American Indian Law Deskbook: Conference of Western Attorneys General

American Indian Law Deskbook Fourth Edition Conference of Western Attorneys General

American Indian Law Deskbook Fourth Edition Conference of Western Attorneys General

Chair, Editing Committee: Larry Long, Attorney General, South Dakota Chief Editor: Clay Smith, Idaho

University Press of Colorado

To the Memory of Julie Wrend (1954–2007)

© 2008 by the University Press of Colorado Published by the University Press of Colorado 5589 Arapahoe Avenue, Suite 206C Boulder, Colorado 80303 All rights reserved Printed in the United States of America The University Press of Colorado is a proud member of the Association of American University Presses. The University Press of Colorado is a cooperative publishing enterprise supported, in part, by Adams State College, Colorado State University, Fort Lewis College, Mesa State College, Metropolitan State College of Denver, University of Colorado, University of Northern Colorado, and Western State College of Colorado. The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials. ANSI Z39.48–1992 Library of Congress Cataloging-in-Publication Data American Indian law deskbook / Conference of Western Attorneys General ; chair, editing committee, Larry Long, chief editor, Clay Smith. — 4th ed. p. cm. ISBN 978-0-87081-925-4 (alk. paper) 1. Indians of North America—Legal status, laws, etc. I. Myers, Hardy. II. Smith, Clay. III. Conference of Western Attorneys General. KF8205.A76 2008 342.7308’72—dc22 2008041532 Typeset by Daniel Pratt 17

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Contents



Foreword to Fourth Edition



Foreword to Third Edition



Foreword to Second Edition



Foreword to First Edition



Chapter 1 Federal Indian Law Policy: Origins and Legal Development

xxi xxiii xxv xxvii

I. Judicial Foundations of Federal Indian Policy A. The Marshall Trilogy B. Federal Common Law Application of Marshall Trilogy Principles 1. Tribes’ extraconstitutional sovereign status 2. Plenary power doctrine 3. Indian trust doctrine 4. Indian canons of construction II. Evolution of Federal Indian Policy: Congress and the Executive Branch A. The Trade and Intercourse Acts Period: 1789 to 1887 B. The General Allotment Act Period: 1887 to 1934 C. The Indian Reorganization Act and Subsequent Legislation: 1934 to the Present

Chapter 2 Indian, Indian Tribe, and Indian Country

I. Indian A. Federal Law and the Definition of Indian 1. Federal common law-based Indian status 2. Statute-based Indian status B. Indian Status Under Federal Law and the Fifth Amendment’s Due Process Clause C. Membership in State-Recognized Tribes vii

1 1 1 6 7 8 11 24 29 30 35 39 48 48 50 50 53 54 59

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II. Indian Tribe A. Federally Recognized Indian Tribes B. State Recognition as a Tribe

61 61 67

III.

Indian Country A. Reservations B. Dependent Indian Communities C. Trust Allotments D. Trust Land and Indian Country Status E. Land Claims Settlement Lands

68 69 71 74 74 78

Chapter 3 Indian Land and Property: Title and Use

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I. Sources of Tribal Land Occupancy Rights A. Aboriginal Title-Based Occupancy Rights B. Nonaboriginal Title-Based Occupancy Rights

79 80 88

II. Reservation Diminishment

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III. Ownership of Navigable Waters A. Equal Footing Doctrine Principles B. The Equal Footing Doctrine and Indian Reservations

97 98 100

IV.

104 105 109 111 112 115 118

Leasing Indian Natural Resources A. Mineral Leasing B. Farm Leases C. Grazing Leases D. Miscellaneous Leases E. Timber Harvesting F. Rights-of-Way and Eminent Domain

V. Fractional Property Interests

120

VI. Indian Graves, Cultural Items, and Sacred Sites A. Native American Graves Protection and Repatriation Act B. Spiritual Practice–Based Protection

126 127 133



Chapter 4 Criminal Law

I. Indian Country Crimes A. Federal Crimes 1. General Crimes Act 2. Major Crimes Act 3. Federal Juvenile Delinquency Act B. Tribal Crimes C. State Crimes 1. State criminal jurisdiction under Public Law 280

141 141 142 142 147 149 151 153 153

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2. General state criminal jurisdiction outside of Public Law 280 D. Summary Analysis 1. Crimes committed by an Indian against an Indian 2. Crimes committed by an Indian against a non-Indian 3. Crimes committed by a non-Indian against an Indian 4. Crimes committed by a non-Indian against a non-Indian 5. Victimless crimes committed by Indians 6. Victimless crimes committed by non-Indians

II. Special Questions of State and Federal Authority in Indian Country A. Liquor-Related Offenses B. Criminal Conduct Occurring Within and Without Indian Country C. Incidental Law Enforcement Activities

Chapter 5 General Civil Regulatory Jurisdiction

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158 160 160 160 160 161 161 161 161 161 163 164 169

I. Congressional Exercise of Indian Commerce Clause Power A. General Scope of Power’s Exercise B. Congressional and Tribal Regulation of Nonmembers 1. Congressional delegation 2. Congressional deferral 3. Congressional restoration of inherent authority

170 170 172 172 174 175

II. Retained Inherent Tribal Authority A. The Road to Montana 1. The 1978 trilogy 2. Colville B. The “Pathmarking” Montana C. Application of Montana Standards 1. Merrion 2. Brendale 3. Bourland 4. Strate 5. Atkinson and Hicks 6. Plains Commerce

185 186 186 189 190 191 191 192 194 197 199 205

III. State Authority in Indian Country A. State Regulation of Nonmembers 1. Bracker interest-balancing standards 2. The Williams self-governance standard B. Direct State Regulation of Resident Tribe or Its Members

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Contents

Chapter 6 Civil Adjudicatory Jurisdiction

I. Federal Adjudicatory Jurisdiction A. 28 U.S.C. § 1362: Special Jurisdictional Authorization for Indian Tribes B. 28 U.S.C. §§ 1331 and 1332: Federal Question Exhaustion and Diversity Deferral Requirements 1. National Farmers Union exhaustion and Iowa Mutual deferral a. The basic rules b. Exceptions to the basic rules 2. Approaches to tribal-court-proceeding element a. The “reservation affairs” approach b. The interference with an existing tribal court proceeding approach 3. Federal court review of tribal court jurisdictional determinations

225 225 226 231 232 232 234 239 240 245 248

II. Tribal Adjudicatory Jurisdiction A. The Precursor Decisions: National Farmers Union and Iowa Mutual B. The Defining Decisions: Strate and Hicks

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III. State Adjudicatory Jurisdiction A. Nonstatutory Adjudicatory Jurisdiction B. Public Law 280 Jurisdiction

266 266 273

IV. Recognition of Foreign Judgments: Full Faith and Credit or Comity

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Chapter 7 Tribal Sovereign Immunity and the Indian Civil Rights Act

I. Sovereign Immunity from Suit A. Doctrinal Foundation: Fidelity & Guaranty Through Manufacturing Technologies B. Current Application of the Tribal Sovereign Immunity Doctrine 1. Congressional abrogation a. Federal statutes of general applicability b. Indian tribe-specific statutes c. Compulsory Process 2. Tribal waiver a. By agreement b. In litigation

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c. Through “sue and be sued” ordinance and corporate charter provisions 3. Officer capacity suits

II. The Indian Civil Rights Act A. The ICRA’s Provisions B. Santa Clara Pueblo v. Martinez C. Post-Martinez Federal Court Enforcement D. Tribal Court Application of ICRA

Chapter 8 Indian Reserved Water Rights

308 313 316 316 322 324 327 331

I. Substantive Elements of Reserved Water Rights A. Historic Background B. Non-Indian Reserved Water Rights Cases C. Purposes of the Reservation D. Quantity of Reserved Water Right 1. Historical approaches 2. The practicably irrigable acreage standard 3. The future of the PIA standard 4. Standards for quantifying nonagricultural reserved rights E. Priority of Reserved Water Rights F. Miscellaneous Issues 1. Appurtenant waters 2. Groundwater 3. Allotments and reacquired lands G. Change of Use and Transfer of Reserved Water Rights 1. Change of use 2. Transfer of tribal reserved water rights

333 333 337 339 343 343 345 347 350 352 353 354 354 356 357 357 360

II. Jurisdictional Issues A. State Legal Systems Relating to Water Rights 1. State regulation of water rights 2. Adjudication of water rights B. The McCarran Amendment and State Adjudication of Reserved Rights 1. Nature of state adjudications to which McCarran Amendment applicable 2. Federal court abstention 3. Removal to federal court C. The McCarran Amendment and State Administration of Water Rights D. Inherent Tribal Authority Over Water Rights and Resources 1. Regulatory authority based on tribal proprietary interests in water

363 363 363 365 367 369 373 376 376 380 380

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2. Tribal regulatory authority over appropriative water rights and unappropriated waters on reservation Chapter 9 Fish and Wildlife Regulation

381 384

I. Constitutional Framework

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II. Fishing and Hunting Within Indian Country A. Fishing and Hunting by Tribal Members 1. Tribal regulation 2. State regulation B. Fishing and Hunting by Nontribal Members 1. Tribal regulation 2. State regulation

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Fishing and Hunting Outside Indian Country A. General Principles B. Aboriginal Rights C. Federally Secured Off-Reservation Indian Fishing and Hunting Rights 1. The holder of the right 2. Effect of changing circumstances on the exercise of the rights 3. The geographic scope of off-reservation federally secured rights a. “Usual and accustomed” fishing places in the Stevens/ Palmer treaties b. Treaty hunting rights on “open and unclaimed lands” and “unoccupied lands of the United States” c. Treaty-based right of access as easement and property right d. Preemption and conservation necessity e. Quantifying treaty rights: Securing a “fair share” f. Burdens of proof in state court prosecutions 4. Off-reservation treaty rights and habitat a. Phase II of United States v. Washington b. Other habitat litigation

IV. Federal Regulation of Fishing and Hunting A. Bureau of Indian Affairs Management Authority B. Federal Regulatory Statutory Schemes 1. Endangered Species Act 2. Magnuson-Stevens Fishery Conservation and Management Act 3. Pacific Salmon Treaty Act 4. Marine Mammal Protection Act

395 395 397 398 399 401 402 403 405 409 411 411 414 416 416 417 417 419 420 421

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5. Whaling Convention Act 6. Bald and Golden Eagle Protection Act 7. Migratory Bird Treaty Act C. Lacey Act D. Alaska National Interest Lands Conservation Act Chapter 10 Environmental Regulation

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421 422 423 424 425 427

I. Tribal and State Programs A. Tribal Regulatory Authority B. State Regulatory Authority in Indian Country

428 428 434

II. EPA-Administered Federal Regulatory Programs A. EPA’s Implementation of Federal Environmental Laws on Indian Reservations 1. Procedure for tribal program approval 2. EPA’s Indian policy and interpretation of federal Indian law B. Federal Environmental Laws Providing for State or Tribal Program Assumption 1. Clean Water Act 2. Safe Drinking Water Act 3. Clean Air Act 4. Resources Conservation and Recovery Act 5. Federal Insecticide, Fungicide, and Rodenticide Act C. Federal Environmental Laws Not Providing for Direct Program Assumption by States or Tribes D. Tribal Liability for Violation of Federal Pollution Control Statutes

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III. Non-EPA Federal Environmental Programs A. Hazardous Materials Transportation Act B. Surface Mining Control and Reclamation Act

459 459 460



Chapter 11 Taxation in Indian Country

436 436 439 441 441 447 449 451 454 455

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I. Tribal Taxation Authority

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II. State Taxation Authority A. General Principles 1. Taxation of tribes and tribal members 2. State taxation of nonmembers B. Validity of Specific Types of State Taxes 1. Natural resource taxes 2. Personal and real property taxes a. Taxes on tribal personal property

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b. Taxes on tribal real property c. Taxes on nontribal property 3. Motor fuel taxes 4. Nonfuel excise and sales taxes a. Liquor taxes b. Cigarette taxes c. Gross receipts and other sales taxes 5. Income taxes

III. Federal Taxation Authority

Chapter 12 Indian Lands Gaming

484 487 487 496 496 497 503 505 507 510

I. Pre-IGRA Regulation of Indian Country Gaming A. Federal Regulation B. State Regulation

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II. The Indian Gaming Regulatory Act A. Geographical Scope 1. Reservation 2. Governmental power 3. Prohibition of gaming on land acquired in trust after October 17, 1988, and the exceptions a. Within or contiguous to an existing reservation b. Secretarial determination and gubernatorial concurrence c. The three general exceptions B. Classes of Gaming 1. Class I gaming 2. Class II gaming a. Bingo and related gaming b. Banking and nonbanking card games c. Electronic or electromechanical facsimiles d. Grandfathered card games e. Grace periods 3. Class III gaming C. Requirements for Lawful Indian Lands Gaming 1. Class I gaming 2. Class II gaming a. Requirements for lawful gaming i. State law compliance ii. Ordinance requirement b. The Commission’s responsibilities c. State regulatory authority 3. Class III gaming

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a. Ordinance requirement b. State law condition requirement c. Tribal-state compact or secretarially prescribed procedures requirement i. Authority to enter into compacts ii. Compact provisions and approval iii. Compact enforcement iv. Good-faith litigation D. Federal Civil and Criminal Enforcement Authority

Chapter 13 Indian Child Welfare Act

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I. ICWA Applicability A. “Child Custody Proceeding” 1. General scope 2. Existing Indian family doctrine B. “Indian Child” Status 1. Multiple tribal membership and unwed fathers 2. “Reason to know”

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II. Jurisdiction Under the ICWA A. Exclusive Tribal Jurisdiction Over All Child Custody Proceedings B. Preferred Tribal Jurisdiction Over Foster Care Placement and Parental Rights Termination Proceedings 1. General scope 2. Notice requirements 3. Good cause not to transfer

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III. State Court Adjudication of Child Custody Proceedings: The Merits A. Involuntary Proceedings B. Voluntary Proceedings C. Placement Preferences

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IV. Collateral Attack Upon State Court Decrees

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V. Full Faith and Credit Requirements

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VI. Rights of Adult Adoptees

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Chapter 14 State-Tribal Cooperative Agreements

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I. Conduct of Government-to-Government Relations

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II. Governmental Authority for Entering State-Tribal Cooperative Agreements A. Tribal Authority

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1. Tribal law 2. Federal law B. State Authority

III. Subject Areas Appropriate for State-Tribal Cooperative Agreements A. Environmental Issues 1. Legislation authorizing tribal responsibility over environmental programs 2. Hazardous or solid waste disposal programs B. Resource Conservation C. Taxation Issues D. Law Enforcement Activities E. Quantification of Reserved Indian Water Rights F. Protection of Indian Graves, Sacred Sites, and Cultural Items IV.

Considerations for Negotiating Cooperative Agreements A. Find a Common Ground B. Maintain Theme of Equal Partnership and Respect 1. Learn about the tribe 2. Clarify approval protocols 3. Listen 4. Be professional and courteous C. Attempt Compromise Through Creative Cross-Issue Development D. Avoid Demanding Jurisdictional Concessions E. Involve in the Process All Parties Who Will Be Affected by the Agreement F. Prepare to Be Flexible and Creative G. Agree on Minimum Regulatory Standards H. Consider Mediation I. Special Considerations for Agreement Terms 1. Confidentiality/public records laws 2. Dispute resolution, waivers of sovereign immunity, and choice of forum 3. Choice of law 4. Indemnification

624 624 625 629 629 629 630 631 632 633 635 636 636 636 637 637 637 638 638 638 638 639 639 639 639 640 640 641 642 642

V. A Case Study: Colorado Ute Water Rights Agreement

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VI. State-Tribal Agreements: A Representative Sample A. Environmental Protection 1. Clean Air Act implementation agreement between Puget Sound Air Pollution Control Agency and Puyallup Tribe of Indians

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2. Agreement between the Southern Ute Indian Tribe and State of Colorado concerning air quality control on the Southern Ute Indian Reservation 3. Agreement between Assiniboine and Sioux Tribes and State of Montana for regulation and enforcement of pesticide use on the Fort Peck Reservation 4. Agreement between Assiniboine and Sioux Tribes and State of Montana for the regulation of underground storage tanks on the Fort Peck Reservation 5. Hazardous waste agreement between Menominee Tribe and State of Wisconsin 6. Water quality management plan implementation agreement between Colville Tribe and State of Washington B. Natural Resources 1. Agreement between the Colville Tribes and the Washington Department of Fish and Wildlife on jointly managed salmon and steelhead populations 2. Hunting and fishing cooperative agreement between Ute Indian Tribe and State of Utah 3. Agreements between the Confederated Tribes of the Colville Reservation and the Washington Department of Fish and Wildlife regarding regulation of hunting and fishing 4. Hunting and fishing settlement agreement between Southern Ute Tribe and State of Colorado 5. State-tribal cooperative agreement between Confederated Salish and Kootenai Tribes of the Flathead Reservation and Montana Department of Fish, Wildlife and Parks 6. Puget Sound Salmon Management Plan 7. Fort Berthold oil and gas agreement 8. Agreement between Counties of Uintah and Duchesne, State of Utah, and Ute Indian Tribe of the Uintah and Ouray Reservation C. Taxation Agreements 1. Agreements between State of Washington and Indian Tribes for purchase and resale of liquor 2. Settlement agreement among State of Washington, United States, and tribes exercising treaty fishing rights in State of Washington 3. Settlement agreements between State of Washington and Yakama Indian Nation, Lummi Indian Nation, and Confederated Tribes of the Colville Reservation concerning motor vehicle fuel taxation

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4. Cigarette tax refund agreements between Oregon Department of Revenue and several Oregon tribes Quantification of Water Rights Law Enforcement 1. Law enforcement agreement between Kootenai Indian Tribe of Idaho and the City of Bonners Ferry, Idaho 2. Cross-deputization agreement between Montana Highway Patrol, Cities of Wolf Point and Poplar, County of Roosevelt, and the Assiniboine and Sioux Tribes of the Fort Peck Reservation 3. Cross-deputization agreement between State of Nebraska and several Nebraska tribes Delivery of Social Services 1. Agreement between the Montana Department of Public Health and Human Services and Blackfeet Tribe for tobacco use prevention program 2. Indian child welfare services agreement between State of Utah and Navajo Nation 3. Indian Child Welfare Act agreement between Minnesota and 11 tribes 4. Agreement for provision of benefits of special supplemental food program for women, infants, and children between Chippewa Cree Tribe of the Rocky Boy’s Reservation and State of Montana 5. Weatherization contracts between State of Montana and various tribes 6. Agreement between State of New Mexico and Navajo Nation for child support enforcement 7. Agreements between Oregon Youth Authority and Oregon tribes 8. Medicaid agreement between the Montana Department of Public Health and Human Services and the Chippewa Cree Tribe of Rocky Boy’s Reservation Cultural Resources 1. Agreement between Wisconsin Department of Transportation and the Ho-Chunk Nation regarding the Kingsley Bend Effigy Mound Site 2. Agreement between the Oregon Parks and Recreation Department and the Confederated Tribes of the Umatilla Indian Reservation regarding cultural resources on state park lands 3. Memorandum of understanding regarding access to Department of Natural Resources lands for hunting

655 655 656 656

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and gathering of resources and accessing cultural sites between the Washington State Department of Natural Resources and the Lummi Nation

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Table of Cases

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Table of Statutes and Codes

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Bibliography

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Index

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Foreword to Fourth Edition

Few areas of legal practice have the breadth, both substantively and procedurally, of Indian law. Although primarily the province of federal courts, Indian law questions are confronted with increasing frequency by state courts in a variety of areas, most notably child custody and criminal matters. Decisions under the Indian Child Welfare Act, for example, now constitute the largest share of reported Indian law–related cases. State courts now confront on a daily basis questions of tribal sovereign immunity or tribal jurisdiction. The last 30 years has witnessed exponential growth of controversies over the limits of tribal regulatory and adjudicatory jurisdiction—an area that, in turn, has become the principal focus of the United States Supreme Court over that period. Growth in that area reflects, of course, increased interaction between tribes and nonmembers in Indian country over, in particular, commercial transactions. It is thus not by chance that litigation over tribal sovereign immunity has accelerated strikingly since publication of the American Indian Law Deskbook’s First Edition in 1993. The Conference of Western Attorneys General recognized from the outset that Indian law was a dynamic, ever-evolving field of law. It therefore saw the need not only to develop a treatise that reflected the current status of Indian law jurisprudence but also to create a framework adaptable to new developments—whether decisional or statutory—on a frequent basis. The Deskbook’s annual supplements—which remain unique among the principal Indian law treatises—serve this objective but have grown to lengths that require periodic revision of the text to facilitate ease of use and reader comprehension. The 2007 Supplement reflected this need since it had grown to 200 pages. This edition, like prior revisions, incorporates supplement material into the existing main volume and reorganizes certain chapters. Most notably, Chapter 1 contains expanded treatment of the trust doctrine; Chapter 2 addresses state-recognized tribes; Chapter 3 adds a new section devoted to protection of lands sensitive for cultural or religious purposes; Chapters 7 and 13 are restructured with respect to sovereign immunity and Indian Child Welfare Act issues to introduce greater amounts of footnote material into the text; and Chapter 14 on state-tribal cooperative agreements has been updated. The xxi

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Foreword to the Fourth Edition

Fourth Edition continues CWAG’s commitment to presenting often complex material in a manner that attempts to objectively summarize existing law and to identify matters of doctrinal disagreement or uncertainty. As with prior editions, the Fourth Edition is the product of effort from many individuals in CWAG-affiliated states. Special acknowledgment is due to Randy Pinal (California); Eve McDonald (Colorado); Susan Cobb and Robert Deichert (Connecticut); Steve Strack (Idaho); Michael Wolz (Nevada); Charles Carvell (North Dakota); Jas Jeffrey Adams and Stephanie Striffler (Oregon); John Guhin and Charles McGuigan (South Dakota); Fronda Woods (Washington); Chris Coppin, who was formerly in the New Mexico Attorney General’s Office but now serves as CWAG’s Legal Director; and Paula Cotter with the National Association of Attorneys General. A very special thanks and acknowledgment are due to Clay Smith (Idaho), who continued in his role as the Deskbook’s chief editor. Special thanks are due also to Idaho Attorney General Lawrence Wasden, under whose CWAG chairmanship work on the Fourth Edition began, and to Arizona Attorney General Terry Goddard, under whose chairmanship the edition’s manuscript was largely prepared. Finally, the Fourth Edition is dedicated to the memory of Julie Wrend. Julie served in the Colorado Attorney General’s Office for many years and was a chief co-editor on the First and Second Editions. She brought far more than her substantial legal talents to the often-taxing process of drafting a legal treatise. Julie’s vivacity and concern for others made that process enjoyable. She has been, and will continue to be, greatly missed. Larry Long South Dakota Attorney General Chair, Editing Committee

Foreword to Third Edition

Since publication of the Second Edition of the American Indian Law Deskbook, the field of Indian law has developed significantly, most notably in the areas of tribal lands acquisitions, tribal gaming, child custody, and contested sovereignty matters. As with the First Edition, the Conference of Western Attorneys General (CWAG) has published annual supplements to keep the Second Edition current; however, the volume and significance of developments in case law, legislation, and regulation make this Third Edition timely, and perhaps imperative. As noted in the Forewords to the First and Second Editions, Indian law has developed as one of the most complex and nuanced of fields, in part because it is the product of a complex history of confrontation, accommodation, and policy reversals. While Indian law arose in the conflicts of Indians and white settlers, it now functions in the context of a multicultural society, dedicated to civil rights and racial equality. The practitioner and scholar in Indian law must deal with criminal law, civil regulatory and adjudicatory law, constitutional law, property law, natural resources law, civil rights law, statutory interpretation, administrative and regulatory law, and similar fields. No single book can instruct completely as to all these areas, but a thorough and continually updated compendium of the law is a needed and powerful resource for Indian law study and practice. The offices of state attorneys general, with their combined expertise in all areas of Indian law, have been an appropriate—and willing—source of the immense work needed to provide that compendium. As with earlier Deskbook editions, this Third Edition continues a commitment to neutral and disinterested discourse and analysis. The changes in this edition include revisions to the organization of many chapters and the substantive analysis in all chapters. Of particular note are the expanded discussion of the trust doctrine in Chapter 1; the significantly revised discussion of the term “Indian” in Chapter 2; the detailed analysis directed to the Native American Graves Protection and Repatriation Act in Chapter 3; the analysis in Chapter 4 of the Federal Juvenile Delinquency Act; the exploration in Chapter 5 of the various methods by which Congress exercises its authority in Indian country; the entirely redrafted Chapter 9, now entitled Fish and xxiii

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Foreword to the Third Edition

Wildlife Regulation; and the inclusion of federal taxation issues in Chapter 11. Other chapters—most importantly Chapter 6’s treatment of civil adjudicatory authority, Chapter 7’s analysis of tribal immunity from suit, and Chapter 12’s discussion of Indian lands gaming—largely maintain their prior structure but have been affected doctrinally in important ways by cases decided since the Second Edition’s publication. This edition, like previous ones, is primarily the product of collaboration and contributions by Indian law practitioners in attorney general offices in CWAG states. However, reflecting the increased importance of Indian law outside the West, vitally important contributions have been made by attorney general offices in the East, South, and Midwest. Special thanks and much credit go to those assistant and deputy attorneys general who drafted and edited the chapters: Charles Carvell (North Dakota), Susan Cobb (Connecticut), Thomas Gede (CWAG Executive Director), Jon Glogau (Florida), John Greene (Wisconsin), John Guhin (South Dakota), Wayne Howle (Nevada), Marc LeForestier (California), Charles McGuigan (South Dakota), Mateo Muñoz (California), Thomas Shedden (Arizona), Clay Smith (Idaho), Steven Strack (Idaho), Stephanie Striffler (Oregon), and Fronda Woods (Washington). Additionally, the chapters were reviewed by members of an editorial committee that included Charles Carvell, Clay Smith, Steven Strack, and Thomas Gede. Special thanks also go to my colleagues from Idaho—former Idaho Attorney General Alan G. Lance and current Attorney General Lawrence Wasden—for their untiring efforts to ensure the success of the Deskbook and for contributing the valuable time and resources of their office, including the principal editor, Clay Smith. This project, finally, could not have been completed without the extraordinarily able assistance provided by Janene Hocking in the Idaho Attorney General’s Office; Janene meticulously (and expertly) reviewed and prepared the manuscript for submission to the publisher under unforgiving time limits. Hardy Myers Oregon Attorney General Chair, Editorial Committee

Foreword to Second Edition

As former North Dakota Attorney General Nicholas Spaeth wrote in the Foreword to the First Edition of American Indian Law Deskbook, the objective of the Conference of Western Attorneys General has been to present a comprehensive and objective treatise in a difficult and controversial area. Since its publication in 1993, CWAG has issued annual supplements to ensure that the Deskbook remained current. This edition incorporates much of the annual supplement material but also restructures certain chapters to assist readers in identifying issues and locating relevant authority quickly and authoritatively. Among the changes are a significantly expanded discussion of tribal sover­eign immunity in Chapter 7 and reorganization of Chapters 9 and 10. The pre­cise scope of tribal common law immunity from suit is assuming increasing importance as tribes expand their governmental activities and commercial relationships. Hunting and fishing issues continue to be a fertile source of con­ troversy, but the variety of treaty, statutory, and factual contexts in which those controversies arise make any effort to synthesize and draw common elements from decisions an especially daunting task. Environmental regulation within Indian country has become entangled with jurisdictional questions as a result of congressional efforts to involve tribes in the regulatory process. The basic nature of those questions was visible at the time of the First Edition’s publi­ cation, but subsequent developments have crystallized, if not yet answered, them. The revised Chapter 10 both updates legal developments in this critical area and attempts to provide a better framework for understanding these developments across a broad range of statutory schemes with similar, yet not identical, approaches to accommodating the interests of states and tribes in the regulation of shared resources. In those chapters that have not undergone major revision, we refined anal­ ysis in the light of five years of additional case law. So, for example, an issue not discussed in the First Edition—the states’ Eleventh Amendment immu­nity with respect to claims by tribes alleging failure to negotiate in good faith under the Indian Gaming Regulatory Act—became the focal point of much liti­gation under that statute. In another area governed by federal statute, child custody proceedings involving Indian children, no major doctrinal changes occurred, xxv

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Foreword to the Second Edition

but courts continue to issue decisions that reflect differing interpretations of the Indian Child Welfare Act’s requirements. Perhaps the most sensitive component of Indian law is the issue of tribal and state civil jurisdiction. Much of the litigation with respect to tribal author­ity since the First Edition focused on adjudicatory jurisdiction, culminating in the Supreme Court’s 1997 opinion in Strate v. A-1 Contractors. While Strate establishes that a common standard is to be used in determining tribal civil regulatory and adjudicatory jurisdiction, it is clear parties will continue to disagree over the proper application of the standard. Similarly, despite several Supreme Court decisions addressing state authority to tax Indian country transactions during the last five years, litigation in that area remains intense. Indian law does not lend itself to ready prognostication. We therefore generally avoid predicting outcomes. Nonetheless, we do suggest in some instances possible or preferred results where decisional authority is either divided or, in our view, questionable. We recognize that our role in represent­ ing states may influence our policy perspectives, but we attempt to present relevant authority straightforwardly. It must be emphasized, as it was in Attor­ney General Spaeth’s Foreword to the First Edition, that the discussion and analysis in the Deskbook do not represent the official viewpoint of any indi­vidual CWAG member state. This edition, like the first, was a collaborative effort involving work by Indian law practitioners within virtually every CWAG state. Those responsible for drafting chapters included Patrick Irvine (Arizona), Thomas Gede (California), Winifred Smith (California), Julie Wrend (Colorado), Steven Stack (Idaho), Katherine Kelly (Idaho), Sarah Bond (Montana), Harley Harris (Montana), Clay Smith (Montana), Fred Nathan (New Mexico), John Bartlett (Nevada), Wayne Howle (Nevada), Brooke Nielsen (Nevada), Charles Carvell (North Dakota), Elizabeth Harchenko (Oregon), John Guhin (South Dakota), Charles McGuigan (South Dakota), Philip Pugsley (Utah), Robert Costello (Washington), John Hough (Washington), Fronda Woods (Washington), Michael Hubbard (Wyoming), and Charles Solomon (Wyoming). All chapter drafts additionally were reviewed by members of an editorial committee chaired by me and composed of Julie Wrend (Colorado), Clive Strong (Idaho), Clay Smith (Montana), Lawrence Long (South Dakota), and Nelson Kempsky, CWAG’s Executive Director. Last but not least, the project could not have been completed on schedule without the unstinting efforts of Connie Maslowski, my executive secretary, and Myrna Rudio, a legal secretary in my office. They worked beyond the call of duty under intense deadline pressures to finalize the manuscript. Joseph P. Mazurek Montana Attorney General Chair, Editorial Committee

Foreword to First Edition

The United States’ romance with the West and its historical development has been chronicled in countless books and films. A central theme is often the relationship between white settlers and Indians and Indian tribes. This part of the romance is much more than pure nostalgia. It involves a wide variety of emotions that white culture has had toward Indians, each of which has been more or less prevalent at different times in our nation’s history. These include admiration of the “noble savage,” fear and hatred of the “marauding warriors,” paternalism, tolerance, and respect. The course of U.S. public policy on Indians and Indian tribes has been shaped by these conflicting emotions, shifting dramatically several times from the polar positions of total assimilation of Indians and tribes to geographic segregation and sovereignty for them. As a result, the situation has evolved into something between assimilation and segregation. Indians are citizens of the United States and individual states but, for the most part, are also members of tribes. Most of the tribes have a land base that has been set aside for them and enjoy at least a limited form of sovereignty. The shifts in U.S. Indian policy have created a complicated legal structure governing the relationships among Indians, tribes, non-Indians, and the federal and state governments. This has made it difficult for many lawyers to find clear answers to common legal problems that arise from these relationships. Exacerbating the problem has been a relatively small amount of legal scholarship in the area of Indian law. While numerous books, treatises, and articles have been published, the attention given to this area of law has been small compared to other areas. And much of what has been published has been polemical rather than pure scholarship, not surprising given the emotion this topic often arouses. The states, particularly those in the West, where most of the tribes and reservations are located encounter issues of Indian law with far more frequency than most entities. Indian law has become a major part of the business of the offices of the western attorneys general. Attorneys general, as the chief lawyers in their respective states, have a responsibility to handle legal disputes that arise from relationships with xxvii

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Foreword to the First Edition

Indians and tribes within their states. But the jurisdiction and responsibility of attorneys general go beyond merely dealing with legal problems after they arise. They include active involvement in shaping public policy to harmonize relationships and eliminate conflicts. The western attorneys general have long felt that they have been hampered in this effort by the absence of a comprehensive and objective treatise on Indian law. For that reason this project was commenced. While every effort has been made to address at least generally the whole spectrum of Indian law issues, the special status of Indians or Natives in Alaska, Hawaii, and Oklahoma has received only brief treatment. We concluded that such treatment was appropriate because our primary purpose is to provide a basic structure for analyzing Indian law issues that have the most direct impact on federal, state, and tribal relationships. Where unique statutes or case law principles affect Alaska, Hawaii, or Oklahoma, we attempt to note those differences. This book is a collaborative effort of attorneys from the western states’ attorney general offices who are faced daily with jurisdictional questions involving federal, state, and tribal relations. The discussions and analyses found herein do not represent the official viewpoint of any individual member state of the Conference of Western Attorneys General. The list of those who have contributed to this treatise is lengthy. Among many people who made major contributions, a few are prominent. Julie Wrend, Assistant Attorney General (Colorado), put in countless hours editing the text for continuity and smoothness. Clay Smith, Solicitor (Montana), tirelessly wrote section after section as the need arose, demonstrating masterful knowledge of the entire subject area. Clive Strong, Deputy Attorney General (Idaho), and Lois Witte, former Deputy Attorney General (Colorado), were significant contributors as chairpersons of the Western Attorneys General Litigation Action Committee as this process began. The principal authors are: Clay Smith, Solicitor (Montana) Paula Smith, Assistant Attorney General (Utah) Lawrence Coniff, Assistant Attorney General, Senior Counsel (Washington) Charles Carvell, Assistant Attorney General (North Dakota) Harley Harris, Assistant Attorney General (Montana) John Bartlett, Deputy Attorney General (Nevada) Julie Wrend, Assistant Attorney General (Colorado)

Those who served on the editorial committee are: Nicholas J. Spaeth, Attorney General (North Dakota) Clay Smith, Solicitor (Montana) Steve Strack, Deputy Attorney General (Idaho) Lawrence Coniff, Assistant Attorney General, Senior Counsel (Washington) Jim Johnson, Senior Assistant Attorney General (Washington) Paula Smith, Assistant Attorney General (Utah) Julie Wrend, Assistant Attorney General (Colorado)

Foreword to the First Edition

xxix

Special recognition must also be given to the Colorado Attorney General’s Office for its strong support and hosting of the project. Attorney General Gale Norton and former Attorney General Duane Woodward of Colorado were extraordinarily generous in supplying the resources of their office for the project. Nicholas J. Spaeth North Dakota Attorney General Chair, CWAG 1990–1991 Chair, Editorial Committee

American Indian Law Deskbook Fourth Edition Conference of Western Attorneys General

Federal Indian Law Policy: Origins and Legal Development



Chapter 1 Federal Indian Law Policy: Origins and Legal Development

Article I, section 8, clause 3 of the United States Constitution empowers Con‑ gress “[t]o regulate commerce . . . with the Indian tribes.” The Indian Com‑ merce Clause’s purpose was, and its effect has been, to make “Indian relations . . . the exclusive province of federal law.” For much of the first century of the nation’s history, this lawmaking power was augmented by exercise of presi‑ dential treaty‑making authority under Article II, section 2. “Indian law” has thus been said to “draw[] principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress.” Indian law analysis most appropriately begins with a discussion of the unique legal status of tribes and their members within the American constitutional framework and the evolving approaches used by the judiciary and federal government to recognize and accommodate that status. I. JUDICIAL FOUNDATIONS OF FEDERAL INDIAN POLICY A. The Marshall Trilogy In Cherokee Nation v. Georgia, Chief Justice John Marshall articulated a view of Indian tribes’ legal status that has largely governed the development of modern Indian law. The issue there was whether the Cherokee Nation was a “foreign state” within the meaning of Article III, section 2 of the Constitu‑ tion, so as to create diversity jurisdiction over a claim against the State of Georgia that certain of its laws served “directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the na‑ tion which have been assured to them by the United States in solemn treaties repeatedly made and still in force.” Refusing to reach the merits of the tribe’s application, Justice Marshall held the Cherokee Nation was not a foreign state

Oneida County v. Oneida Indian Nation, 470 U.S. 226, 234 (1985).



Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978).



30 U.S. (5 Pet.) 1 (1831).



Id. at 15.







American Indian Law Deskbook, Fourth Edition

for jurisdictional purposes. In reaching that conclusion, he first observed that “[t]he condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence”­—a “relation . . . marked by peculiar and cardinal distinctions which exist nowhere else.” Chief Justice Marshall then stated: Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the ac‑ knowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be de‑ nominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect at point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory, and an act of hostility.

The “anomalous” position of tribes and their members within the federal‑state governmental structure established under the Constitution distinguished them from other racial groups and has led to markedly complex legal and policy questions.

 See art. III, § 2, cl. 1. Although the issue raised by the tribe—whether state law was preempted from application to its lands—presented a question of federal law, Congress did not extend the subject matter jurisdiction of federal courts to such questions until 1875. Act of Mar. 3, 1875, § 1, 18 Stat. 470.

30 U.S. (5 Pet.) at 16.



Id. at 17–18. One commentator thus has attributed the source of the wardship status of Indians, and the attendant federal responsibility, to the bifurcated nature of the rights to aboriginal tribal lands. Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of the Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21, 30–31 (2000) (“Indian tribal sovereignty is subservient to United States sovereignty, such that Indians hold their land at the sufferance of the greater sovereign. This sufferance was, in turn, defined in terms of a ‘trust,’ where the federal government ‘trustee’ holds legal title to all Indian lands for the benefit and use of the Indian ‘beneficiaries’ ”). 

United States v. Kagama, 118 U.S. 375, 381 (1886); accord Roff v. Burney, 168 U.S. 218, 221 (1897).



See generally Gloria Valencia-Weber, Racial Equality: Old and New Strains and American Indians, 80 Notre Dame L. Rev. 333, 341, 374 (2004) (discussing “the unique status of American Indians” including the fact that “American Indians differ from other minorities in having collective political rights” and that “it is not possible for individually-based rights of tribal members to adequately protect and maintain the critical right of tribal sovereignty and self-determination”); Sarah Krakoff, Undoing Indian Law One Case at a Time: Judicial Minimalism and Tribal Sovereignty, 50 Am. U. L. Rev. 1177, 1195 (2002) (“[d]espite its acceptance of racist ideology concerning the colonization of the continent, the Marshall trilogy is credited by founda‑ tionalists and pragmatists as the basis for recognizing Indian tribes as pre-constitutional sovereigns, not merely associations of people linked by culture or race”); David E. Wilkins, A Constitutional Conundrum: 

Federal Indian Law Policy: Origins and Legal Development



The “unquestionable, and, heretofore, unquestioned right [of tribes] to the lands they occupy” referred to in Cherokee Nation had been explored eight years earlier in Johnson v. McIntosh,10 where the Supreme Court, again speaking through Chief Justice Marshall, held invalid a conveyance to private individu‑ als by tribal chiefs of lands occupied by their tribes. Relying on the medieval doctrine of discovery, he reasoned that, though the tribes were “the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion[,] . . . their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclu‑ sive title to those that made it.”11 The right to occupy therefore was deemed usufructuary in nature and vested no ownership interest in a tribe that it could alienate.12 A tribe’s aboriginal, or “Indian,” title could instead be extinguished only by the United States through conquest or purchase.13

The Resilience of Tribal Sovereignty During American Nationalism and Expansion: 1810–1871, 25 Okla. City U. L. Rev. 87, 90 (2000) (contrasting Indians with African Americans because “tribes generally do not con‑ sider themselves an integral part of the pluralistic mosaic of the American polity” and instead “perceive of themselves not only as pre-constitutional polities, but as continuing extra-constitutional entities”); Rebecca Tsosie, Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights, 47 U.C.L.A. L. Rev. 1615, 1634 (2000) (contrasting the Treaty of Guadalupe Hidalgo, which “contemplated the incorporation of the Mexi‑ can citizens who continued to live on the ceded lands into the citizenry of the United States,” with Indian treaties, which “contemplated the measured separatism of the Indian nations on discrete reservation land bases, where they would continue to exercise political sovereignty under the guardianship of the United States”); Blake A. Watson, The Thrust and Parry of Federal Indian Law, 23 U. Dayton L. Rev. 437, 473 (1998) (“[i]t is the claim of tribal sovereignty—a controversial and muddled blend of territorial authority and the right of self-government—that distinguishes Indians from other ethnic groups in the United States”). 21 U.S. (8 Wheat.) 543 (1823).

10

Id. at 574; see generally Felix S. Cohen, The Spanish Origins of Indian Rights in the Law of the United States, 31 Geo. L.J. 1 (1942) (discussing the international law foundation for the discovery doctrine and for other common law aspects of American Indian law). The United States’ accession to authority over Indian lands within the boundaries of the original 13 states was from the states themselves, which derived their titles from Great Britain. Johnson, 21 U.S. (8 Wheat.) at 584–85; see also Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 147 (1810) (Johnson, J., dissenting) (“What, then, practically, is the interest of the states in the soil of the Indians within their boundaries? Unaffected by particular treaties, it is nothing more than what was assumed at the first settlement of the country, to wit, a right of conquest or of purchase, exclusively of all competitors within certain defined limits”). 11

12 See, e.g., Oneida Indian Nation v. Oneida County, 414 U.S. 661, 667 (1974); Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 339 (1945); see generally Eric Kades, The Dark Side of Efficiency: Johnson v. M’Intosh and the Expropriation of American Indian Lands, 148 U. Pa. L. Rev. 1065, 1096 (2000) (contending that Johnson left unclear “the precise contours of the Indian title of occupancy” and, most important, “whether [tribes] could refuse to sell” such title). 13 Johnson, 21 U.S. (8 Wheat.) at 587; see also Fletcher, 10 U.S. (6 Cranch) at 141–43 (concluding that Georgia could grant fee title to land occupied by Indians where occupation was intended to be temporary under originally authorizing British proclamation); see generally Richard A. Monett, Governing Private Property in Indian Country: The Double-Edged Sword of the Trust Relationship and Trust Responsibility Arising out of Early Supreme Court Opinions and the General Allotment Act, 25 N.M. L. Rev. 35, 49 (1995) (arguing that importance of Fletcher in doctrinal development of Indian law is overlooked and that Fletcher raised, but did not answer, questions concerning the meaning and application of the discovery doctrine with respect to tribal lands).



American Indian Law Deskbook, Fourth Edition

Application of the doctrine of discovery in Johnson has been the object of substantial modern debate, but it provided, when read together with Cherokee Nation, a straightforward conceptual approach to adjusting the boundaries of federal, state, and tribal authority in matters wholly unrelated to land trans‑ fers.14 The first use of this approach occurred a year after Cherokee Nation in Worcester v. Georgia.15 Worcester arose from the state court conviction of a non‑Indian minister for residing within the Cherokee Nation without first procuring a state license or taking an oath to defend Georgia’s laws and consti‑ tution.16 The minister challenged the state statute upon which his conviction was predicated. Following a lengthy analysis of the doctrine of discovery,17 the pre‑revolution English practice concerning land grants and dealings with

14 Alex Tallchief Skibine, Chief Justice John Marshall and the Doctrine of Discovery: Friend or Foe to the Indians?, 42 Tulsa L. Rev. 125, 137 (2006) (discussing various commentators’ views of Chief Justice Marshall’s use of the discovery doctrine in the course of reviewing Robert J. Miller’s book, Native America, Discovered and Conquered (2006), and observing that the doctrine effectively “allowed the United States to claim ‘con‑ quest’ before defeating the tribes”); Robert J. Miller, The Doctrine of Discovery in American Indian Law, 42 Idaho L. Rev. 1, 63 (2005) (tracing the development of the discovery doctrine, and arguing that the holding in Johnson “was not a surprise after the long history of the colonial, state, and federal actions concerning Discovery”); Earl M. Maltz, Brown and Tee-Hit-Ton, 29 Am. Indian L. Rev. 75 (2004–2005) (arguing that Johnson did not conclude “the legal rights of Native Americans had been totally extinguished by the doctrine of discovery” as he viewed the holding in Tee-Hit-Ton Indians v. United States); Watson, supra note 9, at 444–47 (discussing origins of discovery doctrine and academic response to its application in Indian country); David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court Indian Law, 84 Cal. L. Rev. 1573, 1581 (1996) (refusing to join “in the well developed debate over the legitimacy of these origi‑ nal principles” since “[i]t is too late in the day to revisit two centuries of consistently and firmly reiterated precedent or to expect a basic reformation of the historical legal relationship of the United States to Indian tribes”). Various commentators have criticized Johnson harshly. See, e.g., Blake A. Watson, John Marshall and Indian Land Rights: A Historical Rejoinder to the Claim of “Universal Recognition” of the Doctrine of Discovery, 36 Seton Hall L. Rev. 481, 486 (2006) (contending that Johnson was not only “doctrinally suspect” but also “historically inaccurate,” and discussing previous instances where transactional conveyances of aboriginal title to non-sovereigns were recognized); Joshua L. Siefert, Comment, The Myth of Johnson v. M’Intosh, 52 U.C.L.A. L. Rev. 289, 331–32 (2004) (reasoning that in Johnson “Marshall concocted a nation’s narrative, with subtleties of tone that questioned the justice of the past while nodding toward the inevitability of it all”); Krakoff, supra note 9, at 1194–95 (“[t]o arrive at this conclusion [that the federal government had the right to sell Indian lands], Marshall had to employ the harsh Anglo version of the discovery doctrine, thereby implicitly sanctioning the thesis that Indian tribes were ‘conquered’ merely by the arrival of Christians on their continent”); Kades, supra note 12, at 1071, 1109 (characterizing the views of various commentators on Johnson and “the process of expropriation” as inconsistent “with even the most basic facts in the legal and historical record,” and arguing that Johnson “is best explained as one element of a calculated, rational, unemotional effort to obtain Indian lands at the least cost”); and Vine Deloria, Jr., and David E. Wilkins, Tribes, Treaties and Constitutional Tribulations 83 (1999) (criticizing Johnson as “incoheren[t]” because “under Marshall’s reasoning th[e] deed had to be valid” in view of the fact that “[t]he Indians had transferred their land at public auction under the supervision of the British officers prior to the Revolution”); but see Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L.J. 113, 138 (2002) (contend‑ ing that Johnson ultimately “conceded not only the separate sovereign status of tribes under their own law, it also recognized that the tribes were in no way bound by federal Indian law”—i.e., “[s]ince they had the power to make and enforce their own laws in their own forums, they could sell lands to individuals not authorized by the United States to purchase such lands, but the purchaser’s only recourse for protection was to tribal forums under tribal law”).

31 U.S. (6 Pet.) 515 (1832).

15

Id. at 536–41.

16

Id. at 542–44.

17

Federal Indian Law Policy: Origins and Legal Development



tribes,18 the language of various post‑revolution treaties between the United States and the Cherokee Nation,19 and the commitment under both the Ar‑ ticles of Confederation and the Constitution of Indian Affairs to the national government,20 Chief Justice Marshall found the Georgia law inapplicable by operation of the Supremacy Clause. From that analysis he concluded that the Cherokee Nation was “a distinct community, occupying its own territory . . . in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of congress” and that “[t]he whole intercourse between the United States and this nation . . . is vested in the government of the United States.”21 Three bedrock principles underlie Worcester and the earlier decisions: (1) By virtue of aboriginal political and territorial status, Indian tribes possess certain incidents of preexisting sovereignty; (2) that sovereignty is subject to diminution or elimination by the United States but not by the individual states; and (3) the tribes’ limited inherent sovereignty22 and their correspond‑ ing dependency upon the United States for protection impose on the latter a trust responsibility.23 Although subsequent demographic and statutory changes

Id. at 544–49.

18

Id. at 549–57.

19

Id. at 558–59.

20

Id. at 561; see generally Alex Tallchief Skibine, Redefining the Status of Indian Tribes Within “Our Federalism”: Beyond the Dependency Paradigm, 38 Conn. L. Rev. 667, 671 (2006) (contending that Cherokee Nation’s characterization of the relationship between the national government and tribes was “very similar to the ‘protectorate’ model, a system first invented by England in 1815” under which “ ‘a European state would acquire complete control over the external affairs of the non-European state[] which was prohibited from communicating with any other European state without the permission of its protector’ ”); Gloria Valencia-­ Weber, Deviations from Constitutional Principles and the Crafting of Judicial Smallpox Blankets, 5 U. Pa. J. Const. L. 405 (2003) (responding to contention that states possess inherent jurisdiction within Indian reservations with particular focus on the Articles of Confederation period). 21

22 The original view of inherent sovereignty was formulated by Justice Johnson’s concurring opinion in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 147 (1810), where he stated that “[a]ll the restrictions upon the right of soil in the Indians, amount only to an exclusion of all competitors from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves.” Nonetheless, modern commentators have disputed whether such sovereignty, as Justice Johnson suggested, is limited to the right to exclude any internal governance or whether it extends broadly to all persons within the particular territory set aside for a tribe in the absence of congressional divestment. Compare L. Scott Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 Colum. L. Rev. 809, 817–18 (1996) (concluding that “[i]mplicit in the Marshall trilogy is that [tribal] sovereignty exists over territory” but that decisions cannot be read to support general authority of tribes over persons other than members), with Clinton, supra note 14, at 236 (arguing that “implicit in all creation of Indian country, at least until recently, was the assumption created by the baseline understanding of the tribal federal relationship—that Indian reservations or other areas of Indian country were set aside for exclusive governance by the Indian tribes governing the areas”). The scope of inherent tribal authority has become a focal point of modern Indian law analysis and is reviewed both generally and with reference to particular contexts in other chapters. 23 Commentators recognize the trilogy’s significance to the overall development of the federal common law aspects of Indian law but have varying views on the precise formulation of its doctrinal components. See, e.g., Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy, 82 N.D. L. Rev. 627, 648–49 (2006) (“The origins of the trust relationship and plenary power are born out of the argumentation between members



American Indian Law Deskbook, Fourth Edition

have introduced a complexity into demarcating lines of state, federal, and tribal power that could not have been anticipated by Chief Justice Marshall,24 those principles still substantially shape federal common law decision-making in many areas of Indian law.25 B. Federal Common Law Application of Marshall Trilogy Principles Since the Marshall trilogy, federal courts have continued to play a pivotal role in defining the relationships between or among the federal government, states, Indian tribes, Indians, and non-Indians. They have carried out that func‑ tion not only by construing and applying treaties and federal statutes but also by formulating substantive federal common law derived from the trilogy’s core principles. The courts’ decision-making often reflects the tension found in the trilogy itself between the sovereign status of tribes existing as of the time of Euro-American settlement and the “actual state of things”26—i.e., the imposition

of the Marshall Court over the meaning of the word ‘protection’ in Indian treaties. The discussion of the meaning of the word ‘protection’ led to the creation of the canon of construing Indian treaty language. Tribal immunity from state jurisdiction and authority derived from the underlying states’ rights questions resolved by the Marshall Court in the Trilogy, in part, by designating Indian tribes as having a political status unlike states or foreign nations”); Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 443 (2005) (arguing that nineteenth-century United States Supreme Court decisions “created a unique legal category of ‘domestic dependent nation,’ a government outside the constitutional structure that retained elements of preexisting, aboriginal sovereignty” and was “completely subordinated to Congress” but as to which “[s]tates could not intrude”); Miller, supra note 14, at 109 (contending that plenary power, trust obligation, and “domestic dependent nation” principles are manifestations of the discovery doctrine; “the Discovery Doctrine is the well-spring of the idea of Diminished Sovereignty because tribal sovereign and real property rights were assumed to have been limited automatically and immediately by Discovery when Europeans or Americans first encountered native territories”); see also Sarah Krakoff, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent Nation, 83 Or. L. Rev. 1109, 1118 (2004) (“Justice Marshall held [in the trilogy] that Indian tribes are subject to the greater power of the federal government with respect to the disposition of property, that Indian tribes do not have the status of foreign nations, and that Indian tribes nonetheless retain their pre-constitutional powers of self-governance over their members and their territory, subject only to the superior power of the federal government, and not to that of states”). 24 See McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 171 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973). 25 See generally Miller, supra note 14, at 107 (federal government’s trust obligation “is based on its nearly unchecked and plenary power over Indian tribes”); Joshua Fershee, From Self-Determination to Self-Domination: Native Americans, Western Culture, and the Promise of Constitutional-Based Reform, 39 Val. U. L. Rev. 1, 6 (2004) (contending that plenary power, “regardless of what policy towards Native Americans is in vogue, . . . necessitates the development of solutions from within the framework of the traditional system and possibly changes in the Constitution itself[,]” and discussing several other countries’ experience in crafting constitutional or legislative responses with respect to, inter alia, internal aboriginal groups); contra Matthew L.M. Fletcher, The Supreme Court’s Indian Problem, 59 Hastings L.J. 579, 581 (2008) (reviewing Indian law decisions issued since 1986, and arguing generally that “[t]he Court makes decisions in the Indian law field not through reliance upon a rule of law or even through much reliance on precedent, but instead with a reliance upon its view of the way things ‘ought to be’ ”). 26 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832); see Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 591 (1823) (“[h]owever extravagant the pretension of converting the discovery of an uninhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained, if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned”).

Federal Indian Law Policy: Origins and Legal Development



of a new and ultimately dominant government resulting from settlement over territories occupied by tribes. That tension is evidenced most plainly by judi‑ cial attempts, on one hand, to recognize the unique sovereign status of tribes and, on the other, to acknowledge Congress’s pervasive, or “plenary,” power over them. The tension is additionally reflected in the courts’ attempt to buf‑ fer such congressional power by imposing a trust obligation on the Executive Branch and by adopting special Indian law canons of construction. 1. Tribes’ extraconstitutional sovereign status Cherokee Nation unequivocally recognized Indian tribes as juristic entities separate from either the federal government or the several states.27 Perhaps most significant is the fact that, as extra‑constitutional political bodies, Indian tribes are not subject to the constraints imposed upon the federal government and the states by the Bill of Rights,28 and they maintain broad, largely unre‑ viewable powers over internal tribal matters.29 They further possess common law immunity from suit by parties other than the federal government, absent

27 See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 191–92 (1989) (tribes are not “states” within the scope of the Interstate Commerce Clause); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980) (“[t]ribal reservations are not States”); Arizona v. California, 373 U.S. 546, 597 (1963) (equitable apportionment principles, which apply to divisions of water between states, have no relevance to determin‑ ing a reservation’s federal reserved water right, because a tribe is not a state); Cherokee Nation v. S. Kan. Ry., 135 U.S. 641, 653 (1890) (“[t]he proposition that the Cherokee Nation is sovereign in the sense that the United States is sovereign, or in the sense that the several states are sovereign, and that that nation alone can exercise the power of eminent domain within its limits, finds no support in the numerous treaties with the Cherokee Indians, or in the decisions of this court, or in the acts of congress defining the relations of that people with the United States”); United States v. Kagama, 118 U.S. 375, 381–82 (1886) (“[Indians] were, and always have been, regarded as having a semi‑independent position when they preserved their tribal relations; not as States, not as nations, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided”); see also Ex parte Morgan, 20 F. 298, 307 (W.D. Ark. 1883) (refusing to deem the Chero‑ kee Nation as a “state or territory” for extradition purposes under federal statutes because “[t]hese Indian tribes have always been considered by every department of the government—legislative, executive, and judicial—as distinct, independent political communities, differing in so many essential particulars from states and territories in the American Union as not to come under the designation of either”); see generally Richard A. Monett, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. Tol. L. Rev. 617, 619 (1994) (discussing and com‑ paring “the Union/state and Union/tribe relationships”). 28 See, e.g., Duro v. Reina, 495 U.S. 676, 693 (1990); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978); Talton v. Mayes, 163 U.S. 376, 384 (1896). The Indian Civil Rights Act, Pub. L. No. 90‑284, §§ 201–701, 82 Stat. 73, 77–81 (1968) (codified as amended at 25 U.S.C. § 1153 and 25 U.S.C. §§ 1301–1303, 1321–1326, 1331, 1341), has imposed upon tribes certain of the restrictions on state action contained in the Bill of Rights, but relief under that statute is generally limited to habeas corpus proceedings. Santa Clara Pueblo, 436 U.S. at 60–62. The Indian Civil Rights Act is discussed in Chapter 7, part II. 29 See, e.g., Santa Clara Pueblo, 436 U.S. at 52–53 (determination of tribal membership criteria); United States v. Wheeler, 435 U.S. 313 (1978) (tribal prosecution of member for on‑reservation crime); United States v. Quiver, 241 U.S. 602, 605–06 (1916) (adultery prosecution under federal law barred by Indian‑against‑Indian exception in predecessor statute to 18 U.S.C. § 1152, because “the relations of the Indians, among them‑ selves—the conduct of one toward the other—is to be controlled by the customs and laws of the tribe, save when Congress expressly or clearly directs otherwise”); Jones v. Meehan, 175 U.S. 1, 31–32 (1899) (descent and distribution of tribal member property); Roff v. Burney, 168 U.S. 218, 222 (1897) (tribe possessed power to admit non‑Indian to membership by adoption and to withdraw such membership).



American Indian Law Deskbook, Fourth Edition

express congressional abrogation or tribal waiver.30 The Supreme Court has deemed that immunity applicable to both on- and off-reservation matters, in‑ cluding purely commercial activities.31 The stated rationale for this immunity invokes the tribes’ status as political entities antedating the Constitution’s adoption and protection of their governmental autonomy or assets.32 2. Plenary power doctrine As reflected by the authority to abrogate tribal immunity from suit, how‑ ever, Congress possesses comprehensive power with respect to Indian affairs. The Supreme Court thus stated in United States v. Wheeler,33 “[t]he sovereignty that the Indian tribes retain is of a unique and limited character[] [and] exists only at the sufferance of Congress and is subject to complete defeasance.”34 Congressional power, as the Court held in the seminal Lone Wolf v. Hitchcock,35 also extends to treaty or statutorily created interests: The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipula‑ tions of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.36

30 Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998); Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991) (enforcement of state tax statutes); Santa Clara Pueblo, 436 U.S. at 58–59 (claim under the Indian Civil Rights Act relating to membership denial); Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 172–73 (1977) (claim by state to regulate on‑reservation exercise of treaty fishing rights); United States v. U.S. Fid. & Guar. Corp., 309 U.S. 506, 512–13 (1940) (counterclaim for amounts allegedly owed by tribes in connection with mineral lease). Although the Supreme Court in Santa Clara Pueblo, 436 U.S. at 58, referred to tribes as “long . . . recognized as possessing the common‑law immu‑ nity from suit traditionally enjoyed by sovereign powers,” such immunity was first explicitly recognized by the Supreme Court in the 1940 United States Fidelity decision. See generally William V. Vetter, Doing Business with Indians and the Three “S”es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction, 36 Ariz. L. Rev. 169, 172–85 (1994); Thomas P. McLish, Note, Tribal Sovereign Immunity: Searching for Sensible Limits, 88 Colum. L. Rev. 173 (1988); Note, In Defense of Tribal Sovereignty Immunity, 95 Harv. L. Rev. 1058 (1982). A detailed discussion of tribal immunity from suit appears in Chapter 7, part I.

Mfg. Techs., 523 U.S. at 760.

31

Id. at 757–58.

32

435 U.S. 313 (1978).

33

Id. at 323; see Bd. of County Comm’rs v. Seber, 318 U.S. 705, 718 (1943) (“[I]t is immaterial that re‑ spondents are citizens because it is settled that the grant of citizenship to the Indians is not inconsistent with their status as wards whose property is subject to the plenary control of the federal government. . . . It rests with Congress to determine when the guardianship relation shall cease”). 34

187 U.S. 553 (1903).

35

Id. at 566.

36

Federal Indian Law Policy: Origins and Legal Development



Lone Wolf further observed broadly that congressional power “has always been deemed a political one, not subject to be controlled by the judicial department of the government.”37 The suggestion that disputes concerning the exercise of congressional power over tribal affairs are nonjusticiable has not survived,38 but no question exists that “Congress’ authority over Indian matters is extraor‑ dinarily broad, and the role of courts in adjusting relations between and among tribes and their members correspondingly restrained.”39 The congressional power principally derives from the Indian Commerce Clause.40 Congressional

Id. at 565.

37

Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977).

38

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71 (1978). It is unsurprising in light of its breadth that, like the discovery doctrine, the plenary power doctrine has been criticized harshly by some commentators. See, e.g., Deloria, Jr. & Wilkins, supra note 14, at 158–59 (arguing that “[t]he superior power of Congress . . . will continue to be the primary and irresponsible factor in the field of Indian affairs” and that “[t]he solution to this problem . . . would be to return tribes to their political status as it existed prior to the prohibition against treaty making in 1871”—i.e., “to secure Indian consent before proceeding with legislation that has an impact on tribal rights”). 39

40 See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) (“the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs”); Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 501 (1979) (“[i]t is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereignty of the Indian tribes”). The Supreme Court identified in United States v. Lara, 541 U.S. 193 (2004), two other potential sources of congressional power: the Treaty Clause, U.S. Const. Art. II, § 2, cl. 2, and “the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government, namely powers that this Court has described as ‘necessary concomitants of nationality.’ ” 541 U.S. at 201. Lara, however, did not overrule the Court’s previous statements placing the Indian Commerce Clause at the center of the plenary power doctrine but instead reaffirmed them. Id. at 200–01. Commentators have offered varying views on the basis for the doctrine. Matthew L.M. Fletcher, Preconstitutional Federal Power, 82 Tul. L. Rev. 509, 528 (2007) (reasoning that dictum in the Lara majority opinion concerning “ ‘precon‑ stitutional powers necessarily inherent in any Federal Government’ . . . appears to be the second time in America’s constitutional history that the Supreme Court has asserted that the federal government—in this case Congress—has authority that existed prior to the ratification of the Articles of Confederation and the Constitution and, it would appear, survived the ratification of both”); Saikrishna Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1109–10 (2004) (discussing five textual sources for the plenary power doctrine—the Commerce Clause, the Territory/Property Clause, the treaty power, the war power and the executive power—and several nontextual sources, and concluding that none validates plenary power over Indians as a group; rather, “[i]f we are to take seriously the notion that the federal government is one of enumerated powers, we must consider assertions of federal power over Indian nations on a nation-by-nation basis, taking into account a tribe’s treaties, land tenure, and location”); Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1, 25–74 (2002) (analyzing series of Supreme Court nineteenth-century decisions subsequent to the Marshall trilogy, and arguing that the Court eschewed any constitutionally enumerated basis for regulating Indian affairs in favor of reliance on inherent power arising from tribes’ dependent sta‑ tus); Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1164 (1995) (discussing historical context within which the Indian Commerce Clause developed and arguing that it “initially was used by the federal courts primarily to limit state authority, rather than to validate assertions of national plenary power”).

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American Indian Law Deskbook, Fourth Edition

authority, most important, is subject to constraint under the Just Compensa‑ tion41 and Due Process42 Clauses of the Fifth Amendment. Equally important, Worcester makes clear that exercise of the Indian Com‑ merce Clause power may serve to limit not only the reach of otherwise existing tribal authority but also, by operation of the Supremacy Clause, the reach of state authority.43 The Supreme Court accordingly remarked in Seminole Tribe v. Florida44 that “[i]f anything, the Indian Commerce Clause accomplishes a

41 Compare Babbitt v. Youpee, 519 U.S. 234 (1997) (statute that escheated to a tribe certain fractional interests of its members or others in reservation trust lands deemed an uncompensated takings); Hodel v. Irving, 481 U.S. 704 (1987) (same); and Shoshone Tribe v. United States, 299 U.S. 476 (1937) (tribe entitled to compensation when another tribe’s members were relocated on its treaty‑secured lands), with United States v. Cherokee Nation, 480 U.S. 700, 707 (1987) (“[t]hese principles [preventing the United States from depriving a tribe of trust lands without compensation] . . . do little to aid respondent’s cause, for they do not create property rights where none would otherwise exist but rather presuppose that the United States has interfered with existing tribal property interests”); and NW. Bands of Shoshone Indians v. United States, 324 U.S. 335, 354 (1945) (no recovery was available to tribe under special jurisdictional act providing for compensation as to any claims arising under treaty where it did not recognize aboriginal title as to lands opened for homesteading); see also United States v. Sioux Nation, 448 U.S. 371, 408–09 (1980) (whether Con‑ gress has exercised its authority as trustee, where no compensation is required, rather than its sovereign power of eminent domain, where compensation is required, turns on whether it has made “a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money”); see generally Carole E. Goldberg, Individual Rights and Tribal Revitalization, 35 Ariz. St. L.J. 889, 932 (2003) (arguing for a “relaxed scrutiny” standard: “federal actions affecting property rights of Indians in relation to their tribes should not be deemed a taking so long as Congress is pursuing an objective ‘tied rationally’ to its Indian responsibilities”). Fifth Amendment–based taking claims are not available with re‑ spect to divestiture of aboriginal title rights not recognized by treaty or statute. Tee‑Hit‑Ton Indians v. United States, 348 U.S. 272, 285 (1955). 42 Morton v. Mancari, 417 U.S. 535, 553–55 (1974) (standard for determining whether statute was an appropriate exercise of Indian Commerce Clause authority was whether it was “tied rationally to the fulfill‑ ment of Congress’s unique obligation toward the Indians”); accord Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977); cf. Duro v. Reina, 495 U.S. 676, 693 (1990) (questioning whether Congress could delegate criminal jurisdiction to tribes over nonmembers, because “[o]ur cases suggest constitutional limitations even on the ability of Congress to subject American citizens to criminal proceedings before a tribunal that does not provide constitutional protections as a matter of right”). Whether an Indian tribe is a “person” for purposes of the Fifth Amendment or, insofar as state legislation is involved, the Fourteenth Amendment, has not been addressed expressly by the Supreme Court. Three Affiliated Tribes v. Wold Eng’g, P.C., 467 U.S. 138, 157–58 (1984) (declining to reach tribe’s equal protection claim under Fourteenth Amendment where remand ordered to permit state court to re-construe state statute in light of appropriate federal law prin‑ ciples); cf. Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701 (2003) (tribe not a “person” under 42 U.S.C. § 1983 when claiming that execution of search warrant violated sovereign immunity). Where a tribe acts in a representative capacity to vindicate the interests of individual members, “person” status should not be in doubt. Delaware Tribal Bus. Comm., 430 U.S. at 84–85 (rejecting on merits due process claim brought on behalf of individuals by organization with respect to exclusion from statutory distribution to satisfy Court of Indian Claims judgment). 43 Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 481 n.17 (1976). The Supreme Court does not construe the Indian Commerce Clause as foreclosing state regulation through a dormant component comparable to that recognized under the Interstate Commerce Clause. See, e.g., Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 157 (1980) (“[i]t can no longer be seriously argued that the Indian Commerce Clause, of its own force, automatically bars all state taxation of matters significantly touching the political and economic interests of the Tribes”); see generally Clinton, supra note 40, at 1190, 1225 (arguing that earlier Supreme Court cases had reflected a dormant Indian Commerce Clause doctrine that “automatically excluded state authority from Indian country over any matter directly or indirectly af‑ fecting Indians[,]” and attributing “the rapid downturn in tribal success rates in cases heard by the Supreme Court” to the doctrine’s “demise”).

517 U.S. 44 (1996).

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11

greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause.”45 Congress’s authority nonetheless is less pervasive with respect to the states than to tribes because of constitutionally grounded limitations; e.g., the Eleventh Amendment precludes relief against states, their agencies, or their officers outside the Ex parte Young46 exception, and certain substantive restrictions, such as the equal footing doctrine and the Tenth Amendment, constrain Congress with respect to disposition of state lands and the control of state regulatory power.47 3. Indian trust doctrine Defining the scope of the United States’ trust responsibility to Indians has proved an elusive task—with the threshold question being whether the trust obligation arises simply by virtue of dependent status or must be founded on positive treaty or statutory provisions.48 Two Supreme Court opinions, United States v. Mitchell (“Mitchell I”)49 and its 1983 companion case,50 provide seminal guidance on this question. The issue in Mitchell I and II was whether the federal government could be held liable in damages under the Indian Tucker Act51 for alleged mismanage‑ ment of reservation timber resources on lands allotted pursuant to the General

Id. at 62.

45

209 U.S. 123 (1908).

46

See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 74 (1996) (prospective relief against state governor precluded by Eleventh Amendment when Ex parte Young doctrine was unavailable because of specific remedy provided under comprehensive federal statutory scheme); Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) (quiet-title action claim barred by Eleventh Amendment because relief had effectively retroactive impact); United States v. New York, 505 U.S. 144, 161 (1992) (“Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program’ ”); cf. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 205 (1999) (where state re‑ tained “conservation necessity” authority, “treaty rights are reconcilable with state sovereignty over natural resources [and] statehood by itself is insufficient to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries”). 47

48 See generally Reid Peyton Chambers, Judicial Enforcement of Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213, 1246–47 (1975) (suggesting that “three identifiable basic lines of cases” exist, with the last arguably concluding that federal officials could be enjoined “from actions contrary to their [common law] fiduciary duties to Indians . . . even if [their actions] are not contrary to any treaty, statute, or agreement,” but further recognizing that “[i]t is premature to claim that the case law definitively confirms these latter principles, or to announce the existence of a cause of action for breach of trust”); Note, Rethinking the Trust Doctrine in Federal Indian Law, 98 Harv. L. Rev. 422, 425 (1984) (criticizing Cherokee Nation and Worcester as failing to indicate “whether the purpose of the ‘trust’ was to protect tribal property, to buttress the tribes’ political and social structures, to achieve some combination of these, or to do something else entirely”).

445 U.S. 535 (1980).

49

United States v. Mitchell, 463 U.S. 206 (1983) (“Mitchell II”).

50

28 U.S.C. § 1505; see Wolfchild v. United States, 62 Fed. Cl. 521, 540 (2004) (Indian descendants con‑ stituted “identifiable group of American Indians” for Indian Tucker Act purposes, because statute does not limit coverage to claims by tribal groups, and the plaintiff Indians “have a collective interest in ascertaining whether the government had a fiduciary duty to them and whether that fiduciary duty has been violated or abridged”), recons. denied, 68 Fed. Cl. 779 (2005), granting in part motion to certify interlocutory appeal, 78 Fed. Cl. 472 (2007). 51

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American Indian Law Deskbook, Fourth Edition

Allotment Act of 1887.52 In Mitchell I, the Court of Claims held the Act created a fiduciary duty on the government’s part to manage the resources, but the Supreme Court disagreed, deeming the statute to establish “only a limited trust relationship that does not impose any duty upon the Government to manage timber resources.”53 The Court drew this conclusion from the Act’s text, which indicated that the purpose of the government’s maintaining the land in trust was “to ensure that allottees would be immune from the state taxation” and not “to control the use of the land,”54 and the historical circumstances surrounding the Act’s passage, which indicated that commercial exploitation of timber was not authorized.55 Three members of the Court nonetheless dissented, arguing that the plain language of the Act created a fiduciary relationship and that a right of action under the statute for its breach “follow[ed] naturally.”56 On remand, the Court of Claims held that other, more modern statutes created the requisite fiduciary relationship, and in Mitchell II, the Supreme Court affirmed. The Mitchell II Court reasoned that those laws and accompanying regu‑ lations accorded the Secretary of the Interior a “pervasive role in the sales of timber from Indian lands”57 and contrasted the Secretary’s duties under them with “the bare trust created by the General Allotment Act,” because they “clearly g[ave] the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians.”58 Although observing further that the statutory and regulatory basis for the requisite fiduciary relationship was “re‑ inforced by the undisputed existence of a general trust relationship between the United States and the Indian people,”59 the Court relied exclusively on “the statutes and regulations at issue” as establishing the fiduciary relationship, for whose breach damages could be recovered.60 The standards under Mitchell I and II for determining when statutes and regulations form an enforceable fiduciary relationship, as opposed to a “bare trust,” attracted academic criticism61 but were reaffirmed two decades later in companion cases reaching opposite conclusions concerning whether

Act of Feb. 8, 1887, 24 Stat. 388.

52

445 U.S. at 542.

53

Id. at 544.

54

Id. at 545.

55

Id. at 550 (White, J., dissenting).

56

463 U.S. at 219.

57

Id. at 224.

58

Id. at 225.

59

Id. at 226.

60

See generally Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1565 (1994) (“[t]he flesh of any judicial doctrine is formed from standards that provide continuity and predictability across varied circumstances. The Indian trust doctrine has not yet matured to that state”); Note, Kathleen M. O’Sullivan, What Would John Marshall Say? Does the Federal Trust Responsibility Protect Tribal Gambling Revenue?, 84 Geo. L.J. 123, 137 (1995) (remarking on the 61

Federal Indian Law Policy: Origins and Legal Development

13

an Indian Tucker Act claim for breach of trust damages would lie. In United States v. Navajo Nation,62 a tribe alleged that the Secretary of the Interior had breached fiduciary obligations under the Indian Mineral Leasing Act of 1938 (“IMLA”)63 in approving a long-term coal production contract providing the tribe with a 12½ percent royalty. The tribe contended, inter alia, that ex parte communications had taken place between coal lessee representatives and the Secretary and that his actions had resulted in a royalty rate almost one-half of what the tribe would have received but for those actions.64 In resolving that claim, a six-member majority of the Court drew from the “pathmarking prec‑ edents” in Mitchell I and II a two-step inquiry to determine whether a breach of trust claim was stated: [A] Tribe must identify a substantive source of law that establishes spe‑ cific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties. . . . If that threshold is passed, the court must then determine whether the relevant source of substantive law “can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].”65

In this instance, the initial step was not satisfied, because “[t]he IMLA and its implementing regulations impose no obligations resembling the detailed fiduciary responsibilities that Mitchell II found adequate to support a claim for money damages.”66 The Court instead viewed “the Secretary’s involvement in coal leasing under the IMLA [as] more closely resembl[ing] the role provided for the Government by the [General Allotment Act] regarding allotted forest lands” at issue in Mitchell I, because his involvement was simply to approve leases negotiated by tribes.67 The Court added that the Secretary’s lack of “managerial control over coal leasing” comported with the statute’s objective of “enhanc[ing] tribal self-determination by giving Tribes, not the Government, the lead role in negotiating mining leases with third parties.”68 The Court re‑ jected the tribe’s reliance on the Indian Mineral Development Act of 198269 and on a specific provision in the IMLA, 25 U.S.C. § 396a, as establishing the necessary fiduciary obligation, because neither prescribed “guides or standards

absence of judicially manageable standards in Mitchell II); Note, supra note 48, at 434 (arguing that judgedetermined “contemporary [moral] norms” should govern nature of the trust obligation). 537 U.S. 488 (2003).

62

25 U.S.C. §§ 396a–396g.

63

537 U.S. at 510.

64

Id. at 506.

65

Id. at 507.

66

Id. at 508.

67

Id.

68

25 U.S.C. §§ 2101–2108.

69

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circumscribing the Secretary’s affirmation of coal mining leases negotiated between a Tribe and a private lessee.”70 The tribe’s reliance on the mining company’s ex parte contact with the Secretary fared no better, because neither the IMLA nor its regulations prohibited the communications that, the Court observed, “occurred during an administrative appeal process largely uncon‑ strained by formal requirements.”71 In contrast, in United States v. White Mountain Apache Tribe,72 a five­member majority concluded that a claim for breach of trust had been stated when a tribe claimed $14 million to rehabilitate property that had been placed into trust for the tribe under a 1960 statute that also allowed land to be used by the United States for school purposes.73 The property contained a former military fort, and the amount sought was intended to restore the property to historic preservation standards.74

537 U.S. at 510.

70

Id. at 513. The dissenting Justices pointed to the “legislative history and purposes of IMLA,” as “illuminated by the Secretary’s historical role in reviewing conveyances of Indian lands,” for the existence of “a fiduciary obligation to make a more ambitious assessment of the best interest of the Tribe before signing off.” Id. at 515 (Souter, J., dissenting). “[E]ven a reticent formulation of the fiduciary obligation,” in their view, “would require the Secretary to withhold approval if he had good reason to doubt that the negotiated rate was within the range of reasonable market rates for the coal in question, or if he had rea‑ son to know that the Tribe had been placed under an unfair disadvantage at the negotiating table by his very own acts.” Id. at 518. On remand, the tribe was permitted to pursue another breach of trust theory premised on a “network” of treaties, statutes, and regulations other than those before the Supreme Court. The tribe’s theory was rejected by the Federal Claims Court but accepted by the Court of Appeals for the Federal Circuit. Navajo Nation v. United States, 68 Fed. Cl. 805 (2005), rev’d, 501 F.3d 1327 (Fed. Cir. 2007). The “network” claim was predicated on two treaties, an Executive Order and several statutes including the 1950 Navajo-Hopi Rehabilitation Act, the 1977 Surface Mining Control and Reclamation Act, the 1983 Federal Oil and Gas Royalty Management Act, and regulations implementing the latter two laws. The Federal Circuit found the “network” to be money-mandating on the basis of five considerations: the existence of a trust relationship and trust language, federal control of coal resource planning, federal control of coal mining operations, federal control of the management and collection of coal mining royalties, and federal control of coal leasing and liabilities arising from the leasing arrangements. 501 F.3d at 1340–45. It additionally held that assigning money-mandating status to the “network” was consistent with the involved laws’ purposes and rejected the United States’ argument that the tribe “must allege a violation of a specific rights-creating or duty-imposing statute or regulation and the common law of trusts cannot be applied.” Id. at 1345–46. Commentators have reacted negatively to the Supreme Court’s decision. See generally Joel A. Holt, Note, Treat All Men Alike: An Analysis of United States v. White Mountain Apache Tribe and Suggestions for True Reparation, 38 Akron L. Rev. 413, 460 (2005) (challenging the logic of the “control theory” as a basis for a trust obligation and the relevance of common law trust principles given the “unique” nature of the federal Indian trust relationship, and arguing for replacement of the trust doctrine by “statehood for the collective Indian nation”); Raymond Cross, The Federal Trust Duty in an Age of Indian Self-Determination: An Epitaph for a Dying Doctrine?, 39 Tulsa L. Rev. 369, 396 (2003) (criticizing Navajo Nation majority opinion as creat‑ ing an unwarranted conflict between the federal trust obligation and tribal self-governance, and proposing a “non-zero sum” remedy in the form of a canon of construction requiring “federal courts to presume that Indian self-determination statutes preserve the historic rights Indians have traditionally enjoyed under the federal trust relationship, unless Congress clearly expresses its intent to the contrary within the ‘four corners’ of a given Indian statute”). 71

537 U.S. 465 (2003).

72

See Pub. L. No. 86-392, 74 Stat. 8 (1960).

73

537 U.S. at 469.

74

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The Court stressed at the outset that, under Mitchell II, “a statute creates a right capable of grounding a claim within the waiver of sovereign immunity [in the Indian Tucker Act] if, but only if, it ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained’ ” and that the “ ‘fair interpretation’ rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity.”75 Consequently, “[w]hile the premise to a Tucker Act claim will not be ‘lightly inferred,’ . . . a fair infer‑ ence will do.”76 The requisite inference existed in the 1960 law, because it not only “expressly defines a fiduciary relationship” insofar as it provided that the fort would be held in trust for the tribe by the United States but also “invest[s] the United States with the discretionary authority to make direct use of portions of the trust corpus[;]” i.e., even though the 1960 law did not explicitly “subject the Government to duties of management and conservation” like the statutes in Mitchell II, “the fact that the property occupied by the United States is ex‑ pressly subject to a trust supports a fair inference that an obligation to preserve the property improvements was incumbent on the United States as trustee.”77 That inference was drawn from a nonstatutory source—the common law trust principle that “a fiduciary actually administering property may not allow it to fall into ruin on his watch.”78 As the Court later explained in rejecting the United States’ argument that drawing such an inference was improper in the face of statutory silence with respect to the availability of a damages remedy, under Mitchell II “general trust law [is] considered in drawing the inference that Congress intended damages to remedy a breach of obligation” once “a specific duty” has been found imposed on the government by a statute.79 Two Justices joined in the White Mountain Apache opinion with a separate concurrence, contrasting the case to Navajo Nation and observing that “[t]he plenary control the United States exercises under the [1960] Act as sole manager and trustee . . . place this case within Mitchell II’s governance.”80 The dissent‑ ing Justices argued that the majority opinion had substituted “a new inquiry, asking whether common-law trust principles permit a ‘fair inference’ that money damages are available” for a test that focuses on whether the involved statute “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ”81

Id. at 472.

75

Id. at 473 (citation omitted).

76

Id. at 475.

77

Id.

78

Id. at 477.

79

Id. at 481 (Ginsburg, J., concurring).

80

Id. at 482 (Thomas, J., dissenting) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)).

81

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American Indian Law Deskbook, Fourth Edition

The extent to which Navajo Nation and White Mountain Apache clarify the standards governing breach of trust claims that seek retroactive relief remains open to question.82 It seems quite probable that courts will follow an analytical pattern similar to that employed by the Supreme Court in compar‑ ing the relevant statutes and facts against those at issue in the four seminal decisions to resolve fiduciary duty and “money-mandating” issues.83 Where, as in the Mitchell II and White Mountain Apache situations, the United States actively “manages or operates Indian lands or resources,”84 the decision should

82 See generally Gregory C. Sisk, Yesterday and Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity, 39 Tulsa L. Rev. 313, 335, 339, 345, 347 (2003) (reviewing the Mitchell, Navajo Nation, and White Mountain Apache decisions in detail; concluding that the latter two established more firmly, inter alia, that (1) “while a party still must find a substantive money-mandating source of law for claim beyond the Tucker Act, the party need not find a separate waiver of sovereign immunity elsewhere[,] nor is the interpretation of that proposed source of substantive law subject to the strict construction rule that otherwise controls the threshold determination of whether the government has waived immunity[;]” (2) “a clear majority of the 2003 decisions ruled that a monetary remedy indeed is implicit in the trust relationship[;]” (3) although “a common law duty cannot give rise to a legally cognizable right by the tribes against the government for breach of trust[,] . . . the common law may be indispensable in providing further substance to the relation‑ ship, especially when evaluative standards are not provided by the statute that created the substantive right[;]” and (4) “[w]hen the government exercises pervasive actual control, the need for a detailed statutory demarcation of each element of governmental responsibility fades, as the government’s plenary control triggers familiar fiduciary obligations developed over centuries in the common law of trust”). 83 See Samish Indian Nation v. United States, 419 F.3d 1355, 1367–68 (Fed. Cir. 2005) (neither the Indian Self-Determination and Education Assistance Act nor the Snyder Act constitutes a “money-mandating” stat‑ ute), on remand, 82 Fed. Cl. 54, 66 (2008) (rejecting breach of trust claim directed to Bureau of Indian Affairs’ “tribal priority allocation” system and Indian Health Service funding process under a “network” theory in the absence of “(1) express statutory or regulatory language supporting the existence of a fiduciary relationship . . . and (2) such elaborate or comprehensive government control over Indian property as to constitute a common-law trust”); Ashley v. USDOI, 408 F.3d 997, 1002 (8th Cir. 2005) (general trust responsibility “does not suffice to impose an actionable fiduciary duty on the United States[;]” a court instead “must look to ‘specific rights-creating or duty-imposing statutory or regulatory prescriptions’ ”); Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1349 (Fed. Cir. 2004) (while Navajo Nation “may moot the Tribes’ claims to a breach of trust for asset management pursuant to the Indian Mineral Leasing Act,” it “does not foreclose liability for failing to manage or collect the proceeds from the approved mining contracts”); Harvest Inst. Freedman Fed’n v. United States, 80 Fed. Cl. 197, 200–01 (2008) (stressing that the existence of a fiduciary duty is a separate analytical question from the right to recover compensation for its breach; “[w]hile the right to money damages may be inferred, the governmental obligation may not”); Rosebud Sioux Tribe v. United States, 75 Fed. Cl. 15, 29–30 (2007) (although secretarial approval of a lease under statutes like 25 U.S.C. §§ 81 and 414 may not in itself support a breach of trust claim, additional involvement such as ap‑ proving, voiding, and reapproving a lease, coupled with litigation over these decisions, stated a claim that precluded judgment on the pleadings); Wolfchild v. United States, 62 Fed. Cl. 521, 544–45 (2004) (applying Navajo Nation and White Mountain Apache to conclude that two appropriations statutes and a third act au‑ thorizing Secretary of the Interior to sell lands with tribe’s consent gave rise to money-mandating duty), recons. denied, 68 Fed. Cl. 779 (2005), granting in part motion to certify interlocutory appeal, 78 Fed. Cl. 472 (2007); Shoshone Indian Tribe v. United States, 56 Fed. Cl. 639 (2003) (whether United States breached trust obligation in failing to maximize oil and gas revenue or in failing to collect royalties based upon valuation required by regulations), and 58 Fed. Cl. 77 (2003) (applying Navajo Nation and White Mountain Apache in granting and denying in part United States’ summary judgment motion); see generally Christopher S. Kulander, Note, Take-or-Pay Royalties, the Trust Doctrine and the Shoshone Case, 29 Am. Indian L. Rev. 101 (2004–2005) (discussing the Shoshone oil and gas royalty litigation). 84 Inter-Tribal Council of Ariz., Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995); see also Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 984 (9th Cir. 2006) (“But fiduciary duties arise under Mitchell only where the federal government pervasively regulates a tribally-owned resource. Plaintiff offered no argument as to why a grant of [agency] funds should be considered a tribal resource”); Osage Tribe v. United States, 68 Fed. Cl. 322, 333 (2005) (“money-mandating” obligation created under 1906 statute investing the government

Federal Indian Law Policy: Origins and Legal Development

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be relatively straightforward. In other contexts, the requisite line-drawing may prove difficult. The trust obligation also plays an important role in assessing the propriety of administrative action when prospective relief outside the scope of the Tucker Act is sought.85 Notwithstanding the remedial distinction, decisional authority establishes that the standards identified in the Supreme Court’s Tucker Act decisions for determining the existence of an enforceable fiduciary duty—the first step of the two-step analysis in the Mitchell line of cases—apply with re‑ spect to claims for injunctive and declaratory relief.86 The core analytical dif‑

with the duty to manage and account for “all monies due, and all monies that may become due, or may hereafter be found to be due” with respect to mineral leases; it would be “anomalous to conclude that the authority that issues the governing regulations, sets the form of the lease, approves its terms, requires lessees to maintain financial records, holds the sole right to inspect those financial records, and is the mandated recipient of all royalty payments due the Tribe, has no obligation to perform the corresponding duties” or to pay damages for failing to do so). 85 Implicit in the plenary power doctrine is the notion that Congress itself is not subject to any legally enforceable trust obligation. See LeBeau v. United States, 474 F.3d 1334, 1343 (Fed. Cir. 2007) (congressional action “extinguished” breach of trust); Cobell v. Norton, 392 F.3d 461, 465–66 (D.C. Cir. 2004) (Public Law No. 108-108 precluded application of common law trust principles as basis to require historical accounting of individual Indian money accounts); Wolfchild v. United States, 62 Fed. Cl. 521, 549 (2004) (jurisdiction lacking over breach of trust claims under the Indian Tucker Act “when the alleged breach consisted of an act of Congress within Congress’s constitutional powers”), recons. denied, 68 Fed. Cl. 779 (2005), granting in part motion to certify interlocutory appeal, 78 Fed. Cl. 472 (2007); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 259 F. Supp. 2d 783, 792 (W.D. Wis. 2003) (rejecting claim that actionable breach of trust claim could be based on adoption of statute), aff’d, 367 F.3d 650, 655 (7th Cir. 2004) (holding that trust doctrine arises not from federal constitution but “from the United States’ unfortunate history of Indian policy,” and declining to imply a constitutionally based standard that “all Indian legislation must be related rationally to furthering the federal government’s trust obligation to Indians”); but see generally Alex Tallchief Skibine, Integrating the Indian Trust Doctrine into the Constitution, 39 Tulsa L. Rev. 247, 256 (2003) (ar‑ guing that the trust duty enlarges congressional authority under the Commerce Clause; i.e., “when Congress is not acting as a trustee for the tribes, the ‘plenary’ (meaning ‘enhanced’) form of the Indian Commerce Clause disappears, and Congress can only act within the ordinary reach of the Commerce Clause”). 86 See, e.g., Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 31 (1st Cir. 2007) (“[T]he ‘general trust relationship between the United States and the Indian people’ is insufficient to establish specific fiduciary duties. . . . Substantive statutes and regulations must expressly create a fiduciary relationship that gives rise to defined obligations”) (citation omitted); Gros Ventre Tribe v. United States, 469 F.3d 801, 811 (9th Cir. 2006) (describing, in the context of resolving a nonmonetary claim, Mitchell I as “the seminal case dealing with the fiduciary trust obligations owed by the government to federally recognized Indian tribes”); Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 984 (9th Cir. 2006) (“This pair of cases sets the stage for how we consider Mitchell claims: the general ‘ward-custodian’ relationship between the federal govern‑ ment and the tribes does not give rise to fiduciary duties. But where the government takes full control of a tribally-owned resource and manages it to the exclusion of the tribe, a fiduciary relationship is created and the government bears responsibilities as a fiduciary”), modified on other grounds, 519 F.3d 838 (9th Cir. 2008); Ashley v. USDOI, 408 F.3d 997, 1002 (8th Cir. 2005) (“[T]o determine whether such a duty exists, we must look to ‘specific rights-creating or duty-imposing statutory or regulatory prescriptions[,]’ ” and “[f]or a duty to exist, there must be something akin to ‘ “elaborate provisions . . . [that] give the Federal government full responsibility to manage Indian resources for the benefit of the Indians” ’ ”) (quoting Navajo Nation, 537 U.S. at 506, 507); Cobell v. Norton, 240 F.3d 1081, 1088 (D.C. Cir. 2001) (“Because the United States holds [indi‑ vidual Indian money] lands in trust for individual Indian beneficiaries, it assumes the fiduciary obligations of a trustee. ‘ “[W]here the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection” ’ ”) (quoting Mitchell II, 463 U.S. at 225); N. Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C. Cir. 1980) (“[b]y confining

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ference therefore lies in the source of the waiver of the federal government’s immunity from suit. The waiver with respect to administrative decision-mak‑ ing lies principally in the judicial review provisions of the Administrative Procedure Act (“APA”), and specifically 5 U.S.C. § 702,87 which establishes a remedial scheme for parties adversely affected by “agency action.”88 Whether the APA’s waiver of sovereign immunity extends to nonstatutory causes of ac‑ tion, however, is not settled.89 The District of Columbia Court of Appeals has stated that the fact “[t]hat plaintiffs rely upon common law trust principles in pursuit of their claim is immaterial, as here they seek specific relief other than money damages, and federal courts have jurisdiction to hear such claims under the APA[,]”90 while the Ninth Circuit Court of Appeals has identified a conflict in its own opinions concerning the issue.91 Notwithstanding its will‑

the extension of ‘trust responsibility,’ however defined and whatever the source, to the area of overlap with the environmental statutes, the district court was arguably consistent with the Supreme Court’s rationale in United States v. Mitchell”); see generally Curtis G. Berley, Rethinking the Role of the Federal Trust Responsibility in Protecting Indian Land and Resources, 83 Denv. U. L. Rev. 1069, 1079 (2006) (discussing case law, opining that “arguments that the trust responsibility requires federal agencies to act in the best interests of tribes, independent of their statutory duties [in environmental matters], are likely to be greeted with skepticism[,]” and suggesting approaches that might lead to “fruitful results”). Some commentators, however, have argued a more lenient standard should be applied in determining whether an enforceable trust duty exists for prospective relief purposes than for damages. See Mary Christina Wood, The Indian Trust Responsibility: Protecting Tribal Lands and Resources Through Claims of Injunctive Relief Against Federal Agencies, 39 Tulsa L. Rev. 355, 364–65 (2003); Haskew, supra note 7, at 64; Wood, supra note 61, at 1522; Nell Jessup Newton, Enforcing the Federal-Indian Trust Relationship After Mitchell, 31 Cath. U. L. Rev. 635, 681 (1982). 87 5 U.S.C. §§ 701–706. Statute-specific waivers also exist. See, e.g., 16 U.S.C. § 1540(g)(1) (Endangered Species Act); 33 U.S.C. § 1365(a) (Clean Water Act); 42 U.S.C. § 7604(a) (Clean Air Act). 88 See 5 U.S.C. § 551(13) (defining “agency action” as including “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act”). The APA excludes categorically from judicial review under its provisions agency actions taken pursuant to statutes that preclude such review and actions committed to agency discretion. Id. § 701(a)(2). Section 702 by its own terms, moreover, does not “confer[] authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” See Lincoln v. Vigil, 508 U.S. 182, 193–95 (1993) (review concerning termination of program providing services to handicapped Indian children committed to agency discretion and thus unreviewable under APA). The Federal Circuit, which includes the Court of Federal Claims, construes a provision of the Tucker Act, 25 U.S.C. § 1500, as precluding the exercise of its jurisdiction over claims for damages where suits for prospective relief either are pending in district court or are filed on the same day as the Claims Court proceeding and grow out of the same set of operative facts and seek at least some overlapping relief. E.g. Passamaquoddy Tribe v. United States, 82 Fed. Cl. 256, 262–73 (2008) (discussing relevant precedent). This rule therefore counsels attention to the proper sequencing of remedial demands in Tucker Act and APA suits. 89 See generally John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 146 (1998) (nonstatutory review “encompasses cases where a court reviews administrative action even though neither the APA nor any other statute confers a right for parties to obtain relief against the agency or its officers”). 90 Cobell v. Norton, 240 F.3d 1081, 1094–95 (D.C. Cir. 2001); accord Puerto Rico v. United States, 490 F.3d 50, 56–57 (1st Cir. 2007); see generally Kathryn E. Kovacs, Revealing Redundancy: The Tension Between Federal Sovereign Immunity and Nonstatutory Review, 54 Drake L. Rev. 77, 93–94 (2005) (although nonstatutory review is “alive and well in the D.C. Circuit” and where purportedly unconstitutional conduct is involved, “in cases alleging ultra vires conduct, courts more often decline to exercise nonstatutory review”). 91 Gros Ventre Tribe v. United States, 469 F.3d 801, 808–09 (9th Cir. 2006) (noting intracircuit conflict over issue, but finding it unnecessary to call for en banc review in view of an alternative basis for affirming district court judgment).

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ingness to recognize the availability of section 702–based immunity waiver as to suits that seek to vindicate a federal common law right, the District of Columbia Court of Appeals required the “final agency action” requirement in the APA to be satisfied even with respect to nonstatutory claims.92 It thus appears that the outcome of some, and perhaps many, breach of trust claims seeking prospective relief will turn, as a jurisdictional matter, upon a narrow issue of APA construction. Several other common issues in breach of trust litigation warrant com‑ ment. First, there are instances where the generalized trust obligation has played, or can play, a pivotal role in decision-making by courts or administrative agencies. Prominent in that respect are decisions using the trust relationship as one rationale for the special canons of construction applicable to treaties and statutes affecting Indians.93 Another is the invocation of the guardian-ward relationship to sustain congressional action against constitutional challenge, as the Supreme Court did in upholding the Indian hiring preference created under the 1934 Indian Reorganization Act.94 The Court later enlisted the trust responsibility as a factor in determining whether adoption of state law rather than a uniform national formulation as the rule of decision for federal

92 Cobell, 240 F.3d at 1095 (although final agency action requirement applies to breach of trust claims, APA-based claim existed under 5 U.S.C. § 706(1), which authorizes district courts to “compel agency action unlawfully withheld or unreasonably delayed”); but see Trudeau v. FTC, 456 F.3d 178, 187 (D.C. Cir. 2006) (“APA § 702’s waiver of sovereign immunity permits not only [petitioner’s] APA cause of action, but his nonstatutory and First Amendment actions as well . . . [and] applies regardless of whether the FTC’s press release constitutes ‘final agency action’ ”). 93 See, e.g., Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) (“[t]he canons of construc‑ tion applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians”); Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1347 (Fed. Cir. 2004) (“fundamental trust law principles” applied in construing statute that tolled period for bringing action for trust fund mismanage‑ ment); Artichoke Joe’s v. Norton, 353 F.3d 712, 729 (9th Cir. 2003) (canons “grew out of the trust obligation that Congress owes to Indian tribes”); see generally Rebecca Tsosie, The Conflict Between the “Public Trust” and the “Indian Trust” Doctrines: Federal Public Land Policy and Native Nations, 39 Tulsa L. Rev. 271, 276 (2003) (the “general trust principle is sometimes referred to as imposing ‘merely a moral obligation’ that is not specifically enforceable by the courts” and “[i]n other cases . . . is used as a canon of construction to assist the Court in its interpretation of legal duties”). 94 Mancari v. Morton, 417 U.S. 535, 555 (1974) (rejecting equal protection challenge to 25 U.S.C. § 472, and reasoning that “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed”); see also Delaware Tribal Bus. Cmte. v. Weeks, 430 U.S. 73, 86 (1977) (“[w]e cannot say that the decision of Congress to exclude the descendants of individual Delaware Indians who ended their tribal membership and took their proportion‑ ate share of tribal property as constituted more than a century ago, and to distribute the appropriated funds only to members of or persons closely affiliated with the Cherokee and Absentee Delaware tribes, was not ‘tied rationally to the fulfillment of Congress’ unique obligation toward the Indians’ ”); cf. Lawrence v. DOI, 525 F.3d 916, 920 (9th Cir. 2008) (Indian Preference Act extends only to “hiring” decisions administratively determined to include “ ‘initial hiring, reinstatement, transfer, reassignment or promotion’ ”) (quoting 25 C.F.R. § 5.2(a)); Indian Educators Fed’n Local 4524 v. Kempthorne, 541 F. Supp. 2d 257, 258 (D.D.C. 2008) (term “Indian office” in Act includes any position within the Department of the Interior “directly and primarily related to providing services to Indians” and not merely positions within the Bureau of Indian Affairs).

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common law purposes is appropriate in deciding streambed accretion issues.95 The unique relationship with tribes additionally has served as a predicate for the exercise of Executive Branch discretionary authority.96 In that regard, it must be remembered that the trust obligation extends to all federal agencies, not just those primarily concerned with Indian affairs.97 Agencies neverthe‑ less must balance that obligation with other, possibly competing interests.98 Moreover, because the trust obligation also is owed to all Indians, it does not

95 Wilson v. Omaha Indian Tribe, 442 U.S. 653, 673 (1979) (finding no need to develop a body of general federal law because, in part, with “equitable application of state law, there is little likelihood of injury to federal trust responsibilities or to tribal possessory interests”). 96 See, e.g., Exec. Ord. No. 13,175, 65 Fed. Reg. 67,249, 67,250–51 (Nov. 6, 2006) (directing administra‑ tive agencies to promulgate policies to provide for consultation with tribes over “policies that have tribal implications[;]” limiting agency authority to “promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute” except under specified circumstances; and requiring agencies to “consider any application by an Indian tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate”); Secretarial Ord., American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (identifying five principles to guide administration of the Endangered Species Act by the Department of Commerce and the Interior), available at http://www.nmfs.noaa.gov/pr/pdfs/recovery/appendix_f-j.pdf; Env’l Protection Agency, EPA Policy for the Administration of Environmental Programs on Indian Reservations at 3 (Nov. 8, 1984) (“In keep‑ ing with th[e] trust obligation, the Agency will endeavor to protect the environmental interests of Indian Tribes when carrying out its responsibilities that may affect the reservations”), available at http://www. epa.gov/tribal/pdf/indian-policy-84.pdf (last visited July 20, 2008). 97 See, e.g., Cobell v. Norton, 240 F.3d 1081, 1106–07 (D.C. Cir. 2001); Nance v. EPA, 645 F.2d 701, 711 (9th Cir. 1981). 98 Nevada v. United States, 463 U.S. 110, 128, 142–43 (1983); see also Arizona v. California, 460 U.S. 605, 627–28 (1983) (rejecting claim that prior water right quantification was not final because of claimed conflict of interest on federal government’s part); Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 993 (9th Cir. 2005) (no breach of trust in declining to exercise discretion with respect to entry into a contract with a tribe under the Indian Self-Determination and Education Assistance Act for restoration of a salmon run; “[t]he government’s trust obligations . . . can coexist with its other responsibilities[,]” and thus an agency “may satisfy a range of statutory responsibilities while still honoring its trust obligations to Indians”); see generally Ann C. Juliano, Conflicted Justice: The Department of Justice’s Conflict of Interest in Representing Native American Tribes, 37 Ga. L. Rev. 1307, 1369, 1374, 1385, 1395 (2003) (arguing that “the ‘control’ exercised by the federal government over tribal litigation should create a fiduciary duty on the federal government” and that “the common law of trust will aid in fleshing out the obligations of the government,” but ultimately recommending establishment of “an independent litigating authority within the federal government” to represent tribal interests and limiting application of mutuality requirement for preclusion purposes to instances where United States has acted in furtherance of Indian interests). More difficult issues arise for federal agencies in determining whether and how to reconcile all interests arguably affected by their deci‑ sion-making. Some commentators suggest that an agency’s trust responsibility to tribes must take prece‑ dence absent an explicit contrary congressional directive, but that position may not square with Nevada v. United States, which indicates that an agency’s duty lies in carrying out the overall objectives of the involved legislation. See generally Mary Christina Wood, Fulfilling the Executive’s Trust Responsibility Toward the Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration’s Promises and Performance, 25 Envtl. L. 733, 747 (1995) (arguing that, where an irreconcilable conflict exists between tribal property rights and other interests, generally “an agency should prioritize tribal rights because it lacks the authority to abrogate such rights”).

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“limit [an agency’s] discretion to reorder its priorities from serving a subgroup of beneficiaries to serving the broader class of all Indians nationwide.”99 Second, where statutes of general applicability are involved, the oftencited principle is that an agency’s compliance with a federal statute will defeat a breach of trust claim.100 Court decisions, however, have left open the possibility that otherwise actionable fiduciary duties imposed under treaties or statutes may affect how a statute of general applicability should be administered.101

99 Lincoln v. Vigil, 508 U.S. 182, 195 (1993); see also Morton v. Ruiz, 415 U.S. 199, 237–38 (1974) (while agency had no obligation to provide general assistance to all Indians in the country, administrative policy of denying it to Indians living near their reservation was inconsistent with the federal government’s trust obligation, especially in view of representations to Congress that such Indians would receive benefits). 100 DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 15–16 (2001) (refusing to “read an ‘Indian trust’ exception into [the Freedom of Information Act]” since “[t]here is simply no support for the exemption in the statutory text, which we have elsewhere insisted be read strictly in order to serve FOIA’s mandate of broad disclosure, which was obviously expected and intended to affect Government operations”); Lawrence v. DOI, 525 F.3d 916, 920 (9th Cir. 2008) (“[t]he agency discharged its fiduciary obligations by complying with the Civil Service Regulations, which are ‘general regulations and statutes not specifically aimed at protect‑ ing Indian tribes’ ”); LeBeau v. United States, 474 F.3d 1334, 1343 (Fed. Cir. 2007) (reallocation of plaintiffs’ share of judgment fund “extinguished the government’s liability for a breach” of trust with respect to delay in distributing such share where they “never acquired vested rights in their share”); Gros Ventre Tribe v. United States, 469 F.3d 801, 810 (9th Cir. 2006) (trust responsibility “alone . . . does not impose a duty on the government to take action beyond complying with generally applicable statutes and regulations”); Pit River Tribe v. USFS, 469 F.3d 768, 788 (9th Cir. 2006) (noncompliance with National Environmental Policy Act and National Historic Preservation Act “violated [the federal agencies’] minimum fiduciary duty” to the tribe); Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 479–80 (9th Cir. 2000) (compliance with the National Environmental Policy Act with respect to impact of proposed project on tribe’s reserved treaty rights satisfied trust obligation); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir. 1998) (construing Mitchell II and prior circuit precedent to stand for the proposition that “although the United States does owe a general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compli‑ ance with general regulations and statutes not specifically aimed at protecting Indian tribes”); Miccosukee Tribe v. United States, 430 F. Supp. 2d 1328, 1336 (S.D. Fla. 2006) (trust obligation does not extend beyond “ ‘those found in applicable statutes, regulations, treaties, or other agreements’ ”); San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 894 (D. Ariz. 2003) (compliance with water project act and judicial de‑ cree “cannot be a breach of the Government’s general trust responsibilities to the Plaintiffs”), aff’d on other grounds, 417 F.3d 1091 (9th Cir. 2005); cf. Tsosie v. United States, 452 F.3d 1161, 1166 (10th Cir. 2006) (alleged fiduciary obligation created by various statutes did not supersede ordinary equitable estoppel principles that require “affirmative misconduct” on government’s part); Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 745 (8th Cir. 2001) (rule based on trust doctrine that “an Indian plaintiff has a reduced responsibility to discover adverse government conduct” has no application where Quiet Title Act claim involved, because the Act’s waiver of sovereign immunity must be strictly construed); Bay View, Inc. v. United States, 278 F.3d 1259, 1265 (Fed. Cir. 2001) (rejecting breach of trust claim predicated on the Alaska Native Claims Settle‑ ment Act because, inter alia, “ ‘[t]he text and history of the ANCSA make clear that Congress sought to avoid creating any fiduciary relationship between the United States and any Native organization’ ”); see generally Shannon Taylor Waldron, Note, Trust in the Balance: The Interplay of FOIA’s Exemption 5, Agency-Tribal Consultative Mandates, and the Trust Responsibility, 26 Vt. L. Rev. 149, 189 (2001) (contending that Supreme Court’s Klamath Water Users decision is “somewhat justifiable according to a cursory understanding of the FOIA principles of disclosure” but “ignores the principles of the trust relationship and flatly forfeits Indian law for the sake of administrative law”). 101 See Gros Ventre Tribe, 469 F.3d at 810 & n.10 (“[t]ribes cannot allege a common law cause of action for breach of trust that is wholly separate from any statutorily granted right,” but leaving unresolved whether the United States, in applying generally applicable laws, must “take special consideration of tribal inter‑ ests”); Pit River Tribe, 469 F.3d at 788 (leaving unresolved whether the fiduciary obligation requires more than mere compliance with general statutes not specifically aimed at protecting tribes); compare Parravano v. Babbitt, 70 F.3d 539, 546 (9th Cir. 1995) (relying on trust obligation to buttress conclusion that agency

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Third, the Mitchell line of cases establishes that traditional trust principles may inform determinations concerning the nature of the federal government’s responsibilities in carrying out a fiduciary duty established under the first prong of Mitchell analysis.102 That said, the fit between the duties imposed under a statute and duties that arise in a private trustee-beneficiary relationship can prove uneven. One federal court of appeals thus has observed that a “district court may [not] simply copy a list of common law trust duties from the Restate‑ ment and then order Interior to explain how it will satisfy them.”103 Rather, a trial judge initially must identify the statutory duty and only then “look to common law trust principles to particularize that obligation.”104 The court of appeals observed further that ordinary APA jurisdictional considerations, which require that claims be addressed to discrete “agency action,” constrain judicial remedial authority and that, therefore, “[w]hile a court might certainly act to prevent or remedy a trustee’s wrongful intermingling of trust accounts, this does not imply that the normal remedy would be an order specifying how the trustee should program its computers to avoid intermingling, as opposed to, for example, barring the use of a program that had caused forbidden intermingling

properly issued emergency regulations to protect off-reservation fishing rights), with Woods Petroleum Corp. v. DOI, 47 F.3d 1032 (10th Cir. 1995) (agency acted arbitrarily in disapproving communization agreement under 25 U.S.C. § 396 for the sole purpose of causing a valid oil and gas lease to expire and thereby allow Indian lessees to enter into more lucrative leases with essentially identical communization agreement); see generally Wood, supra note 86, at 362 (“APA claimants generally seek injunctive relief in federal district court, challenging agency action that is carried out within a statutory scheme. Accordingly, tribal lawyers must argue that the agency is bound by the trust responsibility to use its discretion within that statutory scheme to protect tribal interests unless doing so conflicts with the actual statutory language”). 102 Mitchell II, 463 U.S. at 226; United States v. Mason, 412 U.S. 391, 398–99 (1973); see Navajo Nation v. United States, 501 F.3d 1327, 1346 (Fed. Cir. 2007) (“the common law trust duties of care, candor, and loyalty help define the fiduciary responsibilities in this case”); Cobell v. Norton, 392 F.3d 461, 472 (D.C. Cir. 2004) (although Department of the Interior’s statutorily imposed managerial duties as to individual Indian money accounts gave rise to enforceable fiduciary obligation, district court erred in concluding “that once a trust relationship was established they could automatically ‘invoke all the rights that a common law trust entails’ ”); Cobell v. Norton, 240 F.3d 1081, 1108 (D.C. Cir. 2001) (rejecting contention that district court lacked authority to order accounting after finding breach of trust obligation; “[b]ecause the agencies involved delayed performance of their legal obligations, the court was justified in fashioning equitable relief that would ensure the vindication of plaintiffs’ rights”); Wolfchild v. United States, 62 Fed. Cl. 521, 540–41 (2004) (applying Restatement (Third) of Trusts standards to determine whether requisite elements of trust existed), recons. denied, 68 Fed. Cl. 779 (2005), granting in part motion to certify interlocutory appeal, 78 Fed. Cl. 472 (2007); Shoshone Indian Tribe v. United States, 58 Fed. Cl. 542, 545 (2003) (“the law of trusts provides another relevant framework within which” to resolve equitable and promissory estoppel defenses raised by United States); see generally Rodina Cave, Comment, Simplifying the Indian Trust Responsibility, 32 Ariz. L.J. 1399, 1421 (2000) (arguing that “[t]he availability of causes of action for breach of common law trust is in step with tribal self-determination, as well as with the tribes’ movement toward economic self-sufficiency”); Eugenia Allison Phipps, Note, Feds 200, Indians 0: The Burden of Proof in the Federal/Indian Fiduciary Relationship, 53 Vand. L. Rev. 1637, 1682–83 (2000) (arguing that “courts should shift the burden establishing . . . [the] statu‑ tory and control-based dominance necessary to justify the imposition of common law fiduciary obligations from the plaintiff Indian to the defendant government in breach of duty claims”).

