President has been assigned no specific powers regarding Indians. Instead, Congress has delegated enormous authority to the Secretary of the Interior, who is appointed by the President. Between 1855 and 1919, it was a common practice for Presidents to create Indian reservations by issuing an executive order. Although these “executive order” reservations were created without congressional approval, Congress later confirmed more than 90 percent of them.53 In 1919, Congress passed a law prohibiting the President from creating any additional reservations.54 As part of the General Allotment Act of 1887 (GAA), Congress authorized the President to assign parcels of tribal land to tribal members and to sell the remaining (“surplus”) tribal land to non-​Indians.55 Congress eliminated that power in 1934 when it repealed the GAA.56 A President, of course, can exert tremendous influence in Indian affairs, even though Congress currently has assigned no specific powers to the President. As discussed in Chapter I, several Presidents have used their office to greatly assist Indian tribes, including Franklin Roosevelt, Richard Nixon, William Clinton, Barack Obama, and Joseph Biden (who appointed as his Secretary of the Interior the first Native American to hold that post, Deb Haaland).

Can Congress delegate powers to Indian tribes?

Yes, and Congress has done so. The most important law delegating authority to Indian tribes is the Indian Self-​Determination and Education Assistance Act of 1975 (ISDEAA),57 as supplemented in 1994 by the Tribal Self-​Governance Program.58 The ISDEAA authorizes Indian tribes to submit a proposed contract to a federal agency, including the DOI and the Department of Health and Human Services, requesting permission to operate and administer a program or service created by Congress for Indian tribes currently administered by that agency.59 (These are often called “638” contracts because the statute that created ISDEAA was Public Law 93-​638.)

104  The Rights of Indians and Tribes The federal agency to which a 638 application is submitted must approve the proposed contract unless the tribe’s plan fails to meet ISDEAA standards. The tribe may appeal any rejection to a federal court.60 If the contract is approved, the agency must transfer to the tribe all funds given by Congress to the agency for the operation of that program, including administrative expenses (“contract support costs”).61 The tribe then administers the program subject to the agency’s general oversight.62 The purpose of ISDEAA is to foster tribal self-​government and self-​ reliance—​and reduce federal control and bureaucracy—​by permitting tribes to administer federal programs on the reservation, thereby maximizing tribal participation in the planning and operation of these programs.63 As the Supreme Court stated in 2021, the ISDEAA “decentralized the provision of federal Indian benefits away from the Federal Government and toward Native American and Alaska Native organizations.”64 The ISDEAA has been a huge success. As a result of the Act, more than $2 billion of federal funds are now funneled by federal agencies each year to Indian tribes for the operation of federally funded programs. Most tribes have at least one 638 contract and many have several. Tribes manage nearly half the budget of the Indian Health Service and most of the BIA’s budget, operating schools, hospitals and health clinics, welfare programs, water treatment facilities, and law enforcement programs formerly run by federal agencies.65 This has resulted in a substantial increase in tribal employment and a substantial decrease in federal employment. The BIA had fifteen thousand employees in 1983, and has fewer than eight thousand today.66

Have federal officials done a good job in their administration of Indian affairs?

In December 2018, the U.S. Commission on Civil Rights issued a 314-​page report entitled “Broken Promises: Continuing Federal Funding Shortfall for Native Americans.” The Commission found, among other things, that ten times as many reservation Indian homes lack electricity than the national average; only 40 percent of Native households have a computer and access to broadband, as compared with 70 percent nationally; most reservation roads are unpaved and unsafe; an estimated $1.5 trillion worth of energy resources, including solar, wind, and fossil fuels, are undeveloped in Indian country due in large part to mismanagement by federal agencies; and nearly 40 percent of tribal members living on the Navajo Nation lack running water in their homes. Deficiencies such as these, the report noted, make reservation

Federal Power over Indian Affairs  105 life unhealthy and difficult, and discourage businesses from moving to or investing in Indian country.67 The General Accounting Office (GAO) is an independent federal agency whose job it is to inform Congress whether federal monies are being wasted. The GAO reported in recent years that the BIA had mismanaged Indian energy resources, stifling economic development of those resources;68 mismanaged numerous federal programs designed to assist Indian tribes;69 and hindered tribal administration of federal programs under ISDEAA by delaying the distribution of funds to tribes, by failing to share important information needed by tribes to operate the programs successfully, and through other mismanagement.70 There are many dedicated federal officials helping Indian tribes every day, but systemic problems persist, often the result of inadequate funding from Congress. In 2021, as part of the $1.9 trillion Relief Bill, Congress appropriated $31 billion for tribal programs. This money is helping to cure many (but certainly not all) of these deficiencies.

2.  Regulation of Tribal Governments Another way in which Congress exercises its plenary authority is by placing limits on tribal powers. For the most part, Congress has not interfered with the ability of tribes to govern their internal matters. The Indian Civil Rights Act of 1968 (ICRA)71 is the primary exception. The ICRA confers certain rights and protections on all persons under tribal authority, such as freedom of speech, freedom of the press, protection against unreasonable search and seizure, the right to a jury trial in criminal cases, and the right to due process of law. In addition, the ICRA limits the punishments that tribal courts may impose on persons convicted of a crime.72 Those tribes that organized under the Indian Reorganization Act of 1934 (IRA),73 as many tribes have done, were required by the Secretary of the Interior to include a provision in their constitutions stating that the Secretary had to approve all tribal laws and constitutional amendments, even though that limitation on tribal power is not contained in the IRA itself.74 Amendments to the constitution could only occur through a formal election (“secretarial election”) consistent with rules issued by the Secretary.75 Non-​IRA tribes could amend their constitutions at any time. In 2015, the Secretary issued a regulation authorizing IRA tribes to remove from their constitutions the need for secretarial review.76

106  The Rights of Indians and Tribes During the past fifty years, Congress has made a concerted effort to bolster tribal sovereignty and reduce federal oversight of tribal operations. Even critics of past actions by Congress now have “some reason to be optimistic that the federal government is committed to reestablishing a true government-​ to-​government relationship with Indian nations.”77 The ISDEAA is a perfect example. Another is the Indian Tribal Economic Development and Contract Encouragement Act of 2000,78 which amends Title 25 of the U.S. Code, Section 81, a law first passed in 1872. Under the 1872 law, federal officials had to approve every decision made by tribal officials “relative to Indian lands,” such as every construction contract relating to tribal land. In 2000, Congress narrowed the application of Section 81 to only those tribal decisions that would “encumber” tribal land: that is, decisions that would give an outside party a legal interest in the land itself (such as a mortgage). This amendment demonstrates, one court recently noted, that “Congress has determined that it is in the interest of Indian tribes to be free from bureaucratic oversight of their economic endeavors in all but a narrow category of circumstances.”79 In addition to these supportive actions by Congress, various Presidents, as discussed in Chapter I, have required federal agencies to operate within a government-​to-​government relationship with federally recognized Indian tribes and to consult with tribes on all agency activities that may affect them. Thus, both the legislative and executive branches of government have taken significant steps in recent decades to support tribal self-​government and autonomy.

What role may the federal government play in choosing tribal leaders?

On occasion, disputes arise within an Indian tribe as to which person has been validly selected by tribal members as the leader of the tribe. When this occurs, the Secretary of the Interior has been permitted to select a leader on a temporary basis so that the United States and the tribe can engage in government-​to-​government relations until the tribe can resolve the conflict consistent with tribal law. Federal courts have upheld these temporary interventions, holding that federal law, including the federal government’s trust responsibility, charges the Secretary “with supervising [tribal] elections and ensuring their fundamental integrity.”80 The Secretary has a duty to ensure “that the will of tribal members is not thwarted by rogue leaders.”81 The typical remedy in these circumstances, unless tribal law requires a different process, is for the tribe to hold a new election consistent with tribal law.82

Federal Power over Indian Affairs  107 One federal court has held that tribal members who conspire to deprive other members of their right to vote in a tribal election or who attempt to rig its outcome may be prosecuted under federal anti-​conspiracy laws.83 Few things are as important to a tribe as choosing its form of government and the leaders of that government. Federal officials appropriately leave these decisions to the tribe unless federal interests are in jeopardy.84 The federal government “maintains a ‘hands-​off ’ approach to avoid unnecessary intrusion in tribal self-​governance.”85 In those circumstances where the Secretary must intervene, an effort is made to avoid unnecessary interference with a tribe’s right of self-​government.86

3.  Termination Another way in which Congress has exerted its plenary authority is by terminating tribal governments. Congress can do nothing worse to an Indian tribe. Many people perceive termination as equivalent to genocide.87

What is termination?

Termination is the process by which Congress terminates the federal government’s trust relationship with an Indian tribe, thereby disqualifying the tribe from the many services that Congress makes available only to federally recognized tribes. At the same time, Congress eliminates the tribe’s reservation and forbids the tribe from exercising powers of self-​government. Between 1953 and 1966, Congress terminated 109 tribes, including tribes in California, Michigan, Oklahoma, Oregon, and Wisconsin. In each instance, Congress passed a law directing the Secretary of the Interior to distribute all the tribe’s property either to tribal members or to a tribal corporation if the tribe chose to incorporate itself under state law. Once the tribe’s property was distributed, the Secretary eliminated the reservation and placed a notice in the Federal Register that the tribe was terminated. At that point, the trust relationship ended, and tribal members became subject to state law.88

Why did the federal government terminate Indian tribes?

The government claimed that termination was in the best interests of the Indians. Termination, government officials said, would help Indians integrate into the general society and, by doing so, reduce Indian poverty.89

108  The Rights of Indians and Tribes Many Indians believe that termination was not intended to help Indian tribes but, rather, to help non-​Indians obtain Indian land and save money for the federal government by eliminating the government’s treaty promises and trust responsibilities.90

Why did Congress halt its termination policy?

Congress last terminated a tribe in 1966. Since then, Congress has restored to federal status nearly all the tribes it terminated.91 In 1970, President Nixon explained why the federal government should not terminate Indian tribes. In its treaties with tribes, Nixon said, the government “has made specific commitments to the Indian people [in exchange for] vast tracts of land.” These commitments create a “special relationship between Indians and the Federal Government” and “carry immense moral and legal force.” Terminating that relationship, Nixon stated, “would be no more appropriate than to terminate the citizenship rights of any other American.”92 Nixon, who was Vice President in 1953 when President Eisenhower commenced the termination process, repudiated termination when he became President. Many non-​Indians continue to advocate for the termination of Indian tribes. To prevent them from succeeding, Indian tribes and their supporters must continue to remind Congress and the public why this nation should honor its treaty commitments and foster tribal sovereignty and to allow tribes—​not federal officials—​to decide when government assistance is no longer needed.

Have the courts established any protective rules regarding termination?

Yes. Due to the harm that termination causes, courts have created protective rules governing its application. One is that a court must refuse to recognize that a termination has occurred in the absence of “a clear and unequivocal” law passed by Congress terminating the tribe.93 Another rule is that vested tribal rights survive termination unless Congress expressly extinguishes them.94 Moreover, termination must comply with the Just Compensation Clause of the U.S. Constitution: Congress must provide monetary compensation for any land or other vested interests that are lost through termination.95 And if federal officials fail to comply with all of the requirements of the relevant termination law, a federal court may “unterminate” the tribe.96

Federal Power over Indian Affairs  109

4.  Regulation of Tribal Membership Who controls tribal membership: the tribe or the federal government?

As with all other aspects of tribal affairs, Congress has the power to limit tribes in their membership (“enrollment”) decisions, but Congress rarely interferes in membership determinations. Federal agencies are not permitted to interfere with tribal enrollment decisions unless expressly authorized by Congress or the tribe has consented to that interference.97 Normally, each tribe decides for itself who is eligible for enrollment and which tribal benefits that person will receive. The federal government, however, determines which Indians are eligible for federal programs. The requirements Congress sets for participation in a federal program may be different from the tribe’s own membership requirements, such as a higher (or lower) blood quantum.98 In recent years, several tribes that own lucrative gaming casinos have begun disenrolling members, which increases profits for the remaining members. A growing number of people have been urging the Secretary of the Interior to take punitive measures against tribes when disenrollment is motivated by personal interest rather than by principled determinations.99 One court recently expressed “regret” that federal courts cannot help people who have been disenrolled in violation of tribal law or in violation of the Indian Civil Rights Act.100 The Secretary has taken the position that the federal government will not interfere with tribal membership determinations unless the tribe, through its own laws, confers that authority on the Department of the Interior.101 When tribal law requires secretarial approval of membership decisions, the Secretary must perform that function, and the Secretary’s decision is subject to review by a federal court.102

5.  Regulation of Indian Land Today, only 2 percent of the land in the United States (approximately fifty-​six million acres) is in tribal hands. The federal government’s forceful taking of tribal land and its extensive regulation of what remains is a clear example of the federal government’s pervasive authority over Indian tribes. During the 1800s, as non-​Indians moved west, tribes were forced to sign treaties with the United States that removed most of their homelands and

110  The Rights of Indians and Tribes assigned them to reservations. Some tribes were forced to sign additional treaties that reduced the reservation guaranteed in a prior treaty or which moved them further west. The Crow Tribe, for instance, signed two treaties with the United States, one in 1851 and the other in 1868, with the latter (only seventeen years later) removing two-​thirds of the land reserved in the former.103 Some tribes were forced to move hundreds of miles from their homes. More than thirty tribes were relocated to an area Congress called “Indian Territory,” now within the state of Oklahoma. Congress also devised a way to permit non-​Indians to live within Indian reservations, something previously not allowed. The General Allotment Act of 1887 (GAA)104 was intended to promote the assimilation of Indians into white society and end the need for Indian reservations by (1) allotting individual parcels of tribal land to tribal members, and (2) designating other tribal land as “surplus” and selling it to non-​Indian farmers and ranchers. It was hoped that the Indian allottees would emulate their new neighbors, learn how to farm and ranch, and abandon their tribal ways. The allotments issued to tribal members were held in “trust” status—​that is, the Indian allottee was the beneficial owner but the United States continued to hold legal title. As time went on, the federal government issued deeds to hundreds of Indian allottees, which gave them full ownership of their allotments, but also subjected the land to state real estate taxation. Many allottees who had been issued deeds sold their land to non-​Indians or lost their land through foreclosure when they failed to pay state taxes. For tribes, the consequences of the GAA were disastrous. Of the nearly 150 million acres that tribes owned collectively when the GAA was passed in 1887, only 48 million remained when the GAA was repealed in 1934, and tens of thousands of non-​Indians now resided on Indian reservations.105 Today, Indians who still possess trust allotments are not issued a deed by the federal government unless they request one.106

What is “Indian land”?

There are two broad categories of Indian land: trust and non-​trust. The United States holds legal title to trust land but has assigned it to exclusive use of an Indian or a tribe, called the “beneficial owner.” Non-​trust land (also called fee, fee patent, or deeded land) is owned outright by an Indian or tribe. Indians and tribes can own fee land, both on and off the reservation, just as anyone else can. There are advantages and disadvantages to keeping land in trust status. The main advantage is that trust land is immune from state taxation because the federal government holds the title and a state is not permitted to tax the federal

Federal Power over Indian Affairs  111 government.107 The main disadvantage is that trust land may not be sold, leased, or bequeathed by the beneficial owner without the federal government’s consent. Despite the disadvantages, most Indians and tribes opt to keep their land in trust status largely because of its exemption from state taxation. For the same reason, when Indians and tribes purchase fee land, they usually ask the Secretary of the Interior to convert that land into trust status, as the Secretary has the authority to do (the “land-​into-​trust” process, discussed later).

How does the federal government regulate the sale of trust land?

Congress has created a process by which Indian allottees may obtain a deed to their trust allotment of land, which permits it to be sold. An allottee must fill out an application that shows that the applicant “is competent and capable of managing his or her affairs.”108 Determinations of competency are left by law to the Secretary’s discretion, and courts generally do not overrule the Secretary’s decision.109 Federal law permits Indians to sell their trust land through an installment contract, subject to secretarial approval, with the purchaser paying a portion of the price at intervals. Once the full price has been paid, a deed is issued by the United States.110 In addition, federal law allows Indians to borrow money and to place a mortgage on their trust land as collateral for the loan.111 If the Indian fails to repay the loan, the federal government will issue the Indian a deed to the land and the creditor can foreclose on the property pursuant to the mortgage. The Secretary has issued regulations governing the sale, exchange, and conveyance of Indian trust land.112 Congress does not regulate the sale of fee land owned by an Indian, and this land may be sold by the owner to anyone at anytime. Fee land owned by a tribe, however, is treated differently. The Indian Nonintercourse Act (INA), passed in 1790, prohibits tribes from selling any interest in land unless the sale is approved by the federal government.113 A sale of tribal land without the government’s consent is void, and the tribe may bring a lawsuit to recover the land.114

How does the federal government regulate the leasing of trust land?

The DOI allows people to lease Indian trust land for various uses. A separate federal statute governs each kind of trust lease, including farming and grazing leases; mining leases; oil and gas exploration leases; and leases for public, religious, educational, recreational, residential, or business purposes.115 The

112  The Rights of Indians and Tribes Secretary has issued regulations governing the terms and conditions of these various leases, and each has its own requirements.116 For instance, a lease for grazing purposes cannot exceed a term of ten years, whereas a lease for residential purposes may be made for twenty-​five years. A lease of Indian trust land is subject to cancellation by the Secretary if it is later found to violate federal law or if the terms and conditions of the lease are not being met.117 The parties to the lease are entitled to a hearing before the cancellation takes effect, and the Secretary’s decision can be overturned by a federal court.118 If an Indian or tribe believes that federal officials have violated federal law or federal trust duties in the leasing process, they may seek court review.119 The Native American Housing Assistance and Self-​Determination Act of 1996 authorizes the DOI to approve the leasing of trust lands owned by tribes and individual Indians for housing development and residential purposes.120 In 2012, Congress passed the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act,121 the purpose of which is to shift the authority for leasing tribal land from the BIA to the tribe. HEARTH authorizes tribes to approve leases of tribal land for most purposes, including residential, agricultural, and commercial, without the need for secretarial approval—​ provided the lease is executed consistent with tribal regulations pre-​approved by the DOI.122 (The Act does not authorize tribes to approve leases of individually owned Indian allotments: leases can be issued only for tribal trust land.)123 Departmental regulations provide similar opportunities for the granting of a tribal right-​of-​way, such as permission to build a road or install transmission lines.124 Many tribes have had their regulations approved by the department, empowering them to control the leasing of their trust lands.125 On most Indian reservations, the Realty Office of the Bureau of Indian Affairs administers the leasing of Indian land. Those persons who lease Indian land (the “lessors”) pay their rent to the Realty Office. The Realty Office then distributes this money to the Indian or tribal beneficiary.126

Does the federal government regulate the inheritance of Indian land?

Congress has decided not to regulate the inheritance of fee land owned by an Indian. As a result, the inheritance of Indian fee land on the reservation is controlled by tribal law, whereas fee land located outside the reservation is controlled by state law.

Federal Power over Indian Affairs  113 As the title holder of trust land, Congress regulates its inheritance, and the Supreme Court has upheld its authority to do so.127 Laws and regulations govern the writing of wills and the inheritance of trust land, all of which vest the Secretary with broad discretion. A decision by the Secretary can be reviewed by a federal court to ensure that it is not arbitrary and capricious or otherwise contrary to federal law.128 Thousands of tribal members were issued allotments of land under the GAA. Whenever these allottees died without a will (“intestate”), their heirs inherited an undivided portion of the allotment. (For instance, if five children were the only heirs, they would each inherit a one-​fifth interest in the entire parcel.) When those heirs died, the allotment would then be fractionated further. Today, many trust allotments are jointly owned by dozens and sometimes hundreds of people, all of whom must consent to a sale, lease, or other use of the land. Nationally, there are an estimated 3.2 million landowner interests in Indian trust land, with 86 percent owning less than 2 percent of the relevant parcel.129 These fractionated land holdings stifle tribal economic development and often prevent maximization of land usage because obtaining the consent of all the beneficial owners is difficult. Congress has attempted to help tribes resolve this problem. Initially, Congress passed a law declaring that whenever the value of the inherited land would generate less than $100 a year in lease income for the heir, the land would be inherited by (“escheat to”) the tribe instead of passing to the heir. However, the Supreme Court invalidated this law on the grounds that it resulted in a taking of property without just compensation, in violation of the Just Compensation Clause of the Fifth Amendment.130 In 2004, Congress tried again and enacted the American Indian Probate Reform Act,131 which allows the owners to agree to have their interests purchased by the federal government, which then holds the land in trust for benefit of the tribe (known as the “Land Buy-​Back Program”).132

Are there other ways in which Congress regulates trust land, besides its sale, lease, and inheritance?

Yes. The federal government also controls easements and rights of way on trust land, such as railways, highways, power lines, and oil and gas pipelines, all of which must be approved by the Secretary of the Interior.133 (A right-​ of-​way across tribal land usually requires the tribe’s approval, too.)134 The Secretary also manages the forestry on, and irrigation of, trust land.135

114  The Rights of Indians and Tribes

Can Indians and tribes obtain additional trust land?

Yes, using two methods, Indians and tribes can obtain additional trust land. Both methods require action by the Secretary of the Interior and both were created by a statute: Title 25, U.S. Code, Section 5108 (formerly Section 465). Section 5108 was passed by Congress as part of the IRA in 1934, a statute designed to assist in the rejuvenation of tribal governments, including restoring their land base. First, Section 5108 authorizes the Secretary to purchase fee land with federal funds, convert that land into trust status, and assign it to an Indian or tribe.136 This authority is discretionary, and the Secretary cannot be forced to purchase land.137 Second, Section 5108 allows Indians and tribes to purchase fee land (on or off the reservation) and request that the Secretary convert that land into trust status (“land-​into-​trust” or “fee-​into-​trust”). Today, many tribes are purchasing parcels of land within their reservations—​land that had been removed from trust status and sold to non-​Indians as a result of the GAA, for instance—​and having that land converted by the Secretary into trust land.138 Originally, Section 5108 allowed only IRA tribes to qualify for this benefit but Congress passed a law in 1938 extending the application of Section 5108 to all tribes.139 In December 2023, the BIA issued new regulations designed to make the transfer of land into trust simpler, more efficient, and less expensive. These regulations require notice of the proposed transfer, an opportunity for objections, an administrative decision, and judicial review.140 Since 1934, more than two million acres of land have been added to tribal holdings through the land-​into-​trust process. President Obama was particularly interested in helping tribes recover lost or stolen land. More than a half million acres were added to tribal holdings during his administration benefiting more than one hundred tribes.141 Sally Jewell, President Obama’s first Secretary of the Interior, explained that President Obama was committed to increasing tribal landholdings because “through destructive federal policies of allotment and assimilation, Tribes lost tens of millions of acres of tribal lands.”142 The Black Hills of South Dakota, for instance, were taken from the Sioux by the federal government in violation of the tribe’s treaty rights.143 In 2016 (over the objection of the state of South Dakota), the Secretary converted 2,022 acres of fee land within the Black Hills, known as the Pe’Sla Property, into trust, for the benefit of the Rosebud Sioux, the Shakopee Mdewakanton Sioux Community, the Standing Rock Sioux, and the Crow Creek Sioux.144 In approving a conversion of 168 acres of land into trust status for the

Federal Power over Indian Affairs  115 Pokagon Band of Potawatomi Indians of Michigan and Indiana in 2016, the Secretary noted in a letter to the Tribal Chairman, John Warren, that “Our Nation’s history with your tribe has not always been honorable” and “the Federal Government did not abide by its treaty and trust obligations to your Tribe and as a result your people suffered.”145 In a similar case, the Secretary agreed to convert into trust status thirteen thousand acres of fee land that had been purchased by the Oneida Nation of New York within its reservation, land that had been taken from the tribe some two hundred years earlier in a manner that violated federal law.146 The Trump administration was stingy in comparison, converting only seventy-​five thousand acres of land into trust status, and issued regulations that made it more difficult for tribes to qualify for the program than under the Obama administration. Fortunately, the Biden administration quickly reversed those policies and once again liberalized the process.147 In fact, the Biden administration reversed a decision by the Trump administration which had prevented tribes in Alaska from qualifying for this program.148 A publication issued by the Biden administration entitled “Fee to Trust” states: “Taking land into trust is one of the most important functions Interior undertakes on behalf of the tribes.” The publication discusses how the land-​ into-​trust process can support tribal self-​determination and help overcome “the devastating effects” of prior policies that significantly diminished tribal landholdings.149 The DOI’s land-​into-​trust process confronted a hurdle as a result of the Supreme Court’s decision in 2009 in Carcieri v. Salazar.150 A section of the IRA, 25 U.S.C. Section 5129 (formerly Section 479), states that land may be converted by the Secretary into trust for those tribes “now under federal jurisdiction.” In Carcieri, the Court interpreted the word “now” to mean only those tribes under federal jurisdiction when the IRA was passed in 1934. This decision could sharply reduce the number of tribes eligible for the program because many tribes did not receive formal recognition from the DOI until after 1934.151 Fortunately, the DOI has taken the position that an Indian tribe can prove it was “under federal jurisdiction” in 1934 even if the DOI formally recognized the tribe later, such as by showing that the tribe conducted an election in 1934 to determine whether to participate in, or opt out, of the IRA.152 During the Obama administration, the DOI approved many land-​into-​trust conversions for tribes that attained formal recognition after 1934,153 including land for the Cowlitz Tribe of Washington, which was formally recognized in 2000,154 and for the Mashpee Wampanoag Tribe of

116  The Rights of Indians and Tribes Massachusetts, which was formally recognized in 2007.155 It would be best if Congress amended the statute to make clear that all currently recognized tribes qualify, not just those recognized in 1934. (This amendment is what some are calling a “Carcieri fix.”) Tribal land-​into-​trust requests often generate heated opposition.156 Fee land is subject to state real estate taxation whereas trust land is not, and local governments do not want to lose the tax revenue. Furthermore, the land-​ into-​trust process has been used by some tribes to purchase land outside the reservation for the purpose of building a casino, occasionally in communities where local residents are opposed to having a casino. (The vast majority of land-​into-​trust exchanges do not involve efforts to build a casino.)157 In 2012, in Match-​E-​Be-​Nash-​She-​Wish Band v. Patchak,158 the Supreme Court held that a non-​Indian who claimed he would be adversely impacted by a land-​into-​trust transfer could challenge a decision of the Secretary of the Interior approving that transfer.159 Courts, however, usually uphold these land-​into-​trust conversions because the IRA was enacted to promote tribal self-​government, improve tribal economies, and assist tribes in expanding their land base. These conversions, authorized by the IRA, help fulfill those goals.160

Can Congress diminish the size of, or abolish, an Indian reservation?

Yes, and Congress has used four methods in doing so. First, Congress has sometimes abolished the entire reservation and either created a new reservation for the tribe elsewhere or, as it did during the termination era to 109 tribes, removed from the tribe all reservation land; this is called “disestablishment.” Second, Congress has eliminated a portion of the reservation, removing all trust land from that portion and extinguishing all tribal interest in that land;161 this is called “diminishment.” Third, Congress has eliminated a portion of the reservation but allowed any trust allotments located within the diminished area to remain in trust status and, thus, remain “Indian country” over which the tribe retains control.162 (This is another type of “diminishment.”) Fourth, Congress has opened reservations to settlement by non-​Indians, allowing them to purchase what the federal government called “unoccupied” or “surplus” land within Indian reservations.163 The GAA is a prime example of this method. (The first three methods change the exterior boundaries of the reservation, but the last method does not; rather, it creates a “checkerboard” pattern in which

Federal Power over Indian Affairs  117 Indian trust land and non-​Indian private land exist side by side, and the entire area remains Indian country.) In some instances, it is difficult to tell from the language of the applicable statute whether Congress intended to disestablish the reservation, diminish the reservation, or merely open the reservation to non-​Indian settlement. The Supreme Court has held that (1) only Congress has the authority to disestablish, diminish, or open an Indian reservation, and (2) if reasonable doubt exists as to what Congress intended, it will be presumed that Congress did not disestablish or diminish the reservation.164 In certain cases, though, a majority of the Court held that Congress had diminished a reservation even though the dissenting justices found no clear intent on the part of Congress to do anything other than open the reservation to white settlement.165 Congress has not sought to disestablish, diminish, or open an Indian reservation since the termination era. During the Trump administration, however, the DOI sought to withdraw the reservation that had been created during the Obama administration for the Mashpee Wampanoag Tribe of Massachusetts, claiming that the tribe did not qualify for a reservation. Fortunately, a federal court intervened and prevented the disestablishment and, after President Biden was elected, the federal government ceased its efforts to withdraw the reservation.166

6.  Regulation of Tribal Assets What control does Congress have over tribal assets?

The power of Congress to regulate tribal assets—​such as tribal funds and tribal land—​is, the Supreme Court has said, “one of the most fundamental expressions, if not the major expression, of the constitutional power of Congress over Indian affairs.”167 As with the other exercises of congressional power discussed previously, federal power over tribal assets is plenary.168 This power is so extensive that Congress can order a tribe to distribute all of its assets and to disband as a government: a power that Congress exercised with disastrous results during the termination era. Federal statutes give the Secretary of the Interior the authority to administer most tribal assets. The Secretary, however, has no independent authority to manage tribal assets and may only do what Congress has authorized. Federal officials must properly manage the property they take under their control, consistent with federal laws and their trust responsibilities.169

118  The Rights of Indians and Tribes In 1994, Congress passed the American Indian Trust Fund Management Reform Act,170 which permits Indian tribes (but not tribal members) to withdraw funds held in their trust accounts and to manage and invest those funds themselves. With this greater discretion comes greater risk. Once the funds are withdrawn, the United States no longer has any liability or responsibility with respect to that money.171

7.  Regulation of Individual Property Does Congress regulate the individual property of Indians?

As with all other citizens, Indians can own private property, including land, automobiles, farm equipment, and the like. Congress does not regulate private property owned by Indians any differently than private property owned by non-​Indians. Everything that an Indian may wish to do with trust property, however, must be approved by the federal government. When Indians lease their trust lands to mining or oil companies, or to farmers or ranchers, as many Indians do, those who lease the land (the “lessees”) pay rent (for the land) or royalties (on the products obtained from the land) to the Secretary of the Interior, who must then distribute that money to the Indian beneficiary. As discussed in Chapter III, it was shown in the Cobell case that the federal government had lost or misplaced billions of dollars that should have been paid to beneficiaries. The Cobell case was settled in 2010 when Congress appropriated $3.4 billion, some of which would compensate the nearly three hundred thousand beneficiaries who had lost money and the rest of which would be used for such things as scholarship funds and purchasing land for tribes.

8.  Regulation of Trade and Liquor Does Congress have the power to regulate trade with Indians?

Yes. The Commerce Clause gives Congress plenary power to regulate trade with the Indian tribes.172 As early as 1790, Congress passed a comprehensive law to regulate trade with tribes, and most of its provisions are still in effect.173 This law requires all persons who trade on an Indian reservation, except Indians “of the full blood,” to obtain a federal license and obey certain

Federal Power over Indian Affairs  119 restrictions on the types of goods and services being offered and the manner of their sale. Violators are subject to the forfeiture of their goods and a fine.174 Congress has delegated to the Assistant Secretary of Indian Affairs (the person in charge of the BIA) the authority to regulate Indian trade.175 Only the Assistant Secretary (or a designee) may issue a trader’s license, and no license may be issued unless it is shown that the applicant is “a proper person to engage in such trade.”176 The Assistant Secretary has enacted regulations describing in detail how trade with Indians must be conducted and the goods and services that may be sold.177 If federal officials ignore their duty to regulate reservation trade, a court can order them to enforce the law.178 In addition, Congress has imposed a fine of $1,000 on anyone who attempts to negotiate with an Indian tribe for the sale or lease of tribal land without the federal government’s consent.179

Does the government’s power to regulate trade include the power to regulate liquor?

Yes, and Congress has made extensive use of this power.180 In 1892, Congress passed a law prohibiting all sales of liquor to Indians, both on and off the reservation. The law was later amended to prohibit such sales only on or near Indian reservations, and amended again to prohibit only on-​reservation sales. Currently, federal law authorizes each tribe to decide for itself what types of liquor regulations to establish, to issue its own liquor licenses, to refuse to issue a liquor license to non-​Indians,181 and to ban entirely the sale of liquor on the reservation (as several tribes have done).182

9.  Criminal Jurisdiction The scope of the federal government’s criminal jurisdiction in Indian country is explained in Chapter VII. To briefly summarize, early in U.S. history, Congress passed laws authorizing the federal government to arrest and prosecute non-​Indians who committed crimes against Indians, and Indians who committed crimes against non-​Indians, in Indian country. But Congress did not authorize the federal government to arrest and prosecute Indians who committed crimes against other Indians. That changed in 1885, when Congress passed the Major Crimes Act (MCA).183 The MCA was passed in response to a highly publicized trial that occurred in the Dakota Territory in 1883 in which one Indian, Crow Dog, murdered another Indian, Spotted Tail, and was sentence by a federal court to hang. On appeal, the Supreme

120  The Rights of Indians and Tribes Court ordered Crow Dog’s release, finding that Congress had not authorized federal officials to prosecute Indian-​on-​Indian crimes.184 Congress quickly responded. Believing that Indians would become “civilized a great deal sooner”185 if they were subject to federal criminal laws, Congress passed the MCA. When first enacted, the MCA authorized the federal government to prosecute seven crimes when committed by an Indian in Indian country against any other person: including murder, manslaughter, rape, and assault with intent to kill. Since then, more crimes have been added to the list. The Supreme Court has upheld the authority of Congress to subject Indians to the criminal jurisdiction of the federal government.186 Although Congress has passed criminal laws applicable to Indian Country, Congress has failed to appropriate sufficient funds to hire enough federal and tribal law enforcement officers and support personnel, to purchase needed equipment, to construct adequate jails and halfway houses on Indian reservations, and to support tribal “peacemaking” programs that serve as alternatives to incarceration. This deficit has resulted in unnecessary crime and misery in Indian country, as discussed in Chapter VII, and is another example of Congress having plenary authority and failing to properly exercise it.

Notes 1. See Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1872 (2016); Antoine v. Washington, 420 U.S. 194, 203 (1975); Winton v. Amos, 255 U.S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). See also Bethany R. Berger, Savage Inequalities, 94 Wash. L. Rev. 583, 694 (2019) (stating that the plenary power doctrine is now so ingrained, that a full restoration of tribal sovereignty “is politically unfeasible”). 2. United States v. Jicarilla Apache Tribe, 564 U.S. 162, 173–​75 (2011) (internal citations omitted). See also United States v. Lara, 541 U.S. 193, 200 (2004); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998). 3. United States v. Cooley, 141 S. Ct. 1638, 1643 (2021). 4. See Haaland v. Brackeen, 143 S. Ct. 1609, 1656-​60 (2023) (Gorsuch, Sotomayor, Jackson, JJ., concurring); Walter Echo-​ Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided 161–​86 (2010); Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 140 (2009); Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. State. L.J. 113, 115–​18 (2002); Robert R. Porter, A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law, 31 U. Mich.

Federal Power over Indian Affairs  121 J.L. Reform 899 (1998); Vine Deloria, Jr., Behind the Trail of Broken Treaties (1974). 5. The fact that Congress decided in 1871 to stop signing treaties with Indian tribes does not eliminate the Treaty Clause as a source of power over Indians. See Brackeen, 143 S. Ct. at 1628; Lara, 541 U.S. at 201; Antoine, 420 U.S. at 203. 6. Worcester v. Georgia, 31 U.S. 515, 559 (1832). 7. Brackeen, 143 S. Ct. at 1627–​28. See also Lara, 541 U.S. at 200. 8. Tee-​Hit-​Ton Indians v. United States, 348 U.S. 272, 279 (1955). For a discussion of this principle, known as the “Doctrine of Discovery,” see Chapter II, Section D. 9. Johnson v. McIntosh, 21 U.S. 543, 570 (1823). 10. Lara, 541 U.S. at 201. 11. Brackeen, 143 S. Ct. at 1628; United States v. Sandoval, 231 U.S. 28, 45–​46 (1913); United States v. Kagama, 118 U.S. 375, 382–​83 (1886). See generally Taylor Ledford, Foundations of Sand: Justice Thomas’s Critique of the Indian Plenary Power Doctrine, 43 Am. Indian L. Rev. 167, 178–​79 (2018); Matthew L.M. Fletcher, Failed Protectors: The Indian Trust and Killers of the Flower Moon, 117 Mich. L. Rev. 1253, 1264 (2019). 12. See Brackeen, 143 S. Ct. at 1657 (Gorsuch, J., concurring); Ledford, supra note 11, at 171–​73. 13. See Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1021–​ 50 (2015). 14. Echo-​Hawk, supra note 4, at 163. 15. Brackeen, 143 S. Ct. at 1657 (Gorsuch, Sotomayor, Jackson, JJ., concurring). 16. Brackeen, 143 S. Ct. at 1629 (citation omitted). See also Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 84 (1977); United States v. Sioux Nation of Indians, 448 U.S. 371, 413–​14 (1980). 17. The Fifth Amendment provides: “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 18. Bolling v. Sharpe, 347 U.S. 497 (1954); United States v. Antelope, 430 U.S. 641 (1977); Hodel v. Irving, 481 U.S. 704 (1987). 19. See Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984). This subject is discussed in more detail in the previous chapter. 20. Menominee Tribe v. United States, 391 U.S. 404 (1968). 21. Babbitt v. Youpee, 519 U.S. 234 (1997); Antoine v. United States, 710 F.2d 477 (8th Cir. 1983). 22. Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937); United States v. Sioux Nation, 448 U.S. 371, 413–​14 (1980). The amount of compensation that must be paid is the value of the land at the time it was taken, plus interest to the date of the payment. United States v. Creek Nation, 295 U.S. 183 (1935). 23. Choate v. Trapp, 224 U.S. 665 (1911). But see Tiger v. Western Investment Co., 221 U.S. 286 (1911). 24. The Eleventh Amendment provides: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against

122  The Rights of Indians and Tribes one of the United States, by Citizens of another State, or by Citizens or Subjects of any Foreign State.” 25. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 26. The Seminole Tribe case is discussed in Chapter XV, notes 45–​49 and accompany­ ing text. 27. Haaland v. Brackeen, 143 S. Ct. 1609, 1631–​38 (2023) . Brackeen is discussed in more detail in Chapter XVI. 28. Id. at 1629. See also Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisc. v. Evers, 46 F.4th 552, 557 (7th Cir. 2022) (“when it comes to the tribes, what Congress says almost always goes”); Ledford, supra note 11, at 189–​90. 29. David H. Moore & Michalyn Steele, Revitalizing Tribal Sovereignty in Treatymaking, 97 N.Y.U. L. Rev. 137, 142 (2022). 30. This subject is discussed in Chapter III, notes 9–​19 and accompanying text. 31. These laws are codified at 25 U.S.C. § 177. See Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 530–​31 (2017). 32. See Gregory Ablavsky, “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meaning, 70 Stan. L. Rev. 1025, 1076 (2018); Krakoff, supra note 31, at 495–​506, 529. 33. Ablavsky, supra note 32, at 1074; see also Matthew L.M. Fletcher, Politics, Indian Law, and the Constitution, 108 Cal. L. Rev. 495, 499–​505, 517–​18 (2020). 34. See Krakoff, supra note 31, at 548. 35. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 673 n.20 (1979); see also Mary Kathryn Nagle, Nothing to Trust: The Unconstitutional Origins of the Post-​Dawes Act Trust Doctrine, 48 Tulsa L. Rev. 63, 64 (2012). 36. See Artichoke Joe’s California Grande Casino v. Norton, 353 F.3d 712, 730 (9th Cir. 2003); American Federation of Government Employees v. United States, 330 F.3d 513, 520 (D.C. Cir.), cert. denied, 540 U.S. 1088 (2003); see generally, Matthew L.M. Fletcher, States and Their American Indian Citizens, 43 Am. Indian L. Rev. 319, 336–​ 37 (2017). 37. United States v. Antelope, 430 U.S. 641, 645 (1977). See also Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 500–​501 (1979). 38. Morton v. Mancari, 417 U.S. 535 (1974). 39. 25 U.S.C. § 5116 (formerly § 472). 40. Mancari, at 553 n.24. See Fletcher, supra note 33, at 517–​18. 41. Mancari, at 553 n.24. 42. Id. See also Fisher v. District Court, 424 U.S. 382, 390–​91 (1976); Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984). 43. Mancari, at 555. 44. Id. at 552. 45. Id. at 555. See also County of Yakima v. Confederated Tribes of Yakima Indian Nation, 502 U.S. 251 (1994).

Federal Power over Indian Affairs  123 46. See, e.g., Washington v. Passenger Fishing Vessel Association, 443 U.S. 658 (1979) (fishing); Winters v. United States, 207 U.S. 564 (1908) (water); Artichoke Joe’s California Grande Casino v. Norton, 353 F.3d 712, 731 (9th Cir. 2003) (economic development). 47. Haaland v. Brackeen, 143 S. Ct. 1609, 1648 (2023) (internal quotation and citation omitted). 48. See Matthew L.M. Fletcher, The Original Understanding of the Political Status of Indian Tribes, 82 St. John’s L. Rev. 153, 155 (2008). 49. Tiger v. Western Investment Co., 221 U.S. 286 (1911); Simmons v. Eagle Seelatsee, 244 F. Supp. 808 (E.D. Wash. 1965), aff ’d mem., 384 U.S. 209 (1966); Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84 (1977). When Congress terminated the Ute Indian Tribe, Congress distributed property based on blood quantum. See Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260 (10th Cir. 1998). 50. United States v. George, 228 U.S. 14 (1913); Morton v. Ruiz, 415 U.S. 199 (1974); Northern Arapaho Tribe v. Hodel, 808 F.2d 741, 748 (10th Cir. 1987); United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976). 51. See 25 U.S.C. §§ 1a, 2. 52. 25 U.S.C. § 9. 53. See Charles F. Wilkinson, American Indians, Time, and the Law 8 (1987); Hackford v. Utah, 845 F.3d 1325, 1327 (10th Cir.), cert. denied, 138 S. Ct. 206 (2017) (noting that the Uintah Reservation in Utah was created by President Abraham Lincoln in an 1861 executive order and confirmed by Congress in 1864). 54. 43 U.S.C.A. § 150. 55. 25 U.S.C. § 331 (repealed). 56. 25 U.S.C. § 5101. 57. Pub. L. No. 93-​638, 88 Stat. 2203, codified as 25 U.S.C. § 5301 (formerly § 450) et seq. The ISDEAA has been called a “turning point” in federal policy. See Kristen Carpenter & Angela Riley, Privatizing the Reservation?, 71 Stan. L. Rev. 791, 829–​30 (2019). The ISDEAA has been amended several times, each time increasing tribal contracting authority. 58. Indian Self-​Determination Contract Reform Act of 1994, Pub. L. No. 103-​413, 108 Stat. 4250, 4250, 4272–​78. 59. 25 U.S.C. § 5304. See Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986 (9th Cir. 2005); Navajo Nation v. Department of Health & Human Services, 325 F.3d 1133 (9th Cir. 2003). 60. See 25 U.S.C. § 5331(a). 61. See Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2017); Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005); Fort McDermitt Paiute and Shoshone Tribe v. Becerra, 6 F.4th 6, 9 (9th Cir. 2021). For a discussion of funding levels and support costs, see Navajo Nation v. U.S. Dept. of Interior, 57 F.4th 285 (D.C. Cir. 2023). 62. See Salazar v. Ramah Navajo Chapter, 567 U.S. at 187; Northern Arapaho Tribe v. LaCounte, 215 F. Supp. 3d 987 (D. Mont. 2016) (holding that, once the application is approved, the BIA must disperse the monies properly and can be sued for a failure to do so). 63. See Salazar, 567 U.S. at 185–​86.

124  The Rights of Indians and Tribes 64. Yellin v. Confederated Tribes of Chehalis Reservation, 141 S. Ct. 2434, 2439 (2021); see also Leavitt, 543 U.S. at 639. 65. See Geoffrey D. Strommer & Stephen D. Osbourne, The History, Status, and Future of Tribal Self-​Governance Under the Indian Self-​Determination and Education Assistance Act, 39 Am. Indian L. Rev. 1 (2015); Matthew L.M. Fletcher, A Unifying Theory Tribal Civil Jurisdiction, 46 Ariz. St. L.J. 779, 814–​16 (2014); Kevin K. Washburn, Everybody Does Better in Indian Country When Tribes Are Empowered (2018), available at https://​digita​lrep​osit​ory.unm.edu/​law​_​fac​book​disp​lay/​137/​. See, e.g., Boye v. United States, 90 Fed. Cl. 392, 398–​99 (2009) (discussing a 638 contract to administer a law enforcement program). 66. Washburn, supra note 65, at 3. 67. See U.S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans, at 168–​82 (Dec. 2018), available at https://​www.usccr. gov/​pubs/​2018/​12-​20-​Bro​ken-​Promi​ses.pdf. 68. U.S. Gov’t Accountability Off., GAO-​15-​502, Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on Indian Lands (June 8, 2015). 69. U.S. Gov’t Accountability Off., GAO-​17-​317, High-​Risk Series: Progress on Many High-​Risk Areas, While Substantial Efforts Needed on Others (Feb. 15, 2017). 70. U.S. Gov’t Accountability Off., GAO-​19-​87, Indian Programs: Interior Should Address Factors Hindering Trial Administration of Federal Programs (Jan. 29, 2019). 71. 25 U.S.C. §§ 1301 et seq. 72. The ICRA is the subject of Chapter XIII. 73. 25 U.S.C. §§ 461 et seq. now codified as 25 U.S.C. §§ 5101 et seq. The IRA is further discussed in Chapter I, notes 86–​96 and accompanying text. 74. See Kerr-​McGee Corp. v. United States, 471 U.S. 195, 198 (1985). 75. See 25 U.S.C. § 5123, and 25 C.F.R. pts. 81 and 82. See California Valley Miwok Tribe v. United States, 515 F.3d 1262 (D.C. Cir. 2008); Thomas v. United States, 189 F.3d 662, 667 (7th Cir. 1999). See also Seminole Nation of Oklahoma v. Norton, 206 F.R.D. 1 (D.D.C. 2001) (holding that the Secretary must supervise an election to amend the constitution of a non-​IRA tribe where the tribe’s constitution required it). 76. 80 Fed. Reg. 63094 (Oct. 19, 2015) (permitting tribes to remove requirement that DOI approve subsequent amendments). See also 25 U.S.C. § 5123(h). 77. Porter, supra note 4, at 986. 78. Pub. L. No. 106-​179 (2000). See S. Rep. 106-​150 (1999). 79. Gasplus, L.L.C. v. U.S. Department of Interior, 510 F. Supp. 2d 18, 33 (D.D.C. 2007). See also Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767 (9th Cir. 2008), cert. denied, 555 U.S. 1153 (2009). 80. Shakopee Mdewakanton Sioux (Dakota) Community v. Babbitt, 107 F.3d 667, 670 (8th Cir. 1997); see also United States v. Wadena, 152 F.3d 831, 847 (8th Cir. 1997), cert. denied, 526 U.S. 1059 (1999); Cayuga Nation v. Bernhardt, 374 F. Supp. 3d 1 (D.D.C. 2019). 81. California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1267 (D.C. Cir. 2008).

Federal Power over Indian Affairs  125 82. Attorney’s Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 943–​44 (8th Cir. 2010), cert denied, 562 U.S. 1179 (2011); Shenandoah v. U.S. Department of Interior, 159 F.3d 708, 712–​13 (2d Cir. 1998). 83. See Wadena, 152 F.3d at 844–​47. 84. See Aguayo v. Jewell, 827 F.3d 1213, 1228 (9th Cir. 2016), cert. denied, 137 S. Ct. 832 (2017); Sac & Fox of the Mississippi in Iowa v. Bear, 258 F. Supp. 2d 938 (N.D. Iowa 2003), aff ’d, 340 F.3d 749 (8th Cir. 2003); Bullcreek v. U.S. Department of Interior, 426 F. Supp. 2d 1221 (C.D. Utah 2006). 85. Aguayo, 827 F.3d at 1227 (internal citation omitted). As is the case with federal officials, federal courts generally have no authority to intervene in tribal election disputes. See Newtok Village v. Patrick, 21 F.4th 608, 620–​22 (9th Cir. 2021). 86. See Wheeler v. Department of Interior, 811 F.2d 549, 552 (10th Cir. 1987); Harjo v. Kleppe, 420 F. Supp. 1110, 1144–​46 (D.D.C. 1976), aff ’d, 581 F.2d 949 (D.C. Cir. 1978); Thomas v. United States, 141 F. Supp. 2d 1185 (W.D. Wis. 2001). 87. See Rennard Strickland, Genocide-​at-​Law: An Historic and Contemporary View of the Native American Experience, 34 Kan. L. Rev. 713 (1986). 88. See, e.g., Menominee Termination Act, 25 U.S.C. §§ 891 et seq; Klamath Termination Act, 25 U.S.C. §§ 564 et seq. For a discussion of termination, see South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986). For a discussion of efforts by some California tribes to fight termination, see Hardwick v. United States, 2020 WL 6700466 (N.D. Cal. 2020). 89. See American Indian Policy Review Commission, Final Report 447–​53 (1977); Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law § 1.06, 84–​93 (2012 ed.); Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1261 (10th Cir. 1998). 90. See Vine Deloria, Jr., Custer Died for Your Sins 60, 81 (1969); Marren Sanders, De Recto, De Jure, or De Facto: Another Look at the History of U.S./​Tribal Relations, 43 Sw. L. Rev. 171, 184–​85 (2013); Porter, supra note 4, at 933–​36. 91. See, e.g., 25 U.S.C. § 903 (Menominee Tribe); 25 U.S.C. § 861–​61c (Wyandotte, Peoria, and Ottawa Tribes); 25 U.S.C. § 761 (Paiute Tribe); Pub. L. No. 99-​398, 100 Stat. 849 (Klamath Tribe). See Mishewal Wappo Tribe of Alexander Valley v. Zinke, 688 Fed. Appx. 480 (9th Cir. 2017) (holding that a terminated tribe’s suit seeking restoration was barred by the statute of limitations). 92. President Nixon’s Message to Congress, July 8, 1970, 6 Pres. Doc. 894, reprinted in 116 Cong. Rec. S23258–​23262 (July 8, 1970). 93. United States v. Nice, 241 U.S. 591, 599 (1916). 94. Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968). 95. See Menominee Tribe, 391 U.S. at 414; Cherokee Nation v. So. Kansas R.R. Co., 135 U.S. 641 (1890); Klamath & Modoc Tribes v. United States, 436 F.2d 1008 (Ct. Cl. 1971). 96. Smith v. United States, 515 F. Supp. 56 (N.D. Cal. 1978); Duncan v. Andrus, 517 F. Supp. 1 (N.D. Cal. 1977). See also Hardwick v. United States, 2020 WL 6700466 (N.D. Cal. 2020). 97. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); Aguayo v. Jewell, 827 F.3d 1213, 1228 (9th Cir. 2016), cert. denied, 137 S. Ct. 832 (2017) (finding that tribal law did not authorize the Secretary to review enrollment decisions); Alto v. Black,

126  The Rights of Indians and Tribes 738 F.3d 1111 (9th Cir. 2013) (finding that tribal law did authorize the Secretary to review enrollment decisions); Davis v. United States, 199 F. Supp. 2d 1164 (W.D. Okla.), aff ’d, 343 F.3d 1282 (10th Cir. 2003), cert. denied, 542 U.S. 937 (2004). See also 43 C.F.R. § 4.330(b) (stating that the Interior Board of Indian Appeals shall not adjudicate tribal enrollment disputes unless authorized by tribal law). 98. Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902); Simmons v. Eagle Seelatsee, 244 F. Supp. 808 (E.D. Wash. 1965), aff ’d mem., 384 U.S. 209 (1966). 99. See Kevin K. Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. 200, 229 (2019). Gabriel S. Galanda, US Must Help Stop Disenrollment, Indian Country Today (Feb. 9. 2020), available at https://​ ind​ianc​ount​ryto​day.com/​opin​ion/​us-​must-​help-​stop-​disenr​ollm​ent?redir=​1. This subject is discussed in the next chapter. 100. Aguayo v. Jewell, 827 F.3d at 1229. As explained in Chapter XIII, federal courts cannot enforce the ICRA unless the applicant seeking court review is incarcerated. 101. 25 C.F.R. § 62.4(a)(3); see Aguayo v. Jewell, 827 F.3d at 1225–​26. 102. See Alto v. Black, 738 F.3d 111. 103. See Herrera v. Wyoming, 139 S. Ct. 1686, 1692 (2019). 104. 24 Stat. 388, as amended, 25 U.S.C. §§ 331–​58. The GAA is further discussed in Chapter I, notes 70–​78 and accompanying text. 105. Cohen’s Handbook, supra note 89, § 1.04, 74; Judith Royster, The Legacy of Allotment, 27 Ariz. L. Rev. 1, 10–​12 (1995). 106. 25 U.S.C. § 349. The application process is set forth in 25 C.F.R. pt. 152. 107. State criminal and civil jurisdiction on Indian trust land is discussed in Chapters VII and VIII, respectively. 108. 25 U.S.C. § 349. 109. 25 U.S.C. § 349. See West v. Hitchcock, 205 U.S. 80 (1907); Oglala Sioux Tribe v. Hallett, 708 F.2d 326 (8th Cir. 1983); Oglala Sioux Tribe v. Commissioner of Indian Affairs, IBIA 79-​11-​A (1979). 110. See 25 C.F.R. § 152.35. See also Stuart v. United States, 109 F.3d 1380 (9th Cir. 1997). 111. 25 U.S.C. § 5135. See Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006). 112. 25 C.F.R. §§ 152.17–​.31. 113. 25 U.S.C. § 177. 114. County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). 115. 25 U.S.C. §§ 393, 396, 398 (and 212.1), and 415, respectively. For a discussion of leasing of Indian trust land, see Kevin K. Washburn & Jody Cummings, Explaining the Modernized Leasing and Right-​of-​Way Regulations for Indian Lands (2017), available at https://​digita​lrep​osit​ory.unm.edu/​cgi/​view​cont​ent.cgi?arti​cle=​1554&cont​ ext=​law​_​fac​ulty​scho​lars​hip. 116. 25 C.F.R. pt. 162. 117. Bunch v. Cole, 263 U.S. 250 (1923); United States v. Southern Pacific Transportation Co., 543 F.2d 676 (9th Cir. 1976). 118. Woods Petroleum v. Department of Interior, 47 F.3d 1032 (10th Cir. 1995) (en banc); Danks v. Fields, 696 F.2d 572 (8th Cir. 1982); Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976).

Federal Power over Indian Affairs  127 119. See Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006); Woods Petroleum, 47 F.3d 1032. See also Navajo Nation v. United States, 537 U.S. 488 (2003) (rejecting a tribe’s claim that a leasing decision violated federal law). Non-​Indians may also challenge the Secretary’s handling of a lease in certain situations. See Fort Berthold Land & Livestock Association v. Anderson, 361 F. Supp. 2d 1045 (D.N.D. 2005). 120. 25 U.S.C. §§ 4101 et seq. 121. 25 U.S.C. § 415(h) (HEARTH Act). 122. Id. For an example of a Secretarial approval, see 82 Fed. Reg. 42111 (Sept. 6, 2017). 123. 25 U.S.C. § 415(h)(2). 124. See 25 C.F.R. pt. 169. 125. The 2019 GAO found that the Interior Department often takes longer to approve tribal leasing regulations than necessary. See U.S. Gov’t Accountability Off., GAO-​19-​87, Indian Programs: Interior Should Address Factors Hindering Tribal Administration of Federal Programs (Jan. 29, 2019), at 20–​22. 126. As discussed in Chapter III, notes 91–​94 and accompanying text, the government in past years mismanaged the collection and distribution of these funds. 127. United States v. Bowling, 256 U.S. 484 (1921); Blanset v. Cardin, 256 U.S. 319 (1921). 128. See Tooahneppah (Goombi) v. Hickel, 397 U.S. 598 (1970); Kicking Woman v. Hodel, 878 F.2d 1203 (10th Cir. 1989). See also Dull Knife v. Morton, 394 F. Supp. 1299 (D.S.D. 1974) (holding that the Secretary of the Interior must probate Indian estates within a reasonable time). 129. For a discussion of the impact of these fractionalized allotments, see Carpenter & Riley, supra note 57, at 817–​19. 130. Hodel v. Irving, 481 U.S. 704 (1987). See also Babbitt v. Youpee, 519 U.S. 234 (1997). 131. Pub. L. No. 108-​374, 118 Stat. 1773. 132. Claims Resolution Act of 2010, H.R. 4783, 111th Cong. (Dec. 8, 2010). For an example of the process, see https://​www.doi.gov/​news/​pressr​elea​ses/​inter​ior-​ogl​ala-​ sioux-​tribe-​annou​nce-​first-​coop​erat​ive-​agreem​ent-​to-​fac​ilit​ate-​purch​ase-​of-​fract​ iona​ted-​land-​under-​cob​ell-​set​tlem​ent. 133. 25 U.S.C. §§ 311–​28. For a discussion of the Secretary’s authority to grant a right-​ of-​way over tribal lands for telephone lines, see Public Serv. Co. v. Barboan, 857 F.3d 1101, 1105, 1108–​09 (10th Cir. 2017), cert. denied, 138 S. Ct. 1695 (2018). 134. Blackfeet Indian Tribe v. Montana Power Co., 838 F.2d 1055 (9th Cir.), cert. denied, 488 U.S. 828 (1988); see 25 U.S.C. § 324. 135. 25 U.S.C. §§ 5109 and 381, respectively. 136. 25 U.S.C. § 5108. See Chase v. McMasters, 573 F.2d 1011 (8th Cir. 1978). 137. McAlpine v. United States, 112 F.3d 1429 (10th Cir. 1997), cert. denied, 522 U.S. 984 (1997). 138. See Yankton Sioux Tribe v. Podhrasky, 606 F.3d 994, 1010–​15 (8th Cir. 2010), cert. denied, 564 U.S. 1019 (2011). 139. 25 U.S.C. § 2202. See New York v. Salazar, 2009 WL 3165591 at **1–​3 (N.D.N.Y. 2009). 140. See 25 C.F.R. pt. 151, 88 Fed. Reg. 86222 (Dec. 12, 2023). 141. See Carpenter & Riley, supra note 57, at 817, 839.

128  The Rights of Indians and Tribes 142. Testimony of Sally Jewell before the U.S. Senate Comm. on Indian Affairs (May 15, 2013), https://​www.govi​nfo.gov/​cont​ent/​pkg/​CHRG-​113sh​rg85​178/​html/​CHRG-​ 113sh​rg85​178.htm. 143. See United States v. Sioux Nation, 448 U.S. 371 (1980). 144. See State of South Dakota v. Great Plains Reg. Dir., B.I.A., Ass’t Sec. of Indian Affairs (Dec. 2, 2016), available at https://​tur​tlet​alk.files.wordpr​ess.com/​2016/​12/​sig​ned-​ decis​ion-​pe-​sla.pdf. See also State of New York v. Acting Eastern Reg. Dir., B.I.A., 58 IBIA 323 (June 11, 2014) (placing land into trust for the Mohawk Tribe of New York over the objections of the state and local municipalities). 145. Letter from Lawrence S. Roberts to John Warren (Nov. 17, 2016), available at https://​ tur​tlet​alk.files.wordpr​ess.com/​2016/​11/​poka​gon-​indi​ana-​fee-​to-​trust-​let​ter.pdf. 146. A challenge to that conversion was unsuccessful. See Upstate Citizens for Equality, Inc. v. United States, 841 F.3d 556 (2d Cir. 2016), cert. denied, 140 S. Ct. 2587 (2017). 147. See USDOI Press Release, Interior Department Takes Steps to Restore Tribal Homelands, Empower Tribal Governments to Better Manage Indian Lands (Apr. 27, 2021), available at https://​www.doi.gov/​pressr​elea​ses/​inter​ior-​dep​artm​ent-​takes-​ steps-​rest​ore-​tri​bal-​homela​nds-​empo​wer-​tri​bal-​gove​rnme​nts. 148. See Memorandum M-​37069 (Apr. 27, 2021). 149. Available at https://​www.bia.gov/​bia/​ots/​fee-​to-​trust. 150. Carcieri v. Salazar, 555 U.S. 379 (2009). 151. The recognition process is explained in Chapter XIV, Section E. 152. See Stand Up For California! v. United States Dept. of Interior, 879 F.3d 1177, 1181–​83 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 786 (2019); Cachil Dehe Band of Wintun Indians of Colusa Indian Community v. Zinke, 889 F.3d 584, 594–​95 (9th Cir. 2018). 153. See Cherokee Nation v. Bernhardt, 936 F.3d 1142 (10th Cir. 2019), cert. denied, 141 S. Ct. 130 (2020); County of Amador v. United States Department of the Interior, 872 F.3d 1012 (9th Cir. 2017), cert. denied, 139 S. Ct. 64 (2018); State of New York v. Acting Eastern Regional Director, B.I.A., 58 I.B.I.A. 323 (June 11, 2014). The process of obtaining formal recognition as an Indian tribe is explained in Chapter XIV, Section E. 154. The federal courts upheld the Secretary’s decision to place land into trust for the Cowlitz Tribe. See Confed. Tribes of the Grande Ronde Community of Oregon v. Jewell, 830 F.3d 552 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 1433 (2017). 155. See Final Determination for Federal Acknowledgment of the Mashpee Wampanoag Indian Tribal Council Inc. of Massachusetts, 72 Fed. Reg. 8007-​01 (Feb. 22, 2007). A challenge to the recognition was rejected. See Littlefield v. U.S. Dept. of Interior, 85 F.3d 635 (1st Cir. 2023). 156. See, e.g., Connecticut v. Babbitt, 228 F.3d 82, 94 (2d Cir. 2000), cert. denied, 532 U.S. 1007 (2001). 157. See The BIA’s Land-​into-​Trust Process & Why Changes Will Never Satisfy the Critics, Turtle Talk Blog (July 24, 2017), available at https://​tur​tlet​alk.blog/​2017/​07/​24/​ the-​bias-​land-​into-​trust-​proc​ess-​why-​chan​ges-​will-​never-​sati​sfy-​the-​crit​ics/​. 158. Match-​E-​Be-​Nash-​She-​Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012).

Federal Power over Indian Affairs  129 159. After the Supreme Court’s decision in Patchak, Congress passed a law authorizing the very land-​into-​trust transfer that Mr. Patchak was seeking to prevent, an action the Supreme Court held was constitutional. See Patchak v. Zinke, 138 S. Ct. 897 (2018). 160. See Club One Casino, Inc. v. Bernhardt, 959 F.3d 1142 (9th Cir. 2020), cert. denied, 141 S. Ct. 2792 (2021); Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23 (6th Cir. 2008), cert. denied, 555 U.S. 1137 (2009); South Dakota v. U.S. Department of Interior, 487 F.3d 548, 552 (8th Cir. 2007). 161. See Wyoming v. United States Env’tl Protection Agency, 875 F.3d 505 (10th Cir. 2017); Hackford v. Utah, 845 F.3d 1325, 1328 (10th Cir. 2017); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998). 162. See Seymour v. Superintendent, 368 U.S. 361 (1962); Yankton Sioux Tribe v. Podhrasky, 606 F.3d 994, 1010–​15 (8th Cir. 2010), cert. denied, 564 U.S. 1019 (2011). The subject of “Indian country” is discussed in Chapter II, Section C. 163. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2462, 2469–​70 (2020); Solem v. Bartlett, 465 U.S. 463, 470 (1984). 164. See McGirt, 140 S. Ct. at 2462–​63, 2469–​70; Nebraska v. Parker, 136 S. Ct. 1072 (2016); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998); Oneida Nation v. Village of Hobart, 968 F.3d 664, 675–​76 (7th Cir. 2020); Podhradsky, 606 F.3d at 1007–​10. For a discussion of the Supreme Court’s analysis in these cases, see Matthew L.M. Fletcher, Muskrat Textualism, Nw. U. L. Rev. 963, 1003–​10 (2021). 165. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1976); Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010), cert. denied, 564 U.S. 1046 (2011) (disestablishment); Wisconsin v. Stockbridge-​Munsee Community, 554 F.3d 657 (7th Cir. 2009) (disestablishment); Yellowbear v. State, 174 P.3d 1270 (Wyo. 2008) (diminishment). 166. See Mashpee Wampanoag Tribe v. Bernhardt, 2020 WL 3034854 (D.D.C. June 5, 2020), appeal dism’d, 2021 WL 1049822 (D.C. Cir. 2021). 167. Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 86 (1977) (citation omitted). 168. Id. See also Sizemore v. Brady, 235 U.S. 441 (1914); Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976). 169. As discussed in Chapter XVII, Section C, lawsuits can be filed against federal officials who violate their delegated duties or their trust responsibilities. 170. 108 Stat. 4239, codified as 25 U.S.C. §§ 4001 et seq. For implementing regulations, see 25 C.F.R. pt. 1200. 171. See 25 C.F.R. § 1200.18. 172. See United States v. Lara, 541 U.S. 193, 200–​01 (2004). 173. 1 Stat. 137, now codified as 25 U.S.C. §§ 177, 261–​64. 174. 25 U.S.C. § 264. See Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971). 175. 25 U.S.C. § 261. 176. 25 U.S.C. § 262. 177. 25 C.F.R. pt. 140. 178. Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971); Rosebud Sioux Tribe v. United States, 714 F. Supp. 1546 (D.S.D. 1989). 179. 25 U.S.C. § 177.

130  The Rights of Indians and Tribes 180. See United States v. Forty-​Three Gallons of Whiskey, 93 U.S. 188 (1876); Perrin v. United States, 232 U.S. 478 (1914). 181. See United States v. Mazurie, 419 U.S. 544 (1975). 182. 18 U.S.C. § 1161. 183. Now codified as 18 U.S.C. § 1153. 184. Ex parte Crow Dog, 109 U.S. 556 (1883). 185. 16 Cong. Rec. 936 (1865) (remarks of Rep. Cutcheon), cited in Keeble v. United States, 412 U.S. 205, 211–​12 (1973). 186. See United States v. Kagama, 118 U.S. 375, 382–​83 (1886); United States v. Sandoval, 231 U.S. 28, 45–​46 (1913).

VI Tribal Self-​Government Indian tribes are sovereign nations possessing sovereign powers. As the Supreme Court recently confirmed, quoting its 1832 decision in Worcester v. Georgia,1 “Indian tribes [are] distinct, independent political communities exercising sovereign authority.”2 Indian tribes, the Court has recognized, “possess inherent sovereign authority over their members and territories.”3 It has been this way since time immemorial.

A.  THE SOURCE AND LIMITS OF TRIBAL POWER What is the source of tribal power?

The source of an Indian tribe’s power is its people. Indian tribes have the inherent right to govern themselves, a right they have always possessed.4 As a federal appellate court stated in 2002: “Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the United States, which they predate. [Indian tribes are] qualified to exercise powers of self-​government . . . by reason of their original tribal sovereignty.”5 The powers that tribes possess are not delegations of authority from the United States; tribes possess sovereign powers due to their historic status as independent nations.6

What are the limits of tribal power?

The Supreme Court has consistently held that, although Indian tribes have inherent sovereign powers, “Congress has plenary authority to limit, modify or eliminate the powers of local self-​government which the tribes otherwise possess.”7 Tribal sovereignty, the Supreme Court stated in 2014, “rests in the hands of Congress.”8 According to the Supreme Court, Congress could abolish all tribal governments and all Indian reservations if it wanted to. “The sovereignty that Indian tribes retain,” the Court has stated, “is of a unique and limited character. It exists only at the sufferance of Congress and is subject The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0006

132  The Rights of Indians and Tribes to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers.”9 This principle of federal authority—​known as the “plenary power doctrine”—​is ultimately based, as explained in the previous chapter, on the superior military power of the federal government, although the Supreme Court states that it is based on the U.S. Constitution. The plenary power doctrine has been extensively criticized on both legal and moral grounds.10 Critics of the doctrine assert that Indian tribes are as sovereign today as they were prior to the arrival of Europeans, and that the United States has no right to limit their powers.11 Scholars of history report that none of the authors of the Constitution, written in 1787, believed that the federal government possessed plenary power over Indian tribes.12 To the contrary, these scholars assert, the Constitution was designed to preserve tribal sovereignty.13 The Constitution does not place Indian tribes under the authority of either the state or federal governments. Rather, as illustrated by the Commerce Clause, the Constitution merely identifies Congress as being the branch of the federal government with authority to engage in commerce “with foreign nations” and “with the Indian tribes.”14 The Framers regarded Indian tribes as independent nations, which explains why the United States entered into treaties with them, as it did with other independent nations.15 Only decades after 1787 did Congress assert, and the Supreme Court approve, plenary power over Indians. The plenary power doctrine, critics contend, reflects an imperialist, racist, and colonialist mentality that has no basis in law or justice.16 The federal government strenuously disagrees with that contention and believes it may assert plenary power over every facet of Indian affairs. According to the Supreme Court, Indian tribes have two types of limits on their governmental powers: express and implied. Congress has expressly prohibited tribes from exercising certain powers, such as selling tribal land without the federal government’s permission.17 In addition, “Indian tribes have lost many of the attributes of sovereignty” by implication, the Supreme Court has held, due to their “dependent status,” that is, by virtue of their “incorporation into the United States.”18 According to the Court, the federal government has acquired “overriding sovereignty” throughout the United States, which necessarily places tribal powers under the control of the federal government.19 Those tribal powers that have not been extinguished by Congress or lost by implication, however, remain within the tribe’s sovereign authority to exercise. A court must “not lightly assume that Congress [intended] to undermine Indian self-​government,” and any uncertainty as

Tribal Self-Government  133 to whether Congress has diminished tribal sovereignty must be resolved in favor of the tribe.20 Indian tribes occupy a unique position in U.S. society. The Supreme Court has described Indian tribes as “quasi-​sovereign” and “semi-​independent,”21 possessing “attributes of sovereignty over both their members and their territory,” while also subject to the plenary power of Congress.22 The assertion of hunting, fishing, and water rights by certain tribes, as well as the financial success of some tribal gaming casinos, have prompted many non-​Indians to urge Congress to limit tribal rights even further than it has already. Whether Congress will bow to this pressure remains to be seen. For the past several decades, Congress has realized that it is good for the country and for the tribes to promote tribal self-​government and enhance tribal economic opportunities. As one federal court recently noted, the “paramount federal policy” toward Indian tribes today is the development of “strong self-​ government.”23 Indeed, many Indian tribes are stronger today than at any time in the past two hundred years, as a result of the economic growth taking place on many reservations and increased federal assistance.24

Are tribal powers limited by the U.S. Constitution?

No. The Supreme Court held more than a century ago that the Constitution does not limit (or even apply to) the exercise of tribal powers.25 The right of Indian tribes to govern themselves predates the Constitution, and nothing in the Constitution requires Indian tribes to conform their actions to its provisions. Tribal governments, therefore, may engage in activities that would violate the Constitution if undertaken by the federal or state governments.26

B.  THE SCOPE OF TRIBAL POWERS Indian tribes today have vast powers. As Chief Justice Roberts wrote for the Supreme Court in 2008: “As part of their residual sovereignty, tribes retain power to legislate and to tax activities on the reservation, including certain activities by nonmembers, to determine tribal membership, and to regulate domestic relations among members. They may also exclude outsiders from entering tribal land.”27 Tribal governments have the same powers as the federal and state governments to regulate their internal affairs, with a few exceptions. The remainder of this chapter examines the seven most important

134  The Rights of Indians and Tribes areas of tribal authority: (1) the right to form a government; (2) the right to determine tribal membership; (3) the right to regulate tribal land; (4) the right to exercise criminal jurisdiction; (5) the right to exercise civil jurisdiction; (6) the right to regulate domestic relations; and (7) the right to engage in and regulate commerce and trade.

1.  The Right to Form a Government Does an Indian tribe have the right to form a government?

Yes. The right to form a government is the first element of sovereignty. Indian tribes have this right as part of their inherent sovereign powers.28 Some European settlers mistakenly believed that Indian tribes lacked formal governments. In truth, tribal governments were both complex and well-​organized “but they differed so radically from the forms used by the Europeans that few non-​Indian observers could understand them,” and Europeans were “blinded” by their prejudices.29 Indian tribes “had highly complicated forms of government” centuries before the arrival of Europeans.30 In fact, the League of the Iroquois (also called the Iroquois Confederacy), a confederation of the six most powerful Indian tribes in the Northeast, had a written constitution prior to the fifteenth century, and aspects of that constitution—​including such democratic concepts as initiative, referendum, and the right to vote—​appear to have “provided a model for the framing of the United States Constitution.”31 The right to form a government includes the right to establish the qualifications for tribal office, determine how tribal leaders are selected, and determine what powers each official will have.32 A tribe can require that candidates for tribal office be enrolled in the tribe and speak the tribe’s language, and the tribe can disqualify for office persons who have engaged in criminal or other misconduct.33 Also, each tribe has the power to determine who may vote in tribal elections.34 Each tribe also has the right to choose its own name.35 Congress claims that, as with all other tribal powers, a tribe’s ability to form and operate a government is subject to the plenary authority of Congress.36

What types of governments do Indian tribes have?

Tribal governments vary. Differences exist in the structure of government, election procedures, requirements for membership, judicial systems, and rights afforded tribal members.

Tribal Self-Government  135 Many tribes have divided their governments into the same three branches (known as “separation of powers”) as the federal and state governments: legislative (the tribal council), executive (the chairperson/​president), and judicial (the tribal courts). Tribes are not required to separate the powers of government in that fashion, or provide those branches with the same authority that the federal and state governments do, and some do have different systems.37 For instance, the Constitution of the Hopi Tribe in Arizona vests primary authority in the tribal council and grants limited powers to the executive and judicial branches.38 The nature of tribal government was dramatically altered by the Indian Reorganization Act of 1934 (IRA)39 and by similar laws passed in 1936 applicable to tribes in Alaska and Oklahoma.40 As discussed in Chapter I, the IRA ended the destructive policies of the General Allotment Act of 1887 (GAA) and provided a mechanism by which Indian tribes could change their governmental structure. Following passage of the IRA, the Secretary of the Interior drafted model constitutional provisions that the Secretary believed would help tribes operate an effective government, and circulated them to Indian tribes. Federal agents went to many reservations to promote the adoption of these provisions.41 As required by the IRA, elections were held on each reservation to determine whether the tribe wished to restructure its government pursuant to the Act. To induce tribes to accept the IRA, Congress created a program under which millions of dollars of federal funds could be loaned to tribes that adopted IRA constitutions.42 The IRA was initially accepted by approximately 180 tribes and rejected by fewer than 90.43 Today, nearly 40 percent of the 574 federally recognized tribes operate under IRA constitutions.44 The IRA allowed each tribe to draft a constitution giving the tribe specific powers. The Secretary of the Interior was directed by the Act to approve constitutions that created a tribal council possessing the authority to negotiate contracts with federal, state, and local governments; prevent the disposition of tribal property without the tribe’s permission; and employ legal counsel.45 In addition, the Secretary encouraged tribes to give their tribal councils the power to borrow money and pledge tribal property as security for loans; to levy and collect taxes and issue licenses; to establish a tribal court system and enact a criminal code; to remove from the reservation nonmembers whose presence was injurious to the tribe; and to create subordinate tribal organizations for economic, educational, or other purposes. In order to qualify as an IRA tribe, the tribe’s constitution had to be approved by the Secretary of the Interior.46 The Secretary required each

136  The Rights of Indians and Tribes constitution to contain a provision subjecting every tribal law and constitutional amendment to secretarial approval before it could go into effect, even though nothing in the IRA imposed that limitation on tribal authority.47 This requirement prompted many tribes to reject the IRA. (In 2015, the Secretary notified IRA tribes that they could amend their constitutions to delete the requirement of secretarial approval of their laws and constitutional amendments, and most IRA tribes have done so.)48 The IRA “signaled a return to self-​government for Tribal Nations and the relaxing of the grip of federal authority by U.S. Indian agents in tribal communities.”49 The Act assisted all tribes by ending the government’s policy under the GAA of allotting tribal land to tribal members and selling “surplus” tribal land to non-​Indians. The IRA did have shortcomings, however. For one thing, constitutions adopted under the IRA typically placed tribal power in the hands of a few people and eliminated traditional forms of governing, which sometimes led to internal strife between those who wanted change and those who adhered to custom and tradition.50 Moreover, the requirement that tribal constitutions and laws be approved by the Secretary allowed federal officials to meddle in and influence tribal affairs.51 Especially in the years immediately following passage of the IRA, many elected tribal officials were untrained and unfamiliar with this new governmental structure; as a result, they were vulnerable to bureaucratic domination by the Bureau of Indian Affairs.52 Today, political disharmony exists on many reservations, just as within our national government. Even if some tribes are struggling to adopt a stable government, this does not mean that federal officials should intervene or that a “crisis” exists. After all, as first written, the U.S. Constitution legalized slavery and denied women the right to vote, and it took great struggles to change these policies. Tribal governments should be afforded the latitude to make changes and adjustments on their own.

Are tribal elections subject to federal review?

Unless Congress has consented to intervention by federal officials, tribes have the exclusive right to determine how tribal elections will be conducted.53 “The right to conduct an election without federal interference is essential to the exercise of the [tribe’s] right to self-​government.”54 There are only two situations under current federal law in which federal officials may exert some control over tribal elections. Both were discussed in Chapter V, Section B(2), and are briefly summarized here. First, when

Tribal Self-Government  137 disputes arise within a tribe as to which person won the tribal election, federal officials may recognize a temporary leader until the tribe resolves the dispute under tribal law. This enables the federal government to carry out government-​to-​government relations until the tribe resolves the controversy.55 The tribe may ultimately select a different person than the one selected by federal officials.56 Second, the Secretary of the Interior is permitted to oversee a tribal election to the extent permitted by tribal law. IRA tribes were required to place in their constitutions a provision allowing all tribal elections to be reviewed by the Secretary.57 Although IRA tribes were allowed to remove that requirement, some tribes have not done so and, in those situations, federal oversight is authorized.58

What types of court systems do tribes have?

Indian tribes had systems to resolve disputes and maintain law and order long before Europeans arrived in North America. These tribal systems differed greatly from European systems. For instance, tribes handled misconduct of tribal members primarily through the loss of tribal privileges, tribal scorn, or the payment of restitution to an injured party rather than by imprisonment: most tribes favored restoration and healing rather than retribution and punishment.59 Banishment was usually reserved for extreme misconduct, although on occasion a serious offense might be avenged by the injured party’s family.60 A few tribes “used corporal and even capital punishment to control conduct.”61 By the late nineteenth century, federal officials had embarked on a mission to disrupt, if not destroy, tribal governments and force Indians to assimilate into white society. This included the creation of a Court of Indian Offenses on many reservations. These courts were administered by the tribes but were under the control of federal agents using rules created by the Secretary of the Interior and published in the Code of Federal Regulations (CFR).62 These “CFR courts” were an integral part of the assimilationist agenda and were, according to Professor Angelique EagleWoman, “tools of oppression.”63 The constitutions enacted by the IRA tribes expressly authorized those tribes to establish courts and to enact law-​and-​order codes. The courts created in this fashion are known as “tribal courts.” Many non-​IRA tribes developed similar courts, which today are also called “tribal courts.” Some three hundred tribes now have tribal courts,64 and only a few CFR courts remain.65 Tribal courts, as the Supreme Court has noted, “play a vital role in tribal

138  The Rights of Indians and Tribes self-​government, and the Federal Government has consistently encouraged their development.”66 Probably no two tribal court systems are the same. They vary based on the needs and culture of the tribe, the size of the tribe, the tribe’s wealth, the importance of traditions, and the needs of the community. Many tribes have multileveled judicial systems, with traffic courts, separate courts for criminal and civil cases, and trial and appellate courts.67 The courts of the Navajo Nation process over forty thousand cases a year and publish their rulings in official volumes of court decisions, as do the state and federal courts. Professor Matthew L.M. Fletcher, who has studied the history and development of tribal courts, recently wrote that each year “tribal justice systems grow in numbers, quality, and sophistication.”68 Fletcher reports, however, that many tribal courts suffer from inadequate funding, resulting in inadequate staffing, lack of access to electronic legal research, and lack of access to decisions of other tribal courts.69 In addition, “many tribal judges face overt and covert attacks on their independence” from the tribal council, although such retaliation is diminishing.70 Of most importance, however, is the fact that tribal courts administer fair and impartial justice. In 1968, Congress passed the Indian Civil Rights Act (ICRA)71 to ensure that persons appearing in a tribal court will be afforded the same basic civil rights and protections that the U.S. Constitution requires of the state and federal courts. A study in 2008 found that 95 percent of tribal courts interpret the ICRA in a manner consistent with Anglo-​American law.72 As one federal court recently noted, “nearly five decades of tribal cases applying ICRA show that tribal courts protect the rights of both member and nonmember litigants in much the same way as do federal and state courts.”73 A growing number of tribal courts seek to balance Anglo-​American principles with tribal custom and tradition.74 Recently, for instance, the Navajo Nation passed a law requiring tribal courts to apply, as the Navajo Supreme Court characterized it, “traditional Navajo philosophy and values to laws governing the disposition of Navajo Nation children.”75 In 1967, the Navajo legislature adopted its own Bill of Rights.76 Similarly, courts of the Saginaw Chippewa Tribe of Michigan are expected to decide controversies in accordance with that tribe’s “cultural norms of integrity,” one of which promotes “mutual respect.”77 The appellate court for the Little River Band of Ottawa Indians in Wisconsin has held that tribal judges should resolve controversies consistent with “tribal customs and traditions.”78 Similarly, the appellate court for the Sault Ste. Marie Tribe of Chippewa Indians invalidated a decision

Tribal Self-Government  139 made by tribal officers on the grounds that their decision was inconsistent with Anishinaabe teachings of kindness, wisdom, and respect.79 Some tribal courts are authorized to convene a panel of elders to help decide disputes.80 A number of tribes have developed peacemaker courts, sometimes called wellness courts, that use restorative justice and traditional dispute resolution practices, which often involve convening all parties for a talking session that focuses on healing rather than adversarial confrontation.81 Each tribe sets its own eligibility requirements for judges, which vary from tribe to tribe. Some tribes require that judges be tribal members, and some require that they be state-​licensed attorneys. Some tribes elect their judges, while on other reservations they are appointed by the tribal council.82 Each tribe also determines who may appear as an attorney in tribal court. Some tribes, such as the Navajo Nation and the Oglala Sioux Tribe, have their own bar examinations that lawyers must pass before they may appear in tribal court. An important decision that tribes with court systems face is whether to create an independent judiciary possessing the power of judicial review, that is, the authority to declare actions taken by the other two branches of government a violation of law. In 1803, the Supreme Court declared in Marbury v. Madison83 that federal courts have the power of judicial review, even though that power is not expressly conferred by the U.S. Constitution. Some tribal constitutions expressly confer the power of judicial review on their courts. The Constitution of the Rosebud Sioux Tribe of South Dakota confers on tribal courts “the power to review and overturn tribal legislative and executive actions for violations of this Constitution or of the Federal Indian Civil Rights Act of 1968.”84 Some tribal courts, citing Marbury v. Madison, have held that the power of judicial review is presumed.85 A survey conducted by the American Indian Law Center in 2000 found that most tribal courts—​but not all—​were independent branches of tribal government authorized to exercise the power of judicial review.86

Must a tribe have an appellate court?

No. Many tribes have an appellate court, but there is no federal law that requires a tribe to create one. On some reservations, the tribal council serves as the appellate court.87 Some tribes have joined together to create one intertribal appellate court. For instance, the Southwest Intertribal Court of Appeals (SWITCA) was created by more than twenty tribes to hear appeals arising from tribal courts on those reservations.88

140  The Rights of Indians and Tribes

2.  The Right to Determine Tribal Membership Does a tribe have the right to determine who qualifies for membership in the tribe?

Yes. Indian tribes have the inherent authority to determine the qualifications for tribal membership. If tribes lost this power, they could not control their future. The Supreme Court has recognized that the right of each tribe “to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.”89 Tribal authority to determine membership includes the power to take membership away from (“disenroll”) a person.90 It also includes the right to adopt persons into the tribe and determine which benefits of membership they will have.91 Congress has the power to limit tribal authority over membership determinations,92 but unless Congress acts, each tribe enjoys the exclusive right to determine tribal membership for tribal purposes.93

What are the qualifications for tribal membership?

Tribes usually base eligibility for membership on lineal descent from a tribal member, often requiring that the applicant possess a minimum fraction (“quantum”) of tribal blood. The most common blood quantum requirement is one-​fourth. Some tribes, such as the Mohegan Tribe of Connecticut94 and the Cherokee Nation of Oklahoma,95 simply require lineage to someone whose name appears on the tribe’s original membership roll. The Constitution of the White Mountain Apache Tribe in Arizona requires applicants for membership to be at least one-​half Indian and at least one-​ quarter White Mountain Apache.96 The increase in mixed marriages has caused many tribes to reduce their blood quantum for membership.97 Reducing a tribe’s blood quantum for membership can be controversial. Supporters of a high blood quantum requirement often argue that reducing the standard risks losing tribal traditions and customs.98 Tribes often have qualifications for membership apart from blood quantum. Some tribes require residence on the reservation for a certain length of time, residence at the time of application, or that the application be submitted prior to a certain age of the applicant. The Sault Ste. Marie Tribe of Chippewa Indians in Michigan, with over forty thousand members, only permits enrollment applications from persons twenty-​one years of age or younger.99 For a time, the Santa Clara Pueblo in New Mexico had a patrilineal

Tribal Self-Government  141 blood quantum requirement of 25 percent. Membership was denied to anyone whose father had no tribal blood, even if the mother was a full-​blooded member.100 The tribe is no longer patrilineal.101

May persons denied membership into, or disenrolled from, an Indian tribe challenge the tribe’s decision in court?

Persons denied membership into a tribe, or disenrolled from a tribe, have requested that the Department of the Interior (DOI) reverse those decisions, and some have sought reversal in a federal court. Those challenges have been successful in only two narrow circumstances. First, in most situations, federal courts have no authority (they “lack jurisdiction”) to hear these cases—​no matter how unjust the tribe’s actions appear to be—​because Congress has not authorized federal courts to review tribal membership decisions.102 But a federal court of appeals has held that if a tribe both disenrolls and banishes a tribal member from the reservation, then federal courts have jurisdiction to review the decision under authority granted by Congress in the Indian Civil Rights Act.103 Second, the DOI has issued a regulation stating that the DOI may review tribal membership decisions if a tribal law or the tribe’s constitution authorizes it, which some do.104 Federal courts have upheld the DOI’s review of membership decisions in that situation.105 Challenges to tribal enrollment decisions often may not be heard in tribal court, either. A tribal court can only hear those cases that the tribe’s legislature has authorized it to hear. Many tribal courts have not been authorized to hear lawsuits filed against the tribe or its officials, including suits challenging enrollment decisions,106 although some have.107 In recent years, nearly eleven thousand tribal members have been disenrolled from dozens of tribes.108 Many of these disenrollments occurred in tribes that operate profitable casinos whose remaining members would then receive a larger share of the casino profits. Some disenrollees had been members of the tribe since birth, as had their parents and grandparents. The Pechanga Tribe in California disenrolled more than three thousand people—​nearly a fourth of its membership—​soon after opening its casino.109 A federal appellate court expressed sympathy for those ousted from the tribe but held that the court lacked jurisdiction to review the issue.110 The Picayune Rancheria of Chukchansi Indians of California expelled nearly half of its eighteen hundred members following the opening of its casino.111

142  The Rights of Indians and Tribes Such practices create conflict within the tribe as well as suspicion and concern throughout Indian country, and have generated unfavorable public opinion.112 A number of staunch advocates of tribal sovereignty have urged tribes not to disenroll members and have recommended that the DOI punish tribes that do this.113 Said one Native advocate, Gabriel Galanda, “To be clear: Disenrollment is not an exercise of tribal sovereignty or self-​ determination. Disenrollment is instead an exercise of federal removal, assimilation and termination policies, which tribes are now inflicting upon themselves.”114 To Galanda, disenrollment is “Indian killing the Indian.”115 A tribal chairman recently warned that tribes should disenroll a member “only in the most extreme cases” because the entire tribe suffers when disenrollment occurs. He further warned that mass disenrollment could prompt Congress to authorize federal courts or the DOI to review tribal membership decisions, “an idea almost too scary to consider.”116

May a person become a member of two Indian tribes?

Indians who have bloodlines from two tribes may qualify for membership in both. Some tribes require that an applicant for membership already enrolled in another tribe must agree to withdraw that membership after admission into the new tribe.

3.  The Right to Regulate Tribal Land At least three types of land may exist on an Indian reservation: (1) land held by the federal government for the benefit of the tribe or a tribal member (trust land), (2) land owned privately by the tribe or by a member (fee or deeded land), and (3) fee land owned by a nonmember. As explained in Chapter II, Section C, all land within the boundaries of an Indian reservation is “Indian country,” including fee land owned by nonmembers.

Does an Indian tribe have the right to regulate activities occurring on tribal land?

In Merrion v. Jicarilla Apache Tribe (1982),117 the Supreme Court confirmed that Indian tribes have the right to regulate activities occurring on tribal land as “a fundamental attribute of [their] sovereignty . . . unless divested of [that power] by federal law or necessary implication of their dependent status.”118 In Merrion, the Court upheld the right of an Indian tribe to tax the value of

Tribal Self-Government  143 oil and gas removed from tribal trust land by a non-​Indian company operating under a contract with the tribe. The power to tax activities occurring on tribal land, the Court explained, is derived from the tribe’s inherent right “to tribal self-​government and territorial management.”119 Indian tribes have the inherent right to regulate hunting and fishing,120 and the use and quality of water, on tribal land;121 to eject trespassers from tribal land;122 to tax Indians and non-​Indians who use tribal land for farming, grazing, or other purposes;123 to protect tribal land from destruction or spoilation;124 and to regulate commercial activities on tribal land,125 such as by requiring non-​Indians who wish to engage in commerce with the tribe and its members to purchase a tribal business license.126 In addition, as part of its sovereign powers, an Indian tribe may take private land for tribal use provided that adequate compensation is paid to the owner (the power of eminent domain),127 and require that tribal members who own automobiles on the reservation register them with the tribe and display a tribal license plate.128

In what ways has Congress restricted the right of tribes to regulate activities occurring on tribal land?

Congress has restricted the ability of Indian tribes to sell their own fee land by requiring federal consent to any such sale. Even greater restrictions have been placed on the tribe’s ability to sell, use, or lease their interests in trust land: the United States, which holds the title, must approve most uses of trust land.129 Typically, however, federal officials allow the tribe to determine how its land will be used.130 A few laws limit the ability of tribes to engage in certain activities on the reservation. The Indian Gaming Regulatory Act of 1988, for example, places some restrictions on tribal authority to engage in gambling on the reservation.131 Other laws, however, confirm or enhance tribal powers, such as the Clean Water Act,132 which authorizes Indian tribes in certain situations to protect on-​reservation water quality by regulating activities of persons outside the reservation who are polluting water flowing to the reservation.133 Similar provisions exist in the Clean Air Act134 and the Safe Drinking Water Act.135

What kinds of property can tribes own?

Indian tribes can own the same kinds of property that non-​Indians can own, both real and personal. Real property consists of land and items attached to

144  The Rights of Indians and Tribes or found within the land, such as buildings, timber, and minerals. Personal property consists of all other kinds of property, such as automobiles, furniture, clothing, cattle, bank accounts, and other movable property. In addition, Indian tribes can have two property interests in land that non-​ Indians do not have: trust land and Indian title land. Trust land is land that has been set aside for the exclusive use and benefit of a tribe, but title is held by the United States. The tribe may use, lease, mortgage, or sell the tribe’s interests in trust land only if the federal government consents.136 Indian title land is land that has always been a part of a tribe’s ancestral homelands. A tribe has the right to continue using this land until Congress removes its right to do so. This right of continued occupancy, known as Indian title, is discussed in Chapter II, Section D.

How have Indian tribes obtained their interests in land?

There are many ways in which Indian tribes have obtained interests in land, including by treaty, federal statute, executive order, purchase by the tribe, purchase by the federal government, donation, action of a foreign nation, and aboriginal possession. Initially, the most common way the federal government recognized a tribe’s right to land was by treaty. However, Congress passed a law in 1871 that prohibited the federal government from entering into any additional treaties with Indian tribes.137 After 1871, many Indian reservations were created by an executive order issued by the President of the United States. Most of these executive orders were later confirmed by Congress, making the reservations as valid as those created by Congress.138 In 1919, Congress passed a law prohibiting the President from creating any additional Indian reservations. Today, only Congress can create a reservation.139 Of the nearly fifty-​six million acres of land now in tribal possession, about twenty million were set aside by treaty and twenty-​three million by executive order, with the rest created mostly by federal statute.140 The Secretary of the Interior is authorized by Congress to purchase land for tribes with federal funds appropriated for that purpose.141 Some reservations have been created, and many have been expanded, through these purchases. The Secretary is also authorized by federal law to take land that a tribe has purchased in fee status and convert that land into trust status, whether the land is located on142 or off143 the reservation (“land-​into-​trust” or “fee-​into-​ trust”).144 This authority, and the controversy the exercise of it has spawned, are discussed in Chapter V, Section B(5). Many tribes, especially those with

Tribal Self-Government  145 profitable casinos, have purchased land worth millions of dollars and added it to their existing reservations through this process. Before the United States became a nation, many Indian tribes received land grants from the foreign countries occupying North America, including Spain, Mexico, France, and Great Britain, and some of these interests were later ratified by the United States.145 The Pueblos of New Mexico hold the most significant of these grants, which they received from Spain and Mexico.146

What are the advantages and disadvantages of having tribal land in trust status?

The greatest disadvantage of having tribal land in trust status is that the tribe lacks full control over it because the federal government holds title to it. Everything a tribe may want to do with trust property—​sell, lease, mortgage, or develop it—​requires federal approval, a constant source of aggravation to many tribes.147 The advantages, however, outweigh the disadvantages in most instances. Because the federal government holds the title, trust land is immune from state tax and zoning laws148 and it may not be seized under the state’s power of eminent domain.149 In addition, trust land normally qualifies as Indian country, and the state therefore lacks general criminal and civil jurisdiction over Indian activities occurring on trust land.150 These advantages are so great that, when a tribe purchases private land, it usually asks the Secretary of the Interior to transfer it into trust status, a conversion authorized by federal law.151

If a tribe sells or leases tribal land in violation of federal restrictions, is the transfer valid?

No. One of the first laws passed by Congress, the Indian Nonintercourse Act of 1790 (INA),152 requires the federal government to approve the transfer of any interest in tribal land, whether trust or non-​trust. Without that approval, the transfer is void and the agreement can be rescinded by the United States,153 by the tribe,154 or by any tribal member whose rights are affected.155 In one case, an interest in tribal land that a railroad had purchased a century earlier was rescinded because Congress had not consented to the transfer.156 The INA was intended to protect tribes from unscrupulous land grabbers who might falsely claim that tribal leaders had sold them tribal land.157 During the past fifty years, tribes in several states, including Maine,

146  The Rights of Indians and Tribes Massachusetts, Connecticut, Rhode Island, and New York, filed suit in an effort to recover land they claimed had been taken from them without the federal government’s consent, thus casting doubt on the legality of these transfers and the ownership of millions of acres of land.158 In 1980, rather than allow lawsuits filed by two tribes in Maine to proceed further, Congress entered into settlements with them in which the tribes relinquished their land claims in exchange for $81.5 million, which allowed the tribes to purchase 305,000 acres of land in the state.159 Congress has reached compromises concerning other tribal land claims, as well.160

What is communal property?

Few Indian tribes, if any, believed in individual ownership of land. Any land controlled by the tribe belonged to the entire community. This concept of land ownership, known as communal property, was a guiding principle of Indian life: everyone worked together to harvest what they could from the land, and shared what they acquired. Anglo-​American values, in contrast, glorify the private ownership of property and the accumulation of individual wealth. In order to undermine tribal governments and encourage Indians to assimilate into white society, Congress passed the General Allotment Act (GAA) in 1887.161 The GAA was designed to destroy tribal communal property by issuing parcels of land (“allotments”) to tribal members and selling “surplus” tribal land to white farmers and ranchers. The hope was that Indians would emulate their new neighbors, become farmers and ranchers, and abandon their tribal ways. The GAA was a disaster for tribes, however, as most tribal members sold their allotments to non-​Indians or lost them when they could not pay the state’s real estate taxes. Congress repealed the GAA in 1934, but by then two-​thirds of all reservation lands had passed from tribal ownership into the hands of non-​Indians. For instance, of the sixty-​five thousand acres of reservation trust land belonging to the Oneida Nation in Wisconsin in 1887, only fifteen thousand acres remained in trust status forty years later.162 The concept of communal property remains intact on many reservations, but the presence of so many individually owned parcels of land, most of it owned by non-​Indians, has undermined the concept of tribal communal property, a change many Indians deeply regret. Today, largely as a result of the GAA and similar laws that applied to particular reservations, “most of those who live on Indian reservations are non-​Indians.”163 The world is being negatively impacted by climate change. Carbon emissions, produced predominantly by the wealthier nations, is the main

Tribal Self-Government  147 culprit.164 Moreover, people of color, including Indigenous communities—​ who are not primarily responsible for the problem—​are suffering a greater share of the ill-​effects of climate change and have the fewest resources to combat or respond to those effects.165 Many commentators view this situation as environmental racism and institutional injustice.166 Indeed, on occasion, the federal government has deliberately spared predominantly white communities from suffering an environmental harm and selected an Indigenous community instead.167 It will take the global village to address climate change. Indigenous communities have little control over this process. Many Indian tribes, however, have lands suitable for producing solar and wind energy and can be part of the solution if the government or private companies will help finance, and lend technical assistance to, these projects.168 Considerable thought must be given, and efforts made, to assist Indigenous communities prepare for and respond to the harmful effects of climate change and its impact on their land, water, food, and access to affordable energy. A good first step was recently taken by the Biden administration by giving grants totaling nearly $200 million to assist certain tribes impacted by rising sea levels to relocate, to mitigate damage caused to other tribes by climate change, and to allow still other tribes to conduct environmental risk assessments.169

4.  The Right to Exercise Criminal Jurisdiction Does an Indian tribe have the right to exercise criminal jurisdiction over tribal members?

Yes. Indian tribes, like other nations, have the inherent right to maintain law and order. This includes the power to create a police force, establish courts and jails, and punish tribal members who violate tribal law.170 A tribe’s “right of internal self-​government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions.”171 The tribe’s inherent power to prosecute crimes committed by tribal members applies to tribal lands both inside and outside the reservation.172

Does a tribe have the right to exercise criminal jurisdiction over non-​Indians?

In most circumstances, no. In Oliphant v. Suquamish Indian Tribe (1978),173 the Supreme Court held that although Indian tribes “retain elements of

148  The Rights of Indians and Tribes quasi-​sovereign authority,” they are “dependent” nations under federal control. Exercising criminal jurisdiction over non-​Indians, the Court said, is “inconsistent with their status” unless Congress expressly confers or restores that authority.174 Until 2013, non-​Indians who violated tribal law on an Indian reservation were completely immune from prosecution in tribal court. In 2013 and again in 2022, however, Congress amended the Violence Against Women Act175 to restore the right of tribes to arrest and prosecute non-​Indians who commit certain crimes, including sexual assault and domestic violence, against Indians on the reservation.176 Although tribes lack the authority to prosecute non-​Indians in most situations, they retain the inherent power to exclude them from the reservation.177 “[A]‌hallmark of Indian sovereignty is the power to exclude non-​ Indians from Indian land.”178 Tribes also have the inherent right to investigate criminal activity occurring within the reservation, in order to protect the health and safety of tribal members. In 2021, in United States v. Cooley,179 the Supreme Court held in a unanimous decision that a tribal police officer could search a non-​Indian suspected of committing drug and weapons offenses on the reservation and temporarily detain that person until state law enforcement officers arrived to take the suspect into custody. The Court confirmed that, even with respect to the actions of a non-​Indian, “a tribe retains inherent sovereign authority to address conduct that threatens or has some direct effect on the health or welfare of the tribe.”180 Tribes may also enter into agreements with state and federal law enforcement agencies under which tribal police are cross-​deputized, thereby allowing them to arrest non-​Indians under state and/​or federal law.181

Does a tribe have the right to criminally prosecute nonmember Indians?

Yes. Indians on a reservation other than their own (“nonmember” Indians) are subject to the resident tribe’s criminal jurisdiction to the same extent as tribal members. In Duro v. Reina (1990),182 the Supreme Court held that a tribe may not prosecute nonmember Indians, but in response to Duro, Congress passed a law (commonly called the “Duro fix”) affirming the inherent authority of Indian tribes to exercise this jurisdiction.183 In 2004, in United States v. Lara,184 the Supreme Court upheld the constitutionality of the Duro fix. It is now clear that Indian tribes may arrest and prosecute in tribal court nonmember Indians who violate tribal law.185

Tribal Self-Government  149

What restrictions has Congress placed on tribal law enforcement?

As in all other areas of tribal power, Congress may limit tribal authority over law enforcement, and Congress has done so in several respects. The most far-​reaching limitations are contained in the Indian Civil Rights Act of 1968 (ICRA),186 which is discussed in Chapter XIII. The ICRA limits the penalties that tribal courts can impose in criminal cases to one year of imprisonment and a $5,000 fine, except that in certain circumstances, the penalty can increase to three years of imprisonment and a $15,000 fine.187 In addition, the ICRA requires that tribal courts extend almost all the rights to criminal defendants who appear in their courts that the U.S. Constitution imposes on the state and federal courts in their prosecutions. Congress has given state officials in some states and federal officials in the remaining states the authority to prosecute Indians who commit certain crimes in Indian country.188 These laws, however, have not stripped the tribes of their inherent right to prosecute these individuals, even if the state or federal government is also prosecuting them.189

5.  The Right to Exercise Civil Jurisdiction Do Indian tribes have the right to exercise civil jurisdiction over their members on the reservation?

Yes. Indian tribes have the inherent right to exercise civil jurisdiction over tribal members on the reservation. For instance, members who wish to develop their reservation land, or hunt and fish on the reservation, must comply with tribal law in doing so. Indian tribes may also subject members on the reservation to tribal taxation, such as income taxes and sales taxes.190 Tribes also have the inherent right to exclude tribal members from the reservation.191 Tribes may establish courts to resolve civil disputes between tribal members, such as disputes arising from contracts or torts, as well as matters involving child custody.192 Many tribes, either in their constitutions or in their laws, have authorized their courts to exercise broad civil jurisdiction. For instance, the Civil Code of the Colville Confederated Tribes of Washington provides that its tribal courts “shall have jurisdiction of all suits involving persons residing within the Tribal jurisdiction as defined by this Code and all other suits in which a party is deemed to have consented to the

150  The Rights of Indians and Tribes jurisdiction of the Court.”193 The Tribal Code of the Nez Perce Tribe of Idaho confers jurisdiction on its tribal courts over “all causes of action, which involve either the tribe, its officers, agents, employees, property or enterprises, a member of the tribe, a member of a federally recognized tribe, or any other matter which effects the interest or rights of the tribe.”194

Do Indian tribes have the right to exercise civil jurisdiction over non-​Indians on reservation land?

Efforts by Indian tribes to regulate the activities of non-​Indians on the reservation, Professor Matthew L.M. Fletcher recently wrote, “is a relatively new phenomenon” that, for the most part, commenced in “the late 1970s and early 1980s.”195 Tribes won all of their initial cases in the Supreme Court regarding their right to regulate non-​Indians on the reservation. In 1980, the Court held that an Indian tribe may assess a sales tax on non-​Indians when they purchase goods on tribal land.196 In 1982, in Merrion v. Jicarilla Apache Tribe,197 the Court upheld a tribal tax assessed on the value of oil and gas produced by a non-​Indian company on tribal land, stating in broad language: “The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-​government and territorial management. This power . . . derives from the tribe’s general authority, as sovereign, to control economic activity within its jurisdiction.”198 One year later, the Court said it is “well established” that Indian tribes have the power “to exclude nonmembers entirely or to condition their presence on the reservation.”199 The power to exclude, the Court said in 1987, “is an important part of tribal sovereignty.”200 In the midst of these cases—​all of which involved tribal jurisdiction over non-​Indians on tribal trust land within the reservation—​the Supreme Court decided Montana v. United States (1981).201 That case involved tribal jurisdiction over non-​Indians on non-​Indian fee land within the reservation. In Montana, the Court held that an Indian tribe is not permitted to regulate activities conducted by a non-​Indian on non-​Indian fee land unless the tribe can prove either that (1) the non-​Indian has entered into “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements,” or (2) the conduct of the non-​ Indian “threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.”202 (These have become known as the two “Montana exceptions.”)203

Tribal Self-Government  151 Since then, the Supreme Court has decided a series of cases—​discussed in Chapter VIII—​that extended the reach of Montana to a variety of situations involving non-​Indians engaging in activities on Indian reservations. These cases significantly eroded tribal authority. In 2008, the Court went so far as to state that “tribes do not, as a general matter, possess authority over non-​ Indians who come within their borders” and that tribal power over non-​ Indians is “presumptively invalid” without express congressional approval.204 As a result of laws, such as the GAA, that authorized non-​Indians to settle on Indian reservations, the majority of land on most Indian reservations is owned by non-​Indians.205 The Montana line of cases, then, prevent tribes from enacting reservation-​wide health and safety, hunting and fishing, and land-​use regulations, unless one of the two Montana exceptions exist. This is a devastating blow to tribal sovereignty. (State governments may regulate the conduct on, and the use of, privately owned land far more broadly than Indian tribes can.) These restrictions on tribal power have been roundly criticized by tribes and commentators.206 The Supreme Court’s decisions in these cases seem particularly unprincipled because the Court has repeatedly stated that it is Congress, not the courts, that determines Indian policy.207 Congress, however, has done nothing to suggest that Indian tribes lack broad civil jurisdiction over reservation non-​Indians; rather, all of these restrictions have been imposed by the Supreme Court. It seems clear, as one commentator has stated, that the Supreme Court “has been engaged in a measured attack on tribal sovereignty when it comes to tribal jurisdiction over non-​ members.”208 Many commentators have recommended that Congress enact legislation restoring broad tribal civil jurisdiction over non-​Indians on the reservation.209 The Supreme Court’s recent decision in United States v. Cooley210 offers a glimmer of hope. In that case, the Court, relying on the second exception in Montana, held that an Indian tribe has the inherent right to temporarily detain and search a non-​Indian who tribal police reasonably believe is engaging in conduct that threatens the health and safety of the tribal community. This is the first time in decades that the Supreme Court has upheld any exercise of tribal jurisdiction over a non-​Indian. In Cooley, however, the tribal officer was not subjecting the non-​Indian to tribal law but was detaining the individual for transfer to state authorities.211 Still, Cooley is the first case decided by the Supreme Court that found the presence of a Montana exception. Only time will tell whether the Court will allow tribes to exercise their sovereign

152  The Rights of Indians and Tribes authority in a wider range of situations or, as the Court had been doing, will further restrict tribal authority.

6.  The Right to Regulate Domestic Relations Does a tribe have the right to regulate the domestic relations of its members?

Domestic relations involve matters pertaining to home and family life such as marriage, divorce, adoptions, and child custody. Regulating such important matters is an integral aspect of sovereignty. The Supreme Court has confirmed that “unless limited by treaty or statute, a tribe has the power . . . to regulate domestic relations among tribe members.”212 Many tribal courts resolve domestic issues on a daily basis, including child custody matters and divorce petitions. Congress can limit these tribal powers, but unless it does, a tribe possesses not only the inherent but the exclusive right to regulate the domestic relations of its members on the reservation. In 1976, in Fisher v. District Court,213 the Supreme Court held that a reservation Indian couple who had been given foster custody of an Indian child by a tribal court and who wished to adopt the child could only obtain that decree from a tribal court. The Court overturned a state court adoption decree that had been obtained by the couple over the objection of the birth mother, a member of the tribe. It would seriously interfere with tribal self-​government, the Court held, if states were allowed “to subject a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves.”214 The Indian Child Welfare Act of 1978,215 discussed in Chapter XVI, supports the inherent right of Indian tribes to determine the custody of their children. In addition, Congress passed a law in 2013 that expressly authorizes tribal courts to issue and enforce orders—​even against non-​Indians—​to protect tribal members on the reservation from harassment, stalking, and physical abuse.216

If Indians are married off the reservation under state law, can they be divorced in a tribal court?

Yes. As a general rule, a court can divorce couples who were married in a different jurisdiction, provided that the legislature has given the court this power. For instance, people married in Colorado can obtain a divorce in

Tribal Self-Government  153 Nevada if they meet Nevada’s requirements for divorce. Similarly, Indians married under state law can be divorced in a tribal court if they meet the tribe’s requirements, and they can also be divorced according to tribal custom, provided that the tribe recognizes the continued validity of such divorces.217

7.  The Right to Engage in and Regulate Commerce and Trade Do Indian tribes have the right to engage in commerce and trade?

Yes. Indian tribes have the inherent right to engage in commercial activities both on and off the reservation.218 They also have the right to create tribal corporations, as well as license corporations distinct from the tribe.219 Many tribes own their own businesses, including mining, fishing, and gambling operations, resorts, motels, restaurants, supermarkets, and gas stations. Casinos are the most obvious and lucrative tribal commercial activity, generating millions of dollars annually for some tribes and employing thousands of workers, the vast majority of whom are non-​Indians.220 During the past forty years, particularly with the advent of gaming, an increasing number of tribes have engaged in commercial activities. The results have been dramatic, proving that it is in the best interest of Indian tribes and the entire country to bolster tribal self-​government and enhance economic opportunities in Indian country. Moreover, as tribal members participate in and manage commercial ventures, they learn valuable lessons and gain experience that benefit them and their tribes.221

Do Indian tribes have the right to regulate the commerce and trade that non-​Indians conduct on the reservation?

In 1982 in Merrion, the Supreme Court broadly declared that an Indian tribe possesses the “general authority, as sovereign, to control economic activity within its jurisdiction” with respect to Indians and non-​Indians alike.222 In more recent years, however, the Court has differentiated between those activities occurring on trust land (as was the situation in Merrion) and those occurring on non-​Indian fee land (as was the situation in Montana), and has severely restricted tribal jurisdiction in the latter situation. The presumption today is that an Indian tribe may not regulate commercial activities of

154  The Rights of Indians and Tribes non-​Indians on non-​Indian land unless the tribe can prove the presence of a Montana exception.223 As discussed in Chapter VIII, proving a Montana exception is difficult but not impossible.

What has Congress done to help tribes with economic development?

Congress has passed a number of laws during the past few decades designed to promote tribal economic development. Those tribes incorporated under the IRA can receive federal loans for business purposes.224 The Buy-​Indian Act225 requires the Bureau of Indian Affairs (BIA) to employ Indian labor and purchase Indian products whenever practicable in fulfilling BIA contracts. The Indian Mineral Development Act of 1982226 provides federal assistance to Indian tribes in developing and marketing mineral resources. In 2000, Congress passed the Indian Tribal Economic Development and Contract Encouragement Act,227 which amended a law known as “Section 81.” The amendment simplifies the process by which tribes can enter into contracts for the use and lease of tribal land by removing the need for consent from the Secretary of the Interior in all but a few types of contracts.228 Congress exempted Indian tribes from compliance with the Civil Rights Act of 1964 (“Title VII”),229 thereby allowing tribal corporations to give tribal members a preference over nonmembers in hiring and promotion.230 Congress also has exempted Indian tribes from compliance with the Americans with Disabilities Act (ADA).231 Many Indian reservations are located far from urban and industrial centers, have few marketable natural resources, and are not located near transportation hubs or major highways. Tribes on these reservations have difficulty attracting industry or tourism, and, due to the remote locations, gaming is not an option. Unemployment on many reservations exceeds 50 percent. The federal government should make a strenuous effort to improve economic conditions on these reservations by, for example, providing tax incentives to businesses that move to such locations and helping tribes improve infrastructure, such as tribal roads, internet service, and water systems. Of course, each tribe must decide for itself whether to engage in commercial activities. Many tribal members oppose such things as gaming establishments, oil and gas production, or coal development for a variety of reasons. Yet these ventures produce jobs and income, creating a conflict for many tribes.232 Several laws passed by Congress to regulate commercial activity throughout the nation do not expressly include (or exclude) Indian tribes

Tribal Self-Government  155 from their coverage, such as the Fair Labor Standards Act (FLSA),233 the Age Discrimination in Employment Act (ADEA),234 the Occupational Safety and Health Act (OSHA),235 and the National Labor Relations Act (NLRA).236 Some courts have held that Indian tribes and their corporate entities are exempt from such laws of general applicability, concluding that the sovereign powers of an Indian tribe remain intact unless Congress expressly limits them, which none of these laws do.237 Other courts have taken the opposite approach, holding that a law of general applicability applies to Indian tribes unless they can prove that its implementation would interfere with tribal governance,238 violate a right conferred by a treaty,239 or evidence exists that Congress intended to exempt tribes from coverage.240 Courts are more apt to find that a tribe is exempt from a regulatory law when the activity under review is related to a core government function, such as providing police protection,241 than operating a business such as a casino,242 a sawmill,243 or a farm.244 Several courts have ruled that the NLRA, a law of general applicability, can be enforced against tribal casinos, thus prohibiting tribes from interfering with a labor union’s efforts to organize the casino’s employees.245 Indian tribes are authorized by federal statute to regulate the sale and use of alcoholic beverages in Indian country, including (with certain exceptions) on land owned by non-​Indians. Violations of tribal liquor regulations can result in federal prosecution under this statute.246 Congress has given federal officials several other responsibilities regarding reservation commerce, including the duty to require every person other than a full-​blooded Indian to obtain a federal license to engage in commerce on the reservation.247 Thus, people who trade on an Indian reservation can be required to purchase both a federal and tribal trader’s license.

8.  Other Rights of Indian Tribes Indian tribes have numerous rights in addition to those discussed in this chapter and they are addressed elsewhere in this book. For instance, tribal rights under the doctrine of trust responsibility are discussed in Chapter III. Chapter IV discusses Indian treaty rights. Chapter X addresses hunting, fishing, trapping, and gathering rights, and Chapter XI discusses water rights. The right of tribes to file lawsuits to protect their other rights is discussed in Chapter XVII.

156  The Rights of Indians and Tribes

Notes 1. 31 U.S. 515 (1832). 2. United States v. Cooley, 141 S. Ct. 1638, 1642 (2021) (citing Worcester v. Georgia, 31 U.S. 515, 559 (1832)). See also Denezpi v. United States, 142 S. Ct. 1848, 1845 (2022); United States v. Wheeler, 435 U.S. 313, 323 (1978); Talton v. Mayes, 163 U.S. 376, 384 (1896); Robert J. Miller, American Indian Sovereignty Versus the United States (Feb. 2020), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​3541​054. 3. Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1934 (2022) (internal quotation and citation omitted). 4. Worcester, 31 U.S. at 558. 5. National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002) (en banc) (footnotes and citations omitted). 6. See cases cited supra note 2. See also United States v. Lara, 541 U.S. 193, 199, 207 (2004); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978). For a discussion of inherent tribal sovereignty and how tribes were originally viewed as political entities rather than as a racial group, see Seth Davis, Eric Biber, & Elena Kempf, Persisting Sovereignties, 170 U. Penn. L. Rev. 549 (2022). 7. Santa Clara Pueblo, 436 U.S. at 56. See also National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851 & n.10 (1985). 8. Michigan v. Bay Mills Indian Cmty, 572 U.S. 782, 800 (2014). See also United States v. Cooley, 141 S. Ct. 1638, 1643 (2021) (“In all cases, tribal authority remains subject to the plenary authority of Congress.”). 9. United States v. Wheeler, 435 U.S. 313, 323 (1978). 10. See Chapter V, notes 10–​16 and accompanying text. See also Robert A. Williams, Learning Not to Live with Eurocentric Myopia, 30 Ariz. L. Rev. 439, 441 (1988) (describing the plenary power doctrine as “racist, eurocentric, and genocidal”). 11. See Vine Deloria, Jr., & Clifford M. Lytle, American Indians, American Justice (1983); Alex Tallchief Skibine, Redefining the Status of Indian Tribes within “Our Federalism”: Beyond the Dependency Paradigm, 38 Conn. L. Rev. 667 (2006); Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L.J. 113 (2002). 12. See Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1021–​50 (2015); Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 Am. Ind. L. Rev. 57, 72–​76 (1991). 13. See Haaland v. Brackeen, 143 S. Ct. 1609, 1660–​61 (2023) (Gorsuch, Sotomayer, Jackson, JJ., concurring) (“Under our Constitution, Tribes remain independent sovereigns responsible for governing their own affairs.”). 14. U.S. Const., art. I, sec. 8, cl. 3 (emphasis added). 15. See David H. Moore & Michalyn Steele, Revitalizing Tribal Sovereignty in Treatymaking, 97 N.Y.U. L. Rev. 137, 139 (2022) (recognizing that in the years following our independence, “the federal government recognized and actively relied upon the sovereign Indian tribes as capable treaty partners”).

Tribal Self-Government  157 16. A number of these critics are referenced in Chapter V, notes 10–​16 and accompanying text. See also Williams, supra note 10, at 441. 17. 25 U.S.C. § 177. 18. Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 650–​51 (2001). See also United States v. Cooley, 141 S. Ct. 1638, 1642–​43 (2021); Nevada v. Hicks, 533 U.S. 353, 358–​ 59 (2001); United States v. Wheeler, 435 U.S. 313, 326 (1978). 19. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978). 20. Michigan v. Bay Mills Indian Cmty, 572 U.S. 782, 790 (2014); see also Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 900 (9th Cir. 2017), cert. denied, 138 S. Ct. 648 (2018). 21. United States v. Kagama, 118 U.S. 375, 381 (1886). 22. United States v. Mazurie, 419 U.S. 544, 557 (1975). See also Atkinson, 532 U.S. at 559. 23. Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 790 F.3d 1000, 1005 (10th Cir. 2015) (internal citation omitted). 24. See Kevin Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. 200, 207 (2019). 25. Talton v. Mayes, 163 U.S. 379 (1896). 26. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959). However, as explained in Chapter XIII, the Indian Civil Rights Act of 1968 imposes on Indian tribes most of the limitations on government action contained in the Constitution. 27. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 327–​28 (2008) (internal citations omitted). See also United States v. Cooley, 141 S. Ct. 1638, 1644 (2021); National Farmers Union Ins. Co. Crow Tribe of Indians, 471 U.S. 845, 851 (1985). For a historical review of tribal sovereignty, see Marren Sanders, De Recto, De Jure, or De Facto: Another Look at the History of the U.S./​Tribal Relations, 43 Sw. L. Rev. 171 (2013). 28. Santa Clara Pueblo, 436 U.S. 49. 29. Deloria & Lytle, supra note 11, at 80, 81, 82–​89. 30. Id. at 81. See also Miller, supra note 2, at 6–​10. 31. Colin G. Calloway, The American Revolution in Indian Country 298 (1998). See also Deloria & Lytle, supra note 11, at 82; Miller, supra note 2, at 8–​9. This subject is further discussed in Chapter I, notes 33–​35 and accompanying text. 32. Federal courts generally have no authority to intervene in tribal election disputes. See Newtok Village v. Patrick, 21 F.4th 608, 620–​22 (9th Cir. 2021); Attorney’s Process and Investigation Servs. v. Sac & Fox Tribe of Miss. In Iowa, 609 F.3d 927, 943 (8th Cir. 2010); Whelan v. Oglala Sioux Tribe Executive Officers, 2021 WL 4267654 (D.S.D. 2021). 33. See Runs After v. United States, 766 F.2d 347 (8th Cir. 1985); In re: Challenge to the Eligibility of Randy Junior White, No. SC-​2017-​01 (Cherokee Sup. Ct. 2017), available at https://​narf.org/​nill/​bullet​ins/​tri​bal/​docume​nts/​in_​re_​rand​y_​wh​ite.pdf; see also https://​www.hcn.org/​artic​les/​sho​uld-​the-​presid​ent-​of-​the-​nav​ajo-​nat​ion-​speak-​ nav​ajo. 34. Cross v. Fox, 23 F.4th 797 (8th Cir. 2022); Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079 (8th Cir. 1975).

158  The Rights of Indians and Tribes 35. Oneida Indian Nation v. United States Dept. of Interior, 789 Fed. Appx. 771 (2d Cir. 2019). 36. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). 37. See Howlett v. Salish & Kootenai Tribes, 529 F.2d 233, 240 (9th Cir. 1976); Seneca Constitutional Rights Org. v. George, 348 F. Supp. 51, 58 (W.D.N.Y. 1972). 38. See https://​www.hopi-​nsn.gov/​tri​bal-​gov​ernm​ent/​. 39. 25 U.S.C. §§ 5101 et seq. 40. See Alaska Native Reorganization Act, 49 Stat. 1250, and the Oklahoma Indian Welfare Act, 49 Stat. 1967. 41. For a history of the IRA, see John R. Wunder, Retained by the People 66–​77 (1994); Jason P. Hipp, Rethinking Rewriting: Tribal Constitutional Amendment and Reform, 4 Colum. J. Race & L. 73, 79–​82 (2013). 42. 25 U.S.C. § 5124. 43. See Wunder, supra note 41, at 72 (stating that 174 tribes accepted the IRA). See also Deloria & Lytle, supra note 11, at 15 (stating that 181 tribes accepted the IRA and 77 rejected it); Hipp, supra note 41, at 79 (stating that “181 tribes opted in” to the IRA). 44. Robert J. Miller, American Indian Constitutions and their Influence on the United States Constitution, 159 Proceedings of the Am. Philosophical Soc. 32, 45 (Mar. 2015). For a discussion of the background of the IRA, see id. at 44–​56. 45. 25 U.S.C. § 5123. 46. Id. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). 47. See Kerr-​McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985). This subject is discussed in Chapter V, Section B(2). 48. 80 Fed. Reg. 63094 (Oct. 19, 2015). See also 25 U.S.C. § 5123(h). 49. Angelique EagleWoman, Jurisprudence and Recommendations for Tribal Court Authority Due to Imposition of U.S. Limitations, 47 Mitch. Haml. L. Rev. 341, 352 (2021). See also Deloria & Lytle, supra note 11, at 100–​06. 50. See Deloria & Lytle, supra note 11, at 102–​06; Robert B. Porter, Strengthening Tribal Sovereignty through Government Reform: What Are the Issues?, 7 Kan. J.L. & Pub. Pol’y 72, 84 (Winter 1997); Lyman Tyler, A History of Indian Policy 131–​36 (1973). 51. Deloria & Lytle, supra note 11, at 102. 52. Id. at 104. 53. Wheeler v. U.S. Department of Interior, 811 F.2d 549 (10th Cir. 1987). 54. Wheeler v. Swimmer, 835 F.2d 259, 262 (10th Cir. 1987). 55. California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1267 (D.C. Cir. 2008); Goodface v. Grassrope, 708 F.2d 335 (8th Cir. 1983); Seminole Nation v. Norton, 223 F. Supp. 2d 122, 140 (D.D.C. 2002). 56. Attorney’s Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 943 (8th Cir. 2010), cert denied, 562 U.S. 1179 (2011) (internal citation omitted). See also Timbisha Shoshone Tribe v. Kennedy, 687 F. Supp. 2d 1171 (E.D. Cal. 2009); Bullcreek v. U.S. Department of Interior, 426 F. Supp. 2d 1221, 1225 (D. Utah 2006). 57. See 25 U.S.C. § 5123. This process is discussed in California Valley Miwok Tribe, 515 F.3d at 1264–​65.

Tribal Self-Government  159 58. See Aguayo v. Jewell, 827 F.3d 1213, 1224 (9th Cir. 2016), cert. denied, 137 S. Ct. 832 (2017). 59. See Ex parte Crow Dog, 109 U.S. 556 (1883), as an example. 60. Deloria & Lytle, supra note 11, at 111–​13. 61. Miller, supra note 2, at 4. 62. The CFR courts were created by the Indian Department Appropriations Act of 1888. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, n.7 (1978); Denezpi v. United States, 142 S. Ct. 1838, 1843 (2022). The federal regulations governing the CFR courts are found in 25 C.F.R. § 11. 63. EagleWoman, supra note 49, at 343. See also Julia M. Bedell, The Fairness of Tribal Court Juries and Non-​Indian Defendants, 41 Am. Indian L. Rev. 253, 258 (2017); Deloria & Lytle, supra note 11, at 113–​16. Federal courts have upheld the power of Congress to create CFR courts on Indian reservations. See Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir. 1991); Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965). 64. For a discussion of some modern tribal court systems, see Matthew L.M. Fletcher, Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited, 84 U. Colo. L. Rev. 59 (2013); EagleWoman, supra note 49, at 351–​61. 65. Only seven CFR courts remain, serving sixteen tribes. Denezpi, 142 S. Ct. at 1843. CFR Courts, although governed by federal regulations, are nonetheless agencies (“arms”) of the tribe, not the federal government. Denezpi, 142 S. Ct. at 1845–​49. 66. Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 14 (1987) (internal citation omitted). 67. See Means v. Navajo Nation, 432 F.3d 924, 933 (9th Cir. 2005), cert denied, 549 U.S. 952 (2006) (noting that the Navajo have a sophisticated judicial system with trained court personnel); Kirkpatrick v. Kirkpatrick, 282 F. Supp. 2d 613, 614 (N.D. Ohio 2003) (listing three levels of courts for the Seneca Nation). 68. Fletcher, supra note 64, at 70–​71; see also Matthew L.M. Fletcher, Tribal Justice Systems, MSU Legal Studies Research Paper No. 11–​23 (Jan. 13, 2014), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​2378​526. 69. Fletcher, supra note 64, at 59–​61. 70. Id. at 60. A 1978 report found that some tribal judges had been fired after issuing a decision with which the tribal council disagreed. See Nat’l Am. Indian Ct. Judges Ass’n, Indian Courts and the Future: Report of the NAICJA Long Range Planning Project (David H. Getches & Orville N. Olney eds., 1978). 71. 25 U.S.C. §§ 1301 et seq. The ICRA is the subject of Chapter XIII. 72. See Matthew L.M. Fletcher, Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data, MSU Legal Studies Research Paper No. 06-​05 (2008), available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​1103​474. 73. Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation, 862 F.3d 1236, 1250 (10th Cir. 2017), cert. denied, 138 S. Ct. 1001 (2018) (citing Fletcher, supra note 64, at 75). See also M. Gatsby Miller, The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction over Nonmembers in Civil Cases, 114 Colo. L. Rev. 1825, 1839 (2014). For one tribal judge’s experience, see Matthew L.M. Fletcher, Professionalism in Tribal Jurisdictions, Mich. Bar J. (Nov. 2022), available at https://​rep​osit​ory.law.umich.edu/​ artic​les/​2720/​.

160  The Rights of Indians and Tribes 74. Fletcher, supra note 64, at 66–​74. 75. James v. Window Rock Family Court, No. SC-​CV-​06-​12, 2012 WL 5360898 (Navajo Rptr. Oct. 8, 2012). See generally Raymond D. Austin, Navajo Courts and Navajo Common Law 39 (2009). See also Ashkii v. Kayenta Family Court (Navajo Rptr., Aug. 19, 2013), available at https://​tur​tlet​alk.blog/​tag/​ash​kii-​v-​kaye​nta-​fam​ily-​court/​ (recognizing the importance and controlling authority of Navajo law in tribal courts). 76. 1 Navajo Nation Code § 1 (citing Navajo Nation Council Resolution CO-​63-​67, Oct. 9, 1967); see Austin, supra note 75, at 72. 77. Snowden v. Saginaw Chippewa Indian Tribe of Michigan, 32 Indian L. Rptr. 6047, 6050 (Sag. Chip. Ct. App. 2005). 78. Champagne v. Little River Band of Ottawa Indians, 35 Indian L. Rptr. 6004, 6005 (Lit. Riv. Band Ott. Inds. Ct. App. 2007). 79. Payment v. The Election Committee, Case No. APP-​2022-​02 (Sault Ste. Marie Ct. App. 2022). See also Matthew L.M. Fletcher, Due Process and Equal Protection in Michigan Anishinaabe Tribal Courts, Mich. St. L. Rev. Forum (2023), available at https://​w ww.mic​higa​nsta​tela​wrev​iew.org/​vol-​20222​023/​2023/​1/​22/​due-​proc​ess-​ and-​equal-​pro​tect​ion-​in-​michi​gan-​anis​hina​abe-​cou​rts. 80. See Colville Confederated Tribes v. Marchand, 33 Indian L. Rptr. 6036, 6037 (Confed. Colv. Tr. Ct. 2006). 81. See EagleWoman, supra note 49, at 360–​61; Nancy A. Costello, Walking Together in a Good Way: Indian Peacemaker Courts in Michigan, 76 U. Det. Mercy L. Rev. 875 (1999); Lauren van Schilfgaarde, Restorative Justice as Regenerative Tribal Jurisdiction, 112 Cal. L. Rev. 101 (2024); Smithsonian, Native Negotiations are a Winning Alternative to Courts, American Indian Magazine (Fall 2023), available at https://​ www.ame​rica​nind​ianm​agaz​ine.org/​story/​Nat​ive-​nego​tiat​ion-​meth​ods. 82. See Deloria & Lytle, supra note 11, at 120–​25. 83. 5 U.S. 137 (1803). 84. Constitution and Bylaws of the Rosebud Sioux Tribe, art. XI, sec. 3, available at https://​narf.org/​nill/​consti​tuti​ons/​roseb​udco​nst/​index.html 85. See Menominee Indian Tribal Legislature v. Menominee Indian Tribal Court, 20 Indian L. Rptr. 6066 (Menominee Sup. Ct. 1993); Conklin v. Freeman, 20 Indian L. Rptr. 6037 (N. Plns. Inter. Ct. App. 1993); Stone v. Swan, 19 Indian L. Rptr. 6093 (Colv. Tr. Ct. 1992). 86. American Indian Law Center, Inc., Survey of Tribal Judicial Systems and Courts of Indian Offenses (May 2000). See also Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 159–​61, 226 (2004). 87. See EagleWoman, supra note 49, at 354. 88. See https://​www.ailc-​inc.org/​our-​work/​swi​tca/​; EagleWoman, supra note 49, at 354. 89. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.36 (1978). See also Chapoose v. Clark, 607 F. Supp. 1027 (D. Utah 1985), aff ’d, 831 F.2d 931 (10th Cir. 1987). 90. See Estate of Antoine (Ke Nape) Hill, 8 IBIA 121 (1980); Roff v. Burney, 168 U.S. 218 (1897). 91. Cherokee Intermarriage Cases, 203 U.S. 76 (1906).

