Office of Legal Counsel Office of the President and Vice President is seeking a summer legal intern. Law students are preferred. Those interested in applying should contact Karis Begaye, Legal Counsel in the Office of the President and Vice-President, at knbegaye@navajo-nsn.gov.
Full posting is here: Legal Internship opening
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.
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.
Last week, the Department of the Interior published final regulations implementing the Indian Child Welfare Act, along with a legal opinion from the Solicitor of the Department of the Interior regarding the authority to issue such regulations. The Department’s regulations, and the accompanying legal opinion, garnered a lot of attention across Indian country and Indian child welfare advocates, and may prove to be the capstone on the Administration’s work for Native children.
However, last week the President also signed of the “Native American Children’s Safety Act” (S.184 or “NACSA”). NACSA amended 25 U.S.C. § 3207 – requiring character investigations for certain individuals who have regular contact with Indian children.
As its title suggests, NACSA is intended to protect Indian children in tribal foster care by doing several things:
Given its subject matter and intent, NACSA moved through Congress with little opposition and broad support. But, the details of the statute’s mandates seem to have caught a number of tribal courts and social services agencies off-guard. Some tribal judges (including one of the authors of this post), tribal social services agencies, and Indian child welfare advocates are concerned about unintended consequences that could flow from the mandates in this new law. Those mandates include the following:
While well intended, these provisions will leave tribal foster care agencies and tribal courts without any discretion to certify foster homes and make placements within their communities. It is likely to further limit the availability of eligible foster homes in tribal communities.
As people across Indian country know, many households on the reservation include temporary residents – including extended family members, adult children, family friends, or other community members in need. A member of the household may have gone through the tribe’s healing to wellness court. NACSA does not leave tribal agencies much flexibility to account for these homes or living arrangements. Where tribal courts and agencies previously had discretion to make those judgment calls, NACSA removes that discretion. Any adult living in the home with a prior drug-related offense may automatically disqualify that home from being approved as a foster care placement.
In addition, NACSA requires the Department of the Interior to issue binding guidance on implementation of the statute, including procedures for “self-reporting” by the head of the household if he/she has knowledge that any other adult in the home was convicted of a crime listed above. Tribes will be required to enforce this mandate, but it is unclear how.
NACSA’s mandate that tribes conduct background checks on state databases presumes that state agencies will cooperate with tribal agencies in their efforts to conduct such searches. The statute does not provide Indian tribes with any legal tools, other than the authority to enter into “voluntary agreements with State entities,” to require such cooperation. It is not difficult to imagine a scenario in which state agencies are uncooperative in conducting those searches, thus slowing down foster care placement in Indian country. It is one thing for a tribe to have solid relationships with a local county or even the state—it is quite another to have to reach out to every state where an individual lived in the past five years (let’s say, Ohio, for example) for cooperation.
Perhaps most importantly, NACSA does not provide tribal courts and social services agencies with any additional resources to carry out these new mandates. The courts and agencies with the least amount of resources will now have to spend more money to remain in compliance with federal law. Failure to remain in compliance with these new mandates will likely jeopardize the already meager federal funds that flow into tribal courts and child welfare agencies.
None of this is to say tribal judges or social services agencies don’t have an interest in making sure that foster children are placed in safe homes, or that the proponents of NACSA had bad intentions. As a tribal court judge and ICWA advocate, we applaud the fact that Congress and policy makers care about the importance of safe foster homes in Indian country.
But NACSA may turn out to be a law with drastic unintended consequences (we hope not). This statute could benefit from some amendments to allow tribal courts and agencies to have more discretion to solve problems at the local level, as well as authorization of funding to help tribes meet these new requirements. Absent those amendments, the Department of the Interior must work closely with tribal judges and social services workers to ensure that the law is implemented in a way that prevents unintended consequences.
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:
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.
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.
