ACTGA RFQ Legal Services PDF 013116
Author: bryannewland
Department of the Interior Announces Departure of Kevin Washburn (at end of year)
Kevin Washburn, Assistant Secretary of the Interior – Indian Affairs, announces his departure and return to teaching at the University of New Mexico. Deputy Assistant Secretary Larry Roberts will succeed him as Acting Assistant Secretary beginning in January 2016.
Congratulations to Kevin on a remarkable tenure; and, congratulations to Larry Roberts.
Press release here.
Supreme Court Oral Argument transcript in Dollar General
Transcript available here.
Here are some interesting passages:
Justice Sotamayor (questioning counsel for Dollar General at p 10):
States appoint judges. Sometimes they’re elected, but often they’re appointed. We don’t think it lacks being a neutral forum because the State can sue a citizen there. We think of it as neutral because the judges are neutral.
You’re just assuming that these judges are not neutral.
Counsel for Dollar general (asserting that tribal courts are not an inherent feature of sovereign tribal governments at p 16):
The United States obviously did not regard the Tribes’ judiciary as something that is purely a part of their government, because time and again, it has micromanaged them.
And, Justice Breyer, I do want to point out another example of that, and that is the Violence Against Women Act. There, we see the right way of doing this, and that Congress has developed systems that say if this tribal judiciary is a good one which affords due process, then it has jurisdiction over cases.
And we think that’s the right approach here. Congress has the institutional capacity to develop rules like the one you were talking about. It’s a much more […]
Justice Breyer (trying to frame Dollar General’s argument at p 18):
The nontribal member goes to the tribal land and signs an agreement that says tribal law would apply, and then commits a tort on the tribal lands, and even under those circumstances, and even if the court is functioning well, the tribal court cannot take jurisdiction over his claim. That’s your position. And then to that I say, if I haven’t got it already, why not?
Justice Kagan (characterizing Dollar General’s argument at p 23):
It’s a bit of an odd argument, isn’t it, Mr. Goldstein, that there’s less of a sovereign interest in protecting your own citizens than in enforcing your licensing laws?
Exchange between Justice Kennedy and Dollar General regarding the scope of Congress’s power to delegate jurisdiction to Indian tribes (p 25):
JUSTICE KENNEDY: My my hypothetical is that the Congress gives Indian powers Indian tribes complete powers, both civil and criminal, over all persons on tribal Reservations. No Federal review, nothing.
Mr. GOLDSTEIN: That’s unconstitutional because Congress is subject to the Constitution. It would violate the Supremacy Clause; it would violate Article III, which contemplate, sorry…
Neal Katyal, counsel to the Mississippi Band of Choctaw pushing back on Justice Scalia’s suggestion that the Supreme Court’s prior statements on tribal court jurisdiction are merely dicta (p 31):
So yes, I understand that they are dicta, but it is dicta of the most persuasive sort. It is the unbroken rule of this Court, frankly, that in all of these cases, this Court has said there is presumptively jurisdiction.
And indeed, the exhaustion cases would make no sense otherwise because twice this Court said, in tort cases, in Iowa Mutual and National Farmers Union, this Court said you’ve got to go to tribal court and exhaust your remedies.
And Justice Scalia, if the rule in those cases was, hey, tribal courts don’t have jurisdiction, they would have done what you did in your opinion in Hicks, because at page 369 you said, quote, “Since it’s clear tribal courts lack jurisdiction over State officials, adherence to the tribal exhaustion requirement would serve no purpose.
Chief Justice Roberts, on whether there can be due process with all-Indian juries in tribal courts (p 42):
If we’re if we’re going to evaluate the due process concerns on a casebycase basis, as a general matter, it does it violate due process for a nonmember to be subjected to a jury verdict where the jury consists solely of tribal members?
