Alex Skibine on Federal Control over Tribal Property and The New Equal Protection

Alex Tallchief Skibine has published “Using the New Equal Protection to Challenge Federal Control over Tribal Lands” in the Public Land and Resources Law Review.

Here is an excerpt of the conclusion of the article:

Indian tribes and their members are probably the only people who are subject to federal restrictions on the management of their own lands because of their status. While the law prevented Indians from successfully challenging these restrictions on equal protection grounds, recent development in equal protection jurisprudence has opened new possibilities. This article [argues] that while congressional restrictions imposed on Indians pursuant to the Indian Commerce Clause do not create racial classifications, these laws can be successfully challenged on equal protection grounds alleging that they were either enacted pursuant to unconstitutional animus or are not rationally tied to the true congressional purpose behind the legislation.

One thought on “Alex Skibine on Federal Control over Tribal Property and The New Equal Protection

  1. Phillip White July 31, 2015 / 1:54 pm

    Great work by Professor Skibine. However, the article may gloss over a problem with non-trust land that is frustrating many tribes as they seek to acquire and manage lands in fee – either as an end-state strategy, or in contemplation of a future fee-to-trust action under the IRA.

    Historically, the Indian Non-intercourse Act (INIA), 25 USC 177, did not interfere greatly with tribal non-trust land dealings. See Hearing Memo of the House Subcommittee on Indian, Insular and Alaska Native Affairs at 2 (June 8, 2015). However, the highly confused judicial, legislative, and administrative views of the INIA down through the years have lately led some commercial title companies and lenders to adopt an extremely cautious position with respect to the INIA. See generally Mark A. Jarboe and Daniel B. Watts, “Can Indian Tribes Sell or Encumber Their Fee Lands Without Federal Approval?” in AILJ TRIAL ISSUE at 10 (Winter 2012).

    While we have found no efforts in modern times to overhaul the archaic language of the INIA, at least a dozen federally-recognized tribes wishing to sell, encumber, or lease their fee-owned (non-trust) lands have sought, and obtained, Congressional authorization to do so through tribe-specific legislation. These acts have generally been hurried through Congress in an effort to save some jeopardized business deal, see, e.g., 110th Congress 1st Session, House of Representatives Report 110–274 to accompany H.R. 2863 (July 30, 2007) (legislation rushed through Congress in less than two months after a national chain anchor tenant refused to sign a commercial lease for the tribe’s non-trust lands without Congressional approval), or to avoid future conflicts once a tribe has already had a realty deal go sour on them because of the INIA. See, e.g., Legislative hearing in the 114th Congress on H.R. 487 (Miami Tribe of Oklahoma seeking control over land the tribe owns in fee where title insurance companies have refused to issue title commitments to either lenders or prospective purchasers due to uncertainties raised by the INIA).

    Tribes that have sought and obtained INIA relief include the Navajo Nation, the Rumsey Indian Rancheria, the Eastern Band of Cherokee Indians, the Mississippi Band of Choctaw Indians, the Ysleta Del Sur Pueblo, the Lower Sioux Indian Community in Minnesota, the Shoshone-Bannock Tribes, the Lower Sioux Indian Community, the Coushatta Tribe of Louisiana, the Shakopee Mdewakanton Sioux Community, the Saginaw Chippewa Tribe of Indians of the State of Michigan, the Fond du Lac Band of Lake Superior Chippewa, and the Coquille Indian Tribe of the State of Oregon. The legislative history of these various tribe-specific acts generally make no effort to address the confused judicial and administrative history of the INIA, but rather focus on the plain wording of the INIA. A typical example is found in the legislative history of a bill introduced by Rep. Peter DeFazio [D-OR-4] on behalf of one of our neighboring tribes. See 110th Congress 1st Session, House of Representatives Report 110–274 to accompany H.R. 2863 (July 30, 2007) (finding that the INIA “applies to both trust and fee lands, regardless of the source of money used to obtain the lands,” and that the “Department of the Interior does not have authority to administratively waive the Non-Intercourse Act”).

    Congress is currently considering at least two bills that could help resolve the problems created by the holding in Carcieri v. Salazar, 555 U.S. 379 (2009). See, e.g., S.1879 (introduced 07/28/2015 by Sen. John Barrasso [R-WY]) and the arguably more elegant H.R.3137 (introduced 07/21/2015 Rep. Tom Cole [R-OK-4] and with 27 co-sponsors on both sides of the aisle as of 07/31/2015). Isn’t it time to finally put an end to paternalistic Congressional control over tribe-owned fee property as well?

    Phillip A. White
    University of Montana School of Law (JD 1999)

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