Cobell v. Norton, 392 F.3d 461, 471 (D.C. Cir. 2004).

103

Id. at 472.

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or was clearly likely to do so.”105 Subsequently in the same litigation, the court of appeals reversed a district court order detailing how the Department of the Interior should conduct a historical accounting for individual Indian money accounts—and thereby increasing the accounting’s cost from $335 million to $10 billion over ten years—with the admonition that “[t]he choices at issue required both subject-matter expertise and judgment about the allocations of scarce resources, classic reasons for deference to administrators.”106 The court stressed that the individual Indian money trust “differs from ordinary private trusts along a number of dimensions,” including the fact that accounting costs typically are borne by the trust corpus and that, therefore, “private beneficiaries [have] an incentive not to urge extravagance.”107 Finally, aside from the United States’ sovereign immunity, breach of trust claims face other obstacles attendant to federal court litigation. They thus en‑ joy no dispensation from ordinary justiciability, procedural, and evidentiary rules.108 Statutes of limitation issues also constitute a staple of breach of trust litigation.109

Id. at 473.

105

Cobell v. Norton, 428 F.3d 1070, 1076 (D.C. Cir. 2005).

106

Id. at 1074–75. On remand from a subsequent appeal, the district court concluded that an historical accounting was not feasible given existing appropriation constraints but nevertheless recognized that some other “remedy must be found for the Department’s unrepaired, and unreparable, breach of its fiduciary duty over the last century.” Cobell v. Kempthorne, 532 F. Supp. 2d 37, 103 (D.D.C. 2008). 107

108 See Cobell v. Kempthorne, 455 F.3d 317, 325 (D.C. Cir. 2006) (vacating class notification requirement as inconsistent with Fed. R. Civ. P. 23(d)(2); “Rule 23(d)(2) authorizes notice to protect class members’ right to participate in the litigation; it does not authorize substantive orders protecting the very rights class mem‑ bers seek to vindicate”); Cobell v. Kempthorne, 455 F.3d 301, 315–16 (D.C. Cir. 2006) (vacating preliminary injunction that required disconnection of agency computers from the Internet and internal networks; court of appeals was “unconvinced the class members demonstrated that they would necessarily suffer harm without this injunction” and concluded the injunction “would cause significant hardship to [the Depart‑ ment of the] Interior”); Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) (vacating preliminary injunction where district court effectively imposed burden of proof on government and abused discretion in failing to conduct evidentiary hearing to resolve “key factual disputes in favor of the moving party”); Wolfchild v. United States, 77 Fed. Cl. 22, 27–31 (2007) (finding Article III standing requirements unsatisfied); Hopi Tribe v. United States, 55 Fed. Cl. 81, 96 (2002) (discussing applicability of exhaustion of administrative remedies and ripeness principles). 109 See, e.g., 28 U.S.C. § 2401 (requiring actions against United States to be commenced within six years with certain exceptions, including tort actions that must be commenced within two years); id. § 2501 (requir‑ ing actions before the United States Court of Claims “within six years after such claim first accrues”); see Harvest Inst. Freedman Fed’n v. United States, 80 Fed. Cl. 197, 199–200 (2008) (applying the six-year statute of limitations in 25 U.S.C. § 2501); Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006) (apply‑ ing the six-year statute of limitations in 28 U.S.C. § 2401); Simmons v. United States, 71 Fed. Cl. 188 (2006) (applying 28 U.S.C. § 2501; discussing claim accrual, estoppel, and the “continuing claims” doctrine; and ruling that the Indian Trust Accounting Statute, Pub. L. No. 108-108, does not apply to mismanagement of “trust assets,” but only “trust funds”); but see Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1345–50 (Fed. Cir. 2004) (Pub. L. No. 108-108 deferred accrual of certain trust fund actions until an accounting has been provided to the trust beneficiary); Wolfchild v. United States, 62 Fed. Cl. 521, 547 (2004) (Pub. L. No. 108-108 “resurrects claims that may previously have been barred by the statute of limitations”), recons. denied, 68 Fed. Cl. 779 (2005), granting in part motion to certify interlocutory appeal, 78 Fed. Cl. 472 (2007); but see Loudner v. United States, 108 F.3d 896, 902 (8th Cir. 1997) (failure to give adequate notice of application

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4. Indian canons of construction The Indian canons of construction derive from the disadvantage labored under by tribes in making treaties and agreements with the Executive Branch. As the Supreme Court stated in Jones v. Meehan:110 In construing any treaty between the United States and an Indian tribe, it must always . . . be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and power‑ ful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter em‑ ployed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.111

Implicit in that explanation for the canon is the principle that, given the guard‑ ian-ward relationship, the Executive Branch’s actions should be viewed when possible as having been taken with the trust obligation arising from such a relationship in mind.112 The practical effect of the canons is to resolve ambiguities or “doubtful expressions” in the affected Indians’ favor.113 They thus have been used to im‑

deadline for claiming portion of trust corpus constituted breach of trust obligation that prevented limita‑ tion statute from running). 110

175 U.S. 1 (1899).

Id. at 10–11; see Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999) (“[A]n examination of the historical record provides insight into how the parties to the Treaty understood the terms of the agreement. This insight is especially helpful to the extent that it sheds light on how the Chippewa . . . understood the agreement because we interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them”). 111

112 Choctaw Nation v. United States, 318 U.S. 423, 432 (1943) (1902 agreement was “to be construed, so far as possible, in the sense which the Indians understood it, and ‘in a spirit which generously recognizes the full obligation of this nation to protect the interest of a dependent people’ ”); see generally Watson, supra note 9, at 458 (“The presence of a trust relationship between the United States and the Indian tribes, which enabled the Supreme Court to justify the assertion of plenary power over Indians, likewise supports the application of the value-laden Indian canons as an ameliorating force when ambiguities arise regarding the assertion of federal authority”). Some commentators have suggested other grounds for the canons. See, e.g., Philip P. Frickey, Marshalling Past and Present Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381 (1993) (arguing that the Marshall trilogy established canons of construc‑ tion animated by desire to maintain sovereign-to-sovereign relationship). 113 See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 194 n.5 (1999); County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 269 (1992); Choctaw Nation v. Oklahoma, 397 U.S. 620, 642 (1970).

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ply the existence of reserved water rights114 and hunting and fishing rights.115 The canons further counsel against diminution of existing tribal rights being inferred from statutes without express provision for such modification.116 They have been extended to resolve ambiguities in statutes or executive orders in‑ tended to benefit Indians.117 The canons nonetheless do not constitute “a license to disregard clear expressions of tribal and congressional intent.”118 They also “are not mandatory rules” but are instead “guides that ‘need not be conclusive.’ ”119 The Supreme Court accordingly has rejected the notion that, when different statutory inter‑ pretation rules counsel different results, “the pro-Indian canon is inevitably

Winters v. United States, 207 U.S. 564, 575–77 (1908) (construing statute embodying agreement with

114

tribe). 115 United States v. Dion, 476 U.S. 734, 738 (1986) (“As a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress. . . . These rights need not be expressly mentioned in the treaty”). 116 See Rice v. Rehner, 463 U.S. 713, 719–20 (1983) (“[w]hen we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has authorized the assertion of state authority in that respect ‘except where Congress has expressly provided that State laws shall apply[]’ ”); Menominee Tribe v. United States, 391 U.S. 404, 412–13 (1968) (refus‑ ing to imply abrogation of treaty‑based hunting and fishing rights upon termination of tribal trust status); see generally Phillip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 72–73 (1996) (arguing that canons of construction dictate that Congress invades Indian rights only by expressly so stating). 117 Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985) (refusing to find waiver of tribal immunity against state taxation on the basis of the presumption against implied repeals, observing that “the standard principles of statutory construction do not have their usual force in cases involving Indian law”); Artichoke Joe’s v. Norton, 353 F.3d 712, 728, 730 (9th Cir. 2003) (where “an examination of the legislative history and [the Indian Gaming Regulatory Act’s] stated purposes does not resolve the ambiguities in the operative text[,]” court relies on Indian canons to credit defendants’ construction, “not because it is necessarily the better reading, but because it favors Indian tribes and the statute . . . is both ambiguous and intended to benefit those tribes”); Parravano v. Babbitt, 70 F.3d 539, 544 (9th Cir. 1995) (“[t]he rule of construction ap‑ plicable to executive orders creating reservations is the same as that governing the interpretation of Indian treaties”); Rumsey Indian Rancheria v. Wilson, 64 F.3d 1250, 1257 (9th Cir. 1995) (“statutes benefitting Native Americans generally are construed liberally in their favor”), amended, 99 F.3d 321 (9th Cir. 1996); Cherokee Nation v. United States, 73 Fed. Cl. 467, 478 (2006) (rejecting contention that canons did not apply where the interest of a third party “with whom the Government does not have a trust relationship” is at stake; “[i]t is enough that the ambiguity occurs in a statute which Congress intended to benefit an Indian tribe”); cf. Chickaloon–Moose Creek Native Ass’n v. Norton, 360 F.3d 972, 983–84 (9th Cir. 2004) (suggesting in dicta that canons apply to construction of modern contracts between tribes and United States); see generally David M. Blurton, Canons of Construction, Stare Decisis and Dependent Indian Communities: A Test of Judicial Integrity, 16 Alaska L. Rev. 37, 46 (1999) (“The development of the canons of construction . . . began in the context of interpreting treaties, reflecting a policy of recognizing the tribes’ disadvantage in negotiating treaties with the United States. The application of these canons to federal statutes dealing with Indian rights was a natural evolution, as federal statutes, ratifying executive agreements with tribes, replaced treaties as the primary means of dealing with tribes”). 118 DeCoteau v. Dist. County Ct., 420 U.S. 425, 447 (1975); accord South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506 (1986); Oregon Dep’t of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 766–70 (1985); see also Choctaw Nation v. United States, 318 U.S. 423, 432 (1943) (“[b]ut even Indian treaties can‑ not be re‑written or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties”); Pueblo of Zuni v. United States, 467 F. Supp. 2d 1114, 1116 (D.N.M. 2006) (rejecting reliance on the canons in connection with proposed construction of 25 U.S.C. § 450m–1(a) with the observation that “a favorable interpretation does not mean adding a gloss to the provision which is not supported by the clear statutory language[] or by case law”).

Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001).

119

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the stronger—particularly where the interpretation of a congressional statute rather than an Indian treaty is at issue.”120 It explained further that “[t]his Court’s earlier cases are too individualized, involving too many kinds of legal circumstances, to warrant any such assessment about the two canons’ relative strength.”121 Resort to legislative history or surrounding circumstances when ambiguous provisions are involved is appropriate to resolve the propriety of applying the Indian canons in a particular controversy.122 Lower federal courts are divided over whether administrative interpretations of ambiguous statutes otherwise entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,123 control over the canons.124 The Indian canons, finally, may not be used to disadvantage the interests of one tribe or group of Indians over another.125

Id. at 95.

120

Id.

121

122 Id. at 94; see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 n.17 (1978). In Chickasaw Nation, the issue was whether a federal tax applied to tribal gaming revenue, and the competing canons were the presumption against implication of an exemption from such a tax unless clearly expressed, and the notion that statutes should be construed favorably to tribes. In finding application of the latter canon unjustified, the Court relied in part on its analysis of legislative history that reflected deletion of language that the tribe argued should be implied. 534 U.S. at 91–93. After Chickasaw Nation, the Ninth Circuit Court of Appeals addressed the question of how to resolve a claimed exemption from application of two federal vehicle-related taxes, which admittedly contained no exemptions for Indians, in light of a treaty provision that provided tribal members “ ‘free access’ ” from their reservation “ ‘to the nearest public highway’ ” and “ ‘the right in common with citizens of the United States[] to travel upon all public highways.’ ” Ramsey v. United States, 302 F.3d 1074, 1076–77 (9th Cir. 2002). It reasoned that, in such an instance, express “exemp‑ tive language” first must be found and that then the provision should be construed favorably to the affected Indians to resolve any ambiguity over its application to the federal taxes at issue. Id. at 1079. The court emphasized that “[o]nly if [the express exemptive] language exists, do we consider whether it could be ‘reasonably construed’ to support the claimed exemption.” Id. at 1079. Applying this analytical approach, it deemed the “free access” and “in common” provision not to constitute the requisitely express “exemptive language.” Id. at 1080. The court distinguished a previous decision, Cree v. Flores, 157 F.3d 762 (9th Cir. 1998), in which the same treaty provision had been invoked successfully to preempt state highway–related taxes, on the ground that, with respect to a state tax, “unlike the federal standard, there is no requirement to find express exemptive language before employing the canon of construction favoring Indians.” Ramsey, 302 F.3d at 1079.

467 U.S. 837 (1984).

123

Compare Artichoke Joe’s v. Norton, 353 F.3d 712, 730 (9th Cir. 2003) (noting Chevron exception to canons, but finding federal agency’s construction consistent with construction counseled by canons); Confederated Salish & Kootenai Tribes v. United States, 343 F.3d 1193, 1197 (9th Cir. 2003) (Browning, J., concurring) (citing circuit authority favoring Chevron deference over canons); and Williams v. Babbitt, 115 F.3d 657, 663 (9th Cir. 1997) (applying Chevron analysis), with Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461–62 (10th Cir. 1997) (deference not required); Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 58–59 (D.C. Cir. 1991) (same); and Fort Peck Hous. Auth. v. USDHUD, 435 F. Supp. 2d 1125, 1134 (D. Colo. 2006) (following Ramah Navajo); see Navajo Nation v. DHHS, 325 F.3d 1133, 1136 n.4 (9th Cir. 2003) (noting but not reaching issue); see generally Scott C. Hall, The Indian Law Canons of Construction v. The Chevron Doctrine: Congressional Intent and Unambiguous Answer to the Ambiguous Problem, 37 Conn. L. Rev. 495, 564 (2004) (arguing that Chevron deference to agency construction of ambiguous statutes should give way to the canons where tribal rights would be affected adversely; “the reasonableness inquiry must bar any agency interpretation that diminishes Indian rights because, as the statute is admittedly ambiguous whenever Chevron is available, the necessary congressional intent to diminish Indian rights is lacking”). 124

125 See, e.g., Confederated Tribes of Chehalis Indian Reserv. v. Washington, 96 F.3d 334, 340 (9th Cir. 1996); cf. Solomon v. Interior Reg’l Hous. Auth., 313 F.3d 1194, 1205 (9th Cir. 2002) (B. Fletcher, J., dissenting) (Indian

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Although the formal reach of the canons is limited to statutes specifically concerned with Indians,126 one particularly nettlesome issue directly influ‑ enced by them is the status of tribes and Indians under statutes of general ap‑ plicability. The rule, as stated by the Supreme Court in Tuscarora, is that such statutes apply to tribes and their members no differently than they apply to other entities or individuals.127 The Ninth Circuit Court of Appeals, however, followed by other circuits, has adopted an analytical approach that allows an exception to this presumptive rule when the statute contains no express pro‑ vision for such application and when “(1) the law touches ‘exclusive rights of self‑governance in purely intramural matters’[,] (2) the application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties’[,] or (3) there is proof ‘by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations.’ ”128 Substantial litigation has occurred with respect to those exceptions, with a variety of results.129 It

canon requiring favorable construction “does not provide a ready answer when, as here, Indian interests fall on both sides of the issue”). 126 See, e.g., Hoonah Indian Ass’n v. Morrison, 170 F.3d 1223, 1229 (9th Cir. 1999) (Alaska National Inter‑ est Lands Conservation Act is not subject to special canons of construction since it was adopted to protect subsistence uses by both Native and non-Native rural Alaskans; “[t]hat the legislation may benefit Natives more than others does not make it Indian legislation”); accord Artichoke Joe’s v. Norton, 353 F.3d 712, 729 (9th Cir. 2003). 127 FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960) (“general statute applying to all persons includes Indians and their property interests”). 128 Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985) (holding Occupational Health and Safety Act applicable to tribally owned commercial enterprise). 129 Compare Grey Poplars Inc. v. One Million Three Hundred Seventy-One Thousand One Hundred (1,371,100) Assorted Brands of Cigarettes, 282 F.3d 1175, 1177 (9th Cir. 2002) (applying Contraband Cigarette Trafficking Act to transactions by tribally licensed business); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) (following Coeur d’Alene Tribal Farm and holding tribally owned construction company subject to Oc‑ cupational Safety and Health Act); United States v. Baker, 63 F.3d 1478, 1484–85 (9th Cir. 1995) (Contraband Cigarette Trafficking Act applicable to on-reservation activities of Indians); Public Serv. Co. v. Shoshone-­Bannock Tribes, 30 F.3d 1203 (9th Cir. 1994) (inherent tribal authority to regulate shipment of spent nuclear fuel rods divested by operation of Hazardous Materials Transportation Act); Lazore v. Comm’r, 11 F.3d 1180, 1187 (3d Cir. 1993) (treaty provision granting “free use and enjoyment” of lands did not exempt tribal members generally from federal income tax liability although such provision “might be sufficient to support an ex‑ emption from a tax on income derived directly from the land”); United States v. Funmaker, 10 F.3d 1327 (7th Cir. 1993) (18 U.S.C. §§ 844(i) and 924(c) applicable to on-reservation conduct by Indian); Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683 (9th Cir. 1991) (Employee Retirement Income Security Act applicable to tribal sawmill operation); USDOL v. Occupational Safety and Health Comm’n, 935 F.2d 182 (9th Cir. 1991) (Occupational Safety and Health Act applicable to tribal sawmill operation); Smart v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989) (Employment Retirement Income Security Act applicable to tribally operated health center); Atlantic States Legal Found. v. Salt River Pima-Maricopa Indian Cmty., 827 F. Supp. 608 (D. Ariz. 1993) (tribe subject to suit under Resource Conservation and Recovery Act); and United States v. Brown, 824 F. Supp. 124 (S.D. Ohio 1993) (holding summons provision of Internal Revenue Code applicable to tribal member), with United States v. Smiskin, 487 F.3d 1260, 1266 (9th Cir. 2007) (state law requirement of pre-notification with respect to shipment of unstamped cigarettes not incorporated under the Contraband Cigarette Trafficking Act, because treaty contained provision under which tribal members possessed “the right, in common with citizens of the United States, to travel upon all public highways[;]” “[t]ribal members were not required to notify anyone prior to transporting goods to market at the time of the treaty, and the Treaty guaranteed to them the same rights today”) (footnote omitted); Snyder v. Navajo Nation, 382 F.3d 892, 895 (9th Cir. 2004) (tribe not a Fair Labor Standards Act “employer” with respect to

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is unclear how those exceptions, excluding the second, which might require recourse to implied repeal principles, can be reconciled with Tuscarora and the settled rule of construction that gives unambiguous statutory language its natural effect.130 Two decisions highlight the doctrinal differences that can and do ex‑ ist. The Tenth Circuit Court of Appeals has limited the reach of Tuscarora to “property rights.”131 That court found Tuscarora inapplicable when determining whether section 8(a)(3) of the Labor Management Relations Act (“LMRA”)132 restricts a tribe’s authority to adopt an ordinance prohibiting union security agreements. It reasoned that “[t]he Tuscarora Court’s remarks concerning stat‑ utes of general applicability were made in the context of property rights, and do not constitute a holding as to tribal sovereign authority to govern.”133 The Court of Appeals for the District of Columbia more recently expressed discomfort with perceived “tension” in the Tuscarora rule with “the longstanding principles that (1) ambiguities in a federal statute must be resolved in favor of Indians . . . and (2) a clear expression of Congressional intent is necessary before a court may construe a federal statute so as to impair tribal sovereignty.”134 In finding

tribal police under the first Coeur d’Alene Tribal Farm exception, because “we are concerned with employ‑ ees hired to enforce the law” and because, in providing law enforcement services, the tribe performs “a traditional governmental function”); NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002) (en banc) (section 8(a)(3) of Labor Management Act, 29 U.S.C. § 158(a)(3), did not prohibit tribe from adopting “right to work” ordinance prohibiting union security agreements between labor organizations and employers doing business on tribal lands); Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1035 (11th Cir. 2001) (per curiam) (intertribal council not subject to 42 U.S.C. § 1981 with respect to alleged employment discrimination, because tribes are excluded from “employer” status under Title VII of Civil Rights Act and “it would be wholly illogical to allow plaintiffs to circumvent the Title VII bar against race discrimination claims based on a tribe’s Indian preference program by allowing a plaintiff to style his claim as [a] § 1981 suit”); EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1080 (9th Cir. 2001) (finding Age Discrimination in Employment Act inapplicable to claim by tribal member against housing agency that “functions as an arm of the tribal government and in a governmental role”); Reich v. Great Lakes Indian Fish and Wildlife Comm’n, 4 F.3d 490, 493–96 (7th Cir. 1993) (implying exemption for tribal game wardens from overtime compensation requirements under Fair Labor Standards Act); and EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246 (8th Cir. 1993) (Age Discrimination in Employment Act inapplicable to claim by tribal member against tribal corporation with respect to reservation employment); cf. NLRB v. Chapa De Indian Health Program, 316 F.3d 995, 998–99 (9th Cir. 2003) (applying Coeur d’Alene Tribal Farm standards to determine that NLRB did not plainly lack jurisdiction over tribal organization with respect to unfair labor practice charges filed against it as employer); see generally Alex Tallchief Skibine, Applicability of Federal Laws of General Application to Indian Tribes and Reservation Indians, 25 U.C. Davis L. Rev. 85, 139 (1991) (criticizing presumptive applicability arising under Tuscarora and Coeur d’Alene Tribal Farm approaches, and suggesting a test that “would infer congressional intent to apply general federal laws from the existence of an overriding national interest in applying the law to reservation Indians”). 130 See Passamaquoddy Tribe v. Maine, 75 F.3d 784, 789 (1st Cir. 1996) (even though Indian Gaming Regulatory Act is a statute of general applicability, it has no application to Indian gaming in Maine where a land claim settlement act “contains a savings clause warning pointedly that a specific reference or similarly clear expression of legislative intent will be required to alter the status quo”).

NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002).

131

29 U.S.C. § 158(a)(3).

132

276 F.3d at 1199.

133

San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306, 1311 (D.C. Cir. 2007).

134

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the LMRA applicable to admitted unfair labor practices, the court held that it was unnecessary to resolve that tension, because operation of the casino was not simply a matter of “internal governance of its territory and members,” and the tribe’s “sovereignty over such matters is not called into question.”135 Finally, even if a federal statute does apply to tribes, their immunity from suit by nonfederal parties remains in place absent explicit congressional abrogation. Enforcement efforts therefore are dependent upon existence of either an Ex parte Young–like exception136 for relief against tribal officers in their official capacity or personal liability.137 II. EVOLUTION OF FEDERAL INDIAN POLICY: CONGRESS AND THE EXECUTIVE BRANCH Federal Indian policy has not proceeded in a linear progression toward a specific goal. It has been marked instead by shifts in both the result desired and the means to achieve that result. The development of such policy will

135 Id. at 1315; see generally D. Michael McBride III and H. Leonard Court, Labor Regulation, Union Avoidance and Organized Labor Relations Strategies on Tribal Lands: New Indian Gaming Strategies in the Wake of San Manuel Band of Indians v. National Labor Relations Board, 40 J. Marshall L. Rev. 1259, 1292–1304 (2007) (discussing the analytical framework relevant to application of federal labor relations law to tribal enterprises, and suggesting several possible methods to avoid tribal casino unionism, which include adop‑ tion of tribal right to work codes, implementation of rules regulating solicitation on tribal property, and supervisor training to minimize employer unfair labor practices); Brian P. McClatchey, Tribally-Owned Businesses Are Not “Employers”: Economic Effects, Tribal Sovereignty, and NLRB v. San Manuel Band of Mission Indians, 43 Idaho L. Rev. 127, 160–61 (2006) (arguing that tribally owned businesses should be excluded from application of the NLRA under the “purely intramural matters” rationale, because “the proper frame of reference considers the relationship between the tribe and one of its ‘tribal corporate citizens,’ the tribally owned gaming operation, in all its dealings”); Ann Richard, Note, Application of the National Labor Relations Act and the Fair Labor Standards Act to Indian Tribes: Thwarting the Economic Self-Determination of Tribes, 30 Am. Indian L. Rev. 203, 217 (2005–2006) (contrasting analytical approaches taken by four federal circuit courts of appeals to employment-related statutes of general applicability where tribes are concerned, and arguing that Tuscarora “should be abandoned as a binding point of law and recognized for what it really is, superfluous language in a case of narrow circumstances”). 136 See Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991); cf. Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30 (1st Cir. 2006) (tribal officer subject to arrest for violation of state law made applicable pursuant to a land settlement act; “tribal sovereign immunity may extend to tribal officers—but only when such officers are acting within the legitimate scope of their official capacity”). 137 See Florida Paraplegic Ass’n v. Miccosukee Tribe, 166 F.3d 1126, 1132 (11th Cir. 1999) (although tribes are subject to Title III of the Americans with Disabilities Act as a statute of general applicability, “the absence of any reference to Indian tribes in the . . . statute stands out as a stark omission of any attempt by Congress to declare tribes subject to private suit for violating the ADA’s public accommodation requirements[,]” and thus tribes are not amenable to such suit); In re National Cattle Cong., 247 B.R. 259, 265–67 (Bankr. N.D. Iowa 2000) (although tribes are subject to Bankruptcy Code as an act of general applicability, Congress has not abrogated their immunity from suit under 11 U.S.C. § 106); but cf. Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1036 (11th Cir. 2001) (per curiam) (Ex parte Young relief not available against board members of intertribal council in their personal capacities for alleged violation of 42 U.S.C. § 1981, where council itself is not subject to statute and “is the real party in interest[,]” because all relief effectively would run against it); see generally Lisa R. Hasday, Note, Tribal Immunity and Access for the Disabled, 109 Yale L.J. 1199, 1200 (2000) (discussing Florida Paraplegic, and suggesting that “the Miccosukee plaintiffs might have circumvented the obstacle of tribal sovereign immunity if they had sued tribal members rather than the Miccosukee Tribe as a whole”).

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be discussed with reference to three periods dominated by diverse statutory schemes: (1) the Trade and Intercourse Acts period between 1789 and 1887, (2) the General Allotment Act period between 1887 and 1934, and (3) the Indian Reorganization Act period between 1934 and the present. Those divisions, while helpful in identifying generally accepted trends in congressional and Executive Branch policy, cannot be viewed in isolation from each another, because they blend one into the next. Only when the periods are taken in the aggregate can one understand how the current relationship among the federal government, the states, and the tribes has developed, and how far such a re‑ lationship has evolved from that portrayed by Chief Justice Marshall in the first third of the nineteenth century. A. The Trade and Intercourse Acts Period: 1789 to 1887 Among the topics addressed by the first Congress was commerce with Indian tribes, and the Trade and Intercourse Act of 1790 reflected an intent, which has never changed, to occupy the area of Indian affairs with federal law.138 The 1790 Act prohibited trade with tribes unless pursuant to a federal license,139 precluded tribes or tribal members from selling their lands unless such transaction was “made and duly executed at some public treaty[] held under the authority of the United States[,]”140 and authorized federal prosecu‑ tion for crimes committed by non‑Indians against “peaceable and friendly” Indians in “any town, settlement or territory belonging to any nation or tribe of Indians[.]”141 That act was replaced in 1793 by a more detailed statute which, although containing the substantive elements of the earlier law, also provided a fine for settling or surveying for settlement lands belonging to a tribe and forbade the purchase of any horse in Indian territory, whether from an Indian or a non‑Indian, without a license.142 The 1793 Act further contained an ap‑ propriation to defray the cost of employing agents and to furnish tribes with goods, money, domestic animals, or implements of husbandry for the purpose of promoting “civilization among the friendly Indian tribes” and securing their continued friendship.143

Act of July 22, 1790, 1 Stat. 137.

138

Id. § 1, 1 Stat. at 137.

139

Id. § 4, 1 Stat. at 138; see also Oneida County v. Oneida Indian Nation, 470 U.S. 226, 231–32 (1985) (discussing the prohibition in the early Trade and Intercourse Acts against alienation of Indian land). 140

Act of July 22, 1790, §§ 5, 6, 1 Stat. 137, 138.

141

Act of Mar. 1, 1793, 1 Stat. 329.

142

Id. § 9, 1 Stat. at 331. Earlier appropriations related to Indian affairs had been made in 1789 and 1791. Act of Aug. 20, 1789, § 1, 1 Stat. 54; Act of Sept. 11, 1789, § 1, 1 Stat. 67, 68; Act of Dec. 23, 1791, § 4, 1 Stat. 226, 228. 143

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The 1793 Act was superseded by a 1796 law that defined the boundaries of then‑existing Indian country but allowed them to be modified by treaty.144 New provisions in the 1796 Act included a mechanism to compensate citizens for Indian depredations or crimes committed outside Indian country.145 The 1796 Act was replaced three years later by a comparably worded statute,146 which in turn was superseded in 1802.147 With several minor amendments or supplementations,148 the 1802 Act remained in effect until 1834. The Act of June 30, 1834,149 represented the single most important measure of Indian‑related legislation during the Trade and Intercourse Acts period.150 It defined the then scope of Indian country,151 required the licens‑ ing of persons desiring to trade with Indians in Indian country,152 prohibited

Act of May 19, 1796, 1 Stat. 469.

144

Id. § 14, 1 Stat. at 472. The procedure involved making “application to the nation or tribe, to which such Indian or Indians shall belong, for satisfaction” and, should no satisfaction be forthcoming within 18 months, referring the matter to the President for further action. That provision was carried forward in later Trade and Intercourse Acts, although the period for making satisfaction was reduced to “a reasonable time, not exceeding 12 months[.]” Act of Mar. 30, 1802, § 14, 2 Stat. 139, 141–43; Act of June 30, 1834, § 17, 4 Stat. 729, 731–32. As variously amended, the provision is codified at 25 U.S.C. § 229. 145

Act of Mar. 3, 1799, 1 Stat. 743.

146

Act of Mar. 30, 1802, 2 Stat. 139; see generally 1 Francis Paul Prucha, The Great Father: The United States Government and the American Indians 89–93 (1984) (discussing historical circumstances attendant to adoption of the Trade and Intercourse Acts between 1790 and 1802). 147

See, e.g., Act of Apr. 29, 1816, 3 Stat. 332; Act of Mar. 3, 1817, 3 Stat. 383.

148

4 Stat. 729.

149

Felix Cohen described June 30, 1834 as “perhaps the most significant date in the history of Indian legislation.” Felix S. Cohen, Handbook of Federal Indian Law 73 (1942). He attributed such significance not only to the Trade and Intercourse Act but also to a statute establishing the Department of Indian Affairs adopted on that date. See Act of June 30, 1834, 4 Stat. 735. 150

151 Act of June 30, 1834, § 1, 4 Stat. 729 (“that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi river and not within any state to which the Indian title has not been extinguished”). That statutory definition of Indian country remained in effect for 40 years until omitted in an 1874 statutory recodification. Donnelly v. United States, 228 U.S. 243, 268–69 (1913). The term remained statutorily undefined until enactment of 18 U.S.C. § 1151 in 1948, which defines Indian country for criminal jurisdiction purposes in a substantially different manner from the 1834 statute. Although various provisions of the 1834 Act made reference to Indian country, other sections utilized differing descriptions for their substantive coverage. See, e.g., Act of June 30, 1834, § 9, 4 Stat. 729, 730 (prohibiting introduction of horses, mules, and cattle onto “any land belonging to any Indian or Indian tribe” without tribal consent); id. § 11, 4 Stat. at 730 (prohibiting settlement on “Indian lands belonging, secured, or granted by treaty with the United States to any Indian tribe”); id. § 12, 4 Stat. at 730 (prohibiting the purchase, grant, lease, or other conveyance of lands by a tribe); id. §§ 13–15, 4 Stat. at 731 (prohibiting oral or written communications designed to induce breach of treaties or the peace, prohibiting the conveying of communications from a foreign power, and prohibiting attempts to alienate the confidence of any Indian from the United States government). 152 Act of June 30, 1834, §§ 2–4; 4 Stat. 729–30. Between 1795 and 1822, the United States government operated trading houses, or “factories,” throughout Indian country to deal with tribal members. See, e.g., Act of Mar. 3, 1795, 1 Stat. 443; Act of Mar. 3, 1821, 3 Stat. 641; see generally 1 Prucha, supra note 147, at 115–34 (discussing the government trading house era). Private traders, however, continued to do business within Indian country and, although modified since 1834, federal law still requires trader licensure. 25 U.S.C. §§ 261–264; 25 C.F.R. § 140; see Warren Trading Post v. Arizona Tax Comm’n, 380 U.S. 685, 688–90 (1965) (tracing development of Indian trader legislation).

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alienation of lands by tribes “unless the same be made by treaty or convention entered into pursuant to the constitution[,]”153 provided remedies for the theft or destruction by Indians and non‑Indians of one another’s property,154 and made unlawful the introduction of liquor into Indian country or establishing distilleries there.155 The 1834 Act, finally, provided that “so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States[] shall be in force in the Indian country,” but the 1834 Act excluded from such ap‑ plication “crimes committed by one Indian against the person or property of another Indian.”156 The importance of the various Trade and Intercourse Acts, aside from their substantive provisions, lay in Congress’s unmistakable objective: to ex‑ ercise plenary control over Indian affairs. In large measure, that control was manifested by restricting the access of non‑Indians to Indian country and thereby insulating tribes from unwarranted outside contact. Complementing such an approach was the Act of May 28, 1830,157 which authorized the Presi‑ dent to effect removal of tribes residing east of the Mississippi River to United States territories west of the river.158 Removal was deemed necessary because of the increasing pressure by Euro-Americans upon, principally, tribal lands

153 Act of June 30, 1834, § 12, 4 Stat. 729, 730. This fundamental element of the Trade and Intercourse Acts has been carried forward with no substantive change into present law. See 25 U.S.C. § 177; Oneida Indian Nation v. Oneida County, 414 U.S. 661, 668 n.4 (1974).

Act of June 30, 1834, §§ 16, 17, 4 Stat. 729, 731–32.

154

Id. §§ 20, 21, 4 Stat. at 732–33. Earlier restrictions on liquor trafficking in Indian country had been adopted in 1802, 1822 and 1832. Act of Mar. 30, 1802, § 21, 2 Stat. 139, 146; Act of May 6, 1822, § 2, 3 Stat. 682; Act of July 9, 1832, § 4, 4 Stat. 564. Section 21 of the 1834 Act, which proscribed establishing distilleries in Indian country, now appears at 25 U.S.C. § 251. Section 20, which contained the prohibition against introduction of liquor into Indian country, has been modified variously, with present criminal pro‑ visions codified in 18 U.S.C. §§ 1154–1156 and 1161. See Rice v. Rehner, 463 U.S. 713, 722 (1983) (observing that “Congress imposed complete prohibition [on Indian country liquor transactions] by 1832, and these prohibitions are still in effect subject to suspension conditioned on compliance with state law and tribal ordinances”); see generally Cohen, supra note 150, at 352–54 (discussing historical development of liquor trafficking prohibitions). 155

156 Act of June 30, 1834, § 25, 4 Stat. 733. Section 25 was derived from the Act of March 3, 1817, 3 Stat. 383. The 1834 provision was modified in 1854 to exempt from its application either Indians who had been punished “by the local law of the tribe” or situations where, by treaty, exclusive tribal jurisdiction over the offense was recognized. Act of Mar. 27, 1854, § 3, 10 Stat. 269, 270. The 1854 Act has been codified at 18 U.S.C. § 1152 with no substantive change. Section 19 of the 1834 Act also required “superintendents, agents, and sub‑agents[] to endeavor to procure the arrest and trial of all Indians accused of committing any crime, offense, or misdemeanor, and all other persons who may have committed crimes or offenses within any state or territory, and have fled into Indian country, either by demanding the same of the chiefs of the proper tribe, or by such other means as the President may authorize[.]” 4 Stat. 729, 732. That procedure remained in effect until repealed by the Act of May 21, 1934, 48 Stat. 787.

Act of May 28, 1830, 4 Stat. 411.

157

Removal was effectuated technically by an exchange of lands occupied by the tribes pursuant to treaties with the United States in return for lands west of the Mississippi. Id. § 2, 4 Stat. 412; see generally Francis Paul Prucha, American Indian Treaties 168–82 (1994) (discussing removal treaties entered into with southern tribes). 158

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in the South and Southeast, and because of increasingly bitter federal‑state jurisdiction conflicts related to Indian lands.159 Congressional policy, therefore, was dominated by a desire to segregate tribes from interaction with non‑Indian society, except under tightly regulated circumstances. Although Congress had ultimate responsibility for establishing Indian policy during the Trade and Intercourse Acts period, the Executive Branch played an equally important role through treaty‑making and day‑to‑day ad‑ ministrative functions. Between 1778 and 1868, over 350 treaties eventually ratified by the Senate were entered into by the President.160 Those treaties, taken as a whole, dealt with a broad spectrum of issues, such as defining reservation boundaries, providing on‑reservation and off‑reservation hunting and fishing rights, authorizing the allotment of reservation lands to individual tribal members, and guaranteeing provision of governmental services or an‑ nuities.161 Even after termination of presidential treaty‑making authority, Con‑ gress routinely approved agreements negotiated by the Executive Branch with tribes,162 and executive orders were utilized between 1855 and 1919, inter alia, to withhold land from public sale for potential use as reservations or actually to create reservations.163 Treaty‑secured rights can be legislatively abrogated,164 but they nonetheless formed, and still do form, an important component of federal Indian law. The Trade and Intercourse Acts period, in sum, faithfully reflected Chief Justice Marshall’s basic conception of Indian tribes as semi‑autonomous

159 1 Prucha, supra note 147, at 195–200. The removal policy was not limited to southern tribes. Id. at 243–66 (discussing removal efforts with respect to tribes in areas now encompassed within Illinois, Indiana, Michigan, Missouri, Ohio, and Wisconsin); see also Prucha, supra note 158, at 183–207. 160 2 Charles J. Kappler, Indian Affairs, Laws and Treaties (1904) (collecting treaties); Prucha, supra note 147, at 446–500 (using Kappler and other sources to identify 367 ratified treaties); see generally Sieg‑ fried Wiessner, American Indian Treaties and Modern Indian Law, 7 St. Thomas L. Rev. 567, 569–580 (1995) (discussing treaty period). There were additionally numerous other agreements that were not ratified for‑ mally. Prucha, supra note 158, at 517–19. The President’s treaty‑making power was terminated by the Act of March 3, 1871, 16 Stat. 544 (codified at 25 U.S.C. § 71). See United States v. Lara, 541 U.S. 193, 201 (2004) (1871 Act had no effect on existing treaties and “ ‘in no way affected Congress’ plenary powers to legislate on problems of Indians’ ”); see generally Phillip M. Kannan, Reinstating Treaty-Making with Native American Tribes, 16 Wm. & Mary Bill Rts. J. 809 (2008) (contending that 25 U.S.C. § 71 violates treaty-making power in U.S. Const. art. II, § 2, cl. 2). 161 See generally Cohen, supra note 150, at 38–46 (analyzing treaty provisions under various categories, including the tribe’s international status, dependence upon the United States, commercial relations, criminal and civil jurisdiction, and control of tribal affairs). 162 See Prucha, supra note 158, at 506–16 (listing 73 such agreements incorporated into statutes between 1874 and 1913). 163 See Executive Orders Relating to Indian Reservations (1975). The President’s implied authority to cre‑ ate executive order reservations was terminated in 1919. Act of June 30, 1919, § 27, 41 Stat. 3, 34 (codified at 43 U.S.C. § 150); see Sioux Tribe v. United States, 316 U.S. 317, 324–25 (1942). 164 See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903); see generally Charles F. Wilkinson and John M. Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows, or Grass Grows Upon the Earth”—How Long a Time Is That?, 63 Cal. L. Rev. 601, 623–34 (1975) (discussing judicial tests used in determining treaty‑abrogation issues).

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entities that, while retaining a large measure of control over internal matters, were separated territorially and politically from other American society. The territorial separation manifested itself most graphically in three respects: the very concept of Indian country, the removal policy, and the creation of a reservation system.165 Perhaps less graphic but similarly telling with respect to the politically segregated nature of tribes and their members was the 1884 decision in Elk v. Wilkins.166 In that case, the Supreme Court denied a claim premised on the recently enacted Fourteenth Amendment by an Indian who, despite having severed tribal relations, was denied the right to vote in a municipal election. The Court observed that [t]he Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states [but] . . . were alien nations, dis‑ tinct political communities, with whom the United States might and habitu‑ ally did deal . . . either through treaties made by the president and senate, or through acts of congress in the ordinary forms of legislation.167

It then reasoned that [t]he alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States . . . [and] [t]hey were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authoriz‑ ing individuals of particular tribes to become citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life[.]168

The Court concluded that “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States,” were no more encompassed within the phrase “born in the United States and subject to the jurisdiction thereof” as used in

165 The reservation policy reached its fullest expression in the post–Civil War years as Euro-American settlement spread west of the Mississippi River to lands once occupied only by tribes. See 1 Prucha, supra note 147, at 563–66. By 1880, 113 reservations were created in states lying wholly west of the Mississippi, including preexisting pueblos. Id. at 578–79. The seeds of this policy had been planted earlier by treaties setting aside lands for exclusive tribal occupancy and the removal policy. Congress also considered in 1834, but did not adopt, several bills that would have created an “Indian state.” Id. at 302–09.

112 U.S. 94 (1884).

166

Id. at 99–100.

167

Id. at 100.

168

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section 1 of the Fourteenth Amendment “than the children of subjects of any foreign government born within the domain of that government.”169 Nevertheless, an underlying purpose of the reservation policy was the creation of an environment within which individual tribal members could ac‑ quire the “arts of civilization” and thereby integrate themselves into non‑Indian society—a result seen by many persons influential in Indian policy formulation as inconsistent with maintenance of tribal allegiance.170 Almost 100 years after the first Trade and Intercourse Act, Congress moved to effect that transforma‑ tion through the allotment of communally held reservation lands to individual member ownership.171 B. The General Allotment Act Period: 1887 to 1934 Individual treaties had provided for the allotment172 of reservation or other lands to tribal members,173 but the General Allotment Act of 1887174 was the first statute of general application to authorize individual allotments. The General Allotment Act allowed the President, “whenever in his opinion any reservation or any part thereof . . . is advantageous for agricultural and grazing purposes,” to allot specified quantities of reservation land to tribal members.175 Upon approval of an allotment, a patent was to issue

169 Id. at 102. Justice Harlan, joined by Justice Woods, dissented on the basis that the involved Indian had severed his tribal relations, arguing that “[a] careful examination of all that was said by senators and representatives, pending the consideration by congress of the fourteenth amendment, justifies us in saying that every one who participated in the debates, whether for or against the amendment, believed that, in the form in which it was approved by congress, it granted, and was intended to grant, national citizenship to every person of the Indian race in this country who was unconnected with any tribe, and who resided, in good faith, outside of Indian reservations and within one of the states or territories of the Union.” Id. at 118 (Harlan, J., dissenting). Thus, even the dissenters did not question the notion that section 1 of the Fourteenth Amendment did not include within the phrase “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof,” individuals who maintained tribal relations. See generally 2 Prucha, supra note 147, at 682–83 (discussing the legislative history associated with the adoption of the Fourteenth Amendment and the status of Indians under the amendment). Elk’s and similarly situated Indians’ claims to citizenship, predicated on severing tribal ties, leaving Indian country, and taking up a “civilized” life, would be vindicated several years later by Congress. See Act of Feb. 8, 1887, § 6, 24 Stat. 388, 390.

See 2 Prucha, supra note 147, at 621–26.

170

Id. at 659.

171

See Affiliated Ute Citizens v. United States, 406 U.S. 128, 142 (1972) (“Allotment is a term of art in Indian law. . . . It means a selection of specific land awarded to an individual allottee from a common hold‑ ing”) (citation omitted). 172

173 Cohen, supra note 150, at 63–64 (discussing allotment provisions in treaties negotiated between 1854 and 1861). Several removal‑related treaties authorized allotment to individual members of lands ceded under their provisions. See, e.g., Treaty with Creek Tribe, Mar. 24, 1832, arts. II, V, 7 Stat. 366; Treaty with Cherokee Tribe, Dec. 29, 1835, art. 12, 7 Stat. 478, 483–484.

Act of Feb. 8, 1887, 24 Stat. 388.

174

Id. § 1, 24 Stat. at 388. Section 4 of the statute extended rights to Indians not residing on reserva‑ tions to settle upon unappropriated public lands and to make application, with payment of required fees to be made by the United States, for the issuance of patents under the same conditions as Indians residing on reservations. 24 Stat. at 389. Section 8 excluded from the act’s coverage various tribes, including those 175

36

American Indian Law Deskbook, Fourth Edition declar[ing] that the United States does and will hold the land thus allotted, for the period of twenty‑five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or in‑ cumbrance whatsoever.176

Section 6 further granted citizenship to allottees upon issuance of trust patents and to any Indian “who has voluntarily taken up . . . his residence separate and apart from any tribe of Indians . . . and has adopted the habits of civilized life[.]”177 The 1887 Act was amended in two respects that had a deleterious effect on accomplishing its underlying goal of promoting agrarian pursuits by tribal members. First, the Secretary of the Interior was given the power in 1891 to lease allotted lands whenever, “by reason of age or other disability, any al‑ lottee . . . can not personally and with benefit to himself occupy or improve his allotment or any part thereof[.]”178 As a result of the leasing practices authorized by the amendment, “many Indians came to look upon the lands as a source of revenue from the labor of a tenant, not as a homestead to be worked personally by an independent small farmer.”179 Second, section 6 was

in what would become the state of Oklahoma. Id. at 391. Several of the excluded tribes were later included within the law’s coverage. Act of Mar. 2, 1889, § 1, 25 Stat. 1013 (codified at 25 U.S.C. § 340). 176 Act of Feb. 8, 1887, § 5, 24 Stat. 388, 389. The 25‑year trust period was subject to extension at the President’s discretion. Id. The trust relationship established under section 5 was quite limited in scope, because its purposes were “to prevent alienation of the land and to ensure that allottees would be immune from state taxation.” United States v. Mitchell, 445 U.S. 535, 544 (1980). An allottee was otherwise expected to “occupy the land as a homestead for his personal use in agriculture or grazing” like any other small agriculturalist. Id. at 543.

24 Stat. 390. This section read in its entirety:

177

That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property. 178 Act of Feb. 28, 1891, § 3, 26 Stat. 794, 795; see generally Reid Peyton Chambers and Monroe E. Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 Stan. L. Rev. 1061, 1071–74 (1974) (tracing statutory and administrative history of leasing practices with respect to restricted allotments).

2 Prucha, supra note 147, at 673.

179

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substantially modified in 1906 not only to address In re Heff,180 in which the Supreme Court had held inapplicable the federal prohibition against selling alcohol to Indians because the recipient was an allottee who had become a citizen by virtue of such section and was therefore emancipated from federal protection, but also to grant greater secretarial discretion in the issuance of fee patents.181 As amended, section 6 provides in part that “[a]t the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, . . . then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside” and that “the Secretary of the Interior may, in his discre‑ tion, . . . whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said lands shall be removed and said lands shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent[.]”182 The 1906 Act left unaffected the entitlement to citizenship for Indians who had voluntarily taken up residence apart from their tribes and adopted the habits of civilized life. Although the 1906 amendment techni‑ cally delayed the granting of citizenship status, the administrative authority to shorten the 25‑year trust period was eventually used to issue fee patents to many allottees substantially in advance of the trust period’s ordinary expiration under guidelines that determined individual competency largely on the basis of Indian blood quantum.183 Much of the fee‑patented allottee land thereafter quickly passed into non‑Indian ownership. An additional component of the 1887 Act was authorization for the Sec‑ retary of the Interior, upon completion of the allotment process, or “sooner if in the opinion of the President it shall be for the best interests of [the] tribe,” to negotiate with the tribe for the sale of the unallotted, or “surplus,” reservation lands that then could be opened for homesteading by settlers.184 In 1904, Con‑ gress began simply declaring, without tribal consent, surplus lands available

197 U.S. 488 (1905).

180

See S. Rep. No. 1998, 59th Cong., 1st Sess. (1906).

181

Act of May 8, 1906, 34 Stat. 182 (codified in part at 25 U.S.C. § 349); see United States v. Celestine, 215 U.S. 278, 291 (1909) (1906 amendment suggested “that Congress in granting full rights of citizenship to Indians [upon issuance of a trust patent], believed that it had been hasty”); cf. County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 264 (1992) (1906 amendments allowed the Secretary to issue fee patents prior to the end of the 25‑year trust period without subjecting the Indian owner to “plenary state jurisdiction” but, when read in pari materia with section 5, made clear that the land subject to the fee patent became liable for state taxes). 182

183 2 Prucha, supra note 147, at 879–88. These patents, often referred to as “forced‑fee patents,” have been the subject of substantial litigation. See, e.g., Bordeaux v. Hunt, 621 F. Supp. 637 (D.S.D. 1985) (holding actions to set aside forced‑fee patents barred by statute of limitation and by inability to join the United States as a defendant), aff’d, 809 F.2d 1317 (8th Cir. 1987).

Act of Feb. 8, 1887, § 5, 24 Stat. 388, 389–90 (codified as amended at 25 U.S.C. § 348).

184

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for homesteading and retaining the proceeds from the sales for the affected tribe’s benefit.185 Forty‑four of the 118 reservations in which allotments occurred eventually were opened for homesteading by nonmembers.186 Had the only purpose of the General Allotment Act been to diminish tribal ownership of reservation lands, it would have been quite effective. Ownership was reduced from 138 million acres in 1887 to approximately 34 million acres in 1934.187 In addition, however, “[t]he objects of [the allotment] policy were to end tribal land ownership and to substitute private ownership, on the view that private ownership by individual Indians would better advance their assimilation as self‑supporting members of our society and relieve the Federal Government of the need to continue supervision of Indian affairs.”188 The second of those objects clearly was not achieved, because, of the over 40 million acres allotted, only 17.6 million remained in allottee or allottee‑heir ownership by 1934, while another 60 million acres of tribal lands were disposed of as surplus.189 In total, more than 60 percent of the 1887 tribal land base had passed into nonmember ownership by 1934.190 The assumption in section 6 of the Act, moreover, that property ownership, and therefore citizenship, would automatically terminate the need for the special trust relationship between the allottee and the federal government191 was rejected explicitly in United States v. Nice192 and implicitly in other decisions finding the presence of citizenship consistent with continued wardship status.193 The decisional erosion of this assumption was legislatively

2 Prucha, supra note 147, at 867–69.

185

Id. at 896.

186

Id.

187

N. Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 650 n.1 (1976). The allotment and citizenship pro‑ cesses were not the only means for pursuing assimilation objectives. Education, in particular, was used to further that goal both before and after passage of the General Allotment Act. See generally Andrea A. Curcio, Civil Claims for Uncivilized Act: Filing Suit Against the Government for American Indian Boarding School Abuses, Hastings Race & Poverty L.J. 45, 53 (2006) (noting education provisions in over 100 treaties). 188

2 Prucha, supra note 147, at 896.

189

Id.

190

See In re Heff, 197 U.S. 488, 509 (1905) (section 6 of the 1887 Act meant that, “when the United States grants the privileges of citizenship to an Indian, gives to him the benefit of, and requires him to be subject to, the laws, both civil and criminal, of the state, it places him outside the reach of police regulations on the part of Congress; that the emancipation from Federal control, thus created, cannot be set aside at the instance of the government without the consent of the individual Indian and the state”); Sol. Op. M‑36184 (Feb. 15, 1958) (“the sponsors of [the General Allotment Act] assumed that the allotment of the Indians in severalty[] would be but the prelude to the termination of their tribal relations and the liquidation of Federal supervision over them”). 191

241 U.S. 591, 601 (1916).

192

See, e.g., Winton v. Amos, 255 U.S. 373, 391–92 (1921) (“It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property. The guardianship arises from their condition of tutelage or dependency; and it rests with Congress to determine when the relationship shall cease; the mere grant of citizenship not being sufficient to terminate it”); United States v. Waller, 243 U.S. 452, 459–60 (1917) (“The tribal Indians are wards of the government, and as such under its guardianship. It rests with Congress to determine the time and extent of emancipation. Conferring citizenship is not inconsistent with the continuation of such guardianship, 193

Federal Indian Law Policy: Origins and Legal Development

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ratified by the Act of June 2, 1924,194 which granted citizenship to all Indians irrespective of their continuing tribal or wardship status. Consequently, by the end of the General Allotment Act period, a radical transformation of practical and legal interests had occurred on Indian reserva‑ tions. The allotment policy, aimed at eliminating the need for tribal existence and for the guardian‑ward trust relationship,195 not only failed to gain that objective but also introduced into formerly isolated Indian enclaves, at the federal government’s invitation, large numbers of non-Indians, who looked to the states or their political subdivisions for local governance. The granting of citizenship to all Indians additionally served to complicate the jurisdic‑ tional relationship among the states, federal government, and tribes, because, contrary to expectations early in the era, citizen status did not automatically sever tribal relations, relieve the tribal member of wardship status, or place him on the same footing with other citizens with respect to legal rights and obligations. In short, the neatly divided governmental spheres described by Chief Justice Marshall in Worcester now overlapped in ways that he could not have foreseen. The complexity of that tripartite governmental relationship would further increase during the Indian Reorganization Act period, in which Congress attempted to revitalize tribal structures. C. The Indian Reorganization Act and Subsequent Legislation: 1934 to the Present The Indian Reorganization Act of 1934 (“IRA”)196 was intended to reverse the General Allotment Act’s policy of weakening, if not wholly destroying, the status of tribes as self‑governing entities. Sections 1 and 2 of the IRA prohibited

for it has been held that even after the Indians had been made citizens, the relation of guardian and ward for some purposes may continue”); Tiger v. W. Inv. Co., 221 U.S. 286, 316 (1911) (“[c]onceding that Marchie Tiger, by the act conferring citizenship, obtained a status which gave him certain civil and political rights, inhering in the privileges and immunities of such citizenship, . . . he was still a ward of the nation so far as the alienation of those lands was concerned, and a member of the existing Creek Nation”); see generally James B. Wadley, Indian Citizenship and the Privileges and Immunities Clauses of the United States Constitution: An Alternative to the Problems of the Full Faith and Credit and Comity?, 31 S. Ill. U. L.J. 31, 48, 62 (2006) (argu‑ ing for the existence of an “Indian citizenship” that is statutory, rather than constitutional, in source and that “to the extent the Congress has expressly created rights, pursuant to its constitutional authority, and conferred those rights on a particular group of citizens (where membership in the group is determined by that citizenship status), any such rights should qualify for protection under the Privileges and Immunities Clause” of the Fourteenth Amendment); N.D. Houghton, The Legal Status of Indian Suffrage in the United States, 19 Cal. L. Rev. 507, 515 (1931) (“[i]t appears to be clearly established . . . that the condition frequently designated by the courts as ‘guardianship’ of the national government over the Indian remains unimpaired by the grant of citizenship so far, at least, as the guardianship relates to the power of Congress over the lands and property of such citizen Indian”). 194 43 Stat. 253 (codified at 8 U.S.C. § 1401(b)); see generally Willard Hughes Rollings, Citizenship and Suffrage: The Native American Struggle for Civil Rights in the American West, 1830–1965, 5 Nev. L.J. 126 (2004) (describing gradual treaty- and statute-based extension of citizenship status to Indians and voting barriers that continued even after citizenship obtained).

Montana v. United States, 450 U.S. 544, 559 n.9 (1981).

195

Act of June 18, 1934, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461–479).

196

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further allotment of reservation lands and indefinitely extended existing trust periods for allotments where fee patents had not issued.197 The Secretary of the Interior was further authorized to restore to tribal ownership any remaining surplus reservation lands, except those located within a federal reclamation project,198 and to reacquire “through purchase, relinquishment, gift, exchange or assignment” interests in real property within or without reservations for the purpose of providing land for Indians.199 Tribes were given the opportunity to adopt constitutions and bylaws that would become effective upon ratification by membership vote and approval by the Secretary.200 Aside from authority

197 Id. §§ 1, 2, 48 Stat. at 984 (codified at 25 U.S.C. §§ 461, 462). The authority to issue fee patents or other interests in lands was later given in the Act of May 14, 1949, 62 Stat. 236 (codified at 25 U.S.C. § 483). Allotted lands held in trust or subject to restrictions against alienation may be mortgaged upon secretarial approval and foreclosed upon in accordance with the mortgage’s terms and the laws of the tribe with juris‑ diction over the land or, in the absence of tribal foreclosure law, state law. 25 U.S.C. § 483a; see Harrison v. Emerald Outdoor Adv., LLC (In re Emerald Outdoor Adv., LLC), 444 F.3d 1077 (9th Cir. 2006) (agency approval of mortgage became effective upon issuance of certificate of approval, and priority between conveyances related to the land were governed by state statutes absent relevant tribal law); Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006) (mortgagee heirs possessed standing to sue BIA over leasing trust lands and paying proceeds to mortgagor).

IRA § 3, 48 Stat. at 984 (codified as amended at 25 U.S.C. § 463).

198

Id. § 5, 48 Stat. at 985 (codified at 25 U.S.C. § 465). The lands so acquired, if outside a reservation, could be used to create new reservations or expand existing ones. Id. § 7, 48 Stat. at 986 (codified at 25 U.S.C. § 467). 199

200 Id. § 16, 48 Stat. at 987 (codified as amended at 25 U.S.C. § 476). 1988 amendments to 25 U.S.C. § 476 substantially modified the secretarial approval process, making constitutions or amendments thereto effective 45 days after the associated election unless disapproved by the Secretary. Pub. L. No. 100‑581, § 101, 102 Stat. 2938 (1988); see King v. Norton, 160 F. Supp. 2d 755, 762 (E.D. Mich. 2001) (“Congress has delegated to the Secretary . . . certain duties in the regulation of tribal governments, including the power to call and oversee tribal elections in which tribal constitutions are to be adopted or amended”). The Secretary is also required under the 1988 modification to review the proposed constitution or amendment prior to the election and notify the tribe in writing whether the proposal is contrary to applicable law. See generally Timothy W. Joranko & Mark C. Van Norman, Indian Self-Determination at Bay: Secretarial Authority to Disapprove Tribal Constitutional Amendments, 29 Gonz. L. Rev. 81 (1993/94) (arguing for repeal of secretarial authority to disapprove tribal constitutional amendments). Exercise of that review responsibility has led to complex and sometimes extended litigation. See, e.g., Tarbell v. DOI, 307 F. Supp. 2d 409, 423–26 (N.D.N.Y. 2004) (describing series of lawsuits over secretarial action related to constitutional amendments affecting tribal governance structure, and criticizing BIA for failing to follow instructions issued in prior decision). Section 476 was amended by the Native Technical Corrections Act of 2004, Pub. L. 108-204, 118 Stat. 542 (2004), to add a new subsection:

(h) Tribal sovereignty Notwithstanding any other provision of this Act— (1) each Indian tribe shall retain inherent sovereign power to adopt governing documents under procedures other than those specified in this section; and (2) nothing in this Act invalidates any constitution or other governing document adopted by an Indian tribe after June 18, 1934, in accordance with the authority described in paragraph (1). Despite its arguable facial breadth, the Secretary’s construction that he has the discretion “to reject a proposed constitution that does not enjoy sufficient support from a tribe’s membership” has been upheld under Chevron principles. Cal. Valley Miwot Tribe v. United States, 515 F.3d 1262, 1267 (D.C. Cir. 2008). The court stressed the “sensibility of the Secretary’s understanding” under facts that showed a potential tribal membership of 250 and that only the plaintiff’s chairwoman “and her small group of supporters had a hand in adopting her proposed constitution.” Id. It added that “tribal organization under the Act must reflect majoritarian values.” Id. at 1267–68.

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conferred by existing law and certain specific powers, a constitution could vest within a tribe the right to select counsel subject to secretarial approval, the right to prevent the sale, lease, or other disposition of tribal property, and the right to negotiate with federal, state, and local governments. Tribes addition‑ ally were permitted, after a favorable membership vote, to request issuance of a charter of incorporation from the Secretary, which could contain the power to acquire real and personal property and “such further powers as may be incidental to the conduct of corporate business,” but not the power “to sell, mortgage, or lease for a period exceeding ten years any of the land included within the limits of the reservation.”201 Reservations were allowed to exclude themselves from IRA coverage, if a majority of the resident Indians so elected in a referendum held no later than one year after the statute’s enactment.202 Two hundred fifty‑eight elections were conducted, with 181 tribes opting for and 77 opting against coverage; 14 other tribes failed to hold elections and therefore were deemed covered.203 Approximately 60 percent of the Indian population was included under IRA coverage, with the Navajo Nation accounting for 52 percent of those not covered.204 The IRA’s enduring significance lies as much in the policy change it em‑ bodied as in its actual provisions.205 Reorganization under section 16 likely did not form a basis for expansion of those powers already existing inherently in

IRA § 17, 48 Stat. 984, 988 (codified as amended at 25 U.S.C. § 477).

201

Id. § 8, 48 Stat. 984, 988 (codified at 25 U.S.C. § 478); see Sol. Op. M‑27810 (Dec. 13, 1934) (discussing in part eligibility requirements for voting in IRA‑coverage elections). The period for holding the election was extended to two years by the Act of June 15, 1935, 49 Stat. 378. 202

2 Prucha, supra note 147, at 964–65.

203

Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich. L. Rev. 955, 972 (1972). Section 13 of the IRA, 48 Stat. 984, 986–87 (codified as amended at 25 U.S.C. § 473), excluded Oklahoma Indian tribes from coverage under many of the statute’s provisions, including those relating to adoption of tribal constitutions and tribal incorporation. Those tribes were subsequently extended the right to elect coverage under most provisions of the statute. Act of June 26, 1936, § 3, 49 Stat. 1967 (codified at 25 U.S.C. § 503). Alaskan natives also were excluded initially from coverage under several provisions but were later included. Act of May 1, 1936, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a). 204

205 The IRA, as initially introduced, constituted far more sweeping legislation than the bill finally enacted. See Bradley B. Furber, Two Promises, Two Propositions: The Wheeler‑Howard Act as a Reconciliation of the Indian Law Civil War, 14 U. Puget Sound L. Rev. 211, 240–52 (1991); Comment, supra note 204, at 961–69. The original bill contained four titles dealing with self‑government, education, Indian lands and tribal courts. H.R. 7902, 73d Cong., 2d Sess. (1934); S. 2755, 73d Cong., 2d Sess. (1934). The education and tribal court titles were eventually deleted in their entirety, and the tribal self‑government and Indian lands titles were substantially modified in the final legislation. S. 3645, 73d Cong., 2d Sess. (1934). Among the most significant provisions of the initial legislation were those granting the Secretary authority to issue self‑government charters to Indian communities with quite broad powers, including the power “[t]o pro‑ mulgate and enforce ordinances and regulations for functions hereafter specified, and any other functions customarily exercised by local governments[,]” to establish tribal courts with civil and criminal jurisdiction over “cases arising under the ordinances of the community,” and, “as a Federal agency, to condemn and take title to any lands or properties[.]” H.R. 7902, title I, § 4(a), (d), (f). The Secretary’s discretion to grant those and other powers, with their attendant impact on nonmember reservation residents and existing state governmental structures, was viewed unfavorably, and the entire charter concept was discarded except to the limited extent charters of incorporation are available under section 17 of the IRA. See Furber, supra, at 244–52.

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tribes,206 and the issuance of new allotments had been largely discontinued by administrative order before the IRA’s passage.207 On at least a theoretical level, however, the statute sought to replace the direct supervision of tribes and their members by the federal government with increased reliance on tribal gover‑ nance—i.e., “to disentangle the tribes from the official bureaucracy”208—and, by such disengagement, to lay a foundation “for inclusion of tribes in the state jurisdictional system, on the order of municipalities or county governments.”209 The IRA’s skeletal framework therefore would depend necessarily upon a broad range of extrinsic circumstances for meaningful implementation, most obviously additional substantive and funding legislation. Despite that need, 19 years would pass before the next significant legislative initiative occurred, and that initiative was not the kind IRA proponents would have supported.210 In August 1953, a resolution and three statutes were adopted manifesting Congress’s desire to remove the federal government from its preeminent role in Indian country. House Concurrent Resolution 108 thus declared it to be the sense of Congress that, at the earliest possible time, all of the Indian tribes and the individual members thereof located within the States of California, Florida, New York, and Texas, and all of the following named Indian tribes and individual members thereof, should be freed from Federal

206 See Cohen, supra note 150, at 129–30 (“the [IRA] had little or no effect upon the substantive pow‑ ers of tribal self‑government vested in various Indian tribes”); Comment, supra note 204, at 972 (“the IRA apparently added nothing in terms of specific substantive powers”); see also 55 I.D. 14 (1934) (construing the section 16 clause “powers vested in any Indian tribe or tribal council by existing law”). 207 2 Prucha, supra note 147, at 951. Indeed, Cohen disclaimed any intent in his treatise to provide “a detailed study” of the allotment process, “[s]ince allotments had been discontinued under the mandate of [the IRA], and under a policy preceding this enactment which applies even to tribes not under the act[.]” Cohen, supra note 150, at 217.

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 153 (1973).

208

Charles F. Wilkinson & Eric R. Biggs, The Evolution of the Termination Policy, 5 Am. Indian L. Rev. 139, 145 (1977) ; see also Alex Tallchief Skibine, Redefining the Status of Indian Tribes Within “Our Federalism”: Beyond the Dependency Paradigm, 38 Conn. L. Rev. 667, 675 (2006) (IRA “represented the first comprehen‑ sive attempt at incorporating Indian tribes as political entities within the legal and political system of the United States” and “embodied the endorsement of a policy promoting tribal self-government and a govern‑ ment-to-government relationship between Indian tribes and the United States”). The extent to which the IRA and later federal statutes have advanced the underlying objective of tribal self-determination has been questioned by commentators. Compare Matthew L.M. Fletcher, The Insidious Colonialism of the Conqueror: The Federal Government in Modern Tribal Affairs, 19 Wash. U. J.L. & Pol’y 273, 309 (2005) (discussing four recent examples of perceived bureaucratic interference with tribal self-determination and economic devel‑ opment, and concluding that “[c]olonialism is complete, it appears, when the front end of colonialism—the wars, the disease, and the genocide—gives way to the back end—the incompetent trustee”) (footnote omit‑ ted), with Ezra Rosser, The Trade-Off Between Self-Determination and the Trust Doctrine: Tribal Government and the Possibility of Failure, 58 Ark. L. Rev. 291, 350, 351 (2005) (arguing that “a choice does exist between self-determination and trust” and that “[i]f tribes do not engage themselves in the trade-off decisions, the government will define the trade-off for them”), and Ezra Rosser, This Land Is My Land, This Land Is Your Land: Markets and Institutions for Economic Development on Native American Land, 47 Ariz. L. Rev. 245 (2005) (suggesting alternative economic theory to foster on-reservation development given perceived ineffective‑ ness of “neo-classical economics”—or market-based initiatives—in achieving economic growth). 209

210 Cf. Felix S. Cohen, The Erosion of Indian Rights, 1950–53: A Case Study in Bureaucracy, 62 Yale L.J. 348 (1953) (detailed attack on Bureau of Indian Affairs policy during the early 1950s).

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supervision and control and from all disabilities and limitations specially applicable to Indians: The Flathead Tribe of Montana, the Klamath Tribe of Oregon, the Menominee Tribe of Wisconsin, the Potawatomi Tribe of Kansas and Nebraska, and those members of the Chippewa Tribe who are on the Turtle Mountain Reservation, North Dakota.211

The Secretary of the Interior was further directed to “examine all existing legislation dealing with such Indians, and treaties between the Government of the United States and each such tribe, and report to Congress at the earli‑ est practicable date, but not later than January 1, 1954, his recommendations for such legislation as, in his judgment, may be necessary to accomplish the purposes of this resolution.” Two weeks later, Congress enacted Public Law 280,212 which mandatorily transferred civil and criminal adjudicatory jurisdic‑ tion over Indian country matters to five states and authorized other states, at their discretion, to assume such jurisdiction. House Concurrent Resolution 108 had also stated in its “whereas” provisions the need, “as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States.” That objective, although general in nature, was implemented immediately by modification of liquor restrictions that had discriminated against Indians213 and by repeal of a prohi‑ bition against the purchase or pledge by Indians of articles used in hunting, implements of husbandry, cooking utensils and clothing, and the sale of arms and ammunition in country occupied by hostile or uncivilized Indians.214 Between 1954 and 1962, 14 acts were passed requiring development of plans for terminating the federally recognized status of approximately 109 tribes and bands.215 The actual terminations occurred between 1955 and 1970 and affected approximately 3.2 percent of all federally recognized Indians and a similar percentage of Indian trust land.216 Even as most of the termination plans were being developed, various members of Congress and the Depart‑ ment of the Interior began questioning the concurrent resolution’s approach, and the termination policy was implicitly discarded by the early 1970s—as

211

H.R. Con. Res. 108, 67 Stat. B132 (1953).

Act of August 15, 1953, Pub. L. No. 83‑280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321–1325, & 28 U.S.C. § 1360). Analysis of Public Law 280’s operation in criminal and civil contexts appears in Chapter 4, part I.C.1 and Chapter 6, part III.B. 212

213 Act of August 15, 1953, Pub. L. No. 83‑277, 67 Stat. 586 (1953) (codified as amended at 18 U.S.C. § 1161); see S. Rep. No. 722, 83d Cong., 1st Sess., reprinted in 1953 U.S.C.C.A.N. 2399. 214 Pub. L. No. 83‑281, 67 Stat. 590 (1953); see S. Rep. No. 793, 83d Cong., 1st Sess., reprinted in 1953 U.S.C.A.N. 2414.

Wilkinson & Biggs, supra note 209, at 151.

215

Id.; see also 2 Prucha, supra note 209, at 1058–59.

216

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reflected most vividly in the restoration of the Menominee Tribe to recognized status.217 Public Law 280 was amended by the Indian Civil Rights Act of 1968 (“ICRA”)218 to require a favorable tribal member vote as a condition prec‑ edent for further extensions of adjudicatory jurisdiction by states over Indian country.219 Recognizing, however, that tribes were not constrained by the fed‑ eral constitution in their decision-making220 but were nonetheless autonomous political entities with inherent authority over, most importantly, internal mat‑ ters involving their members, Congress additionally included within the ICRA provisions aimed at preventing abuses of such authority. Those provisions are embodied in three sections, with the first containing several definitions,221 the second containing the statute’s substantive protection,222 and the third stating that “[t]he privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.”223 The Supreme Court held in Santa Clara Pueblo v. Martinez224 that the habeas corpus remedy was the exclusive means of challenging in federal court an alleged violation of the statute’s substantive provisions—a holding that restricts its enforceability outside of available tribal remedies to situations in which actual or constructive custody by a tribal official is involved. The ICRA’s effect on tribal autonomy has thus been somewhat limited.225 Finally, three other statutes have furthered the IRA’s policy of encourag‑ ing the development of tribal autonomy or protecting its integrity. The Indian Self‑Determination and Education Assistance Act of 1975 (“ISDEAA”),226 as substantially amended in 1988,227 requires the Secretaries of Health and Hu‑ man Services and the Interior, upon request by tribal resolution, to contract with tribes for the purpose of providing services that, but for such contracts,

217 Pub. L. No. 93‑197, 87 Stat. 770 (1973) (codified at 25 U.S.C. §§ 903–903f ); see 2 Prucha, supra note 147, at 1112–15, 1135–38. 218 Pub. L. No. 90‑284, §§ 201–701, 82 Stat. 73, 77–81 (1968) (codified as amended at 25 U.S.C. § 1153 and 25 U.S.C. §§ 1301–1303, 1321–1326, 1331, 1341); see S. Rep. No. 721, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 1837, 1863–65. 219 Pub. L. No. 90‑284, § 406, 82 Stat. 73, 80 (1968) (codified at 25 U.S.C. § 1326); see Kennerly v. Dist. Ct., 400 U.S. 423 (1971) (per curiam). The 1968 amendments also allowed states to retrocede jurisdiction, upon the United States’ acceptance, of jurisdiction mandated under or assumed voluntarily pursuant to Public Law 280. Pub. L. No. 90‑284, § 403, 82 Stat. 73, 79 (1968) (codified at 25 U.S.C. § 1323).

See supra note 28 and accompanying text.

220

Pub. L. No. 90‑284, § 201, 82 Stat. 73, 77 (1968) (codified as amended at 25 U.S.C. § 1301).

221

Id. § 202, 82 Stat. at 73, 77–78 (codified as amended at 25 U.S.C. § 1302).

222

Id. § 203, 82 Stat. at 78 (codified at 25 U.S.C. § 1303).

223

436 U.S. 49 (1978).

224

A detailed discussion of the ICRA appears in Chapter 7, part II.

225

Pub. L. No. 93‑638, 88 Stat. 2203 (1975) (codified in relevant part as amended at 25 U.S.C. §§ 450–450n). 226

Pub. L. No. 100‑472, 102 Stat. 2285 (1988).

227

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would be provided by the federal government pursuant to authority under specified statutes, unless, within 60 days of the tribal proposal’s receipt, the affected Secretary concludes that

(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;



(B) adequate protection of trust resources is not assured;



(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;



(D) the amount of funds proposed under the contract is in excess of the ap‑ plicable funding level for the contract, as determined under [25 U.S.C. § 450j-1(a)]; or



(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities covered under [25 U.S.C. § 450f(a)(1)] because the proposal includes activities that cannot lawfully be carried out by the contractor.228

The secretarial obligation to issue a contract for such services is manda‑ tory once those criteria are met.229 Regulatory functions, referred to broadly as “programs, functions, services, and activities,”230 subject to the ISDEAA’s mandate include, perhaps most significantly, reservation law enforcement,231 health services,232 and education.233 The mandatory contracting elements of

Id., § 201(a)(2), 102 Stat. 2285, 2288 (1988) (codified at 25 U.S.C. § 450f(a)(2)).

228

See Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 991 (9th Cir. 2005) (Secretary of the Interior had no mandatory duty to enter into ISDEAA contracts with respect to salmon restoration projects, because they were not “ ‘for the benefit of Indians because of their status as Indians[;]’ ” rather, the Secretary had “the discretion to negotiate” for such contracts) 229

See Aleutian Pribilof Ass’n v. Kempthorne, 537 F. Supp. 2d 1, 4 (D.D.C. 2008).

230

Hopland Band of Pomo Indians v. Norton, 324 F. Supp. 2d 1067, 1074 (N.D. Cal. 2004) (ISDEAA man‑ datory contract provisions apply to contracts authorized under the Indian Law Enforcement Reform As‑ sistance Act, 25 U.S.C. §§ 2801–2809, so that “[i]f the Secretary (through the BIA) refuses to enter into such a contract, the Secretary may do so only on one of the five statutory grounds provided by the ISDEAA”). 231

232 S. Ute Tribe v. Leavitt, 497 F. Supp. 2d 1245 (D.N.M. 2007) (secretarial declination to enter into ISDEAA contract for operation of health clinic overturned when based on incorrect construction of the term “applicable funding level” in 25 U.S.C. § 450f(a)(2)(D) as excluding contract support costs); see generally Starla Kay Roels, HIPAA and Patient Privacy: Tribal Policies as Added Means for Addressing Indian Health Disparities, 31 Am. Indian L. Rev. 1, 11 (2006–2007) (describing role of ISDEAA-based arrangements in the area of Indian health care, and arguing that “[t]he ISDEAA protects tribal compactors and contractors from having to comply with burdensome administrative requirements, such as extensive reporting, and prohibits the imposition of agency policies or rules unless agreed to by the tribes”) (footnote omitted); cf. Megan J. Renfrew, The 100% Federal Medical Assistance Percentage: A Tool for Increasing Federal Funding for Health Care for American Indians and Alaska Natives, 40 Colum. J.L. & Soc. Probs. 173 (2006) (discussing legal and other strategies to increase federal funding for Medicaid-eligible American Indians and Alaska Natives for medical services received both from and through the Indian Health Service). 233 Cheyenne River Sioux Tribe v. Kempthorne, 496 F. Supp. 2d 1059, 1068 (D.S.D. 2007) (secretarial dec‑ lination to enter into ISDEAA contract to administer education program failed to explain adequately the grounds for the agency action, and contract therefore deemed approved by operation of law).

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the ISDEAA are complemented by secretarial authority to issue grants to tribes for various purposes, including strengthening tribal government and a tribe’s ability to enter into self‑determination contracts.234 Federal tort li‑ ability coverage is extended to tribal employees carrying out functions under self-determination contracts.235 Care thus is necessary when connecting the conduct giving rise to a claim to the ISDEAA contract.236 Third parties aside, the ISDEAA has become a fertile source of often complex litigation between tribes and the United States.237 In addition to the ISDEAA, other statutes focus specifically on fostering tribal economic self-sufficiency, including the Indian Financing Act of 1974238

234 25 U.S.C. § 450h. The ISDEAA has been amended, inter alia, to authorize the Secretary of the Interior to negotiate tribal self-governance programs with tribes without regard for BIA involvement and to allow tribes to enter into funding arrangements with other federal agencies. Pub. L. No. 103-413, 108 Stat. 4270 (1994) (codified as amended at 25 U.S.C. §§ 458aa–458hh); see generally Todd M. Johnson & James Hamilton, Self-Governance for Indian Tribes: From Paternalism to Empowerment, 27 Conn. L. Rev. 1251, 1262–78 (1995) (discussing development of current self-governance legislation). 235 Public Law No. 101‑512, § 314, 104 Stat. 1915, 1959–60 (1990) (“an Indian tribe, tribal organization or Indian contractor is deemed . . . to be part of the Bureau of Indian Affairs in the Department of Interior or the Indian Health Service in the Department of Health and Human Services while carrying out any . . . contract or agreement [under the ISDEAA and certain other specified statutes] and its employees are deemed employees of the Bureau or Service while acting within the scope of their employment in carrying out the contract or agreement”). Tort claims related to performance of the contracts therefore are deemed made against the United States, are defended by the Department of Justice, and are subject to the provi‑ sions of the Federal Tort Claims Act (FTCA). Id.; see FGS Constructors, Inc. v. Carlow, 64 F.3d 1230, 1234 (8th Cir. 1995) (the 1988 amendment constituted acknowledgment by Congress “that tribal governments, when carrying out self-determination contracts, were performing a federal function and that a unique legal trust relationship existed between the tribal government and the federal government in these agreements”). Once the statute is deemed applicable, ordinary FTCA principles govern. E.g., Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668, 672 (8th Cir. 2008). 236 See Snyder v. Navajo Nation, 382 F.3d 892, 897 (9th Cir. 2004) (ISDEAA sovereign immunity waiver provision in 25 U.S.C. § 450f note extended only to actions related to the FTCA and thus did not encompass action seeking to enforce the Fair Labor Standards Act); Demontiney v. United States, 255 F.3d 801, 813–14 (9th Cir. 2001) (rejecting claim that tribal immunity from suit for alleged breach of contract abrogated under ISDEAA, because complainant had not entered into a self-determination contract with tribe and because § 450f(c) limits abrogation to suits “arising under contracts authorized by this subchapter”). 237 See, e.g., Thompson v. Cherokee Nation, 334 F.3d 1075 (Fed. Cir. 2003) (failure to pay indirect con‑ tract support costs), aff’d, 543 U.S. 631 (2005); Cherokee Nation v. Thompson, 311 F.3d 1054 (10th Cir. 2002) (same), rev’d, 543 U.S. 631 (2005); see also Menominee Indian Tribe v. United States, 539 F. Supp. 2d 152, 154–55 (D.D.C. 2008) (Contract Disputes Act’s six-year limitation period is jurisdictional and barred certain claims for allegedly unpaid indirect ISDEAA contract costs; laches barred others); Pueblo of Zuni v. United States, 467 F. Supp. 2d 1114, 1116–17 (D.N.M. 2006) (Contract Disputes Act exhaustion required under 25 U.S.C. § 450m–1(d) when money damages for breach of self-determination contract sought); Samish Indian Nation v. United States, 58 Fed. Cl. 114, 119 (2003) (Court of Federal Claims has jurisdiction to address only monetary claims for breach of ISDEAA contracts under the waiver of sovereign immunity in 25 U.S.C. § 450m–1(d); where alleged wrong is failure to enter into such a contract, only district courts have jurisdiction), aff’d in part and rev’d in part on other grounds, 419 F.3d 1355 (Fed. Cir. 2005). 238 Pub. L. No. 93‑262, 88 Stat. 77 (codified as amended at 25 U.S.C. §§ 1451–1544). That law additionally provides a revolving loan fund, a loan guaranty and insurance fund, and an Indian business grant program to encourage economic development by Indians or Indian organizations. See H. R. Rep. No. 907, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 2873.

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and the Indian Tribal Governmental Tax Act.239 Perhaps most important for many tribes in that regard, however, is the Indian Gaming Regulatory Act of 1988,240 which authorizes commercial gambling activities by tribes on Indian lands, including certain kinds of casino-like gaming, if pursuant to a compact with the involved state. Congress further addressed a noneconomic but essen‑ tial component of tribal self-determination in the Indian Child Welfare Act of 1978,241 which limits the power of state courts to adjudicate child custody pro‑ ceedings involving Indian children. That the latter two statutes are specifically concerned with allocating or providing mechanisms for allocating jurisdiction between states and tribes reflects the ever‑increasing complexity of the legal relationship among the federal government, states, and tribes flowing from the common law origins of the Marshall trilogy and subsequent congressional and executive actions.242

239 Pub. L. No. 97-473, 96 Stat. 2608 (1983) (codified at 26 U.S.C. § 7871); see generally Gavin Clarkson, Tribal Bonds: Statutory Shackles and Regulatory Restraints on Tribal Economic Development, 85 N.C. L. Rev. 1009, 1075–76 (2007) (criticizing an Internal Revenue Technical Advice Memorandum that, inter alia, deemed bonds issued for purposes of “commercial or industrial activity” not to have tax-free status even when state and local governments engage in such activities, and observing that “direct tribal tax-exempt issuances are thirty-three times more likely to be audited within four years of issue” than tax-exempt municipal offerings and that 100 percent of “conduit” financing—i.e., bonds issued by tribes to fund third-party activity—have been or are being challenged); Matthew L.M. Fletcher, The Supreme Court and Federal Indian Law, 85 Neb. L. Rev. 121, 144–47 (2006) (discussing various post-IRA statutes directed at furthering tribal economic de‑ velopment and bonding capacity). 240 Pub. L. No. 100‑497, 102 Stat. 2467 (codified at 18 U.S.C. § 1166 and 25 U.S.C. §§ 2701–2721). The operation of that statute is discussed in Chapter 12. 241 Pub. L. No. 95‑608, 92 Stat. 3069 (1978) (codified at 25 U.S.C. §§ 1901–1963). The operation of that statute is discussed in Chapter 13. 242 See also Chapter 10 (discussing role of tribal governments under various federal environmental statutes).

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Chapter 2 Indian, Indian Tribe, and Indian Country

Fundamental to Indian law are the terms “Indian,” “Indian tribe,” and “Indian country.” For criminal law purposes, the existence of federal, state, or tribal jurisdiction depends on the place of the crime—i.e., whether it occurred in Indian country—and the Indian or non-Indian status of the defendant or, in some instances, the victim. While civil adjudicatory or regulatory issues are not so neatly resolved, the presence of Indian, Indian tribe, or Indian country status is nonetheless an important, and sometimes controlling, jurisdictional consideration. I. INDIAN The question of who is an “Indian” depends in large measure on the context in which the issue arises. For criminal and many civil law purposes, the traditional common law definition discussed below controls. An increasing number of federal statutes, however, define the term “Indian” for applying those laws. More generally, Indians often have been referred to as a “race.” This characterization arguably raised difficulties for Indians themselves, who may have had no conception of “race” prior to Euro-American contact. In the 2000 Census, 2,475,956 persons identified themselves as one-race Indians, while 4,119,301 persons identified themselves as either one-race or multiple-race Indians. In addition, 7,876,568 persons claimed American Indian “ancestry or ethic origin.” The same census data indicated that 40 percent of persons identifying themselves as American Indian or Alaska Native reported such

See United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846).



See Carole Goldberg, Descent Into Race, 49 UCLA L. Rev. 1373, 1374 (2002).



U.S. Census Bureau, American FactFinder, DP-1, Profile of General Demographic Characteristics: 2000, Data Set Census 2000 Summary File 1 (SF 1) 100-Percent Data, Geographic Area: United States. 

U.S. Census Bureau, Ancestry: 2000, Census 2000 Brief at 3 (June 2004).



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status in combination with one or more other races. The “in combination” percentage may be 95 percent by 2100. These demographic data likely will have marked significance as tribes and, ultimately, courts struggle with the ancestry component of “Indian” status. In this regard, the term “Indian” must be distinguished from the term “tribal member.” The latter identifies a person accepted into membership of a recognized Indian tribe—a status tribes themselves determine. The number of persons recognized by tribes as members is unknown, but it is almost certainly

 U.S. Census Bureau, The American Indian and Alaska Native Population: 2000, Census 2000 Brief, Tables 1 and 2 (Feb. 2002), available at http://www.census.gov/prod/2002pubs/c2kbr01-15.pdf (last visited Jul. 28, 2008).  L. Scott Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Colum. L. Rev. 702, 757–61, 766 (2001) (citing analysis that estimated percent of multiple or combined racial composition among persons with Indian ancestry, and reasoning that “[t]he tribe that tries to hold the line on racial purity risks extinction”); see also Carole Goldberg, Members Only? Designing Citizenship Requirements for Indian Nations, 50 U. Kan. L. Rev. 437, 460 (2002) (discussing possible forms of tribal “citizenship” criteria, and observing that “biological relationship has always formed some part, often a significant part, of tribal belonging” and that “[e]xtended kinship groups or clans formed the basic units of nearly all tribal societies”); see also Keneisha M. Green, Comment, Who’s Who: Exploring the Discrepancy Between the Methods of Defining African Americans and Native Americans, 31 Am. Indian L. Rev. 93, 104, 106–10 (2006–2007) (pointing to analyses that, as a result of intermarriage, blood quanta will be reduced substantially over the next century and that the current BIA hiring preference based on one-quarter blood quantum will be unavailable to more than 60 percent of individuals with Indian heritage; suggesting various “[p]ossible [s]olutions,” including greater reliance on self-identification, elimination of all racial classifications, and application of “strictly biological definitions . . . in a uniform manner”); Eric Beckenhauer, Redefining Race: Can Genetic Testing Provide Biological Proof of Indian Ethnicity?, 56 Stan. L. Rev. 161, 170 (2003) (observing that the rate of intermarriage of Indians is higher than for any other racial or ethnic group, “with more than half marrying outside their race[;]” and citing a congressional study which projects that the proportion of “half-blooded Indians will decline from 87 percent in 1980 to a mere 8 percent by 2080”); cf. compare Carla D. Pratt, Loving Indian Style: Maintaining Racial Caste and Tribal Sovereignty Through Sexual Assimilation, 2007 Wis. L. Rev. 409, 441 (2007) (discussing four of the Five Civilized Tribes’ miscegenation laws, and positing as their purpose a desire “to maintain the relatively privileged social and legal status of Indians as opposed to blacks” and “to protect and maintain tribal sovereignty”), with Kevin Noble Maillard, The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law, 12 Mich. J. Race & L. 351 (2007) (discussing patterns of intermarriage between Indians and non-Indians prior to the twentieth century, the rise of the eugenics movement, and the exception from “hypodescent” created under Virginia’s antimiscegenation statute for persons with limited amounts of Indian ancestry).  Enrollment decisions themselves are the province of the tribe itself; the authority of the tribe to admit, deny, or revoke membership has been described as “central to its existence as an independent political community.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978); accord Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007); see also Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007) (“[a]n Indian tribe has the power to define membership as it chooses, subject to the plenary power of Congress” and thus “did not need the BIA’s permission” to exclude plaintiffs from membership); Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005) (federal court lacked subject matter jurisdiction over action against federal officials regarding failure of tribe to enroll prospective member); Rosales v. United States, 477 F. Supp. 2d 119, 129 (D.D.C. 2007) (rejecting challenge to amendment to tribal constitution lowering blood quantum for membership from one half to one quarter based, in part, on deference to BIA’s conclusion that “the 1994 revisions [to the Indian Reorganization Act] expanded the village’s right to define its own membership by lowering blood quantum requirements); Lamere v. Superior Court, 31 Cal. Rptr. 2d 880 (Ct. App. 2005) (state court had no jurisdiction under Public Law 280 to resolve dispute over disenrollment); but see generally Eric Reitman, Note, An Argument for the Partial Abrogation of Federally Recognized Indian Tribes’ Sovereign Power Over Membership, 92 Va. L. Rev. 793, 863 (2006) (discussing instances where tribes allegedly have abused their authority to determine membership, and recommending that “Congress, at the very least, establish some form of potent remedial mechanism to prevent [such] abuse”).

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much smaller than the number of persons who claimed Indian ancestry or ethnicity in the 2000 Census. A. Federal Law and the Definition of Indian 1. Federal common law–based Indian status Whether a person is an “Indian” for the purposes of federal Indian law turns on the existence of a “special relationship” between such person and the federal government by virtue of the latter’s trust obligation—what Chief Justice Marshall described as a “relation to the United States resembl[ing] that of a ward to his guardian.” That relationship, together with the attendant federal regulation, is “rooted in the unique status of Indians as a ‘separate people’ with their own political institutions.” In the seminal United States v. Rogers,10 the Supreme Court gave structure to that broad concept by holding that, for purposes of federal criminal jurisdiction, “Indian” status requires more than simple political affiliation but additionally includes a racial, or ancestral, component. The Court thus deemed a white man, who had moved into Indian territory “at a mature age” and adopted the customs of the Cherokee Nation, not an Indian and not eligible to take advantage of an exclusion from federal prosecution for murder for “crimes committed by one Indian against the person or property of another Indian.”11 It reasoned that “the exception is confined to those who by the usages and customs of the Indians are regarded as belonging to their race” and “does not speak of members of a tribe, but of the race generally,—of the family of Indians; and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs.”12 Although Rogers made clear that political affiliation with a tribe was not a sufficient ground for Indian status, it left unanswered whether such an affiliation was a necessary element. The United States Supreme Court has not answered that question definitively,13 but lower federal and state courts have addressed it. In the absence of statutory provisions defining “Indian” for specific

 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); see also Morton v. Mancari, 417 U.S. 535, 551–53 (1974); Bd. of County Comm’rs v. Seber, 318 U.S. 705, 718 (1943).  United States v. Antelope, 430 U.S. 641, 646 (1977); see generally Matthew L.M. Fletcher, The Original Understanding of the Political Status of Indian Tribes, 82 St. Johns L. Rev. 153, 164 (2008); Patrick Macklem, Distributing Sovereignty: Indian Nations and Equality of Peoples, 45 Stan. L. Rev. 1311, 1333–35 (1993).

45 U.S. (4 How.) 567 (1846).

10

Id. at 572. Not only was the defendant a non-Indian, but so too was the victim who, like the defendant, had settled in Cherokee territory “without any intention of returning to [the] United States[,]” had “intermarried with an Indian Cherokee woman, according to the Cherokee form of marriage[,]” and “was treated[,] recognized, and adopted by the said tribe as one of them.” Id. at 568. 11

Id. at 573 (emphasis supplied).

12

See United States v. Antelope, 430 U.S. 641, 645 (1977).

13

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51

purposes, the courts ask whether a person (1) has “some” Indian blood and (2) is “recognized” as an Indian by a tribe or the federal government.14 The first step, i.e., the requirement of “some” Indian blood, leaves unresolved how much Indian ancestry is necessary. From a judicial perspective, the most common minimum to satisfy the blood quantum requirement appears to be one-eighth Indian blood. Such was acceptable to the Eighth Circuit in 191215 and the Ninth Circuit in 2005.16 It nevertheless was insufficient for the Wyoming Supreme Court in 1982.17 To the extent that blood quantum is substantially lower than one-eighth, satisfying the ancestry component of Indian status may prove problematic.18 Justice Breyer, for example, remarked in Rice v. Cayetano19 that to “define that membership in terms of one possible ancestor out of 500 . . . goes well beyond any reasonable limit.”20 He was speaking with specific reference to a state statute defining the term “Hawaiians,” but his observation underscores the potential for some federal common law limit on “Indian” status.21 Future litigation over this issue—which involves accommodating tribes’ settled right to determine membership requirements22 and the settled ancestry element of Indian status—seems assured, given present demographic trends. In fact, the blood quantum in determining tribal membership may be “the most provocative and potentially explosive issue in Indian Country because it gets to the guts of who, or what, is an Indian.”23

14 E.g., United States v. Pemberton, 405 F.3d 656, 660 (8th Cir. 2005); United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005); United States v. Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001); United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996); United States v. Lawrence, 51 F.3d 150, 152 (8th Cir. 1995); St. Cloud v. United States, 702 F. Supp. 1456, 1460 (D.S.D. 1988); Lewis v. State, 55 P.3d 875, 878 (Idaho Ct. App. 2002); State v. Sebastian, 701 A.2d 13, 23–27 (Conn. 1997); State v. LaPier, 790 P.2d 983, 986 (Mont. 1990); see also United States v. Medearis, 380 F.3d 1049, 1060 n.16 (8th Cir. 2004) (Indian status for purposes of prosecution under 18 U.S.C. § 1153 found on basis of stipulation that the defendant “has some degree of Indian blood and therefore is recognized as an Indian”). 15 Sully v. United States, 195 F.113, 117 (8th Cir. 1912); see generally Paul Spruhan, A Legal Theory of Blood Quantum in Federal Indian Law to 1935, 51 S.D. L. Rev. 1, 48 (2006) (characterizing as “muddled” pre–Indian Reorganization Act use of blood quantum to determine “Indian” status, with some uses “requiring a threshold blood quantum (without a consistent quantum) and some requiring tribal membership”); Weston Meyring, “I’m an Indian Outlaw, Half Cherokee and Chocktaw”: Criminal Jurisdiction and the Question of Indian Status, 67 Mont. L. Rev. 177, 189–92 (2006) (discussing cases).

United States v. Bruce, 394 F.3d 1215, 1224 (9th Cir. 2005).

16

Vialpando v. State, 640 P.2d 77, 80 (Wyo. 1982) (“[o]ne-eighth Indian blood is not a ‘substantial amount of Indian blood’ ” to classify person as Indian under 18 U.S.C. § 1153). 17

18 See State v. Reber, 171 P.3d 406, 409 (Utah 2007) (“we have found no case in which a court has held that 1/16th Indian blood . . . qualifies as a ‘significant amount of Indian blood’ ”).

528 U.S. 495 (2000).

19

Id. at 527 (Breyer, J., concurring).

20

See id. (“Of course, a Native American tribe has broad authority to define its membership. . . . There must, however, be some limit on what is reasonable, at the least when a State (which is not itself a tribe) creates the definition”) (citation omitted). 21

See supra note 7.

22

Robert B. Porter, Cleaning Up the Colonizer’s Mess: An Important Role for Legal Scholarship About the Indigenous Nations, 50 U. Kan. L. Rev. 431, 434 (2002); see also Margo S. Brownell, Note, Who Is an Indian? 23

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The second step of the federal common law test is recognition as an Indian. This step does not demand a showing of actual political affiliation with a tribe through membership.24 As the Seventh Circuit explained 70 years ago in Ex parte Pero,25 the Department of the Interior’s refusal to enroll an Indian as a member of a tribe “is not necessarily an administrative determination that the person is not an Indian.”26 Thus, a man is an Indian even if he is not an enrolled member when he lives on the reservation, maintains tribal relations, and when his mother is an Indian and father is a half-blood, each of whom is recognized as an Indian and maintains tribal relations.27 Many courts have subdivided the second element into several possible indicia of the requisite “recognition”: (1) tribal enrollment; (2) formal or informal government recognition by providing assistance reserved to Indians; (3) enjoying the benefits of tribal affiliation; and (4) social recognition as an Indian through living on a reservation and participating in Indian social life.28 The “recognition” element also reflects, by negative implication, Congress’s power to determine Indian status; i.e., when Congress terminates the “special relationship” between it and an Indian tribe, the requisite “recognition” is lost for Indian status purposes absent contrary congressional direction.29 Unexplored by modern cases is the

Searching for an Answer to the Question at the Core of Federal Indian Law, 34 U. Mich. J. L. Reform 275, 308 (2001) (“tribes require varying degrees of blood quantum for membership eligibility, anywhere from onehalf degree of tribal blood to no blood requirement at all. As a result, enrolled members of a tribe today may include individuals who are racially non-Indian, those with very little Indian blood, and those who are racially Indian but live off the reservation and do not consider themselves part of the Indian community”) (footnote omitted). 24 E.g., United States v. Bruce, 394 F.3d 1215, 1225 (9th Cir. 2005) (rejecting position that tribal enrollment, or eligibility therefor, constitutes an essential element of Indian status); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (“enrollment has not yet been held to be an absolute requirement of federal jurisdiction”); see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1018 (9th Cir. 2007) (“Appellants cite no authority for the proposition that gaining Indian status under federal law is equivalent to acquiring membership in a tribe”).

99 F.2d 28 (7th Cir. 1938).

25

Id. at 31.

26

Id.

27

St. Cloud v. United States, 702 F. Supp. 1456, 1461 (D.S.D. 1988) (listing the factors “[i]n declining order of importance”); see also United States v. Bruce, 394 F.3d 1215, 1224 (9th Cir. 2005); United States v. Lawrence, 51 F.3d 150, 152 (8th Cir. 1995); Lewis v. State, 55 P.3d 875, 878 (Idaho Ct. App. 2002); State v. Sebastian, 701 A.2d 13, 22 (Conn. 1997); but see United States v. Drewry, 365 F.3d 957, 961 (10th Cir. 2004) (four-factor test utilized to determine if non-enrolled Indian children were “Indians”), vacated on other grounds, 543 U.S. 1103 (2005); see generally Meyring, supra note 15, at 228–30 (arguing that, in light of the “Duro-fix” legislation enacted to affirm tribal criminal jurisdiction over all Indians, “St. Cloud’s hierarchical factors should be disordered and unweighted” so as to restore the importance of “recognition of an individual as an Indian by his or her tribe or community” and “focus less on formal enrollment”); John Rockwell Snowden et al., American Indian Sovereignty and Naturalization: It’s a Race Thing, 80 Neb. L. Rev. 171, 214 (2002) (“[b]lood and enrollment end the matter”). 28

29 United States v. Antelope, 430 U.S. 641, 647 n.7 (1977) (“members of tribes whose official status has been terminated by congressional enactment are no longer subject, by virtue of their status, to federal criminal jurisdiction under the Major Crimes Act”); United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974) (“The Klamath Termination Act . . . was intended to end the special relationship that had historically existed between the Federal Government and the Klamath Tribe. While anthropologically a Klamath Indian even

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extent to which termination of membership in a federally recognized tribe affects the second element of Indian status under the common law test.30 2. Statute-based Indian status Various federal statutes define the term “Indian” for civil administrative purposes. Many require tribal membership or eligibility for membership,31 but one of the most basic, section 19 of the Indian Reorganization Act, states: The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any 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. For purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians.32

Consequently, for purposes of the IRA’s provisions, an “Indian” includes tribal members33 and those of “one-half or more Indian blood.” The term also includes the diminishing category of those descendents of tribal members who were, as of June 1, 1934, “living within the present boundaries of an Indian reservation.”34 Tribal membership thus is not a prerequisite to Indian status

after the Termination Act obviously remains an Indian, his unique status vis-à-vis the Federal Government no longer exists”); St. Cloud v. United States, 702 F. Supp. 1456, 1465 (D.S.D. 1988) (“the termination act ends the federal trust relationship with [the defendant] and subjects him to state jurisdiction”); State v. Reber, 171 P.3d 406, 410 (Utah 2007) (“[b]ecause Defendants’ ancestors lost their legal status as Indians, Defendants have no Indian blood for purposes of being recognized by an Indian tribe or the federal government”). 30 See Thompson v. County of Franklin, 180 F.R.D. 216, 225–26 (N.D.N.Y. 1998) (although membership is an internal matter for the tribe, it is a bilateral relationship that the individual may sever). In an early case, United States ex rel. Standing Bear v. Crook, 5 Dill 453, 25 Fed. Cas. 695, 699 (D. Neb. 1879), the district court issued a writ of habeas corpus to Standing Bear, who had severed his “tribal relations.” The writ prevented federal authorities from removing Standing Bear on account of his membership in a tribe, because, given his voluntary expatriation, he was no longer a member of the tribe. The decision in Elk v. Wilkins, 112 U.S. 94 (1884), on the other hand, could be deemed to support an opposite result. Elk found that an Indian who had voluntarily separated from a tribe did not thereby become a citizen of the United States within the meaning of the Fourteenth Amendment, but its immediate holding was superseded by later legislation. See Act of Feb. 8, 1887, § 6, 24 Stat. 388, 390. 31 E.g., 20 U.S.C. § 1401(a)(24)(B); 25 U.S.C. § 450b(d); id. § 1452(b); id. § 1801(1); id. § 1903(3); 42 U.S.C. § 3002(5).

25 U.S.C. § 479.

32

The Supreme Court is poised to determine which tribes are encompassed within the IRA’s definition. In Carcieri v. Kempthorne, 497 F.3d 15, 30 (1st Cir. 2007) (en banc), cert. granted, 128 S. Ct. 1443 (2008), the First Circuit held that the Narragansett Tribe in Rhode Island—which was not federally recognized in 1934 when the IRA was enacted—was an Indian tribe for purposes of the IRA’s land-into-trust provisions notwithstanding 25 U.S.C. § 479’s limitation to tribes “now under federal jurisdiction.” The Supreme Court granted certiorari to review that conclusion, as well as the First Circuit’s interpretation of the Rhode Island Indian Land Claims Settlement Act. 33

34 Carcieri v. Kempthorne, 497 F.3d 15, 30 (1st Cir. 2007) (en banc), cert. granted on other grounds, 128 S. Ct. 1443 (2008), recognized the limited scope of this provision, stating in dictum that it “covered those people of Indian descent then [in 1934] living on a reservation.”

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under section 19.35 It and other statutes defining “Indian” counsel the need to determine whether Congress has defined the term and, if it has, to apply the particular definition used.36 A prominent example of congressional preeminence with regard to defining “Indian” status was Congress’s reaction to Indian health care regulations issued by the Secretary of Health and Human Services in 1987 that limited the term “Indian” to members of federally recognized tribes and superseded regulations that had extended such programs to individuals who were “regarded as an Indian by the community in which he or she lives” on the basis of various considerations such as tribal membership, residence on tax-exempt land, or active participation in tribal affairs.37 In response, Congress enacted legislation, still in place, imposing a moratorium on the new rule.38 This legislative reaction reflects the malleable nature of “Indian” status in Congress’s hands and the integral relationship of such status to policy objectives.39 B. Indian Status Under Federal Law and the Fifth Amendment’s Due Process Clause Renewed scrutiny of racial preferences has turned attention to the doctrinal basis for the preferential treatment of Indians identified in Morton v. Mancari.40 In Mancari, the Court held that the BIA’s employment preference for

35 United States v. John, 437 U.S. 634, 649–50 (1978) (definition of “Indian” in 25 U.S.C. § 479 includes individuals descended from group of Indians that, while not formally recognized as an Indian tribe under the IRA, retained a distinct ethnological and geographical character). 36 United States v. Bruce, 394 F.3d 1215, 1225 n.6 (9th Cir. 2005) (noting “that unenrolled Indians are eligible for a wide range of federal benefits directed to persons recognized by the Secretary of Interior as Indians without statutory reference to enrollment[,]” and listing representative statutes); United States v. Curnew, 788 F.2d 1335, 1338 (8th Cir. 1986) (“Clearly, Congress knows how and has the right to define the term Indian when it chooses to do so. . . . And, when Congress has specifically defined the term Indian, this Court has no choice but to follow the clear and unambiguous requirement of that definition”); Witt v. United States, 681 F.2d 1144, 1148 (9th Cir. 1982) (“Congress, directly or by delegation, has the power to define who is an Indian for purposes of determining property rights”); Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir. 1978) (“True enough, unless limited by treaty or statute, a Tribe has the power to determine tribal membership. . . . Here, however, the Congress in precise language has specifically named the fund’s beneficiaries”); see also Malone v. Bureau of Indian Affairs, 38 F.3d 433, 437–38 (9th Cir. 1994) (because Snyder Act, 25 U.S.C. § 13, did not contain specific Indian status criteria, agency could consider both tribal membership and Indian blood quantum in formulating eligibility regulations for higher education grants); see generally Sharon O’Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship?, 66 Notre Dame L. Rev. 1461, 1469 (1991) (“[i]n truth, the federal government maintains a variety of relationships with Indian tribes and individual Indians, not all of whom are federally recognized, nor members of federally recognized tribes”).