Chief Justice Roberts, again, on the same point (pp 43-44):
Kind of think that you think the concerns are on the same level: Forcing somebody in a State court to be subjected a New Yorker to be subject to jurisdiction where everyone’s from Massachusetts because it’s Massachusetts court. You think that’s the same as subjecting a nonmember accused of a terrible assault on an Indian to jurisdiction before a jury consisting solely of members of the Tribe.
The Chief Justice, one more time, on the same point when questioning the United States’ attorney Ed Kneedler (p 56):
Is it consistent with your concept of due process, as a general matter, to have a nonmember tried by a jury consisting solely of tribal members?
Justice Scalia, questioning Ed Kneedler on the scope of tribal regulatory jurisdiction in relation to tribal court jurisdiction over tort claims (p 58):
And so I could say that person was subject to tribal regulatory jurisdiction, which can be interpreted, narrowly, to mean the Tribe can regulate that person’s conduct. If he violates that conduct, the Tribe, as a tribe, can fine him. It doesn’t necessarily mean that the regulatory jurisdiction includes the the power to impose tort law and adjudicate tort law.
President Obama Appoints Fond du Lac Chairwoman Karen Diver to key White House Post
Karen will succeed Jodi Gillette and Kim Teehee as the President’s Special Assistant for Native American Affairs.
On a personal note, Karen is a terrific choice to serve in this position to close out the President’s term in office. She has been a forceful and effective advocate on a wide range of issues for the Fond du Lac Band, and many other tribes. She is also more than capable of living up to Kim’s and Jodi’s strong legacies at the White House. Congratulations to Karen, and many thanks to Kim Teehee and Jodi Gillette for their great work!
Media coverage here.
The White House Tribal Nations Conference begins tomorrow in D.C.
Dollar General and the Racist Foundation of the Supreme Court’s Tribal Jurisdiction Cases
“It may be difficult for a tribe with a few thousand members to run a justice system on par with a state or the federal government.” Brief of Dollar General Corporation to the Supreme Court (p. 9)
Dollar General Corporation filed its opening brief with the U.S. Supreme Court last week in the case of Dollar General Corporation v. Mississippi Band of Choctaw Indians.
Indian law observers are familiar with the case by now: Dollar General leased a parcel of tribal land from a tribal entity to operate a store on the reservation. The Tribe established a youth employment program in which it placed young tribal members in different locations for job training. The store manager for Dollar General sexually molested a young tribal member during the course of his employment. The family sued Dollar General in Tribal Court under basic vicarious liability theory (which allows plaintiffs to sue an individual’s employer when the individual commits a wrongful act in the course of his employment – like molesting a teenage intern). The family won its lawsuit, and Dollar General challenged the Tribal Court’s authority to even hear the case; losing at every stage in the process.
Now, the Supreme Court has agreed to hear the case – which is usually bad news for Indian tribes (the Bay Mills Indian Community’s recent victory notwithstanding).
This case is a classic “Montana case,” as Indian law attorneys know it. The Montana case involved the Crow Tribe’s efforts to regulate hunting and fishing on its reservation in Montana. The Supreme Court ruled that Indian tribes generally cannot exercise jurisdiction over non-Indians, except where:
- The non-Indian has entered into a consensual relationship with the Tribe or its members through commercial dealing, contracts, leases, or other arrangements; or,
- Where tribal jurisdiction is necessary to protect the health, safety, welfare, or political integrity of the Tribe.
In this case, Dollar General entered into a contractual relationship with the Mississippi Band of Choctaws through a lease, engaged in commercial dealing on tribally-owned lands, and employed tribal members in its store. One could also argue with a straight face that providing a forum for civil recourse against an entity (vicariously) responsible for a sexual assault is integral to protecting the health, safety, and welfare of the Tribe and its members.
The U.S. Supreme Court has never found an exercise of tribal jurisdiction over non-Indians to be permitted under the two Montana exceptions. Not once in three and a half decades.
Dollar General’s brief recites the Supreme Court’s case law in this area right back to the Court. Its argument can be summed up by the quote at the top of this article: we can’t trust Indian courts because they aren’t as good as non-Indian courts.
