Donald Trump and Federal Indian Policy: Postscript

Back in July, I wrote a commentary post titled Donald Trump and Federal Indian Policy, which put some of Trump’s public statements about Indian tribes and American Indians into context vis-a-vis federal Indian policy.  As I explained:

Donald Trump’s most notable comments about Indian tribes – made before the Committee on Natural Resources – reveal that he does not draw the distinction between the racial and political identities of Indian people. His view of the legitimacy of Indian tribes depends on the physical appearance of their members. As he told Don Imus, “it’s just one of those things that we have to straighten out.”

On June 18, 1993, Donald Trump appeared on the Don Imus radio show, Imus in the Morning, to discuss Indian gaming.  The full transcript of Trump’s interview is worth reading in full (it is a short read).  This interview offers a rare window into Trump’s views about Indian tribes, Indian people, and Indian gaming.  Here are a few exchanges:

On the Expansion of Indian Gaming

IMUS: So what is this now?  A bunch of drunken Injuns want to open a casino down there in New Jersey?

TRUMP: Well, it’s a battle that we’re fighting and I think it’s being successfully fought.  A lot of the reservations are being, in some people’s opinion, at least to a certain extent run by organized crime and organized crime elements, as you can imagine.  There’s no protection.  There’s no anything.  And it’s become a joke.  It’s become a laughing joke.  And the politicians around 1987 passed a law where the Indians can have virtually unsupervised casino gaming.  So we’re in there fighting it and I think we’re making a lot go progress.  I think you’ll see some very major things happening over the next couple of months. [NOTE: The Indian Gaming Regulatory Act was passed in 1988, and establishes a three-tiered system for the regulation of gaming by tribal agencies, states, and the National Indian Gaming Commission]

On the Sovereign Status of Indian Tribes

TRUMP: They call it the sovereign nation.  They call it a nation, this great sovereign nation, the Indian tribes.  All of a sudden, it’s nations.

Before it wasn’t a nation, before gambling.  Now, it’s this great sovereign nation. We protect, we do this, we do that, but when it comes to gambling, it’s a sovereign nation.

So it’s really a double standard and no taxes are paid.  No supervision’s there, tremendous crime, and most of the Indians don’t want it themselves.  The leaders – you know, all chiefs and no Indians, and the leaders want it for the obvious reason, but I think it’s something that’s going to end or is certainly going to be supervised very, very stringently.

On Tribal Membership 

IMUS: Would there be any reason, if push comes to shove, for you to become a member of these tribes?

TRUMP: Well I think if we lost various things, I would perhaps become an Indian myself….Well, I think I might have more Indian blood than a lot of the so-called Indians that are trying to open up the reservations.

On Gaming as an “Indian problem”

IMUS: Yeah, but are you getting married?

TRUMP: That might be the most difficult question you’ve asked me so far.  See, the Indian problem is a much simpler problem.  That can be solved.

You can read the entire transcript here: trump-on-imus-1993

 

 

 

Enbridge pipeline litigation, and its (potential) impact on tribal treaty rights in the Great Lakes

In 2010, Enbridge Energy Partners’ Line 6 Oil Pipeline burst near the Kalamazoo River in southern Michigan, spilling 1.1 million gallons of crude oil into the Kalamazoo River system. At the time, it was the worst inland oil spill in the history of the United States. Later that same year, another Enbridge pipeline burst in Illinois, spilling crude oil into a tributary of the Des Plaines River.

On July 20th of this year, the U.S. Department of Justice and the Environmental Protection Agency filed a lawsuit against Enbridge the U.S. District Court for the Western District of Michigan relating to those spills under various federal statutes – along with a proposed Consent Decree. A Consent Decree is a negotiated court order; and, once entered by the Court, has the force of law.

That Consent Decree addresses a number of issues, and requires Enbridge to take steps to improve the safety of its pipelines – a worthy objective. But, the Consent Decree also addresses Enbridge’s Line 5 Pipeline in northern Michigan in a manner that potentially impacts tribal treaty rights.