Tribal Self-Government  161 92. Wallace v. Adams, 204 U.S. 415, 423 (1907) (“The power of Congress over the matter of citizenship in . . . Indian tribes [is] plenary”). 93. Congress has the exclusive right to determine tribal membership for federal purposes. See Chapter II, Section A. See also Chapoose, 607 F. Supp. 1027. For a discussion of tribal enrollment criteria and whether tribes offer membership to non-​Indians, see Tommy Miller, Beyond Blood Quantum: The Legal and Political Implications of Expanding Tribal Enrollment, 3 Am. Indian L.J. 323 (Fall 2014). 94. See Mohegan Tribe of Indians of Connecticut Const., art. V, available at https://​libr​ary.munic​ode.com/​tribes​_​and​_​tri​bal_​nati​ons/​mohega​n_​tr​ibe/​codes/​ code_​of_​l​aws?nod​eId=​PTICO. 95. See https://​www.chero​kee.org/​all-​servi​ces/​tri​bal-​regis​trat​ion/​. 96. See Constitution of the White Mountain Apache Tribe, art. II (amended 1993), available at https://​narf.org/​nill/​consti​tuti​ons/​white_​moun​tain​_​apa​che/​ white​moun​tain​apac​heco​nst.html. 97. See Rosales v. United States, 477 F. Supp. 2d 119, 121 (D.D.C. 2007), aff ’d, 215 Fed. Appx. 1 (D.C. Cir. 2008) (noting that tribe had lowered its blood quantum for membership from one-​half to one-​quarter). 98. See Flathead Reservation Keeps Blood Quantum, News Maven (Jan. 24, 2003), available at https://​newsma​ven.io/​ind​ianc​ount​ryto​day/​arch​ive/​flath​ead-​rese​rvat​ion-​ keeps-​blood-​quan​tum-​6BD​oLM8​MEkq​BbiZ​MRbs​iIg/​. 99. See https://​www.sau​lttr​ibe.com/​mem​bers​hip-​servi​ces/​tri​bal-​enr​ollm​ent. 100. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 101. See https://​tur​tlet​alk.blog/​2012/​05/​01/​santa-​clara-​pue​blo-​votes-​to-​cha​nge-​mem​ bers​hip-​rules/​. 102. Santa Clara Pueblo, 436 U.S. at 55 (1978); Chegup v. Ute Indian Tribe of the Uintah and Ouray Reservation, 28 F.4th 1051 (10th Cir. 2022); Aguayo v. Jewell, 827 F.3d 1213, 1222 (9th Cir. 2016), cert. denied, 137 S. Ct. 832 (2017); Smith v. Babbitt, 100 F.3d 556, 559 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997). 103. Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301 et seq. is the subject of Chapter XIII. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996); Tavares v. Whitehorse, 851 F.3d 863 (9th Cir. 2017). 104. 43 C.F.R. § 4.330. See King v. Portland Area Director, BIA, No. IBIA 97-​138-​A (31 IBIA 56, July 9, 1997). 105. 25 C.F.R. § 62.4(a)(3) authorizes the Secretary to review a tribal enrollment action “when the tribal governing document provides for an appeal of the action” to the Secretary. See Alto v. Black, 738 F.3d 1111 (9th Cir. 2013). 106. See Paul v. Southern Ute Indian Tribe, 24 Indian L. Rptr. 6038 (S.W. Intertr. Ct. App. 1997); Teasley v. Kootenai Tribe of Idaho, 25 Indian L. Rptr. 6148 (Kootenai Tr. Ct. 1998). 107. See Loy v. Confederated Tribes of Grand Ronde, 31 Indian L. Rptr. 6048 (Grand Ronde Ct. App. 2003) (overturning a denial of application for membership); Tonasket v. Colville Confederated Tribes Enrollment Dept., 34 Indian L. Rptr. 6014 (Colv. Confed. Ct. App. 2006) (reviewing a tribe’s enrollment decision); Terry-​Carpenter

162  The Rights of Indians and Tribes v. Las Vegas Paiute Tribal Council, 30 Indian L. Rptr. 6150 (Las Vegas Paiute Ct. App. 2003) (holding that disenrollments must comply with due process). 108. See Cecily Hilleary, Native American Tribal Disenrollment Reaching Epidemic Levels (Mar. 3, 2017), available at https://​www.voan​ews.com/​a/​nat​ive-​ameri​can-​tri​bal-​ disenr​ollm​ent-​reach​ing-​epide​mic-​lev​els/​3748​192.html. 109. See David Kelly, Clan Says Tribe Dealt It Bad Hand, L.A. Times (Sept. 9, 2007), available at https://​www.lati​mes.com/​archi​ves/​la-​xpm-​2007-​sep-​09-​me-​pechan​ga9-​ story.html. 110. Jeffredo v. Macarro, 599 F.3d 913, 920 (9th Cir.), cert. denied, 560 U.S. 925 (2010). 111. See Jaime Dunaway, The Fight over Who’s a “Real Indian,” Slate (June 12, 2018), available at https://​slate.com/​news-​and-​polit​ics/​2018/​06/​nat​ive-​ameri​can-​dis​enro​ llme​nts-​are-​wan​ing-​after-​deca​des-​of-​tri​bes-​stripp​ing-​citi​zens​hip-​from-​memb​ ers.html. 112. See James Dao, In California, Indian Tribes with Casino Money Cast Off Members, N.Y. Times (Dec. 12, 2011), available at https://​www.nyti​mes.com/​2011/​12/​13/​us/​ cal​ifor​nia-​ind​ian-​tri​bes-​eject-​thousa​nds-​of-​memb​ers.html. 113. See Gabriel S. Galanda & Ryan D. Dreveskracht, Curing the Tribal Disenrollment Epidemic: In Search of a Remedy, 57 Ariz. L. Rev. 383, 387 (2015); Washburn, supra note 24, at 228–​29. 114. Gabriel Galanda, Disenrollments Aren’t an Exercise in Sovereignty, Indianz.com (Mar. 18, 2015), available at https://​www.indi​anz.com/​News/​2015/​03/​10/​gabe-​gala​ nda-​dis​enro​llme​nts-​ar-​1.asp. 115. Gabriel S. Galanda, Tribes Are Carrying Out the Wishes of the Colonizer, Indianz. com (Jan. 16, 2015), available at https://​www.indi​anz.com/​News/​2015/​01/​16/​gabe-​ gala​nda-​tri​bes-​are-​car​ryi.asp. See also Gabriel S. Galanda, The United States Must Help Stop Disenrollment, Indianz.com (Feb. 20, 2020), available at https://​www.indi​ anz.com/​News/​2020/​02/​07/​gabe-​gala​nda-​the-​uni​ted-​sta​tes-​must-​help.asp. 116. Joseph Hamilton, Chairman of the Ramona Band of Cahuilla Indians in California, quoted in Dave Palermo, Tribal Gaming's Dirty Secret, Global Gaming Business Magazine (Feb. 25, 2016), available at https://​ggbm​agaz​ine.com/​arti​cle/​tri​bal-​ gami​ngs-​dirty-​sec​ret/​. 117. 455 U.S. 130 (1982). 118. Id. at 137. 119. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). 120. See Chapter X, notes 59–​66 and accompanying text. 121. City of Albuquerque v. Browner, 97 F.3d 415, 418–​19 (10th Cir. 1996). See also Arizona v. Navajo Nation, 143 S. Ct. 1804, 1812 (2023) (recognizing that every tribe has “the right to use needed water on the reservation, referred to as reserved water rights”); Jessica Owley, Tribal Sovereignty over Water Quality, 20 J. Land Use & Envtl. L. 61, 63–​70 (2004). 122. United States v. Becerra-​Garcia, 397 F.3d 1167, 1175 (9th Cir. 2005), cert. denied, 547 U.S. 1005 (2006) (“Intrinsic in tribal sovereignty is the power to exclude trespassers from the reservation”). 123. Morris v. Hitchcock, 194 U.S. 384 (1904).

Tribal Self-Government  163 124. See Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001); Bad River Band of Lake Superior Tribe of Chippewa Indians v. Enbridge Energy Co., Inc., 2022 WL 17249085 (W.D. Wis. 2022). 125. Merrion, 455 U.S. 130; So. Pacific Transp. Co. v. Watt, 700 F.2d 550 (9th Cir.), cert. denied, 464 U.S. 960 (1983); United Nuclear Corp. v. Clark, 584 F. Supp. 107 (D.D.C. 1984). 126. Maxey v. Wright, 54 S.W. 807 (Indian Terr. Ct. App.), aff ’d, 105 F. 1003 (8th Cir. 1900). 127. Boardman v. Oklahoma City Housing Auth., 445 P.2d 412 (Okla. 1968); Seneca Constitutional Rights Org. v. George, 348 F. Supp. 51, 58 (W.D.N.Y. 1972). See also 25 U.S.C. § 1302(5). 128. Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 824 (10th Cir. 2007); Queets Band of Indians v. Washington, 765 F.2d 1399, 1403 (9th Cir. 1983), vacated as moot, 783 F.2d 154 (9th Cir. 1986). 129. These restrictions are discussed in Chapter V, Section B(5). 130. See Hawley Lake Homeowners’ Association v. Deputy Assistant Secretary—​Indian Affairs, 13 IBIA 276 (1985). See discussion Chapter V, Section B(5). The federal government used to be less sensitive to tribal needs and recommendations. See Vine Deloria, Jr., Custer Died for Your Sins 128–​47 (1969). 131. These restrictions are discussed in Chapter XV. 132. 33 U.S.C. 1377(e). 133. See Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001); State of Montana v. U.S. Environmental Protection Agency, 137 F.3d 1135 (9th Cir.), cert. denied, 525 U.S. 921 (1998); City of Albuquerque v. Browner, 97 F.3d 415, 418–​19 (10th Cir. 1996). 134. 42 U.S.C. 7601(d)(2). 135. 42 U.S.C. 300j-​11(a). 136. The federal government’s control over Indian trust land is discussed in Chapter V, Section B(5). 137. 25 U.S.C. § 71. Many scholars believe this law is unconstitutional, as discussed in Chapter IV, note 35 and accompanying text. 138. Spalding v. Chandler, 160 U.S. 394 (1896); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 133 n.1 (1982). 139. Act of June 30, 1919, sec. 27, 41 Stat. 3, 34. See also 25 U.S.C. § 398d. 140. See Charles V. Wilkinson, American Indians, Time, and the Law 8 (1987). 141. 25 U.S.C. § 5108. 142. Id. § 5104. 143. Id. § 5108. 144. Once land is converted to trust status, it is no longer subject to state real estate taxation. See City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 221 (2005). If the purchased land is within the reservation, it is already Indian country, but if it is outside the reservation, it becomes Indian country when taken into trust status for the tribe. See Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 1010–​13 (8th Cir. 2010), cert. denied, 564 U.S. 1019 (2011). 145. See Mitchell v. United States, 33 U.S. 307 (1835); Worcester v. Georgia, 31 U.S. 515, 545–​49 (1832).

164  The Rights of Indians and Tribes 146. This subject is discussed in Chapter XIV, Section A. 147. This subject is discussed in Chapter V, Section B(5). 148. Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975), cert. denied, 429 U.S. 1038 (1977). 149. Minnesota v. United States, 305 U.S. 382 (1939). 150. “Indian country” is defined in Chapter II, Section B. The extent to which a state may exercise jurisdiction in Indian country is discussed in Chapter VII (criminal jurisdiction) and Chapter VIII (civil jurisdiction). 151. 25 U.S.C. § 5104. See supra notes 142–​44 and accompanying text. 152. 25 U.S.C. § 177. 153. Board of Commissioners v. United States, 308 U.S. 343 (1939); Bunch v. Cole, 263 U.S. 250 (1923). 154. See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). 155. Ewert v. Bluejacket, 259 U.S. 129 (1922). 156. United States v. Southern Pacific Transportation Co., 543 F.2d 676 (9th Cir. 1976). 157. See FPC v. Tuscarora Indian Nation, 362 U.S. 99, 119 (1960). 158. See, e.g., Passamaquoddy Tribe, 528 F.2d 370; Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir. 1981); Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899 (D. Mass. 1977), aff ’d, 592 F.2d 575 (1st Cir.), cert. denied, 444 U.S. 866 (1979); Schaghticoke Tribe of Indians v. Kent School Corp., 423 F. Supp. 780 (D. Conn. 1976); Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 418 F. Supp. 798 (D.R.I. 1976). For a case still in litigation, see The Canadian St. Regis Band of Mohawk Indians v. New York, 2022 WL 768669 (N.D.NY. 2022). 159. 25 U.S.C. §§ 1721–​35. 160. See Narragansett Tribe, 418 F. Supp. 798 (discussing the compromise reached in Rhode Island). Land disputes in Connecticut with the Mohegan Tribe and the Mashantucket Pequot Tribal Nation were resolved when Congress passed laws creating reservations for them, see 25 U.S.C. § 1775 and §§ 1751 et seq., respectively. 161. 24 Stat. 388, as amended, formerly 25 U.S.C. §§ 331–​58 (since repealed). The GAA is discussed in Chapter I, notes 70–​78 and accompanying text. 162. Oneida Nation v. Village of Hobart, 968 F.3d 664, 670 (7th Cir. 2020). 163. United States v. Cooley, 141 S. Ct. 1638, 1645 (2021). See also Bedell, supra note 63, at 256 (estimating that four times as many non-​Indians live on Indian reservations as Indians). 164. Rishika Pardikar, Global North Is Responsible for 92% of Excess Emissions, EOS Science News by AGU (Oct. 28, 2020), available at https://​eos.org/​artic​les/​glo​bal-​ north-​is-​resp​onsi​ble-​for-​92-​of-​exc​ess-​emissi​ons. 165. See Aneesh Patnaik, Jiahn Son, Alice Feng, & Crystal Ade, Racial Disparities and Climate Change, PSCI (Aug. 15, 2020), available at https://​psci.prince​ton.edu/​tips/​ 2020/​8/​15/​rac​ial-​disp​arit​ies-​and-​clim​ate-​cha​nge. Salmon, for instance, on which many tribes in the Northwest depend for subsistence, are dying at alarming rates due to climate change. See Michael C. Blumm, Salmon, Climate Change, and the Future, 52 Envtl. L. Rev. 10980 (2022).

Tribal Self-Government  165 166. See Patnaik, id.; Emma S. Norman, Standing Up for Inherent Rights: The Role of Indigenous-​Led Activism in Protecting Sacred Waters and Ways of Life, Society & Natural Resources, 549 (2017). 167. One glaring example is the series of seven dams built on the upper Missouri River that flooded tribal treaty lands and spared non-​Indian lands. See Robert Kelly Schneiders, Flooding the Missouri Valley—​The Politics of Dam Site Selection and Design, Digital Commons@University of Nebraska-​Lincoln (Summer 1997), available at https://​dig​ital​comm​ons.unl.edu/​cgi/​view​cont​ent.cgi?arti​cle=​2953&cont​ ext=​great​plai​nsqu​arte​rly; see also https://​ind​ianc​ount​ryto​day.com/​arch​ive/​ech​oes-​ of-​oak-​flat-​4-​pick-​sloan-​dams-​that-​submer​ged-​nat​ive-​lands-​5APKb​egQx​E6m-​5-​ Ewn5​eEg. For a compelling photo, see https://​www.red​dit.com/​r/​pics/​comme​nts/​ 9k7​77k/​a_​weeping_​george_​gill​ette​_​in_​1940​_​wit​ness​ing_​the/​. 168. See Pilar Thomas, State Energy Policy Implications for Tribal Energy Development, American Bar Association (Aug. 31, 2020), available at https://​www.amer​ ican​bar.org/​gro​ups/​envir​onme​nt_​e​nerg ​y_​re​sour​ces/​publi​cati​ons/​tre​nds/​2020-​ 2021/​septem​ber-​octo​ber-​2020/​state-​ene​rgy-​pol​icy/​; Midwestern Tribal Energy Resources Association, About Us, https://​www.mtera.org/​. 169. See Department of the Interior, Biden-​Harris Administration Makes $135 Million Commitment to Support Relocation of Tribal Communities Affected by Climate Change (Nov. 30, 2022), available at https://​www.doi.gov/​pressr​elea​ses/​biden-​har​ ris-​adm​inis​trat​ion-​makes-​135-​mill​ion-​com​mitm​ent-​supp​ort-​rel​ocat​ion-​tri​bal; Crystal Owens, FEMA Awards $54 million for Tribal Climate Resilience Efforts, LAW360 (May 22, 2023), available at https://​www.law​360.com/​artic​les/​1680​079/​ fema-​awa​rds-​54m-​for-​tri​bal-​clim​ate-​res​ilie​nce-​effo​rts. 170. United States v. Wheeler, 435 U.S. 313, 323 (1978); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978); Ortiz-​Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir. 1975). 171. Wheeler, 435 U.S. at 322 (citations omitted). See also United States v. Lara, 541 U.S. 193, 204 (2004). The punishments that tribes can impose on criminal defendants are discussed in Chapter XIII, notes 16–​20 and accompanying text. 172. Kelsey v. Pope, 809 F.3d 849 (6th Cir. 2016). 173. 435 U.S. 191 (1978). 174. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208, 196 (1978) (internal citation omitted). See also United States v. Cooley, 141 S. Ct. 1638, 1643 (2021). The Court’s reasoning, and the difficulties this lack of authority is causing Indian tribes, are discussed in Chapter VII, notes 66–​76 and accompanying text. For a critical discussion of Oliphant, see Matthew L.M. Fletcher, Muskrat Textualism, 116 Nw. U. L. Rev. 963 (2022). 175. Pub. L. No. 113-​4, tit. IX, sec. 904, § 204(b)(I), 127 Stat. 54, 121 (codified at 25 U.S.C. § 1304(b)(I)). 176. The jurisdiction conferred by VAWA is discussed in the next chapter, notes 77–​89 and accompanying text. 177. See cases cited supra note 178 and infra notes 199–​200 and accompanying text. 178. Swinomish Indian Tribal Community v. BNSF Railway Co., 951 F.3d 1142 (9th Cir. 2020) (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982)).

166  The Rights of Indians and Tribes 179. 141 S. Ct. 1638 (2021). 180. United States v. Cooley, 141 S. Ct. 1638, 1643 (2021) (quotation slightly altered in format). For a discussion of Cooley, see Grant Christensen, Getting Cooley Right: The Inherent Criminal Powers of Tribal Law Enforcement, 56 U.C. Davis L. Rev. 467 (2022). 181. This subject is discussed in Chapter VII, notes 110–​11 and accompanying text. 182. 495 U.S. 676 (1990). 183. Pub. L. No. 101-​511, 104 Stat. 1892 (1990), codified at 25 U.S.C. § 1301(2). 184. 541 U.S. 193 (2004). 185. See Means v. Navajo Nation, 432 F.3d 924, 933 (9th Cir. 2005), cert denied, 549 U.S. 952 (2006). 186. 25 U.S.C. §§ 1301 et seq. 187. This subject is discussed in Chapter XIII, notes 16–​20 and accompanying text. 188. The criminal jurisdiction that the state and federal governments have in Indian country is explained in Chapter VII. 189. These multiple prosecutions do not violate the Double Jeopardy Clause, as discussed in the next chapter, notes 133–​38 and accompanying text. 190. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). 191. See Ft. Peck Tribes v. Smith, 2021 WL 1749864 (Ft. Peck Ct. App. 2021) (upholding ten-​year tribal exclusion order). 192. See Wheeler, 435 U.S. at 323; Fisher v. District Court, 424 U.S. 382 (1976); Williams v. Lee, 358 U.S. 217 (1959). 193. Colv. Confed. Tribes Law and Order Code § 2-​2-​1 (2017), available at https://​stat​ic1. squa​resp​ace.com/​sta​tic/​572d0​9c54​c2f8​5ddd​a868​946/​t/​58225​4854​4024​387a​801c​ ff3/​147864​4869​496/​2-​2-​Civil​acti​ons.pdf. 194. See Nez Perce Tribal Code 1-​1-​12(a)(8), available at https://​www.nezpe​rce.org//​wp-​ cont​ent/​uplo​ads/​2019/​01/​Code-​with-​UPDA​TES-​Janu​ary-​22-​2019.pdf. 195. Matthew L.M. Fletcher, A Unifying Theory of Tribal Civil Jurisdiction, 46 Ariz. St. L.J. 779, 786 (2014). 196. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152–​ 53 (1980). 197. 455 U.S. 130 (1982). 198. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). 199. New Mexico v. Mescalero Apache Tribe, 426 U.S. 324, 333 (1983). See also Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 328 (2008); Merrion, 455 U.S. at 144–​45; United States v. Becerra-​Garcia, 397 F.3d 1167, 1175 (9th Cir. 2005), cert. denied, 547 U.S. 1005 (2006) (“Intrinsic in tribal sovereignty is the power to exclude trespassers from the reservation”). 200. Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 18 (1987). 201. Montana v. United States, 450 U.S. 544 (1981). 202. Id. at 565–​66. See also Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 656 (2001). 203. See Plains Commerce Bank, 554 U.S. at 330 (“These rules have become known as the Montana exceptions”). See also United States v. Cooley, 141 S. Ct. 1638, 1643 (2021).

Tribal Self-Government  167 204. Plains Commerce Bank, 554 U.S. at 330 (citation omitted). See also Phillip Morris USA, Inc. v. King Mountain Tobacco Co., Inc., 569 F.3d 932, 941–​44 (9th Cir. 2009); MacArthur v. San Juan County, 497 F.3d 1057, 1069–​76 (10th Cir. 2007), cert. denied, 552 U.S. 1181 (2008). 205. See authorities cited supra note 163. 206. See Kristen A. Carpenter & Angela R. Riley, Privatizing the Reservation?, 71 Stan. L. Rev. 791, 804 (2019) (noting the “devastating, and well documented impacts” of private land ownership on tribal self-​government); Cynthia Castillo, Tribal Courts, Non-​Indians, and the Right to an Impartial Jury After the 2013 Reauthorization of VAWA, 39 Am. Indian L. Rev. 311, 325–​26 (2014–​2015). 207. See United States v. Lara, 541 U.S. 193 (2004); Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). 208. Alex Tallchief Skibine, Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction over Non-​Members, UCLA Law Rev. Discourse (Sept. 2019) at 29, available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​3458​087. See also Bethany R. Berger, Hope for Indian Tribes in the U.S. Supreme Court?: Menominee, Nebraska v. Parker, Bryant, Dollar General . . . And Beyond, 2017 U. Ill. L. Rev. 1901, 1933–​38 (2019). 209. See, e.g., Bedell, supra note 63, at 273–​78; Skibine, supra note 208, at 19–​29. 210. 141 S. Ct. 1638 (2021). 211. United States v. Cooley, 141 S. Ct. 1638, 1644-​45 (2021). 212. United States v. Wheeler, 435 U.S. 313, 324 n.15 (1978). See also Plains Commerce Bank, 554 U.S. at 327; Morris v. Sockey, 170 F.2d 599 (10th Cir. 1948); Begay v. Miller, 222 P.2d 624 (Ariz. 1950). 213. 424 U.S. 382 (1976). 214. Fisher v. District Court, 424 U.S. 382, 387–​88 (1976). 215. 25 U.S.C. §§ 1901 et seq. 216. 18 U.S.C. § 2265(e). See Spurr v. Pope, 936 F.3d 478 (6th Cir. 2019). 217. Senator v. United States, 2010 WL 723792 (E.D. Wash. 2010); Estate of John Ignace, 5 IBIA 50 (1976), available at https://​www.oha.doi.gov/​IBIA/​IbiaDe​cisi​ons/​05i​bia/​ 05ibia​050.PDF. 218. See Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998); Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). 219. See Navajo Tribe v. Bank of New Mexico, 700 F.2d 1285 (10th Cir. 1983); Namekagon Development Co., Inc. v. Bois Fort Reservation Housing Authority, 395 F. Supp. 23 (D. Minn. 1974), aff ’d, 517 F.2d 508 (8th Cir. 1975); White Mountain Apache Tribe v. Shelley, 480 P.2d 654 (Ariz. 1971). 220. Indian gaming is the subject of Chapter XV. 221. See Washburn, supra note 24, at 206–​08, 224. 222. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). 223. This subject is discussed in Chapter VIII, notes 17–​89 and accompanying text. 224. 25 U.S.C. §§ 5124, 5133. 225. 25 U.S.C. § 47.

168  The Rights of Indians and Tribes 226. 25 U.S.C. §§ 2101–​8. 227. Pub. L. No. 106-​179, 114 Stat. 46 (2000), codified at 25 U.S.C. § 81. 228. The 2000 amendment to Section 81 is discussed in Chapter V, notes 78–​79 and accompanying text. 229. 42 U.S.C. § 2000e et seq. 230. Id. § 2000e(b). See Jim v. Shiprock Associated Schools, Inc., 833 Fed. Appx. 749 (10th Cir. 2020); Tremblay v. Mohegan Sun Casino, 599 Fed. Appx. 25 (2d Cir. 2015); EEOC v. Peabody Western Coal Co., 773 F.3d 977 (9th Cir. 2014). 231. 42 U.S.C. §§ 12101 et seq.; id. § 12111(5)(B)(i). See Giedosh v. Little Wound School Board, 995 F. Supp. 1052 (D.S.D. 1997). See also Drake v. Salt-​River Pima-​Maricopa Indian Cmty., 411 F. Supp. 3d 513 (D. Ariz. 2019) (holding that even where ADA applies to a tribal casino, the tribe has sovereign immunity from suit to enforce the ADA). 232. See Judy Keen, For Tribes, Economic Need Is Colliding with Tradition, USA Today (Mar. 4, 2009), at 1, 2, available at https://​abcn​ews.go.com/​Busin​ess/​story?id=​7002​ 860&page=​1. 233. 29 U.S.C. §§ 201 et seq. 234. 29 U.S.C. §§ 621–​34. 235. 29 U.S.C. §§ 651 et seq. 236. 29 U.S.C. §§ 151 et seq. 237. See Scalia v. Red Lake Nation Fisheries, 982 F.3d 533 (8th Cir. 2020) (OSHA); Snyder v. Navajo Nation, 382 F.3d 892, 895–​96 (9th Cir. 2004) (FLSA); Reich v. Great Lakes Indian Fish & Wildlife Commission, 4 F.3d 490 (7th Cir. 1993) (FLSA); Equal Employment Opportunity Commission v. Fond Du Lac Heavy Equipment & Construction Co., Inc., 986 F.2d 246 (8th Cir. 1993) (ADEA); EEOC v. Cherokee Nation, 871 F.2d 937, 938–​39 (10th Cir. 1989) (ADEA). 238. See Williams v. Poarch Band of Creek Indians, 839 F.3d 1312 (11th Cir. 2016), cert. denied, 138 S. Ct. 78 (2017) (ADEA); Menominee Tribal Enterprises v. Solis, 601 F.3d 669, 671 (7th Cir. 2010) (OSHA); Solis v. Matheson, 563 F.3d 425 (9th Cir. 2000) (FLSA). 239. See Menominee Indian Tribe v. Thompson, 161 F.3d 449, 457 (7th Cir. 1998); EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989). 240. Taylor v. Alabama Intertribal Council, 261 F.3d 1032, 1035 (11th Cir. 2001); United States v. Jackson, 600 F.2d 1283, 1286–​87 (9th Cir. 1979). 241. See Reich, 4 F.3d at 494–​95. 242. Compare Reich, 4 F.3d 490, 495–​96 (holding FLSA not applicable to tribal law enforcement agency), and Menominee Tribal Enterprises, 601 F.3d 669 (holding FLSA applicable to tribal business), and Solis v. Matheson, 563 F.3d 425 (same). 243. See U.S. Dept. of Labor v. Occupational Safety & Health Review Comm’n, 935 F.2d 182 (9th Cir. 1991); Smart v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989). 244. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985). See also CFPB v. Great Plains Lending, LLC, 846 F.3d 1049 (9th Cir. 2017) (holding that various financial lending laws apply to for-​profit tribal lending business).

Tribal Self-Government  169 245. Pauma v. NLRB, 888 F.3d 1066 (9th Cir. 2018), cert. denied, 139 S. Ct. 2614 (2019); Soaring Eagle Casino and Resort v. NLRB, 791 F.3d 648 (6th Cir. 2015), cert. denied, 136 S. Ct. 2509 (2016). 246. 18 U.S.C. § 1161. See Rice v. Rehner, 463 U.S. 713, 715 (1983); United States v. Mazurie, 419 U.S. 544, 557 (1975); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). 247. 25 U.S.C. §§ 261–​64. The federal government’s regulation of Indian trade is discussed in Chapter V, Section B(8).

VII Criminal Jurisdiction in Indian Country What is “criminal jurisdiction”?

Criminal jurisdiction is the authority a government possesses to create rules of conduct and to punish those who violate the rules. Three governments—​ federal, state, and tribal—​have some degree of criminal jurisdiction on each Indian reservation. Few subjects are as complicated as criminal jurisdiction in Indian country. (Indian country is defined in Chapter II.) Criminal jurisdiction in Indian country, one court remarked, is “a bewildering maze of rules.”1 Understanding criminal jurisdiction in Indian country requires familiarity with at least five principles recognized or created by the U.S. Supreme Court and six laws passed by Congress during the past two centuries.

What are the five most important principles created or recognized by the Supreme Court regarding criminal jurisdiction in Indian country?

1. Congress can increase or decrease the criminal jurisdiction that the tribe, the state, and the federal governments possess in Indian country. Congress has the final word.2 2. An Indian tribe has the inherent right to exercise criminal jurisdiction over its members. “An Indian tribe’s power to punish tribal offenders is part of its own retained sovereignty.”3 3. Neither the state, the Supreme Court held in Worcester v. Georgia (1832),4 nor the federal government, the Supreme Court held in Ex parte Crow Dog (1883),5 may exercise criminal jurisdiction over tribal members for crimes committed in Indian country unless Congress has conferred that authority. 4. An Indian tribe, the Supreme Court held in Oliphant v. Suquamish Indian Tribe (1978),6 may not exercise criminal jurisdiction over non-​ Indians unless Congress has conferred or affirmed that authority. 5. A state may exercise its criminal jurisdiction over non-​Indians who commit state crimes in Indian country when the victim is a non-​Indian, The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0007

172  The Rights of Indians and Tribes the Supreme Court held in United States v. McBratney (1881),7 and also when the victim is an Indian, the Supreme Court held in Oklahoma v. Castro-​Huerta (2022).8

What are the six most important laws regarding criminal jurisdiction in Indian country?

Congress has passed six laws during the past two hundred years that greatly altered criminal jurisdiction in Indian country by (1) permitting the state and the federal governments to exercise jurisdiction they otherwise would not have, and (2) confirming that Indian tribes have the inherent right to exercise certain forms of criminal jurisdiction in Indian country. These six laws (in chronological order) are the General Crimes Act of 1817 (also known as the Indian Country Crimes Act ),9 the Major Crimes Act of 1885,10 Public Law 83-​280 passed in 1953,11 the so-​called “Duro fix” of 1990,12 the Tribal Law and Order Act of 2010,13 and the 2013 and 2022 amendments to the Violence Against Women Act (VAWA).14

1.  The General Crimes Act The General Crimes Act (GCA),15 first passed in 1817 and amended several times since then, authorizes the federal government to extend all of its criminal laws into Indian country except with respect to three types of crimes: (1) crimes committed by one Indian against the person or property of another Indian, (2) crimes that by treaty remain under exclusive tribal jurisdiction, and (3) crimes for which the Indian defendant has already been punished under tribal law.16 Thus, the GCA authorizes the federal government to prosecute in Indian country nearly all federal crimes, provided that they are “inter-​racial,” that is, they were committed by an Indian against a non-​Indian or by a non-​Indian against an Indian.17

2.  The Major Crimes Act The Major Crimes Act (MCA)18 was passed by Congress in 1885 in response to Ex parte Crow Dog, a case decided by the Supreme Court in 1883.19 The

Criminal Jurisdiction in Indian Country  173 issue in Crow Dog was whether the federal government could prosecute an Indian, Crow Dog, for the murder of another Indian on an Indian reservation. The Supreme Court held that because Congress had passed no law authorizing this jurisdiction, the federal government could not prosecute Crow Dog. In response, believing that Indians should be subject to federal prosecution for serious crimes, Congress passed the MCA. The MCA gave the federal government jurisdiction over seven major crimes when committed by an Indian against any other person in Indian country, including murder, manslaughter, kidnapping, and rape. The MCA has been amended several times and today covers more than a dozen crimes. Among the crimes added since 1885 are arson, felony child abuse, robbery, incest, sexual abuse of a minor, and assault with a dangerous weapon.20 The first table below shows the pattern of jurisdiction when the crime committed is a “major” crime. The second table shows the jurisdictional pattern when the crime is not a “major” crime, such as forgery, theft, or burglary. As these charts illustrate, merely because the crime is a “major” crime does not mean it can be prosecuted under the MCA: the MCA applies only when the perpetrator is an Indian. When the Crime Committed Is a “Major” Crime Persons Involved

Jurisdiction

Indian accused, Indian victim

Federal government (Major Crimes Act) and tribal government (inherent sovereignty) Federal government (Major Crimes Act) and tribal government (inherent sovereignty) Federal government (Indian Country Crimes Act) and state government State government only

Indian accused, non-​Indian victim Non-​Indian accused, Indian victim Non-​Indian accused, non-​Indian victim

174  The Rights of Indians and Tribes When the Crime Committed Is Not a “Major” Crime Persons Involved

Jurisdiction

Indian accused, Indian victim Indian accused, non-​Indian victim

Tribal government only (inherent sovereignty) Federal government (Indian Country Crimes Act) and tribal government (inherent sovereignty) Federal government (Indian Country Crimes Act) and state government State government only

Non-​Indian accused, Indian victim Non-​Indian accused, non-​Indian victim

3.  Public Law 83-​280 As discussed in Chapter I, the years between 1953 and 1968 are known as the “termination era” in federal Indian history. During this period, Congress tried to destroy tribal governments, force Indians to assimilate into Anglo-​American society, and reduce the federal government’s assistance to Indians. Enacted on August 15, 1953, Public Law 83-​28021 (often written as “Public Law 280,” “P.L. 280” or “Pub. L. 280”) is a product of this era and was designed to promote assimilation.22 Proponents claimed that passage of P.L. 280 was necessary to reduce lawlessness on Indian reservations.23 If that were the only motive, however, Congress could have addressed the problem by providing tribes with the funds necessary to improve law enforcement on their reservations. Congress instead authorized certain states to arrest and prosecute Indians who commit crimes on reservations located within those states, thus increasing state control over Indians and undermining tribal self-​government. “Without question,” the Supreme Court has stated, P.L. 280 reflects “the general assimilationist policy followed by Congress from the early 1950s through the late 1960s.”24

In what ways did P.L. 280 increase state jurisdiction in Indian country?

Public Law 280 provides that five states “shall have jurisdiction over offenses committed by or against Indians” in Indian country “to the same extent that such state” has criminal jurisdiction elsewhere within the state.25 These are

Criminal Jurisdiction in Indian Country  175 known as the “mandatory” states because they had no choice but to assume this responsibility. (For the most part, the mandatory states expressed a willingness to accept these extra burdens. However, they probably believed that P.L. 280 would authorize them to tax reservation Indians as well as arrest them, thus providing the states with income to offset the cost of this additional responsibility.26 It was not until years later, as explained in the next chapter, that states learned that P.L. 280 did not confer taxing authority.)27 The five mandatory states are California, Minnesota (except for the Red Lake Reservation), Nebraska, Oregon (except for the Warm Springs Reservation), and Wisconsin (except for the Menominee Reservation).28 In 1959, when Alaska became a state, it was added by Congress as a sixth mandatory state.29 Slightly more than half of the federally recognized tribes in the United States are located within those first five states. The chart below illustrates the P.L. 280 jurisdiction acquired by the mandatory states: State

Extent of jurisdiction

Alaska California Minnesota

All Indian country within the state All Indian country within the state All Indian country within the state, except the Red Lake Reservation All Indian country within the state All Indian country within the state,except the Warm Springs Reservation All Indian country within the state, except the Menominee Reservation

Nebraska Oregon Wisconsin

P.L. 280 authorized the other forty-​four states, at their option, to acquire the same jurisdiction the mandatory states had received simply by passing a law agreeing to exercise that power. Tribal consent was not required.30 Only ten of these “optional” states took steps to assume jurisdiction under P.L. 280; most states did not want the financial or administrative burden of prosecuting these reservation crimes.

May the P.L. 280 states enforce all their prohibitions in Indian country?

No. There are two kinds of prohibitions: “criminal/​prohibitory” and “civil/​ regulatory.” P.L. 280 authorizes states to apply only the former and not the

176  The Rights of Indians and Tribes latter in Indian country. The Supreme Court explained the difference between the two in California v. Cabazon Band of Mission Indians (1987).31 A statute is “criminal/​prohibitory” when the conduct it punishes is prohibited in all instances, such as child abuse and rape, which are always illegal. Because the mandatory states were given criminal jurisdiction in Indian country, they are permitted to enforce their criminal/​prohibitory laws on the reservation. On the other hand, when a state permits an activity but merely regulates it, the state exercises its “civil/​regulatory” authority, and P.L. 280 does not authorize states to apply these laws in Indian country.32 In Cabazon, for instance, the Court held that because California, a mandatory P.L. 280 state, allowed some forms of bingo to occur (such as bingo for charities) but not other forms (such as high-​stakes bingo for profit), California’s regulation of bingo was civil in nature. Therefore, these limits were a form of civil/​regulatory jurisdiction, even though California imposed fines—​which are normally viewed as being a criminal punishment—​for engaging in high-​stakes bingo. Consequently, California lacked authority under P.L. 280 to enforce its bingo restrictions on Indian reservations, the Court held. The Court acknowledged in Cabazon that it is often difficult to determine if a law is civil/​regulatory or criminal/​prohibitory.33 Lower courts have struggled with this distinction. For instance, every state permits the possession of firearms in certain situations, and thus it can be argued that a statute that makes it a crime for ex-​felons to possess a firearm is civil/​regulatory. However, at least one court has held that a statute banning the possession of firearms by ex-​felons is criminal/​prohibitory, explaining that the relevant inquiry is not whether all possession of firearms is prohibited, but whether all possession of firearms by ex-​felons is prohibited.34 The state supreme court in Minnesota, a mandatory P.L. 280 state, held in 1999 that Minnesota’s prohibitions on speeding and driving without a license were civil/​regulatory and not criminal/​prohibitory because the general act of driving was permitted.35 A law can even be enforceable by criminal penalties and still be “civil/​regulatory,” as was the situation in Cabazon Band.36 Doubts about whether to characterize a law as civil or criminal should be resolved in favor of the tribe to “[protect] Indian sovereignty from state interference.”37

What is “partial” P.L. 280 jurisdiction?

Public Law 280 does not expressly authorize an optional state to assume anything less than the full criminal jurisdiction that Congress gave to the mandatory states. Most optional states that assumed any jurisdiction under P.L.

Criminal Jurisdiction in Indian Country  177 280, however, assumed only partial jurisdiction. These states limited their jurisdiction to (1) less than all the Indian reservations in the state, (2) less than all the geographic areas within an Indian reservation, or (3) less than all subject matters of the law. For instance, as the chart below illustrates, Montana assumed criminal jurisdiction only on the Flathead Indian Reservation, one of several reservations in the state, and Idaho and Washington assumed jurisdiction only with respect to a few crimes. In 1979, the Supreme Court held that P.L. 280 allows an optional state to assume only partial jurisdiction.38

What jurisdiction did the optional states acquire under P.L. 280?

Ten optional states passed laws to assume P.L. 280 jurisdiction. Five of them—​Arizona, Nevada, North Dakota, South Dakota, and Utah—​have either repealed those laws, or the laws were conditional on tribal consent and no tribe consented. Therefore, these states have no P.L. 280 jurisdiction. Of the other five, only Florida accepted full jurisdiction; the rest accepted only partial jurisdiction. The pattern of state jurisdiction within the optional states today is as follows: State

Extent of jurisdiction

Arizona

Initially accepted jurisdiction limited to enforcement of the state’s air and water pollution control laws but repealed the law in 2003.39 Thus, no jurisdiction today. All Indian country within the state.40 All Indian country within the state, limited to the following seven subject matters: compulsory school attendance; juvenile delinquency and youth rehabilitation; dependent, neglected, and abused children; mental illness; public assistance; domestic relations; and operation of motor vehicles on public roads.41 Limited to certain civil jurisdiction over the members of the Sac and Fox Tribe of the Mississippi in Iowa.42 Limited to jurisdiction over any reservation that gave its consent. In 1965, the Flathead Reservation consented to some state jurisdiction. In 1995, the state retroceded jurisdiction over misdemeanors but retained jurisdiction over felonies.43

Florida Idaho

Iowa Montana

178  The Rights of Indians and Tribes State

Extent of jurisdiction

Nevada

Initially acquired some P.L. 280 jurisdiction, but the state has since retroceded all of it back to the federal government.44 Limited to any tribe that gives its consent.45 No tribe has consented. Limited to any tribe that gives its consent. No tribe has consented.46 Limited to any tribe that gives its consent. No tribe has consented.47 All fee land within Indian country. Jurisdiction on trust land is limited to the following eight subjects unless the tribe requests full jurisdiction: compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoptions, dependent children, and operation of motor vehicles on public roads. Several tribes requested full state jurisdiction, including the Chehalis, Muckleshoot, Nisqually, Quileute, and Tulalip.48

North Dakota South Dakota Utah Washington

Can optional states still acquire jurisdiction under P.L. 280?

Yes, but only with tribal consent. In 1968, in response to tribal concerns about the ability of optional states to unilaterally extend their authority into Indian country, Congress amended P.L. 280 and prevented an optional state from acquiring jurisdiction over a tribe unless a majority of the tribe’s members, voting in a special election called for this purpose, gives its consent.49

Are states able to return to the United States the jurisdiction they acquired under P.L. 280?

Yes. In 1968, Congress authorized the United States to accept a “retrocession” (a return) of any jurisdiction acquired by a state under P.L. 280.50 The offer to retrocede, however, must be initiated by the state. A tribe cannot force a state to initiate the process.51 Many tribes would prefer that P.L. 280 be repealed altogether or, at least, that P.L. 280 be amended to permit tribes to initiate a request for retrocession.

Criminal Jurisdiction in Indian Country  179 Since 1968, some thirty tribes have been freed from state criminal jurisdiction through retrocessions, including tribes in Nebraska, Nevada, Oregon, Washington, and Wisconsin. The Native American Rights Fund (NARF) has compiled a list of all retrocessions, available at https://​narf.org/​tri​bal-​state-​ juris​dict​ion.

4.  The “Duro Fix” Thousands of Indians live on or visit an Indian reservation other than their own (“nonmember Indians”). In 1990, in Duro v. Reina,52 the Supreme Court ruled that Indian tribes lack the inherent authority to prosecute nonmember Indians who commit crimes on the reservation. Congress was quick to respond, and passed a law that same year affirming that Indian tribes do have the inherent authority to prosecute nonmember Indians for those crimes.53 This law is known as the “Duro fix.” In United States v. Lara (2004),54 the Supreme Court held that Congress has the authority to determine the scope of a tribe’s inherent powers, and the Court overruled its decision in Duro. Today, then, nonmember Indians may be prosecuted by the tribe to the same extent as a tribal member.55

5.  The Tribal Law and Order Act of 2010 The Tribal Law and Order Act of 2010 (TLOA)56 contains the most significant set of criminal justice reforms ever enacted by Congress for Indian reservations, imposing additional responsibilities on the federal government and strengthening tribal law enforcement. Among other things, TLOA (1) requires the U.S. Attorney in each federal district containing an Indian reservation to appoint at least one assistant U.S. Attorney to serve as a liaison between the U.S. Attorney’s Office and each tribe in the state, and encourages the appointment of a special assistant U.S. Attorney to prosecute minor crimes, in addition to major crimes, in Indian country; (2) encourages U.S. Attorneys to provide technical assistance to tribal, state, and local governments that enter into cooperative law enforcement agreements with one another; (3) authorizes expenditures of funds to assist tribal governments in carrying out their law enforcement responsibilities, including funds for jail

180  The Rights of Indians and Tribes construction; (4) requires the Bureau of Indian Affairs (BIA) to train tribal law enforcement officers in how to collect, preserve, and present evidence in cases of domestic violence and sexual abuse, and in how to interview victims of sexual assault; (5) requires the U.S. Attorney’s Office, whenever that office declines to prosecute a violent crime, to send a report to tribal officials that explains the reason for the declination; (6) establishes procedures to enhance the sharing of law enforcement information with tribal governments; (7) requires the Secretary of the Interior to submit a long-​term plan to address incarceration in Indian country, including proposed detention facilities and alternatives to incarceration; (8) places special emphasis on juvenile crime prevention programs, construction of youth shelters, and care of juvenile offenders; and (9) authorizes tribes to impose “enhanced” sentences above the caps set by the Indian Civil Rights Act of 1968 (ICRA).57 Under the ICRA, tribal punishments are capped at one year of imprisonment and a fine of $5,000. Under TLOA, tribes may impose a sentence of three years’ imprisonment for any one offense and up to nine years for three separate offenses and a fine of $15,000, provided that the tribal court proceeding was presided over by a judge licensed to practice law, the tribe offered free legal counsel to anyone indigent, and the tribe provided the defendant with all the rights guaranteed by the ICRA, which includes the right to a speedy trial, protection against self-​incrimination, the right to subpoena witnesses, and the right to confront and cross-​examine witnesses.58 Furthermore, TLOA requires the federal government to share criminal justice information with the tribe and to coordinate and consult with tribes to develop and implement tribal data collection systems.59 This allows tribal justice agencies to retrieve data, such as criminal history and arrest warrant information, from federal databases, including the FBI’s National Crime Information Center (NCIS).60 Tribal police now can know instantly, for instance, whether the person they stopped for a minor traffic offense is a dangerous felon. In addition, TLOA allows for tribal conviction data to be entered into the NCIS system. This means, among other things, that persons convicted of domestic violence in a tribal court will be unable to purchase a firearm from a federally licensed dealer.61 As originally passed, P.L. 280 prohibited the federal government from enforcing the GCA and MCA in the mandatory states.62 TLOA removes that prohibition.63 Tribes need to request federal enforcement; if the federal government agrees, the government then has the authority to prosecute offenders in the mandatory states as it did prior to the passage of P.L. 280,

Criminal Jurisdiction in Indian Country  181 and the state and federal government would then share concurrent jurisdiction over those crimes. Moreover, the Department of Justice issued a memorandum in 2017 stating that the federal government can exercise its GCA and MCA criminal jurisdiction in the optional states because nothing in P.L. 280 bars that authority.64 Therefore, tribes within both mandatory and optional states can seek to have the federal government exercise the same criminal jurisdiction it exercised prior to the passage of P.L. 280. Several tribes have done so, including the White Earth and Mille Lacs tribes in Minnesota. Federal officials have been slow to implement TLOA, and it is not having the remedial impact it could have. A report issued in 2017 by the Department of Justice’s Office of Inspector General (OIG) found that the department lacks “a coordinated approach” to implementing TLOA and “has not prioritized assistance to Indian country at the level consistent with its public statements or annual reports to Congress.” The report also found there were shortcomings in providing training to tribal agencies, that “crime data in Indian country remains unreliable and incomplete,” and “that despite the Department establishing Indian country as a priority area, Indian country funding and resources have decreased since TLOA’s implementation.”65

6.  The Violence Against Women Act In 1978, the Supreme Court ruled in Oliphant v. Suquamish Indian Tribe66 that Indian tribes do not have the inherent authority to exercise criminal jurisdiction over non-​Indians and, thus, may not prosecute them even when they commit heinous crimes against tribal members on the reservation. Oliphant is a devastating ruling that has been sharply criticized throughout Indian country.67 Many people believe that Oliphant is a racist decision, based on the false premise that non-​Indians will not get a fair trial in a tribal court. “Oliphant,” Professor Matthew L.M. Fletcher has written, “is almost universally reviled by advocates of tribal sovereignty.” According to Fletcher, “the real reason” many people oppose tribal criminal jurisdiction over non-​ Indians is “racial bias against Indians and tribes.”68 Two facts make Oliphant especially pernicious. First, Native American women “experience the highest rates of domestic violence” of any group in the nation and “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.”69 Over half (56.1 percent) of Native women report being victims of sexual violence.70 In a speech to tribal leaders

182  The Rights of Indians and Tribes in 2009, President Barack Obama reported that “on some reservations, violent crime is more than 20 times the national average.” Obama underscored the “shocking and contemptible fact that one in three Native American women will be raped in their lifetimes.”71 The third leading cause of death among American Indian and Alaska Native women ages fifteen to thirty-​ four is murder, considerably higher than the national average.72 In 2012, an editorial in the New York Times stated: “The worsening plague of crime in Indian country is a moral atrocity.”73 Second, most perpetrators of these crimes are non-​Indians.74 Many of these perpetrators, as an Amnesty International report stated in 2022, go unpunished due the complexity of the law in this area and Oliphant’s undermining of tribal authority.75 The trauma and suffering caused by this violence, both to the victim and to the community, “is incalculable.”76 In 2013, when Congress amended the Violence Against Women Act (VAWA), Congress expressly restored the authority of tribes to exercise criminal jurisdiction over non-​Indians in certain narrow situations, and in 2022, Congress amended VAWA once again and expanded tribal jurisdiction to cover additional crimes.77 In order for a tribe to exercise VAWA jurisdiction, the crime must be an act of sexual assault, domestic violence, dating violence, stalking, sex trafficking, certain crimes of child violence, an assault of tribal justice personnel, or a violation of a protective order (including orders issued by a tribal court). Although the 2013 provision limited tribal jurisdiction to those defendants who either resided on, or were employed in, the tribe’s Indian country or were the spouse, intimate partner, or dating partner of a member of the tribe or of an Indian who lived in the tribe’s Indian country, the 2022 provision removed those limitations. A sexual assault by a stranger, for instance, is now covered.78 The 2022 amendment, moreover, extended VAWA’s coverage to the tribes in two states that were not included in 2013: Alaska and Maine. Congress enacted the amendments to VAWA to ensure that tribes can begin to address one of the most depressing and disturbing aspects of reservation life today: unrelenting violence perpetrated by non-​Indian men on Indian women. VAWA returns enforcement authority back where it belongs: in tribal courts, the “institutions that are best positioned to provide trusted, accountable, accessible, and cost-​effective justice in Tribal communities.”79 VAWA allows tribes to exercise “special tribal criminal jurisdiction” (STCJ) (formerly called “special domestic violence criminal jurisdiction”) over all

Criminal Jurisdiction in Indian Country  183 persons, including non-​Indians, within the tribe’s “Indian country” with respect to the offenses enumerated in the Act.80 To address the concerns of certain legislators in Congress that non-​Indians might not receive a fair trial in tribal court, VAWA assures that (1) the defendant will be provided with all the rights and due process protections required by the Indian Civil Rights Act,81 which confers on a defendant the same basic rights and protections guaranteed in state and federal courts; (2) the tribe must appoint counsel to an indigent defendant; (3) the tribe’s criminal laws, rules of evidence, and rules of civil procedure are publicly available; (4) the proceedings in tribal court are recorded so that they are available on appeal; (5) the defendant has the right to seek habeas corpus relief in a federal court after exhausting available tribal remedies; and (6) the defendant has the right to a jury panel that “reflect[s]‌a fair cross section of the community,” including non-​Indians.82 Thus, to exercise VAWA jurisdiction, tribes must relinquish some independence in operating their courts, allow non-​Indians to sit on juries, and agree to become subject to scrutiny by federal courts employing Westernized law. A growing numbers of tribes—​thirty-​one tribes as of May 2022, according to the National Congress of American Indians (NCAI)—​are exercising STCJ jurisdiction over non-​Indians.83 Based on data collected by NCAI in 2018, the tribes exercising VAWA jurisdiction convicted seventy-​four perpetrators, with five acquittals, and not one person arrested sought federal review of the proceeding, which indicates that tribal courts are applying VAWA appropriately and fairly.84 The 2013 amendments to VAWA, in addition to authorizing tribal prosecutions in certain situations, expanded federal prosecutions of certain crimes in federal territories, including Indian reservations, to help protect women from assault. One of these makes it a crime to assault a “spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.”85 Federal officials are enforcing this law in Indian country.86 Nearly half of domestic violence victims are choked during the assault, and of those who survive, a high number are murdered at a later time by the same perpetrator.87 VAWA seeks to curb those murders by allowing for felony prosecutions for the first offense. VAWA also makes it a federal felony if the offender was previously convicted on two prior occasions of domestic violence in a tribal court.88 VAWA thus assists tribes in removing recidivists who terrorize their partners. VAWA “recognized and affirmed” tribal authority and did not create a power that tribes did not already possess.89 Thus far, VAWA is a baby step. Hopefully,

184  The Rights of Indians and Tribes Congress will restore tribal authority to prosecute many other (and, ultimately, all other) types of crimes committed by non-​Indians against Indians on the reservation, fully repudiating the Supreme Court’s decision in Oliphant, just as Congress fully repudiated the Supreme Court’s decision in Duro.

Why is the crime rate in Indian country so high?

There are many reasons for the high crime rate in Indian country. One reason is that state officials in the P.L. 280 states are not fulfilling their responsibilities to enforce state criminal laws in Indian country. In 2016, the Supreme Court noted: “Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country.”90 Second, federal officials in the non–​P.L. 280 states often ignore their responsibilities as well. In 2022, Amnesty International reported, based on recent data, that U.S. Attorneys “declined to prosecute 46% of sexual assaults and 67% of sexual abuse cases in Indian country.”91 Felonies in Indian country, another study found, “are significantly more likely to be declined” by federal prosecutors than felonies committed elsewhere.92 Congress has failed to commit the resources needed to substantially reduce reservation crime, including money to hire, equip, and train a sufficient number of tribal police officers, and to hire a sufficient number of U.S. Attorneys and federal law enforcement officers to serve Indian country. In recent years, several tribes have sued the Department of Interior, accusing the DOI of failing to provide them with adequate law enforcement services.93 In May 2023, the Oglala Sioux in South Dakota obtained a federal court order requiring that the DOI determine whether the federal government is satisfying “the United States’ treaty-​based duty to the Tribe concerning protection and law enforcement support and cooperation.”94 A third reason for the high crime rate is the confusing pattern of laws that victims must navigate to seek prosecutions. Victims are often discouraged when they get shuffled from one office to another or when they try to figure out where to go to report a crime.95 Fourth, nearly 80 percent of the tribes located in mandatory P.L. 280 states have decided not to hire their own police officers, create a criminal code, and enforce criminal laws, choosing instead to rely on state law enforcement agencies.96 Moreover, only 70 percent of tribes located in non–​P.L. 280 states retain a police force.97 Tribes can do more to control crime than they are doing, although funding is a problem for many tribes.98

Criminal Jurisdiction in Indian Country  185 A fifth reason for the high crime rate is alcoholism and drug abuse on Indian reservations and the inability of tribes, due to a lack of resources, to treat the root causes of substance abuse. A Senate report recently stated that “alcohol and drug abuse play a role in more than 80 percent of crimes committed in tribal communities,” and methamphetamine addiction on Indian reservations “is three times the national average.”99 Tribal leaders have urged federal officials to assist them in effectively combatting substance abuse and to view incarceration for most offenders as a “last resort.”100 A sixth reason for the high crime rate is that most violent crimes on Indian reservations are committed by non-​Indians, yet tribes cannot prosecute these lawbreakers in most situations.101 Many people believe that until Congress enacts an “Oliphant fix” that permits tribes to prosecute all non-​ Indian lawbreakers, true reform will be impossible.102 Seventh, most tribes lack the money to implement a comprehensive law enforcement system and have far fewer police officers, court personnel, and jail beds than non-​Indian communities of comparable size.103 President Obama noted in 2009 that “tribes need support in strengthening their law enforcement capability” in virtually every area.104 Other causes of reservation crime are chronic unemployment, impoverished living conditions, substandard housing, and poor health care, all of which lead to feelings of depression and despair. Thus, reducing crime in Indian country will require greater efforts by tribes, states, and the federal government. Congress must provide more funding to tribes, and restore their authority to prosecute all non-​ Indians who commit crimes in Indian country, while the state and federal governments must fulfill their duties, as well. A good first step would be for Congress to fund studies on a reservation-​by-​reservation basis to determine an appropriate solution for that tribe, which could well be the elimination of state authority and the restoration of tribal authority.105 Congress passed two laws in 2020 designed to address the high number of missing and murdered Indigenous women (MMIW). Native women are murdered at ten times the national average.106 One law, “Savanna’s Act”107 (named after a Native woman who was murdered), requires federal, state, and tribal law enforcement agencies to create protocols to address the problem of MMIW and for the Department of Justice (DOJ) to create a database of MMIW; educate the public on the database and help tribes and Indigenous communities enter information into it; and develop guidelines for responding to the problem. In 2021, the DOJ published a manual

186  The Rights of Indians and Tribes addressing MMIW, suggesting ways to meet this challenge.108 The second law, the Not Invisible Act,109 directs the DOJ and the DOI to establish a commission with tribal officials that will make recommendations to the federal government on combatting violent crime against, and trafficking of, Native Americans and Alaska Natives. Many tribes have entered into cooperative agreements with state and federal law enforcement agencies. More than eighty tribes have signed cross-​ deputization agreements with neighboring non-​ tribal communities,110 allowing tribal police to arrest lawbreakers under state law111 and allowing state police to arrest tribal members under tribal law.112 Some tribes have cross-​ deputization agreements with federal law enforcement agencies, known as Special Law Enforcement Commission (SLEC) agreements.113 Other tribes have retained a nearby county law enforcement agency to provide police protection on the reservation, rather than hire and train their own police.114

Can Indian tribes detain non-​Indian lawbreakers and turn them over to state or federal officials for prosecution?

Yes. The Supreme Court confirmed in United States v. Cooley (2021) that an Indian tribe “retains inherent sovereign authority to address conduct that threatens or has some direct effect on the health or welfare of the tribe.”115 As part of that inherent authority, the Court said, an Indian tribe’s law enforcement officers may temporarily detain non-​Indians reasonably suspected of engaging in criminal activity on the reservation, search them, and if evidence of a crime is found, transfer them to the appropriate state or federal authorities (depending on whether a state or federal crime was committed).116 The tribe may undertake these actions under its inherent authority to exclude non-​Indians from reservation lands and protect the health and safety of the community.117

A.  CRIMES COMMITTED BY INDIANS IN INDIAN COUNTRY IN NON–​P.L. 280 STATES What jurisdiction does the tribe have over a crime committed by an Indian on the reservation?

Indian tribes have the inherent right to enforce their criminal laws against tribal members118 and, as a result of the “Duro fix” discussed earlier, nonmember Indians, regardless of the race of the victim and regardless of

Criminal Jurisdiction in Indian Country  187 whether the state is a P.L. 280 state.119 Today, then, each tribe has the inherent right to prosecute all Indians who commit crimes on its reservation.120

What jurisdiction does the state have over a reservation crime committed by an Indian?

None, unless the state has been given this jurisdiction by Congress, as Congress did for a few states when it passed P.L. 280. As the Supreme Court stated in 2020, “State courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country,’ ” regardless of the race of the victim, unless Congress has conferred that authority.121

What jurisdiction does the federal government have over a reservation crime committed by an Indian?

Congress has conferred broad criminal jurisdiction to the federal government to prosecute Indians who commit crimes in Indian county. Different laws apply depending on the race of the victim and the nature of the crime.

1. Federal Jurisdiction over Crimes Committed by Indians against Non-​Indians As a result of three laws passed by Congress, virtually every federal crime can be prosecuted by the federal government when committed by an Indian against a non-​Indian in Indian country. The most far-​reaching of the three is the General Crimes Act (GCA), also known as the Indian Country Crimes Act.122 This law authorizes the federal government to prosecute any Indian who violates a federal “enclave law” against a non-​Indian within the reservation. Enclave laws were enacted by Congress to govern activities on federal enclaves, such as national parks, post offices, and military installations. These laws are comprehensive and create an extensive criminal code. The second law is the Assimilative Crimes Act (ACA).123 The ACA makes it a federal crime to engage in any conduct in a federal enclave that is a crime in the state where the enclave is located unless the activity is already a crime under an enclave law. The ACA is a “gap-​filling” law passed by Congress to make sure that if an activity is not a crime under federal law, it will be considered a federal crime if made punishable under state law.124 The combined effect of the GCA and the ACA is to make Indians subject to all federal enclave criminal laws and all state criminal laws (that are not already federal crimes) whenever the victim is a non-​Indian.125

188  The Rights of Indians and Tribes The third basis for federal jurisdiction is the Major Crimes Act (MCA).126 The MCA authorizes the federal government to prosecute more than a dozen crimes in Indian country when committed by an Indian, regardless of the race of the victim. Most if not all MCA crimes are also crimes under federal enclave law. Therefore, when an Indian commits any of these crimes against a non-​Indian in Indian country, a prosecution can be commenced under both the MCA and the GCA. Courts have held that because the MCA is more specific than the GCA regarding the major crimes, Indians must be prosecuted under the MCA whenever the two overlap.127 These laws overlap only when an Indian commits a crime against a non-​Indian that is both a major crime and a federal enclave crime. The laws do not overlap when the crime is not a major crime or when the victim is an Indian; only the GCA applies in the first situation, and only the MCA applies in the second.

2. Federal Jurisdiction over Crimes Committed by Indians against Indians Congress has passed only one law, the Major Crimes Act of 1885,128 that expressly confers jurisdiction to the federal government over crimes committed by Indians against other Indians in Indian country, and it covers about a dozen crimes. Some federal courts have also permitted the federal government to prosecute Indians who commit a “wherever committed” (or “general applicability”) crime. These are crimes that Congress intended (or so these courts have held) to be prosecuted by the federal government wherever they are committed: crimes such as distributing a controlled substance, assaulting a federal officer, carjacking resulting in death, and retaliating against a federal witness. Courts have held that because location (“situs”) is not an element of the offense—​in other words, the government does not have to prove that the offense occurred at a particular location to obtain a conviction—​Indians may be prosecuted for the crime even if the offense was committed by an Indian against another Indian on an Indian reservation and is not one of the crimes covered by the MCA.129

May Indian tribes exercise jurisdiction over the “major” crimes?

Indian tribes have the inherent right to impose their criminal jurisdiction on all Indians on the reservation unless Congress has clearly abrogated that

Criminal Jurisdiction in Indian Country  189 right. Accordingly, tribes should be presumed to have the right to prosecute Indians for the crimes listed in the MCA, given that Congress has passed no law clearly abrogating that authority.130 The Supreme Court has not decided this issue. In 1990, the Court stated “it remains an open question” whether Indian tribes have jurisdiction to prosecute the crimes covered by the MCA.131 Many tribes have chosen not to prosecute Indians for the crimes covered by the MCA, partly because the federal government has jurisdiction to prosecute them and partly because, except for those few tribes that increased their punishments under TLOA, the maximum punishment a tribe can impose is one year in jail, a sentence considered too lenient for committing one of these major crimes. TLOA, which permits tribes to increase their sentences to three years, may encourage more tribes to prosecute these offenses, particularly in situations where the federal government has declined to do so. Some tribes already do prosecute these offenses.132

If a tribe prosecutes an Indian, may the federal government later prosecute that person for the same offense?

There are two provisions of law that would seem to bar the federal government from prosecuting an Indian who has already been prosecuted for the same crime in tribal court. The first is the Double Jeopardy Clause of the Fifth Amendment to the Constitution, which guarantees that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” (The term same offense as used in the Double Jeopardy Clause applies to “lesser included” offenses.133 A lesser included offense is a crime necessarily committed whenever a greater offense occurs. For example, the crime of assault is always committed when a murder is committed; therefore, a person prosecuted for assault—​whether convicted or acquitted—​cannot later be prosecuted for murder arising out of the same incident against the same victim, and likewise, a prosecution for murder precludes a later prosecution for assault.) The Supreme Court has held, however, that the Double Jeopardy Clause applies only to successive prosecutions by the same government and not to successive prosecutions by different governments.134 If a person’s conduct simultaneously violates both state and federal law, both the state and federal government may prosecute that person. In United States v. Wheeler (1978),135 the Supreme Court was asked to decide whether the federal government could prosecute an Indian for statutory rape after a tribal court had convicted him

190  The Rights of Indians and Tribes of contributing to the delinquency of a minor, a lesser included offense. The defendant argued that tribal governments are merely arms of the federal government and, therefore, a second prosecution would constitute double jeopardy because the same government would be prosecuting twice. The Court disagreed. In a decision of far-​reaching significance, the Court recognized that, although Congress can abolish tribal powers, it is not the source of them. Indian tribes exercise original, inherent powers, and their courts are not arms of the federal government. Consequently, the Double Jeopardy Clause was inapplicable, the Court held, and the defendant could be prosecuted in federal court under the MCA after being prosecuted in tribal court for the same (or a lesser included) offense.136 Similarly, the Supreme Court held in United States v. Lara (2004),137 that a nonmember Indian may be prosecuted by both the tribe and the federal government for the same crime without violating the Double Jeopardy Clause. In 2022, in Denezpi v. United States,138 the Supreme Court ruled that an Indian convicted in a federal court of committing a federal offense was not subjected to double jeopardy, even though he already had been convicted in a tribal court funded by the Bureau of Indian Affairs—​a Code of Federal Regulations (CFR) court—​of violating a tribal law arising out of the same conduct that gave rise to the federal prosecution. The Double Jeopardy Clause prevents a second prosecution of the “same offense,” and it is never the same offense, the Supreme Court explained, when the crimes for which the defendant was convicted were enacted by two different governments. The GCA expressly prohibits the federal government from prosecuting an Indian “who has been punished by the local law of the tribe.”139 This exemption clearly seems to prohibit, as one court noted, “a successive prosecution in federal court . . . after the tribe has imposed punishment for the offense.”140 However, most federal courts addressing the question have held that this exemption applies only “to federal laws where the situs [the location] of the crime is an element of the offense.”141 Given that few federal crimes make location an element of the offense (in other words, assaulting a federal officer is a federal crime wherever it is committed), the potential reach of this exemption has been narrowed substantially.

The Major Crimes Act uses the term “Indian” without defining it. Is this constitutional? If so, who is an “Indian” for purposes of the MCA?

The Major Crimes Act applies only to those crimes committed by an “Indian.” In all MCA prosecutions, the federal government must allege in the

Criminal Jurisdiction in Indian Country  191 indictment and prove to a jury beyond a reasonable doubt that the defendant is an Indian.142 The MCA does not define the term Indian, leading some people to argue that the Act is unconstitutionally vague. Courts have rejected this argument, ruling that although the MCA does not define the term, the word Indian is adequately defined in other statutes and in court cases.143 The Supreme Court has noted the controversy but has not resolved it.144 (The definition of “Indian” for purposes of criminal jurisdiction is explained in Chapter II, Section A.)

Is the Major Crimes Act unconstitutional because it results in Indians being treated differently than non-​Indians in some situations?

An Indian who commits a murder on an Indian reservation can be punished by the federal government under the Major Crimes Act, whereas a non-​ Indian who murders another non-​Indian on the reservation can only be punished under state law.145 If the MCA happens to punish murder more severely than the state does (for example, the federal government may allow the death penalty for this crime while the state does not), an Indian could receive a harsher sentence than a non-​Indian for the same crime. In United States v. Antelope (1977),146 the Supreme Court held that the MCA is not unconstitutional even though it may subject an Indian to a harsher penalty than a similarly situated non-​Indian. Congress has the right to treat Indians as a separate group because they have a unique status under the Constitution. Therefore, any benefits or detriments the MCA imposes on Indians are within the power of Congress to create, the Court said.147 On a related and disturbing note, considerable evidence exists, including data from several scholarly studies, that Indian defendants in federal courts often receive harsher sentences than non-​Indians who commit the same crimes “based purely on their race or residence.”148 As one federal judge recently stated, “[t]‌he time has come for federal courts to take action” to prevent these disparities.149

In a jury trial under the Major Crimes Act, is the Indian defendant entitled to a “lesser included offense” instruction?

A defendant in a criminal prosecution often will request that the judge give the jury a “lesser included offense” instruction. This instructs the jury that it may find the defendant guilty of a less severe but included offense if the jury

192  The Rights of Indians and Tribes believes that the facts do not warrant conviction of the offense charged. This instruction often works to the advantage of the accused because, without it, the jury might find the defendant guilty of the more serious offense rather than acquit. The risk, of course, is that the jury might decide to convict the defendant of the lesser charge, when it would have voted to acquit the defendant had the more serious charge been the only option. Until 1973, federal courts did not give lesser included offense instructions in prosecutions under the Major Crimes Act unless the lesser offense was one of the crimes listed in the MCA. In Keeble v. United States (1973),150 the Supreme Court held that the Constitution requires courts to offer a lesser included offense instruction in an MCA case just as in other cases. This means, of course, that the court then has the authority to sentence the defendant for the lesser offense.151

What is the Federal Death Penalty Act and how does it impact Indian tribes?

In 1994, Congress passed the Federal Death Penalty Act.152 This law allows each tribe to decide whether a member of that tribe can be sentenced to death if found guilty of committing a crime under either the MCA or GCA for which the death penalty can be imposed. A court cannot impose that sentence if the tribe on whose reservation the crime was committed opts out of the death penalty.153 According to a study by the New York Times, “nearly all” tribes have opted out.154 In 2020, however, the federal government executed a Navajo, Lezmond Mitchell, for the crime of carjacking resulting in death (a “wherever committed” federal crime). Because that crime is not an MCA or GCA offense, the Federal Death Penalty Act was inapplicable, and Mr. Mitchell was executed despite the fact that both the Navajo Nation and the parents of the deceased victim asked the federal government to spare Mr. Mitchell’s life.155 Mr. Mitchell could have been charged with murder under the MCA, and it appears that the federal government opted to charge him with carjacking resulting in death to avoid application of the Federal Death Penalty Act.

B.  CRIMES COMMITTED BY NON-​INDIANS AGAINST INDIANS IN INDIAN COUNTRY IN NON–​P.L. 280 STATES The tribe: An Indian tribe has no jurisdiction over any crime committed by a non-​Indian as a result of Oliphant v. Suquamish Indian Tribe (1978),156

Criminal Jurisdiction in Indian Country  193 except those recognized by Congress in VAWA as being within the inherent authority of Indian tribes. But even when a tribe cannot prosecute, it is not powerless. First, the tribe may remove the non-​Indian from the reservation and not permit that person to return.157 Second, if tribal police have reasonable suspicion to believe a non-​Indian is committing a crime on the reservation, the police may search the non-​Indian and, if evidence of a crime is found, turn the person over to state or federal authorities.158 Third, a tribal court may issue a civil fine in appropriate circumstances, and if property, such as an automobile, was involved in the illegal activity, the property may be seized by the tribe and is subject to forfeiture.159 (Recently, for instance, the Muskogee (Creek) Nation confiscated an automobile owned by a non-​ Indian that was used in transporting drugs onto the reservation.)160 Lastly, the tribe can enter into a cross-​deputization agreement with the local law enforcement agency to allow the tribe to arrest non-​Indian lawbreakers. The federal government: The GCA authorizes the federal government to prosecute non-​Indians who commit crimes against Indians in violation of a federal enclave law, and the ACA makes all state criminal laws applicable to Indian country for acts that are not already federal crimes. The combination of these two laws gives the federal government full criminal jurisdiction over crimes committed by a non-​Indian against an Indian in Indian country.161 The state: It had long been presumed that the GCA—​which expressly confers on the federal government the power to prosecute non-​Indians for crimes committed against Indians in Indian country—​eliminated the state’s power to prosecute those same offenses, although the GCA itself is silent on this subject. As one state court noted in 1990: “The prevailing rule has always been that federal courts have exclusive jurisdiction over an offense committed in Indian country by a non-​Indian against the person or property of an Indian.”162 In 2022, however, a 5–​4 Supreme Court held in Oklahoma v. Castro-​ Huerta163 that “the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-​Indians against Indians in Indian country.”164 According to the four dissenting Justices, the Court ignored two hundred years’ worth of court rulings that held that a state has no jurisdiction in Indian country in matters involving Indians unless Congress has expressly conferred that authority.165 The majority in Castro-​ Huerta held instead that a state may exercise all of its governmental powers in Indian country except for those that Congress has expressly prohibited or “when the exercise of state jurisdiction would unlawfully infringe on tribal self-​government.”166 According to the majority, Congress has not expressly

194  The Rights of Indians and Tribes prohibited a state from prosecuting non-​Indians who commit crimes in Indian country. Moreover, allowing a state to prosecute such lawbreakers would not interfere with tribal self-​government because (1) the tribe cannot prosecute them in most instances due to Oliphant, and (2) the exercise of state jurisdiction will help ensure public safety, to the betterment of the tribal community, by adding another government with criminal authority.167 In other words, the Court concluded that allowing the state to prosecute these offenders will help tribes, not hurt them. The majority in Castro-​Huerta drastically altered prevailing federal Indian law. In Worcester v. Georgia (1832),168 the Supreme Court held that state law “can have no force” in Indian country without the express consent of Congress.169 In Castro-​Huerta, however, the majority stated that “Worcester rested on a mistaken understanding of the relationship between Indian country and the States,” and held that states have far more control in Indian country than Worcester indicated.170 The Castro-​Huerta decision has been extensively criticized in Indian country. One law professor, Dylan Hedden-​Nicely, wrote that the Supreme Court “lurched suddenly and dramatically back toward a policy of colonialism with its decision in Oklahoma v. Castro-​Huerta.”171 Another law professor, Michael Doran, wrote that “Castro-​Huerta is the most serious setback to tribal sovereignty in decades” and urges tribes and their supporters to lobby Congress to pass legislation overturning it.172

C.  CRIMES COMMITTED BY NON-​INDIANS AGAINST NON-​INDIANS IN INDIAN COUNTRY The tribe: The tribe has no jurisdiction over these crimes; as discussed earlier, the Supreme Court ruled in Oliphant that Indian tribes lack criminal jurisdiction over non-​Indians. (VAWA is inapplicable to these crimes because VAWA applies only when the victim is an Indian.) The federal government: The federal government does not have jurisdiction, either, unless the crime is a “wherever committed” crime, such as assaulting a federal officer or retaliating against a federal witness. The state: Although the Supreme Court held in 1832 in Worcester that state laws “can have no force” in Indian country without express authorization from Congress,173 the Court held in United States v. McBratney (1881)174 that a state may prosecute non-​Indians who commit crimes against other

Criminal Jurisdiction in Indian Country  195 non-​Indians in Indian country even though Congress had not given consent for that authority. It is now well settled that states can prosecute non-​Indians for crimes committed against other non-​Indians in Indian country even without congressional consent.175

D.  CRIMINAL JURISDICTION IN P.L. 280 STATES P.L. 280,176 as explained earlier, required the six mandatory states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) to enforce their criminal laws in Indian country to the same extent that they enforce them elsewhere in the state (except for a few exempted Indian reservations). P.L. 280 gave the remaining forty-​four states the option of assuming the same criminal jurisdiction the mandatory states had received, and several of them passed laws accepting some amount of criminal jurisdiction in Indian country, as illustrated in the charts provided earlier. P.L. 280 contains a “savings” clause, however, that exempts certain subject areas from state jurisdiction. As a result of this clause, even P.L. 280 states may not tax or otherwise regulate trust land or deprive an Indian or tribe of any federally guaranteed hunting, fishing, or trapping rights and the right to license, control, and regulate those rights.177 For instance, the state cannot make it illegal for a tribal member to hunt at a time that would be “out of season” under state law if that member has a treaty right that permits hunting at that time.178

Did P.L. 280 abrogate the tribe’s criminal jurisdiction?

No. Courts have recognized that “nothing in the language or history of Public Law 280 indicates an intent by Congress to diminish tribal authority.”179 Consequently, tribes in P.L. 280 states retain their inherent right to prosecute Indians (both members and nonmembers) who commit crimes on the reservation. Moreover, as noted earlier, an Indian can be prosecuted by the tribe and by the state for the same incident without violating the Double Jeopardy Clause; these governments have concurrent jurisdiction.180

Have any other states received criminal jurisdiction in Indian country besides the P.L. 280 states?

Yes, Congress has conferred on at least nine states jurisdiction similar to the authority conferred by P.L. 280, including Colorado, Connecticut, Kansas,

196  The Rights of Indians and Tribes Maine, New York, North Dakota, Oklahoma, Rhode Island, and South Carolina. A chart prepared by the Native American Rights Fund (NARF) shows all of the states that have a provision similar to PL-​280. See https://​ narf.org/​tri​bal-​state-​juris​dict​ion. (The jurisdiction received by New York and Oklahoma is discussed in Chapter XIV.) In addition, a federal law, Title 18 of the U.S. Code, Section 1161, authorizes all states to regulate liquor transactions within Indian country.181 This law permits states to prosecute all persons—​Indians and non-​Indians alike—​who violate the state’s liquor laws on an Indian reservation.182

E.  JURISDICTION OVER VICTIMLESS CRIMES IN INDIAN COUNTRY What is a “victimless” crime?

Certain activities have been made crimes even though they cause no identifiable physical harm to anyone or anything. These “victimless crimes” are prohibited because society believes that these activities are harmful to the individuals engaging in them. Adultery, prostitution, and (where it is still illegal) the possession of marijuana are examples of victimless crimes.

Which government can prosecute an Indian who commits a victimless crime in Indian country?

Victimless crimes committed on the reservation by Indians are always subject to the tribe’s criminal jurisdiction, given that an Indian tribe has the inherent right to enforce its criminal laws against Indians. The state, on the other hand, never has jurisdiction without express congressional consent, such as that found in P.L. 280. A more difficult question is whether the federal government has jurisdiction over these crimes. Victimless crimes are considered to be crimes against the community at large. The Major Crimes Act authorizes the federal government to prosecute certain crimes, none of them victimless. Therefore, if the federal government has any authority over victimless crimes committed by an Indian, it can be found only in the GCA. The GCA, however, contains an express exception, discussed earlier, that withholds jurisdiction from the federal government over any crime committed by one Indian against another. This exception would seem to preclude federal jurisdiction over a victimless crime, which should be viewed as a crime against the Indian community.

Criminal Jurisdiction in Indian Country  197 Courts have rendered conflicting decisions on this matter. In 1916, the Supreme Court held in United States v. Quiver183 that the federal government could not prosecute an Indian for committing adultery with another Indian on the reservation due to the exception contained in the GCA. Since then, however, at least three federal courts have allowed the federal government to prosecute reservation Indians for gambling, selling fireworks, and driving under the influence of alcohol (all victimless crimes), contrary to the rationale of Quiver.184 Two of these decisions did not mention Quiver, and the third opined that Quiver exempts only the federal prosecution of a crime related to domestic relations, such as adultery.185

Which government has jurisdiction when a non-​Indian commits a victimless crime in Indian country?

Given Oliphant, the only criminal jurisdiction that an Indian tribe may exercise over non-​Indians is set forth in VAWA, and none of the crimes covered by VAWA are victimless. Therefore, the only governments that could have jurisdiction over a victimless crime committed by a non-​Indian in Indian country are the state and federal governments. The U.S. Department of Justice has taken the position that the state and not the federal government has jurisdiction over victimless crimes committed by non-​Indians in Indian country, unless their behavior directly threatens the interests of the tribe or its members186 or the offense is a “wherever committed” crime. Several courts have agreed with this view,187 a view consistent with the Supreme Court’s recent decision in Castro-​Huerta, which held that a state generally may apply its criminal laws against non-​Indians in Indian country.

F.  PROBLEMS RELATING TO EXTRADITION It often happens that a person will commit a crime in one state and flee to another state to avoid prosecution. The U.S. Constitution provides that if the governor of the first state (the demanding state) asks the governor of the second state (the asylum state) to “deliver up” a person accused of a crime, the asylum state must comply with that request.188 This process is called extradition. Indian tribes and their members can become involved with extradition in two situations: when an Indian commits a crime on the reservation and flees

198  The Rights of Indians and Tribes elsewhere and when an Indian commits a crime off the reservation and flees to the reservation. Indian tribes sometimes seek extradition and sometimes are asked to extradite.

Does the U.S. Constitution’s Extradition Clause apply to tribal governments?

No. More than a century ago, the Supreme Court held that the provisions contained in the Constitution do not apply to tribal governments unless Congress expressly makes them applicable.189 Congress has not made the Extradition Clause applicable to Indian tribes; accordingly, courts have held it is inapplicable.190 Tribal and state officials have no duty to honor each other’s extradition requests, although nothing prevents them from doing so. To avoid the appearance of harboring criminals and to assist each other in prosecuting lawbreakers, many tribes and their surrounding states have entered into extradition agreements.

G.  CRIMES COMMITTED BY INDIANS OFF THE RESERVATION Which government has jurisdiction over off-​reservation crimes committed by Indians?

Normally, Indians who leave the reservation are fully subject to the same state and federal laws as everyone else.191 Thus, an Indian who commits a federal crime outside the reservation can be prosecuted by the federal government. Similarly, it is “well established,” the Supreme Court confirmed in 2001, “that States have criminal jurisdiction over reservation Indians for crimes committed . . . off the reservation.”192 If an Indian is engaging in an activity outside the reservation that would otherwise violate state law but the Indian has a federal right to engage in that activity, the state cannot prosecute.193 For instance, tribal members exercising off-​reservation treaty hunting or fishing rights must comply with tribal and federal law, not state law.194 Recently, a federal appellate court upheld the right of a tribe to arrest and prosecute a tribal member who assaulted another tribal member in a tribal building located outside the reservation on land belonging to the tribe. The court agreed that the tribe had substantial “self-​governance interests” in regulating such misconduct on off-​reservation tribal land.195

Criminal Jurisdiction in Indian Country  199

Are state officers allowed to enter the reservation and arrest an Indian who has committed a crime in state territory?

The Supreme Court has yet to squarely rule on this issue but language in its 2001 decision in Nevada v. Hicks (2001)196 suggests that state officers may enter an Indian reservation without the tribe’s consent to investigate crimes allegedly committed by an Indian off the reservation. The precise issue in Hicks was whether a tribal court could hear a case filed by a tribal member seeking damages against state game wardens. These officers had searched the member’s home looking for evidence of a crime they believed he had committed outside the reservation, but they found no evidence of criminal activity in the member’s home. The Supreme Court, in holding that tribal courts generally lack jurisdiction to hear such cases, indicated that the officers had done nothing wrong in the first place because state officials may enter Indian reservations to investigate crimes allegedly committed by Indians outside the reservation.197 In 2021, the South Dakota Supreme Court, relying on Hicks, held that state law enforcement officers have the authority “to enter into Indian country to investigate state crimes alleged to have been committed by Indians off the reservation.”198 Similarly, the New Mexico Supreme Court has held that Hicks authorizes state officials to enter Indian country to arrest an Indian who has committed an off-​reservation crime. The court noted, however, that the state of New Mexico has a “venerable tradition” of respecting tribal sovereignty and, therefore, New Mexico law enforcement officers should use available tribal procedures whenever possible, such as seeking a search warrant from a tribal court rather than relying on a warrant issued by a state court.199

Notes 1. United States v. Bruce, 394 F.3d 1215, 1222 (9th Cir. 2005). See also Duro v. Reina, 495 U.S. 676, 680 (1990); Angelique EagleWoman, Jurisprudence and Recommendations for Tribal Court Authority Due to Imposition of U.S. Limitations, 47 Mitch. Haml. L. Rev. 341, 355 (2020) (noting that criminal jurisdiction in Indian country has been described as “a criminal jurisdiction maze”). 2. As explained in Chapter V, Section A, the Supreme Court has held that Congress can limit or expand tribal, state, and federal powers in Indian country. See, e.g., United States v. Kagama, 118 U.S. 375 (1886) (upholding a law that expanded federal criminal jurisdiction in Indian country). 3. United States v. Wheeler, 435 U.S. 313, 328 (1978). 4. 31 U.S. 515 (1832).

200  The Rights of Indians and Tribes 5. 109 U.S. 556 (1883). 6. 435 U.S. 191 (1978). See also United States v. Cooley, 141 S. Ct. 1638, 1643 (2021). 7. 104 U.S. 621 (1881). See also McGirt v. Oklahoma, 140 S. Ct. 2452, 2460 (2020) (confirming the McBratney rule). 8. 142 S. Ct. 2486 (2022). 9. 18 U.S.C. § 1152. 10. 18 U.S.C. § 1153. 11. 18 U.S.C. § 1162, 28 U.S.C. § 1360. 12. Codified at 25 U.S.C. § 1301(2), (4). 13. Pub. L. No. 111-​211, 124 Stat. 2258 (2010), codified within 25 U.S.C. § 1302. 14. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-​4, tit. IX, 127 Stat. 54, 118–​26 (Mar. 7, 2013), and Pub. L. 117-​103, div. W, title VIII, § 804, Mar. 15, 2022, 136 Stat. 898 (codified at 25 U.S.C. § 1304). 15. 18 U.S.C. § 1152. 16. Id. See United States v. Wheeler, 435 U.S. 313, 324–​25 (1978). 17. See United States v. Walker, 85 F.4th 973, 978–​82 (10th Cir. 2023) (noting that the government has the burden of proving that the victim and the perpetrator are of different races and that one is an Indian); United States v. Bruce, 394 F.3d 1215, 1219 (9th Cir. 2005). 18. 18 U.S.C. § 1153. 19. 109 U.S. 556 (1883). 20. See United States v. Zunie, 444 F.3d 1230 (10th Cir. 2006) (assault with intent to commit serious bodily injury); United States v. Sitting Bear, 436 F.3d 939 (8th Cir. 2006) (murder); United States v. Smith, 387 F.3d 826 (9th Cir. 2004) (burglary). 21. 18 U.S.C. § 1162, 28 U.S.C. § 1360. 22. See Carole Goldberg & Duane Champagne, Is Public Law 280 Fit for the Twenty-​First Century? Some Data at Last, 38 Conn. L. Rev. 697, 701–​02 (2006). 23. See H.R. Rep. No. 848, 83d Cong., 1st Sess. 1–​6 (1953). See also Bryan v. Itasca County, Minnesota, 426 U.S. 373, 379 (1976); Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 884–​87 (1986). 24. Washington v. Confederated Tribes and Band of the Yakima Indian Nation, 439 U.S. 463, 488 (1979). 25. 18 U.S.C. § 1162(a). 26. See Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. Rev. 535, 537–​59 (1975); S. Lyman Taylor, History of Indian Policy 182–​83 (1973). 27. See Bryan, 426 U.S. 373. 28. The three tribes exempted from state jurisdiction in the mandatory states lobbied strenuously to be excluded and Congress agreed to exempt them. See Goldberg & Champagne, supra note 22, at 700–​01. 29. Pub. L. No. 85-​615, § 1, 72 Stat. 545. The Annette Islands, home to the Metlakatla Indian Community, originally was excluded from Alaska’s P.L. 280 jurisdiction, but a 1970 amendment to P.L. 280 placed it under the state’s criminal jurisdiction, consistent with the tribe’s request. See Andy Harrington, Exclusive of What? The Historical

Criminal Jurisdiction in Indian Country  201 Context of the 1970 “Metlakatla” Amendment to PL 280, available at https://​scho​lars​ hip.law.duke.edu/​cgi/​view​cont​ent.cgi?arti​cle=​1082&cont​ext=​alr. 30. Pub. L. No. 83-​280, §§ 6, 7. See Goldberg & Champagne, supra note 22, at 703. 31. 480 U.S. 202 (1987). 32. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208 (1987). 33. Id. 34. State v. Roy, 761 N.W.2d 883 (Ct. App. Minn.), cert. denied, 558 U.S. 1092 (2009). 35. State v. Johnson, 598 N.W.2d 680 (Minn. 1999). See also State v. R.M.H., 617 N.W.2d 55 (Minn. 2000). Similarly, regulatory traffic laws were held unenforceable against reservation Indians in Chemehuevi Indian Tribe v. McMahon, 934 F.3d 1076 (9th Cir. 2019), cert. denied, 140 S. Ct. 1295 (2020). 36. Cabazon Band, 480 U.S. at 211; Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 148–​49 (9th Cir. 1991), cert. denied, 503 U.S. 997 (1992). 37. Confederated Tribes of Colville, 938 F.2d at 149. 38. Washington v. Confederated Tribes and Band of the Yakima Indian Nation, 439 U.S. 463 (1979). 39. See Ariz. Rev. Stat. Ann. § 49-​561 (repealed). 40. Fla. Stat. Ann. § 285.16. See Florida House of Representatives v. Crist, 999 So.2d 601, 613–​14 (Fla. 2008). 41. Idaho Code §§ 67-​5101 through 5103. See Doe v. Doe, 349 P.3d 1209 (Idaho 2015). For a report on Idaho’s P.L. 280 jurisdiction, see State Jurisdiction in Indian Country (Idaho Leg. Report, Mar. 2017), available at https://​legi​slat​ure.idaho.gov/​ope/​repo​ rts/​r1702. 42. Iowa Code Ann. §§ 1.12–​14. The state accepted civil jurisdiction under P.L. 280 in 1967. Congress had already conferred criminal jurisdiction on the state in 1948. In 2018, Congress repealed the 1948 statute. For a discussion of this history, see State v. Stanton, 933 N.W.2d 244, 248–​49 (Iowa 2019). 43. Mont. Rev. Code Ann. §§ 2-​1-​301 through 2-​1-​306. See Liberty v. Jones, 782 P.2d 369 (Mont. 1989). Those crimes not covered by the tribe’s consent cannot be prosecuted by the state. See Balyeat Law, P.C. v. Pettit, 931 P.2d 50 (Mont. 1997). 44. Nevada initially accepted jurisdiction, see Nev. Rev. Stat. § 41.430, but retroceded it. See 40 Fed. Reg. 27501 (June 30, 1975). 45. North Dakota Century Code Chap. 27–​19. 46. When no tribe consented, South Dakota attempted to acquire jurisdiction—​see S.D.C.L. 1-​1-​12 through 1-​1-​21—​but federal and state courts held that these statutes are defective. South Dakota thus lacks jurisdiction under P.L. 280. See Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir. 1990), cert. denied, 500 U.S. 915 (1991); State v. Spotted Horse, 462 N.W.2d 463, 467 (S.D. 1990). 47. Utah Code Ann. §§ 63-​36-​201 et seq. 48. Wash. Rev. Code §§ 37.12.010 through 150. See State v. Shale, 345 P.3d 776 (Wash. 2015); Cordova v. Holwegner, 971 P.2d 531 (Wash. App. 1999). As with the mandatory states, Washington may not enforce laws that are civil rather than criminal in nature. See Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 147 (9th Cir. 1991), cert. denied, 503 U.S. 997 (1992).

202  The Rights of Indians and Tribes 49. 25 U.S.C. §§ 1322, 1326. A state cannot acquire P.L. 280 jurisdiction unless this election procedure is followed. Kennerly v. District Court, 400 U.S. 423 (1971). 50. 25 U.S.C. § 1323(a). The Secretary of the Interior can accept retrocessions. See Exec. Order 11435 (Nov. 21, 1968). 51. Many tribes and commentators have urged Congress to authorize tribes to initiate a retrocession and to permit the Attorney General of the United States to accept a retrocession without the state’s consent. See Robert T. Anderson, Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, 87 Wash. L. Rev. 915 (2012). 52. 495 U.S. 676 (1990). 53. See Act of Oct. 28, 1991, Pub L. No. 102-​137, § 1, 105 Stat. 646, codified at 25 U.S.C. § 1301(2), (4). 54. 541 U.S. 193 (2004). 55. United States v. Lara, 541 U.S. 193 (2004); United States v. Stymiest, 581 F.3d 759, 765 (8th Cir. 2009), cert. denied, 559 U.S. 1055 (2010). 56. Pub. L. No. 111-​211, 124 Stat. 2258 (2010), codified within 25 U.S.C. § 1302. 57. 25 U.S.C. §§ 1301 et seq. The ICRA is discussed in Chapter XIII. 58. 25 U.S.C. §§ 1302(a)(7)(C) and (D) and 1302(c). See Picard v. Colville Tribe, 2021 WL 768137 (E.D. Wash. 2021). 59. See Christopher B. Chaney, Data Sovereignty and the Tribal Law and Order Act, The Federal Lawyer 23 (Apr. 2018), available at https://​www.fed​bar.org/​wp-​cont​ent/​ uplo​ads/​2018/​04/​Cha​ney-​pdf-​1.pdf. 60. A tribe must submit an application to the FBI for permission to access the database. Arbitrary denials by the FBI of tribal applications can be reversed by a court. See Cayuga Nation v. United States, 594 F. Supp. 3d 64 (D.D.C. 2022). 61. Chaney, supra note 59, at 24. 62. 18 U.S.C. § 1162(c). 63. Id. at § 1162(d). 64. U.S. Dep’t of Just., Memorandum for United States Attorneys in “Optional” Public Law 280 States (Jan. 17, 2017), available at https://​tur​tlet​alk.files.wordpr​ess.com/​2017/​01/​ oaag-​80488-​v1-​optional_​pl​_​280​_​mem​o_​to​_​u_​s​_​_​at​torn​eys.pdf. 65. Office of the Inspector General, Review of the Department’s Tribal Law Enforcement Efforts Pursuant to the Tribal Law and Order Act of 2010, at 1, available at https://​oig. just​ice.gov/​repo​rts/​2017/​e1801.pdf. 66. 435 U.S. 191 (1978). 67. See Sarah Deer & Mary Kathryn Nagle, Return to Worcester: Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children, 41 Harv. J.L. & Gender 179, 220–​22 (2018); Julia M. Bedell, The Fairness of Tribal Court Juries and Non-​Indian Defendants, 41 Am. Indian L. Rev. 253, 262 (2017) (calling Oliphant “a devastating” ruling). 68. Matthew L.M. Fletcher, Muskrat Textualism, 116 Nw. U. L. Rev. 963, 973, 1021 (2022). 69. United States v. Bryant, 136 S. Ct. 1954, 1959 (2016) (internal citations omitted). 70. Deer & Nagle, supra note 67, at 222. See also Leslie A. Hagen, Violent Crime in Indian Country and the Federal Response, 79–​129, available at https://​www.just​ice.gov/​usao/​ page/​file/​1383​296/​downl​oad.

Criminal Jurisdiction in Indian Country  203 71. President Obama’s Nov. 5, 2009, speech is available at https://​obam​awhi​teho​use.archi​ ves.gov/​the-​press-​off​i ce/​rema​rks-​presid​ent-​dur​ing-​open​ing-​tri​bal-​nati​ons-​con​fere​ nce-​inte​ract​ive-​dis​cuss​ion-​w. 72. 151 Cong. Rec. 9061-​62 (2005) (Statement of Sen. John McCain). 73. Editorial, Lawlessness on Indian Lands, N.Y. Times (Nov. 21, 2012), https://​www. nyti​mes.com/​2012/​11/​22/​opin​ion/​lawl​essn​ess-​rages-​in-​ind​ian-​coun​try.html. For an overview of the problem, see Celeste Fremon, How the Criminal Justice System Disproportionally Harms Native American People, Witness La (Oct. 11, 2021), available at https://​witnes​sla.com/​how-​the-​crimi​nal-​just​ice-​sys​tem-​dis​prop​orti​onat​ely-​ harms-​nat​ive-​ameri​can-​peo​ple/​. 74. See Deer & Nagle, supra note 67. See also Sarah Deer, Bystander No More? Improving the Federal Response to Sexual Violence in Indian Country, 2017 Utah L. Rev., no. 4, Art. 7 (2017); S. Rep. No. 112-​153, at 9. 75. Amnesty International, The Never-​Ending Maze: The Continued Failure to Protect Indigenous Women from Sexual Violence in the USA 9 (2022), available at https://​www.amne​sty.org/​en/​docume​nts/​amr51/​5484/​2022/​en/​. See also 159 CONG. REC 1033 (2013) (statement of Sen. Tom Udall: “Non-​Indian perpetrators often go unpunished.”). 76. See Deer, Bystander No More?, supra note 74, at 775. 77. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-​4, tit. IX, 127 Stat. 54, 118–​26 (Mar. 7, 2013), Pub. L. 117-​103, div. W, title VIII, § 804, Mar. 15, 2022, 136 Stat. 898 (codified at 25 U.S.C. § 1304). 78. See 25 U.S.C. § 1304. For a discussion of the 2013 tribal provision, see Margaret H. Zhang, Special Domestic Violence Criminal Jurisdiction for Indian Tribes: Inherent Tribal Sovereignty Versus Defendants’ Complete Constitutional Rights, 164 U. Penn. L. Rev. 243 (2015). For a discussion of both provisions, see https://​www.just​ice.gov/​tri​ bal/​2013-​and-​2022-​reaut​hori​zati​ons-​viole​nce-​agai​nst-​women-​act-​vawa. 79. Indian Law and Order Commission, Roadmap for Making Native America Safer, at V, available at http://​www.aisc.ucla.edu/​iloc/​rep​ort/​. 80. See 25 U.S.C. §§ 1304(a)(14) and (b)(1)). In VAWA 2013, this was called “special domestic violence criminal jurisdiction” (SDVCJ). 81. The Indian Civil Rights Act, 25 U.S.C. §§1301 et seq. is discussed in Chapter XIII. 82. For a discussion of the duty to select a jury from a cross-​section of the community, see Bedell, supra note 67, at 266–​73. 83. See https://​arch​ive.ncai.org/​tri​bal-​vawa/​get-​star​ted/​curren​tly-​imple​ment​ing-​tri​bes; Kevin Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. 200, 229–​30 (2019); Bedell, supra note 67, at 259–​60. 84. National Congress of American Indians, VAWA 2013’s Special Domestic Violence Criminal Jurisdiction Five-​Year Report, at 1, available at http://​arch​ive.ncai.org/​resour​ ces/​ncai-​publi​cati​ons/​SDVC​J_​5_​Year​_​Rep​ort.pdf. 85. 18 U.S.C. § 113(a)(8). 86. See United States v. Harrington, 946 F.3d 485 (9th Cir. 2019). 87. See United States v. Lamott, 831 F.3d 1153, 1155 (9th Cir.), cert. denied, 137 S. Ct. 258 (2016) (citing studies).

204  The Rights of Indians and Tribes 88. 18 U.S.C. § 117. See United States v. Bryant, 136 S. Ct. 1954 (2016); United States v. Cline, 2020 WL 1862595 (W.D. Wash. 2020). 89. 25 U.S.C. § 1304(b)(1). Because VAWA recognizes a tribal power (as opposed to creates a power that did not already exist), both the tribe and the federal government may prosecute the same offender without raising a double jeopardy issue. See notes 133–​38 infra and accompanying text. 90. United States v. Bryant, 136 S. Ct. 1954, 1960 (2016). For a comprehensive analysis of law enforcement in P.L. 280 states, see Carole Goldberg, Duane Champagne, & Heather Valdez Singleton, Final Report: Law Enforcement and Criminal Justice under Public Law 280, at 473–​83, available at https://​www.ncjrs.gov/​pdffil​es1/​nij/​ gra​nts/​222​585.pdf. 91. Amnesty International, supra note 75, at 11. See also U.S. Gov’t Accountability Off., GAO-​11-​167R, U.S. Dep’t of Just. Declinations of Ind. Country Crim, Matters 9 (2010), available at http://​www.gao.gov/​new.items/​ d111​67r.pdf. Congress’s reliance on the state and federal governments to keep tribal communities safe “has been a dismal failure.” EagleWoman, supra note 1, at 356–​57. 92. Regina Branton, Kimi King, & Justin Walsh, Criminal Justice in Indian Country: Examining Declination Rates of Tribal Cases, Social Sci. Q. (2021), at 1. 93. See, e.g., The Northern Cheyenne Tribe v. United States, Civ. No. 22-​75-​BLG (D. Mont., filed July 19, 2022). 94. Oglala Sioux Tribe v. United States, 2023 WL 3606098 at *36 (D.S.D. May 23, 2023). 95. See Emily Mendoza, Jurisdictional Transparency and Native American Women, 11 Cal. L. Rev. Online 141, 165 (2020) (suggesting that law enforcement agencies reach an agreement on which government will prosecute each type of crime). 96. See, e.g., Bishop Paiute Tribe v. Inyo County, 863 F.3d 1144, 1148 (9th Cir. 2017). 97. See Goldberg & Champagne, supra note 22, at 704–​05. 98. For a discussion and data regarding law enforcement in Indian country, including the number of jails and prisoners in Indian country, see Bureau of Just. Stat., Tribal Crime Data Collection Activities 2022, available at https://​bjs.ojp.gov/​ top​ics/​tri​bal-​crime-​and-​just​ice/​jails-​in-​ind​ian-​coun​try. 99. S. Rep. No. 111-​93 (111th Cong., 1st Sess.), at 101. 100. U.S. Dep’t of Justice and U.S. Dep’t of Interior, Tribal Law and Order Act (TLOA) Long Term Plan to Build and Enhance Tribal Justice Systems 13, 22 (2011), available at https://​www.bop.gov/​inma​tes/​docs/​tloa​_​lon​g_​te​rm_​p​lan.pdf. 101. See authorities cited supra note 74. 102. See Bedell, supra note 67, at 259, 275–​78; Cynthia Castillo, Tribal Courts, Non-​ Indians, and the Right to an Impartial Jury After the 2013 Reauthorization of VAWA, 39 Am. Indian L. Rev. 311, 325–​26 (2014–​15); Kevin K. Washburn, Federal Criminal Law and Tribal Self-​Determination, 84 N.C. L. Rev. 779, 845–​55 (2006). 103. See U.S. Dep’t of Justice, Policing on American Indian Reservations (2001), available at https://​www.ojp.gov/​pdffil​es1/​nij/​188​095.pdf. 104. See Obama’s speech, supra note 71, at 5. 105. See Anderson, supra note 51, at 963–​64. 106. See Jennifer Bendery, Lisa Murkowski Revives Bill Targeting Missing and Murdered Native Women, available at https://​www.murkow​ski.sen​ate.gov/​press/​arti​cle/​huf​

Criminal Jurisdiction in Indian Country  205 fing​ton-​post-​upda​ted-​lisa-​murkow​ski-​revi​ves-​bill-​target​ing-​miss​ing-​and-​murde​ red-​nat​ive-​women; Ronet Bachman et al., Violence Against American Indian and Alaska Native Women and the Criminal Justice Response: What Is Known?, U.S. Dep’t of Justice, 5 (2008), available at https://​www.ojp.gov/​pdffil​es1/​nij/​gra​nts/​223​691. pdf. For a video on the subject, see https://​www.yout​ube.com/​watch?v=​H1ti​hThR​ Yz4. See also Megan Mallonee, Selective Justice: A Crisis of Missing and Murdered Alaska Native Women, available at https://​scho​lars​hip.law.duke.edu/​cgi/​view​cont​ ent.cgi?arti​cle=​1593&cont​ext=​alr. 107. Pub. L. No. 116-​165 (Oct. 10, 2020). 108. See Dept. of Justice Journal of Federal Law and Practice, Missing or Murdered Indigenous Persons: Law Enforcement and Practice (Jan. 2021), available at https://​ www.just​ice.gov/​usao/​page/​file/​1383​296/​downl​oad. 109. S. 982, 116th Cong. (2020). The Not Invisible Act Commission (NIAC) submitted a comprehensive 212-​page report in November 2023 outlining recommended corrective actions. See https://​www.just​ice.gov/​d9/​2023-​11/​34%20N​IAC%20Fi​nal%20 Rep​ort_​vers​ion%2011.1.23_​FI​NAL.pdf. 110. Kevin Morrow, Bridging the Jurisdictional Void: Cross-​Deputization Agreements in Indian Country 94 N.D. L. Rev. 65, 68 (2015). See also United States v. Cooley, 141 S. Ct. 1638, 1645 (2021) (noting that these agreements can be “difficult to reach”); Matthew L.M. Fletcher, A Unifying Theory of Tribal Civil Jurisdiction, 46 Ariz. St. L.J. 779, 816 (2014). 111. See Morrow, supra note 110, at 13; Bressi v. Ford, 575 F.3d 891, 894 (9th Cir. 2009); Fourstar v. Riden, 2018 WL 6421736, at *2 (D. Mont. 2018) (describing a cross-​ deputization agreement); State v. Davis, 773 N.W.2d 66, 67–​68 (Minn. 2009); Cornelius v. Kansas Department of Revenue, 180 P.3d 579 (Kan. Ct. App. 2008). 112. See United States v. Fowler, 48 F. 4th 1022 (9th Cir. 2022), cert. denied, 143 S. Ct. 640 (2023) . 113. See Fowler, 48 F.4th at 1027; United States v. Schrader, 10 F.3d 1345, 1350 (8th Cir. 1993); Hopeland Band of Pomo Indians v. Norton, 324 F. Supp. 2d 1067, 1068–​69 (N.D. Cal. 2004) (discussing a SLEC agreement). 114. See Morrow, supra note 110, at 9. 115. United States v. Cooley, 141 S. Ct. 1638, 1641 (2021) (quotation slightly altered in format). 116. Id. at 1643–​44. See also Duro v. Reina, 495 U.S. 676, 697 (1990);United States v. Terry, 400 F.3d 575, 579 (8th Cir. 2005); State v. Thompson, 937 N.W.2d 418 (Minn. 2020). 117. Cooley, 141 S. Ct. at 1644; see also State v. Suelzle, 965 N.W.2d 855 (N.D. 2021). For a discussion of Cooley, see Grant Christensen, Getting Cooley Right: The Inherent Criminal Powers of Tribal Law Enforcement, 56 U.C. Davis L. Rev. 467 (2022). 118. United States v. Wheeler, 435 U.S. 313, 326 (1978); United States v. Antelope, 430 U.S. 641, 643 n.2 (1977); Ex parte Crow Dog, 109 U.S. 556 (1883); United States v. Fowler, 48 F. 4th 1022, 1026 (9th Cir. 2022), cert. denied, 143 S. Ct. 640 (2023). 119. See supra notes 52–​55 and accompanying text. 120. Lara, 541 U.S. 193; United States v. Stymiest, 581 F.3d 759, 765 (8th Cir. 2009), cert. denied, 130 S. Ct. 2364 (2010).

206  The Rights of Indians and Tribes 121. McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020); see also Hackford v. Utah, 845 F.3d 1325, 1327 (10th Cir.), cert. denied, 138 S. Ct. 206 (2017); Olson v. No. Dak. Dept. of Transportation, 909 N.W.2d 676 (N.D. 2018). 122. 18 U.S.C. § 1152. 123. 18 U.S.C. § 13. The Supreme Court has upheld the validity of this law as applied to reservation Indians. Williams v. United States, 327 U.S. 711 (1946). 124. Lewis v. United States, 523 U.S. 155, 160 (1988); United States v. Sharpnack, 355 U.S. 286 (1958). 125. United States v. Smith, 925 F.3d 410, 413 (9th Cir. 2019); United States v. Thunder Hawk, 127 F.3d 705 (8th Cir. 1997); United States v. Johnson, 967 F.2d 1431 (10th Cir. 1992), cert. denied, 506 U.S. 1082 (1993). 126. 18 U.S.C. § 1153. 127. See United States v. John, 587 F.2d 683 (5th Cir.), cert. denied, 441 U.S. 925 (1979). 128. 18 U.S.C. § 1153. A year after the MCA was passed, the Supreme Court upheld its constitutionality in United States v. Kagama, 118 U.S. 375 (1886). 129. See United States v. Mitchell, 502 F.3d 931, 946–​47 (9th Cir. 2007) (carjacking resulting in death); United States v. Peltier, 446 F.3d 911 (8th Cir. 2006) (killing a federal officer); United States v. Yannott, 42 F.3d 999, 1003–​04 (6th Cir. 1994), cert. denied, 513 U.S. 1182 (1995) (possession of a firearm by a felon); United States v. Anderson, 391 F.3d 1083 (9th Cir. 2004) (holding that the federal government could prosecute a “general applicability” law even in a P.L. 280 state); United States v. Turtle, 365 F. Supp. 3d 1242 (M.D. Fla. 2019) (prosecution under the Endangered Species Act). 130. See Wetsit v. Stafne, 44 F.3d 823, 825 (9th Cir. 1995) (holding that tribes retain concurrent jurisdiction to prosecute MCA crimes). But see Felicia v. United States, 495 F.2d 353 (8th Cir.), cert. denied, 419 U.S. 849 (1974) (holding that federal jurisdiction under the MCA preempts tribal jurisdiction). 131. Duro v. Reina, 495 U.S. 676, 680 n.1 (1990). 132. See United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002) (discussing a tribal prosecution for rape). See also Wetsit, 44 F.3d at 825 (noting that many major crimes on a reservation would “go unpunished” if tribes did not prosecute them). 133. Brown v. Ohio, 432 U.S. 161 (1977). 134. United States v. Gamble, 139 S. Ct. 1960 (2019); Heath v. Alabama, 474 U.S. 82, 88 (1985). 135. 435 U.S. 313 (1978). 136. See also Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1870–​72 (2016) (confirming that Indian tribes are “separate sovereigns” from the federal government for purposes of the Double Jeopardy Clause); United States v. Long, 324 F.3d 475 (7th Cir.), cert. denied, 540 U.S. 822 (2003). 137. 541 U.S. 193 (2004). 138. 142 S. Ct. 1838 (2022). 139. 18 U.S.C. § 1152. 140. United States v. Bruce, 394 F.3d 1215, 1221 (9th Cir. 2005).

Criminal Jurisdiction in Indian Country  207 141. United States v. Yannott, 42 F.3d 999, 1004 (6th Cir. 1994). See also United States v. Blue, 722 F.2d 383, 385 (8th Cir 1983). 142. United States v. Zepeda, 792 F.3d 1103, 1106–​07 (9th Cir. 2015) (en banc); United States v. Stymiest, 581 F.3d 759, 763 (8th Cir. 2009). 143. Zepeda, 792 F.3d at 1109–​10; United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979). See also United States v. Mazurie, 419 U.S. 544, 553 (1975). 144. United States v. Antelope, 430 U.S. 641, 646 n.7 (1977). For a recent case discussing the issue, see State v. Nobles, 838 S.E. 2d 373, 377–​82 (N.C.), cert. denied, 141 S. Ct. 365 (2020). 145. United States v. McBratney, 104 U.S. 621 (1882). 146. 430 U.S. 641 (1977). See also United States v. Keys, 103 F.3d 758 (9th Cir. 1996). 147. United States v. Antelope, 430 U.S. 641, 648–​49 (1977). See also United States v. Begay, 974 F.3d 1172 (10th Cir. 2020). 148. See United States v. Lasley, 832 F.3d 910, 915–​18 (8th Cir. 2016) (Bright, J. dissenting), cert. denied, 137 S. Ct. 823 (2017). 149. Id. at 920. 150. 412 U.S. 205 (1973). 151. See United States v. Walkingeagle, 974 F.2d 551 (4th Cir. 1992), cert. denied, 507 U.S. 1019 (1993); United States v. Bowman, 679 F.2d 798 (9th Cir. 1982). A court’s decision not to offer a lesser included offense instruction when requested to do so is subject to an abuse of discretion standard of review. See United States v. Lasley, 832 F.3d 910, 913 (8th Cir. 2016), cert. denied, 137 S. Ct. 823 (2017). 152. 18 U.S.C. § 3598. 153. See United States v. Gallaher, 624 F.3d 934 (9th Cir. 2010). 154. Felicia Fonseca, Most American Indian Tribes Opt Out of Federal Death Penalty, AP News (Aug. 21, 2017), available at https://​apn​ews.com/​86b97​34f4​5684​6e9b​0df9​ faa0​2371​22f. 155. For a review of the history of this case, see United States v. Mitchell, 958 F.3d 775 (9th Cir.), cert. denied, 141 S. Ct. 216 (2020). 156. 435 U.S. 191 (1978). See also Bressi v. Ford, 575 F.3d 891, 896 (9th Cir. 2009). 157. See United States v. Cooley, 141 S. Ct. 1638, 1644 (2021); Nevada v. Hicks, 533 U.S. 353, 359 (2001); Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 849–​50 (9th Cir.), cert. denied, 558 U.S. 1024 (2009). 158. Cooley, 141 S. Ct. at 1643–​44; Duro v. Reina, 495 U.S. 676, 697 (1990); Bressi, 575 F.3d at 896; State v. Schmuck, 850 P.2d 1332 (Wash. 1993), cert. denied, 510 U.S. 931 (1993). 159. Miner Electric, Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007 (10th Cir. 2007). 160. Miner Electric, 505 F.3d 1007; see also Wilson v. Horton’s Towing, 906 F.3d 773 (9th Cir. 2018), cert. denied, 139 S. Ct. 1603 (2019). Some tribes have begun using “innovative methods to enforce tribal laws against non-​Indians in Indian country.” See Philip H. Tinker, In Search of a Solution: Tribal Authority to Regulate NonMember Conduct in Indian Country, 50 Tul. L. Rev. 193, 196 (2014). 161. Donnelly v. United States, 228 U.S. 243 (1939); United States v. Chavez, 290 U.S. 357 (1933).

208  The Rights of Indians and Tribes 162. South Dakota v. Larson, 455 N.W.2d 600 (S.D. 1990) (emphasis added). See also St. Cloud v. United States, 702 F. Supp. 1456, 1458 (D.S.D. 1988); State v. Greenwalt, 663 P.2d 1178 (Mont. 1983). 163. 142 S. Ct. 2486 (2022). 164. Oklahoma v. Castro-​Huerta, 142 S. Ct. 2486, 2491 (2022). 165. Id., at 2505–​25 (Gorsuch, Breyer, Sotomayor, Kagen, JJ., dissenting). See also Haaland v. Brackeen, 143 S. Ct. 1609, 1652–​53 (2023) (Gorsuch, Sotomayor, Jackson, JJ. concurring) (explaining that “at the founding, the Tribes retained their sovereignty” and States had “virtually no role to play in managing interactions with Tribes.”). 166. Id. at 2494. 167. Id. at 2501. Some Native American scholars agree with the Court that allowing a second government—​here, the state—​to prosecute non-​Indian lawbreakers is a good thing. See Stacy Leeds (Cherokee), Oklahoma v. Castro-​Huerta, Rebalancing Federal-​State-​Tribal Power, 23 J. of Appellate Prac. & Proc. 47, 53 (Winter 2023). 168. 31 U.S. 515 (1832). 169. Worcester v. Georgia, 31 U.S. 515, 561 (1832). 170. Oklahoma v. Castro-​Huerta, 142 S. Ct. 2486, 2502 (2022). 171. Dylan Hedden-​Nicely, The Terms of Their Deal: Revitalizing the Treaty Right to Limit State Jurisdiction in Indian Country, 27 Lewis & Clark L. Rev. 457, 459 (2023). 172. Michael C. Doran, Tribal Sovereignty Preempted, 89 Brookln L. Rev. 1, 3 (2023). See also Gregory Ablavsky, Too Much History: Castro-​Huerta and the Problem of Change in Indian Law, 2022 Sup. Ct. Rev., available at https://​pap​ers.ssrn.com/​sol3/​ pap​ers.cfm?abst​ract​_​id=​4422​793#:~:text=​The%20key%20q​uest​ion%20in%20Cas​ tro,legal%20cha​nge%20in%20Ind​ian%20law. 173. Worcester, 31 U.S. at 561. 174. 104 U.S. 621 (1881). 175. See United States v. Wheeler, 435 U.S. 313, 324 n.21 (1978); United States v. Antelope, 430 U.S. 641, 643 n.2 (1977). See also Ryder v. State, 648 P.2d 774, 776 (N.M. 1982). 176. 18 U.S.C. § 1162, 28 U.S.C. § 1360, as amended by 25 U.S.C. §§ 1321–​26. 177. 18 U.S.C. § 1162(b) (mandatory states); 25 U.S.C. § 1321(b) (optional states). 178. See Herrera v. Wyoming, 139 S. Ct. 1686 (2019). The one exception to this rule is that Indians and tribes are required to comply with certain state conservation laws to protect the continuation of the species. This exception is explained in Chapter X, notes 128–​38. 179. Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 560 (9th Cir. 1991), rev’d on other grounds, 522 U.S. 520 (1998). See also Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990); State v. Schmuck, 850 P.2d 1332, 1344 (Wash. 1993), cert. denied, 510 U.S. 931 (1993). 180. See supra notes 133–​38 and accompanying text. But see Booth v. State, 903 P.2d 1079 (Alaska App. 1995) (holding that Alaska law prohibits a second prosecution, even though federal law does not). 181. Rice v. Rehner, 463 U.S. 713 (1983).

Criminal Jurisdiction in Indian Country  209 182. Fort Belknap Indian Community v. Mazurek, 43 F.3d 428 (9th Cir. 1994), cert. denied, 516 U.S. 806 (1995). 183. 241 U.S. 602 (1916). See also In re Mayfield, 141 U.S. 107 (1891) (holding that the GCA does not authorize the prosecution of an Indian for adultery with a non-​Indian). 184. United States v. Sosseur, 181 F.2d 873 (7th Cir. 1950), United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977), and United States v. Thunder Hawk, 127 F.3d 705 (8th Cir. 1997), respectively. 185. See Thunder Hawk, 127 F.3d at 709. For a discussion about the application of Quiver, see Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law § 9.02[1]‌[c], 741–​44 (2012 ed.). 186. U.S. Dep’t of Just., Off. of Legal Counsel, Memorandum to Benjamin R. Civiletti: Jurisdiction over Victimless Crimes Committed by Non-​Indians in Indian Country (2016), available at https://​www.just​ice.gov/​jm/​crimi​nal-​resou​rce-​man​ual-​684-​ mem​oran​dum-​benja​min-​r-​civile​tti-​re-​juris​dict​ion-​over-​vic​timl​ess. 187. United States v. Langford, 641 F.3d 1195 (10th Cir. 2011); State v. Reber, 171 P.3d 406 (Utah 2007); Montana ex rel. Poll, Lindlief, & Juneau v. Montana Ninth Judicial District Court, 851 P.2d 405 (Mont. 1993); State v. Burrola, 669 P.2d 614 (Ariz. App. 1983). 188. U.S. Const. art. IV, § 2. The process of extradition is explained in Pacileo v. Walker, 449 U.S. 86 (1980). 189. Talton v. Mayes, 163 U.S. 379 (1896). 190. See State of Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969); Schauer v. Burleigh County, 1987 WL 90271 (D.N.D. 1987). 191. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–​49 (1973); DeCoteau v. District County Court, 420 U.S. 425, 427 n.2 (1975); State v. Clark, 3 P.3d 689 (N.M. App. 2000). 192. Nevada v. Hicks, 533 U.S. 353, 362 (2001). 193. See Herrera v. Wyoming, 139 S. Ct. 1686 (2019); Mattz v. Arnett, 412 U.S. 481, 505 (1973); United States v. Azure, 801 F.2d 336 (8th Cir. 1986); United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985), cert. denied, 477 U.S. 906 (1986). 194. This subject is discussed in Chapter X, Section B. 195. Kelsey v. Pope, 809 F.3d 849, 861 (6th Cir.), cert. denied, 137 S. Ct. 183 (2016). 196. 533 U.S. 353 (2001). Hicks is discussed in the next chapter, notes 34–​36 and accompanying text. 197. Nevada v. Hicks, 533 U.S. 353, 357–​65 (2001). See State v. Harrison, 238 P.3d 869, 878 (N.M. 2010) (noting that “Hicks could be construed broadly to suggest that state officers who are investigating off-​reservation crimes in Indian country need not comply with governing tribal procedures”). For a discussion of this interpretation of Hicks, see Fletcher, supra note 68, at 984–​86. 198. State v. Cummings, 954 N.W.2d 731, 737 (S.D. 2021). 199. Harrison, 238 P.3d at 878. See also State v. Smith, 268 P.3d 644 (Ore. App. 2011) (holding that a “fresh pursuit” of an Indian driving a car onto the reservation from off the reservation was generally prohibited but was permitted in this instance because the tribal code authorized it).

VIII Civil Jurisdiction in Indian Country Every government has two broad powers: criminal jurisdiction and civil jurisdiction. A government exercises its criminal jurisdiction when it prohibits certain conduct and punishes those who engage in that conduct.1 All other governmental regulation is an exercise of civil jurisdiction. Most domestic matters, such as marriage, divorce, child custody, and adoption, and most property matters, such as taxation, land use, inheritance, and the sale of goods and services are regulated through a government’s civil jurisdiction. This chapter discusses which civil jurisdiction tribes, states, and the federal government may exercise over Indians and non-​Indians in Indian country.

A.  TRIBAL CIVIL JURISDICTION IN INDIAN COUNTRY Does an Indian tribe have the right to exercise civil jurisdiction over tribal members on the reservation?

Yes. An Indian tribe has the inherent right to exercise civil jurisdiction over tribal members on the reservation, unless expressly limited by Congress.2 Tribal members who wish to marry, adopt children, develop their land, or engage in commercial enterprises on the reservation may do so only if they comply with tribal law. Indian tribes have the inherent right to exclude tribal members who violate tribal law from the reservation.3

Does an Indian tribe have the right to exercise civil jurisdiction over non-​Indians on the reservation?