That is simply smart lawyering by Dollar General’s attorneys.
The Supreme Court has a particular disdain for tribal governments and tribal courts. This line of cases can be traced back to 1978, when Justice Rehnquist held that Indian tribes gave up their authority to prosecute non-Indians when they submitted to the overriding sovereignty of the United States:
This principle would have been obvious a century ago when most Indian tribes were characterized by a want of fixed laws [and] of competent tribunals of justice. It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents.
Justice Ginsburg carried this principle forward 20 years ago, bemoaning that tribal courts may be “unfamiliar” to non-Indian litigants. Justice Scalia built upon Justice Ginsburg’s view a decade ago, noting that, while some tribal courts “mirror American courts,” many others still rely upon (gasp) tribal law.
For the past four decades, the Supreme Court has relied on the assumption that courts run by Indians cannot possibly match their state and federal counterparts in the administration of equal justice.
Of course, a quick scan of the headlines will reveal plenty of abuses in state courts: the Ferguson, Missouri Court’s practice of treating defendants like a revenue stream; a Pennsylvania judge accepting cash in exchange for sending juvenile offenders to certain private prisons. The list goes on.
There is a flip side to the Supreme Court’s assumption: tribal courts are okay for Indians, but they are not good enough for non-Indians. At their core, these are racist assumptions.
I grew up on the Bay Mills Indian Reservation. So did my non-Indian wife. My non-Indian father lived on the Reservation for 35 years. He leased land from the Tribe. He lived in the community. He even worked for the tribal government for a spell. He has spent more time living on Indian lands than I have. According to Dollar General, the State of Oklahoma, and Michigan Attorney General Bill Schuette, and prior Supreme Court decisions, our tribal court is good enough for me, but it isn’t good enough for my father.
Under the Montana test, Dollar General should clearly be subject to tribal court jurisdiction: it consented to a relationship with the Tribe, and its employee threatened the health, safety, and welfare of the Tribe and its members. Dollar General had no problem with all of the money benefits it received under the laws of the Mississippi Band of Choctaws; but, now it has a problem with its responsibilities. As the Band’s Supreme Court restated from its earlier precedent:
[The Company] it seems, would like to secure the benefits of doing business on the Reservation without any attendant responsibility. Such an asymmetrical approach by a party would clearly be impermissible in any state or federal situation, and it should be no less so in a tribal situation. Respect and parity cannot be one sided for the state and federal sovereign but against the Tribal sovereign.
Here is to hoping that the U.S. Supreme Court uses this case to cut ties with the racist assumptions it announced so long ago, and enforces the standard it created in the Montana case.
Gun Lake Band Statement on Withholding Revenue Sharing Payments
The Michigan Economic Development Corporation announced that the Gun Lake Band of Pottawatomi has withheld its gaming revenue sharing payments, and expressed concern that it may impact its budget.
The Gun Lake Band has issued a statement in response:
Clearly, when the Tribe and the State negotiated our gaming compact we discussed internet lottery. Both parties agreed that if the State introduced internet lottery sales or expanded other forms of electronic gaming to social clubs within the Tribe’s market area that the Tribe would not have to make state revenue sharing payments. The State has decided to offer internet lottery sales and electronic gaming within the Tribe’s market area.
The full statement is below.
JOB OPENING: Navajo Nation seeks Government and Legislative Affairs Associate for Washington, D.C. Office
The Navajo Nation Washington Office seeks a motivated and experienced government and legislative affairs associate to join our team. As an integral part of the Navajo Nation’s advocacy team in the Nation’s capital, you will conduct, review and provide analysis and research on proposed and pending legislation and policy initiatives. You will draft budgetary and appropriations requests, legislative bills, policy proposals and position papers; prepare and provide detailed reports on the activities of Congress to the Nation; advocate and communicate extensively with Congress and federal agencies to provide briefings and background on the issues and positions of the Nation; analyze existing federal regulations to protect the interests of the Nation; analyze legislative, policy and budgetary initiatives developed by the federal government; provide reports to the Nation outlining the political and policy ramifications of these initiatives and provides strategic recommendations on how the Nation should address these initiatives.
