Supreme Court

Fletcher on Current Tribal Immunity Issues (Law360.com)

Matthew L.M. Fletcher1 Comment

Here:

Law360, New York (October 14, 2016, 1:32 PM EDT) — Two years ago, in Michigan v. Bay Mills Indian Community, the U.S. Supreme Court roundly affirmed the doctrine of tribal sovereign immunity, but did so grudgingly. The court warned against tribes abusing their sovereign status, especially in commercial ventures. The lower courts now are addressing tribal immunity in contexts as diverse as tribal sovereign lending and eminent domain exercised by utility companies. Pending before the Tenth Circuit is Public Service Company of New Mexico v. Barboan, where a utility is attempting to exercise the power of eminent domain over lands owned by an Indian tribe. And, this Term, the Supreme Court in Lewis v. Clarke will determine the scope of immunity for tribal employees. The outcomes in these cases, potentially circumventing tribal immunity, may expose tribal governments to extensive liability, reduced commercial opportunities, and worsened environments.

The federal government has authority to abrogate tribal immunity but the judiciary imposes a clear statement rule on statutes purported to waive immunity. As the Supreme Court stated in Bay Mills, Congressional intent to abrogate tribal immunity must be unequivocal. In Barboan, the utility is relying on 25 U.S.C. § 357 for statutory authority to condemn Indian lands. The statute does authorize the condemnation of Indian lands, with compensation to “allottee[s].” The Tenth Circuit may decide whether that statute is a clear statement of intent to authorize the condemnation of lands owned by allottees that are Indian tribes otherwise cloaked with immunity. If the court holds § 357 abrogates tribal immunity, then tribal efforts to stop or slow pipeline projects like the Dakota Access Pipeline could be compromised. Lower courts likely will conceive of this case as within the call of the question in Bay Mills and uphold the tribal defense here. But as always, the Supreme Court looms.

That the Supreme Court is very interested in the contours of tribal immunity is confirmed by the consistency with which the court has granted certiorari in those cases. Coming a mere two years after Bay Mills, the Court will hear another immunity matter arising from tribal commercial activities. In Lewis, the Court will decide whether tort and contract claimants can access tribal assets under a theory that tribal employees could be liable in tort if sued in their individual capacities, placing tribes in an unenviable position requiring them to indemnify money damage claims against employees.

Because Indian tribes usually have no tax base, the federal government long has encouraged tribes to utilize their sovereign status in commercial ventures to generate government revenue. In line with federal Indian policy, tribes have established gaming operations, asserted control over reservation natural resources, and established online commercial enterprises. Meanwhile, tribes established justice systems to address tort and contract claims arising from tribal enterprise. Tribal statutes established limited waivers of tribal immunity tailored to tribal courts analogous to the Federal Tort Claims Act and the federal Contract Disputes Act. Tribes have settled or litigated untold thousands of claims under these tribal laws since the 1990s.

Still, tribes find themselves hailed into state and federal courts to defend tort and contract claims for money damages. Nearly all of these claims are dismissed for lack of jurisdiction, either because of state or federal court subject matter jurisdiction or sovereign immunity. The tougher cases are those that arise off-reservation. The Supreme Court has held more than once that tribes retain immunity in federal and state courts even when engaged in off-reservation commercial ventures. Tort victims complain that tribal limitations periods are too short, that tribal damages caps are too low, and that tribal courts are unfamiliar and perhaps even biased forums. Worse, some consumers of tribal sovereign lending products allege that tribal dispute resolution forums are wholly inadequate or even shams.

In recent years, tort victims cleverly have sued tribal employees in their individual capacities in state or federal courts, seeking to avoid tribal immunity. Some courts rejected this theory, but others held that tribal emergency medical technicians and casino managers may be sued for money damages in their individual capacities. Perhaps it is only a matter of time before tribal sovereign lending employees are sued in their individual capacities. Individuals are not sovereigns, and are not immune from suit. However, sovereigns cannot act without individuals. Normally, when a government employee is on the clock, they are government officials cloaked with immunity from money damages, not individuals. Everyone knows that a pragmatic tribal government will be forced to indemnify their employees, opening up the tribal fisc to potentially expansive liability.