By: Del Laverdure and Bryan Newland
Last week’s decision out of the U.S. District Court in Southern Florida in Seminole Tribe of Florida v. Florida could signal a potential shift in Indian tax law.
For many tribal leaders and Indian law practitioners, tax law in Indian country is an intimidating jurisdictional maze – often times allowing state and local taxes to apply in Indian country in spite of tribal territorial sovereignty. The outcome of an Indian tax case depends upon a combination of the type of tax or government fee imposed, the government doing the taxing, the individual or entity being taxed, and the location of the activity, individual, or property being taxed.
Many states have levied taxes on non-Indians and non-Indian businesses working in Indian country; and, in recent years, these efforts have been upheld under the Supreme Court’s decision in White Mountain Apache Tribe v. Bracker. Under that case, a reviewing court must balance the interest of the tribe, the state, and the federal government when deciding whether state taxes in Indian country are preempted by federal law. In many losing cases, tribal litigants have tried to invalidate state taxation without a clear statement of the federal government’s interest.
In the Seminole case, the State of Florida was attempting to impose two different taxes on tribal lands: a “rental tax” on businesses leasing property from the Tribe; and, a “utility tax” on electricity delivered to the Tribe’s lands. The Court held that Florida’s rental tax was preempted by federal laws governing leasing on Indian lands (it also invalidated the utility tax because the legal incidence of the tax fell on the Tribe).
The Bay Mills Indian Community’s pending Supreme Court case has sucked a lot of the oxygen out of the room here in Michigan. And it has definitely overshadowed an impending showdown between the State of Michigan and seven six* tribes over the negotiation of new Class III gaming compacts.
The negotiation of new tribal-state gaming compacts here in Michigan will offer a unique case study in how the Indian Gaming Regulatory Act’s compact provisions affect the negotiation of “second generation” gaming compacts – compacts that follow, rather than extend, a tribe’s previous compact.
We’re going to take a closer look at these negotiations in upcoming posts. But, first, it is important to understand how the current agreements – approved in 1993 – came into effect. WARNING: Marathon Blog Post.
THE HISTORY
As in other parts of the country, a number of Michigan tribes were already operating Class III gaming when IGRA was enacted in 1988. In enacting IGRA, Congress required tribes to negotiate a gaming compact with states to engage in Class III gaming – even for those tribes that were already operating such games. Congress also required states to negotiate these agreements in “good faith.”
Six Michigan tribes sought to negotiate Class III gaming compacts with the State of Michigan almost immediately after IGRA’s enactment. Then-Governor Jim Blanchard refused to negotiate over Class III slot machines, and ultimately refused to enter into a compact.
In 1990, those six tribes filed a lawsuit against the State of Michigan in the U.S. District Court for the Western District of Michigan, alleging that the State violated IGRA’s requirement to negotiate in good faith, and seeking a declaratory judgment that Class III slot machines would be permissible to include in the Compact.
In 1992 – 4 years before the Supreme Court’s decision in Seminole – the Western District of Michigan ruled in that lawsuit (Sault Ste. Marie Tribe v. Engler) that the Tribes’ lawsuit was barred by sovereign immunity.
After an unsuccessful appeal, the Tribes amended their lawsuit to name then-Governor John Engler as the defendant in an Ex parte Young action. That case – Sault Ste. Marie Tribe of Chippewa Indians, et al. v. Engler – ended through a negotiated settlement agreement. That agreement was entered by the U.S. District Court for the Western District of Michigan as a Consent Judgment in 1993. That Consent Judgment included several key provisions that will impact ongoing compact negotiations:
Concurrent with the Western District of Michigan’s entry of the Consent Judgment, the seven Tribes and the State of Michigan entered into separate Class III gaming compacts that were identical to one another. Those gaming compacts were approved by the Department of the Interior in 1993.
Each of those compacts stated that they would remain in effect “for a term of twenty (20) years from the date it becomes effective[.]” In other words, they would remain in effect until November 2013.