Link to job posting here.
HEARTH Act Regulations, Federal Preemption of State & Local Taxes, and the Seminole Case
This week, the Department of the Interior published notice in the Federal Register that it has approved HEARTH Act Regulations for the Seminole Tribe of Florida. The Federal Register Notice is here.
In the notice, the Assistant Secretary explained that tribal leasing regulations adopted under the HEARTH Act will preempt state and local taxation in the same manner as under the BIA’s own leasing regulations:
The strong Federal and tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department’s leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress’s overarching intent was to ‘‘allow tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in tribal communities.’’ 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford tribes ‘‘flexibility to adapt lease terms to suit [their] business and cultural needs’’ and to ‘‘enable [tribes] to approve leases quickly and efficiently.’’ Id. at 5–6.
The Department of the Interior published similar statements earlier this summer.
The Seminole Tribe of Florida is presently litigating whether the BIA’s leasing regulations preempt the State of Florida’s taxes on activities occurring on its trust lands. That case is pending before the Eleventh Circuit Court of Appeals. Materials are here.
The Seminole Tribe’s leasing regulations under the HEARTH Act don’t appear to impact that pending case.
DOI’s interpretation of the HEARTH Act is consistent with the recent shift in federal policy supporting preemption of state and local taxes in Indian country. See, the Federal Government’s intervention supporting the Tulalip Tribes in their tax dispute with the State of Washington.
It will be interesting to see how DOI’s interpretation of the HEARTH Act will play out in the future, if when state and local governments try to levy taxes on lands subject to tribal leasing regulations under the HEARTH Act. Stay tuned.
House Subcommittee on Indian Affairs Memo on Fee-to-Trust and Important Context
Today, the House Subcommittee on Indian, Insular, and Alaska Native Affairs is conducting a hearing entitled:
“Inadequate Standards for Trust Land Acquisition in the Indian Reorganization Act of 1934.”
In advance of the hearing, the Majority Staff circulated a memo calling the fee-to-trust provisions of the Indian Reorganization Act into question. Felix Cohen has described these provisions as the “capstone” of the IRA.
The Majority Staff Memo creates the perception that the BIA is an unfettered and unchecked bureaucracy that is gobbling up land for Indians at the expense of unsuspecting communities. It also gives credence to the notion that there is a need to curb “reservation shopping” to prevent some sort of massive proliferation of Indian gaming facilities.
The Majority Staff Memo ignores or omits some important context.
First, an overwhelming majority of tribal fee-to-trust applications are for lands that are located within or contiguous to an existing reservation. During my tenure with the Department of the Interior, this category comprised approximately 90 percent of all tribal fee-to-trust applications.
Of those applications, a large number of applications involve tribes seeking to consolidate their interest in parcels that are held in both fee and trust status. Congress encouraged these applications when it amended the Indian Land Consolidation Act in 2000 to address Emulsified Property.
Second, research by Professor Frank Pommersheim has shown that tens of thousands of acres of Indian lands continue to be taken out of trust status despite the IRA’s fee-to-trust language . The Majority Staff Memo does not mention this fact.
Third, the Majority Staff Memo promotes the canard that “reservation shopping” for casinos is a real problem in need of a remedy. The fact is that, since 2001, the BIA has approved a total of 27 fee-to-trust applications for gaming under IGRA’s exceptions) – 17 of which were approved during the Bush Administration. (this does not include two-part determination approvals). Tribal gaming applications have made up a very small fraction of the thousands of requests to have the Secretary acquire land in trust under the IRA. There is no reservation shopping “problem.”