Today, as a result of laws passed by Congress more than a century ago that opened most Indian reservations to settlement by non-​Indians, more non-​ Indians live on Indian reservations than Indians.4 Thousands of other non-​ Indians work on or travel through Indian reservations every day. Tribal governments, therefore, need to exercise civil jurisdiction over non-​Indians to protect the health and safety of the tribe and its members, just as each The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0008

212  The Rights of Indians and Tribes state government exercises general civil jurisdiction over all persons within the state. Early Supreme Court decisions upheld the right of Indian tribes to exercise civil jurisdiction over non-​Indians on the reservation. In 1904, the Court upheld the right of an Indian tribe to tax non-​Indians on the value of their cattle grazing on tribal land.5 In 1980—​two years after the Supreme Court held in Oliphant v. Suquamish Indian Tribe6 that tribes do not have the authority to impose their criminal law on non-​Indians—​the Court held that tribes do have the authority to impose certain civil regulations on non-​ Indians, including a tribal sales tax when non-​Indians purchase goods from the tribe on tribal land.7 Similarly, the Supreme Court held in 1982 in Merrion v. Jicarilla Apache Tribe8 that an Indian tribe had the inherent authority to tax the value of oil and gas extracted by a non-​Indian company from tribal land. The Court relied on two independent reasons in reaching that conclusion. First, the Court said, Indian tribes have the inherent right “to tribal self-​government and territorial management” and a “general authority, as sovereign, to control economic activity within its jurisdiction,” and taxation is part of that general authority.9 Second, Indian tribes may exclude nonmembers from tribal lands and, therefore, tribes can also impose conditions they must meet to enter and remain on those lands, including the payment of this tribal tax.10 In 1983, the Court reiterated that Indian tribes have the right “to exclude nonmembers entirely or to condition their presence on the reservation,”11 and stated in 1987 that “Tribal authority over the activities of non-​Indians on reservation lands is an important part of tribal sovereignty.”12 Relying on those decisions, lower federal courts have upheld the right of a tribe to (1) tax non-​Indians on the value of a lease they held in tribal land;13 (2) tax non-​Indians on the value of minerals they extract from a tribal member’s trust land;14 (3) require that non-​Indians obtain a tribal business license in order to engage in commerce with the tribe or tribal members on the reservation;15 and (4) impose as part of a divorce decree that the non-​ Indian parent of a reservation Indian child pay child support.16 The cases just discussed involved tribal jurisdiction over non-​Indians on tribal trust land. In 1981 in Montana v. United States,17 the Court held that when tribes seek to regulate the conduct of non-​Indians on privately owned (“fee”) land that Congress has allowed non-​Indians to purchase within the reservation, tribal powers are diminished.18 In that situation, the Court said, there is an “implicit divestiture” of tribal authority.19 The tribe has lost its

Civil Jurisdiction in Indian Country  213 right to exclude those persons and can only regulate their conduct when (1) the non-​Indian has entered into “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements,” or (2) the conduct of the non-​Indian “threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.”20 These have become known as the two “Montana exceptions”21 and are often referred to as the “consensual relationship” and “substantial tribal interest” exceptions. The burden of proving the existence of a Montana exception rests with the tribe.22 In Brendale v. Confederated Tribes and Bands of Yakima Indian Nation (1989),23 the Court, applying Montana, held that in all areas of an Indian reservation in which non-​Indians owned a substantial portion of the land—​ called the “opened” portion of the reservation—​the tribe had lost the authority to regulate the use of these parcels (that is, the power to “zone” the land) unless it could prove the presence of a Montana exception.24 Then, in South Dakota v. Bourland (1993),25 the Court extended Montana to tribal trust land on which Congress had authorized the construction of a dam for flood control. The statute creating this project stated that the resulting lake could be used by the general public for boating and other recreational purposes. The Court held that because non-​Indians had a federal right to access and use this land, the tribe had lost its sovereign authority to exclude them. Once it lost that power, the tribe could no longer regulate the activities of non-​Indians on that land unless the tribe could prove that a Montana exception existed.26 The Court’s decision in Strate v. A-​1 Contractors (1997)27 was another blow to tribal sovereignty. In Strate, the Court ruled 9–​0 that a tribal court could not hear (“adjudicate”) a dispute arising out of a traffic accident between two non-​Indians that occurred on a state highway within the reservation, even though the driver of one of the vehicles, Gisela Fredericks, who filed the lawsuit, was the wife of a tribal member, their children were enrolled members of the tribe, the family lived on the reservation, and the highway on which the accident occurred was trust land. Congress had given the state a right-​of-​way to construct and maintain the highway. The Court held that when Congress issued the right-​of-​way to the state, the tribe lost its authority to exclude non-​ Indians from that land and, having lost the right to exclude, the tribe necessarily lost the right to regulate the activities of non-​Indians occurring on that property unless a Montana exception was present. The Court found that the “consensual relationship” exception was inapplicable because, although

214  The Rights of Indians and Tribes the construction company that owned the truck that collided with Ms. Frederick’s car had a contract with the tribe, the company had no contract with Ms. Fredericks. Nor was the “substantial tribal interest” exception applicable because, according to the Court, the tribe lacked a substantial interest in adjudicating Ms. Frederick’s lawsuit because she was not a member of the tribe.28 Ms. Fredericks could look to a state court for a remedy, the Court said, but not a tribal court.29 In 2001, the Supreme Court decided two cases, Atkinson Trading Co., Inc. v. Shirley30 and Nevada v. Hicks,31 that further undermined tribal civil jurisdiction over non-​Indians. The issue in Atkinson was whether the Navajo Nation could assess a hotel occupancy tax on guests who rented rooms in a hotel owned by a non-​Indian and located on non-​Indian fee land within the reservation. Although the tax was similar to those imposed by many cities on hotel guests, the Court held that because the tribe sought to regulate the conduct of a non-​Indian on fee land, the tribe needed to prove the presence of a Montana exception. The “consensual relationship” exception was inapplicable, the Court said, because there was no close “nexus,” such as a contract, between the tribe and the hotel guests.32 The “substantial tribal interest” exception was inapplicable because the tribe had not shown that the hotel guests, merely by staying at the hotel, threatened or sufficiently impacted the health, welfare, or political integrity of the tribe. At most, the Court said, the tribe could assess a tax sufficient to recoup the tribe’s actual cost of providing services to each guest—​such as police and fire protection—​ but no higher tax.33 As bad as these decisions were for Indian tribes, all of them involved activities occurring on land that had been opened for public use. The presumption remained that tribes possess broad civil jurisdiction over non-​Indians engaging in activities on unopened tribal land. Hicks changed that presumption. Floyd Hicks was a member of the Fallon Paiute-​Shoshone Tribe of Western Nevada. Twice, state game wardens searched his home on tribal trust land believing that he had poached game animals outside the reservation in violation of state law. Their searches found no evidence of an illegal hunt. Hicks believed the searches were unconstitutional and he sued the wardens in tribal court. The Supreme Court, in a 9–​0 decision, held that the tribal court had no authority to hear the case. Even though the searches occurred on tribal trust land where tribes normally have broad authority, the Court held that this situation was subject to the Montana test because the game wardens were seeking to enforce state law based on

Civil Jurisdiction in Indian Country  215 conduct that had allegedly taken place outside the reservation. The Court then found that neither of the two Montana exceptions was present: first, there was no close relationship between the game wardens and the tribe, and second, the tribe did not have a substantial interest in protecting a tribal member accused of committing a crime outside the reservation.34 Fortunately, the Court did say in Hicks that its holding was “limited to the question of tribal-​court jurisdiction over state officers enforcing state law,”35 and the Court agreed that the status of the land—​that is, whether it was fee or trust—​is a “significant” factor that “may sometimes be dispositive” in deciding whether a tribe may exercise civil jurisdiction over a non-​Indian.36 Still, the fact that the Court applied the Montana test to actions occurring on tribal trust land seemed wholly inconsistent with a number of prior Supreme Court cases. The issue of tribal court jurisdiction over non-​Indians was next raised in Plains Commerce Bank v. Long Family Land & Cattle Co., Inc. (2008).37 At issue in that case was whether a tribal court could adjudicate a lawsuit brought against a bank by tribal members alleging that the bank had discriminated against them by offering to sell fee land within the reservation to non-​Indians on more favorable terms than to them. In a 5–​4 decision, the Court held that even though the tribal members claimed that the bank had discriminated against them regarding the sale of land within the reservation, the tribal court could not hear the dispute because the tribe did not have a sufficient interest in how a bank sells fee land. The Supreme Court’s most recent case involving tribal civil jurisdiction over a non-​Indian was Dollar General v. Mississippi Band of Choctaw Indians (2016).38 In that case, Family Dollar, the owner of Dollar General stores, had signed a contract with the Mississippi Band of Choctaw Indians to lease tribal trust land for the operation of a Dollar General store. The store agreed to hire and train a Choctaw boy. The manager of the store, however, sexually assaulted him during the training program. The boy and his family filed suit in tribal court against Dollar General and the manager. The facts supporting tribal court jurisdiction were exceptionally compelling, given that (1) the assault occurred on tribal trust land, (2) Dollar General had a contract with the tribe, and (3) preventing the sexual assault of tribal children is a substantial tribal interest. Indeed, the federal appellate court whose decision the Supreme Court was reviewing agreed that the tribal court could hear the case. Yet, the vote in the Supreme Court was 4–​4 (Justice Scalia’s recent death left eight Justices). Under the Supreme Court’s rules, the tie vote meant that

216  The Rights of Indians and Tribes the decision of the court of appeals stood unchanged. Of course, although the tribe won, the fact that four Justices wanted to overturn the lower court’s decision is very troubling. The cases just discussed fall into two broad categories: those in which an Indian tribe sought to regulate the conduct of a non-​Indian, and those in which a tribal court sought to adjudicate a dispute filed against a non-​Indian. In Strate, the Court held that “a tribe’s adjudicatory jurisdiction does not exceed its legislative jurisdiction” and, therefore, a tribe must show the presence of a Montana exception in order for its courts to adjudicate cases filed against non-​Indians.39 The Court applied that principle in Hicks and Plains Commerce Bank.40 The U.S. Court of Appeals for the Ninth Circuit has applied that rule in a series of cases, holding that a tribal court may not adjudicate the following disputes: a suit brought by a tribal member against county officials challenging the legality of a county tax on that member’s reservation fee land;41 a suit by a tribal member against a nonmember arising out of an automobile accident on a state highway running through the reservation;42 a suit by a tribal member against state police officers based on an alleged false arrest on fee land;43 and a suit against a railroad by the estates of two tribal members who were killed when a train collided with their car on a congressionally granted right-​of-​way within the reservation.44 In addition, the Ninth Circuit has held that an Indian tribe lacked the authority to compel a state to comply with tribal employment laws when the state constructed a highway on a state-​ owned right-​of-​way within the reservation;45 to require a utility company to pay a tribal tax on the value of an easement received from Congress;46 or to require a non-​Indian to comply with a tribal land-​use (zoning) ordinance in constructing a home on non-​Indian fee land on the reservation.47 But while victories have become more difficult to obtain, they are still possible. For instance, relying on the Montana “consensual relationship” exception, federal and state courts have held that tribal courts may exercise civil adjudicatory jurisdiction in the following situations: a lawsuit filed by a tribal member seeking damages against a non-​Indian company for injuries sustained in an accident occurring on the company’s land within the reservation;48 a lawsuit alleging a breach of contract filed by a tribe against a non-​Indian company that had agreed to operate a tourist attraction on tribal trust land;49 a lawsuit alleging employment discrimination filed by tribal members against a non-​Indian company that leased tribal land for mineral production;50 a lawsuit filed by a tribal member seeking damages against a

Civil Jurisdiction in Indian Country  217 non-​Indian company whose employee allegedly assaulted him;51 a lawsuit filed by a tribe against a former tribal employee, a non-​Indian, seeking to recover funds the employee had embezzled;52 a lawsuit filed by a tribal member against a utility company that had terminated his electrical service on trust land;53 and a lawsuit filed by a tribe seeking to enforce its labor laws against a public school district that operated a school on tribal land under a contract with the tribe.54 A tribe may exercise its civil regulatory jurisdiction under the “consensual relationship” exception, a court recently held, when a non-​ Indian had entered into a contract with the tribe to operate a business on the reservation and allegedly dumped hazardous waste on its fee land located within the reservation.55 Similarly, relying on the Montana “substantial tribal interest” exception, courts have upheld the exercise of tribal civil adjudicatory jurisdiction in the following situations: a lawsuit filed by a tribe seeking damages against a non-​ Indian who started a fire that destroyed tribal property;56 a lawsuit brought by the estate of a non-​Indian seeking damages against tribal employees who allegedly gave him inadequate medical care after he suffered a heart attack in the tribe’s casino;57 a lawsuit brought by a tribe seeking damages against a non-​Indian company that had been hired by tribal members to physically remove tribal leaders from their offices;58 a lawsuit brought by a tribe seeking damages against a non-​Indian company that mismanaged a tribal tourist attraction located on tribal land;59 a lawsuit brought by the estate of a tribal member who was killed by state police on tribal land;60 a lawsuit filed by a non-​Indian seeking to recover his truck after tribal police had found marijuana inside of it and seized the vehicle;61 a lawsuit filed by a tribe against a non-​Indian seeking the removal of a dock the non-​Indian had built on a river within the reservation;62 a lawsuit filed by a tribal member against a utility company for having terminated his electric service without complying with procedures required under tribal law;63 and a lawsuit filed by a tribal member seeking damages against a non-​Indian whose careless driving on a tribal road caused an automobile accident.64 Tribes may also exercise their civil regulatory jurisdiction over non-​Indians under the Montana “substantial tribal interest” exception when essential to enforce health and building requirements65 and clean air regulations,66 and to protect a tribe’s right to clean water.67 Tribal courts continue to play a vital role in resolving disputes in Indian country. Indeed, a tribal court might be the only forum in which a contract or tort claim can be heard, even one involving a nonmember. The Supreme

218  The Rights of Indians and Tribes Court’s 1959 decision in Williams v. Lee68 illustrates this principle. The Court held in Williams that a lawsuit filed by a non-​Indian against an Indian alleging a breach of contract arising out of a reservation commercial transaction could be heard only in tribal court—​and not in a state court—​because intervention by the state into a dispute arising on the reservation involving a tribal member would infringe on tribal sovereignty.69 Still, the trend is not encouraging, and the Supreme Court keeps making it more difficult for tribes to win. In 1981 in Montana, the Court said it “readily agreed” that Indian tribes retain “considerable control” over the conduct of non-​Indians on trust land.70 Since then, however, as Bourland, Strate, and Hicks illustrate, tribes have lost cases in which they sought to control the conduct of non-​Indians on trust land. Similarly, the Court stated in Montana that a tribe would prevail under the second exception by showing that the conduct of the non-​Indian “threatens or has some direct effect” on a substantial tribal interest,71 but since then, the Court has stated that tribes must show that tribal intervention is necessary “to avert catastrophic consequences,”72 a tougher burden than merely showing a “direct effect.” Likewise, in 1982 in Merrion, the Court confirmed that each Indian tribe possesses the “general authority, as sovereign, to control economic activity within its jurisdiction.”73 Nineteen years later in Atkinson, however, the Court said that its holding in Merrion presented a “broader scope” of tribal authority over non-​Indians than the Court now attributes to Indian tribes and confined that principle to tribal jurisdiction over activities occurring on trust land.74 Clearly, the intent of certain Justices on the Supreme Court is to overturn prior law and diminish (if not eliminate) tribal civil jurisdiction over non-​ Indians. As Professor Frank Pommersheim has written, in recent years “the Court changed direction sharply and became increasingly inimical to tribal sovereignty.”75 Professor Katherine Florey has described these decisions as displaying “a sweeping hostility” toward tribes.76 Some commentators have accused the Court of seeking to achieve “politically desired results.”77 Various Justices apparently have deep concerns about allowing tribes to exercise civil jurisdiction over non-​Indians. In their decisions, Justices have mentioned the fact that Indian tribes need not comply with the U.S. Constitution in how they govern;78 tribal courts often rely on tribal law to decide cases, which can be difficult for an outsider to know or understand;79 on some reservations, judges are subject to political pressure or influence in how they decide cases;80 and non-​Indians usually are not permitted to sit on tribal juries.81 In other words, some judges appear to believe that non-​Indians may

Civil Jurisdiction in Indian Country  219 not get a fair trial in tribal court.82 Studies have shown, however, that “most tribal courts are largely indistinguishable in structure and process from state and federal courts” and treat all litigants fairly.83 There is no more reason to presume that an all-​Indian jury would be prejudiced against a non-​Indian than an all non-​Indian jury would be prejudiced against an Indian, a situation that Indians often face in state courts. Moreover, the inability of tribes to regulate the conduct of non-​Indians throughout the reservation undermines tribal authority on their own lands, makes the conduct of reservation non-​ Indians “some of the least governed activity in the United States,” and leads to “destructive and exploitive behavior [by non-​Indians] in Indian country.”84 The Supreme Court’s 2021 decision in United States v. Cooley85 offers a ray of hope. The Court held in Cooley that, under the Montana “substantial tribal interest” exception, a tribal police officer had the authority to detain and search a non-​Indian who had pulled over and parked his car on a state highway within the reservation when the officer, who had stopped and asked the driver to roll down the window, could tell that the driver was likely impaired by drugs or alcohol, the officer saw a weapon on the passenger seat, and the officer found drugs and weapons in the car, after which he summoned the state police to arrest the driver.86 Cooley is the first time the Court has found the presence of a Montana exception involving tribal jurisdiction over a non-​Indian, and the decision was 9–​0. The Court recognized that this person posed a threat to the community and, therefore, tribal police had the right to respond in this fashion. Many tribal officials have been urging Congress to pass legislation restoring the authority of Indian tribes to exercise civil authority over all people located on, and all activities occurring within, Indian country.87 One commentator has suggested that if Congress has concerns about the fairness of tribal courts, Congress can authorize federal courts to review tribal court decisions under due process standards.88 An overarching concern when discussing the scope of tribal authority over non-​Indians should be the fact that many Indian reservations today are impoverished, suffer from high unemployment, and, due to the lack of commercial activities occurring on the reservation, are unable to obtain revenue by taxing income and sales, which is “the usual form of governmental funding.”89 Our country should assist tribes to overcome these obstacles by allowing them to regulate the same activities on the reservation—​regardless of the race of the actor—​that state governments are allowed to regulate outside the reservation.

220  The Rights of Indians and Tribes

How and when can a non-​Indian challenge a tribe’s jurisdiction?

A tribe may lawfully exercise its civil jurisdiction over non-​Indians in certain situations but not in others. Non-​Indians who are being subjected to tribal authority—​for example, non-​Indians who are being taxed by a tribe, or sued in tribal court—​therefore may wish to challenge that authority immediately, rather than pay the tax and then challenge it, and rather than proceed with the trial in tribal court and appeal the outcome. In National Farmers Union Insurance Co. v. Crow Tribe of Indians (1985),90 the Supreme Court held that the question of whether a tribe has exceeded its lawful jurisdiction is a question of federal law over which federal courts—​ not tribal courts—​have the final word.91 The Court also held, however, that as a matter of comity (i.e., courtesy), federal courts must not decide these cases unless the tribal court has had an opportunity to give its opinion on the question, that is, until the non-​Indian has exhausted tribal remedies.92 An exhaustion requirement of this nature, the Court explained, performs three functions: it furthers the congressional policy of supporting tribal self-​government, it promotes the administration of justice in federal court by allowing a full record to be developed in the tribal court, and it obtains the benefit of tribal expertise on issues of tribal jurisdiction.93 Although the tribal court’s decision on the jurisdictional question is not binding on a federal court, the Supreme Court said, its opinion is entitled to fair consideration out of deference to the tribal court’s expertise.94 Tribal courts are capable of deciding complex legal and factual issues fairly, including challenges to their own jurisdiction. Therefore, the general rule is that federal courts should decline to hear a challenge to tribal jurisdiction until the tribal court has had a full opportunity to rule on that question.95 Even if it is unlikely that tribal court jurisdiction exists, a non-​Indian must exhaust tribal remedies if jurisdiction is plausible.96 The federal government, too, is required to exhaust tribal remedies before commencing a civil action against a tribal member in federal court over which a tribal court could have jurisdiction.97 If the tribe has an appellate court, non-​Indians must exhaust that remedy as well.98 Non-​Indians need not exhaust tribal remedies, the Court held in National Farmers, when referral to a tribal court is being made in bad faith to delay a resolution of the controversy; when exhaustion would be futile, such as when a tribe does not have a functioning judicial system; or when it is “plain” that the tribal court lacks jurisdiction under federal law.99 A federal court

Civil Jurisdiction in Indian Country  221 may issue an injunction to prevent a tribal court from proceeding with a case when it is clear that the tribal court lacks authority to adjudicate the dispute.100 The party claiming an exemption from tribal court exhaustion has the burden of proving the right to an exemption.101 When a case in tribal court is subsequently reviewed by a federal court, all findings of fact made by the tribal court must be accepted as conclusive by the federal court unless it finds them clearly erroneous; thus, a person normally cannot relitigate factual issues in federal court that were lost in tribal court.102 Moreover, a tribal court’s interpretation of tribal law is binding on federal courts.103 These rules of exhaustion apply regardless of whether a non-​Indian is suing an Indian or an Indian is suing a non-​Indian.104

What civil jurisdiction has Congress authorized Indian tribes to exercise?

Congress has the power to authorize Indian tribes to exercise—​or confirm that a tribe has the inherent right to exercise—​civil jurisdiction, and it has done so on multiple occasions. Congress has confirmed that tribes may regulate the distribution of alcoholic beverages on the reservation105 and enforce certain environmental laws, including the Clean Water Act, the Clean Air Act, and the Safe Drinking Water Act.106 Congress has also confirmed that tribal courts have the authority to issue and enforce protection orders prohibiting any person, including a non-​Indian, from harassing or stalking a tribal member in Indian country.107

Does Public Law 83-​280 limit civil jurisdiction of tribes?

No. Public Law 83-​280, discussed in the previous chapter, authorizes particular states to enforce some of their laws in Indian country. Nothing in that law diminishes the authority of Indian tribes to regulate the same activity. In those situations in which a state has authority under P.L. 280, the state and tribe would both have jurisdiction (“concurrent jurisdiction”).108

B.  STATE CIVIL JURISDICTION IN INDIAN COUNTRY States and tribes have most of the same goals, and their economies, natural resources, and the health and welfare of their citizens are linked. Therefore, they have every reason to work closely with one another. Agreements and

222  The Rights of Indians and Tribes compacts have been signed between many states and tribes to coordinate law enforcement activities, facilitate extradition of criminal suspects, divide tax revenues, regulate the use of water and other natural resources, and regulate reservation gambling. Historically, states and tribes have disagreed over many things and often view each other as adversaries rather than partners. Those states and tribes that have improved their relationships have benefited significantly from the results.

Does Congress need the state’s consent before giving rights or protections to Indians?

No. According to the Supreme Court, the U.S. Constitution confers plenary power on Congress over Indian affairs. Consequently, Congress may confer rights or protections on Indians and tribes without the consent of the states.109

To what extent has Congress expressly authorized states to exercise civil jurisdiction in Indian country over Indians and tribes?

Since the earliest days of the United States, states have tried to extend their authority into territory set aside by U.S. treaties for Indian tribes. One early attempt by Georgia to impose its laws in Cherokee territory within the state of Georgia—​on tribal treaty land—​led to the Supreme Court’s 1832 decision in Worcester v. Georgia.110 The Court held in Worcester that Indian tribes are “distinct, independent political communities” in which state laws “can have no force” unless Congress has given its express consent, which Congress had not given to Georgia with respect to the Cherokee Nation.111 It is still the general rule today that a state may not regulate the activities of reservation Indians and tribes without express congressional authorization.112 (A different rule applies to state regulation of reservation non-​Indians, as discussed later.) Any other rule, as the Supreme Court noted in 2020, would “leave tribal rights in the hands of the very neighbors who might be least likely to respect them.”113 Only rarely has Congress consented to state jurisdiction over reservation Indians and tribes. Indeed, “the policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.”114 Congress, however, has consented to certain types of state civil jurisdiction in Indian country. The three most important federal laws expressly consenting to such jurisdiction are the General Allotment Act of 1887,

Civil Jurisdiction in Indian Country  223 Public Law 83-​280 of 1953, and the termination laws enacted between 1953 and 1966.

1. The General Allotment Act of 1887 The General Allotment Act of 1887 (GAA)115 is discussed in Chapter I. To summarize, the GAA authorized federal officials to allot parcels (“allotments”) of tribal reservation land to tribal members and to sell other parcels to non-​Indians. After twenty-​five years, many of the Indians who received these allotments were given a deed to their land, which allowed them to sell their allotments. The deed also made the land subject to state real estate taxation. Thousands of Indians sold their allotments to non-​Indians or lost them to foreclosure by state officials for nonpayment of taxes. By the time the GAA was repealed in 1934, tribes had lost almost two-​thirds of the lands they held in 1887 (a loss of nearly ninety million acres), and tribal governments and Indian culture were greatly affected by the presence of hundreds of thousands of non-​Indians who now lived on Indian reservations. The GAA did not give the states any power over Indians themselves, but it did increase state authority over the privately owned fee land created by the Act. First, the GAA authorized the states to tax the value of all the land—​ the ninety million acres—​that had been removed from trust status, whether the land was now owned by a non-​Indian or an Indian.116 These taxes add millions of dollars each year to state and local treasuries. Second, as discussed in the previous section, state law generally governs the conduct of non-​ Indians on non-​ Indian land, even within Indian reservations. The GAA thus resulted in states acquiring considerable powers within Indian reservations because they could now tax, and to some extent also regulate, the millions of acres of reservation land now owned by non-​Indians.

2. Public Law 83-​280 Public Law 83-​280117 (often written as “P.L. 280” or “Pub. L. 280”) is a product of the termination era.118 Passed by Congress in 1953, the Act was designed to undermine tribal government by placing reservation Indians under state criminal law in six “mandatory” states, and by authorizing the

224  The Rights of Indians and Tribes other forty-​four “optional” states to acquire the same jurisdiction conferred on the mandatory states if the state passed a law accepting that jurisdiction. The charts in the previous chapter illustrate the extent to which the mandatory and optional states acquired criminal jurisdiction under P.L. 280. For a time, it was unclear whether P.L. 280 conferred on the mandatory states the same broad civil jurisdiction in Indian country as it did criminal jurisdiction. This question was resolved by the Supreme Court in 1976 in Bryan v. Itasca County, Minnesota.119 Minnesota, a mandatory state, sought to impose the state’s civil jurisdiction, including state taxes, in Indian country. In a 9–​0 decision, the Court found nothing in P.L. 280 “remotely resembling an intention to confer general state civil regulatory control over Indian reservations.”120 Accordingly, the P.L. 280 states—​like the non–​P.L. 280 states—​may not tax reservation Indians121 or zone Indian trust land122 unless some other federal law authorizes it. As discussed in the previous chapter, in California v. Cabazon Band of Mission Indians (1987),123 the Supreme Court ruled that a California law that allowed certain types of bingo to occur but not other types of bingo was an exercise of the state’s civil (and not criminal) jurisdiction. Therefore, the Court held, even though California is a “mandatory” P.L. 280, the state could not require Indian tribes to obey its restrictions on bingo because those restrictions were an exercise of the state’s civil jurisdiction, and P.L. 280 does not confer civil jurisdiction. Doubts about whether a law is a criminal prohibition or a civil regulation should be resolved in favor of “protecting Indian sovereignty from state interference.”124 P.L. 280 provides that the mandatory states “shall have jurisdiction over civil causes of action” involving reservation Indians.125 This means that courts in a P.L. 280 state may adjudicate civil lawsuits (“civil causes of action”) filed by or against Indians that arise in Indian country,126 such as suits for divorce,127 child dependency proceedings,128 and actions seeking to terminate parental rights.129 But P.L. 280 authorizes no other form of state civil regulation, including lawsuits against Indian tribes.130 Moreover, P.L. 280 does not diminish any powers that tribes have. P.L. 280 merely authorizes certain states to regulate some of the same activities that tribes can regulate, that is, to have concurrent jurisdiction. For instance, Indians seeking a divorce could file suit in either state or tribal court. When enacted in 1953, P.L. 280 permitted the forty-​four optional states to pass a law at any time and assume the same jurisdiction the mandatory states had. In 1968, Congress amended P.L. 280 to prevent optional states

Civil Jurisdiction in Indian Country  225 from acquiring any additional P.L. 280 jurisdiction unless a majority of the tribe’s members, voting in a special election, gives its consent.131 Tribes have consistently criticized P.L. 280 because it authorizes state intervention in Indian country.132 Fortunately for some thirty tribes, their states have returned (“retroceded”) to the United States their P.L. 280 jurisdiction. Congress, however, has not amended P.L. 280, as tribes have requested, to allow tribes to initiate a retrocession and allow the Attorney General of the United States to grant a retrocession without the state’s consent.133

3. Termination Laws Between 1953 and 1966, Congress passed laws that terminated 109 tribes.134 Each law ended the trust relationship between the United States and the tribe, required the tribe to distribute all tribal property to its members, and eliminated the reservation. Tribal members became fully subject to state law and so did their lands. Since the late 1960s, however, no tribe has been terminated, and Congress has restored to federal status nearly all the tribes that had been terminated and reconstituted their reservations, removing them from general state jurisdiction. Today, then, the jurisdiction that states acquired by these termination laws has been largely rescinded.

4. Other Congressional Authorizations of State Jurisdiction Congress has passed several laws that confer some state jurisdiction over particular tribes. Oklahoma and New York have been given some jurisdiction over Indian tribes in those states, as discussed in Chapter XIV. In 1978, Congress passed a law that created a reservation for the Narragansett Tribe in Rhode Island of approximately eighteen hundred acres and provided that these lands “shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.”135 In 1980, Congress placed the Penobscot Nation and the Passamaquoddy Tribe in Maine under general state jurisdiction,136 and in 1991, Congress conferred on Maine general jurisdiction over the Aroostook Band of Micmacs.137 In 1984, Congress conferred on Colorado “criminal and civil jurisdiction within the boundaries of the town of Ignacio, Colorado . . . within the Southern Ute Indian Reservation, as if such State had assumed jurisdiction pursuant to [P.L. 280].”138

226  The Rights of Indians and Tribes Congress has also conferred state jurisdiction over certain subject matters. For example, Congress has prohibited the introduction of liquor in Indian country except in compliance with state (and tribal) law.139 As a result of this statute, states can require persons selling liquor on the reservation to purchase a state license and pay state business taxes.140 Another federal law authorizes the Secretary of the Interior to allow state officials to inspect reservation health conditions and enforce the state’s sanitation and quarantine regulations on Indian reservations.141 Congress also has authorized the states to seize by eminent domain (that is, to take for a public purpose) any federal land allotted to an Indian, provided that the Indian is paid fair compensation.142 In addition, Congress passed a law in 1952 known as the McCarren Amendment,143 which authorizes state courts to decide the ownership and apportionment of federal water rights, including rights held by the government for Indians and tribes. Thus, every state has been authorized to exercise some jurisdiction on Indian reservations within the state. For the most part, however, Congress has kept reservation Indians and tribes free from state jurisdiction.

To what extent may states exercise civil jurisdiction in Indian country without congressional authorization?

The Supreme Court held in Worcester v. Georgia in 1832 that state laws “can have no force” in Indian country—​even with respect to state jurisdiction over non-​Indians—​unless Congress had given its express consent.144 Worcester thus established an “absolute” or “bright line” test that was easy to apply: unless Congress gave its express consent, the state had no jurisdiction in Indian country. Fifty years later, the Supreme Court began eroding Worcester, but only with respect to state jurisdiction over reservation non-​Indians. The Court held in 1888 that a state can, without congressional consent, prosecute non-​Indians who commit crimes against other non-​Indians on an Indian reservation.145 Next, the Court held in 1898 that a state may tax the personal property owned by non-​Indians on an Indian reservation despite the lack of congressional consent.146 In 2022, the Court—​in a startling development—​reversed this portion of Worcester altogether, holding in Oklahoma v. Castro-​Huerta147 that Worcester “rested on a mistaken understanding of the relationship between Indian country and the States.”148 When Worcester was decided, Indian country was viewed as independent from state rule, whereas now, Indian country is seen as “part of a State, not separate

Civil Jurisdiction in Indian Country  227 from a State.”149 As a result, the Court said, state authority applies in Indian country “except when preempted . . . by federal law or by principles of tribal self-​government,” and states are presumed to have the authority to regulate reservation non-​Indians.150 State authority over reservation Indians and tribes, however, remains limited because such jurisdiction either is preempted by federal law or by principles of tribal self-​government. Yet, even here, the Court has modified the Worcester test. The first departure came in 1959 in Williams v. Lee,151 which addressed the question of whether a state court could hear a case filed by a non-​Indian storeowner against a member of the tribe involving a transaction that had occurred on the reservation. Had the Court used the Worcester test, the Court could have simply stated that because Congress had not authorized this intrusion, the state court lacked jurisdiction. Instead, the Court asked a question that required a more detailed investigation: “whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Although the Court found an infringement and barred the state court’s action, the Court used a different test than its previous decisions had used.152 The test employed in Williams is known as the “infringement” test. Today, in fact, the bright line test in Worcester has been replaced with a two-​part test to determine which state laws may be enforced in Indian country without congressional consent: the “infringement” and “federal preemption” tests. A state law must pass both tests to be valid.153

Which state laws violate the federal preemption test?

Article VI, Section 2 of the Constitution provides that a federal law or treaty is “the supreme law of the land.”154 This provision, known as the Supremacy Clause, means that whenever a state law conflicts with a federal law or treaty, the federal law or treaty prevails and the state law is preempted. The federal preemption test is easy to apply when a state law clearly contravenes a federal law or treaty; for instance, if a federal treaty provides an Indian tribe with water rights, a state law that removes those rights would violate the Supremacy Clause and be preempted. Often, however, a state law will interfere with an overall federal policy but not expressly contravene a treaty or statute. These situations, the Supreme Court has explained, require “a particularized inquiry into the nature of the state, federal and tribal interests at stake . . . to determine whether, in the specific context, the exercise of state authority would violate federal law.”155 Some factors to consider

228  The Rights of Indians and Tribes in conducting this “particularized inquiry” include (1) the extent to which the tribe or tribal members are affected by the state’s regulation, (2) the extent to which the federal government is already regulating the conduct the state is seeking to regulate, (3) the state’s interests in enforcing its law on the tribe, and (4) whether the state is providing any benefits or services in exchange for the burdens the state is seeking to impose. The state law will fail the preemption test “if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of State authority.”156 The preemption test balances federal interests against state interests. In conducting that analysis, the federal government’s commitment to fostering tribal sovereignty, the Supreme Court has stated, provides “an important backdrop” against which state interests must be examined.157 Therefore, when a state law primarily burdens tribal members or interferes with tribal self-​determination, it will likely fail the preemption test.158 In those situations, “the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-​government is at its strongest.”159 Indeed, the Supreme Court has held that state taxation of Indians and tribes is so invasive it is never permitted unless Congress has given its express consent.160 On the other hand, state laws that primarily affect only non-​Indians will likely pass the preemption test because tribes usually lack a strong interest in protecting non-​Indians from the operation of state law.161 The Supreme Court first employed the preemption test in Warren Trading Post Co. v. Arizona Tax Commission (1965).162 The issue in that case was whether Arizona could impose its gross proceeds tax (a tax on total corporate income) on a non-​Indian company that operated a trading and grocery store on the Navajo Reservation. The state, in defending its tax, pointed out that no federal law expressly prohibited the tax, the taxpayer was non-​Indian, and the same tax was imposed on all businesses within Arizona. Other factors, however, weighed against the tax. First, a treaty with the Navajo assured them of relative immunity against state intrusion. Second, the federal government regulates virtually every aspect of trade on Indian reservations, and the state tax would interfere with this comprehensive federal plan. Moreover, the store owner would likely raise prices to offset the taxes and, because most of the store’s customers were Indians, they would be the ones paying the tax. Balancing all the factors, the Court concluded that Arizona’s tax was preempted by federal law.

Civil Jurisdiction in Indian Country  229 The Supreme Court’s next preemption case was McClanahan v. Arizona Tax Commission (1973),163 in which the Court held that Arizona could not assess state income taxes on the income earned by a Navajo woman who lived and worked on her reservation. Factors that weighed against the tax were the protective nature of the Navajo treaty, the fact that this tax was being applied directly to a tribal member based on her reservation employment, and the “backdrop” of tribal sovereignty. Reservation employment by tribal members is an activity, the Court held, “totally within the sphere which the relevant treaties and statutes leave for the Federal Government and for the Indians themselves.”164 The Court reached a similar conclusion in White Mountain Apache Tribe v. Bracker (1980).165 The White Mountain Apache Tribe of Arizona had contracted with a non-​Indian company to cut, haul, and sell tribal timber, with the tribe sharing in the profits. Arizona sought to tax the fuel used by the company to haul the timber on roads built and maintained by the tribe and the federal government, as well as tax the profits made on the company’s sale of the timber. Applying the preemption balancing test, the Court noted that the federal government regulated virtually every aspect of tribal timber production; the tribe had a strong interest in keeping its timber production free from state regulation; the timber was grown on the reservation; the state was providing no services in exchange for the money it was trying to collect; and these taxes would ultimately be paid by the tribe—​because the company would charge the tribe a higher price to cut and haul its timber to offset the taxes. The Court concluded that tribal and federal interests outweighed the state’s interests, and, therefore, the state tax was preempted. In similar fashion, the Supreme Court has ruled that, unless Congress has consented, a state may not tax (1) the income made by a non-​Indian construction company when it built a tribal school on the reservation;166 (2) the personal property that tribal members own on the reservation;167 (3) the sale of goods to tribal members within the reservation;168 (4) the motor fuels purchased by tribal members or by the tribe for travel within the reservation;169 (5) the profits made by a non-​Indian company from the reservation sale of equipment to a tribal business;170 and (6) the income that a tribe receives when it leases land for mineral development.171 In non-​tax cases, the Court has held that in the absence of congressional consent, a state may not require non-​Indians to purchase a state game license and comply with state game laws when they hunt animals on an Indian reservation raised primarily on reservation land172 or enforce state gambling laws on tribal gaming

230  The Rights of Indians and Tribes operations on the reservation.173 In each case, the Court found that tribal and federal interests outweighed state interests and, therefore, the state could not extend its laws onto the reservation without congressional approval. Using the same analysis, other courts have held that federal law preempts states from regulating the disposal of hazardous waste,174 the placement of billboards175 and the harvesting of timber176 on tribal land, and that states may not enforce their child support laws on reservation Indians177 or their rent control laws on reservation trust land.178

Which state laws violate the infringement test?

The Supreme Court first employed the infringement test in Williams v. Lee (discussed earlier) in 1959. The Court next used that test in Fisher v. District Court (1976).179 In Fisher, the Court held that a dispute among reservation Indians concerning the custody of a reservation Indian child could only be adjudicated in tribal court. Permitting a state court to decide the child’s custody, the Court said, “plainly would interfere with the powers of [tribal] self-​government” by subjecting a dispute arising on the reservation among tribal members “to a forum other than the one they have established for themselves.”180 Williams and Fisher stand for the principle that tribal courts normally have exclusive jurisdiction to decide a dispute arising on the reservation involving reservation Indians unless Congress has consented to concurrent jurisdiction by the state. As a federal appellate court stated in 2018, it is “axiomatic that absent clear congressional consent, state courts lack jurisdiction to hear cases against Native Americans arising from conduct in Indian country.”181 In 2019, the South Dakota Supreme Court dismissed a lawsuit filed in state court by a former employee of a tribal school alleging a breach of contract, explaining that jurisdiction over an on-​reservation controversy involving the tribe “presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.”182 Unless Congress has given its express consent, a state court may not hear negligence claims between Indians and non-​Indians that arise on Indian trust land, such as lawsuits stemming from car accidents;183 may not garnish the wages of an Indian employed on the reservation184 or attach Indian property located there;185 may not resolve reservation commercial disputes186 or disputes involving interests in Indian land,187 even if one of the parties is a non-​Indian; and may not involuntarily commit a reservation Indian to a state mental hospital.188 Federal courts may issue an injunction against any

Civil Jurisdiction in Indian Country  231 state court that begins to hear an Indian case over which it clearly lacks jurisdiction.189 On the other hand, state courts do have jurisdiction, some courts have held, to resolve disputes arising in Indian country involving a tribal member when the activity in question occurs on non-​Indian fee land or land that is the equivalent, such as a highway built on a right-​of-​way granted by the federal government to the state.190 When Congress passed P.L. 280 in 1953, it authorized the courts in certain states to resolve disputes involving reservation Indians, but the majority of states have no similar authority.191 Moreover, even under P.L. 280, a state court must not infringe on the right of an Indian tribe to make decisions regarding internal tribal political matters, such as resolving tribal election disputes or determining who is eligible for membership in the tribe.192

Are the preemption and infringement tests equal in scope to the Worcester rule?

The Worcester rule prohibited all state laws from being enforced in Indian country without congressional consent, even with respect to non-​Indians. This absolute ban has been replaced by the federal preemption and infringement tests. The combination of these tests is nearly as formidable as the Worcester rule with respect to state laws that significantly affect reservation Indians. As the Supreme Court confirmed in 2001: “When on-​ reservation conduct involving only Indians is at issue, state law is generally inapplicable.”193 A different situation exists, however, regarding state jurisdiction over reservation non-​Indians; in other words, the weakening of the Worcester test has resulted in far greater state regulation of non-​Indians than Worcester allowed. For instance, the Court ruled in 1976 that when Indian tribes sell goods from tribal stores to nonmembers, the state can require the stores to collect state sales taxes on those sales.194 (These taxes are viewed by the Court not as a tax on the tribe but, rather, as a tax on the non-​Indian purchaser, because the tribe only needs to collect the tax from the purchaser and forward it to the state.) The Court extended that decision in 1980, holding that tribal merchants can also be required to keep detailed records of their sales to non-​ Indians so that state tax officials can ensure that the correct amount of state tax is being collected.195 If tribal vendors refuse to collect these taxes, state officials may enforce their rights, the Supreme Court has held, by seizing goods outside the reservation that are in transit to tribal stores for sale to non-​Indians.196

232  The Rights of Indians and Tribes The Supreme Court’s 1989 decision in Cotton Petroleum Corp. v. New Mexico197 marked a further shift in the Court’s traditional preemption analysis and illustrates the Court’s increasing willingness to allow state jurisdiction in Indian country. The Court employed the “particularized inquiry” test but, this time, gave the interests of the state more weight than in any previous decision. The issue in that case was whether New Mexico could impose a tax on tribal oil and gas produced by a non-​Indian company on tribal land. In 1982, the Supreme Court had ruled that the tribe could impose its own tax on this mineral production.198 The issue here was whether New Mexico could impose a similar (“double”) tax. The Court, voting 6–​3, upheld the state tax, even though the Court acknowledged that this double tax might make it more difficult for the tribe to sell its oil and gas. The Court also acknowledged that New Mexico stood to collect millions of dollars more in revenue from taxing the tribe’s oil and gas than it would spend on services to the tribe or the oil company, and that the federal government extensively regulates oil and gas production on Indian reservations. The Court held, however, there was no proof that the tax would make the tribe’s oil and gas unmarketable; a state is not required to spend on a taxpayer as much as it collects from the taxpayer; and the federal government’s regulation of oil and gas was not comprehensive or direct enough to preempt New Mexico’s tax. (Three Justices dissented, stating that the majority’s decision “distorts” the preemption test.)199 Five years after Cotton Petroleum, the Supreme Court upheld a state law that allowed state officials, whenever a tribe fails to collect state taxes on cigarettes it sells to non-​Indians, to seize cigarettes outside the reservation being shipped to the tribe and to hold them as ransom until the tribe pays the tax. The Court found that any harm these seizures might cause to the tribal stores was outweighed by the state’s right to collect its tax.200 In short, the preemption test remains a formidable barrier against state encroachment when the intrusion would significantly affect Indians or tribes. On the other hand, when the exercise of state jurisdiction primarily impacts non-​Indians, it usually will pass the preemption test.

For jurisdictional purposes, is a state-​chartered corporation owned by Indians considered Indian or non-​Indian?

Corporations that are licensed under state law usually are considered “non-​ Indian” for jurisdictional purposes even if they are owned by Indians.

Civil Jurisdiction in Indian Country  233 Therefore, a lawsuit brought by a non-​Indian against a state-​chartered Indian corporation must be filed in state court rather than tribal court.201 An Indian-​owned corporation licensed under tribal or federal law rather than state law, on the other hand, is considered “Indian” for jurisdictional purposes. In that situation, the corporation could not be sued in state court regarding a reservation contract dispute unless Congress has given its consent.202

Can a situation arise in which no court has jurisdiction over a reservation dispute?

Yes. As with the federal and state governments, tribal governments are not required to authorize their courts to hear every type of controversy. Consequently, an aggrieved party may find no court capable of hearing a reservation dispute if the only court that could hear the case is a tribal court and it has not been authorized to adjudicate that type of controversy.203

May a state court enforce a judgment against an Indian by seizing reservation property belonging to that person?

When a person is sued for money damages, loses the case, but refuses to pay the judgment, the court typically has the authority to enforce the judgment by ordering court officials to seize and sell property belonging to the judgment debtor or to seize (“garnish”) the debtor’s paycheck. The majority of courts addressing the question have held that state courts have no authority to seize property belonging to an Indian located on the reservation or to serve a state garnishment order on an Indian’s employer within the reservation.204 The proper course of action in those situations is to request an order from the tribal court that authorizes enforcement of the state decree.205

Must state and tribal governments give “full faith and credit” to each other’s laws and court decrees?

The U.S. Constitution expressly requires that each state shall extend “full faith and credit” to the laws and court decrees of another state.206 Chaos could result without such a requirement, given that one state could refuse to recognize a marriage performed, or a divorce, adoption, or child custody decree obtained, in another state. The Constitution does not require that tribes and states extend full faith and credit to each other’s laws and court decrees. Many tribes and states, however, have decided to extend full faith and credit (or “comity”) to each

234  The Rights of Indians and Tribes other’s laws and court decrees to avoid a similar chaos and to promote mutual respect. For instance, the Mashantucket Pequot Tribal Court in Connecticut has issued a rule stating that it will enforce a divorce decree issued by a state court.207 The Navajo Supreme Court has adopted a similar rule regarding comity for state court decrees.208 State courts in Arizona,209 Idaho,210 Michigan,211 Minnesota,212 Montana,213 Kansas,214 South Dakota,215 and Washington216 have extended comity to tribal court decisions. Virtually every court (state, federal, and tribal), however, will refuse to enforce another jurisdiction’s court decree that was obtained through fraud or contains some serious procedural defect.217 Some tribes and states have passed laws that require their courts to extend full faith and credit to the laws and court decrees of any other jurisdiction that extends a similar recognition.218 Federal courts, too, normally extend comity to tribal court orders.219 It is important for states and tribes to extend comity to one another, as the failure to do so may cause difficulties for their citizens. For instance, a reservation Indian who wishes to borrow money from a bank outside the reservation, or buy a car on credit from a dealer located outside the reservation, will likely be unable to do so if those business are uncertain that a tribal court will honor a judgment obtained in a state court against that person. It is to everyone’s advantage for states and tribes to honor and enforce each other’s court decrees.

Do “nonmember Indians” enjoy the same immunity from state regulation as tribal members?

A nonmember Indian is an Indian on a reservation who is not a member of that tribe. Courts have held in a variety of contexts that nonmember Indians do not enjoy the same immunities from state law that tribal members do. For instance, although tribal members are exempt from paying state sales taxes when they purchase goods on their reservation, nonmember Indians are not.220

C.  STATE JURISDICTION OVER OFF-​ RESERVATION INDIANS What powers do the states have over off-​reservation Indians?

Indians who engage in activities outside an Indian reservation are normally subject to the same state laws as everyone else engaging in that activity unless

Civil Jurisdiction in Indian Country  235 a federal law or treaty grants an immunity. “Absent express federal law to the contrary,” the Supreme Court stated in Mescalero Apache Tribe v. Jones (1973), “Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory State law otherwise applicable to all citizens of the State.”221 Thus, an Indian who commits a crime off the reservation may be prosecuted by the state in the same manner as anyone else who commits that crime,222 and reservation Indians pay state income taxes on income earned outside the reservation.223 There are two exceptions to the rule that Indians who leave the reservation become fully subject to state law. First, when Indians are engaging in a federally protected right outside the reservation, such as hunting or fishing authorized by a federal treaty, state law is generally inapplicable.224 Second, a state may not enforce its laws on off-​reservation Indians in a discriminatory manner, such as by routinely stopping and searching only those cars driven by Indians. Likewise, if a state allows cars on its highways to display a license plate from another state, it must allow cars on their roads to display a tribal license plate.225

May a state “serve process” on an Indian within the reservation for an activity that occurred off the reservation?

A reservation Indian who causes a car accident while off the reservation may be sued for damages in state court. No lawsuit can begin, however, until the plaintiff files a summons and complaint with the court. The defendant must then be served with copies of the summons and complaint, a procedure called service of process. Courts have held that Indians may be served with process on the reservation for their off-​reservation activities,226 but some courts have held that a tribal officer, rather than a state officer, must serve the papers.227

D.  FEDERAL CIVIL JURISDICTION Does the federal government have the right to exercise civil jurisdiction in Indian country?

Yes. The Constitution, the Supreme Court has held, confers on Congress plenary power over Indian tribes and their members.228 Congress, therefore, may pass laws that regulate civil jurisdiction on Indian reservations. Congress has passed numerous laws, as discussed in Chapter V, authorizing various federal agencies, particularly the Bureau of Indian Affairs, to exercise civil

236  The Rights of Indians and Tribes regulatory authority in Indian country. Federal agencies regulate commercial activities on Indian reservations; control the sale, use, and inheritance of Indian trust land; control the sale and use of reservation trust resources, such as timber, oil, gas, and other minerals; and regulate the quality of air and water on Indian reservations. Federal agencies, however, may not exercise any jurisdiction in Indian country unless Congress has provided its consent.229 Some courts have held that certain federal civil jurisdiction applies in Indian country, even without express congressional authorization. For instance, the Supreme Court has held that reservation Indians must pay federal income taxes even though Congress did not expressly impose those taxes.230 Some courts have held that certain federal environmental and other regulatory laws can be applied in Indian country without express authorization, explaining that Congress intended for these laws of “general applicability” to be applied throughout the country.231

Notes 1. Criminal jurisdiction is the subject of Chapter VII. 2. As discussed in Chapter V, the Supreme Court has upheld the authority of Congress to regulate every aspect of tribal powers. Tribes, however, retain the inherent right to exercise civil jurisdiction unless Congress has limited that authority. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55–​56 (1978); Fisher v. District Court, 424 U.S. 382, 390 (1976); Akins v. Penobscot Nation, 130 F.3d 482 (1st Cir. 1997). 3. See Ft. Peck Tribes v. Smith, 2021 WL 1749864 (Ft. Peck Ct. App. 2021) (upholding ten-​year tribal exclusion order). 4. See United States v. Cooley, 141 S. Ct. 1638, 1645 (2021); Julia M. Bedell, The Fairness of Tribal Court Juries and Non-​Indian Defendants, 41 Am. Indian L. Rev. 253, 256 (2017) (estimating that four times as many non-​Indians live on Indian reservations as Indians). For instance, fewer than 15 percent of the people living on the Muskogee (Creek) Reservation in Oklahoma are American Indian. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2485 (2020) (Roberts, Ch.J., dissenting). 5. Morris v. Hitchcock, 194 U.S. 384 (1904). 6. 435 U.S. 191 (1978). 7. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 153–​54 (1980). 8. 455 U.S. 130 (1982). 9. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 141 (1982). 10. Id. at 144.

Civil Jurisdiction in Indian Country  237 11. New Mexico v. Mescalero Apache Tribe, 426 U.S. 324, 333 (1983). See also Merrion, 455 U.S. at 144–​45. 12. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987). 13. Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956). 14. Mustang Production Co. v. Harrison, 94 F.3d 1382 (10th Cir. 1996), cert. denied, 520 U.S. 1139 (1997). 15. Ashcroft v. United States, 679 F.2d 196 (9th Cir.), cert. denied, 459 U.S. 1201 (1983). 16. Sanders v. Robinson, 864 F.2d 630 (9th Cir. 1988), cert. denied, 490 U.S. 943 (1989). 17. 450 U.S. 544 (1981). 18. Montana v. United States, 450 U.S. 544, 563 (1981). See also Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 328 (2008) (“By virtue of their incorporation into the United States, the tribe’s sovereign interests are now confined to managing tribal land.”). 19. Montana, 450 U.S. at 564 (internal citation omitted). 20. Id. at 559–​66. 21. See Plains Commerce Bank, 554 U.S. at 330 (“These rules have become known as the Montana exceptions”). See also Attorney’s Process & Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 936 (8th Cir. 2010), cert denied, 562 U.S. 1179 (2011); Sarah Krakoff, Tribal Civil Judicial Jurisdiction over Nonmembers: A Practical Guide for Judges, 81 U. Colo. L. Rev. 1187, 1205–​08 (2010). 22. See Plains Commerce Bank, 554 U.S. at 330 (“The burden rests on the tribe to establish one of the exceptions to Montana’s general rule.”); Atkinson Trading Co. v. Shirley, 532 U.S. 645, 654 (2001). 23. 492 U.S. 408 (1989). 24. Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 446 (1989). However, if the area is not “opened,” state zoning laws are presumptively invalid. See Gobin v. Snohomish County, 304 F.3d 909 (9th Cir. 2002), cert. denied, 538 U.S. 908 (2003). 25. 508 U.S. 679 (1993). 26. South Dakota v. Bourland, 508 U.S. 679, 689 (1993). 27. 520 U.S. 438 (1997). 28. Strate v. A-​1 Contractors, 520 U.S. 438, 457 (1997). See also Philip Morris USA, Inc. v. King Mountain Tobacco, Inc., 569 F.3d 932, 942–​44 (9th Cir. 2009); South Dakota v. Frazier, 2020 WL 6262103 (D.S.D. 2020). For a discussion of Strate, see Krakoff, supra note 21, at 1212–​16. 29. Strate, 520 U.S. at 459. 30. 532 U.S. 645 (2001). 31. 533 U.S. 353 (2001). 32. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 655–​56 (2001). See also MacArthur v. San Juan County, 309 F.3d 1216, 1223 (10th Cir. 2002). 33. Atkinson, 532 U.S. at 655. 34. Nevada v. Hicks, 533 U.S. 353, 358–​60 (2001). See also MacArthur v. San Juan County, 497 F.3d 1057, 1069–​70 (10th Cir. 2007), cert. denied, 552 U.S. 1181 (2008); Zempel v. Liberty, 143 P.3d 123 (Mont. 2006).

238  The Rights of Indians and Tribes 35. Hicks, at 358 n.2. 36. Id. at 370. Hicks remains problematic but, thus far, courts have not given Hicks broad application. See Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation, 862 F.3d 1236, 1244 (10th Cir. 2017), cert. denied, 138 S. Ct. 1001 (2018); Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 815–​16 (9th Cir. 2011); Fredericks v. Fredericks, 888 N.W. 2d 177, 184 (N.D. 2016). See also Reid Peyton Chambers, Reflections on the Changes in Indian Law, Federal Indian Policies and Conditions on Indian Reservations Since the Late 1960s, 46 Ariz. St. L.J. 730, 750 (2014). 37. 554 U.S. 316 (2008). 38. Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014), aff ’d by an equally divided court sub nom. Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 579 U.S. 545 (2016). 39. Strate v. A-​1 Contractors, 520 U.S. 438, 453 (1997). See also Attorney’s Process & Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 936 (8th Cir. 2010), cert denied, 562 U.S. 1179 (2011). The Court has never explained a basis for this conclusion. See Alex Tallchief Skibine, Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-​Members, UCLA Discourse (Dec. 6, 2019), note 159 and accompanying text, available at https://​www. uclala​wrev​iew.org/​incorp​orat​ion-​with​out-​assim​ilat​ion-​legi​slat​ing-​tri​bal-​civil-​juris​ dict​ion-​over-​non​memb​ers/​. 40. This principle has been extensively criticized. See Angelique EagleWoman, Jurisprudence and Recommendations for Tribal Court Authority Due to Imposition of U.S. Limitations, 47 M. Haml. L. Rev. 341, 366 (2020). 41. Yellowstone County v. Pease, 96 F.3d 1169 (9th Cir. 1996). 42. Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997), cert. denied, 523 U.S. 1074 (1998). See also C’Hair v. Dist. Ct. Ninth Jud. Dist., 357 P.3d 723 (Wyo. 2015); Winer v. Penny Enterprises, Inc., 674 N.W.2d 9 (N.D. 2004). 43. County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) (en banc). 44. Burlington Northern R.R. Co. v. Red Wolf, 196 F.3d 1059 (9th Cir. 1999), cert. denied, 529 U.S. 1110 (2000). 45. Montana Department of Transportation v. King, 191 F.3d 1108 (9th Cir. 1999). 46. Big Horn County Electric Cooperative, Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000). 47. Evans v. Shoshone-​Bannock Land Use Policy Comm’n, 736 F.3d 1298 (9th Cir. 2013). See also Ute Indian Tribe of Uintah and Ouray Reservation v. McKee, 32 F.4th 1003 (10th Cir. 2022) (holding that a tribe could not sue a non-​Indian in tribal court regarding water usage on non-​Indian land within the reservation unless a Montana exception exists). 48. Attorney’s Process & Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 938–​42 (8th Cir. 2010), cert denied, 562 U.S. 1179 (2011); see also Farmers Union Oil Co. v. Guggolz, 2008 W.L. 216321 (D.S.D. 2008). 49. Grand Canyon Skywalk Devel., LLC v. Sa Nyu Wa, Inc., 715 F.3d 1196, 1205–​06 (9th Cir.), cert. denied, 571 U.S. 1110 (2013). See also Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 817 (9th Cir. 2011).

Civil Jurisdiction in Indian Country  239 50. FMC v. Shoshone-​Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991). 51. Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014), aff ’d by an equally divided court sub nom. Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 579 U.S. 545 (2016). 52. Knighton v. Cedarville Rancheria of Northern Paiute Indians, 922 F.3d 892, 904 (9th Cir.), cert. denied, 140 S. Ct. 513 (2019). 53. Big Horn County Electric Coop., Inc. v. Big Man, 2022 WL 738623 (9th Cir.), cert. denied, 143 S. Ct. 525 (2022). 54. Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 898 (9th Cir. 2017), cert. denied, 138 S. Ct. 648 (2018). But see Belcourt Public Sch. Dist. v. Davis, 786 F.3d 653 (8th Cir. 2015) (holding that contract between public school and tribe did not confer tribal jurisdiction). 55. See FMC Corp. v. Shoshone-​Bannock Tribes, 942 F.3d 916 (9th Cir. 2019), cert. denied, 141 S. Ct. 1046 (2021). 56. Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842 (9th Cir.), cert. denied, 558 U.S. 1024 (2009). 57. Diepenbrock v. Merkel, 97 P.3d 1063 (Kan. App. 2004). See also Kizis v. Morse Diesel Int’l, Inc., 794 A.2d 498 (Conn. 2002). 58. Attorney’s Process & Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 939–​40 (8th Cir. 2010), cert denied, 562 U.S. 1179 (2011). 59. Grand Canyon Skywalk Devel., LLC v. Sa Nyu Wa, Inc., 715 F.3d 1196, 1205–​06 (9th Cir.), cert. denied, 571 U.S. 1110 (2013). See also Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 817 (9th Cir. 2011). 60. Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation, 862 F.3d 1236, 1246 (10th Cir. 2017), cert. denied, 138 S. Ct. 1001 (2018). 61. Wilson v. Horton’s Towing, 906 F.3d 1603 (9th Cir. 2018), cert. denied, 139 S. Ct. 1603 (2019). 62. Coeur d’Alene Tribe v. Johnson, 405 P.3d 13 (Idaho 2017). 63. Big Horn County Electric Coop., Inc. v. Big Man, 2022 WL 738623 (9th Cir.), cert. denied, 143 S. Ct. 525 (2022). 64. McDonald v. Means, 309 F.3d 530 (9th Cir. 2002). 65. FMC Corp. v. Shoshone-​Bannock Tribes, 942 F.3d 916 (9th Cir. 2019), cert. denied, 141 S. Ct. 1046 (2021). 66. Nance v. E.P.A., 645 F.2d 701 (9th Cir. 1981). 67. See State of Montana v. U.S. E.P.A., 137 F.3d 1135 (9th Cir. 1998). 68. 358 U.S. 217 (1959). 69. See also Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir.) (en banc), cert. denied, 547 U.S. 1209 (2006); Diepenbrock v. Merkel, 97 P.3d 1063 (Kan. App. 2004); Vencel v. Bug-​O-​Nay-​Ge-​Shig, 262 F. Supp. 2d 1001 (D. Minn. 2003); Risse v. Meeks, 585 N.W.2d 875 (S.D. 1998). 70. Montana v. United States, 450 U.S. 544, 565–​66 (1981). 71. Montana, 450 U.S. at 566.

240  The Rights of Indians and Tribes 72. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 341 (2008) (internal quotation omitted). See also Ute Indian Tribe of Uintah and Ouray Reservation v. McKee, 32 F.4th 1003, 1010 (10th Cir. 2022); Belcourt Public Sch. Dist. v. Davis, 786 F.3d 653, 660 (8th Cir. 2015). 73. Merrion v. Jicarilla Apache Tribe, 455 U.S. 103, 137 (1982). 74. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 653 (2001). 75. Frank Pommersheim, At the Crossroads: A New and Unfortunate Paradigm of Tribal Sovereignty, 55 S.D. L. Rev. 48, 50 (2010). See also Skibine, supra note 39, notes 8–​9 and accompanying text. 76. Katherine Florey, Beyond Uniqueness: Reimagining Tribal Courts’ Jurisdiction, 101 Cal. L. Rev. 1499, 1522–​23, 1554 (2013). See also Robert T. Anderson, Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country, 34 Stan. Envtl. L.J. 195, 197, 201–​02 (2015). 77. Skibine, supra note 39, notes 1–​2 and accompanying text (citing Matthew L.M. Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. Rev. 121 (2006)); Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Affairs, 63 UCLA L. Rev. 666 (2016). 78. See Duro v. Reina, 495 U.S. 676, 696–​98 (1990) (citing Talton v. Mayes, 163 U.S. 376, 382–​83 (1896)). For a further discussion of this subject, see Skibine, supra note 39, notes 85–​101 and accompanying text. 79. See Duro, 495 U.S. at 693; Nevada v. Hicks, 533 U.S. 353, 384–​85 (2001) (Souter, J., concurring). 80. See Duro, 495 U.S. at 693; Hicks, 533 U.S. at 385 (Souter, J., concurring). 81. See Duro, 495 U.S. at 693. 82. See Strate v. A-​1 Contractors, 520 U.S. 438, 45 (1997) (noting that tribal courts are “unfamiliar” to non-​Indians); Hicks, 533 U.S. at 385 (Souter, J., concurring). This subject is discussed further in Chapter VI, Section 6. 83. Nell Jessup Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 Am. Indian L. Rev. 285, 351 (1988). See also Matthew L.M. Fletcher, Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited, 84 U. Colo. L. Rev. 59, 75 (2013). 84. Matthew L.M. Fletcher, Resisting Federal Courts on Tribal Jurisdiction, 81 U. Colo. L. Rev. 973, 1002–​03 (2010). See also Florey, supra note 76, at 1503–​05. 85. 141 S. Ct. 1638 (2021). 86. Id. at 1643. Cooley is discussed further in Chapter VI, notes 179–​80 and accompanying text. 87. See Florey, supra note 76, at 1553–​64; M. Gatsby Miller, The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction over Nonmembers in Civil Cases, 114 Colo. L. Rev. 1825, 1849–​60 (2014); Matthew L.M. Fletcher, A Unifying Theory of Tribal Civil Jurisdiction, 46 Ariz. St. L.J. 779, 785, 828–​43 (2014). Given the numerous Supreme Court decisions stripping tribes of jurisdiction over non-​Indians, “[a]‌t this point, only Congress can redraw the tribal jurisdictional map” by passing remedial legislation. Krakoff, supra note 21, at 1192. 88. Skibine, supra note 39, notes 103–​97 and accompanying text.

Civil Jurisdiction in Indian Country  241 89. See Robert J. Miller, Tribal Sovereignty and Economic Efficiency Versus the Courts, 97 Wash. L. Rev. 775, 777 (2022). 90. 471 U.S. 845 (1985). 91. See National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851–​52 (1985). See also Thiopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1233–​34 (10th Cir. 2014). 92. National Farmers, 471 U.S. at 853. For a discussion of this case, see Krakoff, supra note 21, at 1210–​12. 93. National Farmers, 471 U.S. at 856–​57. See also Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation, 868 F.3d 1199, 1203–​04 (10th Cir. 2017); Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 898 (9th Cir. 2017), cert. denied, 138 S. Ct. 648 (2018); Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294, 1300 (8th Cir. 1994), cert. denied, 513 U.S. 1103 (1995). 94. National Farmers Union, 471 U.S. at 857; Coeur d’Alene Tribe v. Hawks, 933 F.3d 1052 (9th Cir. 2019); Thlopthlocco Tribal Town, 762 F.3d at 1233–​34. 95. Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation, 862 F.3d 1236, 1242–​ 43 (10th Cir. 2017), cert. denied, 138 S. Ct. 1001 (2018); Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 844 (9th Cir.), cert. denied, 558 U.S. 1024 (2009). 96. See Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987); WPX Energy Williston, LLC v. Jones, 72 F.4th 834 (8th Cir. 2023); Window Rock Unified Sch. Dist., 861 F.3d at 898; Hartman v. Kickapoo Tribe Gaming Commission, 319 F.3d 1230 (10th Cir. 2003); Bank One, N.A. v. Shumake, 281 F.3d 507, 509 (5th Cir.), cert denied, 537 U.S. 818 (2002); Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, 207 F.3d 21 (1st Cir. 2000). When a case has already been filed in federal court, the court can stay the federal proceedings until tribal exhaustion has been completed. See Sharber v. Spirit Mountain Gaming, Inc., 343 F.3d 974 (9th Cir. 2003). 97. United States v. Tsosie, 92 F.3d 1037, 1044 (9th Cir. 1996). 98. Iowa Mutual, 480 U.S. 9. See also DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877, 882–​83 (8th Cir. 2013); Atwood v. Fort Peck Tribal Court, 513 F.3d 943, 948 (9th Cir. 2008). 99. National Farmers Union, 471 U.S. at 856 n.1; Nevada v. Hicks, 533 U.S. 353, 369 (2001); Kodiak Oil & Gas (USA) Inc. v. Burr, 932 F.3d 1125 (8th Cir. 2019); Window Rock Unified Sch. Dist., 861 F.3d at 898. See also Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation, 862 F.3d 1236, 1249 (10th Cir. 2017), cert. denied, 138 S. Ct. 1001 (2018) (noting that the bad faith exception applies only when the tribal court, and not a tribal official, acts in bad faith). 100. Strate v. A-​1 Contractors, 520 U.S. 438, 459–​60 (1997). See also Hicks, 533 U.S. at 369; Kodiak Oil, 932 F.3d at 1139. 101. Iowa Mutual, 480 U.S. at 18–​19; Ninigret, 207 F.3d at 34. 102. Iowa Mutual, 480 U.S. at 18–​19; Water Wheel, 642 F.3d at 817 n.9; Attorney’s Process & Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927, 934 (8th Cir. 2010), cert denied, 562 U.S. 1179 (2011); Mustang Production Co. v. Harrison, 94 F.3d 1382, 1384 (10th Cir. 1996), cert. denied, 520 U.S. 1139 (1997).

242  The Rights of Indians and Tribes 103. Attorney’s Process, 609 F.3d at 934, 942–​43; Basil Cook Enterprises, Inc. v. St. Regis Mohawk Tribe, 117 F.3d 61, 66 (1st Cir. 1997); Sanders v. Robinson, 864 F.2d 630 (9th Cir. 1988), cert. denied, 490 U.S. 943 (1989). 104. See National Farmers Union, 471 U.S. 845 (suit by Indian against non-​Indian initiated in tribal court); Stock West Corp. v. Taylor, 964 F.2d 912, 920 (9th Cir. 1992) (en banc) (same); Brown Construction Co. v. Washoe Housing Authority, 835 F.2d 1327 (10th Cir. 1988) (suit by non-​Indian against Indian initiated in federal court); Weeks Construction Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986) (same). 105. 18 U.S.C. § 1161. See United States v. Mazurie, 419 U.S. 544 (1975). The subject is discussed in more detail in Chapter VI, Section B(7). 106. See State of Montana v. U.S. E.P.A., 137 F.3d 1135 (9th Cir. 1998) (Clean Water Act); State of Arizona v. U.S. E.P.A., 151 F.3d 1205 (9th Cir. 1998), amended, 170 F.3d 870 (9th Cir. 1999) (Clean Air Act). 107. 18 U.S.C. § 2265(e). See Spurr v. Pope, 936 F.3d 478 (6th Cir. 2019). See also 34 U.S.C. § 10450 (discussing tribal protection orders issued under the Violence Against Women Act). 108. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990); Miodowski v. Miodowski, 2006 WL 3454797 (D. Neb. 2006); Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law § 7.02[1]‌[d], 603 (2012 ed.). 109. Dick v. United States, 208 U.S. 340 (1908); Winters v. United States, 207 U.S. 564 (1908). 110. 31 U.S. 515 (1832). 111. Worcester v. Georgia, 31 U.S. 515, 559, 561 (1832). 112. See Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 458 (1995); McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973); Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976); Florida House of Representatives v. Crist, 999 So. 2d 601, 613 (Fla. 2008). 113. McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020). 114. McClanahan, 411 U.S. at 168, citing Rice v. Olson, 324 U.S. 786, 789 (1945). See also Haaland v. Brackeen, 143 S. Ct. 1609, 1652–​53 (2023) (Gorsuch, Sotomayor, Jackson, JJ. concurring) (explaining that “at the founding, the Tribes retained their sovereignty” and states had “virtually no role to play in managing interactions with Tribes.”). 115. 25 U.S.C. §§ 331 et seq. 116. See County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251 (1992) (holding that state may tax deeded land owned by an Indian), and Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998) (holding that the state may tax deeded land owned by an Indian tribe). 117. 18 U.S.C. § 1162, 28 U.S.C. § 1360. P.L. 280 is discussed in Chapter VII, notes 21–​51 and accompanying text. 118. Termination is discussed in Chapter I, notes 97–​100 and accompanying text. 119. 426 U.S. 373 (1976). 120. Bryan v. Itasca County, Minnesota, 426 U.S. 373, 384 (1976).

Civil Jurisdiction in Indian Country  243 121. Id. 122. Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975), cert. denied, 429 U.S. 1038 (1977). 123. 480 U.S. 202 (1987). 124. Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146, 149 (9th Cir. 1991), cert. denied, 503 U.S. 997 (1992). It is not always easy to determine whether a law is criminal or civil. See Chapter VII, notes 31–​37 and accompanying text. 125. 28 U.S.C. § 1360. 126. Bryan, 426 U.S. at 384 n.10, 390. See Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877 (1986); Fredericks v. Fredericks, 888 N.W. 2d 177, 184 (N.D. 2016). 127. Miodowski v. Miodowski, 2006 WL 3454797 (D. Neb. 2006); In re Marriage of Purnel, 60 Cal. Rptr. 2d 667 (Ct. App. 1997). 128. Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005), cert denied, 547 U.S. 1111 (2006). 129. Doe v. Doe, 349 P.3d 1205 (Idaho 2015). 130. Bryan, 426 U.S. at 388–​89. See LaMere v. Superior Court, 31 Cal. Rptr. 3d 880, 883–​84 (Cal. App. 2005), cert. denied, 547 U.S. 1147 (2006); Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235 (Fla. 1993). 131. 25 U.S.C. §§ 1322, 1326. A state cannot acquire P.L. 280 jurisdiction unless this election procedure is followed. Kennerly v. District Court, 400 U.S. 423 (1971). 132. See Robert T. Anderson, Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, 87 Wash. L. Rev. 915, 917 (2012) (noting that P.L. 280 “has long been regarded as offensive to tribal governments and Indian people”). 133. Retrocession is discussed in Chapter VII, notes 50–​51 and accompanying text. For a discussion of why Congress should allow tribes to initiate the retrocession process, see Anderson, id. 134. Termination is discussed in Chapter V, Section B(3). 135. 25 U.S.C. §§ 1701, 1708. For a history of the Narragansett settlement, see Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir.) (en banc), cert. denied, 549 U.S. 1053 (2006). 136. 25 U.S.C. §§ 1721–​35 (Maine Indian Claims Settlement Act). For a discussion of this Act, see Akins v. Penobscot Nation, 130 F.3d 482 (1st Cir. 1997). The Act, however, did not confer state jurisdiction over internal tribal matters, such as membership and elections. See Francis v. Dana-​Cummings, 962 A.2d 944 (Maine 2008). 137. Pub. L. No. 102-​171, 105 Stat. 1143, codified as 25 U.S.C. § 1721. See Aroostook Band of Micmacs v. Ryan, 484 F.3d 41 (1st Cir.), cert denied, 552 U.S. 1039 (2007). In 2023, the Maine legislature approved a bill that would have diminished the state’s control over the state’s tribes, but the Governor vetoed it. 138. Pub. L. No. 98-​290, § 5, 98 Stat. at 202. The Native American Rights Fund has a list of the states that received from Congress some amount of jurisdiction over tribes within their states. See https://​narf.org/​tri​bal-​state-​juris​dict​ion. 139. 18 U.S.C. § 1161. This law has been extensively criticized for interfering with tribal sovereignty. See Ryan Wilson, Closing Time: Removing the State of Oklahoma for Alcohol Regulation in Indian Country, 69 Okla. L. Rev. 485 (2017).

244  The Rights of Indians and Tribes 140. Rice v. Rehner, 463 U.S. 713 (1983). See also Citizen Band Potawatomi Indian Tribe v. Oklahoma Tax Commission, 975 F.2d 1459 (10th Cir. 1992); Flandreau Santee Sioux Tribe v. Noem, 938 F.3d 928, 935–​37 (8th Cir. 2019) (upholding a state’s refusal to issue a tribe a liquor license for its casino until the tribe paid taxes it owed the state from sales of goods to non-​Indian patrons of a casino store). 141. 25 U.S.C. § 231. See Thomsen v. Kings County, 694 P.2d 40, 44 (Wash. App. 1985). 142. 25 U.S.C. § 357. See Alaska Dept. Nat. Resources v. United States, 816 F.3d 580, 586–​87 (9th Cir. 2016); Nebraska Pub. Power Dist. v. 100.95 Acres of Land, 719 F.2d 956 (8th Cir. 1983). The statute is limited to allotted land; tribal land cannot be condemned by the state under § 357 without the tribe’s consent, and this applies even to land in which a tribe has a minority interest. See Public Serv. Co. v. Barboan, 857 F.3d 1101 (10th Cir. 2017), cert. denied, 138 S. Ct. 1695 (2018). For a discussion of this statute, see Addison W. Bennett, Partially Tribal Land: The Case for Limiting State Eminent Domain Power Under 25 U.S.C. § 357, 86 U. Chi. L. Rev. 945 (2019). 143. 43 U.S.C. § 666. This law is discussed in Chapter XI, notes 89–​94 and accompany­ ing text. 144. Worcester v. Georgia, 31 U.S. 515, 561 (1832). 145. United States v. McBratney, 104 U.S. 621 (1881). 146. Thomas v. Gay, 169 U.S. 264, 273 (1898). See also Mont. Catholic Missions v. Missoula Cnty., 200 U.S. 118, 129 (1906). 147. 142 S. Ct. 2486 (2022). 148. Oklahoma v. Castro-​Huerta, 142 S. Ct. 2486, 2504 (2022). 149. Id. 150. Id. at 2494, 2504. 151. 358 U.S. 217 (1959). 152. Williams v. Lee, 358 U.S. 217, 220 (1959). 153. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). 154. U.S. Const. art. VI, § 2. See McClanahan, 411 U.S. 164; Bracker, 448 U.S. 136. 155. Bracker, 448 U.S. at 145 (citations omitted). See also Department of Taxation and Finance of New York v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 73 (1994). 156. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983). See also Oklahoma v. Castro-​Huerta, 142 S. Ct. 2486, 2500–​01 (2022) (approving and discussing the Bracker balancing test); Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324, 1336–​ 43 (11th Cir. 2015), cert. denied, 136 S. Ct. 2480 (2016). 157. Bracker, 448 U.S. at 143, citing McClanahan, 411 U.S. at 172. See also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987); Mescalero Apache Tribe, 462 U.S. at 344. 158. Critics assert that tribal sovereignty should never be relegated to a “backdrop.” See Matthew L.M. Fletcher, States and Their American Indian Citizens, 41 Am. Indian L. Rev. 319, 333–​34 (2017); Dewi Ioan Ball, The Erosion of Tribal Power: The Supreme Court’s Silent Revolution (2016). 159. Nevada v. Hicks, 533 U.S. 353, 362 (2001) (quoting Bracker, 448 U.S. at 144). See also Mescalero Apache Tribe, 462 U.S. at 331–​32.

Civil Jurisdiction in Indian Country  245 160. Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 458 (1995). See also Bracker, 448 U.S. at 144; Nevada v. Hicks, 533 U.S. at 362. 161. See Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 161 (1980); State v. Davis, 773 N.W.2d 66 (Minn. 2009). 162. 380 U.S. 685 (1965). 163. 411 U.S. 164 (1973). 164. McClanahan v. Arizona State Tax Commission, 411 U.S. 164 179–​80 (1973). 165. 448 U.S. 136 (1980). 166. Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 839 (1982). 167. Bryan v. Itasca County, 426 U.S. 373 (1976). 168. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976). 169. Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995). 170. Central Machinery Co. v. Arizona Tax Commission, 448 U.S. 160 (1980). 171. Montana v. Blackfeet Tribe, 471 U.S. 759 (1985). 172. New Mexico v. Mescalero Apache Tribe, 426 U.S. 324, 333–​34 (1983). 173. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987). 174. Washington Department of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985). 175. Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966 (10th Cir. 2005), cert. denied, 549 U.S. 809 (2006); California v. Naegle Outdoor Adv. Co., 698 P.2d 150 (Cal. 1985), cert. denied, 475 U.S. 1045 (1986). 176. In re Blue Lake Forest Products, Inc. v. Hong Kong & Shanghai Banking Corp., Ltd., 30 F.3d 1138 (9th Cir. 1994). 177. Flammond v. Flammond, 621 P.2d 471 (Mont. 1980); Jackson County v. Swayney, 352 S.E. 2d 413 (N.C. App. 1987), cert. denied, 484 U.S. 826 (1987). 178. Segundo v. City of Rancho Mirage, 813 F.2d 1387 (9th Cir. 1987). 179. 424 U.S. 382 (1976). 180. Fisher v. District Court, 424 U.S. 382, 387–​88 (1976). 181. Navajo Nation v. Dalley, 869 F.3d 1196, 1204 (10th Cir. 2018), cert. denied, 139 S. Ct. 1600 (2019). 182. Stathis v. Marty Indian Sch., 930 N.W.2d 653, 659 (S.D. 2019) (internal citations omitted). See also Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987); White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1304–​06 (9th Cir. 1988); Alone v. Brunsch, Inc., 931 N.W.2d 707 (S.D. 2019). 183. Crawford v. Genuine Parts Co., 947 F.2d 1405, 1408 (9th Cir. 1991); Lavillie v. Jay, 963 N.W.2d 287 (N.D. 2021); Milbank Mutual Insurance Co. v. Eagleman, 705 P.2d 1117 (Mont. 1985); Wyoming ex rel. Peterson v. District Court, 617 P.2d 1056 (Wyo. 1980). 184. Joe v. Marcum, 621 F.2d 358 (10th Cir. 1980); United States v. Morris, 754 F. Supp. 185, 186 (D.N.M. 1991); Begay v. Roberts, 807 P.2d 1111 (Ariz. App. 1991). Contra, Little Horn State Bank v. Stops, 555 P.2d 211 (Mont. 1976), cert. denied, 431 U.S. 924 (1977). 185. Annis v. Dewey County Bank, 335 F. Supp. 133 (D.S.D. 1971). See also In re Estate of Big Spring, 360 Mont. 370, 255 P.3d 121 (Mont. 2011) (holding that state court has no jurisdiction to probate the estate of a tribal member who lived on the reservation and whose estate property is located there).

246  The Rights of Indians and Tribes 186. Ute Indian Tribe of the Uintah and Ouray Reservation v. Lawrence, 22 F.4th 892 (10th Cir. 2022); Tohono O’odham Nation v. Schwartz, 837 F. Supp. 1024 (D. Ariz. 1993); Great Western Casinos Inc. v. Morongo Band of Mission Indians, 88 Cal. Rptr. 2d 828 (Cal. App. 1999). 187. McKay v. Kalyton, 204 U.S. 458 (1907); Krause v. Newman, 943 P.2d 1328 (Mont. 1997); Matter of Guardianship of Sasse, 363 N.W.2d 209 (S.D. 1985). But see Smith Plumbing Co., Inc. v. Aetna Cas. & Surety Co., 720 P.2d 499 (Ariz. 1984), cert. denied, 479 U.S. 987 (1986). 188. White v. Califano, 437 F. Supp. 543 (D.S.D. 1977), aff ’d, 581 F.2d 697 (8th Cir. 1978). 189. Ute Indian Tribe v. Lawrence, 22 F.4th at 910–​11; White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1304–​06 (9th Cir. 1988); Tohono O’odham Nation v. Schwartz, 837 F. Supp. at 1029. 190. Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997), cert. denied, 523 U.S. 1074 (1998); C’Hair v. Dist. Ct. Ninth Jud. Dist., 357 P.3d 723 (Wyo. 2015). See also Milne v. Hudson, 519 P.3d 511 (Okla. 2022) (holding that a state court may issue an order protecting a tribal citizen from violence and stalking, as state and tribal courts have concurrent jurisdiction in that situation). 191. See Crow Tribe of Indians v. Montana, 819 F.2d 895, 902–​03 (9th Cir. 1987), aff ’d, 484 U.S. 997 (1988); Winer v. Penny Enterprises, Inc., 674 N.W.2d 9 (N.D. 2004); Geiger v. Pierce, 758 P.2d 279, 281 (Mont. 1988); Rodriguez v. Wong, 82 P.3d 263 (Wash. App. 2004). 192. See LaMere v. Superior Court, 31 Cal. Rptr. 3d 880, 883–​86 (Cal. App. 2005), cert. denied, 547 U.S. 1147 (2006). 193. Nevada v. Hicks, 533 U.S. 353, 362 (2001). 194. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976). See also Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991); Fort Mojave Tribe v. County of San Bernardino, 543 F.2d 1253 (9th Cir. 1976), cert. denied, 430 U.S. 983 (1977). 195. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). For further information on this subject, see Chapter IX, notes 87–​93 and accompanying text. 196. Oklahoma Tax Commission, 498 U.S. at 514; Department of Taxation and Finance of New York v. Milhelm Attea & Bros., Inc., 512 U.S. 61 (1994). 197. 490 U.S. 163 (1989). 198. Merrion v. Jicarilla Apache Tribe, 455 U.S. 103 (1982). 199. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 204 (1989) (Blackmun, Brennan, Marshall, JJ, dissenting). 200. Milhelm Attea, 512 U.S. 61. 201. Arrow Midstream Holdings, LLC v. 3 Bears Const., LLC, 873 N.W.2d 16 (N.D. 2015); Zempel v. Liberty, 143 P.3d 123 (Mont. 2006); Airvator, Inc. v. Turtle Mountain Mfg. Co., 329 N.W.2d 596 (N.D. 1983). 202. Seneca-​Cayuga Tribe v. Oklahoma, 874 F.2d 709 (10th Cir. 1989). 203. See Winer v. Penny Enterprises, Inc., 674 N.W.2d 9 (N.D. 2004); Schantz v. White Lightning, 231 N.W.2d 812 (N.D. 1975); Schantz v. White Lightning, 502 F.2d

Civil Jurisdiction in Indian Country  247 67 (8th Cir. 1974). See also Coeur d'Alene Tribe v. Hawks, 933 F.3d 1052 (9th Cir. 2019) (holding that a tribe cannot consent to state jurisdiction where such jurisdiction does not lawfully exist). 204. See Joe v. Marcum, 621 F.2d 358 (10th Cir. 1980); United States v. Morris, 754 F. Supp. 185, 186 (D.N.M. 1991); Begay v. Roberts, 807 P.2d 1111 (Ariz. App. 1991). See also Brenner v. Bendigo, 2013 WL 5652457 (D.S.D. 2013). Contra, Little Horn State Bank v. Stops, 555 P.2d 211 (Mont. 1976), cert. denied, 431 U.S. 924 (1977). 205. Cohen’s Handbook, supra note 108, § 7.07[2]‌[b], at 664–​68. 206. U.S. Const. art. IV, § 1. 207. See Mashantucket Pequot Tribal Family Law, available at https://​www.mptn-​nsn. gov/​tcfa​mily​law.aspx. 208. See Nez v. Peabody Western Coal Co., Inc., No. SC-​CV-​28-​97 (Nav. Sup. Ct. 1999), available at https://​www.tri​bal-​instit​ute.org/​cases/​nav​ajo/​nez.htm. 209. Beltran v. Harrah’s Arizona Corp., 202 P.3d 494, 497 (Ariz. App. 2008); Tracy v. Superior Court, 810 P.3d 1030, 1041 (Ariz. 1991). 210. Coeur d’Alene Tribe v. Johnson, 405 P.3d 13, 17 (Idaho 2017). 211. See Mich. Ct. Rule 2.615(a). 212. Order Promulgating Amendments to the General Rules of Practice for the District Courts (Rule 10—​Tribal Court Judgments and Orders), No. ADM09-​8009 (Minn. Sept. 1, 2018). 213. Nielsen v. Brocksmith Land & Livestock, Inc., 88 P.3d 1269, 1272 (2004). 214. Recognition of Tribal Judgments (Kan. June 16, 2020), available at https://​www.kscou​ rts.org/​KSCou​rts/​media/​KsCou​rts/​Ord​ers/​2020-​RL-​063.pdf. 215. In re Estate of Colombe, 885 N.W.2d 350 (S.D. 2016). 216. In the Matter of the Proposed Amendment to CR 82.5—​Tribal Court Jurisdiction (Wash. Sept. 5, 2019), available at https://​www.cou​rts.wa.gov/​cont​ent/​publi​cUpl​ oad/​Supr​eme%20Co​urt%20Ord​ers/​25700-​A-​1264.pdf. 217. See Baker v. Erickson, 977 N.W.2d 316 (N.D. 2022); Coeur d’Alene Tribe v. Johnson, 405 P.3d 13, 17 (Idaho 2017); Starr v. George, 175 P.3d 50 (Alaska 2008); Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006); Wilson v. Marchington, 127 F.3d 805, 807–​ 12 (9th Cir. 1997), cert. denied, 523 U.S. 1074 (1998). 218. See, e.g., S.D.C.L. § 1-​1-​25(2)(b); Okla. Stat. tit. 12, § 728(b); Wis. Stat. § 806.245(1)(a–​e) (discussed in Teague v. Bad River Band of Lake Superior Chippewa Indians, 665 N.W.2d 899 (Wis. 2003)); Wyo. Stat. Ann. § 5-​1-​111(a)(iv). 219. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66 n.1 (1978); Burrell, 456 F.3d at 1173 (noting that federal courts must accord “great deference to tribal court systems”); Sanders v. Robinson, 864 F.2d 630 (9th Cir. 1988), cert. denied, 490 U.S. 943 (1989). 220. See Arizona Department of Revenue v. Blaze Construction Co., 526 U.S. 32 (1999); Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 160–​61 (1980); State v. R.M.H., 617 N.W.2d 55, 65 (Minn. 2000). 221. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–​49 (1973). See also Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 464 (1995); Department of Health & Human Services v. Maybee, 965 A.2d 55 (Me. 2009); Agua Caliente Band of Cahuilla

248  The Rights of Indians and Tribes Indians v. Superior Court of Sacramento County, 148 P.3d 1126 (Cal. 2006) (holding that tribal contributions to candidates in off-​reservation elections must comply with the state’s campaign finance laws). 222. See Nevada v. Hicks, 533 U.S. 353, 362 (2001); Ward v. Race Horse, 163 U.S. 504 (1896), overruled on other grounds, Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999); State v. Harrison, 238 P.3d 869, 874 (N.M. 2010). 223. Fond du Lac Band of Lac Superior Band of Chippewa Indians v. Frans, 649 F.3d 849 (8th Cir. 2011). 224. See Herrera v. Wyoming, 139 S. Ct. 1686 (2019); Antoine v. Washington, 420 U.S. 194 (1975); Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979). This subject is discussed in Chapter X, Section B. 225. Prairie Band of Potawatomi Indians v. Wagnon, 476 F.3d 818, 827 (10th Cir. 2007). See also In re Blue Lake Forest Products, Inc. v. Hong Kong & Shanghai Banking Corp., Ltd., 30 F.3d 1138, 1141 (9th Cir. 1994); Red Lake Band of Chippewa Indians v. State, 248 N.W.2d 722 (Minn. 1976). 226. See State Securities, Inc. v. Anderson, 506 P.2d 786 (N.M. 1973); Little Horn State Bank v. Stops, 555 P.2d 211 (Mont. 1976), cert. denied, 431 U.S. 924 (1977). See also Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977) (allowing a case to proceed where Indian defendants had been served by state officers on the reservation in suit challenging off-​reservation fishing rights). 227. Wells v. Wells, 451 N.W.2d 402, 403 (S.D. 1990); Francisco v. State, 556 P.2d 1 (Ariz. 1976); Martin v. Denver Juvenile Court, 493 P.2d 1093 (Colo. 1972). See also Nevada v. Hicks, 533 U.S. 353, 356 (2001) (noting that state officials seeking to enforce a state court search warrant obtained a tribal court search warrant in order to implement it). 228. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). The subject is discussed in Chapter V, notes 1–​15 and accompanying text. 229. Northwest South Dakota Prod. Credit Association v. Smith, 784 F.2d 323, 326–​27 (8th Cir. 1986); United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976); Vencel v. Bug-​O-​Nay-​Ge-​Shig, 262 F. Supp. 2d 1001 (D. Minn. 2003). 230. Squire v. Capoeman, 351 U.S. 1, 5–​6 (1956). This subject is discussed in Chapter IX, Section A. 231. See Chapter VI, notes 233–​45 and accompanying text. For a summary of the case law in this area, see Soaring Eagle Casino and Resort v. NLRB, 791 F.3d 648 (6th Cir. 2015), cert. denied, 136 S. Ct. 2509 (2016).

IX Taxation Operating a government is expensive. Taxation is one method governments rely on to raise the money they need to operate. People on Indian reservations, therefore, may find themselves being taxed by three governments: federal, state, and tribal. This chapter explains which taxes they must pay.

A.  FEDERAL TAXATION Must reservation Indians pay federal taxes?

Generally, yes. In Squire v. Capoeman (1956),1 the Supreme Court held that Indians have a duty to pay the same federal income taxes applicable to everyone else unless Congress has conferred an immunity by treaty or statute. The Court said: “We agree with the Government that Indians are citizens and that in ordinary affairs of life, not governed by treaty or remedial legislation, they are subject to the payment of income taxes as are other citizens.”2 In most other contexts, federal laws do not apply to reservation Indians unless Congress expressly makes them applicable.3 Federal tax laws, on the other hand, apply to reservation Indians unless Congress expressly makes them inapplicable.4 The tax code of the United States subjects “every individual” to taxation on all income from “whatever source derived”5 absent an immunity from Congress. As a result, reservation Indians must pay federal income taxes on the money they earn from employment (even if they are tribal officials and their salary is paid from tribal funds),6 and on any money distributed to them from tribal sources, such as proceeds from the lease of tribal lands,7 or from the sale of tribal minerals8 or tribal timber.9 They are also subject to tax under the Federal Insurance Contributions Act (FICA),10 which supports Social Security and Medicare, unless specifically exempted. Similarly, Indians must pay federal taxes on motor fuel unless an immunity applies.11

The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0009

250  The Rights of Indians and Tribes

Are profits from tribal gaming subject to federal taxation?

Yes. Congress enacted the Indian Gaming Regulatory Act (IGRA)12 in 1988 to regulate gaming on Indian reservations. IGRA authorizes tribes to distribute the profits from gaming activities to their members on a per capita basis: each member receives an equal payment (“per caps”). IGRA subjects these distributions to federal income taxation.13 Tribes must report the distributions to the Internal Revenue Service (IRS), notify their members of their tax liability, and withhold the taxes due on them.14 Indians who fail to report this income and pay taxes on it can be assessed penalties by the IRS.15

What about the provision in the U.S. Constitution that refers to “Indians not taxed”? Does that provide an exemption from federal taxation?

No. The clause “Indians not taxed” appears in the section of the Constitution that explains how each state determines the number of people it may seat in the House of Representatives.16 The Constitution requires each state to exclude “Indians not taxed” in counting its population for purposes of congressional apportionment. At the time the Constitution was written in 1787, Indians were not U.S. citizens and they were not being taxed. Today, due to a statute passed in 1924,17 Indians are citizens, they are being taxed, and they are now counted for apportionment purposes. The clause “Indians not taxed” is obsolete. This clause was not intended to create an immunity from taxation, and it does not create one now.18

Has Congress given Indians any exemptions from federal taxes?

Yes, a few. Money placed into a trust account for a tribe from the sale or lease of tribal trust property which is then distributed by the tribe to its members need not be claimed as income by those members.19 Income earned by a tribal member exercising a federally guaranteed right to fish, such as a fishing right guaranteed by treaty, is exempt from taxation.20 The Tribal General Welfare Exclusion Act excludes from federal taxation the payments or services that a tribe gives to its members as part of a general welfare program, including donations of food, public assistance, and day care.21 Indians also have an express tax immunity on the value of trust land they inherit.22 The General Allotment Act of 1887 (GAA)23 is another law that exempts certain income from federal taxation. In Squire v. Capoeman, mentioned earlier, the Court was asked to decide whether Indians who sold timber from

Taxation  251 trust land they had been allotted under the GAA had to pay federal taxes on the income earned from the sale. The Court stated at the outset that Indians must pay all federal income taxes unless they have an exemption. The Court then found that the GAA exempted from taxation the profits made from the sale of timber growing on the taxpayer’s allotment. The Court reached this conclusion based on two findings. First, the purpose of the GAA was to enable Indians to become economically self-​sufficient by providing them with land from which they could earn an income, and that purpose would be undermined if the federal government could tax that income. Second, the GAA provides that if the Indian allottee receives a deed to the allotment, this would remove “all restrictions as to . . . taxation.”24 This clause was further proof that Congress did not want income earned from the land to be taxed while that land remained in trust status.25 Under the Squire rule, Indians who farm or ranch on their trust allotments;26 sell timber, oil, or minerals from them;27 or receive rent when they lease their allotments to others28 do not pay federal taxes on the income they earn. They also are exempt from taxation on income earned from an allotment they received as a gift.29

Does Squire v. Capoeman exempt from federal taxation all income earned from the use of allotted trust land?

If Squire were given a broad interpretation, the GAA would exempt from taxation all income earned from the use of allotted trust land. The IRS, however, has given Squire a narrow interpretation,30 and federal courts have generally upheld the IRS’s position. First, courts have held that Squire only exempts income earned from trust allotments assigned to the taxpayer. Income that the taxpayer earns from using someone else’s allotment or from using tribal trust land is subject to federal taxation because, the courts have held, the purpose of the GAA was to provide Indians with an allotment from which they could earn a living, not provide other land for that purpose.31 As a result, Indians who raise cattle on their own trust allotments as well as from land leased from the tribe must pay taxes on the value of the cattle raised on tribal land.32 Second, the Squire exemption does not apply to income earned from investing allotment proceeds, that is, to “reinvestment” income.33 To illustrate, if the taxpayer in Squire took the income earned from selling timber and deposited it into a bank account, the interest earned would be taxable. Third, some federal courts have held that the GAA only exempts income earned directly from the taxpayer’s allotment and not indirectly from

252  The Rights of Indians and Tribes improvements made to the land. Allottees may farm, log, or mine their allotments tax-​free, but if they build a store34 or motel35 on that allotment, the income earned from those businesses is taxable. These courts have drawn a distinction between income earned when the value of the taxpayer’s allotment is diminished by the sale of its resources versus any income earned from improving the property, and have allowed the government to tax the latter.36 These decisions seem inconsistent with the purpose of the GAA, which was to encourage Indians to use their allotments to become economically self-​sufficient.

To what extent are Indian tribes taxed by the federal government?

In 196737 and 1981,38 the IRS issued regulations stating that Indian tribes were not taxable entities, thereby extending to Indian tribes the same immunity from federal taxation that Congress had extended to state governments. In 1982, however, a federal appellate court rejected the IRS’s position and held that Indian tribes are not exempt from federal taxation, given that Congress had passed no law conferring any such immunity.39 Congress quickly responded to this decision by passing the Indian Tribal Government Tax Status Act of 1982.40 This law exempts tribal governments from paying most of the federal taxes that state governments are exempt from paying.41 Some taxes from which the states have an express immunity are not listed in the 1982 Act. In 1994, however, the IRS issued a regulation adopting the position it had taken in 1967 and 1981 and declared that tribal income is not subject to federal income taxation.42 Consequently, as one commentator has stated, Indian tribes “are not subject to federal income taxation—​regardless of the nature or location of their activities.”43 For instance, tribes may operate their own businesses exempt from federal income taxation, even if the income is earned off the reservation.44 Tribal businesses incorporated under state law, however, are subject to federal income taxation, the same rule that applies to all such corporations.45

May Congress abolish an Indian tax immunity?

Yes. Congress may abolish a tax immunity. If the immunity was provided to the tribe by a federal law or treaty, it is considered a form of private property protected against loss by the Just Compensation Clause of the Fifth Amendment to the Constitution and, therefore, compensation must be paid to the tribe equal to the value of the immunity.46 The Supreme Court has held that a tax immunity will remain in effect until Congress expresses a clear intention to abolish it.47

Taxation  253

B.  STATE TAXATION State governments have an obvious interest in taxing Indians, non-​Indians, and Indian tribes in Indian country as a means of raising revenue. Indian tribes and their members, however, are immune from nearly all state taxes in Indian country, whereas reservation non-​Indians must pay most of them. As explained in the previous chapter, a state may not regulate any tribal activity in Indian country where doing so would violate a federal law or treaty (the preemption test) or significantly infringe on the right of the tribe to be self-​governing (the infringement test). The Supreme Court has decided nearly a dozen cases involving attempts by a state, without congressional authorization, to tax Indian tribes or their members in Indian country.48 In each case, the Court invalidated the tax. The Court has consistently upheld the principle that “Indian tribes and individuals generally are exempt from state taxation within their own territory” in the absence of “unmistakably clear” congressional consent to the imposition of the tax.49 If a federal law is unclear or ambiguous as to whether it consents to the imposition of a state tax, the statute must “be construed liberally in favor of the Indians.”50 States have urged the Supreme Court to begin using a “balancing” test in reviewing the legality of state taxation of Indians and tribes. Under such a test, the state’s interests in regulating the activity and raising revenue would be balanced against the Indian’s or tribe’s interests in avoiding the tax. The Court has rejected these invitations, explaining that “when a State attempts to levy a tax directly on an Indian tribe or its members inside Indian country, rather than on non-​Indians, we have employed, instead of a balancing inquiry, a more categorical approach” which holds that the tax is preempted unless Congress has given its consent.51 As a federal appellate court stated in 2022, a state tax on Indians in Indian country “is presumptively invalid unless Congress has authorized it in ‘unmistakably clear’ terms.”52

1.  State Taxation of Individual Indians in Indian Country Do reservation Indians have to pay state income taxes on income earned on their reservation?

No. The Supreme Court ruled in 1973 that reservation Indians may not be assessed state income taxes on money they earn on their reservation.53

254  The Rights of Indians and Tribes

Do reservation Indians have to pay state personal property taxes on the value of their property located on the reservation?

No. The Supreme Court ruled in 1976 that personal property located on an Indian reservation and owned by a tribal member is exempt from state taxation.54 Consequently, states may not tax tribal members on the value of their automobiles, mobile homes, furnishings, equipment, or other personal property located on the reservation. Tribal members who register their automobiles or mobile homes with the state may be charged an administrative fee but need not pay any portion of the registration fee that is actually a personal property tax.55

Do reservation Indians have to pay state sales taxes on purchases made within the reservation?

No. Indians who purchase goods or services on their reservation may not be charged a state sales tax. This is true regardless of whether the seller is an Indian,56 a non-​Indian,57 or the tribe,58 and even if the item is to be used off the reservation.59

May a state tax the value of trust land?

No. Congress has not consented to state taxation of trust land, whether the beneficial owner is an Indian or a tribe.60 For instance, a state may not tax the rent paid to a tribe, even by a non-​Indian, for using tribal trust land.61 Permanent attachments to land, such as a house, a fence, or a water well, are considered part of the land. Therefore, the tribe may not be taxed on the value of these improvements when they are attached to trust land.62

May a state impose an inheritance tax on the estate of a reservation Indian based on the value of property located on the reservation?

No. In the absence of express consent, states are prohibited from taxing the estates of tribal members whose property is located on their reservation, regardless of whether the property being inherited is in trust status or in fee.63

Which other state taxes have been invalidated as applied to reservation Indians?

Numerous taxes that states attempted to impose on Indians or tribes in Indian country have been invalidated under the preemption test. Courts found that

Taxation  255 these taxes impermissibly interfered with federal law or policy designed to assist tribes and encroached on tribal self-​government. In addition to the taxes already mentioned, courts have held that a state may not impose a vendor’s license fee on a reservation Indian business,64 a tax on cigarettes sold on the reservation to tribal members,65 or tax motor fuel purchased on the reservation by a tribal member,66 unless Congress has consented. Such consent must be express, and any doubt concerning whether Congress authorized a state tax must be resolved in favor of the Indians.67 To illustrate, a law passed by Congress in 1940 authorizes states to impose income, sales, and use taxes in any “Federal area,”68 which arguably includes Indian reservations. In 1965, the Supreme Court held that this statute failed to provide sufficiently clear consent to impose those taxes on reservation Indians.69 Another federal law authorizes states to tax the sale of gasoline sold “on United States military or other reservations,”70 and although “reservations” could mean Indian reservations, courts have held that this law fails to provide sufficient consent to impose this tax on Indians and tribes in Indian country.71 Similarly, a law passed in 1938 authorizes states to tax the production of oil and gas on federal lands.72 The Supreme Court has held that this law fails to give express consent to state taxation of oil and gas production by Indian tribes on the reservation.73 A treaty signed in 1855 between the United States and the Yakama Nation guarantees the tribe “the right, in common with citizens of the United States, to travel upon all public highways.” In 2019, in Washington State Department of Licensing v. Cougar Den, Inc.,74 the Supreme Court held that this language preempted the state of Washington from taxing fuel brought to the reservation by Cougar Den, Inc., a wholesale fuel importer owned by a member of the Yakama Nation and incorporated under Yakama law. Cougar Den had been selected by the tribe to obtain fuel from outside the reservation and transport it to Yakama-​owned gas stations located within the reservation for resale. The Court examined the historical evidence surrounding the 1855 treaty and found that “the United States repeatedly assured the Yakamas that they could travel along the roads for trading purposes.”75 Applying the liberal interpretation required in all treaty matters, the Court held that a state tax on fuel transported on highways by a tribal member for tribal use would violate the 1855 treaty.

Which taxes has Congress authorized the states to impose in Indian country? Does P.L. 280 authorize state taxation?

Congress has passed few laws consenting to state taxation of reservation Indians and tribes. One such law is the General Allotment Act of 1887

256  The Rights of Indians and Tribes (GAA), discussed earlier. As a result of the GAA, nearly ninety million acres of tribal trust land became individually owned fee land. The GAA authorizes the state to impose a real estate tax on that fee land, whether the owner is an Indian tribe, a tribal member, or a nonmember.76 Public Law 83-​280 (P.L. 280), passed by Congress in 1953, gave certain states broad criminal jurisdiction in Indian country, as discussed in Chapter VII. In 1976, the Supreme Court held that P.L. 280 does not consent to state taxation of Indians or tribes.77 States that acquired authority under P.L. 280 have no greater right to tax Indians and tribes in Indian country than any other state.

May a state refuse to provide services to reservation Indians on the grounds that they are exempt from state taxation?

No. Reservation Indians may not be denied the full rights and benefits of state citizenship, despite their tax immunities.78 For example, a state may not condition the right to vote in state elections on the payment of property taxes, thereby discriminating against Indians who pay no taxes on their trust property.79 Indians acquired tax immunities as part of the compensation they received for the vast amounts of land they relinquished to the federal government. Indians, in other words, paid in advance for the tax immunities they possess. Non-​Indians often claim that a state suffers financially from having an Indian reservation within its borders due to these tax immunities and that tribes receive more money from states and local communities than they contribute to them. These claims are not supported by the facts. For one thing, there are tribal gaming casinos in twenty-​nine states, and many of them generate millions of dollars for the state, and create thousands of jobs, as discussed in Chapter XV. Even in those states in which Indian reservations are impoverished, tribal members eventually spend off the reservation the money they earn from reservation employment or receive from federal and state programs, which stimulates the economy and raises revenue through sales, business, and income taxes. Thus, few states (if any) suffer financially, and most prosper considerably, from the presence of Indian reservations within their borders.

Are nonmember Indians entitled to the same tax immunities that tribal members enjoy?

No. Indians located on a reservation other than their own (“nonmember Indians”) are not entitled to the tax immunities enjoyed by tribal members. In 1980, the Supreme Court held that nonmember Indians “stand on the

Taxation  257 same footing as non-​Indians” with respect to state taxation.80 Nonmember Indians, for instance, must pay state income and sales taxes.81

2.  State Taxation of Indian Tribes in Indian Country The Supreme Court has taken a “categorical approach” regarding state taxation of Indian tribes and their members in Indian country: if Congress has expressly authorized the tax, it is valid, but without that consent, it is not.82 A state may not tax income earned on the reservation by a tribe,83 including income received from the lease of tribal land to non-​Indians for oil and gas production84 or other mineral development,85 or assess vendor taxes,86 without express congressional consent. Tribes can be required, however, to collect a certain type of pass-​through tax imposed by the state. A pass-​through tax is one that is paid by the purchaser (the consumer) but is collected by the seller, who then remits the money to the government. That is, the “legal incidence” of the tax falls on the consumer. A sales tax is a pass-​through tax: although the storeowner is the entity that collects and sends in the tax, the tax is actually paid by the consumer. The Supreme Court held in 1976 that a tribe, when it sells cigarettes to non-​ Indians that the tribe purchased off-​reservation for resale on the reservation, can be required to collect the state’s cigarette and sales taxes and remit them to the state, even though Congress had not given its consent to this extension of state jurisdiction in Indian country.87 In 1980, the Court held that a state may also require a tribe to keep detailed records of its cigarette sales to non-​Indians so that state tax officials can determine whether the tribe is collecting the correct amount of taxes.88 The Court admitted that these collection and recordkeeping requirements imposed a burden on the tribe, but such “minimal” burdens are permitted, the Court said, because the state has the right to assess these pass-​ through taxes on non-​Indian consumers.89 The Court also admitted that allowing the state to tax these sales could have a harmful effect on tribal income. After all, if a tribal store does not have to charge the state’s sales tax, its prices will be lower than off-​reservation businesses, attracting customers to the reservation. The Court held, however, that Indians are not entitled to such an “artificial” advantage when they sell products imported from outside the reservation to non-​Indians.90 These decisions, as one scholar has noted, “are moored in the Court’s own sense of the appropriate place for tribes rather than any clear statements from Congress” regarding state taxation in Indian country.91

258  The Rights of Indians and Tribes In these “cigarette tax” cases, the tribe had added nothing of value to the cigarettes but had simply purchased them off the reservation for resale. If, however, a tribe grows its own tobacco on the reservation, or purchases tobacco in bulk and manufactures the cigarettes on the reservation, sales of those cigarettes—​even to non-​Indians—​would likely be exempt from state taxation because the tribe added significant value to the final product.92 But if the tribe distributes those manufactured cigarettes to out-​of-​state tribes for resale, some courts have held that the state can tax those transactions, viewing them as off-​reservation sales subject to general state tax laws.93 As noted earlier, the General Allotment Act caused some ninety million acres of trust land to convert to fee land, nearly all of it owned by non-​Indians, and it then became subject to state taxation. In City of Sherrill v. Oneida Indian Nation of New York (2005),94 the Supreme Court held that even when a tribe repurchases that fee land within the reservation, the land is still taxable by the state, and the original tax immunity is not restored merely because the tribe now owns the land. If the tribe wished to immunize the land from state taxation, the Court said, the tribe must follow the procedure created by Congress for converting privately owned land into trust status.95 However, if a treaty confers a tax immunity on all land owned by tribal members—​both trust land and fee land—​then that immunity applies, a federal court recently held, to fee land that had been reacquired by a tribal member after it had been sold to a non-​Indian.96 (No such treaty was present in the Sherrill case.)

May Indian tribes and tribal members immediately file suit in federal court to challenge the validity of a state tax?

Tribes can, but their members cannot. A federal law known as the Tax Injunction Act97 prohibits all persons from challenging a state tax in federal court “where a plain, speedy and efficient remedy may be had in the courts of such state.” Every state allows for tax challenges to be filed in state court. Consequently, Indians must exhaust their state remedies before seeking review in a federal court.98 Indian tribes, however, are exempt from this exhaustion requirement. A federal statute authorizes tribes to file suit in federal court to challenge the constitutionality of a state tax law without first exhausting state remedies.99

What recourse does a state have if a tribe fails to pay a state tax that is lawfully owed?

A state can require Indian tribes to collect state sales taxes when the tribe sells goods to a non-​Indian. If the tribe refuses to collect those taxes—​which

Taxation  259 then enables the tribe to sell its goods at a lower price than its off-​reservation competitors—​the state has a few options. Filing suit against the tribe is not one of them, however. In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma (1991),100 Oklahoma sued the Potawatomi Tribe seeking to collect $2.7 million in taxes that, according to the state, the tribe should have collected when it sold cigarettes to non-​Indians during a six-​year period. (This figure reflects the tremendous number of discounted cigarettes the tribe was selling from its “smoke shops.”) The Court dismissed the state’s lawsuit on the grounds of tribal sovereign immunity, which (as explained in Chapter XVII) protects Indian tribes from being sued unless Congress or the tribe has consented to the suit. But in dismissing the case, the Court warned the tribe that unless it collected these taxes and paid them to the state (1) the Court might allow states to collect these taxes directly out of the pockets of tribal officials, (2) the Court might allow Oklahoma to seize cigarettes being shipped to the reservation and hold them as ransom until the taxes were paid, or (3) Congress could pass a law waiving tribal sovereign immunity and allow these types of suits to proceed.101 In a 1994 case, the Supreme Court made good on one of these threats and allowed state officials to seize cigarettes shipped from an off-​reservation wholesaler to tribal vendors who were refusing to collect the state’s cigarette taxes from their non-​Indian customers.102 As another enforcement method, federal prosecutors have begun arresting Indian sellers under federal laws that make it a crime to traffic any cigarettes that do not carry a state tax stamp (which must be purchased from the state and is affixed to each pack of cigarettes).103 In 2020, a federal court of appeals applied the Citizen Band Potawatomi rule and dismissed a lawsuit brought by the state of New York against the Cayuga Indian Nation of New York. The state had sued the tribe for failing to pay real estate taxes assessed on the tribe’s fee land, the type of tax the Supreme Court held in Sherrill that states can impose. The court held that although the state had a right to assess the tax, it did not have a right to sue the tribe to collect the tax. But the court issued the same warning to the Cayuga as the Supreme Court gave to the Potawatomi: if the tribe refuses to pay these lawfully imposed taxes, the court or Congress could retaliate by allowing the state to collect the taxes from tribal officials or Congress could pass legislation authorizing suits against tribes.104 Tribes create resentment, distrust, and hostility when they assert sovereign immunity to avoid the payment of state taxes that are lawfully owed.105 A far better solution is for states and tribes to enter into cooperative agreements

260  The Rights of Indians and Tribes regarding tribal tax liabilities, as has occurred in Michigan, Oklahoma, and South Dakota with respect to a variety of taxes.106 In North Dakota, the Three Affiliated Tribes reached an agreement with the state to share tax revenues from oil and gas produced on the reservation.107 The state of Washington’s Department of Revenue has signed agreements with numerous tribes regarding the collection of the state’s cigarette and gasoline taxes.108 The governor of Washington is authorized to enter into compacts that allow Indian tribes to keep up to 100 percent of the state’s cigarette taxes provided the proceeds are spent on essential tribal services and the tribes agree to collect the full amount of the state tax (so that off-​reservation vendors will not face a competitive disadvantage from tribal stores selling the same products for less money).109 A similar arrangement exists in New Mexico.110 Tax compacts are not a panacea. Some tribes have been compelled to relinquish too much to the state in order to avoid expensive litigation. But tax compacts provide certainty and can be mutually beneficial.111

3.  State Taxation of Tribal Income Earned Off-​Reservation In Mescalero Apache Tribe v. Jones (1973),112 the Supreme Court held that a state could tax the income earned by an Indian tribe operating a ski resort located on federal land outside of Indian country. Indians and tribes going beyond reservation boundaries, the Court said, are subject to the same state laws applicable to everyone else unless they have an express immunity under federal law.113 In 1995, the Court held that tribal members who work on the reservation but who live off the reservation could be required to pay state income taxes.114 Reservation Indians can be taxed on any goods they purchase off the reservation115 and on any personal property or fee land they own outside the reservation.116

4.  State Taxation of Indian and Tribal Corporations Under what circumstances can an Indian or tribal corporation be taxed by the state?

Indian tribes may create corporations under tribal law, under state law, and, for those tribes organized under the Indian Reorganization Act of 1934 (IRA),117 under a federal charter. Each alternative has advantages and disadvantages.

Taxation  261 Tribal corporations organized under tribal law or under the IRA are exempt from state taxation with respect to activities conducted on that tribe’s reservation, unless Congress has consented to the tax.118 Some tribes and tribal members have chosen to incorporate their businesses under state law in order to gain the protection from personal liability for their owners that such laws usually provide. An Indian business incorporated under state law, however, is subject to state taxation.119 The IRS has issued a formal rule to that effect.120 In recent years, some tribes have passed laws conferring the same immunities on the owners of corporations licensed under tribal law as corporate owners enjoy under state law.

5.  State Taxation of Reservation Non-​Indians Do non-​Indians on the reservation have to pay state taxes?

States, of course, want to tax non-​Indians on an Indian reservation to the same extent as non-​Indians are taxed elsewhere in the state. In a series of cases, the Supreme Court established a test to determine whether a state tax on a reservation non-​Indian is valid. All such taxes, the Court has held, must be subjected to a “particularized inquiry” in which several factors are considered.121 Chief among these factors are the degree to which the federal government already regulates the activity being taxed, where the activity being taxed takes place (trust land or fee land), who will bear the burden of the tax, and whether the state is providing any services to the taxpayer in return for the money it seeks to collect.122 This test is often referred to as the “Bracker balancing test” because it was formulated by the Supreme Court in White Mountain Apache Tribe v. Bracker.123 Under this balancing test, taxes that impact only non-​Indians—​including income, personal property, real estate, and sales taxes—​typically are valid because there is no reason why a non-​Indian who happens to live on an Indian reservation should not pay the same taxes as non-​Indians who live elsewhere within the state.124 Some state taxes on non-​Indians, however, will fail the Bracker balancing test. This often occurs where the state is attempting to tax the income earned by a non-​Indian for providing goods or services to an Indian tribe (or to its members). For instance, the Supreme Court has prevented a state from taxing the income made by a non-​Indian construction company when it built a school on the reservation for the tribe,125 from taxing the fuel purchased by

262  The Rights of Indians and Tribes a non-​Indian company for hauling on tribal roads the timber it had cut from tribal lands,126 and from taxing the profits made by a non-​Indian storeowner who sold goods on the reservation to tribal members.127 In each case, the Court concluded that the taxes were preempted because (1) the burden of paying them would ultimately fall on the tribe or its members, as the non-​ Indian company would raise the price to its customer by an amount equal to the tax, (2) the state was providing few if any services in return for the taxes it sought to collect, and (3) the activity in question was already subject to substantial federal regulation. Using a similar rationale, the New Mexico Supreme Court prevented the state from taxing the income earned by a non-​ Indian company for providing consulting services to an Indian tribe,128 and a federal appellate court invalidated a state tax imposed on the sale of tribal timber to a non-​Indian company.129 In each case, the state was merely “revenue raising” at the tribe’s expense. In commercial transactions like the ones just described, a company building a tribal school will charge the tribe more money to build the school if it has to pay state taxes, and similarly, a company harvesting tribal timber for resale will pay the tribe less for its timber if the transaction is subject to state taxation. Therefore, it would be the tribe paying the tax, and courts have invalidated state taxes in such situations. However, not every state tax in these types of situations is invalid. The Supreme Court held in Cotton Petroleum Corp. v. New Mexico (1989),130 for instance, that New Mexico could tax a non-​Indian company on the profits it made from selling an Indian tribe’s oil and gas which the company had extracted from tribal lands pursuant to a contract with the tribe. Applying the Bracker test, the Court acknowledged that the state tax would likely burden the tribe to some extent; the presence of the state tax would inhibit the tribe from imposing its own tax on that activity because a “double” tax would discourage companies from wanting to search for oil and gas on tribal lands; and the state collected millions more from the taxes than it spent on the services it provided to the tribe and to the oil producer. Nevertheless, the Court upheld the state tax on the grounds that the tribe had failed to prove that its oil and gas would be unmarketable if both the tribe and the state taxed it, and the state was providing some services to the company and to the tribe.131 Consistent with Cotton Petroleum, courts have permitted states to tax (1) a railroad on the value of its right-​of-​way across tribal land;132 (2) a non-​ Indian rancher on the value of livestock grazing on tribal land;133 (3) tribal sales of cigarettes to non-​Indians;134 (4) a non-​Indian’s leasehold interest in tribal lands;135 (5) the income earned by a non-​Indian company which

Taxation  263 leased a hotel owned by an Indian tribe on the money the company earned from renting rooms and selling food to non-​Indian guests;136 (6) the income earned by a non-​Indian who leased a tribal facility and sold tickets to non-​ Indians who attended events at the facility;137 (7) the sale of goods by a non-​ Indian storeowner to non-​Indian customers at a shopping center located on land leased from an Indian tribe;138 (8) the sale of construction materials purchased by one non-​Indian company from another non-​Indian company for the construction of a tribal casino;139 (9) the value of improvements made by a non-​Indian on land leased from a tribe;140 (10) the income earned by a non-​Indian construction company that renovated a tribal casino;141 and (11) the value of slot machines leased to a tribe by a non-​Indian company for use at the tribe’s casino.142 In each case the court held, using the Bracker test, that the balance of interests favored the state. When conducting the Bracker balancing test, courts should remember that any tax on non-​Indians for providing goods or services to a tribe will harm the tribe’s ability to be economically self-​sufficient and is inherently inconsistent with the federal policy of fostering tribal self-​sufficiency.143 Non-​ Indians will be discouraged from engaging in commercial transactions with Indian tribes, and when they do work with them will likely charge tribes a higher fee if their transactions are subject to state taxation.144

C.  TRIBAL TAXATION Indian tribes possess the inherent sovereign right to tax. This power was recognized by the Supreme Court in Merrion v. Jicarilla Apache Tribe (1982):145 The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-​government and territorial management. This power enables a tribal government to raise revenues for its essential services. . . . [I]‌t derives from the tribe’s general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction.146

The power to tax stems directly from the tribe’s “undisputed power to exclude persons from tribal land [and to] set conditions on entry to that land,” including the condition that they pay tribal taxes.147

264  The Rights of Indians and Tribes

May an Indian tribe tax its members on the reservation?

Yes. An Indian tribe’s power to tax is an essential attribute of its sovereignty.148 A tribe may exercise that power over its own members on the reservation.

May an Indian tribe tax nonmembers on the reservation?

Cases involving tribal taxation of reservation nonmembers fall into two categories: taxation of nonmembers on Indian land, and taxation of nonmembers on non-​Indian land. Courts have consistently confirmed that tribes may tax nonmembers engaging in activities on Indian land. In 1904, for instance, the Supreme Court held that Indian tribes could levy a personal property tax on the value of cattle owned by a non-​Indian and grazing on Indian land.149 In 1980, the Court held that non-​Indians can be required to pay a tribal sales tax when they buy goods from Indian vendors on tribal land.150 In Merrion, the Court was asked to decide whether an Indian tribe could tax the value of oil and gas extracted by a non-​Indian company from wells located on tribal land after the tribe had agreed in a contract with the company to accept royalties on the oil and gas produced from those wells. The company contended that the tribe had waived its right to tax when it agreed to accept the royalties. The Supreme Court disagreed, holding that Indian tribes retain the inherent right to tax the production of minerals from tribal lands unless that right has expressly been waived, and the Court found no such waiver in the tribe’s contract with the oil company.151 Three years later in Kerr-​McGee Corp. v. Navajo Tribe (1985),152 the Court held that an Indian tribe had the inherent right to tax non-​Indians on the value of their leasehold interests in tribal trust land. The right of tribes to tax non-​Indians on Indian land is well settled, but tribal taxation of non-​Indians on non-​Indian land within the reservation raises a more complex set of issues. In 1981, the Supreme Court held in Montana v. United States153 that Indian tribes may not regulate hunting and fishing by non-​Indians on non-​Indian land within the reservation except in two limited circumstances: when the tribe can prove that (1) the non-​Indian owner has entered into a “consensual relationship” with the tribe or a tribal member, such as a business contract or lease, or (2) the conduct of the non-​ Indian “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”154 In 2001, the Supreme Court applied the Montana rule in a tax case, Atkinson Trading Co. v. Shirley.155 In Atkinson, the Court held 9–​0 that an

Taxation  265 Indian tribe could not require a non-​Indian hotel owner, whose hotel was located on non-​Indian land within the reservation, to collect a tribal occupancy tax on guests staying at the hotel. The Court held that Indian tribes, due to their “incorporation” into the United States and their resulting “dependent” status, no longer have the full powers of a sovereign government.156 In particular, tribal authority over non-​Indians on non-​Indian land is “sharply circumscribed.”157 The Court even retreated from the broad language it used in its 1982 decision in Merrion, saying that Merrion applies only “to transactions occurring on trust lands.”158 In contrast, the Court said, “Indian tribes lack civil authority over nonmembers on non-​Indian fee land” unless one of the two Montana exceptions is present.159 Neither exception was present in Atkinson, the Court held, because the hotel guests did not have a contractual relationship with the tribe and the presence of the guests at the hotel did not threaten a substantial tribal interest. At most, the Court said, the tribe could charge the owner of the hotel “an appropriate fee” for any municipal services the tribe was actually providing (such as fire and police protection), but the amount of the assessment had to be tailored to the exact services rendered.160 Proving a Montana exception in a tax case is difficult,161 but not impossible. For instance, non-​Indians who enter into a contract or other business relationship with a tribe may be taxed on their reservation activities under the first Montana exception (“consensual relationship”).162 And non-​Indians engaging in dangerous or harmful activities on their fee land within the reservation are subject to tribal regulation under the second Montana exception (“substantial tribal interest”).163 Moreover, a tribe that files suit alleging that a non-​Indian company is engaging in hazardous conduct on the reservation must be allowed the opportunity to prove its case by obtaining information from the company about the activities at issue.164

Does tribal taxation of non-​Indians constitute taxation without representation?

During the American Revolutionary War, American colonists criticized the taxes being imposed on them by England on the grounds that, because the colonists could not elect representatives to the British Parliament, this constituted “taxation without representation.” Non-​Indians in the United States being taxed by Indian tribes often make the same claim. It is a common misconception, however, that a tax is illegal unless the taxpayer can vote in that jurisdiction. The federal and state governments tax

266  The Rights of Indians and Tribes people, including aliens, who cannot vote in their elections. Residents of one state who purchase goods in another state pay that state’s sales taxes yet cannot vote in the elections of that state. The fact that non-​Indians cannot become members of a tribe or vote in tribal elections does not deprive the tribe of the right to tax them.165 Theoretically, Indian tribes can tax the income of non-​Indians who live on the reservation and tax the value of the land and the personal property they own. But tribes are hesitant to impose such taxes due to barriers created by Supreme Court cases, including Montana and Atkinson. As a result, most tribes “do not have functioning economies” because they are not raising revenue the way most other governments do: through taxation.166 Even taxation of tribal members would not raise substantial revenue on most reservations because their income is low and their trust land cannot be taxed. Although some tribes have profitable casinos, most tribes are dependent on federal funds to operate their government. Congress could reduce the need for federal expenditures to tribes and, at the same time, promote tribal sovereignty and self-​sufficiency, by passing legislation that provides tax and other incentives to businesses that operate on Indian reservations, and provides loans and technical assistance to Indian tribes and their members to make it easier for them to engage in commercial ventures on the reservation.167

Notes 1. 351 U.S. 1 (1956). 2. Squire v. Capoeman, 351 U.S. 1, 5–​6 (1956). See also United States v. King Mountain Tobacco Co., 899 F.3d 954 (9th Cir. 2018), cert. denied, 139 S. Ct. 2691 (2019). 3. See Elk v. Wilkins, 112 U.S. 95 (1884); Carpenter v. Shaw, 280 U.S. 363 (1930); Scalia v. Red Lake Nation Fisheries, 982 F.3d 533 (8th Cir. 2020); Snyder v. Navajo Nation, 382 F.3d 892, 895–​96 (9th Cir. 2004). 4. Squire, 351 U.S. at 5–​6; Chickasaw Nation v. United States, 534 U.S. 84, 95 (2001). See also Perkins v. Comm’r of Internal Revenue, 970 F.3d 148 (2d Cir. 2019), cert. denied, 142 S. Ct. 310 (2021); Barrett v. United States, 561 F.3d 1140 (10th Cir. 2009). 5. 26 U.S.C. § 61. 6. Barrett, 561 F.3d 1140; Doxtator v. C.I.R., 89 T.C.M. (CCH) 1270 (2005); Lazore v. Commissioner, 11 F.3d 1180 (3d Cir. 1993); Jourdain v. Commissioner, 617 F.2d 507 (8th Cir. 1980). 7. Anderson v. United States, 845 F.2d 206 (9th Cir.), cert. denied, 488 U.S. 966 (1988). 8. Choteau v. Burnet, 283 U.S. 691 (1931). 9. Fry v. United States, 557 F.2d 646, 648 (9th Cir. 1977), cert. denied, 434 U.S. 1011 (1978).

Taxation  267 10. Rev. Rul. 59-​354, 1959-​2 CB 24. 11. Ramsey v. United States, 302 F.3d 1074 (9th Cir. 2002), cert. denied, 540 U.S. 812 (2003); Cook v. United States, 86 F.3d 1095 (Fed. Cir.), cert. denied, 519 U.S. 932 (1996). 12. 25 U.S.C. §§ 2701 et seq. 13. 25 U.S.C. § 2710(b)(3)(D). See Chickasaw Nation v. United States, 534 U.S. 84, 95 (2001); Little Six, Inc. v. United States, 280 F.3d 1371 (Fed. Cir. 2002). 14. 25 U.S.C. § 2710(b)(3)(D); 26 U.S.C. §§ 3402(r)(1), 6041(a). 15. See Clay v. Commissioner, 990 F.3d 1296 (11th Cir.), cert denied, 142 S. Ct. 342 (2021). 16. U.S. Const. art. I, § 2, cl. 3. 17. 43 Stat. 984, codified at 8 U.S.C. § 1401(a)(2). 18. Fond du Lac Band of Lake Superior Chippewa v. Frans, 649 F.3d 849, 851 (8th Cir. 2011); Lazore v. Commissioner, 11 F.3d 1180, 1187 (3d Cir. 1993); United States v. Willie, 941 F.2d 1384, 1400 (10th Cir. 1991), cert. denied, 502 U.S. 1106 (1992). 19. 25 U.S.C. § 1407. See IRS Notice 2015-​67. However, if the tribe invests those funds in a business and later distributes profits from the business to tribal members, that income is taxable. See Doxtator v. C.I.R., 89 T.C.M. (CCH) 1270 (2005). 20. 26 U.S.C. § 7873. See Hall v. Commissioner, T.C. Memo. 1998-​336 (1998). 21. 26 U.S.C. § 139E, Pub. L. No. 113-​168, 128 Stat. 1883 (2014). For a discussion of this Act and other issues regarding federal taxation of Indian tribes and their members, see Stacy L. Leeds & Lonnie R. Beard, A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development, 56 Tul. L. Rev. 417, Section V (2021). 22. Rev. Rul. 69-​164. See Asenap v. United States, 283 F. Supp. 566 (W.D. Okla. 1968); Landman v. United States, 71 F. Supp. 640 (Ct. Cl.), cert. denied, 332 U.S. 815 (1947). 23. 25 U.S.C. §§ 331 et seq. 24. 25 U.S.C. § 349. 25. Squire v. Capoeman, 351 U.S. 1, 10 (1956). 26. Stevens v. Commissioner, 452 F.2d 741 (9th Cir. 1971). 27. Squire, 351 U.S. 1 (timber); Kirschling v. United States, 746 F.2d 512 (9th Cir. 1984) (same); United States v. Daney, 370 F.2d 791 (10th Cir. 1966) (bonuses from oil and gas leases); Big Eagle v. United States, 300 F.2d 765 (Ct. Cl. 1962) (mineral royalties). 28. United States v. Hallam, 304 F.2d 620 (10th Cir. 1962). 29. Stevens, 452 F.2d 741. See also Kirkwood v. Arenas, 243 F.2d 863 (9th Cir. 1957); Kirschling, 746 F.2d 512. 30. See Rev. Rul. 67-​284. 31. United States v. Anderson, 625 F.2d 910 (9th Cir. 1980); Holt v. Commissioner, 364 F.2d 38 (8th Cir. 1966), cert. denied, 386 U.S. 931 (1967). 32. See Holt, 364 F.2d 38. 33. Superintendent of Five Civilized Tribes v. Commissioner, 295 U.S. 418 (1935). 34. Dillon v. United States, 792 F.2d 849 (9th Cir. 1986), cert. denied, 480 U.S. 930 (1987). 35. Critzer v. United States, 597 F.2d 708 (Ct. Cl. 1979) (en banc), cert. denied, 444 U.S. 92 (1979); Hale v. United States, 579 F. Supp. 646 (E.D. Wash. 1984); Saunooke v. United States, 9 Cl. Ct. 537 (1986). See also Beck v. Commissioner, T.C. Memo. 1994-​122

268  The Rights of Indians and Tribes (1994), aff ’d, 64 F.3d 655 (4th Cir. 1995) (unpublished) (income derived from the rental of apartments on trust land is taxable). 36. In addition to the cases cited in notes 34 and 35 infra, see Arviso v. C.I.R., T.C. Memo 1992-​685 (1992); Cabazon Indian Casino v. I.R.S., 57 B.R. 398, 402 (9th Cir. Bankr. App. 1986). 37. Rev. Rul. 67-​284. 38. Rev. Rul. 81-​295. 39. Confederated Tribes v. Kurtz, 691 F.2d 878 (9th Cir. 1982), cert. denied, 460 U.S. 1040 (1983). 40. 26 U.S.C. § 7871. 41. See, e.g., 26 U.S.C. § 7871(b). 42. Rev. Rul. 94-​16, 1994-​1 C.B. 19. 43. See Mark J. Cowan, Leaving Money on the Table(s): An Examination of Federal Income Tax Policy Towards Indian Tribes, 6 Fla. Tax Rev. 345, 351 (2004). There is one narrow exception to this rule: certain income earned by tribal colleges is subject to federal taxation. See 26 U.S.C. § 511(a)(2)(B). 44. Rev. Rul. 94-​16, 1994-​1 C.B. 19. See Cowan, supra note 43, at 359. 45. Rev. Rul. 94-​16, 1994-​1 C.B. 19. 46. Choate v. Trapp, 224 U.S. 665 (1912). 47. Board of County Commissioners v. Seber, 318 U.S. 705 (1943). 48. McClanahan v. Arizona Tax Commission, 411 U.S. 164 (1973); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 163 (1980); Montana v. Blackfeet Tribe, 471 U.S. 759 (1985); California State Board of Equalization v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985); Crow Tribe of Indians v. Montana, 819 F.2d 895 (9th Cir. 1987), aff ’d, 484 U.S. 997 (1988); County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 258 (1992); Oklahoma Tax Commission v. Sac & Fox Nation, 508 U.S. 114 (1993); Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995); Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998); Washington State Department of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019). 49. Blackfeet Tribe, 471 U.S. at 764–​65. See also Yakima, 502 U.S. at 258. 50. Yakima, 502 U.S. at 269; Bryan, 426 U.S. at 392; Blackfeet Tribe, 471 U.S. at 764. See also Pourier v. South Dakota Department of Revenue, 658 N.W.2d 395, 399 (S.D. 2003), vacated in part on other grounds, 674 N.W.2d 315 (2004). 51. Chickasaw Nation, 515 U.S. at 458. See also McClanahan, 411 U.S. at 171; California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 n.17 (1987); Pourier, 658 N.W.2d at 400. 52. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Evers, 46 F.4th 552, 558 (7th Cir. 2022) (emphasis in original, citations omitted). 53. McClanahan, 411 U.S. 164. See also Eastern Band of Cherokee Indians v. Lynch, 632 F.2d 373 (4th Cir. 1980). 54. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976). 55. Oklahoma Tax Commission v. Sac & Fox Nation, 508 U.S. 114, 127–​28 (1993); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 163

Taxation  269 (1980); United States ex rel. Cheyenne River Sioux Tribe v. State of South Dakota, 105 F.3d 1552 (8th Cir.), cert. denied, 522 U.S. 981 (1997). 56. Moe, 425 U.S. 463. See also Pourier, 658 N.W.2d at 399. 57. Washington State Department of Revenue v. Wofford, 622 P.2d 1278 (Wash. Ct. App.), cert. denied, 454 U.S. 965 (1981). 58. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 163 (1980). 59. Wofford, 622 P.2d 1278. But see Colville, 447 U.S. 134 (holding that a state may be able to impose a motor vehicle tax proportionate to the amount of off-​reservation use). 60. In re Kansas Indians, 72 U.S. 737 (1867); McCurdy v. United States, 264 U.S. 484 (1924); Oneida Tribe of Indians of Wis. v. Vill. of Hobart, Wis., 732 F.3d 837, 841 (7th Cir. 2013), cert. denied, 572 U.S. 1135 (2014); Brooks v. Nez Perce County, Idaho, 670 F.2d 835 (9th Cir. 1982). 61. Seminole Tribe of Florida v. Stranburg, 799 F.3d 1324, 1328–​45 (11th Cir. 2015), cert. denied, 136 S. Ct. 2480 (2016). 62. United States v. Rickert, 188 U.S. 432 (1903); Confederated Tribes of the Chehalis Rsrv. v. Thurston Cnty. Bd. of Equalization, 724 F.3d 1153 (9th Cir. 2013). See also 25 C.F.R. § 162.017. 63. Early cases indicated that state inheritance taxation of reservation Indians is permitted, but more recent cases hold to the contrary. See Estate v. Johnson, 125 Cal. App.3d 1044, 1052–​53 (Ct. App.1st 1982); In re Estate of Big Spring, 360 Mont. 370, 255 P.3d 121 (Mont. 2011); Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law § 8.03[1]‌[e], 714–​15 (2012 ed.). 64. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 480–​81 (1976). 65. Id. 66. Marty Indian School Board, Inc. v. South Dakota, 824 F.2d 684 (8th Cir. 1987). 67. See Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985); Bryan v. Itasca County, Minnesota, 426 U.S. 373, 392 (1976); Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514, 525 (6th Cir.) cert. denied, 549 U.S. 1053 (2006). 68. 4 U.S.C. §§ 105–​10. 69. Warren Trading Post v. Arizona Tax Commission, 380 U.S. 685, 691 n.18 (1965). 70. 4 U.S.C. § 104. 71. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 n.16 (1980); Pourier v. South Dakota Department of Revenue, 658 N.W.2d 395, 399 (S.D. 2003), vacated in part on other grounds, 674 N.W.2d 315 (2004); Goodman Oil Co. v. Idaho State Tax Commission, 28 P.3d 996 (Idaho 2001), cert. denied, 534 U.S. 1129 (2002). 72. 28 U.S.C. § 396a. 73. Blackfeet Tribe, 471 U.S. 759. 74. 139 S. Ct. 1000 (2019). 75. Id., 139 S. Ct. at 1013. 76. See County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 258 (1992) (individually owned land); Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998) (tribally owned land). See also Thompson v. County of Franklin, 314 F.3d 79 (2d Cir. 2002). But see Perkins v. Comm’r of Internal Revenue, 970 F.3d 148, 164–​65 (2d Cir. 2019), cert. denied, 142 S. Ct. 310 (2021)

270  The Rights of Indians and Tribes (noting that the Seneca Nation has an immunity under its treaty from state taxation of its fee lands); Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514, 525–​27 (6th Cir.) cert. denied, 549 U.S. 1053 (2006) (similar). 77. See Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976). This subject is further discussed in Chapter VIII, notes 119–​22 and accompanying text. 78. This subject is discussed in Chapter XII, Section B. 79. Prince v. Board of Education, 543 P.2d 1176 (N.M. 1975); Goodluck v. Apache County, 417 F. Supp. 13 (D. Ariz. 1975), aff ’d sub nom. Apache County v. United States, 429 U.S. 876 (1976). 80. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 153–​59 (1980). See also Duro v. Reina, 495 U.S. 676, 687 (1990); Bercier v. Kiga, 103 P.3d 232 (Wash. Ct. App. 2004), cert denied, 124 P.3d 304 (Wash. 2005). 81. See cases cited supra note 55. See also Leeds & Beard, supra note 21, at sec. VI. 82. Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 458 (1995). 83. Indian Country, U.S.A., Inc. v. Oklahoma, 829 F.2d 967 (10th Cir. 1987), cert. denied, 487 U.S. 1218 (1988). See also Rice v. Rehner, 463 U.S. 713 (1983) (state can tax tribal liquor sales because Congress has given its express consent). 84. Montana v. Blackfeet Tribe, 471 U.S. 759 (1985). 85. Crow Tribe v. Montana, 819 F.2d 895 (9th Cir. 1987), aff ’d, 484 U.S. 997 (1988). 86. Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 459–​62 (1995). 87. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976). See also Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006) (en banc); White v. Schneiderman, 31 N.Y.3d 543 (Ct. App. 2018) (holding that New York can require a tribe to prepay the tax). 88. Colville, 447 U.S. 134. See also California State Board of Equalization v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985); Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991). 89. Moe, 425 U.S. at 483. 90. Colville Indian Reservation, 447 U.S. at 151 n.27. See also Confederated Tribes and Bands of the Yakama Indian Nation v. Gregoire, 658 F.3d 1078 (9th Cir. 2011). 91. Sarah Krakoff, Undoing Indian Law One Case at a Time: Judicial Minimalism and Tribal Sovereignty, 50 Am. U. L. Rev. 1177, 1208 (2001). 92. See Gila River Indian Community v. Waddell, 967 F.2d 1404, 1407 (9th Cir. 1992) (invalidating a state tax because the tribe had added something of value to the product being taxed); Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir. 2000) (noting that a tribe that purchases food products off the reservation and then prepares and cooks the food in its casino restaurant may be exempt from state taxation on food sales to non-​Indians). 93. See Big Sandy Rancheria Enterprises v. Bonta, 1 F.4th 710 (9th Cir. 2021); New York v. Mountain Tobacco Co., 942 F.3d 536 (2d Cir. 2019); People ex rel. Becerra v. Native Wholesale Supply, 37 Cal. App. 5th 73 (Cal. App. 3d Dist. 2019), cert. denied, 141 S. Ct. 233 (2020).