The Line 5 Pipeline carries oil through Michigan’s Upper and Lower Peninsulas. To do so, it crosses the bottom of the Straits of Mackinac, which is a narrow stretch of water between Michigan’s two peninsulas, and it links Lake Michigan to Lake Huron. In normal winters, the Straits of Mackinac are completely covered in ice for three months.

This pipeline has been in operation since 1953, and has become increasingly controversial due to its age, Enbridge’s safety record, and the fact that Enbridge has not complied with its requirements to maintain structural supports for the pipeline on the bottom of the Straits. The State of Michigan has been reviewing the pipeline for the past several years, as a number of citizens and groups have called for it to be shut down. A number of Indian tribes have expressed concern about the pipeline, and its potential impact on the Great Lakes and the tribal fishery. NCAI has adopted a resolution in opposition to the Line 5 Pipeline.

A rupture of Line 5 at any time could result an a catastrophic oil spill in the Straits of Mackinac that would impact both Lake Michigan, Lake Huron, and other connected waters. A rupture in the winter would be even more devastating, because containment and cleanup efforts would be made harder by the ice covering the Straits. A spill would also have an unknown impact on the fishery in Lake Michigan and Lake Huron.

Five of the twelve federally-recognized Indian tribes in Michigan are parties to the 1836 Treaty of Washington, which reserved off-reservation hunting and fishing rights throughout the ceded territory, which comprises approximately 40 percent of present-day Michigan – including in Lake Michigan and Lake Huron. The Straits of Mackinac are located in the center of that ceded territory.

In 1973, the United States Department of Justice filed a lawsuit against the State of Michigan on behalf of the Bay Mills Indian Community to enforce the 1836 Treaty. In 1979, Judge Fox of the United States District Court for Western District of Michigan issued the “Fox Decision,” which upheld the continued existence of tribal fishing rights in the Great Lakes under the Treaty of 1836.

In 1985, the Department of Justice, the 1836 Treaty Tribes, and the State of Michigan negotiated a consent decree to govern how tribes would exercise those rights. The parties negotiated a new consent decree in 2000, which expires in 2020. The parties – the United States Department of Justice, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, the Sault Ste. Marie Tribe of Chippewa Indians, and the State of Michigan – are set to begin negotiations soon on a new consent decree in United States v. Michigan to replace the decree that expires in 2020.

Enbridge’s Line 5 Pipeline was/is certain to be a topic of discussion during those negotiations. There are many members of the five treaty tribes who are commercial fishermen, and depend upon the Great Lakes fishery for their livelihood. Many of those tribes have tourism-based economies that depend on the Great Lakes. The cultural importance of the Great Lakes to the Tribes does not require explanation. Leaders of the Tribes have been vocal about their concerns with the Line 5 Pipeline, and its potential to harm tribal cultural and economic resources.

The Department of Justice serves as the law firm for the 1836 Treaty Tribes during the consent decree negotiations (after all, the case is captioned United States v. Michigan).  The same lawyers within the United States Attorney’s Office in the Western Michigan District who participated in the United States v. Enbridge negotiations are also representing the 1836 Treaty Tribes in negotiations under United States v. Michigan.

Those tribes were caught off-guard by the Department of Justice’s proposed consent decree with Enbridge Energy Partners, and its provisions related to the Line 5 Pipeline crossing.  The Department of Justice and the EPA did not consult with the 1836 Treaty Tribes about how their negotiations would affect their treaty fishing rights.

The oil spill that gave rise to the Department of Justice’s lawsuit against Enbridge occurred near Marshall, Michigan – 275 miles south of the Straits of Mackinac. There was no indication to the 1836 Treaty Tribes that the Department of Justice’s and the EPA’s negotiations with Enbridge would address the Line 5 Pipeline.  In fact, the proposed consent decree in United States v. Enbridge does not mention the words, “tribe,” “tribes,” or “treaty.”