52 Fed. Reg. 35,044, 35,046 (Sept. 16, 1987) (codified as suspended at 42 C.F.R. pt. 136a).

37

Pub. L. No. 100-713, § 719(a), 102 Stat. 4784, 4838 (1988); see 64 Fed. Reg. 58,318 (Oct. 28, 1999) (summarizing the rulemaking and legislative history). 38

39 E.g., No Child Left Behind Act, Pub. L. No. 107-110, § 7151, 115 Stat. 1425, 1932 (2002) (broad, remedial education statute defining “Indian” to include not only members in federally recognized tribes but also, inter alia, members in state-recognized tribes and all other persons “considered by the Secretary of the Interior to be an Indian for any purpose”).

417 U.S. 535 (1974).

40

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Indians established under section 12 of the Indian Reorganization Act41 did not create a racial preference in violation of the Fifth Amendment’s Due Process Clause. Rather, the preference was based on membership in “quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion.”42 The Court concluded that the preference is “political rather than racial in nature,” since the classification, under agency policy guidelines, “applies only to members of ‘federally recognized’ tribes [and] operates to exclude many individuals who are racially to be classified as ‘Indians.’ ”43 The Court found that the preference was “reasonably and directly related to a legitimate, nonracially based goal”—that of making the “BIA more responsive to the needs of its constituent groups.”44 Those conclusions allowed the Court to reject an as-applied challenge to the preference provision by non-Indian employees, who claimed it constituted racial discrimination.45 The Supreme Court and lower courts have relied upon Mancari to reject challenges claiming that statutes impermissibly favor or prejudice Indians on racial grounds. Citing Mancari, for example, the Court found unpersuasive the assertion by enrolled members of the Coeur d’Alene Tribe, who had been convicted of felony murder under the Major Crimes Act,46 that the statute discriminated against them because of their racial status by making only Indians subject to federal prosecution for certain offenses. The Court stated that “federal regulation of Indian tribes . . . is governance of once sovereign political communities; it is not to be viewed as legislation of a ‘racial’ group consisting of ‘Indians.’ ”47 The distinction between discrimination on the basis of political, as opposed to racial, grounds has proved dispositive in other contexts as well.48

25 U.S.C. § 472.

41

417 U.S. at 554.

42

Id. at 554 n.24.

43

Id. at 554; see Indian Educators Fed’n Local 4524 v. Kempthorne, 541 F. Supp. 2d 257, 265, 266 n.6 (D.D.C. 2008) (section 12 applies to “positions within the Department of the Interior, whether within or without the Bureau of Indian Affairs, that directly and primarily relate to providing services to Indians[;]” no constitutional concerns are raised in light of Mancari “[s]o long as the Indian preference is applied to ensure greater participation by Indians in positions that increase self-governance”); Beams v. Norton, 327 F. Supp. 2d 1323, 1328 (D. Kan. 2004) (section 12’s “purpose was to increase the participation of Indians administering matters affecting Indian tribal life” and not to create implied private right of action that would allow an individual Indian applicant to sue for improper denial of a preference), aff’d, 141 Fed. Appx. 769 (10th Cir. 2005). 44

45 The basis for Mancari’s holding—the limiting BIA guidelines—was superseded after the decision’s issuance by a regulation, 25 C.F.R. § 5.1, defining “Indian” consistently with 25 U.S.C. § 479. The modification was deemed necessary because of concerns over the Secretary’s authority to depart from the statutory definition. See 42 Fed. Reg. 27,609 (May 31, 1977) (explaining rationale for modification).

18 U.S.C. § 1153.

46

United States v. Antelope, 530 U.S. 641, 646 (1977).

47

Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 673 n.20 (1979) (upholding validity of treaty fishing rights retained by tribal members); Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 479–80 (1976) (rejecting claim that common law tax immunity granted to Indians constituted invidious racial discrimination against non-Indians); Fisher v. Dist. Ct., 424 U.S. 382, 48

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Some courts additionally have taken from Mancari the broad notion that federal or even state legislation treating Indians differently from non-Indians is valid so long as reasonably related to the trust obligation.49 One federal court

390–91 (1976) (per curiam) (vesting exclusive jurisdiction in tribal court over adoption proceedings involving only tribal members residing on reservation did not impermissibly deny them access to state courts on racial grounds); American Fed’n of Gov’t Employees v. United States, 330 F.3d 513, 521 (D.C. Cir. 2003) (upholding Department of Defense contracting preference for wholly owned tribal firms under rational basis standard, and rejecting contention that Mancari’s racial/political distinction is limited to “Indian activities on or near Indian reservations” or “uniquely Indian interests”); United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996) (rejecting equal protection challenge to prosecution under 18 U.S.C. § 1152 where victim possessed one-quarter Indian blood but was not a tribal member; the term “Indian” describes a political group or membership, not a racial group); Mullenberg v. United States, 857 F.2d 770, 772 (Fed. Cir. 1988) (“the failure to extend notice requirements to non-preference eligible excepted service employees was not racial discrimination since Indian status is political and not racial”); Barona Group of Capitan Grande Band of Mission Indians v. American Mgmt. & Amusement, Inc., 840 F.2d 1394, 1406–07 (9th Cir. 1987) (upholding validity of 25 U.S.C. § 81 which requires federal approval of contracts made with Indian tribes or Indians); Alaska Chapter, Ass’n Gen. Contractors v. Pierce, 694 F.2d 1162, 1166–70 (9th Cir. 1982) (upholding constitutionality of Indian preference provision in 25 U.S.C. § 450e(b)); Greene v. Comm’r, 733 N.W.2d 490, 495–96 (Minn. Ct. App. 2007) (Minnesota statute authorizing state official to enter into agreements with federally recognized tribes to provide welfare-related employment services to members differentiated on the basis of political affiliation, not race); see also Regents v. Bakke, 438 U.S. 265, 304 n.42 (1978) (“In Mancari, we approved a hiring preference for qualified Indians in the Bureau of Indian Affairs[.] . . . We observed in that case, however, that the legal status of the BIA is sui generis”); see generally Jessica Lynn Clark, Comment, AFGE v. United States: The D.C. Circuit’s Preferential Treatment of the Native American in Government Contract Awards, 34 Pub. Cont. L.J. 379, 398–99 (2005) (arguing that the court of appeals erred in applying the rational basis standard, rather than strict scrutiny, in determining the validity of a Department of Defense appropriations act contracting preference for firms with majority Native American ownership, and distinguishing preferences in the government procurement context from those “within the more narrow context of Indian-specific interests”). 49 Compare McBride v. Shawnee County, 71 F. Supp. 2d 1098, 1101–02 (D. Kan. 1999) (rejecting equal protection challenge in habeas corpus proceeding by non-Indian Rastafarians, who allegedly used marijuana as part of their religious practice, to exception created under state controlled-substance prohibition for peyote use during Native American Church (NAC) ceremonies, holding that “the NAC is not similarly situated with other religions[,]” because “[p]eyote and marijuana are not abused at the same rate, and their abuse has a substantially different effect on society[,]” and because “[t]he Kansas peyote exemption is rationally related to trust responsibility”); In re B.N.B., 959 P.2d 989 (Okla. Ct. App. 1998) (finding that the special cultural distinctions of Indians provide a rational basis for the higher standard of proof required for terminating parental rights of Indian families); and State v. McBride, 955 P.2d 133, 140–41 (Kan. Ct. App. 1998) (rejecting an equal protection challenge by non-Indian Rastafarians to a state statute that exempted members of the NAC from a prohibition against marijuana use in religious ceremonies, since the defendants and Indians are not similarly situated; “[m]odern courts have interpreted the unique obligations owed to Native Americans as exempting laws passed pursuant to the trust responsibility from the strictures of traditional equal protection analysis,” and “[t]his same power can be and has been exercised by states when they act to accord their law with federal Native American law”), with State v. Mooney, 98 P.3d 420, 428 (Utah 2004) (holding Drug Enforcement Agency regulation exempting peyote use in NAC ceremonies from federally controlled drug schedule incorporated into state law, but declining to accept agency’s construction that exemption applies only to tribal members of the church; observing in part that “[i]t is by no means clear that the federal government’s duties to Native Americans . . . would legitimize state efforts to limit religious preferences to members of federally recognized native American tribes”); Malabed v. North Slope Borough, 70 P.3d 416, 424 n.39 (Alaska 2003) (invalidating under Alaska constitution employment preferences granted to Native Americans by local ordinance, and observing that “federal law implies no general role for states to play in carrying out federal Indian policy” except to the extent “Congress . . . enlist[s] state aid or direct state action by positive law”); and Malabed v. North Slope Borough, 335 F.3d 864 (9th Cir. 2003) (considering Alaska Supreme Court’s holding, and concluding ordinance is invalid under Alaska Constitution); cf. Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1036 (11th Cir. 2001) (relying on Mancari to reject race discrimination claim against tribal organization; “[s]ince that [decision], courts have held that, absent some evidence of Congress’s ‘clear and plain intent’ to abrogate a tribe’s sovereign immunity, they will not interpret federal employment discrimination statutes to cover Indian tribes’ employment decisions

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of appeals, however, has expressed doubt over whether the Mancari rationale could be extended beyond “statutes that affect uniquely Indian interests” and concluded that a federal law limiting the right to import reindeer into Alaska for commercial purposes to Native Alaskans would, if accepted, raise “grave” equal protection concerns since reindeer herding was not a traditional Native activity.50 The precise scope of Mancari remains in question, particularly since the Supreme Court’s decision in Rice v. Cayetano.51 There, the Court struck down, under the Fifteenth Amendment, a Hawaii statute restricting the right to vote in a statewide election for Office of Hawaiian Affairs trustees to “Hawaiians,” defined as “those persons who are descendents of people inhabiting the Hawaiian Islands in 1778.”52 The state defended the voting restriction in part on the ground that “Hawaiians” are analogous to members of Indian tribes and that Congress has delegated to Hawaii “a broad authority to preserve” their

for tribal or reservation based positions concerning purely tribal governance and administrative matters”); see generally James P. Mills, Comment, The Use of Hiring Preferences by Alaska Native Villages After Malabed v. North Slope Borough, 28 Seattle U. L. Rev. 403, 434 (2005) (Alaska law would not preclude employment preferences by Native corporations established under the Alaska Native Claims Settlement Act (ANCSA) for Alaska Natives who are shareholders in the particular corporation, or members of such Natives’ immediate families; Congress should amend ANCSA to provide explicitly that an employment preference may be given by a Native corporation to any individual who is an Alaska Native—thereby legislating with reference to “a federally recognized political class”). 50 Williams v. Babbitt, 115 F.3d 657, 665–66 (9th Cir. 1997); see also Malabed v. North Slope Borough, 42 F. Supp. 2d 927, 937–38 (D. Alaska 1999) (applying strict scrutiny analysis under the Equal Protection Clause to invalidate an employment preference established by a state political subdivision for Native Americans, which “is in no way related to Native land or tribal or cultural affairs[,]” and relying on Williams for the proposition that “characterizing Native American interests as political rather than racial or ethnic does not automatically result in a lower level of scrutiny being used”), aff’d on alternate state law grounds, 335 F.3d 864 (9th Cir. 2003). Williams has prompted substantial commentary. E.g., Rebecca Tsosie, Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous People Fit Within Civil Society?, 5 U. Pa. J. Const. L., 357, 395 (2003) (Williams “suggests that to the extent that Native activities are not tied to aboriginal customs or traditions, they should not merit special consideration as a means to facilitate tribalism”); Goldberg, supra note 2, at 1380 (Williams “uses an interpretation of the Reindeer Act as the occasion for lashing out against what it perceives as racially based preferences for Indians. The upshot of the approach taken in Williams . . . is that Indians will only be entitled to favorable federal legal treatment, even treatment necessary to repair the effects of prior harmful U.S. policies, only if that treatment aids them in performing their culture to the satisfaction of non-Indians—that is, by ‘living according to some putative nineteenthcentury lifestyle’ ”); Carole Goldberg, American Indians and “Preferential” Treatment, 49 UCLA L. Rev. 943, 957, 984–88 (2002) (contrasting different theoretical approaches to analyzing equal protection challenges to Indian preference statutes, and criticizing Williams as “presuppos[ing] that Indians are merely a racial group rather than nations with some degree of sovereignty”); Gould, supra note 6, at 734 (Williams “suggests that Mancari’s protective reach is limited to tribes, that race-conscious legislation must serve uniquely tribal interests, or be subject to strict scrutiny, and that even legislation that survives review will be limited in duration”) (footnote omitted); Terese Dillingham, Comment, Playing Reindeer Games: Native Alaskans and the Federal Trust Doctrine, 26 B.C. Envtl. L. Rev. 649, 680–81 (1999) (arguing that “[r]eindeer herding is a unique Native Alaskan concern because the federal government imported reindeer specifically to provide for and assimilate Native Alaskans into the American economy and population settlement patterns” and that the limitation on non–Native Alaskan participation in the industry is “rationally related to the federal government’s obligation to Native Alaskans”).

528 U.S. 495 (2000).

51

Id. at 499.

52

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status.53 The Supreme Court held that, even were the state’s proposition accepted, Congress lacked the power to authorize a state to limit the electorate in a state election “to a class of tribal Indians, to the exclusion of all non-Indian citizens.”54 In addition to explaining that Mancari dealt only with an employment preference of the BIA, “an agency described as ‘sui generis,’ ”55 the Court distinguished Mancari’s preference as “ ‘tied rationally to the fulfillment of Congress’ unique obligation to the Indians’ and ‘reasonable and rationally designed to further Indian self-government.’ ”56 The Court also distinguished the state elections from tribal elections, finding that if “a non-Indian lacks a right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi-sovereign.”57 Rice has sparked congressional and academic attention and likely will lead to further judicial consideration of Mancari’s scope.58 As Justice Stevens’s

Id. at 518.

53

Id. at 520; see Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (“at its core, Rice concerned the rights of individuals, not the legal relationship between political entities”). 54

528 U.S. at 520.

55

Id. (quoting Mancari, 417 U.S. at 555).

56

Id. The distinction between racial and political status for Native Hawaiians continues to attract judicial attention. In Doe v. Kamehameha Schools, 470 F.3d 827 (9th Cir. 2006) (en banc), the Ninth Circuit upheld, in an 8–7 decision, the right of a private Hawaiian school to give preferential admission to individuals of Native Hawaiian ancestry. The majority concluded that the policy did not violate 42 U.S.C. § 1981—which prohibits racial discrimination by certain private actors—because in its 1991 amendments “Congress clearly intended § 1981 to exist in harmony with its other legislation providing specially for the education of Native Hawaiians.” 470 F.3d at 849. Judge Fletcher, joined by four other judges, concurred on different grounds, finding that the classification of “Native Hawaiian” was not merely a racial classification, but also a political classification created by Congress under Mancari, and that there was “nothing in § 1981 to indicate that Congress intended to impose upon private institutions a more restrictive standard for the provision of benefits to Native Hawaiians than it has imposed upon itself.” 470 F.3d at 856. The dissenting judges argued, inter alia, that the majority’s decision was inconsistent with Supreme Court precedent and that “private parties may not seek refuge in Mancari’s special relationship doctrine.” Id. at 883 (Bybee, J., dissenting). 57

58 E.g., Note, International Law as an Interpretative Force in Federal Indian Law, 116 Harv. L. Rev. 1751, 1770–72 (2003); John Heffner, Note, Between Assimilation and Revolt: A Third Option for Hawaii as a Model for Minorities Worldwide, 37 Tex. Int’l L.J. 591, 616 (2002); Gavin Clarkson, Not Because They Are Brown, but Because of Ea: Why the Good Guys Lost in Rice v. Cayetano, and Why They Didn’t Have to Lose, 7 Mich. J. Race & L. 317, 348, 355 (2002); Kimberly A. Costello, Note, Rice v. Cayetano: Trouble in Paradise for Native Hawaiians Claiming Special Relationship Status, 79 N.C. L. Rev. 812, 839 (2001); Eric Steven O’Malley, Note, Irreconcilable Rights and the Question of Hawaiian Statehood, 89 Geo. L.J. 501, 537 (2001). Legislation was introduced in the 106th through 108th Congresses to address Rice by, inter alia, acknowledging a government-to-government relationship with and special trust responsibility for Native Hawaiians. E.g., H.R. 665, 108th Cong. (2003); S. 344, 108th Cong. (2003); see generally Lindsay Goodner, Comment, The Potential Passage of Proposed Senate Bill 147 and Its Implications on Native Hawaiians and Gaming, 31 Am. Indian L. Rev. 111, 130 (2006–2007); Justin L. Pybas, Note, Native Hawaiians: The Issue of Federal Recognition, 30 Am. Indian L. Rev. 185, 199–200 (2005–2006); Brian Duus, Reconciliation Between the United States and Native Hawaiians: The Duty of the United States to Recognize a Native Hawaiian Nation and Settle the Ceded Lands Dispute, 4 Asian-Pac. L. & Pol’y J. 13 (2003); R.H.K. Lei Lindsey, Comment, Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual, 24 U. Hawaii L. Rev. 693, 720 (2002); Le’a Malia Kanehe, Recent Developments, The Akaka Bill: The Native Hawaiians’ Race for Federal Recognition, 23 U. Haw. L. Rev. 857 (2001); Annmarie M. Liermann, Comment, Seeking Sovereignty: The Akaka Bill and the Case for the Inclusion of Hawaiians in Federal Native American Policy, 41 Santa Clara L. Rev. 509, 538 (2001). No final action was taken

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dissent in Rice indicates, the majority opinion stressed the political nature of the differentiation involved in Mancari.59 It is thus hazardous to extrapolate from Mancari a more generalized sanction for purely ancestry-based discrimination.60 Importantly in this regard, it was only after the Mancari Court concluded that a political basis existed for the differentiation, thereby negating applicability of the strict scrutiny standards, that the Court applied the rational basis test and identified the nexus between the employment preference and “ ‘the fulfillment of Congress’ unique obligation toward the Indians’ ” and their self-governance.61 In short, although Rice can be read to reaffirm Mancari’s characterization as “political” of a tribal membership requirement that had an ancestral core, the Court was unwilling not only to extend that characterization beyond Indian tribes but also to credit the contention that the earlier holding could be justified solely on the basis of ancestry.62 C. Membership in State-Recognized Tribes Sixteen states provide their own recognition of Indian tribes.63 Over 60 tribes have been recognized by the states, and each tribe has a membership. The federal government provides some limited benefits for such members under various statutes. These include the Indian Arts and Crafts Act of 1990,64

on this legislation, and new bills were introduced in succeeding Congresses to establish a framework for reorganizing a Native Hawaiian government, reaffirming the special relationship between the United States and that government, and commencing negotiations among the United States, the State of Hawaii, and the Native Hawaiian government to determine the precise nature of the permanent government-to-government relationship. S. 310, 110th Cong. (2007); H.R. 505, 110th Cong. (2007); S. 3064, 109th Cong. (2006); S. 147, 109th Cong. (2005); H.R. 309, 109th Cong. (2005). House Bill 505 was passed by the originating chamber in October 2007 and is pending before the Senate. 59 Rice v. Cayetano, 528 U.S. 495, 535 (Stevens, J., dissenting) (“[m]embership in a tribe, the majority suggests, rather than membership in a race or class of descendants, has been the sine qua non of governmental power in the realm of Indian law; Mancari itself, the majority contends, makes this proposition clear”). 60 Justice Stevens made the point that the BIA guidelines in place when Mancari was issued required not only membership but also a particular blood quantum. Id. at 535 n.10. Nevertheless, he did not dispute that Mancari used the tribal membership ground to navigate around application of the strict scrutiny standard. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (rejecting “the notion that distinctions based on Indian or tribal status can never be racial classifications subject to strict scrutiny[,]” but finding equal protection challenge directed to the Department of the Interior acknowledgment regulations’ geographical limitation to the continental United States subject to rational basis review because “the recognition of Indian tribes remains a political, rather than racial determination”).

Rice v. Cayetano, 528 U.S. 495, 520 (quoting Mancari, 417 U.S. at 555).

61

See id. at 520 (rejecting contention that, under Mancari, “Congress may authorize a State to establish a voting scheme that limits the electorate to a class of tribal Indians, to the exclusion of all non-Indian citizens[,]” and distinguishing exclusion of non-Indians from tribal elections because “such elections are the internal affair of a quasi sovereign”). 62

See infra note 115 and accompanying text.

63

25 U.S.C. § 305e(d)(1) and (3)(B); see generally Jennie Woltz, The Economics of Cultural Misrepresentation: How Should the Indian Arts and Crafts Act of 1990 Be Marketed? 17 Fordham Intell. Prop. Media & Ent. L.J. 443 (2007). 64

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housing assistance statutes,65 and health care statutes.66 In addition, certain federal regulations provide benefits to members of state-recognized tribes.67 These statutes raise the question of whether Congress has delegated power to the states to determine eligibility for these federal programs. Congress can, and has, delegated powers to the states to “readjust the allocation of jurisdiction over Indians.”68 One problem with such a delegation lies in the adoption of the membership rolls of state-recognized tribes. The federal programs set forth above accept the determinations of the state-recognized tribes as to membership in the tribes. These membership requirements might, or might not, survive a rationality review. As noted, Justice Breyer, concurring in Rice v. Cayetano,69 found that there “must be some limit on what is reasonable, at least when a State . . . creates the distinction,” and added that to define membership “in terms of one possible ancestor out of 500 . . . goes well beyond any reasonable limit.”70 A second problem arises with regard to the scope of review of legislation directed at Indians by a state. At least some federal laws directed at members of Indian tribes are subject to mere rational basis review.71 Unless the state has been delegated authority by Congress, however, state laws that single out Native Americans will be subject to strict scrutiny.72 Because of the difficulty of surviving a strict scrutiny test, the benefits that a state may confer independently on Indians, even Indians who are members of federally recognized tribes, may be limited.73 A recent Iowa case is instructive.74 There, the Iowa Supreme Court considered a state statute that provided that a child who was not a member of a federally recognized Indian tribe could nonetheless qualify as an Indian child under the Iowa Indian Child Welfare Act. The effect of the classification was that the tribe had a right to intervene in any custody proceeding involving

25 U.S.C. § 4103 (12)(C)(I).

65

25 U.S.C. § 1603(b), (d).

66

10 C.F.R. § 455.2; 45 C.F.R. § 96.44(a)–(b); 45 C.F.R. § 13366.10.

67

Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 501 (1979).

68

528 U.S. 495 (2000).

69

Id. at 527.

70

71 E.g., Morton v. Mancari, 417 U.S. 535, 553 (1974) (upholding a BIA employment preference for tribal members because the preference could rationally be tied to a “legitimate, nonracial goal”—the promotion of tribal self-government); cf. Rice v. Cayetano, 528 U.S. 495, 518–21 (2000) (Mancari should be given a narrow rather than an expansive scope). 72 Washington v. Confederated Tribes and Bands of the Yakima Indian Nation, 439 U.S. 463, 500–501 (1979). 73 Vieth v. Jubelirer, 541 U.S. 267, 295 (2004) (plurality opinion) (“[a]s is well known, strict scrutiny, readily, and almost always, results in invalidation”).

Woodbury County Att’y v. Iowa Att’y Gen. (In the Interest of A.W.), 741 N.W.2d 793 (Iowa 2007).

74

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such a child, and the “entire federal ICWA” was applicable to the child.75 This led to substantial differences between custody proceedings involving Indian and non-Indian children. For example, ICWA requires a finding “beyond a reasonable doubt” for termination of parental rights, while otherwise applicable state law requires a finding only by “clear and convincing evidence.”76 The Iowa court found that the state law’s classification as “Indian” of a child who was not eligible for tribal membership—and therefore not part of the political relationship forming the basis for Mancari—constituted a “racial” classification under Rice v. Cayetano.77 Therefore, without congressional delegation, the “racial classification” in Iowa law was subject to strict scrutiny—a burden that it could not carry.78 The Iowa court found that Congress had not delegated to the states the authority to legislate on behalf of nontribal children and further suggested that Congress itself lacked the power to do so. II. INDIAN TRIBE A. Federally Recognized Indian Tribes The Department of the Interior, since 1979, has published listings of federally recognized tribes.79 The 1979 listing included 277 tribes, all within the contiguous 48 states, and added that a list of “Alaskan entities will be published at a later date.” In 1994, Congress institutionalized the process and required listings to be published annually.80 The House Committee on Natural Resources commented at the time that the question of whether a particular “Native American Group constitutes an Indian tribe is one of immense significance in federal Indian law.”81 Presently, there are 562 federally recognized tribes, of which 333 are within the continental United States.82 An additional 229 tribes are recognized in Alaska.83 Such status is a “prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes.”84 Status as a federally recognized Indian tribe preempts application of many state laws with respect to activities occurring on lands set aside for the tribe’s use, and tribes possess broad

Id. at 807, n.10.

75

Id. at 807, n.11.

76

Id. at 810.

77

Id.

78

44 Fed. Reg. 7235 (Feb. 6, 1979).

79

Pub. L. 103-454, 108 Stat. 4791 (1994) (codified at 25 U.S.C. §§ 479a, 479a–1).

80

H. Rep. No. 103-781, at 2 (1994).

81

73 Fed. Reg. 18,553 (Apr. 4, 2008).

82

Id.

83

25 C.F.R. § 83.2.

84

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common law immunity from unconsented suits in federal and state courts.85 A federally recognized tribe is eligible for general aid to its government, and for assistance for such purposes as corrections, child welfare, education, and fish and wildlife and environmental programs. Only a federally recognized Indian tribe is eligible to operate, under a negotiated compact, a Class III gambling facility under the Indian Gaming Regulatory Act.86 The Supreme Court explained over a century ago that the term “tribe” means “a body of Indians of the same or a similar race, united in a community under one leadership or government, inhabiting a particular though sometimes ill-defined territory.”87 That general definition anticipated the more formal inquiry—now largely conducted in the first instance by the BIA—attendant to recognition, or “acknowledgment,” of an entity as an “Indian tribe.”88 Thus, as an ordinary matter, the question whether a group constitutes a federally recognized tribe can be determined by reference to the list of such tribes periodically issued by the BIA.89 There are nonetheless instances where questions of tribal status can arise outside the formal acknowledgment process.90 Acknowledgment of “Indian tribe” status traditionally came through official interaction between the federal government and the tribe, most often by way of treaty or statute.91 In 1871 the Executive Branch was prohibited from entering into further treaties with Indian tribes,92 and Congress accordingly now has the sole “power, both directly and by delegation to the president, to

See, e.g., 25 U.S.C. §§ 1331, 1332; Kiowa Tribe v. Mfg. Techns., Inc., 523 U.S. 751 (1998).

85

25 U.S.C. §§ 2701–21.

86

Montoya v. United States, 180 U.S. 261, 266 (1901); accord Native Vill. of Tyonek v. Puckett, 957 F.2d 631, 635 (9th Cir. 1992). Tribes, however, “do not, and never have, constituted ‘nations’ as that word is used by writers upon international law.” Montoya, 180 U.S. at 265. 87

88 The significance of the term “acknowledgment” can be seen in Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 694 (1st Cir. 1994). There, the tribe challenged the conferral of jurisdiction on the state in the Rhode Island Indian Claims Settlement Act because such conferral was made before the tribe was recognized formally. The court rejected the argument, reasoning that recognition by the BIA merely acknowledges a previously existing status. Id. at 694.

See supra notes 79–83 and accompanying text (discussing list).

89

See infra note 104 (decisions under Nonintercourse Act); cf. Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1036 (11th Cir. 2001) (deeming an intertribal council “with a Board dominated by tribal chiefs and tribe members, organized to promote business opportunities for and between the tribes[,]” to be “entitled to the same protections as a tribe itself” with respect to race discrimination claim under 42 U.S.C. § 1981); Duke v. Absentee Shawnee Tribe, 199 F.3d 1123, 1125 (10th Cir. 1999) (tribal housing authority created under state law constitutes an “Indian tribe” for purposes of exclusion from the “employer” definition in Title VII of the Civil Rights Act; “[b]ecause ‘the definition of an Indian tribe changes depending upon the purpose of the regulation or statutory provision under consideration,’ . . . we must interpret the Title VII exemption in light of its purpose of ‘promoting the ability of sovereign Indian tribes to control their own economic enterprises’ ”) (citation omitted). 90

91 See Mark D. Myers, Federal Recognition of Indian Tribes in the United States, 12 Stan. L. & Pol’y Rev. 271, 272 (2001).

Act of March 3, 1871, 16 Stat. 544 (codified at 25 U.S.C. § 71).

92

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establish the criteria for recognizing a tribe.”93 Congress’s authority in this respect has been justified on the grounds that it is legitimately concerned with “which groups of Indians are given the status of tribes” because of the large number of statutes it has enacted giving benefits to tribes and tribal members.94 At its core, however, such power is inherent in the plenary power invested in Congress over Indian affairs under the Indian Commerce Clause.95 Exercising that power, Congress occasionally has acted to acknowledge tribes directly96 but, more importantly, has delegated to the Secretary of the Interior broad authority97 that encompasses promulgation of regulations setting forth criteria for federal acknowledgment.98 The Secretary’s regulations specify seven mandatory criteria for federal acknowledgment as a tribe: • “The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900.” • “A predominate portion of the petitioning group comprises a distinct community and has existed as a community from historical times to the present.” • “The petitioner has maintained political influence over its members as an autonomous entity from historical times until the present.” The regulations

Miami Nation of Indians v. USDOI, 255 F.3d 342, 345 (7th Cir. 2001).

93

Id.

94

U.S. Const. Art. I, § 8, cl. 3; United States v. Lara, 541 U.S. 193, 202–03 (2004) (Congress’s power to alter “the metes and bounds of tribal sovereignty” exemplified, inter alia, “in congressional decisions to recognize, or to terminate, the existence of individual tribes”); Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84–85 (1977) (Congress has power to determine how differently situated groups of Indians shall participate in tribal income to the extent the exercise of such power is rationally related to fulfillment of the federal trust obligation); compare United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1865) (“In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same”); and Cherokee Nation v. Norton, 241 F. Supp. 2d 1368, 1371 (N.D. Okla. 2002) (“[i]t is well settled that issues involving government-to-government relations with Indian tribes are political questions inappropriate for judicial decision”), with Miami Nation of Indians v. USDOI, 255 F.3d 342, 348 (7th Cir. 2001) (concluding that the political question doctrine does not apply to admininstrative acknowledgment determinations since the executive branch has “canalize[d] the discretion of its subordinate officials by means of regulations that require them to base recognition of Indian tribes on the kinds of determination, legal or factual, that courts routinely make”). 95

96 E.g., 25 U.S.C. § 1758 (acknowledging tribal status of Mashantucket Pequot Tribe); 25 U.S.C. § 1300n–2 (restoring tribal status to Graton Rancheria).

25 U.S.C. §§ 2, 9.

97

25 C.F.R. pt. 83. Roughly 200 groups have indicated formally either intent to seek federal recognition or have filed petitions for recognition. Myers, supra note 91, at 274 n.44. The number of petitions has created a significant administrative backlog. Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100–01 (D.C. Cir. 2003) (rejecting district court’s finding of unreasonable delay even though entity’s claim for acknowledgment had been “ready” for consideration for five years, and observing that the lower court had failed to consider appropriately the effect on other applicants for recognition and the agency’s resource limitations). 98

64

American Indian Law Deskbook, Fourth Edition additionally detail various types of information that may establish the mandatory criteria. • “A copy of the group’s governing document including its membership criteria” or, in the absence of such a document, “a statement describing in full its membership criteria and current governing procedures.” • “The petitioner’s membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.” • “The membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe.” An exception is possible where the petitioning group “establish[es] that it has functioned throughout history until the present as a separate and autonomous Indian tribal entity, that its members do not maintain a bilateral political relationship with the acknowledged tribe, and that its members have provided written confirmation of their membership in the petitioning group.” • “Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.”99

The first three of these criteria also specify various types of information that, along with other evidence, may be relevant to establishing the required factor.100 A decision by the Secretary to grant or deny an Indian group’s petition

99 25 C.F.R. § 83.7(a)–(g). The original regulations dealing with tribal acknowledgment were issued in 1978 and modified substantially in 1994. See 59 Fed. Reg. 9280 (Feb. 25, 1994). Despite the changes, dissatisfaction was expressed with the BIA’s administrative process and its actions regarding termination of acknowledgment and differentiation between “historic” and “created” tribes. In partial response, the Federally Recognized Indian Tribe Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791 (codified at 25 U.S.C. §§ 479a, 479a–1), made a finding that a federally recognized tribe may not be terminated without congressional action and requires the Secretary to publish annually a list of all recognized tribes. The 1994 statute has itself generated litigation. E.g., Cherokee Nation v. Norton, 389 F.3d 1074, 1087 (10th Cir. 2004) (Department of the Interior acted arbitrarily when, through a “ ‘retract and declare’ ” determination under which it overruled a prior determination that the Delaware Nation was part of the Cherokee Nation, it recognized the Delawares as a tribe based upon an erroneous analysis of prior case law and without compliance with its acknowledgment procedures); United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir. 2001) (rejecting claim that BIA acted outside its authority under the 1994 act where purported tribe failed to establish that it was a “present-day embodiment” of a recognized tribe). 100 25 C.F.R. § 83.7(a)(1)–(6), (b)(1)–(2), and (c)(1)–(2). Commentary on the acknowledgment process is abundant. E.g., Roberto Iraola, The Administrative Tribal Recognition Process and the Courts, 38 Akron L. Rev. 867, 870–82 (2005) (describing the acknowledgment process); Alva C. Mather, Comment, Old Promises: The Judiciary and the Future of Native American Federal Acknowledgement Litigation, 151 U. Pa. L. Rev. 1827 (2003); Dan Gunter, The Technology of Tribalism: The Lemhi Indians, Federal Recognition, and the Creation of Tribal Identity, 35 Idaho L. Rev. 85 (1998); Christopher A. Ford, Executive Prerogatives in Federal Indian Jurisprudence: The Constitutional Law of Tribal Recognition, 73 Denv. U. L. Rev. 141 (1995); Rachael Paschal, Comment, The Imprimatur of Recognition: American Indian Tribes and the Federal Acknowledgment Process, 66 Wash. L. Rev. 209 (1991); William W. Quinn Jr., Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331 (1990); L. R. Weatherhead, What Is an “Indian Tribe”—The Question of Tribal Existence, 8 Am. Indian L. Rev. 1 (1980).

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for federal recognition will be given deference by courts.101 Such deference is not, however, absolute given the judicial review standards of the Administrative Procedure Act.102 The absence of prior administrative recognition by the federal government, however, does not foreclose judicial determination of tribal status questions for at least some purposes.103 Much of this litigation has focused on whether a tribe existed for the purpose of coverage under the Nonintercourse Act.104 Some courts have developed broad criteria to make determinations

101 E.g., Miami Nation of Indians v. USDOI, 255 F.3d 342 (7th Cir. 2001); Price v. Hawaii, 764 F.2d 623, 628 (9th Cir. 1985); United States v. Aam, 670 F. Supp. 306, 309 (W.D. Wash. 1986); cf. Cherokee Nation v. Babbitt, 117 F.3d 1489, 1498–1503 (D.C. Cir. 1997) (reviewing issue of whether group included on the Department of the Interior’s list of recognized tribes was a tribal entity distinct from the Cherokee Nation and holding it was not); James v. USHHS, 824 F.2d 1132, 1138 (D.C. Cir. 1987) (question whether an Indian group was improperly excluded from the list of federally recognized tribes must be resolved in the first instance by the Secretary of the Interior since “Congress has specifically authorized the Executive Branch to prescribe regulations concerning Indian affairs and relations”); Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51, 58–61 (2d Cir. 1994) (finding that the BIA had primary jurisdiction over the issue of tribal status and directing district court to stay the Indian group’s Nonintercourse Act action pending completion of administrative proceedings under 25 C.F.R. pt. 83); New York v. Shinnecock Tribe, 400 F. Supp. 2d 486, 493 (E.D.N.Y. 2005) (citing Second Circuit’s decision in Golden Hill Paugussett, and resolving tribal status issue in light of “the BIA’s inability to reach these decisions for some twenty years”); Native American Mohegans v. United States, 184 F. Supp. 2d 198, 222–23 (D. Conn. 2002) (following Golden Hill Paugussett Tribe and James, and dismissing claims of Indian group that sought judicial recognition as federally recognized tribe for failure to exhaust administrative remedies before Department of the Interior); Burt Lake Band of Ottawa and Chippewa Indians v. Norton, 217 F. Supp. 2d 76 (D.D.C. 2002) (following James, and rejecting claim that entity was not required to exhaust administrative remedies before the BIA on the basis of a claim to historical recognition as a tribe in two treaties); see generally Iraola, supra note 99, at 892 (“when faced with requests for judicial recognition of tribal status, depending on whether the issue is raised directly or derivatively, courts will stay or dismiss actions pending a determination on the recognition question by the Department by invoking the doctrine of primary jurisdiction, or that of exhaustion of administrative remedies”) (footnote omitted); Ford, supra note 99 (summarizing decisional authority concerning federal authority over Indian affairs and arguing that President has inherent power to recognize tribes). 102 See, e.g., Muwekma Ohlone Tribe v. Kempthorne, 452 F. Supp. 2d 105, 125 (D.D.C. 2006) (In Administrative Procedure Act judicial review of denial of tribal acknowledgment, remanding action and requiring evidence detailing “the Department’s rationale for requiring Muwekma to proceed through Part 83 tribal acknowledgement procedures while allowing other tribes that appear to be similarly situated to bypass the procedures altogether”). 103 Timpanogos Tribe v. Conway, 286 F.3d 1195, 1203 (10th Cir. 2002) (“[T]he federal government had previously recognized groups of Indians as tribes in a variety of ways for a variety of purposes. . . . Even after the promulgation of [25 C.F.R.] Part 83, ‘tribes cannot be neatly divided into “recognized” and “nonrecognized” tribes for all purposes; rather, a tribe may “exist” for some purposes but not for others’ ”) (quoting Felix S. Cohen’s Handbook of Federal Indian Law 7 (Rennard Strickland et al. eds. 1982)); Montoya v. United States, 180 U.S. 261 (1901) (whether a group of Indians was a tribe or band under federal Depredation Act); Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1095–96 (9th Cir. 1994) (group was not Indian tribe for purposes of 28 U.S.C. § 1362); Price v. Hawaii, 764 F.2d 623, 628 (9th Cir. 1985) (same); Koke v. Little Shell Tribe, 68 P.3d 814, 816 (Mont. 2003) (applying Montoya’s “criteria for common law recognition of a tribe” in determining whether entity, whose acknowledgment petition was pending before the BIA, was entitled to immunity from suit); but see Golden Hill Paugussett Tribe v. Rell, 463 F. Supp. 2d 192 (D. Conn. 2007) (holding that BIA’s factual findings in connection with denial of tribal acknowledgment collaterally estopped tribe from judicially establishing tribal status for purposes of the Nonintercourse Act). 104 25 U.S.C. § 177 (prohibiting any “purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians . . . unless the same be made by treaty or convention entered into pursuant to the Constitution”); see, e.g., United States v. Candelaria, 271 U.S. 432, 441–42 (1926); Tonkawa Tribe v. Richards, 75 F.3d 1039 (5th Cir. 1996); Catawba Indian Tribe v. South Carolina,

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of tribal status. Other courts have relied on the Secretary’s acknowledgment regulations to guide analysis in resolving issues of tribal status, and that trend likely will continue under the revised criteria.105 The converse of federal acknowledgment is the termination of the federal trust relationship. Since tribal status has as its hallmark the existence of a federal trust relationship,106 termination of that relationship means that neither the affected tribe nor its members will have the status of Indian tribe or Indian.107 Between 1954 and 1964, Congress enacted fourteen statutes terminating tribal status for over 100 tribes and bands.108 Many of these acts have been repealed in whole or in part,109 but it is unclear how many of the termination statutes remain effective.110 The Supreme Court in any event has held that the mere fact of tribal termination does not affect treaty-secured rights, such as hunting and fishing privileges, unless the applicable legislation clearly evinces such an intent.111 The Ninth Circuit Court of Appeals has concluded in an analogous

718 F.2d 1291 (4th Cir. 1983), aff’d on reh’g en banc, 740 F.2d 305 (1984) (per curiam), rev’d, 476 U.S. 498 (1986); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979); Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Cayuga Indian Nation v. Cuomo, 667 F. Supp. 938 (N.D.N.Y. 1987); Narragansett Tribe v. S. R.I. Land Dev. Co., 418 F. Supp. 798 (D.R.I. 1976); cf. San Xavier Dev. Auth. v. Charles, 237 F.3d 1149, 1152 (9th Cir. 2001) (lessee lacked standing to challenge sublease because “[o]nly Indian tribes may bring [Nonintercourse Act] actions”); Golden Hill Paugussett Tribe, 39 F.3d 51 (staying Nonintercourse Act claim in deference to BIA’s primary jurisdiction over tribal status question). 105 See Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1095–96 (9th Cir. 1994); Price v. Hawaii, 764 F.2d 623, 627–28 (9th Cir. 1985); see also Miami Nation of Indians v. Babbitt, 887 F. Supp. 1158 (N.D. Ind. 1995) (the agency’s regulations are within its authority to promulgate, are a reasonable interpretation of the relevant statute, and thus are not arbitrary or capricious). 106 United States v. Antelope, 430 U.S. 641, 646 (1977); see also United States v. Sandoval, 231 U.S. 28, 46 (1913) (recognizing that “Congress may [not] bring a community or a body of people within the range of [its Indian Commerce Clause] power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts”). 107 25 U.S.C. § 703(a); see United States v. Antelope, 430 U.S. 641, 647 n.7 (1977); see generally Michael C. Walch, Note, Terminating the Indian Termination Policy, 35 Stan. L. Rev. 1181, 1188–89 (1983) (“Perhaps an even greater concern to the Indians involved was that termination ended their recognition as Indians. Their trust relationship with the United States ceased, and legally they became no different from any other citizen living in a particular state”) (footnote omitted). One circuit has held, moreover, that the Executive Branch possessed the power to terminate the trust relationship with a tribe. Grand Traverse Band of Ottawa and Chippewa Indians v. Office of U.S. Att’y, 369 F.3d 960, 969 (6th Cir. 2004) (where Department of the Interior terminated the government-to-government relationship in 1872, the requisite “empirical indicia of recognition” essential to federally acknowledged tribal status was absent). 108 Walch, supra note 107, at 1186 n.30; see also South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 503 (1986).

Walch, supra note 107, at 1186 n.30; 25 U.S.C. §§ 713b(b), 714a(b), 733(b), 1300g–2(b).

109

Compare Walch, supra note 107, at 1196 (approximately 44 tribes or groups remain terminated) with Judith V. Royster, “The Legacy of Allotment,” 27 Ariz. St. L. J. 78 (1995) (“by the 1990s virtually all 109 terminated tribes were restored to federal recognition”). 110

111 Compare Menominee Tribe v. United States, 391 U.S. 404, 412–13 (1968) (“We decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians. While the power to abrogate those rights exists[,] . . . ‘the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress’ ”) (citations omitted), with South Carolina v. Catawba Indian Tribe, 476

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context that nonrecognition of an Indian group as a tribe by the Secretary cannot affect vested hunting and fishing rights secured by treaty, since “[t]he Department of the Interior cannot under any circumstances abrogate an Indian treaty directly or indirectly.”112 The Ninth Circuit has further required only that a group claiming such rights establish descent from a treaty signatory and continued maintenance of an organized tribal structure.113 The latter requirement is satisfied “if some defining characteristic of the original tribe persists in an evolving tribal community.”114 B. State Recognition as a Tribe Although the United States Constitution vests Congress with plenary authority over Indian affairs, sixteen states have, independently of the federal government, recognized 62 Indian tribes.115 States recognizing tribes include Alabama, California, Connecticut, Delaware, Georgia, Hawaii, Louisiana, Massachusetts, Montana, New Jersey, New York, North Carolina, Ohio, South Carolina, Vermont, and Virginia.116 The mechanisms used by the states to do so vary substantially. Three states have a statutory processes administrated by executive agencies, the standards being similar in some important respects to federal recognition standards. One state, for example, requires that the petitioning tribe present evidence that the group is “ ‘identified with a tribe . . . from historical times (200 years) until the present as “American Indian” and has a currently functioning governing body.’ ”117 Another state demands that the tribe be “ ‘indigenous to this State’ ” and have a “ ‘historical presence . . . for the past 100 years.’ ”118

U.S. 498, 506–07 (1986) (refusing to construe Termination Act’s provisions as referring only to individual members of a tribe but not to the tribe itself; “[t]he canon of construction regarding the resolution of ambiguities in favor of Indians . . . does not permit reliance on ambiguities that do not exist [nor] . . . permit disregard of the clearly expressed intent of Congress”); cf. South Dakota v. Bourland, 508 U.S. 679, 687–88 (1993) (Congress has the power to abrogate tribe’s treaty-based right to regulate non-Indian hunting and fishing on tribal lands within reservation but must clearly express its intent to do so). 112 United States v. Washington, 641 F.2d 1368, 1371 (9th Cir. 1981); accord United States v. Suquamish Indian Tribe, 901 F.2d 772, 776 n.10 (9th Cir. 1990); compare Kimball v. Callahan, 493 F.2d 564, 567–69 (9th Cir. 1974) (withdrawn members of terminated tribe retained treaty hunting and fishing rights), with United States v. Von Murdock, 132 F.3d 534, 537–41 (10th Cir. 1997) (rejecting claim of entitlement to hunting and fishing rights under Ute Termination Act as defense to criminal prosecution where defendant was not tribal member). 113 Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir. 1995); see also United States v. Washington, 641 F.2d 1368, 1372 (9th Cir. 1981); United States v. Washington, 520 F.2d 676, 693 (9th Cir. 1975). 114 United States v. Washington, 641 F.2d at 1372–73; accord United States v. Oregon, 29 F.3d 481, 484 (9th Cir. 1994), amended, 43 F.3d 1284 (1994). 115 Alexa Koenig and Jonathan Stein, Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes Across the United States, 48 Santa Clara L. Rev. 79, 153 (2007).

Id.

116

Id. at 111 (quoting Ala. Admin. Code r. 475-X-3-.03(1)–(7) (2005)).

117

Id. at 135 (quoting SC Code Ann. Regs. 139-101 (Supp. 2006)).

118

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Twelve states provide for recognition by statute.119 Two other methods provide less certainty. In six states recognition has occurred by joint or concurrent legislative resolution.120 Joint resolutions are ordinarily not “law,” and they might not bind the state to the recognition process.121 Finally, four states have employed recognition by the governor.122 Again, the binding nature of that approach can be questioned. The benefits to the recognized tribe include a “symbolic acknowledgement of a tribe’s longstanding presence within a state.”123 Individual state statutes also may provide authority over specific matters.124 In addition, state recognition may provide a significant boost to a tribe seeking federal recognition. Satisfying state authorities of long-term historical presence and organization may help persuade federal authorities.125 To the degree that state and federal recognition requirements overlap, this argument has more, or less, impact.126 Finally, a few federal statutes provide benefits, discussed in part I.C., to members of tribes recognized by states, and states themselves provide limited benefits to members of tribes they recognize. III. INDIAN COUNTRY Determining the presence of Indian country “is the benchmark for approaching the allocation of federal, tribal, and state authority with respect to Indians and Indian lands.”127 The term “Indian country” is defined for most federal criminal law purposes in 18 U.S.C. § 1151: Except as otherwise provided in sections 1154 and 1156 of this Title, the term “Indian country” as used in this chapter means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States

119

Id. at 103. Id. at 104.

120

Id. at 105–06.

121

Id. at 107–08.

122

Id. at 87.

123

E.g., Spota ex rel. Unkechaug Indian Nation v. Jackson, 883 N.E.2d 344 (N.Y. 2008) (enforcing New York statute that prohibits individuals other than members from settling or residing on lands owned or occupied by an Indian tribe with respect to the reservation of a state-recognized tribe). 124

Keonig and Stein, supra note 115, at 116 (citing statement of Secretary of the Interior Norton).

125

Connecticut is an example of a state where this argument has no impact. Connecticut recognized five tribes by statute but expressly provided that such recognition shall not be “construed to confer tribal status under federal law.” Conn. Gen. Stat. § 47–66h(b). Nonetheless, two of the tribes sought to rely on state recognition in their efforts to obtain federal recognition but the Interior Board of Indian Appeals rejected their argument and the Department of the Interior ultimately rejected their acknowledgment petitions. See In re Fed. Ack. of the Historical Eastern Pequot Tribe, 41 IBIA 1 (2005); In re Fed. Acknowledgment of the Schaghticoke Indian Nation, 41 IBIA 30 (2005) (presently on APA appeal to district court). 126

127 Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax Comm’n, 829 F.2d 967, 973 (10th Cir. 1987); see also Ahboah v. Hous. Auth. of Kiowa Tribe, 660 P.2d 625, 627 (Okla. 1983) (“[t]he touchstone for allocating authority among the various governments has been the concept of ‘Indian Country’ ”).

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Government, notwithstanding the issuance of any patent, and, including any rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of the state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Notwithstanding this provision’s literal applicability only to crimes, the Supreme Court has employed it to determine the geographical reach of state and tribal jurisdictions.128 Thus, the “Indian country” definition is relevant to virtually every aspect of Indian law unless displaced by another statutory formulation of geographic coverage.129 Because section 1151’s three subsections are disjunctive, each must be analyzed separately to determine the overall breadth of the provision.130 A. Reservations The Supreme Court has explained that the subsections in section 1151 “merely list[] the three different categories of Indian country mentioned in our prior cases.”131 Section 1151 codifies Supreme Court decisions.132 All three are imbued with the two essential requirements “necessary for a finding of ‘Indian country’ generally”: First, the lands must be “set aside” by the federal government for the use of the Indians as Indian land, that is, “some explicit action by Congress (or the Executive, acting under delegated authority) must

128 Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527 (1998) (Court has “recognized” that 18 U.S.C. § 1151 “generally applies to questions of civil jurisdiction”); Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114 (1993) (applying § 1151 in a challenge to state taxes); Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995) (same); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 n.5 (1987) (definition of “Indian country” in § 1151 applicable to that term as it appears in 28 U.S.C. § 1360); DeCoteau v. Dist. County Ct., 420 U.S. 425, 427 n.2 (1975) (“Indian country” status dispositive of whether state had jurisdiction over neglect and dependency proceedings involving Indian children); see also Mustang Prod. Co. v. Harrison, 94 F.3d 1382, 1385 (10th Cir. 1996) (applying § 1151 in a challenge to tribal taxes); Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908, 915–16 (1st Cir. 1996) (applying § 1151 in a dispute over the applicability of state and local building and zoning codes to tribal property, and finding land not to be Indian country); Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1540 (10th Cir. 1995) (applying § 1151 to challenge a tribal tax, and stating that the provision “defines Indian country for both criminal and civil jurisdiction purposes”). 129 E.g., 25 U.S.C. § 2703(4); 33 U.S.C. § 1377(h)(1). Conversely, Congress has used the § 1151 definition of “Indian country” in several civil statutes. See 25 U.S.C. § 1903(10); id. § 2801(4); id. § 3202(8). 130 See Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 126 (1993) (directing lower courts on remand to determine whether tribal members resided in Indian country—“whether the land is within reservation boundaries, on allotted lands, or in dependent communities”). 131 Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 530 (1998) (citing Donnelly v. United States, 228 U.S. 243, 269 (1913) (Indian reservations); United States v. McGowan, 302 U.S. 535, 538–39 (1938) (dependent Indian communities); United States v. Sandoval, 231 U.S. 28, 46 (1913) (same); United States v. Pelican, 232 U.S. 442, 449 (1914) (allotments).

See Venetie, 522 U.S. at 530 (citing Historical and Revision Notes to section 1151).

132

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be taken to create or recognize Indian country”; second, the land must be under “federal superintendence.”133 Section 1151(a) recognizes “any Indian reservation” as “Indian country.” Such “reservations” are not located just in the western states but, instead, are spread throughout the United States.134 As indicated, for a reservation to qualify as any type of Indian country, Congress or the Executive must take some explicit action to establish Indian country.135 The critical “set-aside” with regard to a reservation may be accomplished by treaty, statute, or executive order.136 A reservation may also be created under the general authority in 25 U.S.C. § 467, which allows the Secretary of the Interior to “proclaim new Indian reservations on lands acquired” pursuant to the IRA or to add “such lands to reservations.”137 In United States v. John,138 the Court indicated in dictum that it was prepared to find “reservation status” for lands “declared by Congress to be held in trust by the Federal Government for the benefit of the Mississippi Choctaw Indians who were at that time under federal supervision.”139 The Court did not need to make such a determination, however, because prior to the time the controversy arose, a proclamation was issued declaring the area to be a reservation.140 The Court has also indicated that the term “reservation” includes an “informal reservation,”141 but it has never given substance to the term. In the absence of a formal declaration of “reservation,” the exact reach of the “reservation” standard for Indian country is difficult to gauge, but its proper application should be assessed in light of the facts in which it has been applied—i.e., situations involving land specifically set aside by statute or treaty for exclusive tribal occupancy with congressional recognition that it is subject

Id. at 527, 530.

133

See, e.g., http://www.census.gov/dmd/www/pdf/512indre.pdf (last visited Jul. 30, 2008) (Census Bureau map of American Indian reservations, as determined under Bureau criteria, based on 2000 data). 134

Venetie, 522 U.S. at 527, 530–31.

135

See Donnelly v. United States, 228 U.S. 243 (1913) (“reservation” created by Executive Order under authority of statute); see also Felix S. Cohen, Handbook of Federal Indian Law 294–302 (1942). 136

137 An implementing document of the Department of the Interior states that a request for “adding lands to a reservation or establishing new reservation through federal proclamation” must be approved by the Assistant Secretary of Indian Affairs, and can include “[o]nly those lands taken into trust pursuant to the IRA or Indian Land Consolidation Act.” Dep’t of the Interior, “Guidelines for Proclamation” (undated).

437 U.S. 634 (1978).

138

Id. at 649.

139

Id.

140

Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 453 n.2 (1995); Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 123 (1993). 141

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to federal control.142 A more expansive view of the term would undermine the “explicit” set-aside requirement for Indian country.143 B. Dependent Indian Communities The term “dependent Indian communities” in section 1151(b) codifies a jurisdictional concept first articulated in United States v. Sandoval144 and United States v. McGowan.145 That term was not reconsidered by the Supreme Court until Alaska v. Native Village of Venetie Tribal Government.146 There, the Court held that the term “dependent Indian communities” encompasses “a limited category of Indian lands that are neither reservations nor allotments and that satisfy two requirements—first, they must have been set aside by the federal government for the use of the Indians as Indian land; second, they must be under federal superintendence. The federal set-aside requirement ensures that an “Indian community” occupies the land in question, while the federal superintendence requirement “guarantees that the Indian community is sufficiently ‘dependent’ on the Federal Government that the federal government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question.”147 The set-aside requirement was not met in Venetie because a prior federal law had abolished all reservations in Alaska, except for the Annette Island Reserve, with the intent that no further wardship or trusteeship relationship would exist between the federal government and Native Alaskans.148 Thus, the Court observed, the affected lands were acquired in fee simple by Native corporations, were not burdened by federal control or restrictions, and were freely alienable.149 It rejected the contention that the provision extending social services to Native shareholders satisfied the federal

142 See Sac and Fox Nation, 508 U.S. at 117–18 (800 acres reserved as property of tribe subject only to rights of the United States); Citizen Band Potawatomi Indian Tribe v. Oklahoma Tax Comm’n, 888 F.2d 1303, 1306 (10th Cir. 1989) (land authorized by Congress to be conveyed by tribe to United States and thereafter held in trust for the tribe’s use), aff’d in relevant part, 498 U.S. 505 (1991); United States v. John, 437 U.S. 634, 644, 649 (1978) (lands designated by Congress to be held in trust for Choctaw members); see also United States v. McGowan, 302 U.S. 535, 537 (1938) (land purchased pursuant to congressional directive to provide government-supervised settlement for needy Nevada Indians); Minnesota v. Hitchcock, 185 U.S. 373, 390 (1902) (regardless of denomination, “Indian occupation . . . confined by the treaty to a certain specified tract” was a reservation); United States v. Papakee, 485 F. Supp. 2d 1032 (N.D. Iowa 2007) (holding that settlement land was a de facto reservation for purposes of 18 U.S.C. § 1151 even though there was “no indication that a specific treaty, statute or executive order created a ‘reservation’ . . . for the Tribe”).

Venetie, 522 U.S. at 531, n.6.

143

231 U.S. 28 (1913).

144

302 U.S. 535 (1938).

145

522 U.S. 520, 530 (1998) (referring to Sandoval and McGowan and noting the reference in the Historical and Revision Notes to the United States Code, which stated that the statutory definition is based on these cases). 146

Id. at 531.

147

Id. at 532.

148

Id. at 533.

149

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superintendence requirement, since the provision of such services could not be equated with the exercise of control over land and since such a claim was “severely undercut by [the Tribe’s] view of ANCSA’s primary purposes, namely, to effect Native self-determination and to end paternalism in federal Indian relations.”150 The Venetie Court contrasted the situation of an Alaskan native village with that of the “Reno Indian Colony” found to be a “dependent Indian community” in McGowan, because, “like Indian reservations generally,” it had been “validly set apart for the use of Indians . . . under the superintendence of the government.”151 In particular, the finding with regard to the Reno Indian Colony was justified because the colony had been created by the federal government through the purchase of lands with congressionally appropriated funds and because the federal government held the colony’s land in trust for the benefit of Indians residing there.152 A dependent Indian community nonetheless need not consist of land held in trust by the federal government—a conclusion supported by United States v. Sandoval153—but there must nonetheless be both a federal set-aside and superintendence.154 In Sandoval, a pueblo owned land in fee by communal title with no individual owning any separate tract.155 The United States had, through its “legislative and executive branches,” treated the Pueblos like other Indian tribes “as dependent communities entitled to its aid and protection” beginning as early as 1854 up to the time of the Sandoval decision.156 Further, a federal statute placed the pueblos’ land under “ ‘the absolute jurisdiction and control of the Congress.’ ”157 Prior to Venetie, the lower courts had developed a wide variety of multipart balancing tests to determine if an area was a dependent Indian community. Venetie found that the Ninth Circuit’s test had missed the mark and that three parts of its six-factor test were “extremely far removed” from the

150 Id. at 534; see generally Geoffrey D. Strommer and Stephen D. Osborne, “Indian Country” and the Nature and Scope of Tribal Self-Government in Alaska, 22 Alaska L. Rev. 1, 30–31 (2005) (arguing that Congress should establish Indian country status for lands owned by native villages or, alternatively, should give villages the option of requesting such status so as, inter alia, to foster greater “village-based justice” through increased local control and to allow Native villages to “access sources of funding that the State cannot, such as Department of Justice . . . funding for tribal law enforcement and justice systems[] and Bureau of Indian Affairs . . . law enforcement funds”).

Id. at 529.

151

Id.

152

231 U.S. 28 (1913).

153

Venetie 522 U.S. at 530.

154

Sandoval, 231 U.S. at 48.

155

Id. at 37–38.

156

Venetie, 522 U.S. at 534 (citing Sandoval, 231 U.S. at 37 n.2).

157

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proper elements.158 Venetie therefore discarded the nuanced tests of the lower courts, although it did not reject the notion that the Indian country analysis may consider the broader geographic area and not just the tract at issue.159 Venetie further rejected the argument that federal superintendence could be found by virtue of a statutory declaration making the land exempt from real property taxes, from adverse possession claims, and from certain judgments, as long as it is not sold, leased, or developed.160 Whether Venetie will result in a more restrictive construction of the dependent Indian community prong of section 1151 than prior lower court decisions remains to be seen.161

Id. at 531 n.7.

158

United States v. Arrieta, 436 F.3d 1246, 1250 (10th Cir. 2006) (“We examine the entire Indian community, not merely a stretch of road, to ascertain whether the federal set-aside and federal superintendence requirements are satisfied”); HRI, Inc. v. EPA, 198 F.3d 1224, 1249 (10th Cir. 2000) (holding that Venetie did not overrule prior precedent and that “community of reference” factor should be considered before applying Venetie’s two-factor test); United States v. M.C., 311 F. Supp. 2d 1281, 1288, 1292 (D.N.M. 2004) (noting that the New Mexico Supreme Court had declined to incorporate the “community of reference” element into dependent Indian community analysis, but recognizing that it must follow circuit precedent; concluding that school community located within particular parcel constituted the appropriate reference locality because “all of the residents are there for one common goal: the education of Native American children” and because “the entire tract of land is considered one entity held by the federal government and administered by the BIA for the sole purpose of the education of Native American children”), contra State v. Frank, 52 P.3d 404, 409 (N.M. 2002) (holding that Venetie’s two-factor test was exclusive, and rejecting the “community of reference” analysis). 159

Venetie, 522 U.S. at 533.

160

See Thompson v. County of Franklin, 127 F. Supp. 2d 145, 154–55 (N.D.N.Y. 2000) (identifying two fundamental distinctions between the dependent Indian community test applied prior to Venetie and the test adopted by Venetie: the decision’s focus on the federal set-aside and federal superintendence factors, with the concomitant “undercut[ting]” of the other factors previously considered by lower courts, and the decision’s focus on federal superintendence over the involved land and not the affected tribe), aff’d, 314 F.3d 79 (2d Cir. 2002); compare State v. Dick, 981 P.2d 796, 800–01 (N.M. Ct. App. 1999) (“[t]he statement that ‘Title to the land so transferred shall remain in the United States for the use of the Bureau of Indian Affairs’ is sufficient to satisfy Venetie’s federal set-aside requirement[,]” and rejecting contention that the set-aside must be for “use of the land as a reservation or for residence by Indians”), with United States v. M.C., 311 F. Supp. 2d 1281, 1295 (D.N.M. 2004) (declining to follow Dick because the land was neither tribally owned nor held in trust and, more important, had been set aside for the use of the BIA as a school, “not . . . for the use of Indians as Indian land”); State v. Quintana, 178 P.3d 820 (N.M. 2008) (state off-reservation road on right-of-way obtained from United States Forest Service was not a dependent Indian community, even though it formed the border between two pueblos and even though the road was alleged to provide the only northern access to one of the pueblos, because there was no federal set-aside); State v. Owen, 729 N.W.2d 356, 368–69 (S.D. 2007) (land leased by city to a tribal housing authority for tribal housing did not qualify as federal set-aside land under Venetie, and area therefore could not be found to be a dependent Indian community); Dark-Eyes v. Comm’r, 887 A.2d 848, 871 (Conn. 2006) (reviewing the terms of the Mashantucket Pequot Indian Claims Settlement Act and finding no federal set-aside for property purchased with nonsettlement funds; “the federal action here at best evidences an intent to assist in the economic development of the tribe and to allow it to acquire those lands within the designated area that the private landholders had agreed to sell to the tribe during settlement negotiations without necessarily incurring a commitment to exercise jurisdiction over all activities on that land, whenever acquired by the tribe, to the presumptive exclusion of state laws”); Murphy v. State, 124 P.3d 1198, 1208 (Okla. Crim. App. 2005) (rejecting contention that road, whose surface title is now vested in abutting non-Indian landowners, constituted dependent Indian community merely because tribe retained an interest in the underlying mineral estate; “the evidence supporting th[e] claim is thin, particularly on the issue of dependency[,]” and “there does not seem to be much federal superintendence”); cf. State v. Romero, 142 P.3d 887, 895–96 (N.M. 2006) (Pueblo lands constituting dependent Indian community are generally legally equivalent to “reservations”; sale of such lands to non-Indians does not divest lands of Indian country status); see generally Robert J. Lucero, 161

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C. Trust Allotments The Indian “allotment” provision in section 1151(c) derives from United States v. Pelican,162 where the Supreme Court determined that land that had been allotted in trust to a tribal member at the time a portion of a reser­vation was restored to the public domain maintained its character as Indian country, since “the lands remained Indian lands [during the applicable trust period], set apart for Indians under governmental care[.]”163 The Pelican court referred to the fact that the lands, as allotments, “still retain during the trust period a distinctively Indian character,” that they would eventually be restored to the “public domain,” but “meanwhile, the lands remain Indian lands.”164 The references to the Indian character of the allotments “during the trust period” and to their “meanwhile” status as “Indian lands,” together with their fundamental description as “Indian allotments,”165 indicate that allotted lands to which fee patents have been issued lose status as Indian country if not otherwise covered by section 1151(a) or (b).166 D. Trust Land and Indian Country Status Substantial controversy has arisen over the nature and character of “trust lands.” Much of the confusion has emanated from conflating two closely related, but nonetheless distinguishable, concepts. “Trust lands” are those lands acquired by the United States on behalf of individual Indians and tribes under

Note, State v. Romero: The Legacy of Pueblo Land Grants and the Contours of Jurisdiction in Indian Country, 37 N.M. L. Rev. 671, 694 (2007) (criticizing the Romero majority’s analysis as unnecessarily relying on Venetie, and agreeing with the concurring opinion; “the U.S. Supreme Court’s recognition of the Pueblos’ status as dependent Indian communities in Sandoval is enough to establish that the land in question is Indian country”) (footnote omitted). 232 U.S. 442 (1914).

162

232 U.S. at 449; accord DeCoteau v. Dist. County Ct., 420 U.S. 425, 446–47 (1975); United States v. Stands, 105 F.3d 1565, 1572 (8th Cir. 1997); Mustang Prod. Co. v. Harrison, 94 F.3d 1382, 1385 (10th Cir. 1996); Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1541 (10th Cir. 1995). 163

United States v. Pelican, 232 U.S. at 449.

164

See United States v. Ramsey, 271 U.S. 467, 470–72 (1926) (describing difference between trust and restricted allotment lands, but finding both to be Indian country for criminal jurisdiction purposes); United States v. Stands, 105 F.3d 1565, 1572 (8th Cir. 1997) (distinguishing between “trust” allotment and “restricted fee” allotment, but finding distinction irrelevant for jurisdictional purposes). 165

166 See United States v. Stands, 105 F.3d 1565, 1572 (8th Cir. 1997) (stating that, in criminal prosecution where Indian country status is alleged to derive from § 1151(c), the government was required to prove not only that land where assault occurred originally was allotted but also that trust restrictions had not been extinguished).

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the authority of 25 U.S.C. § 465167 or some other express congressional grant.168 Roughly 9 million acres have been taken into trust under section 465.169 Such lands must be distinguished from “trust allotments.” “Trust allotments” are “individual land tracts retained by members of [a tribe] when the rest of the reservation lands were sold to the United States.”170 They also may be tracts taken by individual tribal members out of the communal tribal land base within a reservation that retains its borders.171 Of the much larger former Indian land base, approximately 47 million acres remained in trust status as Indian allotments at the end of 1997.172 Trust lands nevertheless share some characteristics of allotted lands. Both, for example, are exempt from state and local property taxation. Indeed, 25 U.S.C. § 465 specifically provides for such exemption.173 Further, a city may

167 The constitutionality of 25 U.S.C. § 465 has been contested. In South Dakota v. USDOI, 69 F.3d 878 (8th Cir. 1995), the Eighth Circuit held that § 465 violated the non-delegation doctrine by providing no legislative standards to govern the Secretary of the Interior’s acquisition of trust lands. It described the existence of an “agency fiefdom whose boundaries were never established by Congress and whose exercise of unrestrained power is free from judicial review.” 69 F.3d at 885. The United States petitioned for a writ of certiorari and simultaneously adopted a new rule specifically providing a time period in which to apply for judicial review. 61 Fed. Reg. 18,083 (1996). Based on the Secretary’s adoption of the new rule allowing review, the Supreme Court vacated the Eighth Circuit’s decision and remanded the matter. USDOI v. South Dakota, 519 U.S. 919 (1996). The Secretary subsequently published another rule, Acquisition of Title to Land in Trust, 66 Fed. Reg. 3452 (Jan. 16, 2001), to establish more concrete standards and procedures for taking land into trust. However, the rule’s implementation was delayed, 66 Fed. Reg. 19,403 (Apr. 16, 2001), and the regulation was subsequently withdrawn. 66 Fed. Reg. 56,608 (Nov. 9, 2001). The comments in connection with possible withdrawal indicated a significant diversity of views over the standards for determining whether on- or off-reservation land should be placed into trust. Id. at 56,609. Following the Supreme Court’s remand, a different Eighth Circuit panel in the South Dakota litigation concluded that the statute did not run afoul of the non-delegation doctrine, reasoning that “[t]he statutory aims of providing lands sufficient to enable Indians to achieve self-support and ameliorating the damage resulting from the prior allotment policy” adequately channeled the Secretary’s authority. South Dakota v. USDOI, 423 F.3d 790, 799 (8th Cir. 2005); see also Mich. Gambling Ass’n v. Kempthorne, 525 F.3d 23, 30–33 (D.C. Cir. 2008); Carcieri v. Kempthorne, 497 F.3d 15, 41–43 (1st Cir. 2007) (en banc), cert. granted 128 S. Ct. 1443 (2008) (certiorari denied on delegation issue and granted on other issues); Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966, 972–73 (10th Cir. 2005) (citing United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999)); cf. TOMAC v. Norton, 433 F.3d 852, 867 (D.C. Cir. 2006) (no nondelegation infirmity with provision in the Pokagon Restoration Act directing the Secretary of the Interior to acquire real property for the restored tribe’s benefit that, once acquired, would become part of the tribe’s reservation; “[i]t is obvious here that the Secretary’s delegated authority . . . is cabined by ‘intelligible principles’ delineating both the area in and purpose for which the land should be purchased”). 168 See, e.g., 25 U.S.C. § 1775(c) (Mohegan Nation Land Claim Settlement Act); Id. § 1754(b)(7) (Mashantucket Pequot Land Claims Settlement Act); Confederated Salish & Kootenai Tribes v. United States, 343 F.3d 1193 (9th Cir. 2003) (construing Flathead Act, Pub. L. No. 90-402, 82 Stat. 356 (1968), that authorized Secretary to acquire lands within the Flathead Indian Reservation for the benefit of the resident tribes or their members).

USDOI v. South Dakota, No. 95-1956, Petition for Writ of Cert. at 17.

169

DeCoteau v. Dist. County Ct., 420 U.S. 425, 428 (1975).

170

Solem v. Bartlett, 465 U.S. 463 (1984).

171

USDOI v. South Dakota, No. 95-1956, Petition for Writ of Cert. at 4, 17; U.S. Dep’t of the Interior, Lands Under the Jurisdiction of the Bureau of Indian Affairs (Dec. 31, 1997). 172

173 See also Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 110–15 (1998); County of Yakima v. Confederated Tribe and Bands of Yakima Indian Nation, 502 U.S. 251 (1992).

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not assess delinquent water service charges against ordinary trust land.174 Moreover, trust land, like allotted land, may not be freely alienated. 25 U.S.C. § 483 allows the Secretary to issue patents in fee or to approve conveyances of land in trust status. The Department has promulgated rules that purport to allow the Department to remove trust status only if the Secretary, “in his discretion, determines that the applicant is competent.”175 The test, which seems at odds with the thesis of anti-paternalism that underlies the Indian Reorganization Act of 1934, seeks to resolve whether the applicant is apt to act with a “reasonable degree of prudence.”176 Similarly, an Indian owner may not execute a mortgage or deed of trust to his land without prior approval of the Secretary.177 The volume of land moving to trust status is significant. In 1997, the BIA acquired “about 360,000 acres [of land in trust] and disposed of about 260,000 acres [of trust and allotted land] for a net increase of about 100,000 acres.”178 Whether taking off-reservation land into trust transforms it into “Indian country” is disputed.179 Several reasons counsel against that proposition. First, 25 U.S.C. § 465 was enacted as part of the IRA, along with 25 U.S.C. § 467.

Chase v. McMasters, 405 F. Supp. 1297, 1302 (D.N.D. 1975), aff’d, 573 F.2d 1011 (8th Cir. 1978).

174

25 C.F.R. § 152.5. The rules define “competent” at 25 C.F.R. § 152.1(e) as the “possession of sufficient ability, knowledge, experience, and judgment to enable an individual to manage his business affairs, including the administration, use, investment, and disposition of any property turned over to him and the income or proceeds therefrom, with such reasonable degree of prudence and wisdom as will be apt to prevent him from losing such property or the benefits thereof.” The Eighth Circuit has expressed some hesitancy about the legitimacy of this regulation but in the Oglala Sioux Tribe v. Hallett, 708 F.2d 326, 331 n.8 (8th Cir. 1983), nonetheless found it satisfied. 175

25 C.F.R. 152.1(e).

176

Id. § 152.34.

177

Government Accountability Office, Indian Issues, BIA’s Efforts to Impose Time Frames and Collect Better Data Should Improve the Process of Land in Trust Applications, GAO-06-781, at 9. 178

179 Compare United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999) (trust land constitutes Indian country), with United States v. Stands, 105 F.3d 1565 (8th Cir. 1997) (trust land status alone insufficient to constitute Indian country). Although the Eighth Circuit found in Stands that trust land status was itself insufficient to create “Indian country,” the court initially seemed to abandon that stance in South Dakota v. United States Department of the Interior, 475 F.3d 993 (8th Cir. 2007), in which it found that the mere creation of trust status conferred “Indian country” status. On rehearing, however, the original opinion was vacated and a new analysis substituted which declared that the issue need not be decided but implied—quoting an administrator’s finding below—that the formal declaration of “reservation” status by the Secretary under 25 U.S.C. § 467 was necessary to convert trust land to “reservation” status. South Dakota v. USDOI, 487 F.3d 548, 553 (8th Cir. 2007). The District of Columbia Circuit also suggested the existence of such a requirement when it described 25 U.S.C. § 465 as allowing the United States to take land into trust and noted that the “Secretary is authorized to designate such lands as part of the tribe’s reservation” by way of a proclamation under 25 U.S.C. § 467. Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 462 (D.C. Cir. 2007). The court further cited the Secretary’s guidelines implementing the power to issue a reservation proclamation, which explain the effect of a proclamation as allowing “the tribe . . . [to] take advantage of special federal assistance” and “clarif[ying] tribal jurisdiction over the trust property.” Id. (citing DOI “Guidelines for Proclamations”). The South Dakota and Citizens Exposing cases thus arguably recognize that merely placing land in trust status under 25 U.S.C. § 465 does not create “reservation” status and that such status follows only upon the issuance of an appropriate proclamation under 25 U.S.C. § 467. But in Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966, 978 (10th Cir. 2005), nonreservation land adjacent to federal interstate highway taken into trust was deemed Indian country.

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The latter statute allows the Secretary of the Interior to “proclaim new Indian reservations” or to “add” to reservations lands acquired pursuant to several statutes, including 25 U.S.C. § 465. Sections 465 and 467 were assigned different functions in 1934, and it seems inappropriate to argue that section 465 somehow sub silentio accomplished what section 467 explicitly accomplished. The Department of the Interior has adopted “Guidelines for Proclamations,” which state that lands can be added to a reservation only if they have first been “taken into trust pursuant to the IRA or Indian Land Consolidation Act.”180 If lands can be proclaimed a “reservation” only if they are first taken into trust, then it makes no sense to argue that lands become “reservation” at the moment they are taken into trust. Second, merely putting land into trust does not itself make it a “dependent Indian community.” In cases in which the Supreme Court has found a dependent Indian community to exist, as noted above, it required more than a simple administrative action. Rather, the Court has generally recognized “dependent Indian communities” only when the federal government has taken an action that identifies the area as having a homeland status to an identifiable Indian community.181 The resolution of this question ultimately will depend upon the Court’s interpretation of the requirement of “dependent Indian communities” set out in Alaska v. Native Village of Venetie Tribal Government,182 particularly whether there has been a sufficient “set-aside by the federal government for the use of Indians as Indian land” accompanied by sufficient “federal superintendence” of the lands. Potentially relevant to the analysis is the Venetie finding that a statutory exemption from property taxes and freedom from adverse possession claims prior to sale or development with regard to the Alaska settlement lands did not “approach the level of superintendence” necessary to satisfy that prong of the dependent Indian community test.183 The inquiry may also be influenced by the fact that “reservation,” and thus “Indian country,” status can be created in trust lands by formal proclamation under 25 U.S.C. § 467; thus, a finding that all land taken into trust is “Indian country” because it is a dependent Indian community might well be found to undermine the function of that statute. Third, the act of placing land into trust under section 465 does not make that land an “Indian allotment” under 18 U.S.C. § 1151(c). An Indian “allotment” is land that was taken by individual Indians from the communal land

180 Dep’t of Interior, Guidelines for Proclamations (undated); see also Citizens Exposing Truth About Casinos, 492 F.3d at 469.

See supra notes 151–152.

181

522 U.S. 520, 527 (1997).

182

Id. at 533.

183

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base prior to the IRA.184 It would also be anomalous to find that “trust land” constituted an “allotment” when the IRA itself, in its very first section, prohibited the further “allotment” of any land.185 E. Land Claims Settlement Lands While not constituting Indian country for section 1151 purposes, a form of Indian land possessing unique jurisdictional characteristics has been created under various Indian claims settlement acts186 adopted since 1978 to resolve numerous tribal title claims to non-Indian-held lands.187 The involved tribes agreed, among other things, to relinquish their land claims in return for compensation.188 In most instances, they also agreed that their current and future acquired lands would be subject to state civil and criminal laws and jurisdiction.189 Nevertheless, the statutes exempt many of these lands from state taxation.190

DeCoteau, 520 U.S. at 428.

184

25 U.S.C. § 461.

185

Rhode Island Indian Claims Settlement Act (Id. §§ 1701–1716); Maine Indian Claims Settlement Act (Id. §§ 1721–1735); Florida Indian (Miccosukee) Land Claims Settlement Act (Id. §§ 1741–1749); Connecticut Indian Land Claims Settlement Act (Id. §§ 1751–1760); Massachusetts Indian Land Claims Settlement Act (Id. §§ 1771–1771i); Florida Indian (Seminole) Land Claims Settlement Act (Id. §§ 1772–1772g); Washington Indian (Puyallup) Land Claims Settlement Act (Id. §§ 1773–1773g); Seneca Nation (New York) Land Claims Settlement Act (Id. §§ 1774–1774h); Mohegan Nation (Connecticut) Land Claims Settlement Act (Id. §§ 1775–1775h); Crow Boundary Settlement Act (Id. §§ 1776–1776k). 186

Id. §§ 1712, 1723, 1744, 1753, 1771b, 1772c, 1773a, 1774b, 1775b, 1776c.

187

Id. §§ 1703, 1705, 1723, 1724, 1753, 1754, 1771a, 1771b, 1772c, 1772d, 1773a, 1773d, 1774b, 1774d, 1774e, 1775b, 1776c. How such agreements should be interpreted is one of the questions presented in Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007) (en banc), cert. granted, 128 S. Ct. 1443 (2008), which involves whether the Narragansett Tribe’s agreement to extinguish aboriginal title throughout Rhode Island precluded it from applying to have the Secretary of the Interior take land into trust on its behalf pursuant to 25 U.S.C. § 465. 188

189 25 U.S.C. §§ 1708, 1725, 1746, 1747(b), 1755, 1771e(a), 1771g, 1775d, 1776d; but see Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994) (because the Rhode Island Claims Settlement Act did not by its terms extend exclusive civil and criminal jurisdiction to the state, the tribe maintained concurrent jurisdiction); cf. Kimball v. Land Use Regulation Comm’n, 745 A.2d 387, 392–93 (Me. 2000) (land acquired by tribe in 1988 but not placed into trust with the Secretary of the Interior until 1994 did not constitute “Indian territory” as defined in state statute implementing Maine Indian Claims Settlement Act, since statute required such land to be placed into trust by January 1991).

E.g., 25 U.S.C. §§ 1715, 1745(a), 1771e(d).

190

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Chapter 3 Indian Land and Property: Title and Use

Land occupancy and ownership issues have been a central concern of Indian law since the nation’s founding. Beginning with the first Trade and Intercourse Act in 1790, statutory restraints have limited the ability of tribes to alienate land. In Johnson v. McIntosh Chief Justice Marshall established common law principles based on the discovery doc­trine that paralleled the statutory restraints. Despite the relative clarity of federal law in this regard, varying historical circumstances and statutory or treaty considerations have been a fertile source of litigation for tribal land conveyances. Difficult questions have arisen from congressional and Executive Branch actions affecting reservation boundaries and, therefore, the geographic boundaries of tribal jurisdiction. Significant controversy has attended efforts to reconcile tribal land grants with the equal footing doctrine’s presumption that states hold title to the beds of navigable rivers and lakes. An important component of landownership is the ability of tribes and individual Indians to recover economic rent from their lands by leasing the mineral and surface estates, granting rights-of-way, and authorizing timber harvests. Economic use, however, has been inhibited by fractionated title, that is, undivided ownership of a parcel by many individuals. Finally, issues collateral to property interests are the handling and control of Indian remains, grave goods, sacred and cultural objects and the preservation of areas of spiritual significance. I. SOURCES OF TRIBAL LAND OCCUPANCY RIGHTS There are two sources of tribal land occupancy rights: an aboriginal right premised on exclusive use of a particular territory at the time of first European contact, and an entitlement arising subsequent to such contact under the governing sovereign’s laws. The first source of enti­tlement, often termed “aboriginal” or “Indian title,” derived largely from inter­national law

Act of July 22, 1790, 1 Stat. 137 (partially codified at 25 U.S.C. § 177).



21 U.S. (8 Wheat.) 543 (1823).



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concepts prevailing before and after the American Revolution. A tribe establishes aboriginal title by “immemorial occupancy . . . to the exclusion of other Indians.” The second source of land occupancy rights derived from treaties, statutes, execu­tive orders, and actions by prior sovereigns. The rights attaching to tribal title were unaffected by its source except, most importantly, as to the title’s status as property for taking purposes under the Fifth Amendment of the Constitution. A. Aboriginal Title-Based Occupancy Rights The concept of aboriginal title was first addressed in Johnson v. McIn­tosh, an ejectment action. Prior to the Revolution, the plaintiff had acquired land from Indian chiefs. The defendants claimed possession based on later grants from the United States. Applying principles formulated under European law, the Court concluded that the chiefs lacked authority to make the ear­lier grants and, therefore, they were void. The Court reasoned that, upon the continent’s discovery by Europeans, the discovering sovereign acquired “an exclusive right to extinguish the Indian title of occupancy, either by pur­chase or by conquest.” Until such termination, however, “the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.”10 In sum, “[t]he abso­lute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring.”11 Because the “absolute ultimate title” vests upon discovery, the dis­covering sovereign or a subsequent sovereign possesses fee title, which it may convey

 See Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 43–44 (1947) (“Our concepts of Indian title derive only in part from common law feudal concepts. In the main, they are to be traced to Spanish origins, and particularly to doctrines developed by Francisco de Vitoria, the real founder of modern inter­ national law”).  Nw. Bands of Shoshone Indians v. United States, 324 U.S. 335, 338–39 (1945); see also New York v. Shinnecock Indian Nation, 523 F. Supp. 2d 185, 251 (E.D.N.Y. 2007); Greene v. Rhode Island, 398 F.3d 45, 50 (1st Cir. 2005); Cayuga Indian Nation v. Cuomo, 758 F. Supp. 107, 110 (N.D.N.Y. 1991).  See Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313, 343 (N.D.N.Y. 2003).  Extinguishing aboriginal title is not a compensable taking. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955); Karuk Tribe v. United States, 41 Fed. Cl. 468, 476 (1998), aff’d, 209 F.3d 1366 (Fed. Cir. 2000).

21 U.S. (8 Wheat.) 543 (1823).



Id. at 572–84.



Id. at 587.



Id. at 591.

10 11

Id. at 592; accord Holden v. Joy, 84 U.S. (17 Wall.) 211, 243–44 (1872).

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to third parties, “subject only to the Indian right of occu­pancy.”12 The conveyances ripen into full fee ownership immediately upon termination of aboriginal title.13 Colonial-era sovereigns could terminate aboriginal title but after the Union was formed, only Congress could do so.14 It could be done by either treaty ratification or statute as well as by the Executive Branch acting under legislative direction.15 The intent to extin­guish aboriginal title must be clear from the particular statutory or treaty language16 or from attendant historical circumstances.17 Simply establish­ing a reservation for a tribe’s occupancy is

12 Buttz v. N. Pac. R.R., 119 U.S. 55, 67 (1886). A discovering sovereign’s rights could devolve to other sovereigns. Outside of the original thirteen states, the United States assumed the rights of prior sovereigns upon acquiring their possessions. E.g., Oneida Indian Nation v. Oneida County, 414 U.S. 661, 670–74 (1974). Under the Articles of Confederation, however, the thirteen states had not ceded their right to extinguish Indian title to the national government. Lattimer’s Lessee v. Poteet, 39 U.S. (14 Pet.) 4, 14 (1840); Clark v. Smith, 38 U.S. (13 Pet.) 195, 201 (1839); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 142 (1810). After the Constitution’s adoption, a question arose whether the original states retained the power to extinguish aborigi­nal occupancy rights in view of the Indian Commerce Clause (U.S. Const. art. I, § 8, cl. 3) and its com­mitment of Indian affairs to federal authority. The first Trade and Intercourse Act (Act of July 22, 1790, 1 Stat. 137) was directed in part at resolving that issue. See generally Robert N. Clinton and Margaret Tobey Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Ori­gins of the Eastern Land Claims, 31 Me. L. Rev. 17, 36 (1979) (“The problem sought to be remedied . . . was not . . . conveyances of Indian land per se but rather unauthorized state or private extinguishment of Indian title followed by actual dispossession. The elimi­nation of the latter practices was quite plainly a political necessity because the experience under the Arti­cles of Confederation had demonstrated that duplicity and lack of uniformity in the states’ handling of Indian land cessions were primary sources of Indian hostilities”); Susan C. Antos, Comment, Indian Land Claims Under the Nonintercourse Act, 44 Alb. L. Rev. 110, 116 (1979); contra 2 Op. Att’y Gen. 321, 327–28 (1830) (suggesting that even after the Trade and Intercourse Acts were adopted, states did not need federal approval to acquire Indian land). The Supreme Court subsequently held that, even without reference to the Trade and Intercourse Acts, “termination [of Indian occupancy] was exclu­sively the province of federal law.” Oneida Indian Nation, 414 U.S. at 670; see also Oneida County v. Oneida Indian Nation, 470 U.S. 226, 233–40 (1985) (common law right of action for unlawful pos­session independent of and not preempted by Trade and Intercourse Acts). For recent discussions of the law of Indian land tenure, see New York v. Shinnecock Indian Nation, 523 F. Supp. 2d 185, 251–52 (E.D.N.Y. 2007); Seneca Nation v. New York, 206 F. Supp. 2d 448, 502–05 (W.D.N.Y. 2002), aff’d, 382 F.3d 245 (2d Cir. 2004). 13 Buttz, 119 U.S. at 69–70; see also Beecher v. Wetherby, 95 U.S. 517 (1877) (unencumbered fee vested in a state under a federal school land grant upon tribes’ removal from the land). 14 Oneida Indian Nation v. New York, 860 F.2d 1145, 1150 (2d Cir. 1988); New York v. Shinnecock Indian Nation, 523 F. Supp. 2d 185, 251, 273–74 (E.D.N.Y. 2007) (extinguishment must be unambiguous and either expressed on the face of the instrument or made plain by the surrounding circumstances; subsequent events may also be considered). 15 See, e.g., United States v. Santa Fe Pac. R.R., 314 U.S. 339, 347 (1941) (extinguishing “Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme”); United States v. Dann, 873 F.2d 1189, 1196 n.5 (9th Cir. 1989); Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d 935, 945 (Ct. Cl. 1974) (“The sole and plenary power of Congress to deal with matters of Indian title has long been recognized. Congress may of course delegate this power, as when it sets up by statute ‘. . . machinery for extinguishment of claims, including those based on Indian right of occupancy.’ But the unilateral action of an officer of the executive branch cannot eliminate Indian title”) (citations omitted); United States v. Newmont USA Ltd., 504 F. Supp. 2d 1050, 1062 (E.D. Wash. 2007) (summarizing principles). 16 See, e.g., Santa Fe Pac. R.R., 314 U.S. at 353–54; Seneca Nation v. New York, 382 F.3d 245, 260 (2d Cir. 2004); Yankton Sioux Tribe v. South Dakota, 796 F.2d 241, 244 (8th Cir. 1986). 17 See, e.g., Seneca Nation v. New York, 382 F.3d 245, 260 (2d Cir. 2004); Plamondon ex rel. Cowlitz Tribe v. United States, 467 F.2d 935, 936–37 (Ct. Cl. 1972) (creating a reservation for nontreaty tribes, authorizing sale of lands where most members resided, and substantial settlement by non-Indians extinguished aboriginal title); State v. Elliott, 616 A.2d 210, 215–21 (Vt. 1992) (examining events surrounding state­hood to determine

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inadequate to prove termination.18 Also, a tribe might lose title to its aboriginal lands by voluntary abandonment.19 Two issues not expressly discussed in Johnson, but nonetheless gov­ erned by its reasoning, were resolved by later cases. First, the manner, time, and conditions of extinguishing aboriginal title were matters solely for the government’s consideration and are not open to consideration by the courts.20 Second, termination did not constitute a compensable taking under the Fifth Amendment since a tribe’s aboriginal occupancy was not a property right but, instead, only a usu­fructuary privilege terminable at Congress’s discretion.21 Thus, tribes, prior to adoption of the 1946 Indian Claims Commission Act,22 were left with no effec­tive judicial remedy.23 Tribes were unable to invoke the Supreme Court’s original jurisdiction, the doctrine of sovereign immunity prevented them from using other federal courts, and federal supremacy over Indian lands prevented tribes from using state courts.24 They had to rely on special statutes, under which the United States’ sovereign immunity was waived, to bring compensation claims for alleged deprivations of aboriginal land rights.25 In 1946, Congress established the Indian Claims Commission and authorized it to determine certain claims, including those “arising from the taking by the United States, whether as the result of a treaty of cession or other­wise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant” or “based upon fair and honorable dealing that are not recognized by any existing rule of law or equity.”26 The In-

whether aboriginal occupancy rights extinguished); State v. Cameron, 658 A.2d 939 (Vt. 1995) (per curiam) (same); Joseph W. Singer, Well Settled? The Increasing Weight of History in American Indian Land Claims, 28 Ga. L. Rev. 481 (1994) (criticizing Elliot decision). 18 Santa Fe Pac. R.R., 314 U.S. at 353; United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1388 (Ct. Cl. 1975); Gila River Pima-Maricopa Indian Cmty. v. United States, 494 F.2d 1386, 1389 (Ct. Cl. 1974). 19 Barker v. Harvey, 181 U.S. 481, 498–99 (1901); see also United States v. Pend Oreille County Pub. Util. Dist., 585 F. Supp. 606, 610 (E.D. Wash. 1984) (dictum) (a tribe may “voluntarily abandon aboriginal land not included within the reservation”). 20 Buttz, 119 U.S. at 66 (1886); accord Santa Fe Pac. R.R., 314 U.S. at 347; Delaware Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006). 21 Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955); accord United States v. Sioux Nation, 448 U.S. 371, 415 n.29 (1980); see generally Daniel G. Kelly, Jr., Note, Indian Title: The Rights of American Natives in Lands They Have Occupied Since Time Immemorial, 75 Colum. L. Rev. 655, 664–77 (1975) (dis­cussing development of case law on the taking issue).

Pub. L. No. 79-726, 60 Stat. 1049 (1946).

22

Kelly, supra note 21, at 663.

23

Id. at 662–63.

24

Felix S. Cohen’s Handbook of Federal Indian Law 563 (Rennard Strickland et al. eds., 1982) (“Strickland”); see, e.g., Pub. L. No. 75-754, 52 Stat. 1209 (1938) (Ute Indians); Pub. L. No. 74-141, 49 Stat. 388 (1935) (Tlingit and Haida Indians). “For various reasons, most of the claims under special jurisdictional acts were unsuccessful.” Kelly, supra note 21, at 664 n.66. 25

Indian Claims Commission Act, Pub. L. No. 79-726, § 2, 60 Stat. 1049, 1050 (1946).

26

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dian Claims Commission Act was the first “mechanism of general applicability by which Indian tribes could litigate treaty claims against the United States.”27 Its principal pur­poses were “ ‘to dispose of the Indian claims problem with finality’ ” and “to transfer from Congress to the Indian Claims Commission the responsibility for determining the merits of Native American claims.”28 Tribes had to file claims within five years.29 The Commission eventually awarded compensation where aboriginal territory was taken without adequate compensation.30 Payment of such claims terminated the underlying aboriginal title if not previously extinguished.31 The Commission contin­ued operation until 1978, when its remaining cases were trans­ferred to the United States Court of Claims.32 More than 600 claims were included in petitions filed with the Commission before its 1951 cutoff date.33 Nonetheless, the Indian Claims Commission Act did not resolve all tribal land claims.34 One of these claims, and perhaps the most complex, was that of the Alaskan Natives, composed of Indians, Eskimos, and Aleuts. Discovery of major oil reserves on the Arc­tic Slope forced the federal government, for the first time, to address the aboriginal land rights of Alaska Natives.35 The 1971 Alaska Native Claims Settlement Act (ANCSA)36 did so by extinguishing

Sioux Nation, 448 U.S. at 384.

27

United States v. Dann, 470 U.S. 39, 45 (1985) (quoting in part H.R. Rep. No. 1466, 79th Cong., 1st Sess., 10 (1945)). 28

Indian Claims Commission Act, Pub. L. No. 79-726, § 12, 60 Stat. 1049, 1052 (1946).

29

See generally Michael J. Kapplan, Annotation, Proof and Extinguishment of Aboriginal Title to Indian Lands, 41 A.L.R. Fed. 425, 482–83 (1979) (collecting cases). After the Commission made an award, litigation could arise over its distribution. E.g., Davis ex rel. Davis v. United States, 343 F.3d 1282 (10th Cir. 2003) (Seminole Tribe); LeBeau v. United States, 171 F. Supp. 2d 1009 (D.S.D. 2001) (Sisseton and Wahpeton Sioux Tribes). 30

31 United States v. Dann, 470 U.S. at 44–50 (paying aboriginal title claim under Indian Claims Commission Act barred individual tribal members from relying on such title); see also United States v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502, 1508–09 (9th Cir. 1991); United States v. Dann, 873 F.2d 1189, 1194–95 (9th Cir. 1989); United States v. Gemmill, 535 F.2d 1145, 1148–49 (9th Cir. 1976); Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 202 (9th Cir. 1991). 32 Pub. L. No. 94-465, 90 Stat. 1990 (1976); Pub. L. No. 95-69, 91 Stat. 273 (1977). Effective October 29, 1992, the United States Claims Court became the “United States Court of Federal Claims.” Pub. L. No. 102-572, §§ 902, 911, 106 Stat. 4506, 4516, 4520 (1992); see 28 U.S.C. §§ 171–178.

Margaret Hunter Pierce, The Work of the Indian Claims Commission, 63 A.B.A. J. 227, 229 (1977).

33

“ ‘[T]he worst result of the Indian Claims Commission Act is that we thought by adjudicating these claims we had achieved a final settlement.’ ” Russell Lawrence Barsh, Indian Land Claims Policy in the United States, 58 N.D. L. Rev. 7, 40 (1982) (quoting Sen. H. Jackson). A discussion of some hurdles faced by tribes bringing land claims today is Aaron L. Pawlitz, The United States’ Indispensability in Indian Land Claims: The Proper Application of Provident Tradesmens, 45 St. Louis U. L. J. 1349 (2001). 34

35 Barsh, supra note 34, at 38; James D. Linxwiler, The Alaska Native Claims Settlement Act: The First 20 Years, 38 Rocky Mtn. Min. L. Inst. 2-1, 2-10 (1992); John R. Boyce and Mats A.N. Nilsson, Interest Group Competition and the Alaska Native Land Claims Settlement Act, 39 Nat. Resources J. 755 (1999) (summarizing the history and settlement of the Native land claim). 36 Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as amended at 43 U.S.C. §§ 1601–1629e); see generally James D. Linxwiler, The Alaska Native Claims Settlement Act at 35: Delivering on the Promise, 53 Rocky Mt. Min. L. Inst. 12-1 (2007); Linxwiler, supra note 35; Barsh, supra note 34; see also Benjamin W. Thompson,

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aboriginal title to virtually all land in Alaska and providing compensation in return. The Natives received nearly $1 billion and about 40 million acres of land.37 This compensation is administered by the Native-owned corporations created by ANCSA.38 Although ANCSA extinguished aboriginal title, it did not apply to aboriginal occupancy and subsistence rights on the Outer Continental Shelf.39 Furthermore, after ANCSA, Alaska Natives could still assert property claims based on fee simple title because the Act extinguished only aboriginal title.40 ANCSA, however, did foreclose Native claims based upon pre–Settlement Act trespasses.41 The Indian Claims Commission Act also did not resolve the land claims of tribes along the eastern seaboard. During the 1970s, the tribes brought numerous suits.42 After about 150 years of non-Indian occupa­tion, eastern

The De Facto Termination of Alaska Native Sovereignty: An Anomaly in an Era of Self-Determination, 24 Am. Ind. L. Rev. 421 (2000) (arguing that ANCSA is largely responsible for terminating sovereignty of Alaska Natives). The Indian country status of ANCSA land was addressed in Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520 (1998). 37 Linxwiler, supra note 35, at 2-27, 2-36. Additional land was conveyed to Indian reservations that chose not to accept ANCSA’s benefits. 43 U.S.C. § 1618. Alaskan Natives also ben­efit from the Alaska National Interest Lands Conservation Act of 1980 (ANILCA). Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended in scattered sections of Titles 16 and 43 of the United States Code). Part of ANILCA, 16 U.S.C. § 3120, protects “Alaskan subsistence resources from unnecessary destruction.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544 (1987). 38 The Act organized Alaskan Natives into 12 regional corporations, loosely along ethnic and geographic lines, and established a thirteenth corporation for Natives living outside Alaska. 43 U.S.C. § 1606(a)(c). These corporations have become “sophisticated business powerhouses.” Linzwiler, supra note 35, at 12.6. Corporations were also authorized for any “Native village.” 43 U.S.C. § 1607(a). About 255 Native villages eventually organized corporations. Barsh, supra note 34, at 53. All existing reservations were abolished except for the Annette Island Reserve of the Metlakatla Indian Community, whose members rejected ANCSA. Millions of acres of ANCSA lands are jointly owned by regional corporations and Native villages, leading to land use disputes between the two. See, e.g., Leisnoi, Inc. v. Stratman, 154 F.3d 1062 (9th Cir. 1998); see generally Britt Lindsay, Tribal Land Quarrels in Alaska: Leisnoi v. Stratman, 20 Pub. Land & Resources L. Rev. 169 (1999) (analyzing practical application of ANCSA). 39 Vill. of Gambell v. Hodel, 869 F.2d 1273, 1278–80 (9th Cir. 1989). Native claims to Outer Continental Shelf lands are in doubt. A Native village, asserting aboriginal title, had its claim rejected because it conflicted with the federal government’s need to exercise jurisdiction over foreign commerce, foreign affairs, and national defense. Native Vill. of Eyak v. Trawler Diane Marie, Inc., 154 F.3d 1090 (9th Cir. 1998); see generally David J. Bloch, Colonizing the Last Frontier, 29 Am. Indian L. Rev. 1 (2004–2005) (discussing Eyak and the relationship between aboriginal title and the federal paramountcy doctrine with respect to title to offshore fishing grounds, and arguing that the Ninth Circuit erred by applying federal paramountcy to find aboriginal title extinguished). 40 Akootchook v. United States, 271 F.3d 1160 (9th Cir. 2001) (claim under 1906 Alaska Natives Allotment Act); Aleut Cmty. of St. Paul Is. v. United States, 480 F.2d 831, 838 (Ct. Cl. 1973) (claim under Russian law). See also Bay View, Inc., v. United States, 46 Fed. Cl. 494, 499–500 (2000) (ANCSA is neither a contract nor a treaty and does not create a breach of contract or treaty claim). 41 United States v. Atlantic Richfield Co., 612 F.2d 1132, 1134 (9th Cir. 1980) (“the Act extinguished not only the aboriginal titles of all Alaska Natives, but also every claim ‘based on’ aboriginal title”); cf. Edwardsen v. Morton, 369 F. Supp. 1359, 1378–79 (D.D.C. 1973). Some other lingering issues, such as the status of Native villages as tribes and the status of Native land as Indian country, are discussed in Chapter 2. 42 E.g., South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986); Oneida Indian Nation v. New York, 860 F.2d 1145 (2d Cir. 1988); Mohegan Tribe v. Connecticut, 638 F.2d 612, 614 (2d Cir. 1980); Epps v.

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“tribes . . . asserted claims to large tracts of land in the East, thereby placing into uncertainty the validity of land titles throughout the area.”43 These claims, which were largely successful, were based upon state and private violations of the 1790 Trade and Intercourse Act, which required federal consent to Indian land conveyances.44 Eastern tribes argued that the conveyances were void because they lacked federal con­sent. The litigation made clear the necessity for congressional action.45 Many of the claims were resolved by congressional acts that extin­guished aboriginal title in return for compensation.46 Many other claims, however, remained in litigation.47 The Supreme Court, however, recently placed a potentially formidable obstacle before ongoing land claims and future ones. In City of Sherrill v. Oneida Indian Nation,48 the tribe reacquired title to land and asserted that because it had unified fee and aboriginal title, tribal sovereignty was revived, placing the land beyond state and local taxes.49 The Court held that equitable principles—laches and attendant dramatic changes in the character of the property—“preclude the Tribe from rekindling embers of sovereignty that long ago grew cold.”50 Taxexempt status thus was “unavailable because of the long lapse of time, during

Andrus, 611 F.2d 915 (1st Cir. 1979); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979); Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975); Cayuga Indian Nation v. Cuomo, 771 F. Supp. 19 (N.D.N.Y. 1991); Schaghticoke Tribe v. Kent School Corp., 423 F. Supp. 780 (D. Conn. 1976); Narragansett Tribe v. S. Rhode Island Land Dev. Corp., 418 F. Supp. 798 (D.R.I. 1976). Mohegan Tribe v. Connecticut, 638 F.2d at 614.

43

Act of July 22, 1790, 1 Stat. 137. “Neither a private deed executed by individual Indians nor an agree­ment between a tribe and a state executed without federal sanction could pass lawful title.” Barsh, supra note 34, at 62. A later version of this law, the 1834 Non-Intercourse Act, does not prevent applying state eminent domain law to off-reservation, tribally owned land. Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 643 N.W.2d 685 (N.D. 2002). 44

Oneida County v. Oneida Indian Nation, 470 U.S. 226, 253 (1985).

45

Miccosukee Land Settlement Act of 1997, 25 U.S.C. §§ 1750–1750e; Mohegan Nation (Connecticut) Land Claims Settlement Act of 1994, 25 U.S.C. §§ 1775–1775h; Aroostook Band of Micmacs (Maine) Settlement Act of 1991, Pub. L. No. 102-171, 105 Stat. 1143 (1991); Seneca Nation (New York) Land Claims Settlement Act of 1990, 25 U.S.C. § 1774–1774h; Florida Indian (Seminole) Land Claims Settlement Act of 1987, 25 U.S.C. § 1772–1772g; Massachusetts Indian Land Claims Settlement Act of 1989, 25 U.S.C. § 1771–1771i; Connecticut Indian Land Claims Settlement Act of 1983, 25 U.S.C. §§ 1751–1760; Florida Indian (Miccosukee) Land Claims Set­tlement Act of 1982, 25 U.S.C. §§ 1741–1749; Maine Indian Claims Settlement Act of 1980, 25 U.S.C. §§ 1721–1735; Rhode Island Indian Claims Settlement Act of 1998, 25 U.S.C. §§ 1701–1716; see Greene v. Rhode Island, 398 F.3d 45, 51–52 (1st Cir. 2005) (Rhode Island Settlement Act, although intended to resolve the Narragansett Tribe’s land claim, was a comprehensive settlement of all aboriginal land claims in Rhode Island, extinguishing all Indian land claims, including those of other tribes). 46

See, e.g., Seneca Nation v. New York, 382 F.3d 245 (2d Cir. 2004); Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313 (N.D.N.Y. 2003); Oneida Indian Nation v. Oneida County, 217 F. Supp. 2d 292 (N.D.N.Y. 2002); Oneida Indian Nation v. New York, 194 F. Supp. 2d 104 (N.D.N.Y. 2002); Cayuga Indian Nation v. Pataki, 165 F. Supp. 2d 266 (N.D.N.Y. 2001); Cayuga Indian Nation v. Pataki, 79 F. Supp. 2d 78 (N.D.N.Y. 1999); Seneca Nation v. New York, 26 F. Supp. 2d 555 (W.D.N.Y. 1998), aff’d, 178 F.3d 95 (2d Cir. 1999) (per curiam). 47

544 U.S. 197 (2005).

48

Id. at 213.

49

Id. at 214.

50

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which New York’s governance remained undisturbed, and the present-day and future disruption such relief would engender.”51 The Second Circuit Court of Appeals, whose decision was overturned in Sherrill, subsequently described Sherrill as having “dramatically altered the legal landscape” and applied it to overturn a $248 million award for trespass damages in an action that had commenced as an ejectment proceeding.52 Although Sherrill may pose a substantial barrier to tribes pursuing land claim–related relief, it has not opened the door thus far to the traditional relief for nonpayment of property taxes: foreclosure actions by local governments.53 Sherrill also has been held not to foreclose the possibility that tribes, although unable to recover title to land, may yet recover monetary damages.54 As stated, a number of the eastern land claims were settled by acts of Congress. For those that have been settled, litigation has arisen over interpreting the settlement acts and over assertions by non-Indians that the settlement acts themselves create taking claims.55 Some land claims by non-eastern tribes have also been resolved by settlement acts.56 Other land claims that may still

Id. at 215, n.9.

