Dewi Ione Ball has published “The Erosion of Tribal Power: The Supreme Court’s Silent Revolution” with the University of Oklahoma Press.
Here is the book page.
Here is the blurb:
For the past 180 years, the inherent power of indigenous tribes to govern themselves has been a central tenet of federal Indian law. Despite the U.S. Supreme Court’s repeated confirmation of Native sovereignty since the early 1830s, it has, in the past half-century, incrementally curtailed the power of tribes to govern non-Indians on Indian reservations. The result, Dewi Ioan Ball argues, has been a “silent revolution,” mounted by particular justices so gradually and quietly that the significance of the Court’s rulings has largely evaded public scrutiny.
Ball begins his examination of the erosion of tribal sovereignty by reviewing the so-called Marshall trilogy, the three cases that established two fundamental principles: tribal sovereignty and the power of Congress to protect Indian tribes from the encroachment of state law. Neither the Supreme Court nor Congress has remained faithful to these principles, Ball shows. Beginning with Williams v. Lee, a 1959 case that highlighted the tenuous position of Native legal authority over reservation lands and their residents, Ball analyzes multiple key cases, demonstrating how the Supreme Cour
t’s decisions weakened the criminal, civil, and taxation authority of tribal nations. During an era when many tribes were strengthening their economies and preserving their cultural identities, the high court was undermining sovereignty. In Atkinson Trading Co. v. Shirley (2001) and Nevada v. Hicks (2001), for example, the Court all but obliterated tribal authority over non-Indians on Native land.
By drawing on the private papers of Chief Justice Earl Warren and Justices Harry A. Blackmun, William J. Brennan, Thurgood Marshall, William O. Douglas, Lewis F. Powell Jr., and Hugo L. Black, Ball offers crucial insight into federal Indian law from the perspective of the justices themselves. The Erosion of Tribal Power shines much-needed light on crucial changes to federal Indian law between 1959 and 2001 and discusses how tribes have dealt with the political and economic consequences of the Court’s decisions.
Here is the petition in Meyers v. Oneida Tribe of Indians of Wisconsin:
Questions presented:
1. Whether Congress abrogated the sovereign immunity of an Indian tribe under 15 U.S.C. § 1681, et seq., by providing that “any…government” may be liable for damages.
2. Whether an individual who receives a computer generated cash register receipt displaying more than the last five digits of the individual’s credit card number and the card’s expiration date has suffered a concrete injury sufficient to confer standing under Article III of the United States Constitution.
Lower court materials here.
Here is the brief filed in Alaska v. Jewell:
Here are the cert petitions:
Here:
In Carcieri v. Salazar, the U.S. Supreme Court held that the Narragansett Tribe was not “under federal jurisdiction” in 1934, and therefore the U.S. Department of the Interior could not acquire land in trust for the tribe. The DOI’s decision to acquire trust land for the Cowlitz Tribe is one of several controversial post-Carcieri trust acquisitions. Now comes a petition for a writ of certiorari to the Supreme Court from the challengers, Citizens Against Reservation Shopping v. Jewell.
Whether an Indian tribe was “under federal jurisdiction” in 1934 is rooted in complex tribal-federal histories. Congress passed the Indian Reorganization Act in 1934, and authorized the Interior Secretary to acquire land in trust. The statute states that the DOI can acquire land for “recognized Indian Tribe[s] now under Federal jurisdiction.” The federal government interpreted that language to mean tribes recognized at the time of a decision to acquire land for seven decades. In Carcieri, the Supreme Court held that “now” unambiguously meant at the time of the passage of the sct, rejecting the government’s interpretation. The federal government did not know in 1934 what tribes were “recognized” or “under federal jurisdiction,” or even what those terms meant. Carcieri has added additional — and highly complex — layers of analysis to federal trust acquisitions.