Last month, the Grand Traverse Band of Ottawa and Chippewa Indians filed a pleading in that case objecting to the proposed Consent Decree and demanding that the federal agencies consult with the 1836 Treaty Tribes on the provisions related to the Line 5 Pipeline. That pleading is here: tribe-objects

Without further action or amendment, the proposed Consent Decree in United States v. Enbridge could take effect. In practical terms, that could limit the ability of the Department of Justice to seek additional protections on behalf of its tribal clients in upcoming consent decree negotiations in United States v. Michigan.

The Department of Justice has published notice that it will accept public comments on the proposed consent decree in United States v. Enbridge until October 21, 2016. The Federal Register Notice is here.

That notice was published on the very same day that the Department of Justice published a separate statement announcing a temporary halt to the construction of the Dakota Access Pipeline.

Dept. of the Interior Issues Secretarial Procedures for North Fork Rancheria

On July 29th, the Assistant Secretary – Indian Affairs issued “secretarial procedures” for the North Fork Rancheria.  A copy of those procedures can be found here.

“Secretarial procedures” are, in essence, a class III gaming compact imposed by the Secretary of the Interior for a tribe and a state where the state has refused to negotiate in good faith (as required by IGRA).

Under IGRA, tribes cannot engage in class III gaming without a tribal-state compact. Congress provided for secretarial procedures as a safeguard against states that refuse to negotiate gaming compacts with tribes, as required by IGRA.

The Assistant Secretary issued a cover letter as part of his determination, which stated:

The Secretary’s duty to issue procedures is one of IGRA’s fundamental safeguards of tribal sovereignty.  In IGRA, Congress expressly reaffirmed that tribes maintain their pre-existing sovereign reserved right to conduct gaming.  This reserved tribal right, confirmed by the Supreme Court in Cabazon, endures throughout IGRA’s framework.  While Congress provided states a limited role to negotiate a tribal-state compact governing Class III gaming activities, Congress did not eviscerate tribal sovereignty.  Recognizing that underlying reserved tribal right, Congress expressly provided that, when a state does not negotiate a tribal-state compact in good faith and does not agree with a Federal court-appointed mediator’s compact, tribes retain the sovereign right to conduct Class III gaming pursuant to Federal procedures issued by the Secretary. The Department’s actions here upholds that tribal sovereign right.

The Department of the Interior’s authority to use this option was severely limited by the Supreme Court’s decision in the Seminole case – Secretarial procedures require that the Tribe first file a lawsuit against the State; but, Seminole preserves state sovereign immunity against such lawsuits.

The Department issued regulations to implement IGRA’s secretarial procedures option in light of the Seminole case.  Those regulations are being tested in a lawsuit between the Pueblo of Pojoaque and the State of New Mexico.

As of today, IGRA’s secretarial procedures option is permitted in California (because the State has waived its sovereign immunity for gaming compacts).  That option is threatened by legislation pending before Congress.  I recently wrote about the impact of that legislation on this blog.  You can read that post here.

 

 

Donald Trump and Federal Indian Policy: “They don’t look like Indians to me.”

In 1993, Donald Trump appeared before the United States House of Representatives Committee on Natural Resources to offer testimony on Indian gaming. 1993 Donald Trump bears a striking resemblance to Presidential Candidate Donald Trump, in terms of demeanor and language – Trump’s oral testimony is consistent with the language he has used throughout his campaign for President.

Most of Trump’s testimony focused on Indian gaming itself, and his perception that the Indian Gaming Regulatory Act granted tribes an unfair advantage over his own gaming enterprises.

But, it was another part of Trump’s testimony that caught my attention. He questioned the legitimacy of Indian tribes based upon the physical appearance of their members. Here is an exchange he had with Rep. Miller of California:

Mr. Miller. Is this you discussing Indian blood: “We are going to judge people by whether they have Indian blood,” whether they are qualified to run a gaming casino or not?