Taxation  271 94. 544 U.S. 197 (2005). 95. The process for placing fee land into trust status, and the controversy surrounding this practice, is discussed in Chapter V, notes 136–​50 and accompanying text. 96. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Evers, 46 F.4th 552 (7th Cir. 2022). 97. 28 U.S.C. § 1341. 98. Osceola v. Florida Department of Revenue, 893 F.2d 1231 (11th Cir. 1990), cert. denied, 498 U.S. 1025 (1991). 99. 28 U.S.C. § 1362. See Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 474–​75 (1976); Big Sandy Rancheria Enterprises v. Bonta, 1 F.4th 710, 721–​24 (9th Cir. 2021). 100. 498 U.S. 505 (1991). 101. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991). See also Flandreau Santee Sioux Tribe v. Noem, 938 F.3d 928, 932, 937–​38 (8th Cir. 2019) (approving a state’s refusal to issue a liquor license to a tribe until the tribe paid its state taxes). 102. See Dept. of Taxation and Finance of New York v. Wilhelm Attea & Bros., Inc., 512 U.S. 61 (1994). See also Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir. 2012). 103. See Grey Poplars, Inc. v. 1,371,100 Assorted Brands of Cigarettes, 282 F.3d 1175 (9th Cir. 2002); United States v. Baker, 63 F.3d 1478 (9th Cir. 1995), cert. denied, 516 U.S. 1097 (1996); United States v. 1,920,000 Cigarettes, 2003 WL 21730528 (W.D.N.Y. 2003). 104. Cayuga Indian Nation of N.Y. v. Seneca County, N.Y., 978 F.3d 829, 842 (2d Cir. 2020), cert. denied, 141 S. Ct. 2722 (2021). 105. Significant hostilities have occurred in the state of New York over efforts by state officials to enforce tax laws in Indian country. See, e.g., In Tax Fight, Tribes Make, and Sell, Cigarettes, N.Y. Times (Feb. 22, 2012), available at https://​www.nyti​mes.com/​ 2012/​02/​23/​nyreg​ion/​ind​ian-​tri​bes-​make-​own-​cig​aret​tes-​to-​avoid-​ny-​tax.html. See also Oneida Indian Nation of New York v. Madison County and Oneida County, New York, 605 F.3d 149, 163 (2d Cir. 2010) (Cabranes and Hall, JJ., concurring) (lamenting the fact that Indian tribes, due to sovereign immunity from suit, can refuse to pay state taxes “and suffer no consequences”). 106. The National Congress of American Indians (NCAI) provides access to many of these agreements on its website. See http://​arch​ive.ncai.org/​init​iati​ves/​partn​ersh​ips-​ init​iati​ves/​ncai-​tax-​ini​tiat​ive/​examp​les-​of-​tri​bal-​tax-​codes-​tax-​agr​eeme​nts-​other-​ resour​ces. See also Tanya Gibbs & Jennifer Saeckl, State Taxation of Tribal Businesses, Mich. L.J. (Aug. 2019), available at http://​www.mich​bar.org/​file/​bar​jour​nal/​arti​cle/​ docume​nts/​pdf4​arti​cle3​728.pdf. 107. See Compact Between the Three Affiliated Tribes and the State of North Dakota, Feb. 28, 2019, available at https://​www.tax.nd.gov/​sites/​www/​files/​docume​nts/​gui​deli​ nes/​oil-​gas/​tatoil​andg​asag​reem​ent.pdf. 108. See Squaxin Island Tribe v. Stephens, 400 F. Supp. 2d 1250, 1253 n.2 (W.D. Wash. 2005).

272  The Rights of Indians and Tribes 109. Wash. Code. Ann. §§ 43.06.450–​.460. See Nisqually Indian Tribe v. Gregoire, 649 F. Supp. 2d 1203, 1205 (W.D. Wash. 2009). A creative tax agreement was signed between the state and the Tulalip Tribe. See Deal Ends Legal Fight and Allows Tulalips a Cut of Sales Tax, Herald Business Journal (Jan. 29, 2020), available at https://​ www.herald​net.com/​news/​deal-​ends-​legal-​f ight-​and-​all​ows-​tulal​ips-​a-​cut-​of-​ sales-​tax/​. 110. See NMSA §§ 7-​13-​4, 7-​13-​4.4, and 7-​12-​4(A)(2). 111. For a discussion of the pros and cons of tax compacts, see Pippa Browde, Sacrificing Sovereignty: How Tribal-​State Tax Compacts Impact Economic Development in Indian Country, 74 Hastings L.J. 1 (2022). 112. 422 U.S. 145 (1973). 113. See also Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 465 (1995); Fond du Lac Band of Lake Superior Chippewa v. Frans, 649 F.3d 849 (8th Cir. 2011) (holding that income earned off the reservation by a reservation Indian is subject to state income taxation). 114. Oklahoma Tax Commission, 515 U.S. 450. See also Dark Eyes v. Commissioner of Revenue Services, 887 A.2d 848 (Conn. 2006); Jefferson v. Commissioner of Revenue, 631 N.W.2d 391 (Minn. 2001), cert. denied, 535 U.S. 930 (2002). For a critical analysis of Chickasaw Nation on this issue, see Krakoff, supra note 91, at 1242–​43. 115. Tunica-​Biloxi Tribe v. Louisiana, 964 F.2d 1536 (5th Cir. 1992). 116. Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202 (10th Cir. 2006); Salt River Pima-​Maricopa Indian Community v. Yavapai County, 50 F.3d 739 (9th Cir. 1995). 117. See 25 U.S.C. § 5124. 118. See Pourier v. South Dakota Department of Revenue, 658 N.W.2d 395, 404 (S.D. 2003), vacated in part on other grounds, 674 N.W.2d 315 (2004); Flat Center Farms, Inc. v. Montana Department of Revenue, 4 P.3d 578 (Mont. 2002); Cohen v. Little Six, Inc., 543 N.W.2d 376, 379 (Minn. App. 1996); Dixon v. Picopa Construction Co., 772 P.2d 1104, 1109–​10 (Ariz. 1989). 119. State ex rel. Wasden v. Native Wholesale Supply Corp., 312 P.3d 1257, 1261–​62 (Idaho 2013); Baraga Products, Inc. v. Commissioner of Revenue, 971 F. Supp. 294 (W.D. Mich. 1997), aff ’d without published opinion, 156 F.3d 1228 (6th Cir. 1998). 120. Rev. Rul. 94-​16, 1994-​1 C.B. 19 (1994). 121. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980). 122. See Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 101 (2005) (“[U]‌under our tax immunity cases, the ‘who’ and the ‘where’ of the challenged tax have significant consequences.”). 123. 448 U.S. 136 (1980). For a critical review of the Bracker test, see William McClure & Thomas E. McClure, Rebalancing Bracker Forty Years Later, 9:2 Am. Indian L.J., Article 6 (2021), available at https://​dig​ital​comm​ons.law.seatt​leu.edu/​cgi/​view​cont​ ent.cgi?arti​cle=​1234&cont​ext=​ailj. 124. See, e.g., Thomas v. Gay, 169 U.S. 264 (1898) (personal property tax); Agua Caliente Band of Cahuilla Indians v. Riverside County, 2017 WL 4533698 (C.D. Cal. 2017), aff ’d, 749 Fed. Appx. 650 (9th Cir. 2019) (tax on the value of a lease of tribal land); Utah & No. Ry. v. Fisher, 116 U.S. 28 (1885) (real estate tax); Loveness v. Arizona Dept.

Taxation  273 of Revenue, 963 P.2d 303 (Ariz. App. 1998), cert. denied, 525 U.S. 1178 (1999) (income tax). See generally Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 459 (1995). 125. Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832 (1982). 126. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 n.16 (1980). 127. Warren Trading Post v. Arizona Tax Commission, 380 U.S. 685, 691 n.18 (1965). 128. New Mexico Taxation & Revenue Department v. Laguna Industries, Inc., 855 P.2d 127 (N.M. 1993). See also Flandreau Santee Sioux Tribe v. Noem, 938 F.3d 928, 935–​37 (8th Cir. 2019) (holding that the Indian Gaming Regulatory Act preempts the state from certain types of taxes). 129. Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th Cir. 1989), cert. denied, 495 U.S. 1055 (1990). 130. 490 U.S. 163 (1989). See also Northern Border Pipeline Co. v. Montana, 772 P.2d 829 (Mont. 1989). 131. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 189 (1989). See also Ute Mountain Ute Tribe v. Rodriguez, 660 F.3d 1177 (10th Cir. 2011), cert. denied, 565 U.S. 1199 (2012). 132. Maricopa & Phoenix R.R. Co. v. Arizona Territory, 156 U.S. 347 (1895). 133. Montana Catholic Missions v. Missoula County, 200 U.S. 118 (1906). 134. California State Board of Equalization v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985), and Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976). See also State ex rel. Arizona Department of Revenue v. Dillon, 826 P.2d 1186 (Ariz. App. 1991). 135. Fort Mojave Tribe v. County of San Bernardino, 543 F.2d 1253 (9th Cir. 1976), cert. denied, 430 U.S. 983 (1977); Pimalco, Inc. v. Maricopa County, 937 P.2d 1198 (Ariz. App. 1997). 136. Yavapai-​Prescott Indian Tribe v. Scott, 117 F.3d 1107 (9th Cir. 1997), cert. denied, 522 U.S. 1076 (1998). 137. Gila River Indian Community v. Waddell, 91 F.3d 1232 (9th Cir. 1996). 138. Salt River Pima-​Maricopa Indian Community v. Arizona, 50 F.3d 734 (9th Cir.), cert. denied, 516 U.S. 868 (1995); Tulalip Tribes v. Washington, 349 F. Supp. 3d 1046 (W.D. Wash. 2018). 139. Barona Band of Mission Indians v. Yee, 528 F.3d 1184 (9th Cir. 2008). 140. Pickerel Lake Outlet Ass’n v. Day County, SD, 953 N.W.2d 82 (S.D. 2020). 141. Flandreau Sante Sioux Tribe v. Houdyshell, 50 F.4th 662 (8th Cir. 2022). 142. Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457 (2d Cir. 2013). The Oklahoma Supreme Court, however, reached the opposite conclusion. See Video Gaming Technologies, Inc. v. Rogers County Board of Tax Roll Corrections, 475 P.3d 824 (Okla. 2019), cert. denied, 141 S. Ct. 24 (2020). 143. See Browde, supra note 111, at 20. 144. See Steven J. Gunn, testimony before the Committee on Indian Affairs of the U.S. Senate, Oversight Hearing on State and Federal Tax Policy: Building New Markets in Indian Country (Dec. 8, 2011), available at https://​www.ind​ian.sen​ate.gov/​sites/​ defa​ult/​files/​upl​oad/​files/​Ste​ven-​Gunn-​testim​ony-​120​811.pdf. 145. 455 U.S. 130 (1982).

274  The Rights of Indians and Tribes 146. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). See also Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554 U.S. 316, 335 (2008); Atkinson Trading Co. v. Shirley, 532 U.S. 645, 652 (2001) (discussing the origins of the tribal power to tax). 147. See Plains Commerce Bank, 544 U.S. at 334–​35. 148. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). 149. Morris v. Hitchcock, 194 U.S. 384 (1904). 150. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152–​ 53. See Sarah Krakoff, Tribal Civil Judicial Jurisdiction over Nonmembers: A Practical Guide for Judges, 81 U. Colo. L. Rev. 1187, 1204 (2010). 151. Merrion, 455 U.S. 130. See also Mustang Production Co. v. Harrison, 94 F.3d 1382 (10th Cir. 1996), cert. denied, 520 U.S. 1139 (1997) (holding that a tribe may tax the value of oil and gas produced on individual Indian trust allotments). 152. 471 U.S. 195 (1985). 153. 148. 450 U.S. 544 (1981). 154. Montana v. United States, 450 U.S. 544, 565–​66 (1981). The Court has applied the Montana rule in a variety of situations. See Chapter VIII, notes 17–​88 and accompanying text. 155. 532 U.S. 645 (2001). 156. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650 (2001). 157. Id. 158. Id. at 653 (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982)). 159. Atkinson, 532 U.S. at 654. For a further explanation of the two Montana exceptions, see Krakoff, supra note 150, at 1205–​10. 160. Id. at 655. See also Big Horn County Electric Cooperative v. Adams, 219 F.3d 944 (9th Cir. 2000). 161. See Burlington Northern Santa Fe Railroad Co. v. Assiniboine & Sioux Tribes, 323 F.3d 767, 773 (9th Cir. 2003); Yellowstone County v. Pease, 96 F.3d 1169, 1176–​77 (9th Cir. 1996). 162. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 163 (1980); FMC v. Shoshone-​Bannock Tribes, 942 F.3d 916, 933–​34 (9th Cir. 2019), cert. denied, 141 S. Ct. 1046 (2021); Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983), cert. denied, 467 U.S. 1214 (1984); Willman v. Washington Utilities & Transportation Commission, 117 P.3d 343 (Wash. 2005) (noting that tribe may assess tax on utility company providing utilities to, and using rights-​of-​way on, Indian land). 163. FMC, 942 F.3d at 934–​36. 164. Burlington, 323 F.3d at 774–​75. 165. See United States v. Mazurie, 419 U.S. 544, 558 (1975); Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1233 (9th Cir. 2001) (en banc), cert. denied, 535 U.S. 927 (2002). 166. Robert J. Miller, Tribal Sovereignty and Economic Efficiency Versus the Courts, 97 Wash. L. Rev. 775, 777 (2022). See also Browde, supra note 111, at 6. 167. See Gunn, supra note 144, at 7; GAO, Indian Programs: Interior Should Address Factors Hindering Tribal Administration of Federal Programs, GAO-​19-​87 (Washington, D.C., Jan. 29, 2019), at 6, available at https://​www.gao.gov/​produ​cts/​ GAO-​19-​87; Matthew L.M. Fletcher, In Pursuit of Tribal Economic Development as a Substitute for Reservation Tax Revenue, 80 N.D. L. Rev. 759 (2004).

X Indian Hunting and Fishing Rights Access to fish and game, the Supreme Court stated in 1905, was as important to the Native peoples of North America as “the atmosphere they breathed.”1 For many Native Americans, it still is. A member of the Gwich’in Nation of northeastern Alaska recently explained why the Gwich’in oppose oil drilling that would threaten caribou habitats: “It is our belief that the future of the Gwich’in and the future of the Caribou are the same.”2 For tribes in Oregon and Washington, the ability to harvest salmon continues to be of paramount importance to their subsistence, culture, religion, and society. “We are all Salmon People,” proclaims the Columbia River Inter-​Tribal Fish Commission.3 In 2023, a federal appellate court upheld the right of the Metlakatla Indian Community in Alaska to exercise fishing rights reserved to them by Congress in an 1891 statute, finding that fishing “had always been, and continues to be, the heartbeat of the Community.”4 A federal court in Wisconsin recently interpreted a treaty to guarantee the tribe the right to hunt deer at night on their off-​reservation treaty land, even though night hunting is banned under state law, because night hunting was and still is critical to the survival of many tribal members.5 For centuries, tribes in the West were nomadic, pursuing the seasonal migrations of bison, elk, and anadromous fish. (Anadromous fish, including several species of salmon, are born in rivers and streams, migrate to the ocean where they spend their adult life, and return to their birthplace to spawn.) In 1979, the Supreme Court discussed the importance of anadromous fish to the tribes in the Northwest: One hundred and twenty-​five years ago [when the Northwest Indian treaties were signed] . . . about three-​fourths of the approximately 10,000 inhabitants of the area were Indians. Although in some respects the cultures of the different tribes varied, . . . all of them shared a vital and unifying dependence on anadromous fish. Religious rites were intended to insure the continual return of the salmon and the trout; the seasonal and geographic variations in the runs The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0010

276  The Rights of Indians and Tribes of the different species determined the movements of the largely nomadic tribes. Fish constituted a major part of the Indian diet, was used for commercial purposes, and indeed was traded in substantial volume. The Indians developed food-​preservation techniques that enabled them to store fish throughout the year and to transport it over great distances. They used a wide variety of methods to catch fish including the precursors of all modern netting techniques. Their usual and accustomed fishing places were numerous and were scattered throughout the area, and included marine as well as fresh-​water areas.6

All tribes have a right to hunt and fish on their reservations, and many have a federally protected right to harvest wildlife outside their reservations, as well. Today, however, millions of non-​Indians vie for these same resources, both for sport and commercial purposes, far outstripping the supply. Few other areas of Indian law have created such bitter—​and sometimes violent—​rivalry as hunting and fishing. Non-​Indians in Wisconsin have fired shotguns at Indian treaty fishers, thrown rocks at their children, and chanted, “Spear an Indian, save a walleye. Drown ‘em, drown ‘em,” as Indians entered their boats.7 Native fishers in Alaska8 and Michigan9 have been fired on, too. In Washington, the state legislature passed laws that prohibited state officials from enforcing Indian treaty fishing rights, prompting federal courts to order those officials to obey the treaties.10 Most of the wildlife upon which tribes depended for food has become scarce. A 2018 study by the state of Washington found that some salmon species are on “the brink of extinction.”11 Indeed, in April 2023, federal regulators banned all commercial and most recreational fishing for king (Chinook) salmon from northern Oregon to the Mexican border due to near-​record low fish returns.12 A main reason for the decline, in addition to increased demand for the fish, is that the non-​Indians who moved into the area destroyed fish habitats, often needlessly. The government, for example, allowed dams to be constructed on major rivers for hydroelectric energy without insisting that methods be installed, such as fish ladders, that would permit anadromous fish to reach their spawning grounds. Dams on the Columbia River are a primary reason why the salmon population, previously between seven and sixteen million annually, have declined by more than 90 percent.13 The Klamath River, which travels through northern California and Oregon, used to support yearly salmon runs of more than one million fish, but due to the impact of dams, drought, and disease now sees fewer than

Indian Hunting and Fishing Rights  277 thirty thousand.14 The government, moreover, persistently made decisions favorable to non-​Indian development over the needs of the local tribes to maintain the fisheries. Federal officials in 1964, for instance, began diverting most of the water from the Trinity River in California to the Sacramento River so that non-​Indians along the Sacramento could better irrigate their crops, a move that had “devastating effects,” a court recently concluded, on fish populations in the Trinity and its tributaries, from which many tribes obtained their food.15

Which tribes still have hunting and fishing rights?

Every tribe has the inherent right to hunt and fish within its reservation. This is true even if the treaty,16 statute,17 or executive order18 that created the reservation says nothing about those rights, and even if the reservation does not include any of the tribe’s original homelands.19 “The right to hunt and fish on reservation land is a long-​established tribal right.”20 As explained in Chapter IV, a treaty must be viewed not as a grant of rights to the Indians but as a taking of rights from them. Thus, any right that a tribe always had that is not extinguished (“abrogated”) by a treaty or statute is presumed to still exist.21 This principle—​called the reserved rights doctrine—​applies to hunting and fishing rights, which tribes are presumed to retain.22 Congress has the power, the Supreme Court has held, to abrogate Indian hunting and fishing rights, but these rights are so important to tribes that a court will not recognize that an abrogation has occurred unless Congress has expressed a clear intent.23 Abrogation of Indian rights may not be inferred, and any ambiguous language in a treaty or statute addressing these rights must be interpreted in favor of the Indians.24 These are among the “canons of treaty and statutory construction” discussed in Chapter IV. These canons have been extremely important to treaty tribes. In 2019, for instance, the Supreme Court in Herrera v. Wyoming25 reviewed an 1868 treaty with the Crow Tribe of Montana in which the tribe was guaranteed, in exchange for relinquishing nearly thirty million acres of land, the right to hunt “on the unoccupied lands of the United States as long as game can be found thereon.” In 2014, a Crow tribal member, Clayvin Herrera, was hunting an elk on the reservation when the elk left the reservation and entered the Bighorn National Forest in Wyoming, where Herrera killed it. Herrera was arrested by Wyoming officials for hunting without a license and hunting out of season. Herrera was convicted in a Wyoming state court, but the Supreme Court reversed the conviction. Applying the canons, the Court held that the

278  The Rights of Indians and Tribes creation of the National Forest did not necessarily make that land “occupied.” Given the 1868 treaty, the Court said, Wyoming could convict Mr. Herrera only if the state could show that the location where the elk was shot was an occupied settlement or if Wyoming’s ban on hunting elk at that location was absolutely essential to conservation.26 Similarly, the Supreme Court ruled in 1999 that a treaty that reserved to the Mille Lac Band of Chippewa Indians in Wisconsin a right to fish at certain locations outside the reservation “until required to remove by the President” should be interpreted to mean that the tribe may continue to fish at those locations until the President has a legitimate reason to remove them—​such as, for instance, if the Mille Lac misbehaved in some fashion—​because this is how the tribe would likely have interpreted the treaty at the time it was signed.27 The Supreme Court has also held that federal conservation laws prohibiting the taking of certain animals or plants will not be interpreted to abrogate an Indian treaty unless “clear evidence” exists that Congress actually considered the potential conflict between the law and the treaty “and chose to resolve that conflict by abrogating the treaty.”28 A federal appellate court, relying on the canons, recently held that a treaty guaranteeing a tribe the right “to fish” preserved the tribe’s established custom of harvesting whales and seals, as that is the way the tribe (and the government agents who drafted the treaty) likely interpreted those words.29

Do Indian tribes still possess their aboriginal hunting and fishing rights?

Indian tribes have a right to occupy and use their original (“aboriginal”) territory,30 which includes a right to harvest wildlife found on that territory.31 Such aboriginal rights are lost, however, when Congress removes the land from the tribe’s control and assigns it to a purpose inconsistent with the tribe’s ability to use it or when Congress expressly extinguishes the right.32 In order to prove aboriginal rights, a tribe must show that it had continuous and exclusive control over the area in question and that Congress has not extinguished the tribe’s aboriginal claim.33 Tribal members may have aboriginal interests in land if they can show continued use by them and their ancestors.34 Most land in the United States located outside of Indian reservations has been assigned to a use inconsistent with the assertion of tribal aboriginal rights, especially land that is now privately owned. Consequently, few off-​ reservation aboriginal rights remain, but some do, particularly on public lands.35

Indian Hunting and Fishing Rights  279

When a navigable waterway is included within the boundaries of an Indian reservation, who owns the land underneath it?

Valuable plants and animals live in the land underneath navigable waterways; perhaps the clearest examples are clams and oysters found in offshore tidelands. Although the general rule is that a tribe may hunt, fish, gather, and trap all wildlife within its territory even if the treaty, statute, or executive order that created the reservation is silent as to these rights, an exception exists for the beds of navigable water. The Supreme Court has held that there is “a strong presumption against conveyance” of this land to an Indian tribe,36 and that tribes may not take plants and animals found in submerged lands of navigable waterways unless Congress clearly conferred that right.37 As discussed later in this chapter, a few treaties do recognize that the tribe has a continuing right to take shellfish in navigable waterways.

Is a tribe entitled to compensation when Congress abrogates its hunting and fishing rights?

The U.S. Constitution authorizes the federal government to take private property for a public use—​for instance, the federal government can take private land to build a highway or a military base—​but when that occurs, the Fifth Amendment requires the government to pay the owner of that property adequate compensation.38 The Supreme Court has held that Indian hunting and fishing rights are a form of private property protected by the Fifth Amendment, and thus any taking of them by the federal government entitles the tribe to adequate compensation.39 These rights, however, must first have been formally recognized by the federal government in some treaty or statute. The government does not have to compensate a tribe for the loss of property not formally recognized, including a tribe’s aboriginal rights.40

Does it violate the U.S. Constitution to protect hunting and fishing rights for Indians that non-​Indians do not share?

As the original inhabitants of what is now the United States, Indians constitute a unique political group. They have always been the subject of different federal treatment, sometimes to their benefit and other times to their detriment. Non-​Indians have challenged some of the benefits Indians receive, alleging that these advantages constitute impermissible race discrimination. For reasons explained in Chapter V, Section A, courts have generally rejected these challenges on the grounds that Congress has broad authority

280  The Rights of Indians and Tribes to regulate Indian affairs and may treat Indians differently than non-​ Indians.41 (It deserves mention that tribes paid dearly for any benefits they now receive—​by exchanging land and peace for them—​and, moreover, most of the rights tribes have today are rights they have always had.)

Do hunting and fishing rights belong to the tribe or to the tribe’s members as individuals?

In most situations, it makes no difference whether the right to hunt and fish is classified as a tribal right or as an individual right. If a state law, for instance, interferes with a tribe’s treaty rights, both the tribe and its members may file suit to challenge it.42 Indian hunting and fishing rights ultimately belong to the tribe, however, and thus the tribe has the power to regulate the hunting and fishing activities of tribal members.43 Likewise, if Congress takes away these rights and must then pay compensation for the value of the loss, the money is paid to the tribe, which decides how it should be distributed.44

Are treaties between the United States and other countries limiting the taking of wildlife automatically applicable to Indian activities?

No. As explained earlier, Congress can abrogate Indian hunting and fishing rights, but it must do so explicitly. Therefore, a treaty that the United States signs with another country limiting the taking of wildlife does not automatically apply to Indian hunting and fishing rights. Indian tribes in the Northwest, for instance, whose fishing rights are protected by treaties with the United States, may continue to use certain nets while exercising those rights even though a subsequent treaty between the United States and Canada prohibits that gear, given that there is nothing in the second treaty or in any other act of Congress expressly abrogating the Indian treaties.45

May Indian tribes use hunting and fishing methods that did not exist when their treaties were signed?

Yes. Inherent in the right to hunt and fish is the right to use modern methods for harvesting wildlife.46 For instance, a tribe that fished from the shore when its treaty was signed may today use motorized boats for that purpose.47 Similarly, a tribe may take wildlife that was not readily available when the reservation was created. Thus, a tribe that once hunted bison (with a bow

Indian Hunting and Fishing Rights  281 and arrow) is today entitled to hunt deer (with a rifle) in exercising its treaty rights.48 Moreover, when a state creates a fish hatchery program to replace the natural fish depleted by the destruction of their habitats, the tribe has a right to catch these replacement fish as part of its treaty share.49

What efforts are being made to restore fish habitats?

During the 1900s, as the east and west coasts of the United States became heavily populated and industrialized, the demand for electricity soared. To satisfy that demand, the federal government authorized private utility companies to construct dams on some rivers and harness the power of water. These dams decimated the population of anadromous fish. Fish populations on the Elwha, Klamath, and Columbia Rivers in the Northwest and on the Penobscot River in the Northeast, for instance, diminished by nearly 90 percent after dams were constructed on those rivers.50 In recent years, Congress has passed laws that direct the federal agencies overseeing these dams to administer them in accordance with environmental needs, including preservation of fish, and to consult with impacted Indian tribes in the process.51 Fortunately, our national priority has begun to shift from developing more hydroelectricity “to an increasing focus on environmental protection,”52 although the private owners of many of these dams have been resistant to making alterations (such as constructing fish ladders) that would allow for fish migration.53 Significant improvements have occurred in recent years in fish habitat protection. For instance, a $300 million project on the Elwha River in the state of Washington removed two dams with the hope that salmon and other fish will eventually return by the hundreds of thousands.54 (Those dams had been built, in part, to provide electricity to nearby paper mills that have since closed.) Removal of two dams on the Penobscot River in Maine was completed in 2016, restoring nearly two thousand miles of habitat for eastern migratory fish, including Atlantic salmon, American shad, and short-​nosed sturgeon.55 A project is underway to remove four dams on the Klamath River in Oregon and California, which would restore four hundred miles of salmon habitat, allowing tens of thousands of salmon to return to the area to be harvested by Indians and non-​Indians alike.56 In 2023, a $60 million project commenced on the Yuba River in California to construct a byway around a dam that will allow fish, including salmon and steelhead trout, to return for the first time in nearly one hundred fifty years.57

282  The Rights of Indians and Tribes

A.  ON-​RESERVATION HUNTING AND FISHING Many Indian reservations are located in unpopulated areas of the United States where fish and game are plentiful. This wildlife provides food for tribal members and offers an opportunity for commercial and sport activity. Most tribes that have harvestable wildlife on their reservations have created licensing and conservation programs and carefully manage their resources. Some sell licenses to non-​Indians as a means of raising revenue. The Mescalero Apache Tribe in New Mexico, for instance, developed a fish hatchery program that supports an active fishing industry and manages an elk herd that supports licensed hunting; the resulting tourism greatly assists the tribe’s economy.58 There are three groups of people who may want to hunt or fish on an Indian reservation: tribal members, nonmembers who live on the reservation, and nonmembers who live off the reservation. There are three governments that could conceivably regulate the taking of wildlife on an Indian reservation: the tribe, the state, and the United States. The jurisdiction that each government has over these three groups is discussed below.

May the tribe regulate on-​reservation hunting and fishing?

In New Mexico v. Mescalero Apache Tribe (1973),59 the Supreme Court recognized that Indian tribes have the inherent right “to manage the use of their territory and resources,” including the right to regulate hunting and fishing by members60 and nonmembers61 on tribal land, and to prohibit all such activity if the tribe so decides. Congress may restrict these tribal powers, but it has done so only in narrow circumstances.62 Hunting and fishing is taken seriously on most reservations because it is directly related to the cultural and religious heritage of the tribe, and because many tribal members depend on wildlife for food. Most tribes strictly regulate the time, place, and manner of hunting and fishing on the reservation, and enforce these rules on tribal members through the tribal courts. Congress has made it a federal crime for anyone to hunt or fish on tribal land in a manner that violates tribal law.63 In essence, the federal government helps tribes to enforce their conservation laws by transforming tribal crimes into federal crimes punishable in the federal courts. In Montana v. United States (1981),64 the Supreme Court created a significant exception to the rule that Indian tribes may regulate all hunting and fishing within the reservation, holding that tribes have only limited powers to

Indian Hunting and Fishing Rights  283 regulate hunting and fishing by non-​Indians on non-​Indian land within the reservation. In that situation, a tribe may impose its laws only when (1) the non-​Indian landowner has entered into a consensual relationship with the tribe, such as a contract or lease, or (2) the activity of the non-​Indian significantly threatens the tribe’s political integrity, economic security, or health and welfare. (As explained in Chapter I, in 1887 Congress passed the General Allotment Act, which opened most Indian reservations to settlement by non-​ Indians, and millions of acres of reservation land is now non-​Indian owned.) Thus, if a non-​Indian landowner’s fishing activity imperils the availability of subsistence food for tribal members, the tribe could regulate that activity,65 but if neither “Montana exception” is present, state law rather than tribal law governs non-​Indian hunting and fishing on non-​Indian land within the reservation.66

May the state regulate on-​reservation hunting and fishing?

As explained in Chapter VIII, unless Congress has given its express consent, a state may not enforce a law on an Indian reservation when doing so would infringe on the tribe’s right of self-​government (the infringement test) or would violate federal law (the preemption test). Congress has not consented to the enforcement of state fish and game laws on Indian reservations. Even Public Law 83-​280, in which Congress allowed six states to prosecute crimes committed by Indians in Indian country, expressly withholds consent to state regulation of Indian hunting and fishing.67 Given the lack of congressional consent, courts have struck down efforts by states to regulate the taking of wildlife on tribal land by tribal members68 or nonmembers.69 The only exception to this rule, and it is a limited one, was created in Puyallup Tribe, Inc. v. Department of Game (1968).70 The Supreme Court held in Puyallup that a state may regulate hunting and fishing on tribal lands when necessary to ensure propagation (continuation) of the species. (The conservation measures that a state may and may not take in this situation are discussed later in this chapter.) The state’s authority with respect to on-​reservation hunting and fishing is limited to the circumstances addressed in Montana and Puyallup. Under Montana, the state may regulate non-​Indians who hunt and fish on non-​Indian land. Under Puyallup, the state may regulate hunting and fishing by Indians within the reservation only when essential to conserve the species. The state has no other jurisdiction over on-​reservation hunting and fishing.

284  The Rights of Indians and Tribes

May the federal government regulate on-​reservation hunting and fishing?

Congress may regulate every aspect of on-​reservation hunting and fishing, and may even terminate the reservation and eliminate all rights to hunt and fish that Indians possess.71 Federal officials, however, may not engage in any such regulation unless Congress has conferred that authority on them.72 Congress has more frequently empowered federal officials to help Indians protect their hunting and fishing rights than authorized them to limit those rights. First, Congress has made it a federal crime to hunt or fish within an Indian reservation in a manner contrary to tribal law,73 and has also made it a federal crime to “transport, sell, receive, acquire or purchase any fish or wildlife” in violation of tribal or federal law.74 As a result of these laws, all persons—​members and nonmembers alike75—​who violate tribal fish and game laws are subject to federal prosecution. Given that Indian tribes, as a result of a 1978 Supreme Court ruling, lack the authority to prosecute non-​Indians who violate tribal law,76 these federal laws allow for the enforcement of tribal game regulations in a manner that tribes cannot do on their own. Moreover, Congress has directed federal officials to undertake conservation measures to protect certain animals, many of which are vital to Indian tribes. The Endangered Species Act (ESA)77 requires federal agencies to ensure that all actions funded, authorized, or carried out by a federal agency will not jeopardize an endangered species. Acting pursuant to the ESA, federal agencies have prohibited non-​Indians from overharvesting certain endangered wildlife so as to protect the right of treaty tribes to harvest a sufficient number of those animals for food.78 Similarly, the Magnuson-​Stevens Fishery Conservation and Management Act requires the Secretary of Commerce to regulate the taking of certain fish within two hundred miles of the shore.79 The Act requires that the Secretary enforce this law consistent with “any other applicable law.”80 The Secretary has recognized that “any other applicable law” includes Indian treaties as well as the federal government’s trust responsibilities to Indian tribes. Therefore, the Act requires the Secretary to regulate ocean fishing by non-​Indians to ensure that treaty tribes are able to catch a sufficient supply of their treaty fish.81 The National Environmental Policy Act (NEPA)82 requires that an environmental impact statement (EIS) be prepared whenever any major federal action could significantly affect the quality of the environment,83 and requires that the EIS describe any alternative measures that would be less harmful to

Indian Hunting and Fishing Rights  285 plants and animals than the proposed action.84 Consequently, a tribe has a right under NEPA to discover beforehand how an agency’s proposed action could affect its hunting and fishing rights, and the tribe can file suit to halt the planned project if it appears that its rights will be negatively impacted.85 The Bald and Golden Eagle Protection Act86 prohibits the taking, possession, sale, export, and import of bald and golden eagles and their parts (such as feathers and talons). The Supreme Court held in United States v. Dion (1986)87 that the Act abrogated certain Indian treaty rights to hunt eagles. Congress, however, has authorized the Secretary of the Interior to issue permits allowing the taking, possession, and transportation of eagles and eagle parts “for the religious purposes of Indian tribes.”88 Congress obviously wished to accommodate the spiritual needs of Indians while also protecting eagles.89 Pursuant to this authorization, the Secretary has issued regulations under which members of federally recognized Indian tribes may obtain permits to possess and use eagles and eagle parts,90 and many such permits have been issued. Without a permit, any person, including a tribal member, who acquires or sells an eagle or eagle parts in a manner prohibited by the Act may be prosecuted for a federal crime.91

B.  OFF-​RESERVATION HUNTING AND FISHING What kinds of off-​reservation hunting and fishing rights do tribes have?

Many Indian tribes have a right to hunt or fish outside their reservation. Tribes acquired these rights through one of two methods. First, Congress has reduced the size of, or eliminated, an Indian reservation without expressly abrogating the tribe’s hunting and fishing rights on the land removed.92 Few tribes, though, acquired off-​reservation rights in this manner because Congress usually abrogated a tribe’s hunting and fishing rights when it diminished or eliminated a reservation.93 The second method was more common: Congress expressly conferred a right to hunt or fish outside the reservation in a treaty. Most tribes possessing these rights were dependent on wildlife that migrated with the change of seasons. These tribes negotiated for off-​reservation rights because they would starve without them.94 These guarantees, the Supreme Court has noted, “were crucial in obtaining the Indians’ assent” to relinquish their land, agree to live on a fixed reservation, and not go to war against the United States.95

286  The Rights of Indians and Tribes Some tribes have a treaty right to hunt on “open and unclaimed” lands outside the reservation, or words to that effect.96 The 1868 treaty with the Crow Tribe of Montana guarantees the tribe the right to hunt “on the unoccupied lands of the United States as long as game can be found thereon.”97 These guarantees give tribal members a right to hunt on unsettled public lands, such as uninhabited portions of national forests and state parks, even if hunting at those locations is otherwise restricted or prohibited.98 Several bands of Chippewa (Ojibwe) have similar provisions in their treaties.99 The 1836 treaty with the Ottawa and Chippewa Indians, for instance, reserves their right to fish in the Great Lakes, as well as to hunt and fish on the territory they relinquished “until the land is required for settlement,” and today they exercise these rights on public lands.100 (Lands that are now privately owned, however, are no longer “unclaimed,” “unopened,” or “unsettled” for purposes of these treaties.)101 Treaties signed between 1854 and 1856 guarantee more than twenty tribes in the Northwest a right to fish “at all usual and accustomed grounds and stations,” both on and off the reservation.102 Some of these treaties also guarantee a right to take shellfish (such as mussels, clams, and oysters) outside the reservation.103 As the Supreme Court stated regarding these treaties: All of the treaties were negotiated by Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory, and a small group of advisors. Contemporaneous documents make it clear that these people recognized the vital importance of the fisheries to the Indians and wanted to protect them from the risk that non-​Indian settlers might seek to monopolize their fisheries. There is no evidence of the precise understanding the Indians had of any of the specific English terms and phrases in the treaty. It is perfectly clear, however, that the Indians were vitally interested in protecting their right to take fish at usual and accustomed places, whether on or off the reservations, and that they were invited by the white negotiators to rely and in fact did rely heavily on the good faith of the United States to protect that right.104

Decades later, when large numbers of non-​Indians began settling the territory, they began monopolizing the best fishing sites. A federal agent reported in 1894 that “all the best grounds have been taken by white men,” and another agent reported in 1897 that the “aggressiveness of whites . . . quickly led to their domination of the prime fisheries of the

Indian Hunting and Fishing Rights  287 region.”105 State officials, moreover, refused to protect Indian treaty rights. For instance, they arrested treaty Indians for fishing without a state license until the Supreme Court held in 1942 that Indians exercising their treaty rights did not need to purchase one.106 By the 1970s, Indian treaty fishers were harvesting only 2 percent of the total harvest of salmon and trout in the treaty area.107 The United States finally filed suit on behalf of treaty tribes to protect their rights, and in 1974 in United States v. Washington,108 a federal court ruled that these treaty tribes had a right to fish at their traditional (“usual and accustomed”) fishing grounds, including all sites where tribal members customarily fished, however distant from the tribe’s usual home and regardless of whether other tribes also fished in the same waters.109 (This ruling is often called the “Boldt” decision after the name of the federal judge who first decided the case, George H. Boldt.) Although this ruling required tribes to prove where their members had been fishing for generations (a difficult task given the absence of written records), many sites were identified.110 Because these treaty tribes pursue anadromous salmon that spend their adult lives in the ocean but return to rivers to spawn, some of the Indians’ usual and accustomed grounds and stations are located in the ocean, while others are located on shorelines and riverbanks. If these shorelines and riverbanks are now owned by non-​Indians, tribal members have a right to fish there regardless of whether the private owner consents, and even to camp on that property during the fishing season.111 Moreover, if private land surrounds these sites, Indians have a right to cross that land in order to reach their fishing grounds.112 The treaties impose “a servitude” on the privately owned lands of non-​Indians to the extent necessary for tribal members to take their treaty share of fish, the Supreme Court has held, and any state law or regulation inconsistent with these treaty rights is preempted by federal law.113 Sport and commercial fishing by non-​Indians is a multi-​million-​dollar business, and Indian treaty rights compete with those interests. At the time these treaties were signed, few non-​Indians lived in the area and the fish supply seemed inexhaustible.114 Not so today. Tribes in numerous states, including Washington, Oregon, Idaho, Michigan, and Wisconsin, have had to obtain federal court orders to protect their rights.115 The Supreme Court has warned state officials that it is “prepared to uphold the use of stern measures” to protect Indian treaty rights, including allowing federal agencies to replace state agencies in regulating fishing at treaty-​protected locations.116

288  The Rights of Indians and Tribes

May the tribe regulate Indian hunting and fishing outside the reservation?

As explained in Chapter VIII, Indian tribes normally may not enforce their laws outside the reservation unless Congress has expressly conferred that authority. Congress has conferred off-​reservation hunting and fishing rights on a number of tribes, however, and the tribes that have those rights may regulate the exercising of them by tribal members.117 Tribes may also file lawsuits against nonmembers interfering with those rights, obtain orders enforcing their rights, and recover damages for any loss the tribe suffered.118

What recourse does a treaty tribe have if it believes that another treaty tribe is taking its fish?

Most tribes in the Northwest signed treaties negotiated by Isaac Stevens, the Governor of the Washington Territory, between 1854 and 1856. There were eleven treaties in total,119 and multiple tribes often signed one treaty.120 These treaties were similarly worded: each tribe was guaranteed the right to fish at “all usual and accustomed grounds and stations” (U & A). Some locations are U & As for multiple tribes, all of which fished there. Occasionally, one tribe will dispute another’s claim, and the dispute winds up in court.121 Occasionally a tribe will win a case against one tribe but lose a case against another.122 The Supreme Court has yet to decide whether treaties that confer rights on multiple tribes to hunt or fish at the same location authorize federal courts to apportion the catch between those tribes. One court has stated that although a federal court may apportion the catch, these types of divisions “have historically been a matter for the tribes to resolve amongst themselves, as sovereigns,” and that federal courts may refuse to adjudicate these controversies.123 The best solution to these inter-​tribal disputes lies not in litigation but in negotiation.124

May the state regulate Indian hunting and fishing outside the reservation?

States have the inherent right to regulate hunting and fishing within their borders.125 Indians who hunt or fish outside the reservation must comply with the same state laws applicable to everyone else unless they possess an express immunity from state law as a result of federal law. Many Indians do have off-​reservation hunting and fishing rights under federal law. By virtue of the Supremacy Clause in the U.S. Constitution, a

Indian Hunting and Fishing Rights  289 federal right is superior to a state right when the two conflict.126 Therefore, a state may not interfere with the exercise of a federal right, such as Indian treaty hunting and fishing rights.127 There are only two situations, the Supreme Court has held, in which a state may regulate federally secured off-​ reservation Indian hunting and fishing rights.

1. The “Conservation Necessity” Exception The first exception to the rule that a state may not interfere with federally secured off-​reservation Indian hunting and fishing rights is the Puyallup “conservation necessity” exception. The Supreme Court held in Puyallup Tribe v. Department of Game (1968) that a state may limit Indian treaty rights “in the interest of conservation” both on and off the reservation, and may prohibit tribes from engaging in any activity that would endanger continuation of the species.128 The Court in Puyallup gave no justification for allowing the state to regulate these tribal and federal rights—​a power the state normally does not have unless Congress expressly confers it—​and numerous commentators have criticized this holding.129 As one federal court stated, “the basis for [this] state regulation has never been explained satisfactorily.”130 According to the Supreme Court, the conservation necessity exception “accommodates both the State’s interest in management of its natural resources and the [tribe’s] federally guaranteed treaty rights,”131 but the Court has not explained how the state acquired the authority to regulate a federal right. This exception, though, is narrow. In order for the state to restrict Indian treaty rights, the Supreme Court has held, the state’s conservation regulation must pass three tests. First, the state must show that its regulation is reasonable and necessary to perpetuate the species, and second, that the regulation is the least restrictive means of achieving this goal. If alternative methods of conservation are available that are less injurious to the tribe’s treaty rights, they must be utilized.132 Third, the regulation must not discriminate against Indians, either by placing greater burdens on them than on non-​Indians, or by imposing restrictions that have the effect of preventing Indians from taking their treaty share of the resource.133 In these situations, a court should hold a hearing and carefully consider whether the state’s restriction passes all three tests, unless the state is requiring nothing more than what the tribe enacted as its own conservation measure.134

290  The Rights of Indians and Tribes The Puyallup case illustrates the principle that state regulation of Indian treaty rights is limited. At issue in Puyallup was a state of Washington regulation that prohibited the use of nets to catch certain fish, which the state said was necessary to ensure the continuation of the species. The ban applied to everyone equally, Indian and non-​Indian, and the state argued it was therefore reasonable and nondiscriminatory. The Supreme Court invalidated the ban, however, because Indians represent less than 5 percent of Washington’s population and cannot catch their treaty entitlement of fish—​which, as explained below, is up to 50 percent of the resource—​unless they use nets. In reality, then, the ban did discriminate against Indians because an alternative method of protecting the fish was available: the state could limit the number of fish that non-​Indians took, which would then allow Indians to capture their treaty share without endangering the species.135 Thus, as Puyallup demonstrates, Indians exercising federal treaty rights are not required to obey “neutral” state restrictions that have the effect of unnecessarily limiting their rights.136 A state, however, may require tribal members to carry identification cards so that state game wardens can identify them as possessing treaty rights.137 In addition, a state may allow non-​Indians to fish at a protected Indian site provided that tribal members are not prevented from catching their treaty share of fish at that location.138

2. The “In Common With” Exception A second exception to the rule that federally secured Indian hunting and fishing rights may not be regulated by the state exists in certain states, including most states in the Northwest, as a result of particular treaty language. Virtually all treaties with the Northwest tribes guarantee “the right of taking fish at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.” The treaties do not explain the meaning of the “in common with” clause. At the time these treaties were signed, there were plenty of fish for everyone and there was no need to be more precise. Decades later, when the supply of fish could no longer satisfy the demand of a vastly increased population of non-​Indians, state officials contended that the clause assured the tribes of nothing more than an equal opportunity to catch fish.139 In Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979),140 the Supreme Court interpreted the “in common

Indian Hunting and Fishing Rights  291 with” clause to mean that Indians have a right to take a certain percentage of the available catch—​up to 50 percent—​and not just an opportunity to cast a fishing line along with the tens of thousands of non-​Indians who now fish in the area. (In determining the “available catch,” one must subtract from the total fish population the number of “escapement” fish that must be allowed to avoid capture so as to spawn and propagate the species.) As a result of the treaty, the Court said, the state has a duty to prevent non-​Indians from taking more than their share. The Supreme Court also held, however, that the “in common with” clause not only gives Indians a right to a certain amount of fish, it gives non-​Indians a right to the remainder. “Both sides have a right, secured by treaty, to take a fair share of the available fish. That, we think, is what the parties to the treaties intended when they secured to the Indians the right of taking fish in common with other citizens.”141 Moreover, the Court held, tribes may not take their full 50 percent share if a lesser amount would provide tribal members with “a moderate living.”142 As yet, there are no reported instances of a court limiting the number of fish a tribe can catch because its members have begun earning more than a moderate living. However, as tribes improve their technological capability of catching fish (such as by purchasing the large fishing vessels that non-​Indian fishers use to catch salmon in the ocean), limitations could occur. A federal court interpreted the “in common with” standard in a unique case involving the treaty harvesting of shellfish. The court held that where a private company had enhanced certain tidelands such that more shellfish were now growing there than existed at the time the treaty was signed, the tribe was not entitled to take a 50 percent share of the shellfish; rather, the tribe could take only 50 percent of the shellfish that naturally grew there at the time the treaty was signed. The court emphasized that this restriction applied only to enhanced beds of shellfish; at all other protected treaty sites, the tribe was entitled to its full 50 percent share of the available resource.143 Not all treaties that guarantee off-​reservation hunting and fishing rights contain an “in common with” clause. Where a limitation such as that is not present in the treaty, the tribe is not required to share the resource, and the only restrictions a state may impose are those that would satisfy the Puyallup “conservation necessity” standard.144 Negotiation is usually far superior to litigation and a number of states and tribes have entered into agreements regarding the taking of fish, thereby fostering mutual respect and cooperation and avoiding expensive

292  The Rights of Indians and Tribes court trials.145 One of the most comprehensive agreements involves the taking of fish from the Columbia River. Its signators include tribes (the Nez Perce, Umatilla, Warm Springs, Yakama, and Shoshone-​Bannock), states (Washington, Oregon, and Idaho), and federal agencies (Bureau of Indian Affairs, U.S. Fish and Wildlife Service, and National Oceanic and Atmospheric Association).146

What was the “culverts” case?

Anadromous fish travel down rivers to the ocean when they are young and, years later, migrate up those rivers to spawn. They usually spawn in shallow streams and tributaries where the water is not traveling as fast as in the rivers, laying their eggs in the sand and gravel bottom. As non-​Indians began settling the territory, they often built roads over these streams and tributaries. Culverts (large pipes) were placed underneath the roadways to allow fish to continue migrating. Over time, many of these culverts became clogged or damaged or the land in front of them subsided, making it difficult if not impossible for migrating fish to pass through these culverts on their way upstream (“barrier culverts”).147 In 2001, twenty-​one treaty tribes, joined by the United States, filed suit against the state of Washington, arguing that these barrier culverts violated their treaty rights because they blocked nearly one thousand miles of fish habitats, preventing the production of several hundred thousand salmon each year.148 The state claimed that, while the Indian treaties guaranteed tribes a right to take fish, the treaties did not require the state to protect fish habitats against destruction.149 The Ninth Circuit Court of Appeals ruled that because a right to take fish is “worthless” if there are no fish to take, Washington must repair or replace barrier culverts on the roads it constructed or maintained.150 On appeal, the Supreme Court affirmed the Ninth Circuit’s decision on a 4–​4 vote, with Justice Kennedy not participating because he had been a member of the Ninth Circuit when the original case was decided and was barred by Court rules from participating in the appeal. The state estimates that these remedial efforts will cost $3.7 billion dollars, and federal agencies recently announced plans to help defray the cost.151

May the federal government regulate off-​reservation Indian hunting and fishing?

Congress has the power, the Supreme Court has held, to regulate every aspect of Indian hunting and fishing and to abolish all treaty rights to hunt

Indian Hunting and Fishing Rights  293 and fish.152 Although Congress (and federal agencies) have harmed tribal rights to hunt and fish, Congress has also passed laws that protect animals and plants important to Indian tribes, including, as discussed earlier, the Environmental Protection Act, the Magnuson-​Stevens Act, and the National Environmental Protection Act. In implementing these laws, federal officials should fulfill their obligations under the doctrine of trust responsibility. Among other things, as explained in Chapter III, the United States, as a trustee for Indian tribes, must protect tribal interests in fish and game.153 This may require that federal officials curtail access to wildlife by non-​Indians. For instance, the Secretary of Commerce, who is required by the Magnuson-​Stevens Act to regulate the taking of commercial fish within two hundred miles of the national coastline, has occasionally limited the taking of anadromous fish on the high seas by non-​Indians in order to ensure that Indians may catch their treaty share at on-​reservation and off-​reservation protected sites.154 Federal officials have also been authorized by Congress to file suit on behalf of Indian tribes to protect their hunting and fishing rights, and quite a few such lawsuits have been filed.155 To assist treaty tribes in exercising their off-​ reservation rights, the Secretary of the Interior has enacted regulations under which identification cards may be issued by the Bureau of Indian Affairs (or by the tribe, if it decides to undertake this task) to tribal members eligible to exercise the tribe’s treaty rights.156 These cards prove to tribal, state, and federal law enforcement officers that the holder is entitled to exercise the rights secured by the treaty identified on the card.

Does any Indian tribe have a treaty right to hunt whales?

Yes, a few tribes do. The treaty with the Makah Tribe guarantees them the right of “whaling or sealing” at the tribe’s “usual and accustomed grounds and stations.”157 No other treaty guarantees a tribe an express right to take whales. However, the treaty signed by the Quileute and Quinault Tribes guarantees them the right “to fish.” A federal court recently agreed that those tribes traditionally hunted whales and seals and they understood that their treaty would preserve their continued right to do so.158 In the early 1990s, the Makah, which had discontinued hunting whales in the 1920s, sought to revive its tradition after the gray whale was removed from the Endangered Species List. (The population of the Pacific gray whale is now estimated to be more than fourteen thousand.)159 The tribe sought

294  The Rights of Indians and Tribes permission to hunt whales from the International Whaling Commission, an international body created in 1946 to regulate the taking of whales, and from the federal agencies that regulate the taking of marine animals. The tribe received approval in 1998 to take up to five gray whales each year during the next five years.160 In 1999, members of the Makah Tribe killed their first gray whale. The killing sparked a storm of outrage from animal rights groups and environmentalists, and lawsuits were filed that resulted in court orders halting further whaling until federal agencies conducted an investigation to ensure that the taking of whales by the tribe would not violate federal environmental protection laws.161 In 2007, some members of the tribe, acting without the tribe’s permission, killed a gray whale. The tribe arrested the members for violating tribal law, issued a statement denouncing the killing, and confirmed the tribe’s intention to await formal approval before renewing any whaling.162 In 2019, the tribe submitted an application to the Department of Commerce seeking permission to hunt a gray whale, which is still pending.163 Makah tribal leaders, calling Native peoples “the first environmentalists,” are disappointed that the approval process is taking so long given that gray whales are no longer endangered.164

C.  CLIMATE CHANGE AND TRIBAL HUNTING AND FISHING RIGHTS As discussed in Chapter VI, the entire world is impacted by climate change, but Indigenous communities, people of color, and low-​income communities bear a disproportionate burden of the impact of climate change and have fewer resources to mitigate the damages of it and adapt to the crises. What has been happening to the salmon population in the Northwest is a glaring and depressing illustration. Today, the salmon population in the Northwest is a tiny fraction of what it was when the Stevens treaties were signed in the 1850s. Climate change is not the only reason, obviously. Other causes are the construction of dams on every major river in the Northwest that inhibit if not prevent salmon migration, the loss of habitat, overfishing, and pesticides. Climate change, however, is the greatest new threat. “Climate change is raising water temperatures, decreasing water quality, and diminishing food sources and habitat in a compounding fashion.”165 For instance, one-​half of the 2015 Columbia Basin sockeye salmon run perished due to higher water temperatures. The

Indian Hunting and Fishing Rights  295 progressively rising temperatures in many rivers greatly assists the spread of predatory fish that prefer warm water, such as the northern pike and smallmouth bass, which feed on young salmon.166 The issues are complex, and so are the possible solutions. As one environmentalist who has spent years studying the problem recently wrote, “There is much work ahead for those wishing to ensure salmon’s future.”167

Notes 1. United States v. Winans, 198 U.S. 371, 381 (1905). 2. Jonathon Solomon quoted in https://​thedi​scou​rse.ca/​envi​ronm​ent/​north​ern-​ind​ igen​ous-​gov​erna​nce-​gwic​hin. 3. See https://​www.cri​tfc.org/​sal​mon-​cult​ure/​we-​are-​all-​sal​mon-​peo​ple/​. 4. Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034, 1047 (9th Cir. 2023). 5. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Stepp, 2015 WL 5944238 (W.D. Wis. 2015). 6. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 664–​66 (1979) (citations omitted). See also Herrera v. Wyoming, 139 S. Ct. 1686, 1691 (2019) (noting that the Crow Tribe of Montana “was nomadic, and its members hunted game for subsistence”). 7. See Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-​ Wisconsin, 843 F. Supp. 1284, 1288 (W.D. Wis. 1994), aff ’d, 41 F.3d 1190 (7th Cir. 1994), cert. denied, 514 U.S. 1096 (1995). 8. See Johnson v. Alaska State Department of Fish & Game, 836 P.2d 896, 901 n.6 (Alaska 1991). 9. See Tribal Citizens Say Harassment Affects How They Hunt, Fish, Interlochen Public Radio (May 30, 2019), available at http://​www.tiny​url.com/​y5u52​vwx. 10. See Passenger Fishing Vessel, 443 U.S. 658. 11. State of Salmon in Watersheds 2018, available at https://​stateo​fsal​mon.wa.gov/​exec-​ summ​ary/​. 12. https://​www.foxn​ews.com/​us/​sal​mon-​fish​ing-​ban​ned-​much-​west-​coast-​pop​ulat​ ion-​decli​nes-​drama​tica​lly. 13. See Northwest Resource Information Center, Inc. v. Puget Sound Power & Light, 35 F.3d 1371, 1377 n.8 (9th Cir. 1994), cert. denied, 516 U.S. 806 (1995). Memorandum on Restoring Healthy and Abundant Salmon, Steelhead, and Other Native Fish Populations in the Columbia River Basin (Sept. 27, 2023), available at https://​www. whi​teho​use.gov/​brief​i ng-​room/​presi​dent​ial-​acti​ons/​2023/​09/​27/​mem​oran​dum-​on-​ restor​ing-​heal​thy-​and-​abund​ant-​sal​mon-​steelh​ead-​and-​other-​nat​ive-​fish-​popu​lati​ ons-​in-​the-​colum​bia-​river-​basin/​. For the devastating impact these dams have had on the Nez Perce, see Lynda V. Mapes, Salmon People: A Tribe’s Decades-​Long Fight to Take Down the Lower Snake River Dams and Restore a Way of Life, Seattle Times

296  The Rights of Indians and Tribes (Nov. 29, 2020), available at https://​www.seatt​leti​mes.com/​seat​tle-​news/​envi​ronm​ ent/​sal​mon-​peo​ple-​a-​tri​bes-​deca​des-​long-​fight-​to-​take-​down-​the-​lower-​snake-​ river-​dams-​and-​rest​ore-​a-​way-​of-​life. 14. Michael C. Blumm & Dara Illowsky, The World’s Largest Dam Removal Project: The Klamath River Dams, 101 Or. L. Rev. 1, 3–​4 (2022). 15. See San Luis & Delta-​Mendota Water Auth. v. Haugrud, 848 F.3d 1216, 1223 (9th Cir. 2017). 16. United States v. Winans, 198 U.S. 371, 381 (1905); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983); United States v. Confederated Tribes of the Colville Indian Reservation, 606 F.3d 698, 713 (9th Cir. 2010); State v. Coffee, 556 P.2d 1185, 1189 (Idaho 1976). 17. See Timpanagos Tribe v. Conway, 286 F.3d 1195 (10th Cir. 2002). 18. United States v. Dion, 476 U.S. 734, 745 n.8 (1986); Parravano v. Babbitt, 70 F.3d 539, 545 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996). But see Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334, 343 (9th Cir. 1996), cert. denied, 520 U.S. 1168 (1997) (holding that the executive order at issue in that case did not preserve the tribe’s hunting and fishing rights). 19. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89–​90 (1918). 20. United States v. Felter, 752 F.2d 1505, 1509 (10th Cir. 1985). 21. United States v. Winans, 198 U.S. 371, 381 (1905). 22. Id. See also Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034, 1046–​48 (9th Cir. 2023). 23. Herrera v. Wyoming, 139 S. Ct. 1686, 1699–​1702 (2019); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202–​03 (1999); Red Lake Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir.), cert. denied, 449 U.S. 905 (1980). 24. See Herrera, 139 S. Ct. at 1699-​1702; United States v. Felter, 752 F.2d 1505, 1509 (10th Cir. 1985); United States v. Confederated Tribes of the Colville Indian Reservation, 606 F.3d at 713. 25. 139 S. Ct. 1686 (2019). 26. Herrera, 139 S. Ct. at 1702–​03. The “conservation necessity” rule is discussed later in this chapter. 27. Mille Lacs Band, 526 U.S. 172; see also Northwestern Band of Shoshone Nation v. Wooten, 83 F.4th 1205, 1210–​11 (9th Cir. 2023); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F.2d 341, 362–​65 (7th Cir.), cert. denied, 464 U.S. 805 (1983). 28. Mille Lacs Band, 526 U.S. at 202–​03 (citation omitted). See also United States v. Bresette, 761 F. Supp. 658, 662–​63 (D. Minn. 1991). 29. Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1163–​67 (9th Cir. 2017), cert. denied, 139 S. Ct. 106 (2018). See also Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034, 1042 (9th Cir. 2023); Northwestern Band of Shoshone Nation, 83 F.4th at 1208 n.2 (noting that a treaty guarantee of the “right to hunt” included both a right to hunt and fish). 30. United States v. Santa Fe Pac. R.R., 314 U.S. 339, 347 (1941); Tee-​Hit-​Ton Indians v. United States, 348 U.S. 272, 279 (1955); Pueblo of Jemez v. United States, 63 F.4th 881, 889–​90 (10th Cir. 2023).

Indian Hunting and Fishing Rights  297 31. Oregon Dept. of Fish and Wildlife, 473 U.S. 753 (1985); Pueblo of Jemez v. United States, 790 F.3d 1143, 1165–​66 (10th Cir. 2015); Western Shoshone National Council v. Molini, 951 F.2d 200, 203 (9th Cir. 1991), cert. denied, 506 U.S. 822 (1992). 32. Santa Fe Pacific R.R. Co., 314 U.S. at 347; United States v. Abouselman, 976 F.3d 1146, 1158 (10th Cir. 2020); Ottawa Tribe v. Logan, 577 F.3d 634, 639 n.6 (6th Cir. 2009); Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334, 341 (9th Cir. 1996), cert. denied, 520 U.S. 1168 (1997). 33. See Pueblo of Jemez, 63 F.4th at 889–​90; Native Village of Eyak v. Blank, 688 F.3d 619, 623 (9th Cir. 2012); United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl. 1975). 34. Cramer v. United States, 261 U.S. 219, 227–​29 (1923). 35. See Pueblo of Jemez, 63 F.4th at 889–​90; Chehalis, 96 F.3d at 341; United States v. Lowry, 512 F.3d 1194 (9th Cir. 2008); Whiterock v. Nebraska, 918 P.2d 1309 (Nev. 1996). In Commonwealth v. Maxim, 708 N.E.2d 636 (Mass. 1999), the court recognized the continued existence of aboriginal rights to take shellfish for tribal subsistence needs. 36. Montana v. United States, 450 U.S. 544, 552 (1981). 37. See United States v. Aam, 887 F.2d 190 (9th Cir. 1989). 38. U.S. Const. amend. V. See Menominee Tribe v. United States, 391 U.S. 404 (1968). 39. Menominee Tribe, 391 U.S. at 413; Hynes v. Grimes Packing Co., 337 U.S. 86, 105 (1949). See also Skokomish Indian Tribe v. United States, 410 F.3d 506 (9th Cir. 2005) (holding that a tribe is not entitled to compensation from the federal government when treaty rights are harmed by a party not a signatory to the treaty, such as a utility company). 40. See Tee-​Hit-​Ton Indians v. United States, 348 U.S. 272, 279 (1955); Inupiat Community of the Arctic Slope v. United States, 680 F.2d 122 (Ct. Cl.), cert. denied, 459 U.S. 969 (1982). This subject is further discussed in Chapter II, Section D. 41. See Haaland v. Brackeen, 143 S. Ct. 1609, 1628–​29 (2023); Herrera v. Wyoming, 139 S. Ct. 1686, 1691 (2019); United States v. Washington, 157 F.3d 630, 651 (9th Cir.), cert. denied, 526 U.S. 1060 (1999). 42. Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977) (suit by tribe); Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969) (suit by tribal members). 43. Blackfeather v. United States, 190 U.S. 368, 377 (1903); United States v. Washington, 520 F.2d 676, 688 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). 44. Whitefoot v. United States, 293 F.2d 658 (Ct. Cl. 1961), cert. denied, 369 U.S. 818 (1962). 45. United States v. Washington, 520 F.2d at 689–​90. See also United States v. Cutler, 37 F. Supp. 724 (D. Idaho 1941). 46. See Anderson v. Evans, 371 F.3d 475, 499 (9th Cir. 2004); Grand Traverse Band of Ottawa & Chippewa Indians v. Director, Michigan Department of Natural Resources, 141 F.3d 635, 639 (6th Cir.), cert. denied, 525 U.S. 1040 (1998); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1430 (W.D. Wis. 1987). 47. See cases cited supra note 46; United States v. Washington, 384 F. Supp. at 402; Peterson v. Christensen, 455 F. Supp. 1095, 1099 (E.D. Wis. 1978). But see United States v. Gotchnik, 222 F.3d 506 (8th Cir. 2000) (holding that a treaty right to fish does not permit the use of motorized boats in violation of federal laws).

298  The Rights of Indians and Tribes 48. United States v. Finch, 548 F.2d 822, 832 (9th Cir. 1976), vacated on other grounds, 433 U.S. 676 (1977). See also Midwater Trawlers Cooperative v. Department of Commerce, 282 F.3d 710, 717 (9th Cir. 2002); United States v. Aanerud, 893 F.2d 956 (8th Cir.), cert. denied, 498 U.S. 822 (1990); Lac Courte Oreilles, 653 F. Supp. at 1426–​28. 49. United States v. Washington, 759 F.2d 1353, 1358–​60 (9th Cir. 1985) (en banc), cert. denied, 474 U.S. 994 (1985); Mattz v. Superior Court, 46 Cal. 3d 355 (Cal. 1988), cert. denied, 489 U.S. 1078 (1989). See also United States v. Washington, 157 F.3d 630, 651–​ 52 (9th Cir.), cert. denied, 526 U.S. 1060 (1999) (same rule applies to replenishment shellfish). 50. See supra note 12 and accompanying text. See also Northwest Environmental Defense Center v. Bonneville Power Admin., 477 F.3d 668, 672 (9th Cir. 2007). 51. See Fish and Wildlife Coordination Act of 1976, 16 U.S.C. §§ 661 et seq.; Northwest Power Act, 16 U.S.C. §§ 839 et seq. See Northwest Environmental Defense Center, 477 F.3d 668. 52. City of Tacoma, Washington v. F.E.R.C., 460 F.3d 53, 74 (D.C. Cir. 2006); Northwest Resource Information Center, Inc. v. Puget Sound Power & Light, 35 F.3d 1371, 1388 (9th Cir. 1994), cert. denied, 516 U.S. 806 (1995). 53. See cases cited in the previous note and Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 25 F.3d 872 (9th Cir. 1994). 54. Expectations are high: see Kate Schimel, After Its Dams Came Down, a River Is Reborn, High Country News (Sept. 4, 2017), available at https://​www.hcn.org/​iss​ues/​49.15/​ riv​ers-​six-​years-​after-​its-​dams-​came-​down-​a-​river-​is-​reb​orn; Lynda V. Mapes, The Elwah Dams Are Gone and Chinook Are Surging Back, But Why Are So Few Reaching the Upper River, Seattle Times (Oct. 18, 2020), available at https://​www.seatt​leti​ mes.com/​seat​tle-​news/​envi​ronm​ent/​the-​elwha-​dams-​are-​gone-​and-​chin​ook-​are-​ surg​ing-​back-​but-​why-​are-​so-​few-​reach​ing-​the-​upper-​river/​. 55. See Penobscot River Restoration Project, Natural Resources Council of Me., available at https://​www.nrcm.org/​proje​cts/​wat​ers/​penobs​cot-​river-​rest​orat​ion-​proj​ect/​. 56. For a discussion of the project, see https://​www.sie​rrac​lub.org/​sie​rra/​anot​her-​hur​ dle-​clea​red-​klam​ath-​dams-​clo​ser-​com​ing-​down. For an informative video, see Guardians of the River, American Rivers (2019), available at https://​www.yout​ ube.com/​watch?v=​e5lc​P_​9a​teE. For an in-​depth view of the situation, see Blumm & Illowsky, supra note 14. In another positive note, President Biden has instructed all federal agencies to work with Indian tribes to help restore “healthy and abundant” fish populations in the Columbia River basin. See Memorandum, supra note 13. 57. See https://​fox40.com/​news/​cal​ifor​nia-​con​nect​ion/​yuba-​river-​proj​ect-​to-​allow-​sal​ mon-​other-​fish-​to-​swim-​clo​ser-​to-​the-​sie​rra-​nev​ada/​. 58. See Official Website of the Mescalero Apache Tribe, available at http://​www.mesca​lero​ apac​hetr​ibe.com; New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). 59. 462 U.S. 324 (1983). 60. Mescalero Apache Tribe, 462 U.S. at 335. See also Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977); United States v. Williams, 898 F.2d 727 (9th Cir. 1990). 61. See Mescalero Apache Tribe, 462 U.S. 324. See also Quechan Tribe v. Rowe, 531 F.2d 408, 410–​11 (9th Cir. 1976).

Indian Hunting and Fishing Rights  299 62. For instance, Congress has prohibited all persons from killing bald and golden eagles, but Indians can obtain an exemption in certain circumstances. See infra notes 86–​91 and accompanying text. 63. 18 U.S.C. § 1165. 64. 450 U.S. 544 (1981). 65. See Lower Brule Tribe v. South Dakota, 104 F.3d 1017, 1023–​24 (8th Cir.), cert. denied, 522 U.S. 816 (1997). 66. See Montana v. United States, 450 U.S. 544 (1981). The Montana exceptions are discussed in Chapter VIII, Section A. 67. 18 U.S.C. § 1162(b). 68. See cases cited supra note 16. See also Tulee v. Washington, 315 U.S. 681 (1942); Confederated Salish & Kootenai Tribes v. State of Montana, 750 F. Supp. 446 (D. Mont. 1990). 69. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). 70. 391 U.S. 392 (1968). 71. Menominee Tribe v. United States, 391 U.S. 404 (1968). 72. See Sohappy, Sr. v. Hodel, 911 F.2d 1312 (9th Cir. 1990); Northern Arapaho Tribe v. Hodel, 808 F.2d 741, 748 (10th Cir. 1987). 73. 18 U.S.C. § 1165. See United States v. Von Murdock, 132 F.3d 534 (10th Cir. 1997), cert. denied, 525 U.S. 810 (1998). 74. 16 U.S.C. §§ 3371 et seq. This law is known as the Lacey Act. See United States v. Stimac, 40 F.4th 876 (8th Cir. 2022); United States v. Eberhardt, 789 F.2d 1354 (9th Cir. 1986); United States v. Turtle, 365 F. Supp. 3d 1242 (M.D. Fla. 2019). 75. See United States v. Sandia, 188 F.3d 1215 (10th Cir. 1999) (tribal member); United States v. Sohappy, 770 F.2d 816, 819 (9th Cir. 1985), cert. denied, 477 U.S. 906 (1986) (tribal member); Von Murdock, 132 F.3d 534 (nonmember Indian); United States v. Big Eagle, 881 F.2d 539 (8th Cir. 1989), cert. denied, 493 U.S. 1084 (1990) (nonmember Indian). 76. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1972). 77. 16 U.S.C. §§ 1531 et seq. 78. See Washington v. Daley, 173 F.3d 1158 (9th Cir. 1999). The ESA also authorizes federal officials to prevent the taking of endangered species by Indians. See United States v. Billie, 667 F. Supp. 1485 (S.D. Fla. 1985); Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000). 79. 16 U.S.C. §§ 1801 et seq. 80. 16 U.S.C. § 1854(a)(1)(B). 81. See Midwater Trawlers Coop. v. Department of Commerce, 282 F.3d 710, 717–​21 (9th Cir. 2002); Parravano v. Babbitt, 70 F.3d 539, 546 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996). See also Northwest Sea Farms, Inc. v. U.S. Army Corps of Engineers, 931 F. Supp. 1515 (W.D. Wash. 1996) (finding a similar duty under the Rivers and Harbors Act, 33 U.S.C. § 403). 82. 42 U.S.C. §§ 4321–​35. 83. 42 U.S.C. § 4322(2)(c).

300  The Rights of Indians and Tribes 84. 42 U.S.C. § 4332(2)(e). See Anderson v. Evans, 371 F.3d 475, 485 (9th Cir. 2004); Sangre De Cristo Development Co. v. United States, 932 F.2d 891 (10th Cir. 1991), cert. denied, 503 U.S. 1004 (1992). 85. See Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988); Kendra v. United States, 145 F. Supp. 2d 1192, 1201, 1202–​03 (D. Or. 2001). 86. 16 U.S. § 668(a). 87. 476 U.S. 734 (1986). 88. 16 U.S.C. § 668a. 89. See H.R. Rep. No. 1450, 87th Cong., 2d Sess. (1962); S. Rep. No. 1986, 87th Cong., 2d Sess. at 3–​7 (1962); United States v. Dion, 476 U.S. 734, 740–​44 (1986). 90. 50 C.F.R. § 22.22. The Secretary of Interior has ruled that only members of federally recognized Indian tribes may obtain a permit. Some courts have upheld that limitation, see United States v. Antoine, 318 F.3d 919 (9th Cir. 2003), and Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000), while other courts have rejected it, see McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014), or questioned it, see United States v. Hardman, 297 F.3d 1116, 1135 (10th Cir. 2002); United States v. Gonzales, 957 F. Supp. 1225 (D.N.M. 1997). 91. United States v. Friday, 525 F.3d 938 (10th Cir. 2008); Antoine, 318 F.3d 919; United States v. Tawahongva, 456 F. Supp. 2d 1120 (D. Ariz. 2006). The Migratory Bird Act, 16 U.S.C. 703, imposes similar restrictions on the hunting and taking of eagles. See United States v. Crooked Arm, 788 F.3d 1065 (9th Cir. 2015). But see United States v. Skeet, 623 F. Supp. 3d 1178 (D.N.M.), appeal dism’d, 2022 WL 19264513 (10th Cir. 2022) (holding that a treaty with the Navajo Nation authorized members of the Nation to take and sell red-​tailed hawk feathers). 92. See Menominee Tribe v. United States, 391 U.S. 404 (1968); Kimball v. Callahan, 590 F.2d 768 (9th Cir.), cert. denied, 444 U.S. 826 (1979); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 364 (7th Cir.), cert. denied, 464 U.S. 805 (1983). 93. See Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334, 343 (9th Cir. 1996), cert. denied, 520 U.S. 1168 (1997); White Earth Band of Chippewa Indians v. Alexander, 683 F.2d 1129, 1135 (8th Cir. 1982); State v. Butcher, 563 N.W.2d 776, 783 (Minn. App. 1997). 94. See Herrera v. Wyoming, 139 S. Ct. 1686, 1692 (2019); United States v. Washington, 384 F. Supp. 312, 333 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). See also United States v. Washington, 853 F.3d 946, 964 (9th Cir. 2017), aff ’d by equally divided vote, 138 S. Ct. 1832 (2018). 95. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 676 (1979). See also Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034 (9th Cir. 2023) (recognizing that Congress conferred off-​reservation fishing rights in a statute). But see Penobscot Nation v. Frey, 3 F.4th 484 (1st Cir. 2021) (holding that statute creating Penobscot Reservation did not confer off-​reservation fishing rights). 96. See Antoine v. Washington, 420 U.S. 194 (1975) (“open and unclaimed land”); United States v. Michigan, 424 F.3d 438 (6th Cir. 2005) (“until the land is required for settlement”); Washington v. Buchanan, 978 P.2d 1070 (Wash. 1999) (“open and unclaimed land”); State v. Tinno, 497 P.2d 1386 (Idaho 1972) (“the unoccupied lands of the United States”).

Indian Hunting and Fishing Rights  301 97. 15 Stat. 650. See Herrera, 139 S. Ct. at 1691. 98. See Herrera, 139 S. Ct. 1686; Antoine, 420 U.S. 194; Buchanan, 978 P.2d 1070; State v. Stasso, 563 P.2d 562 (Mont. 1977); State v. Arthur, 261 P.2d 135 (Idaho 1953). 99. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). 100. 7 Stat. 491. See United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), modified in part, 653 F.2d 277 (6th Cir. 1981); United States v. Michigan, 424 F.3d 438, 440–​41 (6th Cir. 2005). 101. See State v. Simpson, 54 P.3d 456 (Idaho 2002), cert. denied, 538 U.S. 911 (2003); State v. Chambers, 506 P.2d 311 (Wash.), cert. denied, 414 U.S. 1023 (1973); State v. Watters, 156 P.3d 145 (Or. App. 2007). See also State v. Cutler, 708 P.2d 853 (Idaho 1985) (holding that a treaty right to hunt on the unclaimed lands “of the United States” did not entitle tribal members to hunt on unclaimed lands owned by the state). 102. See United States v. Winans, 198 U.S. 371, 381 (1905); United States v. Washington, 157 F.3d 630. 103. See United States v. Washington, 157 F.3d at 646–​47. 104. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 666–​67 (1979). 105. United States v. Washington, 853 F.3d 946, 955, 956 (9th Cir. 2017), aff ’d by equally divided vote, 138 S. Ct. 1832 (2018) (internal citations omitted). 106. Tulee v. Washington, 315 U.S. 681 (1942). 107. Passenger Fishing Vessel Association, 443 U.S. at 676 n.22. 108. 384 F. Supp. 312 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). 109. Id., 384 F. Supp. at 332. See also Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020, 1022 (9th Cir. 2010) (holding that to qualify as a usual and accustomed ground or station, the location must be one where a tribe customarily fished, not just occasionally or while traveling to another location). 110. The difficulty in identifying these sites is illustrated in Swinomish Indian Tribal Community v. Lummi Nation, 80 F.4th 1056 (9th Cir. 2023), Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000), and State v. Petit, 558 P.2d 796 (Wash. 1977). 111. United States v. Winans, 198 U.S. 371 (1905). 112. Id.; Seufort Bros. v. United States, 249 U.S. 194 (1919); United States v. Washington, 157 F.3d 630, 654 (9th Cir.), cert. denied, 526 U.S. 1060 (1999). 113. Winans, 198 U.S. at 381. See also Washington State Dept. of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1011–​13 (2019). 114. See Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 666 (1979). 115. See cases cited supra notes 1–​9. See also Confederated Tribes & Bands of the Yakima Indian Nation v. Baldridge, 898 F. Supp. 1477 (W.D. Wash. 1995), aff ’d without opinion, 91 F.3d 1366 (9th Cir. 1996). 116. Passenger Fishing Vessel, 443 U.S. at 695–​96. 117. Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974); United States v. Washington, 384 F. Supp. 312, 340–​42 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert.

302  The Rights of Indians and Tribes denied, 423 U.S. 1086 (1976); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 362–​65 (7th Cir.), cert. denied, 464 U.S. 805 (1983). 118. See Passenger Fishing Vessel, 443 U.S. at 664–​66; Shoshone-​Bannock Tribes v. Fish & Game Commission of Idaho, 42 F.3d 1278, 1295–​96 (9th Cir. 1994). 119. See Muckleshoot Indian Tribe v. Tulalip Tribes, 944 F.3d 1179, 1181 (9th Cir. 2019), cert. denied, 141 S. Ct. 663 (2020). 120. For instance, the Treaty of Medicine Creek was signed between the United States and nine tribes in 1854. See https://​goia.wa.gov/​tri​bal-​gov​ernm​ent/​tre​aty-​medic​ ine-​creek-​1854. 121. See, e.g., Upper Skagit Indian Tribe v. Sauk-​Suiattle Indian Tribe, 66 F.4th 766 (9th Cir. 2023); United States v. Lummi Nation, 876 F.3d 1004 (9th Cir. 2017); United States v. Confederated Tribes of the Colville Indian Reservation, 606 F.3d 698, 714 (9th Cir. 2010). 122. See Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129 (9th Cir. 2015) (Suquamish winning), and Upper Skagit Indian Tribe v. Suquamish Indian Tribe, 871 F.3d 844 (9th Cir. 2017) (Suquamish losing). 123. United States v. Washington, 573 F.3d 701, 708 (9th Cir. 2009). 124. An example of an agreement is discussed in United States v. Washington, 573 F.3d at 705–​06. 125. Geer v. Connecticut, 161 U.S. 519 (1896); State v. Cayenne, 195 P.3d 521, 523 (Wash. 2008). 126. U.S. Const. art. VI, § 2. See Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977); Missouri v. Holland, 252 U.S. 416 (1920). 127. Herrera v. Wyoming, 139 S. Ct. 1686 (2019); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999); Tulee v. Washington, 315 U.S. 681 (1942). 128. Puyallup Tribe v. Department of Game, 391 U.S. 392, 398 (1968). See also Washington State Dept. of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1015 (2019); Mille Lacs Band, 526 U.S. at 205. 129. See Ralph W. Johnson, The State versus Indian Off-​Reservation Fishing: United States Supreme Court Error, 47 Wash. L. Rev. 207 (1972); Note, State Regulation of Lake Superior Chippewa Off-​Reservation Usufructuary Rights, 11 Hamline L. Rev. 153 (1988). 130. Lac Courte Oreilles Band of Chippewa Indians v. Wisconsin, 740 F. Supp. 1400, 1421 (W.D. Wis. 1990). 131. Mille Lacs Band, 527 U.S. at 205. 132. See Department of Game v. Puyallup Tribe, 414 U.S. 44, 48 (1973); United States v. Oregon, 769 F.2d 1410, 1416 (9th Cir. 1985); United States v. Michigan, 653 F.2d 277, 279 (6th Cir. 1981). 133. See Puyallup Tribe v. Department of Game, 391 U.S. 392, 398 (1968) and United States v. Washington, 384 F. Supp. 312, 342, 402–​04 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). 134. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 679 (1979); Washington State Charterboat Association v. Baldridge, 702 F.2d 820 (9th Cir. 1983), cert. denied, 464 U.S. 1053 (1984).

Indian Hunting and Fishing Rights  303 135. Puyallup Tribe, 414 U.S. at 129. 136. Id. See also Puyallup Tribe, 433 U.S. 145; Tulee v. Washington, 315 U.S. 681 (1942); Shoshone-​Bannock Tribes v. Fish & Game Commission of Idaho, 42 F.3d 1278, 1283 (9th Cir. 1994) (holding that, in order to regulate a tribe’s treaty rights, “the state must demonstrate that the tribe’s own conservation measures are insufficient to meet the needs of conservation”). 137. Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165 (1977); see also Puyallup Tribe v. Department of Game, 391 U.S. 392, 398 (1968), and Sohappy v. Smith, 302 F. Supp. 899, 907–​08 (D. Or. 1969). 138. Puyallup Tribe, 433 U.S. at 176. 139. See Passenger Fishing Vessel Association, 443 U.S. at 677–​78. 140. 443 U.S. 658 (1979). 141. Passenger Fishing Vessel, 443 U.S. at 684–​85. See also Puyallup Tribe, 433 U.S. at 177. 142. Passenger Fishing Vessel, 443 U.S. at 686–​87. See also Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1434, 1435 (W.D. Wis. 1987). 143. United States v. Washington, 157 F.3d 630, 640–​53 (9th Cir.), cert. denied, 526 U.S. 1060 (1999). 144. See Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 929–​32 (8th Cir. 1997), aff ’d, 527 U.S. 122 (1999); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1434 (W.D. Wis. 1987). 145. The National Conference of State Legislatures has published a summary of some state-​tribal agreements, including agreements on treaty fishing rights. See Government to Government Models of Cooperation Between States and Tribes, available at https://​docume​nts.ncsl.org/​wwwn​csl/​Legis​lati​veSt​aff/​Quad-​Cau​cus/​2009​_​ gov​_​to_​gov.pdf. 146. See Michael C. Blumm & Cari Baermann, The Belloni Decision and Its Legacy: United States v. Oregon and Its Far-​Reaching Effects After a Half-​Century, 50 Envtl. L. Rev. 347, 372–​80 (2020). An additional settlement occurred in September 2023 which gives tribes time and money to study how best to reintroduce salmon to the Columbia River. See letter from John Hairston, CEO, Bonneville Power Admin., Sept. 21, 2023, https://​www.bpa.gov/​-​/​media/​Aep/​enviro​nmen​tal-​init​iati​ves/​fish-​ wildl​ife/​20230​921-​p2ip-​custo​mer-​let​ter.pdf. 147. “A ‘barrier culvert’ is a culvert that inhibits or prevents fish passage.” United States v. Washington, 853 F.3d 946, 958 (9th Cir. 2017), aff ’d by equally divided vote, 138 S. Ct. 1832 (2018). 148. Id. at 966. 149. Id. at 960–​62. 150. Id. at 964–​66. For more information on this case, see Alan Stay, Habitat Protection and Native American Treaty Fishing in the Northwest, The Federal Lawyer (Oct./​ Nov. 2016), available at https://​www.fed​bar.org/​wp-​cont​ent/​uplo​ads/​2016/​10/​Ind​ ian-​Law-​pdf-​1.pdf. 151. See Sen. Maria Cantwell, WA Gets 39.8 Million to Remove Fish Barriers, Restore Salmon Habitat, available at https://​www.cantw​ell.sen​ate.gov/​news/​press-​relea​ses/​ wa-​gets-​398-​mill​ion-​to-​rem​ove-​fish-​barri​ers-​rest​ore-​sal​mon-​habi​tat.

304  The Rights of Indians and Tribes 152. See supra notes 23–​24, 38–​39 and accompanying text. 153. See cases cited supra note 81 and accompanying text, and Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034, 1043–​44 (9th Cir. 2023); Kendra v. United States, 145 F. Supp. 2d 1192, 1204, 1211 (D. Or. 2001). 154. See Midwater Trawlers Coop. v. Department of Commerce, 282 F.3d 710, 715 (9th Cir. 2002); Parravano v. Babbitt, 70 F.3d 539, 545 (9th Cir. 1995), cert. denied, 518 U.S. 1016 (1996). 155. See, e.g., United States v. Michigan, 653 F.2d 277 (6th Cir. 1981), and United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). 156. 25 C.F.R. pt. 249. 157. See Treaty of Neah Bay, 12 Stat. 939, 940 (1855). 158. Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157 (9th Cir. 2017), cert. denied, 139 S. Ct. 106 (2018). 159. See NOAA, Gray Whale Population Abundance, available at https://​www.fisher​ies. noaa.gov/​west-​coast/​scie​nce-​data/​gray-​whale-​pop​ulat​ion-​abunda​nce. 160. See Anderson v. Evans, 371 F.3d 475, 485 (9th Cir. 2004). 161. See Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000); Anderson v. Evans, 371 F.3d 475. 162. See J. Michael Kennedy, Tribal Group Kills Whale Off Washington, N.Y. Times (Sept. 11, 2007), available at https://​www.nyti​mes.com/​2007/​09/​11/​us/​11wh​ale.html. 163. See Makah Tribal Whale Hunt, Nat’l Marine Fisheries Serv., available at https://​ www.fisher​ies.noaa.gov/​west-​coast/​makah-​tri​bal-​whale-​hunt. 164. Jenna Kunze, Washington Tribe Waits to Resume Whaling, Native News Online (Oct. 19, 2021), available at https://​nativ​enew​sonl​ine.net/​curre​nts/​was​hing​ton-​ tribe-​waits-​to-​res​ume-​whal​ing. 165. Michael C. Blumm, Salmon, Climate Change, and the Future, 52 Envtl. L. Rev. 10980 (2022). 166. Id. at 10980–​82. 167. Id. at 10990.

XI Indian Water Rights Most of western United States is arid or semiarid, and water is already being used much faster than it is being replenished. The population of the West has been increasing, and its temperatures have been rising, creating an even greater demand for water. Yet, as the Supreme Court recently noted, the West has experienced since 2000 “one of the driest periods in the last 1,200 years. And the situation is expected to grow more severe in future years.”1 In southern California, so much water has been withdrawn since 1970 from underground aquifers that the land above them has collapsed nearly fifty feet.2 In 2021, in Oregon, a combination of increasing water usage and low rainfall caused federal officials who manage water flow to shut down an entire irrigation system, informing farmers that “the water that has flowed every year since 1907 will not be available.”3 The Supreme Court has recognized—​in what has become known as the “Winters doctrine”—​that Indian tribes have extensive water rights. Given the scarcity of water in the West, western tribes are justifiably concerned about preserving these rights.

What is the Winters doctrine?

The most important case in Indian water law is Winters v. United States,4 decided by the Supreme Court in 1908. The case involved the Fort Belknap Reservation in Montana, which was created in 1888 in an agreement between Congress and several Indian tribes, including the Gros Ventre and Assiniboine Tribes.5 The northern boundary of the reservation was identified as the middle of the Milk River, but the agreement made no mention of any right the tribes might have to take water from the river. The tribes, however, raised cattle and horses, and grew crops, all of which required water from the river. Several years after the reservation was created, white landowners began to settle upriver and diverted much of the river’s water to their farms and ranches. The United States filed a lawsuit against these landowners seeking to secure more water for the tribes. The non-​Indian landowners argued in response that because the agreement that created the reservation was silent The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0011

306  The Rights of Indians and Tribes as to water rights and the tribes had not registered any claims to water under state law, the water in the Milk River was available for their taking. The Supreme Court ruled in favor of the tribes, creating what has become known as the Winters doctrine. These tribal lands, the Court explained, “were arid, and, without irrigation, were practically valueless.”6 Congress has the authority to reserve water for federal lands, the Court held, and by implication Congress exercises this power every time it creates an Indian reservation. Consequently, the tribes had a right to a sufficient quantity of water to fulfill the purpose of the reservation. The Court ordered the white landowners to curtail their use of water.7 The Winters doctrine, also known as the “implied reservation of water” or the “reserved water rights” doctrine, has been consistently applied by the Supreme Court. In Arizona v. California (1963),8 the Court was asked to decide whether Indian tribes situated along the Colorado River were entitled to enough water to irrigate their entire reservations, even though most of that land had never been irrigated or developed by the tribes and the executive orders that created these reservations made no mention of water rights. Citing Winters, the Court confirmed that whenever an Indian reservation is created, there is an “implied reservation of water rights . . . necessary to make the reservation livable.”9 It is “impossible to believe,” the Court said, that Congress would create a reservation for Indians that would be uninhabitable due to inadequate water.10 Therefore, each tribe was entitled to enough water to “satisfy the future as well as the present needs of the Indian reservation,” which for an agrarian tribe is the amount of water needed “to irrigate all the practicably irrigable acreage on the reservation.”11 The Winters doctrine applies to all federal land areas, not just Indian reservations. In Cappaert v. United States (1976),12 the Supreme Court held that when Congress created Death Valley National Monument, water was necessarily reserved in sufficient quantity to accomplish the purpose of the monument, which included maintaining a lake that supported fish.13 The four basic principles of the Winters doctrine are as follows: (1) Congress has the right to reserve water for federal lands, including Indian reservations;14 (2) each time Congress sets aside land for a particular purpose, such as an army base, national park, or Indian reservation, it impliedly sets aside a sufficient quantity of water to fulfill that purpose;15 (3) Indian reservations are created by Congress with the intention of making them livable and productive, and, therefore, all water necessary to satisfy that

Indian Water Rights  307 goal is reserved for the tribe’s present and future needs;16 and (4) all Indian reservations are entitled to Winters rights, whether the reservation was created by a federal statute, treaty, agreement, or by the President through an executive order, and even if the implementing document says nothing about water rights.17 The Winters doctrine, the Supreme Court recently confirmed, is a “longstanding” principle recognizing that when the federal government creates a reservation for an Indian tribe, the government “implicitly reserves the [tribe’s] right to use needed water” from all sources “that arise on, border, cross, underlie, or are encompassed within the reservation . . . to the extent necessary to accomplish the purpose of the reservation.”18

What is the doctrine of prior appropriation and how does it differ from the Winters doctrine?

As white settlers moved beyond the Mississippi River during the nineteenth century and faced water shortages they had not experienced in the East, they quickly developed rules to govern the allocation of water. Without these rules, they would have engaged in endless warfare over this scarce resource. The rules they developed have been codified into law in every western state and are known as the “doctrine of prior appropriation.”19 This doctrine has three basic principles, with the first being “first in time, first in right.” That is, the first person to use water from a water source (the person with the most “senior” priority date) has a continuing right to use the same amount of water from the same source, and subsequent appropriators (“junior interests”) can only use what remains. Each junior interest can in turn take its full water entitlement based on the date of its initial diversion. Second, these water rights are property rights that exist separately from any rights in the land: they do not “run” with the land but can be retained, sold, or leased independently from any sale or lease of the land. Finally, appropriative rights are forfeited if unused for a significant period of time.20 In the West, then, one ranch can be lush green and an adjacent ranch dull brown due to the priority rights of those landowners to water. Indian water rights (Winters rights) are created and governed by federal law, whereas appropriative rights are created and governed by state law.21 Article VI of the U.S. Constitution provides that federal law is “the supreme law of the land.” As a result, Winters rights are superior to rights obtained under state law. Any rights to water a landowner acquired under the state’s doctrine of prior appropriation “are subordinate to the Tribes’ federal reserved water rights.”22

308  The Rights of Indians and Tribes Winters rights differ from rights under the doctrine of prior appropriation. For one thing, Indian water rights are reserved. Therefore, a tribe cannot lose its Winters rights through nonuse, and the amount of water a tribe is entitled to use is not determined by—​or limited to—​the tribe’s initial use. On the contrary, a tribe with Winters rights is entitled to take all the water it needs to fulfill the purpose for which its reservation was created, provided that at the time the reservation was created this amount of water had not been appropriated by a landowner with a senior priority date.23 Most Indian reservations in the West were created before non-​Indians acquired much or any land in the region, so tribes usually have senior rights to water. The priority of Indian water rights is never later than the date on which the reservation was created, even if the tribe has yet to use its full entitlement.24 In certain situations, a tribe’s priority date is earlier than when the reservation was created. For example, if a tribe has always caught fish from a particular lake and a treaty recognizes the tribe’s continuing right to do so, then the priority date for this use of water is “time immemorial.”25 In these situations, the tribe obviously has the most senior water interest. On some reservations, a tribe has two priority dates: one for a new use of water (the date the reservation was created) and one for a historical use (time immemorial).26 Tribes enjoy the best of both worlds when it comes to water rights. The appropriation doctrine protects tribes, but they are not bound by its limitations. That is, tribes are protected because they have senior rights that junior interests must respect. But at the same time, tribes are not limited to using only the water they initially used, nor are their water rights forfeited by nonuse.27 As a result of Winters, tribes can use whatever water is necessary to accomplish the reservation’s purpose, even if they never used as much water previously. Moreover, an Indian tribe, consistent with the doctrine of prior appropriation, may use 100 percent of its entitlement even if not a drop of water is left for a junior interest.28

Has the federal government done a good job in protecting tribal Winters rights?

No. Winters was decided in 1908. For the next fifty years, the federal government did almost nothing to protect tribal rights to water. To the contrary, the government allowed non-​Indian farmers and ranchers to take water, and permitted entire towns and cities to grow relying on water that likely was part of a nearby tribe’s entitlement. As the National Water Commission stated in a 1973 report to Congress:

Indian Water Rights  309 During most of this 50-​year period [following the Supreme Court’s 1908 decision in Winters], the United States was pursuing the policy of encouraging the settlement of the West and the creation of family-​sized farms on its arid lands. In retrospect, it can be seen that this policy was pursued with little or no regard for Indian water rights and the Winters doctrine. With the encouragement, or at least the cooperation, of the Secretary of the Interior—​the very office entrusted with protection of all Indian rights—​ many large irrigation projects were constructed on streams that flowed through or bordered Indian reservations, sometimes above and more often below the reservations. With few exceptions, the projects were planned and built by the federal government without any attempt to define, let alone protect, prior rights that Indian tribes might have had in the waters used for the projects. . . . In the history of the United States Government’s treatment of Indian tribes, its failure to protect Indian water rights for use on the reservations it set aside for them is one of the sorrier chapters.29

In 1859, for instance, Congress created a reservation for the Gila River Indian Community (GRIC) in Arizona. The GRIC, comprised of members of the Pima and Maricopa Indian Tribes, had lived along the Gila River for centuries. These tribes had created an elaborate system of irrigation that produced bountiful quantities of wheat, corn, squash, melons, beans, and other crops. Although the federal government included a portion of the Gila River within the reservation, the government permitted non-​Indians to settle upstream and allowed them to take nearly all the water from the river, causing mass starvation on the reservation. Only in later years did the government begin ensuring that the GRIC would receive a significant amount of water.30 Lawsuits filed in the 1930s regarding the GRIC’s entitlement to water continue to be litigated to this day.31 The Pyramid Lake Paiute Tribe (PLPT) has lived for centuries around Pyramid Lake in Nevada and the tribe obtains much of its food from fish in the lake. The lake is fed by the Truckee River. The federal government created a reservation for the PLPT in 1859 and placed the entire lake within the reservation. Later, however, the government issued permits that allowed non-​Indians to divert most of the upstream water from the Truckee, and the fish in the lake nearly became extinct. The situation improved only after the tribe filed suit against federal officials and obtained protective orders.32 Many tribes in the West suffered similar depletions of their water supplies. Only since the 1960s has the federal government become more aggressive in defending tribal water rights, but its efforts remain spotty at best.

310  The Rights of Indians and Tribes

Which water laws govern the use of water in the eastern states?

Water use in the eastern states is governed by the “riparian doctrine,” which is more egalitarian than the appropriation doctrine. Water is usually plentiful in the East, and the early landowners saw no need to develop a system to ration it. Under the riparian doctrine, every landowner has a right to use whatever water is available. Prior use does not create a vested right to continued use, and water rights are not lost by nonuse. In times of scarcity, the available water is distributed proportionally among all users. Tribes in the East presumably have Winters rights, but this issue has never been litigated because eastern reservations usually have an adequate supply of water.33

May a tribe exercising its Winters rights use subsurface as well as surface water?

Yes. The Supreme Court confirmed in Arizona v. Navajo Nation (2023) that a tribe is entitled to use surface water (such as rivers, streams, and lakes) as well as subsurface water (“groundwater”) to satisfy its Winters entitlement.34 In many areas of the West, it would be impossible these days for a tribe to obtain sufficient water without using groundwater.35 For instance, the region in southern California where the reservation of the Agua Caliente Band of Cahuilla Indians is located is so dry that 95 percent of the water used by people living in that region comes from an aquifer that underlies the entire region. If the Agua Caliente could only use surface water, its reservation would be uninhabitable. Therefore, the tribe has a Winters right to use subsurface water.36 Subsurface and surface water in a region are often linked hydrologically. In Cappaert, for instance, the Supreme Court ordered junior interests one hundred miles from Death Valley National Monument to curtail the taking of water from their wells after studies showed that the extraction of that groundwater was dangerously depleting the monument’s lake.37 For the same reason, non-​Indians using groundwater a considerable distance from an Indian reservation may have to limit their water usage if the aquifer they are tapping into contains a tribe’s Winters entitlement.

How much water is an Indian reservation entitled to use?

A tribe is entitled to use as much water as is necessary to fulfill the purpose of the reservation after senior claims, if any, have taken their entitlement. To quantify a tribe’s Winters rights, two questions must be answered: (1) what is

Indian Water Rights  311 the purpose of this reservation, and (2) what amount of water is needed to fulfill that purpose? Some general principles apply to all such determinations, but calculating a precise entitlement is a complex, fact-​intensive inquiry that must be made on a reservation-​by-​reservation basis.38 1. Purpose: The purpose of every Indian reservation is to serve as a permanent and productive home for the tribe. That purpose cannot be fulfilled, as the Supreme Court recognized in Winters, without a sufficient supply of water.39 Consistent with the doctrine of trust responsibility (discussed in Chapter III), we must presume that Congress created each Indian reservation “to achieve the twin goals of Indian self-​determination and economic self-​sufficiency.”40 The guarantee of a permanent home “is a broad one and must be liberally construed” when assessing the scope of a tribe’s Winters rights.41 In order to determine the purpose of a particular reservation, a court must consider the history of the tribe for which the reservation was created (including the tribe’s historical use of water) and the intentions of those who created the reservation.42 The intentions of the tribe are as relevant as the intentions of the government.43 The text of the treaty, however, must support the interpretation the tribe wants the treaty to have.44 Often, the primary intention of the government in creating a reservation was to transform a hunting and fishing tribe into an agrarian tribe. Congress intended for some tribes, though, to continue obtaining food by hunting and fishing. This explains why many treaties confer off-​reservation hunting and fishing rights, and why many reservations border a river or stream (or include lakes, rivers, or streams within the reservation) from which the tribe historically procured fish.45 When it is clear that Congress intended for a tribe to retain its hunting and fishing rights, the tribe’s Winters rights include access to enough water to keep its forests, streams, and lakes capable of supporting the game and fish it needs to prosper.46 For instance, when fish need a particular quantity of water to spawn and Congress intended a tribe to have access to those fish, the tribe is entitled to a sufficient amount of water (“instream flow”) to support the spawning process.47 Likewise, when Congress intended for a tribe to have access to fish that migrate, the state must maintain the culverts it owns underneath roadways in sufficient repair to permit that migration to occur.48 Most people out West in the 1800s lived on farms or ranches. Today, less than 5 percent do. With this change in lifestyle has come a change in water needs. Indian tribes, too, must be permitted to change their water use

312  The Rights of Indians and Tribes as circumstances change. “Permitting Indians to determine how to use reserved water is consistent with the general purpose for the creation of an Indian reservation—​providing a homeland for the survival and growth of the Indians and their way of life.”49 Similarly, a tribe may use technological advances not foreseen when the reservation was created, such as electric pumps to irrigate their lands, provided that the tribe uses no more water than its legal entitlement.50 2. Quantity: Once a reservation’s purpose is determined, the next step is to calculate the quantity of water necessary to accomplish that purpose. “Quantification of Indian reserved water rights can be a gargantuan task.”51 Scientific and engineering analyses must be applied to a host of factors that vary from tribe to tribe and water system to water system. The Supreme Court held in Arizona v. California that agrarian tribes, or those tribes that Congress wanted to become agrarian, are entitled to enough water to irrigate all the “practicably irrigable acreage” (PIA) on the reservation.52 Determining whether a particular area is practicably irrigable requires an analysis of such things as the area’s soil types; the cost of allowing a sufficient amount of water to flow to that area (or the cost of drilling wells); the climate; the geography and topography of the region; and the marketability of the crops that could be grown at that location.53 Quantification of the water needed for agrarian tribes often costs millions of dollars, which explains why many tribal claims have not been quantified.54 Quantification of the water needed to support those tribes that depend on hunting and fishing is equally complex, requiring an analysis of the fish and game that can prosper in that territory, the water needed to grow the food and maintain the habitats on which that wildlife depends, and the land usage in the surrounding vicinity that might affect the survivability of those resources.55

Is there an economic cap on the amount of water an Indian tribe may use?

Whether there is an economic cap on the amount of water an Indian tribe may use has yet to be conclusively determined. In Cappaert, the Supreme Court said that the Winters doctrine “reserves only that amount of water necessary to fulfill the purpose of the reservation, no more.”56 In an Indian fishing rights case, the Supreme Court held that “Indian treaty rights to a natural resource . . . secures so much as, but not more than, is necessary to provide the Indians with a livelihood—​that is to say, a moderate living.”57 Some courts have indicated that this “moderate living” standard applies in

Indian Water Rights  313 the context of Indian water rights, thereby allowing Indians to secure enough water to make their reservation self-​sustaining but not enough to make them wealthy.58 However, this “moderate living standard” was announced in a case interpreting a treaty that required the tribe to share wildlife with the rest of the citizenry. Neither Winters water rights nor water rights under the doctrine of prior appropriation historically encompass that same duty.59

Is water reserved for the tribe’s domestic and recreational needs?

In United States v. New Mexico (1978),60 the Supreme Court was asked to determine whether Congress, when it created the Rio Mimbres National Forest in New Mexico, reserved by implication enough water for recreational purposes, such as creating a lake for boating, in addition to preserving the forest. The Court reviewed the legislative history of the Rio Mimbres and found no such congressional intent. Therefore, the Winters rights of the Rio Mimbres, the Court said, did not include water for recreational needs. The Winters doctrine holds that Congress impliedly reserves enough water to fulfill each reservation’s purpose. The purpose of a national forest is to grow trees, while the purpose of an Indian reservation is to foster the growth of people, and people have recreational needs. Indeed, the Supreme Court noted in Winters that the Indians had a reserved right to water not only for agricultural purposes but also for “acts of civilization.”61 It is therefore generally recognized that Indian tribes have a right under the Winters doctrine to use water for such things as domestic and recreational purposes.62 Many reservations are not receiving anything close to the amount of water to which they are entitled. In addition, as a report issued by the U.S. Commission on Civil Rights in 2018 noted, water delivery systems on many reservations are poor and dysfunctional; Native Americans on reservations face a higher risk of receiving contaminated water than other groups. One reason tribes have difficulty attracting business and investment to Indian country is the lack of reliable and clean water. Serious problems exist both with the quantity and quality of water on many Indian reservations.63

Are Indian tribes using the full amount of their Winters rights? If not, who is using the remainder?

There may not be a single tribe that uses its entire Winters entitlement. Lack of money is the main reason: few tribes have the financial ability to irrigate all the usable acreage on, or develop all the minerals and other resources within,

314  The Rights of Indians and Tribes their reservation. “Most reservations have used only a fraction of their reserved water.”64 Given the scarcity of water in the West, whatever Winters water an Indian tribe is not using, someone else surely is. Most courts and commentators that have addressed the question have stated that Indian tribes should be permitted to sell or lease to outsiders the water rights they are not using.65 Before a tribe can sell or lease any of its entitlement, however, its Winters rights must be quantified to some extent; otherwise it cannot know how much water it is entitled to appropriate and, thus, how much it can sell or lease. Many tribal claims have not yet been quantified. From a tribe’s perspective, there are advantages and disadvantages to quantifying its water rights. The main advantages are that, once this is done, the tribe can begin using its water entitlement for its own needs or it can sell or lease those rights to the highest bidder. Also, it is more difficult for the federal government to overlook a tribe’s quantified rights when considering the creation of new federal projects. The main disadvantages are that, once the tribe’s entitlement is quantified, the tribe will be locked into that amount. If a change in circumstances should occur—​for instance, if the tribe decides to mine coal on its reservation or build a hotel and gaming casino—​the tribe may not have enough water to accommodate that change. Moreover, quantification is very expensive, and few tribes can afford the process. Likewise, quantification of Winters rights presents both advantages and disadvantages for junior interests. The main advantage is that quantification removes uncertainty regarding the extent of the tribe’s claim, allowing junior interests to plan for the future. Because tribal rights are senior to most non-​Indian claims, the undetermined and open-​ended nature of tribal claims threatens virtually all water users in the West.66 Tribal quantification, however, presents a significant risk for junior interests: the tribe may (and likely will) discover that it is not using its entire entitlement, and the tribe could then sell water that junior interests are currently taking for free. Some farmers and ranchers may be unable to afford all the water they are accustomed to using. Most observers agree on three things: (1) the advantages of quantification (for both tribes and junior interests) usually outweigh the disadvantages, (2) the best way to resolve competing claims to water is not through litigation, which is often expensive, time consuming, and rancorous, but rather through negotiation, and (3) the federal government should help quantify tribal rights (by providing both money and technical assistance) and should then assist the parties negotiate a fair resolution to competing water claims.67

Indian Water Rights  315 Some court battles over water have been waging for decades. Litigation in Nevada over Winters rights in the Humboldt River, as well as a separate lawsuit involving the Truckee and Carson Rivers, has been proceeding for a century.68 For eighty years, parties representing more than seventy-​seven thousand claimants and several Arizona Indian tribes have been in litigation to apportion water flowing in the Gila and Little Colorado Rivers, incurring millions of dollars in litigation costs in the process.69 Negotiation is usually quicker and less costly than litigation and typically produces more amicable—​and often creative—​results. As of 2024, more than thirty-​five water rights settlements had been finalized involving tribal claims.70 In 2008, the Soboba Band of Luiseño Indians in California settled its water claims through an act of Congress by agreeing to delay appropriating a portion of its water entitlement for fifty years in exchange for $29 million worth of development projects and funds from the federal and local governments. The Soboba Band also received a 138-​acre parcel of land for commercial development.71 Tribes in Arizona, Montana, and Oklahoma have settled long-​standing water claims.72 Congress passed legislation in 2010, promoted by the Obama administration, that appropriated more than $1 billion to assist the Crow Tribe in Montana, the White Mountain Apache Tribe in Arizona, and five tribes in New Mexico (the Taos, San Ildefonso, Nambe, Pojoaque, and Tesuque Pueblos), in settling contentious claims to water.73 The legislation secures these tribes a right to specific quantities of water which they can sell if they wish, enables them to develop safe and clean water supplies and construct irrigation systems, and removes the uncertainty their unquantified claims were causing neighboring towns, cities, and other non-​tribal water users. The Secretary of the Interior at the time, Sally Jewell, explained that these settlements “help fulfill the United States’ general trust responsibility to tribes . . . [and] promote cooperation in the management of water resources.”74 Recently, the city of Chandler, Arizona, wishing to ensure an adequate water supply and resolve tribal water claims, agreed to pay the Gila River Indian Community $43 million to use 5.5 million gallons a day of that tribe’s water entitlement for the next one hundred years.75 Currently, the federal government is seeking to broker a deal with the seven states that draw much of their water from the Colorado River and its tributaries: the “upper basin” states of Colorado, New Mexico, Utah, and Wyoming and the “lower basin” states of Arizona, California, and Nevada. Each state agrees that due to recent drought, increased demand, and climate change, all seven states must curtail water usage. Congress has appropriated

316  The Rights of Indians and Tribes hundreds of millions of dollars to help with water-​recycling projects, water conservation, repairs to water-​delivery systems, drought resiliency projects, and water storage, but water usage must be curtailed. This is one of the most pressing issues in the region, not only for these seven states but also for the Indian tribes that live within them.76

Under what circumstances may a tribe regulate the use of water by a non-​Indian, both on and off the reservation?

In Winters, a tribe was able to limit water use by off-​reservation non-​ Indians that impacted the tribe’s on-​reservation access to water. In Colville Confederated Tribes v. Walton,77 a federal appellate court upheld a tribe’s right to limit a non-​Indian’s on-​reservation water usage that impacted the tribe’s Winters rights. As these cases illustrate, non-​Indians, whether on the reservation or off, may not interfere with a tribe’s senior right to reserved water.78 A tribe need not have had its water rights quantified before it can prevent non-​Indians from engaging in an activity that clearly violates the tribe’s Winters rights. A tribe’s authority to regulate water usage by a non-​Indian on non-​Indian land within the reservation is not unlimited. Some courts have held, for instance, that a tribe may not regulate the use of “excess” (“surplus”) water by non-​Indians, that is, more water than the tribe needs to satisfy its Winters rights.79 Tribes have the right to protect the quality, as well as the quantity, of their water.80 In one case, farmers upstream from an Indian reservation were ordered to stop using certain chemicals on their properties that made the tribe’s water saline.81 The Clean Water Act (CWA),82 passed in 1972, establishes minimum federal standards to control the discharge of pollutants into navigable waters. The Act authorizes state and local governments83 and Indian tribes84 to enact more stringent standards than those required by federal authorities when activities regulated under the CWA would have a serious and substantial impact on that government. In City of Albuquerque v. Browner,85 a federal court upheld emission standards enacted by the Isleta Pueblo of New Mexico. As a result, the city of Albuquerque was required to stop releasing effluents into the Rio Grande River (from which the Isleta obtained its water), even though the effluents were acceptable under federal standards. In so holding, the court stated that the tribe’s restrictions were authorized by the CWA as well as “in accord with powers inherent in Indian tribal sovereignty.”86 In another case, a federal court held that an Indian tribe

Indian Water Rights  317 was authorized by the CWA to regulate the discharge of pollutants by non-​ Indians (on land they owned within the reservation) that degraded the tribe’s water supply.87 Thus, Winters rights include a right to unpolluted water, not just to any water.88 Control over both the quantity and quality of water is an essential element of tribal sovereignty.

Under what circumstances may state courts adjudicate Indian water claims?

Anyone who wishes to resolve competing claims in a water system in which the federal government has an interest must join the United States in the lawsuit. The United States, however, enjoys sovereign immunity from all lawsuits (for reasons explained in Chapter XVII) and cannot be sued without its express consent. In order to allow courts to resolve competing claims to water by joining the United States as a party, Congress passed a law in 1952 called the McCarran Amendment.89 This law consents to suit against the United States—​in federal and in state courts—​to adjudicate federally secured rights to water (including tribal Winters rights) in a river system or other water source. Suits filed under the McCarran Amendment must be “comprehensive” in scope, the Supreme Court has said, to avoid piecemeal litigation,90 but they need not seek to resolve claims involving every water source included in a Winters entitlement. For example, a lawsuit may seek to determine a tribe’s right to surface water without also seeking to determine its right to subsurface water.91 Winters rights are federal rights. Therefore, when a state court adjudicates these rights, it must do so consistent with federal law,92 exactly as federal courts must do when adjudicating these claims.93 The McCarran Amendment did not alter the nature or scope of Winters rights; it only authorized state and federal courts to adjudicate them. Either side may appeal a state or federal court determination of Winters rights to the U.S. Supreme Court.94 In general, federal courts have been more protective of Indian water rights than state courts.95 Indians and non-​Indians both know this. For this reason, Indians usually file their water claims in federal court, while non-​Indians usually file theirs in state court. A water rights claim filed in state court can be removed to a federal court in certain situations,96 but these cases tend to be so enormous in scope that federal courts try to avoid them. Even when Indians win the race to the courthouse and file in federal court, the case is likely to be dismissed if non-​Indians soon thereafter file a similar suit in state court, provided that the state court has the ability to adjudicate all the same

318  The Rights of Indians and Tribes claims brought in the federal action.97 In Colorado River Water Conservation District v. United States (1976),98 the Supreme Court held that a federal court may, and normally should, dismiss a lawsuit recently filed in federal court seeking to adjudicate Winters rights if a similar suit is filed soon thereafter in state court. The fact that state officials have openly opposed a tribe’s claim to water, moreover, cannot be used as an argument against having a state court hear that claim, unless the court itself has shown bias.99

Is a state allowed to regulate the use of water within an Indian reservation?

As explained in Chapter VII, state laws normally may not be enforced in Indian country without the consent of Congress. A strong argument can be made, therefore, that states have no power to regulate water usage on an Indian reservation, given that Congress has passed no law conferring that authority.100 (The McCarran Amendment, discussed previously, consents to state adjudication of federal water rights; it does not consent to state regulation of those rights.) Even those states that acquired jurisdiction in Indian country under Public Law 83-​280 have no better claim to regulate reservation water usage than other states do. Public Law 83-​280 contains a provision excluding state authority over tribal water.101 Despite this general principle, some courts have held or indicated that state officials (1) may regulate the water used by non-​Indians on their privately owned land within the reservation,102 (2) may regulate the water used by reservation Indians that is not part of their Winters entitlement,103 and (3) may enforce within the reservation the terms of a state court water decree issued pursuant to the McCarran Amendment.104

Are Indian water rights protected by the Just Compensation Clause?

The Just Compensation Clause of the Fifth Amendment to the U.S. Constitution requires the federal government to pay fair compensation whenever the government eliminates or diminishes vested property rights.105 This rule applies to Winters rights, which are vested property rights.106

May Indian allottees transfer their Winters rights to non-​Indians?

In 1887, Congress passed the General Allotment Act (GAA),107 which authorized the federal government to assign parcels (“allotments”) of tribal

Indian Water Rights  319 land to tribal members and to subsequently issue that member a deed to the parcel, granting full and complete ownership. Indian allottees who received these deeds could then sell their allotments to anyone at any time, and many sold them to non-​Indians. In 1939, the Supreme Court held that each Indian who obtains a deed to an allotment acquires a pro rata share of the tribe’s Winters rights.108 Citing that ruling, a federal appellate court decided that when Indians sell their allotments, they also can sell the portion of the tribe’s Winters rights belonging to that land, as this will enable the allottee to profit from the true value of the allotment, consistent with the purpose of the GAA.109 (Obviously, land with water rights is worth more than land without water rights.) The court went on to conclude, however, that the purchaser does not acquire the allottee’s full Winters rights. Under the Winters doctrine, water is reserved to meet present and future needs, and these rights are not lost by nonuse. But a non-​Indian purchaser, the court said, is entitled only to the water then being used by the allottee, plus any additional water that the purchaser puts to use “with reasonable diligence after the passage of title.”110 For the purchaser, it is “use it or lose it,”111 and all subsequent owners of the property are limited to the amount of water used by the initial purchaser.112 The issue of whether non-​Indians may acquire Winters rights is controversial, and ultimately the Supreme Court will likely address this question.

Does the federal government have an obligation to protect Indian water rights?

As discussed in Chapter III, the federal government has a general trust responsibility to protect tribal health and welfare, and enhance tribal self-​ government and economic prosperity. Indeed, to fulfill that responsibility, Congress has created scores of programs to assist tribes in a wide variety of areas. Given that water is essential to those goals, the trust responsibility includes the protection of Winters rights.113 In Arizona v. Navajo Nation (2023), the Navajo Nation sought a court order that would require the federal government to (1) determine how much water the tribe is entitled to use under the Winters doctrine, and (2) develop a plan to obtain that water. A 5–​4 Supreme Court held, however, that although the federal government has a trust duty to not interfere with an Indian tribe’s access to water, and the federal government may—​as it has done for many tribes—​assist a tribe protect its water rights, a tribe cannot compel the federal government to undertake particular

320  The Rights of Indians and Tribes affirmative steps to protect the tribe’s water rights unless “the text of a treaty, statute, or regulation imposed [those] duties on the United States.”114 Finding no such requirement in the two treaties that the United States signed with the Navajo Nation, the Court rejected the Navajo’s request.115 The Court’s decision essentially means that the Navajo Nation has water rights it likely will never be able to use because accessing that water—​either by drilling wells or running irrigation pipes and canals from streams or rivers—​is far too costly for the tribe to afford. But where enforceable duties do exist, federal agencies may be sued for violating their trust responsibilities if they fail to adequately protect tribal interests in water.116 In appropriate cases, tribes can recover damages against the federal government to compensate for past injuries to tribal water rights.117 Congress should honor the trust doctrine by passing laws that require federal agencies to help assist tribes to protect and utilize their Winters rights.118 Moreover, nothing prevents federal agencies from assisting tribes under general trust principles to utilize their Winters rights, as federal agencies have often done.119 When litigation is filed in a state or federal court involving the distribution of water from a source in which a tribe has Winters rights, the tribe cannot prevent the federal government from representing the tribe’s interests, even if the tribe doubts that the government will fully protect those rights.120 Nor can a tribe compel the United States to file suit on behalf of the tribe seeking to protect its Winters rights unless a treaty or statute, directly or by implication, imposes that duty.121 A tribe, however, as the beneficial owner of its Winters rights, is entitled to file suit on its own behalf.122 The federal government often has conflicts of interests when it comes to water. It is obligated, on one hand, to protect tribal rights. It is also obligated to maintain national parks and national forests, promote land development, and undertake reclamation projects, all of which require water. Government agencies, when faced with scarce water resources, frequently ignore Indian water rights in favor of other interests. As President Nixon acknowledged in 1970, “there is considerable evidence that the Indians are the losers when such situations arise.”123 The Supreme Court has held that the federal government does not necessarily violate a tribe’s rights simply by taking an action inconsistent with a tribe’s Winters rights. In Nevada v. United States (1983),124 the Court

Indian Water Rights  321 held that the government’s trust obligation to protect Indian water rights is equal to its obligation to protect various other federal water interests, and tribes cannot expect in those situations to receive sole or even paramount consideration.125 When these conflicts arise, it is in the tribe’s best interests to hire its own attorney and intervene in any pending lawsuit, given that, as the Supreme Court has stated, “any judgment against the United States, as trustee for the Indians, would ordinarily be binding on the Indians.”126 Indeed, a court decision may be binding on the tribe even if the federal government inadequately represents the tribe’s interests in the lawsuit.127 Given the importance of Winters rights, tribes must remain vigilant.

Notes 1. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1811 (2023). 2. See Mark F. Bernstein, In a Dry Country, Princeton Alumni Weekly (Mar. 16, 2016), 18–​23, available at https://​paw.prince​ton.edu/​iss​ues/​v116-​n09-​03162​016; see also https://​www.nbcn​ews.com/​storyl​ine/​cal​ifor​nia-​drou​ght/​calif​orni​ans-​pump-​ grou​ndwa​ter-​land-​sinks-​aquif​ers-​shr​ink-​n145​466; Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262, 1266 (9th Cir.), cert. denied, 138 S. Ct. 468 (2017). 3. Mike Baker, Amid Historic Drought, a New Water War in the West, N.Y. Times (June 1, 2021), available at https://​www.nyti​mes.com/​2021/​06/​01/​us/​klam​ath-​ore​gon-​water-​ drou​ght-​bundy.html#:~:text=​Hop​ing%20to%20li​mit%20the%20carn​age,are%20 alre​ady%20org​aniz​ing%20a%20res​ista​nce. See also Amelia Bates, The Colorado River Is Drying Up. Here’s How That Affects Indigenous Water Rights, GRIST (Oct. 6, 2021), available  at   https://​grist.org/​equ​ity/​color​ado-​river-​drou​ght-​ind​igen​ous-​water-​rig​hts/​. 4. 207 U.S. 564 (1908). 5. Winters v. United States, 207 U.S. 564, 567–​68 (1908). 6. Id., 207 U.S. at 576. 7. For a further discussion of Winters, see Robert T. Anderson, Indigenous Rights to Water & Environmental Protection, 53 Harv. C.R.-​C.L. L. Rev. 337, 347–​53 (2018); Joel West Williams, The Five Civilized Tribes’ Treaty Rights to Water Quality and Mechanisms of Enforcement, 25 N.Y.U. Envtl. L.J. 269, 282–​83 (2017); Robert T. Anderson, Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country, 34 Stan. Envtl. L.J. 195, 203–​14 (2015). 8. 373 U.S. 546 (1963). 9. Arizona v. California, 373 U.S. 546, 600 (1963). 10. Id. at 598–​99. See also In re CSRBA, 448 P.3d 322, 338 (Idaho 2019). 11. Arizona v. California, 373 U.S. at 600. 12. 426 U.S. 128 (1976).

322  The Rights of Indians and Tribes 13. Cappaert v. United States, 426 U.S. 128, 138–​39 (1976). See also Winters v. United States, 207 U.S. 564, 577 (1908); Hawkins v. Haaland, 991 F.3d 216, 225–​26 (D.C. Cir. 2021). 14. Winters, 207 U.S. 564; United States v. New Mexico, 438 U.S. 696, 698 (1978). 15. New Mexico, 438 U.S. at 700; Cappaert, 426 U.S. at 139; Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262, 1270 (9th Cir.), cert. denied, 138 S. Ct. 468 (2017). 16. Winters, 207 U.S. 564; Arizona v. California, 373 U.S. at 600. United States v. Orr Water Ditch Co., 600 F.3d 1152, 1159 (9th Cir. 2010). 17. Arizona v. California, 373 U.S. at 598; In re CSRBA, 448 P.3d 322, 336 (Idaho 2019). 18. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1811 (2023). 19. See Arizona v. California, 298 U.S. 558, 565–​66 (1936); Hawkins v. Haaland, 991 F.3d 216, 221 (D.C. Cir. 2021) (discussing the appropriation system in Oregon); Walker v. United States, 162 P.3d 882 (N.M. 2007) (New Mexico); United States v. Jesse, 744 P.2d 491 (Colo. 1987) (Colorado). 20. For additional information on the doctrine of prior appropriation, see Anderson, Water Rights, supra note 7, at 203–​05; Williams, supra note 7, at 280–​81; United States v. Oregon, 44 F.3d 758, 763–​64 (9th Cir. 1994), cert. denied, 516 U.S. 943 (1995); City of Pocatello v. State, 180 P.3d 1048, 1053–​54 (Idaho), cert denied, 555 U.S. 1068 (2008). 21. Cappaert v. United States, 426 U.S. 128, 145 (1976). See also Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). 22. Baley v. United States, 942 F.3d 1312, 1341 (Fed. Cir. 2019). See also Winters v. United States, 207 U.S. 564, 577 (1908); United States v. New Mexico, 438 U.S. 696, 702 (1978). 23. Cappaert, 426 U.S. at 139; Winters, 207 U.S. at 577; Jesse, 744 P.2d at 493–​94. 24. Arizona v. California, 373 U.S. 546, 600 (1963); Cappaert, 426 U.S. at 138–​39; United States v. Orr Water Ditch Co., 600 F.3d 1152, 1155 (9th Cir. 2010) (noting that the Pyramid Lake Paiute Tribe has the “most senior” claims to water on the Truckee River); In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 35 P.3d 68, 71–​73 (Ariz. 2001). 25. Hawkins v. Haaland, 991 F.3d 216, 221 (D.C. Cir. 2021); United States v. Adair, 723 F.2d 1394, 1412–​15 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984). See also United States v. Abouselman, 976 F.3d 1146 (10th Cir. 2020) (finding that a tribe had an aboriginal right to water); Baley, 942 F.3d at 1328, 1332; In re Yakima River Drainage Basin, 296 P.3d 835, 840 (Wash. 2013). 26. See Arizona v. California, 373 U.S. at 600; Adair, 723 F.2d at 1412–​15. See also Anderson, Water Rights, supra note 7, at 210–​11. 27. Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262, 1272 (9th Cir.), cert. denied, 138 S. Ct. 468 (2017). 28. Cappaert, 426 U.S. at 138–​39; Arizona v. California, 373 U.S. at 597; Joint Board of Control of the Flathead, Mission and Jocko Irrigation District v. United States, 832 F.2d 1127, 1132 (9th Cir. 1987), cert. denied, 486 U.S. 1007 (1988). 29. National Water Commission, Water Policies for the Future—​Final Report to the President and to the Congress of the United States 474–​75 (1973). See also Reid Peyton Chambers, Reflections on the Changes in Indian Law, Federal

Indian Water Rights  323 Indian Policies and Conditions on Indian Reservations Since the Late 1960s, 46 Ariz. St. L.J. 730, 763–​65 (2014). 30. See http://​www.gilari​ver.org/​index.php/​about/​hist​ory. 31. See Gila River Indian Community v. Cranford, 459 F. Supp. 3d 1246 (D. Ariz. 2020). See also Joseph M. Feller, The Adjudication that Ate Arizona Water Law, 49 Ariz. L. Rev. 405 (2007). 32. See Nevada v. United States, 463 U.S. 110, 119 n.7 (1983); United States v. Bell, 602 F.3d 1074, 1078 (9th Cir. 2010), as amended, 734 F.3d 1223 (9th Cir. 2013); Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1972). For nearly fifty years after Winters, the federal government actually “encouraged non-​Indian use of waters reserved by Indian tribes.” Anderson, Indigenous Rights, supra note 7, at 352. 33. See Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law § 19.02, 1206–​07 (2012 ed.). 34. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1811 (2023). See also Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262, 1272 (9th Cir.), cert. denied, 138 S. Ct. 468 (2017); In re CSRBA, 448 P.3d 322, 351 (Idaho 2019); In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 989 P.2d 739, 748 (Ariz. 1999). 35. See Agua Caliente Band of Cahuilla Indians, 849 F.3d at 1271 (“many locations throughout the western United States rely on groundwater as their only viable water source”); Gila River System and Source, 989 P.2d at 746. 36. Agua Caliente, 849 F.3d at 1266 n.2, 1270. 37. Cappaert v. United States, 426 U.S. 128, 142–​43 (1976). See also United States v. Orr Water Ditch Co., 600 F.3d 1152, 1158 (9th Cir. 2010) (finding a “reciprocal hydraulic connection between groundwater and surface water” in the Truckee River Basin affecting tribal water supplies); New Mexico v. Aamodt, 618 F. Supp. 993, 1010 (D.N.M. 1985). 38. United States v. New Mexico, 438 U.S. 696, 700 (1978). 39. Winters v. United States, 207 U.S. 564, 565 (1908). See also Arizona v. California, 373 U.S. 546, 599 (1963); In re CSRBA, 448 P.3d 322, 349 (Idaho 2019); Agua Caliente Band of Cahuilla Indians, 849 F.3d at 1270. 40. In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 35 P.3d 68, 76 (Ariz. 2001). See also State of Montana ex rel. Greely v. Confederated Salish & Kootenai Tribes, 712 P.2d 754, 767–​78 (1985). 41. Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981), cert. denied, 454 U.S. 1092 (1981). See also CSRBA, 448 P.3d at 340–​41. 42. See Agua Caliente Band of Cahuilla Indians, 849 F.3d 1262 at 1270; Walton, 647 F.2d 42. 43. See Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676 (1979) (noting that treaties should be interpreted as “they would naturally be understood by the Indians.”) See also Baley v. United States, 942 F.3d 1312, 1337–​38 (Fed. Cir. 2019); Agua Caliente, 849 F.3d at 1270; CSRBA, 448 P.3d at 335. 44. See Arizona v. Navajo Nation, 143 S. Ct. 1804, 1813–​14 (2023).