The DOI agreed to acquire land in trust for the Cowlitz Tribe for gaming purposes in 2011. Through the regular federal acknowledgment process, 25 CFR Part 83, the DOI acknowledgedthe tribe in 2002. The acknowledgment process requires petitioning tribes to demonstrate they existed as a distinct tribal community since 1900 or earlier. The Cowlitz tribe entered into failed treaty negotiations with the United States in 1855, but according to the DOI and the D.C. Circuit, the federal government continued a government-to-government relationship with Cowlitz from then into the 20th century. It seems plausible that the government “recognized” the tribe, whatever that may mean (to channel Felix Cohen, who wrote exactly that phrase in 1934 to describe this statute). The court concluded in Confederated Tribes of the Grand Ronde Community v. Jewell that the statute is ambiguous, and the DOI’s interpretation is entitled to Chevron deference.
That the case involved a challenge by another Indian tribe, Grand Ronde, to the Cowlitz matter begs the question about the interests at play in a challenge to a trust acquisition. Grand Ronde’s share of the gaming market in northern Oregon stands to suffer some if the Cowlitz Tribe commences gaming operations closer to Portland. Siding with local units of government, a local anti-Indian community group, and other non-Indian gaming interests, Grand Ronde led the effort to use Carcieri to defeat Cowlitz and the Interior Department. Interests opposing Indian gaming could not have drawn up a divide and conquer strategy any better. More broadly, the lobbying effort to persuade Congress to “fix” the Carcieri decision with an amendment to the 1934 Act is similarly stymied by intertribal conflicts, with some established tribal gaming interests quietly lobbying against a fix. Now that the case is headed to the Supreme Court, the Grand Ronde tribe has dropped out, as have the local government entities, but their anti-Cowlitz partners are taking up the slack in their stead.
It is only a matter of time before Carcieri-based challenges to fee-to-trust acquisitions by the DOI reach the Supreme Court given the financial stakes involved. There are other cases in the pipeline involving tribes such as the Oneida Indian Nation of New York and the Ione Band of Miwok Indians. More cert petitions may soon be forthcoming.
Barring acquiescence by the United States or another unusual development, it is unlikely the court will grant review in the Cowlitz matter. Normally, the court does not grant review in matters of limited importance unless there is a clear circuit split on federal law. Other than a federal district court decision involving the Mashpee Wampanoag Tribe (currently on appeal in the First Circuit), the Interior Department’s trust acquisitions challenged under the Carcieri decision have been affirmed. In short, the D.C. Circuit’s decision squares with the outcomes in prior cases in the Second and Ninth Circuits. Even if the outcomes had been different, the applicable law is not currently in doubt. As noted above, each tribe’s history is different, rendering every fee-to-trust decision extremely fact-specific (or factbound, in the court’s parlance). As I noted in my paper, Factbound and Splitless, any cert petition labeled “factbound and splitless” has virtually no chance of being reviewed by the Supreme Court.
That said, my research also shows that the Supreme Court is more likely to grant certiorari in Indian law matters, which involve unique federal interests, and (unfortunately for tribal interests) in cases where tribal interests and their federal partner have prevailed below. The court might conclude on its first look that the Interior Department or the federal circuit courts are simply wrong on the law, and docket the case for review.
In any event, the Carcieri decision spawned a great deal of litigation in an area — tribal gaming — that has important financial stakes, as well as the possibility of inter-tribal conflict. While the Cowlitz matter might not be the vehicle to answer the ultimate question of the meaning of Carcieri and the Department of the Interior’s response, there will be similar cases in the future, perhaps leading to inter-tribal sparring at the Supreme Court.
Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Cert Petition:
Citizens Against Reservation Shopping v. Jewell
Questions presented:
1. Whether, to have been a “recognized Indian tribe now under Federal jurisdiction” in 1934, a tribe must have been “recognized” at that time.2. Whether, to have been “under Federal jurisdiction” in 1934, a tribe must have been located in Indian country – that is, on land over which the United States exercised jurisdiction to the exclusion of State jurisdiction.
Here:
Questions presented:
1. Whether the Ninth Circuit Court of Appeals’ nunc pro tunc ruling depriving Petitioners of substantive procedural rights was in error?2. Whether the Ninth Circuit Court of Appeals’ ruling on the statute of limitations was in error?
Turtle Talk 
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