Mr. Trump. That probably is me, absolutely, because I’ll tell you what, if you look—if you look at some of the reservations that you have approved—you, sir, in your great wisdom, have approved— will tell you right now, they don’t look like Indians to me, and they don’t look like Indians. Now maybe we say politically correct or not politically correct. They don’t look like Indians to me, and they don’t look like Indians to Indians, and a lot of people are laughing at it, and you are telling how tough it is, how rough it is, to get approved. Well, you go up to Connecticut, and you look. Now, they don’t look like Indians to me, sir.

The written hearing records also include a transcript from his appearance on the Don Imus show earlier that same year:

Don Imus Show (June 18, 1993)

TRUMP: Well, I think I might have more Indian blood than a lot of the so-called Indians that are trying to open up the reservations.

I looked at one of them – well, I won’t go into the whole story, but I can tell you, I said to him, “I think I have more Indian blood in me than you have in you.” And he laughed at me and he sort of acknowledged that I was right. But it’s a joke. It’s really a joke.

IMUS: A couple of these Indians up in Connecticut look like Michael Jordan, frankly.

TRUMP: I think if you’ve ever been up there, you would truly say that these are not Indians. One of them was telling me his name is Chief Running Water Sitting Bull, and I said, “That’s a long name.” He said, “Well, just call me Ricky Sanders.” So this is one of the Indians.

 

You can see a video of Trump’s appearance before the Committee here.  The transcript and hearing record is available here: 1993 Trump Nat Res Testimony PDF. (Trump’s testimony begins around Page 175). I recommend reading the entire portion of the record involving Trump, as it sheds light on his views on Indian gaming, tribal sovereignty, and the tax status of Indian tribes.

It is tempting to heap these comments onto the pile of other racist comments that Trump has made and be done with it.

But, Trump’s 1993 comments to the Natural Resources Committee highlight a problem that has plagued federal Indian law from the Indian Reorganization Act until today: the tension between the racial and political identity of Indian people.

Trump’s comments shed light on how a Trump Administration may implement its Indian policy, posing a real risk that the federal government will subordinate the sovereign status of Indian tribes to the racial identity of individual Indians. Such a policy would rely on a subjective evaluation of who is “Indian enough” in Trump’s estimation.

In the past, when the Federal government has focused on the racial identity of Indians (rather than our political identity), it has almost always been done to limit the Federal government’s trust obligations to Indians.

The Indian Reorganization Act and “Half-Blood” Indians

For nearly 160 years – from 1776 until 1934 – federal Indian policy could be fairly summarized this way: get rid of the Indians (through war or assimilation) and take their land.

In 1934, Congress enacted the Indian Reorganization Act, or the “IRA”. The IRA marked the beginning of modern federal Indian law, and at least recognized the right of Indian people to govern themselves into the future. Congress also understood that this would put the federal government on the hook for a continuing relationship with Indian tribes, and was forced to confront how to decide who were the “real Indians” and who were not.

On May 17, 1934, the United States Senate Committee on Indian Affairs debated the terms of the IRA. At issue in that debate was which Indians would be eligible to organize under the IRA and which Indians would be left out. Here is an exchange between Committee Chairman Burton Wheeler and Indian Affairs Commissioner John Collier during that debate:

The CHAIRMAN. There is a later provision in here I think covering that, and defining what an Indian is.

Commissioner COLLIER. This is more than one-fourth Indian blood.

The CHAIRMAN. That is just what I was coming to. As a matter of fact, you have got one-fourth in there. I think you should have more than one-fourth. I think it should be one-half. In other words, I do not think the Government of the United States should go out here and take a lot of Indians in that are quarter bloods and take them in under the provisions of this act. If they are Indians of the half-blood then the Government should perhaps take them in, but not unless they are. If you pass it to where they are quarter-blood Indians you are going to have all kinds of people coming in and claiming they are quarter-blood Indians and want to be put upon the Government rolls, and in my judgment it should not be done. What we are trying to do is get rid of the Indian problem rather than to add to it.