324  The Rights of Indians and Tribes 45. See San Luis & Delta-​Mendoza Water Authority, 848 F.3d 1216, 1221 (9th Cir. 2017). See also In re Yakima River Drainage Basin, 296 P.3d 835, 311 (Wash. 2013) (noting that the purpose of the Yakama Reservation is agriculture and fishing). 46. United States v. Washington, 853 F.3d 946, 965 (9th Cir. 2017), aff ’d by equally divided vote, 138 S. Ct. 1832 (2018); Hawkins v. Haaland, 991 F.3d 216, 226–​27 (D.C. Cir. 2021); United States v. Adair, 723 F.2d 1394, 1410–​11 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984) (finding a dual purpose of agriculture and fishing); Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1972). 47. See Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 763 F.2d 1032 (9th Cir.), cert. denied, 474 U.S. 1032 (1985). See also Baley, 942 F.3d at 1336–​ 38; Walton, 647 F.2d at 48–​49; In re Yakima River Drainage Basin, 296 P.3d 836, 853 (Wash. 2013). See also Anderson, Water Rights, supra note 7, at 203. 48. United States v. Washington, 853 F.3d 946 (9th Cir. 2017) (amended decision), aff ’d by equally divided Court, 138 S. Ct. 1832 (2018). 49. Walton, 647 F.2d at 49. See also Colville Confederated Tribes v. Walton, 752 F.2d 397, 405 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986); United States v. Orr Water Ditch Co., 391 F.3d 1007 (9th Cir. 2004), as amended, 400 F.3d 1117 (9th Cir. 2005) (authorizing a tribe to change its use of water from agriculture to fisheries). 50. Arizona v. California, 373 U.S. at 600–​01. This is generally true under both the Winters doctrine and the doctrine of prior appropriation. See Farmers Highline Canal & Reservoir Co. v. City of Golden, 272 P.2d 629 (Colo. 1954); Walton, 647 F.2d 42. 51. Anderson, Water Rights, supra note 7, at 233. 52. Arizona v. California, 373 U.S. 546, 600 (1963). See also United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984). Although many tribes were not traditionally agrarian, Congress at the time of treaty-​making wanted “to assimilate Indians into an agrarian economy and lifestyle,” and therefore it is appropriate to apply the PIA standard in determining a tribe’s right to water. See Anderson, Indigenous Rights, supra note 7, at 351. 53. See In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 35 P.3d 68, 77–​80 (Ariz. 2001); Colville Confederated Tribes v. Walton, 752 F.2d 397, 405 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986). 54. See Navajo Nation v. Dept. of Interior, 876 F.3d 1144, 1152, 1156 (9th Cir. 2017) (noting that the Navajo Nation has yet to have its water entitlement quantified). 55. United States v. Adair, 723 F.2d 1394, 1411 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984). See also Joint Board of Control of the Flathead, Mission and Jocko Irrigation District v. United States, 832 F.2d 1127, 1131–​32 (9th Cir. 1987), cert. denied, 486 U.S. 1007 (1988) (water for tribal fisheries); Arizona v. California, 373 U.S. at 599–​600 (water for agricultural purposes). For a discussion of the water necessary for adequate instream flow, see Dylan R. Hedden-​Nicely, The Contemporary Methodology for Claiming Instream Flow Water Rights to Support Aquatic Habitat, 50 Envtl. L. 257 (2020). 56. Cappaert v. United States, 426 U.S. 128, 141 (1976). 57. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 686 (1979).

Indian Water Rights  325 58. Gila River System and Source, 35 P.3d at 80–​81; Adair, 723 F.2d at 1414–​15; In re Application for Beneficial Water Use Permit, 923 P.2d. 1073, 1077 (Mont. 1996). 59. For a further discussion, see Hedden-​Nicely, The Contemporary Methodology, supra note 55, at 261–​62. 60. 438 U.S. 696 (1978). 61. Winters v. United States, 207 U.S. 564, 576 (1908). 62. See Arizona v. California, 373 U.S. 546, 600 (1963); Gila River, 35 P.3d at 80; United States v. Washington, 375 F. Supp. 2d 1050, 1064–​65 (W.D. Wash. 2005), vacated pursuant to settlement, 2007 WL 4190400 (W.D. Wash. 2007). 63. See Broken Promises: Continuing Federal Funding Shortfall for Native Americans, U.S. Commission on Civil Rights, 180–​84 (Dec. 2018), available at https://​www.usccr. gov/​pubs/​2018/​12-​20-​Bro​ken-​Promi​ses.pdf. 64. In re Application for Beneficial Water Use Permit, 923 P.2d. 1073, 1078 (Mont. 1996) (internal citation omitted). 65. See Colville Confederated Tribes v. Walton, 752 F.2d 397, 404 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986); Chris Seldin, Interstate Marketing of Indian Water Rights, 87 Cal. L. Rev. 1545, 1550–​51 (1999); David Getches, Management and Marketing of Indian Water, 58 U. Colo. L. Rev. 515, 541–​48 (1988). 66. Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981), cert. denied, 454 U.S. 1092 (1981). See also United States v. Jesse, 744 P.2d 491, 494 (Colo. 1987); New Mexico ex rel. State Engineer v. Commissioner of Public Lands, 200 P.3d 86, 94–​95 (N.M. App. 2008), cert. denied, 556 U.S. 1208 (2009). 67. For a further discussion of this subject, including efforts by the federal government to facilitate settlements, albeit at a slow pace, see Anderson, Indigenous Rights, supra note 7, at 353, 379. 68. See, respectively, In the Matter of the Determination of the Relative Rights of the Claimants and Appropriators of the Waters of the Humboldt River Stream System and Tributaries, 59 P.3d 1226, 1227 (Nev. 2002), and Nevada v. United States, 463 U.S. 110, 113 (1983). 69. See San Carlos Apache Tribe v. Bolton, 977 P.2d 790 (Ariz. 1999); United States v. Gila Valley Irrigation District, 920 F. Supp. 1444 (D. Ariz. 1996), aff ’d, 117 F.3d 425 (9th Cir. 1997). 70. A list is available at https://​fas.org/​sgp/​crs/​misc/​R44​148.pdf. In 2023, $580 million was set aside to facilitate these settlements. See USDOI, Bipartisan Infrastructure Law Supports $580 Million Investment to Fulfill Indian Water Rights Settlements, available at https://​www.doi.gov/​pressr​elea​ses/​bip​arti​san-​inf​rast​ruct​ure-​law-​suppo​rts-​580-​ mill​ion-​inv​estm​ent-​fulf​i ll-​ind​ian-​water. 71. See Pub. L. No. 110-​297 (July 31, 2008), 122 Stat. 2975. 72. See, e.g., In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 224 P.3d 178 (Ariz. 2010). For a discussion of one Montana tribe’s settlement, see Mark Armao, Montana Tribe Finalizes Historic $1.9 Billion Water Rights Settlement, GRIST (Sept. 24, 2021), available at https://​grist.org/​agri​cult​ure/​ind​igen​ ous-​water-​rig​hts/​.

326  The Rights of Indians and Tribes 73. Pub. L. No. 111-​291, § 614, 124 Stat. 3065 (2010). For a discussion of the Pueblo settlement, see New Mexico v. Carson, 908 F.3d 659 (10th Cir. 2018), and Richard W. Hughes, Pueblo Indian Water Rights: Charting the Unknown, 57 Nat. Resources J. 219 (2017). 74. Testimony of Sally Jewell before the U.S. Senate Comm. on Indian Affairs (May 15, 2013), available at https://​www.govi​nfo.gov/​cont​ent/​pkg/​CHRG-​113sh​rg85​178/​ html/​CHRG-​113sh​rg85​178.htm. 75. See Chris Coppola, Chandler Pays $43 Million for Tribe’s Water, The Republic (Aug. 9, 2016), available at https://​www.azcent​ral.com/​story/​news/​local/​chand​ler/​2016/​ 08/​09/​chand​ler-​pays-​43-​mill​ion-​some-​gila-​river-​tri​bes-​water/​88317​190/​. 76. See Juan Carlos Rodriguez, Calif., Ariz. and Nev. Agree to Slash Colo. River Usage, Law 360 (May 22, 2023), available at https://​www.law​360.com/​artic​les/​1680​054/​calif-​ ariz-​and-​nev-​agree-​to-​slash-​colo-​river-​usage; Christopher Flavelle, A Breakthrough Deal to Keep the Colorado River from Going Dry, for Now, N.Y. Times (May 22, 2023), available at https://​www.nyti​mes.com/​2023/​05/​22/​clim​ate/​color​ado-​river-​deal. html#:~:text=​Ariz​ona%2C%20Cal​ifor​nia%20and%20Nev​ada%20h​ave,for%20s​ ome%20of%20Amer​ica's%20m​ost. 77. 752 F.2d 397 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986). For a discussion of Walton, see Anderson, Water Rights, supra note 7, at 217–​21. 78. See Winters v. United States, 207 U.S. 564, 577 (1908); Baley v. United States, 942 F.3d 1312, 1337–​38 (Fed. Cir. 2019); Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981), cert. denied, 454 U.S. 1092 (1981), United States v. Alpine Land & Reservoir Co., 340 F.3d 903 (9th Cir. 2003) (off-​reservation water users may have to curtail their water usage to protect tribal fisheries); Kandra v. United States, 145 F. Supp. 2d 1192 (D. Ore. 2001) (similar). 79. United States v. Anderson, 736 F.2d 1358, 1365 (9th Cir. 1984); In re Yakima River Drainage Basin, 296 P.3d 299, 335–​44 (Wash. 2013). 80. See Anderson, Water Rights, supra note 7, at 214–​24; Williams, supra note 7, at 291–​ 96; James M. Grijalva, New Federal Initiatives for Indian Country Environmental Management, available at https://​law.und.edu/​_​fi​les/​docs/​ndlr/​pdf/​iss​ues/​97/​3/​ 97ndlr​343.pdf. 81. United States v. Gila Valley Irrigation District, 920 F. Supp. 1444 (D. Ariz. 1996), aff ’d, 117 F.3d 425 (9th Cir. 1997). 82. 33 U.S.C. §§ 1251–​1387. 83. 33 U.S.C. § 1342. 84. 33 U.S.C. § 1377(e). 85. 97 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997). 86. City of Albuquerque v. Browner, 97 F.3d 415, 423 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997). A dispute exists whether the CWA delegates powers to Indian tribes or whether tribal authority to regulate water quality is inherent. See Anderson, Water Rights, supra note 7, at 230–​32. 87. Montana v. U.S. E.P.A., 137 F.3d 1135 (9th Cir. 1998), cert. denied, 525 U.S. 921 (1998). See also Wisconsin v. U.S. E.P.A., 266 F.3d 741 (7th Cir. 2001), cert. denied, 535 U.S. 1121 (2002).

Indian Water Rights  327 88. See Anderson, Indigenous Rights, supra note 7, at 353; Williams, supra note 7, at 314–​18. 89. 43 U.S.C. § 666. 90. United States v. District Court for Eagle County, 401 U.S. 520, 523 (1971). 91. United States v. Oregon, 44 F.3d 758, 768–​69 (9th Cir. 1994), cert. denied, 516 U.S. 943 (1995). 92. Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571 (1983); Colorado River, 424 U.S. at 813, 820. See also Hawkins v. Haaland, 991 F.3d 216, 231 (D.C. Cir. 2021); In re Application for Beneficial Water Use Permit, 923 P.2d 1073, 1078 (Mont. 1996). 93. See Cappaert v. United States, 426 U.S. 128, 145 (1976). 94. See San Carlos, 463 U.S. at 551, 571. 95. See Anderson, Indigenous Rights, supra note 7, at 350 (“state courts have traditionally been hostile forums for water adjudications involving tribal rights”). 96. The removal of cases from state court to federal court is governed by 28 U.S.C. § 1441(a). 97. See Colorado River, 424 U.S. 800; San Carlos, 463 U.S. 545; United States v. Bluewater-​ Toltec Irrigation District, 580 F. Supp. 1434 (D.N.M. 1984). 98. 424 U.S. 800 (1976). 99. United States v. Oregon, 44 F.3d 758, 772 (9th Cir. 1994), cert. denied, 516 U.S. 943 (1995). 100. See generally Oneida Tribe of Indians v. Village of Hobart, 732 F.3d 837 (7th Cir. 2013) (state cannot regulate, including tax, tribal water usage). 101. 28 U.S.C. § 1360(b). State jurisdiction under P.L. 280 is discussed in Chapter VII, notes 21–​51 and accompanying text. 102. United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984). See also Te-​ Moak v. Confederated Tribes and Bands of Yakima Indian Nation, 655 F. Supp. 557 (E.D. Wash. 1985), aff ’d, 812 F.2d 714 (9th Cir.), cert. denied, 484 U.S. 8233 (1987); Ute Indian Tribe of the Uintah and Ouray Reservation v. McKee, 32 F.4th 1003 (10th Cir. 2022). 103. See In re General Adjudication of All Rights to the Use of Water in the Big Horn River System, 753 P.2d 76 (Wyo. 1988), aff ’d by equally divided court, 492 U.S. 406 (1989), overruled in part on other grounds, Vaughn v. State, 962 P.2d 149 (Wyo. 1998). 104. See In re Humboldt River Stream System, 59 P.3d 1226, 1227 (Nev. 2002); State Engineer v. South Fork Band of the Te-​Moak Tribe of Western Shoshone Indians, 339 F.3d 804 (9th Cir. 2003) (holding that a proceeding to enforce a state court decree should be pursued in state court, not federal, consistent with the McCarran Amendment). 105. This subject is discussed in Chapter V, notes 19–​23 and accompanying text. 106. See Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 560, 567 (1983). 107. 25 U.S.C. §§ 331 et seq. 108. United States v. Powers, 305 U.S. 527 (1939). See also Colville Confederated Tribes v. Walton, 752 F.2d 397, 405 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986); In re Scott Ranch, LLC, 402 P.3d 1207, 1211 (Mont. 2017).

328  The Rights of Indians and Tribes 109. Confederated Tribes v. Walton, 647 F.2d 42, 50 (9th Cir. 1981), cert. denied, 454 U.S. 1092 (1981). Accord: In re General Adjudication of All Rights to the Use of Water in the Big Horn River System, 48 P.3d 1040, 1042 (Wyo. 2002), aff ’d by equally divided court, 492 U.S. 406 (1989), overruled in part on other grounds, Vaughn v. State, 962 P.2d 149 (Wyo. 1998). 110. Walton, 647 F.2d at 51. One court set a presumptive deadline of fifteen years. See United States v. Washington, 375 F. Supp. 2d 1050, 1073 (W.D. Wash. 2005), vacated pursuant to settlement, 2007 WL 4190400 (9th Cir. 2007). 111. United States v. Anderson, 736 F.2d 1358, 1362 (9th Cir. 1984). 112. Walton, 647 F.2d at 51; Walton, 752 F.2d at 422. 113. See, e.g., San Luis & Delta-​Mendoza Water Authority, 848 F.3d 1216, 1231–​32 (9th Cir. 2017) (citing the trust doctrine as a reason for permitting the federal government to release extra water to assist spawning fish). 114. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1813 (2023). 115. Id. at 1812–​13. 116. See Klamath Water Users Protective Association v. Patterson, 204 F.3d 1206, 1213–​ 14 (9th Cir. 1999), cert. denied, 531 U.S. 812 (2000); Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1972); United States v. Gila Valley Irrigation District, 920 F. Supp. 1444 (D. Ariz. 1996), aff ’d, 117 F.3d 425 (9th Cir. 1997); Anderson, Indigenous Rights, supra note 7, at 351. 117. See Northern Paiute Nation v. United States, 9 Cl. Ct. 639 (1986). See generally United States v. Mitchell, 463 U.S. 206 (1983). 118. Arizona v. Navajo Nation, 143 S. Ct. at 1810. 119. See id. at 1811–​12 (noting that federal agencies had already spent “billions of dollars” assisting the Navajo Nation utilize its water rights). 120. See White Mountain Apache Tribe v. Hodel, 784 F.2d 921. 121. Hawkins v. Haaland, 991 F.3d 216, 226–​27 (D.C. Cir. 2021); Shoshone-​Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (9th Cir. 1995). 122. See Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983); Colville Confederated Tribes v. Walton, 752 F.2d 397, 405 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986); Pyramid Lake, 354 F. Supp. 252. 123. H.R. Doc. No. 363, 91st Cong., 2d Sess., 10, reprinted in 116 Cong. Rec. 23258, 23261 (1970). 124. 463 U.S. 110 (1983). 125. Nevada v. United States, 463 U.S. 110, 128 (1983). See also Arizona v. California, 373 U.S. 546, 627–​28 (1963). 126. San Carlos, 463 U.S. at 566 n.17. See also White Mountain Apache Tribe v. Hodel, 784 F.2d 921, 925 (9th Cir. 1986), cert. denied, 479 U.S. 1006 (1987). 127. Nevada, 463 U.S. 110; see also Arizona v. California, 460 U.S. 605, 620 (1983); United States v. Alpine Land & Reservoir Co., 887 F.2d 207 (9th Cir. 1989); In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 127 P.3d 882, 897 (Ariz. 2006), cert. denied, 549 U.S. 1156 (2008).

XII Civil Rights of Indians What is a civil right?

A civil right is a freedom or liberty that belongs to an individual. Civil rights protect individuals from government abuse by placing limits on government action. The U.S. Constitution guarantees many civil rights, most of which are contained in the Bill of Rights, the first ten amendments to the Constitution. The Bill of Rights guarantees, among other things, freedom of speech, press, and religion; protection against cruel and unusual punishment; the right to counsel in criminal prosecutions; the right to a trial by jury; protection against self-​incrimination; the right to due process of law; and protection against unreasonable search and seizure. Many other civil rights have been created by Congress through the passage of laws, particularly during the past seventy years. Among these are the right to equal treatment in employment, housing, and the ability to access public accommodations regardless of one’s race, religion, gender, or national origin.

Do Indians have the same civil rights as other U.S. citizens?

Yes. Indians born in this country are citizens of the United States1 and of the state in which they live.2 Indians have the same civil rights with respect to the federal, state, and local governments as all other citizens.3 It would take many pages to discuss all of the civil rights that Indians and other citizens possess. This chapter focuses instead on those civil rights that are particularly important to Indians in their dealings with local, state, and federal governments. (Chapter XIII discusses the civil rights of Indians in their dealings with tribal governments.)

The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0012

330  The Rights of Indians and Tribes

A.  FREEDOM OF RELIGION Which provisions of the U.S. Constitution guarantee freedom of religion?

The Constitution contains two “religion” clauses, both of which are found in the First Amendment: the Establishment Clause and the Free Exercise Clause. They read as follows: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These clauses, originally directed only at Congress, were made applicable to state and local governments in 1868 when the Fourteenth Amendment to the Constitution was ratified.4

What rights are conferred by the Establishment and Free Exercise Clauses?

Many Europeans who first settled in what is now the United States were driven from their homelands because of their religious beliefs and came here to find freedom of religion. The Establishment and Free Exercise Clauses were designed to make their dream a reality and ensure that the religious strife present in certain European countries would not occur here.5 The Establishment Clause guarantees that religion and government will remain separate (the “separation of church and state”). The government must remain neutral in religious matters, neither promoting religion nor inhibiting the private exercise of it. Government agencies may not sponsor religious activities or engage in them. This protects the government from becoming a tool for religious advocacy and it protects religion from becoming a target of government interference and control; neither one controls the other.6 The Free Exercise Clause guarantees freedom of worship. People in this country remain free to believe in any religion they choose, or no religion at all, and to follow their own conscience in matters of religion.7 Taken together, the Free Exercise and Establishment Clauses ensure that religion will be left to individual and family choice (Free Exercise) because the government cannot meddle in religious affairs or take sides on religious matters (Establishment).

How do these clauses protect Indians?

The Free Exercise Clause—​with its guarantee of religious freedom—​is especially important to Indians due to the central role that religion plays in Indian life. In few societies is the role of religion as important as in Indian societies.8

Civil Rights of Indians  331 Viewed from the traditional Indian perspective, religion and life are one and the same. “Indian religion and culture are functionally inseparable, so that one cannot meaningfully discuss Indian religion apart from Indian life in general.”9 As Hopi clan leaders explained in 1951, “Our land, our religion, and our life are one.”10 Until 1986, courts interpreted the Free Exercise Clause as forbidding the government from engaging in any activity that infringed on religion unless the government could prove that the activity served a compelling governmental interest and that no less injurious alternative was available—​the compelling interest test.11 The government had to prove that this particular encroachment on religious freedom was necessary to accomplish a compelling interest and that nothing short of this measure would suffice.12 Beginning in 1986, the Supreme Court decided a series of four cases (three of which involved Indians and a fourth which involved Muslims) that diluted the Free Exercise Clause. In those cases, the Court held that uniformly applied, religiously “neutral” laws need only pass the rational basis test—​not the compelling interest test—​to be valid under the Free Exercise Clause. Under the rational basis test, a government activity is valid if it has a rational basis, that is, any legitimate purpose, and the government need not show that some compelling interest requires this restriction on religious freedom. The first of these four cases, Bowen v. Roy (1986),13 involved a federal statute that requires persons applying for certain welfare benefits, including food stamps, to provide a Social Security number to qualify. The father of an Indian child sought a religious exemption from this requirement, claiming that assigning his child a number would violate the father’s religious beliefs and thus violate his rights under the Free Exercise Clause. The Supreme Court held that the law was religiously “neutral”—​it required all applicants to provide a Social Security number—​and therefore the government need only satisfy the rational basis test. Applying that test, the Court upheld the law because requiring applicants to provide their unique Social Security number helps with identification and protects against fraud. The government, therefore, was entitled to enforce this neutral rule on all persons, despite its harmful effect on certain faiths. In the second case, O’Lone v. Estate of Shabazz (1987),14 Muslim prisoners challenged a prison regulation that compelled them to work during a time in the afternoon when their faith required them to pray. The Supreme Court found that the prison’s regulation was religion-​neutral because all prisoners were required to work during those hours and, therefore, the prison’s

332  The Rights of Indians and Tribes regulation need only pass the rational basis test. The Court then found that the regulation had a rational basis, because it protected prison officials from having to make different work schedules based on the religious requirements of individual prisoners. Therefore, the Court concluded, the regulation did not violate the Free Exercise Clause, even if it prevented some prisoners from engaging in a religious practice they considered mandatory. In Lyng v. Northwest Indian Cemetery Protective Association (1988),15 the Yurok, Karuk, and Tolowa Indian tribes in northern California sought to prevent the U.S. Forest Service from following through with plans to build a logging road in a national forest through territory they considered sacred. Agency officials acknowledged in a report that the road “could have devastating effects on traditional Indian religious practices.”16 However, building the road so that it avoided the sacred area would cost more money, and the Forest Service decided to desecrate the site rather than spend the extra money. The Supreme Court acknowledged that completion of the road could “virtually destroy . . . the Indians’ ability to practice their religion” and that this area was central and indispensable to their beliefs.17 Nevertheless, the Court upheld the agency’s decision, finding that it was rational for the government to choose the least expensive option in building a road through its own land.18 The fourth case, Employment Division v. Smith (1990),19 was filed by two Indians in Oregon who had been fired from their jobs for ingesting peyote in a religious ceremony during their off-​duty hours. After their firing, the men applied for unemployment compensation benefits. Their application was denied, however, on the basis that peyote is a controlled substance under Oregon law and, therefore, their employer had valid grounds for firing them. The Indians argued that the Free Exercise Clause protected their right to use peyote as a sacrament during their off-​duty hours and they could not be punished for engaging in a religious exercise. The Supreme Court began its analysis by reiterating the principle that “generally applicable, religion-​ neutral laws” need only be reasonable to be valid even if they “have the effect of burdening a particular religious practice.”20 The Court found that the ban on peyote was intended to stop the use of a hallucinogenic drug, a legitimate government interest. Therefore, this religion-​neutral law could be applied in this context, the Court said, and it upheld the denial of unemployment benefits. While the switch from the compelling interest test to the rational basis test places all religions at risk, minority religions are most at risk. This is because

Civil Rights of Indians  333 government officials are unlikely to take an action harmful to majority religions. For instance, officials in New York City would never tear down St. Patrick’s Cathedral to build a road, even if that were the cheapest route, and yet government officials in Lyng chose to build a road through a site no less sacred to Indian tribes than St. Patrick’s Cathedral is to Catholics. In O’Lone, prison officials enacted a “neutral” rule requiring that all prisoners work weekday afternoons. It would be equally as “neutral” to require that all prisoners work Sunday mornings, but no such rule will ever be enacted because that is the time when Christians go to church. Thus, many “neutral” decisions are not neutral at all. The new standard in Free Exercise cases has resulted in religious adherents losing lawsuits they once would win. To illustrate, in the years prior to these four Supreme Court cases, Indian prisoners who wore long hair for religious reasons won several cases challenging prison rules that banned prisoners from wearing long hair; the prison officials in those cases were unable to show a compelling need to enforce their policy on those religious adherents.21 However, when federal courts began using the rational basis test, Indians lost most of these same types of challenges,22 although they did win a few of them.23 Recently, a federal court in Oklahoma allowed a public high school to prevent a Native student from placing an eagle feather on her graduation cap, stating that because the school bans all types of regalia other than school-​issued sashes and awards, this “neutral” ban was acceptable.24 Students, however, can still win these cases if the school permits other types of messages or non-​school issued regalia to be worn on graduation caps or gowns but forbids religious regalia.25 The federal government has long tried to suppress Indian religion, and many people view the Supreme Court’s decisions in Bowen, Lyng, and Employment Division as a continuation of that policy.26 For nearly one hundred fifty years after the United States became a nation, federal officials both encouraged and financed missionaries whose goal was to convert reservation Indians to Christianity. During the late 1800s, federal officials prohibited some tribes from performing traditional religious ceremonies.27 Indian religion, which is not based on a text such as a bible, is fundamentally different from Christianity. There continues to be great insensitivity toward, and misunderstanding of, Indian religion, making it difficult for Indians to protect their religious practices and their sacred places from government interference.28 As one federal judge candidly acknowledged, the Judeo-​Christian majority in the United States “has not treated Indian religions with full

334  The Rights of Indians and Tribes seriousness,” and they tend to view their beliefs as “faith” while regarding the beliefs of other religions as “superstition.”29

How do the American Indian Religious Freedom Act of 1978, the Religious Freedom Restoration Act of 1992, and the Religious Land Use and Institutionalized Persons Act of 2000 protect Indians?

In 1978, the U.S. House of Representatives issued a report which concluded that Indians had often been prevented from accessing their sacred places and from performing worship services in their traditional manner due to unnecessary governmental interference. The report recommended that Congress enact remedial legislation.30 Congress responded that same year by passing a joint resolution called the American Indian Religious Freedom Act (AIRFA).31 Resolutions, however, do not have the same status as a federal law, and they contain no penalty provision that can be imposed on violators. Still, AIRFA declares a policy that Congress has pledged itself to pursue: [H]enceforth it shall be the policy of the United States to protect and preserve for Native Americans their inherent right of freedom of belief, expression, and exercise of traditional religions of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.

Unfortunately, AIRFA has not been very effective. In Lyng, the Supreme Court stated that because AIRFA was only a resolution, it has “no teeth,” and the Court essentially ignored it.32 Other courts have said that AIRFA only requires public officials to “consider” Indian interests and not necessarily to act in accordance with them.33 In 1993, Congress passed the Religious Freedom Restoration Act (RFRA),34 a law supported by numerous religious groups concerned about the Supreme Court’s recent Free Exercise decisions. Designed to legislatively overrule the Bowen–​O’Lone–​Lyng–​Employment Division line of cases, RFRA requires federal courts to use the compelling interest test (and not the rational basis test) in deciding all cases in which a citizen demonstrates that a government action, whether federal, state, or local, is substantially burdening a religious practice.35 RFRA is intended to broadly protect religious liberty.36

Civil Rights of Indians  335 Four years after RFRA was passed, however, the Supreme Court held in City of Boerne v. Flores (1997)37 that the Tenth Amendment to the Constitution, which limits Congress from regulating the states in certain circumstances, prevents Congress from imposing RFRA on state and local governments. Several years later in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006),38 the Court held that Congress did have the authority to impose RFRA on the federal government. Today, then, federal courts deciding religious challenges to state and local activity must use the rational basis test (under the Free Exercise Clause) but will use the compelling interest test (under RFRA) in deciding religious challenges to federal activity. RFRA has helped Indians, for instance, to take and possess eagle feathers and talons for religious purposes despite restrictions imposed by the U.S. Fish and Wildlife Service, because the government could not show a compelling reason for those restrictions.39 Some courts, however, have given RFRA a narrow application, particularly in cases involving Indian religious sites located on federal land.40 Following City of Boerne, which thwarted Congress’s attempt to restore the compelling interest test in challenging state and local actions, Congress enacted in 2000 the Religious Land Use and Institutionalized Persons Act (RLUIPA).41 To avoid a Tenth Amendment challenge, Congress narrowed the scope of RLUIPA so that it applies only to situations in which the activity being challenged (1) substantially burdens religious exercises performed by institutionalized persons, such as prisoners, in facilities receiving federal funds, or (2) affects the use of land that is religiously significant to a particular group, whether federal funds are involved or not. In 2005, the Supreme Court in Cutter v. Wilkinson42 upheld the validity of RLUIPA, stating that Congress has the authority under the Spending and Commerce Clauses of the Constitution to impose this restriction on state and local governments in those two contexts. RFRA and RLUIPA have assisted religious adherents protect certain religious practices from government interference.43 Twice now, for instance, the Supreme Court has decided a RLUIPA case in favor of a prisoner, rejecting arguments made by prison officials that the activity at issue posed a substantial threat to prison security that could not be satisfied by less restrictive means.44 Similarly, Indian religious practitioners in prison have won victories under RFRA and RLUIPA, including cases involving sweat lodges, long hair, medicine pouches, and access to tobacco and other products to smoke

336  The Rights of Indians and Tribes during religious ceremonies.45 Moreover, as a result of these laws, many prison administrators have tried harder to accommodate the religious needs of Indian practitioners.46 And courts have held that a prisoner can recover monetary damages from prison officials when they violated the prisoner’s clearly established rights.47 Still, the government prevails in many prison cases.48 Prison officials have shown to the satisfaction of courts that certain religious activities, such as the use of a sweat lodge49 or the wearing of long hair by prisoners,50 would substantially jeopardize the security of that prison. To make an RFRA or RLUIPA claim, the claimant must show that the activity in question is a religious exercise and the government is substantially burdening that activity, such as by preventing the claimant from engaging in the activity or by threatening punishment for doing so.51 If the claimant makes that showing, the burden shifts to the defendant to prove that the restriction serves a compelling government interest and nothing less onerous will suffice.52 As RFRA and RLUIPA illustrate, Congress is permitted to pass laws creating rights not found in the Constitution. Many Indians and other persons concerned about religious practices have successfully lobbied Congress to pass protective legislation. For instance, Congress has passed a law protecting the sacramental use of peyote by a member of a federally recognized Indian tribe.53 The federal law prohibits the states from making it a crime for an Indian to use, possess, or transport peyote “for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion.”54 The Bald and Golden Eagle Protection Act generally prohibits the taking of eagles and the possession of eagle parts, including feathers and talons, but the Act allows the Secretary of the Interior to permit members of federally recognized Indian tribes to possess eagles and eagle parts for use in their religious ceremonies.55 The implementing federal agency, the U.S. Fish and Wildlife Service, has created an administrative process by which Indians may obtain a permit to acquire eagles and eagle parts.56 Like Congress, some states have decided to protect religious exercises beyond what the Constitution provides.57 Some state laws protect the sacramental use of peyote.58 A New Mexico law allows state prisoners to keep personal medicine pouches and to have access to a sweat lodge.59 A law in Texas containing language similar to RFRA was recently interpreted by a federal court to protect the right of an Indian student in public school to wear

Civil Rights of Indians  337 his hair in traditional braids as a form of religious expression, despite the school’s ban on boys having long hair.60

How can Indians protect their sacred places?

Many religions have sacred locations—​holy places—​where religious events occurred, spiritual beings reside, or spiritual products are located. Christians hold sacred the site where Jesus was born. Muslims by the millions make the pilgrimage to Mecca each year, the holiest site in Islam. Jews revere the Western Wall and Mount Sinai, and millions of Hindus make annual visits to the holy city of Varanasi. The governments where these places are located are careful to protect them. Sacred places are especially important in Native American religion. Indeed, no religion “is embedded in place to the extent that tribal religions are.”61 A “common feature” of Native American peoples “is attachment to land in a spiritual sense. . . . This relationship to land is described as being of a sacred nature, characterized by mutual respect and need, rights and obligations.”62 Holy places are central to the existence of Indians as a people. “Many Indian tribes, for example, identify their origin as a distinct people with a particular geographic site.”63 There has been a heartless destruction of Indian sacred sites throughout the United States.64 Often, in fact, the federal government knowingly desecrates these sites, as Lyng illustrates.65 Federal officials have approved the construction of dams that they knew would flood sacred Indian land,66 prevented Indians from holding religious ceremonies at sacred places located on federal land,67 allowed a ski area to be built on federal land sacred to an Indian tribe,68 and then, some years later, allowed the owner of that ski area to use treated sewage water to make artificial snow to cover the ski slopes, despite the tribe’s strong opposition.69 In 2020, President Trump directed that a tribal sacred site in Arizona be blasted in order to build a wall between the United States and Mexico, ignoring tribal pleas to spare the site.70 A number of laws and regulations authorize federal agencies to assist tribes protect their sacred places, and several agencies have used them for that purpose.71 For instance, the National Historic Preservation Act of 1966 (NHPA)72 mandates that federal agencies considering projects on federal lands must take into account any adverse effects those projects might have on places that are culturally or historically significant. Congress amended NHPA in 1992 to include Indian sacred sites within its coverage and to require that these agencies consult with any tribe whose sacred site might be

338  The Rights of Indians and Tribes adversely impacted by agency action.73 Citing the NHPA, federal agencies have prohibited mining, oil and gas exploration, and technical climbing on sites that have cultural or historic significance to Indian tribes.74 Similarly, a law passed in 2008 allows the U.S. Forest Service (USFS) to temporarily close areas of a national forest from public access to allow Indians to conduct traditional ceremonies at that location, and it also allows Indians to take forest products from the site free of charge for traditional or cultural purposes.75 USFS is a subagency within the U.S. Department of Agriculture (USDA). In 2012, USDA issued a 134-​page report designed to better protect Native American sacred places when actions are undertaken by USDA.76 In 1996, President Clinton issued an executive order requiring federal agencies to avoid causing unnecessary harm to Indian sacred sites and to accommodate, whenever possible, requests by Indian religious practitioners to access sacred sites on federal land.77 Consistent with that order, the National Park Service issued a plan to limit access by climbers and tourists to Devils Tower in Wyoming (located on federal land administered by the National Park Service) during the month of June, when Indians hold religious ceremonies there.78 An area of particular religious significance to a number of tribes in the Southwest is Bears Ears in southern Utah. President Obama designated the area a national monument, but soon after becoming President, Donald Trump decreased the size of the monument by 85 percent and opened that land to oil drilling. In October 2021, President Biden returned that land to the monument.79 Controversy also surrounds Oak Flat in Arizona, a sacred place to several Arizona tribes that was opened by the federal government to mining. A lawsuit is pending to reverse the government’s decision.80 In March 2023, President Biden created the Avi Kwa Ame National Monument in southern Nevada, consisting of nearly 450,000 acres of land, after a dozen Indian tribes that consider the area sacred (as well as environmental groups interested in preserving its pristine quality) requested the designation.81 The U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP), discussed later in this chapter, commits the international community to the protection of sacred sites of Indigenous peoples. Article 12, Section 1 of the UNDRIP states that Indigenous peoples have “the right to maintain, protect, and have access in privacy to their religious and cultural sites.”82 The National Congress of American Indians (NCAI), the largest national organization of American Indian and Alaska Native tribal governments, has called for the passage of legislation by Congress “to provide a right of action to protect

Civil Rights of Indians  339 Native American sacred places,” thereby allowing tribes to protect the physical and spiritual integrity of these locations.83 Walter Echo-​Hawk, a leading Indian activist, noted that the ruling in Lyng “leaves American holy places at the complete mercy of the federal government and lets agencies destroy them with constitutional impunity,” and he urges Congress to provide “enforceable legal protection for this universal form of worship.”84 In the meantime, a number of tribes have begun purchasing sacred places that have fallen into private hands. Several Sioux tribes raised $9 million to purchase 2,022 acres of land in the Black Hills of South Dakota, part of the sacred lands that were stripped from them in violation of their treaty rights, and in 2017, that land was placed into trust status.85

B.  INDIANS AS STATE CITIZENS What rights do Indians have as state citizens?

Indians are entitled to receive the same benefits and privileges from the state in which they live as all other citizens receive. They are guaranteed this equal treatment by the Equal Protection Clause of the Fourteenth Amendment, which reads: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This clause prohibits state officials, among other things, from impermissibly discriminating against any person on account of race, color, creed, gender, or religion.86

What is the track record of the states with regard to their treatment of Indians?

Race discrimination against Indians goes back centuries and continues to this day. Indians have had to go to court to secure their equal right to hold state public office,87 attend public schools,88 receive state public assistance,89 serve as jurors in state courts,90 obtain state hunting licenses,91 obtain state business licenses,92 appear as witnesses in state courts,93 receive the same municipal services that other citizens receive,94 and receive equal consideration for state education scholarships.95 When New Mexico was facing a budget shortfall in 1985, state officials cut health care programs on the Navajo Reservation without cutting similar programs elsewhere, a decision a federal court found to be “motivated by discriminatory intent.”96 A federal court in Colorado noted in 1998: “The history of discrimination against Native Americans in the United States, and Colorado in particular, goes back

340  The Rights of Indians and Tribes well over 100 years.”97 In 2020, the U.S. Department of Justice settled a lawsuit it filed against the South Dakota Department of Social Services (DSS) alleging race discrimination in employment, under which DSS agreed to provide $350,000 in back pay to approximately sixty Native American job applicants.98 One area in which race discrimination is prevalent is education. For one thing, most states include in public school curricula very little information about Native Americans. It is as if Native Americans gave food to the starving Pilgrims and then disappeared into thin air.99 Most schoolchildren are not taught about the broken treaties, the forced relocation of Indians, the boarding schools, the importance of tribal sovereignty, or the contributions that Indians and tribes have made to our society. Indeed, a 2019 report issued by the NCAI—​aptly named Becoming Visible—​stated that 87 percent of state history standards do not mention anything about Native Americans after 1900 and that twenty-​seven states make no mention of a single Native American in their K–​12 curriculum.100 Fortunately, some educators and legislators have begun addressing this shameful shortcoming. Several states have amended their constitutions and/​or passed laws requiring that public schools educate students about the history and culture of Native Americans and have appropriated funds to help school districts meet those requirements. In 2015, the state of Washington passed a law requiring that tribal history, culture, and government be taught in public schools.101 Montana amended its constitution in 1972102 and later passed a law103 requiring that school districts within the state, in consultation with Indian tribes, create a curriculum that will educate all public school students about Native history and culture.104 Unfortunately, Montana’s state education agencies, according to a recent lawsuit, have failed to implement these requirements, and a state judge found in April 2023 that those state education agencies “do not seem to care” whether Montana’s public schools are obeying the law or not.105 State officials have at times sought to justify their discriminatory actions by pointing out that Indians are exempt from paying most state taxes and receive services from the federal government that other citizens do not receive.106 Numerous groups in our society, however, receive special benefits, including farmers, businesses, students, unemployed workers, people who mortgage their home, and the elderly, and no one seeks to justify discriminating against them on that basis. Moreover, as explained in Chapter III, Indian tribes relinquished millions of acres of land to the United States in exchange for these rights; thus, these government benefits are prepaid, not

Civil Rights of Indians  341 “free.” Besides, Indians remain the most impoverished group in our society, and thus it is misleading to claim that Indians have “special” advantages.107 To be sure, many state officials do not discriminate against Indians, and some give them certain advantages. Santa Fe, New Mexico, has given Indian merchants a monopoly on selling handcrafted jewelry on the grounds of the state museum, over the objections of some non-​Indian merchants.108 A Minnesota statute gives Indian teachers job protections not provided to other teachers in order to foster their hiring and retention,109 and in 2022, Minnesota began allowing members of that state’s tribal nations free access to state parks rather than require them to pay the $35 admission fee.110 There are many myths about the benefits provided to Indians by the federal government. One is that every Indian child in the country is guaranteed free tuition to a college. Another myth is that every Indian receives money from the federal government just for being Indian. Another myth is that Indians do not pay federal income taxes.111

C.  THE RIGHT TO VOTE Is the right to vote protected by federal law?

Yes. The right to vote is the most basic civil liberty in a democracy because it is the method by which citizens choose their government.112 In the United States, the right to vote is protected by federal law. The Fifteenth Amendment to the Constitution, adopted shortly after the Civil War, guarantees that no citizen shall be denied the right to vote in a state or federal election on account of race or color. In addition, Congress passed the Voting Rights Act (VRA) in 1965, which guarantees that no person will be required to pay a fee or pass a literacy test in order to vote.113 The 1975 amendments to the VRA prohibit discrimination against any person or group whose primary language is other than English,114 and Indians are expressly recognized as a language minority group.115 When necessary to facilitate voting rights, state election officials must distribute voter registration information in the local language and assign bilingual election officials to work at polling places, including on Indian reservations.116 Since its passage more than fifty years ago, the VRA has been credited with ensuring equal voting rights for minorities throughout the country. Unfortunately, in a recent case, Brnovich v. Democratic National Committee,117 the Republican-​dominated Supreme Court drastically narrowed the reach of the VRA. According to the

342  The Rights of Indians and Tribes three liberal Justices who dissented in Brnovich, the majority’s decision is “tragic.”118 The VRA, however, continues to protect against certain forms of discrimination in voting, and in 2022, a federal court in South Dakota found that Indians were being denied their rights under the VRA to a fair opportunity to elect commissioners in Lyman county.119 The county did not appeal the court’s ruling. In 1993, Congress passed the National Voter Registration Act (NVRA),120 a law designed to “increase the number of eligible citizens who register to vote” in federal elections.121 The NVRA, for instance, requires the states to use a prescribed and simple form (known as the “Federal Form”) for voter registration.122 It also requires the states to offer voter registration at various state agencies, such as motor vehicle department offices and welfare offices.123

What can Indians do if they are subjected to discrimination in exercising their right to vote?

Indians are often the victims of discrimination in voting.124 A federal appellate court stated in 2020 regarding discrimination in Arizona: “For over a century, Arizona has repeatedly targeted its American Indian, Hispanic, and African American citizens, limiting or eliminating their ability to vote and to participate in the political process.”125 A federal court in Montana found “ample evidence that American Indians have historically been the subject of discrimination in the area of voting,”126 and a federal court found that “South Dakota’s history of discrimination against Native-​Americans has limited their ability to succeed in the state political process.”127 A 2018 study found that “the history of discrimination against Indian voters is well-​documented in state and federal case law and Congressional hearings.”128 Indians have been denied the right to vote solely because they lived on an Indian reservation,129 or because they lived on federal trust land and thus paid no state property taxes,130 and both of these denials were found by courts to be unlawful. The right to vote includes the right to cast a meaningful ballot: one that gives voters a fair opportunity to elect candidates of their choice (and gives each candidate a fair opportunity to be elected). Some state and local legislative bodies in Republican-​controlled states, however, have concocted voting schemes designed to make it more difficult for Indian voters (who typically favor Democratic candidates) to cast a meaningful ballot and for Indian candidates to be elected. The South Dakota legislature is

Civil Rights of Indians  343 notorious for doing this and has been found on multiple occasions by federal courts to have intentionally created voting districts designed to dilute the Indian vote and make it more difficult for Indians to elect candidates of their choice for office.131 Courts in Colorado,132 Montana,133 and Utah134 also found that legislative bodies had intentionally sought to dilute the Indian vote. In the Utah case, for instance, the court found “that race predominated the drawing” of election districts in a deliberate attempt to discriminate against Indian voters.135 Some states have used other schemes to discourage or dilute the Indian vote.136 In the 2020 election, South Dakota allowed persons to cast an early ballot up to forty-​two days before the election but opened early-​voting stations on Indian reservations when only six days remained, long after other stations were opened elsewhere.137 The state also made taxpayers automatically eligible to vote while non-​taxpayers, many of whom were Indians living on trust (and, thus, nontaxable) land, had to register in person in a courthouse, which for reservation Indians is usually many miles away.138 Between 2002 and 2012, four candidates won election to the U.S. Senate by narrow margins in which Indian voters helped tip the scales in their favor: Tim Johnson in South Dakota in 2002, Jon Tester in Montana in 2006, Lisa Murkowski in Alaska in 2010, and Heidi Heitkamp in North Dakota in 2012.139 In 2018, two states sent the first Native American women to Congress: Deb Haaland, Democrat of New Mexico and member of the Laguna Pueblo (appointed by President Biden in 2021 as Secretary of the Interior), and Sharice Davids, Democrat of Kansas and member of the Ho-​ Chunk Nation. They joined two Native American men from Oklahoma, Tom Cole, Chickasaw, and Markwayne Mullin, Cherokee, both Republicans. The growing influence of Indian voters and the growing number of victories by Indian candidates have provided tribal communities with more power and have forced non-​Indian candidates to address issues of concern to Indians and tribes.140 Although laws such as the VRA and NVRA, and lawsuits enforcing those laws, have protected the right to vote, approximately sixty-​three million voting-​age citizens have not registered to vote, and a disproportionate number of them are people of color.141 A recent study commissioned by fifty-​ three civil rights and public interest organizations has called on federal and state agencies to improve their efforts to remove barriers to registration and promote equal access to the ballot.142

344  The Rights of Indians and Tribes

D.  PROTECTION AGAINST PRIVATE DISCRIMINATION Do Indians have any protection against discrimination by private persons?

The civil liberties just discussed only protect against actions undertaken by the government. They offer no protection against nongovernmental discrimination.143 Yet many necessities of life, including employment, housing, and borrowing money often involve decisions made entirely by private individuals. In order to ensure that citizens are not denied these necessities due to unfair private discrimination, Congress has passed civil rights laws that prohibit various forms of discrimination by one individual or group against another. These federal civil rights laws protect all citizens, including Indians. As a result of these laws, Indians who are discriminated against on account of race, color, creed, religion, sex, or national origin with respect to housing,144 employment,145 commercial contracts,146 access to public accommodations,147 or obtaining financial credit148 may in most instances file suit in federal court to halt this discrimination and recover damages for any injury suffered. Indians have been discriminated against since the arrival of Europeans on this continent. They have been viewed as racially and culturally inferior and, as Professor Bethany Berger has stated, “this history of racialization shaped and continues to impact policy and treatment of American Indians.”149 As our society evolves, hopefully we will celebrate our racial and cultural differences and not stigmatize those who are not Anglo-​American, embracing our differences rather than allowing them to divide us.

E.  PROTECTION OF BURIAL REMAINS What is the Native American Graves Protection and Repatriation Act?

An investigation conducted during the late 1980s revealed that thousands of Indian human remains and tens of thousands of Indian religious and cultural objects were held by federal agencies and by museums that received federal funds. The Smithsonian Institution in Washington, D.C., owned by the federal government, held over seventeen thousand Indian skeletal remains, and the publicly funded Denver Art Museum possessed more than eighty

Civil Rights of Indians  345 thousand Indian artifacts and the remains of eighty-​six Indians. Until 1989, the federal government “had a firm policy which encouraged the acquisition and retention” of Indian skeletons and artifacts by federal agencies and museums.150 Between 1931 and 1990, the National Park Service removed 303 sets of human remains and associated funerary objects from Canyon de Chelly National Monument, a sacred site on the Navajo Reservation, and stored them in its own collection center in Arizona.151 In 1989, Congress passed the National Museum of the American Indian Act,152 which required the Smithsonian to inventory and seek to identify the origins of its Indian collection using scientific and historical data, and to notify the tribes of origin. Those tribes could then consult with the Smithsonian and arrange for the recovery of all objects that originally belonged to the tribe or a tribal member. In 1990, Congress passed a similar but much broader statute called the Native American Graves Protection and Repatriation Act (NAGPRA).153 The enactment of NAGPRA “represented a major victory for the religious and cultural interests of Native Americans and Indian tribes.”154 Congress enacted NAGPRA to help satisfy its trust responsibility to tribes and tribal members.155 This historic law has two main purposes: (1) to allow federally recognized tribes, individual lineal descendants, and Native Hawaiian organizations to recover religious and cultural items belonging to them or their members that were held in federally funded institutions, and (2) to protect the right of federally recognized tribes to safeguard all human remains and artifacts that might be found or excavated on federal or tribal land in the future. As to the first purpose, NAGPRA required all federal agencies (except the Smithsonian, which was covered by the earlier statute) and all museums receiving federal funds to inventory their collections of Indian human remains and cultural and religious objects, attempt to identify the tribe of origin, and send each such tribe, by November 16, 1995, an inventory of the items that might belong to that tribe. The tribe had the right to inspect those items and request the return of any that belonged to the tribe. As a result of NAGPRA, more than fifty thousand skeletons have been returned to American Indian tribes.156 In 2008, a prayer was given on ancestral Pawnee land during the reburial of human remains repatriated from museums. The tribal member offering the prayer stated: “Old Ones, I want to speak to you. . . . We’re glad that you are home. We are sorry that you have had to be gone for so long. It hurt us to know that you were in museums. . . . We want you to rest here. You won’t be disturbed anymore. God has brought you here. Old Ones, you are home.”157

346  The Rights of Indians and Tribes As for NAGPRA’s second purpose, the Act ensures that any future excavation on federal or tribal land in an area that may contain Indian artifacts or human remains will be governed by strict regulations (one of which requires tribal consent to excavate, under certain circumstances). Further, the Act provides that tribes will be promptly notified if any items protected by NAGPRA are discovered on federal land.158 NAGPRA makes it a federal crime to knowingly sell, purchase, use for profit, or transport for sale or profit any cultural items or other artifacts or Indian human remains obtained in violation of the Act. Violators are subject to a fine of up to $100,000 and one year in jail for the first offense, and up to $250,000 and five years in prison for subsequent violations.159 NAGPRA, however, does not apply to objects discovered on nonfederal land, including land owned by state and local governments, or privately owned land.160 In addition, NAGPRA does not apply to graves and objects associated with Indian tribes that are not officially “recognized” by the federal government.161 Some states have passed their own versions of NAGPRA, a few of which extend protections that exceed those in NAGPRA. For instance, a statute enacted by the state of Washington, the Indian Graves and Records Act,162 makes it a felony to knowingly deface, injure, or destroy an Indian grave, a protection not provided in NAGPRA. Unfortunately, many institutions have failed to comply with NAGPRA and continue to possess Indian artifacts without attempting to locate the tribe of origin. The U.S. Senate Committee on Indian Affairs has begun sending letters to these offending institutions to promote prompt compliance.163

F.  RACIAL STEREOTYPING Stereotyping, which can be conscious or unconscious, is ascribing generalized characteristics to a group based on what one perceives as typical characteristics of members of the group. For instance, some groups are stereotyped as lazy or untrustworthy, while others as smart and financially astute, all based on perceptions. Racial stereotyping can be illegal when combined with certain actions, but otherwise stereotyping is rarely illegal, despite the emotional and psychological injuries it may cause. While such things as racial slurs and unflattering written depictions of a race might not violate the law, they inhibit a society from achieving social justice and internal harmony.

Civil Rights of Indians  347 Those who engage in racial stereotyping may be unaware of the injuries they are causing. They might even believe that what they are doing is positive rather than negative. The owner of the football team that used to be known as the Washington Redskins defended the use of “Redskins” because, he said, it glorified the fierce and brave fighting spirit of Indians, despite strenuous objections from public officials, tribal groups, and commentators.164 “Redskins” was finally dropped from the name in 2020 after a financial sponsor of the team put pressure on the team’s owner.165 California passed a law in 2015 banning public schools from using “Redskin” as a team name, mascot, or nickname,166 and Maine did the same in 2019.167 The use of Indians as school mascots has engendered bitter controversy. Although hundreds of schools have discontinued using Indian mascots, many still do. In 2006, the National Collegiate Athletic Association (NCAA) prohibited the use of Indian team names, mascots, or logos in post-​season games sponsored by the NCAA that were considered racially “hostile” or “abusive,” and the NCAA listed a number of schools that appeared to violate the new rule. Florida State University’s football team, which calls itself “The Florida State Seminoles,” was on the list. However, the Seminole Tribe in Florida notified the NCAA that it supported the school’s use of the name, and the NCAA granted FSU an exemption.168 Hundreds of tribal nations, tribal groups, civil rights groups, and other organizations have issued statements urging the removal of all Indian mascots on the grounds that they are inherently demeaning, disrespectful, and degrading, and reflect racial prejudice.169 According to the National Congress of American Indians (NCAI), “rather than honoring Native peoples, these caricatures and stereotypes are harmful, perpetuate negative stereotypes of America’s first peoples, and contribute to a disregard for the personhood of Native peoples.”170 The National Indian Education Association, the largest and oldest Indian education organization in the country, passed a resolution in 2009 that “calls for the immediate elimination of race-​based Indian logos, mascots, and names from educational institutions throughout the Nation” on the grounds that exposure to such race-​based imagery “harms American Indian students.”171 Although names such as “Braves” and “Warriors” may connote bravery and honor to some, braves and warriors are typically viewed as fierce, merciless, and trained to kill. These inaccurate perceptions of American Indians animate negative racial stereotypes, and instigate discriminatory treatment and harassment. According to Suzan Shown Harjo, a Native advocate and president of The Morning Star Institute, a national

348  The Rights of Indians and Tribes Indigenous rights organization, mascots are inherently dehumanizing and objectifying, no matter how they are intended or displayed. “Sports cartooning and mascoting are especially vile to Native parents, grandparents and extended families because of the harm these practices do to the self-​ esteem of Native youth.”172 Being someone’s mascot is neither an honor nor a compliment. Kevin Gover, director of the National Museum of the American Indian (NMAI) in Washington, D.C., has written that mascots “stereotype Native people, employing imagery and ideas that arose from the racism of the 19th century.”173 In 2019, Little League International banned the use of racially insensitive team names, mascots, and nicknames, a decision applauded by NCAI.174 Stereotyping is often the product of decades—​if not centuries—​of unsuspecting bias and misconception and is best eradicated through education, dialogue, and heightened sensitivity. The New York Times recently ran an op-​ed entitled, “It’s 2020. Indigenous Team Names in Sports Have to Go,” that called on the Kansas City Chiefs, Atlanta Braves, and Chicago Blackhawks to change their names.175 The Principal Chief of the Cherokee Nation recently asked Jeep to stop using its name to promote the sale of its automobiles, which for many years has sold the Jeep Cherokee and Grand Cherokee.176 Suzan Shown Harjo calls such appropriation of a tribe’s name “thievery.” A “tradition” that deserves to be placed in the garbage heap is “Columbus Day.” In 1892, President Benjamin Harrison was prompted by a joint congressional resolution to mark the “discovery” of North America by Christopher Columbus as a national holiday, and in 1968, Congress set October 12 as the official holiday.177 For many Indians, creating a national holiday commemorating Columbus is no more appropriate than creating a national holiday commemorating Adolf Hitler. Whether Columbus “discovered” North America, where hundreds of nations were already thriving, is not the main issue. The main issue is whether Christopher Columbus—​the man—​is someone to be admired and honored. Historical accounts show that Columbus was primarily interested in making himself and his patrons rich, and he engaged in barbaric tactics to obtain wealth. Columbus landed on the island of Hispaniola, today the home of Haiti and the Dominican Republic. In his journal, Columbus spoke highly of the Native peoples (whom he called “Indios”), stating: “They are the best people in the world and above all the gentlest—​without knowledge of what is evil—​nor do they murder or steal. . . . They love their neighbors as themselves and have the sweetest

Civil Rights of Indians  349 talk in the world, . . . always laughing.”178 But Columbus saw these generous qualities as weaknesses to be exploited. He wrote in his journal: “They would make fine servants. With fifty men we could subjugate them all and make them do whatever we want.”179 He ordered the Native peoples to bring him gold, and he tortured, killed, or enslaved any who failed. Within four years of his arrival in 1492, nearly one-​third of the estimated three hundred thousand inhabitants of Hispaniola had been killed or enslaved and, according to one historian, fewer than five hundred Native persons remained on the island by 1548.180 Indians have long advocated for changes in the holiday known as Columbus Day. Several states, including Alaska, California, Louisiana, Maine, and Vermont have officially replaced “Columbus Day” with “Indigenous Peoples Day,” and South Dakota replaced it with “Native American Day.” In those states, the holiday is intended to celebrate the positive aspects of both European and Native cultures instead of the man who killed and enslaved Indians. In 2018, however, President Trump, reversing this trend, issued a formal proclamation that called on the people of the United States to observe Columbus Day and commemorate Columbus’s accomplishments.181 Fortunately, President Biden changed that practice. During his first year in office, he issued a proclamation designating October 11, 2021, as Indigenous People’s Day.182

G.  THE U.N. DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES On September 13, 2007, the General Assembly of the United Nations, in a historic vote, overwhelmingly approved the Declaration on the Rights of Indigenous Peoples (UNDRIP).183 The UNDRIP was the culmination of more than thirty years of consultations with Indigenous persons from around the world, with leaders from many countries, and with organizations and experts on international law and human rights. Of the 147 members of the United Nations, only 4 voted against the Declaration: Australia, Canada, New Zealand, and the United States. All four have since reversed their positions and approved the UNDRIP; in 2010, President Obama signed the UNDRIP on behalf of the United States. The declaration recognizes that Indigenous peoples have important collective rights, such as the right to self-​determination, to regulate the group’s

350  The Rights of Indians and Tribes land, and to practice its religion, including access to sacred places; the right to enforce any treaty protections the group may have obtained; the right to hunt and fish for subsistence; the right to speak their own language; the right to raise their children consistent with their culture; the right not to be relocated; and the right to freely pursue economic, social, and cultural development. The rights contained in the UNDRIP “constitute the minimum standards for the survival, dignity and well being of the indigenous peoples of the world.”184 Since the 1700s, many nations around the world have sought to establish and protect individual rights. In contrast, the UNDRIP seeks to protect rights that belong to Indigenous peoples as a group.185 The Native American Rights Fund (NARF) calls the UNDRIP a “milestone in the long struggle by indigenous peoples for due recognition in the world.” The international community’s strong support for UNDRIP demonstrates, NARF believes, “that, not only can the world live with the Declaration, it will be a better place for doing so.”186 Article 3 of UNDRIP states: “Indigenous peoples have the right to self-​determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Notes 1. In 1924, Congress passed a law, 8 U.S.C. § 1401(a)(2), that conferred U.S. citizenship on all American Indians and Alaska Natives born in the United States. Some Indians had become citizens prior to 1924 in treaties with the United States or by federal statute. 2. The Fourteenth Amendment to the Constitution provides that all persons “born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside.” 3. This subject is discussed in Sections B, C, and D of this chapter. 4. See Everson v. Board of Education, 330 U.S. 1, 8–​9 (1947). 5. See Engel v. Vitale, 370 U.S. 421, 425–​30 (1962); Abington School District v. Schempp, 374 U.S. 203, 212–​15 (1963). 6. See Engel, 370 U.S. 421 and Abington, 374 U.S. 203. See also Epperson v. Arkansas, 393 U.S. 97 (1968). 7. Thomas v. Review Board, 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972). 8. See Kristen A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious Freedoms, 45 Conn. L. Rev. 387, 402–​08 (2012); John Rhodes, An American Tradition: The Religious Persecution of Native Americans, 52 Mont. L. Rev. 13 (1991).

Civil Rights of Indians  351 9. Bryan J. Rose, A Judicial Dilemma: Indian Religion, Indian Land, and the Religion Clauses, 7 Va. J. Soc. Pol’y & Law 103, 105 (1999). See also Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on Public Lands, 40 Colum. Hum. Rts. L. Rev. 479, 487 (2009). 10. John D. Loftin, Religion and Hopi Life 116 (2d ed. 2003). See also Carpenter, supra note 8, at 402–​08. 11. See Employment Division v. Smith, 494 U.S. 872, 891–​97 (1990) (O’Connor, Brennan, Marshall, JJ., concurring). 12. For a discussion of the compelling interest test, see Burwell v. Hobby Lobby, 573 U.S. 682, 693–​96 (2014); Johnson v. California, 543 U.S. 499, 505–​10 (2005). 13. 476 U.S. 693 (1986). 14. 482 U.S. 342 (1987). 15. 485 U.S. 439 (1988). 16. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 451 (1988). See also Fools Crow v. Gullet, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 997 (1983); Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981); Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980). 17. Lyng, 485 U.S. at 451 (citation omitted). Walter Echo-​Hawk calls Lyng one of the ten worst Indian law cases ever decided by the Supreme Court. See Walter Echo-​Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided 325–​56 (2010). 18. For a further discussion of Lyng, see William A. Fletcher, Protection for Indian Sacred Sites, 97 Wash. L. Rev. 703 (2022); Alex Tallchief Skibine, Cultural Talk or Cultural War in Federal Indian Law, 45 Tulsa L. Rev. 89, 100–​04 (2009). 19. 494 U.S. 872 (1990). 20. Employment Division v. Smith, 494 U.S. 872, 886 n.3 (1990). 21. See, e.g., Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975). 22. See Henderson v. Terhune, 379 F.3d 709 (9th Cir. 2004) (hair length); Harris v. Chapman, 97 F.3d 499, 503–​04 (11th Cir. 1996) (same); Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir. 1996) (same); Pollack v. Marshall, 845 F.2d 656 (6th Cir.), cert. denied, 488 U.S. 897 (1988) (same); Standing Deer v. Carlson, 831 F.2d 1525 (9th Cir. 1987) (headgear); Allen v. Toombs, 827 F.2d 563 (9th Cir. 1987) (sweat lodge). 23. See Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990) (hair length); Sapa Najin v. Gunter, 857 F.2d 463 (8th Cir. 1988) (access to spiritual leaders); Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989) (attending religious services); Youngbear v. Thalacker, 174 F. Supp. 2d 902 (C.D. Iowa 2001) (sweat lodge); Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) (private possession of a bear). 24. Griffith v. Caney Valley Public Schools, 157 F. Supp. 3d 1159, 1165–​ 66 (N.D. Okla. 2016). 25. Waln v. Dysart School Dist. 54 F.4th 1152 (9th Cir. 2022). 26. See Echo-​Hawk, supra note 17, at 325–​ 56; Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 183–​97 (2009); Carpenter, supra note 8, at 408–​11. 27. See Pommersheim, supra note 26, at 185–​86.

352  The Rights of Indians and Tribes 28. Id. at 208; Carpenter, supra note 8, at 418–​31. See also Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, 430 P.3d 362 (Ariz. 2019). 29. William A. Fletcher, Protection for Indian Sacred Sites, 97 U. Wash. L. Rev. 703, 708 (2022). 30. H.R. Rep. No. 1308, 95th Cong., 2d Sess., reprinted in 1978 U.S. Code Cong. & Admin. News 1262. 31. S.J. Res. 102, Aug. 11, 1978, Pub. L. No. 95-​341, 92 Stat. 469, codified in part 42 U.S.C. § 1996. 32. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 455 (1988). 33. See Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983); Standing Deer v. Carlson, 831 F.2d 1525, 1530 (9th Cir. 1987). 34. 42 U.S.C. §§ 2000bb et seq. 35. 42 U.S.C. § 2000bb(b)(1). 36. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 963 (2014). For a discussion of RFRA and Hobby Lobby, see Edward K. Olds, Trespass and Vandalism or Protecting That Which Is Holy? The Missing Piece of Religious Liberty Land-​Use Claims, 119 Colum. L. Rev. Online 18 (2019). 37. 521 U.S. 507 (1997). 38. 546 U.S. 418 (2006). 39. See McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014); No. Arapaho Tribe v. Ashe, 92 F. Supp. 3d 1160, 1181 (D. Wyo. 2015). 40. See Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1063–​64 (9th Cir. 2008) (en banc); Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 239 F. Supp. 3d 77, 93–​94 (D.D.C. 2017), appeal dism’d, 2017 WL 4071136 (D.C. Cir. 2017). 41. 114 Stat. 804, 42 U.S.C. § 2000cc. 42. 544 U.S. 709 (2005). 43. See, e.g., cases cited in note 45 infra; Ramirez v. Collier, 142 S. Ct. 1264 (2022); Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001). For a discussion of these laws, see Carpenter, supra note 8, at 445–​47. 44. See Ramirez, 142 S. Ct. 1264 (right of a prisoner being executed by lethal injection to have his pastor “lay hands” on him); Holt v. Hobbs, 574 U.S. 352 (2015) (Muslim prisoner’s right to grow a half-​inch beard). 45. See Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015) (religious diet); Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014) (religious diet); Native American Council of Tribes v. Weber, 750 F.3d 742 (8th Cir. 2014) (tobacco); Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) (per Gorsuch, J.) (sweat lodge); Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33 (1st Cir. 2007) (long hair); King v. Calderin, 2023 WL 3182656 (D. Nev. 2023) (religious diet); Warsoldier, 418 F.3d 989 (long hair); Smith v. Beauclair, 2006 WL 2348073 **7–​8 (D. Idaho 2006) (right to have a Sacred Fire, wear a beard, and use medicinal herbs); Odneal v. Pierce, 324 Fed. Appx. 297 (5th Cir. 2009), on remand, 2010 WL 3359535 (S.D. Tex. 2010) (kouplock); Hyde v. Fisher, 203 P.3d 712, 730 (Idaho App. 2009) (smudging ceremony). For further discussion of RLUIPA in prison litigation, see Nathan Lobaugh, Yellowbear v. Lampert—​Putting Teeth into the

Civil Rights of Indians  353 Religious Land Use and Institutionalized Persons Act of 2000, 41 Am. Indian L. Rev. 467 (2017). Even a temporary denial by prison officials of access to religious items can constitute a violation of a prisoner’s First Amendment religious freedoms. Williams v. Hansen, 5 F. 4th 1129 (10th Cir. 2021). 46. For instance, many prisons allow Indian practitioners to use a sweat lodge, see Farrow v. Stanley, 2005 WL 2671541 at *9 (D.N.H. 2005), and at least one prison, after being sued, agreed to allow Indians to possess eagle feathers in their cells for ceremonial purposes, see Yellowbear v. Lampert, Civ. No. 08-​CV-​013J (Order filed July 29, 2008). 47. See Williams v. Hansen, 5 F.4th 1129 (10th Cir. 2021). 48. See United States v. Friday, 525 F.3d 938 (10th Cir. 2008), cert. denied, 555 U.S. 1176 (2009); Hoevenaar v. Lazaroff, 422 F.3d 366 (6th Cir. 2005); United States v. Tawahongva, 456 F. Supp. 2d 1120 (D. Ariz. 2006). 49. See Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996) (RFRA claim); Fowler v. Crawford, 534 F.3d 931, 939 (8th Cir. 2008), cert. denied, 556 U.S. 1105 (2009) (RLUIPA claim). But see Pounders v. Kempker, 79 Fed. Appx. 941 (8th Cir. 2003) (holding medium or minimum security prisoners may have a right to use a sweat lodge, even if maximum security prisoners do not); Youngbear v. Thalacker, 174 F. Supp. 2d 902 (C.D. Iowa 2001) (holding that an Indian medium custody prisoner has a Free Exercise right to use a sweat lodge); Farrow, 2005 WL 2671541 at *9 (recognizing that prisoner denied access to a sweat lodge by prison officials has a claim for relief under RLUIPA). 50. Knight v. Thompson, 797 F.3d 934 (11th Cir. 2015), cert. denied, 136 S. Ct. 1824 (2016); Diaz v. Collins, 114 F.3d 69, 73 (5th Cir. 1997). 51. See Okleveuha Native American Church v. Lynch, 828 F.3d 1012, 1015 (9th Cir.), cert. denied, 137 S. Ct. 510 (2016); Native American Council of Tribes v. Weber, 750 F.3d 742, 749 (8th Cir. 2014). 52. Ramirez, 142 S. Ct. at 1277; Native American Council of Tribes, 750 F.3d at 751–​52; Warsoldier, 418 F.3d at 999. 53. 42 U.S.C. § 1996a; see 21 C.F.R. § 1307.31 (1990). See Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991). 54. 42 U.S.C. § 1996a(b)(1). 55. 16 U.S.C. § 668(a). See McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014) (holding that Indian religious practitioners of non-​federally recognized tribes have the same right to possess eagle feathers as do members of recognized tribes). See also United States v. Skeet, 623 F. Supp. 3d 1178 (D.N.M.), appeal dism’d, 2022 WL 19264513 (10th Cir. 2022) (holding that a treaty with the Navajo Nation authorized members of the Nation to take and sell red-​tailed hawk feathers). 56. 50 C.F.R. pt. 22. For a further discussion of this subject, see Carpenter, supra note 8, at 460–​66; Chapter X, notes 86–​91 and accompanying text. 57. See Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000); Article 1, Sections 3 and 4, and Article 4, Section 2 of the Idaho constitution, and Idaho Code §§ 73–​401 et seq. See Hyde v. Fisher, 203 P.3d 712, 730 (Idaho App. 2009). 58. See Ariz. Rev. Stat. Ann. § 13-​3402(b)(1)–​(3) (1989); Colo. Rev. Stat. § 12-​22-​ 317(3) (1985); N.M. Stat. Ann. § 30-​31-​6(D) (Supp. 1989). 59. NMSA §§ 33-​10-​1 et seq.

354  The Rights of Indians and Tribes 60. A.A. v. Needville Independent School District, 611 F.3d 248 (5th Cir. 2010). 61. Huston Smith, The World’s Religions: Our Great Wisdom Traditions 371 (1991). 62. Kristin A. Carpenter & Angela R. Riley, Privatizing the Reservations?, 71 Stan. L. Rev. 791, 808, 850–​55 (2019); Carpenter, supra note 8, at 447–​60. 63. Rebecca Tsosie, Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights, 47 UCLA L. Rev. 1615, 1640 (2000). For information about sacred sites in the United States and around the world, see https://​www.sac​redl​and.org (the Sacred Land Film Project). 64. See Stephanie H. Barclay & Michalyn Steele, Rethinking Protection for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1296–​1317 (2021); Vine Deloria, Jr., Sacred Lands and Religious Freedom, in For This Land: Writings on Religion in America 203–​ 13 (1998). 65. See Echo-​Hawk, supra note 17, at 328 (noting that “government agencies intentionally destroy holy places, even when they know they are holy ground.”) (emphasis in original); see also Fletcher, supra note 18. 66. See Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981); Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980). 67. United States v. Means, 858 F.2d 404 (8th Cir. 1988). 68. Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983). 69. See Navajo Nation v. United States, 535 F.3d 1058 (9th Cir. 2008) (en banc), cert denied, 556 U.S. 1281 (2009). But see Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission, 545 F.3d 1207, 1219 (9th Cir. 2008) (upholding decision of federal agency to require operator of a dam to release more water during certain times of the year to help create the type of mist important to a tribe’s religious practice). 70. See https://​www.nbcn​ews.com/​news/​us-​news/​anci​ent-​nat​ive-​ameri​can-​bur​ial-​site-​ blas​ted-​trump-​bor​der-​wall-​const​ruct​ion-​n1135​906. For a discussion of the harm the wall caused, see https://​www.hcn.org/​artic​les/​ind​igen​ous-​affa​irs-​bord​erla​nds-​stop-​ the-​dest​ruct​ion-​of-​toh​ono-​ood​ham-​lands. 71. See Carpenter, supra note 8, at 478. 72. NHPA, Pub. L. No. 102-​575, amended in 2014 by Pub. L. No. 113-​287, 128 Stat. 3094. NHPA is discussed in Chapter III, notes 133–​53 and accompanying text. See Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995); Comanche Nation v. United States, 2008 WL 4426621 (W.D. Okla., Sept. 23, 2008). 73. 54 U.S.C. § 302706(b). 74. See Access Fund v. U.S. Department of Agriculture, 499 F.3d 1036 (9th Cir. 2007); Wyoming Sawmills, Inc. v. U.S. Forest Service, 383 F.3d 1241 (10th Cir. 2004), cert. denied, 546 U.S. 811 (2005). See generally Carpenter, supra note 8, at 448–​55; Amanda M. Marincic, The National Historic Preservation Act: An Inadequate Attempt to Protect the Cultural and Religious Sites of Native Americans, 103 Iowa L. Rev. 1777, 1796–​99 (2018). 75. 25 U.S.C. §§ 3051 et seq.

Civil Rights of Indians  355 76. USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites (Dec. 2012), available at https://​www.fs.usda.gov/​Inter​net/​FSE_​DO​CUME​NTS/​stel​prdb​ 5402​199.pdf. 77. Exec. Order 13007, 61 Fed. Reg. 26771 (1996). For more information on Native American sacred places, contact The Morning Star Institute, 611 Pennsylvania Ave., SE, #377, Washington, D.C., 20003 (202-​547-​5531). 78. See Bear Lodge Multiple Use Association v. Babbitt, 175 F.3d 814 (10th Cir. 1999), cert. denied, 529 U.S. 1037 (2000). 79. For a discussion of the controversy surrounding the Bears Ears Monument, see Joe Biden Restores Bears Ears, Indian Country Today (Oct. 7, 2021), available at https://​ ictn​ews.org/​news/​joe-​biden-​to-​exp​and-​2-​utah-​natio​nal-​monume​nts. 80. See Apache Stronghold v. United States, 56 F.4th 636 (9th Cir. 2022) (granting en banc review). 81. See The White House: FACT SHEET: President Biden Designates Avi Kwa Ami National Monument (Mar. 21, 2023), available at https://​www.whi​teho​use.gov/​brief​i ng-​room/​ sta​teme​nts-​relea​ses/​2023/​03/​21/​fact-​sheet-​presid​ent-​biden-​des​igna​tes-​avi-​kwa-​ ame-​natio​nal-​monum​ent/​. 82. UNDRIP, adopted by the UN General Assembly on Sept. 13, 2007, is available at https://​www.un.org/​deve​lopm​ent/​desa/​indige​nous​peop​les/​wp-​cont​ent/​uplo​ads/​ sites/​19/​2018/​11/​UNDRI​P_​E_​web.pdf. 83. Resolution # ABQ-​10-​065, “Calling for Legislation to Provide a Right of Action to Protect Native Peoples’ Sacred Places,” available at http://​arch​ive.ncai.org/​atta​ chme​nts/​Resolution_​VApsecvWsjrwXrclzXvxzxELsRVl​aptS​OXGI​Xgvx​qshv​Xahi​ sOB_​ABQ-​10-​065_​rev.pdf. See also Skibine, supra note 18, at 108 (“Congress should, therefore, enact new legislation amending RFRA which would give added protection to Native American Sacred Sites”). 84. Echo-​Hawk, supra note 17, at 349. 85. See Stewart Huntington, Tribes Win Federal Trust Status for Pe Sla Property in Black Hills, KOTA (Mar. 24, 2017), available at https://​www.kot​atv.com/​cont​ent/​news/​Tri​ bes-​win-​fede​ral-​trust-​sta​tus-​for-​Pe-​Sla-​prope​rty-​in-​Black-​Hills-​417068​793.html. 86. Shaw v. Reno, 509 U.S. 630 (1993); Plyler v. Doe, 457 U.S. 202, 207 (1982); Brown v. Board of Education, 347 U.S. 483 (1954). 87. Shirley v. Superior Court, 513 P.2d 939 (Ariz. 1973), cert. denied, 415 U.S. 917 (1974). 88. Piper v. Big Pine School District, 226 P. 926 (Cal. 1924); Dewey County v. United States, 26 F.2d 434 (8th Cir. 1928). See also Gensaw v. Del Norte County Unified School District, 2008 WL 1777668 (N.D. Cal. 2008). 89. Acosta v. San Diego County, 272 P.2d 92 (Cal. 1954); State Board of Public Welfare v. Board of Commissioners, 137 S.E.2d 801 (N.C. 1964). 90. Denison v. State, 268 P. 617 (Ariz. 1928). 91. Begay v. Sawtelle, 88 P.2d 999 (Ariz. 1939). 92. Bradley v. Arizona Corp. Commission, 141 P.2d 524 (Ariz. 1943). 93. Fernandez v. State, 144 P. 640 (Ariz. 1914).

356  The Rights of Indians and Tribes 94. McMasters v. Chase, 573 F.2d 1011 (8th Cir. 1978); Fallon Paiute-​Shoshone Tribe v. City of Fallon, 174 F. Supp. 2d 1088 (D. Nev. 2001). 95. White v. Engler, 188 F. Supp. 2d 730 (E.D. Mich. 2001). 96. Navajo Nation v. State of New Mexico, 975 F.2d 741, 743 (10th Cir. 1992), cert. denied, 507 U.S. 986 (1993). 97. Cuthair v. Montezuma-​Cortez Colorado School District, 7 F. Supp. 2d 1152, 1155 (D. Colo. 1998). 98. See  https://​www.just​ice.gov/​opa/​pr/​just​ice-​dep​artm​ent-​sett​les-​laws​uit-​agai​nst-​ south-​dak​ota-​dep​artm​ent-​soc​ial-​servi​ces-​alleg​ing. 99. Even the holiday of Thanksgiving that most of us are told about is not factually accurate. See Philip Deloria, The Invention of Thanksgiving, The New Yorker (Nov. 25, 2019), available at https://​www.newyor​ker.com/​magaz​ine/​2019/​11/​25/​the-​invent​ ion-​of-​thank​sgiv​ing. 100. National Congress of American Indians, Becoming Visible: A Landscape Analysis of State Efforts to Provide Native American Education for All (2019), at 8, available at http://​arch​ive.ncai.org/​pol​icy-​resea​rch-​cen​ter/​resea​rch-​data/​prc-​publi​cati​ons/​ NCAI-​Beco​ming​_​Vis​ible​_​Rep​ort-​Digita​l_​FI​NAL_​10_​2​019.pdf. 101. RCW 28A.320.170. 102. Mont. Const. art. X, § 1(2). 103. See Mont. Code Ann. §§ 20-​1-​501 et seq. 104. For a discussion of the legislative history of these provisions, see Carol Juneau & Denise Juneau, Indian Education for All: Montana’s Constitutional at Work in our Schools, 72 Mont. L. Rev. 111 (2011). 105. See Yellow Kidney v. Montana Office of Public Instruction, Civ. No. DDV-​21-​0398 (Mont. 8th Jud. Dist. Ct., Cascade Cnty, Order Re: Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint dated Apr. 19, 2023), at 17. 106. See Chapter IX, Section B. 107. See Chapter 1, notes 10–​15 and accompanying text. 108. Livingston v. Ewing, 601 F.2d 1110 (10th Cir.), cert denied, 444 U.S. 870 (1979). 109. See Kreuth v. Independent School District No. 38, 496 N.W.2d 829 (Minn. App.), review denied, 1993 Minn. Lexis 285 (Minn. 1993). 110. See Mn. Stat. ch. 85 § 85.053 Subd. 5a. 111. As discussed in Chapter IX, Section A, Indians pay federal income taxes the same as everyone else except for a few taxes exempted by Congress. 112. Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). 113. 42 U.S.C. §§ 1973 to 1973-​bb-​1. 114. 42 U.S.C. §§ 1973b, 1973aa-​1a to 1973aa-​3, 1973dd-​5. 115. Id., §§ 1973aa–​1a(c). 116. For court orders requiring state officials to provide services designed to insure that non-​ English speaking Native Alaskans may exercise their right to vote, see Toyukak v. Mallott, Case No. 3:13-​cv-​00137-​SLG-​LCL (Stipulated Judgment and Order D. Alaska 2015), available at http://​narf.org/​nill/​docume​ nts/​201509​10_​a​lask​a_​vo​ting​_​set​tlem​ent.pdf; Nick v. Bethel, Alaska, Case No.

Civil Rights of Indians  357 3:07-​dv-​00098-​TMB-​MMM-​JKS (Approval of Settlement Agreement, D. Alaska 2010), available at https://​www.aclu.org/​legal-​docum​ent/​nick-​et-​al-​v-​bet​hel-​et-​al-​ set​tlem​ent-​agreem​ent-​state-​ala​ska. 117. Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021). For a discussion of the case, see Guy-​Uriel E. Charles & Luis E. Fuentes-​Rohwer, The Court’s Voting-​Rights Decision Was Worse Than People Think, The Atlantic (July 8, 2021), available at https://​www.thea​tlan​tic.com/​ideas/​arch​ive/​2021/​07/​brnov​ich-​vra-​sco​ tus-​decis​ion-​ariz​ona-​vot​ing-​right/​619​330/​. VRA cases can still be won, however. See Lower Brule Sioux Tribe v. Lyman County, 625 F. Supp. 3rd 891 (D.S.D. 2022). 118. Brnovich, 141 S. Ct. at 2351 (Kagen, Breyer, Sotomayor, JJ., dissenting). 119. Lower Brule Sioux Tribe v. Lyman County, 625 F. Supp. 3rd 891 (D.S.D. 2022). 120. 107 Stat. 77, as amended, 42 U.S.C. §§ 1973gg et seq. 121. 52 U.S.C. §20501. 122. See Arizona v. Inter-​Tribal Council of Arizona, 570 U.S. 1 (2013). 123. See Rosebud Sioux Tribe v. Barnett, 604 F. Supp. 4th 827 (D.S.D. 2022). 124. For a discussion of this topic by an attorney who helped lead the fight against voting discrimination, see Laughlin McDonald, American Indians and the Fight for Equal Voting Rights (2010); Laughlin McDonald, The Voting Rights Act in Indian Country: South Dakota, A Case Study, 29 Am. Indian L. Rev. 43 (2004–​05). For an article discussing discrimination against Indians in voting, see https://​www. was​hing​tonp​ost.com/​hist​ory/​2020/​11/​01/​nat​ive-​americ​ans-​right-​to-​vote-​hist​ory/​. 125. Democratic National Committee v. Hobbs, 948 F.3d 989, 998 (9th Cir. 2020) (en banc), rev’d sub. nom Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021). See also Patty Ferguson-​Bohnee, The History of Indian Voting Rights in Arizona: Overcoming Decades of Voter Suppression, 47 Ariz. St. L.J. 1099, 1100 (2015). 126. United States v. Blaine County, 157 F. Supp. 2d 1145, 1152 (D. Mont. 2001), aff ’d, 363 F.3d 897 (9th Cir. 2004), cert. denied, 554 U.S. 992 (2005). 127. Bone Shirt v. Hazelton, 461 F.3d 1011, 1022 (8th Cir. 2006). 128. Jennifer L. Robinson & Stephen L. Nelson, The Small But Powerful Voice in American Elections: A Discussion of Voting Rights Litigation on Behalf of American Indians, 70 Baylor L. Rev. 91, 95 (2018) (footnotes omitted). 129. Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948). 130. See Goodluck v. Apache County, 417 F. Supp. 13 (D. Ariz. 1975), aff ’d sub nom. Apache County v. United States, 429 U.S. 876 (1976). See also Prince v. Board of Education, 543 P.2d 1176 (N.M. 1975). 131. See Bone Shirt, 461 F.3d 1011; Janis v. Nelson, 2009 WL 5216902 (D.S.D. 2009); In re Certification of Question of Law for U.S. District Court, District of South Dakota, 615 N.W.2d 590 (S.D. 2000); Emery v. Hunt, Civ. No. 00-​3008 (D.S.D., order entered Aug. 10, 2000). In 2020, a school district in South Dakota agreed with the Department of Justice to halt at-​large selection of its school board, which was inhibiting Indians from electing an Indian to the board. See https://​www.just​ice.gov/​opa/​pr/​just​ice-​ dep​artm​ent-​reac​hes-​agreem​ent-​cham​berl​ain-​sch​ool-​distr​ict-​south-​dak​ota-​under-​ vot​ing.

358  The Rights of Indians and Tribes 132. Cuthair v. Montezuma-​Cortez Colorado School District, 7 F. Supp. 2d 1152, 1155 (D. Colo. 1998). 133. See Old Person v. Cooney, 230 F.3d 1113 (9th Cir. 2000); Jackson v. Board of Trustees of Wolf Point, Montana, 2014 WL 1794551 (D. Mont. 2014) (awarding attorneys’ fees in litigation that found discrimination against Native voters); Windy Boy v. County of Big Horn, 647 F. Supp. 1002 (D. Mont. 1986). 134. Navajo Nation v. San Juan County, 929 F.3d 1270 (10th Cir. 2019). For a discussion of this case and its impact, see Julie Turkewitz, For Native Americans, a “Historic Moment” on the Path to Power at the Ballot Box, N.Y. Times (Jan. 4, 2018), available at https://​www.nyti​mes.com/​2018/​01/​04/​us/​nat​ive-​ameri​can-​vot​ing-​rig​hts. html?smid=​pl-​share. 135. Navajo Nation v. San Juan County, 929 F.3d at 1288. 136. See Robinson & Nelson, supra note 128, at 101–​08, 116–​32. 137. Brooks v. Gant, 2012 WL 4482984 (D.S.D. Sept. 27, 2012). See also Sanchez v. Cegavske, 214 F. Supp. 3d 961 (D. Nev. 2016). 138. Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976, 1024 (D.S.D. 2004), aff ’d, 461 F.3d 1011 (8th Cir. 2006). 139. For a discussion of the significance of the Native vote in the election of Tim Johnson, see Robinson & Nelson, supra note 128, at 94. 140. See Robinson & Nelson, supra note 128, at 148; McDonald, American Indians, supra note 124, at 265. 141. See Strengthening Democracy: A Progress Report on Federal Agency Action to Promote Access to Voting, at 3, available at https://​civi​lrig​hts.org/​resou​rce/​vot​ing-​eo-​rep​ort/​. 142. See id. 143. The Civil Rights Cases, 109 U.S. 3 (1883). 144. 42 U.S.C. §§ 3601 et seq. 145. 42 U.S.C. §§ 2000e et seq. 146. 42 U.S.C. §§ 1981, 1982. See Scott v. Eversole Mortuary, 522 F.2d 1110 (9th Cir. 1975); Davis v. Strata Corp., 242 F. Supp. 2d 643, 649 (D.N.D. 2003). 147. 42 U.S.C. §§ 2000a–​a6. 148. See Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq.; Davis, 242 F. Supp. 2d at 650. As noted in Chapter III, note 95, the Keepseagle case, a class action lawsuit filed against the U.S. Department of Agriculture (USDA) accusing the USDA of discriminating against more than 3,000 Indian farmers and ranchers seeking farm loans or loan servicing, was settled for more than $680 million. 149. Bethany Berger, Red: Racism and the American Indian, 56 UCLA L. Rev. 591, 656 (2009). 150. Repatriation Act Protects Native Burial Remains and Artifacts, Native American Rights Fund Legal Rev. 1–​2 (Winter 1990), available at https://​www.narf.org/​nill/​ docume​nts/​nlr/​nlr16-​1.pdf?_​ga=​2.127836​488.436843​245.157​4948​540-​114​7512​ 801.157​4948​540. 151. See Navajo Nation v. U.S. Dept. of Interior, 819 F.3d 1084, 1085, 1088 (9th Cir. 2016). 152. 20 U.S.C. §§ 80q et seq., Pub. L. No. 101-​185 (1989). 153. Pub. L. No. 101-​601, 104 Stat. 3048 (1990), codified at 25 U.S.C. §§ 3001–​13.

Civil Rights of Indians  359 154. Skibine, supra note 18, at 97. 155. 25 U.S.C. § 3010. 156. See Samuel Redman, How Many Human Skeletons Are in U.S. Museums, Columbian College of Arts and Sciences, History News Network (Mar. 6, 2016), available at https://​his​tory​news​netw​ork.org/​arti​cle/​161​946. 157. Warren Pratt, quoted in Charles E. Trimble, Joy, Sorrow and Pride at Pawnee Reburial, Indian Country Today (Nov. 5, 2008), available at https://​ictn​ews.org/​arch​ive/​ trim​ble-​joy-​sor​row-​and-​pride-​at-​a-​paw​nee-​rebur​ial. As beneficial as NAGPRA has been, noncompliance still exists. See Amal Ahmed, Thirty Years After Congress Passed the Native American Graves Protection and Repatriation Act, Only a Fraction of Human Remains Held by Texas’ Museums and Universities Have Been Returned, Texas Observer (Nov. 16, 2020), available at https://​www.texaso​bser​ver.org/​nat​ ive-​ameri​can-​gra​ves-​pro​tect​ion-​repat​riat​ion-​act-​texas. 158. See Yankton Sioux Tribe v. U.S. Army Corps of Engineers, 83 F. Supp. 2d 1047 (D.S.D. 2000) (enjoining federal officials from raising the water level of a lake until tribal officials could remove artifacts and human remains). See also Yankton Sioux Tribe v. U.S. Army Corps of Engineers, 194 F. Supp. 2d 977 (D.S.D. 2002). For a further discussion of NAGPRA, see Carpenter, supra note 8, at 467–​73. 159. 18 U.S.C. § 1170(a). See United States v. Carrow, 119 F.3d 796, 799–​800 (10th Cir. 1997), cert. denied, 522 U.S. 1133 (1998); United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999). 160. 18 U.S.C. § 1170. See Carrow, 119 F.3d at 799–​800. 161. The process of federal recognition is discussed in Chapter XIV, Section E. 162. RCW §§ 27.44 et seq. See Lummi Nation v. Golder Assoc., Inc., 236 F. Supp. 2d 1183 (W.D. Wash. 2002). 163. For an example of one such letter, see https://​tur​tlet​alk.files.wordpr​ess.com/​2023/​ 04/​nag​pra-​com​plia​nce-​let​ter-​uni​vers​ity-​of-​cal​ifor​nia-​berke​ley.pdf. 164. For a discussion of the issue, see https://​www.aclu.org/​blog/​rac​ial-​just​ice/​ameri​can-​ ind​ian-​rig​hts/​why-​redsk​ins-​wrong. 165. See https://​apn​ews.com/​arti​cle/​b6f69​1929​2f5a​3c94​cb23​d92b​de21​a54. 166. AB-​30 (2015), available at http://​legi​nfo.legi​slat​ure.ca.gov/​faces/​bil​lTex​tCli​ent. xhtml?bill​_​id=​201520​160A​B30. 167. LD 944 (May 16, 2019). See http://​legi​slat​ure.maine.gov/​LawM​aker​Web/​summ​ary. asp?ID=​280072​004. In New York, the Commissioner of Education issued a regulation which provides that “no public school in the State of New York may utilize or display an Indigenous name, logo, or mascot other than for purposes of classroom instruction.” (8 NYCRR 123.2). 168. See NCAA Decides, Am. Indian Report 8–​9 (Sept. 2005). See also Walter v. Oregon Bd. of Ed., 457 P.3d 288 (Or. App. 2019) (noting that Indian tribe consented to allowing local school to use the tribe as a mascot); Illinois Native American Bar Association v. University of Illinois, 856 N.E.2d 460 (Ill. App. 2006), appeal denied, 862 N.E.2d 234 (Ill. 2007) (allowing University of Illinois to use Chief Illiniwek as its mascot); Davidson v. North Dakota, 781 N.W.2d 72 (N.D. 2010) (holding that although one tribe consented to allowing the state university to use “Fighting Sioux”

360  The Rights of Indians and Tribes as a nickname and logo, another tribe did not, and the university needed to discontinue its use). 169. A list of these groups is available at National Congress of American Indians, Ending the Era of Harmful “Indian” Mascots, available at https://​arch​ive.ncai.org/​proudt​obe. 170. Id. 171. National Indian Education Association Resolution 09-​05. 172. Statement of Suzan Shown Harjo (Dec. 15, 2017), available at https://​www.indi​anz. com/​News/​2017/​12/​15/​suzan-​shown-​harjo-​offens​ive-​masc​ots-​belo.asp. 173. Kevin Gover, Native Mascots and Other Misguided Beliefs, Smithsonian Institution, Am. Indian 13 (Fall 2011), available at https://​ame​rica​nind​ian.si.edu/​sites/​1/​files/​ pdf/​semin​ars-​sympo​sia/​Fall2​011-​Direc​tor.pdf. 174. See http://​arch​ive.ncai.org/​news/​artic​les/​2019/​01/​11/​ncai-​appla​uds-​decis​ion-​by-​lit​ tle-​lea​gue-​intern​atio​nal-​to-​ban-​racia​lly-​offens​ive-​team-​names-​and-​masc​ots. 175. Available at  https://​tur​tlet​alk.blog/​2020/​12/​21/​nyts-​its-​2020-​ind​igen​ous-​team-​ names-​in-​spo​rts-​have-​to-​go/​. 176. See Jenny Gross, Chief of Cherokee Nations Asks Jeep to Stop Using Tribe’s Name, N.Y. Times (Feb. 25, 2021), available at https://​www.nyti​mes.com/​2021/​02/​25/​busin​ess/​ jeep-​grand-​chero​kee.html. 177. Pub. L. No. 90-​363, 82 Stat. 250-​251, June 28, 1968; 5 U.S.C. §6103. 178. Howard Zinn, Christopher Columbus & the Myth of Human Progress 1492–​1992, at 2 (1992). 179. Id. 180. Id. at 3. 181. See https://​apn​ews.com/​arti​cle/​don​ald-​trump-​holid​ays-​colum​bus-​day-​arch​ive-​nat​ ive-​americ​ans-​1e43a​d6d6​24fc​3e8b​33bd​6370​e710​c09. 182. For a discussion of the proclamation and the holiday, see Melina Delkic, Indigenous People’s Day, Explained, N.Y. Times (Oct. 11, 2021), available at https://​www.nyti​ mes.com/​2021/​10/​11/​us/​ind​igen​ous-​peop​les-​day.html. 183. See supra note 82. 184. Id. art. 43. 185. See United Nations Adopts Historic Declaration on the Rights of Indigenous Peoples, 3 NARF Legal Rev. 1 (Summer/​Fall 2007), available at https://​narf.org/​nill/​docume​ nts/​nlr/​nlr32-​2.pdf. 186. See supra note 185, at 6.

XIII The Indian Civil Rights Act Congress passed the Indian Civil Rights Act (ICRA) in 1968.1 The ICRA does two things that no other law does. First, it confers federal rights on all persons subject to the jurisdiction of a tribal government. Second, it authorizes federal courts to enforce those rights in certain contexts. Thus, the ICRA permits federal judges to overrule decisions made by tribal officials in the administration of internal tribal affairs. This is an encroachment on tribal sovereignty that many tribal members deeply resent, whereas other tribal members believe that these rights are necessary safeguards to protect them from tribal officials who abuse their authority.

Why did Congress pass the Indian Civil Rights Act?

In 1896 in Talton v. Mayes,2 the Supreme Court held that the U.S. Constitution imposed no limitations on tribal powers. Indian tribes, in other words, are free to govern themselves without regard to the restraints imposed by the Constitution on the state and federal governments. In 1978, the Supreme Court summarized this principle as follows: “As separate sovereigns pre-​ existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.”3 Talton v. Mayes had the effect of leaving internal (“intra-​ tribal”) controversies entirely in the hands of the tribe. Indians who objected to the way they were being treated by tribal officials had to resolve their complaints within the tribe. Neither federal courts nor federal officials had the authority to resolve an intra-​tribal dispute, even one alleging that tribal officials were engaging in an activity that would violate the Constitution if undertaken by a state or federal official.4 In 1962, the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary began a series of hearings concerning whether tribal governments were engaging in actions that would violate the Constitution if the Constitution were applicable. Many tribal members testified that tribal officials on some reservations were tyrannical and the The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0013

362  The Rights of Indians and Tribes government was unjust and unfair; that elections were rigged; and that they could not obtain justice in the tribal courts because the judges were puppets of the government. In short, “there was a significant amount of evidence of abuses by tribal governments and judges.”5 Many witnesses asked Congress to pass a law that would allow them to file cases against tribal officials in federal court. Other tribal members who testified at the hearings, however, disputed these allegations. Moreover, they said, there was no need for federal intervention in tribal affairs even if these allegations were true. If tribal members had complaints about tribal government, they should try to resolve them within the tribe, not have some outsider impose “white man’s law” on the tribe. In addition, many witnesses opposed the very notion that individuals should be given rights that they could enforce against the tribe because, historically, Indians have placed the rights of the community above the needs or interests of individuals. The forced recognition of individual rights, they argued, would undermine tribal sovereignty and foster an assimilationist agenda.6 Many members of the Senate Subcommittee were surprised to learn that the Constitution did not apply to tribal powers and that, as a result, tens of thousands of U.S. citizens were living under a government that did not have to respect the Bill of Rights. Senator Roman Hruska of Nebraska, for example, said that he was “jarred and shocked” to learn that tribal powers were “unchecked and unlimited” by the Constitution.7 The chair of the Subcommittee, Senator Sam Ervin of North Carolina, was equally disturbed. “Ervin felt strongly that all Americans deserved the protection of the Bill of Rights,” and he was determined to make certain that reservation Indians had similar protections.8 The Indian Civil Rights Act was the result. The ICRA seeks “to ensure that the American Indian is afforded the broad Constitutional rights secured to other Americans . . . [in order to] protect individual Indians from arbitrary and unjust actions of tribal governments.”9

What rights are conferred by the ICRA?

Section 1302 of the ICRA (Title 25, U.S. Code, § 1302) confers on all persons subject to tribal jurisdiction nearly all the civil rights found in the Constitution, including those in the Bill of Rights (the first ten amendments to the Constitution). Among them are the rights to free speech, press, and assembly; protection against unreasonable search and seizure; a speedy trial; protection against self-​incrimination; protection against cruel and unusual

The Indian Civil Rights Act  363 punishment; due process of law; and equal protection of the laws. It remains true today that persons subject to tribal authority do not have rights under the Constitution, but they have statutory rights under the ICRA that are nearly as broad. Initially, some senators suggested that all rights guaranteed by the Constitution be included in the ICRA.10 It was pointed out, however, that certain provisions of the Constitution would seriously undermine, if not destroy, tribal culture and tribal government. For instance, the Establishment Clause of the First Amendment11 requires the federal and state governments to remain neutral in matters of religion, and to keep government and religion separate.12 This restriction, however, would seriously disrupt those tribal governments, including several in the Southwest, in which religion and religious leaders have always played a central role in governing the tribe.13 In deference to the unique needs of Indian tribes, the ICRA does not contain an Establishment Clause. In addition, the constitutional requirements of convening a jury in civil cases (required by the Seventh Amendment), issuing grand jury indictments in criminal cases (required by the Fifth Amendment), and the duty to appoint counsel for an indigent criminal defendant (required by the Sixth Amendment) were not included in the ICRA in order to avoid imposing financial and administrative burdens that could cripple some tribes.14

Does the ICRA protect non-​Indians as well as Indians?

Yes. The ICRA applies to “any person” subject to the jurisdiction of a tribal government.15 Thus, to whatever extent an Indian tribe has jurisdiction over a person, the tribe is limited by the ICRA in the exercise of that jurisdiction.

Does the ICRA limit the punishments that tribal courts can impose?

Yes. As originally enacted in 1968, the punishments tribes could impose were limited to six months’ imprisonment and a fine of $500.16 The ICRA was amended in 1986 to permit sentences up to one year and a $5,000 fine.17 In 2010, as part of the Tribal Law and Order Act (TLOA), the ICRA was amended to authorize tribes to sentence a defendant to up to three years in jail and a $15,000 fine, under the following conditions: (1) if the tribe provides indigent defendants with a free attorney; (2) if the trial is conducted by a judge licensed to practice law; (3) if the tribe has published its criminal code; and (4) if the trial is recorded so that a transcript is available on

364  The Rights of Indians and Tribes appeal.18 Under TLOA, if a defendant is found guilty of more than one crime, the tribe may sentence that person to up to three years for each offense, not to exceed a maximum punishment of nine years.19 A defendant may not be sentenced to serve more than one year in jail for a single offense unless all the provisions of TLOA are met.20

Have some tribes needed to alter their institutions, procedures, or practices because of the ICRA?

Yes. Federal courts have ordered the release from tribal jail of persons convicted in violation of their rights under the ICRA, such as their right to a jury trial21 and to due process of law.22 Rarely, however, have federal courts found that a tribal court has violated the ICRA.23 A 2008 study found that 95 percent of tribal courts employ standard Anglo-​American legal principles in applying the ICRA.24 Many tribal courts also rely on tribal values, customs, and traditions in deciding cases, provided that doing so does not violate the ICRA.25 When the resolution of an issue depends on how tribal customs and traditions apply in that context, federal courts will defer to the tribal court’s interpretation of tribal law.26 Many tribal courts decide criminal cases on a daily basis and, as required by the ICRA, afford to the defendants all rights guaranteed by the ICRA.27

The rights in the ICRA were copied from the U.S. Constitution. Must they be interpreted similarly when applied in tribal court?

The ICRA contains a nearly verbatim rendition of the rights contained in the Bill of Rights and the Fourteenth Amendment to the Constitution. This does not mean, however, that the rights in the ICRA must be applied in tribal court the same way those analogous rights are applied in the state and federal courts. Congress enacted the ICRA to protect individuals from certain abuses. But Congress was also concerned, as the Supreme Court has noted, with the “unique political, cultural, and economic needs of tribal governments,” as evidenced by the fact that Congress chose not to incorporate every constitutional right into the ICRA.28 The ICRA balances the need to protect persons subject to tribal authority with the desire to avoid unnecessary interference with internal tribal affairs. Federal courts have sought to interpret the ICRA in a manner that reflects this dual congressional purpose. Courts have been reluctant to order a

The Indian Civil Rights Act  365 change that would “significantly impair a tribal practice or alter a custom firmly imbedded in Indian culture.”29 However, whenever a tribe has already adopted the federal practice, or imposing the federal practice would not significantly impact a tribal custom or tradition, or the individual liberty at issue is of paramount importance under federal law, a provision in the ICRA will be interpreted as having the same scope as the analogous right in the Constitution.30

If a criminal defendant in tribal court cannot afford to hire a lawyer, does the ICRA require the tribe to appoint one?

The Sixth Amendment to the Constitution requires state and federal courts to appoint counsel for indigent defendants in criminal cases where the defendant may be sentenced to even one day of incarceration.31 During the Senate hearings on the ICRA, tribal leaders asked Congress not to impose that duty on tribal courts due to the tremendous expense of appointing counsel.32 This testimony persuaded Congress. The ICRA guarantees a criminal defendant the right to counsel only “at his own expense,”33 although if the tribe chooses not to appoint counsel, the maximum sentence that can be imposed is one year of incarceration.34 In 2016 in United States v. Bryant,35 the Supreme Court upheld the validity of denying counsel under the ICRA and held, moreover, that a tribal court conviction without counsel can be counted as a “prior conviction” when a federal court is considering whether to enhance a sentence for persons with prior convictions. Some tribes, including the Navajo Nation, require their courts to appoint counsel to indigent criminal defendants even though that is not a duty imposed by the ICRA.36

What remedies in federal court are available for violations of the ICRA?

The ICRA authorizes only one federal remedy. It is set forth in Section 1303 of the Act, which reads in its entirety: “The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” A writ of habeas corpus is a court order requiring that a person in custody be brought before the court so that the legality of that person’s detention can be determined. The writ is directed to the custodian of the detainee, that is, to the person holding the petitioner. If the court then determines that the detention is illegal, the court can order the custodian to release the detainee.

366  The Rights of Indians and Tribes Thus, Section 1303 guarantees that violations of the ICRA that result in an arrest and incarceration can be remedied by a federal court. Many rights conferred by the ICRA, however, apply in “noncustodial” situations. For example, the ICRA’s due process clause is violated when a tribe arbitrarily removes a person from tribal membership (“disenrollment”), and the ICRA’s free speech clause is violated when a tribal member is fired from tribal employment merely for criticizing the tribal chairperson. Yet tribal members who suffer these violations of their ICRA rights cannot obtain a remedy in federal court because there was no arrest or incarceration. In other words, if a tribal member is arrested and is being detained for criticizing the tribal chairperson, she can challenge her detention in federal court under the ICRA as a violation of her free speech, but if she is only fired from her tribal job, she cannot. For a decade after the passage of the ICRA, federal courts ruled that Indian tribes could be sued in federal court by persons alleging noncustodial violations of the ICRA, citing a law passed shortly after the Civil War that authorizes federal courts to hear cases alleging a violation of one’s civil rights.37 Some eighty noncustodial ICRA challenges were litigated between 1968 and 1978 involving such issues as disenrollment, violations of free speech, loss of voting rights, or loss of tribal employment.38 In 1978 in Santa Clara Pueblo v. Martinez,39 however, the Supreme Court rejected the reasoning of these lower court decisions and held that a writ of habeas corpus is the only remedy federal courts may grant under the ICRA. Indian tribes, the Court explained, are immune from being sued unless Congress or the tribe has given its express consent to the lawsuit—​a principle known as sovereign immunity (discussed in Chapter XVII). When Congress selected habeas corpus as the exclusive remedy for ICRA violations, the Court held, Congress did not waive the tribe’s immunity from suit; rather, Congress merely authorized a lawsuit against the individual holding the petitioner, not against the government itself. Consequently, the only persons who can raise an ICRA challenge in federal court are those who are in tribal custody and are seeking a writ of habeas corpus.40 The ICRA confers many federal rights for which there is no federal court remedy.41 And even when a custodial violation has occurred and the federal court orders the tribe to release the defendant, the court has no authority to order any other remedy, such as damages to the victim of the ICRA violation.42 In order for a federal court to have jurisdiction, moreover, the petition for a writ of habeas corpus must be filed while the petitioner is in detention

The Indian Civil Rights Act  367 and not after release from custody,43 unless the defendant can show that collateral consequences or burdens are flowing, or likely will flow, from the arrest and conviction.44 Despite Santa Clara Pueblo, many people have continued to file suit against Indian tribes seeking a remedy for a noncustodial violation of the ICRA, only to have the court dismiss the case due to lack of jurisdiction. These cases have alleged such ICRA violations as wrongful disenrollment45 or threat of disenrollment;46 wrongful banishment from tribal land;47 wrongful termination from tribal employment;48 wrongful denial of a tribal vendor’s license;49 wrongful seizure of personal property;50 wrongful denial of tribal benefits;51 wrongful eviction from a reservation home;52 misuse of authority in appointing someone as a tribal judge;53 excessive force by tribal police;54 negligence in the operation of a tribal store;55 wrongful preclusion of nonresidents to vote in tribal elections;56 and wrongful removal from the reservation.57 Recently, several tribal members filed an ICRA lawsuit in federal court alleging that, in retaliation for accusing tribal leadership of financial mismanagement, those officials eliminated their share of profits from tribal gaming (their “per capita” payments) and banned them from entering tribal lands and facilities for ten years. This type of retaliation would be a clear violation of the First Amendment’s Free Speech Clause if done by a state or federal official, but the federal court dismissed the case because the ICRA provides no remedy for this type of violation.58 Shortly after Santa Clara Pueblo was decided in 1978, a federal appellate court allowed a non-​Indian to pursue an ICRA claim that arose in a noncustodial setting.59 Since then, however, this same court (obviously realizing that its ruling was inconsistent with Santa Clara Pueblo) has dismissed every other noncustodial ICRA case, explaining that its earlier ruling had “minimal precedential value.”60 In another questionable decision, a federal court ruled that tribal court decisions determining the custody of an Indian child in a divorce case can be reviewed under the ICRA in federal court.61 Other courts have questioned this ruling or reached the opposite conclusion.62 At least one court has held that a tribe’s decision to permanently banish someone from the reservation and disenroll that person as a member of the tribe qualifies as a “detention” under the ICRA, and the court allowed this challenge of tribal authority to proceed as a habeas corpus action even though there had been no incarceration.63 The overwhelming majority of courts, however, have held that anything less than an incarceration does not

368  The Rights of Indians and Tribes permit a federal court to adjudicate the case, not even when there had been a temporary banishment from a portion of the reservation,64 or the issuance of a fine without an incarceration.65 Federal courts have created the rule that a petition for writ of habeas corpus under the ICRA cannot be sought in a federal court until the petitioner has fully exhausted tribal remedies, including available appeals and petitions for habeas corpus in tribal court.66 An exhaustion requirement of this nature maximizes tribal independence and prevents unnecessary federal intervention in tribal affairs.67 A failure to exhaust tribal remedies is allowed only in limited circumstances; if, for instance, the tribal arrest was made in bad faith or the tribe lacks a functioning court system.68

What other alternatives may exist for the victim of an ICRA violation?

The Supreme Court held in Santa Clara Pueblo that noncustodial ICRA cases cannot be heard in a federal court due to the tribe’s sovereign immunity. At the same time, however, the Court indicated that these cases can be heard in a tribal forum. “Tribal forums are available,” the Court said, “to vindicate rights created by the ICRA, and Section 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply.”69 In a later case, the Court reiterated its understanding that the ICRA provides all persons “with various protections against unfair treatment” in a tribal venue.70 These statements by the Supreme Court, however, were “dicta.” (“Dicta” are statements in a court opinion that are not necessary to the decision being rendered, and therefore have no binding, obligatory effect. Given that the issue in Santa Clara Pueblo was whether the federal courts could hear noncustodial cases—​and the Court held that they cannot—​the Court’s statement that tribal courts can hear them was dicta.) The Supreme Court apparently believes that noncustodial ICRA cases can be heard in a tribal forum, but no decision of the Court has squarely imposed that duty. Moreover, the ICRA does not specifically require Indian tribes to provide a forum in which these cases must be heard. Numerous tribal courts have addressed the question of whether the ICRA waives tribal sovereign immunity from suit in tribal court, some holding that the ICRA does not waive tribal immunity71 and others holding that it does.72 Many tribes have amended their constitutions to consent to ICRA suits in tribal court. Some authorize suits only for declaratory and injunctive

The Indian Civil Rights Act  369 relief and not damages, whereas other constitutions authorize both. The Constitution of the Mandan, Hidatsa, and Arikara Nation (also known as the Three Affiliated Tribes) of the Ft. Berthold Reservation in North Dakota confers on its tribal courts “the authority to enforce the provisions of the Indian Civil Rights Act.”73 The Constitution of the Turtle Mountain Band of Chippewa Indians of North Dakota authorizes its courts “to ensure due process, equal protection, and protection of rights arising under the Indian Civil Rights Act, as amended, for all persons and entities subject to the criminal and civil jurisdiction of the Turtle Mountain Tribe.”74 The Constitution of the Confederated Tribes of the Grand Ronde Community in Oregon grants its courts the power “to review and overturn Tribal legislative and executive actions for violation of this Constitution or the Indian Civil Rights Act.”75 The Constitution of the Rosebud Sioux Tribe confers on its tribal courts “the power to review and overturn tribal legislative and executive actions for violations of the Constitution or of the Federal Indian Civil Rights Act of 1968.”76 On these reservations, lawsuits alleging a noncustodial violation of the ICRA may be heard in tribal court to the extent authorized by tribal law. As one authority recently noted, many tribes—​either by tribal court decision or by constitutional or statutory decree—​have held “that tribal sovereign immunity does not bar ICRA claims for injunctive or declaratory relief in tribal court.”77 Tribal courts in noncustodial ICRA cases have often ruled against the tribe or tribal officials. Tribal courts have ordered tribal officials to repay money illegally taken from the tribe,78 ordered a tribal council to reinstate a tribal judge illegally expelled from office,79 ordered tribal officials to provide a fair hearing to a tribal member banned from the reservation,80 ordered tribal officials to reinstate a non-​Indian employee who was fired without a fair hearing,81 ordered tribal officials not to remove Indian children from the custody of their grandmother until she was given a fair hearing,82 and ordered tribal officials to adhere to due process standards in applying the tribe’s requirements for membership.83 Relying on the ICRA, a tribal appellate court ordered a tribal trial court to ensure that a fair hearing was afforded to an attorney facing suspension from practicing law in tribal court.84 Indian tribes, of course, always have the right to authorize their courts to afford remedies under tribal law, including an award of damages, without reliance on the ICRA.85 In 1980, two years after the Supreme Court’s decision in Santa Clara Pueblo, the Bureau of Indian Affairs (BIA) warned tribes that violations of

370  The Rights of Indians and Tribes the ICRA could result in the loss of federal funds or, in those instances where tribal election laws had been violated, a refusal by the federal government to recognize tribal officials as being legitimately seated.86 Since then, however, the BIA has done little to enforce the ICRA and appears to have adopted a hands-​off policy regarding ICRA violations.87 A federal criminal law prohibits persons from conspiring to deny other persons of their civil rights.88 One federal court has ruled that persons who conspire to rig a tribal election, thereby denying tribal members rights protected by the ICRA, can be prosecuted under this federal law.89

Should the ICRA be amended to authorize federal lawsuits against tribal governments?

Congress has been asked to amend the ICRA to authorize federal courts to hear noncustodial violations—​ especially cases alleging improper disenrollment from tribal membership, because those persons are prevented by the disenrollment from voting the alleged wrongdoers out of office.90 In 1999, an Indian-​owned newspaper, Indian Country Today, stated in an editorial that “strengthening the Indian Civil Rights Act must become a priority.” According to the editors of the paper, “we get at least one call a week detailing Indian government abuses against its own citizens. Misappropriation of money, handouts to relatives, nepotism and abuse of sovereignty are a few of the problems facing many Indian communities,” as well as retaliation against tribal members “who attempt to expose corrupt leaders or stand up for their civil rights.” The editorial recommended that the ICRA be amended to permit federal courts to hear cases involving noncustodial violations of the ICRA.91 Several federal courts that dismissed noncustodial ICRA cases due to the tribe’s sovereign immunity indicated their displeasure with having to do so. One court lamented the “lack of meaningful remedies” available to victims of noncustodial ICRA violations,92 another was “troubled by its inability to afford the plaintiff an opportunity to vindicate her rights” under the ICRA,93 and still another saw a “danger” in allowing tribes to disenroll members without providing the opportunity for judicial review.94 If tribes commit noncustodial violations of the ICRA and fail to offer a remedy in tribal court, Congress could be pressured into abolishing tribal sovereign immunity to permit federal courts to hear these cases. Surely tribes would prefer that their own courts resolve these cases than a federal court.95

The Indian Civil Rights Act  371

In what way was the ICRA amended by the Violence Against Women Act?

The Supreme Court ruled in 1978 that Indian tribes do not have the authority to arrest and prosecute non-​Indians who violate tribal law.96 Yet, as discussed in Chapter VII, non-​Indians commit numerous crimes in Indian country, including most of the sexual assaults against tribal women. In 2013 and again in 2022, Congress amended the ICRA as part of its reauthorization of the Violence Against Women Act (VAWA) to restore to tribal authority the power to prosecute non-​Indians in tribal court for certain crimes of domestic violence, provided that the tribes afford them the protections guaranteed by the ICRA.97 Many tribal members continue to view the ICRA as an unnecessary and unwarranted invasion of tribal sovereignty. Others believe it should be expanded to allow federal courts to hear cases involving noncustodial violations of the Act to protect tribal members from abuse. This sharp debate illustrates why the ICRA remains highly controversial.

Notes 1. 25 U.S.C. §§ 1301 et seq. 2. 163 U.S. 376 (1896). 3. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). See also Wheeler v. United States, 435 U.S. 313 (1978). 4. See Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967). But see Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965). 5. Matthew L.M. Fletcher, A Unifying Theory of Tribal Civil Jurisdiction, 46 Ariz. St. L.J. 779, 809 (2014). The legislative history of the Indian Civil Rights Act is discussed in Donald Burnett, An Historical Analysis of the 1968 Indian Civil Rights Act, 9 Harv. J. on Legis. 557 (1971–​1972); Alvin Ziontz, In Defense of Tribal Sovereignty: An Analysis of Judicial Error in Construction of the Indian Civil Rights Act, 20 S.D. L. Rev. 1 (1975); Joseph de Raismes, The Indian Civil Rights Act of 1968 and the Pursuit of Responsible Tribal Self-​Government, 20 S.D. L. Rev. 59, 73 (1975). See also United States v. Wadena, 152 F.3d 831, 843–​44 (8th Cir. 1997), cert. denied, 526 U.S. 1050 (1999). 6. See Carole E. Goldberg, Individual Rights and Tribal Revitalization, 35 Ariz. St. L.J. 889 (2003); Robert B. Porter, Strengthening Tribal Sovereignty through Peacemaking: How the Anglo-​American Legal Tradition Destroys Indigenous Societies, 28 Colum. Hum. Rts. L. Rev. 235, 278 (1997). 7. 113 Cong. Rec. 35,473 (Dec. 7, 1967) (statement of Sen. Roman Hruska (R. Neb.)).

372  The Rights of Indians and Tribes 8. John R. Wunder, Retained by the People: A History of American Indians and the Bill of Rights 127 (1994). See also Burnett, supra note 5, at 575. 9. S. Rep. No. 841, 90th Sess. 6 (1967). See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978). 10. See Groundhog v. Keeler, 442 F.2d 674, 681–​82 (10th Cir. 1971). 11. The Establishment Clause reads in relevant part: “Congress shall make no law respecting an establishment of religion. . . .” 12. See Chapter XII, Section A. 13. See Justin B. Richland & Sarah Deer, Introduction to Tribal Legal Studies 248 (2004). 14. See Santa Clara Pueblo, 436 U.S. at 66–​70. 15. 25 U.S.C. § 1302. 16. Pub. L. No. 90-​284, Title II, § 202, 82 Stat. 77 (1968). 17. Pub. L. No. 99-​570, Pt. V, § 4217, 100 Stat. 3207-​146 (1986). 18. 25 U.S.C. § 1302(c)(2). 19. 25 U.S.C. § 1302(a)(7)(D). 20. 25 U.S.C. § 1302(c). See Picard v. Colville Tribal Correctional Facility, 2021 WL 768137 (E.D. Wash. 2021), and Picard v. Colville Confed. Tribes, 2020 WL 858912 (Colv. Ct. App. 2020). 21. Alvarez v. Lopez, 835 F.3d 1024 (9th Cir. 2016). 22. See Big Eagle v. Andera, 509 F.2d 1293 (8th Cir. 1975), on remand, 418 F. Supp. 126 (D.S.D. 1976) (vague criminal laws), and Wounded Knee v. Andera, 416 F. Supp. 1236 (D.S.D. 1976) (lack of an impartial judge). 23. See Mark D. Rosen, Multiple Authoritative Interpretations of Quasi-​Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 522 (2000). 24. Matthew L.M. Fletcher, Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data, MSU Legal Studies Research Paper No. 06-​05 (2008), at 16–​ 26, available at https://​pap​ers.ssrn.com/​sol3/​pap​ers.cfm?abst​ract​_​id=​1103​474. 25. See Rosen, supra note 23, at 522, 583; Matthew L.M. Fletcher, Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited, 84 U. Colo. L. Rev. 59, 75 (2013). 26. See Kelsey v. Pope, 809 F.3d 849, 864 (6th Cir. 2016); Note, ICRA Reconsidered: New Interpretations of Familiar Rights, 129 Harv. L. Rev. 1709, 1720–​23 (2016). 27. See, e.g., Gallaher v. Colville Confed. Tribes, 7 CTCR 23, 2018 WL 6240913 (Colv. Ct. App. 2018), available at https://​narf.org/​nill/​bullet​ins/​tri​bal/​docume​nts/​gall​aher​_​v_​ c​olvi​lle.html; So. Ute Tribe v. Henry, No. 17-​APP-​0065 (So. Ute Ct. App. 2017), available at https://​narf.org/​nill/​bullet​ins/​tri​bal/​docume​nts/​south​ern_​ute_​v_​he​nry.html. 28. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62–​63 (1978); see also Chegup v. Ute Indian Tribe of the Uintah and Ouray Reservation, 28 F.4th 1051, 1063 (10th Cir. 2022) (noting that the ICRA strikes a “careful balance”); Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 697 (8th Cir. 2019). 29. Howlett v. Salish & Kootenai Tribes, 529 F.2d 233, 234 (9th Cir. 1976); Wounded Head v. Tribal Council, 507 F.2d 1079 (8th Cir. 1975); Salem v. Warm Springs Tribal

The Indian Civil Rights Act  373 Correctional Facility, 134 F.3d 948 (9th Cir. 1998); Wounded Knee v. Andera, 416 F. Supp. 1236 (D.S.D. 1976). 30. See Kelsey v. Pope, 809 F.3d at 864; United States v. Schmidt, 403 F.3d 1009, 1013 (8th Cir. 2005). 31. See Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972). 32. See Burnett, supra note 5, at 590–​91. 33. 25 U.S.C. § 1302(6). See United States v. Mitchell, 502 F.3d 931, 960 n.3 (9th Cir. 2007); Jackson v. Tracy, 2012 WL 4120419 (D. Ariz. 2012), aff ’d, 549 Fed. Appx. 643 (9th Cir. 2013), cert. denied, 573 U.S. 909 (2014). 34. 25 U.S.C. § 1302(b). 35. 136 S. Ct. 1954 (2016). 36. See Means v. Navajo Nation, 432 F.3d 924, 935 n.78 (9th Cir. 2005), citing Navajo Nation Code title 1. Thus, Navajo law confers a broader right to counsel than the ICRA requires. See Apachito v. Navajo Election Admin., 14 Am. Tribal Law 154 (Nav. Sup. Ct. 2017), available at https://​narf.org/​nill/​bullet​ins/​tri​bal/​docume​nts/​apachi​ to_​v​_​nav​ajo.html. 37. 28 U.S.C. § 1343(4). The first appellate court to reach this conclusion was Luxon v. Rosebud Sioux Tribe, 455 F.2d 698 (8th Cir. 1972). 38. For a partial list of these cases, see http://​www.tri​bal-​instit​ute.org/​lists/​icra-​cases.htm. 39. 436 U.S. 49 (1978). 40. Means, 432 F.3d at 932 n.49. For a critical examination of Santa Clara Pueblo, see Gabriel S. Galanda, In the Spirit of Vine Deloria, Jr.: Indigenous Kinship Renewal and Relational Sovereignty, available at https://​tur​tlet​alk.blog/​2023/​02/​15/​gabe-​gala​nda-​ on-​ind​igen​ous-​kins​hip-​rene​wal-​and-​rel​atio​nal-​sove​reig​nty/​. 41. See Kristin A. Carpenter, Matthew L.M. Fletcher, & Angela R. Riley eds., The Indian Civil Rights Act at Forty 167 (2012). 42. See Kaw Nation v. McCauley, 378 F.3d 1139, 1142 (10th Cir. 2004). 43. Oviatt v. Reynolds, 733 Fed. Appx. 929 at *1 (10th Cir. 2018); Valenzuela v. Silversmith, 699 F.3d 1199, 1205–​06 (10th Cir. 2012). 44. See Kelsey v. Pope, 809 F.3d 849, 854 (6th Cir. 2016) (holding that a defendant on probation has standing to pursue a writ of habeas corpus). This is the rule in non-​ICRA cases in which habeas relief is sought. See Carafas v. LaValee, 391 U.S. 234, 237–​38 (1968). 45. Jeffredo v. Macarro, 599 F.3d 913 (9th Cir. 2009); Shenandoah v. U.S. Department of Interior, 159 F.3d 708, 713–​14 (2d Cir. 1996). 46. John v. Garcia, 2018 WL 1569760 (N.D. Cal. 2018). 47. Tavares v. Whitehouse, 851 F.3d 863 (9th Cir. 2017), cert. denied, 138 S. Ct. 1323 (2018). 48. Jones v. Salt River Pima-​Maricopa Indian Community, 125 Fed. Appx. 879 (9th Cir. 2005); Gallegos v. Jicarilla Apache Nation, 97 Fed. Appx. 806 (10th Cir. 2003), cert. denied, 542 U.S. 938 (2004); Cohen v. Winkleman, 2007 WL 2746913 (W.D. Okla. 2007). 49. Walton v. Tesuque Pueblo, 443 F.3d 1274 (10th Cir. 2006).

374  The Rights of Indians and Tribes 50. Miner Electric, Inc. v. Muscogee (Creek) Nation, 585 F.3d 1007 (10th Cir. 2007). 51. Nero v. Cherokee Nation, 892 F.2d 1457 (10th Cir. 1989). 52. Shenandoah v. Halbritter, 366 F.3d 89 (2d Cir. 2004), cert. denied, 544 U.S. 974 (2005). 53. Kaw Nation v. McCauley, 378 F.3d 1139, 1142 (10th Cir. 2004). 54. Sturdevant v. Menominee Indian Tribe of Wisconsin, 2010 WL 2571966 (E.D. Wis. 2010). 55. Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, 259 F. Supp. 3d 713, 722 (W.D. Mich. 2017). 56. Cross v. Fox, 23 F.4th 797 (8th Cir. 2022). 57. Spurr v. Pope, 936 F.3d 478 (6th Cir. 2019). 58. Tavares v. Whitehouse, 851 F.3d 863 (9th Cir. 2017), cert. denied, 138 S. Ct. 1323 (2018). 59. Dry Creek Lodge, Inc. v. United States, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118 (1981). 60. See Walton v. Tesuque Pueblo, 443 F.3d 1274, 1279 (10th Cir. 2006) (citations omitted); Kaw Nation, 378 F.3d 1139 (10th Cir. 2004). 61. DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510 (8th Cir. 1989). 62. See Garcia v. Gutierrez, 217 P.3d 591, 594 n.1 (N.M. 2009); Azure-​Lone Fight v. Cain, 317 F. Supp. 2d 1148 (D.N.D. 2004); Sandman v. Dakota, 816 F. Supp. 448 (D. Mich. 1992). 63. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 876–​78 (2d Cir.), cert. denied, 519 U.S. 1041 (1996). 64. Tavares v. Whitehouse, 851 F.3d 863 (9th Cir. 2017), cert. denied, 138 S. Ct. 1323 (2018). 65. Moore v. Nelson, 270 F.3d 789 (9th Cir. 2001). 66. Alvarez v. Lopez, 835 F.3d 1024, 1027 (9th Cir. 2016); Valenzuela v. Silversmith, 699 F.3d 1199, 1205-​06 (10th Cir. 2012); Azure v. Turtle Mountain Tribal Court, 2009 WL 113597 (D.N.D. 2009). 67. See National Farmers Union Insurance Co. v. Crow Tribe, 471 U.S. 845, 856 (1985). 68. See Valenzuela, 699 F.3d at 1206–​07; Johnson v. Gila River Indian Community, 174 F.3d 1032, 1036 (9th Cir.), cert. denied, 528 U.S. 875 (1999); DeMent v. Oglala Sioux Tribal Court, 874 F.2d 514 (8th Cir. 1989); Toya v. Toledo, 2017 WL 39935554 at **3–​4 (D.N.M. 2017). 69. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978). 70. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987). 71. See Macleod v. Sault Ste. Marie Tribe of Chippewa Indians, Case No. APP-​21-​01 (Sault Ste. Marie Ct. App. 2022), available at https://​tur​tlet​alk.files.wordpr​ess.com/​ 2022/​12/​opin​ion-​and-​order-​app-​21-​01.macl​eod.pdf; Shenandoah v. Halbritter, 28 Indian L. Rep. 6036 (Oneida Nation Tr. Ct. 2001); Smith d/​b/​a Frosty’s v. Confederated Salish & Kootenai Tribes, 23 Indian L. Rep. 6256 (C.S. & K.T. Tr. Ct. 1996); Pawnee Tribe of Oklahoma v. Franseen, 19 Indian L. Rep. 6006 (Ct. Ind. App.-​Pawnee 1991); Johnson v. Navajo Nation, 14 Indian L. Rep. 6037, 6040 (Nav. Sup. Ct. 1987); Satiacum v. Sterud, 10 Indian L. Rep. 6013 (Puyallup Tr. Ct. 1983).