51

Cayuga Indian Nation v. Pataki, 413 F.3d 266, 273, 277–78 (2d Cir. 2005); see also id. at 277–78 (“[t]he fact that, nineteen years into the case, at the damages stage, the District Court substituted a monetary remedy for plaintiffs’ preferred remedy of ejectment cannot salvage the claim, which was subject to dismissal ab initio”) (footnote omitted); Seneca-Cayuga Tribe v. Town of Aurelius, 233 F.R.D. 278, 279 (N.D.N.Y. 2006) (Sherrill “changed significantly” the legal landscape); Cayuga Indian Nation v. Village of Union Springs, 390 F. Supp. 2d 203, 205, 206 (N.D.N.Y. 2005) (granting summary judgment to city in tribal challenge to municipal zoning and land use regulation because “[i]f avoidance of taxation is disruptive, avoidance of complying with local zoning and land use laws is no less disruptive”); see generally Joseph William Singer, Nine-Tenths of the Law: Title, Possession and Sacred Obligations, 38 Conn. L. Rev. 605, 607 (2006) (if Sherrill “means what it appears to mean,” then “ ‘not much’ or perhaps even ‘nothing at all’ ” remains of New York tribes’ retained title); Patrick W. Wandres, Note, Indian Land Claims: Sherrill and the Impending Legacy of the Doctrine of Laches, 31 Am. Indian L. Rev. 131, 140 (2005–2006) (Sherrill “proving to be devastating” to land claims); Wenona T. Singel and Matthew L.M. Fletcher, Power, Authority, and Tribal Property, 41 Tulsa L. Rev. 21, 44 (2005) (in the Second Circuit, individual Indians and tribes who file “a claim for the return of lands, or for money damages based on a statutory violation or federal common law cause of action, and do so within a relevant statute of limitations, can still have the claim dismissed on the basis of laches or another equitable defense”); Sarah Krakoff, City of Sherrill v. Oneida Indian Nation of New York: A Regretful Postscript to the Taxation Chapter in Cohen’s Handbook of Federal Indian Law, 41 Tulsa L. Rev. 5, 10, 19 (2005) (suggesting that the decision is confined to specific tax issues, but stating that it “dramatically altered the backdrop” by which “almost all land claims” will be judged); Note, Availability of Equitable Relief, 119 Harv. L. Rev. 347, 356 (2005) (Sherrill could make most other claims that Indians assert about historical injustices nonadjudicable and thus “better handled in the political arena”). 52

53 Oneida Indian Nation v. Madison County, 401 F. Supp. 2d 219, 227, 229 (N.D.N.Y. 2005) (Sherrill does not reject the applicability of the Nonintercourse Act, and “[t]he County cannot circumvent Tribal sovereign immunity by characterizing the suit as in rem, when it is, in actuality, a suit to take the tribe’s property”); accord Oneida Indian Nation v. County of Oneida, 432 F. Supp. 2d 285 (N.D.N.Y. 2006).

Oneida Indian Nation v. New York, 500 F. Supp. 2d 128 (N.D.N.Y. 2007).

54

See, e.g., Aroostock Band of Micmacs v. Ryan, 484 F.3d 41 (1st Cir. 2007); Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006); Greene v. Rhode Island, 398 F.3d 45 (1st Cir. 2005); Banner v. United States, 238 F.3d 1348 (Fed. Cir. 2001); Winifred B. French Corp. v. Pleasant Point Passamaquoddy Reserv., 896 A.2d 950 (Me. 2006). 55

56 See, e.g., Washington Indian (Puyallup) Land Claims Settlement Act of 1989, 25 U.S.C. §§ 1773–1773j; Timbisha Shoshone Homestead Act of 2000, Pub. L. 106-423, 114 Stat. 1875–1882, 16 U.S.C. § 410aaa note;

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arise involve interpreting a treaty’s description of reservation boundaries.57 And because of the many different factual circumstances under which nonIndians acquire Indian land interests, land claims will likely continue.58 Some claims have sought to reopen or avoid decades-old Indian Claims Commission judgments.59 Land claims might also be made by individual Indians. A form of aboriginal title has been found with respect to lands occupied by individual Indians and not subsumed within a tribal claim. In Cramer v. United States,60 the Supreme Court sustained the occupancy right of three Indians against a railroad’s claim under an 1866 statute that excluded from its grant those lands “reserved . . . or otherwise disposed of.”61 The Indians’ occupancy of the land had been continuous since 1859, “definite and substantial in character and open to observation.”62 While recognizing that federal policy to respect the Indian right of occupancy contemplated “the original nomadic tribal occupancy,” the Court reasoned that the policy’s “essential spirit . . . applies to individual Indian occupancy as well[,]” since “such occupancy being of a fixed character lends support to another well understood policy, namely, that of inducing the Indian to forsake his wandering habits and adopt those of civilized life.”63 Additional support for the policy of protecting individual occupancy rights was found in the Executive Branch’s issuance of “instructions from time to time to its local officers to protect the holdings of nonreservation Indians against the efforts of white men to dispossess them” and, in two statutes, Congress’s “apparent recognition of possible Indian possession.”64 Accordingly, the Court concluded that “[t]he right [of occupancy], under the circumstances here disclosed, flows from a settled governmental policy.”65

Crow Boundary Settlement Act of 1994, 25 U.S.C. §§ 1776–1776k; Santo Domingo Pueblo Claims Settlement Act of 2000, 25 U.S.C. §§ 1777–1777e; Torres-Martinez Desert Cahuilla Indians Claims Settlement Act of 2000, 25 U.S.C. §§ 1778–1778h. 57 E.g., Spirit Lake Tribe v. North Dakota, 262 F.3d 732 (8th Cir. 2001); Wyandotte Nation v. Unified Gov’t of Wyandotte County/Kansas City, 222 F.R.D. 490 (D. Kan. 2004); Wyandotte Nation v. City of Kansas City, 200 F. Supp. 2d 1279 (D. Kan. 2002); Colorado River Indian Reservation Boundary Correction Act, Pub. L. No. 109-47, 119 Stat. 451 (2005). 58 E.g., Delaware Nation v. Pennsylvania, 446 F.3d 410 (3d Cir. 2006) (claim to a 315-acre tract based on alleged aboriginal land status and, alternatively, on alleged successor status to a tribal chief who received patents in the mid-1700s); Picuris Pueblo v. Oglebay Norton Co., 228 F.R.D. 665 (D.N.M. 2005) (claim of aboriginal title to minerals to which the government had issued a minerals patent to a third party). 59 W. Shoshone Nat’l Council v. United States, 73 Fed. Cl. 59 (2006); Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455 (10th Cir. 1987).

261 U.S. 219 (1923).

60

Act of July 25, 1866, § 2, 14 Stat. 239, 240.

61

Cramer v. United States, 261 U.S. at 225, 230.

62

Id. at 227.

63

Id. at 227–28.

64

Id. at 229.

65

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Whether Cramer has significant practical ramifications is unclear. The Ninth Circuit has observed that “[t]here is no theoretical reason why individu­ als could not establish aboriginal title in much the same manner that a tribe does” and set as the applicable standard whether an individual could show “that his or her lineal ancestors held and occupied, as individuals, a particular tract of land, to the exclusion of all others, from time immemorial, and that this title had never been extinguished.”66 The burden imposed by this stan­dard is substantial and may foreclose proof of individual aboriginal title except in unusual cases. Unaddressed by Cramer or other decisions is whether such title, if established, may be transferred without federal consent.67 B. Nonaboriginal Title-Based Occupancy Rights The work of the Indian Claims Commission and settling the claims of Alaskan Natives and many eastern tribes has likely extinguished most aboriginal title claims.68 To the extent tribes possess land occupancy rights presently, they have been gen­erally acquired pursuant to action by the United States or a prior sover­eign.69 During the period between 1789 and 1871, such action most commonly took the form of treaties reserving lands for exclusive tribal occupancy.70 After executive treaty-making author­ity was terminated in 1871,71 other reservations were established by statute.72 Executive orders were used between 1855 and 1919 to set aside public lands for actual or possible

66 United States v. Dann, 873 F.2d 1189, 1196 (9th Cir. 1989); see also United States v. Lowery, 512 F.3d 1194, 1199 (9th Cir. 2008) (“the person claiming individual aboriginal title must demonstrate continuous individual occupation that commenced before the land in question was withdrawn from entry for purposes of settlement”); United States v. Kent, 945 F.2d 1441, 1443–44 (9th Cir. 1991) (seven years of occupancy commencing after tribal aboriginal title was extinguished does not meet Cramer and Dann requirements); Pai ‘Ohana v. United States, 875 F. Supp. 680, 695–98 (D. Haw. 1995) (applying federal Indian law principles in determining that Hawaiian Native family lacked individual aboriginal title), aff’d, 76 F.3d 280 (9th Cir. 1996). 67 A literal application of the common law principles articulated in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), suggests that transfer could occur only with the United States’ consent. Nonetheless, the prohibition against alienation of lands in the Trade and Intercourse Acts has been extended only to tribal conveyances since the Act of June 30, 1834, § 12, 4 Stat. 729, 730. The dispositive question is likely whether the property is deemed owned in fee by the individual Indian or held in trust for his benefit by the United States. See Jones v. Meehan, 175 U.S. 1, 13 (1899) (deleting the prohibition against land conveyances by individual Indians under Trade and Intercourse Acts prior to 1834 created an “irresistible” inference “that Congress did not intend that there should thenceforth be any general restriction upon the alienation by individual Indians of sec­tions of land reserved to them respectively by a treaty with the United States” and held in fee). 68 See also Chapter 9, part III.B (discussing how terminating aboriginal land rights affects hunting and fishing rights). 69 Tribes, of course, can acquire lands through direct purchase or other transactions. See, e.g., 25  C.F.R. pt. 151 (regulations governing, among other things, land transfers from unrestricted to trust status). 70 See generally Strickland, supra note 25, at 294–96 (discussing various meth­ods by which treaties reserved land for tribes).

Act of Mar. 3, 1871, § 1, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. § 71).

71

See generally Strickland, supra note 25, at 296–98 (discussing methods by which reservations were statutorily created). 72

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tribal occupancy.73 Some tribes, moreover, were granted lands by previous governments in territories later acquired by the United States, and the terms of those grants have been honored.74 Except for public land set aside by executive order, these interests constitute vested property rights, which may not be extinguished without compensation.75 A tribe’s possessory interests acquired by any of these methods are protected by fed­eral law, including statutory and common law restraints on alienation.76 The Indian Reorganization Act of 1934 (IRA),77 which has general application to those tribes accepting its provisions, additionally authorizes the Secretary of the Interior to acquire land for Indians within or without reservations and to hold such land in trust. The authorizing provi­sion, section 5,78

73 E.g., Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Santa Fe Pac. R.R., 314 U.S. 339, 357–58 (1941); see generally Strickland, supra note 25, at 299–302 (discussing methods by which public lands were reserved for tribal occupancy by executive orders). Congress terminated the practice of establishing reservations by executive order in 1919. Pub. L. No. 66-3, § 27, 41 Stat. 3, 34 (1919) (codified at 43 U.S.C. § 150). The President had never been given statutory authority to reserve public lands for specific purposes but Congress acquiesced in the practice. See United States v. Midwest Oil Co., 236 U.S. 459, 469–75 (1915). 74 Mitchel v. United States, 34 U.S. (9 Pet.) 711, 749 (1835) (“By thus holding treaties with these Indians, accepting of cessions from them with reservations, and establishing boundaries with them, the king waived all rights accruing by conquest or cession, and thus most solemnly acknowledged that the Indians had rights of property which they could cede or reserve, and that the boundaries of his territorial and pro­prietary rights should be such, and such only as were stipulated by these treaties”); see also Chouteau v. Molony, 57 U.S. (16 How.) 203, 237–39 (1853) (Spanish law governs validity of alleged grant of Indian land); United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 644 (9th Cir. 1986) (analyzing Treaty of Guadalupe Hidalgo to determine whether it recognized a tribal claim to aboriginal title). 75 E.g., Confederated Bands of Ute Indians v. United States, 330 U.S. 169, 176 (1947); Sioux Tribe v. United States, 316 U.S. 317, 325–31 (1942). 76 Compare Oneida County v. Oneida Indian Nation, 470 U.S. 226, 240–48 (1985) (refusing to apply any statute of limitations to claim seeking fair rental value for 1968–1969 period as to lands allegedly conveyed in 1795 in violation of federal law and also rejecting on the facts defenses of abatement and ratification), with City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) (laches may prevent a tribe from recovering property); South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 507–11 (1986) (a state statute of limitations applies to a claim by a terminated tribe where federal termination statute provided “the laws of the several States shall apply to [the tribe’s members]”). Also, a fed­eral statute allocates the burden of proof in property disputes between an Indian and a “white per­son” to the latter “whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.” 25 U.S.C. § 194. The United States is not a “white person” under § 194. Havasupai Tribe v. United States, 752 F. Supp. 1471, 1480 (D. Ariz. 1990), aff’d on other grounds, 943 F.2d 32 (19th Cir. 1991). A state is not a “white person” under the statute but a tribe is an “Indian.” Wilson v. Omaha Indian Tribe, 442 U.S. 653, 664–68 (1979); contra New York v. Shinnecock Indian Nation, 523 F. Supp. 2d 185, 256–57 (E.D.N.Y. 2007) (citing Cayuga Indian Nation of New York v. Village of Union Springs, 317 F. Supp. 2d 128 (N.D.N.Y. 2004), for the proposition that Wilson v. Omaha Indian Tribe was overturned by City of Sherrill v. Oneida Indian Nation); see also United States ex rel. Southern Ute Indian Tribe v. Hess, 348 F.3d 1237, 1242 (10th Cir. 2003) (§ 194’s burden of proof on non-Indians applies even though they may be successors-in-interest to non-Indian recipient of original patent; and to place the burden on the non-Indian only a prima facie showing that the tribe had previous possession is needed). 77 Pub. L. No. 73-383, § 5, 48 Stat. 984, 985 (1934) (codified as amended at 25 U.S.C. §§ 461–479). At one time, the Secretary of the Interior was powerless to make land acquisitions for non–IRA tribes without special legisla­tion. See United States v. Ferry County, 511 F. Supp. 546 (E.D. Wash. 1981). Congress extended section 5 of the IRA to all tribes in 1983 through the Indian Land Consolidation Act, 25 U.S.C. § 2202. 78 25 U.S.C. § 465; see generally Mary Jane Sheppard, Symposium: Regulation for the Next Millennium: Taking Indian Land into Trust, 44 S.D. L. Rev. 681 (1998–1999) (analyzing process used under section 465). Other statutes give the Secretary of the Interior authority to acquire land in trust for individual tribes. E.g.,

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furthers the Act’s purpose of providing land to Indians and “ ‘rehabilitat[ing] the Indian’s economic life.’ ”79 Tribal applications under section 5 have become common with the development of tribal economies, and some requests concern land outside reservation boundaries. Off-reservation trust land has important jurisdictional con­sequences. Indian trust land, for example, ordinarily is not subject to state property taxes.80 Trust status also implicates state, federal, and tribal criminal and civil jurisdiction, particularly if the parcel is deemed Indian country by virtue of such status.81 Land acquisitions for the benefit of one tribe can have adverse economic consequences for another tribe, particularily in competing for casino patrons. Thus, some section 5 tribal land acquisitions have been challenged by other tribes.82 Although the 1988 Indian Gaming Regulatory Act83 has its own provisions governing acquisition of trust land,84 most acquisitions by the United States are under section 5 of the IRA. The acquisition process is informal and the govern­ing standards are broad. The tribe or individual Indian for whom land is acquired in trust does not need to be landless.85 The United States itself need not have purchased the land; that is, a tribe or an individual Indian can

TOMAC v. Norton, 193 F. Supp. 2d 182 (D.D.C. 2002) (Pokagan Restorative Act, 25 U.S.C. § 1300j–5); Pub. L. No. 97-459, §§ 101–105, 96 Stat. 2515, 2515–17 (1983) (Devils Lake Sioux Reservation); Pub. L. No. 77-80, 55 Stat. 207 (1941) (Turtle Mountain Reservation). 79 Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973) (quoting H. R. Rep. No. 1804, 73d Cong., 2d Sess. 6 (1934)). Congress might also require the Secretary to take land into trust for recently recognized tribes and designate the land as a part of the tribe’s reservation. E.g., Graton Rancheria Restoration Act, 25 U.S.C. § 1300n-3. 80 25 U.S.C. § 465. Trust land may also be free from local zoning and regulatory law. Nevada v. United States, 221 F. Supp. 2d 1241, 1244 (D. Nev. 2002); Connecticut ex rel. Blumenthal v. USDOI, 228 F.3d 82, 85 (2d Cir. 2000) (citing 25 C.F.R. § 1.4(a)). Because of jurisdictional issues that arise with trust land status, local governments may be reluctant to provide services to trust land. See Chase v. McMasters, 573 F.2d 1011 (8th Cir. 1978) (supremacy clause forbids city from refusing water and sewer service to trust land); Fallon Paiute-Shoshone Tribe v. City of Fallon, 174 F. Supp. 2d 1088 (D. Nev. 2001) (city’s refusal to provide sewer service to trust land violates Equal Protection Clause). 81 See Carcieri v. Kempthorne, 497 F.3d 15, 20–21 (1st Cir. 2007) (en banc); McAlpine v. United States, 112 F.3d 1429, 1436 (10th Cir. 1997); United States v. Roberts, 904 F. Supp. 1262, 1265–66 (E.D. Okla. 1995), aff’d, 185 F.3d 1125 (10th Cir. 1999); City of Sault Ste. Marie v. Andrus, 458 F. Supp. 465, 474 (D.D.C. 1978) (“The creation of discrete enclaves of Indian reservation land within organized municipalities creates havoc as the city or county attempts to enforce its criminal, health and land use ordinances”); Shivwits Band of Paiute Indians v. Utah, 185 F. Supp. 2d 1245 (D. Utah 2002) (to evade local and state restrictions on billboards, a billboard company transferred land to tribe and tribe then applied for trust status).

E.g. Sault Ste. Marie Tribe of Chippewa Indians v. United States, 288 F.3d 910 (6th Cir. 2002).

82

Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 18 U.S.C. §§ 1166–1168 and 25 U.S.C. §§ 2701–2721). 83

84 25 U.S.C. § 2719. In Sokaogon Chippewa Cmty. v. Babbitt, 961 F. Supp. 1276 (W.D. Wis. 1997), review of the Secretary’s refusal to take land into trust was not limited to the administrative record because of a showing of improper political influence on the decision-making process. 85 United States v. 29 Acres of Land, 809 F.2d 544, 546 (8th Cir. 1987); City of Sault Ste. Marie v. Andrus, 532 F. Supp. 157, 162 (D.D.C. 1980).

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purchase the land and then convey it to the United States in trust,86 even for the sole purpose of avoiding state taxes.87 The Secretary has adopted implementing regulations,88 which give the Secretary significant if not unbri­dled discretion in deciding whether to grant an application.89 Additional impediments to contesting secretarial determination to take land into trust may arise under the Quiet Title Act.90 II. RESERVATION DIMINISHMENT Due to the late nineteenth-century policy of allotting reservation lands to individual tribal members, many Indian reservations contain significant amounts of land owned by non-Indians. Allotments were subject to an initial 25-year restriction on alienation, after which an allottee could receive a fee patent to the land. Although the general restriction on alienation was later extended indefinitely, many allottees had already received fee patents to their allotments, which terminated the United States’ trust responsibilities and allowed alienation of the allotted parcels.91 Many of the patented allotments were

86 Stevens v. Comm’r, 452 F.2d 741, 747 (9th Cir. 1971); City of Sault Ste. Marie, 532 F. Supp. at 162; City of Tacoma v. Andrus, 457 F. Supp. 342, 346 (D.D.C. 1978).

Chase v. McMasters, 573 F.2d 1011, 1016 (8th Cir. 1978).

87

25 C.F.R. pt. 151.

88

Carcieri v. Kempthorne, 497 F.3d 15, 43–45 (1st Cir. 2007) (en banc); South Dakota v. USDOI, 423 F.3d 790, 799–802 (8th Cir. 2005); McAlpine v. United States, 112 F.3d 1429 (10th Cir. 1997); Florida Dep’t of Business Regulation v. USDOI, 768 F.2d 1248, 1256 (11th Cir. 1985). The courts have rejected “non-delegation” challenges to the constitutionality of § 465. Carcieri, 497 F.3d at 42; Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966, 972–74 (10th Cir. 2005); South Dakota, 423 F.3d at 797; United States v. Roberts, 185 F.3d 1125, 1136–37 (10th Cir. 1999); Mich. Gambling Opposition v. Norton, 477 F. Supp. 2d 1, 20–22 (D.D.C. 2007); City of Sault Ste. Marie v. Andrus, 458 F. Supp. 465, 473 (D.D.C. 1978); cf. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 367 F.3d 650, 655–68 (7th Cir. 2004) (role of state governors in land acquisitions under the Indian Gaming Regulatory Act does not violate, inter alia, nondelegation doctrine); Nevada v. United States, 221 F. Supp. 2d 1241, 1249–51 (D. Nev. 2002) (a Fallon-Paiute Shoshone Indian Water Rights Settlement Act allowing land acquisitions did not violate the nondelegation doctrine or appointments clause); TOMAC v. Norton, 433 F.3d 852, 866–67 (D.C. Cir. 2006) (Pokagan Restoration Act’s provisions allowing land acquisitions for the tribe did not violate the nondelegation doctrine). Placing off-reservation land into trust status also raises federalism issues because of its effect upon state jurisdiction, but courts addressing the question have found no constitutional infirmity. Carcieri, 497 F.3d at 39–41; Nevada, 211 F. Supp. 2d at 121; see generally Joseph D. Matal, A Revisionist History of Indian Country, 14 Alaska L. Rev. 283 (1997) (arguing that creating Indian country requires state consent). 89

90 28 U.S.C. § 2409a; see Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961–62, 965 (10th Cir. 2004) (relief seeking declaration that title to land taken into trust is void for noncompliance with the National Environmental Policy Act (NEPA) was precluded by Quiet Title Act, but relief seeking injunction against property’s development pending NEPA compliance was not barred by the latter statute); accord Shivwits Band, 428 F.3d at 976–77. 91 The Act of Feb. 8, 1887, 24 Stat. 389 (codified as amended at 25 U.S.C. § 348) authorized the President to extend the general restriction on alienation at his discretion. The President did so through a series of executive orders. E.g., Exec. Ord. No. 9,272, 7 Fed. Reg. 9475 (Nov. 17, 1942); Exec. Ord No. 10,191, 15 Fed. Reg. 8889 (Dec. 15, 1950). After 1950, the President delegated to the Secretary of the Interior the authority to extend the restriction. Exec. Ord. No. 10,250, § 1(e), 16 Fed. Reg. 5385 (June 5, 1951). Congress, however, provided for exceptions to the general restriction by authorizing the Secretary to issue fee pat­ents to individual

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eventually sold to nonmembers. Absent a finding of diminishment, however, such allotments generally remain part of the reservation.92 Once a reservation was fully allotted, Congress usually enacted legis­lation opening the remaining or “surplus” reservation lands to nonmember settlement. The methods used varied widely. Some acts implemented agreements negotiated with tribes for the cession of surplus lands, while others opened surplus lands to nonmember settlement without tribal consent.93 Compen­sation ranged from immediate payment of a specifc sum to a trust fund into which all proceeds derived from homestead and other fees were deposited for the tribe’s benefit.94 Whatever the method, the purpose of the surplus land acts was to return land to the public domain and to allow nonmember settlement under homesteading and other land disposal laws. While all of the acts accomplished this, not all removed the lands from the reservation.95 Whether a surplus land act removed the opened lands from the reser­ vation has substantial bearing on federal, state, and tribal jurisdiction. If nonmember fee lands remain part of the reservation, the lands are part of “Indian country” under the terms of 18 U.S.C. § 1151 and are subject to congressional authority to regulate tribal and reservation affairs.96 Such power may supersede the authority that the state generally exercises over nonmember citizens.97 On the other hand, if fee lands are no longer part of the reservation, they are unlikely to be Indian coun­try, and thus the restrictions on state criminal jurisdiction found in Title 18 of the United States Code do not apply and tribal members committing crimes on such lands may be prosecuted in state courts.98

allottees the Secretary deemed “competent.” Pub L. No. 59-149, 34 Stat. 182, 183 (1906) (codified at 25 U.S.C. § 349). A discussion of the allotment period and associated legislation is in Chapter 1, part II.B. 92 Chickasaw Nation v. Oklahoma Tax Comm’n, 31 F.3d 964, 976 n.8 (10th Cir. 1994), aff’d in part and rev’d in part, 515 U.S. 450 (1995); United States v. Celestine, 215 U.S. 278 (1909) (all tracts in a reservation remain a part of the reservation until removed by Congress; and a fee patent to a tribal member does not sever, absent congressional intent to the contrary, the allotted parcel from the reservation). 93 E.g., Act of Mar. 3, 1891, 26 Stat. 1035 (confirming cession agreement). This act dis­established the Lake Traverse Indian Reservation. DeCoteau v. Dist. County Ct., 420 U.S. 425 (1975). Several congressional acts—Pub. L. No. 58-148, 33 Stat. 254 (1904); Pub. L. No. 59-195, 34 Stat. 1230 (1907); Pub. L. No. 61-194, 36 Stat. 448 (1910)—diminished the size of the Rosebud Reservation. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); see also Oglala Sioux Tribe v. United States Army Corps of Eng’rs, 537 F. Supp. 2d 161, 171 (D.D.C. 2008) (“regardless of whether the Crook Commission received the required authorization to cede tribal lands . . . , the United States government took action to diminish Reservation boundaries at that time and Congress passed many acts ‘to [further] change the boundaries of the original 1889 Rosebud Reservation’ ”). 94 E.g., Act of Mar. 3, 1891, 26 Stat. 1035, and Act of Aug. 15, 1894, 28 Stat. 326 (ratifying cession agreements with payment of sums certain); Pub. L. No. 59-60, 34 Stat. 80 (1906) (depositing proceeds from land sales into account for the tribe’s credit). 95 Seymour v. Superinten­dent, 368 U.S. 351, 356 (1962). Reservations can be disestablished by not only surplus land acts but also by treaty. Shawnee Tribe v. United States, 423 F.3d 1204, 1219–28 (10th Cir. 2005).

United States v. Mazurie, 419 U.S. 544, 554 (1975).

96

Id. at 555.

97

See 18 U.S.C. §§ 1151–1165; DeCoteau v. Dist. County Ct., 420 U.S. 425, 427–30 (1975); see generally Chapter 4 (analyzing criminal jurisdiction in Indian country). Even though fee land is not within a reserva98

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States may also exercise civil authority over members and nonmembers on such lands to the same extent they may on nonreservation lands.99 The status of nonmember fee lands is also relevant for determining aspects of tribal authority. Since a tribe’s inherent sovereign powers extend only to tribal territory, tribal claims of civil and criminal jurisdiction over member actions on fee lands depend on the Indian country or non–Indian country status of those lands.100 The distinction is less important when assessing tribal claims of civil authority over nonmembers. Tribes presumptively do not possess inherent civil regulatory authority over nonmember conduct, regardless of whether the activity regulated occurs on lands that retain their reservation status and are owned or held in trust for a tribe or its members, but landownership status can be a relevant consideration in determining whether the presumption has been rebutted.101 Whether Congress, in opening surplus lands to nonmember settlement, removed those lands from reservation status is a question of congressional intent.102 That intent is rarely found on the face of the statute since Congress, during the era of surplus land acts, antic­ipated that the reservation system would soon cease to exist. The process of allotting lands to tribal members and selling surplus lands to nonmembers was viewed as the “first step” toward Con-

tion it could still be Indian country. See 18 U.S.C. § 1151(b) (“dependent Indian communities”); Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995); Indian Country, U.S.A., Inc. v. Oklahoma Tax Comm’n, 829 F.2d 967, 975 n.3 (10th Cir. 1987). 99 DeCoteau, 420 U.S. at 427 n.2; see also Oregon Dep’t of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985) (cession agreement did not reserve special fishing and hunting privileges on ceded lands); Solem v. Bartlett, 465 U.S. 463, 467 (1984) (“States have jurisdiction over unallotted opened lands if the applicable surplus land act . . . diminished the reservation boundaries”); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–49 (1973) (“[a]bsent express federal law to the contrary, Indians going beyond res­ervation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State”). 100 The Supreme Court “has repeatedly emphasized that there is a significant geographical component to tribal sovereignty.” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 (1980); see generally chapter 5 (discussing civil regulatory authority in Indian country). 101 Nevada v. Hicks, 533 U.S. 353, 359 (2001). The potential importance of landownership status is reflected by the analysis in the “pathmarking” Montana v. United States, 450 U.S. 544 (1981). There, the Supreme Court reasoned that since the avowed intent of Congress in alienat­ing lands to nonmembers through the allotment and surplus land acts was to destroy tribal governments, it would defy common sense to find that nonmember lands were nonetheless intended to be subject to general tribal jurisdiction. Id. at 559 n.9; see also Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) (tribal hotel occupancy tax on guests of a nonmember business on fee lands is invalid); Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) (“[s]ubject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally ‘do[es] not extend to the activities of nonmembers of the tribe’ ”) (citation omitted); South Dakota v. Bour­land, 508 U.S. 679, 692 (1993) (“regardless of whether land is conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has broadly opened up such land to non-Indi­ans, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control”). 102 Solem v. Bartlett, 465 U.S. 463, 470 (1984). “Although the terms ‘diminished’ and ‘disestablished’ have been used interchangeably at times, disestablishment generally refers to the relatively rare elimination of a reservation while diminishment commonly refers to the reduction in size of a reservation.” Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1017 (8th Cir. 1999).

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gress’s ultimate aim of abolishing Indian reservations,103 and Congress “failed to be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation.”104 Since subsequent steps to abolish all reservations were never taken, the question becomes whether the surplus land acts, as the initial step in the process, were sufficient to complete the process in a single step instead of the expected series of steps. Courts have been unwill­ing to extrapolate from the overriding goal of abolishment a general congres­sional purpose to diminish reservations with each surplus land act.105 Instead, they examine each act to determine whether Congress intended to diminish the reserva­tion in question. Congressional intent is determined by examining the face of the act, its legislative history, events surrounding the act’s passage, and sub­sequent treatment of the opened lands.106 The most probative evidence of congressional intent is the statutory language used to open reservations for settlement. If the act opens the land pursuant to the tribe’s cession of all right, title, and interest in the land, there is a strong suggestion that Congress intended to remove the ceded lands from the reservation.107 But if such cession language is coupled with an unconditional commitment to pay the tribe a specific sum for the ceded lands, there is an “almost insurmountable presumption” that Con­gress intended to diminish the reservation.108 The phrase “restored to the public domain,” when used as the sole operative phrase, also has been held to be compelling evidence that Congress intended to strip lands opened to settlement of their reserva-

United States v. S. Pac. Transp. Co., 543 F.2d 676, 695 (9th Cir. 1976).

103

Solem, 465 U.S. at 468.

104

Id. at 468–69. In the Tenth Circuit’s view, the “most natural construction” of the surplus land acts was that they remove the lands from the reservation. Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1394 (10th Cir. 1990). Since the expected demise of reservations did not occur, however, the Supreme Court “applied the long-standing presumption that ambiguous congressional action affecting the rights of Indians is to be resolved ‘to the benefit of the Indians.’ ” Id. (quoting DeCoteau v. Dist. County Ct., 420 U.S. 425, 447 (1975)). The court added: “The [Supreme] Court’s specific intent requirement has the effect of negating consideration of the congressional presumption that all reservations were to be temporary and instead elevates another presumption that Congress intended to deal fairly with the Indians.” Id. at 1395. 105

106 United States v. Webb, 219 F.3d 1127, 1132 (9th Cir. 2000); United States v. Grey Bear, 828 F.2d 1286, 1289 (8th Cir. 1987), vacated in part, 836 F.2d 1088 (9th Cir. 1987). The diminishment and disestablishment analysis developed over land disputes on western reservations subject to surplus land statutes enacted during the General Allotment Act era. Recently, however, the analysis has been applied to eastern land and tribes with respect to removal-era treaties. Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 159–67 (2d Cir. 2003), rev’d and remanded on other grounds, 544 U.S. 197 (2005); Cayuga Indian Nation v. Vill. of Union Springs, 317 F. Supp. 2d 128, 139–40 (N.D.N.Y. 2004). The analysis has also been applied in deciding whether a treaty—rather than a surplus land act—terminated a reservation. Shawnee Tribe v. United States, 423 F.3d 1204, 1221 (10th Cir. 2005). 107

Solem, 465 U.S. at 470.

Id. at 470–71; South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 344 (1998); State v. Greger, 559 N.W.2d 854, 861 (S.D. 1997); Bruguier v. Class, 599 N.W.2d 364, 378 (S.D. 1999); see also Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1030 (8th Cir. 1999) (reservation diminished but not disestablished). 108

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tion status.109 Where such language is used in secondary provisions, however, it is not usually dispositive, because the term may be construed, when read with primary operative language, as consistent with an intent to retain the lands within the reservation.110 Clauses providing that opened lands are to be temporarily considered as part of Indian country for purposes of fed­eral liquor control laws also are given weight, since they raise the infer­ence that the opened lands are not Indian country for any other purpose.111 When a surplus land act lacks a cession agreement and payment of a sum certain, thereby failing to raise the presumption favoring diminish­ment, courts rely upon other indicia of congressional intent,112 such as legis­lative reports and congressional floor debates.113 Transcripts and reports of cession negotiations with tribal leaders may be examined to determine whether the tribe acknowledged that its interests in the opened lands would be termi­ nated.114 Instructions issued to the persons responsible for negotiat­ing the cession agreement have been relied on.115 A court also may examine the circumstances that led to opening the reservation. If the tribe’s needs were such that the lands retained in trust status provided an “adequate fulcrum for tribal affairs,” the inference is that Congress

109 Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1396–1406 (10th Cir. 1990). The court reviewed the operative phrase “restored to the public domain” in the context of the legislative history and the surrounding circumstances. Id. at 1406–19. 110 Solem, 465 U.S. at 474–75. The Court also gave little weight to the fact that the term “diminishment” was found in the statute. It reasoned that at the time of the surplus land acts, “diminishment” was not a term of art in Indian law, and “public domain” could possibly be used to refer to any lands available for settlement, whether within or without a reservation. See also Ute Indian Tribe v. Utah, 773 F.2d 1087, 1092 (10th Cir. 1985) (en banc) (the phrase “return to the public domain” does not, by itself, “estab­lish the clear and unequivocal evidence of Congress’ intent to change boundaries”). This holding was distinguished in Pittsburg & Midway Coal, 909 F.2d at 1400–01, which noted that “restore to the public domain” was not the operative language of the statute at issue in Ute Indian Tribe and that the case accordingly did not address whether the phrase is unambiguous when unaccompanied by language of cession or reimbursement. The court also criticized the conclusion in Ute Indian Tribe as “unexamined and unsupported in the opinion.” Id. at 1400. The holding of Pittsburgh & Midway Coal was approved by the Supreme Court in Hagen v. Utah, 510 U.S. 399, 414 (1994) (“[restoring] unallotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status”); see also Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997) (recalling mandate and modifying Ute Indian Tribe in light of Hagen). 111

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 613 (1977).

See, e.g., id. at 598 n.20 (Congress intended to diminish the reservation even though tribal consent and a sum certain payment were lacking); Wisconsin v. Stockbridge-Munsee Cmty., 366 F. Supp. 2d 698, 764–66, 773–75 (E.D. Wis. 2004) (examining legislative materials and surrounding circumstances to conclude that an 1871 act diminished reservation and a 1906 act disestablished it); State v. Davids, 534 N.W.2d 70 (Wis. 1995) (examining circumstances occurring before and after an 1871 act to find diminishment). 112

Solem, 465 U.S. at 471.

113

Id. at 476–77. Cession agreements transmitted to the Secretary of the Interior were typically accompa­nied by a report of the persons appointed as negotiators. See Russ v. Wilkins, 624 F.2d 914, 923 (9th Cir. 1980). 114

Rosebud Sioux Tribe, 430 U.S. at 606–07.

115

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intended to remove the opened lands from the reserva­tion.116 Courts, moreover, may give some weight to events after the opening of the reservation. If a substantial number of nonmembers settled on the opened lands, the Supreme Court has reasoned that de facto diminishment may have occurred.117 Demographics is “an additional clue as to what Congress expected would happen once land on a particular reserva­tion was opened to non-Indian settlement.”118 The Court is reluctant to find that areas predomi­nantly populated by nonmembers remain Indian country, since to do so “seriously burdens the administration of State and local governments.”119 Other factors can shed light on congressional intent to diminish a reservation. For example, the way in which government treats the opened lands is rele­vant. A long-standing assumption of state jurisdiction is entitled to considerable weight.120 Congressional and agency actions in the years that immediately follow opening the lands to settle­ment often reveal whether such lands were treated as part of the reserva­tion.121 United States Geological Survey and BIA maps depicting the opened lands either within or outside the reservation provide evidence of congressional intent.122 Subsequent congressional acts may reveal if Congress believed the lands to be still part of the reservation.123 Administrative reports, such as the Annual Reports of the Commissioner of Indian Affairs, and internal memoranda may also help determine a surplus land act’s contemporaneous understanding.124 A further complicating factor in diminishment questions is that most cases focus solely on the status of those lands immediately ceded by, or taken from, the tribe, and do not address the reservation status of allotments that later

DeCoteau v. Dist. County Ct., 420 U.S. 425, 446 (1975).

116

Yankton Sioux Tribe, 522 U.S. at 356; Solem, 465 U.S. at 471; Rosebud Sioux Tribe, 430 U.S. at 588 n.3, 604–05; DeCoteau, 420 U.S. at 448. 117

118 Solem, 465 U.S. at 471–72. The Court noted that relying on subsequent demographic history to determine con­gressional intent was “an unorthodox and potentially unreliable method of statutory interpretation” but a “necessary expedient” given the unusual circumstances under which the surplus land acts were passed, whereby Congress expected the imminent demise of the reservation system and did not articulate a specific intent to diminish each reservation in the individual surplus land acts. Id. at 472 n.13. See also Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294, 1298 (8th Cir. 1994) (inappropriate to exclusively rely on demographics to create de facto diminishment).

Solem, 465 U.S. at 471 n.12; see also Hagen v. Utah, 510 U.S. at 420–21.

119

Yankton Sioux Tribe, 522 U.S. at 357; Rosebud Sioux Tribe, 430 U.S. at 605 n.28.

120

Wisconsin v. Stockbridge-Munsee Cmty., 366 F. Supp. 2d 698, 770 (E.D. Wis. 2004).

121

122 DeCoteau, 420 U.S. at 442 and n.27. Congressional and agency records, however, are often inconsistent and consequently of little help. Yankton Sioux, 522 U.S. at 357.

Solem, 465 U.S. at 478–79.

123

DeCoteau, 420 U.S. at 442 n.27 (examining DOI memoranda); Russ v. Wilkins, 624 F.2d 914, 923–24 (9th Cir. 1980) (acreage tables in Commissioner of Indian Affairs’ annual reports indicate a reduction in the reservation’s acreage in year following passage of surplus land act, and infers that opened lands were not part of reservation); Wisconsin v. Stockbridge-Munsee Cmty., 67 F. Supp. 2d 990 (E.D. Wis. 1999) (examining various factors to assess congressional intent). 124

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passed into non-Indian ownership. Yet, the number of allotments conveyed into non-Indian ownership is, in many cases, substantial. Even where Congress expressed the intent to diminish a reservation by the amount of lands opened for immediate sale to non-Indians, it rarely, if ever, expressed its intent as to the eventual status of allotments sold to non-Indians many years later. The status of such lands was unaddressed in the Supreme Court’s decision finding the Yankton Sioux Reservation diminished.125 The Eighth Circuit, however, reading the surplus lands act in its “full historical context,” concluded that Congress intended to diminish the Yankton Sioux Reservation “by not only the ceded land, but also by the land which it foresaw would pass into the hands of the white settlers and homesteaders” once allottees gained alienable fee title to their allotments.126 The Tenth Circuit, faced with a similar question following a Supreme Court finding of diminishment of the Uintah Valley Reservation,127 held that it would modify its prior judgment that the reservation remained undiminished only to the extent of the ceded lands addressed in the Supreme Court’s opinion, and would not modify its prior holding as it applied to allotments that passed into non-Indian ownership.128 III. OWNERSHIP OF NAVIGABLE WATERS When the original thirteen colonies formed the United States, each reserved title to the beds of navigable waters within their borders. As the nation developed and westward expansion began, the federal government held territorial lands, including the beds of navigable waters, in trust for future states. Upon admission, each state was to receive title to these lands, placing them on an “equal footing” with the original thirteen colonies. Concurrently, many Indian tribes claimed that the federal government, in setting aside reservations for them, included the beds of navigable waters. These conflicting claims led to a substantial body of law reconciling the equal footing doctrine with the reservation system.129

Yankton Sioux Tribe, 522 U.S. at 358.

125

Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1028 (8th Cir. 1999); see Yankton Sioux Tribe v. Podhrasksy, 529 F. Supp. 2d 1040, 1054–57 (D.S.D. 2007) (determining on remand which portions of original reservation remained in Indian country status, and including, inter alia, land held in trust for Indians and land allotted in fee to Indians that has never passed into non-Indian ownership). 126

Hagen v. Utah, 510 U.S. 399 (1994).

127

Ute Indian Tribe v. Utah, 114 F.3d 1513, 1529–30 (10th Cir. 1997).

128

The equal footing doctrine differs from situations in which owner­ship issues arise by virtue of accretion or avulsion along the waterway. “Under the federal and common law rule, land formed by a process of accretion, or gradual deposition of soil upon the shore of an upland bounded by water, belongs to the upland owner. Hence, if a river forming the boundary between the property of two upland owners changes its course by a gradual process of erosion from one bank and accretion to the other, the boundary moves with the river. However, sudden or ‘avulsive’ changes in a river’s course do not alter the boundaries, which remain in the abandoned riverbed.” United States v. Aranson, 696 F.2d 654, 659–60 (9th Cir. 1983). When federal land is affected by such activity, federal common law governs the scope of the United States’ ownership but, 129

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A. Equal Footing Doctrine Principles The theoretical basis for the equal footing doctrine, by which states acquire title to the beds of navigable waters,130 was first described in an 1842 Supreme Court decision.131 As a result of the Revolutionary War, the thirteen states each became sovereign and held all navigable waters and the soils under them as successors to the British Crown. Upon creation of the United States, broad authority to regulate commerce in navigable waters was transferred to the federal government,132 but states, as sovereigns, retained residual powers over these lands. Those powers not transferred, and thus retained by the states, included absolute title to the beds beneath all navigable waters and the sov­ereign power to control fishing.133 Such lands and waters belong to the states within their terri­torial jurisdiction subject to the powers surrendered to the federal govern­ ment by the Constitution. Since states subsequently admitted to the Union participate on an equal footing with the original thirteen states, they acquire a like title to and sovereign interest in the beds of navi­gable waters. Although the concept of public ownership of navigable waterways originally extended only to waters influenced by the ebb and flow of the tide,134 the Supreme

under Wilson v. Omaha Indian Tribe, 442 U.S. 653, 669–78 (1979), the law of the state in which the land lies is borrowed as the rule of decision. Cf. United States v. Hess, 194 F.3d 1164, 1172–73 (10th Cir. 1999) (whether gravel constitutes a “mineral” under a reservation in a patent issued under the Indian Reorganization Act is resolved by state law, since “the state’s interest in uniform rules of property seems to us to be the same” as in Wilson and since “[w]e are . . . unaware of any relevant state law that is aberrant or hostile to federal interests”). The equal footing doctrine, finally, is relevant only to claimed pre-statehood conveyances of the bed of navigable waters; purported post-statehood conveyances are governed by a special rule of construction—whether Congress’s purpose to divest the state of ownership is manifested “with such certainty as to put it beyond reasonable question” (United States v. Minnesota, 270 U.S. 181, 209 (1926)) and present significant issues of congressional authority. See Seneca Nation v. New York, 382 F.3d 245, 272 (2d Cir. 2004). 130 The long-established standard for determining whether a waterway is navigable for bed ownership was set forth in The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870): “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” Navigability is determined with reference to the waters’ use and characteristics at statehood. United States v. Utah, 283 U.S. 64, 75 (1931); Alaska v. Ahtna, Inc., 891 F.2d 1401, 1405 (9th Cir. 1989) (“The test is whether the river was susceptible of being used as a highway for commerce at statehood, not whether it was actu­ally so used”). The beds of nonnavigable bodies of water, other than tidelands, are owned by the adjoining landowners. E.g., Montana v. United States, 450 U.S. 544, 551 (1981). 131 Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367 (1842); see Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 283–85 (1997). 132 By virtue of its power under the Commerce Clause (U.S. Const. art. I, § 8, cl. 3), Congress has gen­eral regulatory power over navigable waters to the extent they serve, or may serve, as instruments of interstate commerce. E.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). The United States also retains a navigation servitude allowing it to condemn land up to the high watermark of navigable waters, without paying just compensa­tion. E.g., United States v. Cherokee Nation, 480 U.S. 700 (1987).

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 414 (1842).

133

State ownership extends to all tidelands, whether or not navigable in fact. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988) (“the States have interests in lands beneath tidal waters which have nothing to do with navigation”); see also Mann v. Tacoma Land Co., 153 U.S. 273 (1894). 134

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Court long ago made it clear that equal footing principles apply to freshwater nav­igable rivers and lakes situated beyond the ebb and flow of tides.135 The fed­eral government may not, in general, convey lands that are to become a state’s under the equal footing doctrine.136 Indeed, the states’ interests reflected in the equal footing doctrine are sufficiently strong to prevent application of the Ex parte Young137 exception permitting state officials to be sued in fed­eral court for prospective relief because a declaration of streambed or lakebed ownership would affect the state’s “sovereign interest in its lands and waters . . . in a degree fully as intrusive as almost any conceivable ret­roactive levy upon funds in its Treasury.”138 Despite its power to make grants of lands beneath navigable waters before statehood, Congress has never undertaken by general laws to dispose of such lands: The congress . . . has constantly acted upon the theory . . . that the navigable waters and soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government, but, unless in case of some international duty or public exi­gency, shall be held by the United States in trust for the future states, and shall vest in the several states, when organized and admitted into the Union . . . in short, shall not be disposed of piecemeal to individuals as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state after it shall have become a completely organized community.139

135 Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 457 (1852). Propeller Genesee Chief extended admiralty jurisdiction over such waters:

It is evident that a definition that would at this day [1852] limit public rivers in this country to tide-water rivers is utterly inadmissible. We have thousands of miles of public navigable water, including the lakes and rivers in which there is no tide. And certainly there can be no reason for admiralty power over a public tide-water, which does not apply with equal force to any other public water used for commercial purposes and foreign trade. The lakes and the waters con­necting them are undoubtedly public waters; and we think are within the grant of admiralty and maritime jurisdiction in the Constitution of the United States. Id.; see also Barney v. City of Keokuk, 94 U.S. 324 (1876); Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892); State v. Superior Ct. (Lyon), 625 P.2d 239, 243–44 (Cal. 1981). 136 Borax Consol., Ltd. v. City of Los Angeles, 296 U.S. 10, 17–19 (1935); Pollard’s Lessee v. Hagen, 44 U.S. (3 How.) 212, 219, 228–29 (1845).

209 U.S. 123 (1908).

137

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 287 (1997).

138

Shively v. Bowlby, 152 U.S. 1, 49–50 (1894). The power to convey the beds of navigable waters prior to statehood exists under Article IV, section 3 of the Constitution: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Terri­tory or other Property belonging to the United States.” Cf. United States v. Washington, 873 F. Supp. 1422, 1443–44 (W.D. Wash. 1994) (rejecting contention that the “Shively presumption”—which holds that pre-statehood grants do not include the beds 139

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There is, accordingly, a strong presumption against pre-statehood convey­ ance by the United States arising from the fact that “navigable waters uniquely implicate sovereign interests.”140 Such conveyances thus are “not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain,”141 and the grant specifically “embrace[s] the land under the waters of the stream.”142 Congress may also reserve such lands for the federal government prior to statehood, but an express intent to do so must be found.143 The pre­sumption against a pre-statehood federal grant or reservation may be over­come only if it can be shown that (1) Congress clearly intended to include the submerged land at issue in the grant or reservation; and (2) Congress affirmatively intended to defeat the future state’s title to the submerged land. Thus, the mere act of reserving a body of water for a federal reserve does not imply an intent to depart from the general policy of holding title for the future state.144 Unless Congress directly exercises its power or dele­gates it to the Executive Branch, no federal officer has authority to dispose of either uplands or submerged lands within the United States.145 The Secretary of the Interior, for example, did not have authority to make a perma­nent disposition of the beds of navigable waters during territorial days absent congressional authorization.146 Congress may, however, ratify executive actions to include beds of navigable waters on federal reservations, provided it does so prior to, or at the date of, statehood.147 B. The Equal Footing Doctrine and Indian Reservations Because Indian reservations were often created prior to statehood and border on or include navigable waters, the question has often been raised whether the United States intended to convey the beds of those waters to a tribe as part of the reservation. In only two cases has the Supreme Court so

of navigable waters—should be applied as a rule of con­struction in determining the scope of a tribe’s right to take shellfish from off-reservation tidelands), aff’d, 157 F.3d 630 (9th Cir. 1998). 140 Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 284 (1997); see also Alaska v. United States, 545 U.S. 75 (2005) (presumption of state title has two sources: the equal footing doctrine and the Submerged Lands Act).

United States v. Holt State Bank, 270 U.S. 49, 55 (1926); accord Idaho v. Coeur d’Alene Tribe, 521 U.S.

141

at 283. Montana v. United States, 450 U.S. 544, 552 (1981).

142

United States v. Alaska, 521 U.S. 1, 34 (1997); Utah Div. of State Lands v. United States, 482 U.S. 193, 201–02 (1987). 143

Id. at 202.

144

Sioux Tribe v. United States, 316 U.S. 317, 324 (1942); N. Pac. Ry. v. Mitchell, 208 F. 469 (E.D. Wash.

145

1913). Hynes v. Grimes Packing Co., 337 U.S. 86, 103–04 (1949).

146

United States v. Alaska, 521 U.S. 1, 44–46 (1997).

147

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decided. In the first, Choctaw Nation v. Oklahoma,148 the Court held that the Choctaws obtained title to the bed of the Arkansas River—a holding premised upon unique negotiations leading to the treaty creating the reservation. During those negotiations the tribe was promised that no part of the reservation, which was then not included in any state, would ever become part of a state. The reservation’s description, moreover, expressly included the Arkansas River. These facts have caused Choctaw to be characterized as a “singular excep­tion” to the general rule that a state’s title to land under navigable waters will not be defeated by pre-statehood conveyances.149 The second case, Idaho v. United States,150 arose from a long history of dealings between the United States and a tribe over the boundaries of an Idaho reservation. As initially established under an 1873 executive order, the reservation contained almost all of a large navigable lake and part of a navigable stream and was defined in part by reference to the lake.151 The executive order was issued after the government and the tribe had reached an agreement providing for the reservation but also contemplating congressional approval that never occurred.152 Additional negotiations occurred, resulting in another agreement in 1887 that confirmed the 1873 boundaries and a third agreement in 1889 that ceded the reservation’s northern portion, including two-thirds of the lake, but accompanied by the negotiators’ promise that the tribe would “still have” the remainder of the lake.153 That agreement was eventually approved by Congress in 1891, eight months after Idaho had become a state. Over 100 years later, the United States filed suit to quiet title to the southern one-third of the lake and the river that lie within the reservation’s boundaries.154 The Supreme Court concluded that the 1873 reservation embraced the lake’s and river’s submerged lands and that Congress’s “intent . . . was that anything not consensually ceded by the Tribe would remain for the Tribe’s benefit, an objective flatly at odds with Idaho’s view that Congress meant to transfer the balance of submerged lands to the State in what would have amounted to an act of bad faith accomplished by unspoken operation of law.”155 The Court

397 U.S. 620 (1970).

148

Utah Div. of State Lands v. United States, 482 U.S. 193, 198 (1987); see also United States v. Cherokee Nation, 480 U.S. 700, 706 (1987) (“Choctaw Nation was quite generous to respondent”; “we refuse to give a still more expansive and novel reading of respondent’s property interests” by excluding the Arkansas River from the navigational servitude ordinarily attaching to navi­gable waters in favor of the United States under the Commerce Clause). 149

533 U.S. 262 (2001).

150

Id. at 266.

151

Id. at 266–67.

152

Id. at 269–70.

153

An earlier suit brought by the tribe seeking comparable relief had been dismissed on Eleventh Amendment grounds. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997). 154

533 U.S. at 278–79.

155

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buttressed this determination by reference to post-statehood statutes such as the act ratifying the 1887 and 1889 agreements that included approval of a tribal sale of a part of the river’s submerged bed—a “[c]onfirmation . . . beyond Congress’ power if title to the submerged riverbed had already passed to the State.”156 The dissenting opinion criticized the majority for examining events after Idaho’s admission “to discern whether Congress had months or years previously intended to divest the entering State of its submerged land[,]”157 “divin[ing] congressional intent . . . from what are best described as inchoate prestatehood proceedings” and not pre-statehood congressional enactments,158 and crediting the notion that “any use granted with respect to navigable waters must necessarily include reserving title to the submerged lands” as opposed to simply reserving “a right to fish and travel the waters.”159 Idaho thus presented unique facts where a substantial pattern of negotiations evinced an intent to leave submerged lands within the reservation as reduced by the ratified 1887 and 1889 agreements. Reflecting the general rule that pre-statehood grants have not occurred and that riverbeds and lakebeds are held for the future state is Montana v. United States.160 In Montana the United States sought to quiet title on behalf of the Crow Tribe to the bed of the Big Horn River. The Court, however, concluded that the bed was conveyed to Montana at statehood, relying on the strong presumption that “the Federal Government holds such lands in trust for future States, to be granted to such States when they enter the Union and assume sovereignty on an ‘equal footing’ with the established States.”161 It rejected the contention that, under the 1851 Treaty of Fort Laramie,162 title to the streambed was reserved in trust for the Crow Tribe merely because the Tribe did “not surrender the privilege of hunting, fishing, or passing over any of the tracts of country” referred to in the treaty or that, under the 1868 Treaty of Fort Laramie,163 the reservation’s lands were “set apart” for the Tribe’s “absolute and undisturbed use and occupation.” The Court stated that “[t]he mere fact that the bed of a navigable water lies within the boundaries described in the [1868] treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against

Id. at 279.

156

Id. at 282.

157

Id. at 285.

158

Id. at 286–87.

159

450 U.S. 544 (1981).

160

Id. at 551.

161

11 Stat. 749 (1851).

162

15 Stat. 649, 650 (1868).

163

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its conveyance.”164 The Court also noted that, at the time of the 1851 and 1868 treaties, no “public exigency” existed “which would have required Congress to depart from its policy of reserving ownership of beds under navigable waters for future States” and that the Tribe was not dependent on fisheries for subsistence.165 The fact that a state may be deemed to own the bed of a navigable body of water does not mean a tribe, which may have been heavily dependent on such waters for subsistence when its reservation was estab­lished, will be deprived of any treaty right to exploit the associated fishery.166 Although Montana suggests that only the most extraordinary circum­ stances justify overcoming the “strong presumption against conveyance” of the beds of navigable waters,167 the Ninth Circuit has found the presumption rebutted in several post-Montana cases, commencing with Confederated Salish and Kootenai Tribes v. Namen.168 The court concluded that establishing a treaty boundary bisecting a lake, coupled with the dependence of at least one of the tribal signatories on fishing, indicated congressional intent to reserve the lakebed in trust for the tribes.169 Namen’s analysis was crystallized further in Puyallup Indian Tribe v. Port of Tacoma,170 in which the court established three elements for determining a conveyance of beds to an Indian tribe: the land granted to the tribe included within its boundaries a navigable water; the tribe depended on the fishery resource within that water for survival; and the government was aware of that dependence at the time of the grant.171 The Ninth Circuit reaffirmed this test in United States v. Aam.172 In doing so, however, it emphasized that the core element—whether the tribe was dependent on the fishery resource for survival at the time of a reservation’s

164 Montana v. United States, 450 U.S. 544, 554 (1981); see also Yankton Sioux Tribe v. South Dakota, 796 F.2d 241, 244 (8th Cir. 1986) (state title under the equal footing doctrine is not defeated by the tribe’s claim based on aboriginal title).

Montana, 450 U.S. at 556.

165

See United States v. Winans, 198 U.S. 371, 381 (1905) (tribal members have implied easement to cross privately owned land and to use such land for curing facilities to implement treaty privilege to take fish “at all usual and accustomed places . . . and of erecting temporary buildings for curing them”); Alaska Pac. Fisheries v. United States, 248 U.S. 78, 89 (1918) (con­struing statute establishing Annette Islands as reservation to include adjacent waters and submerged lands, since the Indians “could not sustain themselves” from just the upland and thus “the adjacent fishing grounds was equally essential”); Winters v. United States, 207 U.S. 564, 576 (1908) (implying a federally protected reserved water right in a navigable stream forming a reservation bound­ary where “[t]he lands [to which the tribes had been relegated] were arid, and, without irrigation, were practically valueless”). 166

167 Montana, 450 U.S. at 552; see also United States v. Holt State Bank, 270 U.S. 49, 57–59 (1926) (rejecting tribe’s title claim to the bed of a navigable lake lying wholly within the reservation).

665 F.2d 951 (9th Cir. 1982).

168

Id. at 962; accord United States v. Washington, 694 F.2d 188 (9th Cir. 1982).

169

717 F.2d 1251 (9th Cir. 1983).

170

171 Id. at 1258 (footnote omitted); accord Muckleshoot Indian Tribe v. Trans-Canada Enters., Ltd., 713 F.2d 455, 457 (9th 1983) (per curiam).

887 F.2d 190, 194 (9th Cir. 1989).

172

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creation—“requires that the disputed water resource supply a significant portion of the tribe’s fishery needs.”173 In Aam, that element was not met because the tribe’s primary subsistence came from “salmon, shellfish, and other food resources [gathered] from traditional hunting, fish­ing, and food gathering locations away from the reservation,” and access to such off-reservation resources was secured by treaty provisions.174 The court, accordingly, concluded the presumption of state title to the tidelands had not been rebutted.175 Whether the Ninth Circuit’s approach to resolving navigable water title issues gives appropriate weight to the presumption of state ownership under the equal footing doctrine likely will continue to generate con­tention. Indeed, even the Ninth Circuit has indicated an unwillingness to rely exclusively upon subsistence exploitation of a watercourse as a basis for rebutting the presumptive operation of the equal footing doctrine.176 IV. LEASING INDIAN NATURAL RESOURCES The full economic use of land often requires commercial development. The use of Indian land for mining, agriculture, timber harvest, and utility corridors has always been heavily overseen by the United States. The Indian Nonintercourse Act regulates any “purchase, grant, lease or other conveyance of lands, or any title or claim thereto, from any Indian tribe.”177 The Act’s assertion of federal control over Indian land has been “the guiding motif of federal legislation on Indian affairs.”178 Similarly, federal law has restricted the authority of allotment owners to manage their land free from government oversight.179 “Because Indian lands are subject to restrictions on their alienability, there must be an authorizing federal statute for any lease or contract

Id. at 196.

173

Id. at 197.

174

Id. at 198; see also United States v. Aranson, 696 F.2d 654, 666 (9th Cir. 1983) (burden of per­suasion on tribes to “prove they depended heavily on the particular body of water” for subsistence). 175

176 United States v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502, 1502, 1508–09 (9th Cir. 1991) (mere dependence upon river insufficient to establish tribal ownership absent “evidence that the United States intended to include the disputed riverbed in the Reservation”). 177 25 U.S.C. § 177. The Act does not apply after removal of restraints against alienation. Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 929 P.2d 379, 387 (Wash. 1996).

Felix Cohen, The Spanish Origin of Indian Rights in the Law of the United States, 31 Geo. L. Rev. 1, 6

178

(1942). 179 25 U.S.C. § 348 (“any conveyance . . . or any contract made touching [an Indian allotment] . . . shall be absolutely null and void”).

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on Indian lands.”180 But over time, tribes and individual Indians have acquired significant control over their land and its resources.181 A. Mineral Leasing Indian country contains significant mineral reserves. It may hold three percent of the nation’s oil and gas reserves, 30 percent of the coal west of the Mississippi, and about a third of the uranium reserves.182 Title to these resources, however, was unclear until long after reservations were established. In 1938 the Supreme Court addressed the issue. It ruled that subsurface minerals of the Wind River Reservation are “constituent elements of the land itself” and owned by the tribe.183 Thus, unless the United States has expressly reserved minerals in the governing treaty, tribes own minerals under tribal treaty land. Tribes also own minerals on reservations created by executive order.184 Title to the minerals of land allotted to individual tribal members typically follows the surface title.185 In some instances, however, Congress reserved to tribes the mineral estate in land allotted to tribal members.186 Mineral leasing on Indian land has been regulated by federal statute for over a century.187 The first law was enacted in 1891 and allowed tribes, with the Secretary of the Interior’s consent, a limited right to lease unallotted lands as well as some allotted lands.188 Laws in 1924 and 1927 expanded tribal authority to lease unallotted land.189 Legislation in 1909 gave allottees authority

180 Tim Vollman, Exploration and Development Agreements on Indian Lands, 50 Rocky Mt. Min. L. Inst. 12-1, 12-7 (2004). 181 See generally Judith V. Royster, Mineral Development in Indian Country: The Evolution of Tribal Control over Mineral Resources, 29 Tulsa L. J. 541 (1994). DOI has stated that some statutes that govern its management of Indian land and resources were enacted prior to “the tribal self-determination legislation” and therefore are “antiquated.” Trust Management Reform: Leasing/Permitting, Grazing, Probate and Funds Held in Trust; Final Rule, 66 Fed. Reg. 7071 (2001). 182 Royster, supra note 181, at 543. Commentators have analyzed jurisdictional issues involved in developing Indian resources and non-Indian resources within Indian country. E.g., Kevin J. Worthen, Who’s in Charge Here? Tribal, State, and Federal Authority over Non-Indian Resource Development in Indian Country, 47 Rocky Mnt. Min. L. Inst. 2-1 (2001); Lynn H. Slade, Puzzling Powers: Overlapping Jurisdictions of Indian Tribes and the Federal, State, and Local Governments in Development of Natural Resources in “Indian Country,” 42 Rocky Mnt. Min. L. Inst. 11-1 (1996); Michael E. Webster, Mineral Development of Indian Lands: Understanding the Process and Avoiding the Pitfalls, 39 Rocky Mtn. Min. L. Inst. 2-1 (1993).

United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938).

183

Healing v. Jones, 210 F. Supp. 125, 138 (D. Ariz. 1962), aff’d, 383 U.S. 758 (1963).

184

United States v. Bruisehead, 248 F. Supp. 999, 1001 (D. Mont. 1966).

185

Royster, supra note 181, at 549.

186

See generally Vollman, supra note 180; Royster, supra note 181.

187

Act of Feb. 28, 1891, 26 Stat. 795 (codified at 25 U.S.C. § 397). There were also some early laws enacted for specific reservations. Vollman, supra note 180 (noting laws enacted in 1876 (Seneca), 1905 (Osage), and 1921 (Quapaw)). 188

189 Pub. L. No. 68-158, 43 Stat. 244 (1924) (codified at 25 U.S.C. § 398); Pub. L. No. 69-702, 44 Stat. 1347 (1927) (codified as amended at 25 U.S.C. §§ 398a–398e).

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to lease their minerals, with the Secretary’s consent.190 Later legislation gave the Secretary authority to lease land set aside for Indian agency and school purposes and to issue mining leases in nine western states.191 As a result of the early legislation, leasing tribal land “was governed by a hodge-podge of laws.”192 This complexity “and the extremely limited role accorded to tribal mineral owners, generated increasing dissatisfaction with the allotment-era approach to mineral development.”193 As a result, in 1938 Congress adopted the Omnibus Indian Mineral Leasing Act, which covers leasing on most unallotted land.194 Allotted land leasing remains covered by the 1909 Act.195 Although the pertinent legis­lative history is sparse,196 the Supreme Court has identified the 1938 Act’s three major goals: to bring more uniformity to the law relating to leasing tribal lands, to bring all leasing matters in harmony with the Indian Reorganization Act, and to ensure that Indians receive the greatest return from their property.197 Another purpose of the Act was to foster tribal self-determination.198 The Act attempted to achieve these purposes by its application to nearly all unal­lotted lands,199 requiring that leasing unallotted land

190 Pub. L. No. 60-781, 35 Stat. 783 (1909) (codified as amended at 25 U.S.C. § 396). Regulations for leasing allotted land are at 25 C.F.R. pt. 212. Allottees have standing to enforce lease terms. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 372 (1968). Congress has enacted specific legislation for leasing allotted land on some reservations. E.g., Pub. L. No. 105-188, 112 Stat. 620 (1998) (Ft. Berthold Reservation), as amended, Pub. L. No. 106-67, 113 Stat. 979 (1999) (former Oklahoma Indian reservations). Some regulations governing mineral leases and mineral development apply only to certain tribes. 25 C.F.R. pts. 213 (oil, gas, and other minerals; Five Civilized Tribes), 214 (minerals other than oil and gas; Osage Reservation), 215 (lead and zinc; Quapaw Agency), 217 (oil, gas, and other minerals; Uintah and Ouray Reservation), 226 (oil and gas; Osage Reservation), 227 (oil and gas; Wind River Reservation). 191 Pub. L. No. 69-133, 44 Stat. 300 (1926) (codified at 25 U.S.C. § 400a); Pub. L. No. 66-3, 41 Stat. 3, 31 (1919) (codified as amended at 25 U.S.C. § 399).

Royster, supra note 181, at 556.

192

Id. at 557.

193

Pub. L. No. 75-506, 52 Stat. 347 (1938) (codified as amended at 25 U.S.C. §§ 396a–396g). Implementing regulations are at 25 C.F.R. pt. 211. 194

195 Pub. L. No. 60-316, 35 Stat. 781, 783 (1909) (codified as amended at 25 U.S.C. § 396). Implementing regulations are at 25 C.F.R. pt. 212. Coal leasing regulations are at 25 C.F.R. pt. 200. 196 S. Rep. No. 985, 75th Cong., 1st Sess. (1937); H.R. Rep. No. 1872, 75th Cong. 3d Sess. (1938). Focusing primarily on the 1919 Act regulating mining activity on unallotted lands in nine western states, the legislative reports criticized its requirement that leases be issued in accordance with generally applicable mining laws as discouraging reservation mineral development, restricting a tribe’s ability to negotiate the most financially advantageous leases, and limiting tribal and Secretary authority to prevent lease acquisitions. The reports also noted that existing statutes did not allow for non–oil and gas mineral leasing on executive order reservations other than those in the nine states mentioned in the 1919 Act, unless the tribe was chartered under the 1934 Indian Reorganization Act, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461–479). See Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 177–78 (1989).

Montana v. Blackfeet Tribe, 471 U.S. 759, 767 n.5 (1985).

197

United States v. Navajo Nation, 537 U.S. 488, 494 (2003).

198

25 U.S.C. §§ 396a, 396f.

199

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occur only with tribal consent,200 and requiring the Secretary to issue leases to the “highest responsible qualified bidder” at public auction or by sealed bids.201 The Secretary has issued extensive regulations to implement the Act.202 The Act repealed all inconsistent prior mineral leasing legislation.203 A major limitation of the 1938 Act, as well as earlier statutes, was the absence of authority to enter into a business relationship other than that of lessor-lessee. Tribes wanted to enhance their ability “to share in the decisionmaking, risks, and rewards of developing their own . . . mineral resources.”204 Congress addressed this and other shortcom­ings in mineral leasing legislation through the Indian Mineral Development Act of 1982.205 The 1982 Act “blends the modern federal policy of Indian tribal self-determination with the notion that the federal government has fiduciary duties with regard to Indian mineral resource development.”206 The 1982 Act applies to all tribes207 and authorizes them to enter into mineral agreements subject to secretarial approval.208 The Act expands the means by which tribes may develop their resources from typical leases to any type of minerals agreement.209 The term “minerals agreements” is broadly defined.210 Although the 1938 Indian Mineral Leasing Act remains in effect, most mineral activity is carried out under the far less restrictive provisions of 1982 Indian Mineral Development Act.211 The 1992 Indian Energy Resources Act sought to further support tribal mineral development through

Id.

200

Id. § 396b.

201

Id. § 396d; 25 C.F.R. pt. 211.

202

Pub. L. No. 75-506, § 7, 52 Stat. 347, 348 (1938).

203

M. Julia Hook, Approving Communitization Agreements Covering Native American Lands, 11 Nat. Resources & Env’t 14, 15 (Winter 1997). 204

205 Pub. L. No. 97-382, 96 Stat. 1938 (1982) (codified at 25 U.S.C. §§ 2101–2108). The accompanying House report specified other problems under the 1938 Act, including restricting initial lease terms to ten years, the “in paying quantities” condition precedent to lease extensions, and the fact that competitive bidding for oil and gas leases did not always result in the best return when measured against agreements negotiated by tribes not subject to the Act’s auction or sealed bid provision. H.R. Rep. No. 97-746, at 3–4 (1982), reprinted in 1982 U.S.C.C.A.N. 3465, 3465–66; see generally M. Julia Hook and Britt D. Banks, The Indian Mineral Development Act of 1982, 7 Nat. Resources & Env’t 11 (Spring 1993). The Act’s implementing regulations are at 25 C.F.R. pt. 225. Regulations have been also adopted to minimize and correct environmental damages caused by mineral development. 25 C.F.R. pt. 216.

Vollman, supra note 180, at 12–16.

206 207

25 U.S.C. § 2102(a).

Id. §§ 2102(a), 2103(b). Pub. L. No. 84-255, § 1, 69 Stat. 539 (1955) (codified as amended at 25 U.S.C. § 415(a)), allows “any restricted Indian lands” to be leased for “business purposes, including the development or utilization of natural resources[,]” but section 415 “has never been interpreted to authorize mineral leasing per se.” Vollman, supra note 180, at 12-9 n.32. 208

25 U.S.C. § 2102(b).

209

Id. § 2102(a).

210 211

Vollman, supra note 180, at 12-11, 12-15.

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greater tribal control and by establishing energy resource programs.212 The Act was substantially revised by the Energy Policy Act of 2005,213 Title V of which is the “Indian Tribal Energy Development and Self-Determination Act of 2005.”214 Title V imposes duties on federal agencies to further Indian mineral development. It establishes within the Department of Energy an Office of Indian Energy Policy and Programs to provide “energy planning, education, management, conservation, and delivery programs”; to promote Indian tribal energy development; and to “strengthen Indian tribal energy and economic infrastructure relating to natural resource development and electrification.”215 The Secretary of the Interior is to establish an Indian Energy Resource Development Program to provide grants, loans, and technical assistance.216 The Bonneville Power Administration and Western Area Power Administration must take steps to “encourage Indian tribal energy development.”217 The 2005 Act also allows tribes to enter leases and business agreements for energy resource development without the Secretary’s approval provided certain conditions are met, including a “tribal energy resource agreement” between the tribe and the Secretary.218 Despite the detailed statutory and regulatory provisions governing the leasing of Indian minerals, substantial controversy has arisen over whether tribes have received all mineral royalties and other payments to which they are entitled.219 A result of this controversy was the creation of the Minerals Management Service within DOI and the abolition of the Conservation Division

Pub. L. No. 102-486, 106 Stat. 2776 (1992).

212

Pub. L. No. 109-58, 119 Stat. 594 (2005).

213

Id. at §§ 501–506.

214

Id at § 502 (codified at 42 U.S.C. § 1744e).

215

Id. at § 503 (codified at 25 U.S.C. § 3502).

216

Id. (codified at 25 U.S.C. § 3505).

217

Id.; see generally Andrea S. Miles, Note, Tribal Energy Resource Agreements: Tools for Achieving Energy Development and Tribal Self-Sufficiency or an Abdication of Federal Environmental and Trust Responsibilities?, 30 Am. Indian L. Rev. 461, 475 (2005–2006) (discussing the Act’s “dual goals of energy development and tribal self sufficiency[,]” and observing “[w]hile it is too soon to measure the success of Title V or [Tribal Energy Resource Agreements], some tribes are keenly interested in developing energy resources and improving economic conditions for their communities”). Section 1813 of the 2005 Act additionally required the Secretaries of Energy and the Interior to prepare a report addressing certain issues associated with the grant, renewal, or expansion of energy rights-of-way, including historic rates of compensation paid for such rights-of-way and assessing their effect on tribal sovereignty and self-sufficiency. See generally Paul E. Frye, Section 1813 of the Energy Policy Act of 2005: Implications for Tribal Sovereignty and Self-Sufficiency, 42 Tulsa L. Rev. 75, 85–87 (2006) (discussing section 1813’s legislative background and the nature of tribal interests at stake). The Secretaries issued the report in May 2007. Report to Congress: Energy Policy Act of 2005, Section 1813 Indian Lands Rights-of-Way Study, available at http://www.oe.energy.gov/DocumentsandMedia/EPAct_1813_Final.pdf (last visited July 17, 2008). 218

219 See Hearings Before Select Committee on Indian Affairs: Federal Supervision of Oil and Gas Leases on Indian Reservations, 97th Cong., 1st Sess. (Comm. Print 1981); see generally Russell Davis et al., Oil and Gas Royalty Recovery Policy on Federal and Indian Lands, 23 Nat. Resources J. 391 (1983) (analyzing various rea­ sons for tribal royalty losses).

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of the United States Geological Survey in 1982.220 A further result was the passage of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA).221 FOGRMA deals gen­erally with oil and gas leasing on all federal land, including most Indian land; imposes more stringent reporting and payment obligations on mineral lessees; mandates prompt royalty distribution to states and tribes with an accompanying explanation; and broadens the Secretary of the Interior’s inspection, audit, and enforcement authority.222 It also authorizes the Secretary to enter into cooperative agreements with states and tribes con­cerning inspection, audit, investigation, or enforcement matters “to increase state and tribal involvement in the royalty management program.”223 B. Farm Leases An objective of the allotment process was to absorb Indians into the mainstream of non-Indian society. To accomplish this, Indians were encouraged to farm their allotments just as non-Indian settlers farmed their homesteads. Therefore, during the early part of the assimilation period, Congress granted only limited authority for leasing Indian lands for farming. The first authority was given in 1891.224 The law, however, was restricted. It allowed the Secretary of the Interior to lease allotted land only if the allottee’s age “or other disability” prevented the allottee from occupying or improving the allotment for his or her own benefit. Further­more, a farming lease could be given for no more than three years. During this same time, a handful of similarly restrictive laws were enacted.225 The policy encouraging farming of tribal lands by limiting leas­ing was relaxed in 1894 when Congress allowed a tribe to issue farming leases for its “surplus lands,” provided that the lease complied with the Secretary’s regulations.226 In 1910 Congress relaxed the restrictions on leasing allotments held under a trust patent.227 The Act allows allottees themselves to lease the land as

Id. at 395.

220

Pub. L. No. 97-451, 98 Stat. 2447 (1983) (codified as amended at 30 U.S.C. §§ 1701–1757); see H.R. Rep. No. 97–859, at 15–16 (1982), reprinted in 1982 U.S.C.C.A.N. 4268, 4269–70. 221

222 30 U.S.C §§ 1712–1715, 1717–1719; see H.R. Rep. No. 97-859, at 28–36, reprinted in 1982 U.S.C.C.A.N. at 4282–90; see generally Kent Siegrist, Note, Honor Among Thieves: The Absence of Adequate Enforcement Protections for Native American Royalty Theft, 30 Am. Indian L. Rev. 223 (2005–2006) (federal laws, such as FOGRMA, give tribes too little authority to protect their interests in produced minerals).

H.R. Rep. No. 97-859, at 37, reprinted in 1982 U.S.C.C.A.N. at 4291; see 30 U.S.C. § 1732.

223

Act of Feb. 28, 1891, 26 Stat. 795 (1891).

224

Act of May 31, 1900, 31 Stat. 229 (codified at 25 U.S.C. § 395); Act of June 7, 1897, 30 Stat. 85; Act of June 10, 1896, 29 Stat. 340; Act of Mar. 2, 1895, 28 Stat. 900; Act of Aug. 15, 1894, 28 Stat. 305. 225

Act of Aug. 15, 1894, 28 Stat. 305 (codified at 25 U.S.C. § 402).

226

Pub. L. No. 61-313, § 3, 36 Stat. 855, 856 (1910) (codified at 25 U.S.C. § 403). This act applies neither “to the Osage Indians, nor to the Five Civilized Tribes, in Oklahoma.” Pub. L. No. 61-313, § 33, 36 Stat. 855, 863 (1910) (codified at 25 U.S.C. § 353). 227

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long as the lease does not exceed five years and complies with the Secretary’s regulations. Although the law does not set forth the pur­poses for which leases may be issued, it has been interpreted to allow farming leases.228 A 1921 law specifically allows an Indian owning a “restricted allotment” to lease it for farming purposes.229 The lease, however, must be approved by the BIA and comply with the Secretary’s regulations.230 Congress has enacted several other statutes regarding farm leases to address unique circumstances. A 1916 Act allows the Secretary to lease for up to 10 years certain arid allotted lands susceptible to irrigation.231 In 1926 legislation was enacted authorizing tribes to issue farm leases for up to 10 years on unallotted irrigable lands.232 Congress also has recognized that in some situations long-term farm­ing leases are appropriate. In particular, “for those farming purposes which require the making of a substantial investment” to improve land for specialized crops, leases may be issued for up to 25 years.233 The statute allows land on a number of reservations to be leased for up to 99 years. The allowance for long-term leases applies to any restricted Indian land, whether tribally or individually owned. Such leases may be made by the Indian owners with the Secre­tary’s approval. Another statute regarding farm leases is part of the Indian Reorgani­zation Act.234 The Act states that a tribe incorporated by the Secretary may receive in its charter the power to manage all land within the reservation, provided that leases do not exceed 25 years.235 Although the federal government has always had a significant role in managing Indian agricultural land, it has not always done so effectively. A 1992 report “showed that over 1.1 million acres of Indian trust land lay idle

See Miller v. McClain, 249 U.S. 308, 311 (1919).

228

Pub. L. No. 66-359, 41 Stat. 1225, 1232 (1921) (codified at 25 U.S.C. § 393).

229

Regulations governing agriculture leases appear at 25 C.F.R. §§ 162.200–162.256. The regulations are intended to “balance[ ] the responsibilities the Secretary has as trustee of Indian land with the need for tribes and individual Indian landowners to exercise maximum control over their Indian agricultural lands.” Trust Management Reform: Leasing/Permitting, Grazing, Probate and Fund Held in Trust; Final Rule, 66 Fed. Reg. 7079 (2001). 230

Pub. L. No. 64-80, 39 Stat. 123, 128 (1916) (codified at 25 U.S.C. § 394).

231

Pub. L. No. 69-503, 44 Stat. 894 (1926) (codified at 25 U.S.C. § 402a). Some agriculture leasing statutes and regulations deal with specific tribes. E.g., Pub. L. No. 89-715, 80 Stat. 1112 (1966) (codified at 25 U.S.C. § 416, implementing regulations at 25 C.F.R. § 162.503) (San Xavier and Salt River Pima-Maricopa Reservations); Pub. L. No. 74-441, 49 Stat. 1135 (1936) (codified at 25 U.S.C. § 393a) (Five Civilized Tribes); 25 C.F.R. § 162.500 (Crow Reservation); 25 C.F.R. § 162.501 (Fort Belknap Reservation); 25 C.F.R. § 162.502 (Cabazon, Augustine, and Torres-Martinez Reservations). 232

233 Pub. L. No. 84-34, 69 Stat. 539 (1955) (codified as amended at 25 U.S.C. § 415(a)). “Specialized crop” is not to be given a limited meaning. 70 Interior Dec. 114, 127 (1963).

Pub. L. No. 73-383, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461–479).

234

Pub. L. No. 73-383, § 17, 48 Stat. 984, 988 (1934) (codified as amended at 25 U.S.C. § 477). As originally enacted, this law limited leases to 10 years but was amended to allow 25-year terms. Pub. L. No. 101-301, § 3(c), 104 Stat. 207 (1990). 235

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nationwide, and in Oklahoma alone nearly 60,000 acres were unleased.”236 The report stated that the BIA’s “Indian agricultural policy . . . has fallen into serious decline.”237 Besides the problem with idle land, funding was static and the number of BIA employees engaged in agricultural or natural resources management had “decreased dramatically.”238 To address some of these problems and revive Indian agriculture, in 1993 Congress enacted the American Indian Agricultural Resource Management Act.239 The Act seeks to make better use of Indian agricultural land through management plans; “to enhance the capability of Indian ranchers and farmers to produce crops and products from such lands; to affirm the authority of the Indian tribal governments in the management and regulation of Indian agricultural lands; and to enhance educational opportunities for Indian students in the management of Indian natural resources.”240 The Act also contains leasing provisions.241 C. Grazing Leases In 1891 Congress allowed grazing leases to be issued on unallotted lands “occupied by Indians who have bought and paid for the same.”242 These leases may not exceed five years and can be issued only by the tribal council. The BIA must recommend the amount of land to be leased and the lease terms. In addition, the lease is subject to approval by the Secretary of the Interior. While the 1891 grazing statute applies to unallotted land, statutes enacted in 1910 and 1921 apply to allotted land. The 1910 law is a general leasing statute not confined to grazing.243 It applies to “[a]ny Indian allotment held under a trust patent.” The 1921 law pro­vides for leasing “[t]he restricted allotment of any Indian” for “farm­ing and grazing purposes.”244 Leases under either statute must conform with the Secretary’s regulations.245

S. Rep. No. 103-896, at 1 (1993), reprinted in 1993 U.S.C.C.A.N. 2459, 2459.

236

Id. at 2, reprinted in 1993 U.S.C.C.A.N. at 2460.

237

Id.

238

Pub. L. No. 103-177, 107 Stat. 211 (1993) (codified at 25 U.S.C. §§ 3701–3746).

239

S. Rep. No. 103-896, at 1 (1993), reprinted in 1993 U.S.C.C.A.N. 2459, 2459.

240

25 U.S.C. § 3715.

241

242 Act of Feb. 28, 1891, 26 Stat. 794 (codified at 25 U.S.C. § 397). “[B]ought and paid for” encompasses not only lands acquired by Indians through the payment of money but also lands received by exchange and those reserved for Indians in return for a surrender by them of other lands, possessions, or rights. British-American Oil Producing Co. v. Bd. of Equal., 299 U.S. 159, 164 (1936); Strawberry Valley Cattle Co. v. Chipman, 45 P. 348, 350 (Utah 1896).

Pub. L. No. 61-313, 36 Stat. 856 (1910) (codified at 25 U.S.C. § 403).

243

Pub. L. No. 66-359, 41 Stat. 1225, 1232 (1921) (codified at 25 U.S.C. § 393).

244

Regulations for grazing leases are at 25 C.F.R. pt. 166.

245

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The final statute governing grazing on Indian lands was enacted in 1955.246 It provides for leasing “[a]ny restricted Indian lands, whether tribally or individually owned.” It is not restricted to grazing but allows land leases for many purposes. Under the statute, grazing leases may be issued by the Indian owner, subject to the Secretary’s approval, for a period not to exceed 10 years. Pursuant to the authority given under the grazing statutes, as well as the Indian Reorganization Act’s requirement that the Secretary “restrict the num­ber of livestock grazed on Indian range units” and adopt regulations “to pro­tect the range from deterioration, to prevent soil erosion, to assure full utilization of the range, and like purposes,”247 the Secretary has adopted extensive grazing regulations.248 Failure to comply with the regulations can lead to a determination that the lease is void.249 Failure to comply with the grazing statutes also has led to judicial determinations voiding leases.250 The judiciary, finally, has been involved regularly in litigation over livestock trespassing on Indian land. 251 D. Miscellaneous Leases In 1955, Congress granted broad authority to the owners of Indian land to lease for multiple purposes.252 Any restricted lands, whether tribally or individually owned, may be leased by the Indian owner with the Secretary of the Interior’s approval for public, religious, educational, recreational, and residential uses, including the development or use of natural resources in

246 Pub. L. No. 84-34, 69 Stat. 539 (1955) (codified as amended at 25 U.S.C. § 415). A tribe can also acquire leasing authority by incorporating under the Indian Reorganization Act. 25 U.S.C. § 477.

Pub. L. No. 73-383, § 6, 48 Stat. 984, 986 (1934) (codified at 25 U.S.C. § 466).

247

25 C.F.R. pt. 166. The Secretary has also adopted special rules for grazing on certain Indian reservations. E.g., 25 C.F.R. § 162.500 (Crow Reservation); id. pts. 161 and 167 (Navajo Reservation); id. pt. 168 (specified Hopi lands). Certain tribes, including those organized under the Indian Reorganization Act, may supersede the federal regulations and lease without the Secretary of the Interior’s approval under constitutional or bylaw provisions. 25 U.S.C. § 476. 248

See Wordehoff v. Nepper, 170 N.W. 657 (S.D. 1919).

249

See, e.g., Dickey v. Williams, 98 P.2d 604, 605 (Okla. 1940); Phillips v. Reynolds, 113 N.W. 234, 234 (Neb. 1907); Williams v. Steinmetz, 82 P. 986, 988 (Okla. 1905), overruled in part on other grounds, Holden v. Lynn, 120 P. 246 (Okla. 1911). 250

251 See, e.g., Danks v. Fields, 696 F.2d 572 (8th Cir. 1982); United States ex rel. Chase v. Wald, 557 F.2d 157 (8th Cir. 1977); Fraser v. United States, 261 F.2d 282 (9th Cir. 1958). Either the United States or the Indian landowner may seek to recover damages caused by trespassing livestock. Wald, 557 F.2d at 160; see also Hall v. United States, 201 F.2d 886 (10th Cir. 1953). 252 Pub. L. No. 84-34, 69 Stat. 539 (1955) (codified as amended at 25 U.S.C. § 415(a)). General leasing regulations are at 25 C.F.R. pt. 162. Leasing statutes have been enacted for some individual tribes. E.g., Pub. L. No. 81-474, § 6, 64 Stat. 44, 46 (1950) (codi­fied as amended at 25 U.S.C. § 635) (Navajo and Hopi Tribes); Pub. L. No. 76-813, 54 Stat. 1057 (1940) (codified at 25 U.S.C. § 403a) (Port Madison and Snohomish or Tulalip Reservations); Pub. L. No. 79-702, 60 Stat. 962 (1946) (codified at 25 U.S.C. § 403b) (restricted land in the state of Wash­ington); Pub. L. No. 91-274, §3, 84 Stat. 301, 302 (1970) (codified as 25 U.S.C. § 415b) (Tulalip Tribes). The 1955 law sup­plies additional leasing authority without displacing or superseding other leasing statutes. 62 Interior Dec. 469 (1955).

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connection with operations under such leases.253 The law also authorizes grazing and farming leases where the lessee will make a substantial invest­ment to improve the land for specialized crops. Leases may be for a term of up to 25 years, although certain leases may be renewed for an additional 25 years. The primary reason for the law was the existing limitations on the duration of leases.254 When the 1955 law was enacted, most statutes limited leases to five years. Prohibiting long-term leases discriminated against Indians who owned restricted land suitable for the location of business establishments, summer homes, residential subdivisions, and other purposes that require substantial investment from the prospective lessee.255 The limitation on long-term leases also penalized Indians owning potentially valu­able farmland for which the cost of development was too great for the owner to finance. In such cases, prospective lessees willing to undertake expensive improvements ordinarily require a long-term lease.256 As soon as the 1955 law took effect, however, it was found inadequate for some kinds of development. Financing for certain projects demanded longer than the 50 years allowed by the 25-year lease limitation with a 25-year renewal. In other situations, prospective les­sees required a longer lease term to encourage their development of the land. The 1955 law has consequently been amended a number of times to provide for 99-year leases on a number of reservations.257 For example, in 1970, lease terms not exceeding 99 years were authorized on the Yavapai-Prescott Community Reservation.258 The reservation adjoins Prescott, Arizona, which was experiencing rapid growth at the time Congress granted authority to lease reservation land for up to 99 years. This land was “ideally suited to capitalize on the growth of the city if adequate lease terms can be offered.”259 Currently 99-year leases are authorized for dozens of reservations and pueblos.260

253 The requirements of § 415(a), as the statute’s literal language otherwise indicates, extend to any conveyance of a leasehold interest. See United States v. Torlaw Realty, Inc., 483 F. Supp. 2d 967, 973 (C.D. Cal. 2007) (trespass action arising from creation of solid waste site on trust land without BIA lease under § 415); In re Epic Capital Corp., 290 B.R. 514, 521 (Bankr. D. Del. 2003) (BIA approval required for valid encumbrance by lessee of leasehold interest). Neither the land’s trust status nor secretarial approval establishes privity of contract between the United States and the lessee for Tucker Act purposes. Saguaro Chevrolet, Inc. v. United States, 77 Fed. Cl. 572, 577–82 (2007).

H.R. Rep. No. 84-1093 (1955), reprinted in 1955 U.S.C.C.A.N. 2691, 2691–92.

254

Letter from O. Lewis, Asst. Sec. of the Interior, to Chairman, House Comm. on Interior & Insular Affairs (Mar. 21, 1955), reprinted in 1955 U.S.C.C.A.N. 2693. 255

Id. at 2693–94.

256

Lands exempted from the 25-year lease limitation may be leased for up to 99 years, except grazing leases, which may not exceed 10 years. 25 U.S.C. § 415(a). 257

Pub. L. No. 91-274, 84 Stat. 302, 303 (1970) (codified at 25 U.S.C. § 415(a)).

258

S. Rep. No. 91-832 (1970), reprinted in 1970 U.S.C.C.A.N. 3243, 3244.

259

25 U.S.C. § 415(a).

260

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With the ever-increasing amount of exceptions to 25-year lease terms, a concern was raised that the Secretary should approve long-term leases only after a comprehensive consideration of a variety of factors. Consequently, 1970 amendments to 25 U.S.C. § 415(a) require the Secretary to consider environmental and land use factors before approving a lease.261 In particular, the Secretary must consider the relationship between the use of the leased lands and neighboring lands; the height, quality, and safety of any structures or facilities to be constructed on leased lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject. These amendments require the Secretary to balance general public interest and safety concerns with the economic benefit from developing Indian lands. Leases issued under section 415(a) must not pre­vent or delay the termination of federal trust responsibilities with respect to the land.262 Since there is no question that long-term leases allowing land development can have adverse envi­ronmental effects, the National Environmen­tal Policy Act263 applies to the Secretary’s approval of such leases.264 Besides section 415(a), there are two other general leasing statutes. Under a 1910 act, an Indian allottee holding under a trust patent may lease the allotment for up to five years, subject to the Secretary’s regula­tions.265 Since the purposes for which the allotment may be leased under this law are unspecified, the lease presumably can be for any lawful pur­pose. Another general leasing statute is a part of the Indian Reorganization Act, which provides that a tribe’s charter of incorporation may empower the tribe to “manage, operate, and dispose of property of every description.”266 Leases under the Act are limited to 25 years. Besides granting leases for their land, a tribe and its members have inherent authority to grant licenses for the entry and use of their land.267 Statutory authority is not necessary for an Indian owner to grant a license. Though the distinction between a license and a lease is sometimes difficult to draw,

Pub. L. No. 91-274, § 2, 84 Stat. 302, 303 (1970) (codified at 25 U.S.C. § 415(a)).

261

Pub. L. No. 84-34, § 5, 69 Stat. 539, 540 (1955) (codified at 25 U.S.C. § 415c).

262

Pub. L. 91-190, 83 Stat. 852 (1970) (codified as amended 42 U.S.C. §§ 4321–4370(a)).

263

Davis v. Morton, 469 F.2d 593, 596–98 (10th Cir. 1972); see also Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1034 (8th Cir. 2002); Manygoats v. Kleppe, 558 F.2d 556, 557 (10th Cir. 1977). 264

Pub. L. No. 61-313, § 4, 36 Stat. 855, 856 (1910) (codified as amended at 25 U.S.C. § 403).

265

Pub. L. No. 73-383, § 17, 48 Stat. 984, 988 (1934) (codified as amended at 25 U.S.C. § 477).

266

See generally Strickland, supra note 25, at 332 (discussing nineteenth-century Attorney General opin­ions and concluding that “the power of a tribe ‘to declare who shall come within the boundaries of its occupancy and under what regulations and conditions’ exists in the absence of treaty or statute as an inherent power of the tribe”). 267

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a license merely confers an entry privilege for a specified purpose, while a lease grants an interest in land and creates a right against the land­owner and third persons.268 Finally, the Secretary of the Interior has the duty to approve all “contract[s] with an Indian tribe that encumber[ ] Indian lands for . . . 7 or more years” except those identified by the Secretary as not subject to such approval.269 “Encumber” has been defined by rule,270 and the statute itself defines “Indian lands” as trust and restricted lands.271 The statute sets forth provisions that must be in agreements before the Secretary may approve them, which include a provision for remedies upon breach and either a provision that sets forth the tribe’s right to assert sovereign immunity or that waives that immunity.272 Regulations, however, exclude from coverage contracts that, inter alia, require secretarial approval or are exempt from such approval under 25 U.S.C. §§ 415 and 477.273 E. Timber Harvesting Many reservations “have substantial amounts of forest lands.”274 Reservations contain about sixteen million acres of forest, of which nearly six million acres are commercial forest land.275 Even though about 13 percent of all Indian trust land is commercial timber land,276 when reservations were created the law did not recognize tribal title to timber resources.

See United States v. S. Pac. Transp. Co., 543 F.2d 676 (9th Cir. 1976).

268

25 U.S.C. § 81(b) & (e); see generally Anna-Emily C. Gaupp, The Indian Tribal Economic Development and Contracts Encouragement Act of 2000: Smoke Signals of a New Era in Federal Indian Policy?, 33 Conn. L. Rev. 667 (2001). 269

270 “Encumber means to attach a claim, lien, charge, right of entry or liability to real property (referred to generally as encumbrances).” 25 C.F.R § 84.002. The kinds of encumbrances covered “may include leasehold mortgages, easements, and other contracts . . . that . . . could give to a third party exclusive or nearly exclusive proprietary control over tribal land.” Id. 271 25 U.S.C. § 81(a)(1); see Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767, 775 (9th Cir. 2008) (where casino development contract related to lands to be acquired in the future, § 81 did not apply; “use of the present tense in defining ‘Indian lands’ unambiguously prescribes that title to the real estate must already be held by the United States in trust for a tribe”).

25 U.S.C. § 81(d)(2).

272

25 C.F.R. § 84.004 (specifying as examples of contracts not requiring approval nonmineral leases (id. pt. 162), timber contracts (id. pt. 163), grazing permits (id. pt. 166), rights-of-way (id. pt. 169), coal leases (id. pt. 200), mineral leases (id. pt. 211), surface mining permits and leases (id. pt. 216), mineral development agreements (id. pt. 225); also excluded are agreements that do not convey exclusive or nearly exclusive proprietary control over tribal lands for seven or more years). 273

274 James D. Hill and Howard G. Arnett, Understanding Indian Tribal Timber Sales, 9 Nat. Resources & Env’t 38, 38 (Winter 1995).

25 U.S.C. § 3101(1)(A).

275

S. Rep. No. 103-186, at 2 (1993), reprinted in 1970 U.S.C.C.A.N. 2459, 2460.

276

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In United States v. Cook277 the Supreme Court considered whether tribal members owned timber on their land.278 It ruled that they did not have title to such lands but possessed only a right of occupancy.279 Therefore, tribal members could not cut timber to mar­ket it, but could cut timber only to clear land.280 In 1889 the Attorney General interpreted the Court’s decision as applying to allotted as well as unallotted lands.281 Congress confirmed the Attorney General’s opinion in 1889 with the first general statute governing timber removal.282 The statute authorized the President to allow Indians residing on reservations and allotments to remove, sell, or otherwise dis­pose of standing or fallen dead timber, but did not provide for the sale of live timber. The limited legal interest of Indians in timber was also expressed by the Supreme Court in 1902.283 Some treaties, however, did contain language leading to the conclusion that Indians have the right to cut and sell growing timber.284 On occasion, Congress enacted statutes authorizing the harvesting and sale of live timber on specific reservations.285 In 1910 Congress reversed its general policy restricting Indian use of timber resources and gave broad authority to the Secretary of the Interior to oversee timber harvesting.286 In 1938 the Supreme Court followed suit, repudiating its earlier decisions that Indians have no right to tim­ber resources.287 It thus stated a year later: Under . . . established principles applicable to land reservations created for the benefit of the Indian tribes, the Indians are beneficial owners of the land and the timber standing upon it and of the proceeds of their sale,

86 U.S. (19 Wall.) 591 (1873).

277

Brief histories of the nature of tribal title to timber resources appear in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 n.12 (1980), and United States v. Mitchell, 445 U.S. 535, 545–46 (1980). See gen­erally Strickland, supra note 25, at 313–16 (discussing early development of federal timber harvest policy); Hill and Arnett, supra note 274, at 38–39. 278

86 U.S. (19 Wall.) at 592–93.

279

Id. at 593–94.

280

19 Op. Att’y Gen. 232 (1889).

281

Act of Feb. 16, 1889, 25 Stat. 673 (codified at 25 U.S.C. § 196).

282

Pine River Logging & Imp. Co. v. United States 186 U.S. 279, 284–86 (1902); see also Starr v. Campbell, 208 U.S. 527 (1908). 283

United States v. Paine Lumber Co., 206 U.S. 467, 472–73 (1907).

284

E.g., Act of Mar. 31, 1882, 22 Stat. 36 (Green Bay Agency); Pub. L. No. 59-71, 34 Stat. 91 (1906) (Jicarilla Apache Reservation); Pub. L. No. 60-74, 35 Stat. 51 (1908) (Menominee Reservation). Certain tribes, including those organized under the Indian Reorganization Act, may supersede federal regulations and convey interests in tribal land without Secretarial approval under constitutional or bylaw provisions. 25 U.S.C. § 476(e). 285

Pub. L. No. 61-313, § 7, 36 Stat. 855, 857 (1910) (codified as amended at 25 U.S.C. §§ 406–07).

286

United States v. Shoshone Tribe, 304 U.S. 111, 118 (1938); see also White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 146 n.12 (1980). 287

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subject to the plenary power of control by the United States, to be exercised for the benefit and protection of the Indians.288

It is, however, the 1910 Act that governs present-day timber harvests. The act divides the land to which it applies into two categories: land held for individual Indians under trust or other patent containing restrictions on alien­ation, and “land held in trust for tribes.”289 Timber on tribal lands may be sold pursuant to the Secretary’s reg­ulations and must be compatible with principles of sustained-yield management or conversion of the land to a more desirable use.290 Simi­lar provisions apply to allotted land, the timber on which may be sold by the owners with the Secretary’s consent.291 Sales of timber on trust and restricted land must “be based upon consideration of the needs and best interests of the Indian owner and his heirs.”292 The Secretary must also consider maintaining the land’s productive capacity, the best use of the land, and the present and future financial needs of the owner and his heirs.293 While the proceeds go to the owner, the Secretary is authorized to deduct administrative expenses.294 The 1934 Indian Reorganization Act295 also contains provisions authorizing the Secretary to manage Indian forest lands. The Act instructs the Secretary “to make rules and regulations for the operation and manage­ment of Indian forestry units on the principle of sustained-yield manage­ment.”296 In 1990 Congress enacted the National Indian Forest Resources Management Act (NIFRMA),297 giving tribes the opportunity to exercise significant control over their forest lands. The Act states that existing law insufficiently ensures “the adequate and necessary trust management of Indian forest lands” and that there is a “serious threat” to these lands “from trespass and

288 United States v. Algoma Lumber Co., 305 U.S. 415, 420 (1939). The United States’ title to Indian timber is only a “naked fee,” and thus an arsonist whose acts damaged tribal timber is not within the jurisdiction of a statute imposing criminal penalties for damage to property owned by the United States. United States v. McKinnon, 281 F. Supp. 2d 1146, 1149 (N.D. Cal. 2003). 289 25 U.S.C. §§ 406(a), 407; Eastman v. United States, 31 F. Supp. 754, 760 (W.D. Wash. 1940) (“Section 407 . . . deals with unallotted lands . . . [and] Section 406 . . . relates to allotted lands”), rev’d on other grounds, 118 F.2d 421 (9th Cir. 1941). Forestry regulations are at 25 C.F.R. pt. 163.

25 U.S.C. § 407.

290

25 U.S.C. § 406(a). Other than in an emergency, the Secretary can only approve or disapprove a sale of timber by an allottee. Id. at § 406(e); Barclay v. United States, 333 F.2d 847, 859 (Ct. Cl. 1964). 291

25 U.S.C. § 406(a).

292

Id.

293

Id.; see also id. § 413. Deducting administrative expenses does not violate a fiduciary duty to Indi­ ans. Quinault Allottee Ass’n v. United States, 485 F.2d 1391, 1401 (Ct. Cl. 1973). 294

Pub. L. No. 73-383, 48 Stat. 984 (1934) (codified at 25 U.S.C. §§ 461–479).

295

25 U.S.C. § 466.

296

Pub. L. No. 101-630, 104 Stat. 4532 (1990) (codified at 25 U.S.C. §§ 3101–3120); see generally Darla J. Mondou, Our Land Is What Makes Us Who We Are: Timber Harvesting on Tribal Reservations After the NIFRMA, 21 Am. Indian L. Rev. 259, 268 (1997). 297

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unauthorized harvesting.”298 NIFRMA allows tribes to manage forest lands in partnership with the Secretary. For example, in developing and implementing forest management plans, the Secretary must do so “with the [tribe’s] full and active consultation and participation.”299 The Act establishes civil penalties for forest trespass and gives tribes jurisdiction to enforce the penalties.300 Significantly, in carrying out some of the Act’s more important responsibilities, the Secretary must comply with tribal law.301 This requirement gives tribes an important voice in forest management. The Act also contains a number of provisions that require the federal government to assist tribes in developing their own forest management expertise.302 Wildfires in 2003 that damaged 18 Southern California reservations led to NIFRMA’s amendment.303 The Tribal Forest Protection Act of 2004304 authorizes the Secretary of Agriculture and the Secretary of the Interior to enter agreements with tribes to protect and restore Indian forests and rangelands. F. Rights-of-Way and Eminent Domain Not long after most reservations were established, Congress begun enacting laws allowing rights-of-way across the reservations. For example, in 1899 the Secretary of the Interior was empowered to grant, on most reservations and allotted land, rights-of-way to railroad companies not only for rail lines but also telephone and telegraph lines.305 A few years later railroad companies were allowed to acquire rights-of-way for reservoirs, materials, or ballast pits for the construction, repair, and maintenance of their railways.306 In 1901 the Secretary was authorized to grant road rights-of-way to state or local authorities.307 This act also authorized the Secretary to grant a right-of-way for the construction, operation, and maintenance of telephone and telegraph lines

25 U.S.C. § 3101(3), (6).

298

Id. § 3104(2)

299

Id. § 3106.

300

Id. § 3108.

301

E.g., id. §§ 3110–3115.

302

H.R. Rep. No. 108-509(I), at 3 (2004), reprinted in 2004 U.S.C.C.A.N. 817, 817–18.

303

Pub. L. No. 108-278, 118 Stat. 868 (2004) (codified at 25 U.S.C. § 3115a).

304

Act of Mar. 2, 1899, 30 Stat. 990 (codified at 25 U.S.C. §§ 312–318).

305

Pub. L. No. 60-316, 35 Stat. 781 (1909); Pub. L. No. 61-161, 36 Stat. 349 (1910) (codified at 25 U.S.C.

306

§ 320). 307 Act of Mar. 3, 1901, 31 Stat. 1084 (codified at 25 U.S.C. § 311). This statute, not general federal statutes granting rights-of-way over public lands, governs highway rights-of-way over tribal trust lands. Likewise, statutes authorizing the Department of Transportation to acquire land by condemnation for interstate highways are inapplicable to Indian trust lands. See United States v. 10.69 Acres of Land, 425 F.2d 317, 320 (9th Cir. 1970).

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and offices for telephone and tele­graph businesses.308 In 1904 the Secretary acquired authority to grant rights-of-way for oil and gas pipe­lines.309 This ad hoc right-of-way legislation created an unwieldy legal regime that Congress sought to correct in 1948. Prior to 1948, access across Indian lands was governed by an amalgam of special purpose access statutes dating back as far as 1875. . . . This statutory scheme limited the nature of rights-of-way to be obtained, and in certain cases, created an unnecessarily complicated method for obtaining rights-of-way. Each application for a right-of-way across Indian land had to be examined painstakingly to assure that it fit into one of the narrow categories of rights-of-way authorized by statute. When a right-of-way was not authorized under one of the existing statutes, which often was the case, it became necessary to obtain easement deeds, approved by the Secretary of the Interior, from each of the Indian owners. Frequently, many individual Indians, often widely scattered, owned undivided interests in a single tract of land. Obtaining the signatures of all the owners was a time-consuming and burdensome process, both for the party seeking the right-of-way and for the Interior Department. . . . The purpose of the 1948 Act was to simplify and facilitate this process of granting rights-of-way across Indian lands.310

The Indian Right-of-Way Act empowers the Secretary to grant rights-ofway for all purposes and simplifies the process of obtaining access to Indian land.311 Tribal consent, however, is required for access across tribal land and the consent of individual Indian landowners is also required, except in limited circumstances.312 The Act did not repeal existing right-of-way statutes,313 and extensive regulations have been adopted.314 The Energy Policy Act of 2005 allows tribes to grant rights-of-way over tribal land for pipelines and electric transmission or distribution lines without the Secretary’s approval, provided certain conditions are met.315 In 1901 Congress enacted a condemnation statute that also provides a means of access to Indian land.316 It applies only to allotted lands, and allows their condemnation “for any public purpose under the laws of the State . . .

Act of Mar. 3, 1901, 31 Stat. 1083 (codified at 25 U.S.C. § 319).

308

Pub. L. No. 58-45, 33 Stat. 65 (1904); Pub. L. No. 64-969, § 1, 39 Stat. 969, 973 (1917) (codified at 25 U.S.C. § 321); see also 25 C.F.R. § 169.25. 309

Nebraska Pub. Power Dist. v. 100.95 Acres of Land, 719 F.2d 956, 958–59 (8th Cir. 1983).

310 311

Pub. L. No. 80-407, 62 Stat. 17 (1948) (codified at 25 U.S.C. §§ 323–328). 25 U.S.C. at § 324.

312

Blackfeet Indian Tribe v. Montana Power Co., 838 F.2d 1055, 1058 (9th Cir. 1988).

313

25 C.F.R. pt. 169.

314

Pub. L. No. 109-58, 119 Stat. 594 (2005) (codified at 25 U.S.C. § 3504); see generally Frye, supra note 218, at 81–85 (describing interaction of the 1899 and 1948 Acts with respect to rights-of-way). 315

Act of Mar. 3, 1901, § 3, 31 Stat. 1084 (codified at 25 U.S.C. § 357).