Senator Wheeler expressed concern that the IRA would be used by “white people” (his words) claiming to be Indian.

When the IRA was enacted into law one month later, it defined “Indian” as:

…all persons of Indian descent who are members of a recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.

The Bureau of Indian Affairs and Indian tribes are still wrestling with this definition today – as seen in the Carcieri decision and the recent Mashpee litigation. The logical definition of “Indian” should have been simply, “all members of a recognized Indian tribe;” but, by adding time, residence and blood quantum limitations, Congress was seeking to evade its financial obligations and to constrain of the sovereign status of tribes.

Political Identity v. Racial Identity and Historic Tribes v. Created Tribes

In the 1970’s, the BIA implemented a policy of “Indian preference” in employment – this applied to new employment, and opportunities for promotion within the BIA. Non-Indian employees of the BIA filed a class-action lawsuit alleging that this preference in employment was unconstitutional racial discrimination. The case – Morton v. Mancari – reached the U.S. Supreme Court in 1974. The Court upheld the BIA’s preference program, explaining that it was not racial discrimination. Instead, the Court stated that the preference was aimed at Indians as members of a political entity – similar to state-laws allowing state governments to grant employment preference to state residents:

Contrary to the characterization made by appellees, this preference does not constitute “racial discrimination.” Indeed, it is not even a “racial” preference. Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be “an Inhabitant of that State for which he shall be chosen,” Art. I, § 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent group in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indians.

At the same time as Morton v. Mancari, the Department of the Interior was drawing distinctions between Indian tribes based upon when and how they were recognized by the federal government. Attorneys within the Department’s Office of the Solicitor advanced the theory that some Indian tribes were “historic tribes,” because they have always maintained a relationship with the United States, while other tribes were “created” by the federal government. According to those attorneys, only “historic tribes” could exercise the full sovereign powers of Indian tribes, while “created tribes” had lesser sovereign powers.

Not surprisingly, the “historic tribes” included many of the Indian tribes that fit the romanticized ideal of Indians – tribes in the Great Plains and the Southwest (i.e. those tribes whose members “looked” like Indians). “Created” tribes were often those tribes whose members did not look like the Indians people saw in Hollywood westerns – people with lighter hair and eyes, or people with mixed Black or Mexican ancestry. This standard of “Indianness” ─ a Federal race-based standard ─ was again used to limit tribal sovereignty and contain the “Indian problem.”

The Department’s disparate treatment of “historic” and “created” tribes got so bad that Congress intervened, and enacted amendments to the IRA in 1994 to prevent the BIA from discriminating among tribes on this basis.

Trump and Indian Policy Today

Indian law today rests in large part upon the distinction between Indians as members of a racial/ethnic group, and Indians as citizens (a more accurate term than “members”) of sovereign political entities.  This principle is foundational.

There are 568 federally recognized Indian tribes today, from southeast Florida to the north slope of Alaska. Some tribes’ citizens look like the idealized Indians from George Catlin paintings, while other tribes’ citizens would not “appear” to be Indian to a passerby on the streets of Washington, D.C. Despite the vast differences in their racial purity, every tribe maintains the right to determine its own rules for citizenship, to be governed according to its own laws, and to engage with the United States on a government-to-government basis.

But, there continue to be people who either don’t understand the distinction between the ethnic and political identities of Indian people, or who want to eliminate that distinction altogether.

In its recent decision in Adoptive Couple v. Baby Girl, the Supreme Court carved a hole in the Indian Child Welfare Act (which was enacted in 1978 to stop the epidemic of Indian children being taken from their families in Indian communities). In writing for the Court, Justice Alito left little doubt that the decision was premised on the Indianness of Baby Girl. Here is the first line of his opinion: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.”

Last year, the Goldwater Institute in Arizona filed a lawsuit against the Department of the Interior seeking to overturn the entire Indian Child Welfare Act, arguing that the act unlawfully discriminates against Indian children on the basis of race. (The opening page of its complaint alleges, “Children with Indian ancestry, however, are still living in the era of Plessy v. Ferguson”).