The Indian Civil Rights Act  375 72. See Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law § 14.04[2]‌, 988 (2012 ed.); Jackson v. Kahgegb, 33 Indian L. Rep. 6105 (Sag. Chip. Ct. App. 2003); Works v. Fallon Paiute-​Shoshone Tribe, 24 Indian L. Rep. 6078 (Inter-​Tr. Ct. App. 1997); Burns Paiute Indian Tribe v. Dick, 22 Indian L. Rep. 6016 (Burns Paiute Ct. App. 1994); Davis v. Keplin, 18 Indian L. Rep. 6148 (Turt. Mt. Tr. Ct. 1991); Committee for Better Tribal Government v. Southern Ute Election Board, 17 Indian L. Rep. 6145 (S. Ute. Tr. Ct. 1990). 73. Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation (2010), art. VI, § 3(b), available at https://​stat​ic1.squa​resp​ace.com/​sta​ tic/​5a5fa​b083​2601​e33d​9f68​fde/​t/​5ad8e​f90a​a4a9​9672​f22d​f16/​152416​6546​435/​TAT+​ Const​itut​ion+​v.2010.pdf. 74. Turtle Mountain Band of Chippewa Indians Tribal Constitution (2015), art. XIV, § 3(a), available at https://​tmc​hipp​ewa.com/​wp-​cont​ent/​uplo​ads/​2018/​03/​TRI​BAL-​ CONST​ITUT​ION-​2015.pdf. 75. Constitution and Bylaws of the Confederated Tribes of the Grand Ronde Community of Oregon (2008), art. IV, § 3, available at https://​narf.org/​nill/​consti​tuti​ons/​confe​ dera​ted_​gran​d_​ro​nde/​index.html. 76. Constitution of the Rosebud Sioux Tribe of South Dakota, art. XI, § 3, available at https://​narf.org/​nill/​consti​tuti​ons/​roseb​udco​nst/​index.html. See Scott v. Kindle (Rosebud Sup. Ct. 2015), available at https://​tur​tlet​alk.blog/​tag/​scott-​v-​kin​dle/​. 77. Robert T. Anderson, Sarah A. Krakoff, & Bethany Berger, American Indian Law 380 (4th ed. 2019). 78. Bordeaux v. Wilkinson, 21 Indian L. Rep. 6131 (Ft. Bert. Tr. Ct. 1993). 79. McKinney v. Business Council of the Shoshone-​Paiute Tribes, 20 Indian L. Rep. 6020 (Duck Valley Tr. Ct. 1993). 80. Burns Paiute Indian Tribe v. Dick, 22 Indian L. Rep. 6016 (Burns Paiute Ct. App. 1994). 81. Grossi v. Mashantucket Pequot Gaming Enterprise, 26 Indian L. Rep. 6112 (Mash. Pequot Ct. App. 1998). See also Synowski v. Confederated Tribes of Grand Ronde Indian Community, 31 Indian L. Rep. 6117 (Confed. Tribe Grand Ronde Ct. App. 2003). 82. In re Welfare of D.D., 22 Indian L. Rep. 6020 (Port Gam. S’Klallam Ct. App. 1994). 83. Bryant v. Saginaw Chippewa Tribal Clerk, 32 Indian L. Rep. 6090, 6096 (Sag. Chip. Ct. App. 2005). 84. In re Suspension of Bluespruce, 31 Indian L. Rep. 6105 (Chy. Riv. Ct. App. 2004). 85. See Louis-​Williams v. Colville Confed. Tribes, 14 CCAR 35, 2019 WL 1452888 (Colv. Ct. App. 2019), available at https://​narf.org/​nill/​bullet​ins/​tri​bal/​docume​nts/​louis​will​ iams​_​v_​c​olvi​lle.html. 86. “Interior Department/​ Bureau of Indian Affairs Policy Regarding Relationship with Tribal Governments,” issued June 12, 1980, discussed in 7 Indian L. Rep. 6021 (Aug. 1980). 87. One of the few areas in which the BIA will occasionally intervene in internal tribal disputes concerns elections, as discussed in Chapter V, Section B(2). 88. 18 U.S.C. § 241. 89. United States v. Wadena, 152 F.3d 831 (8th Cir. 1997), cert. denied, 526 U.S. 1050 (1999).

376  The Rights of Indians and Tribes 90. See Gabriel S. Galanda & Ryan D. Dreveskracht, Curing the Tribal Disenrollment Epidemic: In Search of a Remedy, 57 Ariz. L. Rev. 385 (2015); Eric Reitman, Note, An Argument for the Partial Abrogation of Federally Recognized Indian Tribes’ Sovereign Power over Membership, 92 Va. L. Rev. 793 (2006). The subject of disenrollment is further discussed in Chapter VI, notes 102–​16 and accompanying text. 91. Editorial, Civil Rights Are Basic Rights, Indian Country Today (Jan. 11, 1999), at A4. 92. Wells v. Philbrick, 486 F. Supp. 807, 809 (D.S.D. 1980). See also Shortbull v. Looking Elk, 677 F.2d 645 (8th Cir.), cert. denied, 459 U.S. 907 (1982). 93. Cohen v. Winkleman, 2007 WL 2746913 at *2 (W.D. Okla. 2007), aff ’d on other grounds, 302 Fed. Appx. 820 (10th Cir. 2008). 94. See Shenandoah v. Halbritter, 366 F.3d 89, 93 (2d Cir. 2004). 95. See Galanda & Dreveskracht, supra note 90, at 447 (urging tribes to authorize their courts to hear disenrollment disputes). 96. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 97. 25 U.S.C. § 1304. The scope of tribal jurisdiction under VAWA is explained in Chapter VII, notes 77–​89 and accompanying text.

XIV The Unique Status of Certain Native American Groups Certain Native American groups have a unique status under federal law, including the Pueblos of New Mexico, Alaska Natives, Oklahoma Tribes, New York Tribes, and the non-​federally recognized tribes. This chapter discusses the federal government’s unique relationship with each of these groups.

A.  THE PUEBLOS OF NEW MEXICO Native communities were well-​established in what is now New Mexico long before the Spanish conquistadors entered the region during the seventeenth century. Each community had its own government, language, and culture. There are nineteen Pueblos in New Mexico today. Each is a different tribe politically and culturally, although several Pueblos in the northern part of the state trace a shared lineage to the Tewa people who inhabited the area centuries ago.1 The Spanish felt that it was their duty to “civilize” the Pueblo Indians. To help accomplish this, they built a church in each Pueblo and then issued a land grant recognizing the Pueblo’s ownership of certain lands surrounding the church, usually one league (2.6 miles) in each of the four directions, creating a square.2 Spain also passed laws prohibiting non-​Indians from living or trespassing on Pueblo land. After Mexico gained its independence from Spain in 1810, the Mexican government reaffirmed these land grants and extended Mexican citizenship to the Pueblo Indians. The Mexican government, however, did little to protect the Pueblos from being attacked by outsiders, and many Pueblos lost land during this period.

The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0014

378  The Rights of Indians and Tribes The United States acquired the territory of New Mexico in an 1848 treaty with Mexico, the Treaty of Guadalupe Hidalgo, in which the United States promised to preserve the land rights that Mexico had granted to the Pueblos. Congress enacted laws acknowledging the right of the Pueblos to continue to own their lands. But the federal government, too, did little to protect the Pueblos, and once again they were attacked by non-​Indians and land was stolen. Some Pueblos filed suit to recover their land under the Indian Nonintercourse Act of 1790,3 which prohibits the taking of tribal land unless the federal government consents. The suit was dismissed in 1876, however, when the Supreme Court ruled that the Pueblos were not “Indian tribes” eligible for protection under federal law.4 In 1913, the Supreme Court reversed its 1876 decision and ruled that the Pueblos are in fact “Indian tribes” for purpose of federal protection.5 Soon thereafter, Congress appropriated funds for the construction of schools, bridges, roads, and irrigation systems within the Pueblos and passed laws that protected Pueblo lands, the most notable of which was the Pueblo Lands Act of 1924.6 The Act created the Pueblo Lands Board to review all land claims raised by the Pueblos. If the board determined that a Pueblo had lost land illegally, the federal government was required to file suit on behalf of the Pueblo to recover that land, or compensate the Pueblo for any land that could not be recovered. As a result of the Act, Pueblos recovered some of their stolen lands and received compensation for the rest. Today, the Pueblos own approximately 7.5 million acres of land, nearly 11 percent of New Mexico.7 Fourteen of the nineteen Pueblos operate casinos, some of which are very successful and contribute substantially to the economy of the state.8 An official publication of New Mexico recognizes that each Pueblo “is a sovereign nation with its own government, life-​ways, traditions, and culture.”9 The Pueblo Lands Act was amended in 2005 to clarify which government—​ tribal, state, or federal—​could exercise its jurisdiction over crimes committed on the land within the Pueblos owned by non-​Indians.10 The amendment makes clear that this land remains “Indian country” under federal law.11 Under the amendment, the Pueblo has jurisdiction if the offense is committed by a member of the Pueblo or by any other Indian; the United States has jurisdiction if the offense is a crime under federal law and is committed by or against an Indian; and the state has jurisdiction if the crime is committed by a non-​Indian and not subject to federal jurisdiction.

The Unique Status of Certain Native American Groups  379

In what respect is the relationship between the federal government and the Pueblos unique?

The Pueblos have a unique relationship with the United States. For one thing, the United States recognized in the Treaty of Guadalupe Hidalgo that the Pueblos own their land, whereas the United States has placed the land of most other tribes in trust status, and title to that land is held by the United States. Pueblo lands are not considered “reservations,” although they qualify as “Indian country” under the superintendence of the federal government.12 No Pueblo was ever forced to sign a treaty with the United States. Not a single piece of Pueblo land was taken under the General Allotment Act of 1887,13 unlike many other tribes in the West. In general, the Pueblos have been spared much of the interference that other tribes have suffered at the hands of the federal government. As noted earlier, the Supreme Court denied federal protection to the Pueblos in 1876, but the Court reversed that ruling in 1913. It is now settled that all nineteen Pueblos have a trust relationship with the federal government, which entitles them to the same benefits and services that all federally recognized tribes receive.14 In 2010, the federal government, as part of the government’s trust responsibility, helped several Pueblos obtain guaranteed rights to water.15 The federal government’s trust obligation is not diminished by the fact that the Pueblos own their land.16

B.  ALASKA NATIVES American Indians, Iñupiat, Yup’ik, Aleut, Eyak, Tlingit, Haida, Tmisshian, and other Native peoples have long inhabited the territory that is now the state of Alaska. American schoolchildren are taught that the United States purchased Alaska from Russia in 1867 for $7.2 million,17 but in truth, it was never Russia’s to sell. In 1867, this vast territory—​some 365 million acres (nearly twice the size of Texas)—​was inhabited by thirty thousand Native peoples whose families had lived there since time immemorial,18 whereas the Russians began living there in 1741 and never numbered more than eight hundred.19 Therefore, only through an imperialist and racist perspective could Russia have claimed to own that territory. As one commentator has written, “Despite the fact that indigenous people had been living in Alaska for tens of thousands of years, the Russians stole the claim to the land.”20

380  The Rights of Indians and Tribes The Native peoples of Alaska lived in villages throughout the territory but principally along the coasts, as they still do. Hunting and fishing were, and for many still are, the main source of livelihood. Even years after 1867, the Native peoples were left largely undisturbed because few non-​Natives ventured to the areas where they lived. There were no wars between the settlers and the Native peoples, and no treaties were signed between them. The Citizenship Act of 1924 extended U.S. citizenship to all members “of an Indian, Eskimo, Aleutian, or other aboriginal tribe,” thereby extending U.S. citizenship to all Alaska Natives.21 The Indian Reorganization Act of 193422 initially excluded Alaska Natives from coverage but the Act was amended in 1936 to include them.23 Today, laws passed by Congress dealing with Indians almost always state that they apply equally to the Native peoples of Alaska, unless Congress has a specific reason for excluding them. The discovery of gold in Alaska in the late 1800s lured thousands of non-​ Natives to the region. The population of non-​Natives continued to increase in the 1900s, with many people attracted by Alaska’s open expanses and breathtaking beauty. Today, approximately 22 percent of the inhabitants of the state are Alaska Natives,24 the highest percentage of Indigenous peoples living in any state. In 1955, the Supreme Court was asked to decide in Tee-​Hit-​Ton v. United States25 whether the Alaska Natives had “recognized title” (a term defined in Chapter II, Section D) to their original (“aboriginal”) territories, which would entitle them to compensation if those lands were claimed or confiscated by the federal government. The Court held that the Natives lacked recognized title. The Court applied the same “doctrine of discovery” to the land in Alaska as it had applied in 1823 in Johnson v. McIntosh26 to the rest of the United States. According to the Court in Tee-​Hit-​Ton, “after the coming of the white man,” the Indigenous peoples lost ownership rights in their homelands and could continue to live there only with “permission from the whites.”27 The Tee-​Hit-​Ton decision reflected the prevailing tenets of colonialism, racism, and Manifest Destiny, and provided a convenient rationale that whites could use to confiscate Native land.28 As a result of Tee-​Hit-​Ton, all of Alaska was viewed by the federal government as federal land. The Alaska Statehood Act29 admitted Alaska into the Union as the forty-​ninth state in 1959. The Statehood Act permitted the state to select roughly 103 million acres of “vacant” land—​land not containing Native villages—​approximately one-​quarter of all land in the State.30 The

The Unique Status of Certain Native American Groups  381 Act set aside nearly 44 million acres for Alaska Natives; the rest of the state remained federal land.31 As discussed in Chapter VII, Alaska is a “Public Law 280” state. This means that the state, rather than the federal government, is responsible for enforcing its criminal laws in Indian country. However, the Supreme Court held in 1988 (as discussed later) that the Native villages do not qualify as Indian country. Consequently, the state has the same responsibility to enforce its criminal laws in the Native villages as it enforces them elsewhere in Alaska. In other words, if the Native villages were Indian country, the state must enforce its criminal laws due to P.L. 280, but because the villages are not Indian country, the state has the same duty to enforce its criminal laws in the villages as it does, for instance, in Juneau and Anchorage. The state is doing a miserable job with this responsibility: there has been a chronic under provision of law enforcement in Native villages.32 Of the more than 270 Native villages in Alaska, nearly two-​thirds are not accessible by road during much or all of the year, yet the state has assigned fewer than two state troopers per one million acres in rural Alaska.33 Seventy-​five villages have no on-​site law enforcement presence, and it can take a trooper hours and sometimes days to respond to a call for assistance.34 Crimes against Native peoples are exceedingly high; sexual assaults against Native women are two-​and-​a-​half times the national average.35 Alaska must do a better job of law enforcement in these Native communities. Although the Native villages are not Indian country, Alaska does have one Indian reservation that is Indian country: the Annette Islands, home of the Metlakatla Indian Community, created by a federal statute in 1891.36

In what respect do Alaska Natives have a unique relationship with the United States?

In 1968, vast underground oil fields were discovered in Alaska’s North Slope. Oil companies wanted to produce that oil and to construct a pipeline through the state to ship it south where it could be loaded onto tankers. This prompted Congress to enact a comprehensive law to settle the land rights of Alaska’s Native inhabitants. Despite the Supreme Court’s decision in Tee-​ Hit-​Ton, which held that aboriginal Native land could be taken without compensation, Congress agreed to provide some compensation to Alaska Natives for having taken their aboriginal lands, and also recognized their ownership rights in certain other tracts of land. This law, the Alaska Native Claims Settlement Act (ANCSA),37 changed the nature of the government’s

382  The Rights of Indians and Tribes relationship with the Alaska Natives and gave them unique rights and interests. As the Supreme Court has stated, ANSCA was “a legislative experiment tailored to the unique circumstances of Alaska and recreated nowhere else.”38 ANCSA gave Alaska Natives $962.5 million in compensation for extinguishing all aboriginal land claims. In addition, it allotted nearly forty-​ four million acres of land to Alaska Native Corporations (ANCs).39 The Act created two types of ANCs: regional ANCs and village ANCs. ANSCA required the Secretary of the Interior to create twelve regional ANCs, and the Act identified approximately two hundred village ANCs. All of the ANCs were incorporated under the laws of Alaska as for-​profit corporations. Of the forty-​four million acres allocated to the ANCs, the surface estate in twenty-​ two million acres was divided among the village ANCs according to the size of their membership.40 The subsurface estate of the entire forty-​four million acres and about sixteen million acres of the remaining land were conveyed to the twelve regional ANCs.41 Thus, village land is a “split estate,” with the villages owning the surface of twenty-​two million acres while the regional corporations own everything below the surface.42 All persons living on December 18, 1971, and possessing one-​quarter or more Alaska Native blood were automatically enrolled in their respective regional corporation and issued one hundred shares of its corporate stock. ANCSA requires each regional corporation to use its land and resources for the profit of its shareholders. Originally, ANCSA prohibited shareholders from selling their shares for twenty years (until 1991), and also exempted the land owned by Native corporations from state and local taxation during that time. In 1988, Congress amended ANCSA by extending the restrictions on state taxation indefinitely, and permitted each corporation to extend indefinitely the restriction on sales of its stock. Congress also permitted each corporation to issue and sell new stock to non-​Natives, but Congress rejected the Natives’ request to allow the corporations to transfer their interests in land only to the tribal villages. ANSCA imposes “a capitalist model on indigenous communities,” and has been praised by some and criticized by others.43 Some ANCSA regional corporations are highly profitable. For example, Sealaska Corporation, with more than twenty thousand tribal member shareholders, is the largest private landowner and for-​profit employer in southeastern Alaska. Its businesses include forest products, construction, machining and fabrication, and plastic injection molding. Revenues exceeded $700 million in 2019, a sixfold

The Unique Status of Certain Native American Groups  383 increase since 2015,44 and the company had a net profit of $60.7 million in 2021.45 Whether ANSCA is a “good” or “bad” law depends on one’s perspective. The federal government, given the Tee-​Hit-​Ton decision, could have stripped Alaska Natives of all their land without paying any compensation and without conferring to the villages any ownership rights. ANSCA can therefore be viewed as pro-​Native. On the other hand, the compensation given the Natives for the loss of more than three hundred million acres of land is far less than what the oil companies make each year from extracting oil and gas on that property.46 Moreover, ANSCA eliminated all Native aboriginal hunting and fishing rights.47 Viewed from that perspective, ANSCA is a disaster for Natives and a huge gift to the oil industry and the state, which receives approximately 80 percent of its general fund revenue from taxing oil and gas production on the Native’s aboriginal territory.48 ANSCA gave tribes a choice: they could own their land but not receive the benefits of ANSCA or they could participate in ANSCA and their land would be owned by the village and regional corporations. Most chose the latter. Today, approximately 64 percent of the state is owned by the federal government, 25 percent by the state, 10 percent by Alaska Native corporations, and 1 percent by tribes.49 Congress has enacted other laws unique to Alaska Natives. The Alaska Native Allotment Act of 1906,50 repealed in 1971, and the Alaska Native Townsite Act of 1926,51 repealed in 1976, authorized the Secretary of the Interior in certain situations to allot up to 160 acres of federal land to an Alaska Native. Nearly a million acres of land were allotted pursuant to these laws.52 Because these allotments are subject to federal restrictions on their sale and use, all of them may qualify as “Indian country,” an issue that has yet to be resolved.53 In 1981, Congress passed the Alaska National Interest Lands Conservation Act (ANILCA),54 which withdrew large areas of federal land in Alaska from development, in the form of national parks, preserves, wildlife refuges, forests, and wilderness areas. In addition, ANILCA gives all persons living in the rural areas of the state—​55 percent of whom are Alaska Natives—​a priority right to hunt and fish on federal lands for “subsistence uses,” which are defined as “customary and traditional uses by rural Alaska residents of wild, renewable resources.”55 Thus, an important objective of ANILCA was protecting and preserving a subsistence way of life for both Native and non-​ Native rural Alaskans.

384  The Rights of Indians and Tribes ANILCA assigns to state officials the duty to regulate the taking of fish and game on these federal lands, subject to oversight by the U.S. Department of the Interior (DOI).56 Alaska officials, however, must regulate hunting and fishing on these lands in a manner consistent with the objectives of the Act, and if a state regulation is inconsistent with a federal regulation applicable to ANILCA lands, the federal regulation controls.57 ANILCA does not apply to non-​federal land, which is regulated exclusively by the state.58 Most Native villages do not provide access to enough wildlife on village land to feed their members, and thus the passage of ANILCA was of utmost importance. Although the Act does not provide Alaska Natives with a subsistence priority over non-​Natives,59 it does ensure that (1) subsistence gathering has a priority over non-​subsistence gathering on federal lands, and (2) this right belongs only to persons living in rural areas, the majority of whom are Native.60 Many non-​Natives who do not live in rural areas deeply resent that rural Natives have a priority right under ANILCA to harvest a substantial portion of Alaska’s fish and game. ANILCA creates a federal board (the “Federal Subsistence Board”) that determines for each village the number of fish and game the village may take for subsistence within its assigned hunting and fishing area, based on that village’s needs and its “customary and traditional” hunting and fishing practices.61 In an encouraging recent development, the state board that regulates hunting on non-​federal lands created a permit system that allows groups of twenty-​five or more hunters to harvest proportionally more game and in a wider territory than individual hunters, a system that clearly favors Native communities—​which tend to hunt in groups—​over non-​Natives, who typically do not hunt in groups.62 There remains great dissatisfaction within the Native community, however, regarding how state and federal officials have, in the opinion of many Natives, abdicated their responsibility to protect the subsistence needs of Alaska Natives. Complaints focus on shortened seasons in which to hunt and fish, limits on catch, the withdrawal of certain lands from subsistence hunting (“nonsubsistence zones”), and inadequate protection of fisheries.63 Furthermore, in 1989 the Alaska Supreme Court ruled that the Alaska Constitution prohibits state officials from giving any group greater access to wildlife than other groups,64 thus preventing the state from complying with ANILCA’s requirement that rural Alaskans receive a priority in subsistence gathering. Not long after, the DOI announced that state officials were doing such a poor job of protecting Native subsistence rights that federal officials

The Unique Status of Certain Native American Groups  385 were stepping in to ensure their protection, a decision subsequently upheld by the courts.65 Initially, it was unclear whether the tribal villages created under ANSCA should be viewed as federally recognized tribes. That uncertainty was removed in 1993 when the DOI announced that Alaska Native villages have the same status as tribes in the contiguous forty-​eight states and are “entitled to the same protection, immunities, and privileges as other acknowledged tribes.”66 In 1994, Congress passed the Federally Recognized Tribe List Act, which for the first time included Alaska Native governments on the list of federally recognized tribes.67 Currently, 229 tribal groups in Alaska are recognized by the federal government as having a trust relationship with the United States.68 The village ANCs are listed as federally recognized tribes, but the regional ANCs are not. A few of the programs Congress has created for Indian tribes, however, have defined “Indian tribe” to encompass the regional ANCs. In Yellin v. Confederated Tribes of the Chehalis Reservation (2021),69 the Supreme Court examined the Coronavirus Aid, Relief, and Economic Security (CARES) Act and concluded that Congress intended for the regional ANCs to qualify as “Indian tribes” eligible to receive funds under that law.

May the Native tribes in Alaska exercise the powers of self-​government?

State officials contended for many years that the Alaska village governments were merely corporations and not sovereign tribal governments. As recently as 1988, the Alaska Supreme Court stated that Native villages are “not self-​governing or in any meaningful sense sovereign.”70 The state’s position appeared to receive a boost in 1988 when the U.S. Supreme Court decided in Alaska v. Native Village of Venetie Tribal Government that ANSCA land owned or controlled by the Native villages did not qualify as “Indian country” under federal law and, therefore, a village lacked the governmental authority to tax the income earned by a private corporation conducting business within the village because the tribe needed to control the land base in order to impose the tax.71 Although Venetie was a blow to tribal sovereignty in Alaska, it only affected an Alaska tribe’s “territorial” sovereignty—​ that is, those powers that require a land base. Nothing in Venetie changed the inherent right of Alaska tribes to regulate all activities that do not require a land base.72 These powers include the authority to establish a government,73 determine tribal

386  The Rights of Indians and Tribes membership,74 regulate domestic relations among tribal members (such as marriage, divorce, child custody, and adoptions),75 regulate the inheritance of tribal property, and enter into agreements in a governmental capacity, such as agreements with the federal government under the Indian Self-​ Determination and Education Assistance Act (ISDEAA).76 ANSCA does not divest tribes of those inherent powers. In 1999, in John v. Baker,77 the Alaska Supreme Court overturned its prior decisions and held that the Native villages are sovereign governments. Native villages, the court said, have the right to exercise those sovereign powers that are “independent of the land they occupy,” such as “the power to adjudicate internal domestic matters, including child custody disputes over tribal children.”78 Since then, the Alaska Supreme Court has recognized in different contexts that Native villages exercise sovereign powers. For instance, the court has held that (1) child custody orders issued by tribal courts in Alaska are entitled, as a result of the Indian Child Welfare Act of 1978 (ICWA),79 to the same respect as custody orders issued by the courts of other states;80 (2) tribes in Alaska possess sovereign immunity from suit;81 (3) although state courts have concurrent jurisdiction under P.L. 280 to hear ICWA cases, once an ICWA case is commenced in tribal court, the parties must exhaust all tribal remedies, including tribal appellate courts, before seeking a remedy in state court;82 and (4) tribal courts have the authority to assess child support payments against a nonmember who is the parent of a tribal child.83 Although no court has yet to decide whether tribal courts in Alaska may exercise criminal jurisdiction over tribal members, the U.S. Supreme Court has recognized that “an Indian tribe’s power to punish tribal offenders is part of its own retained sovereignty.”84 There is no reason to believe that Native villages lack this power.85 The Indian Reorganization Act authorizes the Secretary of the Interior to take non-​trust (“fee”) land and convert that land into trust land for the benefit of an Indian tribe (“fee-​to-​trust” or “land-​to-​trust” conversions).86 During the Obama administration, the DOI took the position that Alaska tribes qualify for this program.87 The Trump administration took the opposite position.88 The Biden administration reversed Trump’s ban and restored the ability of Alaska tribes to qualify for fee-​to-​trust conversions.89 Once a tribe converts land into trust status, the tribe should be able to exercise territorial authority over that land because it would then be considered Indian country. Given that trust land is subject to federal control, some tribes may decide not to convert their land into trust status even if they have the option.90

The Unique Status of Certain Native American Groups  387 The 2013 amendments to the Violence Against Women Act (VAWA) provide some protections to Alaska Native women. VAWA requires state courts to enforce tribal court protection orders “as if it were the order of the enforcing State.”91 The Attorney General of Alaska has confirmed that Alaska judges and police officers should enforce a tribal protection order the same way as a state order, which includes the authority to arrest anyone who violates that order.92

C.  OKLAHOMA TRIBES After the United States gained its independence from Great Britain in 1783, the new nation, weakened from years of war, sought to avoid conflict with the powerful Indian tribes that lived in the East. Congress quickly passed laws, as explained in Chapter I, designed to convince the tribes that the United States would respect their land and sovereignty. By the early 1830s, however, the United States was strong enough to defeat the eastern tribes, and Congress, at the urging of President Andrew Jackson, sought to relocate them to an area it called “Indian Territory,” now within the state of Oklahoma. Today, Oklahoma is home to thirty-​nine federally recognized tribes, only a few of which are indigenous to that area.93 The first tribes forcibly removed to Indian Territory were the Cherokee, Choctaw, Chickasaw, Muscogee (Creek), and Seminole, from the southeastern United States. (These tribes have been called the “Five Civilized Tribes” because they had adopted systems of government resembling those of the early Europeans who settled in their territory,94 but “Five Tribes” is often used today, as it will be used here.) Each of the Five Tribes signed a treaty with the United States which created a reservation in Indian Territory for the tribe, guaranteed that the tribe would own its land in fee status, live without further interference, and promised that the land would never become part of a state without the tribe’s consent.95 Many tribal members, however, objected to these treaties and refused to leave their homes.96 President Jackson called in the army, which marched the tribes at bayonet point to Indian Territory. The Indians had inadequate food and winter clothing, and thousands contracted smallpox, cholera, and dysentery. Of the estimated sixty thousand Indians who embarked on the “Trail of Tears” (a term first applied to the Cherokee march), nearly fifteen thousand died along the route.97

388  The Rights of Indians and Tribes Initially, the federal government honored its treaty promise to leave these tribes in peace. But Congress soon began looking for an excuse to remove land from the Five Tribes so that other tribes could be relocated there. The Civil War provided Congress with the excuse it needed. All five tribes owned slaves, and many tribal members sided with the Confederacy during the war.98 Allegedly as a penalty for sympathizing with the Confederacy, Congress removed portions of their reservations. (Congress, in contrast, confiscated no lands from the Confederate states but only from the Indian tribes that supported them.) These confiscated lands were then assigned by Congress to some thirty other tribes, including the Sac and Fox from the Great Lakes, the Cheyenne from the Northwest, and the Kickapoo and Apache from the Southwest. For a time, Congress allowed the Five Tribes to retain full control of their remaining reservations in the eastern part of Indian Territory. By the beginning of the 1900s, however, the government, in violation of the treaties, passed laws that opened those lands to settlement by non-​Indians. Additional lands were stolen by non-​Indians. Some of the Five Tribes were left with only isolated parcels of land scattered throughout their treaty boundaries.99 The Osage Nation in northcentral Oklahoma was also hard hit. In 1872, Congress created a reservation for the Osage covering more than two thousand square miles, about 3 percent of the state’s territory. Today, however, only a small fraction of that land remains in trust status. Part of the reason for the loss of land was that Congress passed laws opening the Osage Reservation to settlement by non-​Indians. Another reason, as recounted in David Grann’s book, Killers of the Flower Moon: The Osage Murders and the Birth of the FBI, is that oil was discovered on Osage land and non-​Indians stole tribal land and sometimes murdered tribal members to obtain it.100 By 1907, non-​Indians vastly outnumbered the Indians in Indian Territory, and the area was admitted into the Union as the state of Oklahoma (which constituted another violation of the treaties with the Five Tribes). Today, some three hundred thousand Indians live in Oklahoma, nearly 10 percent of the state’s population. Despite Oklahoma’s origin as Indian Territory and the numerous tribes located there (each one assigned a reservation prior to 1907), the state of Oklahoma took the position after its statehood in 1907 that there were no longer any Indian reservations in Oklahoma.101 In 2020, the Supreme Court rejected that argument in McGirt v. Oklahoma.102

The Unique Status of Certain Native American Groups  389 The issue in McGirt was whether Oklahoma had the authority to arrest, prosecute, and convict a Seminole Indian, Jimcy McGirt, for a crime he committed within the original boundaries of the eastern portion of the Muscogee (Creek) Reservation. If the land on which the crime had been committed was still part of the Muscogee Reservation—​that is, if it was still “Indian country”—​then Oklahoma lacked jurisdiction and, for reasons explained in Chapter VII, only the tribe and the federal government could prosecute McGirt. The Supreme Court held in a 5–​4 decision that the boundaries of the eastern portion of the Muscogee Reservation, first established in a treaty in 1832, remained intact and, therefore, the state lacked jurisdiction to prosecute McGirt. “On the far end of the Trail of Tears,” the Court explained in its first sentence, “was a promise.”103 That promise was a permanent reservation. True, the Court said, Congress had broken the treaty by allowing non-​Indians to live on the reservation and by making the reservation part of a state, but Congress had never changed the reservation’s exterior boundaries. Therefore, the boundaries remained intact, the Court said, despite Oklahoma’s “brazen and longstanding” efforts to ignore the tribe’s rights under the treaty.104 As a result of the Court’s ruling, the Muskogee Reservation continues to encompass some three million acres of land (including most of the city of Tulsa). That territory remains Indian country, even though more than 90 percent of that land is privately owned and less than 10 percent of the people who live there are members of the tribe. Oklahoma courts have since ruled, citing McGirt, that the reservations of the other Five Tribes also remain intact.105 Consequently, the entire eastern portion of Oklahoma—​about 43 percent of the state and home to nearly two million people, the vast majority of whom are not Indians—​is Indian country.106 Moreover, Oklahoma courts have extended the McGirt ruling to several of the western Oklahoma tribes where the state contested their reservation boundaries.107 McGirt, however, will have little practical impact on the non-​Indians who live or work on these reservations. As discussed in Chapter VII, tribes have limited authority to arrest and prosecute non-​Indians, and as discussed in Chapter VIII, tribes have limited authority to tax non-​Indians on non-​ Indian land or regulate the use of that land. For most non-​Indians who live on Indian reservations in Oklahoma, then, life will not change, and they remain primarily subject to Oklahoma law, not tribal.

390  The Rights of Indians and Tribes But McGirt radically alters the state’s jurisdiction over the Indians on these reservations. A state lacks general civil108 and criminal109 jurisdiction over Indians in Indian country. Oklahoma, therefore, may no longer impose income and sales taxes on tribal members who work, live, or buy goods and services within their reservations, a loss of millions of dollars in revenue each year.110 Oklahoma also can no longer arrest and prosecute Indians who commit crimes on these reservations, and it must release those Indians who, like Mr. McGirt, had committed their crime on one of these reservations, provided that the defendant files a timely petition for release. (The tribes can prosecute all of these Indians and, as discussed in Chapter VII, so can the federal government, depending on the crime. Jimcy McGirt, for instance, was immediately arrested by federal officials after Oklahoma released him.) The Five Tribes are keenly aware of their responsibility to arrest and prosecute Indians who break the law, now that Oklahoma no longer has criminal jurisdiction to do so. For instance, within months of the decision in McGirt, the Cherokee Nation announced that it had invested an additional $10 million to expand its judicial system. The Nation assured the people of Oklahoma that it would aggressively prosecute crimes committed by Indians on its reservation.111 Nevertheless, the decision in McGirt has been roundly criticized by many state officials.112 Two years after McGirt, the Supreme Court decided Oklahoma v. Castro-​ Huerta.113 Whereas in McGirt the Court held that Oklahoma could not prosecute Indians who commit a crime in Indian country, the Court held in Castro-​Huerta that Oklahoma did have the authority to prosecute non-​ Indians who commit a crime in Indian country even when the victim is an Indian. This decision overturned more than a century of assumptions—​ based on prior Supreme Court cases—​that a state has no jurisdiction in Indian country to prosecute crimes committed by non-​Indians against Indians.114

In what respect do the Oklahoma tribes have a unique relationship with the United States?

The thirty-​nine federally recognized tribes in Oklahoma have the same trust relationship with the federal government as all other federally recognized tribes.115 The tribes in Oklahoma also, as the Supreme Court has noted, “exercise inherent sovereign authority over their members and their territory” even if only isolated parcels of land within the reservation remain in trust status.116

The Unique Status of Certain Native American Groups  391 Congress, however, has created a set of laws dealing exclusively with Oklahoma tribes, especially the Five Tribes and the Osage Nation. A few of these unique laws limit tribal powers over tribal property. For instance, these laws provide that state law (rather than tribal or federal law) will govern the alienation, partition, and inheritance of Indian land,117 and that most of the resources and income of the Osage Nation will be controlled by the Secretary of the Interior.118 As explained in Chapter I, the General Allotment Act of 1887 (GAA) authorized the President of the United States to sell “surplus” tribal lands to non-​Indians, thus enabling them to live on Indian reservations. The Five Tribes were excluded from the GAA because their treaties with the United States gave them complete and perpetual ownership of their land. Nevertheless, Congress wanted these tribes to sell some of their land so that non-​Indians could move into those areas. When the tribes refused to sell, an angry Congress retaliated by passing the Curtis Act in 1898.119 This Act forced the allotment of Oklahoma tribal lands, abolished all tribal courts, and removed from the Oklahoma tribes certain powers of self-​government, including the right to impose taxes. In 1934, Congress repealed the GAA as part of the Indian Reorganization Act (IRA), thereby ending the practice of selling tribal land and issuing allotments to tribal members.120 The Oklahoma tribes were not included in that repeal, but two years later, Congress passed the Oklahoma Indian Welfare Act (OIWA), which provides to Oklahoma tribes the same protections and benefits as the IRA.121 In addition, the OIWA has been interpreted to restore to the tribes the right to establish tribal courts having both civil and criminal jurisdiction.122 For many years after passage of the OIWA, though, federal officials discouraged Oklahoma tribes from exercising their powers, prompting a federal court in 1976 to describe the actions of these officials as “bureaucratic imperialism” designed to “frustrate, debilitate, and generally prevent from functioning the tribal governments.”123 Improvements have occurred since then and the Secretary of the Interior has even purchased lands for some Oklahoma tribes, as authorized by the OIWA. In 1959, during the termination era, Congress terminated the federal status of three Oklahoma tribes—​Wyandotte, Peoria, and Ottawa—​but Congress restored their federal status in 1977.124 Nearly a decade ago, the Oklahoma legislature passed a law committing the state to “work in a spirit of cooperation with all federally recognized Indian Tribes.”125 Relations between Oklahoma and its thirty-​nine Indian tribes,

392  The Rights of Indians and Tribes however, have often been strained, and the McGirt decision did not help matters. Oklahoma, for instance, has entered into mutually agreeable compacts with tribes over gaming and the sharing of revenue from the sale of cigarettes, but in 2022 the Governor refused to renew agreements with some tribes over hunting and fishing.126 The Governor also vetoed a bill designed to permit Native students to wear regalia (such as feathers) on their graduation gowns or caps, but the legislature then overrode the veto and the bill became law.127 Hopefully, relations between the Oklahoma tribes and the state will improve, as both sides will benefit more from cooperation than from discord.

D.  NEW YORK TRIBES The Europeans who first settled in what is now New York were greeted by the Haudenosaunee (or Six Nations Iroquois Confederacy), which was “the most significant continental power in what is now the eastern United States and Canada.”128 The Confederacy consisted of six tribes: the Seneca, Cayuga, Onondaga, Oneida, Mohawk, and Tuscarora. The territory dominated by the Confederacy extended from upper Canada to North Carolina and as far west as the Mississippi River. Although other tribes inhabited this region, the Iroquois were the controlling authority. The Iroquois Confederacy played an important role in the early history of the United States. The Confederacy’s alliance with England during the French and Indian War (also called the Seven Years’ War), a war between France and England that ended in 1763, helped assure a British victory and established England as the primary European power in the Northeast. The Confederacy, however, divided during the American Revolutionary War. Two tribes—​the Oneida and Tuscarora—​sided with the American colonists, and the other four sided with England.129 The treaty that ended the war between the United States and Great Britain was signed in 1783. In 1784, the United States signed treaties with all six nations of the Iroquois Confederacy, which by then had centralized in the state of New York. These treaties established boundary lines for each tribe’s territory and guaranteed that the tribe would remain free from outside interference.130 Additional treaties between the federal government and New York tribes were signed in 1796 and 1814.131 By the 1820s, land in New York was highly coveted by non-​Indians. To obtain that land, the federal government compelled many Indians to leave

The Unique Status of Certain Native American Groups  393 New York and relocate to reservations in Wisconsin and Kansas, and some were later moved further west. By the end of the decade, the Iroquois had lost over 95 percent of their lands in New York.132 Some Indians remained in New York, however, and reservations were created for them. Today there are nine Indian reservations in the state, eight of which are federally recognized tribes; the ninth is state-​recognized. (A list of these tribes is contained in the appendix.) Congress passed the Indian Nonintercourse Act (INA) in 1790,133 which prohibited land from being sold by an Indian tribe unless the federal government gave its express consent. A major purpose of the INA was to prevent unscrupulous whites from falsely claiming they had purchased tribal land. Despite the INA and without federal approval, the state of New York and individual settlers purchased (or claimed to have purchased) large tracts of tribal land after 1790. Beginning some fifty years ago, several New York tribes filed lawsuits seeking to recover that land. Some of these lawsuits also sought millions of dollars in back rent for the years of unauthorized occupation by non-​Indians. The Cayuga Indian Nation, for instance, filed suit to recover more than 64,000 acres in upstate New York (in Seneca and Cayuga Counties) and nearly $335 million in rent. The Onondaga Tribe filed suit to recover some 70,000 acres, including nearly the entire city of Syracuse. The Oneida Indian Nation sought nearly 250,000 acres in what is now Madison and Oneida Counties.134 These lawsuits, for obvious reasons, caused enormous discord between the tribes and their non-​Indian neighbors, and created great anxiety. Courts have addressed these disputes. The most important case is the Supreme Court’s decision in City of Sherrill v. Oneida Indian Nation of New York (2005).135 The Oneida Indian Nation (OIN) had purchased privately owned land within its reservation, land taken from the tribe two hundred years earlier in violation of the INA. At the time of the tribe’s purchase, this land was being taxed by the state, as with all privately owned land. As explained in Chapter IX, tribal trust land is exempt from state taxation, and the OIN argued that its reacquired land should enjoy the same immunity. The Supreme Court held, however, that allowing the tribe to reassert governmental authority over this land after all these years would have “disruptive practical consequences.”136 If the tribe wanted to immunize this land from state taxation, the Court said, the tribe needed to follow the procedure set forth in federal law that permits the Secretary of the Interior to take privately owned tribal land and convert it into trust status; the tribe could not immunize the land from state taxation simply by purchasing it.137

394  The Rights of Indians and Tribes During the next several years, lower federal courts, relying on Sherrill, dismissed the lawsuits mentioned above that had been filed by tribes in New York seeking recovery of their land and back rent, holding that asserting these land claims, like those in Sherrill, would be “disruptive.”138 It seems grossly unfair, however, to reject a claim seeking to recover land taken in violation of federal law merely because the tribe did not file suit sooner, considering the federal government’s determined effort during the past two centuries to destroy and assimilate Indian tribes. Professor Sarah Krakoff has described the Sherrill decision as “cringe-​inducing,” “wrong,” and as reflecting a “cowardly avoidance” of the legal claims raised by the OIN.139 One tribe whose land claims were dismissed, the Onondaga Nation, issued a press release after the decision stating that the court’s ruling “is the final proof that there is no justice for Indigenous Nations in the US court system.”140 Soon after the decision in Sherrill, the OIN asked the Secretary of the Interior to convert thirteen thousand acres of land into trust, and the Secretary agreed to do so. A lawsuit filed by non-​Indians challenging the Secretary’s decision was rejected by the court.141 Thus, although Indian tribes may not automatically obtain a tax immunity when they purchase private land that had been illegally taken years earlier, they have a mechanism for obtaining that result. Most New York tribes have successful casino operations that help support the economy of the region. The OIN is the largest employer in a two-​county area, operating a casino, a resort hotel, a farm, and a marina on Lake Oneida. The OIN employs more than four thousand workers, the vast majority of whom are non-​Indians, and gives New York nearly $60 million annually from casino profits.142 The Seneca Nation paid the state of New York over $250 million from its casino profits in 2017 and 2018.143

In what respect is the relationship between the New York tribes and the federal government unique?

The tribes of New York have the same trust relationship with the federal government as tribes generally, but Congress has passed laws dealing exclusively with New York tribes. A law passed in 1984 confers criminal jurisdiction on the state, similar to the jurisdiction that Public Law 83-​280 gives certain other states.144 This law grants jurisdiction to New York over “all offenses committed by or against Indians on Indian reservations within the State of New York,” but withholds authority to regulate any hunting or fishing rights guaranteed Indians under federal law.145 Thus, state and local police officers

The Unique Status of Certain Native American Groups  395 may arrest and prosecute Indians for crimes committed on the reservation, except with respect to the activities just noted.146 New York, on the other hand, has only limited civil jurisdiction in Indian country. A federal law passed in 1950147 authorizes the courts of New York to resolve civil disputes involving reservation Indians (“adjudicatory jurisdiction”). The law expressly denies the state the right to regulate Indian hunting and fishing activities protected by federal law, and prohibits the state from taxing, levying upon, or selling reservation trust lands. In 1976, the Supreme Court reviewed a similar law applicable to other states and held that it did not confer general civil jurisdiction (such as the power to tax) on the state but only allowed state courts to resolve reservation disputes that parties might decide to file in state court.148 The state may not, for example, impose its sales tax on goods sold within the reservation to tribal members.149 Moreover, the 1950 law does not authorize state courts to resolve internal tribal disputes, such as determining which faction of a tribe should be considered as having won a tribal election,150 or authorize state courts to adjudicate issues that were withdrawn from state jurisdiction in 1988 by the passage of the Indian Gaming Regulatory Act.151 Thus, the tribes of New York have the same inherent right to regulate their internal affairs free from state interference as all other federally recognized tribes.152 Indian tribes in New York have not been divested of any of their inherent powers merely because the state has been authorized to exercise some authority in Indian country.153

E.  RECOGNIZED AND NON-​RECOGNIZED TRIBES Congress has created many benefits, programs, and services for Indian tribes and their members, including housing assistance, social and financial services, health care, the right to operate a gaming facility, funding for tribal law enforcement and tribal jails, and the ability to convert privately owned land into trust status. For the most part, only tribes that have been formally recognized (also called “acknowledged”) by the federal government are eligible to participate in these opportunities.154 Nothing is as important to the political and economic survival of an Indian tribe as obtaining federal recognition.155 As the DOI regulations state, federal recognition “is a prerequisite to the protection, services, and benefits” the federal government makes available to Indian tribes by virtue of their

396  The Rights of Indians and Tribes status as tribes and to “a government-​to-​government relationship with the United States,” that is, to a trust relationship between the tribe and the federal government.156

How can a tribe become recognized by the federal government?

The Commerce Clause of the Constitution vests Congress with the power “[t]‌o regulate Commerce . . . with the Indian Tribes.”157 Among other things, this provision authorizes Congress to determine which groups qualify as Indian tribes for federal purposes.158 The Federally Recognized Indian Tribe List Act of 1994 requires the Secretary of the Interior to publish annually “a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”159 The Act provides that Indian groups may be recognized as Indian tribes in three ways: by an act of Congress, by the DOI pursuant to procedures set forth in the Code of Federal Regulations, and by a federal court.160 Currently, 574 tribes have received formal recognition, nearly 40 percent of them in Alaska. (A list of all the federally recognized tribes appears in this book’s appendix.) In 1969, employees of the Bureau of Indian Affairs created a list of Indian tribes, but there were no set criteria used to determine which tribes would be on the list.161 Many Indian tribes were excluded, and there was no formal process for them to apply for inclusion.162 In 1978, the DOI finally created a federal acknowledgement process (FAP) for recognizing Indian tribes, and published regulations to govern it, set out in Part 83 of the Code of Federal Regulations (25 C.F.R. Part 83).163 The recognition process that DOI initially created was criticized as overly burdensome and vague, and petitioning groups accused the DOI of being inept, arbitrary, and painfully slow, and of making the process more costly than many tribes could afford.164 Tribes waited, on average, thirty years for the DOI to complete the FAP,165 even tribes whose existence was well known and undisputed. For instance, it took the DOI thirty-​three years to approve the petition submitted by the Pamunkey Tribe of Virginia, even though it was Pamunkey Chief Powhatan and his daughter Pocahontas who assisted the English at Jamestown, and it took the DOI thirty-​one years to approve recognition for the Mashpee Wampanoag, the tribe that greeted the Mayflower in 1620.166 Delaying and sometimes denying recognition to tribes with historic relationships with the United States, as Vine Deloria, Jr., once said, is “not

The Unique Status of Certain Native American Groups  397 simply an injustice of major proportions, it is a travesty of logic that boggles the rational mind.”167 The Samish Tribe in Washington, after waiting more than two decades for the DOI to rule on its application, asked a federal court to grant federal recognition to the tribe. After giving the DOI an opportunity to complete the administrative process to no avail, the court granted the tribe’s request, finding that the DOI’s delay was “so extreme that the court has no confidence in the agency’s ability to decide the matter expeditiously or fairly.”168 Courts, though, are reluctant to determine whether a group qualifies as an Indian tribe, and normally will do so only after the DOI has excessively delayed a ruling.169 Some tribes have asked Congress to pass a law recognizing them as tribal governments, and a few of these requests have been successful.170 The most recent example is the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017,171 in which Congress granted official recognition to six tribes in Virginia. The law was named after an Indian activist who championed the legislation but who died in 1999. In 2015, the DOI streamlined the FAP and revised some of the seven criteria necessary to obtain recognition, admitting that “the current process has been criticized as too slow (a petition can take decades to be decided), expensive, burdensome, inefficient, intrusive, less than transparent, and unpredictable.”172 For instance, petitioning groups under the former regulations had to prove through written documentation their continuing governmental authority from historical times. Under the new regulations, in contrast, that proof need start only from 1900.173 However, gathering this evidence can still be difficult given the extent to which the federal government tried to displace, disrupt, disorganize, scatter, and assimilate most tribes during the 1900s, and moreover, the new regulations are criticized as still being far more burdensome and arbitrary than necessary.174 The initial draft of the 2015 amendments would have allowed those tribes denied recognition under the 1978 criteria to re-​petition under the less onerous 2015 criteria, but the final regulations do not contain that option.175 At least two federal courts have held that not permitting tribes to re-​petition may violate their constitutional rights, given that the criteria for recognition have now been softened.176 Under the regulations, a tribe’s petition for federal recognition is submitted to the Office of Federal Acknowledgement (OFA), located within the Bureau of Indian Affairs (BIA), a sub-​agency within the DOI. OFA, which employs

398  The Rights of Indians and Tribes historians and anthropologists, considers the tribe’s application and issues a proposed finding.177 The tribe is entitled to appeal OFA’s determination to an Administrative Law Judge and submit additional information.178 After the Law Judge issues a decision, the petition is reviewed by the Assistant Secretary for Indian Affairs.179 The Assistant Secretary’s decision is a final decision for the agency and is subject to challenge in federal court.180 The challenge must be filed within six years.181 A court will not consider a tribe’s petition for recognition unless the tribe has fully exhausted the administrative process.182 Most tribal petitions for recognition are denied by the DOI.183 The most frequent reason given by the DOI is the group’s failure to prove continuous governmental authority and/​or geographic continuity.184 Here again, that seems harsh, if not cruel, given the extent to which the federal government sought to disrupt, move, and destroy many tribes.

What relationship does a non-​recognized tribe have with the United States?

As a federal court recently noted, “as far as the federal government is concerned, an American Indian tribe does not exist as a legal entity unless the federal government decides that it exists.”185 A tribe, of course, is entitled to consider itself as a tribe regardless of what the federal government says. But unless the federal government officially acknowledges tribal existence, the tribe is ineligible to receive the benefits, services, and programs that Congress makes available to federally recognized tribes and it does not have a trust—​ or “government-​to-​government”—​relationship with the United States.186 Non-​recognition is usually financially and politically crippling. During the COVID-​19 pandemic, for instance, Congress appropriated billions of dollars to assist Indian tribes, but the only tribes eligible for those funds were those officially recognized by the DOI. Congress, and not the DOI, has the final word as to whether a tribe should be federally recognized, as well as whether non-​recognized tribes may qualify to participate in a federal program. A court may reverse any decision by the DOI that is contrary to the will of Congress.187 Courts have held, for instance, that non-​recognized tribes and their members may enforce treaties they have with the United States188 and are entitled to participate in federal programs that Congress has not restricted to recognized tribes.189 Even non-​recognized tribes, then, are entitled to certain federal protections, but these are very limited. The National Congress of American Indians (NCAI) permits non-​federally recognized tribes to join NCAI and to vote if they are

The Unique Status of Certain Native American Groups  399 state recognized.190 Many tribes are recognized by the state but not by the federal government, as each state has the authority to develop its own criteria for tribal recognition by that state.191

Notes 1. In addition to the nineteen Pueblos, New Mexico is home to the Fort Sill Apache Tribe, the Jicarilla Apache Nation, the Mescalero Apache Tribe, and the Navajo Nation. 2. See Pueblo of Sandia v. Babbitt, 231 F.3d 878, 879 n.1 (D.C. Cir. 2000). A few of the Pueblos were larger. See Pueblo of Sandia v. Babbitt, 1996 WL 808067 at *2 n.3 (D.D.C. 1996). 3. 25 U.S.C. § 177. 4. United States v. Joseph, 94 U.S. 614 (1876). 5. United States v. Sandoval, 231 U.S. 28 (1913). 6. Act of June 7, 1924, Ch. 331, 43 Stat. 636. See generally Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985); United States v. Thompson, 941 F.2d 1074 (10th Cir. 1991). 7. In addition to the Pueblo land recognized by federal statute, at least one Pueblo—​ Pueblo of Jemez—​has an interest in land through aboriginal possession, having lived on and used that land since the 1300s. See Pueblo of Jemez v. United States, 63 F.4th 881 (10th Cir. 2023). The doctrine of aboriginal possession is discussed in Chapter II, Section D. 8. See https://​www.500​nati​ons.com/​New​_​Mex​ico_​Casi​nos.asp. 9. See  https://​w ww.newmex​ico.org/​pla​ces-​to-​v isit/​nat​ive-​c ult​ure/​pueb​los-​t ri​b es-​ nati​ons. See also Mendoza v. Isleta Resort and Casino, 460 P.3d 467 (N.M. 2020) (recognizing that a Pueblo is a sovereign government and, as such, enjoys sovereign immunity from suit). 10. Pub. L. No. 109-​133, 119 Stat. 2573 (Dec. 20, 2005). See United States v. Antonio, 936 F.3d 1117, 1122 (10th Cir. 2019), cert. denied, 140 S. Ct. 818 (2020). 11. As discussed in Chapter II, Section C, Pueblo lands are considered “dependent Indian communities” under 18 U.S.C. § 1151(b). 12. See id. 13. For a discussion of the General Allotment Act of 1887, see Chapter I, notes 70–​78 and accompanying text. 14. See United States v. Sandoval, 231 U.S. 28 (1913); United States v. Chavez, 290 U.S. 357 (1933). Each Pueblo is on the list of federally recognized tribes issued by the Department of the Interior. The compilation of this list is discussed later in this chapter. 15. See Aamodt Litigation Settlement Act of 2010, Pub. L. No. 111-​291, 124 Stat. 3064 (Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque). 16. See United States v. Candelaria, 271 U.S. 432 (1926); State of New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976), cert. denied, 429 U.S. 1121 (1977).

400  The Rights of Indians and Tribes 17. 15 Stat. 539 (May 28, 1867) (“Treaty of Cession”). 18. See Sturgeon v. Frost, 139 S. Ct. 1066, 1073 (2019). 19. See William L. Iggiagruk Hensley, Why Russia Gave Up Alaska, America’s Gateway to the Artic, The Conversation, available at http://​thec​onve​rsat​ion.com/​why-​rus​sia-​ gave-​up-​ala​ska-​ameri​cas-​gate​way-​to-​the-​arc​tic-​74675. 20. Meghan O’Connor, The Secretary of the Interior Has Authority to Take Land into Trust for Federally Recognized Alaska Tribes, 45 Am. Indian L. Rev. 89, 90 (2021). 21. 8 U.S.C. § 1401(b). “Eskimo” was often used to refer to Alaska Natives, and sometimes still is. 22. Act of June 18, 1934, c. 576, 48 Stat. 984, codified as amended at 25 U.S.C. §§ 5101 et seq. (formerly 25 U.S.C. §§ 461 et seq.). The Act is discussed in Chapter I, notes 86–​96 and accompanying text. 23. 25 U.S.C. § 5119. For a further discussion of the history of Alaska and the Alaska IRA, see O’Connor, supra note 20, at 90–​96. 24. See National Council on Aging, American Indians and Alaska Natives: Key Demographics and Characteristics (Jan. 10, 2023), available at https://​www.ncoa. org/​arti​cle/​ameri​can-​indi​ans-​and-​ala​ska-​nati​ves-​key-​demog​raph​ics-​and-​char​acte​ rist​ics. 25. 348 U.S. 272 (1955). 26. 21 U.S. 543 (1823). 27. Tee-​Hit-​Ton v. United States, 348 U.S. 272, 279 (1955). The doctrine of discovery is discussed in Chapter II, Section D. 28. See Walter Echo-​Hawk, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided 359–​94 (2010) (discussing the Tee-​Hit-​Ton case). 29. 72 Stat. 339, Pub. L. No. 85-​558 (1958). 30. Id. §§ 6(a)–​(b). 31. For a discussion of the Statehood Act, see Robert T. Anderson, Sovereignty and Subsistence: Native Self-​Government and Rights to Hunt, Fish, and Gather After ANSCA, 33 Alaska L. Rev. 187, 200–​01 (2016). 32. See Indian Law and Order Comm’n, A Roadmap for Making Native America Safer: Report to the President and Congress of the United States, at ch. 2, at 43, available at https://​www.aisc.ucla.edu/​iloc/​rep​ort/​files/​Chapt​er_​2​_​Ala​ska.pdf. 33. Id. at 39. 34. See Ryan Fortson, Advancing Tribal Court Criminal Jurisdiction in Alaska, 32 Alaska L. Rev. 94, 97–​98 (2015). 35. See National Institute of Justice, Violence Against American Indian and Alaska Native Women and Men (2016), available at https://​nij.ojp.gov/​top​ics/​artic​les/​viole​nce-​agai​ nst-​ameri​can-​ind​ian-​and-​ala​ska-​nat​ive-​women-​and-​men; see also Megan Mallonee, Selective Justice: A Crisis of Missing and Murdered Alaska Native Women, 38 Alaska L. Rev. 93 (June 2021). 36. See Metlakatla Indian Community v. Dunleavy, 58 F.4th 1034 (9th Cir. 2023) (discussing the 1891 statute and holding that it confers off-​reservation fishing rights to the tribe). 37. Pub. L. No. 92-​203, 85 Stat. 688, codified as amended at 43 U.S.C. §§ 1601–​28.

The Unique Status of Certain Native American Groups  401 38. Yellin v. Confederated Tribes of Chehalis Reservation, 141 S. Ct. 2434, 2443 (2021). 39. See David S. Case & David A. Voluck, Alaska Natives and American Laws 171–​75 (3d ed. 2012); see also Stratman v. Leisnoi, Inc., 545 F.3d 1161 (9th Cir. 2008). 40. 43 U.S.C. §§ 1606(a) and (d). To qualify as a “Village,” the population of the community needed at least twenty-​five inhabitants. Those communities with fewer than twenty-​five were given smaller conveyances of land. See 43 U.S.C. §§ 1602(c), (d); Minchumina Natives, Inc. v. U.S. Department of Interior, 2007 WL 2069907, at *1 (D. Alaska 2007). One heavily populated region, Cook Inlet, was allowed to select adjacent lands as well as village lands on which to engage in subsistence hunting. See Chickaloon-​Moose Creek Native Association, Inc. v. Norton, 360 F.3d 972 (9th Cir. 2004). 41. A thirteenth corporation was created for those Alaska Natives living outside of Alaska, but it was not assigned any land. See Case & Voluck, supra note 39, at 170. 42. See Tyonek Native Corp. v. Cook Inlet Region, Inc., 853 F.2d 727 (9th Cir. 1988). 43. Kristen Carpenter & Angela Riley, Privatizing the Reservation?, 71 Stan. L. Rev. 791, 845–​46 (2019). For further background on ANSCA, see Yellin, 141 S. Ct. at 2439. 44. See https://​www.seala​ska.com/​bus​ines​ses/​2019-​ann​ual-​rep​ort-​financ​ial-​overv​iew/​#. 45. See https://​www.seala​ska.com/​mys​eala​ska/​seala​ska-​achie​ves-​60-​7-​mill​ion-​net-​inc​ ome-​in-​2021/​. 46. See https://​kin​geco​nomi​csgr​oup.com/​est​imat​ing-​oil-​comp​any-​reven​ues/​. 47. See Anderson, supra note 31, at 204 (noting that ANSCA “has had devastating effects on Native subsistence uses” on their aboriginal territories). 48. See https://​www.aoga.org/​state-​reve​nue. 49. See Elizaveta Barrett Ristroph, Traditional Cultural Districts: An Opportunity for Alaska Tribes to Protect Subsistence Rights and Traditional Lands, 31 Alaska L. Rev. 211, 211 n.2 (2014). 50. 43 U.S.C. §§ 270–​71 et seq. 51. Act of May 25, 1926, ch. 379, 44 Stat. 629. 52. See Alaska Dept. of Natural Resources v. United States, 816 F.3d 580 (9th Cir. 2016); State of Alaska v. Babbitt, 75 F3d 449, 450–​52 (9th Cir. 1996). An allottee’s interest in the land gives the allottee the standing to sue those polluting the property. See Nanouk v. United States, 974 F.3d 941 (9th Cir. 2020). 53. No court has yet addressed the issue of whether Alaska’s allotted land is Indian country, although at least one court has held that the land is exempt from state taxation because of its federal restricted status. People of the S. Naknek v. Bristol Bay Borough, 466 F. Supp. 870, 874 (D. Alaska 1979). For a review of the Native town site and allotment programs, see Case & Voluck, supra note 39, at 113–​52; Kyle E. Scherer, Alaska’s Tribal Trust Lands: A Forgotten History, 38 Alaska L. Rev. 37 (2021). It would appear that these restricted allotments constitute Indian country. See Oklahoma Tax Comm’n v. Sac & Fax Nation, 508 U.S. 114, 123–​26 (1993) (explaining that restricted fee land is Indian country); Citizens Against Casino Gambling in Erie County v. Chaudhuri, 802 F.3d 267, 281–​86 (2d Cir. 2015), cert. denied, 136 S. Ct. 2387 (2016) (similar); see also Fortson, supra note 34, at 116.

402  The Rights of Indians and Tribes 54. 16 U.S.C. §§ 3101–​3233 (1980). See Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988). 55. 16 U.S.C. §§ 3111–​3126. See Alaska Dep’t of Fish and Game, Subsistence in Alaska: A Year 2017 Update (2018), available at https://​www.adfg.ala​ska.gov/​sta​ tic/​home/​subs​iste​nce/​pdfs/​subs​iste​nce_​upda​te_​2​017.pdf. 56. 16 U.S.C. § 3115(d). See John v. United States, 247 F.3d 1032 (9th Cir. 2001). 57. Safari Club Int’l v. Haaland, 31 F.4th 1157 (9th Cir. 2022). 58. The state has adopted laws and regulations regarding subsistence hunting on non-​ federal lands. These allows all subsistence hunters—​both rural and urban—​to obtain subsistence hunting permits. See State v. Morry, 836 P.2d 358, 368 (Alaska 1992); McDowell v. State, 785 P.2d 1, 9–​11 (Alaska 1989). 59. See 16 U.S.C. § 3112 (granting a subsistence priority to “rural” residents). 60. For a discussion of the laws that protect wildlife in Alaska, see Robert T. Anderson, The Katie John Litigation: A Continuing Search for Alaska Native Fishing Rights After ANSCA, 51 Ariz. St. L.J. 845, 860–​61 (2019). 61. See 16 U.S.C. §§ 3111–​26; 25 C.F.R. § 100.24. For a discussion of this topic, see Dept. of Fish and Game v. Federal Subsistence Board, 62 F.4th 1177 (9th Cir. 2023), and Alaska v. Federal Subsistence Board, 544 F.3d 1089 (9th Cir. 2008). 62. Non-​Native groups challenged this permit system and lost. See Alaska Fish and Wildlife Conservation Fund v. State, 347 P.3d 97 (Alaska 2015). 63. See Anderson, supra note 31, at 215–​18; Miranda Strong, Alaska National Interest Land Conservation Act Compliance and Nonsubsistence Areas: How Can Alaska Thaw Out Rural and Alaska Native Subsistence Rights, 30 Alaska L. Rev. 71, 84–​94 (2013). 64. McDowell v. State, 785 P.2d 1 (Alaska 1989). 65. See John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc). For further discussion, see Strong, supra note 63, at 79–​83. 66. 58 Fed. Reg. 54,364, 54368 (Oct. 21, 1993). 67. Pub. L. No. 103–​454, §§ 103, 108 (1994). 68. See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (2024). 69. 141 S. Ct. 2434 (2021). 70. Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32, 34 (Alaska 1988). 71. 522 U.S. 520 (1998). “Indian country” is defined in 18 U.S.C. § 1151. Both Indian country and Venetie are discussed in Chapter II, Section C. 72. Both the federal and state courts recognize that the Alaska villages retain inherent sovereign authority. Native Village of Venetie IRA Council v. Alaska, 944 F.2d 548, 556–​59 (9th Cir. 1991); Kaltag Tribal Council v. Jackson, 344 Fed. Appx. 324, 325 (9th Cir. 2009), cert. denied, 562 U.S. 827 (2010); John v. Baker, 982 P.2d 738, 754 (Alaska 1999). See generally, Mitchell Forbes, Beyond Indian Country: The Sovereign Powers of Alaska Tribes Without Reservations, 40 Alaska L. Rev. 171 (2023). 73. See Indian Tribal Justice Act, 25 U.S.C. § 3601(4); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62–​63 (1978). 74. See John v. Baker, 982 P.2d at 751.

The Unique Status of Certain Native American Groups  403 75. See State v. Native Village of Tanana, 249 P.3d 734, 750 (Alaska 2011). 76. The ISDEAA includes Native villages in its definition of “Indian tribe.” See 25 U.S.C. § 5304e. See generally Attorney General Jahna Lindemuth, Legal Status of Tribal Governments in Alaska (Oct. 19, 2017), available at https://​law.ala​ska.gov/​pdf/​opini​ ons/​opinio​ns_​2​017/​17-​004​_​JU2​0172​010.pdf. 77. 982 P.2d 738 (Alaska 1999). 78. John v. Baker, 982 P.2d at 754. 79. 25 U.S.C. §§ 1901 et seq. The Indian Child Welfare Act is the subject of Chapter XVI. 80. State v. Native Village of Tanana, 249 P.3d 734, 750–​51 (Alaska 2011). See also In re C.R.H., 29 P.3d 849 (Alaska 2001) (holding that Alaska Native Villages can have ICWA cases transferred to their tribal courts from state courts). 81. McCrary v. Ivanof Bay Village, 265 P.3d 337, 340–​41 (Alaska 2011). 82. Simmonds v. Parks, 329 P.3d 995, 1011 (Alaska 2014). 83. State v. Cent. Council of Tlingit & Haida Indian Tribes, 371 P.3d 255, 264–​72 (Alaska 2016). 84. United States v. Wheeler, 435 U.S. 313, 328 (1978). See also Talton v. Mayes, 163 U.S. 376, 384 (1896). 85. See Fortson, supra note 34, at 132, 133–​47. On the other hand, for reasons discussed in Chapter VII, notes 66–​76 and accompanying text, Alaska tribes (like all other tribes) presumptively lack general criminal jurisdiction over non-​Natives. 86. This subject is discussed in Chapter V, notes 138–​60 and accompanying text. 87. Memorandum of Jan. 13, 2017, available at https://​www.doi.gov/​sites/​doi.gov/​files/​ uplo​ads/​m-​37043.pdf. 88. Memorandum of June 29, 2018, available at https://​www.doi.gov/​sites/​doi.gov/​files/​ uplo​ads/​m-​37053.pdf. 89. See U.S. Dept. of Interior, Office of Solicitor, Memorandum M-​37076 (Nov. 16, 2022), available at https://​www.doi.gov/​sites/​doi.gov/​files/​m-​37076-​ala​ska-​trust-​lands-​ m-​opin​ion-​11.16.2022.pdf. In November 2022, the DOI took land into trust status for an Alaska tribe, and the state of Alaska promptly filed a lawsuit challenging that action, which is currently pending. See State of Alaska v. Newland, Civ. No. 3:23-​cv-​ 00007-​SLG (filed Jan. 17, 2023). 90. For a further discussion of this subject, see Atiachak Native Community v. U.S. D.O.I., 827 F.3d 100 (D.C. Cir. 2016); Fortson, supra note 34, at 121–​22; O’Connor, supra note 20, at 96–​98. 91. 18 U.S.C. § 2265(d)(2). 92. See http://​www.law.ala​ska.gov/​pdf/​opini​ons/​opinio​ns_​2​015/​15-​005_​A​N201​3102​ 606.pdf. 93. For background information about the Oklahoma tribes, see Rennard Strickland, The Indians of Oklahoma (1980); Angie Debo, A History of the Indians of the United States 97–​98, 112–​13 (1970). See also Choctaw Nation v. Oklahoma, 397 U.S. 620, 623 (1970). 94. Grant Foreman, The Five Civilized Tribes vii (1934). 95. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2461–​ 62 (2020); Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995). For an interesting historical

404  The Rights of Indians and Tribes review of one Oklahoma tribe, see Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1229–​30 (10th Cir. 2014). 96. Many tribal members questioned the validity of these treaties. See Joel West Williams, The Five Civilized Tribes’ Treaty Rights to Water Quality and Mechanisms of Enforcement, 25 N.Y.U. Envtl. L.J. 269, 275–​76 (2017); Debo, supra note 93, at 5. 97. Strickland, supra note 93, at 4; Grant Foreman, Indian Removal: The Emigration of the Five Civilized Tribes of Indians 53–​98, 206–​312 (1932); Williams, supra note 96, at 273–​77. 98. See Oklahoma Historical Society, Slavery, available at https://​www.okhist​ory. org/​publi​cati​ons/​enc/​entry.php?entry=​SL003. In 1866, shortly after the Civil War, the Cherokee Nation signed a treaty with the United States agreeing to make their newly freed slaves (“Freedmen”) members of the tribe with “all the rights of native Cherokees.” Their descendants continue to be tribal members today, although at one point the Cherokee Nation sought to disenroll them. See Cherokee Nation v. Nash, 267 F. Supp. 3d 86, 89 (D.D.C. 2017). In 2021, the Cherokee Supreme Court issued a ruling guaranteeing the right of full membership to the Freedmen and their descendants. See In re: Effect of Cherokee Nation v. Nash (Cher. Sup. Ct. No. SC-​ 17-​7, Feb. 21, 2021), available at https://​tur​tlet​alk.files.wordpr​ess.com/​2021/​02/​ sc-​17-​07-​37-​final-​order-​2-​22-​21.pdf. 99. Debo, supra note 93, at 6–​13. 100. For a discussion of these incidents and a review of Grann’s book, see Matthew L.M. Fletcher, Failed Protectors: The Indian Trust and Killers of the Flower Moon, 117 Mich. L. Rev. 1253 (2019). 101. Stacy L. Leeds & Lonnie R. Beard, A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development, 56 Tulsa L. Rev. 417 (2021). 102. 140 S. Ct. 2452 (2020). 103. McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020). 104. Id. at 2482. For a further discussion of McGirt, see Leeds & Beard, supra note 101; Robert J. Miller, McGirt v. Oklahoma: The Indian Law Bombshell, The Federal Lawyer (Mar./​Apr. 2021), at 31; David Moore & Michalyn Steele, Revitalizing Indian Sovereignty in Treatymaking, 97 N.Y.U. L. Rev. 137, 185–​89 (2022). 105. See, e.g., State ex. rel. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. 2021), cert. denied, 142 S. Ct. 757 (2022) (Cherokee, Choctaw, and Chickasaw Reservations); Grayson v. State, 485 P.3d 250, 254 (Okla. Crim. 2021) (Seminole Reservation). 106. See McGirt, 140 S. Ct. at 2482 (Roberts, Ch. J., dissenting); Oklahoma v. Castro-​ Huerta, 142 S. Ct. 2486, 2492, 2499 (2022). 107. See, e.g., State v. Lawhorn, 499 P.3d 777 (Okla. Cr. 2021) (Quawpaw Reservation); State v. Brester, 531 P.3d 125 (Okla. Crim. 2023) (Ottawa Reservation). 108. See Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991); Oklahoma Tax Commission v. Sac & Fox Nation, 508 U.S. 114 (1993); Seneca-​Cayuga Tribe of Oklahoma v. State of Oklahoma, 874 F.2d 709 (10th Cir. 1989) (holding that Oklahoma may not regulate tribal bingo operation on trust land). But see Milne v. Hudson, 519 P.3d 511 (Okla. 2022) (holding that a state court can issue a protective order on behalf of one reservation Indian against another).

The Unique Status of Certain Native American Groups  405 109. McGirt, 140 S. Ct. at 2459; United States v. Burnett, 777 F.2d 593 (10th Cir. 1985), cert. denied, 476 U.S. 1106 (1986); State v. Klindt, 782 P.2d 401 (Okla. Crim. 1989). 110. See Oklahoma Tax Commission, Report of Potential Impact of McGirt v. Oklahoma (Sept. 30, 2020), at 2, available at https://​www.hal​lest​ill.com/​uplo​ads/​McG​irt-​Oklah​ oma-​Tax-​Com​miss​ion-​Rep​ort.pdf; Leeds & Beard, supra note 101, sections IV–​VI. 111. See https://​ktul.com/​news/​local/​chero​kee-​nat​ion-​files-​100​0th-​case-​in-​tri​bal-​court-​ since-​mcg​irt-​rul​ing. 112. See, e.g., Wadkins v. State, 504 P.3d 605, 612 (Okla. Crim. 2022) (Lumpkin, J., concurring) (stating that the majority in McGirt “willfully disregarded” settled law). 113. 142 S. Ct. 2486 (2022). 114. Castro-​Huerta, and criticism of the decision, is discussed in Chapter VII, notes 164–​74. 115. Board of Commissioners of Creek County v. Seber, 318 U.S. 705, 718 (1943). 116. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505. 509 (1991). See also Seneca-​Cayuga Tribe of Oklahoma v. State of Oklahoma, 874 F.2d 709, 714–​15 (10th Cir. 1989). 117. See Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law 294–​310 (2005 ed.). 118. The Osage Act of 1906 limits tribal powers. 34 Stat. 539, 543. For further information on this subject, see Cohen’s Handbook, supra note 117, at 309–​19; see also Fletcher v. United States, 730 F.3d 1206 (10th Cir. 2013). 119. Act of June 28, 1898, ch. 517, 30 Stat. 495, 504. 120. The IRA is discussed in Chapter I, notes 86–​96 and accompanying text. 121. 25 U.S.C. §§ 5201 et seq. (formerly 25 U.S.C. §§ 501 et seq.). 122. Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444–​45 (D.C. Cir. 1988), cert. denied, 488 U.S. 1010 (1989). See Strickland, supra note 93, at 73. 123. Harjo v. Kleppe, 420 F. Supp. 1110, 1130 (D.D.C. 1976), aff ’d sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978). 124. 70 Stat. 893, 937, and 963 (1959), and 92 Stat. 246 (1977). 125. 74 O.S. § 1221(B) (2014). 126. See  https://​www.oklaho​man.com/​story/​news/​2021/​12/​13/​oklah​oma-​tri​bes-​gov-​ kevin-​stitt-​can​cel-​hunt​ing-​fish​ing-​compa​cts-​chero​kee-​choc​taw/​649​6127​001/​. 127. See  https://​apn​ews.com/​arti​cle/​nat​ive-​ameri​can-​tri​bal-​rega​lia-​oklah​oma-​veto-​ overr​ide-​418f8​1adb​a293​7a2d​0a4e​ecae​2c2e​ede 128. Robert B. Porter, Building a New Longhouse: The Case for Government Reform Within the Six Nations of the Haudenosaunee, 46 Buff. L. Rev. 805, 809 (Fall 1998). See also City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 203 (2005). 129. See Barbara Graymont, The Iroquois in the American Revolution (1972); Porter, supra note 128, at 820. 130. See Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145 (2d Cir. 1988), cert. denied, 493 U.S. 871 (1989). 131. See Treaty with the Seven Nations, 7 Stat. 55 (1796), Treaty of Ghent, 8 Stat. 218 (1814); Canadian St. Regis Band of Mohawk Indians v. New York, 146 F. Supp. 2d 170 (N.D.N.Y. 2001). 132. Porter, supra note 128, at 821.

406  The Rights of Indians and Tribes 133. 25 U.S.C. § 177. 134. See Oneida County, New York v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985). See also Oneida Indian Nation of New York State v. Oneida County, New York, 414 U.S. 661 (1974). 135. 544 U.S. 197 (2005). 136. City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 219–​21 (2005). 137. This procedure is discussed in Chapter V, notes 138–​60 and accompanying text. 138. See Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266, 284, 290 (2d Cir. 2005), cert. denied, 547 U.S. 1128 (2006); Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114, 117 (2d Cir. 2010), cert. denied, 565 U.S. 970 (2011); Onondaga Nation v. New York, 500 Fed. Appx. 87 (2d Cir. 2012), cert. denied, 571 U.S. 969 (2013). 139. Sarah Krakoff, City of Sherrill v. Oneida Indian Nation of New York: A Regretful Postscript to The Taxation Chapter in Cohen’s Handbook of Federal Indian Law, 41 Tulsa L. Rev. 5, 6–​7 (2005). 140. See https://​www.ono​ndag​anat​ion.org/​news/​2013/​final-​den​ial-​of-​just​ice-​to-​the-​ onond​aga-​nat​ion-​uni​ted-​sta​tes-​supr​eme-​court-​den​ies-​cer​tior​ari/​. 141. Upstate Citizens for Equality, Inc. v. Salazar, 2010 WL 827090 (N.D.N.Y. 2010); Central New York Fair Business Association v. Salazar, 2010 WL 786526 (N.D.N.Y. 2010). 142. See https://​www.one​idai​ndia​nnat​ion.com/​about/​. 143. Seneca Nation of Indians v. State of New York, 988 F.3d 618, 624 (2d Cir. 2021). 144. Criminal jurisdiction under Public Law 280 is discussed in Chapter VII, notes 21–​ 51 and accompanying text. 145. 25 U.S.C. § 232. 146. See Bess v. Spitzer, 459 F. Supp. 2d 191 (E.D.N.Y. 2007); People v. Edwards, 432 N.Y.S.2d 567 (App. Div. 1980). The federal government may exercise concurrent criminal jurisdiction on New York reservations with respect to federal offenses. United States v. Cook, 922 F.2d 1026, 1033 (2d Cir.), cert. denied, 500 U.S. 941 (1991). 147. 25 U.S.C. § 233. 148. Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976). 149. Herzog Bros. Trucking, Inc. v. State Tax Commission, 69 N.Y.2d 536 (Ct. App. 1987), vacated and remanded, 487 U.S. 1212, reinstated, 72 N.Y.2d 720 (Ct. App. 1988). Nothing prevents New York from taxing the reservation sale of goods to non-​ Indians, see Dept. of Taxation and Fin. of N.Y. v. Milhelm Matea & Bros., Inc., 512 U.S. 61, 64 (1994), or from requiring that tribal vendors prepay the tax. White v. Schneiderman, 31 N.Y.3d 543, 106 N.E.3d 709 (Ct. App. 2018), cert. denied, 139 S. Ct. 432 (2018). For a discussion of New York’s long-​running dispute to collect taxes on sales of cigarettes to non-​Indians on Indian reservations, see New York v. United Parcel Service, Inc., 942 F.3d 554 (2d Cir. 2019), cert. denied, 141 S. Ct. 242 (2020). 150. Cayuga Nation v. Campbell, 34 N.Y.3d 282 (Ct. App. 2019). 151. See Dalton v. Pataki, 11 App. Div. 3d 62, 65 n.8 (2004), aff ’d on other grounds, 5 N.Y.3d 243 (Ct. App. 2005).

The Unique Status of Certain Native American Groups  407 152. See id.; Spota ex rel. Unkechaug Indian Nation v. Jackson, 10 N.Y.3d 46, 53 (Ct. App. 2008). 153. The New York statute is similar to Public Law 83-​280, and courts have held that Public Law 83-​280 does not divest tribes of their inherent powers. See Bishop Paiute Tribe v. County of Inyo, 291 F.3d 549, 557 (9th Cir. 2002), rev’d on other grounds, 538 U.S. 731 (2003). The same should be true for the New York law. See Cayuga Nation v. Campbell, 34 N.Y.3d 282 (Ct. App. 2019). 154. See California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008); see also Lorinda Riley, When a Tribal Entity Becomes a Nation: The Role of Politics in the Shifting Federal Recognition Regulations, 39 Am. Indian L. Rev. 451, 452 (2016). 155. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004), cert. denied, 545 U.S. 1114 (2005). 156. 25 C.F.R. § 83.2(a). 157. U.S. Const. art. I, § 8, cl. 3. 158. See Miami Nation v. U.S. Department of Interior, 255 F.3d 342, 345 (7th Cir. 2001). 159. Pub. L. No. 103-​454, 108 Stat. 4791 (codified at 25 U.S.C. § 5131). The 2023 list contains 574 Indian tribes. See https://​www.usa.gov/​ind​ian-​tri​bes-​ala​ska-​nat​ive; 88 Fed. Reg. 2112 (Jan. 12, 2023). 160. Id. See Agua Caliente Tribe of Cupeño Indians of the Pala Reservation v. Sweeney, 932 F.3d 1207, 1215 (9th Cir. 2019). 161. See Samish Indian Nation v. United States, 419 F.3d 1355, 1359 (Fed. Cir. 2005). 162. See Barbara N. Coen, Tribal Status Decision Making: A Federal Perspective on Acknowledgement, 37 New Eng. L. Rev. 491, 491 (2003); Kahawaiolaa v. Norton, 386 F.3d 1271, 1272–​73 (9th Cir. 2004), cert. denied, 545 U.S. 1114 (2005). 163. Procedures for Establishing that an American Indian Group Exists as an Indian Tribe, 25 C.F.R. § 83 (2023). 164. See Kirsten Matoy Carlson, Congress, Tribal Recognition, and Legislative-​ Administrative Multiplicity, 91 Ind. L.J. 955 (2016); Lorinda Riley, Shifting Foundation: The Problem with Inconsistent Implementation of Federal Recognition Regulations, 37 N.Y.U. Rev. L. & Soc. Change 629 (2013). A petition for acknowledgment can cost over $5 million to assemble. See Harry S. Jackson III, Note, The Incomplete Loom: Exploring the Checkered Past and Present of American Indian Sovereignty, 64 Rutgers L. Rev. 471, 497 (2012). 165. Riley, supra note 154, at 468. 166. For a discussion of the Mashpee situation, see The Pluralism Project, Identity and Tribal Recognition: The Mashpee Community, available at https://​plural​ism.org/​files/​ plural​ism/​files/​iden​tity​_​and​_​tri​bal_​reco​gnit​ion-​_​th​e_​ma​shpe​e_​co​mmun​ity.pdf. 167. Vine Deloria, Jr., quoted in Matthew L.M. Fletcher, Politics, History, and Semantics: The Federal Recognition of Indian Tribes, 82 N.D. L. Rev. 487, 517 (2006). 168. Greene v. Babbitt, 943 F. Supp. 1278, 1281, 1288 (W.D. Wash. 1996). 169. See United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 550 (10th Cir. 2001); James v. U.S. Department of Health & Human Services, 824 F.2d 1132, 1137 (D.C. Cir. 1987).

408  The Rights of Indians and Tribes 170. See, e.g., Pub. L. No. 97-​429, 25 U.S.C. §§ 1300–​11 through 1300b-​16 (granting recognition to the Texas Band of Kickapoo Indians); 25 U.S.C. §§ 1751 et seq. (Mashantucket Pequot of Connecticut); 25 U.S.C. §§ 1701–​16 (Narragansett Tribe of Rhode Island); Pub. L. No. 102-​171, 105 Stat. 1143 (1991) (Aroostook Band of Micmacs). 171. Pub. L. No. 115-​121, 132 Stat. 40. 172. Federal Acknowledgment of American Indian Tribes, 80 Fed. Reg. 37,862 (July 1, 2015). See Agua Caliente Tribe of Cupeño Indians of the Pala Reservation v. Sweeney, 932 F.32 1207, 1215 (9th Cir. 2019). 173. The seven criteria are set out in 25 C.F.R. § 83.11. For a comparison of the old and new regulations, see Riley, supra note 154, at 468. 174. See Mashpee Tribe, 707 F.2d 23; Miami Nation, 887 F. Supp. 1158; United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir. 2001); see also Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 535–​38 (2017); Bart T. Stupak & Justin Nemeroff, 2015 Acknowledgement Regulations Invalidate Native American Treaties, Mich. Bar J. (Aug. 2019), available at https://​www.mich​bar.org/​file/​bar​jour​nal/​arti​cle/​docume​ nts/​pdf4​arti​cle3​726.pdf. 175. For a discussion of this change in the language, see Riley, supra note 154, at 474. 176. See Chinook Indian Nation v. Zinke, 326 F. Supp. 3d 1128, 1140-​44 (W.D. WA. 2018); Burt Lake Band of Ottawa and Chippewa Indians v. Zinke, 304 F. Supp. 3d 70, 76–​80 (D.D.C. 2018). 177. 25 C.F.R. §§ 83.26, 83.28, 83.32. 178. Id. §§ 83.35, 83.37, 83.38. 179. Id. §§ 83.40, 83.42. 180. Id. § 83.44. See Allen v. United States, 797 Fed. Appx. 302 (9th Cir. 2019) (upholding DOI’s decision to deny recognition to a splinter group of a tribe); Cherokee Nation of Oklahoma v. Norton, 389 F.3d 1074 (10th Cir. 2004), cert. denied, 546 U.S. 812 (2005) (permitting one tribe to challenge DOI’s decision to grant recognition to another tribe); James v. U.S. Department of Health & Human Services, 824 F.2d 1132 (D.C. Cir. 1987); Mashpee Tribe v. Watt, 707 F.2d 23 (1st Cir.), cert. denied, 464 U.S. 1020 (1983). 181. See 28 U.S.C. § 2401(a); Mowa Band of Choctaw Indians v. United States, 2008 W.L. 2633967 (S.D. Ala. 2008). 182. See Agua Caliente Tribe of Cupeño Indians of the Pala Reservation v. Sweeney, 932 F.3d 1207, 1217–​19 (9th Cir. 2019); Mackinac Tribes v. Jewell, 829 F.3d 754, 758 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 638 (2017); Mdewakanton Sioux Indians of Minnesota v. Zinke, 264 F. Supp.3d 116, 127 (D.D.C. 2017). 183. For a breakdown by presidential administrations of the number of petitions that were granted and denied, see Riley, supra note 154, at 505. Since 1978 under the Part 83 process, the Department has granted recognition to eighteen applicants and denied recognition to thirty-​four. See Office of Federal Acknowledgment (OFA) at https://​www.bia.gov/​as-​ia/​ofa/​petiti​ons-​resol​ved/​ackno​wled​ged (noting number acknowledged) and https://​www.bia.gov/​as-​ia/​ofa/​petiti​ons-​resol​ved/​den​ied (noting number denied).

The Unique Status of Certain Native American Groups  409 184. See id., at 479–​503; for recent examples, see Tolowa Nation v. United States, 380 F. Supp. 3d 959 (N.D. Cal. 2019); Muwekme Ohlone Tribe v. Salazar, 708 F.3d 209, 219 (D.C. Cir. 2013). 185. Agua Caliente Tribe of Cupeño Indians, 932 F.3d at 1213 (internal citation omitted). 186. 25 C.F.R. § 83.2. 187. See Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Chinook Indian Nation v. Zinke, 326 F. Supp. 3d 1128, 1140–​44 (W.D. WA. 2018); Burt Lake Band of Ottawa and Chippewa Indians v. Zinke, 304 F. Supp. 3d 70, 76–​80 (D.D.C. 2018). 188. United States v. Washington, 384 F. Supp. 312, 406 (W.D. Wash. 1974), aff ’d, 520 F.2d 676, 692–​93 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir. 1995). 189. See Yellin v. Confederated Tribes of Chehalis Reservation, 141 S. Ct. 2434 (2021) (finding that Congress had chosen to permit Alaska’s regional ANCs to receive CARES Act funds even though they are not federally recognized tribal governments); Frank’s Landing Indian Community v. NIGC, 918 F.3d 610, 618–​19 (9th Cir. 2019); Passamaquoddy Tribe, 528 F.2d 370; Alabama-​Coushatta Tribe of Texas v. United States, 2000 WL 1013532, at *46–​47 (Fed. Cl. 2000); Gibson v. Babbitt, 72 F. Supp. 2d 1356, 1360 (S.D. Fla. 1999); Schmasow v. Native American Center, 978 P.2d 304 (Mont. 1999). 190. See National Congress of American Indians, Constitution (Art. II, Sec. B(1)(d)), available at https://​www.ncai.org/​about-​ncai/​ncai-​gov​erna​nce/​const​itut​ion-​byl​ aws-​rules-​of-​order#Cons​titu​tion​_​Art​icle​_​II. 191. Appendix A of this book lists by state each tribe recognized by the state and federal governments. To find the official lists, see supra note 159.

XV Indian Gaming In 1988, Indian tribes earned $100 million from gaming, hardly a paltry sum—​but nothing like the $40.9 billion they earned in 2021.1 About 70 percent of tribes (in twenty-​nine states) have at least one casino, although some casinos are far more lucrative than others.2 Gaming has become the single greatest source of income for Indian tribes. The cumulative revenue made by gaming tribes is ten times greater than the amount of money the U.S. Department of the Interior (DOI) distributes through its Indian affairs programs, and thirty times greater than what tribes earn from selling their natural resources, such as oil, gas, and coal.3 In addition to generating income for tribes, Indian gaming in 2020 also generated some 705,000 jobs, $37.9 billion in wages, and $14.4 billion in federal, state, and local taxes, and resulted in $1.9 billion in revenue-​sharing to federal, state, and local governments.4 Gaming on Indian reservations began in the 1970s when a few Indian tribes started offering high-​stakes bingo on their reservations to raise money for the tribe and create jobs for tribal members. These “bingo halls” were immediately successful. Gaming suddenly emerged as an unparalleled economic opportunity, especially for those tribes located near metropolitan areas or in tourist destinations. One of the first tribes to operate a bingo hall was the Cabazon Band of Mission Indians of California. Under California law, however, it was a misdemeanor to offer bingo except for charity, and the maximum pot was limited to $250. The Cabazon Band complied with neither of those restrictions. California, as discussed in Chapter VII, is a mandatory Public Law 83-​280 (P.L. 280) state, which means that Congress has authorized California to exercise criminal jurisdiction—​but not civil jurisdiction—​over Indians in Indian country. California sought to enforce its bingo restrictions on the Cabazon Band, arguing that these restrictions were criminal laws the state had the authority to impose on the tribe. The tribe refused to comply with California’s limits, resulting in litigation that reached the Supreme Court in 1987. In California v. Cabazon Band of The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0015

412  The Rights of Indians and Tribes Mission Indians,5 the Court held, first, that Indian tribes have the inherent right to engage in gaming on their reservations, and second, that neither P.L. 280 nor any other federal law authorized California to limit the tribe’s right to conduct gaming on its reservation. California allowed low-​stakes bingo for charity but not high-​stakes bingo for profit. This demonstrated, the Court said, that California was not prohibiting bingo but, rather, was regulating it, which meant that California’s bingo restrictions were an exercise of civil (“regulatory”) jurisdiction and not criminal (“prohibitory”) jurisdiction. California, therefore, could not impose these laws on the tribe, the Court held, given that Congress had not authorized California to exercise civil jurisdiction in Indian country. The Court’s decision in Cabazon Band sent shock waves around the nation. If a P.L. 280 state like California lacked the ability to regulate tribal gaming, few (if any) other states could do so. This was of great concern to many states, and pressure quickly mounted in Congress to pass remedial legislation. A year after Cabazon Band was decided, Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA),6 which gives the state and federal governments certain limited authority to regulate Indian gaming. Many people believe that IGRA confers on Indian tribes a right to conduct gaming that they did not already possess. That is incorrect. As the Supreme Court recognized in Cabazon Band, Indian tribes possess the inherent right to conduct gaming on their reservations. IGRA restricts tribal powers, not expands them. Some state officials wanted Congress to impose stricter limits on tribal gaming than IGRA does. IGRA is a compromise. It seeks to balance tribal sovereignty and the federal government’s commitment to fostering tribal self-​ determination with the desire to give the federal and state governments some control over tribal gaming.7 The purpose of IGRA, as stated in the Act itself, is to “provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-​sufficiency, and strong tribal governments.”8 At the same time, the Act is intended to shield tribes “from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and the players.”9 In addition to raising money for tribes, IGRA raises money for the federal government. IGRA taxes the income tribes make from their gaming activities—​a tax that states are exempt from paying on their gaming activities

Indian Gaming  413 (such as state lotteries).10 IGRA also taxes the income that tribal members receive when the tribe distributes gaming profits to them (and the tribe must withhold those taxes before making the distributions).11 These taxes generate millions of dollars each year for the federal government. IGRA provides Indian tribes with opportunities not conferred on non-​ Indians. Courts have held that IGRA does not constitute impermissible race discrimination, however. Rather, IGRA reflects the legitimate congressional goal of promoting tribal sovereignty and economic development and, therefore, is within the authority of Congress to enact.12

What types of gaming does IGRA authorize?

IGRA states that “Indian tribes” may engage in certain forms of gaming on “Indian lands.” Indian tribes as defined in IGRA are those groups officially recognized as Indian tribes by the DOI.13 Indian lands are defined in IGRA as including all lands within an Indian reservation (both trust and non-​trust) as well as any lands outside a reservation to which title is held in trust by the United States for the benefit of an Indian tribe.14 IGRA divides Indian gaming into three classes, and each class is treated differently. Class I gaming includes social games played solely for prizes of minimal value, as well as traditional forms of gaming conducted during tribal ceremonies or celebrations.15 Class I gaming remains within the exclusive jurisdiction of the tribe and is not subject to any type of state or federal regulation.16 Class II gaming includes bingo, card games already allowed under state law, and certain forms of pull-​tabs, punch boards, and lotto.17 In Class II games, players bet against one another, and the “house” (the casino) has no monetary stake in the outcome of the bets. Indian tribes may engage in Class II gaming if (1) the state already permits such gaming any place else in the state by any person, organization, or entity, and (2) the tribe enacts an ordinance authorizing the gaming activity and the ordinance is approved by the National Indian Gaming Commission (NIGC), the federal agency created to regulate tribal gaming.18 Under IGRA, the federal government regulates, monitors, and audits Class II gaming, and the state plays no regulatory role. Thus, Indian tribes, even after IGRA, may operate bingo halls free of state control, provided that the state authorizes this form of gambling anywhere in the state. Class III gaming is defined as “all forms of gaming that are not Class I gaming or Class II gaming.”19 This includes the most lucrative forms

414  The Rights of Indians and Tribes of gaming: slot machines, roulette, craps, pari-​mutuel wagering, lotteries, and banked card games (which are games played against the house rather than other players) such as blackjack and baccarat.20 Class III gaming is the most heavily regulated gambling under IGRA.21 To engage in Class III gaming, the tribe must satisfy both requirements for Class II gaming, that is, it must enact an ordinance approved by the NIGC and the tribe must be located within a state that permits such gaming by any person, organization, or entity.22 Additionally, the tribe must enter into a compact with the state, in which the state consents to each Class III activity the tribe wants to conduct.23 A gaming compact is a contract and the parties can negotiate its provisions.24 This compact must then be submitted to the Secretary of the Interior, who must approve the compact unless it violates IGRA, any other federal law, or the federal government’s trust obligation to Indians.25 The compact takes effect when the Secretary publishes a notice of acceptance in the Federal Register.26

What duties does IGRA confer on the NIGC?

Congress created the NIGC, a three-​person agency situated within the DOI, to regulate tribal gaming.27 The chairperson of the NIGC is appointed by the President and confirmed by the Senate, and at least two members of the commission must be enrolled members of a federally recognized Indian tribe.28 The NIGC’s broad powers include issuing regulations and guidelines implementing IGRA, approving all gaming management contracts,29 approving all tribal ordinances to operate Class II and Class III gaming,30 and auditing each gaming tribe’s financial records with respect to gaming proceeds. The NIGC is responsible for ensuring the proper operation of tribal gaming. The chairperson has both the power and the duty to enforce the commission’s rules by levying fines and, if need be, ordering the closure of a casino.31 The chairperson has ordered several casinos to halt certain gaming activities, to pay fines, and to cease operations. Casinos that ignored these orders have been sued by the federal government, closed by U.S. Marshals, and/​ or had their funds seized to pay fines.32 The NIGC, however, may not control any aspect of tribal gaming beyond what IGRA authorizes.33 The NIGC is funded entirely by fees assessed on tribal gaming revenues. Tribes that engage in Class II and Class III gaming must contribute a certain percentage of their income to the NIGC.34

Indian Gaming  415

For a tribe to operate a Class II or Class III game, must that particular game already be authorized under state law?

Indian tribes may engage only in those Class II and Class III games already authorized under state law.35 The state, however, need not have authorized the particular game at issue, as long as it has authorized the type of gambling of which the game is a part.36 If a state should later amend its laws and prohibit a game allowed in a compact, the state may refuse to allow the tribe to engage in that game when the compact is subject to renewal.37

What if the state refuses to enter into a compact?

A tribe cannot engage in Class III gaming unless it can convince the state to sign a compact allowing that type of gaming. This is one of the most controversial features of IGRA because it places Class III tribes at the mercy of the states. IGRA prohibits states from taxing gaming revenue.38 Yet states have required tribes to share with them a percentage of their gaming revenue as a condition of obtaining a compact—​which has the same effect as taxing that revenue. Courts have generally upheld these revenue-​sharing requirements,39 and so has the DOI.40 IGRA does not place tribes completely at the state’s mercy in these negotiations, however. IGRA obligates the state to negotiate with the tribe “in good faith” in an effort to agree on a compact.41 If the state fails to negotiate in good faith, IGRA authorizes the tribe to file suit against the state, and if the court finds that the state failed to bargain in good faith, it can give the tribe and the state sixty days in which to agree on a compact.42 If they still cannot agree, each side then submits its last offer to a court-​appointed mediator, who selects a compact that then becomes binding on the state if the state consents.43 If the state refuses to consent, the matter is submitted to the Secretary of the Interior, who can authorize the tribe to engage in Class III gaming without the state’s consent.44 These carefully crafted procedures—​designed in part to protect tribes against extortion by the state—​were undermined by the Supreme Court in Seminole Tribe of Florida v. Florida (1996).45 The Court held in Seminole Tribe that Congress does not have the authority in circumstances such as these to strip the states of the immunity from suit they possess under the Eleventh Amendment to the Constitution. (As explained in Chapter XVII, the Eleventh Amendment confers on all states an immunity from most types

416  The Rights of Indians and Tribes of lawsuits unless the state has consented to be sued.) In Seminole Tribe, the Court declared unconstitutional the portion of IGRA that sought to permit tribes to sue a state for refusing to negotiate in good faith. A state has the option of waiving its Eleventh Amendment immunity and allowing Indian tribes to enforce IGRA’s “good faith” provision by suing the state. At least two states have done so (California and Washington).46 However, most states have not waived their immunity. In those states, tribes may be coerced into giving the state a significant percentage of their casino profits in order to obtain a compact, given that Seminole Tribe eliminated the protection that Congress intended to provide to a tribe when confronted by state officials making unreasonable demands for money.47

What options do Indian tribes have to obtain a Class III compact if the state refuses to negotiate in good faith?

The Secretary of the Interior, in an effort to help tribes overcome the disadvantage created by Seminole Tribe, issued regulations stating that the Secretary can issue a tribe a Class III gaming license without state approval if the state fails to negotiate in good faith.48 These regulations give the state an incentive to negotiate in good faith because, through negotiation, a tribe might agree to give the state more of its profits than the Secretary would require if negotiation fails. At least two federal appellate courts, however, have ruled that the Secretary lacks the authority to issue a gaming license without a compact.49 Until the Supreme Court decides this issue, the validity of the Secretary’s regulations is unclear. Still another option is for the United States to sue a state on the tribe’s behalf and follow the IGRA process. The Eleventh Amendment does not protect a state from lawsuits filed against it by the federal government.50 The federal government, however, has expressed no interest in filing such lawsuits. A final option is for the tribe to engage in Class III gaming without a license issued by the Secretary. A few tribes have done so,51 but this option is risky because it violates IGRA and could result in fines and closure of the gaming facility by the NIGC.52 In the years since Seminole Tribe, fortunately, most states and tribes have reached agreements on gaming compacts. Some compacts probably provide the state with a greater share of revenue than if the tribe had the option of suing the state for refusing to negotiate in good faith.

Indian Gaming  417

What types of compacts have tribes and states created?

IGRA permits a gaming compact to include provisions on numerous subjects,53 and compacts vary. The compact between the Seneca Nation of Indians and the state of New York, for instance, authorizes the tribe to establish three casinos, one in the city of Niagara Falls, one in the city of Buffalo, and one on the Seneca Reservation, and gives the tribe the exclusive right to operate gaming devices within the region.54 In exchange, the Seneca agreed to pay the state approximately 25 percent of the revenue from its slot machines, which amounted to over $250 million for the two-​year period of 2018–​19.55 The Mashantucket Pequot Tribe agreed in its compact with the state of Connecticut to pay the state 25 percent of its slot revenue and to allow the tribe to be sued for any injuries caused “by the negligent acts or omissions of the Gaming Enterprise” in tribal court.56 The compact also subjects casino employees to state licensing procedures and gives state gaming officials some day-​to-​day supervision over the operation of the casino.57 California has signed nearly identical compacts with more than seventy tribes.58 These compacts allow each tribe to operate a certain minimum number of slot machines and to purchase a license to operate more. Tribes that operate more than the minimum number must contribute a certain percentage of their proceeds to the state. The state then grants some of that money each year to tribes that have fewer than the minimum number of slot machines, including tribes that have no gaming operations.59 Recently, when some gaming compacts came up for renewal, California refused to renew the compacts unless the tribes agreed to pay a higher percentage of their profits to the state. Several tribes filed suit against the state rather than submit to what seemed like blackmail. (As noted earlier, California has authorized lawsuits to be filed against the state under IGRA.) The court agreed with the tribes that California’s position was unreasonable and ordered the state to negotiate in good faith.60

May Indian tribes be sued in connection with their gaming activities?

Controversies can arise from constructing and operating a tribal casino. For instance, a contractor may claim that the tribe breached the construction contract, or a patron may want to sue the tribe for damages after

418  The Rights of Indians and Tribes falling on ice in the casino’s parking lot. But Indian tribes, like the federal and state governments, enjoy sovereign immunity from suit.61 As a result, an Indian tribe may not be sued unless either the tribe has consented to be sued or Congress has passed a law waiving the tribe’s immunity from suit. In Michigan v. Bay Mills Indian Community (2014),62 the Supreme Court held that Indian tribes enjoy sovereign immunity even when a state seeks to sue a tribe concerning its operation of an off-​reservation gaming facility. A provision in IGRA authorizes each state that has a gaming compact with a tribe to sue the tribe in federal court to enforce that compact.63 This constitutes a waiver of tribal sovereign immunity only in that precise circumstance.64 Thus, a state is not authorized by IGRA to sue a tribe regarding disputes, even gaming disputes, outside the parameters of its compact with the tribe.65 Individuals, moreover, may not sue the tribe regarding issues covered by the compact, as IGRA’s waiver of immunity applies only to suits by the state.66 Tribal businesses typically enjoy the tribe’s immunity from suit.67 Therefore, suits against a tribe’s casino seeking damages for personal injuries (“tort” actions)68 or to enforce a contract69 are barred by the tribe’s sovereign immunity. A tribe may choose to waive all or part of its immunity, as some have, to obtain a state compact. For instance, the Mashantucket Pequot Tribe, as mentioned earlier, agreed to allow suits to be filed against the casino based on employee negligence, but only in tribal court. Other tribes have also agreed to waive immunity from certain lawsuits arising from their gaming activities.70 The National Labor Relations Act (NLRA)71 regulates the relationship between employees and employers, and provides employees with certain rights, including the right to unionize—​although nothing in the NLRA expressly makes the Act applicable to tribal gaming casinos. Some courts have ruled that the NLRA does apply to employees of tribal casinos and gives them, for instance, the right to unionize,72 whereas other courts have held that it does not.73

Has Congress prohibited any tribes from taking full advantage of IGRA?

Yes. Congress has prohibited a few tribes from taking full advantage of IGRA. The Passamaquoddy and Penobscot tribes in Maine, for example, are only allowed to engage in Class I and II gaming.74 When Congress passed a law in 2018 granting federal recognition to six tribes in Virginia, Congress placed

Indian Gaming  419 into the law a prohibition against gaming on their reservations.75 Courts should presume, however, that all federally recognized tribes have the authority to conduct gaming in compliance with IGRA unless Congress has expressly limited or removed that authority.76 In 2022, in Ysleta Del Sur Pueblo v. Texas,77 the Supreme Court reviewed a federal statute that prohibited a tribe in Texas from engaging in “all gaming activities which are prohibited by the laws of the State of Texas.” Texas laws—​ like the California laws reviewed in Cabazon Band—​did not prohibit bingo but only regulated the types of bingo that persons could offer. Citing Cabazon Band, the Court in Ysleta Pueblo held that the tribe could engage in bingo because bingo was not prohibited by Texas law.

May the Secretary of the Interior allow gaming to occur on newly acquired tribal lands?

IGRA permits a federally recognized Indian tribe to operate a gaming facility on “Indian lands.” IGRA defines Indian lands as all land within an Indian reservation (including fee land) and all land held in trust by the federal government for the tribe on or off the reservation.78 A tribe cannot simply purchase land, say, in New York City or Los Angeles, and build a casino on it. That land would first need to be converted by the Secretary of the Interior into trust status. Although the Secretary has the authority to convert non-​trust (“fee”) land into trust status,79 IGRA allows the Secretary to convert off-​reservation fee land into trust status only in certain situations if the land will be used for gaming. Land acquired after the date IGRA became effective (October 17, 1988), can be converted into trust status for the use of gaming in only three situations.80 First, the Secretary may allow the conversion if the land is “located within or contiguous to” the tribe’s existing reservation.81 This is called the “reservation exception.” Second, if the tribe did not have a reservation on October 17, 1988—​for instance, if the tribe is a newly recognized tribe—​the Secretary may take land into trust status for that tribe for gaming if the land is part of the tribe’s “last recognized reservation.”82 This is called the “equal footing exception.” Lastly, the Secretary may allow gaming to occur on land acquired after 1988 if (1) the land was acquired in settlement of an Indian land claim,83 (2) the land is part of the initial reservation of a newly recognized tribe,84 (3) the tribe had previously been terminated, was newly restored to federal status, and the tribe has a historical connection to the restored lands (the “restored lands” exception),85 or (4) the Secretary, after consulting with state and local

420  The Rights of Indians and Tribes officials and with officials of nearby Indian tribes, finds that a gaming facility would be in the tribe’s best interests, the proposed facility would not be “detrimental to the surrounding community,” and the Governor of the state gives express consent.86 The ability of the Secretary to set aside new lands for Indian gaming has become a flashpoint of controversy. The “restored lands” exception is an example. Relying on this exception, the Secretary has permitted several tribes to open casinos on lands located many miles from their reservations over strong opposition of the local community.87 A decision by the Secretary to approve land in Buffalo, New York, as “settlement land” for the Seneca Nation on which to construct a gaming casino was vehemently opposed by some residents, resulting in a lawsuit that the Nation won.88 Different administrations have taken different approaches on whether to allow tribes to open off-​reservation casinos by granting (or denying) a tribe’s request to convert fee land into trust status. George W. Bush’s administration opposed granting them; Barack Obama’s administration granted a number of them; the Trump administration denied them; and the Biden administration has returned to granting them. In 2012, the Supreme Court held that persons who allege they will be harmed or disadvantaged by the opening of a tribal casino have standing to challenge the Secretary’s decision to take land into trust for a tribe that plans to build a casino on the property.89 Courts, however, have generally upheld the Secretary’s land-​into-​trust decisions.90 (Of course, a tribe that wishes to conduct Class III gaming at these new locations would still need to obtain a state compact.) Often, among the challengers to a land-​into-​trust application is another tribe whose existing casino could be harmed by the competition created by a new casino.91 The Secretary, however, has a trust responsibility to all tribes. Therefore, the presence of another casino in the vicinity is not necessarily a valid ground to deny a tribe’s land-​into-​trust request.92 The Secretary’s ability to convert fee land into trust status was narrowed by the Supreme Court’s decision in Carcieri v. Salazar (2009).93 The statute that authorizes the Secretary to make these conversions, 25 U.S.C. Section 5108, was passed as part of the Indian Reorganization Act of 1934 (IRA). Another provision in the IRA, Section 5129, allows the Secretary to take land into trust status under Section 5108 only on behalf of those tribes “now under federal jurisdiction.” The Court held in Carcieri that the word now means that tribes qualify for a conversion only if they were under federal jurisdiction in 1934 when the IRA was passed. Indian tribes are currently lobbying Congress to

Indian Gaming  421 amend Section 5108 so that it applies to tribes that received formal recognition from the DOI after 1934 and are now federally recognized. (The process of obtaining federal recognition is discussed in Chapter XIV, Section E.) In the meantime, the Secretary has determined that an Indian tribe need not have received formal recognition by 1934 in order to have been “under federal jurisdiction” in 1934 for purposes of Section 5108. In recent years, for instance, the Secretary has approved a Section 5108 conversion for the Ione Band of Miwok Indians in California, the Cowlitz Tribe in Washington, and the Mashpee Wampanoag Tribe in Massachusetts, finding that although those tribes did not receive formal recognition from the department until 1994, 2000, and 2007 respectively, each tribe was under federal jurisdiction in 1934.94 This issue, however, is not free of doubt95 and it would be best if Congress amends the law to make it clear that all federally recognized tribes qualify for a Section 5108 conversion.

What has been the impact of gaming on Indian tribes?

Gaming has catapulted some tribes from rags to riches, eliminating tribal unemployment, providing income security, and improving the health and well-​ being of tribal members. Prior to opening its casino in 1993, the Saginaw Chippewa Indian Tribe of Michigan was largely dependent on federal funds. By 2016, its casino was generating nearly $250 million a year in revenue, allowing the tribe to operate 159 programs for its members, including a community college, a medical clinic, a senior center, child-​care services, and a fitness center.96 The Navajo Nation resisted gaming until 2006, when it changed course and now operates four profitable casinos. By 2018, its gaming operations had generated over $18 million in distributions to tribal members, permitted improvements in tribal infrastructure, and contributed $60.2 million in revenue-​sharing payments to Arizona and New Mexico. The overall economic output totaled $1.3 billion.97 (Most Navajo members remain impoverished, but these casino profits are a help.) The Ponca Tribe in Nebraska used gaming proceeds to open a 60,000-​square-​foot medical clinic for tribal members, develop programs for elder-​care and youth-​care, construct new tribal buildings, and develop a program to preserve the tribe’s language.98 IGRA was passed by Congress to promote tribal economic development and self-​sufficiency.99 It has succeeded beyond anyone’s wildest dreams. Some gaming tribes also operate hotels, spas, golf courses, and a variety of

422  The Rights of Indians and Tribes retail establishments that produce additional income. But the benefits of tribal gaming are not evenly distributed. Many reservations are located far from urban centers and, if the tribe has a casino, it is often small and not very profitable. Some casinos were so unprofitable, they closed. On some reservations, the casino is considered a success if it simply provides employment for tribal members and breaks even. IGRA requires that the profits from tribal gaming be used to fund tribal government operations and programs, provide for the general welfare of tribal members, promote tribal economic development, or be donated to charities.100 Tribes have used gaming profits for such things as providing health care and affordable housing for tribal members, police and fire protection, day care centers, schools, educational scholarships, senior centers, utilities, court systems, and roads. Tribes often use gaming revenue to buy land, especially land within the reservation that had been taken decades earlier under federal allotment policies. The Oneida Tribe of Wisconsin is using millions of dollars of gaming revenue to purchase land both within and close to its reservation to construct housing for tribal members, many of whom recently returned to the reservation.101 The Shakopee Mdewakanton Sioux Tribe of Minnesota, whose Mystic Lake Casino is located thirty miles from downtown Minneapolis and is hugely successful, has purchased hundreds of acres of valuable wetlands and farmland in order to protect the environment and prevent development on the land.102 IGRA allows tribes to distribute a portion of gaming profits to tribal members on a per capita basis (“per caps”) if approved by the Secretary of the Interior.103 Some per caps amount to hundreds of thousands of dollars. Members of the Pechanga Band of Luiseño Mission Indians of California reportedly receive a per cap payment of over $300,000 a year.104 The Shakopee Mdewakanton Sioux reportedly pays its members over $1 million a year.105 The Miccosukee Tribe in Florida issued its first per caps in 1984 of less than $500 a year. As a result of the rapid success of its casino, that amount soared (prior to the COVID-​19 pandemic) to $160,000.106 Gaming has done wonders for many tribes. It has also produced its own set of problems. Gambling can become an addition. In addition, crime rates often increase in the area, as do automobile accidents. Some Indian reservations struggle with alcoholism and substance abuse, and those problems can be exacerbated when families have extra money to spend. And gaming has created tensions between tribes and their non-​Indian neighbors, some of whom are jealous of the newfound wealth that tribes are enjoying,

Indian Gaming  423 and some of whom resent the changes that have occurred to their once-​quiet communities. Gaming has also created tensions among tribes, splitting them between “haves” and “have-​nots,” and pitting gaming tribes against each other as they compete for customers. Some gaming tribes have opposed applications filed by other tribes to open a casino in their vicinity.107 The member of one tribe whose application was being opposed by another tribe told a reporter: “They don’t want to see other Indians prosper, I guess.”108 In addition, many people believe that all tribes and their members are now rich and no longer need government assistance. This is a dangerous myth. For one thing, prosperity has not trickled down to most Native Americans; the vast majority of tribes still need substantial government assistance. Furthermore, the myth that all Indians are now wealthy because of casino money is a toxic negative stereotype that creates a division between tribes and other groups in our society, including other communities of color.109 Internal conflicts generated by gaming have become nasty and divisive. Some tribes have expelled (“disenrolled”) scores of people from the tribal rolls, an action that increases the size of per caps to the remaining members.110 Thousands of Indians have been disenrolled nationally.111 One tribal leader has lamented: “We’re used to whites being against us. Now, it’s us against us. . . . It boils down to the money.”112 The Pala Band of Mission Indians, which distributed $150,000 to each tribal member in 2012 from gaming proceeds, later expelled 15 percent of its membership (154 members).113 The Bureau of Indian Affairs has taken a hands-​off policy regarding these disenrollments, believing them to be an issue best left to the tribes themselves to resolve. An Indian attorney, Gabriel Galanda, calls the federal government’s lack of action in the face of massive disenrollments “disastrous,” and he urges tribes to stop disenrolling members.114

What has been the impact of Indian gaming on the states and on neighboring communities?

The presence of a tribal casino almost always benefits neighboring economies and the state. A 2016 study found that Minnesota’s tribal casinos add an estimated $1.8 billion to state revenues annually, employ over thirteen thousand people, attract twenty-​three million visitors, and channel $482 million to Minnesota businesses.115 One Minnesota tribe, the Shakopee Mdewakanton Sioux Community, donated millions of dollars to a nearby town to defray the cost of law enforcement and road repair, prompting the city manager to tell a reporter: “They are a very giving people.”116 The Shakopee have also donated

424  The Rights of Indians and Tribes more than $270 million since 1992 to less fortunate tribes around the nation to fund the construction of public works, such as schools, fire departments, health centers, and employment training centers.117 The Pokagon Band of Potawatomi Indians of Michigan and Indiana was approved to open a casino near South Bend, Indiana, in 2016. In January 2023, the tribe gave the city of South Bend $860,000 as part of its agreement with the city, providing much needed financial support.118 The Tulalip Tribe, north of Seattle, built a modest casino in 1992, followed by a 225,000-​square-​ foot casino in 2003. In 2008, the tribe opened a $130 million hotel. Some twenty thousand people visit the area daily. An off-​reservation town located nearby added more than eight million square feet of retail shops to accommodate the surge in business. Unemployment in the area dropped considerably, and sales taxes add nearly $30 million a year to the state treasury.119 The Pechanga Band of Luiseño Indians, located sixty miles north of San Diego, has one of the largest casinos in the country, employs more than four thousand workers, and pumps hundreds of millions of dollars into the local economy.120 Connecticut is the home of two federally recognized tribes, the Mohegan Nation of Connecticut and the Mashantucket Pequot Tribe, both operating successful casinos. Under their gaming compacts, the tribes share with the state 25 percent of proceeds from slot machines, resulting in payments during the past twenty-​five years of nearly $8 billion. Prior to the pandemic, nearly thirty-​five thousand people a day visited the Pequot’s casino and retail stores.121 Many states and cities actively solicit nearby tribes to open a casino, due to the benefits these casinos bring to the local community and to the state. Most jobs created by Indian gaming are filled by non-​Indians.122 Voters in California amended the state’s constitution in 1998 to authorize Indian tribes to conduct casino-​style gaming, previously banned under state law.123 The move paid off handsomely. In 2023, tribal gaming generated nearly $20 billion in economic value to the state’s economy and supported 124,000 jobs.124 New York helped the Seneca Nation open a casino in Niagara Falls in order to improve the local economy; Oklahoma and Missouri helped the Quapaw Tribe gain approval from the Secretary of the Interior in 2008 for land on which to open a 70,000-​square-​foot gaming casino, thirteen-​ floor luxury hotel, and an outdoor concert arena. Wisconsin assisted the Potawatomi Tribe in opening a $125 million casino in Milwaukee. Voters in Idaho passed a law in 2002 that allows Indian tribes in that state to offer video poker games if they agree to contribute 5 percent of the resulting

Indian Gaming  425 revenue to local education programs.125 In 2007, voters in the rural town of Middleborough, Massachusetts, overwhelmingly approved a plan by the Mashpee Wampanoags, which had gained federal recognition two months earlier, to build its casino in their town.126 Indian gaming is not a panacea. Indeed, one thing that COVID taught Indian tribes is that relying on gaming as the main source of income is risky, and some tribes have begun investing in other businesses, such as construction, housing, and retail space. But for many Indian tribes and their members, especially now that COVID has receded and most casinos are again profitable, gaming has singlehandedly ended generations of subsistence living and replaced despair with hope.

Notes 1. See National Indian Gaming Ass’n Report, GGR Trending, available at https://​ www.nigc.gov/​ima​ges/​uplo​ads/​Pages_​from_​GGRFY​22_​0​7192​3_​GG​RTre​ndin​g_​Fi​ nal.pdf. 2. See 500 Nations, Indian Casinos, available at https://​www.500​nati​ons.com/​Ind​ ian_​Casi​nos.asp. See also the yearly reports issued by the National Indian Gaming Commission, https://​www.nigc.gov/​. 3. See Kevin K. Washburn, Agency Pragmatism in Addressing Law’s Failure: The Curious Case of Federal “Deemed Approvals” of Tribal-​State Gaming Compacts, 52 U. Mich. J.L. Reform 49, 51 (2019). 4. See Casino City’s, Indian Gaming Industry Report (2020), excerpt available at https://​www.casi​noci​typr​ess.com/​gaming​alma​nac/​ind​iang​amin​grep​ort/​. 5. 480 U.S. 202 (1987). See also Ysleta Del Sur Pueblo v. Texas, 142 U.S. 1929, 1935 (2022) (discussing Cabazon). 6. 25 U.S.C. §§ 2701–​21; 18 U.S.C. § 1166. See Michigan v. Bay Mills Indian Community, 572 U.S. 782, 794 (2014). For a discussion of the background of IGRA, see In re Indian Gaming Related Cases, 331 F.3d 1094, 1095–​98 (9th Cir. 2003). 7. See Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation v. California, 813 F.3d 1155, 1160 (9th Cir. 2015), cert. denied, 136 S. Ct. 2512 (2016); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1548 (10th Cir. 1997). 8. 25 U.S.C. § 2702(1). 9. Id. §§ 2702(2)(1)–​(2). See Wisconsin v. Ho-​Chunk Nation, 784 F.3d 1076, 1079 (7th Cir.), cert. denied, 577 U.S. 874 (2015). 10. See Chickasaw Nation v. United States, 534 U.S. 84 (2001) (upholding the validity of those taxes). 11. 25 U.S.C. § 2710(b)(3)(D); 26 U.S.C. §§ 3402(r)(1), 6041(a). See United States v. Jim, 891 F.3d 1242 (11th Cir. 2018), cert. denied, 139 S. Ct. 2637 (2019) (enforcing these provisions); Clay v. Comm’r of IRS, 152 T.C. 223 (2019) (same).

426  The Rights of Indians and Tribes 12. See Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d 712, 737–​41 (9th Cir. 2003), cert. denied, 543 U.S. 815 (2004). 13. 25 U.S.C. § 2703(5)(A). See Frank’s Landing Indian Community v. NIGC, 918 F.3d 610, 617–​18 (9th Cir. 2019). (Federal recognition is discussed in Chapter XIV, Section E.). 14. Id. § 2703(4). See 25 C.F.R. § 502.12; Club One Casino Inc., v. Bernhardt, 959 F.3d 1142, 1147 (9th Cir. 2020), cert. denied, 141 S. Ct. 2792 (2021); Citizens Against Casino Gambling in Erie County v. Chaudhuri, 802 F.3d 267, 270 (2d Cir. 2015), cert. denied, 136 S. Ct. 2387 (2016). 15. Id. §§ 2703(6), 2710(a)(1). 16. Id. § 2710(a)(1). 17. Id. § 2703(7). For purposes of IGRA, “lotto” means a board game similar to bingo and not a lottery. See Oneida Tribe of Indians v. Wisconsin, 951 F.2d 757 (7th Cir. 1991). 18. 25 U.S.C. §§ 2703(7)(A), 2701(a)(2), (b)(1)(A) and (B). 19. Id. § 2703(8). 20. Determining whether an activity, such as Keno, is a Class II or Class III game can sometimes be difficult. See United States v. 103 Electronic Gambling Devices, 223 F.3d 1091 (9th Cir. 2000); United States v. 162 MegaMania Gambling Devices, 231 F.3d 365 (10th Cir. 2000) (discussing pull-​tab games). 21. See Michigan v. Bay Mills Indian Community, 572 U.S. 782, 785 (2014); Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d 712, 715 (9th Cir. 2003), cert. denied, 543 U.S. 815 (2004). 22. 25 U.S.C. § 2710(d)(1)(B). See Wisconsin v. Ho-​Chunk Nation, 784 F.3d 1076, 1079 (7th Cir.), cert. denied, 577 U.S. 874 (2015). 23. Id. § 2710(d)(1)(C). See Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation v. California, 973 F.3d 953, 957 (9th Cir. 2020); Pueblo of Pojoaque v. State of New Mexico, 863 F.3d 1226, 1232 (10th Cir. 2017). 24. See Chemehuevi Indian Tribe v. Newsom, 919 F.3d 1148 (9th Cir. 2019). See also Michigan v. Bay Mills Indian Community, 572 U.S. 782, 796–​97 (2014) (recognizing that a state can “bargain” for authority over Indian gaming that IGRA does not confer). See also cases cited in note 41 infra and accompanying text. 25. Id. § 2710(d)(8)(C). If the Secretary fails to decide within forty-​five days, the compact is deemed approved, except to the extent it is inconsistent with IGRA. 26. Id. § 2710(d)(3)(B). 27. 25 U.S.C. §§ 2704–​08. 28. Id. § 2704(b). 29. Id. § 2711. See United States ex rel. Saint Regis Mohawk Tribe v. St. Regis Mgt. Co., 451 F.3d 44 (2d Cir. 2006) (holding that any Indian gaming management contract not approved by the NIGC is invalid); First American Kickapoo Operations v. Multimedia Games, Inc., 412 F.3d 1166, 1171–​74 (10th Cir. 2005). 30. 25 U.S.C. § 2710(b)(2) and (d). 31. Id. §§ 2705–​06, 2711(a)(3), 2713. See In re Sac & Fox Tribe of the Mississippi in Iowa/​ Moskwaki Casino Litigation, 340 F.3d 749, 754–​55 (8th Cir. 2003); Citizens Against Casino Gambling in Erie County v. Hogan, 2008 WL 4067101, at *3 (W.D.N.Y. 2008). 32. See In re Sac & Fox, 340 F.3d at 754–​55; United States v. Santee Sioux Tribe of Nebraska, 324 F.3d 607, 609–​10 (8th Cir. 2003), cert. denied, 540 U.S. 1229 (2004).

Indian Gaming  427 33. See Colorado River Indian Tribes v. NIGC, 466 F.3d 134 (9th Cir. 2006). 34. 25 U.S.C. § 2717. 35. See 25 U.S.C. §§ 2703(7)(ii) (Class II games) and 2710(d)(1)(B) (Class III games). 36. See Wisconsin v. Ho-​Chunk Nation, 784 F.3d 1076, 1082–​86 (7th Cir.), cert. denied, 136 S. Ct. 231 (2015); Northern Arapaho Tribe v. Wyoming, 389 F.3d 1308 (10th Cir. 2004). But see In re Indian Gaming Related Cases, 331 F.3d 1094, 1099 (9th Cir. 2003) (holding that a state need not permit a tribe to engage in a Class III activity that the state does not already allow elsewhere in the state). 37. Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1994), amended, 99 F.3d 321 (1996), cert. denied, 521 U.S. 1118 (1997). 38. 25 U.S.C. § 2710(d)(4). 39. See Idaho v. Shoshone-​Bannock Tribes, 465 F.3d 1095, 1101–​02 (9th Cir. 2006); Wisconsin v. Ho-​Chunk Nation, 564 F. Supp. 2d 856, 858 (W.D. Wis. 2008). However, the legality of these revenue-​sharing arrangements is questionable. See Wisconsin v. Ho-​Chunk Nation, 512 F.3d 921, 932 (7th Cir.), cert denied, 554 U.S. 944 (2008). There is a limit to what the state can demand. See Rincon Band of Luiseño Mission Indians v. Schwarzenegger, 602 F.3d 1019, 1038 n.18 (9th Cir. 2010), cert denied, 564 U.S. 1037 (2011). 40. See Ezekiel J.N. Fletcher, Negotiating Meaningful Concessions from States in Gaming Compacts to Further Tribal Economic Development: Satisfying the “Economic Benefits” Test, 54 S.D. L. Rev. 419, 423–​24 (2009). 41. 25 U.S.C. § 2710(d)(3)(A). See Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation v. California, 973 F.3d 953, 958 (9th Cir. 2020) (finding that state negotiated in good faith even though state took a hard line in negotiations). A state, however, must provide “meaningful concessions” in exchange for any request it makes of the tribe not related directly to the gaming operation. In re Indian Gaming Related Cases, 331 F.3d 1094, 1111 (9th Cir. 2003). The state cannot insist that a tribe agree to a condition not encompassed within IGRA. Chicken Ranch Rancheria of Me-​ Wuk Indians v. California, 42 F.4th 1024 (9th Cir. 2022). 42. 25 U.S.C. § 2710(d)(6)(B)(iii). 43. Id. § 2710(d)(7)(B)(iv)–​(vi). 44. Id. § 2710(d)(7)(B)(vii). See Club One Casino Inc., v. Bernhardt, 959 F.3d 1142, 1145–​ 46 (9th Cir. 2020), cert. denied, 141 S. Ct. 2792 (2021). 45. 517 U.S. 44 (1996). 46. See Cal. Gov’t Code § 98005; Rincon Band of Luiseño Mission Indians v. Schwarzenegger, 602 F.3d 1019, 1038 n.18 (9th Cir. 2010), cert denied, 131 S. Ct. 3055 (2011); Wash. Sen. Bill 5905, Ch. 236, Laws of 2001. See also Northern Arapaho Tribe v. Wyoming, 389 F.3d 1308 (10th Cir. 2004) (noting that Wyoming, when sued by a tribe claiming bad faith negotiations, agreed to waive its immunity, and the court then found that the state had negotiated in bad faith). 47. Fort Independence Indian Community v. California, 679 F. Supp. 2d 1159, 1163 n.2 (E.D. Cal. 2009); Rincon Band, 602 F.3d at 1038 n.18. See also Fletcher, supra note 40, at 432. 48. See 64 Fed. Reg. 17,535 et seq., codified at 25 C.F.R. pt. 291; see 25 C.F.R. § 291.3.

428  The Rights of Indians and Tribes 49. See State of New Mexico v. Dept. of Interior, 854 F.3d 1207 (10th Cir. 2017); Texas v. United States, 497 F.3d 491, 493 (5th Cir. 2007), cert. denied, 555 U.S. 811 (2008). 50. See Arizona v. California, 460 U.S. 605, 614 (1983). 51. See Florida v. Seminole Tribe of Florida, 181 F.3d 1237, 1239 (11th Cir. 1999). 52. 25 U.S.C. § 2710(d)(1)(C). See Florida v. Seminole Tribe, 181 F.3d at 1244, 1248. 53. IGRA contains a list of subjects that can be included in the compact. 25 U.S.C. § 2710(d)(3)(C). See Chicken Ranch Rancheria of Me-​Wuk Indians v. California, 42 F.4th 1024, 1034 (9th Cir. 2022) (holding that this list is exhaustive and cannot be exceeded by the state). 54. See Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d 295, 307 (W.D.N.Y. 2007), amended, 2007 WL 1200773 (W.D.N.Y. 2007). 55. Seneca Nation of Indians v. State of New York, 988 F.3d 618, 624 (2d Cir. 2021). 56. IV M.P.T.L. ch. 1, § 4(c). See Kizis v. Morse Diesel International, Inc., 794 A.2d 498 (Conn. 2002) (holding that state courts lack jurisdiction over civil disputes arising out of tribal gaming operations); Schock v. Mashantucket Pequot Gaming Enterprise, 27 Indian L. Rptr. 6225, 6228 (Mash. Peq. Tr. Ct. 2000). 57. See Notice of Final Mashantucket Pequot Gaming Procedures, 56 Fed. Reg. 24,996–​99 (1991). 58. See http://​www.cgcc.ca.gov/​?pag​eID=​compa​cts. 59. See Cachil Dehe Band of Wintun Indians v. California, 547 F.3d 962, 966–​68 (9th Cir. 2008); Rincon Band of Luiseño Mission Indians v. Schwarzenegger, 602 F.3d 1019, 1038 n.18 (9th Cir. 2010), cert denied, 564 U.S. 1037 (2011). 60. Rincon Band, 602 F.3d 1019. See also Chicken Ranch Rancheria of Me-​Wuk Indians v. California, 42 F.4th 1024 (9th Cir. 2022). 61. This subject is discussed in Chapter XVII, Section A. 62. 572 U.S. 782 (2014). 63. 25 U.S.C. § 2710(d)(7)(A)(ii). 64. Suits authorized by IGRA may only be filed in a federal court unless the tribe has consented to a different venue. See Tamiami Partners v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1033 (11th Cir. 1995); Cabazon Band of Mission Indians v. Wilson, 37 F.3d 430, 433–​35 (9th Cir. 1994). 65. See Wisconsin v. Ho-​Chunk Nation, 512 F.3d 921, 934 (7th Cir.), cert denied, 554 U.S. 944 (2008); Wyandotte Nation v. Sebelius, 443 F.3d 1247 (10th Cir. 2006); Florida v. Seminole Tribe, 181 F.3d 1237, 1242 (11th Cir. 1999). 66. Hartman v. Kickapoo Tribe Gaming Commission, 319 F.3d 1230, 1232–​33 (10th Cir. 2003); Seminole Tribe, 181 F.3d 1237; Upstate Citizens for Equality, Inc. v. Salazar, 2010 WL 827090, at *4 (N.D.N.Y. 2010); Muhammad v. Comanche Nation Casino, 2010 WL 4365568 (W.D. Okla. 2010). 67. This subject is discussed in Chapter XVII, Section A. 68. See Gross v. Omaha Tribe of Nebraska, 601 N.W.2d 82 (Iowa 1999); Cohen v. Little Six, Inc., 543 N.W.2d 376, 380 (Minn. 1996); Ross v. Flandreau Santee Sioux Tribe, 809 F. Supp. 738, 745 (D.S.D. 1992); Filer v. Tohono O’odham Nation Gaming Enterprise, 129 P.3d 78 (Ariz. Ct. App. 2006). See also Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005) (holding that IGRA does not authorize suits against the tribe challenging membership determinations and distributions of gaming proceeds).