Below, I’ve pulled some quotes from the Majority Staff’s ominous memo that warrant additional context:
CLAIM: “The only serious limit on the Secretary’s power, however, has been defined by the Supreme Court. In Carcieri v. Salazar, the Court held that the trust land provisions of the IRA may benefit only tribes that were ‘under federal jurisdiction’ on the date of enactment of the [IRA]. These are generally tribes with reservations subjected to 19th century allotment laws.”
CONTEXT: The Majority Staff Memo also describes the IRA as a “remedy” for allotment. Taken together, the Majority Staff Memo suggests that there are two classes of tribes under federal Indian policy: one class of “real” Indian tribes, which can establish a homeland, and another “lesser” class of Indian tribes that cannot have land acquired in trust.
Congress expressly rejected this notion in 1994, when it amended the IRA to prevent the BIA and other federal agencies from making this very distinction. Moreover, Justice Breyer’s concurring opinion in the Carcieri case itself explains that it is possible for tribes to have been “under federal jurisdiction” when the IRA was enacted, despite the fact that they were not recognized until later.
CLAIM: There has been one major challenge to the constitutionality of Section 5 of the IRA.
CONTEXT: The Majority Staff Memo makes a really big deal out of the 8th Circuit Court of Appeals’ 1995 opinion on this issue – calling it the “one major challenge”. The Majority Staff Memo somehow downplays the fact that the Supreme Court vacated that opinion.
The Majority Staff Memo either missed or ignored the much more recent case of MichGO v. Kempthorne, in which the Plaintiffs argued that the IRA’s fee to trust provisions were unconstitutional. The D.C. Circuit Court of Appeals upheld the Secretary’s authority under the U.S. Constitution.
Despite the Majority Staff’s claims about the lack of Supreme Court review of this issue, the Plaintiffs in MichGO petitioned the Supreme Court to examine this exact question. The Supreme Court denied their request, leaving the D.C. Circuit’s opinion as the most recent precedent on this issue.
CLAIM: “The [Allotment] Act failed because many Indians did not adjust or were not taught to adjust to the radical shift in their culture, economy, and lifestyle. Upon patenting the lands after a 25-year grace period when the allotments were retained in trust, many Indians sold or mortgaged their lands.”
CONTEXT: The Federal Government’s Allotment Policy failed because it resulted in the illegal sale of millions of acres of Indian lands to non-Indians, not because Indians were incapable of adjusting our culture.
This (mis)understanding of the shift from the Allotment Policy to the IRA may shed light on why the Majority Staff is concerned with the Secretary’s authority to acquire land into trust for Indians and Indian tribes in the first place.
The lesson to be learned from Allotment and Reoroganization (and Termination) is that Indians prosper when we have a homeland where we can determine how to organize our communities and economies, and that we suffer greatly when we don’t.
* * *
There is no doubt that some states, local governments, and communities have legitimate concerns over how to manage sharing jurisdiction with Indian tribes. But, there is little evidence to suggest that the IRA has been an impediment to resolving those concerns.
Hopefully, this context shows that the IRA’s fee-to-trust authority has been enormously successful in the preservation of tribal communities and growth of tribal economies.
Medical Marijuana Legislation Introduced in Congress
Last week, Senators Cory Booker, Kristen Gillibrand, and Rand Paul introduced S.683, the Compassionate Access, Research Expansion and Respect States Act (CARERS Act).
The bill text is not yet available on Thomas.Gov, but a summary of the key provisions can be found here.
In short, S.683 would decriminalize medical marijuana at the federal level, but only for those states that have authorized the use of marijuana for medicinal purposes. It also creates a safe harbor for banks to be able to serve certain growers, dispensaries, and manufacturers, and would authorize the Veterans’ Administration to prescribe marijuana to its patients in those states.
Since the bill text is not available yet, it isn’t clear whether and how the proposed legislation addresses Indian country. It would seem that including tribes within the scope of this legislation would be consistent with the Department of Justice’s 2014 memorandum on the enforcement of marijuana laws in Indian country, and may provide some measure of certainty for tribes that are seeking to decriminalize marijuana.
Turtle Talk 
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