316

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where located in the same manner as land owned in fee may be condemned.”317 Secretarial consent is not required, but the condemnation action must be brought in federal court and the United States must be a party.318 A number of cases have considered whether the 1948 Indian Right-of-Way Act impliedly repealed the 1901 condemnation authority; it did not.319 The 1901 Act provides a separate and independent means of acquiring rights-of-way across Indian land. V. FRACTIONAL PROPERTY INTERESTS The federal government’s allotment policy ended in 1934 with the Indian Reorganization Act.320 Unfortunately, unintended consequences of the policy—fractional property interests—persist, and make a substantial amount of Indian land uneconomic. A fractional property interest is a small, undivided interest in a tract of land held in common with a number of other small interests. When the original owners of allotments died, their heirs received joint undivided interests in the original allotment.321 “Thus 40-, 80-, and 160-acre parcels became splintered into multiple undivided interests in land, with some par­cels having hundreds, and many parcels having dozens, of owners. Because the land was held in trust and often could not be alienated or partitioned, the fractionation problem grew and grew over time.”322 As early as 1928, Congress recognized the situation was administra­tively unworkable and economically wasteful.323 “Good, potentially produc­tive, land was allowed to lie fallow . . . because of the difficulties of managing property

317 Id.; see Oneida Tribe v. Vill. of Hobart, 542 F. Supp. 2d 908, 923 (E.D. Wis. 2008) (land reacquired in fee by tribe subject to municipal condemnation; “[i]t would be strange indeed if . . . Congress made allotted land still under a tribe’s possession and control subject to state condemnation laws, while making the same land, upon issuance of a fee-patent, exempt”). 318 Minnesota v. United States, 305 U.S. 382, 389–90 (1939); accord United States v. City of Tacoma, 332 F.3d 574, 579–80 (9th Cir. 2003); cf. Wells Fargo Bank, N.A. v. Gila River Indian Cmty. (In re Schugg), 384 B.R. 263, 275 (Bankr. D. Ariz. 2008) (United States is a required, but not indispensable, party with respect to a tribe’s counterclaim disputing a right of access across its lands). 319 Neb. Pub. Power Dist. v. 100.95 Acres of Land, 719 F.2d 956, 959–60 (8th Cir. 1983); Yellowfish v. City of Stillwater, 691 F.2d 926, 930–31 (10th Cir. 1982); Nicodemus v. Washington Water Power Co., 264 F.2d 614, 618 (9th Cir. 1959). The Act, however, does not allow taking allotted land by inverse condemnation or physical occupation. United States v. Clarke, 445 U.S. 253, 254 (1980).

Pub. L. No. 73-383, 48 Stat. 984 (1934) (codified at 25 U.S.C. §§ 461–479).

320

Klauser v. Babbitt, 918 F. Supp. 274, 276 (W.D. Wis. 1996). These interests are thus distinguishable from those possessed under Indian land certificates issued by DOI, which “bestow[] ‘a tenancy personal to the assignment holder and her heirs conditioned upon personal occupancy and personal use,’ rather than an ownership interest that the Certificate holder’s heirs may inherit.” Cermak v. United States, 478 F.3d 953, 957 (8th Cir. 2007). 321

322 Hodel v. Irving, 481 U.S. 704, 707 (1987); see generally Jessica A. Shoemaker, Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem, 2003 Wis. L. Rev. 729 (2003); Carl G. Hakansson, Allotment at Pine Ridge Reservation: Its Consequences and Alternative Remedies, 73 N.D. L. Rev. 231 (1997).

Hodel v. Irving, 481 U.S. at 707.

323

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held in this manner.”324 Fractionated land interferes with comprehensive and constructive tribal land use plans.325 It presents financing barriers, and the costs of assembling sites or pooling rights for natural resource development and other projects may be insurmount­able.326 Consequently, the land is usually leased rather than improved and used by the owners.327 At times it is impossible to secure agreement among all owners to lease and, as a result, valuable land is in a state of quasi-abandonment.328 In numerous instances when fractionated land is leased, an owner’s share of lease money is one cent a month.329 A 1984 report described as one of the most fractionated tracts a 40-acre parcel that was annually leased for $1,080 but valued at $8,000.330 It had 439 owners, a third of whom received less than five cents a year. The smallest heir received one cent every 177 years. “The cost of leasing, bookkeeping, and distributing the proceeds in many cases far exceeds the total income. The Indians and the [BIA] are thus trapped in a meaningless system of minute partition in which all thought of the possible use of land to satisfy human needs is lost in a mathematical haze of bookkeeping.”331 Fractional interests complicate the government’s ability to properly account for all money generated from allotted land. As a result, a class action lawsuit brought by about 300,000 beneficiaries of Indian trust accounts was filed against the federal government in 1996 and is still ongoing.332 Congress’s first step to address fractional interests was termination of the allotment policy in 1934.333 Although allotment ended, the exist­ing allotments

Id. at 708.

324

S. Rep. No. 97-658, at 10 (1982), reprinted in 1982 U.S.C.C.A.N. 4409, 4419.

325

Robert A. Williams, Small Steps on the Long Road to Self-Sufficiency for Indian Nations: The Indian Tribal Governmental Tax Status Act of 1982, 22 Harv. J. on Legis. 335, 347 (1985). 326

Hodel v. Irving, 481 U.S. at 715.

327

S. Rep. No. 97-908, at 10, reprinted in 1982 U.S.C.C.A.N. 4415, 4420; see also S. Rep. No. 98-632, at 2–3 (1984), reprinted in 1984 U.S.C.C.A.N. 5470, 5472–73 (describing numerous other adverse consequences of fractionated land). 328

Hodel v. Irving, 481 U.S. at 708.

329

Id. at 713 (citing Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 Before the Sen. Select Comm. on Indian Affairs, 98th Cong., 2nd Sess., 85–87 (1984)). 330

Id. at 708.

331

Cobell v. Babbitt, 91 F. Supp. 2d 1, 6 (D.C. Cir. 1999) (“It is entirely possible that tens of thousands of . . . trust beneficiaries should be receiving different amounts of money—their own money—than they do today. Perhaps not. But no one can say, which is the crux of the problem”), aff’d, 240 F.3d 1081 (D.C. Cir. 2001). The Cobell litigation has become exceedingly contentious. A recent appellate decision noted that it is the court’s ninth published opinion in the case and reviews some of the suit’s history. Cobell v. Kempthorne, 455 F.3d 317, 319–20 (D.C. Cir. 2006). The litigation continues. See Cobell v. Kempthorne, 532 F. Supp. 2d 37, 103 and n.21 (D.D.C. 2008) (opinion on remand concluding that an accounting for individual Indian money trusts was not possible given “the tension between the expense of an adequate accounting and congressional unwillingness to fund such an enterprise” but directing a hearing for the purpose of “discussing a process for determining an appropriate remedy”). 332

333 Indian Reorganization Act of 1934, Pub. L. No. 73-383, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461–479).

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continued to splinter among the heirs in each succeeding generation. A 1960 study indicated that one-half of the approximately 12 million acres of Indian trust land is held in fractionated ownership, with over three million acres held by more than six heirs to a parcel.334 Not until 1983 did Congress again take action. The Indian Land Consolidation Act335 contains a handful of provisions designed to ame­liorate, over time, the fractionated ownership problem. A tribe may pur­chase, at fair market value, all the interests in a tract so long as the owners of over 50 percent of the undivided interests in each tract consent.336 Section 207 of the Act also included an escheat provision. It provided that a fractional interest escheats to the governing tribe if the interest rep­resented 2 percent or less of the tract’s acreage and had earned less than $100 in the year preceding escheat.337 In 1987 the Supreme Court in Hodel v. Irving338 considered the constitu­ tionality of this escheat. Although the Court recognized that Con­gress has “broad authority” to regulate descent and devise of Indian trust lands and that the problem of fractionated interests is “extraordinary and may call for dramatic action,”339 it found section 207 an unconstitutional taking of private property. In the Court’s view, it amounted to a virtual abro­gation of the right to pass property to one’s heirs and devisees and takes, without compensation, property that is not always of de minimis value.340 In 1984, while Hodel was pending before the lower courts, Congress amended section 207.341 In Hodel the Supreme Court noted the amendment but did not consider its constitutionality.342 The amendment narrowed the definition of fractional interest. That interest was to be less than 2 percent of the tract’s acreage, and the govern­ment had to show that the property was incapable of earning $100 in any one of the five years following the descendant’s death, with a rebuttable presumption of such incapability created if the fraction­ated

Hodel v. Irving, 481 U.S. at 709.

334

Pub. L. No. 97-459, Title II, 96 Stat. 2515, 2517 (1983) (codified as amended at 25 U.S.C. §§ 2201–2219). 335

336 25 U.S.C. § 2204. Sections 2203 and 2205 also contain provisions that to a lesser degree reduce frac­ tional interests. See also 25 C.F.R. § 151.7 (limiting an individual’s and a tribe’s ability to acquire fractional interests).

25 U.S.C. § 2206.

337

481 U.S. 704 (1987).

338

Id. at 712.

339

Id. at 716–17; see generally Suzanne S. Schmid, Escheat of Indian Land as a Fifth Amendment Taking in Hodel v. Irving: A New Approach to Inheritance, 43 U. Miami L. Rev. 739 (1989). 340

341 Pub. L. No. 98-608, § 1(4), 98 Stat. 3171 (1984). The amendment was in part due to the failure of section 207’s original version to consider more than one year of income generated by the property and thereby causing the escheat of potentially valuable timber and mineral interests. Hodel, 481 U.S. at 714; S. Rep. No. 98-632, at 2–3, 12, reprinted in 1984 U.S.C.C.A.N. at 5470, 5471–72, 5481.

481 U.S. at 710 n.1.

342

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interest earned less than $100 during any of those years.343 It addition­ally permitted a devise of fractional interests to another owner of a fractional interest in the tract, thus allowing a limited right to devise prop­erty.344 Finally, the amended statute allowed the escheat to be superseded by a tribal scheme that prevents further descent or fractionation of the escheatable interest.345 The amended statute fared no better than its predecessor. In Babbitt v. Youpee346 the Court struck it down on takings grounds, concluding that the differences between the two escheat provisions were constitutionally insignificant. It believed the income-gener­ating test “missed the point” because, although the property’s income capacity might be de minimis, its underlying value need not be.347 The Court then found the amendment’s limited authorization for a decedent to bequeath the property interest to another interest holder as insufficient to rehabilitate the measure. “Allow­ing a decedent to leave an interest only to a current owner in the same par­cel shrinks drastically the universe of possible successors” and restricts the decedent’s ability to pass the interest on even when no further fraction­ation would occur.348 Lastly, the Court dismissed the significance of the authorization to tribes to adopt codes to govern the transmission of fraction­ated interests, observing that the government had not relied on this provi­sion to salvage the amendment since no such codes had yet been adopted.349 After Babbitt v. Youpee, Congress again amended the Indian Land Consolidation Act.350 The 2000 amendments were designed to slow future fractionation and to consolidate existing fractional interests. Congress hoped to accomplish these goals in a number of ways. The amendments established a three-year pilot program under which the Secretary of the Interior may acquire fractional interests and hold them in trust for the tribe with jurisdiction over the property.351 The Secretary may convey any such interests acquired to an

25 U.S.C. § 2206(a) (1988).

343

Id. § 2206(b).

344

Id. § 2206(c).

345

519 U.S. 234 (1997); see generally Michelle M. Lindo, Note, Youpee v. Babbitt—The Indian Land Inheritance Problem Revisited, 22 Am. Indian L. Rev. 223 (1997); Elizabeth A.C. Thompson, Note, Babbitt v. Youpee: Allotment and the Continuing Loss of Native American Property and Rights to Devise, 19 U. Haw. L. Rev. 265 (1997). 346

519 U.S. at 243.

347

Id. at 244–45.

348

Id. at 245.

349

Indian Land Consolidation Act Amendments of 2000, Pub. L. No. 106-462, 114 Stat. 1991 (2000) (codified at 25 U.S.C. §§ 2201–2219); see generally Kathleen R. Guzman, Give or Take an Acre: Property Norms and the Indian Land Consolidation Act, 85 Iowa L. Rev. 595 (2000). The Act does not apply to Alaska. 25 U.S.C. § 2219. 350

351 Id. § 2212 (2000); see Miami Tribe v. United States, 374 F. Supp. 2d 934, 945 (D. Kan. 2005) (even though Congress has not granted tribe jurisdiction over a parcel, the tribe “exercise[d] jurisdiction over the land” for Indian Land Consolidation Act purposes because it “controls and protects the lands, takes care of

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Indian who owns at least 5 percent of the undivided interest in the parcel.352 The amendments imposed limits on the ability of owners in fractionated tracts to devise their interests.353 Intestate succession was also limited.354 Owners of a fractional interest could acquire the interests of other owners.355 Under some circumstances joint tenancy with the right of survivorship was created to further promote consolidation of ownership.356 Neither the 1983 Indian Land Consolidation Act nor its 1984 and 2000 amendments succeeded. “[S]tronger measures [are needed] to slow and halt the continued fractionation of Indian lands and to consolidate fractionated interests.”357 Not only did legislative efforts fail, but the problem worsened. In 2002 the General Accounting Office replicated its 1992 12-reservation study and found that fractionated interests increased by over 40 percent.358 In the 40-acre tract described above,359 its owners had grown from 439 to 505.360 If the tract were sold at its estimated $22,000 value, the smallest interest would receive $.00001824.361 In another effort to solve the problem, the American Indian Probate Reform Act of 2004 (AIPRA) again amended the Indian Land Consolidation Act.362 The Act authorizes tribes to adopt a land consolidation plan and gives tribes the opportunity to purchase interests in trust land.363 In addition to addressing “the alarming rate of fractionation of Indian lands,” the Act addresses concerns raised by Indian landowners over restrictions under the 2000 amendments on

any burning needed, passes laws governing use of the lands, leases the lands, issues permits for individuals to use the lands, and uses the lands for religious ceremonies” and because the parcel had been identified as land the tribe intends to consolidate under the Act). 25 U.S.C. § 2212(c) (2000).

352

Id. §§ 2205(c), 2206(a); see generally Kenneth H. Bobroff, Retelling Allotment: Indian Property Rights and the Myth of Common Ownership, 54 Vand. L. Rev. 1559 (2001) (suggesting that congressional “one size fits all” solutions are doomed and only solutions that respect individual tribal history and needs will succeed). 353

E.g., 25 U.S.C. § 2206 (2000).

354

Id. § 2206(b)(5).

355

Id. § 2206(c).

356

H. Rep. No. 108-656 at 4 (2004), reprinted in 2005 U.S.C.C.A.N. 1952, 1955.

357

Id. at 2, reprinted in 2005 U.S.C.C.A.N. 1952, 1953.

358

See notes 325–326 and accompanying text.

359

H. Rep. No. 108-656 at 2 (2004), reprinted in 2005 U.S.C.C.A.N. 1952, 1953.

360

Id.

361

362 Pub. L. No.108-374, 118 Stat. 1773 (2004) (codified in scattered sections of 25 U.S.C.); see generally Douglas R. Nash and Cecelia E. Burke, The Changing Landscape of Indian Estate Planning and Probate: The American Indian Probate Reform Act, 5 Seattle J. Soc. Just. 121 (2006); Kristina L. McCulley, Comment, The American Indian Probate Reform Act of 2004: The Death of Fractionation or Individual Native American Property Interests and Tribal Customs?, 30 Am. Indian L. Rev. 401 (2005–2006); Cohen’s Handbook of Federal Indian Law 1061–72 (Nell Newton et al. eds. 2005) (discussing Indian probate law).

25 U.S.C. §§ 2203(a), 2204(a).

363

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their ability to devise land.364 AIPRA provides a federal probate code applicable to trust and restricted lands365 and incentives for Indian landowners to write wills and thereby avoid intestate succession. New rules of intestate succession limit the range of eligible heirs to small fractional interests, though landowners can avoid the rules with a variety of testamentary options by which to devise property.366 It is hoped that these options protect the Act from constitutional challenges.367 AIPRA also allows co-owners and tribes to purchase small interests prior to orders distributing estates and it contains provisions by which highly fractionated land can be partitioned by sale.368 It further gives tribes authority to adopt probate codes that can regulate transfers of trust property.369 This broadens tribal authority; while tribes have inherent power to regulate how property owned by their deceased members is transferred, federal law governs trust property.370 Tribal codes that do extend to trust property must, however, be approved by the Secretary.371 Congress has also sought to address the fractionated land problem piecemeal. It has, for example, enacted legislation for some tribes allowing the Secretary of the Interior to approve mineral leases for individually owned land even if fewer than all of the individual owners have not consented to the lease.372 It has also enacted laws allowing certain tribes to purchase a decedent’s interest in trust or restricted land.373

H. Rep. No. 108-656, at 4 (2004), reprinted in 2005 U.S.C.C.A.N. 1952, 1955.

364

See 25 C.F.R. pt. 15 (governing probate of trust and restricted property).

365

25 U.S.C. §§ 2204, 2206.

366

H. Rep. No. 108-656, at 5, reprinted in 2005 U.S.C.C.A.N. 1952, 1955.

367

25 U.S.C. § 2206.

368

Id. at § 2205(a).

369

Nash and Burke, supra note 361, at 157.

370

371 25 U.S.C. § 2205(b). Congress has enacted some tribe-specific rules of descent and distribution. E.g., Pub. L. No. 95-264, 92 Stat. 202 (1978), 25 U.S.C. § 463d note (Umatilla Reservation); Pub. L. No. 96-274, 94 Stat. 537 (1980) (Standing Rock Sioux Reservation). 372 Pub. L. No. 106-462, tit. II, 114 Stat. 1991, 2007 (2000) (Navajo Lands); Pub. L. No. 105-188, 112 Stat. 620 (1998), and Pub. L. No. 106-67, 113 Stat. 979 (1999) (Ft. Berthold Reservation); see also DuMarce v. Scarlett 446 F.3d 1294 (Fed. Cir. 2006) (takings challenge to the Sisseton-Wahpeton Sioux Act, Pub. L. No. 98-513, 98 Stat. 2411 (1984), which required the tribe to take any interest of a devisee or intestate distributee of less than 2.5 acres, was left unresolved because statute of limitations barred suit); see generally Stacy L. Leeds, By Eminent Domain or Some Other Name: A Tribal Perspective on Taking Land, 41 Tulsa L. Rev. 51, 76 (2005) (tracing the development of current landownership patterns on Indian reservations that have led, inter alia, to fractionated ownership, and recommending that individual tribal governments “evaluate whether the exercise of eminent domain powers would be useful, particularly in combating fractionated ownership and land tenure problems that were created without tribal consent”). 373 E.g., Pub. L. No. 97-459, § 108, 96 Stat. 2515 (1983) (Devils Lake Sioux Reservation); Pub. L. No. 96-274, § 4(b), 94 Stat. 537 (1980) (Standing Rock Sioux Reservation); Pub. L. No. 92-443, 86 Stat. 744 (1972) (Nez Perce Reservation); Pub. L. No. 92-377, 86 Stat. 530 (1972) (Warm Springs Reservation); Pub. L. No. 91-627, 84 Stat. 1874 (1970) (Yakima Reservation). Implementing regulations for the latter three laws have been adopted. 43 C.F.R. §§ 4.300–4.308.

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VI. INDIAN GRAVES, CULTURAL ITEMS, AND SACRED SITES Sharp disputes between Indians and non-Indians involve the treatment of Indian burial sites and cultural items and the management of areas Indians hold as spiritually significant. For centuries non-Indians, along with the support, encouragement, and often direct involvement of the federal government, mistreated Indian remains, the contents of their burial places, and objects of Indian culture. Indian remains and grave goods were regularly removed for the sake of curiosity and display, as well as for study and science.374 One estimate places the number of human remains removed from their burial place at 100,000 to 2 million.375 Many were placed in the collections of museums and government agencies. Two federal laws effectively encouraged such actions. Indian remains discovered on federal land were considered “objects of antiquity” under the Antiquities Act of 1906376 and as “archaeological resources” under the Archaeological Resources Protection Act (ARPA) of 1979.377 These acts authorized federal agencies to issue permits allowing the removal of Indian remains from federal land. Under ARPA, removal was allowed so long as it furthered “archaeological knowledge in the public interest,”378 and any remains removed were the property of the United States.379 Many Indian remains, grave goods, and cultural objects were deposited with the Smithsonian Institution.380 And the first federal law to address past abuses, the National Museum of the American Indian Act,381 was directed at the Smithsonian. The Act not only authorized a national Indian museum, but also required the Smithsonian Institution to inventory its Indian remains and attempt to identify their origins.382 The Smithsonian must

374 See generally John Alan Cohan, An Examination of Archaeological Ethics and the Repatriation Movement Respecting Cultural Property (Part One), 27 Environs Envtl. L. & Pol’y J. 349 (2004); John Alan Cohan, An Examination of Archaeological Ethics and the Repatriation Movement Respecting Cultural Property (Part Two), 28 Environs Envtl. L. & Pol’y J. 1 (2004). 375 State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 751 n.13 (Tenn. Ct. App. 2001) (citing Jack F. Trope and Walter R. Echohawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 Ariz. St. L. J. 35 (1992)).

16 U.S.C. §§ 431–433.

376

Id. §§ 470aa–470mm; see generally Lauryne Wright, Cultural Resource Preservation Law: The Enhanced Focus on American Indians, 54 A.F. L. Rev. 131 (2004) (discussing various federal statutes relevant to preservation of Indian cultural items). 377

16 U.S.C. § 470cc(b)(2).

378

Id. § 470cc(b)(3); see San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 888–89 (D. Ariz. 2003) (lake drawdown was not intentional excavation or removal of archaeological resources requiring ARPA permit), aff’d on other grounds, 417 F.3d 1091 (9th Cir. 2005). 379

380 Douglas W. Ackerman, Kennewick Man: The Meaning of “Cultural Affiliation” and “Major Scientific Benefit” in the Native American Graves Protection and Repatriation Act, 33 Tulsa L.J. 359, 359 (1997) (the Smithsonian holds 18,000 skeletal remains).

20 U.S.C. §§ 80q to 80q-15.

381

Id. §§ 80q-9(a), 80q-9a(b)(c).

382

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then, if requested, return the remains and any associated funerary objects to the person’s descendants or “culturally affiliated” tribe.383 A. Native American Graves Protection and Repatriation Act In 1990 Congress broadened its effort to protect the culture and ancestors of American Indians through the Native American Graves Protection and Repatriation Act (NAGPRA).384 “[T]he desecration of Native American graves and other sacred sites led to the passage of [NAGPRA].”385 The Act seeks to return to tribes the remains and cultural items held by the federal government and by federally supported museums, and to protect graves and cultural items subsequently found on federal and tribal land. The Act, however, “was not intended merely to benefit American Indians, but rather to strike a balance between the needs of scientists, educators, and historians on the one hand, and American Indians on the other.”386 More particularly, NAGPRA has three substantive components. First, the statute imposes criminal liability on anyone who “knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession . . . as provided in [NAGPRA].”387 NAGPRA’s second objective sets up a process by which federal agencies and federally supported museums must inventory their holdings and then return remains and funerary objects to the appropriate tribe.388 There is, however, an exception for items to which the museum holds a “right of possession,” that is, possession obtained with the consent of a person or group holding the “authority of alienation.”389 Repatriation also can be delayed if the items are indispensable to a specific scientific study, “the outcome of which would

Id. §§ 80q-9(c)(d), 80q-9a(b)(c).

383

25 U.S.C. §§ 3001–3013; see generally Craig W. Jerome, Comment, Balancing Authority and Responsibility: The Forbes Cave Collection, NAGPRA, and Hawaii, 29 U. Haw. L. Rev. 163 (2006); Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259 (2005); Robert Travis Willingham, Note, Holding States and Their Agencies Accountable Under the Museum Provisions of the Native American Graves Protection and Repatriation Act, 71 UMKC L. Rev. 955 (2003); Suzianne D. Painter-Thorne, Contested Objects, Contested Meanings: Native American Grave Protection Laws & The Interpretation of Culture, 35 U.C. Davis L. Rev. 1261 (2002); Angela R. Riley, Indian Remains, Human Rights: Reconsidering Entitlement Under the Native American Graves Protection and Repatriation Act, 34 Colum. Hum. Rts. L. Rev. 49 (2002); Renee M. Kosslak, The Native American Graves Protection and Repatriation Act: The Death Knell for Scientific Study?, 24 Am. Ind. L. Rev. 129 (2000); Trope and Echohawk, supra note 375. The law’s implementing regulations are at 43 C.F.R. pt. 10. NAGPRA does not apply to the Smithsonian. 25 U.S.C. § 3001(4). 384

Rice v. Cayetano, 528 U.S. 495, 531 (2000).

385

Bonnichsen v. United States, 367 F.3d 864, 874 n.14 (9th Cir. 2004).

386

18 U.S.C. § 1170(a).

387

25 U.S.C. §§ 3003–3005; see Fallon Paiute-Shoshone Tribe v. USBLM, 455 F. Supp. 2d 1207, 1225 (D. Nev. 2006) (explaining this objective and describing NAGPRA as “a surprisingly difficult statute to implement properly”). 388

25 U.S.C. §§ 3001(13), 3005(c).

389

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be of a major benefit to the United States.”390 To determine the cultural affiliation of remains a museum does not violate NAGPRA by conducting research on the remains.391 The repatriation duty applies to all items in a museum’s possession, even those acquired prior to NAGPRA’s effective date.392 The Act’s third purpose protects human remains, funerary objects, sacred objects, and cultural objects found on tribal land and on land owned or controlled by the federal government.393 Thus, there are significant geographic limits to NAGPRA. Any person who discovers remains or objects on federal or tribal land must notify the federal agency responsible for managing that land.394 Excavation on federal land requires consultation with the appropriate tribe, but not its consent,395 and a permit under ARPA.396 Excavation on tribal land requires tribal consent.397 NAGPRA assigns ownership and control over the remains and objects discovered on federal or tribal land according to certain priorities. If lineal descendants of the remains can be identified, they are entitled to ownership.398 This priority is rarely applied.399 If lineal descendants cannot be located, ownership belongs to the tribe that owns or controls the land on which the discovery was made.400 If the discovery was made on non-Indian federal land, then the tribe with the closest cultural affiliation with the remains or objects has the right to ownership.401 In the event that a cultural affiliation cannot be “reasonably ascertained,” and if the land has been recognized as a tribe’s aboriginal land either by the Indian Claims Commission or the Court of Claims,

Id. § 3005(b).

390

Na Iwi O Na Kupuna O Makopu v. Dalton, 894 F. Supp. 1397, 1415–18 (D. Hawaii 1995); see also Bonnichsen v. United States, 217 F. Supp. 2d 1116, 1128 (D. Or. 2002) (studies of the 9,000-year-old “Kennewick Man” were performed to determine NAGPRA’s applicability), aff’d, 367 F.3d 864 (9th Cir. 2004) . 391

Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936, 939 (10th Cir. 1996).

392

25 U.S.C. § 3002. NAGPRA, however, creates no property interest in the government lands themselves. See Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072, 1098 (S.D. Cal. 2008) (“even if [the tribe] retains an interest in the cultural property eligible for protection under NAGPRA, there is no authority that NAGPRA provides an Indian Tribe beneficial title to the right-of-way held in fee by the United States”). 393

Id. § 3002(d).

394

Id. §§ 3002(c)(2) and (4).

395

Id. § 3002(c)(1).

396

Id. § 3002(c)(2).

397

Id. § 3002(a)(1).

398

See generally, e.g., Wendy Crowther, Comment, Native American Graves Protection and Repatriation Act: How Kennewick Man Uncovered the Problems in NAGPRA, 20 J. Land Resources & Envtl. L. 269, 273 (2000); Robert W. Lannan, Anthropology and Restless Spirits: The Native American Graves Protection and Repatriation Act, and the Unresolved Issues of Prehistoric Human Remains, 22 Harv. Envtl. L. Rev. 369, 398 (1998). 399

25 U.S.C. § 3002(a)(2)(A).

400

Id. § 3002(a)(2)(B).

401

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then that tribe is entitled to control, unless another tribe establishes a stronger cultural connection.402 Litigation under NAGPRA has confirmed that the Act has no application to human remains and cultural items found on land that is neither federal nor tribal land, even when there is some kind of federal role in the activities under review. A state-sponsored plan to develop an island into a park, which required an Army Corps of Engineers permit, did not turn the island into federal property or place it under United States control.403 Also, a federal agency’s “supervisory role” in a project does not convert land owned by a city into “federal land” under NAGPRA.404 Although NAGPRA applies only to federal and Indian land, various states have enacted laws to protect Indian burial sites and, in some instances, to require the return of remains and cultural items to tribes.405 Indeed, one court has observed that “[e]very state has enacted statutes pertaining to ancient or historic human remains, including Native American remains.”406 NAGPRA has been held inapplicable to recently interred Indians when disinterment is required for law enforcement purposes. State and local authorities in Texas, for example, wanted to disinter an Indian buried by the tribe on tribal land to conduct an autopsy to determine the cause of death.407 The tribe asserted that NAGPRA required tribal consent. A federal district court, however, ruled that the term “human remains” was “intended to mean ancient human remains or those with some sort of cultural or archaeological interest.”408 It was not intended to “supercede the legitimate efforts of state and federal law authorities to enforce applicable criminal laws.”409 Another court, however, has

402 Id. § 3002(a)(2)(C); see Bonnichsen v. United States, 217 F. Supp. 2d at 1156–61 (discussing provision’s application). 403 W. Mohegan Tribe v. New York, 100 F. Supp. 2d 122, 124–25 (N.D.N.Y. 2000), vacated in part on other grounds, 246 F.3d 230 (2nd Cir. 2001). 404 Castro Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001). Congress, however, can retain NAGPRA’s applicability to land it conveys. Yankton Sioux Tribe v. United States Army Corps of Eng’rs, 209 F. Supp. 2d 1008, 1018 (D.S.D. 2002) (federal law conveying land to South Dakota provided that NAGPRA would continue to apply to the land). 405 See, e.g., Unmarked Burial Sites Preservation Act, Kan. Stat. Ann. §§ 75-2741 to 2754 (1997); Unmarked Human Burial Sites and Skeletal Remains Protection Act, Neb. Rev. Stat. §§ 12-1201 to 1212 (1997); S.D. Codified Laws §§ 34-27-21 to -31 (1994). 406 State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 752 n.17 (Tenn. Ct. App. 2001). See also Angela R. Riley, “Straight Stealing”: Towards an Indigenous System of Cultural Property Protection, 80 Wash. L. Rev. 69 (2005) (survey of tribal efforts to preserve cultural property). 407

Kickapoo Traditional Tribe v. Chacon, 46 F. Supp. 2d 644, 651 (W.D. Tex. 1999). Id. at 650.

408

Id. at 651.

409

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issued a broad ruling that NAGPRA applies “to all human remains,”410 though under circumstances different from those in the Texas case. An issue that NAGPRA fails to adequately address is control of ancient remains, that is, exceptionally old remains for which a cultural affiliation to a modern-day tribe may be difficult to establish.411 The problem surfaced with discovery of human remains on land managed by the Corps of Engineers near Kennewick, Washington. The resulting litigation of Bonnichsen v. United States412 pitted scholars against the federal government and several tribes. Preliminary scientific study of the remains showed that they were about 9,000 years old, making them extremely rare in the Western Hemisphere.413 They were also in relatively good condition and attracted additional interest because some characteristics were inconsistent with both Europeans and American Indians.414 Many scientists believed that the Kennewick Man “could shed considerable light on questions such as the origins of humanity in the Americas.”415 Nonetheless, the Corps decided to give the remains to several tribes demanding them. A group of scientists filed suit. The Corps was ordered to retain the remains and, before making a final decision on their disposition, was also ordered to further study NAGPRA’s applicability.416 The Corps turned the matter over to the Secretary of the Interior.417 After several years of consideration, the Secretary ruled that the tribal coalition was entitled to the remains without any further scientific study of them. The decision was premised on the age of the remains and their discovery in the United States.418 The district court, however, vacated the Secretary’s decision and ordered that the plaintiffs be allowed to study Kennewick Man.419 The Secretary defined “Native American,” for purposes of NAGPRA, as all remains predating 1492.420 This was an error in the district court’s view because NAGPRA requires some relationship between the remains and a presently

410 Yankton Sioux Tribe v. United States Army Corps of Eng’rs, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000); see also San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 889–94 (D. Ariz. 2003) (NAGPRA application was not triggered by the prospect that lake drawdown might expose human remains and cultural resources), aff’d on other grounds, 417 F.3d 1091 (9th Cir. 2005). 411

See generally Crowther, supra note 399; Lannan, supra note 399. 217 F. Supp. 2d 1116 (D. Or. 2002), aff’d, 367 F.3d 864 (9th Cir. 2004).

412

Id. at 1121.

413

Id. at 1120–21.

414

Id. at 1121.

415

Bonnichsen v. United States, 969 F. Supp. 628, 651–54 (D. Or. 1997); see generally Ackerman, supra note 375, at 362. 416

Bonnichsen, 217 F. Supp. 2d at 1126.

417

Id. at 1130.

418

Id. at 1167.

419

Id. at 1137.

420

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existing tribe, people, or culture.421 The court reasoned that NAGPRA does not allow tribes to claim remains and cultural objects of people to whom they are wholly unrelated.422 Since so little is known about Kennewick Man, the court found nothing to support the conclusion that he was culturally related to a present-day tribe and hence a Native American.423 The court discussed the problems inherent in establishing a cultural link between ancient remains and a present-day tribe and, more particularly, the Secretary’s failure to establish that link between Kennewick Man and the tribal claimants.424 “NAGPRA,” in short, “was intended to reunite tribes with remains or cultural items whose affiliation was known, or could be reasonably ascertained.”425 The Ninth Circuit affirmed the district court’s judgment and much of its reasoning on appeal.426 It stated that the threshold inquiry on the merits was whether the remains were “Native American” under NAGPRA and that only after answering that question affirmatively would it be necessary to decide “which persons or tribes are most closely affiliated with the remains.”427 Resolving the “Native American” issue required, in turn, the court to construe the statute’s definition of that term as used with respect to human remains.428 It buttressed this reading of the definition’s literal text with NAGPRA’s underlying objective to “benefit modern American Indians by sparing them the indignity and resentment that would be aroused by the despoiling of their ancestors’ graves and the study or display of their ancestors’ remains.”429 This objective “would not be served by requiring the transfer to modern American Indians

Id. at 1136.

421

Id.

422

Id. at 1138.

423

Id. at 1138–41, 1143–56.

424

Id. at 1147. The district court also ruled that a coalition of tribes will typically be an improper claimant under NAGPRA, which requires that a cultural affiliation be established with a particular modern tribe. “[T]he claims of coalition members must be independently meritorious.” Id. at 1142. The district court litigation in Bonnichsen generated critical attention; e.g., Will R. Ripley, Note, You’re Not Native American—You’re Too Old: Bonnichsen v. United States Exposes the Native American Graves Protection and Repatriation Act, 9 J. Gender Race & Just. 137 (2005); Michelle Sibley, Note, Has Oregon Tightened the Perceived Loopholes of the Native American Graves Protection and Repatriation Act?—Bonnichsen v. United States, 28 Am. Indian L. Rev. 141 (2003–2004); Ryan M. Seidemann, Time for a Change? The Kennewick Man Case and Its Implications for the Future of the Native American Graves Protection and Repatriation Act, 106 W. Va. L. Rev. 149 (2003). 425

426 Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004); see generally Steven Goldberg, Kennewick Man and the Meaning of Life, 2006 U. Chi. Legal F. 275 (2006); S. Alan Ray, Native American Identity and the Challenge of Kennewick Man, 79 Temp. L. Rev. 89 (2006); Burt R. Willie, Comment, Kennewick Man—Mission Accomplished, 43 Idaho L. Rev. 547 (2006); Allison M. Dussias, Kennewick Man, Kinship, and the “Dying Race”: The Ninth Circuit’s Assimilationist Assault on the Native American Graves Protection and Repatriation Act, 84 Neb. L. Rev. 55 (2005); Jenna Musselman, Ninth Circuit Limits NAGPRA to Remains Linked with Presently Existing Tribes, 32 Ecology L.Q. 707 (2005) .

367 F.3d at 875.

427

See 25 U.S.C. § 3001(9) (“ ‘Native American’ means of, or relating to, a tribe, people, or culture that is indigenous to the United States”). 428

367 F.3d at 876.

429

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of human remains that bear no relationship to them.”430 The court declined to accord Chevron deference431 to the Secretary’s regulation defining “Native American” as “of, or relating to, a tribe, a people, or culture indigenous to the United States,”432 given what it viewed as the statute’s “plain language.”433 The court reasoned that “[u]nder the Secretary’s view of NAGPRA, all graves and remains of persons, predating European settlers, that are found in the United States would be ‘Native American,’ in the sense that they presumptively would be viewed as remains of deceased from a tribe ‘indigenous’ to the United States, even if the tribe had ceased to exist thousands of years before the remains were found, and even if there was no showing of any relationship of the remains to some existing tribe indigenous to the United States.”434 In light of the meaning assigned to “Native American,” the court of appeals had no difficulty concluding that the Secretary acted arbitrarily or capriciously in applying NAGPRA to Kennewick Man. “The age of the Kennewick Man’s remains, given the limited studies to date,” the court reasoned, “makes it almost impossible to establish any relationship between the remains and presently existing American Indians.”435 This general observation was borne out by the administrative record that “contain[ed] no evidence—let alone substantial evidence—that Kennewick Man’s remains are connected by some special or significant genetic or cultural relationship to any presently existing indigenous tribe, people, or culture.”436 The court rejected reliance on oral history as the “only evidence, perhaps, of a possible cultural relationship between Kennewick Man and modern-day American Indians” because the record’s oral “accounts are just not specific enough or reliable enough or relevant enough to show a significant relationship of the Tribal Claimants with Kennewick Man.”437 The Ninth Circuit’s decision, in sum, imposes a greater evidentiary burden on the Secretary of the Interior or Indian claimants by demanding a demonstrable link between an existing tribe and the remains.438

Id.

430

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

431

43 C.F.R. § 10.2(d).

432

367 F.3d at 877.

433

Id. at 878. The court also found the Indian canons inapplicable on this ground. Its statutory construction analysis discussed other terms in NAGPRA that it found to support its interpretation of “Native American.” Id. at 878–79. 434

Id. at 879.

435

Id. at 880.

436

Id. at 881; see also Fallon Paiute-Shoshone Tribe v. USBLM, 455 F. Supp. 2d 1207, 1225 (D. Nev. 2006) (addressing the fate of the 10,000-year-old Spirit Cave Man). 437

438 Regulations are being considered on how to handle human remains for which no lineal descendants or culturally affiliated tribe can be identified. Native American Graves Protection and Repatriation Act Regulations—Disposition of Culturally Unidentifiable Human Remains, 72 Fed. Reg. 58582 (proposed Oct. 16, 2007) (to be codified at 43 C.F.R. pt. 10).

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Despite its limits, the balance NAGPRA seeks to strike between scientific study and Indian religion and spiritual values makes the statute legally unique and practically significant. “[I]t represents a fundamental change in social attitudes toward Native people by museum curators, the scientific community, and Congress.”439 The Act provides a framework for a dialogue between Indians and non-Indians for the preservation of Indian cultural identity.440 B. Spiritual Practice–Based Protection An important feature of this cultural identity is the unique relationship Indians have with the natural world. Spiritual beliefs of most Indians are sitespecific and “inextricably bound to the use of land.”441 There is “ ‘a sacred and indissoluble bond’ ” between Indians and areas within their aboriginal lands.442 But because Indians no longer own or control much of these lands, it is not uncommon for conflicts to occur over the use and management of land that holds spiritual significance for Indians. In 1994, 44 sacred sites were identified as threatened by government development.443 It has been said that the lack of federal protection for Indian sacred sites “is the most glaring loophole in federal Indian law today.”444 Even so, some legal tools are available to protect indigenous spiritual life.445

Kosslak, supra note 384, at 130.

439

Riley, supra note 384, at 93. To help protect Indian cultural resources and areas of cultural significance, Boulder, Colorado, has an agreement with tribes giving them a voice in the use and development of the city’s open spaces. Robert Retherford, Comment, A Local Development Agreement on Access to Sacred Lands, 75 U. Colo. L. Rev. 963 (2004). 440

441 Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting). 442 Id. (quoting E. Spicer, Cycles of Conquest: The Impact of Spain, Mexico, and the United States on the Indians of the Southwest, 1533–1960 at 576 (1962)). 443 Laralene D. Tapahe, After the Religious Freedom Restoration Act: Still No Equal Protection for First American Worshipers, 24 N.M. L. Rev. 331, 350 (1994) (citing Walter Echo-Hawk, Briefing Document: Native American Free Exercise of Religion Act (S.1021) at 3 (1993)). 444 Oversight Hearing on the American Indian Religious Freedom Act of 1978: Before the Senate Committee on Indian Affairs, at 11, 108th Cong. (2004) (statement of Walter Echo-Hawk, Staff Attorney, Native American Rights Fund) (“Echo-Hawk”). 445 See generally Kristen A. Carpenter, Old Ground and New Directions at Sacred Sites on the Western Landscape, 83 Denv. U. L. Rev. 981 (2006); Erik B. Bluemel, Accommodating Native American Cultural Activities on Federal Public Land, 41 Idaho L. Rev. 475 (2005); Lauryne Wright, Cultural Resource Preservation Law: The Enhanced Focus on American Indians, 54 A.F. L. Rev. 131 (2004); Marcia Yablon, Note, Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land, 113 Yale L.J. 1623 (2004); Sherry Hutt, Cultural Resource Preservation and Natural Resource Development, 48 Rocky Mtn. Min. L. Inst. 20-1 (2002); Anastasia P. Winslow, Sacred Standards: Honoring The Establishment Clause in Protecting Native American Sacred Sites, 38 Ariz. L. Rev. 1291 (1996); Marilyn Phelan, A Synopsis of the Laws Protecting Our Cultural Heritage, 28 New Eng. L. Rev. 63 (1993).

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To protect sacred sites, the First Amendment’s Free Exercise Clause446 has been relied on but found unhelpful.447 In Lyng v. Northwest Indian Cemetery Protective Association448 several tribes, relying on that clause, tried to stop the federal government’s plan to harvest timber and build a road through a sacred area of a national forest. The government prevailed despite the fact that the proposed actions would have “severe adverse effects” on the practice of Indian religion.449 The crucial word in the Free Exercise Clause is “prohibit.” The clause states what the government cannot do—prohibit the free exercise of religion— and does not set forth what an individual can exact from the government.450 The government did not need to show a compelling justification for its actions because it did not seek to coerce Indians into acting contrary to their religious beliefs.451 Government “could not operate if it were required to satisfy every citizen’s religious needs and desires.”452 Were it otherwise, Indians would take de facto beneficial ownership of large tracts of land.453 The consequent diminution of federal property interests and subsidy of Indian religion would be more than trivial.454 Indian interests “do not divest the Government of its right to use what is, after all, its land.”455 The tribes in Lyng also relied on the American Indian Religious Freedom Act of 1978 (AIRFA).456 But AIRFA merely states that it is the government’s “policy” to protect Indians’ right “to believe, express, and exercise” traditional

U.S. Const. amend. I.

446

See generally Richard M. Carson, The Free Exercise of Native American Religions on Public Lands: The Development of and Outlook for Protection Under the Free Exercise Clause and First Amendment, 11 Pub. Land. L. Rev. 181 (1990). 447

485 U.S. 439 (1988).

448

Id. at 447.

449

Id. at 451; see Jeff Pinter, Note, In Cases Involving Sites of Religious Significance, Plaintiffs Will Fall in the Gap of Judicial Deference That Exists Between the Religion Clauses of the First Amendment, 29 Am. Indian L. Rev. 289, 312 (2004–2005) (Lyng means that “[t]he government was free to destroy sacred sites, so long as it did not directly target a religion or attempt to coerce an individual into violating their religious principles”). 450

Lyng, 485 U.S. at 450–51.

451

Id. at 452.

452

Id. at 453.

453

Id.

454

Id.; see Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072, 1099 (S.D. Cal. 2008) (finding no “case in which an Indian tribe was held to retain executive order-derived rights to use or access cultural property held in fee by the federal government”); see generally Adam Greiser, Peter Jacques, and Richard Witmer, Reconsidering Religion Policy as Violence: Lyng v. Northwest Indian Cemetery Protective Association, 10 Scholar 373, 384, 393 (2008) (criticizing Lyng as “breach[ing] the terms of the reciprocal relationship outlined by agreements between Indians and the United States government” by “follow[ing] the same reasoning it would use for any other American citizen who claimed to suffer a violation of the right to free exercise of religion”). 455

42 U.S.C. §§ 1996–1996a.

456

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religions.457 The Act fails to indicate the extent to which this policy overrides other land use considerations.458 It does not “create a cause of action or any judicially enforceable individual rights.”459 It has “ ‘no teeth.’ ”460 AIRFA does not prohibit federal agencies from adopting land uses that conflict with Indian religious values; it merely requires that agencies consider those values.461 AIRFA is satisfied if an agency, in its decision-making process, obtains and considers the views of Indian leaders, and if, in project implementation, it avoids unnecessary interference with Indian religion.462 The Act, in essence, provides no more protection than the First Amendment.463 Even that limited amount of protection was diluted in a case involving an Indian’s use of peyote for religious purposes. In Employment Division v. Smith,464 the Court ruled that the law in question, which made sacramental peyote use a crime, is a neutral, generally applicable law and thus is not subject to strict scrutiny even if it makes practicing one’s religion impossible. Such laws do not require a compelling governmental interest, nor must they be narrowly tailored to accomplish their purposes.465 This quite deferential standard of review ensures that most governmental actions affecting religious beliefs and practices will survive judicial scrutiny. The decision was viewed as a fundamental change limiting First Amendment protections.466 In response to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA).467 RFRA’s stated purpose is to restore the compelling interest test and, where exercising a person’s religion is substantially burdened, to guarantee the compelling interest test’s application and to provide a claim or defense.468 It prohibits government from “substantially burden[ing]” a person’s exercise of religion even if the burden results from a rule of general applicabil-

Id. § 1996.

457

Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir. 1983).

458

Lyng, 485 U.S. at 455; accord Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072, 1098 (S.D. Cal. 2008). 459

Lyng, 485 U.S. at 455 (quoting 124 Cong. Rec. 21444–21445 (1978) (statement of Rep. Udall)).

460

Lyng, 485 U.S. at 455.

461

Id.

462

Crow v. Gullet, 706 F.2d 856, 858 (8th Cir. 1983).

463

494 U.S. 872 (1990); see generally Carolyn N. Long, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (2000); John Delaney, Police Power, Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v. Smith, 25 Ind. L. Rev. 71 (1991). 464

494 U.S. at 884–88.

465

E.g., Sara Smolik, The Utility and Efficacy of the RLUIPA: Was It a Waste?, 31 B.C. Envtl. Aff. L. Rev. 723, 727 (2004) (citing Smith, 494 U.S. at 891, 907 (O’Connor, J., concurring and Blackmun, J., dissenting)). 466

467 42 U.S.C. §§ 2000bb–2000bb-4; see generally Thomas C. Berg, What Hath Congress Wrought? An Interpretive Guide to the Religious Freedom Restoration Act, 39 Vill. L. Rev. 1 (1994).

42 U.S.C. § 2000bb(b).

468

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ity, unless the government can show that the burden furthers a “compelling governmental interest” and does so by “the least restrictive means.”469 RFRA has been criticized as doing nothing more than reinstating the law as it existed before Smith,470 but that view has been rejected.471 In fact, RFRA expands the law and thus may enhance the likelihood that sacred sites will be protected.472 First, whereas Lyng stated that the crucial word in the First Amendment is “prohibit,”473 RFRA is directed at governmental action that “burdens” the exercise of religion, though the burden must be substantial.474 The precise scope of the “substantial burden” element nonetheless has been, and presumably will continue to be, a source of controversy.475 Second, RFRA “imposes in every case a least restrictive means requirement—a requirement that was not used in the pre-Smith jurisprudence.”476 Third, RFRA provides broader protection because it applies “in all cases” where the free exercise of religion is substantially burdened and can supersede other federal statutes of general applicability.477 Prior to RFRA the compelling interest test had not

469 42 U.S.C. § 2000bb-1; United States v. Tawahongva, 456 F. Supp. 2d 1120 (D. Ariz. 2006) (an Indian who did not get a permit to take golden eagles could not rely on RFRA to avoid prosecution; the permit requirement did not substantially burden his religion; it served a compelling interest to protect golden eagles, and it was the least restrictive means of preserving the golden eagle population).

Tapahe, supra note 443, at 345–46.

470

See Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418, 424 (2006) (RFRA “adopts a statutory rule comparable to the constitutional rule rejected in Smith”). 471

472 See Navajo Nation v. USFS, 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc) (“RFRA’s stated purpose is to ‘restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened’ ”).

Lyng, 485 U.S. at 451.

473

42 U.S.C. §§ 2000bb(b), 2000bb-1; United States v. Bauer, 84 F.3d 1549, 1558 (9th Cir. 1996) (“The statute goes beyond the constitutional language that forbids the ‘prohibiting’ of the free exercise of religion and uses the broader verb ‘burden’ ”). 474

475 Compare Navajo Nation v. USFS, 535 F.3d 1058, 1069–70 (9th Cir. 2008) (en banc) (“a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a government benefit . . . or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions”), with id. at 1090 (W. Fletcher, J., dissenting) (“RFRA creates a legally protected interest in the exercise of religion[,]” and “[s]uch interest[] in religious exercise can be severely burdened by government actions that do not deny a benefit or impose a penalty”); see generally Sara Brucker, Navajo Nation v. United States Forest Service: Defining the Scope of Native American Freedom of Religious Exercise on Public Lands, 31-SPG Environs Envt’l L. & Pol’y J. 273, 294 (2008) (arguing that the Navajo Nation panel opinion, reported at 479 F.3d 1024 (2007) and vacated upon grant of en banc rehearing at 506 F.3d 717 (2007), too broadly construed RFRA; its holding “seems to weigh religious uses of public lands heavier than public recreational use and private commercial use, arguably in violation of the Establishment Clause”).

City of Boerne v. Flores, 521 U.S. 507, 535 (1997).

476

42 U.S.C. § 2000bb(b); see Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418, 430–31 (2006) (RFRA superseded the Controlled Substances Act given the government’s failure to make a “focused” showing—i.e., “to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—with respect to the particular claimant whose sincere exercise of religion is being substantially burdened”). 477

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been applied, for example, to prison or military regulations.478 Finally, RFRA’s definition of “exercise of religion” may protect a broader range of religious practices in light of the term’s definition as “any exercise of religion, whether or not compelled by or central to, a system of religious belief.”479 Despite such expansions, some commentators assert that RFRA’s legislative history makes clear that the Act was not intended to apply to the management and use of federal land. “Committee reports and floor statements in RFRA’s legislative history indicate that this law is not intended to apply to the government’s use of its own property which ensures that Native American holy places located on federal land are not protected by this statute.”480 Needless to say, if RFRA does not apply to federal land, then it is severely limited, for it is often on the vast expanses of undeveloped federal land that Indian holy places remain in their natural condition and an integral part of Indian spiritual life.481 While concerns about RFRA’s facial scope may be unfounded, the Act’s applicability was limited by City of Boerne v. Flores,482 which held the statute unconstitutional as applied to state and local governments. RFRA was a congressional effort to undo the Supreme Court’s interpretation of the First Amendment in Smith. In City of Boerne the Court found that that effort exceeded Congress’s power under section 5 of the Fourteenth Amendment and also that RFRA disrupts the federal-state balance.483 RFRA, however, does apply to federal law and federal actors.484 Congress reacted to City of Boerne by enacting the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).485 It applies only to state

O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Goldman v. Weinberger, 475 U.S. 503, 506–07

478

(1986). 479 42 U.S.C. § 2000bb-2(4). This definition was not in RFRA as originally enacted, but was added in 2000. Pub. L. No. 106-274, § 7(a), 114 Stat. 803 (2000). 480 Echo-Hawk, supra note 444, at 12; see also Tapahe, supra note 443, at 345–46; Winslow, supra note 440, at 1315.

See Navajo Nation v. USFS, 535 F.3d 1058, 1067 n.9 (9th Cir. 2008) (en banc) (noting but not resolving

481

issue). 521 U.S. 507 (1997).

482

Id. at 533–36.

483

E.g., Hankins v. Lyght, 441 F.3d 96, 106 (2d Cir. 2006). Also applicable to federal agencies is President Clinton’s “Indian Sacred Sites” order. Exec. Order 13,007, 61 Fed. Reg. 26771 (May 24, 1996). It requires federal land managers, “to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions,” to accommodate Indian religious practitioners’ access to and ceremonial use of sacred sites and to avoid adversely affecting the physical integrity of sacred sites. Id. at § 1(a). The policy is “intended only to improve internal management of the executive branch” and does not create any right enforceable at law or equity. Id. at § 4. 484

485 42 U.S.C. §§ 2000cc–2000cc-5; see generally Note, Religious Land Use in the Federal Courts Under RLUIPA, 120 Harv. L. Rev. 2178 (2007); Kevin M. Powers, The Sword and the Shield: RLUIPA and the New Battle Ground of Religious Freedom, 22 Buff. Pub. Int. L.J. 145 (2003–2004).

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and local governments as a general matter.486 The Act, however, unlike RFRA, “has nowhere near ‘the universal coverage’ the Supreme Court found unacceptable in City of Boerne.”487 To better ensure its constitutionality Congress limited RLUIPA to “land use regulation.”488 Land use regulations are prohibited if they impose a “substantial burden” on a person’s exercise of religion, unless the government demonstrates that the burden furthers a “compelling governmental interest” and does so by “the least restrictive means.”489 RLUIPA uses the same broad definition of “religious exercise”490 as does RFRA and, therefore, the activity burdened does not have to be fundamental or central to the religion.491 Nonetheless, it is unlikely that RLUIPA will have much of a role in protecting Indian sacred sites.492 As stated, it applies to land use regulations, and those regulations must be ones that limit or restrict the claimant’s use of land in which the claimant has a property interest,493 but sites needing protection are typically located on lands in which tribes lack a property interest. Two additional laws that can be used to protect places of spiritual significance are the National Environmental Protection Act (NEPA)494 and the National Historic Preservation Act (NHPA),495 and it is not uncommon for them to be relied on.496 NEPA and NHPA are similar. NEPA, of course, requires federal agencies to undertake an analysis of major federal actions significantly affecting the quality of the environment.497 The NHPA is similar. It “involves ‘a series of measures designed to encourage preservation of sites and structures

486 42 U.S.C. at § 2000cc-5(4); see Navajo Nation v. USFS, 535 F.3d 1058, 1077 n.21 (9th Cir. 2008) (en banc) (noting RLUIPA’s limited applicability to the federal government).

Guru Nanak Sikh Soc’y v. County of Sutter, 456 F.3d 978, 994 (9th Cir. 2006) (citation omitted).

487

42 U.S.C. § 2000cc(a)(1); Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997–98 (7th Cir. 2006) (annexation is not a land use regulation and, thus, RLUIPA’s jurisdictional requirement is not met); Faith Temple Church v. Town of Brighton, 405 F. Supp. 2d 250, 254–55 (W.D.N.Y. 2005) (eminent domain is not a land use regulation and, thus, RLUIPA’s jurisdictional requirement is not met). RLUIPA also applies to “persons residing in or confined to an institution.” 42 U.S.C. at § 2000cc-1(a). 488

42 U.S.C. § 2000cc(a).

489

Id. at 2000cc-5(7)(A).

490

Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 662–63 (10th Cir. 2006).

491

See Echo-Hawk, supra note 444, at 12.

492

42 U.S.C. § 2000cc-5(5).

493

42 U.S.C. §§ 4321–4335.

494

16 U.S.C. §§ 470–470x-6; 36 C.F.R. pt. 800; see generally Charles Rennick, The National Historic Preservation Act: San Carlos Apache Tribe v. United States and the Administrative Roadblock to Preserving Native American Culture, 41 New Eng. L. Rev. 67 (2006); Lucus Ritchie, The Failure of the National Historic Preservation Act in the Missouri River Basin and a Proposed Solution, 9 Great Plains Nat. Resources J. 1 (2005); Donald J. Kochan, An Examination of Increasing Protection for Sacred Sites on Federal Lands, 49 Rocky Mt. Min. L. Inst. 12-1, 12-9–12-14 (2003). 495

496 E.g., Pit River Tribe v. USFS, 469 F.3d 768, 781–87 (9th Cir. 2006); Muckleshoot Indian Tribe v. USFS, 177 F.3d 800, 804–14 (9th Cir. 1999). 497 42 U.S.C. § 4332(2)(C). An objective of NEPA is to preserve “important historic, cultural, and natural aspects of our national heritage.” 42 U.S.C. § 4331(b)(4).

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of historic, architectural, or cultural significance.’ ”498 Thus, federal agencies must consider the effect of any “undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.”499 The law recognizes that Indian interests to be considered under NHPA’s process are not confined to those located on Indian lands and also instructs federal officials “to make a reasonable and good faith effort to identify” tribes that should be consulted.500 Consultations with tribes “must recognize the government-to-government relationship and are to be conducted in a manner “respectful of tribal sovereignty” and “sensitive to the concerns and needs of the Indian tribe.”501 Consultations must occur “at the early stages of project planning” so that historic properties can be identified and adverse effects on them avoided or minimized.502 Thus, “ ‘NHPA is similar to NEPA except that it requires consideration of historic sites, rather than the environment.’ ”503 Tribes, to protect areas sacred to them, have also relied on such laws as the Endangered Species Act (ESA), the Wilderness Act, the Federal Land Policy and Management Act (FLPMA), and the National Forest Management Act (NFMA).504 Further, laws have been enacted to protect spiritual places or practices for specific tribes and to protect specific locations on federal land.505 And in one instance, a tribe’s right of access to the locale of its creation story, which was on private land, was secured by finding that the tribe held a prescriptive easement by adverse possession.506 State laws may also protect

498 San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1093–94 (9th Cir. 2005) (quoting Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104, 108 n.1 (1978)). Complementing the NHPA is the Historic and Archeological Data Preservation Act of 1960 (HADPA), 16 U.S.C. §§ 469–469l-2. Because “NHPA as originally enacted only provides preconstruction protection,” HADPA was amended in 1974 to protect significant scientific, historical, or archaeological data discovered during construction. Attakai v. United States, 746 F. Supp. 1395, 1410 (D. Ariz. 1990) (citing Nat’l Indian Youth Council v. Andrus, 501 F. Supp. 649, 680 (D. N.M. 1980)).

16 U.S.C. § 470f.

499

36 C.F.R. § 800.2(c)(2)(ii)(A).

500

Id. § 800.2(c)(2)(ii)(B) and (C).

501

Id. § 800.1(a).

502

Pit River Tribe v. USFS, 469 F.3d 768, 787 (9th Cir. 2006) (quoting United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993)); accord San Carlos Apache Tribe, 417 F.3d at 1097 (NEPA is a “close statutory analog” to NHPA). 503

504 Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006) (FLPMA); Pit River Tribe, 469 F.3d at 772 (NFMA); Wilson v. Block, 708 F.2d 735, 747–53 (D.C. Cir. 1983) (ESA and Wilderness Act). 505 E.g., 16 U.S.C. § 460uu-47 (authorizing access to and temporary closures of El Malpais National Monument for cultural and religious purposes); 16 U.S.C. § 228i(c) (preserving access to Grand Canyon National Park for Indian religious purposes); 16 U.S.C. § 410ii-1, et seq. (protecting sites for traditional Indian cultural purposes in Chaco Culture National Historic Park); 25 U.S.C. §§ 640d-20 (providing the Navajo and Hopi with rights to access sacred sites). It is also possible that decisions reached under generally applicable statutes have a practical effect of protecting Indian spiritual practices. See, e.g., Access Fund v. USDA, 499 F.3d 1036, 1045 (9th Cir. 2007) (climbing ban under the National Forest Management Act did not violate Establishment Clause; “[t]hat a group of religious practitioners benefits in part from the government’s policy does not establish endorsement”).

United States ex rel. Zuni Tribe v. Platt, 730 F. Supp. 318 (D. Ariz. 1990).

506

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sacred sites.507 Although tribes have had some success in gaining respect and consideration for the sanctity of their holy places and in ameliorating adverse consequences to them,508 there is no federal statute or line of decisions that provides certain protection for sacred sites. The assessment that federal law “affords only an inadequate patchwork of unenforceable policies and limited procedural protections”509 nevertheless remains of uncertain accuracy.

507 Kochan, supra note 495, at 12-24–12-26 (2003) (describing a California law); see also Samantha M. Ruscavage-Barz, Student Article, The Efficacy of State Law in Protecting Native American Sacred Places: A Case Study of the Paseo Del Norte Extension, 47 Nat. Resources J. 969 (2007). 508 E.g., Lyng, 485 U.S. at 454 (1988) (Forest Service took “numerous steps” to minimize the project’s impact and except for abandoning it entirely “it is difficult to see how the Government could have been more solicitous”); Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 749–53, 757 (D.C. Cir. 2007) (to protect, in part, sacred sites, 19,685 acres temporarily withdrawn from mining entry); Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d 814 (10th Cir. 1999) (to reduce harmful effects on Indian spiritual practices Park Service restricted climbing Devils Tower); Wilson v. Block, 708 F.2d 735, 739 (D.C. Cir. 1983) (Forest Service reduced ski resort expansion from requested 120 acres to 50 acres); Natural Arch and Bridge Soc’y v. Alston, 209 F. Supp. 2d 1207 (D. Utah 2002) (Park Service took steps to protect Rainbow Bridge); 65 Fed. Reg. 64,456 (Oct. 27, 2000) (to protect sacred sites BLM withdrew, for the 20 years, 9,000 acres of land from multiple use); Kochan, supra note 495, at 12-24 (explaining how NHPA was used by the government to deny a gold permit). 509 Echo-Hawk, supra note 439 at 12; cf. Kochan, supra note 495, at 12-2–12-8 (discussing numerous efforts from 2000 to 2003 to enact laws to protect Indian sacred sites on federal land).

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Chapter 4 Criminal Law

Criminal jurisdiction in Indian country is relatively settled. As a general matter, federal statutes look to the nature of the offense, the location of the offense, and the Indian or non-Indian status of the offender and victim in allocating criminal jurisdiction among federal, state, and tribal authorities. In a number of states, the allocation scheme has been supplanted, in whole or in part, by federal statutes authorizing state assumption of jurisdiction over some or all crimes within Indian country. Outside Indian country, Indians are subject to state criminal jurisdiction to the same extent as non-Indians, but treaty provisions, particularly those securing hunting and fishing rights, may exempt certain activities from full application of state law. This chapter discusses the significant federal statutes governing crimes committed in Indian country and associated decisional authority, the principles governing the respective bounds of tribal and state jurisdiction, and, finally, special questions of jurisdiction, including liquor-related offenses, juvenile offenses, and state authority to effect arrests of Indians within Indian country for offenses committed elsewhere. The discussion in Chapter 2 concerning the terms “Indian” and “Indian country” applies when determining whether criminal conduct has occurred within Indian country and whether the defendant or any victim is an Indian. I. INDIAN COUNTRY CRIMES Jurisdiction over crimes committed in Indian country is governed primarily by several federal statutes: (1) the General Crimes Act; (2) the Major Crimes Act; and (3) Public Law 280, which conferred upon certain states

18 U.S.C. § 1152.



Id. § 1153.



Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321–1325, and 28 U.S.C. § 1360). 

141

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criminal jurisdiction over all crimes within Indian country. Even after the adoption of Public Law 280, however, the substantive and jurisdictional effects of the principal Indian country federal criminal statutes remain pertinent in many states. A. Federal Crimes 1. General Crimes Act The General Crimes Act reads: Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, or to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

The term “general laws” in the first paragraph of the General Crimes Act refers only to “those laws, commonly known as federal enclave laws, which are criminal statutes enacted by Congress under its admiralty, maritime, and property powers, governing enclaves such as national parks.” It does not include “the general laws of the United States which constitute federal crimes regardless of where committed.” Non-enclave laws operate independently of

 Other federal criminal laws specifically directed to Indians or Indian country include 18 U.S.C. § 437, which prohibits federal employees from contracting or trading with Indians; id. § 1158, which prohibits counterfeiting the Indian Arts and Crafts Board trademark; id. § 1159, which prohibits misrepresenting goods as Indian products; id. § 1163, which prohibits embezzlement or theft from tribal organizations; id. § 1164, which prohibits the destruction, defacing, or removal of Indian country boundary and hunting, trapping, or fishing notice signs; and id. § 1165, which prohibits unauthorized hunting, trapping, or fishing on Indian lands. Cf. Kaw Nation v. Springer, 341 F.3d 1186, 1190–91 (10th Cir. 2003) (18 U.S.C. § 1163 does not create private right of action to recover amounts allegedly spent on housing construction in excess of federal limits).

18 U.S.C. § 1152.



United States v. Cowboy, 694 F.2d 1228, 1234 (10th Cir. 1982); see also United States v. Young, 936 F.2d 1050, 1055 (9th Cir. 1991) (per curiam) (holding that Indian country offenses by Indians are subject to prosecution under “federal laws of general, non‑territorial applicability” independently of ability to prosecute under 18 U.S.C. §§ 1152 and 1153); United States v. Yannott, 42 F.3d 999, 1003–04 (6th Cir. 1994) (same); United States v. Begay, 42 F.3d 486, 498–99 (9th Cir. 1994) (same). 

 United States v. Mitchell, 502 F.3d 931, 947–49 (9th Cir. 2007); United States v. Yankton, 168 F.3d 1096, 1097–98 (8th Cir. 1999); United States v. Blue, 722 F.2d 383, 384 (8th Cir. 1983); Acunia v. United States, 404 F.2d 140, 141 n.1 (9th Cir. 1968); see also United States v. Gardner, 244 F.3d 784, 788 (10th Cir. 2001) (Lacy Act, 16 U.S.C. § 3372, is not a “general law” because it “applies to actions on state and Indian lands”); cf. United States v. White, 237 F.3d 170, 173 (2d Cir. 2001) (exception for cash transactions “outside the United States” under Internal Revenue Service regulations implementing 26 U.S.C. § 6050I reporting requirement did not apply to transaction that occurred on Indian reservation since “American Indian reservations are not outside the United States”).

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the General Crimes Act and apply unless they abrogate rights guaranteed by treaty or affect rights essential to tribal self-government; even then, the law will apply if it “specifically . . . evince[s] Congressional intent to interfere with those rights.” Primary among the general enclave laws included under the General Crimes Act is the Assimilative Crimes Act. It provides, as one court has explained, that “anyone who commits an act on a federal enclave which is not punishable under an Act of Congress, but which is punishable under the law of the state where the enclave is located, shall be guilty of a federal crime based on the state law.”10 The exact scope of state laws so assimilated has not

 United States v. Funmaker, 10 F.3d 1327, 1330–31 (7th Cir. 1993); see also United States v. Smiskin, 487 F.3d 1260 (9th Cir. 2007) (Contraband Cigarette Trafficking Act, although a statute of general applicability, did not serve to abrogate a treaty-based right to travel, and state law requirement of prenotification when unstamped cigarettes transported could not form predicate for federal prosecution under the Act); United States v. Drapeau, 414 F.3d. 869, 877–78 (8th Cir. 2005) (federal drug control laws are statutes of general nationwide applicability, and the 1868 Fort Laramie Treaty does not deprive federal courts of jurisdiction); United States v. Smith, 387 F.3d 826, 828–30 (9th Cir. 2004) (law prohibiting retaliation against a federal witness is of nationwide applicability); United States v. White, 237 F.3d 170, 173–74 (2d Cir. 2001) (cash transaction reporting requirement under 26 U.S.C. § 6050I constituted statute of general applicability and did not impinge on tribal self-government); United States v. Brisk, 171 F.3d 514, 520–21 (7th Cir. 1999) (federal drug statutes are laws of general applicability and do not interfere impermissibly with tribal self-governance); United States v. Juvenile Male, 118 F.3d 1344, 1350–51 (9th Cir. 1997) (jurisdiction over Indian country crimes by Indians extends to generally applicable federal crimes); United States v. Boots, 80 F.3d 580, 593 (1st Cir. 1996) (18 U.S.C. §§ 1343 and 1346, which prohibit wire fraud, are statutes of general applicability, and their application would not “interfere with any Native American right protected by statute or treaty, or right integral to self-government”); United States v. Toledo, 70 F.3d 988, 989 (8th Cir. 1995) (per curiam) (rejecting contention by illegal alien married to tribal member that he could not be prosecuted for federal firearm and immigration violations because he resided on reservation); United States v. Miller, 26 F. Supp. 2d 415, 428 (N.D.N.Y. 1998) (federal money-laundering statutes applicable to conspiracy effected in part on reservation because, “even to the extent that Reservation sovereignty is properly before us, it must give way to federal interests in preventing money laundering involving a scheme to defraud the United States”); see generally Donald D. Raymond, Jr., Note, Balancing “Peculiarly Federal Interests” and Indian Sovereignty in Crimes by and Against Indians in Indian Country, 78 Wash. U. L.Q. 347, 355–61, 364–68 (2000) (discussing different approaches adopted among federal courts of appeals with respect to scope of term “general law,” and arguing that, while term is properly construed to include federal laws of general applicability, statute should be amended to use “peculiarly federal interest” approach for crimes by and against Indians); James Winston King, Note, The Legend of Crow Dog: An Examination of Jurisdiction Over Intra-Tribal Crimes Not Covered by the Major Crimes Act, 52 Vand. L. Rev. 1479 (1999) (discussing differing approaches to issue of extending “generally applicable” law to Indian country crimes committed by one Indian against another, and arguing that only “peculiarly federal” crimes should be deemed applicable).

18 U.S.C. § 13.



United States v. Ashley, 255 F.3d 907, 909 n.3 (8th Cir. 2001); see also United States v. Gachot, 512 F.3d 1252, 1253 n.1 (10th Cir. 2008); United States v. Pinto, 755 F.2d 150, 154 (10th Cir. 1985); United States v. Marcyes, 557 F.2d 1361, 1365 n.1 (9th Cir. 1977); Pueblo of Santa Ana v. Hodel, 663 F. Supp. 1300, 1309–10 (D.D.C. 1987); see Williams v. United States, 327 U.S. 711, 713 (1946) (Assimilative Crimes Act was one of the general enclave laws referred to under predecessor statute to present General Crimes Act); see generally Nancy Thorington, Civil and Criminal Jurisdiction over Matters Arising in Indian Country: A Roadmap for Improving Interaction Among Tribal, State and Federal Governments, 31 McGeorge L. Rev. 973, 995 (2000) (discussing division among federal appellate courts over extent to which state law is assimilated under 18 U.S.C. § 13); Derek P. Radtke, Note and Comment, State Encroachment into Tribal Sovereignty by Means of the Assimilative Crimes Act, 19 Whittier L. Rev. 655, 677 (1998) (arguing that the Assimilative Crimes Act should not be applied to Indian reservations because “[a] tribe can proscribe [sic] and enforce its own laws and is considered a sovereign” and that, consequently, “there are no ‘gaps’ to fill by the applying of the ACA”). 10

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been fully resolved. It has been suggested that the federal government, in applying state laws to on-reservation crimes, should limit its incorporation of state laws to those that prohibit certain conduct as a matter of public policy, and not assimilate those laws that impose criminal sanctions as a penalty for violation of more general regulatory schemes.11 Presumably, this would leave states free to prosecute violations of non-incorporated laws, to the extent that such prosecution is not otherwise preempted.12 Another, more recent example of a “general law[]” within the scope of § 1152 is the Adam Walsh Child Protection and Safety Act of 2006.13 It affects tribes and Indian country in two ways. First, the Act makes it a federal offense for anyone who is required to register as a sex offender to enter, leave, or reside in Indian country and fail to register as required by federal, state, or tribal law.14 Second, section 127 of the Act requires an Indian tribe to elect to either carry out sex offender registration requirements itself or to delegate its functions to another jurisdiction, such as the state within which the reservation is located.15 The Act authorizes the United States Marshal service “to assist jurisdictions in locating and apprehending sex offenders who violate sex offender registration requirements.”16 The ability of the Marshal service to assist jurisdictions will prevent persons from using jurisdictional gaps to avoid the registration requirements required by the Act.

11 See United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170, 1176 n.13 (10th Cir. 1991) (noting controversy regarding whether civil-regulatory/criminal-prohibitory test should apply to Assmilative Crimes Act, but not resolving the issue); United States v. Marcyes, 557 F.2d 1361, 1364 (9th Cir. 1977) (noting distinction between civil-regulatory and criminal-prohibitory statutes in assimilated crimes–based prosecution under the General Crimes Act but finding no need to resolve issue since the incorporated state statute was clearly prohibitory in nature); Pueblo of Santa Ana v. Hodel, 663 F. Supp. 1300, 1311 (D.D.C. 1987) (holding that Assimilative Crimes Act only authorizes enforcement of state criminal laws on tribal lands, not civil regulatory laws). In an analogous context, the Sixth and Ninth Circuits apparently have divided over whether 18 U.S.C. § 1955, which defines the term “illegal gambling business” to mean, inter alia, a gambling business operated in “violation of the law of a State or political subdivision in which it is conducted[,]” incorporates only criminal‑prohibitory statutes. Compare United States v. Dakota, 796 F.2d 186, 187–89 (6th Cir. 1986) (refusing to recognize distinction between criminal‑prohibitory and civil‑regulatory state statutes), with United States v. Farris, 624 F.2d 890, 895 (9th Cir. 1980) (holding § 1955 inapplicable “to the operators of gambling businesses that are not contrary to a state’s public policy on gambling”); see also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 213–14 (1987) (discussing but declining to resolve whether § 1955 incorporates only criminal‑prohibitory laws). Despite the adoption of the Indian Gaming Regulatory Act, the scope of § 1955’s coverage remains a live controversy. See United States v. Cook, 922 F.2d 1026, 1034 (2d Cir. 1991) (§ 1955 was not repealed by implication under IGRA with respect to prosecution for conducting an illegal gambling business involving casino‑like gaming). 12 See State v. Schaefer, 781 P.2d 264 (Mont. 1989) (finding state criminal jurisdiction over non‑Indian pawnbroker convicted of charging usurious interest rates to Indians in reservation transactions). 13 Pub. L. No. 109-248, 120 Stat. 587 (2006) (codified at 42 U.S.C. §§ 16901–16962 and scattered sections of Titles 10, 18, 21, 28 and 42). Public Law 109-248 included not only the Adam Walsh Child Protection and Safety Act but also the Sex Offender Registration and Notification Act.

18 U.S.C. § 2250.

14

42 U.S.C. § 16927.

15

Id. § 16941.

16

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While the first paragraph of the General Crimes Act appears to extend to criminal conduct by any person irrespective of Indian status, its reach is limited by both judicial construction and the second paragraph. The Supreme Court has long held that crimes committed by non‑Indians against non‑Indians are not subject to the General Crimes Act.17 Consonant with this holding, state courts have concluded that victimless crimes committed by non‑Indians are not subject to federal prosecution under the General Crimes Act.18 Indian country crimes committed by non‑Indians against the persons or property of Indians, in contrast, generally have been held by lower federal and state courts as subject to prosecution only under the Act and not in state court.19 The justification for preemption of state jurisdiction remains ill-defined; no tribal interest appears implicated by state prosecution of non-Indians for Indian country crimes, since

17 United States v. Wheeler, 435 U.S. 313, 324 n.21 (1978); United States v. Antelope, 430 U.S. 641, 644 n.4 (1977); People ex rel. Ray v. Martin, 326 U.S. 496, 500 (1946); Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1881); see also United States v. Prentiss, 273 F.3d 1277, 1281–82 (10th Cir. 2001) (vacating conviction for crime of arson under 18 U.S.C. §§ 81 and 1152 because indictment failed to allege the Indian or non-Indian status of victim or defendant and prosecution otherwise failed to establish such status beyond a reasonable doubt; only evidence was stipulation that victims were tribal members, but government had obligation to satisfy traditional two-part test of proving some Indian blood and recognition as an Indian by tribe or United States). 18 State v. Reber, 171 P.3d 406, 408 (Utah 2007) (non-Indians hunting without a license on non-Indian land within an Indian reservation commit a victimless offense subject to state court jurisdiction); State v. Haskins, 887 P.2d 1189, 1194 (Mont. 1994) (sale of dangerous drugs); State ex rel. Poll v. Montana Ninth Jud. Dist. Court, 851 P.2d 405, 408 (Mont. 1993) (conspiracy to conduct illegal gambling); State v. Snyder, 807 P.2d 55, 58 (Idaho 1991) (driving under the influence of alcohol, but declining to expressly rule that drunken driving is victimless crime); State v. Vandermay, 478 N.W.2d 289, 290 (S.D. 1991) (operating overweight vehicle); State v. Thomas, 760 P.2d 96, 98 (Mont. 1988) (failure to report motor vehicle accident); State v. Burrola, 669 P.2d 614 (Ariz. Ct. App. 1983) (possession of deadly weapon); State v. Herber, 598 P.2d 1033 (Ariz. Ct. App. 1979) (possession of marijuana for sale); State v. Warner, 379 P.2d 66 (N.M. 1963) (driving under the influence of alcohol); see Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984) (“[w]ithin Indian country, state jurisdiction is limited to crimes by non‑Indians against non‑Indians . . . and victimless crimes by non‑Indians”); compare United States v. Billadeau, 275 F.3d 692, 694 (8th Cir. 2001) (reinstating indictment of non-Indian for forcibly resisting, opposing, impeding with a BIA police officer engaged in the performance of official duties, where incident arose from non-Indian’s fleeing from a traffic stop, since state drunk driving and speeding laws are assimilated into federal law and officer therefore acted in an official capacity when making stop), with State v. Sorkhabi, 46 P.3d 1071, 1074 (Ariz. Ct. App. 2002) (state court lacked jurisdiction over offense of resisting arrest by tribal police officer, since under state law the tribal police officer, who was an Indian, was victim of offense). 19 E.g., United States v. Drewry, 365 F.3d 957, 960–61 (10th Cir. 2004), vacated on other grounds, 543 U.S. 1103 (2005); United States v. Johnson, 637 F.2d 1224, 1231 n.11 (9th Cir. 1980); State v. Flint, 756 P.2d 324 (Ariz. Ct. App. 1988); State v. Larson, 455 N.W.2d 600, 601 (S.D. 1990); State v. Greenwalt, 663 P.2d 1178, 1183 (Mont. 1983); but see State v. Schaefer, 781 P.2d 264, 266 (Mont. 1989) (upholding prosecution of non-Indian for violation of pawn broker statutes even though alleged offenses occurred on Indian reservation and involved transactions with Indians); see generally Larry Cunningham, Note, Deputization of Indian Prosecutors: Protecting Indian Interests in Federal Court, 88 Geo. L.J. 2187, 2198, 2210 (2000) (contending that “Indians face a disproportionately higher rate of violent crimes than other races,” and recommending appointment of tribal attorneys as special assistant United States attorneys to prosecute Indian country crimes both to “send[] a message that it is the tribe—not the federal government—that is spending the time and resources to punish the offender” and to “ensure that minor offenses are prosecuted, rather than ignored”); Victor H. Holcomb, Prosecution of Non-Indians for Non-Serious Offenses Committed Against Indians in Indian Country, 75 N.D. L. Rev. 761, 779 (1999) (examining the problem of non-Indian crime against Indians, and recommending that the federal government invest more resources into prosecution of these crimes).

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tribes lack criminal jurisdiction over non-Indians,20 and state prosecution of a non-Indian does not bar a subsequent federal prosecution of the same person for the same conduct.21 The second paragraph of the General Crimes Act expressly excludes from the statute’s coverage Indian country crimes committed by one Indian against another and offenses by Indians for which punishment has been imposed under “the local law of the tribe.”22 Because of the Indian-against-Indian exception, federal prosecutors may be faced with the necessity of proving the victim’s non-Indian status as an element of the offense.23 The Indian‑against‑Indian exception does not appear to prohibit federal prosecution of “victimless” crimes committed by Indians.24 Similarly, the tribal law punishment exception does not appear to bar federal prosecution if an Indian was prosecuted, but not convicted, in tribal proceedings.25 These statutory exceptions reflect

20 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); see generally Troy A. Eid, Beyond Oli­phant: Strengthening Criminal Justice in Indian Country, 54-APR Fed. Law. 40, 45 (2007) (urging Congress to extend tribal criminal jurisdiction to non-Indians); Judith V. Royster, Oliphant and Its Discontents: An Essay Introducing the Case for Reargument Before the American Indian Nations Supreme Court, 13-FALL Kan. J.L. & Pub. Pol’y 59, 61 (2003) (arguing, inter alia, that Oliphant has had a pernicious practical impact because “[n]either [federal nor state] government holds the resources, and neither has generally demonstrated the will to prosecute minor crimes non-Indians commit on reservations”).

Abbate v. United States, 359 U.S. 187 (1959).

21

See generally William V. Vetter, A New Corridor for the Maze: Tribal Criminal Jurisdiction and Nonmember Indians, 17 Am. Indian L. Rev. 349, 380–408 (1992) (discussing congressional development of Indian-against-Indian exception). 22

23 See United States v. Romero, 136 F.3d 1268, 1271 (10th Cir. 1998) (“difficult” question of whether the United States, in prosecution of Indian under General Crimes Act, must prove victim’s non-Indian status as an element of the offense, need not be addressed since jury had been instructed that the non-Indian status of the victim was an element of the crime). 24 See United States v. Quiver, 241 U.S. 602, 605 (1916) (approving prosecution of Indian for crime of adultery, while recognizing that “adultery is a voluntary act on the part of both participants, and, strictly speaking, not an offense against the person of either”); United States v. Thunder Hawk, 127 F.3d 705, 708 (8th Cir. 1997) (driving under influence of alcohol is victimless crime not subject to Indian-against-Indian exception); United States v. Blue, 722 F.2d 383, 386 n.4 (8th Cir. 1983) (observing in dicta that “the Indian against Indian exception has been read very broadly to include ‘victimless’ crimes affecting only Indians”); but see United States v. Marcyes, 557 F.2d 1361, 1364–65 (9th Cir. 1977) (upholding fireworks possession conviction without discussion of exception); United States v. Sosseur, 181 F.2d 873, 876 (7th Cir. 1950) (sustaining conviction for operating slot machines where Indian “defendant furnished the means by which non-Indians were enabled and induced to violate the Wisconsin law”). 25 Federal prosecution following acquittal in tribal court does not normally raise double jeopardy concerns. See United States v. Wheeler, 435 U.S. 313, 322–30 (1978) (tribe is separate sovereign for purposes of double jeopardy provision of the Fifth Amendment); cf. United States v. Percy, 250 F.3d 720, 725–26 (9th Cir. 2001) (discussing, but not deciding, question whether Sixth Amendment rights precluded use in subsequent federal prosecution of statements taken by federal agents during post-tribal-arraignment interview where defendant was unrepresented by counsel); United States v. Doe, 155 F.3d 1070 (9th Cir. 1998) (en banc) (youth held in tribal custody not entitled to rights under 18 U.S.C. § 5033 with respect to questioning by federal agent absent proof that tribal and federal officers had collaborated for purpose of denying youth his federal procedural rights); United States v. Swift Hawk, 125 F. Supp. 2d 384, 389 (D.S.D. 2000) (where tribal court adversarial proceeding has been initiated and counsel appointed, Massiah v. United States, 377 U.S. 201 (1964), precluded use of statements made during interview with federal agent in subsequently filed federal prosecution for “basically the same offense conduct”); State v. Spotted Eagle, 71 P.3d 1239, 1245 (Mont. 2003) (uncounselled tribal court driving-under-the-influence convictions where jail term imposed could

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a congressional determination to defer to tribal jurisdiction certain forms of otherwise criminally culpable conduct engaged in by a tribe’s members within Indian country. 2. Major Crimes Act The initial version of the Major Crimes Act was adopted over 100 years ago following the decision in Ex parte Crow Dog,27 which voided a murder conviction under the General Crimes Act where one Indian had killed another, on the basis of the Act’s Indian-against-Indian exception.28 The Major Crimes Act makes it unlawful for an Indian to commit certain enumerated crimes in Indian country and provides presently: 26

(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), an assault against an individal who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. (b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.29

Although the enumeration of crimes in the Major Crimes Act implies exclusion of those crimes not enumerated, the enumeration covers a broad range of traditional felonies.30 The Major Crimes Act departs from the General

be used for sentence enhancement purposes in subsequent state court prosecution for different offense, since counsel was not required under the Indian Civil Rights Act or the tribe’s own law and the sentences were therefore not infirm). 26 Act of Mar. 3, 1885, § 9, 23 Stat. 362, 385; see United States v. Lomayaoma, 86 F.3d 142, 144–46 (9th Cir. 1996) (rejecting argument that Congress exceeded its authority under the Indian Commerce Clause when enacting the Major Crimes Act in 1885).

109 U.S. 556 (1883).

27

See Keeble v. United States, 412 U.S. 205, 209 (1973).

28

18 U.S.C. § 1153.

29

Compare United States v. Ashley, 255 F.3d 907 (8th Cir. 2001) (finding that federal jurisdiction existed under Major Crimes Act, since motor vehicle–pedestrian accident constituted assault resulting in serious bodily injury when driver willfully drove a vehicle with bad brakes while voluntarily impaired), with State v. Marek, 736 P.2d 1314, 1319 (Idaho Ct. App. 1987) (crime of fel­ony injury to child not within enumeration of Major Crimes Act). One limiting construction of note is the exclusion of federal and state agencies from the term “person” as used in § 1153. United States v. Belgarde, 300 F.3d 1177, 1181 (9th Cir. 2002) (state agency); United States v. Errol D., 292 F.3d 1159 (9th Cir. 2002) (federal agency). 30

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Crimes Act in that it does not apply to non‑Indians and omits the Indianagainst-Indian and tribal law punish­ment exemptions.31 The Act thus has been seen as a purposeful but limited incursion into the exclusive authority of tribes over the enumerated offenses.32 Nothing, moreover, precludes a Major Crimes Act offense from being joined with another offense where jurisdiction exists otherwise.33 The Major Crimes Act preempts state jurisdiction, although Congress made the statute inapplicable in those portions of Indian country where it has mandated state assumption of jurisdiction under Public Law 280.34 The Supreme Court has left open the question of whether the Major Crimes Act divests tribes of concurrent authority to prosecute individuals for conduct

31 See United States v. Bird, 359 F.3d 1185, 1188–89 (9th Cir. 2004) (collateral order exception to final judgment rule for appeal purposes does not apply to failure to allege Indian status of victim in an indictment under the Major Crimes Act). 32 United States v. Wheeler, 435 U.S. 313, 325 n.22 (1978); United States v. Antelope, 430 U.S. 641, 642 n.1 (1977); United States v. Velarde, 40 F. Supp. 2d 1314, 1316 (D.N.M. 1999) (refusing to quash subpoena directed to tribal officials on sovereign immunity grounds because, inter alia, “the federal government’s interest in enforcing the Major Crimes Act is sufficient to justify an infringement on tribal sovereignty”); see generally Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N.C. L. Rev. 779, 848–53 (2006) (arguing that federal criminal prosecution in general, and the Major Crimes Act in particular, are inconsistent with the federal policy of tribal self-determination, and suggesting several alternatives that include outright repeal, tribe-by-tribe “opt-out” authority, or modifications in the federal delivery of reservation criminal justice such as tribally drafted guidelines to assist with prosecution decision-making and periodic tribal community review of prosecutor performance); Kevin K. Washburn, American Indians, Crime, and the Law, 104 Mich. L. Rev. 709, 776 (2006) (assessing the federal court criminal justice process in Indian country with reference to several elements or “norms”—the vesting of prosecutorial authority in federal attorneys, the composition of juries in federal trials, and Indian community access to such trials—and recommending “a comprehensive analysis of reform” that “take[s] a sober look at the three governmental options and must compare and contrast the utility of each in providing criminal justice in Indian country”). 33 United States v. Mitchell, 502 U.S. 931, 947 (9th Cir. 2007) (intra-Indian homicide offense subject to Major Crimes Act properly joined with application of the Federal Death Penalty Act, which was held to be a statute of general applicability). 34 E.g., Negonsott v. Samuels, 507 U.S. 99, 103 (1993) (“federal jurisdiction over the offenses covered by the Indian Major Crimes Act is ‘exclusive’ of state jurisdiction”); Solem v. Bartlett, 465 U.S. 463 (1984) (granting habeas corpus relief to Indian convicted by state court of attempted rape in Indian country); United States v. John, 437 U.S. 634, 651 (1978) (agreeing with state’s concession “that if § 1153 provides a basis for prosecution . . . for the offense charged, the State has no similar jurisdiction”); United States v. Jones, 440 F.3d 927, 929 (8th Cir. 2006) (per curiam) (Major Crimes Act encompassed aggravated sexual abuse offense over which the United States had exclusive jurisdiction); United States v. Lomayaoma, 86 F.3d 142, 146 (9th Cir. 1996) (federal courts granted exclusive jurisdiction to prosecute crimes covered by § 1153 allegedly committed by Indi­ans); Murphy v. Sirmons, 497 F. Supp. 2d 1257, 1289–92 (E.D. Okla. 2007) (rejecting preemption challenge in habeas corpus proceeding to state court jurisdiction in intra-Indian homicide prosecution; state court determination that crime did not occur in Indian country did not clearly or unreasonably apply federal law); State v. Marek, 736 P.2d 1314, 1317 (Idaho Ct. App. 1987) (“the Major Crimes Act is preemptive of state jurisdiction with respect to the enumerated crimes”); compare State v. Daly, 454 N.W.2d 342, 344 (S.D. 1990) (citing defendant’s prosecution in federal court, court refused to assert criminal jurisdiction over member of Lumbee Tribe under doctrine of comity, even though members of that tribe are excluded from coverage under federal statutes applying to persons because of Indian status), with State v. St. Cloud, 465 N.W.2d 177, 178–80 (S.D. 1991) (defendant was judicially estopped from asserting exclusive federal jurisdiction under Major Crimes Act, due to representation during federal prosecution that he was not an Indian).

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consti­tuting a major crime,35 although lower federal courts have concluded it does not.36 The Court, however, has upheld the right of a defendant to request a lesser included offense instruction in a Major Crimes Act prosecution, even though the offense was not one of those specified under the statute.37 The Court reasoned that in such situations tribal self‑government interests were unaffected, since the ability of a defendant to request the lesser included offense instruction “neither expands the reach of the Major Crimes Act nor permits the Government to infringe the residual jurisdiction of a tribe by bringing prosecutions in federal court that are not authorized by statute.”38 Sentencing for a violation of the Major Crimes Act generally follows the now-discretionary United States Sentencing Guidelines for the underlying offense.39 For major crimes that assimilate the crime’s definition from state law, the assimilated state law becomes federal law, including the punishment.40 If state law establishes a minimum and maximum sentence for a particular crime, the Guidelines provide for imposition of a sentence between the state minimum and maximum.41 3. Federal Juvenile Delinquency Act Most juvenile offenses committed by Indians within Indian country are handled through the tribal court system.42 If a juvenile offense would fall

35 United States v. Wheeler, 435 U.S. 313, 325 n.22 (1978); see also Duro v. Reina, 495 U.S. 676, 680 n.1 (1990) (noting the unresolved question of whether § 1153 abrogates retained tribal jurisdiction to prosecute members for major crimes); John, 437 U.S. at 651 n.21 (declining to address question of whether § 1153 preempts tribal jurisdiction). 36 Wetsit v. Stafne, 44 F.3d 823, 825 (9th Cir. 1995) (concluding that tribal court has concurrent criminal jurisdiction over tribal member with respect to conduct for which member has been prosecuted under Major Crimes Act); United States v. Broncheau, 597 F.2d 1260, 1265 (9th Cir. 1979) (rejecting claim that tribes have exclusive jurisdiction over § 1153 offenses, and leaving undecided question of concurrent tribal jurisdiction); see also People v. Morgan, 785 P.2d 1294, 1298–99 (Colo. 1990) (tribe has concurrent criminal jurisdiction over conduct constituting major crime); see generally Vanessa J. Jimenez and Soo C. Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1652 (1998) (concluding that § 1153 “did not disturb tribal concurrent jurisdiction over major crimes”).

Keeble v. United States, 412 U.S. 205, 214 (1973).

37

Id. The Court did not address the related issue of whether the prosecution could seek the lesser included offense instruction without a defendant’s consent. See United States v. Demarrias, 876 F.2d 674, 675–76 (8th Cir. 1989) (affirming lesser included offense conviction where jury was instructed on such offense over defendant’s objection). At least one federal district court has rejected Keeble as a basis for charging under § 1153 a nonenumerated but lesser included offense. United States v. Narcia, 776 F. Supp. 491 (D. Ariz. 1991) (enumeration of “robbery” in § 1153 did not authorize charge of attempted robbery as a lesser included offense). 38

39 See Booker v. United States, 543 U.S. 220 (2005) (rendering federal sentencing guidelines discretionary, not mandatory). 40 United States v. Wood, 386 F. 3d 961, 962 (10th Cir. 2004) (burglary is a crime not defined or punished by federal law). 41 Id. (court must sentence defendant to between two and seven years as required by the underlying state offense). 42 United States v. Allen, 574 F.2d 435, 437 (8th Cir. 1978); see generally Sarah M. Patterson, Note and Comment, Native American Juvenile Delinquents and the Tribal Courts, Who’s Failing Who?, 17 N.Y.L. Sch. J.

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under the provisions of the General Crimes Act43 or the Major Crimes Act,44 the federal government may choose to adjudicate the juvenile in federal court under the Federal Juvenile Delinquency Act.45 The statute defines “juvenile delinquency” as “the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.”46 The Act does not create a substantive offense but instead establishes a “procedural mechanism for the treatment of juveniles who are already subject to federal jurisdiction because of the commission of acts cognizable under other federal statutes.”47 When prosecuting crimes commited by juveniles within Indian country, the Act imposes two jurisdictional requirements upon the United States. First, the alleged offense must be a “violation of a law of the United States.”48 Thus, within Indian country, the United States may not initiate federal juvenile delinquency proceedings unless the underlying offense falls under the General Crimes Act or the Major Crimes Act. Second, the Act requires “certification by the attorney general that (1) the juvenile court or other appropriate court of a state does not have, or refuses to assume, jurisdiction over the acts of a juvenile; (2) the state does not have available programs and services adequate for the needs of the juvenile; or (3) the offense charged is a crime of violence that is a felony or one of the several enumerated crimes, and there is a substantial federal interest in the offense.”49 The certification requirements reflect Congress’s desire to keep juveniles out of the federal court system and channel them to state treatment programs.50 There is no corresponding certification process for tribes. The United States thus does not need to consider whether a tribal government has jurisdiction or whether the tribe has sufficient programs and services.51

Hum. Rts. 801 (2000); see generally Amy J. Standefer, Note, The Federal Juvenile Delinquency Act: A Disparate Impact on Native American Juveniles, 84 Minn. L. Rev. 473 (1999). 18 U.S.C. § 1152.

43

Id. § 1153.

44

Id. §§ 5031–5037.

45

Id. § 5301.

46

United States v. Allen, 574 F.2d 435, 437 (8th Cir. 1978).

47

18 U.S.C. § 5301.

48

United States v. Male Juvenile, 280 F.3d 1008, 1013 (9th Cir. 2002).

49

Id. at 1014.

50

Id. at 1016; United States v. Allen, 574 F.2d 435, 438–39 (8th Cir. 1978); see also Standefer, supra note 42, at 500–01 (arguing that the Federal Juvenile Delinquency Act should include a tribal consultation and certification process similar to the state’s). Despite several opportunities to do so, Congress has declined to amend the act to require consultation with tribal governments during the certification process. It did, however, amend the statute in 1994 to require consultation with tribal governments regarding transfer of Indian youth to the federal adult system. 18 U.S.C. § 5032; see United States v. Juvenile, 228 F.3d 987 (9th Cir. 2000) (holding that juvenile did not have a constitutional right to be tried as a juvenile and that transfer to adult court was mandatory because juvenile had previously been adjudicated a delinquent for an assault 51

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B. Tribal Crimes Tribes retain inherent authority to impose criminal sanctions on tribal members for conduct within their reservations,52 although Congress has limited those sanctions to a maximum of one year’s imprisonment, a $5,000 fine, or both.53 It is well established that the inherent criminal jurisdiction of tribes does not extend to non-Indians;54 whether such authority extends to nonmember Indians is a subject of debate. In Duro v. Reina,55 the Supreme Court held that tribes lack inherent authority to prosecute nonmember Indians for offenses committed against members, equating the nonmember Indians’ status to that of non‑Indians. The Court’s conclusion was based on the principle that tribal authority to prosecute member Indians “comes from the consent of its members.”56 The decision created enforcement difficulty under the General Crimes Act because the Indian‑against‑Indian exception, if read literally, precluded federal prosecution.57 Whether state prosecution could occur in light of the General Crime Act’s inapplicability was an open question. Responding to Duro, Congress amended the Indian Civil Rights Act58 to restore tribal criminal jurisdiction over nonmember Indians.59 The amendment modified the definition of “powers of self‑government” to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians” and further defined the term “Indian” to encompass “any person who would be subject to the jurisdiction of the United States as an Indian under § 1153, title 18, United States Code, if that person were to commit an offense listed in that section in Indian country to which that sec­tion applies.”60 Contemporary commentators argued that the

resulting in serious bodily injury committed within “Indian country”); United States v. A.F.F., 144 F. Supp. 2d 797, 801–2 (E.D. Mich. 2001) (findings that transfer of juvenile to adult court would not serve the interests of justice); United States v. Leon D.M., 953 F. Supp. 346, 347–48 (D.N.M. 1996), aff’d, 132 F.3d 583 (10th Cir. 1997) (denying motion to transfer juvenile to adult court). United States v. Wheeler, 435 U.S. 313 (1978).

52

25 U.S.C. § 1302(7); see generally Stephen D. Easton, Native American Crime Victims Deserve Justice: A Response to Jensen and Rosequist, 68 N.D. L. Rev. 939, 949 (1993). 53

54 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); see also United States v. Phelps, 168 F.3d 1048, 1053–54 (8th Cir. 1999) (rejecting non-Indian’s double jeopardy claim based on tribal court conviction because tribe lacked jurisdiction to prosecute).

495 U.S. 676 (1990).

55

Id. at 693.

56

The Court observed in Duro that a dispute exists over the appropriate scope of the Indian‑againstIndian exception but refused to resolve the controversy. Id. at 697–98. 57

58 Pub. L. No. 90-284, §§ 201–701, 82 Stat. 73, 77–81 (1968) (codified as amended at 25 U.S.C. §§ 1301–3, 1311–12, 1321–26, 1331, 1341). 59 Pub. L. No. 101-511, § 8077, 104 Stat. 1856, 1892–93 (1990); Pub. L. No. 102-137, § 1, 105 Stat. 646 (1991) (codified at 25 U.S.C. § 1301); see Conf. R. No. 938, 101st Cong., 2d Sess. 132–33 (1990).

Pub. L. No. 101-511, § 8077(b) and (c), 104 Stat. at 1892–93 (codified at 25 U.S.C. § 1301(2) and

60

(4)).

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amendment’s purpose was to exercise Congress’s power to supersede federal common law rules.61 The Ninth Circuit Court of Appeals eventually agreed with that argument,62 but the Eighth Circuit Court of Appeals found that construction constitutionally problematic and instead deemed the amendment to contain a delegation of federal authority.63 Determining the source of tribal criminal jurisdiction over nonmember Indians was not a mere theoretical exercise; the source of tribal authority determines the validity of dual prosecutions of Indians by tribal and federal courts for the same offense. Sequential prosecutions by separate sovereigns violate the double jeopardy clause if the entities draw their authority from the same source of power.64

61 E.g., L. Scott Gould, The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution, 28 U.C. Davis L. Rev. 53, 79–80 (1994) (“The fate of [the 1991 permanent amendment] may turn on whether the Court accepts the law as recognition of inher­ent sovereignty or, instead, views it as a delegation of authority. If the former, the Court must step aside because a clear statement of congressional intent displaces federal common law”); Alex Tallchief Skibine, Duro v. Reina and the Legislation That Overturned It: A Power Play of Constitutional Dimensions, 66 S. Cal. L. Rev. 767, 782 (1993) (“[e]ven if based on federal common law, it is still very possible that the Court may view its decisions as being ‘linked’ to the Constitution”); Nell Jessup Newton, Permanent Legislation to Correct Duro v. Reina, 17 Am. Indian L. Rev. 109, 113 (1992) (“[i]f the [Supreme] Court errs in determining congressional intent, Congress can then correct the Court”); Philip S. Deloria and Nell Jessup Newton, The Criminal Jurisdiction of Tribal Courts Over Non-Member Indians, 38 Fed. Bar News & J. 70, 75 (Mar. 1991) (“where Congress is merely recognizing a power that Indian tribes have, a priori, had from time immemorial, we believe the Court should . . . defer”). Congress’s authority to restore inherent tribal authority is discussed at greater length in Chapter 5, part I.B.3. 62 The first Ninth Circuit panel to address Congress’s “affirmation” of tribal criminal jurisdiction over nonmember Indians concluded that the amendments delegated federal power to the tribe and, therefore, the tribal court lacked jurisdiction over a nonmember Indian with respect to crimes committed before the amendments’ effective date. Means v. Northern Cheyenne Tribal Ct., 154 F.3d 941, 947 (9th Cir. 1998). In a subsequent decision, however, the court of appeals, sitting en banc, held that the Duro amendments restored inherent tribal authority, not a delegation of federal power. United States v. Enas, 255 F.3d 662 (9th Cir. 2001) (en banc). The court reasoned that “Duro is not a constitutional decision but rather, like Oli­ phant [v. Suquamish Indian Tribe, 435 U.S. 191 (1978)] and [United States v. Wheeler, 435 U.S. 313 (1978)], a decision founded on federal common law” and therefore subject to congressional abrogation. 255 F.3d at 673. The court stressed that the outcome would have differed had Duro been predicated on “constitutional history”—in which situations “Congress may [not] override a constitutional decision by simply rewriting the history upon which it is based.” Id. at 675. The en banc court overruled Means to the extent the earlier decision held that Congress lacked power to “override” Duro. Id. at 675 n.8. 63 Like the Ninth Circuit, the Eighth followed a somewhat tortuous path in reaching its construction of the Duro amendment. The first panel to address the issue concluded that the amendment was a delegation of federal authority to tribes. United States v. Weaselhead, 156 F.3d 818, 824 (8th Cir. 1998). Upon en banc review, the court divided equally, resulting in affirmance of the district court’s determination that the amendment recognized inherent tribal authority. United States v. Weaselhead, 165 F.3d 1209 (8th Cir. 1999) (en banc) (per curiam). Four years later, however, the court, again sitting en banc, held that “Duro’s determination of first principles regarding Indian sovereignty within the federal system of government is ultimately one for the Court” and that Congress could not accomplish “a retroactive legislative reversal of Duro.” United States v. Lara, 324 F.3d 635, 640 (8th Cir. 2003), rev’d, 541 U.S. 193 (2004). It further construed the amendment as a delegation of federal authority to tribes. Id. 64 United States v. Long, 324 F.3d 475, 478 (7th Cir. 2003). State law, however, may eliminate the separate sovereign doctrine for purposes of nonfederal prosecutions. E.g., Hill v. Eppolito, 772 N.Y.S. 2d 634, 635 (App. Div. 2004) (under New York’s broader double jeopardy protection, the city was precluded from prosecuting defendant after charges were dismissed in tribal court); see generally Ross Naughton, Comment, State Statutes Limiting the Dual Sovereignty Doctrine: Tools for Tribes to Reclaim Criminal Jurisdiction Stripped by Public Law 280?, 55 UCLA L. Rev. 489, 503–11 (2007) (canvassing Public Law 280 states with respect to dual-sovereignty-doctrine status).

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The Supreme Court settled this split in United States v. Lara,65 holding that Congress did “possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction over nonmember Indians as the statute seeks to do.”66 The Court based its decision on Congress’s plenary power to legislate with respect to Indian tribes67 and Congress’s authority “to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority.”68 It did not decide, however, other potential constitutional challenges to the Duro amendment, including the power of Congress to subject a citizen to criminal prosecution by a sovereign not subject to the Bill of Rights and whether the amendment classifies impermissibly on the basis of ancestry.69 C. State Crimes 1. State criminal jurisdiction under Public Law 280 Congress enacted Public Law 28070 in 1953 to address “the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.”71 As initially adopted, Public Law 280

541 U.S. 193 (2004).

65

Id. at 200.

66

Id.

67

Id. at 202.

68

Id. at 205; see Means v. Navajo Nation, 432 F.3d 924 (10th Cir. 2005) (rejecting equal protection, due process, and treaty violation claims); Morris v. Tanner, 288 F. Supp. 2d 1133 (D. Mont. 2003) (rejecting due process and equal protection claims), aff’d, 160 Fed. Appx. 600 (9th Cir. 2005); see generally Eric Wolpin, Answering Lara’s Call: May Congress Place Nonmember Indians Within Tribal Jurisdiction Without Running Afoul of the Equal Protection or Due Process Requirements, 8 U. Pa. J. Const. L 1071, 1099–1100 (2006) (discussing the legal, procedural, and time issues that a nonmember defendant needs to overcome in order to raise and prevail under an equal protection or due process claim); Weston Meyring, “I’m an Indian Outlaw, Half Cherokee and Choctaw”: Criminal Jurisdiction and the Question of Indian Status, 67 Mont. L. Rev. 177, 230 (2006) (urging the judiciary to focus less on formal enrollment and more on sociopolitical factors to determine if a defendant is a nonmember Indian in order to avoid an equal protection challenge); Alex Tallchief Skibine, United States v. Lara, Indian Tribes, and the Dialectic of Incorporation, 40 Tulsa L. Rev. 47, 52, 61–70 (2004) (arguing that the Duro amendments may be able to survive further constitutional challenges). The United States argued in Lara that the term “Indian” in 18 U.S.C. § 1153 is limited to enrolled members of federally recognized tribes and that the amendments therefore classify politically, not racially. E.g., Brief for Petitioner at 36–37, United States v. Lara, No. 03-107, 541 U.S. 193 (2004) (amendments “enable[] a Tribe to enforce its criminal laws not only against its own members, but also against members of other Tribes who voluntarily enter its territory”). 69

70 Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321–1325, and 28 U.S.C. § 1360). 71 Bryan v. Itasca County, 426 U.S. 373, 379 (1976); see generally Jimenez and Song, supra note 36, at 1660–61 (arguing that under Public Law 280, “legislators withdrew a significant aspect of the Federal Government’s responsibility for law enforcement in Indian country and took their financial support with them”); Carole Goldberg-Ambrose, Public Law 280 and the Problem of Lawlessness in California Indian Country, 44 UCLA L. Rev. 1405 (1997) (contending that Public Law 280 has not achieved its objective of reducing lawlessness but has exacerbated problem); Carole Goldberg and Duane Champagne, Is Public Law 280 Fit for the Twenty-First Century? Some Data at Last, 28 Conn. L. Rev. 697, 729 (2006) (preliminary statistical data indicate that all parties are dissatisfied with the current status of Public Law 280); Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation Indians, 22 UCLA L. Rev. 535, 540–45 (1975) (discussing legislative background to adoption of Public Law 280); cf. Jared B. Cawley, Just When You Thought

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mandatorily imposed civil and criminal jurisdiction on five states for all or a portion of Indian country within them, and in 1958 Congress added a sixth, Alaska.72 Section 1162(a) of Title 18 currently provides: (a) Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Terri­tory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have else­where within the State or Territory: State or Territory of Indian country affected Alaska . . . . All Indian country within the State, except that on Annette Islands, the Metlakatla Indian community, may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian coun­try over which State jurisdiction has not been extended. California . . . . All Indian country within the State. Minnesota . . . . All Indian country within the State, except the Red Lake Reservation. Nebraska . . . . All Indian country within the State. Oregon . . . . All Indian country within the State, except the Warm Springs Reservation. Wisconsin . . . . All Indian country within the State.73

Section 1162(b) disclaims any intent to authorize, inter alia, state taxation of real or personal property held in trust or state regulation of hunting, trapping, and fishing rights secured by treaty or statute.74 The General Crimes

It Was Safe to Go Back on the Rez: Is It Safe?, 52 Clev. St. L. Rev. 413, 426 (2005) (summarizing development of the major statutes governing crimes on Indian reservations, and discussing 1999 United States Department of Justice study finding that “American Indians are twice as likely as any other ethnic group in the United States to experience violent crimes”). 72 Pub. L. No. 85-615, § 2, 72 Stat. 545 (1958); see also Booth v. State, 903 P.2d 1079, 1082–84 (Alaska Ct. App. 1995) (concluding that the Alaska proviso relating to the Metlakatla Indian Community was intended to vest concurrent jurisdiction in the state and tribe over offenses by Indians); see generally Andy Harrington, Exclusive of What? The Historical Conflict of the 1976 “Metlakatla” Amendment to PL 280, 23 Alaska L. Rev. 1 (2006) (arguing that the 1970 amendment to 18 U.S.C. § 1162 related to the Annette Islands was intended to clarify that the Islands constituted Indian country, not to imply that Public Law 280 divested tribes of inherent criminal authority). 73 See State v. Jim, 37 P.3d 241 (Or. Ct. App. 2002) (fishing site held in trust for three tribes, including the Confederated Tribes of the Warm Spring Reservation, but located outside of the Warm Springs Reservation boundaries, does not fall under the stated exception to state jurisdiction). 74 See State v. Jacobs, 735 N.W.2d 535, 536 (Wis. Ct. App. 2007) (conviction for offense of being a felon in possession of a firearm against tribal member engaged in on-reservation hunting was not precluded by treaty right exception in § 1162(a); offense “is not specifically a hunting restriction or regulation but, rather, a generally applicable, neutral criminal statute”); State v. Olney, 72 P.3d 235, 238 (Wash. Ct. App. 2003) (state prohibition against loaded weapons in a motor vehicle was a safety statute of general application and therefore did not implicate defendants’ treaty hunting rights); State v. St. Clair, 560 N.W.2d 732, 734–35 (Minn. Ct. App. 1997) (finding certain treaty provisions arguably inconsistent with state criminal law or procedure superseded by virtue of Public Law 280).