Indian Gaming  429 69. See Tamiami Partners v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1049 (11th Cir. 1995). 70. See Doe v. Santa Clara Pueblo, 154 P.3d 644 (N.M. 2007). 71. 29 U.S.C. §§ 151–​69. 72. See Pauma v. NLRB, 888 F.3d 1066, 1075 (9th Cir. 2018), cert. denied, 139 S. Ct. 2614 (2019); NLRB v. Little River Band of Ottawa Indians Tribe Government, 788 F.3d 537, 555–​56 (6th Cir. 2015). 73. See NLRB v. Pueblo of San Juan, 276 F.3d 1168 (10th Cir. 2002) (en banc). 74. See Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st Cir. 1996). The Maine tribes are currently asking Congress to overturn this ban. 75. See Pub. L. No. 115-​121, 132 Stat. 40. See Ysleta Del Sur Pueblo v. Texas, 142 U.S. 1929, 1941 (2022) (discussing statutes prohibiting tribal gaming). 76. See Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah), 853 F.3d 618 (2d Cir. 2017), cert. denied, 138 S. Ct. 639 (2018); see also Rhode Island v. Narragansett Tribe, 19 F.3d 865 (1st Cir. 1994) (interpreting a federal law applicable to the Narragansett Tribe as allowing the tribe to engage in Class I and II gaming but not Class III). 77. 142 U.S. 1929 (2022). 78. See supra note 14 and accompanying text. 79. See 25 U.S.C. § 5108 (formerly § 465). 80. 25 U.S.C. § 2719. 81. Id. § 2719(a)(1). See Upstate Citizens for Equality, Inc. v. Salazar, 2010 WL 827090, at *7 (N.D.N.Y. 2010). 82. 25 U.S.C. § 2719(a)(2)(B). A similar exception exists for tribes in Oklahoma. See id. § 2719(a)(2)(A). 83. Id. § 2719(b)(1)(B)(i). See State of Kansas ex rel. Kobach v. U.S. Dept. of Interior, 72 F.4th 1107 (10th Cir. 2023) (approving gaming for the Wyandotte Nation on settlement lands); Citizens Against Casino Gambling in Erie County v. Chaudhuri, 802 F.3d 267 (2d Cir. 2015), cert. denied, 136 S. Ct. 2387 (2016) (same for the Seneca Nation). 84. Id. § 2719(b)(1)(B)(ii). See Confederated Tribes of the Grande Ronde Community of Oregon v. Jewell, 830 F.3d 552 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 1433 (2017). 85. Id. § 2719(b)(1)(B)(iii). See Scotts Valley Band of Pomo Indians v. U.S. Dep’t of Interior, 633 F. Supp. 3d 132 (D.D.C. 2022), appeal pending. 86. Id. § 2719(b)(1)(A). See Kalispel Tribe of Indians v. United States Dept. of the Interior, 999 F.3d 683 (9th Cir. 2021); Stand Up for California! v. U.S. Dep’t of Interior, 879 F.3d 1177 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 786 (2019). The provision giving the Governor a power to veto the tribe’s request has withstood a constitutional challenge. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. United States, 367 F.3d 650 (7th Cir. 2004). If the Governor’s refusal to consent is made in bad faith, the Secretary can approve the tribe’s request. Club One Casino Inc., v. Bernhardt, 959 F.3d 1142, 1146 (9th Cir. 2020), cert. denied, 141 S. Ct. 2792 (2021). 87. See Butte County, CA v. Chaudhuri, 887 F.3d 501 (9th Cir. 2018); City of Roseville v. Norton, 348 F.3d 1020, 1030 (D.C. Cir. 2003), cert. denied, 541 U.S. 974 (2004); Grand Traverse Band of Ottawa & Chippewa Indians v. U.S. Attorney for Western District of Michigan, 369 F.3d 960 (6th Cir. 2004). The Secretary must articulate a factual basis for any approval of a casino. See Butte County, California v. Hogen, 613 F.3d 190 (D.C. Cir. 2010).

430  The Rights of Indians and Tribes 88. See Citizens Against Casino Gambling in Erie County v. Chaudhuri, 802 F.3d 267 (2d Cir. 2015), cert. denied, 136 S. Ct. 2387 (2016). 89. Match-​E-​Be-​Nash-​She-​Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012). 90. See, e.g., cases cited supra notes 83–​88. 91. See Kalispel Tribe of Indians v. United States Dept. of the Interior, 999 F.3d 683 (9th Cir. 2021); Stand Up for California! v. U.S. Dep’t of Interior, 879 F.3d 1177 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 786 (2019); United Auburn Indian Community of the Auburn Rancheria v. Newsom, 472 P.3d 1064 (Cal. 2020). 92. See Kalispel Tribe, 999 F.3d at 694–​95 (approving the Secretary’s decision to take land into trust for a tribe to open a casino just two miles from an existing tribal casino). 93. 555 U.S. 379 (2009). 94. See respectively County of Amador, CA. v. U.S. Dept. of the Interior, 872 F.3d 1012, 1020–​22 (9th Cir. 2017), cert. denied, 139 S. Ct. 64 (2018); Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell, 830 F.3d 552, 556–​65 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 1433 (2017); and Littlefield v. U.S. Dept. of Interior, 85 F.4th 635 (1st Cir. 2023). 95. See Littlefield v. U.S. Dept. of Interior, 85 F.4th 635 (1st Cir. 2023). 96. See Soaring Eagle Casino and Resort v. NLRB, 791 F.3d 648, 652 (6th Cir. 2015), cert. denied, 136 S. Ct. 2509 (2016). 97. See  https://​www.daily-​times.com/​story/​opin​ion/​col​umni​sts/​2018/​10/​03/​nav​ajo-​ gam​ing-​fulfi​lls-​vis​ion-​nav​ajo-​peo​ple-​lead​ers-​past-​pres​ent/​150​2968​002/​. 98. See https://​www.omaha.com/​news/​sta​te_​a​nd_​r​egio​nal/​ponca-​tribe-​opens-​cas​ino-​ in-​car​ter-​lake-​giv​ing-​memb​ers-​self/​artic​le_​3​6a42​7fe-​044b-​5872-​82a6-​2593c​20f4​ a0b.html. 99. 25 U.S.C. § 2702(1). 100. 25 U.S.C. § 2710(b)(2)(B). 101. See https://​www.green​bayp​ress​gaze​tte.com/​story/​news/​local/​2015/​05/​15/​gro​wth-​ sove​reig​nty-​driv​ing-​one​ida-​tribe-​recl​aim-​rese​rvat​ion-​land/​27391​929/​. 102. See https://​www.twi​ncit​ies.com/​2008/​05/​29/​minn-​ind​ian-​tribe-​buys-​up-​land-​to-​ rest​ore-​prai​rie/​. 103. 25 U.S.C. § 2710(b)(3). 104. See Cecily Hilleary, Native American Tribal Disenrollment Reaching Epidemic Levels, VOAnews.com (Mar. 3, 2017), available at https://​www.voan​ews.com/​usa/​nat​ive-​ ameri​can-​tri​bal-​disenr​ollm​ent-​reach​ing-​epide​mic-​lev​els. 105. See Joe Rigert, Casino Wealth and Well-​Being: A Tale of Two Tribes, Star Tribune (Sept. 1, 2016), available at http://​www.star​trib​une.com/​cas​ino-​wea​lth-​and-​well-​ being-​the-​tale-​of-​two-​tri​bes/​392089​461/​. 106. See Clay v. Comm’r of Internal Rev., 990 F.3d 1296, 1298 (11th Cir. 2021). 107. See Cachil Dehe Band of Wintun Indians of Colusa Indian Community v. Zinke, 889 F.3d 584 (9th Cir. 2018) (rejecting challenge by one tribe seeking to prevent another tribe from obtaining land on which it could open a casino). 108. Statement of Alvin McDonald, quoted in Lucrative Gambling Pits Tribe Against Tribe, N.Y. Times (Aug. 4, 2012), available at https://​www.nyti​mes.com/​2012/​08/​05/​ us/​lucrat​ive-​cal​ifor​nia-​gambl​ing-​pits-​ind​ian-​tribe-​agai​nst-​tribe.html.

Indian Gaming  431 109. See Reclaiming Native Truth: A Project to Dispel America’s Myths and Misconceptions, Research Findings: Compilation of All Research (June 2018), at 9, available at https://​ rnt.first​nati​ons.org/​wp-​cont​ent/​uplo​ads/​2018/​06/​Ful​lFin​ding​sRep​ort-​scr​een.pdf. 110. See Anderson v. Las Vegas Tribe of Paiute Indians, 103 F.3d 137 (9th Cir. 1996), cert. denied, 520 U.S. 1169 (1997); Ordinance 59 Association v. U.S. Department of the Interior Secretary, 163 F.3d 1150 (10th Cir. 1998). 111. This subject is discussed in Chapter VI, Section B(2). See also Timbisha Shoshone Tribe v. Kennedy, 687 F. Supp. 2d 1171, 1175 (E.D. Cal. 2009). 112. Chief Gail Jackson, quoted in Michigan Indians Fight over Huge Casino Profit, Rocky Mountain News (Dec. 17, 1994), at 34A. 113. A suit filed by the disenrolled members against the Bureau of Indian Affairs for not preventing the disenrollment was dismissed for lack of jurisdiction. See Aguayo v. Jewell, 827 F.3d 1213, 1224 (9th Cir. 2016), cert. denied, 137 S. Ct. 832 (2017). 114. See  https://​www.voan​ews.com/​usa/​nat​ive-​ameri​can-​tri​bal-​disenr​ollm​ent-​reach​ ing-​epide​mic-​lev​els. This subject is discussed in Chapter VI, notes 102–​16 and accompanying text. 115. Jennifer Brooks, Casinos Boost Minnesota’s Entire Economy, Tribal Report Says, Star Tribune (Sept. 14, 2016), available at http://​www.star​trib​une.com/​casi​nos-​boost-​ minnes​ota-​s-​ent​ire-​econ​omy-​tri​bal-​rep​ort-​says/​393485​401/​. 116. Id. 117. See  https://​tur​tlet​alk.blog/​2013/​06/​06/​shako​pee-​mdew​akan​ton-​gives-​10-​mill​ion-​ to-​18-​tri​bes/​. 118. See  https://​valpo.life/​arti​cle/​poka​gon-​band-​and-​its-​four-​winds-​casi​nos-​con​trib​ ute-​860​000-​to-​the-​city-​of-​south-​bend-​and-​local-​non-​prof​i ts-​2/​. 119. Near Seattle, Tribal Casinos Lead to Even Bigger Bets, N.Y. Times (Nov. 14, 2007), available at http://​www.nyti​mes.com/​2007/​11/​14/​rea​lest​ate/​com​merc​ial/​14tr​ibe. html?_​r=​1&ref=​us&o. 120. See https://​www.casin​oonl​ine.tf/​how-​much-​does-​pecha​nga-​cas​ino-​make-​a-​year/​. 121. See  https://​w ww.native​busi​ness​mag.com/​rep​ort-​ancho​red-​by-​foxwo​ods-​masha​ ntuc​ket-​pequ​ots-​help-​drive-​conn​ecti​cut-​econ​omy/​. 122. See Pauma v. NLRB, 888 F.3d 1066, 1070 (9th Cir. 2018), cert. denied, 139 S. Ct. 2614 (2019) (noting that of the 462 employees at the tribe’s casino, only 5 are tribal members); Soaring Eagle Casino and Resort v. NLRB, 791 F.3d 648, 652 (6th Cir. 2015), cert. denied, 136 S. Ct. 2509 (2016) (noting that tribal casino employs 3,000 employees, only 7 percent of whom are tribal members). 123. See Artichoke Joe’s California Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003), cert. denied, 543 U.S. 815 (2004) (discussing the amendment and rejecting a constitutional challenge to it); United Auburn Indian Community of the Auburn Rancheria v. Newsom, 472 P.3d 1064, 1070–​71 (Cal. 2020). 124. See https://​www.ame​rica​ngam​ing.org/​state/​cal​ifor​nia/​. 125. See Idaho Code § 67-​429C(1)(c); Idaho v. Shoshone-​Bannock Tribes, 465 F.3d 1095, 1097 (9th Cir. 2006). 126. See https://​www.nyti​mes.com/​2007/​07/​29/​us/​29cas​ino.html.

XVI The Indian Child Welfare Act What prompted the passage of the Indian Child Welfare Act?

An investigation conducted by Congress in the mid-​1970s found that more than one-​quarter of the Indian children in the country had been removed from their homes by state welfare agencies and state courts and placed in foster or adoptive homes or residential institutions.1 These percentages were far higher than for white children. In one state, the adoption rate for Indian children was eight times that of non-​Indians; in another state, Indian children were thirteen times more likely than non-​Indians to be placed in foster care.2 Studies indicated that many state social workers and judges were prejudiced in their attitudes and often removed children from their homes primarily because the family was Indian and poor.3 In making these decisions, state officials regularly failed to recognize and respect tribal cultural and social values and used white, middle-​class standards.4 Congress also found that the vast majority of the Indian children removed from their families were placed by state judges in off-​reservation, non-​Indian homes.5 Although state officials claimed that they had no choice but to seek off-​reservation placement because few Indian homes had been certified by state officials to receive Indian children, Congress found that many states were using a discriminatory certification process that “[made] it virtually impossible for most Indian couples to qualify as foster or adoptive parents” and that state social workers were predisposed to look for off-​reservation placement.6 Children typically suffer emotional and psychological injury when they are forcibly removed from their homes, with feelings of abandonment, grief, and terror that can last a lifetime and which adversely affect their ability to form personal attachments and to trust authority.7 These removals, moreover, were not only disastrous for the children and their families but also for their tribes, which were losing touch with their future generations, and some smaller tribes faced extinction. “The wholesale separation of Indian children The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0016

434  The Rights of Indians and Tribes from their families,” Congress concluded, “is perhaps the most tragic and destructive aspect of American Indian life today,” resulting in a crisis “of massive proportions.”8 The Indian Child Welfare Act (ICWA)9 was passed by Congress in 1978 to address this disgraceful and pernicious situation. The stated purpose of ICWA is “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”10

What does ICWA require?

ICWA establishes procedures that must be followed and rights that must be afforded by state courts when determining temporary (foster care) or permanent (adoption) placement of Indian children. The following list briefly summarizes these procedures and rights, all of which are discussed later in this chapter: 1. If the Indian child is domiciled on an Indian reservation or has been made a ward of the tribal court, the tribal court has exclusive jurisdiction over the child. State courts may not adjudicate these cases unless authorized by Congress.11 2. If the child is domiciled off the reservation and a custody proceeding is initiated in state court involving the child, the court must notify the child’s parents12 and tribe13 of their right to intervene in the proceeding. No foster care or adoption proceeding may be held until at least ten days after the tribe receives the required notice14 other than to seek a temporary placement in an emergency.15 3. If either the tribe or a parent requests it, the state court must transfer the case to tribal court unless a parent objects or good cause exists to deny the request.16 4. If the case remains in state court, the court may not terminate parental rights without proof “beyond a reasonable doubt” (or place the child in foster care without “clear and convincing evidence”) that continued custody by the child’s family “is likely to result in serious emotional or physical damage to the child.”17 5. If the child’s parents are indigent, they have a right to a court-​appointed attorney, and separate counsel must be appointed for the child when the best interests of the child require it.18 6. Before a state court can order the removal of an Indian child from the home for placement in either foster care or for adoption, “qualified

The Indian Child Welfare Act  435 expert witnesses” must testify as to whether continued placement in the home is likely to cause serious emotional or physical injury to the child.19 7. A state court may not order the removal of an Indian child from the home unless the party seeking removal shows that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”20 8. Before a state court may place an Indian child in a non-​Indian adoptive home, the court must give a placement preference to, first, the child’s extended family, second, other members of the child’s tribe, and third, other Indian families, unless good cause exists to ignore this placement sequence (and a similar hierarchy exists for foster care placements).21 Any contrary placement is subject to invalidation upon petition by a parent of the child or by the child’s tribe.22 9. Tribal court custody decisions are entitled to the same “full faith and credit” as state court custody decisions, meaning that they normally must be respected and enforced by other courts.23 10. The state must keep accurate records of all Indian child placements and make those records available to the federal government and the tribe.24 In addition, when an adopted Indian child turns eighteen, and the child requests it, the state must provide the child with the names and tribal affiliation(s) of the child’s biological parents.25 Many non-​Indians have opposed ICWA from the outset, including the right-​wing Goldwater Institute and the owners of private adoption agencies who want to place Indian children with non-​Indian families.26 Opponents of ICWA contend that the law is racially discriminatory and harms Indian children by reducing their chances of being adopted into loving, non-​Indian homes.27 On June 15, 2023, Indian Country breathed a sigh of relief when the Supreme Court in Haaland v. Brackeen,28 in a 7–​2 decision written by Justice Amy Coney Barrett, roundly rejected claims made by the state of Texas and three non-​Indian families (the “Petitioners”) that ICWA is unconstitutional. Only Justices Clarence Thomas and Samuel Alito dissented. The Petitioners made two central arguments. First, they claimed that Congress lacks authority under the Constitution to pass ICWA, particularly because ICWA interferes with state laws regulating child custody, an area of

436  The Rights of Indians and Tribes law normally left to the states. The Supreme Court rejected that argument, holding that Congress has broad authority under the Commerce Clause, the Treaty Clause, and the federal government’s trust responsibility “to legislate with respect to Indians,” including child custody legislation such as ICWA.29 Second, the Petitioners argued that particular portions of ICWA, including the notice, expert witness, and active efforts requirements, the evidentiary standards, and the placement provisions constituted “commandeering” in violation of the Tenth Amendment. Commandeering occurs when Congress seeks to compel a state, through its executive or legislative officials, to implement a federal policy—​one not required by the Constitution—​against its will. The Supreme Court rejected those arguments, too. For one thing, the Court said, ICWA only imposes restrictions on state courts, and requiring that state courts obey federal law does not violate the Tenth Amendment. Moreover, ICWA applies in private custody proceedings (such as those in which a grandparent is petitioning for custody) as well as proceedings initiated by state agencies, and a federal law that applies “evenhandedly to state and private actors does not typically implicate the Tenth Amendment.”30 The decision was thus a resounding victory for Indian tribes and their supporters.31 The ruling was heralded by tribal officials throughout the nation.32 Many states have enacted their own versions of ICWA to help ensure compliance with the federal law, including California, Colorado, Iowa, Maine, Michigan, Montana, Nebraska, Nevada, Oregon, and Wyoming.33 Some of these laws contain protections that exceed the ones in ICWA.34 Moreover, in Brackeen, 23 states, 497 Indian tribes, 62 Native organizations, 87 congress people, and 27 child welfare and adoption organizations signed onto amicus briefs urging the Supreme Court to uphold ICWA. Thus, although ICWA has its detractors, it finds strong support in both the Indian and non-​Indian communities.

Has the federal government created any guidelines for implementing ICWA?

Yes. To help states comply with ICWA, the Department of the Interior’s Bureau of Indian Affairs (BIA) issued a comprehensive set of guidelines in 1979 entitled “Guidelines for State Courts; Indian Child Custody Proceedings.”35 The Guidelines discussed nearly every provision in ICWA. Because they were guidelines and not regulations, they were not binding on the states,36 but most state courts gave them great weight and rarely departed from them.37

The Indian Child Welfare Act  437 During the Obama administration, the BIA completed the formal rule-​ making process and issued regulations governing the implementation of ICWA, which took effect on December 12, 2016 (“2016 Regulations”).38 As with all regulations issued by a federal agency, the 2016 regulations are binding on state courts.39 The BIA also issued new Guidelines in 2016 (“2016 BIA Guidelines”), which, although not binding, are being implemented by many courts.40

Who is an Indian child for purposes of ICWA?

ICWA applies if—​and only if—​the child in the custody proceeding is an “Indian child.”41 The Act defines Indian child as an “unmarried person who is under age eighteen and is either (a) a member of an Indian tribe, or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”42 Thus, even if the child is eligible for membership in a tribe but the child’s parents are not members, ICWA is inapplicable.43 ICWA is also inapplicable if the child is not eligible for membership even if one or both parents are members.44 Under ICWA, when the court “knows or has reason to know” that the child in the proceeding is an Indian child, the court has a duty to ensure that the proceeding complies with all aspects of ICWA.45 If a doubt exists about the child’s Indian heritage, the state court must ask each participant in the proceeding whether there is any reason to know that the child is an Indian child.46 The court must ensure that whoever is seeking the child’s removal from the home (which most often is a state agency but frequently is a relative of the child) contacts all tribes in which the child might be a member or eligible for membership and provides all the identifying information in the court’s and the party’s possession.47 These efforts must be thorough and documented.48 After due diligence, if the court has insufficient information that the child is an “Indian child,” the court need not incorporate the requirements of ICWA.49 But if there is a sufficient likelihood that the child is an Indian child, the court should follow the ICWA procedures until it is determined that the child is not an Indian child.50 When a court asks a tribe whether the child is a member or eligible for membership, the court must accept the tribe’s determination.51 As the Colorado Supreme Court stated in 2021, a tribe has the “exclusive right” to make that determination.52 If the tribe does not reply or if the tribe is unable to make the determination based on the information presented, the party

438  The Rights of Indians and Tribes seeking removal must send all relevant information to the Regional Director of the BIA and seek assistance in identifying the child’s tribal connection.53 The duty to determine if the child is an Indian child is a continuing duty, and if the court should later acquire identifying information, the court must notify the child’s tribe and provide the tribe with information about the proceeding.54 The burden of proving that the child is an “Indian child” rests with the party making the claim, that is, it rests with the party claiming that ICWA is applicable to the proceeding.55 Merely asserting that the child has some Indian blood is not sufficient to satisfy that burden: the party must provide the court with enough information about the child’s lineage to enable the court to adequately investigate the situation.56

What is an Indian tribe for purposes of ICWA?

Indian tribe as defined in ICWA “means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians, including any Alaska Native village.”57 Thus, the tribe must be federally recognized. (Federal recognition is discussed in Chapter XIV, Section E.). Each state, however, is free to enact its own version of ICWA and permit non-​federally recognized tribes to qualify for protections under that state’s law. The state of New York has done this.58

If an Indian child is born off the reservation, does that mean that the tribe lacks exclusive jurisdiction?

Not necessarily. ICWA provides that tribal courts have exclusive jurisdiction over Indian children “domiciled” on the reservation.59 In Mississippi Band of Choctaw Indians v. Holyfield (1989),60 the Supreme Court held that a child can be born off the reservation but still be domiciled on the reservation for purposes of ICWA. In Holyfield, an unmarried Indian couple, members of the Mississippi Band of Choctaw Indians and living on the reservation, agreed during the pregnancy of their twins to allow the children to be adopted by the Holyfields, a non-​Indian couple who had arranged through a private agency to adopt the children and who paid for the mother’s hospitalization two hundred miles from the reservation. After the twins were born, the Holyfields obtained an adoption decree from a Mississippi court. Under Mississippi law, a child is domiciled where the child is born regardless of where the parents live. The

The Indian Child Welfare Act  439 Mississippi Band, however, challenged the decree, arguing that “domicile,” for purposes of ICWA, must be determined by federal law. Federal law holds that a child is domiciled where the parents live regardless of where the child is born. The state courts ruled in favor of the Holyfields, but the Supreme Court reversed, holding that “domicile” for purposes of ICWA must be defined by federal law. Given that the parents were domiciled on the reservation, exclusive jurisdiction over their children rested with the tribal court, and the state court adoption decree was void.61 (Soon thereafter, the Holyfields, who had now been raising the twins for three years, filed an adoption petition with the tribal court, and the tribal court granted their petition.) Holyfield confirms that (1) ICWA must be interpreted consistent with federal law, and (2) even a child’s own parents cannot defeat the tribe’s rights under ICWA. In passing ICWA, the Court explained, “Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-​Indians.”62

Does ICWA impose restrictions on state courts in voluntary placement proceedings?

Yes. Removal of a child from the home can be voluntary (if the parents consent to removal) or involuntary (if they oppose removal). ICWA applies in both situations, but ICWA imposes fewer restrictions on state courts when the parents consent to their child’s removal. Of course, as Holyfield illustrates, even with parental consent, state courts have no jurisdiction if the child is domiciled on the reservation, unless Congress has given its express consent. When removal from the home is voluntary (and the child is domiciled outside the reservation), the state court is not required to notify the tribe; the tribe has no right to intervene in the proceedings; and the tribe has no right to have the case transferred to tribal court.63 ICWA, however, does have some application. First, if the proceeding is a termination of parental rights, ICWA requires that the parents must provide the judge with a written consent and the judge must explain the consequences of their actions in a manner they understand.64 Second, parental consent is invalid if given prior to, or within ten days after, the child’s birth.65 Third, if the court grants the petition to remove the child, the court must follow the placement sequence set out in ICWA, and favor an Indian home over a non-​Indian home for the placement.66 Lastly, ICWA provides that a parent may withdraw a voluntary consent to foster care placement “at any time,” whereupon the child must be

440  The Rights of Indians and Tribes returned to the parent.67 Consent for an adoption may be withdrawn by the parent at any time prior to the entry of a final decree,68 but once the adoption decree is final, it cannot be withdrawn except on proof of duress or fraud, which must be shown in an action filed within two years after entry of the decree.69

Does ICWA impose restrictions on state courts in involuntary placement proceedings?

Yes. ICWA governs an involuntary Indian custody proceeding in state court “from start to finish.”70 First, ICWA requires that the party seeking the child’s removal “shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.”71 When the identity of a parent or the tribe cannot be determined by the court, ICWA requires that notice be sent to the Regional Director of the BIA, who then has fifteen days to try and discover the identities of the parents and relevant tribe(s) and notify them of the proceeding.72 It is the court’s duty to ensure that such notice has been sent.73 Indian tribes have an interest in the outcome of custody cases involving their children separate from any interest the parents have and, therefore, have an independent right to receive adequate notice of the proceedings.74 The party seeking removal has a duty to investigate the child’s lineage and provide notice to the tribe even if the parents oppose the sending of such notice.75 A parent may not waive the tribe’s right to notice.76 Notice must be sent if the court has any reason to believe that the child is an Indian child,77 regardless of how late in the proceedings a child’s possible Indian heritage is discovered.78 If adequate notice is not provided, any subsequent court decision is voidable.79 ICWA requires that state courts afford parents and tribes with several other important rights in involuntary placement proceedings. These include, as discussed below, a right to request that the state court case be transferred to tribal court; a right to intervene in any case that remains in state court; and a right of the parents to appointed counsel if they are indigent.

May a state court deny a request to transfer the proceeding to tribal court?

In involuntary placement proceedings in state court, the parents and the tribe have three choices. First, they can allow the state proceeding to be conducted without their involvement. Second, they have a right to intervene “at any

The Indian Child Welfare Act  441 point in the proceeding.”80 Third, they may request that the proceeding be transferred to the tribal court,81 where the child’s custody will be determined according to tribal law.82 A state court must grant a transfer request from a parent or a tribe except in three situations: (1) a parent objects to the transfer,83 (2) the tribal court declines to accept the case,84 or (3) “good cause” exists to deny the request.85 If a party claims that good cause exists to deny the transfer, all parties have the right to present their views to the court on whether to transfer the case,86 and a hearing is typically required.87 ICWA does not define good cause.88 The 1979 BIA Guidelines listed several factors that could constitute good cause to deny a transfer request,89 such as when a tribe waited until the case was in an advanced stage before submitting the transfer request.90 The 2016 Regulations, on the other hand, only list factors that may not be considered.91 For instance, courts may not consider whether transfer could affect where the child is ultimately placed, the perceived quality of the tribe’s court system, or the child’s cultural connections with the tribe.92 The 2016 Regulations place the burden of proof on the party opposing the transfer to tribal court.93 Proving good cause is difficult because ICWA is designed to maximize tribal involvement in Indian custody determinations; therefore, jurisdiction over such cases is “presumptively tribal.”94 As the Alaska Supreme Court has noted, ICWA creates “a strong presumption in favor of transfer” unless compelling facts warrant a denial.95 Courts have granted a transfer request even when the child’s parents showed little or no interest in maintaining ties with the tribe.96 Distance to the tribal court that an off-​reservation witness would need to travel is not a prohibited consideration, and some courts have relied on it as a factor in denying a request to transfer.97 But distance to the tribal court should not prevent a transfer because witnesses living on the reservation would need to travel just as far to the proceeding in state court. A parent’s substantial delay in requesting a transfer after receiving notice is a permissible reason to deny the request.98

What proof must be shown to justify the involuntary removal of Indian children from their homes for foster care or adoptive placement?

Far too often, Congress found, social workers presumed that an child living in an impoverished Indian home would be better off in a wealthier, non-​ Indian home.99 Sometimes that could be true—​often it is not. Indeed, the

442  The Rights of Indians and Tribes 2016 BIA Guidelines specifically state that “children can thrive when they are kept with their parents, even in homes that may not be ideal in terms of cleanliness, access to nutritional food, or personal space, or when a parent is single, impoverished, or a substance abuser.”100 Moreover, that presumption fails to take two factors into account: (1) that the Indian child—​who might suffer some degree of emotional injury if she remains home—​would almost surely suffer significant emotional injury if separated from her family and culture, and (2) that foster parents frequently sexually assault and mentally or physically abuse their foster children.101 Most states authorize their courts to remove a child from the home if the “best interest of the child” requires it. Congress imposed a higher burden of proof in ICWA cases because many white judges and social workers viewed the “best interest” standard as an invitation to remove Indian children from impoverished homes.102 Under ICWA, Indian children may not be removed from the home and placed in foster care except by “clear and convincing evidence,” or placed for adoption except “by evidence beyond a reasonable doubt,” that continued custody by the parents “is likely to result in serious emotional or physical damage to the child,” and moreover, this conclusion must be supported by “testimony of qualified expert witnesses.”103 In other words, the inquiry focuses on whether conditions in the home pose a serious physical or mental threat to the child (such as serious neglect or abuse) and not on whether some other home could provide more financial resources or more comfortable living conditions.104 Also, ICWA does not replace state standards for determining child custody; rather, ICWA requires that removal not occur unless both the state and ICWA standards are met.105

Who is a “qualified expert witness” for purposes of ICWA?

In order to remove an Indian child from the home for placement in either foster care or for adoption, testimony from “qualified expert witnesses” must be submitted on the issue of whether continued placement in the home is likely to cause serious emotional or physical injury to the child.106 Congress required the use of a qualified expert witness (QEW) in order to reduce the risk that the court’s decision will be based on prejudice or cultural bias.107 For example, to many Anglo-​Americans, leaving a child for long periods of time with a grandparent or aunt and uncle may seem like abandonment, whereas such conduct is encouraged on many Indian reservations.108 ICWA states that “expert witnesses” must be called to testify in these proceedings, but courts have held that one expert will usually suffice.109

The Indian Child Welfare Act  443 ICWA does not define qualified expert witness. The 2016 Regulations provide that the QEW “must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe.”110 Testimony from a QEW about the culture of the child’s tribe is usually required unless, for instance, removal of the child is based on sexual abuse. In that situation, removal would not require information about tribal culture because such conduct is universally condemned.111 The more familiar the witness is with the cultural standards of the relevant tribe, the more likely the witness will be deemed qualified as an expert by the court.112 The QEW must have an “expertise beyond normal social worker qualifications.”113 Merely having a background in social work is insufficient.114 The QEW must not be the social worker already assigned to the case, thus ensuring that the court will hear from an expert other than the state social worker seeking the removal.115 The QEW’s testimony, when combined with the other evidence in the case, must support the conclusion that keeping the child at home would result in serious emotional or physical injury.116

What constitutes “active efforts”?

ICWA provides that an Indian child may not be removed from the home for foster care or adoptive placement unless the party seeking removal proves that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”117 This provision is one of the most significant accomplishments of ICWA. It imposes a duty—​one that does not typically exist under state law—​on whomever seeks to remove an Indian child from the home to first try to repair the family. As the Washington Supreme Court explained in 2021, the combination of ICWA’s high burden of proof and the need to undertake active efforts to reunite the family require that state officials “decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met.”118 ICWA does not define active efforts. Courts have differed as to what is required to satisfy this duty. Although a few courts have held that active efforts require only “reasonable” reunification efforts, such as suggesting that a parent take a parenting class or attend counseling sessions,119 the majority of

444  The Rights of Indians and Tribes courts require the party seeking removal to show that it offered meaningful and culturally relevant remedial and rehabilitative services to the family and tried to “actually help the parent develop the skills required to keep custody of the children.”120 This may require arranging appointments with care providers and paying for babysitters and transportation to enable the parent to keep those appointments.121 In other words, the agency must not just create a rehabilitation plan but must help the family implement that plan.122 The agency is not excused from seeking to implement that plan even when a parent is reluctant to participate in it.123 The 2016 Regulations define active efforts as “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family,” and the rehabilitative plan should “be tailored to the . . . circumstances of the case.”124 The 2016 BIA Guidelines explain that the “active efforts” standard is different than a “reasonable efforts” standard.125 The 2016 Regulations require that the active efforts undertaken “must be documented in detail in the record.”126 Documentation is an independent duty.127 A parent’s incarceration does not excuse the state from undertaking active efforts, particularly where the other parent is available or the incarcerated parent has made adequate provision for a caretaker. A parent’s incarceration, however, does narrow the options and can be considered in determining whether active efforts at reunification have been made.128 When active efforts to reunite the family fail, the child may be removed from the home.129 In 2013, the Supreme Court held in Adoptive Couple v. Baby Girl130 that where a father had abandoned the mother prior to the birth of their child, did not financially support the child after the birth, and never had custody of the child, the state could terminate the father’s parental rights without showing that it undertook active efforts to reunite the family. In that situation, the Court said, there was no “family” to reunite.131

Once the state court has determined that the Indian child must be removed from the home, where may the court then place the child?

ICWA imposes severe restrictions on placement decisions. The Act ensures that Indian children removed from the home will remain within the Indian community whenever possible.132 The Court in Holyfield described ICWA’s placement preferences as “[t]‌he most important substantive requirement imposed on state courts.”133

The Indian Child Welfare Act  445 If the child is being placed for adoption, the state court must first consider placement with a family member, then placement with other members of the child’s tribe, and then another Indian family before any other type of placement.134 If the child is being placed in foster care, the court must first consider, unless the child’s tribe establishes a different hierarchy, a member of the child’s extended family, then a foster home licensed by the child’s tribe, then an Indian foster home licensed by a non-​Indian licensing authority, and then an institutional setting approved by the child’s tribe or operated by an Indian organization before any other placement.135 ICWA’s placement hierarchy may be ignored only if “good cause” exists.136 The Act does not define good cause. Prior to the passage of ICWA, state courts frequently based their placement decisions on socioeconomic factors such as a family’s income. ICWA was designed to halt such bias. The 2016 Regulations state that socioeconomic conditions must not be considered in determining an acceptable placement.137 ICWA’s hierarchy reflects a presumption that placement in an Indian home is usually the best placement for an Indian child.138 The burden of proving good cause to deviate from the hierarchy rests with the party seeking the deviation.139 Courts have rarely found the existence of good cause to ignore the placement hierarchy, consistent with Congress’s intent to keep Indian children in Indian homes.140 ICWA’s placement requirement, as Professor Barbara Atwood has noted, “has generated controversy and bitter litigation.”141 Some critics of ICWA argue that these preferences constitute unlawful race discrimination in violation of the Equal Protection Clause.142 The most difficult of the preferences to defend on equal protection grounds is the one that requires placement with any Indian family before a non-​Indian family can be considered. In Brackeen, the Supreme Court held that the placement hierarchy does not violate the Tenth Amendment’s anti-​commandeering rule.143 However, the Court did not decide Petitioners’ Equal Protection challenge to the placement hierarchy. The Court concluded that because placement of the children is made by state officials who were not parties to the litigation, the Petitioners lacked standing to pursue that claim, and the Court reserved that issue for another case.144

Can an adoption of an Indian child be invalidated if an ICWA violation had occurred with respect to the removal or the placement of the child?

It occasionally happens that a state court will approve an Indian child for adoption in a manner that violated ICWA—​for instance, the tribe had not

446  The Rights of Indians and Tribes received proper notice of the proceeding—​and the question then arises as to whether the placement can be set aside once the violation is discovered. These situations are usually traumatic for everyone concerned. If an adoption decree has not yet been issued, the parent or tribe can have the placement set aside even if many years have elapsed, and the custody case begins anew.145 If an adoption decree has already been issued, the decree is subject to being voided.146 ICWA does not set any time limit on such a challenge, and it is unclear whether such challenges are open-​ended or whether, as some courts have held, they are governed by the statutory limitations that apply in custody cases governed entirely by state law.147 It would be helpful if Congress amended ICWA to clarify what time limit (a “statute of limitations”) applies to this type of challenge.

Does a non-​Indian parent have rights under ICWA?

Yes. A parent for purposes of ICWA is defined as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.”148 All parents of Indian children have the same rights under ICWA.149 For instance, a non-​Indian parent of an Indian child can request that the family receive active efforts to prevent the breakup of the family just as the Indian parent can.150

Does an unwed father have rights under ICWA?

Yes. As just noted, a parent for purposes of ICWA is defined as any biological or adoptive parent of an Indian child.151 Thus, unmarried fathers have the same rights under ICWA as married fathers.152 As defined in the Act, however, a parent “does not include the unwed father where paternity has not been acknowledged or established.”153 Therefore, where the child’s Indian blood comes entirely from the father, the father’s tribe has no enforceable rights under ICWA in the proceeding unless the father acknowledges paternity or paternity has been established.154

When is the state permitted to take custody of an Indian child when that child is in imminent danger?

State welfare officials are authorized by the laws of every state to take custody of any child located within the state’s jurisdiction who is in imminent danger. Section 1922 of ICWA permits the state to exercise that same authority when the child at risk is an Indian child. However, the state must schedule a prompt

The Indian Child Welfare Act  447 hearing and provide notice of that hearing to the parents and to the child’s tribe along with all the other procedural safeguards guaranteed by ICWA, such as providing the parents with the right to counsel if they are indigent.155 At the conclusion of the emergency hearing, the child must be returned to the parents unless the state has proven that doing so would place the child at risk of “imminent physical damage or harm.”156 (If the child is domiciled on the reservation, the state presumptively has a duty to return the child to the parents or to tribal authorities because, as Holyfield makes clear, state courts lack jurisdiction over Indian children who are domiciled on the reservation.) In subsequent custody proceedings, ICWA permits the state to retain a child in foster care based on a showing of emotional or physical harm,157 but at the emergency hearing, only proof of physical harm will suffice to justify a refusal to return the child to the parents.158 Congress’s decision to limit the evidence to proof of physical harm at the emergency hearing is likely due to the fact that a QEW will not be present at that hearing. Congress did not want state court judges to speculate whether an Indian child might suffer emotional harm by remaining in the home where no testimony from a QEW could offset that speculation. The state has no duty at the emergency hearing, of course, to show that active efforts had been made to reunite the family, given that the state would have had no opportunity to provide remedial services.159

May a custody decision issued by a state court be appealed to a federal court?

Section 1914 of ICWA provides that the parent, custodian, or tribe of an Indian child removed from the home by a state court in violation of ICWA “may petition any court of competent jurisdiction to invalidate such action.” Federal courts are courts of “competent jurisdiction.” Thus, Congress has authorized federal courts to review all state court ICWA decrees. The prevailing practice, however, is that an ICWA case decided by a state court may only be appealed within the state’s appellate court system, and from there to the U.S. Supreme Court.160 In both ICWA and non-​ICWA custody cases, a federal court generally will not agree to review a state court decree unless it is “fundamentally flawed” on constitutional grounds.161 For instance, if the tribe or the parents had been impermissibly excluded from the state court proceeding—​and therefore had no opportunity to protect their interests—​they may challenge the state court decree in a federal court without the need to pursue a state appeal.162 Similarly, after a case has been

448  The Rights of Indians and Tribes commenced in state court, another party to the case may not “forum shop” and commence a similar action in federal court unless the state court case is fundamentally flawed.163

Does ICWA apply in all Indian child custody cases?

No. ICWA exempts from its coverage several types of cases involving the custody of an Indian child. ICWA does not apply if the Indian child is not a tribal member or eligible for membership,164 or if the child’s tribe is not recognized by the federal government as an Indian tribe.165 ICWA also does not apply to divorce proceedings in which custody of the child is to be awarded to one of the child’s parents,166 or to placements made in juvenile delinquency proceedings when the child has committed an act that if committed by an adult would be deemed a crime.167 Most cases involving an effort to involuntarily remove an Indian child from the home are brought by a state agency, but it is not uncommon for a stepparent to seek to adopt the child, or for a grandparent to seek guardianship of the child. Most courts have held that ICWA applies to custody disputes between parents and stepparents168 and to guardianship disputes between parents and grandparents.169 In the guardianship cases, the party seeking to remove the child from the home must show that active efforts were made to reunite the family.170 A controversial court-​created exception to ICWA is the “existing Indian family” exception. According to some courts, ICWA does not apply to any custody proceeding in which the Indian child’s parents have not maintained a significant social, cultural, and political relationship with their tribe.171 As these courts see it, there is no reason to provide Indian parents with the benefits of ICWA when they are not interested in maintaining tribal ties. This exception, however, overlooks the fact that the child’s tribe has an interest in the proceeding even if the parents do not, and the vast majority of courts have rejected the “existing Indian family” exception, viewing it as inconsistent with ICWA.172 Even some states that initially adopted the exception have since abandoned it, either through state legislation or by a subsequent court decision.173 The 2016 BIA Guidelines state that the so-​called existing Indian family exception is invalid.174

What is the impact of Public Law 83-​280 on ICWA jurisdiction?

Tribes have exclusive jurisdiction to determine the custody and placement of an Indian child domiciled on the reservation unless a federal statute consents

The Indian Child Welfare Act  449 to state jurisdiction.175 The Supreme Court has yet to decide this issue but several lower courts have held that Public Law 83-​280 (P.L. 280), discussed in Chapter VII, provides that consent to those several states that acquired jurisdiction through P.L. 280.176 Those decisions are suspect, however. The Supreme Court has held that P.L. 280 does not confer civil jurisdiction on the state.177 Given that child custody proceedings are civil proceedings, it would seem that P.L. 280 does not authorize states to determine the custody of on-​ reservation children.178 Even if P.L. 280 does consent to state jurisdiction, it does not diminish the right of the tribe to hear these same cases.179 Thus, the tribe and the state have concurrent jurisdiction. Moreover, even in P.L. 280 states, custody proceedings filed in state court involving an Indian child are still subject to transfer to tribal court under the same requirements applicable to all other ICWA cases,180 and if the case remains in state court, it must be decided in a manner fully consistent with ICWA.181 When the case is heard in tribal court, the parties must exhaust all tribal remedies, including tribal appellate courts, before raising ICWA issues in state court.182

Has ICWA been effective?

ICWA has helped protect Indian children, their families, and their tribes. The Act has fostered greater respect for tribal authority over the placement of Indian children, strengthened tribal courts and tribal sovereignty, and promoted tribal-​state cooperation.183 In particular, ICWA has reduced the number of Indian children removed from the home and, when removal has occurred, significantly increased the number of Indian children who are placed in Indian, rather than non-​Indian, homes.184 ICWA, however, is not a panacea merely because it is on the books. In many states, Indian children are still being removed far more frequently from their homes than non-​Indian children.185 This suggests that the biased decision-​ making that prompted the passage of ICWA has not been eradicated. It is also true, however, that some Native communities experience a high rate of crime, substance abuse, health issues, and housing problems, all of which impact the ability of parents to care for their children.186 Thus, reducing the number of Indian children in family courts will require more than just adherence to ICWA. Our society must address persistent unemployment and the inadequate housing, health care, and education prevalent in minority communities. One reason why ICWA has not been as effective as it could be is that many tribes lack the funding needed to take advantage of its benefits. Many

450  The Rights of Indians and Tribes tribes do not have sufficient staff to process and respond in a timely manner to ICWA notices, send witnesses to state courts around the country when their children are in custody proceedings, or adequately compensate foster and adoptive caregivers on the reservation, which makes it more difficult to place children in reservation homes.187 Passage in 2008 of the Fostering Connections to Success and Increasing Adoptions Act (FCSIAA)188 helps with the latter problem by making funds directly available to Indian tribes under Title IV-​E of the Social Security Act189 for foster care and adoption assistance programs, and includes grants that allow tribes to offer financial assistance to relatives of children who agree to accept guardianship. The FCSIAA is enabling tribes to recruit and fund more on-​reservation foster and adoptive homes.190 However, as Professor Kathryn Fort has explained, “the current state child welfare system in the United States is broken,” and the federal government should help tribes to avoid that system by strengthening tribal child welfare systems.191 Another reason ICWA has not been as effective as it could be is that state officials continue to violate the Act. A California appellate court admitted in 2008 that violations of ICWA in that state are “all too common” and that some officials are “flouting” the law.192 Observers have discovered repeated abuses of ICWA by state officials, particularly in the way they use the good cause exceptions to deny transferring a case to tribal court or evade adherence to the placement hierarchy.193 In 2015, a federal court in South Dakota found that 823 Indian children had been removed from their homes by state social services employees in the Rapid City area between 2010 and 2013 in a manner that violated ICWA.194 In 2017, a Task Force in California, after studying ICWA cases within the state, found progress in many areas, but also found “lack of robust active reunification efforts, failure to complete diligent inquiry and notice, resistance to tribal court jurisdiction, barriers to tribal participation in court processes, lack of competency within court systems, and deviation from or violation of placement preferences.” The Task Force noted that these shortcomings, according to tribal officials and Indian parents, “had devastating effects on tribes and tribal families.”195 Supporters believe that ICWA is a necessary response to persistent race and ethnic discrimination against Indian families and Indian tribes. ICWA has been called the “gold standard” for how child custody and adoption cases should be handled.196 ICWA deserves to be with us for as long as it is needed.

The Indian Child Welfare Act  451

Notes 1. See Indian Child Welfare Act of 1978, Hearings before the Subcomm. on Indian Affairs of the House Comm. on Interior and Insular Affairs, 95th Cong., 2d Sess. (1978); Indian Child Welfare Act of 1977: Hearing on S.1214 before the Senate Select Comm. on Indian Affairs, 95th Cong., 1st Sess. (1977) (“1977 Hearings”). See also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989); Barbara Ann Atwood, Children, Tribes, and States 155–​59 (2010); Leanne Gale & Kelly McClure, Commandeering Confrontation: A Novel Threat to the Indian Child Welfare Act and Tribal Sovereignty, 39 Yale L. & Pol’y Rev. 292, 297–​304 (2020). 2. See Indian Child Welfare Program: Hearings before the Subcomm. on Indian Affairs of the Senate Comm. on Interior and Insular Affairs, 93rd Cong., 2d Sess. 3, 15 (Apr. 8, 1974) (“1974 Hearings”), at 3–​4 (statement of William Byler). 3. H.R. Rep. No. 95-​1386 at 10–​12. See Gale & McClure, supra note 1, at 300. 4. See 25 U.S.C. § 1901; Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (1989). 5. See 1977 Hearings, supra note 1, at 538, 603; 1974 Hearings, supra note 2, at 3–​4. 6. See H.R. Rep. No. 1386, 95th Cong., 2d Sess. (1978) (“H.R. Rep. No. 95-​1386”), at 11. 7. See, e.g., Paul Chill, Burden of Proof Begone: The Pernicious Effect of Emergency Removal in Child Protective Proceedings, 4 Family Court Rev. 457, 458 (2003). 8. H.R. Rep. No. 95-​1386 at 9. See Gale & McClure, supra note 1, at 335 (describing the pre-​ICWA policy as “forced assimilation and cultural genocide”); see also Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023) (stating that these removals “harmed not only Indian parents and children, but also Indian tribes.”). 9. 25 U.S.C. §§ 1901–​63. 10. 25 U.S.C. § 1902. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989); In re J.L., 770 N.W.2d 853, 861–​62 (Mich. 2009). 11. 25 U.S.C. § 1911(a). 12. 25 U.S.C. § 1912(a). Throughout this chapter, the term “parent” includes an “Indian custodian” of the child. ICWA defines Indian custodian as any Indian person who has legal custody of an Indian child under tribal custom or under state or tribal law or who has received temporary custody from a parent of the child. See 25 U.S.C. § 1903(6). 13. 25 U.S.C. § 1912(a). See also id. § 1911(c); 25 C.F.R. §§ 23.111(b)(1) and (2). 14. 25 U.S.C. § 1912(a); 25 C.F.R. § 23.112(b)(1). 15. 25 U.S.C. § 1922. See In the Matter of S.R. and C.R., 436 P.3d 696, 701-​03 (Mont. 2019). 16. 25 U.S.C. § 1911(b). 17. Id. §§ 1912(f) and (e), respectively. 18. Id. § 1912(b). See In the Matter of I.T.S., 2021 OK 38 (2021); In re Custody of A.K.H., 502 N.W.2d 790 (Minn. App. 1993). 19. 25 U.S.C. § 1912(f). 20. Id. § 1912(d). 21. Id. § 1915(a) and (b), respectively. 22. 25 U.S.C. § 1914.

452  The Rights of Indians and Tribes 23. Id. § 1911(d). But see Starr v. George, 175 P.3d 50 (Alaska 2008) (holding that a state court need not accord full faith and credit to a tribal decree issued in violation of rudimentary due process). 24. 25 U.S.C. § 1915(e). 25. Id. § 1917. These record keeping requirements are not unconstitutional. Haaland v. Brackeen, 143 S. Ct. 1609, 1636–​38 (2023). 26. See Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 509 (2017); Gale & McClure, supra note 1, at 305–​10. 27. See the brief filed by the state of Texas in Haaland v. Brackeen, 143 S. Ct. 1609 (2023). 28. 143 S. Ct. 1609 (2023). 29. Brackeen, 143 S. Ct. at 1628-​31. 30. Id. 143 S. Ct. at 1633. For more information on commandeering, see Matthew L.M. Fletcher & Randall Khalil, Preemption, Commandeering, and the Indian Child Welfare Act, available at https://​rac​ism.org/​artic​les/​basic-​needs/​fam​ily/​11316-​pre​empt​ion-​ comman​deer​ing. 31. As discussed later, one of Petitioners’ claims—​that the placement provisions are racially discriminatory—​was not decided on the merits because the Petitioners lacked standing to raise the claim. 32. See, e.g., Native American Rights Fund, In a Major Win for Native Families, Supreme Court Upholds the Constitutionality of ICWA (June 15, 2023), available at https://​narf. org/​prot​ect-​icwa-​statem​ent/​. 33. A listing of the state ICWA statutes can be found at https://​impr​intn​ews.org/​youth-​ servi​ces-​insi​der/​track​ing-​effo​rts-​to-​pass-​state-​level-​icwa-​laws/​241​211. 34. See, e.g., In re Adoption of Micah H., 918 N.W.2d 834, 846 (Neb. 2018) (acknowledging that the Nebraska ICWA “provides a higher standard of protection” than ICWA); In re Williams, 915 N.W.2d 328, 329 (Mich. 2018) (acknowledging that the Michigan law provides greater protections than ICWA). 35. 44 Fed. Reg. 67,584 (Nov. 26, 1979). 36. See Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496, 504 (Alaska 2009) (noting that agency regulations are binding on the states but not agency guidelines). 37. See In re Tamika R., 973 A.2d 547, 551–​52 (R.I. 2009); In re Trevor I., 973 A.2d 752, 757 (Maine 2009). 38. Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016) (effective Dec. 12, 2016) (codified at 25 C.F.R. pt. 23). See 25 C.F.R. § 23.143. 39. People in Interest of E.T., 932 N.W. 2d 770, 774 (S.D. 2019); Eva H. v. Dept. of Health and Soc. Servs., 436 P.3d 1050, 1053 (Alaska 2019). See also Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 142 (1982) (“Federal regulations have no less pre-​ emptive effect than federal statutes.”). 40. Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96,476 (Dec. 30, 2016), available at https://​www.bia.gov/​sites/​bia.gov/​files/​ass​ets/​bia/​ois/​pdf/​idc2-​ 056​831.pdf. See People in Interest of E.A.M. v. D.R.M., 616 P.3d 924, 929 (Colo. 2022). 41. 25 U.S.C. § 1911.

The Indian Child Welfare Act  453 42. Id. § 1903(4). If the child turns eighteen during the pendency of the proceedings, ICWA no longer applies and the case should be determined consistent with state law. See In re Melissa G., 177 Cal. App. 4th 24 (Cal. App. 2009). 43. In re Manual C. v. Amber S., 988 N.W.2d 520 (Neb. 2023); Native Village of Chignik Lagoon v. Dept. of Health and Soc. Servs., 518 P.3d 708, 716 (Alaska 2022); People in Interest of K.C., 487 P.3d 263 (Colo. 2021). 44. In re Children of Mary J., 199 A.3d 231, 232–​33 (Maine 2019). 45. 25 U.S.C. § 1912(a). 46. 25 U.S.C. § 23.107(a); see Matter of E.J.B., 846 S.E.2d 472, 477 (N.C. 2020); In the Matter of S.R. and C.R., 436 P.3d 696, 702 (Mont. 2019). 47. 25 C.F.R. § 23.111 (2020). See Jimmy E. v. Dept. of Health and Soc. Servs., 529 P.3d 504, 517–​18 (Alaska 2023); In the Matter of S.R. and C.R., 436 P.3d at 703–​04. 48. See Jimmy E., 529 P.3d at 518–​19; In re W.C. v. W.E., 86 Cal. App. 5th 130 (Cal. 2022); In Matter of M.T., 474 P.3d 820, 829 (Mont. 2020). 49. People in Interest of E.A.M. v. D.R.M., 616 P.3d 924, 937 (Colo. 2022). 50. 25 C.F.R. § 203.107(b)(2) (2020); Matter of E.J.B., 846 S.E.2d 472, 476 (N.C. 2020); In the Matter of S.R. and C.R., 436 P.3d at 703. 51. 25 C.F.R. § 23.108(b) (2020); see Native Village of Chignik Lagoon v. Dept. of Health and Soc. Servs., 518 P.3d 708, 712 (Alaska 2022); In the Matter of S.R. and C.R., 436 P.3d at 703; Michelle M. v. Dept. of Child Safety, 401 P.3d 1013, 1017 (Ariz. Ct. App. 2017). 52. People in Interest of K.C., 487 P.3d 263, 271 (Colo. 2021). 53. 25 C.F.R. § 23.111e (2020); see In re Trevor I., 973 A.2d 752, 757–​58 (Maine 2009). 54. See Michelle M. v. Dept. of Child Safety, 401 P.3d 1013, 1017 (Ariz. Ct. App. 2017); In re Isaiah W., 1 Cal. 5th 1, 10–​15 (Cal. 2016); 25 C.F.R. § 23.107(a). 55. See Matter of A.P., 818 S.E.2d 396, 398–​99 (N.C. App. 2018); In re E.H., 26 Cal. App. 5th 1058, 1065–​72 (Cal. App. 2018); In re People ex rel. A.R.Y.-​M., 230 P.3d 1259, 1261 (Colo. App. 2010). 56. A.R.Y.-​M., 230 P.3d 1259; In re Trevor I., 973 A.2d at 758; In re Arianna R.G., 657 N.W.2d 363, 370–​72 (Wis. 2003). 57. 25 U.S.C. § 1903(8). 58. See Matter of Dupree M., 172 A.D.3d 752, 753, 97 N.Y.S.3d 680 (NY App. Div. 2019). 59. 25 U.S.C. § 1911(a). See Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023). 60. 490 U.S. 30 (1989). 61. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 53–​54 (1989). See also In the Interest of G.R.F., 569 N.W.2d 29 (S.D. 1997). Compare, Matter of Adoption of B.B., 469 P.3d 1093, 1106–​09 (Utah 2020) (finding that mother’s intent was to leave the reservation permanently). 62. Holyfield, 490 U.S. at 49. 63. See Navajo Nation v. Superior Court of the State of Washington, 47 F. Supp. 2d 1233, 1237 (E.D. Wash. 1999); Catholic Social Services, Inc. v. C.A.A., 783 P.2d 1159 (Alaska 1989), cert. denied, 495 U.S. 948 (1990). 64. 25 U.S.C. § 1913(a). See Matter of Petition of Phillip A.C., 149 P.3d 51 (Nev. 2006) (holding that a tribe may raise a challenge under Section 1913(a)).

454  The Rights of Indians and Tribes 65. 25 U.S.C. § 1913(a). 66. Id. § 1915. 67. 25 U.S.C. § 1913(b). See Empson-​ Laviolette v. Crago, 760 N.W.2d 793 (Mich. App. 2008). 68. 25 U.S.C. § 1913(c). See Harvick v. Harvick, 828 P.2d 769 (Alaska 1992). 69. 25 U.S.C. § 1913(d). See In re Adoption of Kenten H., 725 N.W.2d 548 (Neb. 2007). 70. See Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023). 71. 25 U.S.C. § 1912(a); 25 C.F.R. § 23.111 (2020). See In the Matter of S.R. and C.R., 436 P.3d 696, 704 (Mont. 2019). 72. 25 U.S.C. § 1912(a); 25 C.F.R. § 23.11. 73. Matter of E.J.B., 846 S.E.2d 472, 477–​78 (N.C. 2020); In the Matter of S.R. and C.R., 436 P.3d at 704. 74. B.H. v. People in Interest of X.H., 138 P.3d 299, 303 (Colo. 2006); In re Desiree F., 83 Cal. App. 4th 460, 470 (2000); see also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989). 75. In the Matter of S.R. and C.R., 436 P.3d at 704–​05; see also Holyfield, 490 U.S. at 49–​53; In re Kahlen W., 233 Cal. App. 3d 1414, 1421, 1425 (Cal. App. 1991). 76. See Michelle M. v. Dept. of Child Safety, 401 P.3d 1013, 1017 (Ariz. Ct. App. 2017); In re Custody of C.C.M., 202 P.3d 971, 977 (Wash. App. 2009). 77. See discussion of “Indian child” supra notes 41–​44 and accompanying text. See also In re Robert A., 147 Cal. App. 4th 982, 989 (Cal. App. 2007) (noting that the trial court “needs only a suggestion of Indian ancestry to trigger the notice requirement”) (citation omitted). 78. In re Pedro N., 35 Cal. App. 4th 183 (Cal. App. 1995); In re M.C.P., 571 A.2d 627 (Vt. 1989); In re H.D., 729 P.2d 1234, 1237–​39 (Kan. 1986). 79. See Matter of E.J.B., 846 S.E.2d 472, 479 (N.C. 2020); Michelle M. v. Dept. of Child Safety, 401 P.3d 1013, 1017 (Ariz. Ct. App. 2017); In re Suzanna L., 104 Cal. App. 4th 223, 237 (Cal. App. 2002). 80. 25 U.S.C. § 1911(c). See In re Alicia S., 65 Cal. App. 4th 79, 82 (Cal. App. 1998); In re Riffle, 922 P.2d 510, 545 (Mont. 1996). 81. 25 U.S.C. § 1911(b); 25 C.F.R. § 23.117. 82. See Holyfield, 490 U.S. at 53–​54. 83. 25 U.S.C. § 1911(b). See In re A.E., 572 N.W.2d 579 (Iowa 1997); In re the Appeal in Maricopa County, Juvenile Action, 922 P.2d 319, 321–​22 (Ariz. App. 1996). 84. 25 U.S.C. § 1911(b). 85. 25 U.S.C. § 1911(b); 25 C.F.R. § 23.117. 86. 25 C.F.R. § 23.118. 87. People in Interest of A.O., 896 N.W.2d 652, 655 (2017); In re G.L.O.C., 668 P.2d 235, 237 (Mont. 1983). 88. The absence of a definition has led to inconsistent decisions on what constitutes good cause. See Dinwiddie Dept. of Soc. Servs. v. Nunnally, 764 S.E.2d 526, 530 (Va. 2014) (discussing cases); In re Welfare of Child of T.T.B. & G.W., 724 N.W.2d 300, 309 (Minn. 2006); Atwood, supra note 1, at 172–​74. 89. See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586, 67,591 (1979).

The Indian Child Welfare Act  455 90. See T.T.B., 724 N.W.2d 300 (denying transfer because case was in advanced stage); In re A.B., 663 N.W.2d 625, 631 (N.D. 2003) (allowing transfer because case was not in advanced stage); In re A.P., 962 P.2d 1186 (Mont. 1998). 91. 25 C.F.R. § 23.118(c). 92. Id. 93. See 2016 BIA Guidelines, supra note 40, § F(5) at 49–​50; 2016 Regulations, supra note 38, Supplement, 81 Fed. Reg. at 38,827. See In re Child of Radiance K., 208 A.3d 380, 394 (Maine 2019); In the Matter of M.H.C., 381 P.3d 710, 715 (Okla. 2016). 94. Holyfield, 490 U.S. at 36. See also People ex rel. T.I., 707 N.W.2d 826, 834 (S.D. 2005). 95. In re C.R.H., 29 P.3d 849, 853 n.16, 854 (Alaska 2001) (internal citation omitted). See also Interest of T.F. and T.F., 972 N.W.2d 1, 17–​18 (Iowa 2022); supra note 83 and accompanying text. 96. See In re Junious M., 144 Cal. App. 3d 786, 793–​94 (Cal. App. 1983); In re Appeal in Cocomino County, Juvenile Action, 736 P.2d 829 (Ariz. 1987); In re Adoption of Holloway, 732 P.2d 962 (Utah 1986). 97. See In re Children of Shirley T., 199 A.2d 221 (Maine 2019); In re A.P., 961 P.2d 706 (Kan. App. 1998); In re Interest of J.R.H., 358 N.W.2d 311, 317 (Iowa 1984). 98. See In re Child of Radience K., 208 A.3d 380, 394–​95 (Maine 2019); People in Interest of A.O., 896 N.W.2d 652, 655 (2017). 99. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (1989). 100. 2016 BIA Guidelines, supra note 40, at 53. See State v. Cissy A., 513 P.3d 999, 1012–​13 (Alaska 2022). 101. See M.D. by Stukenburg v. Abbott, 907 F.3d 237, 289 (5th Cir. 2018). 102. ICWA imposes “heightened standards.” In re M.F., 225 P.3d 1177, 1187 (Kan. 2010). 103. 25 U.S.C. §§ 1912(e) and (f), respectively. For a discussion of the “clear and convincing evidence” test, see In re S.M.H., 103 P.3d 976 (Kan. App. 2005). 104. 2016 BIA Guidelines, supra note 40, at 53. See Eva H. v. Dept. of Health and Soc. Servs., 436 P.3d 1050, 1055 (Alaska 2019), overruled on other grounds, State v. Cissy A., 513 P.3d 999 (Alaska 2022); In re Baby Boy Doe, 902 P.2d 477 (Idaho 1995); In re S.D., 402 N.W.2d 346 (S.D. 1987). 105. See Interest of K.S.D., 904 N.W.2d 479, 486 (N.D. 2017); K.E. v. Utah, 912 P.2d 1002 (Utah App. 1996); In re Elliott, 554 N.W.2d 32 (Mich. App. 1996). 106. 25 U.S.C. § 1912(f). See Matter of Welfare of S.R.K., 911 N.W.2d 821, 829 (Minn. 2018); Jude M. v. Alaska Dept. of Health and Soc. Servs, 394 P.3d 543, 558–​59 (Alaska 2017); In re M.F., 225 P.3d 1177, 1185 (Kan. 2010). 107. See People ex rel. M.H., 691 N.W.2d 622, 626 (S.D. 2005); K.E., 912 P.2d 1002. 108. See Atwood, supra note 1, at 134–​39. 109. Oliver N. v. Dept. of Health and Soc. Servs., 444 P.3d 171, 173 n.6 (Alaska 2019); In re Baby Boy Doe, 902 P.2d 477 (Idaho 1995). 110. 25 C.F.R. § 23.122(a). See State v. Cissy A., 513 P.3d 999 (Alaska 2022). 111. See 2016 BIA Guidelines, supra note 40, at 54. See Matter of April S., 467 P.3d 1091, 1097–​99 (Alaska 2020); Brenda O. v. Arizona Department of Economic Security, 244 P.3d 574, 577 (Ariz. App. 2010). The burden is on the party claiming that a QEW is unnecessary to prove irrelevance. See Cissy A., 513 P.3d at 1014–​15. A QEW is

456  The Rights of Indians and Tribes unnecessary, however, when the parent opposing the loss of custody abandoned the child and never had legal or physical custody. Adoptive Couple v. Baby Girl, 570 U.S. 637, 650 (2013). 112. See In re Shayla H., 764 N.W.2d 119, 128–​29 (Neb. App. 2009); In re Tamika R., 973 A.2d 547, 552 (R.I. 2009); Department of Human Services v. K.C.J., 207 P.3d 423, 425 (Or. App. 2009). But see Oliver N., 444 P.3d at 179–​89 (holding that a tribal elder is not automatically qualified as a QEW). 113. 2016 BIA Guidelines, supra note 40, at 54 (quoting H.R. Rep. No. 95-​1386, at 22 (1978)); Eva H. v. Dept. of Health and Soc. Servs., 436 P.3d 1050, 1052 (Alaska 2019). 114. In re M.F., 225 P.3d 1177, 1184–​85 (Kan. 2010); Navajo Nation v. Dept. of Child Safety, 441 P.3d 982, 987 (Ariz. App. 2019). 115. 25 C.F.R. § 23.122(c) (2018). See also 2016 BIA Guidelines, supra note 40, at 54; Interest of K.S.D., 904 N.W.2d 479, 487 (N.D. 2017). 116. Matter of Welfare of S.R.K., 911 N.W.2d 821, 829 (Minn. 2018); Jude M. v. Alaska Dept. of Health and Soc. Servs, 394 P.3d 543, 558–​59 (Alaska 2017); Interest of K.S.D., 904 N.W.2d at 487. 117. 25 U.S.C. § 1912(d); 25 C.F.R. § 23.120. 118. Matter of Dependency of G.J.A., 489 P.3d 631, 653 (Wash. 2021). 119. See In re Hannah S., 142 Cal. App. 4th 988, 998 (2006); In re K.D., 155 P.3d 634, 637 (Colo. App. 2007). 120. Clark v. State, Dept. of Health & Soc. Servs, 483 P.3d 896, 903–​04 (Alaska 2021); In the Matter of D.E. and A.E., 423 P.3d 586, 591 n.2 (Mont. 2018); People in Interest of S.H.E., 824 N.W.2d 420, 426 (S.D. 2012). . 121. See In re Adoption of Micah H., 918 N.W.2d 834, 846 (Neb. 2018); In re J.L., 770 N.W.2d 853, 865 (Mich. 2009); Foreman v. Heinman, 240 F.R.D. 456, 474, 500 (D. Neb. 2006). See also Atwood, supra note 1, at 176. 122. S.H.E., 824 N.W.2d at 426; Jon S. v. Alaska Office of Children’s Services, 212 P.3d 756, 763 (Alaska 2009); State ex rel. Juvenile Department of Tennessee, 203 P.3d 262, 263 (Or. App. 2009). 123. Mona J. v. Dept. of Health and Soc. Servs., 511 P.3d 553, 562–​63 (Alaska 2022). 124. 25 C.F.R. § 23.2 (containing a list of eleven examples of active efforts). See Bill S. v. Dept. of Health and Soc. Servs., 436 P.3d 976, 981 (Alaska 2019). 125. See Indian Child Welfare Act Proceedings, supra note 38, 81 Fed. Reg. at 38,791. 126. 25 C.F.R. § 23.120(b). 127. Bill S., 436 P.3d at 983. 128. People in Interest of S.H.E., 824 N.W.2d 420, 427 (S.D. 2012); Josh L. v. State, Dep’t. of Health & Soc. Servs., Office of Children’s Servs., 276 P.3d 457, 463–​64 (Alaska 2012). 129. See In re Child of Radience K., 208 A.3d 380 (Maine 2019); People in Interest of M.D., 920 N.W.2d 496 (S.D. 2018); Caitlyn E. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs., 399 P.3d 646, 656 (Alaska 2017). 130. 570 U.S. 637 (2013). 131. Adoptive Couple v. Baby Girl, 570 U.S. 637, 651–​52 (2013). See also In re M.J., 907 N.W.2d 105 (Wis. App. 2017); In re Adoption of Micah H., 887 N.W.2d 859, 871 (Neb. 2016). The “active efforts” requirement, however, is not unconstitutional. Haaland v. Brackeen, 143 S. Ct. 1609, 1632–​34 (2023).

The Indian Child Welfare Act  457 132. See H.R. Rep. No. 1386, 95th Cong., 2d Sess. 10, at 24, reprinted in 1978 U.S.C.C.A.N. 7530, 7531–​32. 133. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36–​37 (1989). 134. 25 U.S.C. § 1915(a); 25 C.F.R. § 23.130. 135. 25 U.S.C. § 1915(b); 25 C.F.R. § 23.131. 136. 25 U.S.C. §§ 1915(a) (adoptions) and 1915(b) (foster care). See In re Bird Head, 331 N.W.2d 785 (Neb. 1983). 137. 25 C.F.R. § 23.118(c). 138. Holyfield, 490 U.S. at 36–​37; In re C.H., 997 P.2d 776 (Mont. 2000); See Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law §11.05[2]‌, 855–​56 (2012 ed.). 139. 25 C.F.R. § 132(b). See In re S.N.R., 617 N.W.2d 77 (Minn. App. 2000); In re Riffle, 922 P.2d 510, 513 (Mont. 1996). 140. See In re Custody of S.E.G., 521 N.W.2d 357, 363–​64 (Minn. 1994), cert. denied, 513 U.S. 1127 (1995); C.H., 997 P.2d 776; State ex rel. C.D., 200 P.3d 194, 210 (Utah App. 2008). 141. Atwood, supra note 1, at 182. 142. See Goldwater Institute, Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children (Aug. 9, 2017), available at https://​gol​dwat​erin​stit​ute. org/​arti​cle/​escap​ing-​the-​icwa-​pena​lty-​box-​in-​defe​nse-​of-​equal-​pro​tect​ion-​for-​ind​ ian-​child​ren/​. The briefs filed by the Petitioners in Brackeen set forth an equal protection claim. 143. 143 S. Ct. 1609, 1634–​36 (2023). 144. Id., at 1640–​41. Justice Kavanaugh, in his concurring opinion, stated that ICWA’s placement hierarchy raises a “serious” Equal Protection issue. Id., at 1661 (Kavanaugh, J., concurring). 145. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). 146. In re N.A.H., 418 N.W.2d 310, 311 (S.D. 1998). But see In re S.Z., 325 N.W.2d 53 (S.D. 1982) (court excuses the deficiencies). 147. Compare Navajo Nation v. Superior Ct., 47 F. Supp. 2d 1233, 1237 (E.D. Wash. 1999), with In re T.N.F., 781 P.2d 973 (Alaska 1989), cert. denied, 494 U.S. 1030 (1990). 148. 25 U.S.C. § 1903(9). 149. See 2016 BIA Guidelines, supra note 40, 81 Fed. Reg. at 38815; Matter of Adoption of T.A.W., 383 P.3d 492, 507 (Wash. 2016); Wilson W. v. State, 185 P.3d 94, 101 n.14 (Alaska 2008). 150. T.A.W., 383 P.3d 492; see also In re Beers, 926 N.W.2d 832 (Mich. App. 2018). 151. 25 U.S.C. § 1903(9). 152. See Jared P. v. Glade T., 209 P.3d 157 (Ariz. App. 2009). 153. 25 U.S.C. § 1903(9). 154. See In re Adoption of Baby Boy D., 742 P.2d 1059 (Okla. 1985), cert. denied, 484 U.S. 1072 (1988), overruled on other grounds by In re Baby Boy L., 103 P.3d 1099 (Okla. 2004); In re Adoption of a Child of Indian Heritage, 543 A.2d 925 (N.J. 1988). 155. See Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749 (D.S.D. 2015), rev’d on other grounds, 904 F.3d 603 (8th Cir. 2018), cert. denied, 140 S. Ct. 105 (2019); State ex rel. C.D., 200 P.3d 194, 198 (Utah App. 2008); In re G.S., 59 P.3d 1063 (Mont. 2002).

458  The Rights of Indians and Tribes 156. 25 U.S.C. § 1922; 25 C.F.R. § 23.113(b)(1). See Oglala Sioux Tribe v. Van Hunnik, 220 F. Supp. 3d 986 (D.S.D. 2016), rev’d on other grounds, 904 F.3d 603 (8th Cir. 2018), cert. denied, 140 S. Ct. 105 (2019) 157. 25 U.S.C. §§ 1912(e) and (f). 158. 25 U.S.C. § 1922. See Oglala Sioux Tribe v. Van Hunnik, 220 F. Supp. 3d 986. 159. Haaland v. Brackeen, 143 S. Ct. 1609, 1634 (2023). 160. Comanche Indian Tribe of Oklahoma v. Hovis, 53 F.3d 298 (10th Cir.), cert. denied, 516 U.S. 916 (1995). 161. Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587, 591 (10th Cir. 1985), cert. denied, 479 U.S. 872 (1986). 162. See Roman-​Nose v. New Mexico Department of Human Services, 967 F.2d 435, 437 (10th Cir. 1992); Navajo Nation v. Superior Ct., 47 F. Supp. 2d 1233, 1240–​41 (E.D. Wash. 1999). 163. Morrow v. Winslow, 94 F.3d 1386 (10th Cir. 1996), cert. denied, 520 U.S. 1143 (1997); Navajo Nation v. LDS Family Services, 2006 WL 3692662 (D. Utah 2006). 164. 25 U.S.C. § 1903(4). 165. Id. § 1903(8). See In re Wanomi P., 216 Cal. App. 3d 156 (Cal. App. 1989). The subject of federal recognition is discussed in Chapter XIV, Section E. 166. 25 U.S.C. § 1903(1). See Eastern Band of Cherokee Indians v. Larch, 872 F.2d 66 (4th Cir. 1989); Garcia v. Gutierrez, 217 P.3d 591, 594 n.1 (N.M. 2009). 167. 25 U.S.C. § 1903(1). 168. See Matter of Adoption of T.A.W., 383 P.3d 492, 501 (Wash. 2016); In re N.B., 199 P.3d 16, 18–​19 (Colo. App. 2007); In re Adoption of R.L.A., 147 P.3d 306, 308–​09 (Okla. Civ. App. 2006). 169. See In re Guardianship of Eliza W., 938 N.W.2d 307, 313 (Neb. 2020); Matter of Guardianship of I.L.J.E., 921 N.W.2d 463 (S.D. 2018); Jude M. v. Alaska Dept. of Health and Soc. Servs, 394 P.3d 543, 554–​58 (Alaska 2017). 170. See cases cited in the previous footnote. 171. In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982); Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996); In re Bridget R., 49 Cal. Rptr. 2d 507 (Cal. App. 1996), cert. denied, 519 U.S. 1060 (1997). 172. In re N.B., 199 P.3d 16, 22 (Colo. App. 2007); In re Baby Boy C., 27 A.D. 3d 34, 47–​48 (N.Y. App. Div. 2005); In re Alicia S., 65 Cal. App. 4th 79, 82 (Cal. App. 1998); In re D.A.C., 933 P.2d 993, 999 (Utah App. 1997). 173. See State ex rel. Delaware Tribe v. Nowicki-​ Eldridge, 888 S.E.2d 866 (W.Va. 2023) (abandoning the exception); Matter of Adoption of T.A.W., 383 P.3d 492, 507 (Wash. 2016) (same); Cherokee Nation v. Nomura, 160 P.3d 967 (Okla. 2007) (discussing Oklahoma’s remedial legislation). 174. “[T]‌here is not an ‘existing Indian family’ exception to ICWA.” 2016 Regulations, supra note 38, 81 Fed. Reg. at 38815; see also id. at 38801. 175. 25 U.S.C. §§ 1911(a). 176. See Watso v. Lourey, 929 F.3d 1024, 1027 (8th Cir. 2019); Doe v. Mann, 415 F.3d 1038, 1063 n.32 (9th Cir. 2005), cert. denied, 547 U.S. 1111 (2006); Doe v. Doe, 349 P.3d 1205, 1209–​12 (Idaho 2015). 177. Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976).

The Indian Child Welfare Act  459 178. The Wisconsin Attorney General has taken this position. See 70 Op. Att’y Gen. Wis. 237 (1981). See also Robert T. Anderson, Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, 87 Wash. L. Rev. 915, 934, n.112 (2012). 179. See Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 560–​62 (9th Cir. 1991); In re C.R.H., 29 P.3d 849, 852–​53 (Alaska 2001). 180. In re M.A., 137 Cal. App. 4th 567 (2006); C.R.H., 29 P.3d 839; Venetie, 944 F.2d 548. Moreover, state agencies even in P.L. 280 states may transfer custody cases directly to a tribal court. Watso, 929 F.3d at 1027. 181. See Venetie, 944 F.2d 548; Kaltag Tribal Council v. Jackson, 344 Fed. Appx. 324 (9th Cir. 2009), cert. denied, 562 U.S. 827 (2010). 182. Simmonds v. Parks, 329 P.3d 995, 1011 (Alaska 2014). 183. See Atwood, supra note 1, at 193. 184. See Gordon E. Limb, Toni Chance, & Eddie F. Brown, An Empirical Examination of the Indian Child Welfare Act and Its Impact on Cultural and Familial Preservation for American Indian Children, 28 Child Abuse & Neglect 1279, 1285 (2004). 185. See Amicus Brief of Casey Family Programs filed in Haaland v. Bracken, (U.S. No. 21-​376) at 16; Atwood, supra note 1, at 190–​91; 2016 Regulations, supra note 38, 81 Fed. Reg. 38,778 at 38,784. 186. See Atwood, supra note 1, at. at 195–​98. 187. See id. at 198–​99. 188. Pub. L. 110-​351, 110th Cong., 2d Sess. (2008). 189. The Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-​272, 94 Stat. 500, created Title IV-​E of the Social Security Act, which provides funds for foster care and adoption assistance programs and allows tribes to contract directly with the federal government, and not the state, to obtain these funds. 190. See Atwood, supra note 1, at 257–​59. 191. Kathryn E. Fort, After Brackeen: Funding Tribal Systems, 56 Family L.Q. (2022–​23) at 192, available at https://​tur​tlet​alk.files.wordpr​ess.com/​2023/​03/​kath​ryn-​e.-​fort-​ arti​cle-​final-​flq-​v56​n02-​winte​r23-​des​ign-​cc23-​3.pdf. 192. Justin L. v. Superior Court, 165 Cal. App. 4th 1406, 1410 (Cal. App. 2008). 193. See Christine Metteer, Hard Cases Making Bad Law: The Need for Revision of the Indian Child Welfare Act, 38 Santa Clara L. Rev. 419 (1998); Lorie M. Graham, Reparations and the Indian Child Welfare Act, 25 Legal Studies Forum 619 (2001); Atwood, supra note 1, at 195–​98. For examples of controversial decisions, see In re Child of T.T.B. & G.W., 724 N.W.2d 300, 309–​11 (Minn. 2006) (Page, J., dissenting); In re Interest of Brittany C., 693 N.W.2d 592 (Neb. App. 2005). 194. Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749, 765–​69 (D.S.D. 2015), reversed on other grounds, 904 F.3d 603 (8th Cir. 2018), cert. denied, 140 S. Ct. 105 (2019). 195. ICWA Compliance Task Force Report to the California Attorney General’s Bureau of Children’s Justice, at vi (2017), available at https://​the​acad​emy.sdsu.edu/​wp-​cont​ent/​ uplo​ads/​2015/​06/​icwa-​com​plia​nce-​task-​force-​final-​rep​ort-​2017.pdf. 196. Amicus Brief for Casey Family Programs, Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013) No. 12-​399 at 2–​3.

XVII Judicial Review This chapter is designed to help people obtain a remedy from a court when their rights have been violated by tribal, state, or federal officials. An important principle to know at the outset is that the tribal, state, and federal governments are protected against most types of lawsuits as a result of the doctrine of sovereign immunity: a doctrine created by the courts of England centuries ago to apply in England and later adopted by the U.S. Supreme Court to apply in the United States. Essentially, the doctrine provides that a government may not be sued without its express consent. This protects the government treasury from suffering a loss of funds needed to provide services for the entire society, safeguarding the integrity of the government and protecting all persons dependent on it.1 The doctrine, however, has the negative effect of leaving innocent victims of government abuse or negligence without a judicial remedy. The Supreme Court has held that the tribal,2 state,3 and federal4 governments enjoy sovereign immunity. As a result, unless this immunity has been waived, any lawsuit filed against the government must be dismissed by the court.5 Congress has the authority to waive the federal government’s immunity by passing a law consenting to suit.6 Congress can also pass laws waiving the immunity of a state7 or tribal8 government, but unless it does, those governments may be sued only if they consent to be sued.

A.  SUITS AGAINST A TRIBE As the Supreme Court confirmed in 2014, “the doctrine of tribal immunity [is] settled law.”9 An Indian tribe may be sued only if the tribe has consented to the suit or Congress has waived the tribe’s sovereign immunity with respect to that action.10 If Congress or the tribe wants to waive tribal immunity, it must do so clearly and expressly, otherwise a court must conclude that a waiver has not occurred.11 In technical terms, where a waiver has not occurred, the court lacks “subject matter jurisdiction” to hear the case.12 The Rights of Indians and Tribes. Fifth Edition. Stephen L. Pevar, Oxford University Press. © Stephen L. Pevar 2024. DOI: 10.1093/​oso/​9780190077556.003.0017

462  The Rights of Indians and Tribes Sovereign immunity is just as important to an Indian tribe as it is to the state and federal governments. It protects the integrity of the tribe, its ability to function, and its financial health. Tribal immunity from suit “is a necessary corollary to Indian sovereignty and self-​governance.”13 In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998),14 the Supreme Court held that an Indian tribe was entitled to immunity even for actions taken by the tribe off the reservation and which involved a commercial contract. Thus, Indian tribes enjoy sovereign immunity for both governmental and commercial activities, whether conducted on or off the reservation, unless Congress or the tribe has consented to the suit.15 Indian tribes, as explained in Chapter VII, are subject to certain types of state regulation. Yet, as a result of a tribe’s sovereign immunity, a state may have a right to regulate a tribe but not have a judicial remedy if the tribe refuses to comply.16 For instance, an Indian tribe must collect state sales taxes when it sells certain goods to a non-​Indian, but if the tribe refuses to collect those taxes, the state cannot sue the tribe to recover the lost revenue due to the tribe’s sovereign immunity.17 As the Supreme Court has noted, “There is a difference between the right to demand compliance with state laws and the means available to enforce them.”18 Congress has passed several laws that waive tribal immunity in specific circumstances. For example, Congress authorized the Navajo and Hopi tribes to sue one another in federal court to resolve a property dispute between them.19 Congress also authorized the filing of lawsuits against tribal governments concerning hazardous waste disposal.20 The Safe Drinking Water Act has been held to waive tribal immunity for certain violations of that law.21 The Federal Debt Collection Procedure Act of 1990 authorizes suits to be filed against most employers, including Indian tribes, to compel them to turn over money owed to a creditor by a debtor that is in the employer’s possession, such as money from an employee’s paycheck.22 The Indian Gaming Regulatory Act of 1988 expressly authorizes each state that has a gaming compact with an Indian tribe to file suit against that tribe to halt a gambling activity that violates the compact.23 The Bankruptcy Code, which Congress passed to facilitate bankruptcy proceedings, authorizes debtors to obtain a court order against a government, including an Indian tribe, to prevent that government from taking money from the debtor before those funds can be dispersed through bankruptcy.24 Some federal laws, including the Indian Self-​Determination and Education Assistance Act of 1975 (ISDEAA), state that tribal sovereign immunity has not been waived with respect to

Judicial Review  463 the programs created by those laws.25 This means, for instance, that even if a tribe violates someone’s rights while operating an ISDEAA program, the tribe cannot be sued without its consent. Congress has waived tribal sovereign immunity in very few situations. As a result, Indian tribes are immune from most types of lawsuits unless they have consented to be sued. Citing tribal sovereign immunity, courts have dismissed lawsuits that sought to challenge tribal membership requirements,26 a tribal zoning law,27 and a tribal hunting and fishing regulation,28 as well as suits that sought to recover a debt29 or real estate taxes allegedly owed by a tribe,30 to enforce a tribal lease,31 to determine the ownership of land in which the tribe has an interest,32 to seize tribal assets,33 to challenge tribal election procedures or election results,34 to collect state taxes allegedly owed by a tribe,35 and to recover workmen’s compensation from a tribe.36 Many types of suits seeking damages against a tribe have also been dismissed, including those based on injuries suffered by patrons of a tribal casino,37 a tribe’s alleged copyright infringement,38 an alleged violation of the Fair and Accurate Credit Transaction Act,39 an alleged violation of federal anti-​trust laws,40 an alleged violation of the Age Discrimination in Employment Act,41 for allegedly serving too much alcohol to a patron who then caused an automobile accident,42 an alleged fraudulent inducement to sign a contract,43 and alleged civil rights violations.44 Courts have rejected arguments that only federally recognized tribes are entitled to claim sovereign immunity,45 that a state government may waive a tribe’s immunity,46 that tribal officials may be sued under a federal law (42 U.S.C. Section 1983) that authorizes suits against state officials,47 that tribes waiving immunity for some claims thereby waive immunity for other claims,48 that tribal immunity does not apply to lawsuits brought by nonmembers,49 and that the acceptance of federal funds by a tribe waives the tribe’s immunity from any suit challenging the manner in which the tribe spends those funds.50 Indian tribes may raise a defense of sovereign immunity at any time during the litigation.51 If the court denies the tribe’s motion to dismiss the lawsuit, the tribe may appeal that ruling immediately and need not wait until the end of case.52 A court may not adjudicate a claim unless all necessary (“indispensable”) parties are joined in the action.53 Many lawsuits filed against multiple parties have been dismissed where one of those parties was an Indian tribe whose sovereign immunity had not been waived. Examples include lawsuits that sought

464  The Rights of Indians and Tribes to adjudicate rights in a mineral lease,54 land,55 or water56 in which a tribe had an interest, challenged the validity of a ruling by the Department of the Interior allocating fish resources to multiple tribes,57 sought to determine whether actions taken by federal agencies regarding a tribally owned mine violated environmental protection laws,58 and sought to resolve a contract dispute involving an Indian tribe and other parties.59 Sometimes the plaintiffs in these cases have been Indian tribes suing another tribe to adjudicate rights in a shared resource,60 or tribal members suing their own tribe.61 The dismissal of an indispensable party usually requires the dismissal of the entire case, thus preventing an injured party from obtaining a remedy from the court. As one court recently stated in that situation, “not all problems have judicial solutions.”62 In lawsuits in which a tribe’s interests will not be substantially affected by the outcome63 or when its interests are being adequately represented by the United States which is a party to the case,64 the tribe is not an indispensable party and the case may proceed. Merely because the United States is a party, however, does not mean that it is representing, or can adequately represent, an absent tribe’s interests. In some lawsuits, the United States takes a position contrary to that taken by an affected tribe65 or is representing multiple tribes with competing interests,66 and in those situations each tribe could be an indispensable party.

Do tribal corporations and other commercial entities share the tribe’s immunity from suit?

As illustrated by Kiowa Tribe, Indian tribes may create entities that engage in commercial activities both on and off the reservation that enjoy the tribe’s immunity from suit.67 Not every tribal commercial entity, however, shares the tribe’s sovereign immunity: the entity must be an “arm of the tribe.”68 Courts consider a number of factors in determining whether a commercial entity is an “arm of the tribe,” such as the manner in which the entity was created and its purpose, whether the entity is funded and controlled primarily by the tribe, whether the entity manages or uses tribal resources, whether the tribe has the authority to hire and fire the entity’s employees, and whether the tribe would have to pay any court award against the entity.69 For example, tribal housing authorities that are owned, operated, controlled, and managed by the tribe possess the tribe’s immunity unless they consent to be sued,70 and the same is true for a tribal energy corporation wholly owned and operated by the tribe,71 and for a tribal health center created and operated by the tribe.72 Most tribal casinos are owned, funded,

Judicial Review  465 managed, and operated by the tribe, and any liability incurred by the casino is paid by the tribe. Those casinos are “arms of the tribe.”73 On the other hand, tribal casinos owned by a private party and primarily managed by them, and where money judgments against the casino would be paid by the private party under that party’s contract with the tribe, do not share the tribe’s sovereign immunity.74 Immunity also does not extend to a business owned by a tribal member and not by the tribe,75 nor does it extend to a tribal business that incorporated itself under state law.76 Corporate charters, both tribal and non-​tribal, often contain a “sue and be sued” clause, which authorizes the corporation to file suit and to be sued. Most courts addressing the issue have held that the presence of a “sue and be sued” clause in a tribal corporate charter does not provide the clear consent required to waive the tribe’s sovereign immunity unless specific language to that effect is present.77 Many commercial contracts contain an arbitration clause, committing the parties to resolve contract disputes through arbitration rather than litigation. The Supreme Court has held that when a tribal corporation enters into a contract that contains an arbitration clause, the corporation waives its immunity from any lawsuit seeking to enforce the decision reached by the arbiter.78 However, suit may be filed only against the corporation; an arbitration clause does not waive the tribe’s immunity unless the waiver expressly so states.79

May tribal employees be sued if they violate someone’s rights?

As with all governments, Indian tribes rely on elected and appointed employees to implement the government’s authority. There are two types of lawsuits that someone might wish to file against tribal employees: lawsuits seeking damages for an injury that has already occurred and those seeking an injunction to halt or prevent ongoing or future harm . With respect to suits for damages, the general rule is that tribal employees may be held liable for their own wrongdoing when sued in their individual capacities.80 For instance, in Lewis v. Clarke (2017),81 the Supreme Court held that a tribal employee whose negligence caused a car accident was not protected by the tribe’s immunity and may be sued in the same manner as anyone else may be sued who caused an accident, even if the employee was performing an official tribal duty at the time of the incident.82 Tribal employees who violate someone’s civil rights may also be sued individually for damages.83

466  The Rights of Indians and Tribes Lawsuits seeking an injunction to halt ongoing harm or to prevent future harm “ordinarily may proceed against tribal officers sued in their official capacities.”84 In no situation, however, whether a suit for damages or for injunctive relief, can the action of a tribal employee result in the tribe losing its immunity unless the tribe has consented.85 If the remedy being sought against the employee is one that only the tribe could provide—​in other words, the tribe is “the real party in interest”—​then the tribe’s sovereign immunity prevents the court from granting that remedy even if the lawsuit only names the employee as a defendant.86 Sovereign immunity applies to any lawsuit “when the relief requested would, in effect, require the sovereign’s specific performance.”87 In one recent case, a lawsuit seeking an injunction against tribal officials to prevent them from constructing a tribal casino was barred by tribal sovereign immunity because the real party in interest was the tribe, which would have to halt the construction of its casino.88 Courts must engage in a “remedy-​focused analysis,” and if the remedy being sought would require an action by the tribe, the tribe may assert its sovereign immunity.89

Does sovereign immunity protect a tribe against suits by state governments?

Yes. State governments have no more right to sue an Indian tribe than any other party does.90 Tribal sovereign immunity, the Supreme Court has said, “is a matter of federal law and is not subject to diminution by the states.”91 This is true even for those states that received certain authority over reservation Indians under Public Law 83-​280 (discussed in Chapter VII), as nothing in that law waives tribal sovereign immunity from suit.92

Does sovereign immunity protect a tribe against suit by the federal government?

No. Indian tribes have no immunity from suit by the federal government,93 including suit by a federal agency seeking to enforce federal law.94

Does the tribe waive its immunity by filing a lawsuit?

By filing a lawsuit, a tribe does not automatically open itself to all claims that could be filed against the tribe by that defendant.95 “The perceived inequity” in that situation, the Supreme Court has stated, “must be accepted in view of the overriding federal and tribal interests” in preserving the tribe’s sovereign immunity.96 However, once a tribe raises a claim, that claim may be

Judicial Review  467 fully adjudicated even if it results in a damages award against the tribe. For instance, if a tribe seeks damages against a supplier for breach of contract, the supplier may file a counterclaim against the tribe arguing that the supplier fulfilled the contract and deserves to be paid.97

What kinds of lawsuits are authorized by the Indian Civil Rights Act of 1968?

This subject is discussed in detail in Chapter XIII. To briefly summarize, the Indian Civil Rights Act of 196898 (ICRA) confers numerous civil rights on all persons subject to the jurisdiction of an Indian tribe. The rights conferred by the ICRA apply in many contexts, but the Act provides for a federal remedy in only one of them: when the victim of an ICRA violation is being held in tribal custody. In that situation, the ICRA authorizes the detainee to file suit in federal court against the person holding the detainee (who usually will be the administrator of the tribal jail).99 The ICRA does not waive the tribe’s immunity from suit, the Supreme Court has held; a suit can be filed in federal court only against the custodian, not against the tribe.100 Many tribes, though, have authorized their own courts to enforce the ICRA in a broader range of cases, including lawsuits seeking a remedy against the tribe.101

In what circumstances have Indian tribes waived their sovereign immunity from suit? What are the negative consequences of asserting immunity?

Sovereign immunity protects a tribe’s governmental integrity and financial health. Asserting sovereign immunity, however, has negative consequences because it shields the tribe from suit even when the tribe is clearly in the wrong and an innocent party has been injured.102 When gaming tribes, for instance, invite customers to their casinos but claim sovereign immunity when a customer is injured on the premises due to the negligence of a tribal employee, members of the general public often respond with anger and resentment.103 Such negative public opinion could prompt Congress to pass a law that waives tribal immunity from a wide range of lawsuits. Tribes can avoid, or at least limit, these criticisms by waiving their immunity in more situations than they do currently.104 They may make those waivers as broad or as narrow as they choose.105 A tribe may consent to suit only in tribal court, only for certain types of claims, only up to a certain amount of damages, or only for declaratory and injunctive relief and not damages.106 The Mashantucket Pequot Tribe, for instance, has waived

468  The Rights of Indians and Tribes its immunity from suit for damages based on negligent acts committed by employees of its gaming enterprise, but only if the case is filed in tribal court.107 Tribes can purchase insurance policies that protect against significant loss from a court judgment against them. Tribes also have the right to decide which tribal officials have the authority to waive the tribe’s immunity.108 Tribes are often required to waive their immunity in commercial contracts in order to obtain loans, goods, or services.109 A bank, for example, would likely refuse to lend money to a tribe unless the tribe agreed to waive its immunity with respect to that loan: otherwise the bank would have no judicial recourse if the tribe failed to repay the loan.110 The federal and state governments have consented to be sued in more situations than most tribes have, and unfavorable public opinion against tribes is growing. According to Professor Charles Wilkinson, the broad assertion of tribal immunity is “a fundamental barrier to a just legal process in Indian country,” and he urged tribes to expand their waivers and avoid the risk of a congressional backlash.111 This way, tribes—​not Congress—​get to choose when tribal immunity will be waived and in which courts these cases can be filed.112 In 2014, the Supreme Court upheld tribal sovereign immunity by a bare 5–​4 majority and warned that if tribes persisted in shielding themselves from most lawsuits, the Court could find that tribal employees were liable for damages in certain cases.113 Indeed, three years later, the Court held that tribal immunity did not require the dismissal of a lawsuit seeking damages from a tribal employee based on injuries he allegedly caused while driving a tribal vehicle negligently.114 Courts may continue to narrow the scope of tribal sovereign immunity if tribes do not narrow it themselves.

B.  SUITS AGAINST A STATE Indians and tribes have numerous federal rights. Due to jurisdictional statutes that Congress has passed, many violations of these rights by state officials can be adjudicated in federal court. The four most important of these jurisdictional statutes are Title 28 of the U.S. Code Sections 1331, 1362, 1353, and 1343(3). Before discussing these statutes, an important principle must be explained: state sovereign immunity under the Eleventh Amendment to the Constitution. These four statutes authorize suits to be filed in federal court, but they do not prevent the state from having those suits dismissed on the grounds of sovereign immunity.

Judicial Review  469 The Eleventh Amendment provides that the “judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” The Supreme Court has given a broad interpretation to the Eleventh Amendment, holding that a federal court may not enter a judgment against a state unless Congress has abrogated the state’s sovereign immunity or the state has consented to suit with respect to that action.115 That rule applies to lawsuits filed against the state by one of its own citizens,116 as well as by an Indian tribe.117 The Eleventh Amendment protects state agencies against being sued, too,118 but does not protect county governments or other political subdivisions of a state.119 Even lawsuits alleging violations of the Constitution by the state may not be adjudicated in federal court unless a waiver of immunity has occurred, regardless of whether the suit seeks damages120 or an injunction.121 There is a way, however, to stop state officials from violating federal law in certain situations even where a suit against the state is barred by sovereign immunity. In Ex parte Young (1908),122 the Supreme Court held that the Eleventh Amendment does not prevent a federal court from issuing an injunction against a state official to prevent that official from violating federal law. As the Court explained in Ex parte Young, a state “has no power to impart” on its employees “any immunity from responsibility” for acts that violate federal law.123 State employees, the Court said, who violate federal law cannot possibly be acting under the authority of the state because the state can never authorize such misconduct, and thus a lawsuit against such an employee is not barred by the Eleventh Amendment. This is known as the “Ex parte Young exception” to state sovereign immunity. As a result of the Ex parte Young exception, federal courts may grant injunctive relief against state officials in a wide range of situations where harm is ongoing or is likely to occur soon.124 Indian tribes, for instance, have obtained an order enjoining state officials from violating tribal treaty fishing rights125 and from seeking to collect state taxes that violated federal law.126 However, when “the real party in interest” is the state itself and not the officers being sued, the Young exception does not apply and the lawsuit is barred by the Eleventh Amendment. That situation occurs, for example, when a victory for the plaintiff would result in the payment of money from the state treasury127 or would cause the state to lose an exclusive interest in land.128 In both situations, the real party in interest—​the party that would actually suffer the burden—​would be the state and not the employee

470  The Rights of Indians and Tribes being sued. Therefore, the state can assert its immunity under the Eleventh Amendment.129 A waiver of the state’s Eleventh Amendment immunity will not be deemed to have occurred unless the consent is clear and explicit.130 Moreover, a state’s consent to suit in state court does not automatically operate as consent to suit in federal court131 or in tribal court.132 Congress has the power to waive state sovereign immunity, but that power is limited. It was initially believed that the Commerce Clause of the Constitution gave Congress broad authority to waive state immunity. In Seminole Tribe of Florida v. Florida (1996),133 however, the Supreme Court held that the Commerce Clause does not authorize Congress to waive a state’s Eleventh Amendment immunity. It now appears that Congress has the power to waive state sovereign immunity only for those federal interests covered by the Fourteenth Amendment (which protects against certain types of discrimination) and those covered by the Fifteenth Amendment (which protects the right to vote).134 Otherwise, a state can be sued only if it consents to be sued.

What jurisdiction is conferred by Section 1331?

Title 28 of the United States Code Section 1331 confers jurisdiction on the federal courts over any civil action that “arises under the Constitution, laws or treaties of the United States.” Indians and tribes have many rights arising under the Constitution, laws, and treaties of the United States, such as land, water, and hunting and fishing rights.135 Therefore, Section 1331 is an important statute for Indians and tribes. Section 1331, however, does not waive state sovereign immunity, and a lawsuit filed by a tribe against a state must be dismissed unless Congress or the state has waived the state’s immunity in that situation.136 To avoid a sovereign immunity defense, Indians and tribes should sue state officials for injunctive relief under the Young exception whenever that is an option.137

What jurisdiction is conferred by Section 1362?

Section 1362 authorizes federal courts to hear “all civil actions brought by an Indian tribe or band . . . wherein the matter in controversy arises under the Constitution, laws or treaties of the United States.” Using Section 1362, tribes have filed suit in their own names to challenge state sales taxes that violated their federal rights,138 protected an interest in land conferred by federal treaties and statutes,139 and protected a tribe’s interest in a gaming contract with the state.140

Judicial Review  471 When Section 1362 was passed in 1966, Section 1331 was available only if the matter in controversy exceeded $10,000, whereas Section 1362 has no such restriction. Congress later eliminated the amount-​in-​controversy requirement in Section 1331. As a result, Sections 1331 and 1362 largely overlap today, and a tribe can sue under either one or both.141 In any event, federal court jurisdiction under Section 1362 is available only when the tribe is seeking to protect a federal right. Thus, a suit seeking to enforce rights entirely under state law, such as a suit to enforce a private contract, may not be filed in federal court under Section 1362 (or 1331).142 In Blatchford v. Native Village of Noatak (1991),143 the Supreme Court held that Section 1362 does not waive a state’s sovereign immunity from suit. Section 1362, like 1331, authorizes a lawsuit to be commenced in federal court, but the state may still raise an Eleventh Amendment defense. Here again, the tribe can seek to avoid an Eleventh Amendment defense by using the Young exception and suing state officials in their official capacities for injunctive relief.144

What jurisdiction is conferred by Section 1353?

Under the General Allotment Act of 1887,145 as discussed in Chapter I, thousands of Indians were issued their own allotments of trust land. Section 1353 assists these Indians in protecting their right to, and interest in, their trust allotments. Section 1353 authorizes federal courts to hear cases filed by Indians seeking to resolve a dispute involving “any allotment of land under any Act of Congress or treaty.”146 Section 1353, for example, allows Indians who lease their allotments to a private party to file a damages action in federal court if that party violates the lease.147 In addition, Section 1353 permits Indians to sue state officials who interfere with the use or enjoyment of their allotment.148

What jurisdiction is conferred by Section 1343(3)?

Soon after the end of the Civil War, Congress enacted a civil rights act (42 U.S.C. Section 1983) that prohibits state officials from subjecting “any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws” of the United States. Its jurisdictional counterpart—​the statute that authorizes federal courts to adjudicate violations of Section 1983—​is Title 28, U.S. Code, Section 1343(3). Together, these two laws allow people to sue state employees for violations of federal rights,149 but nothing in Section 1983 or Section 1343(3) allows

472  The Rights of Indians and Tribes suit against the state itself.150 The court may issue an injunction under the Ex parte Young doctrine against any employee engaging in an activity in violation of federal law and may also award money damages against that employee—​but not against the state—​for any injuries that were caused to the plaintiff.151 State officials may be held personally liable in damages, for instance, for violating a tribal member’s treaty fishing rights152 or for using excessive force in making an arrest.153 When necessary to protect a tribe’s or tribal member’s federal rights, a federal court can order state officials to undertake activities otherwise prohibited by state law.154 Municipal governments (cities and towns) and their employees may be sued under Section 1983 in the same way that state employees can.155 If tribal police officers are cross-​deputized and are exercising state authority at the time they violate a person’s federal rights, they may be sued under Section 1983.156 In Nevada v. Hicks (2001),157 the Supreme Court held that tribal courts may not adjudicate cases brought under Section 1983, although tribal members may file such cases (as everyone else can) in a state or federal court. Section 1983 uses the terms person and citizen in identifying who may file suit. In Inyo County v. Paiute-​Shoshone Indians of the Bishop Community (2003),158 the Supreme Court held that an Indian tribe is not a “person” or “citizen” for purposes of Section 1983 when it is seeking to enforce one of its sovereign rights.159 If a tribe is seeking to enforce the rights of tribal members, it may file suit under Section 1983,160 but not when it seeks to enforce its own rights.

May the federal government sue a state on behalf of an Indian or a tribe?

Yes. As explained in Chapter III, the United States is the legal trustee of many Indian and tribal interests. As trustee, the federal government may file suit against state governments and their officials on behalf of Indians and tribes.161 The Eleventh Amendment provides the state with no shield against lawsuits filed by the federal government, the Supreme Court has held.162 The United States, for instance, may sue a state to recover taxes that Indians and tribes illegally paid a state, something that the Eleventh Amendment prevents Indians and tribes from doing.163 A lawsuit filed by the United States does not require the consent of the Indian or tribe on whose behalf it is brought,164 although in those situations the Indian or tribe usually has a right to intervene as a party in the case.165 If the Indian or tribe disagrees with the position taken by the federal

Judicial Review  473 government, the court must accept the government’s position as controlling if the lawsuit involves trust property (property in which title is held by the United States in trust for an Indian or tribe).166 In fact, when trust property is involved, the federal government may sue a state even after the tribe has already sued that state and lost. This is because a tribe sues to protect its possessory interest in trust property, whereas the federal government may file a separate lawsuit to protect its ownership interest.167 A federal law appears to require the federal government to file suit on behalf of an Indian tribe whenever the tribe requests it.168 Courts have held, however, that the United States need not file suit unless a treaty, statute, or agreement expressly imposes that duty.169

C.  SUITS AGAINST THE UNITED STATES Indians and tribes have acquired federal rights through treaties, statutes, executive orders, regulations, and agreements. Many of these rights have been violated at one time or another by Congress or by federal agencies and their officials, and violations continue to occur. The United States has sovereign immunity. Victims of government misconduct have no judicial remedy for the violation of their rights unless Congress has expressly waived the government’s immunity in that situation.170 Moreover, “it rests with Congress to determine not only whether the United States may be sued, but in what courts the suit may be brought.”171 Congress has consented to a wide variety of lawsuits against the United States. The five most important statutes consenting to certain suits against the United States are the following: 1. The Federal Tort Claims Act, which allows certain suits for money damages based on the misconduct of government employees; 2. The Tucker Act, which allows certain suits for money damages based on a breach of treaty, contract, or other agreement; 3. The Indian Claims Commission Act, which from 1946 until its expiration in 1951 authorized tribes to obtain compensation for the loss of certain property; 4. The Administrative Procedure Act, which authorizes in certain situations the issuance of nonmonetary remedies, such as injunctive relief, when federal agencies violate a federal statute; and

474  The Rights of Indians and Tribes 5. The Quiet Title Act, which authorizes suits to resolve the ownership of real property in which the federal government claims an interest.

Under what circumstances may the United States be sued for money damages?

Money damages may be awarded against the United States under the first three jurisdictional statutes listed above. Each one applies in a different situation. The Federal Tort Claims Act172 (FTCA) provides a remedy for certain negligent acts (“torts”) committed by federal employees during the course and scope of their employment. The FTCA consents to suit for: loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Thus, to recover damages under the FTCA, the plaintiff must prove that the person who committed the injury was employed by the federal government, was acting within the scope of that person’s employment at the time of the incident, and that the act would be a tort (a wrongful act) under the law of the state in which the act occurred. The FTCA does not authorize suits against the United States for acts taken by federal employees acting outside the scope of their employment.173 (Arguably, every wrongful act is not within the scope of employment because the employer would never authorize such misconduct. But if the act was performed during the course of employment and incidental to the job or with apparent authority, it is deemed “within the scope” even if the act was performed improperly.)174 If the suit is covered by the FTCA, the United States is substituted for the employee as the defendant, and the employee’s agency pays any money awarded by the judge—​there are no jury trials in FTCA cases. FTCA claims must first be filed with the federal agency responsible for the harm; if the agency does not pay the claim within 180 days, a lawsuit may then be filed in federal court against the United States.175 A claimant has two years from the date the injury occurred to file a claim with the agency.176 The FTCA requires a plaintiff to first exhaust administrative remedies before filing an FTCA lawsuit in federal court.177

Judicial Review  475 FTCA suits have been filed against federal officials and their agencies for injuries sustained by an Indian student at a federal boarding school due to the negligence of school employees,178 for the wrongful removal of property from Indian land by federal agents,179 for damage caused to Indian property,180 for providing inadequate medical care at an Indian Health Service hospital,181 for unsafe working conditions that resulted in injury,182 for wrongful interference with an Indian’s farming operations,183 and for failing to adequately maintain an irrigation system that caused the flooding of Indian land.184 The Indian Self-​Determination and Education Assistance Act of 1975 (ISDEA),185 under which tribes may operate federally funded programs on the reservation pursuant to federal contracts (“638 contracts”), provides that tribal employees performing services under these contracts are federal employees when acting within the scope of their employment.186 As a result, the federal government may be sued under the FTCA for the actions of these employees.187 For instance, persons injured by tribal police officers whose departments receive ISDEA funding from the Bureau of Indian Affairs (BIA) and who are cross-​deputized as BIA officers may recover damages from the BIA under the FTCA if, at the time of the incident in question, the officers were acting within the scope of their federal employment.188 Officers acting within the scope of their tribal employment create no FTCA liability even if they are cross-​deputized.189 The FTCA contains an exception provision, which exempts various types of injuries from coverage.190 Where an exception applies, the government has not waived its immunity and the court would lack jurisdiction to hear the case under the FTCA.191 Exceptions include injuries caused by war or by a breach of contract,192 or by an intentional assault, battery, or false imprisonment, unless those activities were undertaken by an investigative or law enforcement officer.193 Also exempted from coverage are “discretionary functions,” a broad exception that makes the federal government liable only when a statute, regulation, or policy requires an employee to undertake a certain activity and the employee then fails to undertake it.194 The federal government is not liable when the employee is permitted by law to exercise independent judgment, that is, to make a choice.195 This exception is not easy to apply, and courts have reached seemingly inconsistent decisions in determining which actions are discretionary and which are mandatory.196 Most decisions by law enforcement officers to arrest, restrain, or use force on a person are viewed as discretionary decisions for which the government cannot be held

476  The Rights of Indians and Tribes liable under the FTCA,197 unless the officer’s conduct violated that person’s constitutional rights (because no officer has the discretion to violate the Constitution)198 or violated a federal statute, regulation, or policy (including an agency policy).199 Where an employee fails to act in a manner required by law, or acts in a manner prohibited by law, the government is liable under the FTCA.200 But where there are competing policy considerations and an employee choses to fulfill one rather than the other, that discretionary act does not render the government liable.201 In most instances, decisions regarding the hiring, firing, training, or supervising of employees are discretionary functions unless the relevant statutes or regulations require a specific action that was not taken.202 Another statute that authorizes certain money claims against the federal government is the Tucker Act.203 Whereas the FTCA allows recovery for torts, the Tucker Act allows recovery for a breach of contract or other express or implied obligation by the government. The Tucker Act waives the federal government’s sovereign immunity with respect to any action “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States.”204 A separate federal statute known as the Indian Tucker Act extends the Tucker Act to “any tribe, band, or other identifiable group of Indians” and permits suits based on the violation of a treaty.205 An injured party may file a claim against the United States under the Tucker Act either in the Court of Federal Claims206 (known until 1993 as the Court of Claims) or a federal district court, although the government’s liability in cases filed in district court is limited to $10,000.207 Appeals from the Court of Federal Claims are made to the Court of Appeals for the Federal Circuit, whereas appeals from a federal district court are made to the court of appeals for the circuit in which the district court is located. The Tucker Act requires that cases be filed within six years from the date the injury occurred.208 The Tucker Act does not create a substantive right to damages. It only allows a suit to be filed if a right to damages is created by some other source, such as a treaty, statute, contract, or regulation.209 This other source need not expressly confer a right to recover damages, but such a right must be a reasonable inference.210 As the Supreme Court explained in United States v. Mitchell (1983),211 if a statute delegates to a federal agency comprehensive supervision and pervasive control over the management of tribal property, the agency then has an implied obligation to manage that property consistent

Judicial Review  477 with the government’s trust duties, and if the agency breaches those duties, it may be held liable for damages under the Tucker Act.212 On the other hand, if a statute merely requires the federal government to offer advice or information to a tribe213 or determine whether a tribe is eligible to participate in a program,214 the statute does not create a right to damages even if the government underperforms its duties. To state a claim under the Tucker Act, then, a claimant must identify a substantive source of law that establishes a specific fiduciary or other duty that “can fairly be interpreted as mandating compensation for damages sustained as a result of the breach.”215 That is, the statute or regulation that forms the basis of the lawsuit, the Supreme Court has stated, must be “money-​mandating,”216 although as commentators have noted, this standard is vague and difficult to apply.217 Pursuant to the Tucker Act, Indian tribes have recovered damages when federal officials mismanaged Indian trust resources placed by Congress under their supervision and control, such as timber, land, gravel, or money deposited in federal Indian accounts.218 But tribes have been denied damages in other situations when the government, although ignoring its trust responsibility, did not have comprehensive control over the tribe’s property by statute or regulation.219 In 1946, Congress passed the Indian Claims Commission Act (ICCA),220 which authorized any “identifiable group” of Indians to seek compensatory damages against the United States for the value of any land or other property conferred by a treaty that was later taken by the federal government through force, fraud, or mistake. The ICCA allowed recovery based on the federal government’s failure to engage in “fair and honorable dealings,” such as when the government removed tribal land promised in a treaty or purchased it below fair market value.221 Under the ICCA, tribes could obtain damages not only for the value of land that was taken but also for the value of the resources found on or under the land, such as timber, water, and minerals.222 The ICCA created the Indian Claims Commission (ICC) to resolve these tribal claims. Tribes had five years in which to file a claim,223 although this deadline was later extended for a few tribes. More than eight hundred claims were filed.224 The ICC was abolished by Congress in 1978 and its pending cases, approximately one hundred, were transferred to the United States Court of Claims (now the Court of Federal Claims). Under the ICCA, after all appeals are over and the decision is final, Congress appropriates any funds awarded to the tribe, and the Secretary of the Interior submits a plan to Congress for disbursing these “judgment proceeds.” Although Congress could be commended for finally giving tribes

478  The Rights of Indians and Tribes an opportunity in 1946 to collect compensation for their stolen land, most tribes would have much preferred to receive back their land, an option not offered to them.

May a lawsuit seeking money damages be filed directly against a federal official?

As explained earlier, a federal statute, 42 U.S.C. Section 1983, authorizes the filing of a lawsuit seeking damages against state officials who violated the plaintiff ’s constitutional rights. No statute has been passed by Congress allowing that type of suit to be filed against federal officials. The Supreme Court has created such a remedy on its own (known as a Bivens claim). The Court held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), that when federal officials violate someone’s constitutional rights, there is an implied right under federal law to sue these officials in their “individual capacity” for damages,225 although damages cannot be awarded unless the plaintiff shows that the constitutional rights at issue were “clearly established” at the time of the conduct.226 If a statute authorizes an award of damages in that situation, damages must be sought under that statute and not under the court’s implied powers.227

When may the federal government be sued for declaratory or injunctive relief?

Many disputes with the federal government concern activities that are ongoing or are planned to occur in the near future, and the relief sought is a declaration of rights and an injunction halting or preventing that activity. To illustrate, if the Army Corps of Engineers has just announced plans to construct a dam that would flood tribal land, the tribe would want to prevent the flooding, not wait until the injury has occurred and then seek damages.228 The statute that waives the federal government’s immunity for this type of nonmonetary remedy is the Administrative Procedure Act (APA).229 The APA allows suit to be filed in a federal court by persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The APA, the Supreme Court recently explained, is an “omnibus judicial-​review provision, which permits suit for violations of numerous statutes . . . that do not themselves include causes of action for judicial review.”230 The APA, however, is inapplicable if “(1) a statute precludes judicial review, or (2) agency action is committed to agency discretion by law.”231 Under the APA, a court may grant an injunction and/​or a declaratory judgment (that is, a declaration

Judicial Review  479 of a party’s rights). APA lawsuits may be heard in federal court pursuant to the jurisdictional statutes discussed earlier: 28 U.S.C. Section 1331 and (when suit is filed by a tribe) 28 U.S.C. Section 1362. The APA creates a “strong presumption” that each final decision of a federal agency is subject to court review.232 Agencies are subject to suit under the APA unless there is clear and convincing evidence that Congress intended to foreclose the availability of an APA remedy, such as when the statute on which the claim is based forbids review of the agency’s decision.233 Suits under the APA must be filed within six years of the agency action unless the claimant had no realistic way of learning that the adverse ruling had been made.234 The APA authorizes federal courts to overturn or invalidate any agency action found to be “arbitrary, capricious or otherwise not in accordance with law,” as well as to order an agency to undertake an action it unlawfully denied or delayed.235 Pursuant to the APA, federal courts have resolved lawsuits accusing the Secretary of the Interior of ignoring a legal duty to (1) regulate the leasing of Indian land;236 (2) regulate commerce on Indian reservations;237 (3) recognize the legal status of a tribal government;238 (4) rule on a tribe’s application for federal recognition;239 (5) distribute federal benefits to Indians;240 (6) approve oil and gas leases involving Indian mineral interests;241 (7) take land into trust for an Indian tribe;242 (8) review a tribe’s decision to disenroll a member where the tribe had consented to such review;243 (9) follow a required process before allowing a private party to conduct mining operations that threatened treaty fishing habitats;244 (10) approve private projects consistent with environmental protection laws;245 (11) properly manage Indian trust monies deposited in bank accounts that were under the Secretary’s control and supervision;246 (12) provide students in a school administered by the Bureau of Indian Education with a proper education;247 and (13) distribute funds to a tribe under a federal aid program.248 In Lincoln v. Vigil (1993),249 the Supreme Court held that when Congress allocates funds to a federal agency without directing that those funds must be spent on a particular program (a “lump sum” appropriation), a decision by the agency to discontinue a program funded through those general funds is not subject to review under the APA. Additionally, where Congress has declared that the remedy for a particular agency action may be obtained other than through the APA, a claimant is limited to that remedy and may not file suit under the APA.250

480  The Rights of Indians and Tribes Courts reviewing an agency decision under the APA may not overturn it unless the decision is arbitrary and capricious, even if the agency might have made a better decision.251 Agency decisions have a presumption of validity, and the challenger “bears the burden of persuasion” to demonstrate that the agency acted arbitrarily or capriciously.252 The agency, though, must carefully explain the basis for its decision and show that it properly considered all relevant factors; otherwise, the decision must be returned (“remanded”) to the agency for the development of an adequate factual record upon which the court could then undertake an appropriate review.253 The APA allows suit to be filed against a government agency to obtain an injunction. In 2015, the Supreme Court confirmed that federal courts, as part of their inherent authority, may also issue injunctions against federal officials to prevent them from violating federal law.254 As just noted, the judicial test in APA claims has been the “arbitrary and capricious” standard. In recent years, however, the Supreme Court has employed the test in Tucker Act cases—​whether the government violated or ignored a clear duty, thereby giving rise to a claim for damages—​in deciding APA cases, in which damages are not being sought. In 2023, for instance, the Court in Arizona v. Navajo Nation255 employed the Tucker Act test in holding that the Navajo Nation could not compel the United States to take affirmative steps to assist the Navajo to obtain needed water, even though no damages were being sought and suit was filed under the APA for injunctive relief. The four Justices who dissented accused the majority of using the wrong test and, by doing so, reaching the wrong conclusion.256

Before suit is filed against a federal agency, must the agency’s administrative remedies be exhausted?

Congress has created administrative remedies for certain agency actions and, where that has occurred, the available administrative appeals must be exhausted before a court will proceed with a lawsuit. For instance, an administrative appeal process has been established for tribes whose petitions for federal recognition are denied by the Department of the Interior, and courts have refused to adjudicate claims filed by tribes that failed to exhaust that process.257 Where no such process is mandatory, suit can be filed without exhausting administrative remedies even if an administrative process exists.

Judicial Review  481

When may the United States be sued to resolve a dispute concerning the ownership of land in which the federal government claims an interest?

The Quiet Title Act258 (QTA) waives the sovereign immunity of the United States “to adjudicate a disputed title to real property in which the United State claims an interest other than a security interest or water rights. This section does not apply to trust or restricted Indian lands.”259 Claims seeking relief under the QTA must be filed within twelve years unless the claimant can prove lack of notice of the agency action or some other equitable justification.260 The QTA is the “exclusive means,” the Supreme Court has recognized, by which Congress has authorized adjudications concerning the ownership of land in which the federal government has an interest.261 In a recent QTA case, for instance, a tribe successfully showed that a parcel of land owned by the federal government was subject to the tribe’s claim of aboriginal title.262 Controversies regarding who owns trust or restricted Indian lands are not included in the waiver of immunity under the QTA.263 The QTA does permit, however, a lawsuit to determine whether the federal government’s decision to take land into trust status was lawful, provided that the party bringing the suit does not claim to own the land.264 Similarly, a tribe can challenge through the QTA the issue of whether land should be deemed to be in trust status, where the government is claiming that the land is not trust land.265

What standards must a court use in reviewing Indian cases?

The Supreme Court has recognized that the United States has “moral obligations of the highest responsibility and trust” to Indians266 and must use “great care” in its dealings with them.267 Consequently, as explained more fully in Chapter III, any government action harmful to Indian interests must be judged using “the most exacting fiduciary standards.”268

Notes 1. See Alden v. Maine, 527 U.S. 706, 750 (1999) (noting that a government could be “forced into insolvency” without sovereign immunity). 2. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014); Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998); Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe, 498 U.S. 505 (1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

482  The Rights of Indians and Tribes 3. Sossamon v. Texas, 563 U.S. 277, 283–​87 (2011); Edelman v. Jordan, 415 U.S. 651 (1974). 4. United States v. Navajo Nation, 556 U.S. 287, 289–​90 (2009); United States v. Mitchell, 463 U.S. 206, 212 (1983); United States v. Lee, 106 U.S. 196, 204 (1882) (“The United States cannot be lawfully sued without its consent”). 5. See United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506, 512 (1940); Santa Clara Pueblo, 436 U.S. at 58; Pastor v. Garcia, 791 F.3d 1104, 1115 (9th Cir. 2015). 6. United States v. Testan, 424 U.S. 392, 399 (1976). 7. Hutto v. Finney, 437 U.S. 678 (1978). However, as discussed below, the power of Congress to waive state sovereign immunity is limited. 8. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 143 S. Ct. 1689 (2023); Santa Clara Pueblo, 436 U.S. 49. 9. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014) (internal citations omitted). See also Lac du Flambeau, 143 S. Ct. at 1695; Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe, 498 U.S. 505, 509 (1991). 10. See Bay Mills, 572 U.S. at 790–​91; Spurr v. Pope, 936 F.3d 478, 483 (6th Cir. 2019), cert. denied, 140 S. Ct. 850 (2020); Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 697 (8th Cir. 2019); Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation, 862 F.3d 1236, 1251 (10th Cir. 2017), cert. denied, 138 S. Ct. 1001 (2018). 11. Lac du Flambeau, 143 S. Ct. at 1695–​96 (noting that proving an express waiver is a “high bar”); Santa Clara, 436 U.S. at 58. See also Bay Mills, 572 U.S. at 782–​83; Spurr v. Pope, 936 F.3d at 483–​85; Flute v. United States, 808 F.3d 1234, 1242 (10th Cir. 2015), cert. denied, 137 S. Ct. 146 (2016) (“waivers of sovereign immunity must be unequivocally expressed”). 12. See Acres Bonusing, Inc. v. Marston, 17 F.4th 901, 908 (9th Cir. 2021), cert. denied, 142 S. Ct. 2836 (2022). 13. Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 890 (1985); see also Breakthrough Mgt. Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1182–​83 (10th Cir. 2010); People ex rel. Owen v. Miami Nation Enterprises, 386 P.3d 357, 364–​65 (Cal. 2016). 14. 523 U.S. 751 (1998). 15. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 758 (1998); see also Bay Mills, 572 U.S. at 788; Grondal v. United States, 37 F.4th 610, 616–​ 17 (9th Cir. 2022). 16. See Kiowa Tribe, at 754–​55; Freemanville Water Systems, Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1210 (11th Cir. 2009); Wright v. Colville Tribal Enterprise Corp., 147 P.3d 1275, 1278 (Wash. 2006); Sevastian v. Sevastian, 808 A.2d 1180, 1182–​ 83 (Conn. 2002). 17. Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe, 498 U.S. 505 (1991). 18. Kiowa Tribe, 523 U.S. at 755; see also Cayuga Indian Nation of New York v. Seneca County, New York, 978 F.3d 829, 841–​42 (2d Cir. 2020), cert. denied, 142 S. Ct. 310 (2021); Hamaatsa, Inc. v. Pueblo of San Felipe, 388 P.3d 977, 985 (N.M. 2016). 19. See Sekaquaptewa v. McDonald, 591 F.2d 1289 (9th Cir. 1979).

Judicial Review  483 20. See Public Service Co. of Colorado v. Shoshone-​Bannock Tribe, 30 F.3d 1203 (9th Cir. 1994); Blue Legs v. BIA, 867 F.2d 1094 (8th Cir. 1989). 21. Osage Tribal Council v. U.S. Department of Labor, 187 F.3d 1174 (10th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). But see Deschutes River Alliance v. Portland Gen. Elec. Co., 1 F.4th 1153, 1159–​60 (9th Cir. 2021) (holding that the Clean Water Act does not waive tribal sovereign immunity). 22. See 28 U.S.C. § 3002(7), (10); United States v. Smith, 2008 W.L. 700320 (W.D.N.C. 2008). 23. 25 U.S.C. § 2710(d)(7)(A)(ii). See Arizona v. Tohono O’odham Nation, 818 F.3d 549, 562–​63 (9th Cir. 2016); Wisconsin v. Ho-​Chunk Nation, 512 F.3d 921, 928–​29 (7th Cir. 2008). 24. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 143 S. Ct. 1689 (2023). 25. 25 U.S.C. § 450n(1). See Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989). 26. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Ackerman v. Edwards, 17 Cal. Rptr. 3d 517 (Ct. App. 2004), cert denied, 544 U.S. 1049 (2005). 27. Trans-​Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474 (9th Cir. 1980). 28. People of California ex rel. Department of Fish and Game v. Quechan Tribe of Indians, 595 F.2d 1153 (9th Cir. 1979). 29. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998); Ramey Construction Co., Inc. v. Apache Tribe, 673 F.2d 315 (10th Cir. 1982); Hoffman v. Sandia Resort & Casino, 232 P.3d 901 (N.M. App. 2010), cert. denied, 562 U.S. 889 (2010). 30. Cayuga Indian Nation of New York v. Seneca County, New York, 978 F.3d 829 (2d Cir. 2020), cert. denied, 142 S. Ct. 310 (2021). 31. McClendon v. United States, 885 F.2d 627 (9th Cir. 1989). See also Dyer v. Bureau of Indian Affairs, 2008 WL 4813099 (D. Nev. 2008) (dismissing challenge to a tribal decision not to renew a lease). 32. Pit River Home and Agricultural Cooperative Association v. United States, 30 F.3d 1088, 1011 (9th Cir. 1994). 33. Aircraft Equipment Co. v. Kiowa Tribe of Oklahoma, 2 P.3d 338 (Okla. 2000). 34. Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997); Runs After v. United States, 766 F.2d 347 (8th Cir. 1985); Whalen v. Oglala Sioux Tribe Executive Officers, 2021 WL 4267654 (D.S.D. 2021). 35. Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe, 498 U.S. 505 (1991). 36. Webb v. Paragon Casino, 872 So.2d 641 (La. App. 2004); Adams v. Moapa Band of Paiute Indians, 991 F. Supp. 1218 (D. Nev. 1997). 37. Furry v. Miccosuke Tribe of Indians of Florida, 685 F.3d 1224 (11th Cir.), cert. denied, 568 U.S. 1028 (2012); Cohen v. Little Six, Inc., 561 N.W.2d 889 (Minn. 1997), cert. denied, 524 U.S. 903 (1998); Gross v. Omaha Tribe of Nebraska, 601 N.W.2d 82 (Iowa 1999). 38. Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000). 39. Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818 (7th Cir. 2016), cert. denied, 137 S. Ct. 1331 (2017).