Decisions against tribal immunity in the context of Indian lands and in the context of tribal employees could expose Indian tribes to land dispossession and monetary liability far beyond what tribes have come to expect in recent decades. With an eight-judge Court, getting to five votes is tricky. However, it is very possible that progressive judges skeptical of governmental immunity might vote against tribal interests alongside conservative justices skeptical of tribal sovereignty. Tribal interests could very well face a perfect storm aligned against them.

—By Matthew L.M. Fletcher, Michigan State University College of Law

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.

Wolfchild v. Redwood County Cert Stage Briefs

Matthew L.M. Fletcher1 Comment

Here:

Wolfchild Cert Petition

Lower Sioux Cert Opp

Lower court briefs here.

Lewis v. Clarke Background Materials

Matthew L.M. Fletcher7 Comments

Merits Briefs:

Amicus Briefs:

Cert Stage Briefs:

Connecticut Supreme Court materials:

Other materials:

Kitras v. Town of Aquinnah Cert Petition

Matthew L.M. Fletcher

Here:

Kitras Cert Petition

Questions presented:

1. Whether an assumed tribal custom can survive the extinguishment of aboriginal rights by Congress and undermine conveyances of land that were transferred in fee simple absolute?
2. Whether the legal presumption of an “easement by necessity” is protected against contradiction by the parol evidence rule, and whether the relaxation of the rule amounts to a taking of property under the Due Process Clause?
3. Whether the judicial elimination of a well-established common law right to private property, absolutely necessary for the enjoyment of property, constitutes a judicial taking under the Fifth and Fourteenth Amendments?
Lower court materials here.

U.S. Supreme Court Grants Cert in Lee v. Tam

Kate Fort

Here.

This case addresses the same issue brought up by Pro-Football v. Blackhorse (section 2(a) of the Lanham Act), which is currently in the 4th Circuit. Pro-Football, Inc. petitioned the Court to skip the 4th Circuit and be joined to the Tam v. Lee case if it was granted here. There is no decision on that at this time.

Pro-Football v. Blackhorse coverage here.

Tam v. Lee coverage here.

Story from Law360 here.

Thanks to SD for the heads up.

Stanford Law School Panel on Indian Law at the Supreme Court (9/30/2016)

Matthew L.M. Fletcher

Here:

stanford-event

538: “Clinton And Trump Are Both Promising An Extreme Supreme Court”

Matthew L.M. Fletcher

Here.

Justice Ginsburg Corrected Minor Error in Bryant Decision

Matthew L.M. Fletcher

Here is the NYTs article discussing post-decision amendments and corrections in Supreme Court opinions more generally.

An excerpt:

On the last day of June, for instance, a deputy solicitor general Michael R. Dreeben, wrote a letter to the court saying there had been a mistake in a decision issued a few weeks before. He asked the court to fix the error, and, a week later, it did.

Writing for the majority in a case about domestic assault on Indian reservations, Justice Ruth Bader Ginsburg had said a federal law applied to some serious crimes “when both perpetrator and victim are Indians.” But what the law itself actually said, quite clearly, was that it applied to all victims, Indians or not.
 

When Mr. Dreeben’s letter arrived, the court promptly sent it to reporters. When the court amended the decision to adopt the revised language Mr. Dreeben had suggested, its website noted the change.

Cert Petition Arising from Police Killing of Ute Tribal Member

Matthew L.M. Fletcher1 Comment

Here is the petition in Jones v. Norton:

cert petn

Questions presented:

  • Where it is undisputed that Plaintiffs/Petitioners Debra Jones and Arden Jones, and their deceased son Todd R. Murray, all had individual rights under the 1868 Ute Tribe treaty with the United States, and where, under the procedural posture of this case, it is undisputed that Plaintiffs’ and their Decedent son’s individual rights under the Treaty were violated, did Plaintiffs state a claim for relief under 42 U.S.C. § 1983 based on the violation of their treaty rights?
  • 2.Where State police officers have pursued an Indian within Indian country without either probable cause or jurisdictional authority can they be relieved of the common law duty to preserve evidence simply because the officers’ tortious conduct giving rise to the claims against them arose within Indian country?
  • 3.Where there are disputed material facts, can a district court grant summary judgment based upon the court’s opinion that a reasonable jury would decide the case in favor of the summary judgment movant?

Lower court materials here.

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

bryannewland4 Comments

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.