The continuation of Indian tribes as sovereign governments in the United States depends, in large part, upon the distinction between Indians as a race of people, and Indians as citizens of Indian tribes. To blur or eliminate that distinction is to take an axe to the trunk of the tree of federal Indian law – federal laws applicable to Indians would be subject to the U.S. Constitution’s prohibition against racial discrimination.

Donald Trump’s most notable comments about Indian tribes – made before the Committee on Natural Resources – reveal that he does not draw the distinction between the racial and political identities of Indian people. His view of the legitimacy of Indian tribes depends on the physical appearance of their members. As he told Don Imus, “it’s just one of those things that we have to straighten out.”

A Trump Administration that acts upon that impulse will dramatically alter federal Indian policy as we know it.

Placing Proposed Amendments to IGRA in Historical Context

On April 27, 2016, California Congressman LaMalfa introduced H.R. 5079, titled the “California Compact Protection Act.” This legislation was spurred by proposals of the North Fork Rancheria and the Enterprise Rancheria in California to develop two separate gaming facilities under IGRA’s two-part determination exception. It appears intended to prevent those two tribes from developing class III gaming facilities on sites approved by the Department of the Interior in 2011.

H.R. 5079 would amend the Indian Gaming Regulatory Act itself by preventing the Secretary of the Interior from approving a tribal-state gaming compact, or prescribing class III gaming procedures, for tribes when the California State Legislature (or California’s voters) do not ratify the compact. To understand this proposed amendment to IGRA, it is important to put it into context.

IGRA’s Enactment

In the mid-1980’s, as the Cabazon case and others were progressing through the federal courts, Congress was considering several different legislative proposals to regulate Indian gaming. Congress ultimately approved S. 555, which became the Indian Gaming Regulatory Act. Many tribal leaders opposed S.555, in large part because of the provisions requiring tribes to negotiate gaming compacts with state governments as a precondition to operating gaming facilities (there are numerous references to tribal opposition in the Senate Report accompanying IGRA, Senate Report 100-446.IGRA). Those leaders believed that the compact provisions would give states a tool to prevent Indian tribes from operating gaming facilities on their lands – even where those tribes met all of the other requirements of the Cabazon decision and IGRA itself.

Members of the U.S. Senate tried to assure concerned tribal leaders that IGRA’s compact provisions could not be used by states to block tribes’ inherent right to operate and regulate lawful gaming on tribal lands, or to allow states to control activities that should be regulated exclusively by Indian tribes.

On page13 of Senate Report 100-446, Sen. Inouye acknowledged tribal opposition, and stated:

After lengthy hearings, negotiations, and discussions, the Committee concluded that the use of compacts between tribes and states is the best mechanism to assure that the interests of both sovereign entities are met with respect to the regulation of [gaming].

***

It is the Committee’s intent that the compact requirement for class III not be used as a justification by a State for excluding Indian tribes from such gaming or for the protection of other State-licensed gaming enterprises from free market competition with Indian tribes.

On pages 33-34 of the Senate Report, Sen. McCain squarely addressed tribal concerns:

The Committee Report is clear as to the purpose of Tribal/State compacts as called for in Section 11(d). I understand Senator Evans’ concerns regarding the potential overextension of the intended scope of the Tribal/State compact approach. Toward this end, I believe it is important to again underscore the statement that appears on page 10 of the Report: “The Committee does not intend to authorize any wholesale transfer of jurisdiction from a tribe to a state.” From time immemorial, Tribes have been and will continue to be permanent governmental bodies exercising those basic powers of government, as do Federal and State governments, to fulfill the needs of their members. Under our constitutional system of government, the right of Tribes to be self-governing and to share in our federal system must not be diminished.