484  The Rights of Indians and Tribes 40. Miller v. Wright, 705 F.3d 919 (9th Cir.), cert. denied, 570 U.S. 905 (2013). 41. Williams v. Poarch Band of Creek Indians, 839 F.3d 1312 (11th Cir. 2016), cert. denied, 138 S. Ct. 78 (2017); Garcia v. Akwesasne Housing Auth., 268 F.3d 76, 86 (2d Cir. 2001). 42. Cook v. Avi Casino Enterprise, Inc., 548 F.3d 718 (9th Cir. 2008), cert. denied, 556 U.S. 1221 (2009). 43. Arizona v. Tohono O’odham Nation, 818 F.3d 549, 562–​63 (9th Cir. 2016). 44. Burrell v. Armijo, 456 F.3d 1159, 1161 (10th Cir. 2006), cert. denied, 549 U.S. 1167 (2007). See also Seneca Telephone Co. v. Miami Tribe of Oklahoma, 253 P.3d 53 (Okla. 2011) (finding tribe immune from lawsuit seeking damages for alleged destruction of underground telephone cables). 45. Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir. 1979); Maynes v. Unkechaug Tribal Council, 2011 WL 43478 at *2 (E.D.N.Y. 2011). Federal recognition is discussed in Chapter XIV, Section E. 46. Bottomly, 599 F.2d at 1066. See also Haile v. Saunooke, 246 F.2d 293, 297–​98 (4th Cir. 1957). 47. Pistor v. Garcia, 791 F.3d 1104 (9th Cir. 2015); Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006). If, however, a tribal police officer is cross-​deputized as a state officer and is acting in that capacity at the time of the incident, the officer may be sued under Section 1983. See Bressi v. Ford, 575 F.3d 891 (9th Cir. 2009). 48. Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977). See also Boe v. Fort Belknap Indian Community, 455 F. Supp. 462 (D. Mont. 1978). 49. Walton v. Tesuque Pueblo, 443 F.3d 1274 (10th Cir. 2006); Wilson v. Turtle Mountain Band of Chippewa Indians, 459 F. Supp. 366 (D.N.D. 1978). But see Wilkes v. PCI Gaming Auth., 287 So. 3d 330 (Alabama 2017), cert. denied, 139 S. Ct. 2739 (2019) (allowing suit by nonmember). 50. Sanderline v. Seminole Tribe of Florida, 243 F.3d 1282 (11th Cir. 2001). 51. Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015); Shortbull v. Looking Elk, 677 F.2d 645 (8th Cir.), cert. denied, 459 U.S. 907 (1982); Douglas Indian Ass’n v. Central Council of Tlinget and Haida Indian Tribes, 403 P.3d 1172, 1178 (Alaska 2017). 52. Burlington Northern & Santa Fe Railway Co. v. Vaughn, 509 F.3d 1085, 1088 (9th Cir. 2007); Osage Tribal Council v. U.S. Department of Labor, 187 F.3d 1174 (10th Cir. 1999), cert. denied, 530 U.S. 1229 (2000); Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Florida, 63 F.3d 1030, 1050 (11th Cir. 1995). 53. See Fed. R. Civ. P. 19. 54. Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996). 55. Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459 (9th Cir. 1994); Maynard v. Narragansett Indian Tribe, 984 F.2d 14 (1st Cir. 1993). 56. Klamath Irrig. Dist. v. United States Bur. of Reclamation, 48 F.4th 934 (9th Cir. 2022), cert. denied, 144 S. Ct. 342 (2023). 57. Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). 58. Dine Citizens Against Ruining Our Environment v. BIA, 932 F.3d 843 (9th Cir. 2019). See also Deschutes River Alliance v. Portland General Electric Co., 1 F.4th 1153 (9th Cir. 2021).

Judicial Review  485 59. Deschutes River Alliance, 1 F.4th 1153; Fluent v. Salamanca Indian Lease Authority, 928 F.2d 542, 547 (2d Cir.), cert. denied, 502 U.S. 818 (1991). 60. See Alabama-​Quassarte Tribal Town v. United States of America, 899 F.3d 1121 (10th Cir. 2018); United States v. Washington, 573 F.3d 701, 708 (9th Cir. 2009); Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341 (6th Cir 1993). 61. See Macleod v. Sault Ste. Marie Tribe of Chippewa Indians, Case No. APP-​21-​01 (Sault Ste. Marie Ct. App. 2022), available at https://​tur​tlet​alk.files.wordpr​ess.com/​2022/​12/​ opin​ion-​and-​order-​app-​21-​01.macl​eod.pdf; Cross v. Fox, 23 F.4th 797 (8th Cir. 2022); Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996). 62. United States v. Washington, 573 F.3d at 708. 63. Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1258–​59 (10th Cir. 2001), cert. denied, 534 U.S. 1078 (2002); Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152, 1154 (9th Cir. 1998); Cherokee Nation of Oklahoma v. Babbitt, 117 F.3d 1489 (D.C. Cir. 1997). 64. Southwest Center, 150 F.3d at 1154; Cherokee Nation, 117 F.3d at 1497. 65. Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). 66. Pit River Home and Agricultural Cooperative Association v. United States, 30 F.3d 1088, 1011 (9th Cir. 1994); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994). 67. See Grondal v. United States, 37 F.4th 610, 617 (9th Cir. 2022); Amerind Risk Mgt. Corp. v. Malaterre, 633 F.3d 680, 684–​85 (8th Cir. 2011) (holding that an insurance company formed by several tribes enjoys tribal sovereign immunity); State v. Cherokee Services Group, LLC, 955 N.W.2d 67 (N.D. 2020). 68. Cook v. Avi Casino Enterprise, Inc., 548 F.3d 718, 725–​26 (9th Cir. 2008), cert. denied, 556 U.S. 1221 (2009); Ninegret Development Corp. v. Narragansett Indian Wetuomuch Housing Authority, 207 F.3d 21, 29 (1st Cir. 2000). 69. See White v. Univ. of Cal., 765 F.3d 1010, 1025 (9th Cir. 2014) (granting an immunity); Breakthrough Mgt. Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1181 (10th Cir. 2010) (same); Cook, 548 F.3d at 725–​26 (same); Runyon v. Association of Village Council Presidents, 84 P.3d 437 (Alaska 2004) (denying an immunity). 70. Ninegret, 207 F.3d 21; Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.2d 581 (8th Cir. 1998). 71. Dine Citizens Against Ruining Our Environment v. BIA, 932 F.3d 843, 856 (9th Cir. 2019). 72. Mestek v. Lac Courte Oreilles Community Health Center, 72 F.4th 255 (7th Cir. 2023). 73. See cases cited supra notes 37, 42, 67–​76. See also Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1287 (11th Cir. 2015); Breakthrough, 629 F.3d 1173. 74. See Johnson v. Harrah’s Kansas Casino Corp., 2006 WL 463138 (D. Kan. 2006); Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen in and for County of Mohave, 458 P.3d 102, 110–​11 (Ariz. 2020); People ex rel. Owen v. Miami Nation Enterprises, 386 P.3d 357, 365 (Cal. 2016). 75. State v. JFK Raingutters, 733 N.W.2d 248 (N.D. 2007). 76. Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1149–​50 (10th Cir. 2012).

486  The Rights of Indians and Tribes 77. Lineen v. Gila River Indian Community, 276 F.3d 489, 492–​93 (9th Cir. 2002); Garcia v. Akwesasne Housing Authority, 268 F.3d 76 (2d Cir. 2001); Ransom v. St. Regis Mohawk Educational & Community Fund, Inc., 658 N.E.2d 989, 994–​95 (N.Y. Ct. App. 1995). 78. C & L Enterprises v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411 (2001). 79. Lineen, 276 F.3d at 492–​93; Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260 (10th Cir. 1998); Rosebud Sioux Tribe v. Val-​U Construction Co., 50 F.3d 560, 563 (8th Cir 1995). 80. Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017); Jamul Action Committee v. Simermeyer, 974 F.3d 984, 994 (9th Cir. 2020), cert. denied, 142 S. Ct. 83 (2021). 81. 137 S. Ct. 1285 (2017). 82. Id., at 1288. See also Acres Bonusing, Inc. v. Marston, 17 F.4th 901, 908–​11 (9th Cir. 2021), cert. denied, 142 S. Ct. 2836 (2022); Stanko v. Olgala Sioux Tribe, 916 F.3d 694, 697 (8th Cir. 2019). Of course, if the employee enjoys some other type of immunity, such as judicial immunity, the suit cannot proceed. See Acres Bonusing, 17 F.4th at 914–​16. 83. Pistor v. Garcia, 791 F.3d 1104, 1112 (9th Cir. 2015). See also Lewis v. Clarke, 137 S. Ct. at 1288; Maxwell, 708 F.3d at 1090. 84. Jamul, 974 F.3d at 994 (internal citations omitted, emphasis added), citing Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 796 (2014). See also Kodiak Oil & Gas (USA) Inc. v. Burr, 932 F.3d 1125, 1131–​32 (8th Cir. 2019); Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1235 (10th Cir. 2014) (allowing suit to proceed against a tribal court judge to halt an allegedly unlawful exercise of tribal court jurisdiction). 85. See Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe, 498 U.S. 505 (1991); Big Horn County Electric Cooperative, Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000). 86. Jamul, 974 F.3d at 994–​96. See also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 282–​83 (1997). 87. Tamiami Partners, Ltd. v. Miccosukee Tribe, 177 F.3d 1212, 1225 (11th Cir. 1999). See also Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997). 88. Jamul, 974 F.3d at 994–​96. See also Big Horn County Electric, 219 F.3d at 954. 89. Maxwell v. County of San Diego, 708 F.3d 1075, 1088 (9th Cir. 2013). A tribe’s decision to pay an award of damages assessed against a tribal employee does not thereby cloak the employee with the tribe’s sovereign immunity. Lewis v. Clarke, 137 S. Ct. at 1293. 90. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789–​90 (2014); Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 890 (1985); Seneca-​Cayuga Tribe of Oklahoma v. Oklahoma, 874 F.2d 709, 714 (10th Cir. 1989). 91. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998). 92. Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235 (Fla. 1993); Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977). 93. Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians, 166 F.3d 1126, 1135 (11th Cir 1999); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 182 (2d. Cir. 1996); Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459–​60 (9th Cir. 1994).

Judicial Review  487 94. Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, Inc., 896 F.3d 1322 (Fed. Cir. 2018), cert. denied, 139 S. Ct. 1547 (2019); Pauma v. NLRB, 888 F.3d 1066, 1078 (9th Cir. 2018), cert. denied, 139 S. Ct. 2614 (2019). 95. Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe, 498 U.S. 505, 509 (1991). See also Grondal v. United States, 37 F.4th 610, 617–​18 (9th Cir. 2022); In re Greektown Holdings, LLC, 917 F.3d 451, 466 (6th Cir. 2019). 96. Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 893 (1985). See also Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir. 1995); United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981). 97. See Rupp, 45 F.3d 1241; Oregon, 657 F.2d 1009; Berry v. Asarco, Inc., 439 F.3d 636 (10th Cir. 2006). 98. 25 U.S.C. §§ 1301 et seq. 99. 25 U.S.C. § 1303. 100. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 101. This subject is discussed in Chapter XIII, notes 69–​89 and accompanying text. 102. See People ex rel. Owen v. Miami Nation Enterprises, 386 P.3d 357, 365 (Cal. 2016) (noting that the doctrine of tribal sovereign immunity “remains controversial as applied to certain tribal activities”); Oneida Indian Nation v. Madison County, 605 F.3d 149, 163–​64 (2d Cir. 2010) (Carbanes and Hall, JJ., concurring), vacated and remanded on other grounds, 562 U.S. 42 (2011). 103. See Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004); Davis v. United States, 199 F. Supp. 2d 1164, 1180 (W.D. Okla. 2002), aff ’d, 343 F.3d 1282 (10th Cir. 2003), cert. denied, 542 U.S. 937 (2004); R & R Deli, Inc. v. Santa Ana Star Casino, 128 P.3d 513, 517–​18 (N.M. App. 2005). 104. C & L Enterprises v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001); Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe, 498 U.S. 505, 509 (1991). 105. See Spurr v. Pope, 936 F.3d 478, 483 (6th Cir. 2019), cert. denied, 140 S. Ct. 850 (2020) (waiving the immunity of one tribal official but not others); Arizona Public Service Co. v. Aspaas, 77 F.3d 1128, 1135 (9th Cir. 1996); American Indian Agricultural Credit Consortium v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1377–​81 (8th Cir. 1985). 106. See Oglala Sioux Tribe v. C & W Enterprises, 542 F.3d 224, 231 (8th Cir. 2008); Muhammad v. Comanche Nation Casino, 2010 WL 4365568 (W.D. Okla. 2010) (waiver of suit only in tribal court); Kizis v. Morse Diesel International, 794 A.2d 498 (Conn. 2002) (same); Lawrence v. Barona Valley Ranch Resort & Casino, 153 Cal. App. 4th 1364, 1369 (Cal. App. 2007). 107. IV M.P.T.L. ch. 1, §§ 1–​7, at 67–​71, available at https://​law.mptn-​nsn.gov/​tri​bal-​ laws/​. For example, see Dominique v. Mashantucket Pequot Gaming Enterprise and Scooter A Long, 2019 WL 2219798 (Mash. Pequot Tribal Ct. 2019), available at https://​narf.org/​nill/​bullet​ins/​tri​bal/​docume​nts/​domin​ique​_​v_​m​asha​ntuc​ket.html. 108. See Native American Distributing v. Seneca-​Dayuga Tobacco Co., 546 F.3d 1288, 1295 (10th Cir. 2008); Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1287 (11th Cir. 2001).

488  The Rights of Indians and Tribes 109. See SPRAWLDEF v. Guidiville Rancheria of California, 822 Fed. Appx. 629 (9th Cir. 2020); Meyer & Assoc., Inc. v. Coushatta Tribe of Louisiana, 992 So.2d 446, 451 (La. 2008). 110. See Calvello v. Yankton Sioux Tribe, 899 F. Supp. 431, 438 (D.S.D. 1995). 111. Charles F. Wilkinson, American Indians, Time, and the Law 115 (1987). 112. Id., at 113–​19. 113. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014). 114. Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017). 115. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267–​69 (1997); Employees v. Missouri Public Health Department, 411 U.S. 279, 284 (1973). 116. Hans v. Louisiana, 134 U.S. 1 (1890). 117. Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991); Muscogee (Creek) Nation v. Oklahoma Tax Commission, 611 F.3d 1222 (10th Cir. 2010). 118. Coeur d’Alene Tribe, 521 U.S. 261; Miccosukee Tribe of Indians of Florida v. Florida State Athletic Commission, 226 F.3d 1226 (11th Cir. 2000). 119. Lake County Estates v. Tahoe Planning Agency, 440 U.S. 391, 401 (1978). 120. Blatchford, 501 U.S. 775. 121. Coeur d’Alene Tribe, 521 U.S. 261; Alabama v. Pugh, 438 U.S. 781 (1978); Muscogee (Creek) Nation, 611 F.3d 1222. 122. 209 U.S. 123 (1908). 123. Ex parte Young, 209 U.S. 123, 160 (1908). See also Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 347, 255–​57 (2011); Muscogee (Creek) Nation, 611 F.3d at 1232–​22; Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000), cert. denied, 532 U.S. 958 (2001). 124. See Coeur d’Alene Tribe, 521 U.S. at 280–​81 (noting that “[a]‌n allegation of an ongoing violation of federal law where the requested relief is prospective only is ordinarily sufficient to invoke” the exception created by Ex parte Young). See also Seneca Nation v. Hochul, 58 F.4th 664, 671–​72 (2d Cir. 2023) (allowing tribe to sue state officials for allegedly occupying tribal land in violation of federal law). 125. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 695–​96 (1979). See also Fond Du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (8th Cir. 1995). 126. See Prairie Band of Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007); Agua Caliente, 223 F.3d 1041. 127. See Edelman v. Jordan, 415 U.S. 651 (1974); Muscogee (Creek) Nation, 611 F.3d at 1233. 128. Coeur d’Alene Tribe, 521 U.S. 261. On the other hand, where a suit involves a state interest in land but not an exclusive right, state immunity does not apply. See Silva v. Farrish, 47 F.4th 78 (2d Cir. 2022); Hamilton v. Myers, 281 F.3d 520 (6th Cir. 2002). 129. See Edelman, 415 U.S. 651; Big Horn County Electric Cooperative, Inc. v. Adams, 219 F.3d 944, 955 (9th Cir. 2000). 130. Sossamon v. Texas, 563 U.S. 277, 285–​86 (2011); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985). Consent may be presumed where a state voluntarily enters a lawsuit and submits its claims for adjudication. See Lapides v. Board of Regents, 535 U.S. 613, 619 (2002).

Judicial Review  489 131. See cases cited supra note 130. 132. Montana v. Gilham, 133 F.3d 1133 (9th Cir. 1998). 133. 517 U.S. 44 (1996). 134. Nell Jessup Newton et al., eds., Felix Cohen’s Handbook of Federal Indian Law § 7.05[2]‌, 648–​49 (2012 ed.); see generally Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 285–​88 (5th Cir. 2000) (holding that Eleventh Amendment bars tribe from suing a state to recover lands allegedly seized in violation of federal law). 135. See National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 850–​53 (1985); Coeur d’Alene Tribe v. Hawks, 933 F.3d 1052, 1054–​55 (9th Cir. 2019). 136. See cases cited supra notes 117 and 118. But see Citizen Potawatomi Nation v. Oklahoma, 881 F.3d 1226, 1239 n.17 (10th Cir.), cert. denied, 139 S. Ct. 375 (2018) (finding that state had waived its immunity). 137. See cases cited supra notes 127 and 128. See also Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 436–​37 (2004); Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749, 756 n.11 (D.S.D. 2015), rev’d on other grounds, 904 F.3d 603 (8th Cir. 2018), cert. denied, 140 S. Ct. 105 (2019). 138. Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1049 n.8 (9th Cir. 2000), cert. denied, 532 U.S. 958 (2001); Sac & Fox Nation of Missouri v. Pierce, 213 F.3d 566, 572–​73 (10th Cir. 2000), cert. denied, 531 U.S. 1144 (2001). 139. Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968); Gila River Indian Community v. Henningson, Durham & Richardson, 626 F.2d 708, 714 n.3 (9th Cir. 1980), cert. denied, 451 U.S. 911 (1981); Pueblo of Isleta v. Universal Constructions, Inc., 570 F.2d 300 (10th Cir. 1978). 140. Citizen Potawatomi Nation v. Oklahoma, 881 F.3d 1226, 1239 n.17 (10th Cir.), cert. denied, 139 S. Ct. 375 (2018). 141. See Coeur d’Alene Tribe v. Hawks, 933 F.3d 1052, 1055 n.3 (9th Cir. 2019) (noting that Section 1362 is “largely superfluous”). 142. Henningson, Durham & Richardson, 626 F.2d at 714. 143. 501 U.S. 775 (1991). 144. See Muscogee (Creek) Nation v. Oklahoma Tax Comm’n, 2009 WL 10695365 **4–​ 6 (N.D. Okla. Aug. 10, 2009). See also Gila River Indian Cmty. v. Cranford, 459 F. Supp. 3d 1246, 1252 (D. Ariz. 2020). 145. 25 U.S.C. §§ 331 et seq. 146. See Blatchford v. Native Village of Noatak, 501 U.S. 775, 785 n.3 (1991); Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1049 n.8 (9th Cir. 2000), cert. denied, 532 U.S. 958 (2001); U.S. on behalf of Cheyenne River Sioux Tribe v. South Dakota, 105 F.3d 1552, 1560 n.15 (8th Cir.), cert. denied, 522 U.S. 981 (1997). Several courts have held or indicated that non-​Indians cannot invoke federal jurisdiction under Section 1353. See cases cited in Kumar v. Schildt, 2022 WL 4299827 (D. Mont. 2022). 147. Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968). 148. See Poafpybitty, 390 U.S. 364; Begay v. Albers, 721 F.2d 1274 (10th Cir. 1983). 149. See Hafer v. Melo, 502 U.S. 21, 28 (1991); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989); Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011).

490  The Rights of Indians and Tribes 150. Quern v. Jordan, 440 U.S. 332, 338–​40 (1979); Muscogee (Creek) Nation v. Oklahoma Tax Commission, 611 F.3d 1222, 1227 (10th Cir. 2010). 151. See cases cited supra note 149. However, to recover damages against a state official, the plaintiff must show that the unlawfulness of the conduct was clearly established at the time of the action. See District of Columbia v. Wesby, 138 U.S. 577, 589 (2018); Pearson v. Callahan, 555 U.S. 223, 241 (2009); Feminist Majority Foundation v. Hurley, 911 F.3d 674, 698–​99 (4th Cir. 2018). 152. Shoshone-​Bannock Tribes v. Fish & Game Commission, Idaho, 42 F.3d 1278, 1285–​86 (9th Cir. 1994). 153. Mitchell v. Kirchmeier, 28 F.4th 888, 898–​902 (8th Cir. 2022); Jennings v. Jones, 449 F.3d 2 (1st Cir. 2007), cert. denied, 552 U.S. 1170 (2008). 154. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 695–​96 (1979). 155. Monell v. N.Y. City Department of Social Services, 436 U.S. 658 (1978). Municipal governments do not have qualified immunity from a damages action. See Owen v. City of Independence, 445 U.S. 622 (1980). 156. Bressi v. Ford, 575 F.3d 891 (9th Cir. 2009). 157. 533 U.S. 353 (2001). 158. 538 U.S. 701 (2003). 159. Inyo County v. Paiute-​Shoshone Indians of the Bishop Community, 538 U.S. 701, 712 (2003); see also Chemehuevi Indian Tribe v. McMahon, 934 F.3d 1076, 1082 (9th Cir. 2019), cert. denied, 140 S. Ct. 1295 (2020); Muscogee (Creek) Nation v. Oklahoma Tax Commission, 611 F.3d 1222, 1234–​35 (10th Cir. 2010). 160. See Keweenaw Bay Indian Cmty. v. Rising, 569 F.3d 589, 595–​96 (6th Cir. 2009); Oglala Sioux Tribe v. Van Hunnik, 993 F. Supp. 2d 1017, 1027–​28 (D.S.D. 2014), rev’d on other grounds, 904 F.3d 603 (8th Cir. 2018), cert. denied, 140 S. Ct. 105 (2019); Alaska Department of Health & Social Services v. Native Village of Curyung, 151 P.3d 388, 399–​402 (2006). 161. See Winters v. United States, 207 U.S. 564, 565 (1908); Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979); United States v. Rickert, 188 U.S. 432 (1903). 162. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 71 n.14 (1996); Blatchford v. Native Village of Noatak, 501 U.S. 775, 782–​83 (1991). 163. United States ex rel. Cheyenne River Sioux Tribe v. State of South Dakota, 102 F. Supp. 2d 1166, 1177 (D.S.D. 2000). 164. Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968); Rickert, 188 U.S. 432. 165. Arizona v. California, 460 U.S. 605 (1983); State of New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976), cert. denied, 429 U.S. 1121 (1977). See also Nooksack Indian Tribe v. Zinke, 321 F.R.D. 377 (W.D. Wash. 2017). 166. Arizona, 460 U.S. 605; Pueblo of Picuris v. Abeyta, 50 F.2d 12 (10th Cir. 1931). See also Cayuga Indian Nation of New York v. Cuomo, No. 80-​CV-​930, 1999 WL 509442 **10–​11 (N.D.N.Y. July 1, 1999). 167. United States v. Candelaria, 271 U.S. 432, 443–​44 (1926); Choctaw & Chickasaw Nations v. Seitz, 193 F.2d 456 (10th Cir. 1951); Canadian St. Regis Band of Mohawk Indians v. New York, 146 F. Supp. 2d 170, 194 (N.D.N.Y. 2001). 168. 25 U.S.C. § 175.

Judicial Review  491 169. Heckman v. United States, 224 U.S. 413 (1912); Gros Ventre Tribe v. United States, 469 F.3d 801, 810 (9th Cir. 2006); Shoshone-​Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995). 170. See cases cited supra note 3. 171. Minnesota v. United States, 305 U.S. 382, 388 (1939). 172. 28 U.S.C. §§ 1346(b), 2671–​80. 173. See Johnson v. United States, 534 F.3d 958, 962–​64 (8th Cir. 2008); Hebert v. United States, 438 F.3d 483 (5th Cir. 2006). 174. This determination is often difficult to make. See, e.g., L.B. v. United States, 515 P.3d 818 (Mont. 2022) (finding that government officer who raped a woman was nonetheless acting “within the scope” of his employment because he was on duty and used his authority to lure the victim to his police cruiser, where he raped her). 175. 28 U.S.C. § 2675. See McNeil v. United States, 508 U.S. 106 (1993); Farmers State Sav. Bank v. Farmers Home Admin., 866 F.2d 276, 277 (8th Cir. 1989). 176. 28 U.S.C. § 2401(b). The two-​year limit can be waived if the injury was not apparent until after the deadline had passed. See Cannon v. United States, 338 F.3d 1183, 1190 (10th Cir. 2003). 177. 28 U.S.C. § 2675(a). 178. Bryant v. United States, 565 F.2d 650 (10th Cir. 1977). 179. Hatahley v. United States, 351 U.S. 173 (1956). 180. Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187 (D.C. Cir. 1986). 181. Simmons v. United States, 740 F.2d 1023 (9th Cir. 1986); LaRoche v. United States, 730 F.2d 538 (8th Cir. 1985); Owen v. United States, 645 F. Supp. 2d 806 (D.S.D. 2009); Cheromiah v. United States, 55 F. Supp. 2d 1295 (D.N.M. 1999). 182. Bear Medicine v. United States, 192 F. Supp. 2d 1053 (D. Mont. 2002). 183. Wilkinson v. United States, 564 F.3d 927 (8th Cir. 2009). 184. O’Toole v. United States, 295 F.3d 1029 (9th Cir. 2002). 185. 25 U.S.C. §§ 450 et seq. 186. Id. § 450f(d). 187. See Wilson v. Horton’s Towing, 906 F.3d 773, 780–​82 (9th Cir. 2018), cert. denied, 139 U.S. 1603 (2019); Colbert v. United States, 785 F.3d 1384 (11th Cir. 2015); Hinsley v. Standing Rock Child Protective Services, 516 F.3d 668, 672 (8th Cir. 2008). 188. See Red Elk v. United States, 62 F.3d 1102 (8th Cir. 1995); Eyck v. United States, 463 F. Supp. 3d 969 (D.S.D. 2020). In addition to suing the BIA under the FTCA, a suit against the officers in their individual capacity is permitted in certain situations, as discussed later in this chapter. 189. Hebert v. United States, 438 F.3d 483, 487 (5th Cir. 2006); United States v. Cleveland, 356 F. Supp. 3d 1215 (D.N.M. 2018); Bob v. United States, 2008 WL 818499 (D.S.D. 2008). 190. 28 U.S.C. § 2680. 191. Garling v. U.S. E.P.A., 849 F.3d 1289, 1294 (10th Cir. 2017). 192. See Garreaux v. United States, 544 F. Supp. 2d 885, 894–​97 (D.S.D. 2008). 193. See Garvais v. United States, 2007 WL 1724956, at *8 (E.D. Wash. 2007). For an extended discussion of this exception, see Roemen v. United States, 2022 WL 4482883 at **16–​19 (D.S.D. 2022).

492  The Rights of Indians and Tribes 194. Berkovitz v. United States, 486 U.S. 531, 536 (1988); Ohlsen v. United States, 998 F.3d 1143, 1160–​63 (10th Cir. 2021); Miller v. United States, 992 F.3d 878, 891–​93 (9th Cir. 2021); Nanouk v. United States, 974 F.3d 941, 946 (9th Cir. 2020). 195. 28 U.S.C. § 2680(a). See United States v. Gaubert, 499 U.S. 315 (1991); Ohlsen v. United States, 998 F.3d 1143, 1160–​61 (10th Cir. 2021); Nanouk, 974 F.3d at 946–​ 47; Two Eagle v. United States, 57 F.4th 616, 623–​24 (8th Cir. 2023). 196. See Shansky v. United States, 164 F.3d 688, 693 (1st Cir. 1999) (admitting that some court decisions appear to conflict with others on this issue); Audio Odyssey, Ltd. v. United States, 255 F.3d 512, 516 (8th Cir. 2001). 197. Martinez v. United States, 822 Fed. Appx. 671, 681 n.9 (10th Cir. 2020); Hart v. United States, 630 F.3d 1085, 1090 (8th Cir. 2011). 198. Loumiet v. United States, 828 F.3d 935, 944 (D.C. Cir. 2016); Medina v. United States, 259 F.3d 220, 225 (4th Cir. 2001). 199. Nanouk, 974 F.3d at 948–​49; Miller, 992 F.3d at 886–​87. 200. Miller, 992 F.3d at 885–​86. 201. Loumiet, 828 F.3d at 944. See also United States v. Varig Airlines, 467 U.S. 797, 814–​16 (1984). 202. Berkovitz v. United States, 486 U.S. 531, 536 (1988); Richman v. Straley, 48 F.3d 1139, 1146 (10th Cir. 1995); Navajo Agricultural Products Industry v. United States, 608 F. Supp. 3d 1060 (D.N.M. 2022). 203. 28 U.S.C. § 1346(a)(2) (allowing jurisdiction in the federal district courts), § 1491 (allowing jurisdiction in the Court of Federal Claims). See generally United States v. Testan, 424 U.S. 392 (1976). 204. 28 U.S.C. §§ 1346(a)(2), 1491. See United States v. Mitchell, 463 U.S. 206, 212 (1983); Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 55–​56 (1986); Nutt v. United States, 12 Cl. Ct. 345, 351 (1987), aff ’d, 847 F.2d 791 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004 (1989); Elk v. United States, 87 Fed. Cl. 70 (Fed. Cl. 2009). 205. 28 U.S.C. § 1505. See United States v. Navajo Nation, 556 U.S. 287, 289–​93 (2009); United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Mitchell, 463 U.S. at 212; Grondal v. United States, 37 F.4th 610, 619–​20 (9th Cir. 2022). Tribal members may sue under the Indian Tucker Act to vindicate rights of the tribe. See Chippewa Cree Tribe v. United States, 73 Fed. Cl. 154, 171 (Fed. Cl. 2006). 206. 28 U.S.C. § 1491. 207. 28 U.S.C. § 1346(a)(2). See McGuire v. United States, 550 F.3d 903, 910–​11 (9th Cir. 2008); Catawba Indian Tribe of Carolina v. United States, 982 F.2d 1564 (Fed. Cir. 1993), cert. denied, 509 U.S. 904 (1993). In United States v. Tohono O’odham Nation, 563 U.S. 307 (2001), the Supreme Court held that a claimant may file suit under either option but may not pursue similar claims in both courts simultaneously. 208. 28 U.S.C. § 2501. The statute of limitations can be liberally construed if the tribe was unaware of the loss, Duncan v. United States, 667 F.2d 36 (Ct. Cl. 1981), cert. denied, 463 U.S. 1228 (1983), but otherwise must be enforced. Navajo Nation v. United States, 631 F.3d 1268 (Fed. Cir. 2011). 209. United States v. Mitchell, 445 U.S. 535, 538–​40 (1980).

Judicial Review  493 210. White Mountain Apache, 537 U.S. at 473; Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005). 211. 463 U.S. 206 (1983). 212. Mitchell, 463 U.S. at 219–​23. See also White Mountain Apache, 537 U.S. at 475; Osage Tribe v. United States, 68 Fed. Cl. 322 (2005). 213. See Navajo Nation v. United States, 537 U.S. 488, 503 (2003). 214. See Lummi Tribe of the Lummi Reservation v. United States, 870 F.3d 1313 (Fed. Cir. 2017), cert. denied, 139 S. Ct. 64 (2018). 215. Navajo Nation, 537 U.S. at 506; Fletcher v. United States, 26 F.4th 1314, 1324–​25 (Fed. Cir. 2022). See generally Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 2000), aff ’d, 240 F.3d 108 (D.C. Cir. 2001). 216. See Maine Community Health Options v. United States, 140 S. Ct. 1308, 1329 n.13 (2020). 217. See Robert T. Anderson, Indigenous Rights to Water & Environmental Protection, 53 Harv. C.R.-​C.L. L. Rev. 337, 359 (2018). 218. Mitchell, 463 U.S. at 212; Shoshone Indian Tribe v. United States, 364 F.3d 1339 (Fed. Cir. 2004), cert. denied, 544 U.S. 973 (2005); Chippewa Cree Tribe v. United States, 73 Fed. Cl. 154, 171 (Fed. Cl. 2006); Cobell v. Babbitt, 91 F. Supp. 2d 1. See also Jones v. United States, 846 F.3d 1343, 1364 (Fed. Cir. 2017) (seeking damages for alleged violation of a treaty). 219. See Navajo Nation v. United States, 537 U.S. 488, 503 (2003); see also Arizona v. Navajo Nation, 143 S. Ct. 1804, 1815–​16 (2023) (holding that the government’s liability for an alleged breach of trust cannot be based solely on whether the government controls the tribe’s property); Anderson, supra note 217, at 359–​61. 220. 25 U.S.C. §§ 70 to 70v-​3. The purpose of the ICCA is discussed in United States v. Dann, 470 U.S. 39 (1985). See also Pueblo of Jemez v. United States, 790 F.3d 1143, 1152 (10th Cir. 2015). 221. 25 U.S.C. § 70a(5). See United States v. Sioux Nation of Indians, 448 U.S. 371 (1980); Confederated Tribes of Colville Reservation v. United States, 964 F.2d 1102, 1110 (Fed. Cir. 1992); Cherokee Nation of Oklahoma v. United States, 937 F.2d 1539 (10th Cir. 1991). 222. See Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187 (D.C. Cir. 1986); Northern Paiute Nation v. United States, 10 Cl. Ct. 401 (1986). 223. See Oglala Sioux Tribe v. U.S. Army Corps of Engineers, 570 F.3d 327 (Fed. Cir. 2009). 224. See Nancy Oestreich Lurie, The Indian Claims Commission, 436 Annals Am. Acad. Pol. & Soc. Sci. 97, 100 (1978) (noting there were approximately 615 separate dockets, many containing more than one claim). 225. 403 U.S. 388, 396–​97 (1971). See also Romero v. Peterson, 930 F.2d 1502, 1507 (10th Cir. 1991); United States v. Yakima Tribal Court, 806 F.2d 853, 859 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987); Ten Eyck v. United States, 463 F. Supp. 3d 969, 986–​90 (D.S.D. 2020). However, the Supreme Court has narrowed the application of Bivens. For an analysis of current Bivens jurisprudence, see Archambault v. United States, 641 F. Supp. 3d. 636 (D.S.D. 2022). 226. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Butz v. Economu, 438 U.S. 478 (1978).

494  The Rights of Indians and Tribes 227. See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017); Loumiet v. United States, 948 F.3d 376 (D.C. Cir. 2020). 228. See Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006); United States v. Winnebago Tribe of Nebraska, 542 F.2d 1002 (8th Cir. 1976); Comanche Nation, Oklahoma v. United States, 393 F. Supp. 2d 1196 (W.D. Okla. 2005). 229. 5 U.S.C. §§ 701 et seq. 230. Lexmark Int’l, Inc. v. State Control Components, Inc., 572 U.S. 118, 130 (2014). 231. 5 U.S.C. § 701(A). See United States v. Mitchell, 463 U.S. 206, 227 n.3 (1983); Aguayo v. Jewell, 827 F.3d 1213, 1223 (9th Cir. 2016), cert. denied, 137 S. Ct. 832 (2017); In re Sac & Fox Tribe of the Mississippi in Iowa/​Meskwaki Casino Litigation, 340 F.3d 749, 755–​58 (8th Cir. 2003). 232. Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986). Determining when agency action is “final” is not always clear. See U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016); Navajo Nation v. U.S. Dept. of Interior, 819 F.3d 1084 (9th Cir. 2016). 233. See Match-​E-​Be-​Nash-​She-​Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215–​16 (2012); Block v. Community Nutrition Institute, 467 U.S. 340, 348, 350 (1984); Aguayo v. Jewell, 827 F.3d at 1223. 234. 28 U.S.C. § 2401(a). See Hopeland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988); Comanche Nation v. United States, 393 F. Supp. 2d 1196, 1208 (W.D. Okla. 2005). 235. 5 U.S.C. § 706(1), (2)(A). See Lincoln v. Vigil, 508 U.S. 182, 193–​95 (1993); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004); Cherokee Nation of Oklahoma v. Norton, 389 F.3d 1074 (10th Cir. 2004), cert. denied, 546 U.S. 812 (2005); Aguayo v. Jewell, 827 F.3d at 1223; Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001). 236. Coomes v. Adkinson, 414 F. Supp. 975, 984–​85 (D.S.D. 1976). 237. Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971). 238. Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976), aff ’d sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978). 239. Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256 (9th Cir. 2000). 240. Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976). See also Morton v. Ruiz, 415 U.S. 199 (1974). 241. Woods Petroleum Corp. v. Department of Interior, 47 F.3d 1032 (10th Cir.) (en banc), cert. denied, 516 U.S. 805 (1995). 242. Match-​E-​Be-​Nash-​She-​Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012); Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. Zinke, 889 F.3d 584 (9th Cir. 2018); Big Lagoon Rancheria v. California, 789 F.3d 947, 953–​54 (9th Cir. 2015). 243. Alto v. Black, 738 F.3d 1111, 1223–​25 (9th Cir. 2013). 244. Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012) (en banc), cert. denied, 568 U.S. 1228 (2013). 245. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 147 (D.D.C. 2017), aff ’d in part, rev’d in part, 985 F.3d 1032, 1050 (D.C. Cir. 2021); Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm’n, 896 F.3d 520 (D.C. Cir. 2018).

Judicial Review  495 246. Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 2000), aff ’d, 240 F.3d 108 (D.C. Cir. 2001). 247. Stephen C. v. Bureau of Indian Education, 2022 WL 808141 (9th Cir. 2022) (unpublished). 248. Shawnee Tribe v. Mnuchin, 984 F.3d 94 (D.C. Cir. 2021). 249. 508 U.S. 182 (1993). 250. See Governor of Kansas v. Kempthorne, 516 F.3d 833, 841 n.4 (10th Cir. 2008). 251. See Motor Vehicle Mfrs. Association v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983); Littlefield v. U.S. Dept. of Interior, 85 F.4th 635, 643 (1st Cir. 2023); Aguayo v. Jewell, 827 F.3d 1213, 1226 (9th Cir. 2016), cert. denied, 137 S. Ct. 832 (2017). 252. Dine Citizens Against Ruining Our Environment v. Haaland, 59 F.4th 1016, 1029 (10th Cir. 2022) (citation omitted). 253. Northwest Resource Information Center, Inc. v. Puget Sound Power & Light Co., 35 F.3d 1371 (9th Cir. 1994), cert. denied, 516 U.S. 806 (1995). 254. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326–​27 (2015). 255. 143 S. Ct. 1804, 1813 (2023). 256. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1830–​32 (2023) (Gorsuch, Sotomayer, Kagan, Jackson, JJ., dissenting). A number of scholars have pointed out that the Tucker test should not be used in APA cases. See, e.g., Mary Christina Wood, The Indian Trust Responsibility: Protecting Tribal Lands and Resources through Claims of Injunctive Relief Against Federal Agencies, 39 Tulsa L. Rev. 355, 362, 365 (2003). 257. See Agua Caliente Tribe of Cupeño Indians of the Pala Reservation v. Sweeney, 932 F.3d 1207 (9th Cir. 2019); Faras v. Hodel, 845 F.2d 202 (9th Cir. 1988). The process is set forth in 25 C.F.R. pt. 83. 258. 28 U.S.C. § 2409a. 259. Id. § 24091a(a). 260. Id. § 2409a(g). See Wilkins v. United States, 143 S. Ct. 870 (2023); Block v. North Dakota, 461 U.S. 273 (1983). 261. United States v. Mottaz, 476 U.S. 834, 842 (1986). See also Cheyenne Arapaho Tribes of Oklahoma v. United States, 558 F.3d 592, 595 (D.C. Cir. 2009). 262. Pueblo of Jemez v. United States, 63 F.4th 881 (10th Cir. 2023). “Aboriginal title” is discussed in Chapter II, Section D. 263. 28 U.S.C. § 2409a(a). See Robinson v. United States, 586 F.3d 683, 685–​86 (9th Cir. 2009); Florida Department of Business Regulation v. Department of Interior, 768 F.2d 1248, 1253–​55 (11th Cir. 1985); Upstate Citizens for Equality, Inc. v. Salazar, 2010 WL 827090, at *15 (N.D.N.Y. 2010). 264. Match-​E-​Be-​Nash-​She-​Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012). 265. See Cheyenne Arapaho Tribes, 558 F.3d 592. 266. Seminole Nation v. United States, 316 U.S. 286, 297 (1942). 267. United States v. Mason, 412 U.S. 391, 398 (1973). 268. Seminole Nation, 316 U.S. at 297. See also United States v. Mitchell, 463 U.S. 206, 212 (1983).

APPENDIX

“Recognized” Indian Tribes: Federal and State The following is a state-​by-​state listing of those Indian tribes that have been formally recognized by the federal and state governments. Each January, the U.S. Department of the Interior publishes a list of all federally recognized tribes. The 2024 list contains 574 Indian tribes. See 89 Fed. Reg. 944, available at https://www.federalregister.gov/ documents/2024/01/08/2024-00109/indian-entities-recognized-by-and-eligible-toreceive-services-from-the-united-states-bureau-of. (The subject of federal recognition is discussed in Chapter XIV.) 500 Nations produces a list of tribes and a helpful map, available at http://​500​nati​ons.com/​500​_​Tri​bes.asp. Each state has the option of recognizing Indian tribes under the state’s own standards. Included in the list below are those tribes that states have recognized that the federal government has not (as yet) recognized.

ALABAMA Federally Recognized Poarch Band of Creek Indians

State-​Recognized Cher-​O-​Creek Intra Tribal Indians Cherokee Tribe of Northeast Alabama Cherokees of Southeast Alabama Echota Cherokee Tribe of Alabama Ma-​Chis Lower Creek Indian Tribe of Alabama Mowa Band of Choctaw Indians Piqua Shawnee Tribe Star Clan of Muscogee Creeks United Cherokee Ani-​Yun-​Wiya Nation

498 Appendix

ALASKA Federally Recognized Agdaagux Tribe of King Cove Akiachak Native Community Akiak Native Community Alatna Village Algaaciq Native Village (St. Mary’s) Allakaket Village Alutiiq Tribe of Old Harbor (previously listed as Native Village of Old Harbor and Village of Old Harbor) Angoon Community Association Anvik Village Arctic Village (See Native Village of Venetie Tribal Government) Asa’carsarmiut Tribe (formerly Native Village of Mountain Village) Beaver Village Birch Creek Tribe Central Council of the Tlingit and Haida Indian Tribes Chalkyitsik Village Cheesh-​Na Tribe Chevak Native Village Chickaloon Native Village Chignik Bay Tribal Council Chignik Lake Village Chilkat Indian Village (Kluckwan) Chilkoot Indian Association (Haines) Chinik Eskimo Community (Golovin) Chuloonawick Native Village Circle Native Community Craig Tribal Association (previously listed as Craig Community Association) Curyung Tribal Council (formerly Native Village of Dillingham) Douglas Indian Association Egegik Village Eklutna Native Village Emmonak Village Evansville Village (Bettles Field) Galena Village (Louden Village) Gulkana Village Council (previously listed as Gulkana Village) Healy Lake Village Holy Cross Tribe (previously listed as Holy Cross Village) Hoonah Indian Association Hughes Village Huslia Village Hydaburg Cooperative Association Igiugig Village Inupiat Community of the Arctic Slope Iqurmuit Traditional Council (formerly Native Village of Russian Mission)

Appendix  499 Ivanof Bay Tribe (previously listed as Ivanoff Bay Tribe and Ivanoff Bay Village) Kaguyak Village Kaktovik Village (Barter Island) Kasigluk Traditional Elders Council Kenaitze Indian Tribe Ketchikan Indian Community (previously listed as Ketchikan Indian Corporation) King Island Native Community King Salmon Tribe Klawock Cooperative Association Knik Tribe Kokhanok Village Koyukuk Native Village Levelock Village Lime Village Manley Hot Springs Village Manokotak Village McGrath Native Village Mentasta Traditional Council (formerly Mentasta Lake Village) Metlakatla Indian Community, Annette Island Reserve Naknek Native Village Native Village of Afognak Native Village of Akhiok Native Village of Akutan Native Village of Aleknagik Native Village of Ambler Native Village of Atka Native Village of Atqasuk (previously listed as Atqasuk Village [Atkasook]) Native Village of Barrow Inupiat Traditional Government (formerly Native Village of Barrow) Native Village of Belkofski Native Village of Brevig Mission Native Village of Buckland Native Village of Cantwell Native Village of Chanega (Chenega) Native Village of Chignik Lagoon Native Village of Chitina Native Village of Chuathbaluk (Russian Mission, Kuskokwim) Native Village of Council Native Village of Deering Native Village of Diomede (Inalik) Native Village of Eagle Native Village of Eek Native Village of Ekuk Native Village of Ekwok (previously listed as Ekwok Village) Native Village of Elim Native Village of Eyak (Cordova) Native Village of False Pass Native Village of Fort Yukon

500 Appendix Native Village of Gakona Native Village of Gambell Native Village of Georgetown Native Village of Goodnews Bay Native Village of Hamilton Native Village of Hooper Bay Native Village of Kanatak Native Village of Karluk Native Village of Kiana Native Village of Kipnuk Native Village of Kivalina Native Village of Kluti Kaah (Copper Center) Native Village of Kobuk Native Village of Kongiganak Native Village of Kotzebue Native Village of Koyuk Native Village of Kwigillingok Native Village of Kwinhagak (Quinhagak) Native Village of Larsen Bay Native Village of Marshall (Fortuna Ledge) Native Village of Mary’s Igloo Native Village of Mekoryuk Native Village of Minto Native Village of Nanwalek (English Bay) Native Village of Napaimute Native Village of Napakiak Native Village of Napaskiak Native Village of Nelson Lagoon Native Village of Nightmute Native Village of Nikolski Native Village of Noatak Native Village of Nuiqsut (Nooiksut) Native Village of Nunam Iqua Native Village of Nunapitchuk Native Village of Ouzinkie Native Village of Paimiut Native Village of Perryville Native Village of Pilot Point Native Village of Point Hope Native Village of Point Lay Native Village of Port Graham Native Village of Port Heiden Native Village of Port Lions Native Village of Ruby Native Village of Saint Michael Native Village of Savoonga Native Village of Scammon Bay Native Village of Selawik

Appendix  501 Native Village of Shaktoolik Native Village of Shishmaref Native Village of Shungnak Native Village of Stevens Native Village of Tanacross Native Village of Tanana Native Village of Tatitlek Native Village of Tazlina Native Village of Teller Native Village of Tetlin Native Village of Tuntutuliak Native Village of Tununak Native Village of Tyonek Native Village of Unalakleet Native Village of Unga Native Village of Venetie Tribal Government (Arctic Village and Village of Venetie) Native Village of Wales Native Village of White Mountain Nenana Native Association New Koliganek Village Council (formerly Koliganek Village) New Stuyahok Village Newhalen Village Newtok Village Nikolai Village Ninilchik Village Nome Eskimo Community Nondalton Village Noorvik Native Community Northway Village Nulato Village Nunakauyarmiut Tribe Organized Village of Grayling (Holikachuk) Organized Village of Kake Organized Village of Kasaan Organized Village of Kwethluk Organized Village of Saxman Orutsararmiut Traditional Native Council (previously listed as Orutsararmuit Native Village [aka Bethel]) Oscarville Traditional Village Pauloff Harbor Village Pedro Bay Village Petersburg Indian Association Pilot Station Traditional Village Pitka’s Point Traditional Council (previously listed as Native Village of Pitka’s Point) Platinum Traditional Village Portage Creek Village (Ohgsenakale) Pribilof Islands Aleut Communities of St. Paul and St. George Islands Qagan Tayagungin Tribe of Sand Point (previously listed as Qagan Tayagungin Tribe of Sand Point Village)

502 Appendix Qawalangin Tribe of Unalaska Rampart Village Saint George Island (See Pribilof Islands Aleut Communities of St. Paul and St. George Islands) Saint Paul Island (See Pribilof Islands Aleut Communities of St. Paul and St. George Islands) Salamatof Tribe (previously listed as Village of Salamatoff) Seldovia Village Tribe Shageluk Native Village Sitka Tribe of Alaska Skagway Village South Naknek Village Stebbins Community Association Sun’aq Tribe of Kodiak Takotna Village Tangirnaq Native Village Telida Village Traditional Village of Togiak Tuluksak Native Community Twin Hills Village Ugashik Village Umkumiut Native Village Village of Alakanuk Village of Anaktuvuk Pass Village of Aniak Village of Atmautluak Village of Bill Moore’s Slough Village of Chefornak Village of Clarks Point Village of Crooked Creek Village of Dot Lake Village of Iliamna Village of Kalskag Village of Kaltag Village of Kotlik Village of Lower Kalskag Village of Ohogamiut Village of Red Devil Village of Sleetmute Village of Solomon Village of Stony River Village of Venetie (See Native Village of Venetie Tribal Government) Village of Wainwright Wrangell Cooperative Association Yakutat Tlingit Tribe Yupiit of Andreafski

Appendix  503

ARIZONA Federally Recognized Ak Chin Indian Community Cocopah Tribe Colorado River Indian Tribes (Arizona and California) Fort McDowell Yavapai Nation Fort Mojave Indian Tribe (Arizona, California and Nevada) Gila River Indian Community Havasupai Tribe Hopi Tribe Hualapai Indian Tribe Kaibab Band of Paiute Indians Navajo Nation (Arizona, New Mexico, and Utah) Pascua Yaqui Tribe Pueblo of Zuni (also in New Mexico) Quechan Tribe of the Fort Yuma Indian Reservation Salt River Pima-​Maricopa Indian Community San Carlos Apache Tribe San Juan Southern Paiute Tribe Tohono O’odham Nation Tonto Apache Tribe White Mountain Apache Tribe Yavapai-​Apache Nation Yavapai-​Prescott Tribe

CALIFORNIA Federally Recognized Agua Caliente Band of Cahuilla Indians Alturas Indian Rancheria Augustine Band of Cahuilla Indians Barona Band of Mission Indians Bear River Band of the Rohnerville Rancheria Berry Creek Rancheria of Maidu Indians of California Big Lagoon Rancheria Big Pine Paiute Tribe of the Owens Valley (previously listed as the Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California) Big Sandy Rancheria of Western Mono Indians (previously listed as the Big Sandy Rancheria of Mono Indians of California) Big Valley Band of Pomo Indians of the Big Valley Rancheria Blue Lake Rancheria Bridgeport Indian Colony (previously listed as the Bridgeport Paiute Indian Colony of California) Buena Vista Rancheria of Me-​Wuk Indians

504 Appendix Cabazon Band of Mission Indians Cachil DeHe Band of Wintun Indians of the Colusa Indian Community Cahto Indian Tribe of the Laytonville Rancheria Cahuilla Band of Mission Indians California Valley Miwok Tribe Campo Band of Diegueño Mission Indians Capitan Grande Band of Diegueño Mission Indians Cedarville Rancheria Chemehuevi Indian Tribe Cher-​Ae Heights Indian Community of the Trinidad Rancheria Chicken Ranch Rancheria of Me-​Wuk Indians Cloverdale Rancheria of Pomo Indians Cocopah Indian Tribe Cold Springs Rancheria of Mono Indians Colorado River Indian Tribes (Arizona and California) Cortina Indian Rancheria of Wintun Indians Coyote Valley Band of Pomo Indians Death Valley Timbi-​Sha Shoshone Band Dry Creek Rancheria of Pomo Indians Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria Elk Valley Rancheria Enterprise Rancheria of Maidu Indians Ewiiaapaayp Band of Kumeyaay Indians Federated Indians of Graton Rancheria Fort Bidwell Indian Community of the Fort Bidwell Reservation of California Fort Independence Indian Community of Paiute Indians Fort Mojave Indian Tribe (Arizona, California and Nevada) Greenville Rancheria Grindstone Indian Rancheria of Wintun-​Wailaki Indians Guidiville Rancheria of California Habermatolel Pomo of Upper Lake Hoopa Valley Tribe Hopland Band of Pomo Indians Iipay Nation of Santa Ysabel (formerly Santa Ysabel Band) Inaja Band of Diegueño Mission Indians Ione Band of Miwok Indians Jackson Rancheria of Me-​Wuk Indians Jamul Indian Village of California Karuk Tribe Kashia Band of Pomo Indians of the Stewart’s Point Rancheria La Jolla Band of Luiseño Indians La Posta Band of Diegueño Mission Indians Los Coyotes Band of Cahuilla and Cupeno Indians Koi Nation of Northern California (previously listed as the Lower Lake Rancheria, California) Lytton Rancheria of California Manchester Band of Pomo Indians Manzanita Band of Diegueño Mission Indians

Appendix  505 Mechoopda Indian Tribe of Chico Rancheria Mesa Grande Band of Diegueño Mission Indians Middletown Rancheria of Pomo Indians Mooretown Rancheria of Maidu Indians Morongo Band of Mission Indians North Fork Rancheria of Mono Indians Bishop Paiute Tribe (previously listed as the Paiute-​Shoshone Indians of the Bishop Community) Lone Pine Paiute-​Shoshone Tribe (previously listed as the Paiute-​Shoshone Indians of the Lone Community) Pala Band of Mission Indians (previously listed as the Pala Band of Luiseno Mission Indians) Paskenta Band of Nomlaki Indians Pauma Band of Luiseño Mission Indians Pechanga Band of Luiseño Mission Indians Picayune Rancheria of Chukchansi Indians Pinoleville Pomo Nation Pit River Tribe (includes Big Bend, Likely, Lookout, Montgomery Creek, and Roaring Creek Rancherias, and XL Ranch) Potter Valley Tribe Quartz Valley Indian Community Quechan Tribe of the Fort Yuma Indian Reservation (Arizona and California) Ramona Band or Village of Cahuilla Mission Indians Ramona Band of Cahuilla Redding Rancheria Redding Rancheria Redwood Valley Rancheria of Pomo Indians Resighini Rancheria (formerly known as the Coast Indian Community of Yurok Indians of the Resighini Rancheria) Rincon Band of Luiseño Mission Indians Robinson Rancheria of Pomo Indians Round Valley Indian Tribes (formerly known as the Covelo Indian Community) San Manual Band of Mission Indians San Pasqual Band of Diegueño Mission Indians Santa Rosa Band of Cahuilla Indians Santa Rosa Indian Community Santa Ynez Band of Chumash Mission Indians Scotts Valley Band of Pomo Indians Sherwood Valley Rancheria of Pomo Indians Shingle Springs Band of Miwok Indians Soboba Band of Luiseño Indians Susanville Indian Rancheria Sycuan Band of Kumeyaay Nation Table Mountain Rancheria Tejon Indian Tribe Tolowa Dee-​ni’ Nation (formerly known as Smith River Rancheria) Torres-​Martinez Desert Cahuilla Indians Tule River Indian Tribe of California Tuolumne Band of Me-​Wuk Indians

506 Appendix Twenty-​Nine Palms Band of Luiseño Mission Indians United Auburn Indian Community Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians Washoe Tribe of Nevada and California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, and Washoe Ranches) Wilton Rancheria Wiyot Tribe Yocha Dehe Wintun Nation (formerly Rumsey Indian Rancheria) Yurok Tribe

COLORADO Federally Recognized Southern Ute Indian Tribe Ute Mountain Ute Tribe (Colorado, New Mexico, and Utah)

CONNECTICUT Federally Recognized Mashantucket Pequot Tribe Mohegan Tribe

State-​Recognized Eastern Pequot Tribal Nation Golden Hill Paugussett Tribe Schaghticoke Tribal Nation

DELAWARE State-​Recognized Lenape Indian Tribe of Delaware Nanticoke Indian Tribe

FLORIDA Federally Recognized Miccosukee Tribe of Indians of Florida

Appendix  507 Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood, and Tampa Reservations)

GEORGIA State-​Recognized Cherokee of Georgia Tribal Council Georgia Tribe of Eastern Cherokee Lower Muscogee Creek Tribe

IDAHO Federally Recognized Coeur D’Alene Tribe Kootenai Tribe of Idaho Nez Perce Tribe Shoshone-​Bannock Tribes Shoshone-​Paiute Tribes of the Duck Valley Indian Reservation (Idaho and Nevada)

INDIANA Federally Recognized Pokagon Band of Potawatomi Indians

IOWA Federally Recognized Sac & Fox Tribe of the Mississippi in Iowa

KANSAS Federally Recognized Iowa Tribe (Kansas and Nebraska) Kickapoo Tribe in Kansas Prairie Band of Potawatomi Nation Sac and Fox Nation of Missouri (Kansas and Nebraska)

508 Appendix

LOUISIANA Federally Recognized Chitimacha Tribe of Louisiana Coushatta Tribe of Louisiana Jena Band of Choctaw Indians Tunica-​Biloxi Tribe of Louisiana

State-​Recognized Adai Caddo Indian Tribe Biloxi-​Chitimacha Confederation of Muskogee Choctaw-​Apache Community of Ebarb Clifton Choctaw Tribe Four Winds Cherokee Tribe Grand Caillou/​Dulac Band Isle de Jean Charles Band Louisiana Choctaw Tribe Natchitoches Tribe of Louisiana Point-​Au-​Chien Tribe United Houma Nation

MAINE Federally Recognized Aroostook Band of Micmac Indians Houlton Band of Maliseet Indians Passamaquoddy Tribe Penobscot Tribe

MARYLAND State-​Recognized Accohannock Indian Tribe Piscataway Conoy Tribe Piscataway Indian Nation

Appendix  509

MASSACHUSETTS Federally Recognized Mashpee Wampanoag Tribe Wampanoag Tribe of Gay Head (Aquinnah)

State-​Recognized Nipmuc Nation

MICHIGAN Federally Recognized Bay Mills Indian Community Grand Traverse Band of Ottawa and Chippewa Indians Hannahville Indian Community Keweenaw Bay Indian Community Lac Vieux Desert Band of Lake Superior Chippewa Indians Little River Band of Ottawa Indians Little Traverse Bay Bands of Odawa Indians Match-​e-​be-​nash-​she-​wish Band of Pottawatomi Indians of Michigan (formerly the Gun Lake Band of Grand River Ottawa Indians) Nottawaseppi Huron Band of the Pottawatomi (formerly the Huron Pottawatomi) Pokagon Band of Potawatomi Indians (Michigan and Indiana) Saginaw Chippewa Indian Tribe of Michigan Sault Ste. Marie Tribe of Chippewa Indians

State-​Recognized Burt Lake Band of Ottawa and Chippewa Indians Grand River Band of Ottawa Indians Mackinac Band of Chippewa and Ottawa Indians Swan Creek Black River Confederated Ojibwa Tribes

510 Appendix

MINNESOTA Federally Recognized Lower Sioux Indian Community Minnesota Chippewa Tribe (Six component reservations: Bois Forte Band [Nett Lake], Fond du Lac Band, Grand Portage Band, Leech Lake Band, Mille Lacs Band, and White Earth Band) Prairie Island Indian Community Red Lake Band of Chippewa Indians Shakopee Mdewakanton Sioux Community Upper Sioux Community

MISSISSIPPI Federally Recognized Mississippi Band of Choctaw Indians

MONTANA Federally Recognized Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation Blackfeet Nation Chippewa-​Cree Indians Confederated Salish and Kootenai Tribes of the Flathead Reservation Crow Tribe Fort Belknap Indian Community Little Shell Tribe of Chippewa Indians of Montana Northern Cheyenne Tribe

NEBRASKA Federally Recognized Iowa Tribe (Kansas and Nebraska) Omaha Tribe of Nebraska Ponca Tribe of Nebraska Sac and Fox Nation of Missouri (Kansas and Nebraska) Santee Sioux Nation Winnebago Tribe of Nebraska

Appendix  511

NEVADA Federally Recognized Confederated Tribes of the Goshute Reservation (Nevada and Utah) Duckwater Shoshone Tribe Ely Shoshone Tribe Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon Fort Mojave Indian Tribe (Arizona, California, and Nevada) Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony Lovelock Paiute Tribe of the Lovelock Indian Colony Moapa Band of Paiutes Paiute-​Shoshone Tribe of the Fallon Reservation and Colony Pyramid Lake Paiute Tribe Reno-​Sparks Indian Colony Shoshone-​Paiute Tribes of the Duck Valley Indian Reservation (Idaho and Nevada) Summit Lake Paiute Tribe Te-​Moak Tribes of Western Shoshone Indians (Four constituent bands: Battle Mountain, Elko, South Fork, and Wells) Walker River Paiute Tribe Washoe Tribe (Nevada and California) (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, and Washoe Ranches) Winnemucca Indian Colony of Nevada Yerington Paiute Tribe of the Yerington Colony and Campbell Ranch Yomba Shoshone Tribe

NEW JERSEY State-​Recognized Nanticoke Lenni-​Lenape Tribal Nation The Powhatan Renape Nation Ramapough Lenape Nation

NEW MEXICO Federally Recognized Jicarilla Apache Nation Kewa Pueblo (formerly Pueblo of Santo Domingo) Mescalero Apache Tribe Navajo Nation (Arizona, New Mexico, and Utah) Ohkay Owingeh (formerly Pueblo of San Juan) Pueblo of Acoma Pueblo of Cochiti

512 Appendix Pueblo of Jemez Pueblo of Isleta Pueblo of Laguna Pueblo of Nambe Pueblo of Picuris Pueblo of Pojoaque Pueblo of San Felipe Pueblo of San Ildefonso Pueblo of Sandia Pueblo of Santa Ana Pueblo of Santa Clara Pueblo of Taos Pueblo of Tesuque Pueblo of Zia Pueblo of Zuni Ute Mountain Ute Tribe (Colorado, New Mexico, and Utah)

NEW YORK Federally Recognized Cayuga Nation Oneida Nation Onondaga Nation Seneca Nation of Indians Shinnecock Indian Nation St. Regis Mohawk Tribe Tonawanda Band of Seneca Indians Tuscarora Nation of New York

State-​Recognized Unkechaug Nation

NORTH CAROLINA Federally Recognized Eastern Band of Cherokee Indians

State-​Recognized Coharie Tribe Haliwa-​Saponi Indian Tribe

Appendix  513 Lumbee Tribe Meherrin Indian Nation Occaneechi Band of the Saponi Nation Sappony Indian Tribe Waccamaw-​Siouan Tribe

NORTH DAKOTA Federally Recognized Spirit Lake Tribe (formerly known as the Devil’s Lake Sioux Tribe) Standing Rock Sioux Tribe (North Dakota and South Dakota) Three Affiliated Tribes of the Fort Berthold Reservation Turtle Mountain Band of Chippewa Indians

OKLAHOMA Federally Recognized Absentee-​Shawnee Tribe of Indians Alabama-​Quassarte Tribal Town Apache Tribe of Oklahoma Caddo Nation Cherokee Nation Cheyenne and Arapaho Tribes Chickasaw Nation Choctaw Nation Citizen Potawatomi Nation Comanche Nation Delaware Nation Delaware Tribe of Indians Eastern Shawnee Tribe of Oklahoma Fort Sill Apache Tribe Iowa Tribe of Oklahoma Kaw Nation Kialegee Tribal Town Kickapoo Tribe of Oklahoma Kiowa Tribe Miami Tribe of Oklahoma Modoc Nation Muscogee (Creek) Nation Osage Nation Otoe-​Missouria Tribe of Indians Ottawa Tribe of Oklahoma Pawnee Nation Peoria Tribe of Indians of Oklahoma

514 Appendix Ponca Tribe of Indians of Oklahoma Quapaw Tribe of Indians Sac and Fox Nation The Seminole Nation of Oklahoma Seneca-​Cayuga Nation Shawnee Tribe Thlopthlocco Tribal Town Tonkawa Tribe United Keetoowah Band of Cherokee Indians in Oklahoma Wichita and Affiliated Tribes (Wichita, Keechi, Waco, and Tawakonie) Wyandotte Nation

OREGON Federally Recognized Burns Paiute Tribe Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw Indians Confederated Tribes of the Grand Ronde Confederated Tribes of Siletz Indians of Oregon Confederated Tribes of the Umatilla Indian Reservation Confederated Tribes of the Warm Springs Reservation Coquille Indian Tribe Cow Creek Band of Umpqua Tribe of Indians Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon Klamath Tribes

RHODE ISLAND Federally Recognized Narragansett Indian Tribe

SOUTH CAROLINA Federally Recognized Catawba Indian Nation (Catawba Tribe)

State-​Recognized Beaver Creek Indians Edisto Natchez Kusso Tribe

Appendix  515 Pee Dee Indian Tribe Pee Dee Indian Tribe of South Carolina Pee Dee Nation of Upper South Carolina Santee Indian Organization The Waccamaw Indian People Wassamasaw Tribe of Varnertown Indians

SOUTH DAKOTA Federally Recognized Cheyenne River Sioux Tribe Crow Creek Sioux Tribe Flandreau Santee Sioux Tribe Lower Brule Sioux Tribe Oglala Sioux Tribe Rosebud Sioux Tribe Sisseton-​Wahpeton Oyate of the Lake Traverse Reservation Standing Rock Sioux Tribe (North Dakota and South Dakota) Yankton Sioux Tribe

TEXAS Federally Recognized Alabama-​Coushatta Tribe of Texas Kickapoo Traditional Tribe of Texas Ysleta Del Sur Pueblo

UTAH Federally Recognized Confederated Tribes of the Goshute Reservation (Nevada and Utah) Navajo Nation (Arizona, New Mexico, and Utah) Northwestern Band of the Shoshone Nation Paiute Indian Tribe of Utah Skull Valley Band of Goshute Indians Ute Indian Tribe of the Uintah and Ouray Reservation Ute Mountain Ute Tribe (Colorado, New Mexico, and Utah)

516 Appendix

VERMONT State-​Recognized Elnu Abenaki Tribe Koasek Abenaki Tribe Mississquoi Abenaki Tribe Nulhegan Band of the Coosuk Abenaki Nation

VIRGINIA Federally Recognized Chickahominy Indian Tribe Chickahominy Indian Tribe–​Eastern Division Monacan Indian Nation Nansemond Indian Tribe Pamunkey Indian Tribe Rappahannock Tribe, Inc. Upper Mattaponi Tribe

State-​Recognized Cheroenhaka (Nottoway) Mattaponi Nottoway of Virginia Patawomeck

WASHINGTON Federally Recognized Confederated Tribes of the Chehalis Reservation Confederated Tribes of the Colville Reservation Confederated Tribes and Bands of the Yakama Nation Cowlitz Indian Tribe Hoh Indian Tribe Jamestown S’Klallam Tribe Kalispel Tribe of Indians Lower Elwha Tribal Community Lummi Nation Makah Indian Tribe

Appendix  517 Muckleshoot Indian Tribe Nisqually Indian Tribe Nooksack Indian Tribe Port Gamble S’Klallam Tribe Puyallup Tribe of Indians Quileute Nation Quinault Indian Nation Samish Indian Tribe Sauk-​Suiattle Indian Tribe Shoalwater Bay Tribe Skokomish Indian Tribe Snoqualmie Tribe Spokane Tribe of Indians Squaxin Island Tribe Stillaguamish Tribe of Indians Suquamish Indian Tribe of the Port Madison Reservation Swinomish Indian Tribal Community Tulalip Tribes Upper Skagit Indian Tribe

WISCONSIN Federally Recognized Bad River Band of the Lake Superior Tribe of Chippewa Indians Forest County Potawotomi Community Ho-​Chunk Nation (formerly known as the Wisconsin Winnebago Tribe) Lac Courte Oreilles Band of Lake Superior Chippewa Indians Lac du Flambeau Band of Lake Superior Chippewa Indians Lac Vieux Desert Band of Lake Superior Chippewa Indians Menominee Indian Tribe of Wisconsin Oneida Nation Red Cliff Band of Lake Superior Chippewa Indians Sokaogon Chippewa Community St. Croix Chippewa Indians of Wisconsin Stockbridge-​Munsee Community

WYOMING Federally Recognized Arapahoe Tribe of the Wind River Reservation Shoshone Tribe of the Wind River Reservation

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages.   Aboriginal rights. See Hunting and fishing Aleuts. See Alaska Natives rights Allotments, 9–10, 35, 110–11, 113, 223. Aboriginal title, 38–40, 144 See also General Allotment Act Adams, John. See U.S. Presidents (GAA), 1887; Land Administrative Procedure Act (APA), 473, Allotted trust land, defined, 36. See also Land 478–80 American Indian Law Center, 139 Adoption, 433, 436, 438–40, 445–46, 447. American Indian Probate Reform Act See also Indian Child Welfare Act (2004), 113 (ICWA), 1978 American Indian Religious Freedom Act Adoptive Couple v. Baby Girl (2013), 444 (AIRFA), 1978, 334 Advisory Council on Historic American Indian Trust Fund Management Preservation (ACHP), 61–62 Reform Act (1994), 118 Age Discrimination in Employment Act Americans with Disabilities Act (ADA), (ADEA), 1967, 154–55, 463 1990, 154 Agua Caliente Band of Cahuilla Indians, Anadromous fish. See Hunting and fishing 310 rights Alaska National Interest Lands Anglo-American values, 146, 442 Conservation Act (ANILCA), 1980, Animal rights groups, 293–94 383–85 Antelope; United States v. (1977), 191 Alaska Native Allotment Act (1906), 383 Apache Tribe, 83, 388 Alaska Native Claims Settlement Act Appellate courts, 139. See also Court (ANCSA), 1971, 381–85 systems, tribal Alaska Native Corporations (ANCs), 382, Apportionment. See U.S. Congress; Water 385, 398 rights (Winters doctrine) Alaska Native Townsite Act (1926), 383 Appropriation doctrine. See Prior Alaska Natives, 30, 31–32, 34–35, 275, 294, appropriation doctrine 379–87 Arapaho Tribe, 82 Alaska Statehood Act (1959), 380–81 Arbitration clauses. See Corporations; U.S Alaska Supreme Court, 384–85, 386, 441, Supreme Court 444 Archaeological Resources Protection Act Alaska v. Native Village of Venetie Tribal (1979), 60 Government (1998), 34–35, 385–86 Arikara Tribe, 4 Albany Plan (1754), 5 Arizona v. California (1963), 306, 312 Albuquerque, City of v. Browner (1996), Arizona v. Navajo Nation (2023), 53, 56, 316–17 310, 319–20, 480 Alcohol. See Liquor regulation Army Corps of Engineers, U.S. See U.S. Alcohol and drug abuse, 185 Army Corps of Engineers

520 Index Aroostook Band of Micmac Indians, 225 Asset regulation, tribal, 117–18 Assimilation policy, 7–10. See also Public Law 83-280 (P.L. 280), 1953 Assimilative Crimes Act (ACA), 1825, 187, 193 Assiniboine Tribe, 32, 305–6 Atkinson Trading Co. v. Shirley (2001), 214, 218, 264–65 Attorneys in tribal courts. See Court systems, tribal Atwood, Barbara, 445   “Bad men” treaty provision, 79 Balancing test (Bracker), 229, 261, 263 Bald and Golden Eagle Protection Act (1940). See Eagles, protection of Band, use of term, 32–33 Banishment, 137, 141, 367–68 Bears Ears National Monument (Utah), 15–16, 338 Becoming Visible (NCAI report), 340. See also National Congress of American Indians (NCAI) Berger, Bethany, 344 Biden, Joseph. See U.S. Presidents Bill of Rights. See U.S. Constitution Bison, 7–8, 79 Black Hills (South Dakota), 7, 82–83, 84, 114–15, 338–39 Black, Hugo, 83 Blatchford v. Native Village of Noatak (1991), 471 Blood quantum requirement. See Membership in tribes Boarding schools, 8, 53, 99, 340 Boerne, City of v. Flores (1997), 335 Bois Forte Indian Reservation, 179 Boldt, George H., 287 Bowen v. Roy (1986), 331, 332, 333–34 Bracker balancing test, 229, 261, 263 Brendale v. Confederated Tribes and Bands of Yakima Indian Nation (1989), 213 Brnovich v. Democratic National Committee (2021), 341–42 Brookings Institute, Meriam Report, 10 Bryant, United States v. (2016), 365

Bryan v. Itasca County, Minnesota (1986), 224 Bureau of Indian Affairs (BIA) critique of, 105, 136 funding of, 104 “Guidelines for State Courts,” 436, 441, 443, 444, 445 hiring preferences, 100 identification cards, 293 Indian employees of, 11, 102 Indian labor and products, use of, 154 land, leasing of, 13–15, 112 law enforcement officers, training of, 179–80 law enforcement, tribal, 475 Office of Indian Affairs, 102 Office of Federal Acknowledgement, 397–98 overview, 102 recognition process, lack of, 396 self-determination contracts, 103–4 trade licensing, 119 tribal contracts with, 13–15 Bureau of Indian Education (BIE), 102 Bush, George W. See U.S. Presidents Business activities. See Commerce and trade rights; Economic development; Gaming enterprises Buy-Indian Act (1910), 154   Cabazon Band of Mission Indians, 175– 76, 224, 411–12 Cahuilla Indians, 32 California Indians and treaties, 7–8, 78 California v. Cabazon Band of Mission Indians (1987), 175–76, 224, 411–12 Canada, 280 Canons of treaty construction. See Treaty rights Canyon de Chelly National Monument (Arizona), 344–45 Capital punishment. See Death penalty Cappaert v. United States (1976), 306, 310, 312–13 Carcieri v. Salazar (2009), 115–16, 420–21 CARES Act. See Coronavirus Aid, Relief, and Economic Security Act (CARES), 2020

Index  521 Carson River (Nevada), 315 Casinos. See Gaming enterprises Castro-Huerta, see Oklahoma v. CastroHuerta (2022) Cayuga Indian Nation, 259, 392, 393 Cedarville Rancheria, 32 Census Bureau, U.S. See U.S. Census Bureau CFR courts. See Court systems, tribal Chehalis Reservation, 179 Cherokee Indian Reservation, 131 Cherokee Nation, 1, 7, 32, 48, 80, 140, 348, 387 Cheyenne River Sioux Reservation, 185 Chickasaw Tribe, 80, 387 Child custody. See Indian Child Welfare Act (ICWA) Children, 8, 13–15, 437–38 Choctaw Tribe, 80, 387 Cigarette taxes, 257, 258–60, 262–63 Citizen Band Potawatomi (rule), 259 Citizenship Act (1924), 10, 380 “Civilizing” initiatives, 8, 51–52 Civil jurisdiction consensual relationship (test), 150, 212–13, 214, 216–17, 264–65, 282–83 exhaustion requirement, 220–21, 258, 368 federal, 235–36 federal preemption test and, 227–30, 231–32 Montana exceptions, 212–13, 214–15, 216–17, 218, 219 non-Indians and, 151–52 state, 174–77, 221–26, 234–35 taxation and, 13–15, 150, 212–15, 231–33, 236 tribal, 149–52, 211–21 Civil rights. See also Discrimination; United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) burial remains, protection of, 344–46 definition of, 329 private discrimination, protection against, 344

religion, freedom of, 330–39 state citizens, Indians as, 339–41 stereotyping, racial, and, 346–49 UNDRIP and, 338–39, 349–50 voting rights, 341–43 Civil Rights Act (Title VII), 1964, 154 Civil War, 388 Class I/II/III gaming, 413–16 Clean Air Act (1963), 221 Clean Water Act (CWA), 1972, 143, 316–17 Climate change, effects of, 146–47, 294, 315 Clinton, William J. See U.S. Presidents Cobell v. Salazar (1996), 57, 118 Code of Federal Regulations (CFR), 8, 137, 190, 396 Cole, Tom, 343 Collier, John, 11 Colorado River, 306 Colorado River Water Conservation District v. United States (1976), 317–18 Colorado Supreme Court, 437–38 Columbia River, 276–77, 281 Columbia River Inter-Tribal Fish Commission, 275 Columbus, Christopher, 3, 348–49 Colville Confederated Tribes, 149–50 Colville Confederated Tribes v. Walton (1981), 316 Comanche Tribe, 83 Comity, 220, 233–34 Commerce and trade rights. See also Corporations; Gaming enterprises businesses, federal funding for, 14, 154 federal power and, 118–19 self-government and, 142–43, 153–55 tax exemptions for business, 252 trade licensing, 118–19, 155, 212 Commerce Clause. See U.S. Constitution Commerce Department, U.S. See U.S. Commerce Department Commission on Civil Rights, U.S. See U.S. Commission on Civil Rights Communal property, 146 Compacts. See States, State taxation Compelling interest (test), 100, 331–35

522 Index Compensation abrogation of hunting and fishing rights and, 279, 280 Alaska Natives, 381–85 eminent domain and, 143, 226 Mitchell doctrine, 54–55, 476–77 recognized title, termination of, 39–40 tax immunities as, 256 Concurrent jurisdiction, 180–81, 195, 221, 224, 231, 386, 448–49 Congress, U.S. See U.S. Congress Consensual relationship (test), 150, 212– 13, 214, 216–17, 264–65, 282–83 Conservation laws, 278, 281, 282, 289–90, 293–94 Conservation necessity (exception), 289– 90, 291. See also Hunting and fishing rights; McCarran Amendment (1952); Puyallup Tribe, Inc. v. Department of Game (1968) Constitution, U.S. See U.S. Constitution Constitutions of tribes. See Tribes Consultation, duty of, 58–63 Cooley; United States v. (2021), 148, 151–52, 219 Coronavirus Aid, Relief, and Economic Security Act (CARES), 2020, 17, 31–32, 105, 385, 398 Corporations arbitration clauses, 465 state-chartered, 64, 232–33 state taxation and, 232–33, 260–61 tribal, 153, 260–61, 385 tribal sovereign immunity and, 462, 464–65 tribes as federally chartered, 11 Cotton Petroleum Corp. v. New Mexico (1989), 232, 262–63 Council on Environmental Quality (CEQ), 60 Court of Federal Claims, 476, 477 Court of Indian Offenses (CFR courts). See Court systems, tribal Court systems, tribal. See also Indian Civil Rights Act (ICRA), 1968 appellate courts, 139 attorneys, 139 CFR courts, 8, 137–38, 190

civil rights protections, 138 domestic relations regulation, 152–53 ICRA and, 363–70 judges, eligibility requirements, 139 jury trials, 218–19 membership cases, 141, 366–68 penalty limitations, 149, 182–83, 371 punishments, limits on, 105 restoration and healing, use of, 137 Cowlitz Tribe, 115–16, 420–21 Creek Tribe, 80 Crime, 181–86, 188, 192, 196–97 Criminal jurisdiction congressional authorization, 195–96 crime rates, 181–86 death penalty, 192 definition of, 171 early history of, 12 extradition and, 197–98 federal power and, 119–20, 187–88, 192, 193 five principles of, 171–72 Indian against Indian crime, 188 Indian against non-Indian crime, 187–88 Indian off-reservation crime, 198–99 lesser included offense (instruction), 191–92 major crimes, 172–74 major statutes, 172–83 mandatory states, in, 180–81, 196 non-Indian against Indian crime, 192–93 non-Indian against non-Indian crime, 194–95 nonmember Indians and, 148 option states, in, 180–81, 186–92 tribal criminal jurisdiction rights, 147–49 victimless crime, 196–97 Worcester doctrine, 171 Crow Creek Sioux Tribe, 114–15 Crow Dog, Ex parte (1883), 171, 172–73 Crow Tribe, 85–86, 109–10, 277–78, 315 Culverts Case. See Hunting and fishing rights Curtis Act (1898), 391

Index  523 Custer, George Armstrong, 82–83 Cutter v. Wilkinson (2005), 335   Dakota Access Pipeline (DAPL), 15–16 Damages, 233, 369, 465–66, 468, 474–78 Dams, 276–77, 281, 337 Davids, Sharice, 343 Dawes Act. See General Allotment Act (GAA), 1887 Death penalty, 192 Death Valley National Monument (California/Nevada), 306, 310 Declaration of Independence (1776), 88 Declaration on the Rights of Indigenous Peoples. See United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Deeded land. See Land Delaware Indians, 5, 77 Deloria, Vine, Jr., 396–97 Denver Art Museum, 344–45 Devils Tower (Wyoming), 65, 338 Diminishment power, 116–17 Dion; United States v. (1986), 285 Discovery Doctrine, 36–38, 96, 380 Discrimination. See also Civil rights bank, 215 federal court sentences and, 191 non-Indians, 185 private discrimination, protection against, 344 prohibition, racial, 99–101, 339–41 state laws, 339–41 stereotyping, racial, 346–49, 433, 441– 42, 445, 449 voting rights, 341–43 Diseases, 4, 387 Disenrollment practices. See Gaming enterprises; Membership in tribes Disestablishment power, 116–17 Divorce. See Marriage and divorce Dollar General v. Mississippi Band of Choctaw Indians (2016), 215–16 Domestic relations regulation, 147–48, 152–53. See also Indian Child Welfare Act (ICWA)

Double Jeopardy Clause, 189–90, 195 Duro v. Reina (1990), 148, 179 Eagles, protection of, 285, 336 EagleWoman (Angelique Townsend), 137 Easements and rights-of-way, 113, 262–63 Echo-Hawk (Walter), 51–52, 97, 338–39 Economic development, 106, 154–55 Education, 2, 13, 102, 340. See also Indian Self-Determination and Education Assistance Act (ISDEAA), 1975 Eisenhower, Dwight D. See U.S. Presidents Elections, 105, 106–7, 134, 135, 136–37 Electricity production, 281 Eleventh Amendment. See U.S. Constitution Elwha River (Washington), 281 Eminent domain, 143, 145, 226. See also Compensation Employment Division v. Smith (1990), 332, 333–34 Endangered Species Act (ESA), 1973, 60, 284 Enrollment. See Disenrollment practices; Membership in tribes Environmental impact statement (EIS), 284–85 Environmental justice, 294 Equal footing exception, 419. See also Gaming enterprises Ervin, Sam, 362 Eskimos. See Alaska Natives Executive orders. See also Dakota Access Pipeline (DAPL) Bears Ears National Monument oil drilling allowance, 16, 294 consultation duty, 58–59 DAPL, halt of, 16 delegations of power from, 103 executive branch (within), 102 government-to-government relationship, 15, 52–53, 58–59, 62, 106–7, 136–37, 395–96, 398 Indian reservation creation, 16, 103, 144 protection of sacred sites, 338 Exhaustion requirement. See Civil jurisdiction

524 Index Expert witnesses (child custody). See Indian Child Welfare Act (ICWA), 1978 Express limitations on tribes. See Limitations on tribes, implied vs. express Extradition, 197–98, 222   Fair and Accurate Credit Transaction Act (2003), 463 Fair Labor Standards Act (FLSA), 1938, 154–55 Federal acknowledgement process (FAP), 395–98 Federal agencies executive branch (within), 102–3 lawsuits against by Indians, 473–81 treaty abrogation and, 87–88 Federal Bureau of Investigation (FBI). See National Crime Information Center (NCIS) Federal Death Penalty Act (1994), 192 Federal Debt Collection Procedure Act (1990), 462–63 Federal Enclaves Crimes Act. See Indian Country Crimes Act (ICCA), 1817 Federally Recognized Indian Tribe List Act (1994), 396 Federal policy timeline 1492–1787, tribal independence, 3–5 1787–1828, early agreements and treaties, 5–7 1887–1934, allotment and assimilation, 9–10 1934–1953, Indian reorganization, 10–12 1953–1968, Termination Era, 12–13 1968–present, tribal self-determination, 13–17 future trends, 17 Federal power. See also Executive orders; U.S. Congress; U.S. Presidents criminal jurisdiction, 119–20, 171–73, 187–88, 192 delegation of authority to tribes, 103–4 delegation of powers to federal agencies, 102–3 diminishment power, 116–17

disestablishment power, 116–17 hunting and fishing rights, 284–85, 292–94, 309 implementation of, 101–20 individual property regulation, 118 judicial review, 472–81 limitations on, 97–99 liquor regulation, 119, 155, 196 overview, 95–101 race discrimination prohibition, 99–101 recognition of tribes, 31, 32 termination policy, 107–8 trade regulation, 118–19 tribal assets regulation, 117–18 tribal governments, regulation of, 105–7 tribal land regulation, 109–17 tribal leader selection, 106–7 tribal membership regulation, 109 Winters doctrine and, 308–9, 319–21 Federal preemption test, 227–30, 231–32, 253, 283 Federal Tort Claims Act (FTCA), 473, 474–76 Fiduciary responsibility, 50, 51, 55, 56–58 Fifteenth Amendment. See U.S. Constitution Fifth Amendment. See U.S. Constitution Firearms regulation, 176 Fish and Wildlife Service, U.S. See U.S. Fish and Wildlife Service Fisher v. District Court (1976), 152, 230 Fish habitat restoration, 281 Fishing rights. See Hunting and fishing rights Five Civilized Tribes, 387, 388, 389–90, 391 Flathead Indian Reservation, 176–77 Fletcher, Matthew L. M., 16–17, 29, 48, 50, 54, 137–38, 150, 181 Florey, Katherine, 218 Florida State University, 347 Forced deeds. See General Allotment Act (GAA), 1887 Fort Belknap Indian Community, 32 Fort Belknap Indian Reservation, 305–6 Fort, Kathryn, 450 Fort Laramie Treaty, 82–83, 84 Forum shopping, 447–48 Foster care. See Indian Child Welfare Act (ICWA), 1978

Index  525 Fostering Connections to Success and Increasing Adoptions Act (FCSIAA), 2008, 449–50 Fourteenth Amendment. See U.S. Constitution Framers, constitutional. See also Plenarypower doctrine plenary power, 132 rights of Indian tribes, 132 France, 145, 392 Franklin, Benjamin, 5 Fredericks, Gisela. See Strate v. A-1 Contractors Freedom of religion. See U.S. Constitution Free Exercise Clause. See U.S. Constitution French and Indian War (1756–1763), 4, 392 Fuel taxes, 249, 254–55, 259–60 “Full faith and credit.” See U.S. Constitution   Galanda, Gabriel, 142, 423 Gaming enterprises. See also Indian Gaming Regulatory Act (IGRA), 1988; National Indian Gaming Commission (NIGC); National Labor Relations Act (NLRA) “arm of the tribe,” as, 464–65 bingo, 175–76, 411–12 casinos, number of, 2, 411 Congress and, 418–19 disenrollment practices and, 109, 423 equal footing exception, 419 federal income taxes, 250 IGRA authorized gaming, 413, 418–20 impact on tribes, 421–23 intra-tribal conflicts, 423 job creation, 153, 256, 394, 411, 421–22, 424 legal remedies, 417–18 legislative authorization, 412–16 neighboring communities, impact on, 423–25 newly acquired lands, 419–21 NIGC regulatory duties, 414 NLRA and, 154–55 off-reservation, 420 overview, 411–25 per cap payments, 422

political opposition to, 16, 420 profits, use of, 394, 421–22, 423–24 restored lands exception, 419–20 revenue generation, 256, 411, 421, 424 state laws and, 415–17 state revenue-sharing requirements, 378, 415–16, 417, 421, 423–25 tribal enrollment and, 140, 141, 423 waivers of immunity, 415–16, 418 Gathering and trapping rights. See Hunting and fishing rights General Accounting Office (GAO), U.S. See U.S. General Accounting Office (GAO) General Allotment Act (GAA), 1887, 9– 10, 11, 54–55, 103, 110, 114, 116–17, 146, 223, 250–52, 255–56, 318–19, 379, 391, 471 General applicability crimes. See Wherever committed federal crimes Genocide Hispaniola (1492), 348–49 U.S. policies as, 7–9, 107, 387 George III, King of England, 4 Gerrymandering, 342–43 Gila River (Arizona), 315 Gila River Indian Community (GRIC), 309, 315 Gold rush, 7–8, 82–83, 380 Goldwater Institute, 435 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006), 335 Gover, Kevin, 348–49 Governments, right to form. See Self-government Government-to-government relationship, 15, 53, 58–59, 62–63, 66, 106, 137, 396, 398 Grant, Ulysses. See U.S. Presidents Gray whales, 293–94 Grazing leases, 111–12 Great Britain, 4–5, 145, 392 Great Lakes region, 79, 286, 388 Gros Ventre Tribe, 32, 305–6 “Guidelines for State Courts; Indian Child Custody Proceedings.” See Bureau of Indian Affairs (BIA) Gwich’in Nation, 275

526 Index Haaland, Deb, 16, 343 Haaland v. Brackeen, 17, 97, 101, 435–36, 445 Habeas corpus, 365–68 Harjo, Suzan Shown, 347–48 Haudenosaunee. See Six Nations Iroquois Confederacy Health and Human Services Department, U.S. See U.S. Health and Human Services Department Heitkamp, Heidi, 343 Helping Expedite and Advance Tribal Homeownership Act (HEARTH), 2012, 13–15, 112 Heredity and tribal membership. See Membership in tribes Herrera v. Wyoming (2019), 277–78 Hodel, Donald, 55–56 Holy places. See Sacred sites, protection of Hopi Tribe, 135, 330–31, 462–63 House of Representatives, U.S. See U.S. House of Representatives Housing Department, U.S. See U.S. Housing Department Housing, relocation programs, 13 Houston, Sam, 82 Hruska, Roman, 362 Humboldt River (Nevada), 315 Hunting and fishing rights. See also Public Law 83-280 (P.L. 280), 1953 aboriginal rights, 278 Alaska Natives, 383, 384–85 anadromous fish, 275–76, 287, 292 civil jurisdiction and, 214–15 conservation laws and, 281 conservation necessity exception, 289–90, 291 Culverts Case, the, 292 environmental justice issues, 294 fish habitat restoration, 281 “in common with” exception, 290–92 Indian title and, 39 methods of, 280–81, 290 multiple tribal signatories to treaties, 288 navigable waterways and, 279 non-Indians and, 264–65, 276 off-reservation regulations, 235, 285–94

on-reservation regulations, 282–85 overview, 275–95 P.L. 280 and, 195 treaty recognition of, 79, 85–86, 88, 277–78 tribal authority and, 280, 288 whaling rights, 79, 293–94

  Implied abrogation standard, 86 Implied limitations on tribes. See Limitations on tribes, implied vs. express Implied reservation of water, 305–8 Income taxes, 229, 236, 249–53, 260 “In common with” exception. See Hunting and fishing rights Indian definition of, 29–31 use of term, xvii Indian Arts and Crafts Act (1990), 13–15 Indian child, defined, 437–38 Indian Child Welfare Act (ICWA), 1978. See also Public Law 83-280 (P.L. 280), 1953 active vs. reasonable efforts requirement, 443–44 adoption, 433, 436, 438–40, 445–46, 450 constitutionality of, 435–36 custody exemptions, 448 effectiveness of, 449–50 exclusive jurisdiction, 438–39 existing Indian family (exception), 448 expert witnesses, 442–43 federal courts, appeals to, 447–48 foster care, 433, 439–40, 441–42, 445, 447, 450 good cause placement exception, 444–45 implementation guidelines, 436–37 Indian child, defined, 437–38 involuntary placements, 440–42 overview, 433–36 parent, defined, 446 P.L. 280 impact, 448–49 placement due to imminent danger, 446–47 placements, state courts in, 439–42, 444–45

Index  527 placements, voluntary, 439–40 procedures and rights, 434 removal of children from families, history of, 433–34 summary of, 434–35 tribal courts, transfer to, 440–41 unwed fathers, 446 Indian Civil Rights Act (ICRA), 1968 child custody review, 367 controversies of, 371 history of, 361–62 interpretation of, 364–65 legal remedies, 365–68, 370, 467 overview, 361–71 provisions, 105 rights within, 362–63 right to counsel, 365 sentencing guidelines, 179–80 tribal court systems, 105, 138, 139, 141 tribal forums, 368–70 tribal sentencing & penalties, 149, 363–64 violations of, 109 writ of habeas corpus and, 365–68 Indian Claims Commission (ICC), 477 Indian country, defined, 33 Indian Country Crimes Act (ICCA), 1817, 172, 180–81, 187, 188, 190, 192, 193, 196–97 Indian Country Today, on ICRA, 370 Indian Financing Act (1974), 14 Indian Gaming Regulatory Act (IGRA), 1988, 13–15, 98, 143, 250, 395, 412– 22, 462–63 Indian Graves and Records Act (Washington), 346 Indian Health Care Improvement Act (1976), 14, 47 Indian Health Service, 14, 104, 475 Indian Loan Guarantee and Insurance Program, 14 Indian Mineral Development Act (1982), 14, 154

Indian nation, use of term, 32–33 Indian Nonintercourse Act (INA), 1790, 111, 145–46, 378, 393 Indian Preference Act (1934), 100, 101 Indian Removal Act (1830), 7 Indian Reorganization Act (IRA), 1934, 11–12, 105, 114, 115–16, 135–36, 137, 154, 260, 380, 386, 391, 420–21 Indian reservations. See Reservations Indian Self-Determination and Education Assistance Act (ISDEAA), 1975. See also Corporations “638” contracts (Public Law 93-638), 103–4 consultation duty (agencies’), 60 government-to-government relationship, 106, 385–86, 462–63 tribal sovereign immunity, 475 Indian Territory, 7, 80, 109–10, 387, 389 Indian title definition of, 36–40 land ownership and, 143–44 natural resources and, 39 recognized vs. unrecognized, 39–40 Indian Tribal Economic Development and Contract Encouragement Act (2000), 106, 154 Indian Tribal Government Tax Status Act (1982), 14, 252 Indian Tribal Justice Support Act (1993), 47 Indian tribe, defined, 31–33, 438 Indian Trust Asset Reform Act (2016), 48–49 Infringement test, 227, 230–32, 253, 283 Injunctive relief, 469–70, 478–80 Installment contracts for trust lands. See Land Interior Department, U.S. (DOI). See U.S. Interior Department (DOI) Internal Revenue Service (IRS), 251, 252, 261. See also Taxation Inyo County v. Paiute-Shoshone Indians of the Bishop Community (2003), 472

528 Index Iroquois Confederacy. See Six Nations Iroquois Confederacy Iroquois Constitution, 5, 134 Isleta Pueblo, 316–17   Jackson, Andrew. See U.S. Presidents Jefferson, Thomas. See U.S. Presidents Jewell, Sally, 114–15, 315 Job creation, 256, 394, 411, 421–22, 424 Job training, 13 Johnson, Lyndon B. See U.S. Presidents Johnson, Tim, 343 Johnson v. McIntosh (1823), 36–38, 380 John v. Baker (1999), 386 Judges in tribal courts. See Court systems, tribal Judicial review federal suits against tribes, 466 injunctive relief, 469–70 overview, 461–81 state suits against tribes, 466 suits against states, 468–73 suits against tribes, 461–68 suits against U.S., 473–81 tribal commercial ventures, 462 tribal courts, 139 tribal employees, 465–66 tribal exercise of lawsuits, 466–67 tribal officials, 465–66 waivers of immunity, 467–68 Jury trials, 183, 218–19, 364 Just Compensation Clause. See U.S. Constitution Justice Department, U.S. (DOJ). See U.S. Justice Department (DOJ)   Karuk Tribe, 332 Keeble v. United States (1973), 192 Keepseagle v. Perdue (1999), 57 Kerr-McGee Corp. v. Navajo Tribe (1985), 264 Kickapoo Tribe, 388 Kieft’s War, 3 King Philip’s War, 3–4 Kiowa Tribe, 83, 462, 464 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998), 462, 464

Klamath River (Oregon), 276, 281 Krakoff, Sarah, 394, 435 Lakota Tribe, 32, 82–83, 84 Land. See also Land regulation, tribal communal property, 9, 146–47 land-into-trust exchanges, 114–16, 420–21 leasing of, 111–12, 118 non-trust, deeded, 36, 110–11 sales, 111, 143, 145–46 trust, allotted, 36, 142–53 trust, installment contracts for, 96 trust, unalloted, 36 Land Buy-Back Program, 113 Land grants, 145, 377–78 Land-into-trust exchanges. See Land Land regulation, tribal abolition of, 116–17 allotments, 9–10, 35, 110–11, 113, 223 diminishment of, 116–17 early history of, 109–10 easements and rights of way, 113, 262–63 Indian title land, 143–44 inheritance rights, 112–13, 250 non-Indian owned land, 110 private property, 84, 118 sovereign powers and, 142–43 trust lands, 35, 118, 142, 143–44, 145, 250–51, 254, 258, 393–94 Lara; United States v. (2004), 148, 184, 189–90 Law enforcement, tribal cross-deputization, 148, 186, 192–93, 472, 475 funding, lack of, 184, 185, 381 option states, 184 restrictions on, 149 sentencing guidelines, 179–80 Special Law Enforcement Commission (SLEC) agreements, 186 Leadership. See Tribal leaders Lewis v. Clarke (2017), 465 Limitations on tribes, implied vs. express, 132–33 Lincoln v. Vigil (1993), 479 Liquor regulation, 119, 155, 196, 221, 226 Little Colorado River (Arizona), 315 Little League International, 348 Little River Band of Ottawa Tribe, 138–39

Index  529 Livestock, 85–86, 251, 264 Lone Wolf v. Hitchcock (1903), 83, 86, 97 Los Angeles, population demographics, 1 Luiseño Indians, 315, 424 Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), 332–34, 337, 338–39   Magnuson-Stevens Fishery Conservation and Management Act (1976), 284, 292–93 Major Crimes Act (MCA), 172–74, 180– 81, 188–92 Makah Tribe, 79, 293–94 Mandatory states. See Public Law 83-280 (P.L. 280), 1953 Manifest Destiny, 380 Marbury v. Madison (1803), 139 Maricopa Tribe, 309 Marriage and divorce, 152–53, 212, 367, 448 Mascots and stereotyping. See Stereotyping, mascots and Mashantucket Pequot Tribe, 417, 418, 424, 467–68 Mashpee Wampanoag Tribe, 16, 115–16, 117, 396–97, 421, 424–25 Match-E-Be-Nash-She-Wish Band v. Patchak (2012), 116 McBratney; United States v. (1881), 171 McCarran Amendment (1952), 317, 318 McClanahan v. Arizona Tax Commission (1973), 229 McGirt v. Oklahoma (2020), 86–87, 388– 90, 391–92 Membership in tribes denials of, 141–42 disenrollment practices, 109, 141–42, 366–68, 423 enrollment, qualifications for, 140–41 heredity and, 140 Indian blood (ancestry), 30, 140 multiple, 142 regulation of, 109, 141 Menominee Tribe, 175 Meriam Report, 10 Merrion v. Jicarilla Apache Tribe (1982), 142–43, 150, 153–54, 212, 218, 263, 264–65

Mescalero Apache Tribe, 234–35, 260, 282 Mescalero Apache Tribe v. Jones (1973), 234–35, 260 Metacom (Wampanoag leader), 3 Mexico, land grants, 145, 377–78 Michigan v. Bay Mills Indian Community (2014), 417–18 Military strength, federal power and, 95 Miller, Robert J., 1, 37–38, 59–60 Missing and murdered Indigenous women (MMIW), 185–86 Mississippi Band of Choctaw Indians, 215–16, 438–39, 441–42, 444, 445 Mississippi Band of Choctaw Indians v. Holyfield (1989), 438–39, 441–42, 444, 445 Mitchell, Lezmond, 192 Mitchell, United States v. (Mitchell I) (1980), 54–55 Mitchell, United States v. (1980) (Mitchell II), 55, 476–77 Moderate living standard, 291, 312–13 Mohawk Tribe, 392 Mohegan Nation, 4–5, 140, 424 Montana v. United States (1981), 150–52, 153–54, 212–13, 214–15, 216–17, 218, 219, 264–65, 282–83 Morning Star Institute, 347–48 Morton v. Mancari (1974), 100, 101 Mullin, Markwayne, 343 Muscogee (Creek) Indian Reservation, 389 Muscogee (Creek) Nation, 86–87, 387, 389 Museums, 344–45, 348 Mystic Lake Casino, 422   Narragansett Tribe, 225 National Collegiate Athletic Association (NCAA), 347 National Conference of State Legislatures, 221–22 National Congress of American Indians (NCAI), 183, 338–39, 340, 347–48, 398–99 National Crime Information Center (NCIS), 180 National Environmental Policy Act (NEPA), 1969, 60, 284–85, 292–93

530 Index National Farmers Union Insurance Co. v. Crow Tribe of Indians (1985), 220–21 National Historic Preservation Act (NHPA), 1986, 61, 337–38 National Indian Education Association, 347–48 National Indian Gaming Commission (NIGC), 413–14 National Labor Relations Act (NLRA), 1935, 154–55, 418 National Museum of the American Indian (NMAI), 348 National Museum of the American Indian Act (1989), 345 National Park Service, 61, 65, 338, 344–45 National Register of Historic Places, 61 National Voter Registration Act, 342, 343 National Water Commission, 308–9 Native American Graves Protection and Repatriation Act (NAGPRA), 1990, 13–15, 60, 344–46 Native American Housing Assistance and Self-Determination Act (NAHASDA), 1986, 13–15, 112 Native American Programs Act (1974), 13–15 Native American Rights Fund (NARF), 29–30, 31, 350 Native Americans, use of term, xvii Natural resources and tribes. See also Land Indian title and, 39 land, leasing of, 111–12 taxation and, 142–43, 249, 251, 254–55 treaties and, 79, 80 trust doctrine and, 51, 54–55, 65 Navajo Nation, 17–18, 32, 48, 51, 55–56, 58, 104–5, 137–39, 192, 214, 228, 264, 319, 365, 421, 462–63 Navajo Nation v. United States (2003/2009), 55–56, 58 Navajo Reservation, 1, 32, 339–40, 344–45 Navigable waterways, 279 Nevada v. Hicks (2001), 199, 214–15, 216, 218, 472 Nevada v. United States (1983), 320–21 New Mexico; United States v. (1978), 313 New Mexico v. Mescalero Apache Tribe (1973), 282

New York City, population demographics, 1 New York Tribes, 392–95 Nez, Jonathan, 16, 17–18 Nez Perce Tribe, 149–50 Nixon, Richard M. See U.S. Presidents Non-Indians. See also Indian Civil Rights Act (ICRA), 1968; Water rights (Winters doctrine) “bad men” treaty provision, 79 civil jurisdiction and, 151–52 criminal jurisdiction and, 147–49, 181–84 federal agencies, lawsuits against, 65 hunting & fishing rights and, 264–65, 276, 282–83 ICRA and, 363 Indian country status and, 35 on-reservation, taxation of, 212–15 race discrimination challenges, court rejection of, 279–80, 413 reservation residents, 110, 146 reservation residents, state taxation on, 261–63 reservation sales, tax on, 231–32, 257–58 suspected crimes on reservations, detention for, 186 tribal civil jurisdiction, on-reservation, 211–19 tribal jurisdiction, challenges to, 220–21 tribal taxation and, 266 water rights transfer to, 318–19 Nonmember Indians civil jurisdiction and, 149–52, 212, 234 criminal jurisdiction and, 148, 186–87 definition of, 234 fee land ownership, 142 taxation and, 234, 256–57, 264–65 Non-trust land, defined. See Land Northern Pauite Indians, 32 Northwest Ordinance (1789), 6 Not Invisible Act (2010), 186   Obama, Barack, See U.S. Presidents Occupancy rights, 39 Occupational Safety and Health Act (OSHA), 1970, 154–55

Index  531 Office of Federal Acknowledgement (OFA). See Bureau of Indian Affairs (BIA) Office of Indian Affairs. See Bureau of Indian Affairs (BIA) Off-reservation Indians civil jurisdiction and, 234–35 criminal jurisdiction and, 198–99 state power and, 234–35 taxation of, 260 trust doctrine and, 63–64 Oglala Sioux Tribe, 139 Oil and gas rights, 54, 212, 232, 254–55, 262, 264, 381–85, 388 Oklahoma Indian Welfare Act (OIWA), 391 Oklahoma v. Castro-Huerta, 36, 87, 172, 193–94, 226, 390 Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma (2019) 258–59 Oklahoma Tribes, 387–92 Oliphant v. Suquamish Indian Tribe (1978), 147–48, 171, 183, 192–93, 212 O’Lone v. Estate of Shabazz (1987), 331–33 Omaha Tribe, 4 Oneida Indian Nation (OIN), 4–5, 114–15, 146, 258, 392, 393–94, 422 Onondaga Tribe, 392, 393, 394 Option states. See Public Law 83-280 (P.L. 280), 1953 Osage Nation, 388, 391   Pala Band of Mission Indians, 423 Pamunkey Tribe, 396–97 Pandemic relief package. See Coronavirus Aid, Relief, and Economic Security Act (CARES), 2020 Parent, defined. See Indian Child Welfare Act (ICWA), 1978 Particularized inquiry, 227–28, 232, 261 Passamaquoddy Tribe, 418–19 Pass-through taxes, 257–59 Patented land. See Land Paternalism, 11, 52–53 Patrilineal tribes, 140–41 Pawnee Tribe, 345 Pechanga Band of Luiseño Indians, 422, 424 Pechanga Tribe, 141

Penobscot Nation, 225, 418–19 Penobscot River (Maine), 281 Peoria Tribe, 391 Pequot Tribe, 4–5 Pequot War (1634–38), 2 Per capita payments (per caps), 250, 422. See also Gaming enterprises Personal property, 143–44, 254, 264 Peyote, sacramental use, 332, 333–34, 336–37 Picayune Rancheria of Chukchansi Indians, 141 Pierce, Franklin. See U.S. Presidents Pima Tribe, 309 Plains Commerce Bank v. Long Family Land & Cattle Co. (2008) 215, 216 Plenary-power (doctrine), 40, 50–51, 95– 96, 97–98, 117–18, 131–32, 235–36 Pocahantas, 396–97 Pokagon Band of Potawatomi Indians, 114–15, 424 Policy. See Federal policy timeline; Termination policy Pommersheim, Frank, 218 Ponca Tribe, 421 Population demographics, 1–2, 4, 7–8 Possessory vs. ownership interest, 38 Potawatomi Tribe, 258–59, 424–25 Poverty, 2, 13. See also Socioeconomic disadvantages Practicably irrigable acreage (PIA), 312 Preemption test. See Federal preemption test Presidents and presidency. See also Executive orders; U.S. Presidents delegation of powers to, 103 within executive branch, 102 Prior appropriation doctrine, 307–8, 312–13 Property ownership. See Land regulation, tribal Property, private, 84, 118, 212–15, 223 Public Law 83-280 (P.L. 280), 1953. See also Indian Child Welfare Act (ICWA), 1978 civil jurisdiction, 221, 223–25, 395 criminal jurisdiction, 12, 174–81, 394–95, 411–12

532 Index Public Law 83-280 (P.L. 280), 1953 (cont.) ICWA and, 448–49 jurisdiction, retrocession of, 178–79, 225 mandatory states, 12, 174–77, 180–81, 195, 223–24 option states, 176–78, 180–81, 186–92, 195, 224–25 state power and, 12, 174–81, 381 tax immunities and, 255–56 tribal consent, requirement of, 13–15 unfunded mandate, as, 184 water rights and, 318 Public Law 93-638. See Indian SelfDetermination and Education Assistance Act (ISDEAA), 1975 Pueblo Lands Act (1924), 384 Pueblo Tribes, 39–40, 145, 377–79 Puyallup Tribe, Inc. v. Department of Game (1968), 283, 289–90, 291 Pyramid Lake (Nevada), 309 Pyramid Lake Paiute Tribe (PLPT), 309   Quapaw Tribe, 424–25 Quasi-sovereign, use of term, 133 Quiet Title Act (QTA), 474, 481 Quileute Tribe, 293 Quinault Reservation, 54–55, 179 Quinault Tribe, 293 Quiver; United States v. (1916), 197   Race discrimination. See also Discrimination challenges, court rejection of, 279–80, 413 education, in, 340 law enforcement, profiling by, 339–40 prohibition against, 99–101 Racial stereotyping. See Discrimination Racism, religious discrimination and confiscation of land due to, 36–38 guardianship concept and, 51–52 payments to Christian missionaries, 333–34 Railroads, 262–63 Rancheria, use of term, 32–33 Rational basis test, 100, 101, 331–34, 335 Reagan, Ronald. See U.S. Presidents Real property, 143–44

Realty Offices (BIA), 112 Recognized title, 39–40 Recognized tribes. See also U.S. Interior Department (DOI) DOI criteria, 396 Indian title and, 39–40 non-recognized tribes vs., 39–40, 387–99 trust doctrine and, 63 Redding Rancheria, 141 Religious Freedom Restoration Act (RFRA), 1993, 334–37 Religious Land Use and Institutionalized Persons Act (RLUIPA), 2000, 335–36 Religious discrimination. See Racism, religious discrimination and Relocation programs, 13, 340 Removal policy. See Reservations Reservations. See also Indian Reorganization Act (IRA), 1934 crime rates on, 181–86 definition of, 35–36 early removal policy, 7–9, 109–10, 387–88 establishment of, 144–45 executive orders and, 16, 103, 144 federal diminishment power, 116–17 federal disestablishment power, 116–17 Indian country status and, 34–35 IRA, impact of, 11–12 number of, 1 socioeconomic conditions, 2, 17–18 termination policy and, 12–13, 64, 107–8 treaty abrogation and, 86–87 unemployment rates on, 154 Reserved rights doctrine, 80, 277 Reserved water rights, 305–8 Restored lands exception, 419–20 Restricted allotments, 35 Revolutionary War, 4–5 Rights-of-way. See Easements and rights-of-way Rio Mimbres National Forest, New Mexico, 313 Riparian doctrine, 310 Roberts, John, 389 Roosevelt, Franklin D. See U.S. Presidents

Index  533 Rosebud Sioux Tribe, 114–15, 139 Royalty income, 56–57, 118 Russia, 379   Sac and Fox Tribe, 388 Sacred covenants, 84 Sacred sites, protection of, 332, 337–39 Safe Drinking Water Act (1974), 221, 462–63 Saginaw Chippewa Tribe, 138–39, 421 Saint Regis Mohawk Tribe, 135 Sales of trust land. See Land; Land regulation, tribal Salmon, 275–77, 281, 286–87 Samish Tribe, 397 Santa Clara Pueblo Tribe, 140–41 Santa Clara Pueblo v. Martinez (1978), 366–67, 368 Santa Fe National Forest, 39–40 Santee Sioux Reservation, 179 Sault Ste. Marie Tribe of Chippewa Indians, 140 Savanna’s Act (2020), 185–86 Sealaska Corporation, 382–83 Secretarial elections, 105 Secretary of the Interior. See U.S. Interior Department (DOI) Self-determination (concept) contracts, 103–4 history of, 13–17 Self-government Alaska Natives and, 385–86 civil jurisdiction, 33–34, 149–52 commerce and trade rights, 153–55 constitutions, 135–36 criminal jurisdiction, 147–49 domestic relations regulation, 152–53 elections, 105, 106–7, 134, 135, 136–37 federal power and, 103–4, 131–55 impact of, 12–13 legal remedies under, 145–46 limitations on, 131–32, 143 Oklahoma tribes and, 391–92 right to form governments, 107, 134–39 tribal councils, 135, 139 tribal land regulation, 142–46 tribal leaders, 106–7, 134 tribal powers, source of, 131 types of governments, 134–36

Seminole Tribe, 347, 387 Seminole Tribe of Florida v. Florida (1996), 98, 415–16, 470 Senate, U.S. See U.S. Senate Seneca Nation, 392, 417, 420, 424–25 Service of process, 235 Seven Years’ War (1756–1763), 4 Sexual assault. See Violence Against Women Act (VAWA), 2013 Shakopee Mdewakanton Sioux Community, 114–15, 422, 423–24 Shellfish, 279, 286, 291 Sherrill, City of v. Oneida Indian Nation of New York (2005), 258, 259, 393–94 Shoshone Tribe, 82 Sioux Nation, 32, 114–15, 338–39 Six Nations Iroquois Confederacy, 4, 5, 392 Sixth Amendment. See U.S. Constitution Slavery, 4, 388 Smallpox, 4 Smithsonian Institution, 344–45 Soboba Band of Luiseño Indians, 315 Social Security Act, Title IV-E, 449–50 Society of American Indian Government Employees (SAIGE), 65 Socioeconomic disadvantages, 2, 17–18, 64–65, 104–5, 340–41, 422–23, 449 South Dakota Department of Social Services (DSS), 339–40 South Dakota Supreme Court, 199, 230 South Dakota v. Bourland (1993), 213, 218 Southern Ute Indian Reservation, 225 Southwest Intertribal Court of Appeals (SWITCA), 139 Sovereign immunity doctrine, 258–60, 366, 370, 398–99, 417–18, 461–62, 463 Sovereignty. See Tribal sovereignty Spain, 3, 145, 377 Special domestic violence criminal jurisdiction (SDVCJ), 183 Special Law Enforcement Commission (SLEC) agreements, 186 Sport fishing, 287 Sports mascots and stereotyping. See Stereotyping, mascots and Squire v. Capoeman (1956), 249, 250–52

534 Index Standing Rock Sioux Tribe, 15–16, 114–15 State-chartered corporations, 64, 232–33 State civil jurisdiction. See also Public Law 83-280 (P.L. 280), 1953 federal preemption test and, 227–30, 231–32, 283 “full faith and credit,” 233–34 infringement test, 283 New York Indians and, 394–95 service of process, 235 state-chartered corporations, 64, 232–33 Worcester doctrine, 226, 231–32 States civil jurisdiction in Indian country, 221–26 compacts, 221–22, 259–60, 413–14, 415–17 extradition and, 197–98 judicial review and, 466 listing of tribes in, 497–517 tribal suits against, 468–73 States’ power congressional authorization, 195–96 eminent domain, 143, 145 Indians as state citizens, 339–41 infringement and preemption tests, 227–32 nonmember Indians and, 234 off-reservation hunting and fishing rights, 288–92 off-reservation Indians and, 234–35 on-reservation hunting and fishing rights, 283 recognition of tribes, 31 treaty abrogation and, 88 water rights and, 318 Worcester doctrine, 222, 226 State taxation. See also Taxation; Tribal taxation Alaska Natives and, 385–86 balancing test requests, 253 cigarette taxes, 257, 258–60, 262–63 compacts, 259–60 corporations and, 232–33, 260–61 exemptions, 251–55 gaming enterprises and, 415–16

Indian tribes and, 257–60 off-reservation Indians and, 260 pass-through taxes, 257–59 reservation Indians and, 254–56 reservation non-Indians and, 261–63 sales tax, tribal collection of, 231–32, 257 Stereotyping, mascots and, 347–48 Stereotyping. See Discrimination Stevens treaties, 79, 286, 294 Strate v. A-1 Contractors (1997), 213–14, 216, 218 Substantial tribal interest test, 212–16, 217, 218, 219, 264–65 Supremacy Clause. See U.S. Constitution Supreme Court, U.S. See U.S Supreme Court Suquamish Port Madison Reservation, 179 “Surplus” land, 9, 110, 146   Talton v. Mayes (1896), 361 Taxation. See also State taxation; Tribal taxation; Public Law 83-280 (P.L. 280), 1953 civil jurisdiction and, 13–15, 150, 212–15, 223 exemptions, 250–51 express immunities, 252 federal income taxes, 236, 249–50, 260 federal power and, 249–52 fuel, 249, 254–55, 259–60 hunting and fishing rights and, 249 incentives for infrastructure improvement, 154 land-into-trust exchanges, 116 natural resources, 142–43, 249, 254–55 nonmembers on reservations, 256–57 off-reservation Indians, 260 overview, 249–66 pass-through taxes, 257–59 P.L. 280 and, 195, 255–56 state power and, 253–63 tax-exempt bonds, 13–15 tribal forms of, 263–66 tribal gaming income, 412–13 trust lands, 110–11, 250–51, 254, 258, 393–94

Index  535 Taxing and Spending Clause. See U.S. Constitution Tax Injunction Act, 258 Tee-Hit-Ton v. United States (1955), 380–81, 383 Tenth Amendment, 98, 335 Termination policy early history of, 12–13, 64, 107–8, 225 federal power and, 107–8 restoration of federal status to tribes, 13–15, 108, 225, 391–92 Tester, Jon, 343 Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act,(2017), 397, 418–19 Three Affiliated Tribes of North Dakota, 259–60 Timber production, 113 Time immemorial, water rights and, 308 Torts, 217–18, 418, 474–76 Trade. See Commerce and trade rights Trader’s license, 119, 155, 212 Trail of Tears, 7, 387, 389 Trapping rights. See Hunting and fishing rights Treaty Clause. See U.S. Constitution Treaty of Guadalupe Hidalgo (1848), 378, 379 Treaty of Hopewell (1785), 48 Treaty rights. See also U.S. Code; U.S. Constitution; U.S. Supreme Court abrogation of rights, compensation due to, 84 abrogation standards, 86–88, 279 coercion and, 80–81 construction, canons of, 84–86, 277–78 definition of, 77 early U.S. betrayal of, 7–8, 388 enforcement of, 88 foreign countries, with, 280 grant of rights, 77 “in common with” exception, 290–92 legal remedies, 88–89, 477–78 legislative regulation of, 81 number of treaties, 78 overview, 77–89

provisions, 78–79 reservation creation and, 109, 144–45 signatories, 77 Supreme Court on, 77, 80, 81–87, 286 trust responsibility and, 48 U.S. Code, Title 25, Section 71, 81–84 Treaty with Chippewa Nation (1836), 286 Treaty with Crow Tribe of Montana (1868), 286 Treaty with Delaware Indians (1778), 77 Treaty with Makah Tribe (1854–55), 79 Treaty with Navajo Nation (1849), 48 Treaty with Ottawa Nation (1836), 286 Treaty with Yakama Nation (1855), 79 Treaty with Yankton Sioux Tribe (1858), 48, 82 Tribal civil jurisdiction, 149–52 Tribal councils, 135, 139 Tribal courts. See Court systems, tribal Tribal elections. See Elections Tribal General Welfare Exclusion Act (2014), 250 Tribal Law and Order Act (TLOA), 2010, 47, 179–81, 189, 363–64 Tribal leaders. See Self-government Tribal membership. See Membership in tribes Tribal Self-Governance Program, 103–4 Tribal self-government. See Self-government Tribal sovereignty, 16–17, 81–84, 98–99, 131–33, 361. See also Sovereign immunity doctrine Tribal taxation. See also State taxation; Taxation inherent sovereign right, 150, 212–13, 263 nonmembers on reservations and, 264–65 overview, 263–66 reservation non-Indians and, 266 tribal members and, 264 Tribal trust land, defined, 36, 110, 142 Tribes delegation of authority to, 103–4 membership, 30, 31–33, 109, 140–42, 438 non-recognized, 39–40, 63, 387–99

536 Index Tribal trust land, defined (cont.) recognition process, 31–32, 395–99 recognized, 31–32, 39–40, 63, 387–99 state-by-state listing, 497–517 suits against, 461–68 Trinity river, 227 Truckee River (Nevada), 309, 315 Trump, Donald. See U.S. Presidents Trust lands. See also Land regulation, tribal civil jurisdiction and, 150–52 definition of, 36, 110, 142 inheritance of, 112–13 leasing of, 111–12, 118 loan-collateral, 111 purchase of, 114–16 taxation and, 110–11, 250–51, 254, 258, 393–94 Trust responsibility doctrine beneficiaries of, 49, 63 Congress and, 12–13, 50–51, 56–57, 62–63, 64, 99, 107–8 consultation, duty of, 58–63 early Supreme Court cases on, 96 enforcement of, 50–51 evaluative standards, 51 evolution of, 51–54 federal official duty, 49, 64–66 legal remedies, 54–57 legislation, 50 off-reservation Indians and, 63–64 origin of, 48–49 overview, 47–66 sacred site protection, 338–39 statutes and, 50 tribal-owned land and, 379 violation of, 54–58 water rights and, 320–21 Tucker Act (1887), 55, 473, 476–77 Tulalip Tribe, 424 Tuscarora Tribe, 4–5, 392   Umatilla Reservation, 292 Unalloted trust land. See Land Unemployment, 154, 421 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 15–16, 39–40, 59–60, 108, 338–39, 349–50

U.S. Agriculture Department, 57, 62–63, 338 U.S. Army Corps of Engineers, 65, 87–88 U.S. Attorney General’s Office, 179–80 U.S. Cavalry, 82–83 U.S. Code (U.S.C.) Title 18, Section 1151, 33–35 Title 18, Section 1161, 196 Title 25, overview, 99 Title 25, Section 71, 81–84 Title 25, Section 81, 106 Title 25, Section 5108, 114, 420–21 Title 25, Sections 1302, 362–64, 368 Title 25, Sections 1303, 365–66 Title 28, Section 1331, 468, 470, 471, 478–79 Title 28, Section 1343(3), 468, 471–72 Title 28, Section 1353, 468, 471 Title 28, Section 1362, 468, 470–71 Title 42, Section 1983, 471–72 U.S. Census Bureau, 29–30 U.S. Commerce Department, 65 U.S. Commission on Civil Rights, 2, 65, 88–89, 104–5, 313 U.S. Congress apportionment (members from states), 250 constitutional limitations on, 97–99 delegation of authority to tribes, 103–4 early respect for tribal sovereignty, 6 Iroquois Confederacy governance structure, influence of, 5 plenary-power doctrine, 40, 50–51, 95–96, 97–98, 117–18, 131–32, 235–36 presidential appointments, 102 rational basis test and, 100, 101 recognition process, 397, 398–99 restrictions on land sales, 143, 145–46 state jurisdictions, authorizations of, 225–26 state power and, 222–23 tax immunities, 252 treaties and, 8–9, 82–83 trust doctrine and, 12–13, 50–51, 56–57, 63, 64, 99, 107–8, 476–77 waivers of immunity, 461, 462–63, 470

Index  537 U.S. Constitution ancient document, as, 88 Bill of Rights, 329, 362–63, 364 citizenship rights, 4–5 civil rights, 329 Commerce Clause, 31, 95–96, 99, 118–19, 335, 396, 470 Double Jeopardy Clause, 189–90, 195 Due Process Clause, 98, 99, 100 Eleventh Amendment, 98, 415–16, 468–70, 472 Equal Protection Clause, 339 Establishment Clause, 330, 363 Extradition Clause, 197–98 federal authority over tribes, silence on, 132, 133 Fifteenth Amendment, 341–42, 470 Fifth Amendment, 39 First Amendment, 330, 367 Fourteenth Amendment, 330, 339, 364, 470 freedom of religion, 330–39 Free Exercise Clause, 330–32, 335 “full faith and credit” (comity), 233–34 “Indians not taxed,” defined, 250 Indians’ political status, 99 Indian, use of term, 29 Iroquois Constitution influence on, 134 Just Compensation Clause, 39, 84, 97–98, 108, 113, 252, 318 Sixth Amendment, 365 Supremacy Clause, 227–28, 288–89 Taxing and Spending Clause, 335 Tenth Amendment, 98, 335 Treaty Clause, 77, 95–96, 97 treaty signatories, 77 U.S. Fish and Wildlife Service, 336 U.S. Forest Service, 39–40, 60–61, 332, 338 U.S. General Accounting Office (GAO), 105 U.S. Health and Human Services Department, 60, 102–4 U.S. House of Representatives, 81 U.S. Housing Department, 102–3 U.S. Interior Department (DOI). See also Indian Reorganization Act (IRA), 1934 consultation duty, 60, 62–63 IRA implementation, 11–12

land-into-trust exchanges, 114–16, 420–21 lawsuits against, 54–56, 57 non-recognized tribes and trust doctrine, 63 recognition process, 31–32, 395–98 Secretary of the Interior, 102, 105, 106– 7, 109, 110–11, 112, 113, 117, 135–36, 144–45, 179–80, 383, 419 Trump policies, reversal of, 16 U.S. Justice Department (DOJ). See also Missing and murdered Indigenous women (MMIW); Tribal Law and Order Act (TLOA), 2010 manual addressing MMIW, 185–86 non-Indians, victimless crimes by, 197 TLOA implementation, report on (2017), 181 U.S. Presidents Adams, J., 1797–1801, 5 Biden, 2021–present, 16, 103, 115, 349, 386, 420 Bush, George W., 2001–2009, 58–59, 420 Clinton, 1993–2001, 15, 58–59, 103, 338 Eisenhower, 1953–1961, 12, 108 Grant, 1869–1877, 7–8, 82–83 Jackson, 1829–1837, 7, 387 Jefferson, 1801–1809, 5–7 Johnson, L.B., 1963–1969, 13, 52–53 Nixon, 1969–1974, 13, 52–53, 103, 108, 320 Obama, 2009–2016, 2, 15–16, 58–59, 62–63, 103, 114–16, 181–82, 185, 315, 386, 420 Pierce, 1853–1857, 79 Reagan, 1981–1989, 13 Roosevelt, F.D., 1933–1945, 10–11, 103 Trump, 2017–2020, 15, 16, 115, 117, 294, 337, 349 Washington, 1789–1797, 78 U.S. Senate, 77, 78, 81, 95–96, 97, 102, 185, 343, 346, 361–62, 414 U.S Supreme Court arbitration clauses, 465 categorical approach to state taxation, 257 civil jurisdiction, 150–52, 224

538 Index U.S Supreme Court (cont.) criminal jurisdiction over non-Indians, 147–49 diminishment/disestablishment, 117 early relations with Indians, 6 federal jurisdiction timeframe, 115–16 federal power, 95–96 federal preemption test, 227–28 Indian title, 38–40 Northwest Indian treaties, 286 objectives of GAA, 9–10 political status of Indians, 99, 100 recognition of Indian tribes, 31–32 state taxation, 253 treaty rights, 77, 80, 81–87 tribal membership, 140 tribal sovereignty, 16–17, 97, 98–99, 132 trust responsibility, 50, 51, 52, 53–58   Victimless crimes, 196–97 Violence Against Women Act (VAWA), 2013, 147–48, 181–84, 197, 371, 381, 387 Violence, hunting and fishing rights and, 276 Voting rights, 341–43 Voting Rights Act (VRA), 1965, 341–42   Wampanoag Confederacy, 3 Warren, John, 114–15 Warren Trading Post Co. v. Arizona Tax Commission (1965), 228 Washburn, Kevin K., 17–18, 48–49, 53–54, 56, 59 Washington Department of Revenue, 259–60 Washington, George. See U.S. Presidents Washington Redskins football team, 347 Washington State Department of Licensing v. Cougar Den, Inc. (2019), 255 Washington Supreme Court, 443 Washington; United States v. (1974), 286–87 Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n (1979), 290–91

Water rights (Winters doctrine). See also Non-Indians apportionment, 226, 315 domestic & recreational needs, 313 economic caps (water use), 312–13 federal power and, 308–9, 319–21 four principles of, 306 Just Compensation Clause, 318 McCarran Amendment and, 317, 318 negotiated settlements, 315 non-Indians, transfer of rights to, 318–19 overview, 305–21 prior appropriation doctrine vs., 307–8, 313 quantification of entitlement, 310–12, 314 riparian doctrine, 310 state courts and, 317 state power and, 318 subsurface & surface water, 310 surplus water, 316 treaty right, as, 84–88 tribal regulation (usage), non-Indians, 316–17 water quality and, 316–17 Westward expansion. See Manifest Destiny Whaling rights, 279, 293–94 Wheeler-Howard Act. See Indian Reorganization Act (1934) (IRA) Wheeler; United States v. (1978), 189–90 Wherever committed federal crimes, 188, 192, 197, 236 White Mountain Apache Reservation, 56 White Mountain Apache Tribe, 140, 229, 261, 315 White Mountain Apache Tribe; United States v. (2003), 56 White Mountain Apache Tribe v. Bracker (1980), 229, 261 Wilkinson, Charles, 468 Williams, Robert A., Jr., 84 Williams v. Lee (1959), 218, 227, 230 Winnebago Reservation, 179 Winters doctrine. See Water rights (Winters doctrine) Women, crimes against. See Missing and murdered Indigenous women (MMIW); Violence Against Women Act (VAWA)

Index  539 Worcester v. Georgia (1832), 131, 171, 194, 222, 226–27, 231 Worcester doctrine criminal jurisdiction, 171 inherent tribal sovereignty and, 131 state civil jurisdiction and, 221, 226, 231–32 state power and, 222, 226–27 Wyandotte Nation, 81, 391

Yakama Nation, 79, 255 Yakama Reservation, 292 Yankton Sioux Tribe, 82 Yellin v. Confederated Tribes of the Chehalis Reservation (2021), 31–32, 385 Young, Ex parte (1908), 469–72 Ysleta Del Sur Pueblo v. Texas (2022), 419   Zoning laws, 145, 216

More Praise “As a Tribal leader, I found Stephen Pevar’s book an excellent resource regarding the fundamentals on Tribal sovereignty and jurisdiction.” —​W. Ron Allen, Jamestown S’Klallam Tribal Chair/​CEO “The Rights of Indians and Tribes is a primary resource in our tribal land department. I have every edition and always look forward to the next. This is the book you need if you seek updated Indian Law material.” —​Stephen Lee, Director, Comanche Nation Realty & Land Acquisition (Comanche, Kiowa) “Stephen Pevar’s book is an indispensable part of the toolkit for American Indian lawyers, leaders, and scholars. Nothing is a more accessible, comprehensive, and realistic treatment of modern day tribal sovereignty than The Rights of Indians and Tribes. Another edition of Pevar’s ground-​breaking work is just cause for celebration.” —​Matthew Fletcher, University of Michigan Law School (Grand Traverse Band of Ottawa and Chippewa) “I highly recommend this book. Many federal employees, including myself, rely on it. The book gives clear, useful, and well-​documented answers for anyone approaching the vast and often intimidating subject of federal Indian law.” —​Lori Windle, Board Director, Society of American Indian Government Employees (Minnesota Chippewa, White Earth) “Stephen Pevar aims to convey the highly nuanced (often maddeningly so) principles of federal Indian law in a highly accessible manner, and he succeeds brilliantly. In clear, lucid prose, he conveys the critical legal and historical underpinnings of the field, and offers many keen insights along the way.” —​Riyaz Kanji, Principal Advisor, Tribal Supreme Court Project “This is a remarkable book, and there is nothing else like it. It explains the complex subject of federal Indian law in a clear and concise way.” —​Hon. B.J. Jones, Director, Tribal Judicial Institute, UND School of Law and Chief Judge Prairie Island Indian Community “In the Fifth Edition of The Rights of Indians and Tribes, Pevar brings the reader up to date on cutting edge issues, ranging from the recognition of tribal criminal jurisdiction over non-​Indians for domestic violence offenses to the Supreme Court’s latest word on the federal government’s treaty obligations.” —​Barbara Atwood, Mary Anne Richey Professor of Law Emerita, University of Arizona Rogers College of Law (author of Children, Tribes, and States: Adoption and Custody Conflicts Over American Indian Children) “My mother worked as a tribal advocate and tribal judge beginning in the 1980s and her well-​worn copy of The Rights of Indians and Tribes was always close at hand on her bookshelf as I grew up. I remember leafing through it as my first foray into the law that shapes the lives of Indigenous people. Pevar’s work endures as a crucial guide by a deft master of the field.” —​Michalyn Steele, Professor of Law, Brigham Young University (Seneca)