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Act and the Major Crimes Act are made inapplicable to Indian country crimes in those areas over which the six states have been vested with criminal jurisdiction.75 Although Public Law 280 was unique in its particular formulation, geographic scope, and historical context, Congress had previously conferred to individual states jurisdiction over Indian country crimes and would do so subsequently.76 Aside from the states to which jurisdiction was automatically given, section 6 of Public Law 280 permitted other states, commonly referred to as “disclaimer” states because of a provision in various enabling acts disclaiming jurisdiction over Indian lands, to amend their constitutions or statutes “where necessary” for the purpose of removing “any legal impediment to the assumption of civil and criminal jurisdiction[.]”77 Nondisclaimer states were

75 18 U.S.C. § 1162(c). Federal criminal statutes of general applicability, however, are unaffected by a state’s jurisdiction under Public Law 280. United States v. Pemberton, 121 F.3d 1157, 1164 (8th Cir. 1997); United States v. Stone, 112 F.3d 971, 973 (8th Cir. 1997) (Public Law 280 transfers from the federal government to the states jurisdiction over only those crimes encompassed by 18 U.S.C. §§ 1152 and 1153). 76 Kansas had been granted jurisdiction over offenses committed by or against Indians in that state. Act of June 8, 1940, 54 Stat. 249 (codified as amended at 18 U.S.C. § 3243). This statute, unlike Public Law 280, also provides that it does “not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.” See Negonsott v. Samuels, 507 U.S. 99 (1993) (§ 3243 granted concurrent jurisdiction to Kansas over all crimes, including those that constitute major crimes under 18 U.S.C. § 1153). Similar authority was given to Iowa with respect to the Sac and Fox Indian Reservation. Pub. L. No. 80-846, 62 Stat. 1161 (1948); State v. Lasley, 705 N.W.2d 481, 483 (Iowa 2005) (sale of cigarettes to a minor subject to state prosecution); see State v. Bear, 452 N.W.2d 430 (Iowa 1990) (finding jurisdiction with respect to crime of harassment but not compulsory attendance charge since 25 U.S.C. § 231, in the absence of tribal consent, precluded application of state school attendance laws). New York was also given criminal jurisdiction over offenses by Indians in 1948 (Act of July 2, 1948, 62 Stat. 1224 (codified at 25 U.S.C. § 232)), and, although not containing language preserving federal court jurisdiction, such grant has been construed as providing only concurrent jurisdiction to state courts. United States v. Cook, 922 F.2d 1026, 1032–33 (2d Cir. 1991). The North Dakota Supreme Court construed the Act of May 13, 1946, 60 Stat. 229, as granting the state jurisdiction over nonmajor criminal offenses committed by or against Indians on the Devils Lake Indian Reservation. State v. Hook, 476 N.W.2d 565 (N.D. 1991) (overturning State v. Lohnes, 69 N.W.2d 508 (N.D. 1955)). The Tenth Circuit has construed the Act of May 21, 1984, Pub. L. No. 98-290, 98 Stat. 201, as granting Colorado exclusive criminal jurisdiction over, inter alia, the town of Ignacio, relying on language in the Act that Colorado is assuming jurisdiction “as if” it had done so under Public Law 280. United States v. Burch, 169 F.3d 666, 669–70 (10th Cir. 1999); see also 25 U.S.C. § 711e(d)(6) (conferring jurisdiction on Oregon over any reservation established for the Confederated Tribes of Siletz Indians); id. § 713f(c)(6) (conferring jurisdiction on Oregon over any reservation established for the Confederated Tribes of Grand Ronde Community); id. § 714e(c) (conferring jurisdiction on Oregon over any reservation established for the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians); id. § 1747 (conferring jurisdiction on Florida over trust lands of the Miccosukee Tribe); id. § 1755 (conferring jurisdiction on Connecticut over Mashantucket Pequot Indian Reservation); see Oyler v. Allenbrand, 23 F.3d 292, 298 (10th Cir. 1994) (rejecting claim that 18 U.S.C. § 3243 applies only to the state’s “Original Tribes”). 77 Pub. L. No. 83-280, § 6, 67 Stat. 588, 590 (1953). Some states have placed limits on their acceptance of criminal jurisdiction or passed statutes restoring jurisdiction to certain areas or tribes. See, e.g., Idaho Code § 67-5101 (limiting assumption of state jurisdiction to seven enumerated categories of offenses); Wash. Rev. Code § 37.12.010 (same); see also State v. Pink, 186 P.3d 634, 639 (Wash. Ct. App. 2008) (arrest for illegal possession of a firearm discovered during a vehicle stop fell outside Public Law 280 jurisdiction over offenses involving motor vehicle operation); State v. Ambro, 123 P.3d 710, 714–15 (Idaho Ct. App. 2005) (state assumption of jurisdiction over the operation and maintenance of vehicles on state and local government roads did not encompass prosecution of Indian for possession of controlled substance discovered following traffic stop); State v. Boyd, 34 P.3d 912, 915–16 (Wash. Ct. App. 2001) (land owned by the Bureau

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authorized to assume civil or criminal jurisdiction under section 7.78 Unlike in the six mandatory assumption states, however, concurrent federal prosecutorial jurisdiction under the General Crimes Act and the Major Crimes Act may exist in states that have voluntarily assumed criminal jurisdiction.79 Tribes likely retain concurrent criminal jurisdiction over their members in both mandatory and nonmandatory states.80 Until 1968 state assumption of jurisdiction could occur without tribal consent.81 During this period, substantial controversy existed concerning whether the “disclaimer” states could assume jurisdiction over less than all Indian country within their boundaries or exclude from such assumption certain matters.82 Partial assumption was eventually found valid under the original statute83 and explicitly authorized by Congress under the 1968 amendments.84 It also appears clear that only states, and not their political subdivisions, are

of Reclamation did not fall under the trust land exception to assumption of state jurisdiction in Wash. Rev. Code § 37.12.010, and state therefore could prosecute tribal members for offenses that occurred on the property). Pub. L. No. 83-280, § 7, 67 Stat. at 590.

78

United States v. High Elk, 902 F.2d 660 (8th Cir. 1990) (per curiam).

79

See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (finding concurrent tribal jurisdiction in nonman­datory state); see generally Andy Harrington, Exclusive of What? The Historical Conflict of the 1976 “Metlakatla” Amendment to PL 280, 23 Alaska L. Rev. 1, 2 (2006) (discussing the issue of whether Public Law 280 divested Alaska tribes of criminal jurisdiction generally and more specifically with reference to the Metlakatla Indian Community, and concluding that “the Metlakatla Amendment neither ratified nor codified the divestiture interpretation into PL 280”). 80

81 Kennerly v. Dist. Ct., 400 U.S. 423, 427 (1971) (per curiam). Section 1326, Title 25, U.S.C., enacted as part of the Indian Civil Rights Act, Pub. L. No. 90-284, 82 Stat. 73 (1968) (codified as amended at 25 U.S.C. §§ 1301–1341), now requires an affirmative vote by affected tribal members at a special election authorizing state assumption of criminal or civil jurisdiction. See Kennerly, 400 U.S. at 429 (majority membership vote and not legislative action by tribal council was prerequisite to post-1968 assumption of jurisdiction by state); but see State v. Squally, 937 P.2d 1069, 1074 (Wash. 1997) (Public Law 280 jurisdiction assumed in 1959 extended to land added to reservation in 1979). 82 See, e.g., In re Hankins, 125 N.W.2d 839 (S.D. 1964) (invalidating statute purporting to asume jurisdiction only over offenses arising on highways). 83 Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 493–99 (1979); see also State v. Warden, 906 P.2d 133 (Idaho 1995) (felony driving under the influence of alcohol was within scope of statute assuming Public Law 280 criminal jurisdiction over the “[o]peration and management of motor vehicles upon highways and roads”); State v. Smith, 906 P.2d 141, 144–45 (Idaho Ct. App. 1995) (same); State v. Barros, 957 P.2d 1095 (Idaho 1998) (upholding power to arrest beyond a road right-of-way when alleged alcohol-related driving offense occurred on public road); State v. Spotted Blanket, 955 P.2d 1347, 1350–51 (Mont. 1998) (valid partial assumption of jurisdiction over, inter alia, juvenile delinquency matters existed); but see Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164, 1170, 1173 (8th Cir. 1990) (refusing to recognize state criminal jurisdiction restricted to offenses on highways where such limited jurisdiction was “not responsive to the concerns underlying the passage of P.L. 280” and, more importantly, where the state supreme court had held that the involved statute was inoperative and had waited 24 years before overruling such decision; “[r]etroactive application of the Yakima interpretation of P.L. 280 to revive South Dakota’s 1961 legislation would disregard the manner in which the Tribes and the state have structured their jurisdictional relationship” and run counter to the 1968 amendment requiring tribal consent to assertion of state jurisdiction).

25 U.S.C. §§ 1321(a), 1322(a).

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permitted to assume jurisdiction.85 The 1968 amendments allow, but do not require, the United States to accept retrocession of any jurisdiction voluntarily assumed by states prior to the effective date of those amendments or of any jurisdiction mandatorily imposed under section 1162(a).86 Much of the case law applying Public Law 280 has centered on determining which state laws fall within the scope of the term “criminal laws.” It is now well established that Public Law 280 authorizes criminal jurisdiction only with respect to criminal‑prohibitory, and not civil‑regulatory, laws.87 The standard for distinguishing between state criminal‑prohibitory laws and state civil‑regulatory laws is as follows: [I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State’s public policy.88

The line between criminal-prohibitory laws and civil-regulatory laws often has proved difficult to define. With states “decriminalizing” portions of their traffic codes, many jurisdictions have found laws imposing “civil” infraction penalties for speeding and other minor offenses to be civil-regulatory.89 Laws providing penalties for driving under the influence of alcohol are viewed typicially as criminal-prohibitory, given the strong public safety concerns underlying such penalties.90 Penalties

85 See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 212 n.11 (1987) (noting “it is doubtful that Pub. L. 280 authorizes the application of any local laws to Indian reservations,” but finding it unnecessary to resolve issue) (following State v. Goham, 216 N.W.2d 869 (Neb. 1974)). 86 25 U.S.C. § 1323. Where retrocession has been effected, state court prosecutions commenced before its effective date are unaffected. State v. Wabashaw, 740 N.W.2d 583, 590–91 (Neb. 2007).

California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209–10 (1988).

87

Id. at 209.

88

Confederated Tribes of Colville Reserv. v. Washington, 938 F.2d 146, 148–49 (9th Cir. 1991) (state lacked jurisdiction over reservation speeding violation by a tribal member since (1) its legislature had “decriminalized” such violations, (2) speeding “is but an extension” of the otherwise permitted activity of driving, and (3) tribes had established a law enforcement structure for dealing with such offenses by members). Minnesota courts have been particularly active in the characterization of motor vehicle offenses. E.g., State v. Losh, 739 N.W.2d 730, 734–35 (Minn. Ct. App. 2007) (offense of driving after license revocation deemed criminal-prohibitory); State v. LaRose, 673 N.W.2d 157, 163 (Minn. Ct. App. 2003) (state marijuana laws are not civil-regulatory under Cabazon, and therefore state had criminal jurisdiction); State v. Stone, 572 N.W.2d 725 (Minn. 1997) (various motor vehicle–related statutes are civil-regulatory in nature and therefore outside the scope of state’s Public Law 280 criminal jurisdiction); State v. Robinson, 572 N.W.2d 720 (Minn. 1997) (statute governing failure to yield to emergency vehicle was civil-regulatory); State v. R.M.H., 617 N.W.2d 55 (Minn. 2000) (offenses of speeding and driving without license are civil-regulatory and not within Public Law 280’s grant of jurisdiction, but federal law did not preempt state’s jurisdiction over nonmember Indian driver); but see State v. George, 905 P.2d 626, 631 (Idaho 1995) (distinguishing Colville and finding traffic infraction laws to be criminal-prohibitory). 89

90 State v. Couture, 587 N.W.2d 849 (Minn. Ct. App. 1999) (offense of driving while intoxicated is criminal-prohibitory).

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for driving after revocation of a license can be either criminal-prohibitory or civil-regulatory, depending on the underlying offense that led to the revocation.91 Laws intended to prohibit certain conduct in order to protect the safety of individuals or the integrity of property present easier cases, with the courts firmly ruling that such statutes fall within the criminal-prohibitory category.92 Because Public Law 280 was intended to expand, not contract, existing state adjudicatory jurisdiction, presumably the civil‑regulatory/criminal‑prohibitory distinction will not be construed as limiting the scope of inherent state authority to prosecute or regulate the conduct of non-Indians within Indian country.93 2. General state criminal jurisdiction outside of Public Law 280 In states where Public Law 280 or other congressionally conferred jurisdiction does not exist, state criminal jurisdiction within Indian country has

91 St. Germaine v. Circuit Ct., 938 F.2d 75, 77 (7th Cir. 1991) (state possessed jurisdiction to prosecute tribal member for driving while license revoked since (1) “Wisconsin seeks to protect the lives and property of highway users from all incompetent, incapacitated, and dangerous drivers anywhere on its highways on a reservation or off,” and (2) “[t]he state’s public policy in enforcing this criminal penalty and deterring dangerous drivers does no violence to any tribal vehicle regulation which the Tribe enforces”); State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002) (offense of driving after cancellation of driver’s license as inimical to public safety deemed criminal-prohibitory; offense implicates “heightened public policy concerns” because of, inter alia, direct threat of physical harm, and “[o]nce a person’s license is canceled or denied on these grounds, driving is prohibited and exceptions for limited licenses are not allowed”); State v. Johnson, 598 N.W.2d 680 (Minn. 1999) (driving after revocation of license for driving without insurance deemed a civil-regulatory offense); Bray v. Commissioner of Pub. Safety, 555 N.W.2d 757, 760 (Minn. Ct. App. 1996) (state could revoke license on the basis of implied consent statute, and rejecting distinction between civil and criminal laws as relevant, since “[t]he focus in a Pub. L. 280 analysis is not on the sanctions but on whether the conduct is regulated or prohibited”). 92 State v. Lasley, 705 N.W.2d 481, 490–92 (Iowa 2005) (statute prohibiting the sale of tobacco to minors is criminal-prohibitory); State v. Busse, 644 N.W.2d 79, 88 (Minn. 2002) (offense of driving after cancellation of driver’s license as inimical to public safety is criminal-prohibitory); State v. Robinson, 572 N.W.2d 720 (Minn. 1997) (underage drinking law criminal-prohibitory); State v. LaRose, 543 N.W.2d 426, 428 (Minn. Ct. App. 1996) (trespass statute criminal-prohibitory because it implements “the state’s public policy of protecting the owners of real property rights from interference with those rights”); State ex rel. Lykins v. Steinhorst, 541 N.W.2d 234, 240 (Wis. Ct. App. 1995) (extradition statutes criminal-prohibitory because they “seek to bar fugitives from seeking and finding sanctuary in Wisconsin”); State v. Marek, 777 P.2d 1253, 1255–56 (Idaho Ct. App. 1989) (felony‑injury‑to‑child statute prohibitory in nature); State v. Jones, 729 N.W.2d 1, 3 (Minn. 2007) (because sexual offender registration statute is criminal-prohibitory, tribal member residing within reservation who fails to register address is subject to state prosecution), cf. compare Burgess v. Watters, 467 F.3d 676, 687 (7th Cir. 2006) (declining to rely on Public Law 280 criminal jurisdiction in denying habeas corpus challenge to involuntary commitment under state sexually violent offender commitment statute; relying instead on state supreme court’s alternative ground that the commitment proceeding fell within the scope of Public Law 280 civil jurisdiction since, under the “generous” habeas review standard, the state court’s “conclusion does not lie outside the bounds of permissible differences of opinion”), with In re Commitment of Burgess, 665 N.W.2d 124, 132 (Wis. 2003) (status providing for civil commitment of sexually violent persons deemed criminal-prohibitory, since “[t]he ‘civil’ proceedings under [the commitment statute] are enveloped on both sides by criminal conduct”); see generally Arthur F. Foerster, Comment, Divisiveness and Delusion: Public Law 280 and the Evasive Criminal/Regulatory Distinction, 46 UCLA L. Rev. 1333, 1363 (1999) (concluding that “[w]hen the conduct is generally permitted subject to some prohibitions, the law should be deemed regulatory” and that “[o]nly when the conduct is categorically prohibited should the law be deemed criminal”). 93 But see Serian v. State, 588 So.2d 251 (Fla. Dist. Ct. App. 1991) (applying civil‑regulatory/ criminal‑prohibi­tory distinction to reject non‑Indian’s defense to the crime of practicing optometry without a license but not addressing the issue of whether such distinction was legally relevant).

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been determined by case law. During the Trade and Intercourse Act period, it was generally assumed that states did not have criminal jurisdiction within Indian country.94 Beginning in the 1880s, in a series of murder cases involving a non-Indian victim and a non-Indian offender, the Court established that states do have limited criminal jurisdiction within Indian country.95 State criminal jurisdiction within Indian country is limited to crimes by non-Indians against non-Indians and victimless crimes by non-Indians.96 For purposes of criminal jurisdiction, a person is an “Indian” if the person has a significant percentage of Indian blood and is recognized as an Indian by the general government or a tribe.97 If an accused with Indian heritage belongs to a tribe not recognized by the United States or an Indian tribe that has been terminated, that individual is not an “Indian” for federal criminal jurisdiction purposes.98 Once it is determined that the accused is not an Indian, the state may exercise criminal jurisdiction if the victim was also a non-Indian or the offense was “victimless.”99 States do not have criminal jurisdiction over nonIndian offenders if their crime was committed in Indian country against an Indian victim.100 Outside Indian country, states may exercise criminal jurisdiction over crimes committed by Indians, absent treaty provisions authorizing the specific conduct at issue.101

94 See Act of July 22, 1790, 1 Stat. 137; Act of Mar. 1, 1793, 1 Stat. 329; Act of May 19, 1796, 1 Stat. 469; Act of Mar. 3, 1799, 1 Stat. 743; Act of Mar. 30, 1802, 2 Stat. 139; Act of Apr. 29, 1816, 3 Stat. 332; Act of Mar. 3, 1817, 3 Stat. 383; Act of June 30, 1834, 4 Stat. 729; cf. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (overturning criminal conviction of trader who did not procure a state trading license under Georgia law). 95 United States v. McBratney, 104 U.S. 621 (1881) (finding that Colorado, rather than the United States, had criminal jurisdiction involving the murder of a non-Indian by a non-Indian); Draper v. United States, 164 U.S. 240 (1896) (Montana had criminal jurisdiction over murder by a non-Indian of a non-Indian); People ex rel. Ray v. Martin, 326 U.S. 496 (1946) (states have criminal jurisdiction over crimes committed by nonIndians where the victim is also a non-Indian). 96 Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984); see State v. Vandermay, 478 N.W.2d 289 (S.D. 1991) (state had criminal jurisdiction over non-Indian operating an overweight vehicle because the offense was a victimless crime). 97 E.g., United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979); State v. Daniels, 16 P.3d 650 (Wash. Ct. App. 2001); see generally chapter 2, part I. 98 St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 1988); cf. State v. Velky, 821 A.2d 572, 576 (Conn. 2003) (noting that member of non–federally recognized tribe “does not deny that, in general, state criminal laws of general applicability apply with full force on the reservations of tribes that are recognized only by the State”). 99 Lewis v. State, 55 P.3d 875 (Idaho 2002) (finding state criminal jurisdiction since offender was not enrolled in any tribe and was not generally recognized as an Indian by a tribe); cf. United States v. Keys, 390 F. Supp. 2d 875 (D.N.D. 2005) (continued detention of suspect by Bureau of Indian Affairs police unreasonable after they determined suspect was not an Indian). 100 State v. Sorkhabi, 46 P.3d 1071, 1074 (Ariz. Ct. App. 2002) (finding that resisting arrest was not a victimless crime and that state did not have criminal jurisdiction because arresting officer was Indian); State v. Larson, 455 N.W.2d 600, 601 (S.D. 1990) (“the prevailing rule has always been that federal courts have exclusive jurisdiction over an offense committed in Indian country by a non-Indian, against the person or property of an Indian”). 101 State v. Frank, 52 P.3d 404 (N.M. 2002) (crime occurred outside of Indian country since community did not qualify as a “dependent Indian community”); State v. Spotted Horse, 462 N.W.2d 463 (S.D. 1990) (state

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D. Summary Analysis A shorthand guide to determining criminal jurisdiction in Indian country follows. It is assumed for purposes of the summary that tribes have criminal jurisdiction over nonmember Indians to the same extent they have with respect to members. As with most such guides, the reader is cautioned that its purpose is to present a general overview of principles derived from existing decisional authority and that the law in this area, as in others, evolves.102 1. Crimes committed by an Indian against an Indian State courts do not have jurisdiction, absent assumption under Public Law 280 or other special jurisdictional legislation. Outside the six mandatory Public Law 280 states, federal courts have jurisdiction if the crime is enumerated under the Major Crimes Act or under laws of general, as opposed to federal enclave, applicability. Tribal courts have jurisdiction over crimes committed by an Indian against an Indian otherwise cognizable under the General Crimes Act; whether tribal courts have jurisdiction concurrent with the United States over conduct constituting a major crime is undetermined. 2. Crimes committed by an Indian against a non-Indian State courts have no jurisdiction, absent assumption under Public Law 280 or other special jurisdictional legislation. Outside the six mandatory Public Law 280 states, federal courts have jurisdiction under the Major Crimes Act if the crime is one of the enumerated major crimes or the federal statute is one of general applicability. Federal courts also have jurisdiction under the General Crimes Act unless a tribal court has already punished the offender or treaty provisions grant exclusive jurisdiction to a tribe. Tribal courts have concurrent jurisdiction with the United States for offenses cognizable under the General Crimes Act; whether tribal courts have jurisdiction concurrent with the United States over conduct constituting a major crime is undetermined. 3. Crimes committed by a non-Indian against an Indian Although the United States Supreme Court has not addressed the issue, lower courts have usually held that state courts have no jurisdiction. Federal courts have jurisdiction under the General Crimes Act and any federal statute

had criminal jurisdiction over misdemeanor committed off reservation but did not have jurisdiction over driving under the influence since municipal officer did not determine that offender was driving under the influence until he had stopped offender within the boundaries of the Standing Rock Sioux Reservation); cf. State v. Walker, 153 P.3d 614, 618 (Mont. 2007) (a tribal conviction for driving under the influence of alcohol can be used for enhancement purposes in state prosecution for a subsequent offense). 102 See generally M. Wesley Clark, Enforcing Criminal Law on Native American Lands, FBI Law Enforcement Bulletin 22, 27 (Apr. 2005) (providing a flowchart for general rules regarding Indian country criminal jurisdiction); Cunningham, supra note 16, at 2189–92 (providing overview of criminal jurisdiction in Indian country).

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of general applicability. Tribal courts have no jurisdiction over crimes committed by non-Indians. 4. Crimes committed by a non-Indian against a non-Indian State courts have jurisdiction. Federal courts have jurisdiction under the General Crimes Act or federal criminal statutes of general applicability. Tribal courts have no jurisdiction. 5. Victimless crimes committed by Indians State courts have no jurisdiction, absent assumption under Public Law 280 or other special jurisdictional legislation. Outside the six mandatory Public Law 280 states, federal courts likely have jurisdiction under the General Crimes Act, unless the alleged offender has already been punished or treaty provisions grant exclusive jurisdiction to a tribe; federal courts have jurisdiction under any statute of general applicability. Tribal courts have jurisdiction concurrent with the United States over offenses cognizable under the General Crimes Act. 6. Victimless crimes committed by non-Indians State courts have jurisdiction. Federal courts have jurisdiction concurrent with the states under the General Crimes Act or any statute of general applicability. Tribal courts have no jurisdiction. II. SPECIAL QUESTIONS OF STATE AND FEDERAL AUTHORITY IN INDIAN COUNTRY Other important areas touching upon criminal law in which difficult issues may arise include liquor‑related offenses, the jurisdictional consequences of conduct occurring both within and without Indian country, and matters incident to criminal proceedings, such as on-reservation arrests for off-­reservation crimes and the authority of state and tribal law enforcement officials, especially with respect to motor vehicle operation, to stop and detain persons temporarily until officers from the governmental entity with criminal jurisdiction can be summoned. A. Liquor-Related Offenses The introduction of liquor into Indian country has long been a subject of federal statutory regulation.103 The Supreme Court characterized such regulation as reflecting a “historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country”

Rice v. Rehner, 463 U.S. 713, 722 (1983).

103

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and as divesting the “Indians of any inherent power to regulate in this area.”104 Against that historical backdrop, Congress enacted 18 U.S.C. section 1161 in 1953, which now provides: The provisions of sections 1154, 1156, 3113, 3488, and 3669, of [Title] 18, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register.

Sections 1154 and 1156 generally proscribe the sale, dispensing, or possession of alcohol in Indian country.105 The Supreme Court held in United States v. Mazurie106 that section 1161 authorizes tribal regulation of liquor sales by nonmembers on fee lands owned by them within the amended definition of Indian country under 18 U.S.C. §§ 1154(c) and 1156.107 In Rice v. Rehner,108 the Court held that states could require a federally licensed Indian trader, who was

Id. at 724.

104

Section 1154(a) and (b) states:

105

(a) Whoever sells, gives away, disposes of, exchanges, or barters any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, except for scientific, sacramental, medicinal or mechanical purposes, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom an allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian who is a ward of the Government under charge of any Indian superintendent, or to any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and whoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined under this title [not more than $500] or imprisoned not more than one year, or both; and, for each subsequent offense, be fined under this title [not more than $2000] or imprisoned for not more than five years, or both. (b) It shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under the authority, in writing, from the Department of the Army or any officer duly authorized thereunto by the Department of the Army, but this subsection shall not bar the prosecution of any officer, soldier, sutler or storekeeper, attache, or employee of the Army of the United States who barters, donates, or furnishes in any manner whatsoever liquors, beer, or any intoxicating beverage to any Indian. 419 U.S. 544 (1975).

106

Id. at 557 (“[Prior] cases . . . make clear that when Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter”); see generally Chapter 2, part III (discussing scope of Indian country under 18 U.S.C. §§ 1154(c) and 1156). 107

463 U.S. 713 (1983).

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also a tribal member, to obtain a state license as a condition to selling liquor for off‑premises consumption.109 Although federal prosecution undoubtedly can be initiated under sections 1154 and 1156 where compliance with applicable state and tribal liquor regulations has not occurred,110 unanswered questions exist as to the scope of state and tribal jurisdiction in such matters. Rice indicates that tribal members may be subject to state criminal prosecution for violation of state liquor laws,111 and one state court and the Ninth Circuit Court of Appeals have so held.112 Whether tribes have similar jurisdiction over non-Indians is unlikely in view of the Supreme Court’s statement in Duro v. Reina113 that “[w]e have approved delegation to an Indian tribe of the authority to promulgate rules that may be enforced by criminal sanction in federal court [in Mazurie], but no delegation of authority to a tribe has to date included the power to punish non‑members in tribal court.”114 B. Criminal Conduct Occurring Within and Without Indian Country On occasion criminal transactions will occur partially within and partially without Indian country. In such instances, the relative bounds of federal, state, and tribal jurisdiction are determined by analyzing the elements of the involved

109 Id. at 733–34 (“By enacting § 1161, Congress intended to delegate a portion of its authority to the tribes as well as to the States, so as to fill the void that would be created by the absence of the discrimina­tory federal prohibition [against the sale of alcohol to Indians]. Congress did not intend to make tribal members ‘super citizens’ who could trade in a traditionally‑regulated substance free from all but self‑imposed regulations”). 110 United States v. Mazurie, 419 U.S. 544, 547–48 (1975) (federal prosecution under § 1154 commenced on the basis of failure to comply with tribal liquor ordinance). 111 First, Rice held that “the assumption that the States have no power to regulate the affairs of Indians on a reservation . . . would be unwarranted in the narrow context of the regulation of liquor.” 463 U.S. at 723. Second, Rice cited with approval the United States Department of the Interior’s 1958 treatise, Federal Indian Law, which had con­cluded that, by virtue of § 1161, compliance with state liquor law, but not tribal liquor ordinances, would protect a person from state, but not federal, “prosecution,” thereby leaving the negative implication that noncompliance with state law could result in state “prosecution.” 463 U.S. at 729–30. The Court simultaneously disapproved a Department of the Interior opinion (78 Interior Dec. 39 (1971)), which held that Montana could not subject the Chippewa Cree Tribe of the Rocky Boy’s Reservation or its members to state liquor regulation. 463 U.S. at 730 n.13. Finally, the Court expressly rejected the contention that only federal sanctions were available to remedy noncompliance with state liquor law by tribal members. Id. at 731–33. 112 Brown v. Dist. Ct., 777 P.2d 877 (Mont. 1989); Fort Belknap Indian Cmty. v. Mazurek, 43 F.3d 428, 432–35 (9th Cir. 1994).

495 U.S. 676 (1990).

113

Id. at 694; but see City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 559 (8th Cir. 1993) (tribal court might have jurisdiction over non-Indian liquor establishments on fee lands); see generally Mark T. Baker, Note, The Hollow Promise of Tribal Power to Control the Flow of Alcohol Into Indian Country, 88 Va. L. Rev. 685, 720–21 (2002) (criticizing City of Timber Lake as overbroad to the extent it held that tribes possessed authority to regulate nonmember sale of alcohol within non-Indian communities as defined in § 1156, but suggesting that delegation of federal authority exists elsewhere within Indian country under § 1161; “although tribes have been delegated some power to regulate alcohol on fee-patented lands generally, it does not necessarily follow that they have the power to regulate alcohol on fee-patented lands in nonIndian communities”). 114

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crimes and determining the location at which each element was fulfilled or completed.115 This analytical approach, perhaps because it is embedded in a substantial body of statutes and decisional authority dealing more broadly with the reach of state criminal jurisdiction, has not proved troublesome for courts to employ. To the extent a defendant contends that state jurisdiction is lacking because a crime occurred within Indian country, the defendant, rather than the prosecution, likely bears the burden of establishing that fact.116 C. Incidental Law Enforcement Activities A past source of controversy was the power of states to effect arrests of Indians within Indian country for offenses committed elsewhere. Because no federal statutory scheme prevents state officers from entering reservations to investigate or prosecute violations of state law occurring off the reservation,117 the question was whether state arrest of tribal members for off-reservation violations constituted an impermissible interference with tribal self‑government rights.118 Most courts had concluded that tribal sovereignty was not infringed

115 United States v. Van Chase, 137 F.3d 579, 582 (8th Cir. 1998) (evidence concerning off-reservation conduct was admissible since “[t]he entire brutal sequence was not interrupted by the reservation boundary and amounted to a single course of conduct” and the “portion of the events that took place off the reservation . . . show[ed] the context of the charged crimes”); Brown v. Burns, 996 F.2d 219, 220 (9th Cir. 1993) (finding state jurisdiction over drunken driving violation that commenced outside Indian country but continued into and concluded within Indian country); United States v. Torres, 733 F.2d 449, 459–60 (7th Cir. 1984) (holding that federal jurisdiction existed to prosecute two crimes, conspiracy to commit murder and kidnaping, that occurred within the Menominee Reservation because, as to the conspiracy charge, at least one of the conspirators committed an overt act in furtherance of the conspiracy within the reservation and because, as to the kidnaping charge, a portion of the offense occurred within the reservation); Young v. Neth, 637 N.W.2d 884, 889 (Neb. 2002) (tribal police officer lacked authority to arrest non-Indian outside the reservation for crimes observed within reservation boundaries); State v. Eagle Speaker, 4 P.3d 1, 2–4 (Mont. 2000) (where crime of theft completed on-reservation, no offense occurred off reservation through defendant’s exercise of control over stolen property); State v. Robles, 901 P.2d 1200 (Ariz. Ct. App. 1995) (state and federal courts had concurrent jurisdiction over an Indian charged with conspiracy to commit murder, where conspiracy occurred off the reservation and the murder on the reservation); State v. Kills On Top, 793 P.2d 1273 1283–86 (Mont. 1990) (jurisdiction existed over various offenses arising from a criminal transaction commencing off‑reservation, continuing onto a reservation, and concluding off‑reservation; rejecting contention that state jurisdiction was preempted by the Major Crimes Act); State v. Kills On Top, 787 P.2d 336, 340–43 (Mont. 1990) (same); State v. Winckler, 260 N.W.2d 356 (S.D. 1977) (applying statutory extraterritorial provision in concluding that South Dakota state court had jurisdiction even though portion of a crime was committed in Indian country); cf. United States v. Miller, 26 F. Supp. 2d 415, 428 (N.D.N.Y. 1998) (rejecting challenge to money-laundering conspiracy prosecution on the basis of interference with tribal sovereignty where aspects of conspiracy occurred off-reservation). 116 State v. Verdugo, 901 P.2d 1165 (Ariz. Ct. App. 1995) (“burden to show facts that would establish the trial court’s lack of jurisdiction, because of exclusive federal jurisdiction under the Indian Country Crimes Act, is on defendant, not the state”); State v. St. Francis, 563 A.2d 249 (Vt. 1989) (defendant asserting lack of state jurisdiction bears burden of proving alleged crimes were committed by an Indian within Indian country); cf. United States v. Atkinson, 916 F. Supp. 959, 961 (D.S.D. 1996) (whether federal crime, whose applicability is limited to Indian country, has been committed within Indian country is question for trier of fact and must be proved beyond a reasonable doubt as element of crime).

Nevada v. Hicks, 533 U.S. 353, 366 (2001).

117

See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 214–15, 216 (1987) (“[o]ur cases . . . have not established an inflexible per se rule precluding state jurisdiction over tribes and tribal members in the absence of express congressional consent” except in the area of taxation, and directing the inquiry 118

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by such arrests, while some had suggested that compliance with tribal extradition procedures was required.119 Any lingering questions about state authority to enter tribal lands for the purpose of arresting tribal members charged with off-reservation crimes were resolved by the Supreme Court in Nevada v. Hicks.120 Although the specific issue addressed by the Court was tribal court authority over state officers alleged to have violated civil rights in effecting the arrest of a tribal member at his home, much of the Court’s analysis hinged on whether state execution of process121 on trust lands infringes upon tribal rights of self-government. Ultimately, the Court, citing the fact that reservations are part of a state’s territory, concluded that the “State’s interest in execution of process . . . no more impairs the tribe’s self-government than federal enforcement of federal law impairs state government.”122 The Court went on to find that state authority was necessary to prevent the reservation “from becoming an asylum for fugitives from justice,” citing with disapproval a prior lower court decision that had prevented state officers from entering a reservation to seize a tribal suspect for extradition.123 Without regard to Hicks, there will be instances where states choose to work with tribal police and tribal courts to arrest and extradite members charged

to proceed in part “in light of traditional notions of Indian sovereignty and the congressional goal of Indian self‑government”). 119 State v. Mathews, 986 P.2d 323, 337 (Idaho 1999) (“tribal sovereignty is not infringed when a state court issued search warrant is executed within Indian country where the state possesses jurisdiction over the underlying crime and where tribal law does not provide a procedure for executing the warrant within Indian country”); State ex rel. Old Elk v. District Court, 552 P.2d 1394 (Mont. 1976) (finding authority in the absence of a tribal extradition ordinance); Fournier v. Roed, 161 N.W.2d 458, 464–67 (N.D. 1968) (upholding validity of arrest in the absence of interference of tribal self‑government powers or impairment of rights secured under federal statutes); contra Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 685–86 (9th Cir. 1969) (finding no state arrest authority where tribe had adopted extradition procedures); State v. Yazzie, 777 P.2d 916, 917 (N.M. Ct. App. 1989) (same); Benally v. Marcum, 553 P.2d 1270, 1271–72 (N.M. 1976) (same); Primeaux v. Leapley, 502 N.W.2d 265, 270 (S.D. 1993) (suggesting that consideration in determining validity of tribal member’s arrest for off-reservation crime was fact that tribal police effected the arrest); see generally Judith V. Royster and Rory SnowArrow Fausett, Fresh Pursuit Onto Native American Reservations: State Rights “To Pursue Savage Hostile Indian Marauders Across the Border,” 59 U. Colo. L. Rev. 191, 228–36 (1988) (summarizing decisions and noting conflict). 120 533 U.S. 353 (2001); see generally David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267 (2001); Alex Tallchief Skibine, Making Sense out of Nevada v. Hicks: A Reinterpretation, 14 St. Thomas L. Rev. 347 (2001); Richard E. James, Comment, Sanctuaries No More: The United States Supreme Court Deals Another Blow to Indian Tribal Court Jurisdiction, 41 Washburn L.J. 347 (2002). 121 The Court adopted the following definition of process: “any means used by a court to acquire or exercise its jurisdiction over a person or over specific property.” 533 U.S. at 364, quoting Black’s Law Dictionary 1084 (5th ed. 1979); see generally Jon W. Monson, Note, Tribal Immunity from Process: Limiting the Government’s Power to Enforce Search Warrants and Subpoenas on American Indian Land, 56 Rutgers L. Rev. 271, 295–302 (2003) (proposing six general canons for federal and state service of process within Indian country).

533 U.S. at 362, 364.

122

Id. at 364 and n.6.

123

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with off-reservation crimes. Presumably, tribal police will in many cases be better positioned to locate and arrest tribal members.124 Cooperative agreements establishing procedures for the on-reservation arrest of tribal members for off-reservation crimes thus can be particularly useful.125 The availability and use of tribal extradition procedures will not normally be a concern where the arrest of a tribal member within reservation boundaries is the result of a hot pursuit originating outside the reservation. Even before Hicks, most courts reviewing such arrests upheld their validity.126 Where state authority to arrest tribal members was questioned, it was often held that the initial lack of authority to arrest tribal suspects on reservation lands did not undermine the validity of the subsequent criminal prosecution.127 Regardless of

124 It is settled that, by virtue of the Extradition Clause of the United States Constitution, art. IV, § 2, and the Federal Extradition Act, 18 U.S.C. § 3182, asylum state courts have an extremely limited role in resolving challenges to extradition requests—i.e., determining “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.” Michigan v. Doran, 439 U.S. 282, 289 (1978). Although neither the Extradition Clause nor the Federal Extradition Act applies to Indian tribes, the standards developed under them presumably inform the scope of a tribe’s legitimate interest when acting upon a request from a state to extradite an alleged fugitive. 125 Cooperative agreements may also address the issue of returning tribal members charged with on-reservation crimes to tribal custody for prosecution. Cf. United States v. Percy, 250 F.3d 720, 723 (9th Cir. 2001) (“[h]ad the proper procedure been followed,” tribal officer would have initiated state extradition procedures before returning tribal member offender to reservation for prosecution, but observing further that “[o]nce [the defendant] was within the territorial jurisdiction of the . . . Tribal Court, that court could legally exercise its jurisdiction”). 126 City of Cut Bank v. Bird, 38 P.3d 804 (Mont. 2001) (city police officer had authority under hot pursuit doctrine to arrest defendant on the reservation for off-reservation offense); State v. Waters, 971 P.2d 538, 542–43 (Wash. Ct. App. 1999) (state authority had under fresh pursuit doctrine to arrest tribal member on reservation trust property); State v. Lupe, 889 P.2d 4, 7 (Ariz. Ct. App. 1995) (noting that “[t]he State has a particularly strong policy interest in not allowing suspects to narrowly escape arrest and avoid this State’s jurisdiction over offenses committed within this State by fleeing across the border to another jurisdiction”); contra State v. Spotted Horse, 462 N.W.2d 463 (S.D. 1990) (municipal police officer lacked authority to follow tribal member onto reservation for violation of state vehicle registration laws because state’s fresh pursuit statute did not reach onto Indian reservation lands); and State v. Cummings, 679 N.W.2d 484 (S.D. 2004) (declining to overrule Spotted Horse on the basis of Hicks); see generally Royster and Fausett, supra note 119, at 239–59 (analyzing three jurisdictional models with respect to fresh pursuit, and suggesting that only the international model appropriately accommodates tribal sovereignty interests). 127 See, e.g., Davis v. Muellar, 643 F.2d 521, 527 (8th Cir. 1981) (“we are unable to find that the United States has by policy, by treaty, by statute or by court decision decreed North Dakota’s loss of personal jurisdiction over appellant as a penalty for having arrested appellant in violation of the tribal extradition ordinance”); Weddell v. Meierhenry, 636 F.2d 211, 214–15 (8th Cir. 1980) (mere fact of illegal arrest does not vitiate conviction); Primeaux v. Leapley, 502 N.W.2d 265, 270 (S.D. 1993) (even if defendant’s arrest in Indian country was illegal it does not render subsequent conviction void); State v. Spotted Horse, 462 N.W.2d 463, 468–69 (S.D. 1990) (finding jurisdiction over tribal member with respect to driving under the influence of alcohol and failure to display current registration offenses committed off‑reserva­tion where officer engaged in fresh pursuit onto reservation and took member into custody, but suppressing results of sobriety test since the results were the fruits of an unlawful arrest); State v. Winckler, 260 N.W.2d 356, 363–64 (S.D. 1977) (concluding that, even if arrest was invalid, “[i]t is no defense in a criminal prosecution that defendants were illegally brought before the court”); contra Farmington v. Benally, 892 P.2d 629, 632 (N.M. Ct. App. 1995) (recognizing general rule that court may exercise jurisdiction over a person who has been illegally arrested, but making an exception “when the suspect is an Indian illegally arrested on Indian land”); cf. City of Cut Bank v. Bird, 38 P.3d 804 (Mont. 2001) (ordinarily failure to comply with tribal extradition process will re-

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the precise jurisdictional contours in hot pursuit, extradition, or on-­reservation arrest matters, these are areas where mutual assistance agreements between states, tribes, and the United States, when the Bureau of Indian Affairs provides law enforcement services, seem particularly worthwhile, since each government has a common interest in ensuring that their respective criminal justice systems work harmoniously.128 State-tribal agreements are also particularly useful for resolving another difficult jurisdictional issue, namely the authority of tribal police officers to stop and detain non-Indian suspects until they can be turned over to state or federal officials with authority to arrest and prosecute the offender.129 In Duro the Court remarked that “[w]here jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.”130 The Supreme Court’s observation was relied upon by the Washington Supreme Court in ruling that tribal police, while not cross-deputized or otherwise commissioned by the state, have the authority to stop and detain non‑Indians.131 Courts have held

quire evidence suppression, but suppression not appropriate where custody of offender was given to tribal officer who then transported offender off-reservation to the county jail); see generally Kerstin G. LeMaire and Mark D. Tallan, Issues Involving Extradition and Their Impact on Tribal Sovereignty, 76 U. Det. Mercy L. Rev. 803, 812–20 (1999) (discussing cases that address issue of state arrests of tribal members within Indian country). 128 The Secretary of the Interior is authorized to enter into cooperative agreements with “a Federal, tribal, State, or other governmental agency” to aid law enforcement in Indian country, although the affected tribe is given veto power over the use of nonfederal personnel under such an agreement. 25 U.S.C. § 2804(a), (c). See United States v. Roy, 408 F.3d 484, 490 (8th Cir. 2005) (contract entered into by a tribe with the Department of the Interior under the Indian Self-Determination and Education Assistance Act to provide law enforcement services was “sufficient to authorize [tribal] officers . . . to exercise the Bureau’s law enforcement functions under 25 U.S.C. § 2804(a)”); cf. Allender v. Scott, 379 F. Supp. 2d 1206, 1216–17 (D.N.M. 2005) (tribal officer subject to a § 2804(a) agreement who rendered assistance to state law enforcement agency “when requested” acted as federal employee and was entitled to coverage under the Federal Tort Claims Act). A more detailed discussion of cooperative agreements concerned with law enforcement activities appears in Chapter 14. 129 See United States v. Peltier, 344 F. Supp. 2d 539, 546–47 (E.D. Mich. 2004) (questioning the validity of a tribe entering into an agreement with local rather than state authorities); State v. Martinez, 112 P.3d 293, 295–96 (N.M. Ct. App. 2005) (N.M. Stat. Ann. § 29-1-11(C)(8), which authorizes chief of state police to commission tribal officers as state peace officers, did not preclude county sheriff from commissioning tribal officer as county deputy); State v. Branham, 102 P.3d 646, 650 (N.M. Ct. App. 2004) (only written, not oral, mutual aid agreements confer authority upon a state officer to enforce a tribal ordinance); State v. LaRose, 673 N.W.2d 157, 165–67 (Minn. Ct. App. 2003) (discussing state’s authority to enter into cooperative agreements with tribe for investigation and enforcement of state criminal violations); State v. Manypenny, 662 N.W.2d 183, 188 (Minn. Ct. App. 2003) (Public Law 280 state had authority to enter into cooperative agreement authorizing tribal law enforcement officers to arrest Indians for on-reservation crimes; Public Law 280 does not require states either to conduct all law enforcement activities themselves or to retrocede jurisdiction), aff’d, 682 N.W.2d 143, 150–51 (Minn. 2004) (rejecting claim that Public Law 280 or “other federal statutes that expressly provide for cooperative agreements between states and tribes” preempted state cooperative agreement statute).

Duro v. Reina, 495 U.S. 676, 697 (1990).

130

State v. Schmuck, 850 P.2d 1332 (Wash. 1993); accord State v. Pamperien, 967 P.2d 503 (Or. Ct. App. 1998); State v. Ryder, 649 P.2d 756, 758–60 (N.M. Ct. App. 1981), aff’d, 648 P.2d 774, 776–77 (N.M. 1982); State v. Horseman, 866 P.2d 1110 (Mont. 1993); see Strate v. A-1 Contractors, 520 U.S. 438, 456 n.11 (1997) (noting 131

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further that tribal officers may investigate possible criminal conduct by nonmembers.132 Similarly, state authority to stop and detain tribal members within reservation boundaries has been recognized, even where the state otherwise lacked criminal jurisdiction over tribal members.133

Schmuck and emphasizing that, in finding lack of tribal civil-adjudicatory authority over nonmember defendant involved in reservation motor vehicle accident, it did not “question the authority of tribal police to patrol roads within a reservation, including rights-of-way made part of a state highway, and to detain and turn over to state officers nonmembers stopped on the highway for conduct violating state law”); but see Young v. Neth, 637 N.W.2d 884, 889 (Neb. 2002) (tribal police officer lacked inherent authority to arrest non-Indian outside the reservation for state law offenses committed off-reservation; appropriate procedure would have been to detain non-Indian for later arrest by “ ‘proper authorities’ ”); City of Cut Bank v. Bird, 38 P.3d 804 (Mont. 2001) (evidence suppression not appropriate after stop of tribal member following chase beginning off-reservation, where custody of offender was given to tribal officer who then transported member off-reservation to the county jail); cf. United States v. Billadeau, 275 F.3d 692 (8th Cir. 2001) (Bureau of Indian Affairs officer had authority under Assimilative Crimes Act to arrest non-Indian motorist for driving while intoxicated, and non-Indian’s resistance properly led to indictment for interference with a federal officer in the performance of his official duties); State v. Nelson, 90 P.3d 206, 208 (Ariz. Ct. App. 2004) (offreservation traffic stop by tribal officer valid where state statute conferred peace officer status on officer); State v. Oakes, 89 P.3d 1274, 1276–77 (Or. Ct. App. 2004) (same). 132 United States v. Terry, 400 F.3d 575, 580 (8th Cir. 2005) (tribal officer can detain a non-Indian and hold the suspect for the proper state or federal authorities); Ortiz‑Barraza v. United States, 512 F.2d 1176, 1179–80 (9th Cir. 1975) (tribe had authority to investigate federal and state law violations as incident to power to exclude undesirable nonmembers); State v. Haskins, 887 P.2d 1189, 1195 (Mont. 1994) (tribal officers had authority to conduct investigation of suspected illegal conduct by non-Indian on reservation); cf. United States v. Becerra-Garcia, 397 F.3d 1167, 1172 (9th Cir. 2005) (tribal rangers acted as governmental officers, not private citizens, when making stop of non-Indian that resulted in an arrest by federal officers for transporting illegal aliens, where the Border Patrol “knew of and acquiesced in the [rangers’] conduct[] and [the rangers] . . . intended to assist law enforcement and did not act to further their own ends”); People v. Ramirez, 56 Cal. Rptr. 3d 631, 636 (Ct. App. 2007) (Congress intended the Exclusionary Rule to apply under the Indian Civil Rights Act to a search of a non-Indian vehicle by tribal officers conducted without probable cause). 133 United States v. Patch, 114 F.3d 131, 134 (9th Cir. 1997) (county deputy sheriff had authority under Terry v. Ohio, 392 U.S. 1 (1967), to stop and detain motorist to determine tribal membership with respect to alleged traffic offense within reservation); but see United States v. Anderson, 857 F. Supp. 52 (D.S.D. 1994) (state parole officers lacked authority to conduct on‑reservation warrantless search of tribal member’s home).

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Chapter 5 General Civil Regulatory Jurisdiction

Among the most difficult and recurring issues in Indian law is the scope of federal, tribal, and state civil regulatory authority in Indian country. Since Worcester v. Georgia, the Supreme Court has labored to articulate general principles to resolve these issues, but even today there remain significant dif‑ ferences within the Court both as to governing principles and how accepted principles should be applied. The serious doctrinal differences among members of the high court have made “[g]eneralizations on this subject . . . particularly treacherous.” Reasoned analysis of the myriad questions arising over the permissible scope of state and tribal civil regulatory authority is impossible, however, without some attempt to distill basic principles. Consequently, while all the cases discussed in this chapter are treated in later chapters focusing on specific regulatory concerns such as taxation, environmental regulation, and hunting and fishing rights, the general principles that underlie their analysis are largely common. These principles, moreover, have direct relevance to the scope of tribal adjudicatory jurisdiction discussed in Chapter 6. Analysis of civil regulatory authority in Indian country invariably begins with identifying relevant codified and uncodified statutes and, in some in‑ stances, pertinent treaty provisions. Where Congress has directly spoken, its wishes must be honored. Quite often, however, no federal statute or treaty will authorize or prohibit explicit assertion of state or tribal regulatory power

31 U.S. (6 Pet.) 515 (1832).



Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973).



Aside from laws appearing in the United States Code, many enactments affecting particular res‑ ervations or tribes are found only in the Statutes at Large. These uncodified statutes are often central to determining the scope of state, federal, and tribal authority in a specific situation. See, e.g., DeCoteau v. Dist. County Ct., 420 U.S. 425 (1975) (construing Act of March 3, 1891, 26 Stat. 1035, to determine whether portion of Lake Traverse Indian Reservation disestablished); Crow Tribe v. Montana, 819 F.2d 895, 898 (9th Cir. 1987) (construing Act of May 19, 1958, 72 Stat. 121, as restoring subsurface mineral estate to reservation status), aff’d mem., 484 U.S. 997 (1988). 

 E.g., Rice v. Rehner, 463 U.S. 713 (1983) (construing 18 U.S.C. § 1161 as investing states with regula‑ tory authority over on‑premises sale of alcoholic beverages by tribal retailer for off‑premises consumption); United States v. Mazurie, 419 U.S. 544 (1975) (upholding congressional delegation of legislative authority to tribes with respect to on‑reservation liquor transactions by nonmembers).

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in a particular situation, and the issue will become whether, under general judge‑made principles, states or tribes or both have that power. The basic stan‑ dards are summarized easily enough: (1) Congress possesses broad authority to establish the range of state, federal, and tribal authority in Indian country, including the power to delegate federal authority to tribes and the power to restore inherent tribal authority lost through application of federal policies; (2) tribes possess a substantial measure of inherent, or non–congressionally conferred, authority over their members but very limited power with respect to nonmembers; (3) states may regulate nonmembers engaged in Indian coun‑ try transactions with the resident tribe or its members unless the balance of federal, state, and tribal interests emanating from applicable federal statutes, regulations, treaties, or tribal self-government rights counsels preemption; (4) states may regulate purely nonmember activities within Indian country absent express congressional direction to the contrary; and (5) states generally may not regulate the Indian country activities of the resident tribe or its members absent exceptional circumstances or congressional authorization. Application of these concepts nonetheless has proved a vexing task for courts, created un‑ certainty as to the relative powers of states and tribes in Indian country, and engendered increasingly complex litigation. I. CONGRESSIONAL EXERCISE OF INDIAN COMMERCE CLAUSE POWER A. General Scope of Power’s Exercise Article I, section 8, clause 3 of the United States Constitution authorizes Congress to regulate commerce with Indian tribes, and that authorization is now recognized as the principal basis for the extensive array of federal stat‑ utes affecting Indians and Indian tribes. Treaties were an integral means of structuring relationships with Indian tribes early in the nation’s history. Con‑

 In the special area of taxation of the resident tribes or its members, the Supreme Court has estab‑ lished a per se prohibition absent express congressional authorization. See note 323 infra and accompanying text.  See generally Blake A. Watson, The Thrust and Parry of Federal Indian Law, 23 U. Dayton L. Rev. 437, 461–68, 472–81 (1998) (discussing what the author characterizes as “the development of seemingly incompatible precedents” concerning the scope of state authority in Indian country and the “inharmonious answers” given by the Supreme Court to questions over the scope of inherent tribal authority).  McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); see generally Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1064–1164 (1995) (discussing historical devel‑ opments preceding inclusion of the Indian Commerce Clause in the Constitution). McClanahan noted that federal power in Indian matters has also derived from the United States’ authority to make treaties under Article II, section 2, clause 2. 411 U.S. at 172 n. 7.; see also United States v. Lara, 541 U.S. 193, 201 (2004) (suggesting a third source of congressional authority that “would rest in part, not upon ‘affirmative grants of the Constitution,’ but upon the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government, namely powers that this Court has described as ‘necessary concomitants of nationality’ ”).

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gress precluded the Executive Branch from such activity, however, in 1871. Treaties nonetheless continue to play an important role in Indian law when resolving regulatory and adjudicatory jurisdiction questions. While Congress has precluded the Executive Branch from entering into treaties, Congress it‑ self has continued to use its power to legislate specific settlements of various disputes with tribes.10 Congress additionally has used its broad Commerce Clause power to enact legislation that affects virtually all activities within Indian country. A variety of these statutes, which often are implemented by detailed administrative regulations, restrict the ability of tribes or their members to contract,11 require licensure of traders doing business on reservations with Indians,12 prescribe conditions for the granting of rights‑of‑way on trust lands,13 provide for allot‑ ment of trust lands to Indian members and issuance of fee patents,14 terminate tribal status,15 and authorize the sale or surrender of allotted or unallotted lands and their leasing for grazing, mineral extraction, timber harvesting, or other purposes.16 Other statutes address such matters as education,17 descent and distribution,18 reorganization and incorporation of tribal governments,19 tribal

 Act of March 3, 1871, 16 Stat. 566 (codified as amended at 25 U.S.C. § 71); see Antoine v. Washington, 420 U.S. 194, 201–02 (1975) (describing circumstances leading to adoption of 1871 act); 1 Francis Paul Pru‑ cha, The Great Father: The United States Government and the American Indians 530–31 (1984) (explaining as the major reason for the 1871 statute the House of Representatives’ desire “to get an equal voice in Indian affairs” since treaties were subject only to Senate ratification). That the 1871 act was directed at limiting Executive Branch authority only was reiterated in United States v. Lara, 541 U.S. 193, 201 (2004), where the Court quoted Antoine for the proposition that “the statute ‘in no way affected Congress’ plenary powers to legislate on problems of Indians.’ ”  See, e.g., National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 855–56 (1985) (“the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions”). 10 E.g., Maine Indian Claims Settlement Act of 1980, 25 U.S.C. §§ 1721–1735; Northern Cheyenne Indian Reserved Water Rights Settlement Act of 1992, Pub. L. No. 102-374, 106 Stat. 1186 (1992), and Pub. L. No. 103-263, 108 Stat. 707 (1994). 11

25 U.S.C. §§ 81, 85.

25 U.S.C. §§ 261–264; 25 C.F.R. pt. 140; see Dep’t of Taxation & Fin. v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 75 (1994) (rejecting proposition that 25 U.S.C. § 261 prohibits all state regulation of Indian traders and concluding instead that the statute did not wholly immunize Indian traders “from state regulation . . . reasonably necessary to the assessment or collection of lawful state taxes”). 12

25 U.S.C. §§ 311–328; 25 C.F.R. pt. 169.

13

25 U.S.C. §§ 331–358; 25 C.F.R. pt. 152.

14

See, e.g., United States v. Von Murdock, 132 F.3d 534 (10th Cir. 1997) (upholding the Ute Termination Act, 25 U.S.C. § 677d). 15

25 U.S.C. §§ 391–416j; id. §§ 2101–2108; 25 C.F.R. pts. 162, 163, 166, 211, 212.

16

25 U.S.C. §§ 271–304b; id. §§ 2501–2511; 25 C.F.R. pts. 31–33, 36, 38–43, 46.

17

25 U.S.C. §§ 371–380; 25 C.F.R. pts. 15–17.

18

25 U.S.C. §§ 476–478b; 25 C.F.R. pts. 81, 82.

19

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involvement in the provision of federal services,20 child custody proceedings affecting Indian children,21 and gaming on Indian lands.22 Superimposed upon laws specifically directed to Indians and tribes are statutes with general ap‑ plication throughout the United States.23 Many of these statutes are silent with respect to their operation in Indian country, while others—especially in the area of environmental regulation—contain provisions authorizing recognition of tribes for programmatic responsibility purposes.24 B. Congressional and Tribal Regulation of Nonmembers An area of increasing significance in Indian law centers on the methods by which Congress may exercise its Indian Commerce Clause power to facili‑ tate tribal regulation of third parties who are not members of the regulating tribe. Three methods have been employed. The first involves delegation of federal power to Indian tribes. The second entails deferring the application of federal law in lieu of the exercise of inherent tribal authority. The third is congressional restoration of inherent tribal authority. Important and unresolved questions exist concerning the propriety of each method. 1. Congressional delegation The Supreme Court has stated that an “express congressional delega‑ tion” may serve as a basis for the exercise of tribal regulatory authority over nonmembers.25 The only instance where the Supreme Court has found a del‑ egation of federal power to tribes is under 18 U.S.C. § 1161, which prohibits liquor transactions within Indian country absent compliance with both state and tribal law.26 In sustaining this delegation, the Court observed that “when Congress delegated its authority to control the introduction of alcoholic bever‑ ages into Indian country, it did so to entities which possess a certain degree

25 U.S.C. §§ 450–450n; 25 C.F.R. pts. 273, 275, 276.

20

25 U.S.C. §§ 1901–1963; 25 C.F.R. pt. 23.

21

Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721; 25 C.F.R. pts. 291–292, 501–503, 513–519, 522–524, 531, 533, 535, 537, 539, 542, 556, 558–559, 571, 573, 575, 577. 22

23 See generally Chapter 1, part I.B.4 (discussing treatment of statutes of general applicability with respect to tribes).

See generally Chapter 10, part II.B.

24

Montana v. United States, 450 U.S. 544, 564 (1981).

25

United States v. Mazurie, 419 U.S. 544 (1975). Section 1161 reads:

26

The provisions of sections 1154, 1156, 3113, 3488, and 3669, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register. An exception from the general federal prohibition against introduction of intoxicants into Indian country exists for “non-Indian communities or rights-of-way through Indian reservations.” 18 U.S.C. § 1154(b).

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of independent authority over matters that affect the internal and social rela‑ tions of tribal life”—i.e., to entities that have some measure of sovereign status generally.27 That observation suggests that Congress need not establish, as it ordinarily must under nondelegation principles, standards that circumscribe and channel the delegated power’s exercise.28 Implicit in the very notion of a delegation nonetheless is the fact that the involved power does not create inherent authority but, instead, independently invests tribes with the power to regulate the involved activity.29 Thus, subsequent to Mazurie, the Supreme Court held that tribes lack inherent authority to regulate on-reservation liquor transactions.30 The scope of the power delegated presumably must be mea‑ sured by reference to the text, purpose, and, if necessary, legislative history of the underlying federal statute, together with any relevant limitations on congressional authority.31 Lower courts have found delegations of federal authority to tribes outside the context of section 1161, principally in the area of environmental regula‑ tion.32 The Ninth Circuit, in Bugenig v. Hoopa Valley Indian Tribe,33 also has

419 U.S. at 557.

27

See Loving v. United States, 517 U.S. 748, 772 (1996) (citing Mazurie for the proposition that Congress permissibly delegated to the President power to prescribe aggravating circumstances for capital crimes committed by military personnel, since “[t]he President’s duties as Commander in Chief . . . require him to take responsible and continuing action to superintend the military, including the courts-martial”). 28

29 South Dakota v. Bourland, 508 U.S. 679, 695 n.15 (1993); United States v. Wheeler, 435 U.S. 313, 326–28 (1978).

Rice v. Rehner, 463 U.S. 713, 721–22 (1983).

30

See Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1288 (D.C. Cir. 2000) (“as is the case in any situa‑ tion in which we are called upon to find congressional intent in construing a contested statute, we start with traditional sources of statutory interpretation, including the statute’s text, structure, purpose, and legislative history”). Constitutional constraints may exist because of Indian tribes’ unique extra-constitu‑ tional sovereign status. For example, enforcement of tribal regulations adopted pursuant to § 1161 against non-Indians, and perhaps nonmembers generally, appears limited through constitutional considerations to criminal proceedings in federal court under the federal liquor-related statutes referenced in the sec‑ tion. Duro v. Reina, 495 U.S. 676, 694 (1990) (noting absence of various constitutional protections in tribal prosecutions and absence of “the consent of the governed that provides a fundamental basis for power within our constitutional system”); but see Fort Belknap Indian Cmty. v. Mazurek, 43 F.3d 428, 435 (9th Cir. 1994) (suggesting in dictum that tribes possess criminal jurisdiction to enforce tribal liquor ordinances). Tribes, in other words, derive their only enforcement leverage by offering the compliant an affirmative defense against federal prosecution. States, in contrast, have independent enforcement power, with § 1161 serving only to remove any question about preemption and to provide a potential federal criminal forum to supplement the state judicial process. See Rice, 463 U.S. at 731–32; Fort Belknap Indian Cmty., 43 F.3d at 434; Brown v. Dist. Ct., 777 P.2d 877 (Mont. 1989). 31

32 7 U.S.C. § 136u(a) (Federal Insecticide, Fungicide and Rodenticide Act); 42 U.S.C. § 300j-11(a) (Safe Drinking Water Act); id. § 7601(d)(2) (Clean Air Act). The Supreme Court noted in Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 428 (1989), the possibility that section 518(e) of the Clean Water Act, 33 U.S.C. § 1377(e), might be construed as a delegation, but the Environmental Protection Agency subsequently determined that the provision does not delegate federal authority. Final Rule, Treat‑ ment of Indian Tribes as States for Purposes of sections 308, 309, 401, 402, and 405 of the Clean Water Act, 58 Fed. Reg. 67,966 (1993). These provisions, together with relevant regulations and decisional authority, are discussed in Chapter 10, Part II.B.

266 F.3d 1201 (9th Cir. 2001) (en banc).

33

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found a delegation of federal authority in a settlement act that “ratified and confirmed” a tribe’s constitution.34 In its view, use of that phrase, together with legislative history indicating that the statute was adopted to resolve confusion over which tribe had the right to make land and resource decisions on the involved reservation, gave “legal force to the Tribe’s governing body and gov‑ erning documents” and thereby to a tribal timber harvest plan controlling use by a nonmember of her reservation fee land.35 “[N]o particular verbal formula” was necessary, it reasoned, to satisfy the “express” delegation requirement,36 and the delegation fell within congressional Indian Commerce Clause power because Congress retained jurisdiction over all reservation land and because the delegated authority was rationally related to the protection of the tribe.37 In sustaining the delegation, the court found no need to consider whether the tribe possessed inherent authority to regulate the land at issue since, under its reading of Mazurie, “Congress can delegate to Indian tribes those powers that are within the sphere of the Indian Commerce Clause.”38 Bugenig’s reasoning is provocative, especially as to the breadth of delegable power, and it remains to be seen whether Congress will employ this authority more extensively in the future.39 2. Congressional deferral Just as Congress can delegate federal power to tribes, so too can it defer to the exercise of inherent tribal authority in lieu of federal regulation. The preeminent example of this approach is the treatment-as-a-state (TAS) provision in the Clean Water Act (CWA).40 Under that statute, states may adopt, inter alia, water quality standards and assume programmatic responsibilities pursuant to their own laws that otherwise would be performed by the Environmental Protection Agency (EPA).41 Tribes are accorded a generally similar entitlement to the extent they possess inherent authority to impose the particular regula‑

Id. at 1209 (construing 25 U.S.C. § 1300i-7).

34

Id. at 1214.

35

Id. at 1217.

36

Id. at 1218–22.

37

Id. at 1223 n.12.

38

See generally Alex Tallchief Skibine, Making Sense out of Nevada v. Hicks: A Reinterpretation, 14 St. Thomas L. Rev. 347, 368–70 (2001) (questioning determination in Bugenig that congressional delegation existed, and suggesting that issue might have been avoided by viewing congressional action as reaffirma‑ tion of tribal inherent authority). 39

33 U.S.C. § 1177.

40

See, e.g., id. § 1313 (providing for state adoption of water quality standards and implementation plans); id. § 1342 (state assumption of responsibility for issuance of pollutant discharge elimination system permits). 41

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tion.42 The standards for determining the existence of inherent authority are those articulated by the Supreme Court for use in other contexts,43 but their application by EPA has led to controversy.44 That controversy largely springs from the overlay of administrative de‑ cision-­making upon the difficulties often attendant to determining the scope of inherent tribal authority. The major source of friction thus lies in the pro‑ priety under applicable federal common law principles of EPA’s “generalized finding” in its TAS regulations that the mobile nature of water pollution sup‑ plies an adequate basis for the exercise of tribal authority over all dischargers within a reservation.45 That issue pits the deference due agency fact-finding against the plenary review available with respect to EPA’s understanding of controlling Indian law standards.46 Another question, singularly important to states, is whether tribal authority exists over waters in streams or lakes whose submerged lands are held by a state under the equal footing doctrine.47 3. Congressional restoration of inherent authority The sole instance of Congress’s attempting to restore inherent tribal sover‑ eignty to an existing tribe is, to date, its amendments to the Indian Civil Rights Act (ICRA)48 in response to Duro v. Reina.49 Under those amendments, Congress

42 Id. § 1377(e)(2); Final Rule, Treatment of Indian Tribes as States for Purposes of sections 308, 309, 401, 402, and 405 of the Clean Water Act, 58 Fed. Reg. 67,966, 67,970 (1993).

See 58 Fed. Reg. at 69,675–76.

43

E.g., Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001); Montana v. USEPA, 137 F.3d 1135 (9th Cir. 1998); City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996). 44

Montana v USEPA, 137 F.3d at 1140.

45

Compare, e.g., Dickinson v Zurko, 527 U.S. 150, 162 (1999) (Administrative Procedure Act’s “substantial evidence” test requires “a court to ask whether a ‘reasonable mind might accept’ a particular evidentiary record as ‘adequate to support a conclusion’ ”), with Montana v. USEPA, 137 F.3d at 1140 (“the scope of inher‑ ent tribal authority is a question of law for which EPA is entitled to no deference”). 46

47 See Wisconsin v. EPA, 266 F.3d 741, 747 (2001). The court of appeals found no difficulty with the assertion of tribal authority over a lake whose bed and banks were assumed, for purposes of the decision, to be owned by Wisconsin because, not having contended that such ownership “would preclude the federal government from regulating the waters within the reservation, [the state] cannot now complain about the federal government allowing tribes to do so.” Id. The difficulty with the court’s reasoning, however, is that inherent tribal authority differs wholly in nature and scope from Congress’s Commerce Clause power and that deference to tribal authority, not a delegation of federal authority, is involved under the CWA’s TAS provision. That Congress can regulate a navigable stream, regardless of state ownership, thus may have no significance as to the reach of a tribe’s inherent authority. 48 Pub. L. No. 101-511, § 8077, 104 Stat. 1856, 1892–93 (1990); Pub. L. No. 102-137, § 1, 105 Stat. 646 (1991) (codified at 25 U.S.C. § 1301). 49 495 U.S. 676 (1990). A significantly different, and seemingly far less difficult, issue is presented with respect to whether a tribe that had been terminated but restored subsequently to tribal status pos‑ sesses the inherent powers it enjoyed prior to termination. It appears unlikely that Congress lacks the authority to undo a termination act and place a tribe in the same position that it held prior to the act. In such an instance, any “restoration” of inherent authority is but an incident to the restoration of tribal status. See United States v. Long, 324 F.3d 475, 483 (7th Cir. 2003) (Congress, by restoring tribe to tribal status in Menominee Restoration Act, “merely sought to restore to the Menominee that which it had taken from the Tribe earlier”).

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redefined the term “powers of self-government” to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdic‑ tion over all Indians” and the term “Indian” to include “any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, United States Code, if that person were to commit an offense listed in that section in Indian country to which that section applies.”50 Duro had held that tribes lack inherent authority to exercise criminal jurisdiction over nonmember Indians.51 In substance, therefore, Congress determined to restore authority that the Supreme Court held has not existed since at least the nation’s founding as a result of the tribes’ dependent status and, therefore, that was not divested by prior congressional action.52 The amendments raised various constitutional issues as to which there was conflict between circuit courts. The Ninth Circuit Court of Appeals in United States v. Enas53 rejected a claim that the amendments violated separa‑ tion-­of-powers principles by infringing on the judiciary’s role, characterizing the Supreme Court’s Duro analysis as “a matter of [federal] common law based on history” and neither “constitutional” nor “statutory” decision-making.54 It acknowledged that “[i]t would be disingenuous to suggest that this question presents a simple answer” since “ ‘history’ falls outside the usual litany of authorities controlled by designated branches of government.”55 Accepting the premise that “within the realm of federal common law—and the federal common law of tribes—Congress is supreme[,]” the court reasoned that “Con‑ gress had the power to do exactly what it intended when it enacted the 1990 amendments.”56

25 U.S.C. § 1302(2), (4).

50

Duro v. Reina, 495 U.S. 676, 688 (1990) (“[i]n the area of criminal enforcement, . . . tribal power does not extend beyond internal relations among members”). The Court had determined previously in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), that tribes do not possess inherent authority for purposes of criminally prosecuting non-Indians. See generally infra notes 132–148 and accompanying text. 51

52 Duro, 495 U.S. at 685–86 (reiterating the holding in United States v. Wheeler, 435 U.S. 313 (1978), that tribes are “limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining necessary powers of internal self-governance”—such as the power “to prescribe and enforce rules of conduct for its own members [because such power] ‘does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status’ ”) (emphasis supplied).

255 F.3d 662 (9th Cir. 2001) (en banc).

53

Id. at 674.

54

Id.

55

Id. at 675. A concurring opinion, joined in by four judges on the en banc panel, argued that the amendments were valid without reference to the federal common law characterization relied upon in the principal opinion. It contended that, under the Indian Commerce Clause, Congress possesses plenary power not only “to restore prospectively” authority “historically recognized as inherent” but also to “recognize[] as inherent in the tribe’s sovereignty” any other authority. Id. at 679, 680 n.4 (Pregerson, J., concurring). Consistently with this approach, it cited approvingly the United States’ position that tribal “ ‘sovereignty is a vessel that Congress may fill or drain at its pleasure, subject to certain constitutional limitations.’ ” Id. at 680. 56

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The Eighth Circuit Court of Appeals, also sitting en banc, refused to fol‑ low Enas in United States v. Lara.57 In its view, “[o]nce the federal sovereign divests a tribe of a particular power, it is no longer an inherent power and it may only be restored by delegation of Congress’s power.”58 The court found “Duro’s determination of first principles regarding Indian sovereignty within the federal system of government is ultimately one for the [Supreme] Court”59 and deemed unpersuasive the Ninth Circuit’s characterization of Duro as nonconstitutionally based because “the distinction between a tribe’s inherent and delegated powers is of constitutional magnitude and therefore is a matter ultimately entrusted to the Supreme Court.”60 The Supreme Court resolved the split between the Eighth and Ninth Circuits in United v. Lara61 and upheld the ICRA amendments. Lara produced a majority opinion in which five members of the Court joined and three opinions either concurred in the judgment only or dissented.62 Taken as a whole, these opinions indicate substantial division within the Court over the boundaries of inherent tribal criminal jurisdiction and the power of Congress to restore that jurisdiction. Justice Breyer, writing on the majority’s behalf, construed the ICRA amendments as seeking “to adjust the tribes’ status” by “relax[ing] the restric‑ tions, recognized in Duro, that the political branches had imposed on the tribes’ exercise of inherent prosecutorial power.”63 The question, therefore, was “whether the Constitution authorizes Congress to do so.”64 Justice Breyer speci‑ fied three sources for Congress’s “broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’ ”65 “This Court,” he stated, “has traditionally identified the Indian Commerce Clause . . . and the Treaty Clause . . . as sources of that power[,]” with the first of these clauses providing Congress “ ‘plenary power to legislate in the field of Indian affairs.’ ”66 The relationship between congressional power and the Treaty Clause is less direct because the clause “does not literally autho‑ rize Congress to act legislatively” but is nonetheless significant, since “treaties

324 F.3d 635 (8th Cir. 2003) (en banc), rev’d, 541 U.S. 193 (2004).

57

Id. at 639.

58

Id. at 640.

59

Id. at 639.

60

541 U.S. 193 (2004).

61

62 Justice Breyer authored the majority opinion (id. at 196); Justices Kennedy and Thomas concurred in the judgment only (id. at 211 (Kennedy, J., concurring); id. at 214 (Thomas, J., concurring)); and Justice Souter dissented in an opinion joined by Justice Scalia (id. at 226 (Souter, J., dissenting)). Justice Stevens, who joined in the majority opinion, also issued a brief concurrence. Id. at 210 (Stevens, J., concurring).

Id. at 200.

63

Id.

64

Id.

65

Id.

66

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made pursuant to that power can authorize Congress to deal with ‘matters’ with which otherwise ‘Congress could not deal.’ ”67 In finding a third source of congressional authority over Indian affairs, Justice Breyer observed that “ ‘dur‑ ing the first century of America’s national existence . . . Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law’ ” and that “[i]nsofar as that is so, Congress’ legislative authority would rest in part, not upon ‘affirmative grants of the Constitution,’ but upon the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government, namely powers that this Court has described as ‘necessary concomitants of nationality.’ ”68 Justice Breyer then discussed in broad terms the historical exercise of congressional plenary power, using as one example the federal assimilation policy, and observed that “[s]uch major policy changes inevitably involve ma‑ jor changes in the metes and bounds of tribal sovereignty.”69 Other examples included congressional decisions to recognize or terminate tribes, to confer citizenship on Indians, and to grant “greater autonomy in [tribes’] inherent law enforcement authority (in respect to tribal members) by increasing the maxi‑ mum criminal penalties tribal courts may impose.”70 Justice Breyer observed that “Congress’ statutory goal—to modify the degree of autonomy enjoyed by a dependent sovereign that is not a State—is not an unusual legislative objec‑ tive.”71 Instances included congressional actions recognizing various types of sovereign status for pre-statehood Hawaii, the Northern Mariana Islands, the Philippines, and Puerto Rico.72 Against this backdrop of expansive congressio‑ nal power, he noted that Lara had not identified any “explicit language in the Constitution suggesting a limitation on Congress’ institutional authority to relax restrictions on tribal sovereignty previously imposed by the political branches”73 and that “the change at issue here is a limited one.”74 On the latter point he stressed that “this case involves no interference with the power or authority of any State” and added that the Court did not “now consider the question whether the Constitution’s Due Process or Equal Protection Clauses prohibit tribes from prosecuting a nonmember citizen of the United States.”75

Id. at 201.

67

Id.

68

Id. at 202.

69

Id. at 203.

70

Id.

71

Id. at 203–04.

72

Id. at 204.

73

Id.

74

Id. at 205.

75

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Justice Breyer next addressed the consistency of the majority’s conclusion with Oliphant and Duro. Both cases, he stated, “make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches’ own determina‑ tions.”76 Instead, the decisions predicated their holdings concerning the scope of tribal authority “in large part” upon treaties, Executive Branch practices, and federal legislation.77 Oliphant and Duro thus “based [their] descriptions of inherent tribal authority upon the sources as they existed at the time the Court issued its decisions,” and one “important source” for the decisions was federal legislation that “was subject to change.”78 Justice Breyer acknowledged language in other decisions that stressed the need for “delegated” power where inherent authority had been lost but stated that the decisions “simply did not consider whether a statute, like the present one, could constitutionally achieve the same end by removing restrictions on the tribes’ inherent authority.”79 Those cases accordingly did not alter the rule that Congress may “change ‘judicially made’ federal Indian law through this kind of legislation.”80 The majority opinion concluded by rejecting severability and constitu‑ tional claims raised by Lara. First, Justice Breyer found unpersuasive a sever‑ ability theory that would have stripped the word “inherent” from the amend‑ ments, leaving in place only a federal delegation.81 Lara’s argument failed since, as held earlier, Congress did have the power to restore inherent authority.82 Second, Justice Breyer deemed consideration of due process and equal protec‑ tion objections to the statute inappropriate because, however resolved, they did not affect the nonfederal nature of Lara’s tribal court conviction and the consequential absence of double jeopardy.83

Id.

76

Id.

77

Id. at 206.

78

Id. at 207.

79

Id. The majority opinion concluded by rejecting severability and constitutional claims raised by Lara. First, Justice Breyer found unpersuasive a severability theory that would have stripped the word “inherent” from the amendments, leaving in place only a federal delegation. Id. at 208. Lara’s argument failed, since, as held earlier, Congress did have the power to restore inherent authority. Id. Second, Justice Breyer deemed consideration of due process and equal protection objections to the statute inappropriate because, however resolved, they did not affect the nonfederal nature of Lara’s tribal court conviction and the consequential absence of double jeopardy. Id. at 208–09. A one-paragraph concurrence by Justice Stevens expressed his view that the result reached by the majority opinion should not be considered as “exceptional” because “Congress can authorize the States to exercise—as their own—inherent powers that the Constitution has otherwise placed off-limits” and because “most” states, unlike tribes, “were never actually independent sovereigns, and those that were enjoyed that independent status for only a few years.” Id. at 210–11. 80

Id. at 208.

81

Id.

82

Id. at 208–09. Justice Stevens’ one-paragraph concurrence expressing his view that the result reached by the majority opinion should not be considered as “exceptional” because “Congress can authorize the States to exercise—as their own—inherent powers that the Constitution has otherwise placed off-limits” 83

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Justice Kennedy began his concurring opinion by stating that the lan‑ guage of the ICRA amendments made clear that Congress “was careful to rely on the theory of inherent sovereignty, and not on a delegation.”84 There was, he reasoned, no need to go further because once the tribal court prosecution was characterized as non-federal, no double jeopardy claim existed.85 He thus concurred in the judgment of reversal. Justice Kennedy nonetheless identified “difficult questions of constitutional dimension” raised by the majority’s analy‑ sis.86 He criticized the majority’s “euphemistic formulation that in amending the ICRA Congress merely relaxed restrictions on the tribes.”87 Instead, “what Congress has attempted to do is subject American citizens to the authority of an extraconstitutional sovereign to which they had not previously been subject.”88 Justice Kennedy additionally criticized the majority for ignoring the “political freedom”—i.e., “consent of the governed”—interests at stake that derive not from the Bill of Rights but from the “federal structure.”89 Justice Thomas’s concurring opinion focused on what he perceived as “two largely incompatible and doubtful assumptions” underlying Indian law: congressional power to “regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity” and the tribes’ retention of inherent criminal jurisdiction over their own members.90 Given these assumptions— “which I must accept as the case comes to us”—he concurred in the judgment.91 While expressing sympathy for “Justice Kennedy’s position that we need not resolve the question presented” to decide the case,92 Justice Thomas began his substantive analysis with Wheeler. He deemed that decision on its face “a sensible example of federal common lawmaking” but nevertheless problematic in light of Congress’s plenary power, since “[i]t is quite arguably the essence of sovereignty not to exist merely at the whim of an external government.”93 He appeared disinclined to accept the notion that tribes continued to possess

and because “most” States, unlike tribes, “were never actually independent sovereigns, and those that were enjoyed that independent status for only a few years.” Id. at 210–11. Id. at 211.

84

Id.

85

Id. at 214.

86

Id. at 213.

87

Id.

88

Id. at 214. One commentator has criticized Justice Kennedy’s analysis as “mystical” because, inter alia, “[h]is argument from deep constitutional structure and ongoing consent of the governed is not only obscure, but also seems to depend upon a direct communication with a sacred constitutional omnipresence to which at least some of the rest of us are not privy.” Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 467 (2005). 89

541 U.S. at 215.

90

Id.

91

Id. at 217 n.1.

92

Id. at 217–18.

93

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any inherent authority because of the notion’s inconsistency with “federal policy”—most particularly the 1871 statute prohibiting the President from enter‑ ing into treaties with tribes.94 “Although the tribes never fit comfortably within the category of foreign nations, the 1871 Act tends to show that the political branches no longer considered the tribes to be anything like foreign nations” and that “it is at least arguable that the United States no longer considered the tribes to be sovereigns.”95 Despite apparent misgivings over the continued existence of inherent tribal authority, Justice Thomas reasoned that, if Wheeler is accepted as cor‑ rectly decided, “tribes possess inherent sovereignty to punish anyone who vio‑ lates their laws” because the rationale for the separate sovereign doctrine runs counter to the “ ‘peace and dignity’ ” of the distinct sovereigns—a violation that “depends not in the least on whether the perpetrator is a member (in the case of the tribes) or a citizen (in the case of the States and the Nation) of the sover‑ eign.”96 He characterized Duro as “not a case about ‘inherent sovereignty’ ” but rather “a case about whether a specific exercise of tribal sovereignty conflicts with federal policy.”97 “[T]he political branches,” however, “have subsequently made clear that the tribes’ exercise of criminal jurisdiction against nonmember Indians is consistent with federal policy.”98 Justice Thomas concluded with a discussion of the need to “examine more critically our tribal sovereignty case law.”99 He initially articulated his dissatisfaction with the dissenting opinion, repairing to his contention that Duro was simply decided against a backdrop of “federal policy” that Congress opted to change and terming “ipse dixit” the dissent’s contention that “when we perform the separate-sovereign analysis ‘we are undertaking a constitutional analysis based on legal categories of constitutional dimension.’ ”100 Justice Thomas turned to the majority’s analysis and stated that “[t]he Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty.”101 After discussing briefly the three consti‑ tutional grounds for such power relied upon by the majority, he observed that the Court should “ask the logically antecedent question whether Congress (as opposed to the President) has [the] power” to adjust tribal sovereignty.102 “[U]ntil

Id. at 218.

94

Id. at 219.

95

Id. at 220.

96

Id. at 221.

97

Id. at 222–23.

98

Id. at 223.

99

Id. at 224.

100

Id.

101

Id. at 226.

102

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we begin to analyze these questions honestly and rigorously, the confusion that I have identified will continue to haunt our cases.”103 Justice Souter’s dissent relied on Duro and its statement that, having lost inherent authority to prosecute nonmember Indians, tribes could obtain such authority only through congressional delegation.104 Justice Souter argued that the Court should have made clear “that our previous understanding of the jurisdictional implications of dependent sovereignty was constitutional in nature, certainly so far as its significance under the Double Jeopardy Clause is concerned.”105 He was untroubled by the co-existence of references in Oliphant and Wheeler to tribes’ having lost certain inherent powers as a necessary incidence of their dependent status and of the Court’s careful attention to trea‑ ties, statutes and Executive Branch policies when resolving inherent author‑ ity issues, reasoning that “[t]reaties and statutes delineating the tribal-federal relationship are properly viewed as an independent elaboration by the political branches of the fine details of the tribes’ dependent position, which strips the tribes of any power to exercise criminal jurisdiction over those outside their own memberships.”106 Justice Souter identified as the constitutional component of inherentauthority analysis in a double jeopardy context the necessity of deciding whether the tribe is acting as an independent or a dependent sovereign; i.e., a court must answer the “question of how far a prosecuting entity’s inherent jurisdiction extends.”107 He accordingly viewed the independent-dependent sovereign distinction as possessing a “constitutional dimension” because the distinction was determinative of constitutional rights.108 In light of his conclu‑ sion that Duro’s holding rested on a constitutional foundation, Justice Souter

103 Id.; see generally Matthew L.M. Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121, 172 (2006) (drawing from Justice Thomas’s concurrence a “consistent-with-federal-policy test” that “provides an excellent avenue for restoring certainty and predictability in federal Indian Law and re-establishes Congress as the primary federal Indian policymaker, relieving the Court of this burden and temptation”); Frickey, supra note 89, at 470–71 (contending that Justice Thomas’s concurrence “performed an important service that was long overdue” and that “in challenging the concept of congressional plenary power, Justice Thomas did something no other Justice had ever undertaken”); Robert Laurence, Don’t Think of a Hippopotamus: An Essay on First-Year Contracts, Earthquake Prediction, Gun Control in Baghdad, the Indian Civil Rights Act, the Clean Water Act, and Justice Thomas’s Separate Opinion in United States v. Lara, 40 Tulsa L. Rev. 137, 152, 153 (2004) (criticizing Justice Thomas’s concurrence for its “intolerance of ambiguity,” and suggesting that “a cutting back on the reach of congressional power over the tribes might well be accompanied by a concomitant increase in state power”); Judith Resnik, Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction, 36 Ariz. St. L.J. 77, 93–96, 121 (2004) (posing various questions concerning the authority and role of the three branches with respect to Indian affairs generally and inherent tribal authority specifically).

541 U.S. at 227.

104

Id. at 228–29.

105

Id. at 228.

106 107

Id. at 229. Id.

108

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saw as the only methods for restoration of inherent authority the grant of independence, as was done with the Philippines, or the Court’s repudiation of “its existing doctrine of dependent sovereignty.”109 Congress had not em‑ ployed the first method in the ICRA amendments, and he saw “no reason for us to venture down a path toward the second.”110 Like the Eighth Circuit’s en banc majority, he would have “honor[ed] the drafters’ substantive intent by reading the Act as a delegation of federal prosecutorial power that eliminates the jurisdictional gap.”111 The Lara majority opinion’s reasoning and its ultimate conclusion are straightforward: Congress has broad authority under the Indian Commerce Clause and “preconstitutional powers necessarily inherent in any Federal Government”112 to restore or otherwise vest inherent authority in tribes pro‑ spectively. Although not addressed directly in the opinion, the only limitation on that power presumably lies in substantive restrictions located elsewhere in the federal Constitution, such as the Fifth Amendment’s Due Process Clause or federalism principles.113 The potential ramifications of this power are substan‑ tial since, to use the ICRA amendments as an example, Congress may avoid settled constitutional constraints on the authority to delegate federal power by simply “relaxing” any relevant limitation on inherent tribal authority.114 The amendments also may provide a model for prospective congressional overruling of other Supreme Court decisions, including Oliphant, where tribes have been found to lack inherent authority over nonmembers. Simply put, “inherent” tribal authority under the majority’s approach is in large measure whatever Congress deems it to be.115

Id.

109 110 111

Id.

Id. at 231. Id. at 201.

112

See, e.g., Alden v. Maine, 527 U.S. 706 (1999) (Congress may not subject states to suit for violation of federal statute enacted pursuant to Interstate Commerce Clause power); Seminole Tribe v. Florida, 517 U.S. 44 (1996) (Congress may not subject states to suit for violation of statute enacted pursuant to Indian Commerce Clause powers); New York v. United States, 505 U.S. 144 (1992) (Tenth Amendment limitations on congressional authority). 113

114 See Lara, 541 U.S. at 215–17 (Thomas, J., concurring) (questioning whether Congress can delegate federal criminal power to tribes). 115 Academic response to the Lara majority’s vindication of congressional power has recognized both the decision’s breadth and possibly double-edged character. E.g., Alex Tallchief Skibine, Redefining the Status of Indian Tribes Within “Our Federalism” Beyond the Dependency Paradigm, 38 Conn. L. Rev. 667, 668 (2006) (Lara embodies the principle that while “tribes were incorporated into the United States as sovereigns, having only lost the power to transfer their lands without federal approval and the power to sign treaties with foreign nations[,]” Congress retains plenary power over the scope of their sovereignty and the terms of their incorporation into the national political system); Ann E. Tweedy, Using Plenary Power as a Sword: Tribal Civil Regulatory Jurisdiction Under the Clean Water Act After United States v. Lara, 35 Envtl. L. 471, 484 (2005) (“[w]hile the decision considered only criminal jurisdiction, its effects potentially reach far beyond the criminal context”); William Bradford, “Another Such Victory and We Are Undone”: A Call to an American Indian Declaration of Independence, 40 Tulsa L. Rev. 71, 96 (2004) (“[i]f Lara is nothing more than the

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Even if the amendments are deemed to have effected a restoration of in‑ herent tribal authority, due process challenges appear inevitable and weighty.116 Duro established that, as citizens, nonmember Indians are no differently situ‑ ated than non-Indians for purposes of tribal criminal authority.117 Thus, the only distinction between them is racial, and settled equal protection principles incorporated into the Fifth Amendment impose a heavy burden on the United States to justify the disparate treatment imposed under the amendments.118

juxtaposition of a close embrace of an expansive understanding of plenary power and an internal judicial debate over the delineation of the institutional boundary separating political from judicial powers within the canon of Federal Indian law, tribal sovereignists will still have struck, at best, a Faustian bargain”); Alex Tallchief Skibine, United States v. Lara, Indian Tribes, and the Dialectic of Incorporation, 40 Tulsa L. Rev. 47, 58 (2004) (“Justice Breyer’s Lara majority opinion put a heavy emphasis on the existence of congressional plenary power, proving that contrary to what some may want to imagine, while the power of Congress may no longer be plenary when it comes to trampling on the constitutional rights of individual Indians, it is still very much plenary when it comes to controlling the internal affairs of the tribes”) (footnotes omitted); Kevin K. Washburn, Lara, Lawrence, Supreme Court Litigation, and Lessons from Social Movements, 40 Tulsa L. Rev. 25, 43, 44 (2004) (although characterizing Lara as “an unexpected victory obtained largely through savvy lawyering[,]” the reiteration of congressional plenary power “moves tribes further down a doctrinal dead end if the ultimate goal is a return to the constitutionally-envisaged role for Indian tribes”); Bethany R. Berger, United States v. Lara as a Story of Native Agency, 40 Tulsa L. Rev. 5, 9 (2004) (“the decision was not simply the familiar narrative that Congress can do whatever it wants with respect to Indian tribes, but that because Indian tribes are sovereigns, Congress can, as it does with other sovereigns, relax restrictions on their inherent sovereignty”); but see Frickey, supra note 89, at 465, 485 (deeming the separate concurring and dissenting opinions important because “[t]he Court decided Lara by the thinnest and most ephemeral of margins[,]” with two Justices in the majority no longer on the Court; “[i]f the mentality of Justices Ken‑ nedy or Souter were to prevail, the Court would have the final say in an area in which, of all the institu‑ tions involved, it surely knows the least and is least able to provide a forum for wide-ranging dialogue and jurisgenerativity”). 116 See generally L. Scott Gould, Tough Love for Tribes: Rethinking Sovereignty After Atkinson and Hicks, 37 New England L. Rev. 669, 686 (2003) (“If the Duro legislation operated as a delegation, it would be sus‑ ceptible to challenge as a violation of the equal protection component of the Fifth Amendment. But if the legislation simply corrected the Court’s errant view of tribes’ inherent power, equal protection would not become an issue”).

Duro, 495 U.S. at 693.

117

E.g., Adarand Constructors v. Pena, 515 U.S. 200, 224 (1995) (“any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny”). An open question is whether the term “Indian” as used in the Duro amendments includes only members of federally recognized tribes with “Indian” ancestry or whether “Indian” status can attach under the commonly used standard that requires some degree of “Indian” blood and tribal or federal recognition as an “Indian” but not neces‑ sarily tribal membership. The Senate report accompanying the 1991 permanent Duro legislation indicated that the two-part test was intended—a conclusion fortified by the definition’s reference to “Indian” status under 18 U.S.C. § 1153 where such test has been applied consistently by lower federal and state courts. S. Rep. No. 102-168, at 5–6 and App. C (1991). The United States, however, appeared to take the position in Lara that “Indian” status requires actual enrollment. Brief for United States, United States v. Lara, 541 U.S. 193 (2004) (No. 03-107), at 6 n.3, 35–38. That position would be consistent with the one articulated before Congress in connection with the Duro legislation. S. Rep. No. 102-168, at 6 (“The Office of Legal Counsel of the Department of Justice has taken the official position that a person must be an enrolled member of a Federally-recognized tribe to qualify as an Indian for purposes of section 1153 jurisdiction. Accordingly, the practice of the Department is not to seek an indictment under 18 U.S.C. 1153 of any Indian who is not an enrolled member of a Federally-recognized tribe”); see also Morris v. Tanner, 288 F. Supp. 2d 1133, 1141, 1142 n.7 (D. Mont. 2003) (applying rational basis standard to equal protection challenge to amendments where involved tribe limited prosecutions to members of federally recognized tribes, although expressing view that “the ICRA amendment would easily pass strict scrutiny”), aff’d, 160 Fed. Appx. 600 (9th Cir. 2005). Nonetheless, post-Lara decisions reflect prosecutions of persons who are not tribal members. See, e.g., United 118

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Whether the federal government can carry that burden is hardly free from doubt.119 Duro also intimated strongly that Congress does not have a free hand “to subject American citizens to criminal proceedings before a tribunal that does not provide constitutional protections as a matter of right.”120 Although it has been argued that making nonmember Indians amenable to criminal prosecu‑ tion under tribal law furthers the tribes’ self-governance interests,121 the fact remains that Congress has taken affirmative action that makes criminal pro‑ ceedings possible before an extra-constitutional entity that, as Duro observed, is not obligated under the ICRA to provide “guarantees of fair procedure” equal to those under the Constitution.122 It seems probable these issues will be raised in habeas corpus proceedings initiated by nonmember Indians under 25 U.S.C. § 1303 and challenging tribal court convictions.123 II. RETAINED INHERENT TRIBAL AUTHORITY As sovereigns preexisting this continent’s exploration and settlement by Euro-Americans, Indian tribes possess governmental powers that derive entirely from such status and not from any affirmative grant of authority by Congress.124 These powers are referred to now as inherent tribal authority,125 and the Supreme Court has formulated through federal common law general standards for determining the extent to which such power has been retained

States v. Pemberton, 405 F.3d 656, 559–60 (8th Cir. 2005); United States v. Bruce, 394 F.3d 1215, 1225 (9th Cir. 2005); United States v. Medearis, 380 F.3d 1049, 1060 n.16 (8th Cir. 2004). 119 Compare L. Scott Gould, The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution, 28 U.C. Davis L. Rev. 53, 63 (1993) (concluding that amendments are “inherently racist”); with Alex Tallchief Skibine, Duro v. Reina and the Legislation That Overturned It: A Power Play of Constitutional Dimensions, 66 S. Cal. L. Rev. 767, 791, 799 (1993) (reasoning that “because tribal members are all ‘Indians,’ the classification is at least partly based on race and the strict scrutiny test is applicable unless Congress’ action can be tied rationally to the fulfillment of its unique obligation toward Indians”).

Duro, 495 U.S. at 693.

120

See generally Skibine, supra note 119, at 801 (arguing that “[i]mposing . . . a requirement [to comply with the Bill of Rights] would . . . interfere with tribal self-government by transforming these courts from ‘tribal’ institutions into American ones”). 121

Duro, 495 U.S. at 693.

122

See Morris v. Tanner, 288 F. Supp. 2d 1133, 1141–44 (D. Mont. 2003) (rejecting Fifth Amendment–based equal protection and due process challenges to tribal court jurisdiction), aff’d, 160 Fed. Appx. 600 (9th Cir. 2005); see generally Eric Wolpin, Comment, Answering Lara’s Call: May Congress Place Nonmember Indians Within Tribal Jurisdiction Without Running Afoul of Equal Protection or Due Process Requirements?, 8 U. Pa. J. Const. L. 1071, 1092, 1097 (2006) (arguing that rational basis scrutiny likely will attend any Fifth Amend‑ ment–based equal protection challenge, since “the distinction between (nonmember) Indians and (nonmem‑ ber) non-Indians would constitute a political and not a race-based distinction[,]” and that, notwithstanding the lesser protections afforded tribal court criminal defendants under the ICRA than those provided under the federal constitution, “[a]fter Lara, asserting that the punisher in a tribal case is the federal government becomes exceedingly difficult”). 123

National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 851 (1985).

124

450 U.S. 544, 565 (1981).

125

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notwithstanding their dependent status.126 The crucible principally giving rise to these standards has been the exercise of tribal regulatory authority over nonmembers, and the “pathmarking case”127 in that regard has been Montana v. United States,128 where the Court established a presumption against such authority. While this presumption has been interpreted variously by lower federal courts, Supreme Court decisions make clear that it is rebutted in only a limited category of situations whose primary characteristic is actual consent by the nonmember to tribal regulation. A. The Road to Montana 1. The 1978 trilogy In 1978 the Supreme Court decided three cases that initiated its modern effort to formulate a doctrine for determining the particular instances in which the exercise of nonstatutorily derived powers by tribes is consistent with their status as “distinct, independent political communities,”129 “domestic dependent nations,”130 and the implied limitation on their inherent powers.131 The first of these decisions, Oliphant v. Suquamish Indian Tribe,132 arose from habeas corpus petitions filed by two non‑Indians under the Indian Civil Rights Act (ICRA)133 who were charged with misdemeanor criminal offenses in tribal court arising from on‑reservation conduct.134 Rejecting the tribe’s claim that the prosecutions were appropriate exercises of its “ ‘retained inher‑ ent powers of government[,]’ ”135 the Court gave “considerable weight” to “the commonly shared presumption of Congress, the Executive Branch, and lower

National Farmers Union Ins. Cos., 471 U.S. at 851–52.

126

Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997).

127

450 U.S. 544 (1981).

128

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).

129

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).

130

See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 147 (1810) (Johnson, J., concurring) (“[a]ll the restrictions upon the right of soil in the Indians, amount only to an exclusion of all competitors from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves”). 131

435 U.S. 191 (1978).

132

Pub. L. No. 90‑284, §§ 201–701, 82 Stat. 73, 77–81 (1968) (codified as amended at 25 U.S.C. § 1153 & 25 U.S.C. §§ 1301–03, 1321–26, 1341). 133

134 Although Oliphant, as well as the subsequently decided United States v. Wheeler, 435 U.S. 313 (1978), and Duro v. Reina, 495 U.S. 676 (1990), arose out of a criminal law context, it is relevant to the scope of tribal civil regulatory jurisdiction because its reasoning focused on the more general question of the source and scope of a tribe’s retained inherent authority. See Duro, 495 U.S. at 684 (“[t]he question we must answer is whether the sovereignty retained by the tribes in their dependent status within our scheme of government includes the power of criminal jurisdiction over nonmembers”).

435 U.S. at 196.

135

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federal courts that tribal courts do not have the power to try non‑Indians”136 and reasoned, “tribes are prohibited from exercising both those powers that are expressly terminated by Congress and those powers ‘inconsistent with their status.’ ”137 The Court viewed the exercise of criminal jurisdiction over non‑Indians as inconsistent with the United States’ “solicitude that its citizens be protected . . . from unwarranted intrusions on their personal liberty” and concluded that, “[b]y submitting to the overriding sovereignty of the United States, Indian tribes . . . necessarily give up their power to try non‑Indian citizens of the United States except in a manner acceptable to Congress.”138 Although Oliphant established that tribal inherent powers were significantly reduced as to on‑reservation activities of non‑Indians by virtue of tribes’ de‑ pendent status, it did not articulate a clear test for resolving the scope of such authority.

136 Id. at 205. In finding such presumption, the Court looked to an 1830 treaty with the Choctaw Tribe, characterized as then having “one of the most sophisticated of tribal structures,” which expressed the tribe’s desire to be granted the right of punishing “ ‘any white man who shall come into their nation[] and infringe any of their national regulations[;]’ ” an 1878 federal district court decision concluding that tribes lacked such power; an 1834 bill, never enacted, that would have created an Indian territory and denied criminal jurisdiction to tribes over officials and citizens traveling in the proposed territory; the inconsistency of tribal criminal jurisdiction over non‑Indians with 18 U.S.C. §§ 1152 and 1153; an 1891 decision, Ex parte Mayfield, 141 U.S. 107, 116 (1891), suggesting that tribal jurisdiction was limited to “ ‘controversies between Indians[] or where a member of the nation is the only party to the proceeding[;]’ ” and a 1960 Senate report accompanying a bill to prohibit unauthorized entry upon Indian land to hunt or fish, which stated that non‑Indians could not be tried in tribal courts on trespass charges. Oliphant, 435 U.S. at 197–206.

Id. at 208.

137

Id. at 210; see also United States v. Toledo, 70 F.3d 988 (8th Cir. 1995) (per curiam) (tribe lacked criminal jurisdiction over Mexican citizen). Although Oliphant and the later Duro v. Reina, 495 U.S. 676 (1990), argu‑ ably could be read to have established a constitutional basis for the divestiture of inherent tribal criminal jurisdiction over non-Indians and nonmember Indians, the Supreme Court held in United States v. Lara, 541 U.S. 193 (2004), that those cases actually “make clear that the Constitution does not dictate the metes and bounds of tribal autonomy” and that the Court should not “second-guess the political branches’ own determinations” concerning the scope of inherent tribal authority. Id. at 205. In reaching this conclusion, it reasoned that Oliphant and Duro had “based [their] descriptions of inherent tribal authority upon the sources as they existed at the time the Court issued its decisions.” Id. at 206. One “important source” in that regard had been congressional legislation, but “that source was subject to change.” Id. Consequently, even when a tribe’s inherent authority has been found divested as inconsistent with its dependent status and without express congressional action, Congress may “enact[] a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes.” Id. at 207; see generally Anna Sappington, Is Lara the Answer to Implicit Divestiture? A Critical Analysis of the Congressional Delegation Exception, 7 Wyo. L. Rev. 149, 171, 174 (2007) (Lara viewed the “implicit divestiture doctrine as a means by which the Court effectuates Congress’ un- or imperfectly expressed intent to limit tribal jurisdiction” and thus departs from Oliphant under which “divestiture occurred in one fell swoop at the point of the tribes’ discovery, and in‑ dependently of any congressional exercise of plenary authority”); Fletcher, supra note 103, at 130, 169–72, 179 (positing a “consistent-with-federal-policy” test, based in part on Justice Thomas’s Lara concurrence, to determine the scope of implicit divestiture; defining “federal policy” as “the express statements of policy or congressional findings contained in acts of Congress related to Indians, Indian tribes, and Indian tribal organization[;]” and adding a “default rule” that congressional silence means no divestiture); John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen’s Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 735 (2006) (Lara “appears to support the position that the [implicit divestiture of sovereignty] theory signifies loss of tribal authority based on particular, judicially perceived conflicts with the United States’s overriding sovereignty”). 138

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United States v. Wheeler139 was the effective converse of Oliphant, address‑ ing whether the Double Jeopardy Clause of the Fifth Amendment precluded the United States from prosecuting a Navajo tribal member under the Major Crimes Act140 for conduct the member previously had been punished for un‑ der tribal law. The Court first noted that, under the dual sovereignty rule, the Double Jeopardy Clause did not prohibit successive prosecutions by different sovereigns for the same conduct. It then concluded that, irrespective of Con‑ gress’s plenary power over Indian affairs, tribes nevertheless retained certain inherent authority “not withdrawn by treaty or statute[] or by implication as a necessary result of their dependent status.”141 Distinguishing between internal and external relations, the Court stated that “[t]he areas in which . . . implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe” and that “the powers of self‑government, including the power to prescribe and enforce internal criminal laws, are of a different type [since] [t]hey involve only the relations among members of a tribe.”142 Because this aspect of the tribe’s “pri‑ meval sovereignty” had never been explicitly taken away by treaty or statute, its exercise was “as part of [the tribe’s] retained sovereignty and not as an arm of the Federal Government.”143 The emphasis in Wheeler upon the connection between internal tribal relations and the extent of retained tribal authority was almost immediately reemphasized in Santa Clara Pueblo v. Martinez,144 where the Court observed that, “[a]lthough no longer ‘possessed of the full attributes of sovereignty,’ ” tribes did “have power to make their own substantive laws in internal matters . . . and to enforce that law in their own forums[.]”145 It relied on such retained authority to hold that, in adopting the Indian Civil Rights Act, Congress had not

435 U.S. 313 (1978).

139

18 U.S.C. § 1153.

140

435 U.S. at 323.

141

Id. at 326.

142

Id. at 328. The Court had earlier remarked that treaties entered into by the Navajo Tribe had pro‑ vided for punishment by the United States of members who committed crimes against non‑Indians but were silent with respect to tribal power to prosecute members for violation of tribal law and that Congress had long recognized through exceptions to the General Crimes Act, 18 U.S.C. § 1152, and predecessor statutes tribes’ “sovereign power to punish offenses against tribal law by [their] members[.]” Wheeler, 435 U.S. at 323–25. Even in federal prosecutions, moreover, tribal law may be relevant by virtue of a tribe’s governance over internal member matters. See United States v. Jarvison, 409 F.3d 1221, 1225 (10th Cir. 2005) (tribal law applied to determine whether defendant and witness were married for purposes of the spousal testimonial privilege; “because the Navajo Nation retains sovereign authority to regulate domestic relations laws, including marriage of its Indian subjects, Navajo law is dispositive as to the validity of the marriage in question”). 143

144 436 U.S. 49 (1978). Martinez arose from a challenge by a female member and her daughter to a tribal ordinance extending membership to children of male members marrying outside the tribe, but not to children of female members so marrying, on equal protection grounds. See 25 U.S.C. § 1302(8).