In response to criticism from Indian country, members of Congress pointed to the language of IGRA itself, which requires states to negotiate gaming compacts in good faith. Where a state does not comply with this obligation, IGRA allowed tribes to file a lawsuit against the state, and to request that the Secretary of the Interior prescribe “procedures” (i.e. a gaming compact) to regulate tribal gaming facilities. In other words, the members of Congress assured tribes that IGRA’s compact language could not be used to block tribal gaming facilities.

The Seminole Decision

Almost immediately after IGRA’s enactment, tribes and states became engaged in litigation over the compact provisions. The original fears regarding IGRA’s compact language, expressed by many concerned tribal leaders, came to pass when the U.S. Supreme Court issued its decision in Seminole Tribe v. Florida. In that case, the Supreme Court stated that tribes could not file lawsuits against states for their refusal to negotiate gaming compacts in good faith. The Court held that only the states themselves, and not Congress, could authorize such lawsuits.

Following the Seminole decision, many states began to demand that Indian tribes “share” gaming revenues in exchange for negotiating class III gaming compacts (despite the fact that IGRA itself prohibits states from imposing taxes on Indian gaming facilities). Some gaming compacts required tribes to pay between 15 and 25 percent of their slot machine revenues to the state in exchange for certain benefits (like exclusive gaming in certain markets). Other compacts required tribes to submit to state regulation of certain activities on tribal lands.

In light of the Seminole decision, tribes could not utilize the remedies Congress adopted in IGRA to exercise their inherent right to operate and regulate gaming facilities on their lands – the right recognized by the Supreme Court in the Cabazon decision.

IGRA Today, and H.R. 5079

The State of California, alone among the states, agreed to waive its sovereign immunity in 1999 to allow Indian tribes to file a lawsuit against the state for failure to negotiate gaming compacts in good faith. The State of California is the only state where the entire Indian Gaming Regulatory Act – including its remedial provisions – is in full effect.

In recent years, the Obama Administration has sought to push the playing field back toward the balance Congress originally adopted in 1988. The Department of the Interior has disapproved gaming compacts where states have demanded revenue sharing payments that amount to illegal taxes under IGRA. It has also disapproved compacts that allow states to regulate tribal activities beyond those allowed by IGRA.

In addition, the 9th Circuit Court of Appeals issued a landmark decision in 2010, when it ruled that the State of California’s demands for revenue sharing payments from the Rincon Band of Luiseno Indians violated IGRA. Following that decision, the Rincon Band of Luiseno Indians was able to get a gaming compact through IGRA’s remedial provisions (i.e. “Secretarial procedures”). That result was only possible in California.

Elsewhere around the country, tribes and states have been engaged in litigation about IGRA’s compact provisions – especially as they relate to revenue sharing, taxes, and regulation of activities on tribal lands. These lawsuits have happened recently in Florida, New Mexico, South Dakota, Oklahoma, and California.

Congress has never amended IGRA’s compact provisions. The National Congress of American Indians, the National Indian Gaming Association, tribal leaders and Indian gaming advocates have long opposed efforts to amend to IGRA that do not include a remedy to the Supreme Court’s Seminole decision.

H.R. 5079 would be remarkable for several reasons. First, it would mark the first amendment to IGRA’s compact provisions in the law’s 28-year history. Second, it would constitute a federal rebuke of California’s policy decision to give full effect to IGRA. Third, it would enshrine the Seminole decision into IGRA itself – marking a significant departure from the compromise approved by Congress in 1988.

This last point merits some emphasis. As explained above, Congress passed IGRA in the face of significant opposition from Indian country. That opposition was based on concerns that IGRA’s compact language could be used to deny the inherent rights recognized in the Cabazon decision. Congress responded to those concerns by assuring Indian country that its inherent rights were not subject to a state veto (unless the state itself opted to outlaw gambling in all of its forms). H.R. 5079 would mark a dramatic shift in congressional policy, because it would modify IGRA to subject tribes to a state veto of the rights recognized in Cabazon.

Given the amount of litigation pending around the country on these issues, combined with the legislative process, it is very possible that H.R. 5079 could be expanded to affect tribal-state gaming compacts across the country – further solidifying the Seminole decision as federal policy. Watching this play out will be very interesting.