But those compacts also included language that has created some…(ahem) room for interpretation:
[12(B)] At least one year prior to the expiration of twenty (20) years after the Compact becomes effective, and thereafter at least one year prior to the expiration of each subsequent five (5) year period, either party may serve written notice on the other of its right to renegotiate this Compact.
The Michigan Natural Resources Commission has approved a wolf hunting season here in Michigan, just one day after Governor Snyder signed legislation authorizing the Commission to determine whether to allow such hunting.
In recent years, Anishnaabe tribes (Ojibwe, Potawatomi, and Odawa) in Michigan, Wisconsin, and Minnesota have opposed state-sanctioned wolf-hunting. Wolves are important in the religious teachings of Anishnaabe people, and it is often said that the Ma’iingun (wolf) and the Anishnaabe are brothers whose fates are linked.
Senator Casperson of Escanaba, the primary sponsor of the legislation, dismissed tribal religious concerns during the process, stating:
“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”
Aside from the Senator’s ironic statement, some Michigan tribes have also based their objections on the legal relationship between the tribes, the state, and the United States. The 1836 Treaty of Washington reserved the hunting, fishing, and gathering rights of what are now five of Michigan’s Ojibwe and Odawa tribes throughout much of the State of Michigan. In 2007, those five tribes and the State entered into a court-approved agreement to clarify tribal rights on lands ceded under that treaty.
Section 22 of the 2007 Agreement addresses tribal “activities designed to restore, reclaim, or enhance fish, wildlife or other natural resources within the inland portion of the 1836 Ceded Territory through stocking, rearing, habitat improvement, or other methods.”
Section 23 of the 2007 Agreement addresses consultation between the tribes and the State. In particular, Section 23.4 provides:
“23.4 The State and the Tribes shall notify each other at least annually of proposed regulatory changes (including changes in management units or methodologies for determining the allowable harvest of any species) before they take effect (except where, due to an emergency or other matter beyond the control of the Parties it is not possible to provide advance notice) and seek to resolve any concerns arising from such changes before implementing them. Upon request, the State and the Tribes shall share information regarding the rationale for such changes and their anticipated effects (e.g., changes in species abundance, distribution, or age or sex ratios). Upon request, the State and the Tribes shall provide similar information for any existing regulation, management unit or allowable-harvest methodology. The information provided shall be sufficiently detailed to enable the other Parties to fully understand the regulation, management unit or allowable-harvest methodology at issue and any underlying data associated with it, and to enable them to make constructive suggestions for improvements to such regulation, management unit or harvestable surplus methodology.”
I am citing these provisions to highlight one basis of tribal opposition to the State’s proposed authorized wolf hunt. I am not privy to information regarding the level of consultation between the tribes and the State, and whether the State has satisfied its obligations under the 2007 Agreement. That issue may well be decided in the near future.
I can say that merely including tribes in a general public comment process does not fulfill tribal consultation requirements at either the state or the federal level. That is not the legally appropriate forum in which to address tribal treaty rights. If that is the extent to what occurred with the wolf hunt, I’m not sure that all of the tribes that were parties to the 2007 Agreement would believe that the State has fulfilled its obligations.
Lastly, the rights reserved in the 1836 Treaty necessarily include the right to protect habitats and ecosystems that would support hunting, fishing, and gathering.
It is well-documented that wolves are considered a “keystone” species in their natural habitat (which includes most of northern Michigan). This means that their existence and well-being affects the health and well-being of many other species of plants and animals in their ecosystem.
To the extent that Michigan’s state-sanctioned wolf-hunt impacts tribal rights to hunt, fish, and gather other species, then those tribes may have a valid basis for challenging the size and scope of the hunt.
*Any views expressed in this post are solely those of the author, and not representative of any tribes or other organizations.
Here are the materials in Stand Up for California! v. Dept. of Interior (D. D.C.):
Interior Motion to Change Venue
Interior Response to Picayune Memorandum
Turtle Talk 
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