436 U.S. at 55–56.

145

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manifested a sufficiently clear intent to subject tribal officials to suit in federal court for violation of the statute’s provisions other than where federal habeas corpus relief was requested,146 stating that, “[a] fortiori, resolution in a foreign forum of intratribal disputes of a more ‘public’ character, such as the one in this case, cannot help but unsettle a tribal government’s ability to maintain authority.”147 Martinez accordingly exemplified the Court’s reluctance to find congressional abrogation of a tribe’s retained powers over internal matters traditionally within its control absent an express statutory mandate.148 2. Colville Although Oliphant, Wheeler, and Martinez suggested a tribe’s inherent regulatory authority was concerned primarily with internal matters among tribal members, none of those cases dealt with whether, in a consensual com‑ mercial transaction context, a tribe possessed retained authority to regulate nonmembers with whom it dealt. The next decision, Washington v. Confederated Tribes of Colville Indian Reservation,149 involved that situation. In Colville, the Court held that several tribes retained the power to im‑ pose cigarette taxes on nonmember purchasers with respect to on‑reservation sales.150 It relied on Executive Branch policy, which “consistently recognized that Indian tribes possess a broad measure of civil jurisdiction over the ac‑ tivities of non‑Indians on Indian reservation lands in which the tribes have a significant interest,”151 judicial decisions that “acknowledged tribal power to tax non‑Indians entering the reservation to engage in economic activity[,]”152 and the absence of contrary federal statutes. The Court further remarked that “[t]ribal powers are not implicitly divested by virtue of the tribes’ dependent

146 Id. at 59–60. The Court additionally held that, absent an unequivocal waiver of sovereign immu‑ nity in the Act, a tribe was not subject to suit for violation of its provisions under any circumstances. Id. at 58–59.

Id. at 60.

147

See Rice v. Rehner, 463 U.S. 713, 731 (1983) (where no tradition of tribal self‑government exists in a particular area, “it is not necessary that Congress indicate expressly that the State has jurisdiction to regu‑ late” even member conduct in such area). Needless to say, not all controversies to which the substantive or remedial provisions of the ICRA apply will be intratribal matters—as reflected by Oliphant. This fact, however, does not mean the Court’s concern over abrogation of retained tribal authority was misplaced since, if implied, a private right of action under the statute would have necessarily extended to all tribal actions—and not merely those affecting “external relations.” 148

447 U.S. 134 (1980).

149

Three of the involved tribes acted as cigarette retailers, collecting both the price of the cigarettes and their taxes from consumers. Id. at 144. Only those tribes’ taxes were challenged. Id. at 152 n.28. A fourth tribe acted as a wholesaler, purchasing cigarettes from an out‑of‑state vendor and reselling them to reservation retailers for an amount including the wholesale price, a markup over such price and a tax that was not required to be passed on to the ultimate consumer. Id. at 144–45. In the latter situation, therefore, the tax incidence did “not fall on the purchaser.” Id. at 152 n.28. 150

Id. at 152.

151

Id. at 153.

152

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status”153 and that, while it had found such “divestiture in cases where the ex‑ ercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government,” it could “see no overriding federal interest that would necessarily be frustrated by tribal taxation.”154 Colville thus established that, at least in the context of consensual on‑reservation transactions between tribes and nonmembers, the former retained the power to tax such transactions even though not a matter of purely internal concern. B. The “Pathmarking” Montana Less than a year later after Colville, the Court made clear in Montana v. United States155 that the presence of inherent tribal authority over nonmem‑ bers was the exception, not the rule. Montana involved a claim by the United States and the Crow Tribe that the Tribe possessed exclusive jurisdiction within its reservation to regulate nonmember hunting and fishing on nonmember‑owned fee lands. Finding no express treaty or statutory right to such regulatory authority,156 the Court cited Oliphant for “the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.”157 The Supreme Court, however, identified two possible exceptions to this “general proposition”: (1) “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relation‑ ships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements[;]” and (2) “[a] tribe may also retain inherent power to exercise civil authority over the conduct of non‑Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”158 The Court found neither exception applicable, since “[n]on‑Indian hunters and fishermen on non‑Indian fee land do not enter any agreements or dealings with the Crow Tribe so as to subject themselves to tribal civil jurisdic‑ tion” and no evidence suggested “non‑Indian hunting and fishing on fee lands

Id.

153

Id. at 153–54.

154

450 U.S. 544 (1981).

155

Id. at 557–63. Indeed, the Court remarked that the underlying purpose of the General Allotment Act, 24 Stat. 388 (1887) (codified as amended at 25 U.S.C. §§ 331–352), was directly antithetical to the existence of tribal authority over allotted lands later alienated to nonmembers, since “allotment of Indian lands was consistently equated with the dissolution of tribal affairs and jurisdiction.” 450 U.S. at 560 n.9. The Court then added: “It defies common sense to suppose that Congress would intend that non‑Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government. And it is hardly likely that Congress could have imagined that the purpose of peaceful assimilation could be advanced if feeholders could be excluded from fishing or hunting on their acquired property.” Id. 156

Id. at 565.

157

Id. at 565–66.

158

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imperiled the subsistence or welfare of the Tribe.”159 This case has become the fountainhead for subsequent judicial treatment of the inherent authority issue. Not unexpectedly, the ensuing litigation has focused largely on the scope of the two exceptions. Each decision warrants close attention because, taken as a whole, they form an analytical mosaic that, almost 30 years after Montana, remains incomplete. C. Application of Montana Standards 1. Merrion Montana established a presumption against tribal regulatory authority over nonmembers and suggested a two‑pronged test for determining when the presumption might be overcome. However, the Court’s next decision addressing the scope of inherent tribal powers, Merrion v. Jicarilla Apache Tribe,160 made no reference to those standards. It would prove the exception in this respect, but its analysis was arguably compatible with Montana. Merrion arose from the imposition of a tribal severance tax on produc‑ tion from reservation trust lands by oil and gas companies pursuant to leases under the Indian Mineral Leasing Act of 1938.161 A majority of the Court found the tax permissible, concluding under two theories that the lessees entered “tribal jurisdiction”—the first predicated on the fact that the producers had established a commercial relationship with the tribe and the second on the conclusion that the tribe retained the right to exclude the producers from the affected lands notwithstanding the leases.162 Recharacterized with reference to Montana, therefore, the Court’s reasoning was grounded in the first instance on the consent exception and in the second on the continued existence of the power to exclude the lessees from tribal lands—a factor missing from Montana because it involved conduct on non-member-owned lands. That the first prong of the Court’s reasoning in Merrion was premised on consent principles was reflected in its reliance on the three tax decisions identified in Montana as exemplifying the consent exception to the presumptive absence of inherent authority over nonmembers.163 As for the second prong, the Merrion majority

Id. at 566.

159

455 U.S. 130 (1982).

160

25 U.S.C. §§ 396a–396g.

161

455 U.S. at 142 (“a tribe may exercise [the taxing] power over non-Indians who receive privileges from the tribe, such as the right to trade on Indian land”); id. at 144 (“When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. However, it does not follow that the lawful property right to be on Indian land also immunizes the non-Indian from the tribe’s exercise of its lesserincluded power to tax or to place other conditions on the non-Indian’s conduct or continued presence on the reservation”). 162

163 See id. at 137–38 (relying on Colville); id. at 141–44 (relying on Morris v. Hitchcock, 194 U.S. 384 (1904), and Buster v. Wright, 135 F. 947 (8th Cir. 1905), appeal dismissed, 203 U.S. 599 (1906)).

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recognized that there is “a significant territorial component to tribal power: a tribe has no authority over a nonmember until the nonmember enters tribal lands or conducts business with the tribe.”164 In this instance, the lessee had done both. Three Justices dissented, arguing that the presumption against tribal authority over nonmembers was premised on their exclusion from participation in tribal government and that the exercise of inherent taxation authority over them could only occur if consented to as a condition of initial entry upon tribal lands for a specific purpose.165 The dissent found no such consent because the lessees’ contractual right to enter the reservation to extract oil and gas preceded adoption of the challenged tax ordinance by over 20 years.166 2. Brendale The Supreme Court next addressed these issues in Brendale v. Confederated Tribes and Bands of Yakima Indian Nation.167 Brendale arose from a tribal government’s attempt to impose zoning regulations on two pieces of property owned by nonmembers within its reservation. One property was situated in a forested area consisting of over 800,000 acres, 97 percent of which was tribal land described as an “undeveloped refuge of cultural and religious significance” to which nonmember access was restricted tightly by the Yakima Nation; the second property was located in a heavily checkerboarded area characterized by substantial agricultural, commercial, and residential development and popu‑ lated substantially by nonmembers who owned almost one‑half of the area’s land base.168 The Court divided into three groups in determining the propriety of the tribal zoning regulation: (1) An opinion by Justice White, joined in by three other Justices, concluded that the tribal government lacked any zoning regulation over non-member‑owned lands; (2) an opinion by Justice Stevens, joined in only by Justice O’Connor, concluded that the tribal government pos‑ sessed regulatory authority over the first but not the second property; and (3) an opinion by Justice Blackmun, joined in by two other Justices, concluded that the tribal government possessed exclusive zoning authority over both properties. Justice White revisited the Montana analysis, which he saw as establish‑ ing the conclusive absence of any inherent tribal regulatory authority over nonmembers absent a consensual relationship.169 He further reasoned that the second exception identified in Montana did not permit a tribe to regulate

Id. at 142; accord Kerr‑McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985).

164

455 U.S. at 172–73, 181–82.

165

Id. at 166–67, 186–89.

166

492 U.S. 408 (1989).

167

Id. at 438–44.

168

Id. at 426–28.

169

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a nonmember’s conduct since, at least in a zoning context, “the authority [un‑ der such exception] would last only so long as the threatening use continued” and that zoning power therefore “could vest variously in the county and the tribe, switching back and forth between the two, depending on what uses the county permitted on the fee land at issue.”170 “The governing principle” in Montana was instead that: the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land. The inquiry thus becomes whether, and to what extent, the tribe has a protectible interest in what activities are taking place on fee land within the reservation and, if it has such an interest, how it may be protected. Of course, under ordinary law, neighbors often have a protectible interest in what is occurring on adjoining property and may seek relief in an appropriate forum, judicial or otherwise. Montana suggests that in the special circumstances of check‑ erboard ownership of lands within a reservation, the tribe has an interest under federal law, defined in terms of the impact of the challenged uses on the political integrity, economic security, or the health and welfare of the tribe. . . . [T]hat interest does not entitle the tribe to complain or obtain relief against every use of fee land that has some adverse effect on the tribe. The impact must be demonstrably serious and must imperil the political integrity, economic security or the health and welfare of the tribe. This standard will sufficiently protect Indian tribes while at the same time avoiding undue interference with state sovereignty and providing the certainty needed by property owners.171

Under this analysis, a tribe may protect such interest only by participation in state administrative proceedings or by initiating judicial action in federal or state court—and not through the exercise of tribal regulatory or adjudicatory powers predicated on retained inherent authority. Justice Stevens declined to adopt Justice White’s approach. Instead, he distinguished between the two properties, finding the first situated in an area where the tribal government “retains its legitimate interest in the preserva‑ tion of the character of the reservation”172 and the second in an area where the tribal government is no longer able “to establish the essential character of the region.”173 He likened the tribal power to an equitable servitude that, in one instance, continued to run with the land even after alienation to a nonmember174 and, in the other instance, had lapsed through a substantial

170 Id. at 428–30. Although Justice White’s statement in this regard was limited to land use regulation, his concern over the potentially transitory nature of harm to tribal interests seems applicable to any form of activity, since the requisite prejudice can only be identified after assessing the effect of particular activ‑ ity and typically can be cured by specifically focused judicial relief.

Id. at 430–31.

171

Id. at 442.

172

Id. at 446.

173

Id. at 442.

174

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change in landownership and demographic patterns from that existing when the reservation was created.175 Justice Blackmun, finally, argued that “the Court simply missed its usual way” in Montana to the extent it “creat[ed] a presumption against a tribal civil jurisdiction over non‑Indians absent express congressional delegation[.]”176 He nonetheless would have applied the second exception to find exclusive tribal jurisdiction over all reservation zoning matters because “[t]his fundamental sovereign power of local governments to control land use is especially vital to Indians, who enjoy a unique historical and cultural connection to the land.”177 Justice Blackmun criticized Justice White’s opinion as “replac[ing] sovereignty with a form of legal tokenism: the opportunity to sue in court has replaced the opportunity to exercise sovereign authority”178 and Justice Stevens’s opinion as requiring “an intrinsically standardless threshold determination as to when a section of a reservation contains sufficient non‑Indian land holdings to war‑ rant an ‘open’ classification.”179 3. Bourland The Court continued its internal debate over the scope of inherent tribal sovereignty in South Dakota v. Bourland.180 There, South Dakota sued officials of the Cheyenne River Sioux Tribe to enjoin tribal regulation of non-Indian hunting and fishing on reservation lands conveyed by the Tribe and its mem‑ bers to the United States under the Cheyenne River Act181 or acquired from nonmembers pursuant to the Flood Control Act of 1944182 for the purpose of constructing the Oahe Dam and Reservoir. The Eighth Circuit Court of Appeals held that, because neither of these statutes expressly abrogated the authority under the first Fort Laramie Treaty of 1868183 to regulate non-Indian hunting

175 Id. at 446–47. Justice Stevens’s reasoning has not been applied subsequently by the Supreme Court and is characterized by one commentator as “arguably obsolete.” Sarah Krakoff, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent Nation, 83 Or. L. Rev. 1109, 1135 (2004). 176 492 U.S. at 455. While he had dissented along with Justices Brennan and Marshall over the streambed ownership issue in Montana, Justice Blackmun concurred in the majority opinion’s holding that the Crow Tribe lacked regulatory jurisdiction over nonmember hunting and fishing on non-member‑owned lands. Montana, 450 U.S. at 581 n.18.

492 U.S. at 458.

177

Id. at 462.

178

Id. at 464; see generally David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Cal. L. Rev. 1573, 1616 (1996) (contending that Brendale left the doctrine of inherent tribal authority in confusion and that “[e]ach of the three opinions is dominated by bickering with the other two”). 179

508 U.S. 679 (1993).

180

Pub. L. No. 83-776, 68 Stat. 1191 (1954).

181

Pub. L. No. 78-534, 58 Stat. 887 (1944).

182

15 Stat. 635 (1869).

183

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and fishing, the Tribe retained the power.184 A seven-member majority of the Supreme Court, through Justice Thomas, reversed. Justice Thomas began his substantive analysis by observing that “[t]he Fort Laramie Treaty granted to the Cheyenne River Sioux Tribe the unquali‑ fied right of ‘absolute and undisturbed use and occupation’ of their reservation lands” and that “we may conclude that pursuant to its original treaty with the United States, the Cheyenne River Tribe possessed both the greater power to exclude non-Indians from, and arguably the lesser-included, incidental power to regulate non-Indian use of, the lands later taken for the Oahe Dam and Reservoir Project.”185 He then stated that “Montana and Brendale establish that when an Indian tribe conveys ownership of its tribal lands to non-Indians, it loses any former right of absolute and exclusive use and occupation of the conveyed lands” and that “[t]he abrogation of this greater right . . . implies the loss of regulatory jurisdiction over the use of the land by others.”186 Justice Thomas reviewed the text of the Flood Control and Cheyenne River Acts and determined that, because they “clearly abrogated the Tribe’s ‘absolute and undisturbed use and occupation’ of [the involved] tribal lands, . . . [the statutes] thereby deprived the Tribe of the power to license non-Indian use of the lands.”187 After finding any treaty-based right to regulate had been abrogated, Jus‑ tice Thomas addressed the contention that the tribe retained such power under its inherent authority. He cited Montana for the proposition that “the ‘exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation[]’ ” and stated that, “[h]aving concluded that Congress clearly abrogated the Tribe’s pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribe to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty.”188 Responding to the dissenting opinion’s criticism that the major‑ ity gave “ ‘barely a nod’ to the Tribe’s inherent sovereignty argument,” Justice Thomas reasoned that, “after Montana, tribal sovereignty over nonmembers ‘cannot survive without express congressional delegation[]’ . . . and is therefore

South Dakota v. Bourland, 949 F.2d 984, 994 (8th Cir. 1991), rev’d, 508 U.S. 679 (1993).

184

508 U.S. at 687–88.

185

Id. at 689.

186

Id. at 697. In reaching this conclusion, the majority opinion rejected any attempt to distinguish Montana because it involved, in part, lands taken out of tribal ownership under allotment-era legislation, holding that “regardless of whether land is conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control.” Id. at 692. 187

Id. at 694–95 (quoting Montana, 450 U.S. at 564).

188

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not inherent.”189 He nonetheless turned to the Montana exceptions, character‑ izing them as “other potential sources of tribal jurisdiction over non-Indians” and directing the court of appeals to consider on remand the district court’s factual findings concerning their nonapplicability.190 Justice Blackmun, joined by Justice Souter, dissented. He argued that insufficient evidence existed to show that “Congress intended to abrogate the Tribe’s right to regulate non-Indian hunting and fishing on the taken area—a right flowing from the original sovereign power that was expressly confirmed by treaty[,]” since there was “not even a scrap of evidence that Congress actually considered the possibility that by taking the land in question it would deprive the Tribe of its authority to regulate non-Indian hunting and fishing on that land.”191 In his view, “Congress’ purpose was simply to build a dam”192 and, ac‑ cordingly, “[t]o imply an intent to abrogate Indian rights from . . . congressional silence . . . ignores the principles that Congress’ intention to abrogate Indian treaty rights be clear and plain[] . . . and that statutes are to be construed lib‑ erally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”193 Justice Blackmun, therefore, would have required evidence that Congress actually considered the question of abrogating the Tribe’s inherent authority over non-Indian reservation hunting or fishing and mandated such abrogation. The Bourland majority clearly attempted to maintain fidelity with Montana. It analyzed, as Montana had, the issue of treaty-based regulatory authority separately from the issue of inherent tribal authority and deemed any treatybased right to regulate non-Indian hunting or fishing to be a “lesser-included” power of the more general authority to exclude non-Indians from reservation lands. Justice Thomas’s opinion also reaffirmed the general holding in Montana that once the power to exclude nonmembers from particular reservation lands has been surrendered or terminated by Congress, inherent regulatory power ordinarily is lost. Despite the seemingly categorical statement that the tribe lacked inherent regulatory authority over the nonmember hunting, the remand with instructions to consider the applicability of the Montana excep‑ tions indicated that the presumptive lack of such authority could be rebutted

189 Id. at 695 n.15 (citation omitted); but see United States v. Lara, 541 U.S. 193, 207 (2004) (noting the “delegation” language in Bourland and other decisions, but declining to “read any of these cases as holding that the Constitution forbids Congress to change ‘judicially made’ federal Indian law through . . . legislation” such as that overruling Duro v. Reina, 495 U.S. 676 (1990)).

508 U.S. at 695–96.

190

Id. at 700.

191

Id. at 702.

192

Id. at 703 (citations and internal quotation marks omitted).

193

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197

under certain circumstances.194 The decision nevertheless was silent as to what type of showing was required to satisfy, most importantly, the second exception.195 4. Strate The Supreme Court’s unanimous decision four years later in Strate v. A-1 Contractors196 provided substantial guidance on the reach of the second Montana exception. The issue in Strate was whether a tribal court had jurisdiction over claims arising from a motor vehicle accident between two nonmembers on a state highway within a reservation. Characterizing Montana as “the pathmarking case concerning tribal civil authority over nonmembers,” the Court stated that the decision “described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to [the] two exceptions.”197 It then rejected the contention that a different standard should be employed to determine a tribe’s adjudicatory authority with respect to nonmembers be‑ cause, “[w]hile Montana immediately involved regulatory authority, the Court broadly addressed the concept of ‘inherent sovereignty’ ” and “delineated—in a main rule and exceptions—the bounds of the power tribes retain to exercise ‘forms of civil jurisdiction over non-Indians.’ ”198

194 See South Dakota v. Bourland, 39 F.3d 868, 869 (8th Cir. 1994) (remarking that the Supreme Court’s Bourland decision “acknowledged . . . that there was another possible source of tribal jurisdiction over non-Indians in the taken lands” under the Montana exceptions even though the Court had determined treaty-conferred and inherent tribal authority had been abrogated). 195 Post-Bourland lower court opinions failed to provide clarification of either the relationship between Montana and Brendale or the precise scope of the second exception. On remand in the Bourland litigation, for example, the Eighth Circuit stated that “[w]e neither consider nor decide whether Justice White’s Brendale opinion modified the second Montana exception for cases such as that presented here” and “[t]he District Court’s findings were reached under the less rigid Montana standard, but the result we reach today, holding that those findings are not clearly erroneous and denying the Tribe regulatory authority under the second Montana exception, obviously would be the same under the tougher Brendale standard.” South Dakota v. Bourland, 39 F.3d 868, 870 n.4 (8th Cir. 1994). In another hunting and fishing case, Lower Brule Sioux Tribe v. South Dakota, 917 F. Supp. 1434 (D.S.D. 1996), aff’d, 104 F.3d 1017 (8th Cir. 1997), a district court followed Bourland, Brendale, and Montana to find that any tribal treaty rights to regulate those activities by nonmem‑ bers were abrogated with the passage of the General Allotment Act. Id. at 1446. It then determined, after a detailed factual analysis, that the second Montana exception did not apply since the state and tribal hunting and fishing regulatory schemes served comparable purposes and thus state regulation did not threaten the tribe. Id. at 1448–49. A third decision concluded that the second Montana exception did not authorize tribal regulation of a utility’s provision of electricity to nonmember reservation residents or municipal solid waste landfills. Devils Lake Sioux Tribe v. North Dakota Pub. Serv. Comm’n, 896 F. Supp. 955 (D.N.D. 1995); but see Montana v. USEPA, 137 F.3d 1135, 1141 (9th Cir. 1998) (crediting for purposes of the second Montana excep‑ tion Environmental Protection Agency’s “generalized finding that due to the mobile nature of pollutants in surface water it would in practice be very difficult to separate the effects of water quality impairment on non-Indian fee land from impairment on the tribal portions of the reservation”).

520 U.S. 438 (1997).

196

Id. at 445–46.

197

Id. at 453.

198

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The Supreme Court next concluded in Strate that the state highway was the equivalent of “alienated, non-Indian reservation land.”199 In reaching that holding, it noted that the involved tribes had received compensation for the right-of-way and that, other than an option to construct crossings, they had “expressly reserved no right to exercise dominion or control over the rightof-way.”200 Thus, “the right-of-way is open to the public, and traffic on it is subject to the State’s control”—with the tribes’ having “no gatekeeping right” or “right to occupy and exclude” as long as “the stretch is maintained as part of the State’s highway.”201 The concluding portion of Strate dealt with the Montana exceptions. The Court found the first exception inapplicable because, although the tribal court defendants had a contractual relationship with the tribes, the tribal court plaintiff was not a party to that contract and the tribes were “ ‘strangers to the accident.’ ”202 As to the second exception, the Court initially remarked that “those who drive carelessly on a public highway . . . surely jeopardize the safety of tribal members” but that to extend the exception to such conduct “would severely shrink the [main] rule.”203 After observing that the cases cited in Montana for the exception204 reflected its underlying purpose: to avoid “a State’s (or Territory’s) exercise of authority . . . trench[ing] unduly on tribal self-government,”205 the Court reasoned: Read in isolation, the Montana rule’s second exception can be misper‑ ceived. Key to its proper application, however, is the Court’s preface: “Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. . . . But [a tribe’s inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations. . . . Neither regula‑ tory nor adjudicatory authority over the state highway accident at issue is needed to preserve “the right of reservation Indians to make their own laws and be ruled by them.”206

In short, “[o]pening the Tribal Court for [the plaintiff’s] optional use [was] not necessary to protect tribal self-government; and requiring [the defendants]

Id. at 454.

199

Id. at 455.

200

Id. at 455–56.

201

202 Id. at 457. The Strate respondents had subcontracted with a tribally owned corporation to perform landscaping related to the construction of a tribal community building. Id. at 443. The record did not indi‑ cate whether, at the time of the accident, work was being performed under the subcontract. Id.

Id. at 457–58.

203

Fisher v. Dist. Ct., 424 U.S. 382 (1976) (per curiam); Williams v. Lee, 358 U.S. 217 (1959); Montana Catholic Missions v. Missoula County, 200 U.S. 118 (1906); Thomas v. Gay, 169 U.S. 264 (1898). 204

520 U.S. at 458.

205

Id. at 459 (citations omitted).

206

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to defend against this commonplace state highway accident in an unfamiliar court is not crucial to ‘the political integrity, the economic security, or the health or welfare of the [tribes].’ ”207 Strate’s incorporation of the Williams self-governance standard as the measure of the second exception constituted the decision’s most significant contribution to Montana-based jurisprudence. Application of this standard meant that the presumption against tribal jurisdiction over nonmembers with respect to nontribal land activities is quite stringent and subject to rebuttal only when the tribal regulation is essential to internal governance. This view of the second exception thus echoed Justice White’s opinion in Brendale.208 Less clear was Strate’s impact, if any, on application of the consent exception, since the accident fell outside the sort of commercial relationships represented in the cases cited by the Montana Court in support of that exception.209 5. Atkinson and Hicks The Supreme Court’s next applied Montana in two decisions, Atkinson Trading Co. v. Shirley210 and Nevada v. Hicks,211 issued weeks apart in 2001. In Atkinson, a unanimous Court invalidated a tribe’s hotel occupancy tax imposed on guests of a nonmember business located on fee lands within the tribe’s reservation. The Court addressed first the argument that tribal taxes are gen‑ erally exempted from Montana’s reach.212 It acknowledged that Merrion had referred to the power of taxation as deriving not only from the tribe’s power to exclude “non-Indians from tribal land[] but also from an Indian tribe’s ‘gen‑ eral authority, as sovereign, to control economic activity within its jurisdic‑ tion’ ” and that this “authority . . . was incident to the benefits conferred upon

Id.

207

Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 431 (1989) (White, J.) (“[t]he impact [of the nonmember activity] must be demonstrably serious and must imperil the political integrity, economic security or the health and welfare of the tribe”) (emphasis supplied). 208

209 See, e.g., FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1315 (9th Cir. 1990) (nontribal corporation doing business on fee land consented to application of tribal employment rights ordinance by virtue of contracts with tribe for reservation-mined phosphate and various contracts with tribe); Cardin v. De La Cruz, 671 F.2d 363, 366 (9th Cir. 1982) (tribal health and safety regulations imposed on nonmember merchant doing business on fee land); Buster v. Wright, 135 F. 947 (8th Cir. 1905) (permit fee required as condition precedent to doing business on reservation), appeal dismissed, 203 U.S. 599 (1906); Reserv. Tel. Coop. v. Henry, 278 F. Supp. 2d 1015, 1023–24 (D.N.D. 2003) (tribal possessory interest tax on telephone cooperatives’ property located on right-of-way could not be justified under the consent exception by virtue of the fact that it provided service to tribal members, since “[t]he rights-of-way obtained by the Cooperatives through a Congressional grant do not equate to a ‘consensual relationship’ with the tribe” and since the cooperatives’ “authority to operate and provide telecommunication services on the Reservation [derives] from a grant of [state] legislative authority which does not equate with a ‘consensual relationship’ to satisfy the Montana test”).

532 U.S. 645 (2001).

210 211

533 U.S. 353 (2001). 532 U.S. at 652.

212

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nonmembers.”213 The Court nevertheless declined to expand Merrion’s holding beyond recognition of an inherent power to tax nonmember activities taking place on reservation trust lands because “[o]nly full territorial sovereigns enjoy the ‘power to enforce laws against all who come within the sovereign’s terri‑ tory, whether citizens or aliens,’ and Indian tribes ‘can no longer be described as sovereigns in this sense.’ ”214 It continued on to reject the tribal officials’ reliance on Buster v. Wright215 with the observation that it had “never endorsed Buster’s statement” suggesting the existence of tribal jurisdiction beyond tribal land.216 Since matters of tribal taxation are not excluded from the reach of Montana’s main rule, the Court concluded that, “as in Strate, we [must] apply Montana straight up.”217 The Court then turned to the tribal officials’ contention that Montana’s first, or consent, exception justified the occupancy tax. It noted the “numerous services provided by the Navajo Nation” but found that “a nonmember’s actual or potential receipt of tribal police, fire and medical services does not create the requisite [consensual] connection.”218 To hold otherwise, the Court stated, meant that “the exception would swallow the rule” since “[a]ll non-Indian fee lands within a reservation benefit, to some extent, from the ‘advantages of a civilized society’ offered by the Indian tribe.”219 The Court additionally found unpersuasive the contention that the trading company had consented to the tax by becoming an “Indian trader” under 25 U.S.C. § 261,220 holding that the “consensual relationship exception requires that the tax or regulation imposed by the Indian tribe have a nexus to the consensual relationship itself.”221 The Court reasoned that the relationship created by the Indian trader license—i.e., the right “to transact business with the Navajo Nation”—did not encompass the trading company’s “relationship with its nonmember hotel guests” who could gain access to the trading post on “non-Indian public rights-of-way.”222 “A

Id.

213

Id. at 653 n.5.

214

135 F. 947 (8th Cir. 1905), appeal dismissed, 203 U.S. 599 (1906).

215

532 U.S. at 653 n.4.

216

Id. at 654.

217

Id. at 654–55.

218

Id. at 655.

219

Section 261 reads: “The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” 220

532 U.S. at 656.

221

Id. at 656–57.

222

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nonmember’s consensual relationship in one area,” in sum, “does not trigger tribal civil authority in another—it is not ‘in for a penny, in for a pound.’ ”223 The Atkinson Court next considered Montana’s second exception. It found untenable any reading of Merrion that would support the tribal officials’ claim that taxation was by its very nature so essential to tribal self-government as to satisfy the exception, since such an interpretation “would be tantamount to rejecting Montana’s general rule.”224 The second exception instead “is only triggered by nonmember conduct that threatens the Indian tribe [and] . . . does not broadly permit the exercise of civil authority wherever it might be con‑ sidered ‘necessary’ to self-government.”225 The test, as the Court further explained, is both stringent and factually specific: “[U]nless the drain of the nonmember’s conduct upon tribal services and resources is so severe that it actually ‘imperil[s]’ the political integrity of the Indian tribe, there can be no assertion of civil authority beyond tribal lands.”226 No such showing had been made with respect to the trading company’s hotel.227 Atkinson concluded with rejection of the tribal officials’ reliance on Justice Stevens’s opinion in Brendale. They sought to “extrapolate” from the opinion the notion that “Indian tribes enjoy broad authority over nonmembers wherever the acreage of non-Indian fee land is miniscule in relation to the surrounding tribal land.”228 The Court distinguished Brendale factually, pointing out that it had turned on the “closed nature” of the area encompassing the nonmember’s fee land and on Justice Stevens’s conclusion that the development of the fee land would have placed the entire area “ ‘in jeopardy.’ ”229 It then reiterated that the second exception “grants Indian tribes nothing beyond what is necessary to protect tribal self-government or to control internal relations” and that the trading company’s operations “do[] not endanger the Navajo Nation’s political integrity.”230 The second decision, Nevada v. Hicks,231 arose in the context of a challenge to tribal court jurisdiction by state fish and game officials sued for damages after conducting an on-reservation search of a tribal member’s residence in

Id. at 656.

223

Id. at 657 n.12; see also Big Horn County Elec. Coop. v. Adams, 219 F.3d 944, 951 (9th Cir. 2000) (reject‑ ing contention that the second exception applies “because the revenues created by the utility tax finance important tribal services and are . . . essential to the continued well-being of the Tribe[;]” if accepted, claim “would effectively swallow Montana’s main rule”). 224

532 U.S. at 657 n.12.

225

Id.

226

Id.

227

Id. at 658.

228

Id.

229

Id. at 659 (internal quotation marks omitted).

230

533 U.S. 353 (2001).

231

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connection with an off-reservation game violation. Hicks is treated fully in the chapter directly concerned with civil adjudicatory authority232 but is important from a civil regulatory perspective because the Court applied Montana stan‑ dards, observing that Strate had held that tribal court jurisdiction cannot exceed tribal legislative jurisdiction and therefore reasoning that, if Montana-based analysis did not support the existence of regulatory jurisdiction, adjudica‑ tory authority could not be found.233 Several aspects of the Court’s regulatory jurisdiction analysis complement Strate and Atkinson and clarify Montana’s controlling weight whenever inherent tribal authority is asserted as the basis for nonmember regulation: • The Hicks Court eschewed the traditional two step Montana examina‑ tion—i.e., establishing applicability of the “main rule” by showing the lack of “gatekeeping” authority on the tribe’s part and inapplicability of either exception—and collapsed the Montana inquiry into the single question “whether regulatory jurisdiction over state officers in the present context is ‘necessary to protect tribal self-government or to control internal rela‑ tions.’ ”234 It thus did not refer specifically to the “second exception” in the principal opinion. The Court was able to avoid discussing applicability of Montana’s “main rule” because it held, for the first time, that “[t]he owner‑ ship status of land . . . is only one factor to consider in determining whether regulation of the activities of nonmembers is ‘necessary to protect tribal self-government or to control internal relations.’ ”235 In Hicks, the Court did “not find [tribal landownership] dispositive . . . when weighed against the State’s interest in pursuing off-reservation violations of its laws.”236 • In determining whether tribal regulatory jurisdiction was “necessary to protect tribal self-government or to control internal relations,” the Court relied on a series of preemption decisions.237 It drew from those cases the principle that “the Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reserva‑ tion”238 and ultimately the conclusion that “tribal authority to regulate state officers in executing process related to the violation, off reservation, of

See Chapter 5, part II.C.5.

232

533 U.S. at 357–58.

233

Id. at 360.

234

Id.

235

Id. at 370.

236

Id. at 360; see White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) (whether state taxes preempted); Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134 (1980) (same); Fisher v. Dist. Ct., 424 U.S. 382 (1976) (per curiam) (whether state court possessed jurisdiction over family law dispute between tribal members); Organized Vill. of Kake v. Egan, 369 U.S. 60 (1962) (whether tribal fishing was subject to state law); Williams v. Lee, 358 U.S. 217 (1959) (whether state court possessed jurisdiction over contract claim brought by merchant against tribal members); Utah & N. Ry. v. Fisher, 116 U.S. 28 (1885) (whether territorial tax could be levied on nonmember property within reservation). 237

533 U.S. at 361.

238

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state laws is not essential to tribal self-government or internal relations.”239 Consequently, to the extent Strate or Atkinson could have been viewed as leaving any doubt over the proposition that the second Montana exception simply incorporates the Williams preemption standard,240 Hicks resolved it not only by reiterating that such standard governs but also by actually deciding the merits through straightforward preemption analysis. • The Court dealt with the first exception in a brief but significant footnote. It stated that, “[t]hough the wardens . . . ‘consensually’ obtained a warrant from the Tribal Court before searching [the tribal member’s] home and yard,” consent of the type contemplated in the first exception was absent because the term “ ‘other arrangement’ ” means “clearly another private consensual relationship.”241

Atkinson and Hicks thus confirmed Strate’s teaching that tribes possess inherent civil regulatory authority over nonmembers only in extraordinary in‑ stances. Hicks further made clear that, as Justice Souter stated in his concurring opinion, “the primary jurisdictional fact” is not the location of the nonmember’s activity but rather nonmember status itself.242 This clarification at least argu‑ ably reflected the principle that inherent tribal authority is focused on internal membership governance, not regulation of nonmembers, and differs both in purpose and breadth from the expansive authority exercised by “full territorial sovereigns.”243 It also means that the ordinary plan of battle in assessing tribal court authority begins with determining whether the party invoking the court’s jurisdiction identifies a claim against a nonmember that, as a legislative or civil regulatory matter, the tribe possesses inherent legislative power under Montana

Id. at 364.

239

Williams v. Lee, 358 U.S. 217, 220 (1959) (“the right of reservation Indians to make their own laws and be ruled by them”). 240

241 533 U.S. at 359 n.3; see Reservation Tel. Coop. v. Henry, 278 F. Supp. 2d 1015, 1022 (D.N.D. 2003) (Hicks “stands for the general proposition that the Montana ‘rule,’ or Montana’s analysis and limitation on tribal authority over non-members, applies to all Reservation lands regardless of land ownership or land status”). 242 533 U.S. at 382 (Souter, J., concurring); see MacArthur v. San Juan County, 497 F.3d 1057, 1070 (10th Cir. 2007) (under Hicks, “while the nature of the property is a factor—and possibly a dispositive one—to consider in determining whether the regulated activity falls within either of Montana’s two exceptions, . . . the only relevant characteristic for purposes of determining Montana’s applicability in the first instance is the membership status of the individual or entity over which the tribe is asserting authority”) (citations omit‑ ted); see generally Judith V. Royster, Montana at the Crossroads, 38 Conn. L. Rev. 631, 647 (2006) (arguing that Justice Souter’s approach, if adopted, would constitute “the most significant inroad on tribal governmental authority in a quarter century” by “substitut[ing] nonmember expectations for tribal governmental author‑ ity, eviscerat[ing] the sovereign rights of tribes to exclude nonmembers from tribal lands and abrogat[ing] the treaty right to tribal use and occupation of tribal lands”); Krakoff, supra note 175, at 1152 (relying on Justice Souter’s concurrence for the proposition that “while the majority opinion is somewhat muddy and laden with dicta concerning the Court’s overwhelming concern for the state defendants, the case stands for the imposition of some form of Montana analysis onto all questions of tribal jurisdiction over non-Indians”) (footnote omitted).

Atkinson, 532 U.S. at 653 n.5.

243

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to impose.244 Hicks additionally made clear that the second “exception” is simply a restatement of the basic standard described first in Oliphant and reiterated by Montana in a civil context: “Where nonmembers are concerned, the exercise of tribal power beyond what is necessary to protect tribal self-­government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.”245 Atkinson and Hicks, lastly, strongly support the proposition that the first exception is limited to commercial relationships between private parties.

244 See MacArthur v. San Juan County, 497 F.3d 1057, 1068 (10th Cir. 2007) (Hicks’s rule that tribal adjudicatory jurisdiction cannot exceed legislative authority establishes a three-step analytical structure: “whether each party’s [tribal membership] status is such that Montana’s general rule against regulatory authority over nonmembers is implicated;” if so, “whether either of the two exceptions . . . applies[;]” and, if so, “whether the nonmember’s activities also fall within the Tribe’s adjudicative authority”). 245 Hicks, 533 U.S. at 359. A possible corollary to this standard is that the existence of federal or state remedies that can mitigate or eliminate the harm to tribal interests will negate the need for the exercise of tribal jurisdiction. See id. at 373 (observing that “even where the issue is whether the [state] officer has acted unlawfully in the performance of his duties, the tribe and tribal members are of course able to invoke the authority of the Federal Government and federal courts (or the state government and state courts) to vindicate constitutional and other federal- and state-law rights”); id. at 374 (“[s]tate officials operating on a reservation to investigate off-reservation violations of state law are properly held accountable for tortious conduct and civil rights violations in either state or federal court, but not in tribal court”); Strate, 520 U.S. at 459 (“Gisela Fredericks may pursue her case against A-1 Contractors and Stockert in the state forum open to all who sustain injuries on North Dakota’s highway,” and thus “[o]pening the Tribal Court for her optional use is not necessary to protect tribal self-government”); Brendale, 492 U.S. at 431 (“[t]he Tribe in this case, as it should have, first appeared in the county zoning proceedings, but its submission should have been, not that the county was without zoning authority over fee land within the reservation, but that its tribal interests were imperiled”). The second exception’s application subsequent to Strate had been uneven. Compare Montana Dep’t of Transp. v. King, 191 F.3d 1108, 1114 (9th Cir. 1999) (high level of reservation unemployment did not justify imposition of tribal employment relations office regulations on state road construction employees; “the [tribe’s] assertion of authority over the State’s own employees goes beyond the ‘internal functioning of the tribe and its sovereignty’ and instead impinges on one of the State of Montana’s sovereign responsi‑ bilities—maintaining [the highway] and the right of way at its own expense”); and Burlington N.R.R. v. Red Wolf, 196 F.3d 1059, 1065 (9th Cir. 1999) (“The Estates claim that deaths of tribal members cause damage to the community by depriving the Tribe of potential council members, teachers and babysitters.” However, Strate rejected this argument, noting that “ ‘if Montana’s second exception requires no more, the exception would severely shrink the rule’ ”), with Montana v. USEPA, 137 F.3d 1135, 1141 (9th Cir. 1998) (upholding Environmental Protection Agency’s “generalized finding” that the discharge of pollutants by nonmembers from nontribal lands justifies application of the second Montana exception because “due to the mobile nature of pollutants in surface water it would in practice be very difficult to separate the effects of water quality impairment on non-Indian fee land from impairment on the tribal portions of the reservation”); Cheromiah v. United States, 55 F. Supp. 2d 1295, 1305 (D.N.M. 1999) (“[m]alpractice by the major medical provider to the Tribe has a significant impact on ‘the right of reservation Indians to make their own laws and be ruled by them’ as it may jeopardize their very ability to survive as a people”). Atkinson and Hicks strongly indicate that, to the extent lower courts have relied upon generalizations about the effect of nonmember conduct on a tribe’s “political integrity,” as opposed to a fact-specific analysis with respect to the actual impact of a particular nonmember’s conduct, they misapprehend the second exception. As discussed above, the second exception’s availability is likely dependent upon the absence of federal or state law remedies to redress the alleged tribal interest “imperil[ment]” from a third party’s conduct—a consideration not examined by those courts giving the exception wide berth.

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6. Plains Commerce The Supreme Court revisited, and reaffirmed, Montana’s continuing vitality in Plains Commerce Bank v. Long Family Land and Cattle Company.246 The controversy arose as the result of a two-year lease agreement between the bank and a corporation formed under South Dakota law but, at all material times, at least majority-owned by the Longs, both of whom are members of the Cheyenne River Sioux Tribe. The affected land was located on the Tribe’s reservation and had been acquired by the bank from the estate of Mr. Long’s father. The agreement contained a provision granting the corporation the right to purchase the leased land during the lease period.247 When the relationship between the parties deteriorated, the bank filed an action in state court seeking the corporation’s eviction. It then used the tribal court to effect service on the corporation of a notice to quit required under state law. The corporation and the Longs responded by filing suit in tribal court against the bank, eventually alleging various claims, including breach of contract and discrimination.248 Following trial, a jury found in their favor on all but one of those claims and rendered a $750,000 general verdict. A supplemental judgment entered by the tribal trial court gave the corporation and the Longs the option to purchase 960 acres of the 2,230 acres subject to the original lease.249 After the tribal appellate court affirmed the trial court, the bank filed suit in federal court seeking to invalidate the judgment because, inter alia, the tribal courts lacked jurisdiction over the discrimination claim. It was unsuccessful before the district court and the Eighth Circuit Court of Appeals.250 The bank, however, prevailed on the merits before a closely divided Supreme Court, with Chief Justice Roberts authoring the five-member majority opinion and Justice Ginsburg dissenting for herself and three other Justices.251

128 S. Ct. 2709 (2008).

246

Id. at 2715. During the course of the negotiations over the lease and an attendant loan agreement, the bank withdrew a “contract for deed” proposal—which the members believed was more favorable than the eventual lease—because of “ ‘possible jurisdictional problems’ ” that might attend foreclosing on land held by “ ‘an Indian owned entity on the reservation.’ ” Plains Commerce Bank v. Long Family Land and Cattle Co., 491 F.3d 878, 882 (8th Cir. 2007), rev’d, 128 S. Ct. 2709 (2008). That letter, together with the bank’s later sale of the leased property to non-Indians on terms more favorable than those in the option to purchase, formed the basis of the discrimination claim. Id. 247

248 128 S. Ct. at 2715. The discrimination claim was submitted to the jury only with respect to the members themselves. 491 F.3d at 882 n.3.

128 S. Ct. at 2716.

249

Plains Commerce Bank v. Long Family Land and Cattle Co., 440 F. Supp. 2d 1070 (D.S.D. 2006), aff’d, 491 F.3d 878 (8th Cir. 2007), rev’d, 128 S. Ct. 2709 (2008). 250

251 Justices Scalia, Kennedy, Thomas, and Alito joined in the Chief Justice’s opinion. Justices Stevens, Souter, and Breyer joined in Justice Ginsburg’s dissent on the merits. 128 S. Ct. at 2714. The entire court rejected a standing challenge raised by the corporation and the tribal members for the first time in the case. They argued that, although a general verdict had been entered that awarded unsegregated damages for the various claims, the only relief requested for the alleged discrimination was possession of and title to the leased land and that the supplemental judgment giving respondents the right to purchase 960 acres

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The tribal court jurisdiction discussion began with a summary of deci‑ sional authority related to tribes’ “residual sovereignty.”252 The Court noted in this regard that “tribes do not, as a general matter, possess authority over non-Indians who come within their borders” and that “[t]his general rule . . . is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians.”253 Thus, “[o]ur cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it.”254 The Court turned to the Montana exceptions and stressed that “[b]y their terms, the exceptions concern regulation of ‘the activities of nonmembers’ or ‘the conduct of non-Indians on fee land.’ ”255 It added that “[t]he burden rests on the tribe to establish one of the exceptions” and that “[t]hese exceptions are ‘limited’ ones . . . and cannot be construed in a manner that would ‘swallow the rule.’ ”256 With that background, the Court turned to the tribal court jurisdiction to decide the discrimination claim. Although the challenge was to the exercise of judicial authority over a nonmember, it “reaffirm[ed]” the principle that ad‑ judicatory jurisdiction cannot exceed regulatory jurisdiction and then set out the core rationale for reversal: “[T]he Tribal Court lacks jurisdiction to hear the Longs’ discrimination claim because the Tribe lacks the civil jurisdiction to regulate the Bank’s sale of its fee land.”257 Central to the majority’s analysis, therefore, was its characterization of the discrimination claim as limited to “the sale of a 2,230-acre fee parcel that the Bank had acquired from the estate of a non-Indian.”258 The Court, having so framed the issue, traced the legislative initiatives that had resulted in the alienation of land within the involved reservation and concluded that such legislation left fee owners with the ability to “fully aliena[te]” the land.259 “The tribal tort law the Longs are attempting to enforce,

was predicated on the breach-of-contract claim. The Court was unpersuaded, pointing in part to the general verdict and the necessary conclusion “that the jury could have based its damages award, in whole or part, on the finding of discrimination” and the fact that, as to the supplemental judgment, “only the discrimina‑ tion claim sought deed to land as relief.” Id. at 2717–18; see also id. at 2727 (Ginsburg, J., concurring in part and dissenting in part). Id.

252

Id. at 2718–19.

253

Id. at 2719.

254

Id. at 2720.

255

Id. (quoting Atkinson Trading Co. v. Shirley, 532 U.S. 645, 651 (2001)).

256

Id.

257

Id. (emphasis supplied).

258

Id. at 2721. The land at issue is located within the Cheyenne River Sioux Reservation—the location of the dam and reservoir project in Bourland. 128 S. Ct. at 2714–15. The particular parcel owned by the bank had a different alienation history, however, having been converted from trust to fee status under a 1908 statute. Id. at 2720. 259

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however, operates as a restraint on alienation” because “[i]t regulates the substantive terms on which the Bank is able to offer its fee land for sale.”260 Montana and its exceptions did not assist the Longs, the Court reasoned, since they “permit tribal regulation of nonmember conduct inside the reservation that implicates the tribe’s sovereign interests” and such interests do not include “regulat[ing] the sale of non-Indian fee land.”261 The Court then explained the distinction between “conduct” and “sale” in greater detail: The distinction between sale of the land and conduct on it is well­established in our precedent . . . and entirely logical given the limited nature of tribal sovereignty and the liberty interests of nonmembers. By virtue of their incorporation into the United States, the tribe’s sovereign interests are now confined to managing tribal land, . . . “protect[ing] tribal self-government,” and “control[ling] internal relations[.]”. . . The logic of Montana is that certain activities on non-Indian fee land (say, a business enterprise employing tribal members) or certain uses (say, commercial development) may intrude on the internal relations of the tribe or threaten tribal self-rule. To the extent they do, such activities or land uses may be regulated. . . . Put another way, certain forms of nonmember behavior, even on non-Indian fee land, may sufficiently affect the tribe as to justify tribal oversight. While tribes generally have no interest in regulating the conduct of nonmembers, then, they may regulate nonmember behavior that implicates tribal governance and internal relations.262

The Court added that regulation of a non-Indian’s sale of fee land could not be justified under the rubric of “protecting internal relations and self-government” because “[a]ny direct harm to its political integrity that the tribe sustains as a result of fee land sale is sustained at the point the land passes from Indian to non-Indian hands” when “the tribe and its members lose the ability to use the land for their purposes.”263 Thus, “the mere resale of that land works no ad‑ ditional intrusion on tribal relations or self-government[;]” i.e., a “tribe is able fully to vindicate its sovereign interests in protecting its members and pre‑ serving tribal self-government by regulating nonmember activity on the land, within the limits set forth in our cases . . . [and] has no independent interest in restraining alienation of the land itself.”264 In sum, “[t]he Cheyenne River Sioux Tribe lost the authority to restrain the sale of fee simple parcels inside

Id. at 2721.

260

Id.

261

Id. at 2723 (citations omitted).

262

Id. at 2723–24.

263

Id. at 2724.

264

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their borders when the land was sold as part of the 1908 Allotment Act[,]” and “[n]othing in Montana gives it back.”265 Having addressed the first Montana exception at length, the majority opinion dealt quite briefly with the second. It reasoned that conduct within the second exception “must do more than injure the tribe, it must ‘imperil the subsistence’ of the tribal community,” and cited a treatise for the proposition that “ ‘th[e] elevated threshold for application of the second Montana excep‑ tion suggests that tribal power must be necessary to avert catastrophic conse‑ quences.’ ”266 Here, however, “[t]he sale of formerly Indian-owned fee land to a third party is quite possibly disappointing to the tribe, but cannot fairly be called ‘catastrophic’ for tribal self-government.”267 The majority concluded its opinion by rejecting the contention that the bank had submitted to tribal court jurisdiction by using the court for the pur‑ pose of effecting service of the notice to quit. “Seeking the Tribal Court’s aid in serving process on tribal members for a pending state-court action does not . . . constitute consent to future litigation in the Tribal Court.”268 Justice Ginsburg, dissenting in part, did not dispute that the scope of tribal regulatory authority defines the outer bounds of tribal authority but would have concluded that the tribal court could hear the discrimination claim. She instead argued that the bank was “no unwitting outsider force to litigate under familiar rules and procedures in tribal court” but rather was an entity that had knowingly entered into commerical dealings with tribal members, thus making “this . . . a clear case for application of Montana’s first or ‘consensual relationships’ exception.”269 Justice Ginsburg contended further that “[s]ales of land—and related conduct—are surely ‘activities’ within the ordinary sense of the word” and relied on the dictionary meaning of the term “ ‘sale’ ” as encom‑ passing “ ‘[t]he action or an act of selling.’ ”270 The immediate doctrinal significance of Plains Commerce lies in the majority’s distinction between nonmember actions that constitute “conduct” for Montana first exception purposes and those that do not, and its adoption of a “catastrophic” standard for the second exception. As to the “conduct” issue, the Court apparently has imported into the first exception a predicate deter‑ mination that the involved activity must “intrude on the internal relations of

Id. at 2726.

265

Id. (quoting Cohen’s Handbook of Federal Indian Law § 4.02[3][c], at 232 n.220 (Nell Newton et al. eds. 2005)). 266

Id.

267

Id. at 2727.

268

Id. at 2728–29.

269

Id. at 2729–30 (quoting 14 Oxford English Dictionary 388 (2d ed. 1989)).

270

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the tribe or threaten tribal self-rule.”271 It was thus insufficient that the bank’s activity involved a commercial transaction with a tribal member–owned corpo‑ ration or the members themselves, since the nonmember’s “liberty interests”272 in the free alienability of its lands fall outside the reach of the tribe’s “limited sovereign interests.”273 It is difficult, moreover, to cabin this conclusion to the act of selling land; the same rationale would apply to leasing it or granting any other type of interest that affects fee ownership rights. The Court’s holding also means, presumably, that the first exception provides no civil regulatory basis for the other types of claim—including breach of contract—related to land sales. Beyond the specific context of land alienation with its particular statutory and federal common law treatment, Plains Commerce’s implications are less clear other than to underscore the requirement that the involved regu‑ lation relate to maintenance of internal relations and ameliorating threats to self-government.274 The decision thereby logically means that a nonmember cannot create “residual” tribal authority through consent; the nonmember can merely consent to the application of such authority when it otherwise exists.275 Unresolved are the precise standards to be used in determining whether this authority exists and when the requisite consent has been given.276 Further un‑ addressed is whether nonmember consent can form the basis for the exercise of tribal authority where it does not exist as a matter of inherent power and, if so, whether its exercise is subject to federal common law–grounded review. The Court’s disposition of the second exception and approval of the “cata‑ strophic” standard indicates that the exercise of Montana-based inherent, or “residual,” tribal authority has been limited to its consensual core. It is, given the test endorsed in Plains Commerce, unsurprising that the Court has never found the second exception applicable, and a suitable set of circumstances where its

Id. at 2723.

271

Id.

272

Id.

273

Id. at 2724 (Tribal “laws and regulations may be fairly imposed on nonmembers only if the non‑ member has consented, either expressly or by his actions. Even then, the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations”). 274

275 Cf. MacArthur v. San Juan County, 497 F.3d 1057, 1071 (10th Cir. 2007) (“But not just any consensual relationship will do. Rather, Supreme Court precedent clearly limits the regulatory authority of tribes—at least that which is derived solely from their inherent sovereignty—to the reservation’s borders”). 276 In the particular context of restraints on alienation, the Court noted Montana’s statement that there was “ ‘simply no suggestion’ in the history of the [General Allotment] Act ‘that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority’ ” and reasoned that “[i]f Congress did not anticipate tribal jurisdiction would run with the land, we see no reason why a nonmember would think so either.” 128 S. Ct. at 2724. A fair extrapolation from this observation, as well as Montana itself, is that nonmembers do not consent to otherwise extant inherent tribal regulatory power with respect to activities on their fee land merely by virtue of its location within a reservation. Only the second Montana exception, therefore, would be available to rebut the presumptive absence of such power.

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application will be appropriate does not come readily to mind. Consequently, while the federal court litigation in the case focused on the first exception, it may well be that the opinion’s greatest impact as a threshold matter will be with respect to the second. III. STATE AUTHORITY IN INDIAN COUNTRY Federal Indian reservations or other species of Indian country exist in 33 states, varying dramatically with respect to the extent of nonmember population and landownership.277 As state citizens, tribal members are entitled to receipt of those governmental services required to be offered others residing within a state. States, therefore, have a substantial regulatory presence on most Indian reservations, and with that presence inevitably come disputes over the scope of state authority. Because a significant portion of these disputes have arisen in the area of taxation, modern Indian law preemption principles in civil regula‑ tory matters derive largely from cases resolving the propriety of applying state taxes to nonmember activities. These principles nonetheless apply whenever state civil regulatory power is directed to Indian country–based activities of, or transactions with, the resident tribe and its members.278 As an ordinary matter, determination of federal preemption under the Supremacy Clause is governed by standards weighted heavily in favor of giving

277 Census Bureau, U.S. Dep’t of Commerce, Population Housing Units, Area, and Density: 2000, American Indian and Alaska Native Area, and Alaska Native Regional Corporation, (last visited July 13, 2008). 278 The Supreme Court has held that the definition of Indian country in 18 U.S.C. § 1151, even though nominally applicable only in a criminal context, is an appropriate guide to determining whether reference to the special Indian law preemption standards is necessary. Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 124–26 (1993); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 n.5 (1987); DeCoteau v. Dist. County Ct., 420 U.S. 425, 427 n.2 (1975); see Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–49 (1973) (“[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State”); compare Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 174 (2d Cir. 2005) (rejecting Indian Commerce Clause–based claim against application of state tobacco escrow and certification requirements where complaint alleged plaintiff Canadian tribe-owned enterprise “operates only on land that is outside of the United States[,]” and holding that “the activities of [the enterprise] in Canada are no different than the off-reservation activities in Mescalero”); Blunk v. Arizona Dep’t of Transp., 177 F.3d 879, 884 (9th Cir. 1999) (where challenged state regulation occurred outside Indian country, “the federal preemption prong of the Indian preemption doctrine” does not apply), with Cree v. Flores, 157 F.3d 762 (9th Cir. 1998) (holding that the treaty right to travel upon all public highways “in common with citizens of the United States” exempted tribe or its contractors and tribal members or their employees from state license and overweight fees with respect to use of off-reservation highways). The Supreme Court expressly extended Mescalero Apache’s core holding to off-reservation regulation of nonmember activities with potential on-reservation impact in Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005). There, the Court declined to apply Bracker interest-balancing standards in determining the validity of a tax imposed on an off-reservation nontribal distributor with respect to fuel sold to an on-reservation tribal convenience store, reasoning in part that the ability of a state to apply nondiscriminatory laws to Indians off reservation necessarily implied the authority to apply such laws to non-Indians as to an off-reservation activity that may have an on-reserva‑ tion economic effect on a tribe. Id. at 113. Determining the “where” of state regulation thus is important for Indian law analytical purposes. Id. at 101.

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effect to state law. Thus, “[i]n the absence of explicit statutory language signal‑ ing an intent to pre‑empt, we infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law, . . . or where the state law at issue conflicts with federal law, either because it is impossible to comply with both . . . or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives[.]”279 When state civil authority in Indian country is contested, however, the Supreme Court has developed a unique set of rules that are substantially less accommodating of state law. A. State Regulation of Nonmembers 1. Bracker interest-balancing standards The most definitive formulation of the standards to be applied where state regulation of nonmember transactions with the resident tribe or its members is at issue appears in White Mountain Apache Tribe v. Bracker.280 There, a non‑ member enterprise performing on‑reservation logging and hauling work for a tribal corporation challenged imposition of state motor carrier license and use fuel taxes. The Court first observed that, by virtue of Congress’s authority under the Indian Commerce Clause and “the ‘semi‑independent position’ of Indian tribes,” there exist “two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members”: preemption by operation of federal law and impermissible infringement “ ‘on the right of reservation Indians to make their own laws and be ruled by them.’ ”281 Deter‑ mination of federal preemption is resolved by reference to the involved state, federal and tribal interests whose weight is directly affected by the member‑ ship status of the person whom the state seeks to regulate: When on‑reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self‑government is at its strongest. More difficult questions arise where . . . a State asserts authority over the conduct of non‑Indians engaging in activity on the reservation. In such cases we have examined the language of the rel‑ evant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence. This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal,

279 Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 509 (1989); accord Building & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218, 224 (1993); California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280–81 (1987).

448 U.S. 136 (1980).

280

Id. at 142 (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)).

281

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American Indian Law Deskbook, Fourth Edition and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.282

Although the Court used the terms “Indians” and “non‑Indians,” it had made clear just prior to Bracker that Indians who are not members of the resi‑ dent tribe are situated similarly to non-Indians with respect to the scope of state taxation authority.283 The comparable status of such individuals in other regulatory contexts was later noted in the area of liquor regulation.284 The validity of state regulation directed to on‑reservation activities by nonmembers is, as reflected in Bracker, judged by a fact‑specific “particularized inquiry into the nature of the state, federal, and tribal interests at stake[.]”285 Because the ultimate question is whether the state regulation is preempted, close attention must be given to any federal statutory or regulatory scheme affected by the regulation.286 Also integral to assessing federal and tribal in‑ terests is whether the state regulation directly relates to a tribal activity that is conducted either jointly with the federal government or with the latter’s approval.287 The federal and tribal interests, moreover, will be strengthened

Id. at 144–45 (citations omitted).

282

Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 160–61 (1980).

283

Rice v. Rehner, 463 U.S. 713, 720 and n.7 (1983); see also Duro v. Reina, 495 U.S. 676, 684–86 (1990) (for purposes of determining tribal criminal jurisdiction, nonmember Indians and non‑Indians are identi‑ cally placed). 284

285 448 U.S. at 145; see Gila River Indian Cmty. v. Waddell, 91 F.3d 1232, 1238–39 (9th Cir. 1996) (allow‑ ing state taxation of ticket sales to events at tribally owned recreational complex where state contributed to services available at complex and where tax would be passed on to non-Indian ticket purchasers); Salt River Pima-Maricopa Indian Cmty. v. Arizona, 50 F.3d 734 (9th Cir. 1995) (state sales tax allowed on sales in shopping mall developed on tribal trust property). 286 Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877, 884–85 (1986) (federal regulation of state assump‑ tion of civil and criminal adjudicatory jurisdiction); Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 839–41 (1982) (federal regulation of construction and financing of Indian educational institutions preempted interfering state regulation); Cent. Mach. Co. v. Arizona State Tax Comm’n, 448 U.S. 160, 163–64 (1980) (federal regulation of Indian traders); see also Omaha Tribe v. Miller, 311 F. Supp. 2d 816, 823 (S.D. Iowa 2004) (federal tobacco-related statutes examined in concluding that state escrow requirement with respect to cigarette sales by tribal manufacturer not preempted); Cheyenne River Sioux Tribe Tel. Auth. v. Public Utils. Comm’n, 595 N.W.2d 604, 609 (S.D. 1999) (rejecting preemption claim with respect to state public utilities commission’s jurisdiction to disapprove sale of on-reservation portion of telephone exchange to tribal entity since, inter alia, “[t]he [federal] regulatory scheme of telecommunications services specifically grants PUC authority and jurisdiction over intrastate facilities”); see generally Jennifer L. King, Increasing Telephone Penetration Rates and Promoting Economic Development on Tribal Lands: A Proposal to Solve the Tribal and State Jurisdictional Problems, 53 Fed. Comm. L.J. 137 (2000) (discussing federal universal telephone service plan implementation under Telecommunications Act of 1996 and the Cheyenne River Sioux litigation, and recommending that Act be amended to preempt state jurisdiction). 287 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 217–19 (1987) (tribal development of gaming enterprises pursuant to federally approved ordinances and management contracts); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 327–29 (1983) (concerted federal and tribal development of reservation fish and wildlife for commercial purposes); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145–48 (1980) (federal regulation of Indian timber harvesting and maintenance of reservation roads preempted state taxation thereof); compare In re Blue Lake Forest Prods., Inc., 30 F.3d 1138 (9th Cir. 1994) (state Uniform Commercial Code law preempted with respect to bank’s alleged security interest in after-acquired inventory

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to the extent the nonmember receives tribal governmental services in con‑ nection with the activity sought to be regulated by the state.288 Countervailing state interests most commonly have been defined by the off‑reservation effects of the involved activity289 or by the state services provided to the reservation generally or to such activities specifically.290 Proper application of the interest-balancing test adopted in Bracker has provoked substantial dispute among members of the Supreme Court. In Bracker itself, a three‑member dissent argued that the majority overstated the practical impact of what is characterized as “relatively trivial taxes,”291 and dissents in later decisions criticized the preemptive weight given by majority opinions to

by comprehensive scheme governing the harvest and sale of tribal timber), with Red Mountain Mach. Co. v. Grace Inv. Co., 29 F.3d 1408, 1410–11 (9th Cir. 1994) (interest balancing not required in determining that state mechanics lien statutes applied, where contract providing for application of state law was approved by Secretary of the Interior pursuant to authority under 25 U.S.C. § 415(a), which provided for application of state law). 288 Compare Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 157 (1980) (di‑ minished tribal interest where tribes sought to market tax exemption “to nonmembers who do not receive significant tribal services and who would otherwise purchase their cigarettes outside the reservations”), with California v. Cabazon Band of Mission Indians, 480 U.S. 202, 219 (1987) (strong tribal interest where tribes were “not merely importing a product onto the reservations for immediate resale to non‑Indians” but had also “built modern facilities which provide recreational opportunities and ancillary services to their patrons, who do not simply drive onto the reservations, make purchases and depart, but spend extended periods of time there enjoying the services the Tribes provide”); see also Indian Oasis Sch. Dist. v. Zambrano, 526 P.2d 408, 409 (Ariz. Ct. App. 1974) (“Albeit some of the Board members may be Indians, this lawsuit was against them in their capacity as members of the Board and not as individuals. Creation of school districts and their powers is governed by state law; likewise are the powers and duties of the trustees of the school district”). 289 Rice v. Rehner, 463 U.S. 713, 724 (1983) (“[l]iquor sold by [tribal members for off‑premises consump‑ tion] can easily find its way out of the reservation and into the hands of those whom, for whatever reason, the State does not wish to possess alcoholic beverages, or to possess them through a distribution network over which the State has no control”); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 342 (1983) (state unable to point to “any off‑reservation effects that warrant State intervention”); cf. Nevada v. Hicks, 533 U.S. 353, 364 (2001) (fish and game officers not foreclosed on the basis of impermissible interference with tribal self-government from serving search warrant on tribal member within reservation with respect to off-reservation offense “since, as we explained in the context of federal enclaves, the reservation of state authority to serve process is necessary to ‘prevent [such areas] from becoming an asylum for fugitives from justice’ ”). A state may also have an interest in intrareservation effects where it has jurisdiction over certain areas and a tribe does not—such as in Montana v. United States, 450 U.S. 544 (1981), with respect to nonmember hunting and fishing on non-member‑owned lands; in such a situation, the state could possess a strong regulatory concern over nonmember hunting and fishing on tribal lands to the extent fish and game migrate from those lands to non-member‑owned lands. 290 Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 185 (1989) (noting lower court finding that the state provided substantial services on the reservation and to the nonmember taxpayer’s oil and gas extrac‑ tion operations and distinguishing Bracker and Ramah as cases “involv[ing] complete abdication or nonin‑ volvement of the State in the on‑reservation activity”); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 342 (1983) (“New Mexico does not contribute in any significant respect to the maintenance of [reservation wildlife] resources, and can point to no other ‘governmental functions it provides[]’ . . . in connection with hunting and fishing on the reservation by nonmembers that would justify the assertion of its authority”) (citation omitted). 291 448 U.S. at 159 (Stevens, J., dissenting). The total amount of the taxes in question was approximately $25,000 for a 42‑year period—an amount less than 1 percent of the nontribal enterprises’ annual profits over the same length of time. Id. at 153, 159.

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the involved federal statutes or regulatory schemes.292 This debate continues, as reflected in Cotton Petroleum Corp. v. New Mexico,293 where a majority of the Court refused to construe the Omnibus Indian Mineral Leasing Act of 1938294 as implicitly preempting a state’s right to tax a nonmember lessee’s oil and gas production under a tribal lease. Although recognizing that “a purpose of the 1938 Act is to provide Indian tribes with badly needed revenue,” the Court was unwilling to conclude from such purpose “that Congress intended to re‑ move all barriers to profit maximization”295—at least when the state provides some services with respect to the taxed activity and the tax is not “unusually large.”296 The Cotton majority made clear that the value of the state services need not bear a directly proportional relationship to any revenue derived as a result of the regulation.297 The three‑member dissent disputed the majority opinion’s construction of the 1938 Act as inconsistent with the objective of the 1934 Indian Reorganization Act298 and found the majority’s rejection of a proportionality requirement “antithetical to the concerns that animate our Indian pre‑emption jurisprudence.”299 Cotton suggests that, absent contrary federal statutory provisions, state taxation of on‑reservation activities by nonmembers is permissible unless the state provides no on‑reservation services that benefit directly or indirectly the taxed activity or taxpayer or unless the application of the tax frustrates federal Indian policy.300 Application of Bracker interest-balancing standards in other contexts will continue to require detailed analysis of any applicable

292 Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877, 895 (1986) (Rehnquist, J., dissenting) (“Pub. L. 280 does little more than make a general pronouncement that certain federal barriers to state jurisdiction have been eliminated. . . . Nor does the legislative history, the 1968 amendments, or their legislative history provide any additions that transform the general pronouncement into a ‘comprehensive’ plan”); Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 852 (1982) (Rehnquist, J., dissenting) (in Bracker “the Court engaged in a detailed examination of the extent to which state taxes would interfere both with the Secretary’s ability to carry out his congressional mandate and with the tribe’s ability to carry out federal policy. In place of such careful analysis, the Court today relies on ipse dixit. It does so because there is no realistic basis for concluding that the State’s taxes would interfere with a ‘pervasive’ regulatory scheme. The BIA simply does not regulate the construction activity which the State seeks to tax”); Cent. Mach. Co. v. Arizona State Tax Comm’n, 448 U.S. 160, 168–69 (1980) (Stewart, J., dissenting) (“[a]lthough the appellant was obliged to obtain federal approval of the sale transaction in this case, . . . it was not subjected to the much more comprehensive regulation that governs licensed traders engaged in a continuous course of dealing with reservation Indians. . . . In these circumstances, the Court’s expressed belief that the minimal regulation to which the appellant was subject ‘leaves no room’ for the state tax in this case strikes me as hyperbolic”).

490 U.S. 163 (1989).

293

Act of May 11, 1938, 52 Stat. 347 (codified as amended at 25 U.S.C. §§ 396a–396g).

294

Cotton Petroleum, 490 U.S. at 180.

295

Id. at 186.

296

Id. at 185 n.15.

297

Act of June 18, 1934, 48 Stat. 984, 987 (codified as amended at 25 U.S.C. §§ 461–478).

298

490 U.S. at 208.

299

See Crow Tribe v. Montana, 819 F.2d 895 (9th Cir. 1987), aff’d mem., 484 U.S. 997 (1988).

300

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federal statutes, treaties, and regulations; the federal and tribal interests that those statutes or regulations seek to promote; the degree to which the state regulation interferes with or complements those interests; and the regulation’s practical importance to the state. An important component of this analysis is whether the involved tribe has congressionally delegated or inherent regula‑ tory jurisdiction over the particular activity since, if it does not, the state’s regulatory interest becomes stronger. Nonetheless, as indicated by Colville301 and later decisions, the existence of tribal regulatory power does not in itself preclude concurrent exercise of state jurisdiction in the field of taxation and, more than likely, other areas.302 Last, the Bracker interest-balancing standard has no applicability to state regulation directed to nonmembers with respect to activities or transactions not involving the resident tribe or its members. The Supreme Court accord‑ ingly observed in County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation303 that “[t]his Court’s more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on reservation lands.”304 While this statement was dictum,305 it is consistent with the literal phrasing of Bracker’s interest-balancing standard—which is concerned only with activities involving nonmember interactions with tribes or their members. It is also consistent with commonsense application of the standard itself given the ab‑ sence of any significant tribal interest in situations where no commercial or other relationship exists.306

Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134 (1980).

301

But see Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir. 1987) (distinguishing munici‑ pal rent control ordinance from taxation statute since tax provisions “of both the State and Tribe may be enforced simultaneously” and finding rent control ordinance preempted). 302

502 U.S. 251 (1992).

303

Id. at 257–58.

304

The only issue addressed in Yakima was whether Congress had authorized the state taxation of tribally owned allotted lands. Id. at 253. 305

306 The Ninth Circuit Court of Appeals’ decision in Table Bluff Reservation (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879 (9th Cir. 2001), reflects the need for a particularized tribal interest before a Bracker balancing inquiry becomes mandatory. The court held that a tribe lacked standing to challenge a provi‑ sion in a nationwide tobacco litigation settlement agreement precluding outdoor advertising anywhere in the signatory states, including within Indian country. It reasoned that agreement was enforceable only against tobacco company signatories and noted that the tribes did not “identify . . . any tribal regulation, or any tribal contract, that would be affected by the [agreement’s] restrictions on advertising.” Id. at 882–83. Although couched in standing terms, Table Bluff implicitly indicates that mere regulation of nonmembers, even where on-reservation conduct is affected, is an insufficient predicate for application of Indian law preemption standards. See also Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481, 487 (9th Cir. 1998) (finding the Bracker balancing test inapplicable in challenge to state statute under which release of investigative report concerned with tribal gaming facility was authorized because law was of general ap‑ plication, was unrelated to Indian gaming, and did “not seek to usurp tribal control over gaming nor [did it] threaten to undercut federal authority over Indian gaming”); Van Kruiningen v. Plan B, LLC, 485 F. Supp. 2d 92, 97 (D. Conn. 2007) (application of state underage drinking law as basis for wrongful discharge claim

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Consonant with Yakima’s general statement is Arizona Department of Revenue v. Blaze Construction Co.307 The Supreme Court rejected there the conten‑ tion that the Bracker interest-balancing standard applied to a state tax imposed on a federal contractor with respect to proceeds from work on various Indian reservations. Relying on the general rule formulated in United States v. New Mexico308 that permits nondiscriminatory state taxation of federal contractors absent contrary congressional direction, the Court reasoned that “[i]nterest balancing in this setting would only cloud the clear rule established by our decision in New Mexico” and run counter to the value of “a bright-line standard for taxation of federal contracts”—i.e., avoiding litigation and ensuring efficient tax administration.309 Blaze stands for the broader proposition that Bracker does not articulate a universally applicable standard even when, as with the federal construction contracts, tribal interests are affected, so long as the tribe or its members are not directly involved in the activity.310 2. The Williams self-governance standard As the Court had remarked in McClanahan v. Arizona State Tax Commission311 seven years before Bracker, “the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre‑emption[,]” and “[t]he modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power.”312 It then noted that, “since in almost all cases federal treaties and statutes define the boundar‑ ies of federal and state jurisdiction[,]” the question of whether “residual Indian sovereignty” acts to bar state regulatory jurisdiction “is generally of little more than theoretical importance[.]”313 It is thus unsurprising that Bracker analysis typically makes unnecessary discrete analysis of whether tribal self‑government interests have been improp‑ erly infringed upon, since the preemption analysis incorporates consideration of “traditional notions of Indian self‑government . . . [as] an important ‘back‑

against nontribal owner of reservation casino was not preempted “where the tribe will not be affected by the outcome of the litigation” and given tradition of concurrent state-tribal regulation of liquor). 307

526 U.S. 32 (1999). 455 U.S. 720 (1982).

308

526 U.S. at 37.

309

Id. The Court left open the question “whether the Indian preemption doctrine would apply when Tribes choose to take a more direct and active role in administering the federal funds.” Id. at 38–39. 310

311

411 U.S. 164 (1973).

Id. at 172; see generally Watson, supra note 6, at 463–64 (“even prior to the twentieth century, the Supreme Court’s ‘flat prohibition against unilateral state assertions of authority’ over tribal lands was erod‑ ing, with ‘the broad exclusionary language of Worcester [v. Georgia, 31 U.S. (6 Pet.) 515 (1832)] . . . yield[ing] to the distinction between Indians and non-Indians’ ”). 312

411 U.S. at 172 n.8.

313

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drop’ . . . against which vague or ambiguous federal enactments must always be measured”314—i.e., if federal law does not preempt the state regulation, notions of retained tribal authority cannot, since Congress has implicitly permitted the regulation and thereby divested the tribe of any contrary authority. It is no less unsurprising that no modern decision by the Supreme Court has relied upon tribal sovereignty as an independent basis for limiting state civil regulatory authority; interference with tribal self‑government rights instead has been found only with respect to the exercise of state civil adjudicatory jurisdiction.315 Indeed, the ability of nonmembers to assert a Williams-based preemption challenge at all is questionable.316 The Supreme Court nonetheless has expressly left open the potential for tribes to bring challenges to state regu‑ lation or taxation of nonmembers.317 Lastly, decisions in Nevada v. Hicks318 and

314 Bracker, 448 U.S. at 143; see also Rice v. Rehner, 463 U.S. 713, 719–20 (1983) (“When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usu‑ ally are reluctant to infer that Congress has authorized the assertion of state authority in that respect ‘except where Congress has expressly provided that State laws shall apply[.]’ . . . If, however, we do not find such a tradition, or if we determine that the balance of state, federal, and tribal interests so requires, our preemption analysis may accord less weight to the ‘backdrop’ of tribal sovereignty”) (citation omitted); Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 156–57 (1980) (“[t]he principle of tribal self‑government, grounded in notions of inherent sovereignty and in congressional policies, seeks an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other”). 315 Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877, 891 (1986) (“[b]y requiring that the Tribe open itself up to the coercive jurisdiction of state courts for all matters occurring on the reservation, the statute invites a potentially severe impairment of the authority of the tribal government, its courts, and its laws”); Fisher v. Dist. Ct., 424 U.S. 382 (1976) (per curiam) (state courts lacked jurisdiction to resolve adoption pro‑ ceeding involving only tribal members who resided on their reservation); Kennerly v. Dist. Ct., 400 U.S. 423 (1971) (per curiam) (state courts lacked jurisdiction over action commenced against tribal members for debt incurred by them in on‑reservation transactions absent compliance with Public Law 280’s jurisdictional assumption requirements); Williams v. Lee, 358 U.S. 217 (1959) (state court action against nonconsenting tribal member for reservation-incurred debt preempted); compare Frederick J. Martone, American Indian Tribal Self-Government in the Federal System: Inherent Right or Congressional License?, 51 Notre Dame. L. Rev. 600, 631 (1976) (“[t]he result [of McClanahan and Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)] is that federal preemption, not tribal sovereignty, insulates tribal Indians from state jurisdiction”), with Charles F. Wilkinson, American Indians, Time, and the Law 106 (1987) (remarking that the tribal self-government “doctrine has not received as much attention from the Court as [federal law] preemption because statutes have been available to resolve most of the cases” but suggesting that “[i]mportant questions remain to be resolved, especially regarding the final boundaries of state taxation, state environmental and commercial regulation, and state and tribal court jurisdiction”). 316 E.g., Hagener v. Wallace, 47 P.3d 847, 855 (Mont. 2002) (nonmembers lack standing to assert Williamsbased preemption claim because they “have insufficient ‘personal’ interest in defending the self-government interests of the . . . Tribe”). 317 Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 454 (1995); Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 126 (1993); see Confederated Salish and Kootenai Tribes v. Clinch, 158 P.3d 377, 384–86 (Mont. 2007) (construing Bracker as containing two distinct analytical standards—an interest-bal‑ ancing “preemption” standard and a “sovereignty” standard predicated on avoiding interference with tribal self-governance—and remanding for fact-finding under the latter after rejecting challenge to state authority under the former).

533 U.S. 353, 360–61 (2001).

318

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Strate v. A-1 Contractors319 indicate that the Williams infringement standard320 may receive greater attention, since it has become a linchpin for determining the scope of inherent tribal authority under Montana v. United States.321 B. Direct State Regulation of Resident Tribe or Its Members Various Supreme Court decisions have addressed the existence of state civil regulatory authority over tribes or tribal members for activities or trans‑ actions on their own reservations.322 It is now settled that neither is subject to state taxation with respect to such activities or transactions in the absence of congressional authorization.323 In other situations, though, state regulation of tribes or tribal members is not automatically foreclosed where Congress has not so directly commanded, and its validity turns, as it does when dealing with

520 U.S. 438, 459 (1997).

319

358 U.S. 217, 220 (1959) (finding preemption of state court jurisdiction on the basis of “the right of reservation Indians to make their own laws and be ruled by them”). 320

450 U.S. 544 (1981); see Chapter 5, part II.B and C.

321

While tribes possess sovereign immunity from suit absent explicit congressional or tribal consent, their officers, agents, and members do not. E.g., Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58–59 (1978). State regulation of tribes or tribal entities, if otherwise permissible, can therefore presumably be enforced against individuals responsible for conducting the regulated activity. See generally Chapter 7, part I.B.3 (discussing tribal officer suability). 322

323 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 n.17 (1987); see also Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458 (1995); Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985); Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 163–64 (1980); Bryan v. Itasca County, 426 U.S. 373, 375–77 (1976); Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 475–81 (1976); see also Aroostook Band of Micmacs v. Ryan, 484 F.3d 41, 52–53 (1st Cir. 2007) (state human rights and whistleblowers’ protection acts applicable to tribe by virtue of Maine Indian Claims Settlement Act’s subjecting it to state law to the same extent as other persons); Houlton Band of Maliseet Indians v. Ryan, 484 F.3d 73 (1st Cir. 2007) (same); Oneida Tribe v. Vill. of Hobart, 542 F. Supp. 2d 908, 926 (E.D. Wis. 2008) (in rem state condemnation law applied to reservation land held in fee by tribe in light of County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251 (1992); “exceptional circumstances” test has “no application where Congress ha[s] already performed the balancing of interests”); see generally Kevin K. Washburn, The Legacy of Bryan v. Itasca County: How an Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion in Indian Gaming Revenue, 92 Minn. L. Rev. 919, 963 (2008) (examining the relation‑ ship between Bryan and Cabazon with respect to the application of Public Law 280; “[t]he Court upheld [in Cabazon] the principle from Bryan that Public Law 280 embodied a distinction between civil/regulatory and criminal/prohibitory state laws”). Absent contrary federal law, a tribe may consent to state regulation or otherwise may undertake responsibilities voluntarily. E.g., Polk County v. Dep’t of Land Conservation and Devel., 176 P.3d 432, 440 (Or. Ct. App. 2008) (although the parties “agree that the county has no authority to zone [off-reservation] trust lands,” tribe could consent to application of county comprehensive land use plan); Citizens to Enforce CEQA v. City of Rohnert Park, 33 Cal. Rptr. 3d 208, 214 (Ct. App. 2005) (no federal preemption of agreement between tribe and city related to mitigating impacts from casino development; “[t]he [agreement] is not an ordinance or law, and does not conflict with any superior law”). Whether otherwise applicable substantive law can be enforced directly against a tribe, however, often may require independent analysis. Compare Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30 (1st Cir. 2006) (en banc) (state officials authorized to arrest tribal employees involved in sale of unstamped cigarettes even if tribe itself is immune from prosecution; “because the Tribe is legally obligated to comply with the State’s cigarette tax scheme, . . . violations of that scheme by the Tribe’s officers fall outside the scope of their official capacity”), with Filer v. Tohono O’Odham Nation Gaming Enter., 129 P.3d 78, 83 (Ariz. Ct. App. 2006) (although state possessed regulatory authority to enforce dram statute against tribe by virtue of 18 U.S.C. § 1161, tribal immunity from suit precluded enforcement of the statute).

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regulation of nonmembers, upon an analysis of the involved state, federal, and tribal interests.324 Because of a tribe’s inherent authority over reservation‑based activities of itself and its members, a state’s interests will justify regulation of a tribe or its members only “in exceptional circumstances.”325 Those circum‑ stances have been found in connection with the imposition of reasonable re‑ cord-­keeping and collection responsibilities as to state cigarette sales taxes as collected from nonmembers,326 state regulation of on‑reservation liquor sales by tribal members for off‑premises consumption,327 and tribal member fishing practices.328 The Court failed to find such circumstances in Cabazon329 with re‑ spect to whether a state could prevent “Tribes from making available high stakes

Cabazon, 480 U.S. at 214–16.

324

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331–32 (1983) (state regulation of members and nonmembers prohibited). 325

326 Compare Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 159–60 (1980) (maintaining records as to member and nonmember sales, requiring proof of tribal membership, and col‑ lecting taxes); and Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 482–83 (1976), with Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995) (disallowing imposition of state gasoline tax where incidence fell on Indian retailer instead of nonmember consumer). 327 Rice v. Rehner, 463 U.S. 713, 732–33 (1983). In Rice the Court found that, because of historically pervasive federal regulation over the introduction of alcohol into Indian country, Congress had “divested the Indians of any inherent power to regulate in this area” (id. at 724) and that, by virtue of 18 U.S.C. § 1161, it had affirmatively granted states the power to impose their own nondiscriminatory liquor regulations on member retailers (id. at 733). But see Filer v. Tohono O’Odham Nation Gaming Enter., 129 P.3d 78, 83 (Ariz. Ct. App. 2006) (holding that state dram shop act constituted a state liquor law within the scope of § 1161, but concluding that enforcement against tribe or tribal employees was barred by tribal immunity from suit; “a state’s power to regulate certain tribal activities and its ability to bring a lawsuit against a tribe in state or federal court are not necessarily coextensive”); cf. Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 24–25, 27 (1st Cir. 2006) (en banc) (authorization under Rhode Island Indian Claims Settlement Act for application of state civil and criminal law to settlement lands abrogated tribal immunity from suit except, conceivably, as to internal governance matters, and state officials therefore were entitled to confiscate unstamped cigarettes from tribal store; overruling Aroostook Band of Micmacs v. Ryan, 404 F.3d 48 (1st Cir. 2005), to the extent it held that the issue of tribal immunity from suit is distinct from the question whether the tribe is subject to state regulation). While Rice could be viewed as suggesting that state regulation of tribes or members is permissible only if no tradition of tribal self‑government exists as to the regulated activity or if Congress has specifically permitted the regulation, the previously decided Colville and Moe indicate otherwise, as does the later decided California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). See Ward v. New York, 291 F. Supp. 2d 188, 204–05 (W.D.N.Y. 2003) (no likelihood of success for preemption challenge to state statute that prohibited direct sale and shipment of cigarettes from vendor to purchaser where tribal vendor located on reservation and nonmember purchaser located off reservation and where state could point to pernicious off-reservation effects of smoking); cf. Gobin v. Snohomish County, 304 F.3d 909 (9th Cir. 2002) (rejecting contention that Congress had authorized imposition of county land use regu‑ lation on tribal member’s reservation property by virtue of 25 U.S.C. § 349, and then considering whether “exceptional circumstances” justified the regulation). 328 Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165 (1977). Under the Treaty of Medicine Creek, the Puyallup Tribe was given the right to fish at “all usual and accustomed grounds and stations . . . in common with all citizens of the territory[,]” which right encompassed both on- and off‑reservation locations. 10 Stat. 1132, 1133 (1855). Although initially set aside for the tribe’s exclusive occupancy, virtually the entire res‑ ervation was eventually alienated to nonmembers. Puyallup, 433 U.S. at 174. The Court rejected the tribe’s claim to an exclusive privilege to harvest fish within the reservation and further held that the state through judicial proceedings could impose reasonable restrictions on member fishing to conserve the resource and to apportion its harvest fairly between treaty and nontreaty fishermen. Id. at 175–77; see also Dep’t of Game v. Puyallup Tribe, 414 U.S. 44, 48–49 (1973); Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 401–03 (1968).

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

329

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bingo games to non‑Indians coming from outside the reservation[,]”330 relying upon the approval and extensive involvement of the federal government in the tribal gaming enterprises, the economic importance of the enterprises to tribal government and tribal member subsistence, and the absence of any showing that the enterprises had actually attracted organized crime activity—the only state interest asserted.331 Therefore, the requisite “exceptional circumstances” are likely to be found only when the involved state regulation serves as an important adjunct to independently valid regulation of nonmember activity, where specific statutory or treaty provisions apply, or where very significant state interests are immediately implicated.332 Litigation over the applicability of state law to tribes and their members since Mescalero Apache Tribe v. Jones333 has been limited, until recently, to con‑ duct within Indian country. However, two decisions have found application of state law to tribal activities outside reservation boundaries to be preempted under Indian law principles. In Cabazon Band of Mission Indians v. Smith,334 the Ninth Circuit Court of Appeals invalidated the application to Indian tribes of a California statute that prohibited anyone other than state, county, city, and federal law enforcement officers from displaying or using emergency light bars.335 The statute included exceptions allowing law enforcement officials from bordering states and one tribe, whose reservation straddles California

Id. at 216.

330

Id. at 217–22.

331

332 See Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966, 983 (10th Cir. 2005) (state failed to make requisite showing of substantial interest to justify regulating billboard erected on tribal trust land pursuant to lease between tribe and advertiser; observing in part that “the provisions of [the state] Act are virtually identical to those set forth in the [federal Highway Beautification Act], and thus there appears to be no unique state interest in regulating the billboards[,]” and rejecting reliance on the exemption-marketing rationale because no state tax was involved and because “the Band has a significant economic interest in the land at issue and the billboard advertising that is occurring thereon”); Gobin v. Snohomish County, 304 F.3d 909, 917–18 (9th Cir. 2002) (“exceptional circumstances” standard not met by county attempting to impose land use regulation on tribal member’s reservation property); compare State v. Jones, 729 N.W.2d 1, 13 (Minn. 2007) (G. Anderson, J., concurring) (arguing that on-reservation application of predatory-offender registration statute against tribal member warranted under the “exceptional circumstances” standard since “[t]he state’s interest in keeping track of convicted kidnappers is at least as high as its interest in collecting cigarette and liquor taxes from on-reservation sales or in regulating fishing on tribal waters”), with In re Commitment of Beaulieu, 737 N.W.2d 231, 239–41 (Minn. Ct. App. 2007) (applying ordinary interest-balanc‑ ing standards, and holding that state’s civil commitment statute could be applied to tribal member); cf. Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 22 (1st Cir. 2006) (en banc) (holding that state officials were entitled to enforce cigarette tax laws against tribal retailer under the Rhode Island Indian Claims Settlement Act, but reasoning further that “the general body of Indian law also supports a conclusion that the State may undertake the enforcement activities”); see generally Paul Porter, Note, A Tale of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity and Federal Preemption Doctrines Preventing States’ Enforcement of Campaign Contribution Regulations on Indian Tribes, 40 U. Mich. J.L. Reform 191, 208–09 (2006) (contending that “exceptional circumstances” support on-reservation state regulation of state election campaign contribution disclosure statutes).

411 U.S. 145 (1973).

333

388 F.3d 691 (9th Cir. 2004).

334

Id. at 698–99.

335

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and Nevada, to display and activate their light bars under certain conditions, and allowing private security companies to display but not activate their light bars.336 During the litigation’s course, the plaintiff tribe had entered into a deputation agreement with the Bureau of Indian Affairs that, in part, com‑ missioned tribal officers as federal agents and recognized the need for them to travel off reservation in their official vehicles to access all parts of the res‑ ervation—which is not composed of wholly contiguous parcels—as quickly as possible.337 The court deemed “the relevant comparison” to be “between law enforcement agencies” and found the tribal officers situated similarly to the federal and state personnel.338 It rejected the defendants’ justification for the state statute not including the tribal officers’ vehicles as “authorized emergency vehicles,” finding no evidence to establish that (1) the officers’ vehicles slowed traffic by virtue of motorist reaction to the light bars more than with “other myriad vehicles” authorized to travel on state highways with such bars; (2) the tribe had or would employ unqualified officers; or (3) compliance with state law enforcement training requirements was necessary since neither federal personnel nor officers of the one tribe allowed to display the light bar off reservation were obligated to meet those requirements.339 Under these circumstances, the court concluded, “[p]rohibiting the Tribe’s police vehicles from simply displaying emergency light bars while permitting similarly situated law enforcement agencies much wider latitude to display and to use such bars discriminates against the Tribe and unduly burdens its ability to effectively perform its on-reservation law enforcement functions, thus frustrating the federal policy supporting tribal self-government.”340 Motor vehicles were also the source of conflict in the second case, Prairie Band Potawatomi Nation v. Wagnon,341 where the question was whether Kansas was obligated to recognize tribally issued registrations and titles. In holding that the state was so obligated, the majority of a Tenth Circuit Court of Appeals panel reasoned that, while it did not “necessarily disagree with Defendants’ statement that the ‘[Bracker] balancing of interests test [is inapplicable] when the activity sought to be regulated by the State takes place off reservation land[,]’ . . . the activity at issue in this case, the licensing and titling of vehicles, takes place on the reservation.”342 It accepted further the proposition that, were the

Id.

336

Id. at 696–97.

337

Id. at 699.

338

Id. at 700.

339

Id. at 701.

340

402 F.3d 1015 (10th Cir. 2005), vacated and remanded, 546 U.S. 1072 (2005), on remand, 476 F. 3d. 818 (10th Cir. 2007). 341

Id. at 1022.

342

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state defendants’ position accepted, “the Tribe’s ‘motor vehicle code will be effectively defunct.’ ”343 The court identified as the tribal interest for Bracker purposes “regulating motor vehicles on its reservation through the comprehen‑ sive [tribal motor vehicle code]” and as the federal interest “promoting strong tribal economic development, self-sufficiency, and self-governance” even in the absence of “ ‘federal legislation addressing tribal vehicle registrations and titling.’ ”344 The principal interest proffered by the defendants—safety—was considered less weighty based on a prior decision that concluded, “safety concerns were likely exaggerated[,]” the district court’s determination that the “ ‘the balance tips in favor of the [Tribe]’ ” notwithstanding those concerns, and the fact that “Kansas recognizes license plates from other states, Canada, and Mexico, and tribally issued tags from other jurisdictions, including Minnesota and Oklahoma, without any record-supported safety concerns.”345 The majority declined to follow the approach adopted by a concurring panel member—i.e., that Mescalero Apache standards applied and that the state statute’s failure to recognize a Kansas tribe’s license was impermissibly discriminatory346—on the ground that although “ ‘discrimination’ may very well be an additional ap‑ propriate analysis in the instant case,” the controversy had not been tried or argued by the parties on such ground.347 These decisions raise provocative questions about the application of Mescalero Apache and Bracker that likely will be the subject of future judicial attention. For example, the Cabazon court apparently assumed that Mescalero Apache prescribes a special preemption test—whether a particular state regu‑ lation discriminates against a tribe or tribal member—as opposed to simply acknowledging that state action that violates the Equal Protection Clause of the Fourteenth Amendment cannot be enforced. The Prairie Band court, moreover, deemed the “activity at issue” to be the on-reservation tribal registration and titling of vehicles, even though the actual regulation challenged by the tribe was the Kansas statutes that did not accord recognition to the tribal licensing. Perhaps a more apt rationale for the court’s application of Bracker standards lay in the notion that interest balancing is required when off-reservation state regulation has on-reservation impacts—a rationale that was rejected in practi‑ cal effect by the Ninth Circuit in Cabazon Band.348

Id. at 1024.

343

Id. at 1023–24.

344

Id. at 1024.

345

Id. at 1028–29 (McConnell, J., concurring).

346

Id. at 1026.

347

388 F.3d at 698 (“[b]ecause the regulated activity is the tribal police officers’ display of emergency light bars when traveling on public roads [off reservation], . . . the appropriate test is that for off-reservation activities as set forth in Mescalero”); see generally Kathleen Corr, Comment, A Doctrinal Traffic Jam: The Role of Federal Preemption Analysis in Conflicts Between State and Tribal Vehicle Codes, 74 U. Colo. L. Rev. 715, 755 348

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That rationale also was rejected subsequently by the Supreme Court in Wagnon v. Prairie Band Potawatomi Nation.349 The Court held in Wagnon that the Bracker interest-balancing test did not apply in assessing the validity of a motor fuel tax where the taxable event—the “first receipt” of the fuel by a non‑ tribal distributor who bore the tax’s legal incidence—occurred off reservation. It prefaced the Bracker-related analysis with the general observation that the interest-balancing “test has never been applied where, as here, the State as‑ serts its taxing authority over non-Indians off the reservation” and that, while the issue had never been addressed directly before, “our Indian tax immunity cases counsel against such an application.”350 The Court then cited its numer‑ ous decisions that had applied Bracker in an on-reservation context and found that its limitation to such a context was reasonable given the importance of territoriality in determining issues of tribal sovereignty.351 It contrasted the doctrinal rule in those decisions with the Mescalero Apache standard, where “we have concluded that ‘[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non‑ discriminatory state law otherwise applicable to all citizens of the State.’ ”352 In light of that standard, “it follows that [a State] may apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reserva‑ tion transaction.”353 The Court rejected reliance by the tribe on the effects of the state tax on its ability to impose a tribal fuel tax, characterizing the argument as “ultimately a complaint about the downstream economic consequences of the Kansas tax.”354 It further saw no merit in the tribe’s contention that the fuel tax was impermissibly discriminatory because it allowed deductions for sales to other sovereigns, such as the federal government and states. The majority concluded the tribe was situated differently, since Kansas uses the tax proceeds to maintain a highway infrastructure on the reservation and since “to the extent Kansas fuel retailers bear the cost of the fuel tax, that burden falls equally upon all retailers within the State regardless of whether those retailers are located on an Indian reservation.”355 Justice Ginsburg, joined by Justice Kennedy, dis‑ sented over the applicability of Bracker standards, deeming as central the fact that “[w]ith respect to sales and deliveries to [the tribe’s convenience store], . . .

(2003) (suggesting a “hybrid approach” under which “[r]ather than using balancing analysis to determine whether states may regulate on-reservation conduct with off-reservation effects, courts could balance state and tribal interests to determine whether the conduct at issue primary occurs on or off reservations”). 546 U.S. 95 (2005).

349

Id. at 110.

350

Id. at 112–13.

351

Id. at 113.

352

Id.

353

Id. at 114.

354

Id. at 115.

355

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the nontribal entity can indeed be described as ‘engaged in [an on-reservation] transaction with [a tribe].’ ”356 The Court subsequently vacated the Tenth Circuit’s decision in the Prairie Band motor vehicle registration case and remanded the case for reconsideration in light of the Wagnon fuel tax decision.357 On remand, the Court of Appeals adhered to its prior result but employed a different rationale.358 It began with the proposition that the case “does not concern the location of any individual vehicle or residency of any individual driver, but the sovereign right to make equally enforceable and equally re­spec­ ted regulations in an arena free of discrimination.”359 The court thus rejected the state’s argument that it could impose vehicle registration requirements on its own citizens because “the discriminatory effect is to be analyzed between sovereigns, not individual drivers.”360 This shift in analytical focus meant that “we must no longer concern ourselves with the severity of the effect of the State’s regulation on the Nation’s sovereign interests, but determine whether the State’s law discriminates against the Nation’s right to make such regulations vis-à-vis other sovereigns.”361 The court then found that Kansas law did discrimi‑ nate insofar as it recognized as valid licenses on vehicles registered by, inter alia, other states and non-Kansas tribes to the extent that those tribes’ resident states extended reciprocity to the tribal registration.362 It was unpersuaded by the state’s proffered justification—safety concerns—since that concern had not prevented extending recognition to other jurisdictions’ registrations.363 The Tenth Circuit’s determination raises questions over the “discrimina‑ tion” component of the Mescalero Apache standard. The persons regulated by Kansas were individual tribal members, not the tribe itself, and were subject to the same vehicle registration requirements for off-reservation use as any other Kansas resident. Even if the regulatory focus is shifted from members to the tribe, however, the latter is not situated similarly to a state in the arena of interstate commerce,364 while the recognition for registrations of non-Kansas tribes derives from reciprocity extended by the involved tribe’s home state.365 Further litigation on this and other “discrimination”-related issues is likely.

Id. at 123.

356

Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 1072 (2005).

357

Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007).

358

Id. at 823.

359

Id. at 826.

360

Id. at 823–24.

361

Id. at 825–26.

362

Id. at 826–27.

363

E.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989).

364

See State v. Wakole, 959 P.2d 882, 884–85 (Kan. 1998) (Kansas reciprocity statute for motor vehicles duly registered in another state encompassed Oklahoma tribe’s license where Oklahoma law deemed to recognize it as valid for use throughout that state). 365

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Chapter 6 Civil Adjudicatory Jurisdiction

Courts adjudicating civil matters connected with Indian country must make the threshold decision whether subject matter jurisdiction exists or, in the case of federal courts, whether it should be exercised even when present. The core issues involve the standards of review applicable in federal court proceedings following exhaustion of tribal court remedies where the latter court’s jurisdiction is challenged; the extent of a federal court’s obligation to defer to either existing or possible tribal court proceedings when federal question or diversity jurisdiction is asserted over a dispute; and whether a tribe’s or state’s civil adjudicatory jurisdiction is measured by standards comparable to those used to determine regulatory jurisdiction. The increasing activity of tribal courts underscores the need to clarify not only the standards to be used in determining whether their judgments should be recognized in federal and state courts, but also whether tribal courts have a federal law–mandated obligation to extend full faith and credit to federal and state court judgments. These issues are among the most important and controversial in Indian law. I. FEDERAL ADJUDICATORY JURISDICTION Three principal jurisdictional bases exist for initiating federal court actions over controversies arising in Indian country and involving tribes or their members: a special form of federal question jurisdiction under 28 U.S.C. § 1362 available only to Indian tribes, general federal question jurisdiction under 28 U.S.C. § 1331, and diversity of citizenship jurisdiction under 28 U.S.C. § 1332. It appears settled in this regard that tribes are not “persons” for purposes of diversity jurisdiction, absent incorporation under section 17 of the Indian Reorganization Act or their own laws. The only practical significance of 28 U.S.C. § 1362 now derives from its interaction with 28 U.S.C. § 1341, which

25 U.S.C. § 477.

1

See Auto-Owners Ins. Co. v. Tribal Ct., 495 F.3d 1017, 1020–21 (8th Cir. 2007); American Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1095 (9th Cir. 2002). 

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generally prohibits the exercise of federal jurisdiction over claims relating to the operation of state tax laws. Far more significant are two United States Supreme Court decisions that, as applied by lower courts, have affected dramatically the exercise of general federal question and diversity jurisdiction over claims by nontribal plaintiffs with respect to reservation-based claims. A. 28 U.S.C. § 1362: Special Jurisdictional Authorization for Indian Tribes In 1966, Congress enacted 28 U.S.C. § 1362, which provides that “[t]he district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.” Tribal status for section 1362 purposes is thus dependent not only upon actual recognition by the secretary of an entity’s governing body but also upon determination that the entity constitutes an Indian tribe. Tribal status presumably should be determined in accordance with ordinary standards. Although once in doubt, it now appears settled that an Alaskan Native village organized under the Indian Reorganization Act (IRA) may constitute an “Indian tribe or band” under section 1362. Implicit in the tribal status requirement is the inability of individual members to assert section 1362 as a jurisdictional basis. Section 1362 further limits its jurisdictional grant to controversies arising “under the Constitution, laws, or treaties of the United States”—i.e., controversies involving federal questions. Courts have found the requisite federal ques-

Price v. Hawaii, 764 F.2d 623, 626 (9th Cir. 1985).



See generally Chapter 2, part I (discussing standards used to resolve tribal status issues).



Alaska v. Native Vill. of Venetie, 856 F.2d 1384, 1387 (9th Cir. 1988) (remarking that the relevant statutory language raises doubts as to whether IRA organization should be construed so conclusively in the case of Alaska Natives). 

Act of June 18, 1934, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461–79).



Native Vill. of Noatak v. Hoffman, 896 F.2d 1157, 1160 (9th Cir. 1990) (answering the question in favor of § 1362 tribal status and reasoning that the involved villages “represent bodies of Indians of the same race united in a community under a single government in a particular territory” and that, even though one of the villages was not organized under the IRA, it had been acknowledged as a tribe under various federal statutes), rev’d on other grounds, 501 U.S. 775 (1991); accord Native Vill. of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 551–52 (9th Cir. 1991). 

Cameron v. Bay Mills Indian Cmty., 843 F. Supp. 334 (W.D. Mich. 1994).



The federal question requirement in § 1362 is phrased in virtually identical terms to the general federal question jurisdiction statute, 28 U.S.C. § 1331, under which federal district courts have jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United States.” See Penobscot Nation v. Georgia-Pacific Corp., 106 F. Supp. 2d 81, 86 (D. Me.) (discussing judicial treatment of § 1362 in detail, and concluding that “the ‘arising under’ language of the two jurisdictional statutes is in all material respects comparable” and “the modern caselaw reads them as largely equivalent”), aff’d, 254 F.3d 317 (1st Cir. 2001). At the time of § 1362’s enactment in 1966, however, § 1331 contained a $10,000 amount in controversy requirement. See Pub. L. No. 85-554, § 1, 72 Stat. 415 (1958) (raising amount-in-controversy requirement to $10,000); Pub. L. No. 94-574, § 2, 90 Stat. 2721 (1976) (removing requirement); accord Aroostook Band of 

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tion in suits for possession of land claimed pursuant to federal treaty,10 claims for damage to trust land–located residences in which a tribe has a reversionary interest,11 and challenges to state taxation of cigarette sales, state licensing, and personal property taxes.12 In contrast, breach of contract suits between tribes and other parties have been held not to “arise” under federal laws.13 Tribal constitutions or ordinances also do not constitute federal law for section 1362 purposes,14 but the Ninth Circuit has found a federal question implicit in a

Micmacs v. Executive Dir., 307 F. Supp. 2d 95, 104–06 (D. Me. 2004), rev’d on other grounds, 404 F.3d 48 (1st Cir. 2005). Also like § 1331, the grant of subject matter jurisdiction under § 1362 does not waive the United States’ immunity from suit. W. Shoshone Nat’l Council v. United States, 408 F. Supp. 2d 1040, 1047–48 (D. Nev. 2005). 10 E.g., Oneida Indian Nation v. Oneida County, 414 U.S. 661 (1974); but see Skokomish Indian Tribe v. United States, 410 F.3d 506, 513–14 (9th Cir. 2005) (en banc) (no private right of action for monetary relief against nonparty created under treaty; distinguishing Oneida as standing only for the proposition that “the plaintiff tribes could assert a federal common law damages claim for unlawful possession of land”). 11 Pueblo of Isleta v. Universal Constructors, Inc., 570 F.2d 300 (10th Cir. 1978) (tribe could assert jurisdiction under § 1362 for damage to residences in which individual tribal members possessed an occupancy interest but in which the tribe had a reversionary interest).

E.g., Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976).