Assistant Secretary – Indian Affairs approves gaming application for Cloverdale Rancheria

Decision letter is linked here.

The Record of Decision is here.

The decision was approved under IGRA’s “Restored Lands Exception”

An excerpt from Acting Assistant Secretary Larry Roberts’s letter to the Rancheria:

As a result of the United States’ repugnant and failed termination policy, which has since been repudiated, the Tribe was terminated. Termination severed the government-to-government relationship and, except for the Tribe’s cemetery and tribal well, resulted in the loss of the Tribe’s lands. Indeed, some of the Tribe’s original tribal lands were sold to the State of California and are now used for State Highway 101.

In 1983 the United States corrected history and restored its federal government-to-government relationship with the Tribe.  Thirty-three years later, the repudiated termination still impacts the Tribe as it has no trust land to call home.  That changes today.

Parties seek intervention in Right-of-Way Regulation Lawsuit

The Three Affiliated Tribes of Ft. Berthold and the New Mexico Oil and Gas Association have sought to intervene in Western Energy Alliance v. Jewell.

The materials for the Three Affiliated Tribes are here:

Motion to Intervene: TAT Mot to Int

Brief in Support: TAT Br in Supp of Mot to Int

Special Appearance and Answer to Complaint:Special Appearance & Ans TAT

The materials for the New Mexico Oil and Gas Association are here:

Brief in Support of Intervention: New Mex Oil & Gas Assoc Br for Interv

Exhibit A for Brief: Exh A to NM Oil & Gas Assoc Br

 

Senators Tester and Franken Introduce Legislation to Expand Tribal Jurisdiction

Senators Tester and Franken have introduced legislation to expand tribal criminal jurisdiction over non-Indians for drug related crimes, domestic violence against children, and crimes committed against tribal law enforcement officers.  The proposed bill comes on the heels of the reauthorization of the Violence Against Women Act, which allows Indian tribes to prosecute non-Indians in certain instances.

The bill is titled the “Tribal Youth and Community Protection Act of 2016.”  You can read it here.

Lawsuit Challenges BIA Right of Way Regulations

Greenberg Traurig has filed a lawsuit against the Department of the Interior on behalf of the Western Energy Alliance, challenging the Department’s proposed Right of Way Regulations.  The case was filed in the U.S. District Court for North Dakota, and is captioned as Western Energy Alliance v. United States Department of the Interior.

The complaint is here: Western Energy Alliance v. DOI Complaint

Western Energy Alliance’s brief in support of motion for a TRO and Preliminary Injunction is here:  Western Energy Alliance Brief in Support of TRO.

Department of the Interior’s Response Brief is here: Defendants’ Opposition to Motion for Preliminary Injunction

The Western Energy Alliance alleges:

  1. The proposed rule violates Strate v. A-1 Contractors, because it attempts to allow Indian tribes to exercise jurisdiction over non-Indians within rights-of-way
  2. The proposed rule improperly allows Indian tribes to unilaterally terminate rights-of-way
  3. The proposed rule violates traditional rules regarding tribal jurisdiction
  4. The proposed rule authorizes Indian tribes to tax activities within rights-of-way in violation of the scope of tribal jurisdiction
  5. The Department has failed to explain the basis for its departure from longstanding federal policy regarding rights of way.
  6. The Department failed to comply with NEPA

Interestingly, the Western Energy Alliance also asserts that the Department of the Interior has no authority to impose sanctions or otherwise take enforcement action against trespassers within rights-of-way:

Congress has not otherwise granted BIA the ability to deal with trespass on Indian lands that would serve as the basis for the Rule’s sweeping assumption of trespass authority. As such, BIA is without authority to enforce alleged trespass actions within Indian land rights-of-way, or over Indian lands generally.

 

The District Court is holding a hearing on Western Energy Alliance’s motion this morning in Bismarck, ND. Commentary to follow.