Supreme Court

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.

Lewis v. Clarke is SCOTUSBlog Petition of the Day

Matthew L.M. Fletcher

Here.

The petition is here.

SCOTUS Denies Cert in NLRB, Pauma, and Shinnecock Petitions

Matthew L.M. Fletcher

Here is the order list. 

Impact of Dollar General Affirmance

Matthew L.M. Fletcher3 Comments

Huge win for the Mississippi Band of Choctaw Indians tribal court and most especially for the family of John Doe. The case must now return to the tribal court for a hearing on the merits. Presumably, DG will settle and we won’t hear any more about this case. One guesses, however, that if DG loses in a merits battle, it could AGAIN try the federal courts to see if they will hear another challenge to the tribe’s jurisdiction, perhaps more closely tied to something like punitive damages. Highly unlikely I would guess.

The battle waged at oral argument may be repeated again and again throughout Indian country. The constitutional issues are highly salient to the conservatives remaining on the Court. At least one thing we can thank DG for is making the best case for nonmembers on those constitutional issues.

The next Supreme Court Justice will decide whether tribes can assert civil jurisdiction over nonconsenting nonmembers. Meanwhile, tribal court plaintiffs will continue to cite to the Fifth Circuit’s opinion in DG, the Ninth Circuit’s opinion in Water Wheel, Merrion, and related cases. 

On a more speculative note, hopefully historians will figure out what was going on for the past six and a half months for all of this to end up in a 4-4 tie. One would have to guess that one or more Justices switched votes in the very recent past. Perhaps the Chief Justice assigned himself the majority after oral argument (he did write Plains Commerce and so has a track record), and struggled mightily to hold a majority for the past several months. Or perhaps Samantha Bee’s satire swayed someone at the last minute. 🙂

Dollar General Affirmed by an Equally Divided Court

Kate Fort1 Comment

Here.

This means the Fifth Circuit decision upholding tribal jurisdiction stands.

Tunica-Biloxi Gaming Authority v. Zaunbrecher Cert Stage Briefs

Matthew L.M. Fletcher2 Comments

Here:

Tunica Cert Petn

Question presented:

It is well established that “Indian tribes are domestic dependent nations that exercise inherent sovereign authority. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); Michigan v. Bay Mills Indian Community,_ U.S._, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014). “Among the core aspects of sovereignty that tribes possess – subject, again, to congressional action – is the common-law immunity from suit traditionally enjoyed by sovereign powers …. That immunity, we have explained, is a necessary corollary to Indian sovereignty and selfgovernance.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986). 

In Michigan v. Bay Mills Indian Cmty., supra, this Court explained that the “baseline position … is tribal immunity; and [t]o abrogate [such] immunity, Congress must unequivocally express that purpose …. That rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian selfgovernment.” (Citations omitted; internal quotation marks omitted.) Id., 134 S.Ct. at 2031-32.

Cert Opp

Lower court materials here.

Samantha Bee on Dollar General and Tribal Courts

Kate Fort2 Comments

Takeaways from the Bryant Decision

Matthew L.M. Fletcher

As observers might have predicted from the oral argument in United States v. Bryant (opinion here), the government’s victory was not surprising. Of course, even a few years ago, this outcome was far from a foregone conclusion, as the 2005 Canby-Washburn-Sands debates in the Federal Sentencing Reporter suggested.

A few takeaways:

1. Remarkable that the Court heaps some of the blame on states for failure to prosecute DV offenses in Indian country, citing to the now-mammoth studies supporting what people in PL280 states have been saying for more than a half-century:

Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007)…. [slip op. at 5]

2. We all know it’s coming — the constitutional challenge to VAWA’s tribal jurisdictional provisions:

In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. [slip op. at 4 n. 4]

3. As is true most of the time, the Court does not acknowledge the disconnect between the terrible rates of crime in Indian country with the lack of effective law enforcement in Indian country, a reality created by Congress and made worse by the Court itself over the decades. Compare:

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” [slip op. at 2]

With:

That leaves the Federal Government. * * * As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. [slip op. at 5, 6]

And:

[Bryant] has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. [slip op. at 10]

The feds already don’t have the capacity to prosecute all the repeat DV offenders who are Indians like Bryant, then add in the non-Indians — there’s a problem that 117(a) doesn’t fix.

3. Tribal criminal convictions on Indians in compliance with the Indian Civil Rights Act are all right for Congress, and therefore okay for the Supreme Court:

Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. [slip op. at 16]

Let’s hope that statement applies to non-Indians, too.

4. Tribes start funding those criminal defender offices!!!!! This Lakota woman spent two months in jail because she couldn’t pay a $250 bond, let alone afford an attorney:

Angie told me that she had bought, not sold, marijuana that day. She should have been charged only with possession. She had pleaded not guilty at her arraignment, during which she had no representation. But because of the severity of her alleged crime — selling drugs to a minor — her bond was set at $250. Unable to pay, Angie was expected to sit in jail for the full two months until her next scheduled court appearance.

Indian country talks about taking care of kids and talks about changing the criminal justice system into a system of restorative justice, well, this doesn’t look it it to me.