12

See Auto-Owners Ins. Co. v. Tribal Ct., 495 F.3d 1017, 1023 (8th Cir. 2007) (no federal question jurisdiction where the action “sounds in contract law raising a state-law question”); Longie v. Spirit Lake Tribe, 400 F.3d 586, 590 (8th Cir. 2005) (“[i]f an interpretation of tribal or local law is necessary to establish or clarify a right sought to be enforced based on a contract, then jurisdiction under section 1331 does not exist, even if the subject of the contract is Indian trust property); Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 949–51 (9th Cir. 2004) (no federal question under 28 U.S.C. § 1331 for claim seeking judicial confirmation of arbitration award entered in accordance with secretarily approved mineral lease); TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999) (“federal courts do not have jurisdiction to entertain routine contract actions involving Indian tribes”); Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747 (2d Cir. 1996) (dispute under franchise agreement did not present federal question); Gila River Indian Cmty. v. Henningson, 626 F.2d 708 (9th Cir. 1980) (tribal suit against contractor for damages related to negligent construction of youth center did not arise under federal law); Mescalero Apache Tribe v. Martinez, 519 F.2d 479 (10th Cir. 1975) (suit alleging failure to construct trailer campsites pursuant to bid proposal was not action arising under federal law); GNS, Inc. v. Winnebago Tribe, 866 F. Supp. 1185, 1191 (N.D. Iowa 1994) (federal question jurisdiction did not exist over breach of contract claim and request for arbitration under gaming management agreement); compare Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 27–28 (1st Cir. 2000) (federal question jurisdiction existed over whether construction contract required nonmember contractor to submit claims to arbitration panel appointed by tribal court); and Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir. 1995) (federal question jurisdiction existed over dispute whether lease provision divested tribe of inherent authority to regulate utility’s operation of power plant), with Forest County Potawatomi Cmty. v. Norquist, 45 F.3d 1079, 1082 (7th Cir. 1995) (federal question jurisdiction existed over claim by tribe that municipality improperly interfered with right to engage in class III gaming under Indian Gaming Regulatory Act, but resolving case by rejecting municipality’s defense predicated on “cooperation and jurisdiction agreement” with tribe). 13

14 See Chilkat Indian Vill. v. Johnson, 870 F.2d 1469, 1470 (9th Cir. 1989); Boe v. Fort Belknap Indian Cmty., 642 F.2d 276, 279 (9th Cir. 1981). The Ninth Circuit also has held that subject matter jurisdiction did not exist over an action brought by individuals against federal officials seeking, inter alia, an order that would require the Bureau of Indian Affairs to require a tribe to recognize the plaintiffs as members. Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005). It reasoned in relevant part that “tribal immunity bars suits to force tribes to comply with their membership provisions, as well as suits to force tribes to change their membership provisions” (id. at 961), and that the plaintiffs’ “efforts to do an end run around tribal immunity must also fail” (id. at 963). See also Sac and Fox Tribe v. BIA, 439 F.3d 832, 835 (8th Cir. 2006) (no federal question jurisdiction in APA-based challenge to Bureau of Indian Affairs’ recognition of one faction as tribal governing body where resolution of dispute would have required “the district court . . . to construe and apply tribal law to determine whether an election board has authority to file suit on behalf of the Tribe”); cf. Kaw Nation ex

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claim by a tribe that a nonmember violated a tribal ordinance because of “the foundation of federal law that a tribal government will clearly have to lay, and litigate, in order to enforce its ordinance against non‑Indians.”15 The Supreme Court held in Moe v. Confederated Salish and Kootenai Tribes16 that section 1362 creates an exception to the Tax Anti-Injunction Act,17 which prohibits federal district courts from enjoining, suspending, or restraining “the assessment, levy or collection of any tax under State law if a plain, speedy and efficient remedy may be had in the courts of such State.” The Court first observed that the United States could have initiated an action to enjoin collection of the disputed taxes on behalf of the tribes, based on its trust relationship with them, and that such action would not have been barred by 28 U.S.C. § 1341.18 The Court then reviewed the legislative history attendant to section 1362’s enactment and concluded that such history, “though by no means dispositive, suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf.”19 Section 1341 does prohibit suits by individual tribal members because they are not authorized under section 1362 to initiate suits.20 An unresolved issue is whether tribes may maintain federal actions pursuant to section 1362

rel. McCauley v. Lujan, 378 F.3d 1139, 1143 (10th Cir. 2004) (federal question jurisdiction not implicated by suit alleging improper selection of tribal judges where no federal law alleged to have been violated by manner in which challenged judges acquired their positions); Bullcreek v. USDOI, 426 F. Supp. 2d 1221, 1233 (D. Utah 2006) (tribal members lacked standing to challenge Bureau of Indian Affairs’ determination to conduct government-to-government relations with a particular tribal leadership group because they failed to bring themselves “within the protected zone of any federal law[;]” “[w]ithout specific statutory or jurisprudential authorization, this court declines to determine that either the BIA or this court sits as an automatic appellate venue for any disputes or disagreements individual tribal members may have with decisions of the Band’s General Council”); Park Place Entm’t Corp. v. Arquette, 113 F. Supp. 2d 322, 323–24 (N.D.N.Y. 2000) (finding sua sponte no federal question jurisdiction over claim that tribal court was constituted invalidly under tribal law). 15 Chilkat Indian Vill., 870 F.2d at 1473; accord United States ex rel. Morongo Band of Mission Indians v. Rose, 34 F.3d 901, 905 (9th Cir. 1994); Native Vill. of Tyonek v. Puckett, 957 F.2d 631, 634 (9th Cir. 1992). A claim against a tribal member under the same ordinance was held not to constitute a federal question, since the federal law foundation required to establish the ordinance’s applicability to a nonmember would not have to be shown with respect to enforcement against a member. Chilkat, 870 F.2d at 1475–76. The practical effect of Chilkat thus is to provide a federal forum for tribes to enforce ordinances against nonmembers but not members. Whether its reasoning with respect to the existence of federal question jurisdiction over tribal law–based claims against nonmembers is consistent with the principle that such jurisdiction must be determined on the basis of the well-pleaded complaint, rather than anticipated defenses, appears subject to dispute. E.g., Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986); MacArthur v. San Juan County, 309 F.3d 1216, 1224–25 (10th Cir. 2002).

425 U.S. 463 (1976).

16

28 U.S.C. § 1341.

17

425 U.S. at 473–74. The Court had held ten years earlier in Department of Employment v. United States, 385 U.S. 355, 358 (1966), that § 1341 did not bar actions brought by the United States “to protect itself and its instrumentalities from unconstitutional state exactions.” 18

19 425 U.S. at 474; see also Winnebago Tribe v. Kline, 297 F. Supp. 2d 1291, 1300–01 (D. Kan. 2004) (§ 1362 obviates jurisdictional bar in § 1341 regardless of whether the taxed activity occurs on or off reservation). 20 E.g., Osceola v. Florida Dep’t of Revenue, 893 F.2d 1231, 1233–35 (11th Cir. 1990); Comenout v. Washington, 722 F.2d 574, 577 (9th Cir. 1983); Winnebago Tribe v. Kline, 297 F. Supp. 2d 1291, 1300 (D. Kan. 2004).

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in which they assert claims on behalf of their members challenging application of state taxation statutes against those members.21 Section 1362 also was held by various courts to abrogate the Eleventh Amendment immunity of states,22 but subsequent United States Supreme Court decisions substantially compromised their analysis.23 The Ninth Circuit recognized the doctrinal effect of the latter decisions in Native Village of Noatak v. Hoffman24 yet concluded that the consent of the states to suit in federal court by Indian tribes was “inherent in the constitutional plan.”25 Its reasoning, however, was rejected by the Supreme Court in Blatchford v. Native Village of Noatak,26 which held that “there is no compelling evidence that the Founders thought . . . a surrender [of state immunity to Indian tribes] inherent in the constitutional compact.”27 The Court also laid to rest any remaining notion that section 1362 embodied an abrogation of state immunity, by holding there was “no reason to believe that Congress intended abrogation [of Eleventh Amendment immunity] by a means so subtle as § 1362.”28 Prospective relief against state officials under the Ex parte Young29 exception remains generally

21 See White Mountain Apache Tribe v. Williams, 810 F.2d 844, 866 n.16 (9th Cir. 1985) (Fletcher, J., dissenting) (permitting tribe to maintain action under § 1362 to recover state taxes paid by its members “would undermine and perhaps trivialize section 1341 by enabling individual Indians to avoid section 1341’s bar simply by having their tribe bring a ‘representative’ action on their behalf”); cf. compare Miccosukee Tribe v. Florida State Athletic Comm’n, 226 F.3d 1226, 1231 (11th Cir. 2000) (tribe has standing to challenge tax imposed on nonmember conducting business on reservation where right to self-governance was claimed to have been violated), with Ute Indian Tribe v. State Tax Comm’n, 574 F.2d 1007, 1009 (10th Cir. 1978) (tribe lacked standing to seek refund of state taxes paid by nonmember consumers). The parens patriae doctrine has been rejected as a basis for such claims (Assiniboine and Sioux Tribes v. Montana, 568 F. Supp. 269, 277 (D. Mont. 1983)), and ordinary associational standing principles suggest that the jurisdictional bar in § 1341, to the extent applicable to individual members, would attach to claims on their behalf by tribes. See, e.g., Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977); Hopland Band of Pomo Indians v. United States, 13 Cl. Ct. 276, 280 (1987); cf. Table Bluff Reserv. (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879, 885 (9th Cir. 2001) (tribe lacked parens patriae standing to assert claim that its members were harmed by price increases resulting from tobacco litigation settlement, since members themselves suffered no “constitutional injury . . . when a manufacturer passes on higher costs in the form of price increases”). 22 E.g., Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 595 F. Supp. 1077 (W.D. Wis. 1984), rev’d on reconsideration, 749 F. Supp. 913 (1990); Cayuga Indian Nation v. Cuomo, 565 F. Supp. 1297 (N.D.N.Y. 1983); Charrier v. Bell, 547 F. Supp. 580 (M.D. La. 1982); Confederated Tribes of Colville Indian Reserv. v. Washington, 446 F. Supp. 1339 (E.D. Wash. 1978), rev’d in part on other grounds, 447 U.S. 134 (1980); contra Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135, 1140 (8th Cir. 1974); cf. Oneida Indian Nation v. Oneida County, 719 F.2d 525 (2d Cir. 1983) (Indian Non-Intercourse Act waived state sovereign immunity), aff’d in part and rev’d in part, 470 U.S. 226 (1985). 23 E.g., Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (since congressional intention to abrogate Eleventh Amendment immunity must be unmistakably clear from the statutory text, recourse to legislative history to find abrogation of such immunity is inappropriate); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985) (Congress must express unequivocally its intention to override Eleventh Amendment immunity).

896 F.2d 1157 (9th Cir.), rev’d, 501 U.S. 775 (1991).

24

Id. at 1162.

25

501 U.S. 775 (1991).

26

Id. at 781.

27

Id. at 788.

28

209 U.S. 123 (1908).

29

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available where their conduct is alleged to constitute an ongoing violation of federal law.30 The Young doctrine, however, is not appropriate in all instances where such relief is sought nominally. The Supreme Court found the exception unavailable in two cases—Idaho v. Coeur d’Alene Tribe,31 where the Court sustained the Eleventh Amendment immunity of state officials against a lake-bed ownership claim by a tribe because the effect on state sovereignty interests occasioned by the prospective relief sought was deemed “as intrusive as almost any conceivable retroactive levy upon funds in its Treasury,” and Seminole Tribe v. Florida,32 where the provisions of the Indian Gaming Regulatory Act relating to refusal to bargain in good faith over a tribal-state compact were deemed to impose liability only on states and thereby implicitly to foreclose relief under the Young exception. The 1871 Civil Rights Act, 42 U.S.C. § 1983,33 is also quite important where violations of the federal Constitution or laws relating to Indians are alleged. Retroactive relief may be available against state officials in their personal capacities under this statute, and prospective relief may also be possible against them in their official capacities in accordance with the Young doctrine. A limiting element of section 1983 is the requirement that the complainant be a “person,” and the Supreme Court has made clear that tribes are not “persons” for purposes of the statute at least when they sue to vindicate their sovereign immunity from suit.34

30 See, e.g., Timpanogos Tribe v. Conway, 286 F.3d 1195, 1205–06 (10th Cir. 2002); Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (8th Cir. 1995); Keweenaw Bay Indian Cmty. v. Kleine, 546 F. Supp. 2d 509, 516–17 (W.D. Mich. 2008); compare Sac and Fox Nation v. Pierce, 213 F.3d 566, 572 (10th Cir. 2000) (construing Moe and Blatchford to mean that § 1362 authorizes tribe to seek relief to enjoin the exercise of state taxing power without reference to the availability of relief under Young principles because, while “the Eleventh Amendment generally bars an Indian tribe’s suit in federal court against a state where the tribe’s claim rests solely on Article I’s Indian Commerce Clause[,] . . . an Indian tribe’s suit for injunctive relief against state taxation occurring on trust lands is another matter”); and Winnebago Tribe v. Kline, 297 F. Supp. 2d 1291, 1299 (D. Kan. 2004) (same), with Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1049 n.8 (9th Cir. 2000) (concluding that Young relief available against state tax officials, and disagreeing with Pierce in part because “we [do not] believe that Moe addressed the Eleventh Amendment issue”).

521 U.S. 261, 287 (1997).

31

517 U.S. 44, 74–75 (1996).

32

Section 1983 is an especially powerful litigation tool not only because it can create a private right of action under a statute that otherwise does not do so, see, e.g., Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989), but also because of the right to attorneys’ fees to a successful plaintiff under 42 U.S.C. § 1988. 33

34 Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701 (2003). The tribe in Inyo County brought action under, inter alia, § 1983 for alleged violation of its immunity from suit by seizure of tribal property pursuant to a state court warrant. The Court noted the settled precedent that the term “person” normally does not include sovereigns but stressed “qualification of a sovereign as a ‘person’ who may maintain a particular claim for relief depends not ‘upon a bare analysis of the word “person,” ’ . . . but on the ‘legislative environment’ in which the word appears[.]” Id. at 711. That environment counseled against the tribe’s claim because “[s]ection 1983 was designed to secure private rights against government encroachment, . . . not to advance a sovereign’s prerogative to withhold evidence relevant to a criminal investigation.” Id. at 712 (citation omitted). The tribe’s claim was remanded for determination of whether any “prescription of federal common law enables a tribe to maintain an action for declaratory and injunctive relief establishing

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B. 28 U.S.C. §§ 1331 and 1332: Federal Question Exhaustion and Diversity Deferral Requirements Federal courts have a “virtually unflagging obligation” to exercise jurisdiction over controversies appropriately before them.35 Exceptions exist to this general rule when the dispute either contests the jurisdiction of a tribal court over a dispute as a matter of federal law or seeks through use of diversity jurisdiction to address the merits of issues claimed to be governed by tribal law.36 The exceptions’ scope remains unclear.37

its sovereign right to be free from state criminal processes.” Id.; see Oglala Sioux Tribe v. C & W Enters., Inc., 487 F.3d 1129, 1130 (8th Cir. 2007) (no jurisdiction existed under 28 U.S.C. §§ 1331 and 1362 over action by tribe seeking to enjoin on sovereign immunity grounds a contractor from proceeding forward with an arbitration proceeding because “it is the character of the threatened action, and not the defense, which will determine whether there is federal-question jurisdiction”). The Court’s analysis leaves unresolved whether a tribe can ever qualify as a “person” for § 1983 purposes but suggests that relief under that statute is not available where a tribe seeks to “advance” purely sovereign rights. See Skokomish Indian Tribe v. United States, 410 F.3d 506, 514–15 (9th Cir. 2005) (en banc) (fishery-interference claim asserted by tribe was not cognizable under § 1983 where “the Tribe is attempting to assert communal fishing rights reserved to it, as a sovereign, by a treaty it entered into with the United States”); Keweenaw Bay Indian Cmty. v. Kleine, 546 F. Supp. 2d 509, 522 (W.D. Mich. 2008) (“the Community’s right to receive the [federal] funds at issue was dependent on its status as a sovereign”); Winnebago Tribe v. Kline, 297 F. Supp. 2d 1291, 1298 (D. Kan. 2004) (Inyo County indistinguishable for § 1983 purposes with respect to preemption challenge to state fuel tax statute, since such challenge “ultimately invokes the Tribes’ unique sovereign status”); State v. Native Vill. of Curyung, 151 P.3d 388, 399–402 (Alaska 2006) (Inyo County does not preclude a tribe from maintaining a § 1983 action in a parens patriae capacity to vindicate the personal rights of its members under, inter alia, the Indian Child Welfare Act, but does prevent it from attempting to vindicate uniquely sovereign interests under that statute); cf. Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 57, 60–61 (1st Cir. 2005) (Ex parte Young doctrine creates implied right of action cognizable under § 1331 to secure prospective relief against maintenance of state administrative proceeding against tribe in alleged contravention of its immunity from suit), overruled in part on other grounds, Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 24 (1st Cir. 2006). Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

35

Compare Bank One, N.A. v. Shumake, 281 F.3d 507, 515 (5th Cir. 2002) (rejecting analogy to Colorado River and the federal courts’ “unflagging obligation” to exercise jurisdiction in light of the Supreme Court’s decisions, since “[t]he policy which animates [those decisions] . . . ‘subordinates the federal court’s obligation to exercise its jurisdiction to the greater policy of promoting tribal self-government’ ”), with Bowen v. Doyle, 230 F.3d 525, 530 (2d Cir. 2000) (rejecting contention that “a federal court [should be required] to stay its hand until the conclusion of state court proceedings that happen to involve tribal issues”); but see Bess v. Spitzer, 459 F. Supp. 2d 191, 201–05 (E.D.N.Y. 2007) (dismissing action to enjoin state court criminal proceeding against tribal member for alleged tobacco law violations in light of the Anti-Injunction Act, 28 U.S.C. § 2283, and Younger v. Harris abstention principles). 36

37 There is no dispute that the Indian law exceptions to the “unflagging obligation” requirement do not preclude a federal court from reaching the merits of the claim by a tribe that its regulatory jurisdiction extends to the reservation activities of a nonmember. E.g., Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1077 (9th Cir. 1990) (action to enforce tribal gaming ordinance); Chilkat Indian Vill. v. Johnson, 870 F.2d 1469, 1473–74 (9th Cir. 1989) (action to enforce artifact preservation ordinance); cf. Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408 (1989) (action to enforce tribal land use ordinance). Only where a nonmember invokes section 1331 jurisdiction to challenge the exercise of tribal regulatory jurisdiction do concerns over the exceptions’ applicability arise.

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1. National Farmers Union exhaustion and Iowa Mutual deferral a. The basic rules. In National Farmers Union Insurance Cos. v. Crow Tribe, an insurance company sought in federal district court to enjoin enforcement of a tribal court default judgment against a state school district. The company asserted that, as a matter of federal common law, the tribal court lacked subject matter jurisdiction over the school district.39 The district court granted the requested relief 40 and then was reversed by the court of appeals, which concluded that the insurance carrier’s claim did not constitute a federal question under 28 U.S.C. § 1331.41 The Supreme Court held that section 1331 jurisdiction did exist but that exercise of such jurisdiction should be deferred until the tribal court had ruled upon the carrier’s jurisdictional challenge. The Court first reiterated the well‑established notion that the term “laws” in section 1331 encompasses those claims “ ‘founded upon federal common law as well as those of a statutory origin.’ ”42 It further reasoned that “[t]he question whether an Indian tribe retains the power to compel a non‑Indian property owner to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law” and therefore was a federal question under section 1331.43 The Court nonetheless rejected the argument that tribal court jurisdiction was necessarily foreclosed by Oliphant v. Suquamish Indian Tribe,44 which held that tribes lacked inherent criminal jurisdiction over non‑Indians. “Rather,” it wrote, in the civil context “the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.”45 Examination of the scope of a tribe’s authority ordinarily “should be conducted in the first instance in the Tribal Court itself” to allow “the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge” and to foster “the orderly administration of 38

471 U.S. 845 (1985).

38

The underlying tribal court action was a personal injury claim on behalf of a minor tribal member who had been injured while in an elementary school parking area. 471 U.S. at 847. The school was located on state‑owned lands within the exterior boundaries of the injured member’s reservation. Id. Tribal court process was served upon the school board chairperson, but he neglected to inform others of such service. A default judgment against the school district was later entered in the amount of $153,000. Id. at 847–48. 39

40 Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 560 F. Supp. 213 (D. Mont. 1983), rev’d, 736 F.2d 1320 (9th Cir. 1984), rev’d, 471 U.S. 845 (1985). 41 Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 736 F.2d 1320 (9th Cir. 1984), rev’d, 471 U.S. 845 (1985).

471 U.S. at 850 (quoting from Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972)).

42

Id. at 853.

43

435 U.S. 191 (1978).

44

471 U.S. at 855–56.

45

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justice in federal court . . . by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed.”46 The Court did note three situations in which exhaustion is not mandatory: “where an assertion of tribal jurisdiction ‘is motivated by a desire to harass or is conducted in bad faith,’ . . . or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.”47 It stated, finally, that on remand the district court must determine “[w]hether the federal action should be dismissed, or merely held in abeyance pending the development of further Tribal Court proceedings[.]”48 Two years later in Iowa Mutual Insurance Co. v. LaPlante,49 the Court was confronted with the issue of whether diversity jurisdiction under 28 U.S.C. § 1332 should be exercised over a request for declaratory relief by an insurance company concerning its obligations under an automobile liability policy. The federal action was filed following an on‑reservation accident in which one of the insured’s employees, a tribal member, was injured and eventually sued the insurance carrier in tribal court for bad-faith refusal to settle.50 Both the federal district court and the court of appeals determined that the action should be dismissed for lack of jurisdiction, concluding that, since federal diversity jurisdiction under section 1332 was derivative of state court jurisdiction and since state courts had determined they lacked jurisdiction under comparable circumstances, subject matter jurisdiction was absent.51 Although the Supreme Court agreed that exercise of diversity jurisdiction was inappropriate, it reached this holding for different reasons. The Court initially remarked that, just as the exercise of state court jurisdiction “over Indians or activities on Indian lands” can interfere with

46 Id. at 856; see also Tillett v. Lujan, 931 F.2d 636, 640–41 (10th Cir. 1991) (applying National Farmers Union exhaustion requirement to jurisdictional challenge directed to an ongoing proceeding before a Court of Indian Offenses established under 25 C.F.R. § 11); Auto. Owners Ins. Co. v. Saunooke, 54 F. Supp. 2d 585 (W.D.N.C. 1999) (same).

471 U.S. at 856 n.21.

47

Id. at 857.

48

480 U.S. 9 (1987).

49

Id. at 11. In tribal court proceedings prior to initiating the federal action, the carrier had requested dismissal of the action on jurisdictional grounds. The tribal court dismissed the complaint for failure to allege the factual basis for its jurisdiction but granted the injured employee and his wife, who was a coplaintiff, leave to file an amended complaint. Id. at 12. The tribal court additionally ruled that, because the tribe “could regulate the conduct of non‑Indians engaged in consensual relations with Indians on the reservation[,]” it would have jurisdiction over a properly pled complaint. Id. The existence of tribal court jurisdiction was not raised as an issue in the subsequent federal court action. 50

51 Id. at 13–14, 19–20. The Court observed at the conclusion of Iowa Mutual that the lower courts erred in dismissing the proceeding for lack of subject matter jurisdiction because it was unclear whether Montana courts would refuse to entertain the insurance carrier’s claim as a matter of state, rather than federal, policy. Id. at 20 n.13; see also North Dakota v. Fredericks, 940 F.2d 333 (8th Cir. 1991) (rejecting “derivative jurisdiction” theory).

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tribal self‑government, so too can a federal court’s exercise of its jurisdiction. Analogizing to National Farmers Union, it said that “[i]n diversity cases, as well as federal‑question cases, unconditional access to the federal forum would place it in direct competition with the tribal courts, thereby impairing the latter’s authority over reservation affairs.”52 Such a construction of section 1332 also was seen as running counter to the notion that “[t]ribal authority over the activities of non‑Indians on reservation lands is an important part of tribal sovereignty” and that “[c]ivil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.”53 The Court concluded by emphasizing that, under National Farmers Union principles, any tribal court determination of its jurisdiction under federal law principles would be subject to challenge in an action maintained under section 1331 upon proper exhaustion but that, “[u]nless a federal court determines that the Tribal Court lacked jurisdiction, . . . proper deference to the tribal court system precludes relitigation of issues raised by the [tribal court plaintiffs’] bad‑faith claim and resolved in the Tribal Courts.”54 The Court noted that the three exceptions to the National Farmers Union exhaustion requirement were available as a defense to the abstention requirement but found them inapplicable under the case’s facts.55 It then remanded the matter to the district court for determination whether a stay or dismissal “under the prudential rule announced in National Farmers Union” was proper.56 Justice Stevens dissented in part, distinguishing National Farmers Union as limited to instances where a tribal court’s jurisdiction is being challenged and finding no basis for according such court “more deference on the merits than state courts.”57 b. Exceptions to the basic rules. The three exceptions identified in National Farmers Union and extended to the deferral context by Iowa Mutual received scant attention in those decisions and have been invoked with little success by federal court plaintiffs. As one district court aptly summarized the decision-making: “claims that the tribal courts should not be permitted to

480 U.S. at 16.

52

Id. at 18.

53

Id. at 19.

54

Id. at 19 n.12.

55

Id. at 20 n.14. While the determination to stay or dismiss the federal action is committed nominally to trial court discretion, National Farmers Union and Iowa Mutual have been interpreted by some courts as making exhaustion mandatory and nonwaivable—even by the affected tribe. See Allstate Indem. Co. v. Stump, 191 F.3d 1071, 1073 (9th Cir. 1999); Burlington N. R.R. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991); Tunica-Biloxi Indians v. Pecot, 248 F. Supp. 2d 576, 582–83 (W.D. La. 2003); Cherokee Nation v. Nations Bank, N.A., 67 F. Supp. 2d 1303, 1305–06 (E.D. Okla. 1999); Landmark Golf Ltd. P’ship v. Las Vegas Paiute Tribe, 49 F. Supp. 2d 1169, 1175 (D. Nev. 1999); Navajo Nation v. Intermountain Steel Bldgs., Inc., 42 F. Supp. 2d 1222, 1227 (D.N.M. 1999). 56

480 U.S. at 21.

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consider an action on the basis of inadequate legal training, bias, futility, or other grounds seeking to avoid the exhaustion requirement consistently have been rejected.”58 Of the three exceptions, the futility exception has been relied upon most commonly by courts to negate the exhaustion or deferral obligation.59 Arguably related to this exception is the situation where no appellate remedies exist to test the propriety of a tribal trial court jurisdiction determination, a remedial vacuum rendering efforts to seek further tribal review futile.60 Reliance on the bad-faith and express-jurisdictional-prohibition exceptions has met with almost uniform rejection.61 The Supreme Court has not returned to the exhaustion and deferral issues since Iowa Mutual except to create new exceptions to the exhaustion duty. In

58 Basil Cook Enters., Inc. v. St. Regis Mohawk Tribe, 914 F. Supp. 839, 842 (N.D.N.Y. 1996), aff’d, 117 F.3d 61 (2d Cir. 1997). 59 Compare Comstock Oil & Gas, Inc. v. Ala. and Coushatta Indian Tribes, 261 F.3d 567, 572–73 (5th Cir. 2001) (exhaustion doctrine inapplicable where tribal constitution did not establish judiciary), and Johnson v. Gila River Indian Cmty., 174 F.3d 1032 (9th Cir. 1999) (absence of a functioning tribal appellate court renders exhaustion per se futile), with Basil Cook Enters., Inc. v. St. Regis Mohawk Tribe, 26 F. Supp. 2d 446 (N.D.N.Y. 1998) (rejecting contention that tribal court had been terminated); see also Boozer v. Wilder, 381 F.3d 931, 936 (9th Cir. 2004) (while unreasonable delay would be sufficient to render tribal remedies futile in a custody determination context “because the harm alleged is lost parenting time that can never be regained[,]” federal court plaintiff made no effort to exhaust such remedies); Kirkpatrick v. Kirkpatrick, 282 F. Supp. 2d 613, 617 (N.D. Ohio 2003) (allegations that tribal court in processing appeal gave rise to “increasing difficulty” for federal court plaintiff were an inadequate basis for an exception from the deferral requirement, since “[n]o matter how liberally construed . . . the meaning of ‘increasing difficulty’ does not equate with the concept of futility”). 60 TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 684 (5th Cir. 1999) (finding adequate exhaustion on jurisdiction question when “appeal” was denied by tribal court trial judge and no reason existed “to believe [the federal court plaintiff] could appeal the jurisdictional determination once again at the conclusion of the damages proceeding”); Malaterre v. Amerind Risk Mgmt., 373 F. Supp. 2d 980, 983 (D.N.D. 2005) (“[e]xhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts”); Tunica-Biloxi Indians v. Pecot, 351 F. Supp. 2d 519, 524 (W.D. La. 2004) (adequate exhaustion occurred where tribal court defendants applied for, and were denied, extraordinary remedy by tribal appellate court after trial court refused to certify jurisdictional ruling for ordinary appeal). 61 E.g., Boozer v. Wilder, 381 F.3d 931, 936 (9th Cir. 2004) (express-jurisdiction-prohibition exception did not apply with respect to child custody proceeding when the involved Indian child might be domiciled on reservation and thus within the exclusive jurisdiction of her tribe under 25 U.S.C. § 1911(a)); Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1540 (10th Cir. 1995) (right-of-way statute did not constitute express prohibition of tribal authority as to render deferral of challenge to tribal tax inappropriate); Crawford v. Genuine Parts Co., 947 F.2d 1405, 1408 (9th Cir. 1991) (defendants’ request to “transfer” case to tribal court shortly before trial more than two years after defendants removed litigation from state to federal court did not constitute bad faith); LECG, LLC v. Seneca Nation, 518 F. Supp. 2d 274, 278 (D.D.C. 2007) (“although the Nation’s courts may have ruled repeatedly that the Nation and its subdivisions have sovereign immunity, that does not constitute futility for the purposes of the tribal exhaustion doctrine”); Attorney’s Process and Investigation Servs., Inc. v. Sac and Fox Tribe, 401 F. Supp. 2d 952, 959 (N.D. Iowa 2005) (claim of bias based on allegation that tribal court judges appointed by faction hostile to federal court plaintiff was insufficient; “[a] party asserting futility cannot merely assume that it would not receive a fair trial in a tribal court” but instead “must present evidence of bias”); Tunica-Biloxi Indians v. Pecot, 248 F. Supp. 2d 576, 583–84 (W.D. La. 2003) (rejecting reliance on express jurisdictional requirement exception where dispute arose from consensual relationship between tribe and nonmember and thereby suggested applicability of consent); Landmark Golf Ltd. P’ship v. Las Vegas Paiute Tribe, 49 F. Supp. 2d 1169, 1176 (D. Nev. 1999) (allegation that every tribal court judge had financial interest in dispute’s outcome did not fit within bad-faith exception); see Superior Oil Co. v. United States, 798 F.2d 1324, 1330–31 (10th Cir. 1986) (remanding for further consideration bad-faith claim based upon allegations that the defendants had intentionally refused to act

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Strate v. A-1 Contractors,62 the Supreme Court addressed the substantive question of whether a tribal court had jurisdiction over a reservation motor vehicle accident between two members on a state highway. Applying civil regulatory jurisdiction standards developed under United States v. Montana,63 the Court concluded that adjudicatory jurisdiction was absent. In the opinion’s concluding footnote, it added: When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana’s main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct. As in criminal proceedings, state or federal courts will be the only forums competent to adjudicate those disputes. . . . Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement . . . must give way, for it would serve no purpose other than delay.64

Footnote 14 thus suggested that a broad exclusion from the National Farmers Union exhaustion requirement exists where tribal adjudicatory authority has been deemed presumptively absent.65 Given the exhaustion doctrine’s “prudential” nature, courts necessarily retain substantial flexibility in assessing the jurisdictional issue’s merits when determining whether exhaustion should be directed. This understanding of Strate is consistent with Montana and subsequent application of footnote 14 in Nevada v. Hicks.66 First, the footnote’s reference to Montana’s “main rule” is to the presumptive absence of inherent authority over nonmember conduct.67 That presumption arises automatically and, in view of Strate’s analysis on the merits of the

on the lease requests and that depositions and exhibits in the record indicated the tribe and its officials had intentionally withheld approvals). 62 520 U.S. 438 (1997); see infra notes 162–177 and accompanying text (discussing Strate’s adjudicatory jurisdiction analysis).

450 U.S. 544 (1981).

63

520 U.S. at 459 n.14 (citations omitted).

64

Footnote 14 did not specify whether the Court was creating a new exception to the exhaustion requirement or merely applying one or more of the exceptions identified in National Farmers Union. Compare Burlington N.R.R. v. Red Wolf, 196 F.3d 1059, 1065 (9th Cir. 1999) (characterizing Strate’s footnote 14 as a “fourth exception”), and LECG, LLC v. Seneca Nation, 518 F. Supp. 2d 274, 277 (D.D.C. 2007) (same), with Allstate Indem. Co. v. Stump, 191 F.3d 1071, 1073 (9th Cir. 1999) (characterizing footnote 14 as a “futility exception”). 65

533 U.S. 353 (2001).

66

Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001) (“Navajo Nation’s imposition of a tax upon nonmembers on non-Indian fee land within the reservation is . . . presumptively invalid”). Although Strate discussed Montana’s main rule in the context of nonmember activity on nontribal land, the Court in Hicks made clear that the rule is not limited to nontribal reservation lands. 533 U.S. at 360 (the “ownership status of land . . . is only one factor to consider in determining whether regulation of the activities of nonmembers is ‘necessary to protect tribal self-government or to control internal relations’ [but] may sometimes be a dispositive factor”). 67

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adjudicatory jurisdiction issue, is quite strong. It thus would be the rare instance where, absent an express congressional or treaty-based grant of authority, the tribe would have inherent power to regulate or adjudicate the nonmember’s conduct. Courts therefore have examined in detail, and resolved, the jurisdictional issue before turning to the exhaustion question.68 Even more to the point, the jurisdictional exception to normal exhaustion requirements was made express by the Supreme Court itself in Hicks. There, the Court held that a tribal court lacked adjudicatory authority over state fish and game personnel who were sued by a member of the tribe in connection with execution of a search warrant on tribal lands. After having made that determination, it addressed the question whether exhaustion of tribal remedies had been necessary and answered it negatively, reasoning that while none of the exceptions identified in National Farmers Union applied, we added a broader exception in Strate: “[w]hen . . . it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana’s main rule,” so the exhaustion requirement “would serve no purpose other than delay.” . . . Though this exception too is technically inapplicable, the reasoning behind it is not. Since it is clear . . . that tribal courts lack jurisdiction over state officials for causes of action relating to their performance of official duties, adherence to the tribal exhaustion requirement in such cases “would serve no purpose other than delay,” and is therefore unnecessary.69

The Strate exception was “technically inapplicable” because the conduct in dispute did not occur on nontribal lands, but Hicks suggests, as was inferable from Strate, that the scope of the exhaustion requirement will evolve as the reach of inherent tribal authority is clarified. This reading of the two decisions most logically reconciles the result in National Farmers Union, which again involved a claim against a school district over an accident on school property, with Strate and Hicks.70 This clarification, in turn, has sufficiently

68 See, e.g., Burlington N. R.R. v. Red Wolf, 196 F.3d 1059, 1065–66 (9th Cir. 1999); Montana Dep’t of Transp. v. King, 191 F.3d 1108, 1114–15 (9th Cir. 1999); County of Lewis v. Allen, 163 F.3d 509, 516 (9th Cir. 1998) (en banc); Hornell Brewing Co. v. Rosebud Sioux Tribal Ct., 133 F.3d 1087, 1093 (8th Cir. 1998). 69 533 U.S. at 369 (citation omitted); see Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006) (identifying five exceptions to the exhaustion requirement, including a fourth based on Strate’s footnote 14 and a fifth from Hicks); Chiwewe v. Burlington N. & Santa Fe Ry., 239 F. Supp. 2d 1213, 1216 (D.N.M. 2002) (same). 70 It is true that in Strate and Hicks, unlike in National Farmers Union, the tribal court defendants had submitted their jurisdictional challenge to the tribal trial and appellate courts for resolution. Strate, 520 U.S. at 444; Hicks, 533 U.S. at 357. However, nothing in the later decisions’ discussion suggests the Court’s reasoning was directed at simply establishing the principle that a federal court jurisdictional challenge need not await a tribal court’s determination on the merits. That principle was implicit in National Farmers Union itself, which held only that the jurisdictional “examination should be conducted in the first instance in the Tribal Court itself” and in part justified “stay[ing] [the federal district court’s] hand” so as to allow “the Tribal Court . . . a full opportunity to determine its own jurisdiction.” Nat’l Farmers Union, 471 U.S. at 856–57; see also El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484–85 (1999) (exhaustion requirement allows tribal court to determine its jurisdiction in the first instance).

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altered the jurisdictional landscape so as to make appropriate an analogy to the categorical rule against the exercise of tribal criminal authority over non-Indians.71 Thus, while exhaustion might have been required at the time National Farmers Union was decided with respect to the tort claim there, it may well no longer be mandated in the light of subsequent decisions.72 Lower federal courts generally have followed suit in recognizing the need to make some evaluation of the strength of the tribal court’s claim on civil adjudicatory authority before requiring exhaustion, although the substantive analysis has often been abbreviated.73 Lastly, another exception to the National Farmers Union exhaustion requirement was identified in El Paso Natural Gas Co. v. Neztsosie.74 There, several tribal members sued two mining companies in tribal court, alleging injuries from the operation of on-reservation uranium mines and asserting claims for damages under tribal tort law. The companies then initiated actions in federal court to enjoin the tribal court proceedings on, inter alia, the theory that the members’ tribal law claims were foreclosed by the preemption provision in the Price-Anderson Act,75 which “transforms into a federal action” claims arising from nuclear accidents.76 The Ninth Circuit Court of Appeals held that exhaustion of tribal remedies was required, but the Supreme Court reversed, relying principally on another provision in the statute that grants federal district courts original and removal jurisdiction over nuclear accident claims deemed to be “public liability actions” under the Act.77 The Court reasoned that the latter section, together with the preemption provision, “expressed an unmistakable preference for a federal forum, at the behest of the defending party, both for

71 Cf. United States v. Yakima Tribal Ct., 806 F.2d 853, 860–61 (9th Cir. 1986) (United States absolutely immune from suit, and hence no exhaustion required).

See MacArthur v. San Juan County, 497 F.3d 1057, 1073–75 (10th Cir. 2007).

72

E.g., Atwood v. Fort Peck Tribal Ct., 513 F.3d 943, 948 (9th Cir. 2008) (“[w]e have equated [the footnote 14] inquiry with whether jurisdiction is ‘colorable’ or ‘plausible’ ”); Ford Motor Co. v. Todecheene, 488 F.3d 1215, 1216 (9th Cir. 2007) (amended order vacating decision reported at 394 F.3d 1170, which found no exhaustion requirement as to products liability claim arising from on-reservation accident on tribal road, because “[t]he tribal court did not ‘plainly’ lack jurisdiction under the second [Montana] exception,” but retaining jurisdiction over appeal until the federal court plaintiff exhausted tribal court appeals); Allstate Indem. Co. v. Stump, 191 F.3d 1071, 1075 (9th Cir. 1999) (remanding for exhaustion when it was unclear whether alleged violation of state unfair claims settlement practices statute occurred on or off reservation); see generally Judith V. Royster, Stature and Scrutiny: Post-Exhaustion Review of Tribal Court Decisions, 46 Kan. L. Rev. 241, 244 n.21 (1998) (arguing that footnote 14 in Strate “cannot be taken literally” and that the footnote “must be confined to the facts of A-1”—i.e., “claims arising from a traffic accident on a state highway when all parties are nonmembers of the tribe”). 73

526 U.S. 473 (1999).

74

42 U.S.C. § 2014(hh).

75

526 U.S. at 484.

76

42 U.S.C. § 2210(n)(2).

77

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litigating a Price-Anderson claim on the merits and for determining whether a claim falls under Price-Anderson when removal is contested.”78 The Court found no reason to conclude that “Congress would have favored tribal exhaustion”79 under these circumstances, since “[a]pplying tribal exhaustion would invite precisely the mischief of ‘duplicative determinations’ and consequent ‘inefficiencies’ that the Act sought to avoid.”80 It ultimately attributed the Act’s silence concerning tribal court actions to congressional inadvertence.81 The Court concluded, therefore, that the tribal court was deprived of authority to address whether the tribal law–based claims were preempted by the Price-Anderson Act, although it cautioned that as an ordinary matter “tribal courts, like state courts, can and do decide questions of federal law[] and [that] there is no reason to think that questions of federal preemption are any different.”82 “The situation here,” it continued, “is the rare one in which statutory provisions for conversion of state claims to federal ones and removal to federal courts express congressional preference for a federal forum.”83 2. Approaches to tribal-court-proceeding element Although the National Farmers Union84 exhaustion and Iowa Mutual85 deferral doctrines are related in important respects, they address discrete concerns. National Farmers Union involved a federal law–premised challenge to the jurisdiction of a tribal court in an ongoing proceeding. Its exhaustion requirement thus is grounded in respect for the right of one court to resolve questions of its jurisdiction without interference from another court.86 The

526 U.S. at 484–85.

78

Id. at 485.

79

Id. at 486.

80

Id. at 487.

81

Id. at 485 n.7.

82

Id.; see Kerr-McGee Corp. v. Farley, 88 F. Supp. 2d 1219, 1225–33 (D.N.M. 2000) (granting preliminary injunction to enjoin tribal court action where claims based on nuclear incident); cf. AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 905 (9th Cir. 2002) (47 U.S.C. § 207, a private-right-of-action provision in the Federal Communications Act, “establishes concurrent jurisdiction in the [Federal Communications Commission] and federal district courts only, leaving no room for adjudication in any other forum—be it state, tribal, or otherwise[,]” and tribal court therefore lacked authority to resolve claim by tribe that common carrier was required under the Act to provide long-distance service for gaming-related activity); Bank One, N.A. v. Shumake, 281 F.3d 507, 513–14 (5th Cir. 2002) (rejecting contention that Federal Arbitration Act is comparable to Price-Anderson Act in “displacing comity considerations underlying the tribal exhaustion doctrine[,]” since “the FAA does not provide an independent ground of federal jurisdiction” and “PriceAnderson provides for a federal forum to decide the merits of a controversy, whereas under the FAA, the merits will be decided by arbitration”). 83

Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985).

84

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987).

85

Cf. U.S. Bancorp v. Ike, 171 F. Supp. 2d 1122, 1126 (D. Nev. 2001) (“[a] challenge to the jurisdiction of a court is properly made by naming the court or its representatives, not by naming the opposing party”); see generally David A. Castleman, Comment, Personal Jurisdiction in Tribal Courts, 154 U. Pa. L. Rev. 1253, 1281 (2006) (distinguishing between issues of Montana-based subject matter jurisdiction and personal jurisdic86

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deferral doctrine, in contrast, derives from a desire to avoid federal court interference with an existing tribal court action applying tribal law to determine the merits of a dispute.87 However, under both doctrines an existing tribal court proceeding appears to be a necessary element. Various lower federal courts nevertheless have departed from this core principle, both in cases where the regulatory jurisdiction of tribes, but not their adjudicatory authority, is challenged and in cases where claims based on federal or state law are advanced with respect to disputes over “reservation affairs.” The Eighth, Ninth, and Tenth Circuit Courts of Appeals have been active in determining the scope of the exhaustion and deferral doctrines, and their decisions have taken the lead in broadly applying those doctrines even where no tribal court proceeding exists. In contrast are opinions by the First and Seventh Circuits adopting a more restrictive view of the exhaustion and deferral doctrines. a. The “reservation affairs” approach. In Duncan Energy Co. v. Three Affiliated Tribes,88 several corporations challenged the authority of a tribe to impose tax and employment relations ordinances with respect to activities on nonmember lands within a reservation. No tribal administrative or judicial proceedings were pending at the time the federal action was initiated.89 The principal opinion did not address this fact but, relying on decisions from the Ninth and Tenth Circuits, concluded that exhaustion was mandatory because “dispute arise[s] on the Reservation” and “raises questions of tribal law and jurisdiction.”90 Following exhaustion, the court stated, the corporations would be entitled to federal court review, with deference given to the tribal court’s findings of fact unless clearly erroneous and de novo consideration was given to the tribal court’s conclusions of law.91 A concurring judge expressed disagreement with the notion that any subsequent federal proceedings would be in the

tion issues governed by the Indian Civil Rights Act and tribal law, and arguing that National Farmers Union review should not be available for the latter; “[n]owhere does the ICRA even suggest that there should be a federal cause of action to challenge violations of due process by tribal governments, nor does any other federal statute create such a cause of action”) (footnote omitted). The “merits” of a dispute, however, may be intertwined sometimes with the question whether the tribal court is the proper forum to resolve a controversy. See Attorney’s Process and Investigation Servs., Inc. v. Sac and Fox Tribe, 401 F. Supp. 2d 952, 961 (N.D. Iowa 2005) (requiring exhaustion of ongoing tribal court proceedings over validity of contract that contained arbitration clause; “[b]efore the arbitration clause in the Agreement can be enforced, a court must determine whether the Agreement is valid”—an issue that “[t]his court is without jurisdiction to determine” because it involves “an intra-tribal dispute” over the authority of a prior council to enter into the contract). 87 The Supreme Court thus remarked in Iowa Mutual that “tribal courts are best qualified to interpret and apply tribal law” (480 U.S. at 16), and Justice Stevens stated in his concurrence and dissent that “[t]he Court seems to assume that the merits of this controversy are governed by ‘tribal law.’ ” Id. at 22 n.*.

27 F.3d 1294 (8th Cir. 1994).

88

Id. at 1302–03 (Loken, J., concurring).

89

Id. at 1300.

90

Id. (citing FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1313 (9th Cir. 1990)).

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nature of a “direct review of the tribal court” and stated that it was “premature to determine what evidentiary or legal weight to ultimately give the tribal court’s decision.”92 He also found difficult the notion of requiring exhaustion where no tribal court proceeding existed in light of the ordinary obligation of federal courts to exercise their jurisdiction when properly invoked but nonetheless concluded, the “reasons for exhaustion cited in National Farmers Union—the policy of supporting tribal self-government, the advantages of allowing a full record to be developed in tribal court, and the benefit of receiving the tribal court’s expertise on these issues of tribal sovereignty—apply whether or not the dispute is already pending in the tribal court.”93 The central Ninth Circuit decisions with respect to the exhaustion and deferral doctrines are Burlington Northern Railroad Co. v. Crow Tribal Council,94 Crawford v. Genuine Parts Co.,95 and Stock West Corp. v. Taylor.96 Burlington Northern arose from a pre-enforcement challenge to a tribal ordinance regulating common carriers. The district court entered a default judgment in the railroad’s favor, but the court of appeals reversed and remanded with instructions to dismiss or stay the proceeding until the railroad had exhausted tribal administrative and judicial remedies with respect to its jurisdictional challenge. The latter held first that the trial court “had no discretion to relieve [the railroad] from exhausting tribal remedies prior to proceeding in federal court” once it determined that the underlying dispute related to the reservation.97 It then rejected the railroad’s argument that the absence of an ongoing tribal court action warranted non-exhaustion, reasoning that, “[i]f the exercise of Crow sovereign

Id. at 1302 (Loken, J., concurring).

92

Id. at 1303 (Loken, J., concurring). The Eighth Circuit followed Duncan Energy in Reservation Telephone Cooperative v. Three Affiliated Tribes, 76 F.3d 181 (8th Cir. 1996), where it required exhaustion of a challenge to a tribal tax ordinance predicated on contention that a 1901 statute, Act of Mar. 3, 1901, § 3, 31 Stat. 1058, 1083 (codified at 25 U.S.C. § 319), divested the tribe of any taxation authority over the telephone interests on the reservation. No tribal adjudicatory proceeding was ongoing at the time the action was filed. The court refused to address the merits of the nonmember’s jurisdictional claim and found unpersuasive reliance on the “patently violative of express jurisdictional prohibitions” exception, reasoning that prohibition “refers to specific prohibitions . . . on a tribal forum’s assertion of jurisdiction over a dispute,” not “express jurisdictional prohibitions on the underlying tribal enactment which forms the basis of the plaintiff’s challenge in federal court.” 76 F.3d at 185. Thus, “even if the [tribal] tax itself were clearly preempted, nothing in Supreme Court precedent indicates that such a case would be exempt from exhaustion.” Id. at 186 n.5. This dictum cannot be squared with the later-decided Strate and Hicks, and it appears the possessory interest tax imposed by the tribe was directed to property located on rights-of-way that would constitute the functional equivalent of nonmember fee land for purposes of the “main rule” in United States v. Montana, 450 U.S. 544 (1981). 76 F.3d at 182–83; see Big Horn County Elec. Coop., Inc. v. Adams, 219 F.3d 944, 950–51 (9th Cir. 2000) (main rule applies to dispute between electric cooperative and tribe over latter’s utility tax imposed on right-of-way property). The case thus presents a situation where Strate’s footnote 14 would now likely control, changing not only the result but also eliminating the need to determine whether the exhaustion doctrine applies in the absence of an ongoing tribal proceeding. 93

940 F.2d 1239 (9th Cir. 1991).

94

947 F.2d 1405 (9th Cir. 1991).

95

964 F.2d 912 (9th Cir. 1992) (en banc).

96

Burlington N., 940 F.2d at 1245.

97

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authority over [the railroad] was so slight as to distinguish it from precedents where non-Indians complained of the exercise of tribal authority, then [the railroad] cannot assert a ripe claim in federal courts in all events.”98 The other Ninth Circuit cases involved Iowa Mutual deferral. The Crawford litigation arose from a reservation motor vehicle accident, beginning as an action in state court but then removed to federal court.99 Shortly before trial, the plaintiffs unsuccessfully requested the action’s transfer to tribal court. The court of appeals reversed because, in its view, National Farmers Union and Iowa Mutual “announced that principles of comity required federal courts to dismiss or to abstain from deciding cases in which concurrent jurisdiction in an Indian tribal court was asserted.”100 It found irrelevant “[w]hether proceedings are actually pending in the appropriate tribal court.”101 The court further deemed unpersuasive the contention that the plaintiffs had delayed too long in asserting their desire for the action to be resolved in tribal court, since mere delay did not warrant application of one of the three exceptions to the deferral requirement.102 The court expressed “perplex[ity]” with the defendant’s argument that the exercise of diversity jurisdiction was appropriate because state courts had jurisdiction over the controversy because “[w]e see no reason why [the case’s] arrival in [federal] court by way of removal diminishes the force of the Supreme Court’s directive that we not permit the federal courts to operate ‘in direct competition with the tribal courts.’ ”103 In Stock West, the court of appeals deferred the exercise of diversity jurisdiction over legal malpractice and misrepresentation claims against a tribal attorney with respect to conduct occurring both on and off reservation. No proceeding against the attorney was pending in tribal court. The court simply reasoned that “the abstention doctrine set forth in National Farmers Union is applicable in a civil action involving reservation affairs.”104 The Tenth Circuit’s most elaborate exhaustion analysis appears in Pittsburg & Midway Coal Mining Co. v. Watchman,105 which addressed the validity of a tribal tax imposed on mining revenue. The mine was off-reservation yet

98 Id. at 1246. As with the Eighth Circuit’s decision in Reservation Telephone Cooperative v. Three Affiliated Tribes, 76 F.3d 181 (8th Cir. 1996), it appears that, had this case been decided after Strate, the footnote 14 exception would have governed. See Burlington N. R.R. v. Red Wolf, 196 F.3d 1059, 1065–66 (9th Cir. 1999) (no exhaustion required with respect to tort claim asserted in tribal court against railroad with respect to accident on right-of-way).

947 F.2d at 1406–07.

99

Id. at 1407.

100

Id.

101

Id. at 1408.

102

Id.

103

964 F.2d at 919. One judge on the en banc panel dissented but did so primarily on the basis that the alleged tortious conduct arose off reservation. Id. at 923 (O’Scannlain, J., dissenting). 104

52 F.3d 1531 (10th Cir. 1995).

105

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arguably within Indian country as defined in 18 U.S.C. § 1151.106 As in the other cases, no tribal adjudicatory proceeding existed, and the court gave that factor no significance.107 The district court concluded that exhaustion of tribal remedies was not required because the mine site was not located in Indian country, but the court of appeals remanded for further findings on whether the dependent Indian community prong of the Indian country definition in section 1151(c) applied.108 The scope of Indian country was decisive in the court of appeals’ view because “the tribal abstention doctrine applies throughout Indian country, not just on formal reservations.”109 However, the Watchman court did address the mining company’s contention that the “patently violative of express jurisdictional prohibitions” exception applied because the tribe lacked inherent regulatory jurisdiction, even if the company’s activities eventually might be found situate in Indian country.110 The court criticized the mining company’s characterization of the issue, stating that “[t]he question is not whether [the tribe] possesses inherent authority as a sovereign to tax [the company], but whether 18 U.S.C. § 1151 is a Congressional delegation of this authority throughout Indian country.”111 Relying on various decisions that have used the section 1151 definition to demarcate the area where the special Indian law preemption principles apply in civil contexts, the court concluded that “§ 1151 represents an express Congressional delegation of civil authority over Indian country to the tribes” and that the

106 See generally Chapter 2, part III (discussing the three components of Indian country under 18 U.S.C. § 1151). 107 52 F.3d at 1537 (“[t]his court . . . ha[s] gone further by applying the tribal abstention doctrine where no tribal court action had been filed prior to the federal action”).

Id. at 1546.

108

Id. at 1537; see Texaco, Inc. v. Zah, 5 F.3d 1374, 1378 (10th Cir. 1993) (remanding for further consideration of National Farmers Union “comity factors” where challenged taxes related to nonmember off­reservation activities since, outside the reservation, the policies behind the tribal exhaustion doctrine are not so obviously served”); Texaco, Inc. v. Hale, 81 F.3d 934 (10th Cir. 1996) (affirming district court judgment on remand that deferral required and rejecting contention that evidentiary hearing required since, in contrast to Watchman, no dispute existed that regulated activities occurred in Indian country). 109

110 52 F.3d at 1536, 1540. While the broad holding that Iowa Mutual deferral was required simply because a dispute arises within Indian country cannot be squared with Strate’s footnote 14 or Hicks, the Tenth Circuit’s approach, like the Eighth and Ninth Circuits’, acknowledged a territorial limitation on the scope of tribal inherent authority and hence the exhaustion and deferral doctrines. See, e.g., Allstate Indem. Co. v. Stump, 191 F.3d 1071, 1074–75 (9th Cir. 1999); Hornell Brewing Co. v. Rosebud Sioux Tribal Ct., 133 F.3d 1087, 1093 (8th Cir. 1998); Navajo Nation v. Intermountain Steel Bldgs., Inc., 42 F. Supp. 2d 1222, 1228 (D.N.M. 1999). The First Circuit, however, has extended the exhaustion requirement to controversies arising outside Indian country. Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 32 (1st Cir. 2000) (applying a direct–impact–on–“tribal affairs” standard, and concluding that a dispute over the construction of an off-reservation tribal housing development “bore directly on the use and disposition of tribal resources (land and money)”); see also Petrogulf Corp. v. ARCO Oil & Gas Co., 92 F. Supp. 2d 1111, 1117–18 (D. Colo. 2000) (holding alternatively that, even if alleged trespass on mineral estate occurred off reservation, National Farmer Union’s comity factors required deferral of dispute to tribal court because of potential impact on tribal members’ property rights). 111

52 F.3d at 1540.

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tribe therefore “has authority to tax any mining activities . . . without violating any express jurisdictional prohibitions.”112 The expansive view of the National Farmers Union exhaustion and the Iowa Mutual deferral doctrines in these cases is reflected in other decisions both within and without the Eighth, Ninth, and Tenth Circuits, with one other circuit explicitly adopting the rule that the absence of a pending tribal court action is immaterial.113 Thus, as in Duncan Energy, Burlington Northern, Reservation Cooperative, and Pittsburg & Midway, nonmembers challenging the inherent authority of tribes to regulate their reservation or Indian country activities have been required to present the jurisdictional challenge to tribal administrative and judicial decision-makers even when no parallel tribal adjudicatory proceeding exists. More numerous are cases where federal question or diversity jurisdiction is asserted for the purpose of securing federal court determination of reservation-related transactions but where Iowa Mutual–like deferral is directed despite the fact that no tribal court litigation has commenced between the parties,114

112 Id. at 1541. The Supreme Court in Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001), left this issue open although rejecting another Tenth Circuit decision’s reliance on 18 U.S.C. § 1151 as indicating the existence of inherent authority. Id. at 653 n.5. 113 Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 31 (1st Cir. 2000) (“[w]here applicable, this prudential doctrine has force whether or not an action actually is pending in a tribal court”). 114 United States v. Tsosie, 92 F.3d 1037 (10th Cir. 1996) (tribal court exhaustion required in trespass and ejectment action filed by one member against another member concerning an off-reservation allotment); United States v. Plainbull, 957 F.2d 724, 728 (9th Cir. 1992) (suit by United States to collect trespass penalties from tribal members under 25 U.S.C. § 179 subject to deferral since federal courts were not exclusive forum in which such penalties could be collected and since “[t]he fact that the Government is attempting to enforce federal law is immaterial”); Smith v. Moffett, 947 F.2d 442 (10th Cir. 1991) (sua sponte requiring deferral to tribal court of civil rights claim by tribal member against, inter alia, federal and tribal officials because controversy arose on reservation lands); Brown v. Washoe Hous. Auth., 835 F.2d 1327 (10th Cir. 1988) (breach of contract action brought by nonmember building contractor against tribal housing authority); United States ex rel. Kishell v. Turtle Mountain Hous. Auth., 816 F.2d 1273 (8th Cir. 1987) (trespass action brought by estate of tribal member against tribal housing authority); Wellman v. Chevron U.S.A., Inc., 815 F.2d 577 (9th Cir. 1987) (breach of contract action brought by tribal member against nonmember corporation); A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1415–17 (9th Cir. 1986) (requiring exhaustion as to a claim maintained under 42 U.S.C. § 1983, which alleged various state and tribal officials had conspired to deprive the federal plaintiffs of constitutional rights through initiation of a tribal court action when those officials knew such court lacked subject matter jurisdiction); Fid. and Guar. Ins. Co. v. Bradley, 212 F. Supp. 2d 163, 166–67 (W.D.N.C. 2002) (deferring indemnification action brought by insurer against tribal member insured after tribe made demand under performance bond); Armstrong v. Mille Lacs County Sheriffs Dep’t, 112 F. Supp. 2d 840, 846–47 (D. Minn. 2000) (deferring dispute over allegedly unlawful on-reservation arrest of reporter who alleged federal and state law–based claims); Landmark Golf Ltd. P’ship v. Las Vegas Paiute Tribe, 49 F. Supp. 2d 1169, 1173 (D. Nev. 1999) (deferring contract enforcement action); Navajo Nation v. Intermountain Steel Bldgs., Inc., 42 F. Supp. 2d 1222, 1227 (D.N.M. 1999) (deferring various nonfederal claims brought by tribe and insurer in connection with alleged negligent construction of tribal building); Basil Cook Enter., Inc. v. St. Regis Mohawk Tribe, 914 F. Supp. 839 (N.D.N.Y. 1996) (deferring to tribal court action to enforce arbitration clause); Prescott v. Little Six, Inc., 897 F. Supp. 1217, 1221–22 (D. Minn. 1995) (requiring deferral with respect to claim to benefits arising under Employee Retirement Income Security Act); Krempel v. Prairie Island Indian Cmty., 888 F. Supp. 106 (D. Minn. 1995) (deferral directed with respect to sex discrimination claim under Minnesota Human Rights Act); Tom’s Amusement Co., Inc. v. Cuthbertson, 816 F. Supp. 403 (W.D.N.C. 1993) (abstaining from taking jurisdiction over claim

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although some courts have refused to require deferral of claims based upon specific federal statutes.115 This application of National Farmers Union and Iowa Mutual is grounded on the proposition that those cases largely, if not entirely, dispense with the ordinary obligation of federal courts to exercise their jurisdiction when properly invoked.116 Indeed, one district court has concluded that a tribe is foreclosed from access to federal court, even in the absence of an objection from the defendant, where a “reservation affair” is involved.117 b. The interference with an existing tribal court proceeding approach. The exhaustion requirement under National Farmers Union finds an analog in Younger v. Harris118 principles. Those principles require abstention “only when

involving non-Indians involved in business relations on Indian lands subject to tribal regulation until tribal court had opportunity to exercise jurisdiction); but see United States v. American Horse, 352 F. Supp. 2d 984, 990 (D.N.D. 2005) (no obligation exists to exhaust tribal court remedies with respect to foreclosure action in connection with federal loan default because, unlike in Tsosie and Plainbull, “the United States has not brought an action on behalf of another” but instead is attempting to enforce “a privately held debt secured by a mortgage”). 115 Blue Legs v. USBIA, 867 F.2d 1094, 1097–98 (8th Cir. 1989) (refusing to require National Farmers Union exhaustion as to claim under federal environmental statute); Vance v. Boyd Miss., Inc., 923 F. Supp. 905, 911–13 (S.D. Miss. 1996) (refusing to defer sex discrimination claim under the Equal Employment Opportunity Act after applying Colorado River abstention principles); Azure v. USHHS, 758 F. Supp. 1382, 1388 (D. Mont. 1991) (refusing to require exhaustion of contribution claim raised by the United States against a third party, who was a tribal member, in proceeding maintained by another tribal member under the Federal Tort Claims Act); Myrick v. Devils Lake Sioux Mfg. Corp., 718 F. Supp. 753 (D.N.D. 1989) (refusing to require exhaustion of employment discrimination claims against tribal corporation arising under federal statutes). 116 See Bank One, N.A. v. Shumake, 281 F.3d 507, 515 (5th Cir. 2002) (rejecting analogy to Colorado River and the federal courts’ “unflagging obligation” to exercise jurisdiction, since “[t]he policy which animates the exhaustion doctrine . . . ‘subordinates the federal court’s obligation to exercise its jurisdiction to the greater policy of promoting tribal self-government’ ”).

Navajo Nation v. Intermountain Steel Bldgs., Inc., 42 F. Supp. 2d 1222, 1227 (D.N.M. 1999).

117

401 U.S. 37 (1971); see Nat’l Farmers Union, 471 U.S. at 856 n.21 (deriving exceptions to exhaustion requirement from Juidice v. Vail, 430 U.S. 327 (1977), a decision applying Younger abstention principles); see generally Frank Pommersheim, Tribal Courts and Federal Courts: A Very Preliminary Set of Notes for Federal Courts Teachers, 36 Ariz. St. L.J. 63, 70–71 (2004) (exhaustion and abstention are similar because of “the shared policy concern of comity and respect” but differ because “[c]omity in the exhaustion context moves beyond respect to include a specific commitment to support and advance tribal courts”); Frank Pommersheim, “Our Federalism” in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts’ Teaching and Scholarly Community, 71 U. Colo. L. Rev. 123, 144–54 (2000) (discussing similarities of and differences between ordinary abstention and tribal court exhaustion principles); Lynn H. Slade, Dispute Resolution in Indian Country: Harmonizing National Farmers Union, Iowa Mutual, and the Abstention Doctrine in the Federal Courts, 71 N.D. L. Rev. 519 (1995) (analyzing National Farmers Union exhaustion to abstention under Younger and Iowa Mutual deferral to abstention under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)). One commentator, however, has characterized National Farmers Union as “invent[ing] precisely the kind of collateral attack on a final judgment of another sovereign that the long controversial writ of habeas corpus provisions of 28 U.S.C. §§ 2241 and 2254 authorize for collaterally attacking state criminal convictions” but without the attendant policy justifications of liberty interest infringement and federal constitutional or statutory violation. Robert N. Clinton, Comity & Colonialism: The Federal Courts’ Frustration of Tribal-Federal Cooperation, 36 Ariz. St. L.J. 1, 31 (2004). His analysis did not address whether two other distinctions—the unavailability of direct review by the United States Supreme Court of a tribal court determination that may be inconsistent with federal law and the lack of tribal court power in the first instance to apply federal law as the rule of decision over nonconsenting nonmembers absent congressional authorization—may warrant implication of the right of action established in National 118

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state court proceedings are initiated ‘before any proceedings of substance on the merits have taken place in the federal court.’ ”119 When no tribal adjudicatory proceedings exist, the predicate for Younger-like abstention is absent, since the goal of the doctrine is to minimize undue interference with such proceedings, not tribal governance generally.120 This predicate lay at the heart of the controversy in National Farmers Union that involved a direct attack on the tribal court’s jurisdiction.121 An expansive application of the exhaustion doctrine also contrasts sharply with the willingness of federal courts to exercise jurisdiction over Indian country–related issues at the expense of state courts, notwithstanding common law abstention principles and 28 U.S.C. § 2283, which prohibits a federal court from enjoining state proceedings “except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”122 The anomalous practical result of applying National Farmers Union to jurisdictional challenges to tribal regulatory authority is to force a litigant to initiate a suit before a tribunal while simultaneously claiming that the tribunal lacks subject matter jurisdiction to resolve the challenge itself.123 Indeed, as the concurring judge in Duncan Energy remarked, obligating nonmembers to challenge tribal regulatory jurisdiction initially in tribal court does not appear at first blush to constitute a natural fit with Iowa Mutual because the latter decision states that tribal court

Farmers Union. See Nevada v. Hicks, 533 U.S. 353, 367 (2001) (“[t]ribal courts . . . cannot be courts of general jurisdiction . . . for a tribe’s inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction”). Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 237–38 (1984).

119

See Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (“[t]hough we have extended Younger abstention to the civil context, . . . we have never applied the notions of comity so critical to Younger’s ‘Our Federalism’ when no state proceeding was pending nor any assertion of important state interests made”); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (“[s]o long as th[e] challenges relate to pending state proceedings, proper respect for the ability of state courts to resolve federal questions presented in state-court litigation mandates that the federal court stay its hand”). 120

121 See Nat’l Farmers Union, 471 U.S. at 856 (the policy supporting tribal self-government “favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge”). 122 Fort Belknap Cmty. Council v. Mazurek, 43 F.3d 428, 431 (9th Cir. 1994); Sycuan Band of Mission Indians v. Roache, 38 F.3d 402, 407–08 (9th Cir. 1994); White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1304 (9th Cir. 1988); Bowen v. Doyle, 880 F. Supp. 99, 129–35 (W.D.N.Y. 1995); Tohono O’odham Nation v. Schwartz, 837 F. Supp. 1024, 1028–29 (D. Ariz. 1993); see generally Slade, supra note 118, at 537, 537–39 (contrasting lower federal courts’ analytical approach to enjoining state court actions affecting tribes or their members with those courts’ application of exhaustion and deferral rules). 123 One tribal court has described a comparable claim by a tribal court plaintiff as “tak[ing] on a ‘through the looking glass’ aura.” Schram v. Mashantucket Pequot Gaming Enter., 29 Indian L. Rep. 6113 (Mash. Ct. App. Jan. 23, 2002). It added that “such arguments border on sanctionable misconduct as frivolous actions” but that “as this is the first instance of such arguments, the Court will merely advise the Bar that such arguments in the future will not be welcomed.” Id. at 6114 n.1. The court stated further that it “will not allow a party to make sham pleadings before the tribal court with the intent to then proceed to state or federal court and claim that tribal remedies were exhausted.” Id. at 6114 n.2.

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rulings on the merits have a preclusive, federally unreviewable effect.124 He resolved this seeming dilemma by concluding that National Farmers Union contemplated that all “tribal court decisions concerning federal questions of tribal sovereignty may be challenged in federal court.”125 The Ninth Circuit has reached the same implicit conclusion.126 Iowa Mutual, however, can be squared more easily with this situation in light of subsequent decisions that limit tribal court authority to resolving, as an ordinary matter, tribal law–based claims.127 Tribal court defendants therefore can object to the exercise of tribal court jurisdiction not only generally but also with respect to claims grounded in federal or state law. To the extent those objections are rejected, the review of the jurisdictional determination may occur as guaranteed by the federal question holding in National Farmers Union. The conclusion that, as the Ninth Circuit has held, Iowa Mutual deferral is mandated whenever a dispute relates to “reservation affairs” also carries with it significant analytical difficulty. Since “the party who brings a suit is master to decide what law he will rely upon,”128 the federal court plaintiff ordinarily should be allowed to raise federal or state law claims deemed worth pursuing and, if federal jurisdiction exists, to have them decided. Absent ongoing tribal court proceedings, a decision on the merits does not implicate the comity concerns underlying Iowa Mutual,129 and, to the extent a defendant believes state law application is preempted, the preemption defense can be asserted. Iowa Mutual itself does not counsel a contrary result, not only because it presented a situation where tribal court litigation was ongoing, but also because it contemplated

Duncan Energy, 27 F.3d at 1302 (Loken, J., concurring).

124

Id.

125

Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc); FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990). Commentators similarly accept the nonbinding nature of tribal court determinations with respect to adjudicatory or regulatory jurisdiction challenges based on the lack of inherent tribal authority. See generally Royster, supra note 73, at 281 (concluding that “the federal courts will review any question of federal law that raises the issue of tribal sovereign authority . . . to adjudicate the lawsuit or of the tribe’s authority to regulate or legislate”); B.J. Jones, Welcoming Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court Relations, 24 Wm. Mitchell L. Rev. 457, 502 (1998) (“[o]ne issue that appears clear is that federal courts will review any assertion of regulatory or adjudicatory authority over a non-Indian litigant anew, either under the standard set out in Montana v. United States[] or under the more deferential standard set out in other Supreme Court precedents”) (footnote omitted); John T. Tutterow, Note, Federal Review of Tribal Court Decisions: In Search of a Standard or a Solution for the Problem of Tribal Court Review by the Federal Courts, 23 Okla. City U. L. Rev. 459, 499–500 (1998) (proposing as appropriate standard one derived from Michigan v. Long, 463 U.S. 1032 (1983): “nonreview of all tribal court decisions based on tribal law, while accepting review of both jurisdictional and substantive decisions based on federal law, and only those based on federal law (that do not have alternative tribal law grounds)”). 126

127 Nevada v. Hicks, 533 U.S. 353, 358–59 (2001) (tribal adjudicatory jurisdiction cannot exceed tribal regulatory jurisdiction). 128 The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913); accord Caterpillar Inc. v. Williams, 482 U.S. 386, 394–95 (1987).

See Iowa Mutual, 480 U.S. at 16 n.8.

129

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deferral for the purpose of allowing the tribal court to determine questions of tribal law.130 The Second Circuit in Garcia v. Akwesasne Housing Authority131 thus aptly commented, in refusing to defer with respect to an employment termination dispute, that “where no ongoing tribal proceeding exists, and a non-member of the tribe properly invokes the jurisdiction of a federal court to litigate non-tribal law, the tribal exhaustion rule does not mandate abstention, and the district court must therefore fulfill its unflagging obligation to exercise its discretion.”132 3. Federal court review of tribal court jurisdictional determinations A final issue of significance to application of National Farmers Union is the weight to be given a tribal court determination of its jurisdiction in a post‑exhaustion federal proceeding. The Supreme Court identified several policy grounds for the exhaustion requirement in National Farmers Union,133 but none of those grounds suggests the appropriate standard of review in a post‑exhaustion federal action. In FMC v. Shoshone‑Bannock Tribes, the Ninth

Id. at 16; id. at 22 n.* (Stevens, J., concurring in part and dissenting in part).

130

268 F.3d 76 (2d Cir. 2001).

131

132 Id. at 84; see also Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 814 (7th Cir. 1993) (refusing to defer contract dispute governed by Illinois law to tribal court resolution, since “there has been no direct attack on a tribal court’s jurisdiction, there is no case pending in tribal court, and the dispute does not concern a tribal ordinance as much as it does state and federal law”); Basset v. Mashantucket Pequot Museum and Res. Ctr., Inc., 221 F. Supp. 2d 271, 281–82 (D. Conn. 2002) (“the comity and deference owed to a tribal court that is adjudicating an intra-tribal dispute under tribal law does not compel abstention by a federal court where a non-member asserts state and federal claims and nothing is pending in the tribal court”); Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 144 F. Supp. 2d 215, 230 (S.D.N.Y. 2001) (“the deferral rule is not mandatory, particularly if there is no pending tribal court action and/or federal or state law controls resolution of the issues in the case”), modified on other grounds, 154 F. Supp. 2d 696 (S.D.N.Y. 2001); cf. FGS Constructors, Inc. v. Carlow, 64 F.3d 1230, 1233 (8th Cir. 1995) (exhaustion not required in action arising from a reservation construction project because parties waived right to have tribal court decide issue in first instance by agreeing to a forum selection clause allowing suit to be brought in Oglala Sioux Tribal Court or “other court of competent jurisdiction”); Larson v. Martin, 386 F. Supp. 2d 1083, 1088 (D.N.D. 2005) (deeming FGS Constructors controlling, and declining to defer suit against tribal member under bond that contained a provision specifying state or federal court as forum for enforcement action; “when the negotiating parties have agreed to an appropriate forum, exhaustion of tribal remedies is not required”). State courts, although not bound by the exhaustion or deferral doctrines, also have questioned the propriety of staying their hands where an ongoing tribal court proceeding is not present. Seneca v. Seneca, 741 N.Y.S. 2d 375, 379 (App. Div. 2002) (“even assuming that the [exhaustion] rule is a substantive federal law made binding on state courts pursuant to Supremacy Clause of the US Constitution, not merely a procedural rule of federal courts, . . . we conclude that it does not apply to this case because there is no action pending in a . . . tribal court”); Drumm v. Brown, 716 A.2d 50, 65–66 (Conn. 1998) (finding Iowa Mutual deferral inappropriate in state court proceeding where no tribal court proceeding pending at time of state court judgment’s entry because, inter alia, the effect of the state court proceeding on tribal court authority absent such proceeding “is speculative and indirect” and runs counter to “the traditional right of a plaintiff to select his forum”). 133 471 U.S. at 856–57 (fostering tribal self‑government and self‑determination through “a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge”; advancing “the orderly administration of justice in the federal court . . . by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed”; encouraging “tribal courts to explain to the parties the precise basis for accepting jurisdiction”; and providing “other courts with the benefit of [the tribal courts’] expertise in such matters in the event of further judicial review”).

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Circuit concluded that, in determining the merits of a challenge to a tribe’s regulatory authority following completion of tribal court litigation on the issue, the latter court’s legal conclusions concerning federal questions are reviewed de novo but such court’s factual findings are reviewed under the clearly erroneous standard to “show some deference to a tribal court’s determination of its own jurisdiction.”134 Although de novo review of legal issues appears appropriate because tribal courts “possess[] no special expertise”135 as to those issues, application of the clearly erroneous standard to factual findings may prejudice a federal plaintiff’s ability to secure what National Farmers Union implicitly mandates—plenary review of the federal question inhering in a tribal court’s exercise of jurisdiction over a nonconsenting nonmember defendant. Comity principles, though providing one basis for the exhaustion requirement itself, appear satisfied by the act of exhaustion, with federal courts thereafter giving whatever weight to tribal court factual findings they deem proper in light of the record made before the latter court and in the federal proceeding.136 II. TRIBAL ADJUDICATORY JURISDICTION Tribal adjudicatory jurisdiction, like tribal regulatory jurisdiction, emanates from retained inherent authority.137 In National Farmers Union Insurance Cos. v. Crow Tribe,138 the Court accordingly characterized the exercise of jurisdiction by a tribal court over a state school district as presenting another question “concerning the extent to which Indian tribes have retained the power to regulate the affairs of non‑Indians.”139 Arguably implicit in that characterization

134 905 F.2d 1311, 1313 (9th Cir. 1990); accord Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294, 1300 (8th Cir. 1994); see also Prescott v. Little Six, Inc., 387 F.3d 753, 757–58 (8th Cir. 2004) (applying “clear error” standard and deferring to a tribal court’s determination that “a valid and enforceable benefits arrangement”—which was the predicate for an Employee Retirement Income Security Act claim—had not been established under tribal law); Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1132 (9th Cir. 1995) (“[w]e review . . . de novo the scope of a tribe’s ability to regulate or adjudicate matters affecting non-Indians”); Mustang Fuel v. Hatch, 890 F. Supp. 995, 1000 (W.D. Okla. 1995) (observing that “federal courts are equally capable to decide the jurisdictional issue . . . as are tribal courts” but also stating “the tribal court’s rulings to be helpful in the disposition of th[is] case” because of the latter’s factual findings), aff’d, 94 F.3d 1382 (10th Cir. 1996); see generally Royster, supra note 73, at 254–66 (summarizing case law on federal court standards of review with respect to tribal court decisions); Tutterow, supra note 126, at 470–84 (same).

Burlington N. R.R. v. Blackfeet Tribe, 924 F.2d 899, 901 n.2 (9th Cir. 1991).

135

See Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294, 1302 (8th Cir. 1994) (Loken, J., concurring) (observing that the federal district court “will ultimately decide [the exhaustion] issues, with whatever guidance the tribal court may now provide” and that “it is premature to determine what evidentiary or legal weight to ultimately give the tribal court’s decision”); but see generally Jones, supra note 126, at 505 (observing that, in the situation where a tribal court has jurisdiction and applies federal law to determine the merits, if “the federal courts take the perspective that the tribal court fact-finding process and judgment [are] entitled to no regard in the ultimate decision, the exhaustion rule is wasting the valuable time of tribal courts and the litigants who are being charged with relitigating every case anew in federal court”). 136

Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997).

137

471 U.S. 845 (1985).

138

Id. at 851.

139

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was the notion that civil adjudicatory authority of tribes is determined by reference to the same standards as their civil regulatory jurisdiction.140 The corollary to use of common standards would be that the scope of tribal court subject matter jurisdiction is inextricably connected to the issue of whether tribal law may determine the substantive rights and responsibilities of the litigants toward one another.141 Nonetheless, language in the later‑decided Iowa Mutual Insurance Co. v. LaPlante142 caused significant confusion over the appropriate standards for determining tribal court jurisdiction. The Supreme Court resolved this controversy in Strate v. A-1 Contractors,143 where it held that adjudicatory authority over nonconsenting nonmember defendants “cannot exceed” the reach of inherent tribal regulatory authority—i.e., that tribal court

140 At least one commentator recognized this potential relationship shortly after National Farmers Union was decided. Michael J. Dale, Tribal Court Jurisdiction Over Reservation‑Based Claims: The Long Walk to the Courthouse, 66 Or. L. Rev. 753, 796–98 (1987) (arguing that regulatory jurisdiction principles prescribe appropriate analytical standards for determining tribal court jurisdiction). 141 It is conceivable, of course, that a tribe may limit its courts’ subject matter jurisdiction even if such jurisdiction could be asserted consistently with retained inherent authority. E.g., Ho-Chunk Nation v. Steindorf, 27 Indian L. Rep. 6255 (Ho-Chunk Sup. Ct. Sept. 29, 2000) (dismissing action for lack of subject matter jurisdiction where tribal legislature had not enacted a law that could be applied to resolve claims and where tribal court jurisdiction was limited to adjudicating claims that arise under tribal law); see generally Frank R. Pommersheim, The Crucible of Sovereignty: Analyzing Issues of Tribal Jurisdiction, 31 Ariz. L. Rev. 329, 338–39 (1989) (discussing tribal constitution restrictions on jurisdiction). Federal question jurisdiction has been found to exist over a claim that tribal adjudicatory authority is absent because a tribe has elected not to exercise it. Twin City Constr. Co. v. Turtle Mountain Band of Chippewa Indians, 866 F.2d 971 (8th Cir. 1989) (en banc) (affirming by equally divided vote district court determination that, as a matter of tribal law, tribal court jurisdiction over federal plaintiff did not exist); Fid. and Guar. Ins. Co. v. Bradley, 212 F. Supp. 2d 163, 165 (W.D.N.C. 2002) (examining tribal code to determine whether tribe has asserted jurisdiction over contractual dispute between nonmember and member); Christian Children’s Fund Inc. v. Crow Creek Sioux Tribal Court, 103 F. Supp. 2d 1161, 1168 (D.S.D. 2000) (rejecting argument that wording of ordinance provision was relevant to determining scope of inherent authority, but additionally commenting on the “very limited” nature of tribal constitution’s assertion of jurisdiction over nonmembers); compare Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1132–33 (9th Cir. 1995) (§ 1331 jurisdiction existed with respect to nonmember’s claim that tribe waived regulatory jurisdiction in lease), with Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 27–28 (1st Cir. 2000) (finding federal question jurisdiction over claim challenging enforceability of contractual provision that required any dispute concerning off-reservation work performed by nonmember contractor to be submitted to arbitration panel appointed by tribal court); see generally S. Caroline Malone, Note, Tribal Power Over Non‑Indians: Tribal Courts at a Civil Crossroads; Twin City Construction Company v. Turtle Mountain Band of Chippewa Indians, 42 Ark. L. Rev. 1027 (1989) (discussing unreported district court and circuit court panel opinions). Such restrictions additionally may be germane to whether exhaustion of tribal court remedies is required when tribal regulatory jurisdiction is challenged on federal grounds. E.g., FGS Constructors, Inc. v. Carlow, 64 F.3d 1230 (8th Cir. 1995) (exhaustion not required where involved contract contained forum selection clause allowing suit to be brought in any “court of competent jurisdiction”); A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1416 (9th Cir. 1986) (exhaustion required with respect to nonmember’s contention that tribal code precluded the tribe itself from being a party in a tribal court proceeding); see also Twin City Constr. Co. v. Turtle Mountain Band of Chippewa Indians, 911 F.2d 137 (8th Cir. 1990) (dissolving preliminary injunction in entirety after tribal ordinance amended to encompass underlying tribal court action).

480 U.S. 9 (1987).

142

520 U.S. 438 (1997).

143

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jurisdiction will be absent if the tribe could not regulate the involved activity pursuant to its inherent authority.144 A. The Precursor Decisions: National Farmers Union and Iowa Mutual National Farmers Union145 was the first United States Supreme Court decision to address the potential for tribal civil adjudicatory jurisdiction over a nonconsenting nonmember.146 The Court held, however, that exhaustion of tribal court remedies was necessary and thus did not determine whether the involved tribal court possessed inherent authority to resolve the underlying controversy. It did reject a claim that such jurisdiction was foreclosed automatically by Oliphant v. Suquamish Indian Tribe147 and stated, “the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.”148 In support of this analytical standard, the Court referred to New Mexico v. Mescalero Apache Tribe,149 where application of state laws to nonmembers hunting and fishing on reservation lands was held preempted; to Merrion v. Jicarilla Apache Tribe,150 where a tribe’s taxation authority over a nonmember oil and gas producer acting pursuant to a tribal lease was upheld; and to Washington v. Confederated Tribes of Colville Indian Reservation,151 where

144 Id. at 453; see also Nevada v. Hicks, 533 U.S. 353, 358 (2001) (stating that “question whether a tribe’s adjudicatory jurisdiction over nonmember defendants equals its legislative jurisdiction” remains open) ; see generally John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen’s Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 752–76 (2006) (detailed examination and criticism of the Supreme Court’s civil adjudicatory decisions). Although the discussion in the text concentrates on the scope of tribal adjudicatory power as a manifestation of its retained inherent authority, it appears possible for such power to be delegated by Congress. The Ninth Circuit Court of Appeals effectively so held in Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), in concluding that Congress had invested a tribe with regulatory power over all persons within its reservation, including nonmembers, when it “ratified and confirmed” in a settlement act the tribe’s constitution. Id. at 1213. Part of the regulation challenged by the complainant was its enforcement against her by a tribal court. Id. at 1209; see also Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1297–99 (D.C. Cir. 2000) (discussing possible judicial review in tribal court of decisions related to implementation of federal power delegated to tribes under Clean Air Act).

Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985).

145

Id. at 856–57. A prior decision, Williams v. Lee, 358 U.S. 217, 222 (1959), suggested that a nonmember reservation merchant could invoke as a plaintiff the jurisdiction of a court of Indian offenses to collect a debt allegedly owed by tribal members, but such courts were not available for suits against nonconsenting nonmembers. 25 C.F.R. § 11.22 (1958); see Smith v. Salish Kootenai College, 434 F.3d 1127, 1132 (9th Cir.) (en banc) (“where the nonmembers are the plaintiffs, and the claims arise out of commercial activities within the reservation, the tribal courts may exercise civil jurisdiction”). 146

147 435 U.S. 191 (1978) (holding that tribes and their courts lack criminal jurisdiction over non‑­ Indians).

471 U.S. at 855–56 (footnote omitted).

148

462 U.S. 324 (1983).

149

455 U.S. 130 (1982).

150

447 U.S. 134 (1980).

151

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tribal taxation authority was upheld with respect to nonmember purchasers of cigarettes from tribal smoke shops. The analysis in National Farmers Union clearly suggested that the scope of tribal civil adjudicatory jurisdiction was to be measured against the same standards as those governing the existence of tribal regulatory authority and that a tribe could only adjudicate matters over which it otherwise possessed regulatory power; i.e., tribal adjudicatory jurisdiction is dependent upon the tribe’s right to make its internal law the rule of decision. Two years later the Supreme Court returned to the issue of the proper relationship between federal and tribal courts in Iowa Mutual.152 There, the Court was confronted with whether the exercise of diversity jurisdiction under 28 U.S.C. § 1332 with respect to a dispute over the proper interpretation of an insurance contract—an issue then involved in an ongoing tribal court action—should be deferred to the latter court for decision. It stated, in response to the argument that Congress had impliedly intruded upon tribal court authority through the grant of diversity jurisdiction, that “Congress has amended the diversity statute several times since the development of tribal judicial systems, but it has never expressed any intent to limit the civil jurisdiction of the tribal courts.”153 The Court then stated: Tribal authority over the activities of non‑Indians on reservation lands is an important part of tribal sovereignty. . . . Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. “Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence . . . is that the sovereign power . . . remains intact.” . . . In the absence of any indication that Congress intended the diversity statute to limit the jurisdiction of the tribal courts, we decline petitioner’s invitation to hold that tribal sovereignty can be impaired in this fashion.154

Various lower federal courts, without detailed analysis, cited this aspect of Iowa Mutual for the proposition that tribal court jurisdiction exists over any reservation‑based activities involving a tribe or its members unless expressly restricted by treaty or statute.155 Tribal courts followed suit, employing either

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987).

152

Id. at 18 (footnote omitted).

153

Id. (citations omitted).

154

Hinshaw v. Mahler, 42 F.3d 1178, 1180 (9th Cir. 1994) (“[t]he Tribes’ jurisdiction has not been limited by treaty or statute, and the Tribes have not given up their authority to exercise jurisdiction over such as the [the nonconsenting nonmembers]”); Stock West, Inc. v. Confederated Tribes of Colville Reserv., 873 F.2d 1221, 1228 (9th Cir. 1989) (“In the instant case, it seems clear that the tribal court has jurisdiction. The dispute arises out of the reservation and concerns tribal resources, and there are apparently no treaties or statutes that would limit tribal court jurisdiction in this case”); White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1305 (9th Cir. 1988) (“[i]t is well settled that civil jurisdiction over activities of non‑Indians concerning transactions taking place on Indian lands ‘presumptively lies in the tribal courts unless affir155

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an Iowa Mutual–based presumption analysis or a broad application of the Montana exceptions.156 Such a construction of Iowa Mutual was nevertheless questionable in light of two subsequent Supreme Court decisions not dealing specifically with the issue of tribal civil adjudicatory authority. First, in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation,157 four members of the Court concluded that a tribe lacked zoning authority over nonmember lands under any circumstances and that, to the extent a federally protected tribal interest is adversely affected by use of those lands, the tribe could seek to vindicate its interest only through nontribal administrative or judicial proceedings. “The governing principle,” the Justices stated, “is that the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee

matively limited by a specific treaty provision or federal statute[]’ ”); Wellman v. Chevron U.S.A., Inc., 815 F.2d 577, 579 (9th Cir. 1987) (“There is no difference between Indians and non‑Indians here. If the dispute arises in Indian territory, both are limited to tribal court as the forum of first recourse. It is in non‑Indian matters only that non‑Indians can go to district court directly”); see generally Pommersheim, supra note 141, at 337 (“[i]n the absence of controlling federal law, tribal courts presumably have jurisdiction over disputes involving Indians and non‑Indians on the reservation”). Nonetheless, other courts, even within the same circuit, reached arguably inconsistent conclusions. Yellowstone County v. Pease, 96 F.3d 1169, 1175 (9th Cir. 1996) (rejecting argument that National Farmers Union and Iowa Mutual “demonstrate that tribal adjudicatory jurisdiction over non-Indians is much broader than the tribal regulatory jurisdiction at issue in Montana”); A-1 Contractors v. Strate, 76 F.3d 930 (8th Cir. 1996) (same), aff’d, 520 U.S. 438 (1997). 156 See, e.g., Coeur d’Alene Tribe v. AT&T Corp., 23 Indian L. Rep. 6060 (Coeur d’Alene Tr. Ct. Feb. 28, 1996) (jurisdiction exists over action seeking to require telecommunications carrier to provide 800-number telephone service); Goodwin v. Turon, 21 Indian L. Rep. 6022 (Colv. Tr. Ct. Jan. 19, 1994) (jurisdiction over state school district); Hicks v. Harold, 21 Indian L. Rep. 6076 (W. Nev. Intertr. Ct. App. May 13, 1994) (exercising jurisdiction over state employees where tribal code provided that entry into tribal territory constituted consent to tribal court jurisdiction); Gesinger v. Gesinger, 19 Indian L. Rep. 6102 (Chy. Riv. Sx. Ct. App. Jan. 17, 1992) (exercising jurisdiction over breach of contract and conversion claims where transaction was reservation-based); Rosebud Sioux Tribe v. Walsh, 19 Indian L. Rep. 6030 (Rbd. Sx. Tr. Ct. Oct. 22, 1991) (asserting jurisdiction under first Montana exception over claim by tribe to enforce business licensing ordinance); Parisien v. Twin City Constr., 18 Indian L. Rep. 6142 (Turtle Mt. Tr. Ct. May 19, 1991) (exercising jurisdiction after concluding that September 1987 amendment to an ordinance that expanded tribal jurisdiction could be applied to claim by a member against a nonmember arising before the amendment); Fort Peck Hous. Auth. v. Home Sav. & Loan Ass’n, 16 Indian L. Rep. 6083 (Ft. Peck Tr. Ct. Mar. 14, 1989) (tribal court has jurisdiction over savings and loan that issued letter of credit for performance of a construction contract on reservation); Cheyenne River Sioux Tribe v. Dupree Am. Legion Club, 16 Indian L. Rep. 6067 (Chey. R. Sx. Tr. Ct. Feb. 6, 1989) (tribal courts have authority to enforce tribal ordinances against a non‑Indian who transacts, conducts, or performs business or activities within reservation); Billie v. Abbott, 16 Indian L. Rep. 6021 (Nav. S. Ct. Nov. 10, 1988) (exercising jurisdiction over state official acting off reservation pursuant to federal statute on the basis of such action’s on‑reservation effect on tribal members’ domestic relations); FMC Corp. v. Shoshone‑Bannock Tribes, 16 Indian L. Rep. 6026 (Sho‑Ban. Tr. Ct., App. Div. Oct. 10, 1988) (tribal court issues an order for compliance with tribal employment rights ordinance); Parisien v. Twin City Constr. Co., 16 Indian L. Rep. 6012 (Turtle Mt. Tr. Ct. App. June 6, 1986) (principles of self‑determination, sovereignty, and constitutional protections allow suit against nonmember construction company by member employee for work performed on reservation).

492 U.S. 408 (1989).

157

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land.”158 Second, in Duro v. Reina159 the Court held that a tribe lacked criminal jurisdiction over a nonmember Indian and, as a consequence, that its courts had no power to enforce tribal criminal sanctions against him. Duro drew no distinction between the standards applicable to determining regulatory and adjudicatory jurisdiction since, without the former, the latter cannot exist.160 The Court had reached a similar conclusion with respect to non‑Indians over a decade before.161 B. The Defining Decisions: Strate and Hicks The Supreme Court resolved this controversy in Strate,162 a dispute arising from a reservation motor vehicle accident that involved two nonmembers. Relying on Montana, the Court reiterated that the inherent powers of a tribe do not ordinarily extend to the regulation of nonmembers of the tribe. In so holding, the Court held that neither National Farmers Union nor Iowa Mutual established that “tribal courts retain adjudicatory authority in disputes over occurrences inside a reservation, even when the episode-in-suit involves nonmembers, unless a treaty or federal statute directs otherwise.”163 Those cases, the Court wrote, embody “only an exhaustion requirement, a ‘prudential rule,’ . . .based on comity . . . [and] do not expand or stand apart from Montana’s instruction on the ‘inherent sovereign powers of an Indian tribe.’ ”164 The statement in Iowa Mutual that “[c]ivil jurisdiction over [the activities of non-Indians on reservation lands] presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute” thus “stands for nothing more than the unremarkable proposition” that, where inherent authority already exists over such activities under Montana standards, it can be divested only by positive federal law.165 The Court then summarized the governing rule: As to nonmembers, we hold, a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction. Absent congressional direction enlarging tribal-court jurisdiction, we adhere to that understanding. Subject to controlling provisions in treaties and statutes, and the two exceptions

158 Id. at 430. Two other members of the Court, speaking through Justice Stevens, disagreed with the four‑member plurality opinion over a bright-line regulatory jurisdiction test based solely on landownership, but they did not question the plurality’s characterization of both legislative decision-making and tribal court adjudication as forms of tribal “regulat[ion].” Id. at 433–48 (Stevens, J., concurring).

495 U.S. 676 (1990).

159

See id. at 688 (“[t]he exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the [tribal] tribunal, but also to the prosecuting power of the tribe”). 160

161 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978) (holding “that Indian tribes do not have inherent jurisdiction to try and to punish non‑Indians”).

Strate v. A-1 Contractors, 520 U.S. 438 (1997).

162

Id. at 447.

163

Id. at 453.

164

Id. at 451, 453.

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identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally “do[es] not extend to the activities of nonmembers of the tribe.”166

It continued on to find that the state highway on which the accident occurred constituted nonmember fee land for Montana purposes, reasoning that “the right-of-way is open to the public, and traffic on it is subject to the State’s control.”167 The tribes thus “have retained no gatekeeping right;” i.e., “[s]o long as the stretch is maintained as part of the State’s highway, the Tribes cannot assert a landowner’s right to occupy and exclude.”168

Id.

166

Id. at 455–56.

167

Id. at 456. The “gatekeeping” concept has proved critical in a number of subsequent cases. Nord v. Kelly, 520 F.3d 848, 853 (8th Cir. 2008) (accident on state highway within reservation “on all fours with Strate”); Burlington N. R.R. v. Red Wolf, 196 F.3d 1059, 1063 (9th Cir. 1999) (finding congressionally granted railroad right-of-way equivalent to nonmember fee land); County of Lewis v. Allen, 163 F.3d 509, 514 (9th Cir. 1998) (en banc) (finding no “gatekeeping right” in tribal court action against state law enforcement officers and county where tribe had consented to state criminal jurisdiction under Public Law 280, since state officers “have authority to patrol the reservation, investigate crimes and make arrests” and the tribe accordingly is “divested . . . of [its] exclusive control and power to exclude those officials from the reservation”); Wilson v. Marchington, 127 F.3d 805, 813–15 (9th Cir. 1997) (following Strate where accident on state highway involved member and nonmember); Austin’s Express, Inc. v. Arneson, 996 F. Supp. 1269, 1271–72 (D. Mont. 1998) (finding Strate controlling with respect to accident on interstate highway); cf. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 482 n.4 (1999) (distinguishing Strate since “the events in question here occurred on tribal lands”); McDonald v. Means, 300 F.3d 1037, 1040 n.2 (9th Cir.) (tribal jurisdiction presumptively existed as to accident that occurred on tribal road), amended, 309 F.3d 530 (9th Cir. 2002); Enlow v. Moore, 134 F.3d 993, 995–96 (10th Cir. 1998) (tribal court jurisdiction over quiet title action determined by whether land in dispute was part of a restricted allotment and therefore in Indian country); Hornell Brewing Co. v. Rosebud Sioux Tribal Ct., 133 F.3d 1087, 1091 (8th Cir. 1998) (finding no basis for tribal court jurisdiction over claims directed at off-reservation marketing activities of breweries because “[n]either Montana nor its progeny purports to allow Indian tribes to exercise civil jurisdiction over the activities or conduct of non-Indians occurring outside their reservations”); Tunica-Biloxi Indians v. Pecot, 351 F. Supp. 2d 519, 525 (W.D. La. 2004) (tribal court lacked jurisdiction over suit where controversy arose on tribally owned land outside Indian country); Christian Children’s Fund Inc. v. Crow Creek Sioux Tribal Ct., 103 F. Supp. 2d 1161, 1166 (D.S.D. 2000) (holding that the conduct at issue, which involved alleged breach of contract and related torts, did not occur within reservation, that exhaustion of tribal court remedies was not required, and that, under Montana principles, tribal court lacked jurisdiction); see generally David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267, 347 (2001) (contending that “[t]he Court in Strate had to indulge incredible legal contortions to deny jurisdiction to the tribal court[,]” including “recast[ing] an element of basic property law by saying that the tribe’s conveyance of a road right-of-way passed the equivalent of fee title to the state”); Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority Over Nonmembers, 109 Yale L.J. 1, 56 (1999) (concluding that “Strate leaves open a variety of questions about tribal-court jurisdiction and exhaustion of tribal-court remedies concerning nonmember defendants where the cause of action arises on a reservation site other than nonmember fee lands, state or federal roads, or similar areas in which the federal government has explicitly divested the tribe of property rights and the power to exclude nonmembers”); James R. Hintz, Note, Wilson v. Marchington: The Erosion of Tribal Court Civil Jurisdiction in the Aftermath of Strate v. A-1 Contractors, 20 Pub. Land & Resources L. Rev. 145 (1999) (criticizing the application of Strate in Wilson v. Marchington); Note, Recent Case, 111 Harv. L. Rev. 1620 (1998) (same). “Gatekeeping” concerns, however, likely do not attend control of purely internal tribal matters. Cf. Baker v. John, 982 P.2d 738, 759 (Alaska 1999) (interpreting federal decisional law to “support the conclusion that Native American nations may possess the authority to govern themselves even when they do not occupy Indian country[,]” and holding that Native village possessed inherent authority to resolve custody dispute involving member plaintiff and consenting nonmember defendant); see generally David M. Blurton, John v. 168

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The Strate Court found neither Montana exception applicable. Consent was absent given the tortious nature of the claim asserted against the nonmember.169 Although observing with respect to the second exception that, “[u]ndoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members,” the Court reasoned that “if . . . [the] exception requires no more, the exception would severely shrink the rule.”170 The Court characterized the four decisions171 that the Montana Court cited in support of the second exception as exemplifying “the question whether a State’s (or Territory’s) exercise of authority would trench unduly on tribal self-government.”172 Consequently, while “[r]ead in isolation, the Montana rule’s second exception can be misperceived,” its purpose is to protect from state infringement the inherent authority of tribes “ ‘[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.’ ”173 The second exception, in short, is limited to those instances where its application “is needed to preserve ‘the right of reservation Indians to make their own laws and be ruled by them.’ ”174 “Opening the Tribal Court for [Mrs. Fredericks’s] optional use” was not such an instance.175 The overall approach of Strate was thus to employ a state law preemption standard—the Williams infringement test—to determine the scope of inherent tribal authority in the absence of nonmember consent or congressional delegation. The Court’s use of the Williams infringement test suggests that inherent authority generally exists over a nonmember only when application of state law to regulate the

Baker and the Jurisdiction of Tribal Sovereigns Without Territorial Reach, 20 Alaska L. Rev. 1 (2003) (disagreeing with the holding in John concerning Native village authority in the absence of Indian country status). 169 520 U.S. at 457. The nonmember tribal court defendant did have a contractual relationship with the tribe, but the tribal court plaintiff’s “ ‘non-party’ ” status to the agreement negated its relevance to the consent exception. Id. Comparable attempts to invoke the consent exception have proved unsuccessful. E.g., MacArthur v. San Juan County, 309 F.3d 1216, 1223 (10th Cir. 2002) (rejecting reliance on contractual relationship between two nonmembers); Big Horn County Elec. Coop., Inc. v. Adams, 219 F.3d 944, 950 (9th Cir. 2000) (consensual arrangements with tribe and tribal members to provide electrical service did not constitute consent to ad valorem tax on utility property); Reservation Tel. Coop. v. Henry, 278 F. Supp. 2d 1015, 1022–24 (D.N.D. 2003) (same).

520 U.S. at 458.

170

Fisher v. Dist. Ct., 424 U.S. 382 (1976) (per curiam); Williams v. Lee, 358 U.S. 217 (1959); Mont. Catholic Missions v. Missoula County, 200 U.S. 118 (1906); Thomas v. Gay, 169 U.S. 264 (1898). 171

520 U.S. at 458.

172

Id. at 459 (quoting Montana, 450 U.S. at 564).

173

Id. (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)).

174

Id.

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particular activity is preempted by virtue of interference with self-government rights.176 The decision’s effect on lower federal courts has been significant.177

176 See Cordova v. Holwegner, 971 P.2d 531, 537 (Wash. Ct. App. 1999) (applying Montana standards to determine whether state court had jurisdiction over claim by nonmembers against nonmembers related to reservation accident on tribal land, and commenting that “[t]he [Williams] infringement test and the Montana analysis examine the limits of tribal inherent sovereignty from different perspectives, the former by examining the extent of state jurisdiction and the latter by examining the extent of tribal jurisdiction”). 177 See Nord v. Kelly, 520 F.3d 848, 854 n.3 (8th Cir. 2008) (on-reservation state highway accident between nonmember and member; the member status of the tribal court plaintiff was “a distinction without a difference . . . because . . . the question is whether the tribe has jurisdiction over the nonmember”); Burlington N. R.R. v. Red Wolf, 196 F.3d 1059, 1064–65 (9th Cir. 1999) (personal injury claims resulting from railroad rightof-way accident); Montana Dep’t of Transp. v. King, 191 F.3d 1108, 1113–14 (9th Cir. 1999) (application of tribal employment rights ordinance to state highway employees); County of Lewis v. Allen, 163 F.3d 509, 514–15 (9th Cir. 1998) (en banc) (claims deriving from on-reservation arrest of tribal member); Hornell Brewing Co. v. Rosebud Sioux Tribal Ct., 133 F.3d 1087, 1093 (8th Cir. 1998) (claims related to off-reservation marketing of malt liquor); Wilson v. Marchington, 127 F.3d 805, 814–15 (9th Cir. 1997) (claim by tribal member arising from accident on state highway within reservation); Austin’s Express, Inc. v. Arneson, 996 F. Supp. 1269, 1272 (D. Mont. 1998) (claim by tribal member’s estate arising from accident on interstate highway within reservation); Rodriguez v. Wong, 82 P.3d 263, 266–67 (Wash. Ct. App. 2004) (applying Williams standard to determine applicability of second Montana exception, and concluding that tribe possessed authority to establish terms and conditions of employment through adoption of employee manual). Tribal courts, in contrast, remain reluctant to find the absence of adjudicatory jurisdiction. See Confederated Tribes of Grand Ronde v. Strategic Wealth Mgmt., Inc., 32 Indian L. Rep. 6148 (Grand Ronde Cmty. Tr. Ct. Aug. 5, 2005) (tribal court possessed jurisdiction under both Montana exceptions over challenge by tribe to award of attorneys’ fees and costs in American Arbitration Association proceeding involving nonmember investment advisor, since “it is not the activity during the arbitration itself that this Court” is considering but “rather . . . those actions and activities that preceded the arbitration and that may or may not have resulted in a waiver of the Tribe’s sovereign immunity”); Muscogee (Creek) Nation v. One Thousand Four Hundred Sixty Three & 14/100 Dollars ($1463.14), 32 Indian L. Rep. 6133 (Muscogee (Creek) S. Ct. Apr. 29, 2005) (tribal court possessed jurisdiction over forfeiture proceeding with respect to money seized from nonmembers in tribal casino parking lot as part of drug seizure; although Montana standards held not to apply because seizure occurred on tribal property, both exceptions were found to exist); Alavarado v. Warner-Lambert Co., 30 Indian L. Rep. 6174 (Lummi Tr. Ct. May 22, 2003) (tribal court possessed jurisdiction over wrongful death claim against drug manufacturers under both Montana exceptions because company representatives had met with tribal physicians and pharmacists on reservation to market drugs and because “[p]roviding adequate health care to its population is a vital role for any government”); Wolf Point Cmty. Org. v. Investment Ctrs. of Am., Inc., 28 Indian L. Rep. 6088 (Ft. Peck Tr. Ct. App. Feb. 6, 2001) (holding that complaint’s allegations concerning reservation-based commercial dealings adequately supported jurisdiction under first Montana exception for purposes of motion to dismiss, and rejecting contention by accounting firm that its professional licensure by state foreclosed tribal regulation); Clark v. Richter, 27 Indian L. Rep. 6166 (Ft. Peck Tr. Ct. App. Feb. 18, 2000) (tribal court had jurisdiction under consent exception over malpractice claim occurring within reservation at community hospital on nontribal land and outside reservation); Lilly v. Davis, 27 Indian L. Rep. 6171 (Ft. Peck Tr. Ct. App. Feb. 14, 2000) (tribal court had jurisdiction over claims under 42 U.S.C. § 1983 and tribal law related to detention and search of tribal member by county law enforcement officers acting pursuant to cross-deputization agreement under both Montana exceptions); Saginaw Chippewa Indian Tribe v. Cunningham, 27 Indian L. Rep. 6052 (Saginaw Chippewa Ind. Tr. App. Ct. Oct. 18, 1999) (rejecting applicability of Montana standards to dispute over construction of tribal gaming casino, but alternatively finding both Montana exceptions present); Edwards v. Neal, 26 Indian L. Rep. 6019 (Crow Ct. App. Aug. 13, 1998) (remanding for determination in light of Strate whether subject matter jurisdiction exists over claim by member against nonmember arising from accident on state highway allegedly caused by defendant’s failure to fence cattle but suggesting various grounds upon which Strate might be distinguished, and determining issues concerned with merits of claim); Hielgeson v. Lac du Flambeau Band of Lake Superior Chippewa Indians, 25 Indian L. Rep. 6045 (Lac du Flambeau Tr. App. Ct. Jan. 30, 1998) (finding adjudicatory jurisdiction over nonmembers who operate business on fee-owned property on the basis of the first Montana exception because tribe’s general governmental services help secure “ ‘the advantages of a civilized society’ ”); but see Clark v. Allen, 27 Indian L. Rep. 6077 (Nav. S. Ct. Sept. 29, 1999) (vacating order that denied motion to dismiss claim against insurer for bad-faith settlement practices, and remanding with instructions for the trial court to “make detailed factual findings on whether the bad faith insurance settlement claim arose on

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The fundamental thrust of Strate was reaffirmed four years later in Nevada v. Hicks.178 Hicks involved an action brought under 42 U.S.C. § 1983 and tribal common law in tribal court against, inter alia, state fish and game wardens. The plaintiff, a tribal member, alleged injury from an on-reservation search of his home in connection with investigation of an off-reservation hunting violation. The home was located on tribal land.179 After exhausting tribal court remedies as to the existence of tribal court authority under Montana-based principles, the state defendants sought relief in federal court.180 The district court and court of appeals held that jurisdiction existed,181 but the Supreme Court reversed in an opinion authored by Justice Scalia and joined in by five other members of the Court.182 The Court first reiterated that, under Strate, inherent tribal adjudicatory authority cannot exceed inherent tribal regulatory authority. Leaving open the question whether nonmembers could ever be subject to tribal court jurisdiction without consent,183 the Court analyzed the case with reference to Montana’s regulatory standards, since “[w]e will not have to answer that open question if we determine that the Tribes in any event lack legislative jurisdiction in this case.”184 It then turned to applicability of those standards where the nonmember conduct occurred on tribal lands within a reservation and rejected the court of appeals’ conclusion that Montana was inapposite in such a situation. “While it is certainly true that the non‑Indian ownership status of the land was central to the analysis in both Montana and Strate,” the Court stated, “the reason that was so was not that Indian ownership suspends the ‘general proposition’ derived from Oliphant that ‘the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe’ except to the extent ‘necessary to protect tribal self‑government or to control internal relations.’ ”185 Instead, “[t]he ownership status of land . . . is only one factor to

or off of the Navajo Nation[] and [to] apply all relevant Navajo Nation and federal law to decide whether it has subject matter jurisdiction”); see generally Nell Jessup Newton, Tribal Court Praxis: One Year in Twenty Indian Tribal Courts, 22 Am. Indian L. Rev. 285, 329–34 (1998) (analyzing several tribal court decisions addressing adjudicatory jurisdiction issue in light of Strate). 533 U.S. 353 (2001).

178

Id. at 355–56.

179

Id. at 357.

180

Nevada v. Hicks, 944 F. Supp. 1455 (D. Nev. 1996), aff’d, 196 F.3d 1020 (9th Cir. 1999), rev’d, 533 U.S. 353 (2001). The lower federal courts also declined on exhaustion grounds to address sovereign and qualified immunity claims advanced by the state officers. 944 F. Supp. at 1468–69; 196 F.3d at 1029–30. 181

182 Aside from Justice Scalia’s opinion for the Court, separate concurring opinions were filed by Justices Souter, Ginsburg, O’Connor, and Stevens. See 533 U.S. at 375 (Souter, J., concurring); id. at 386 (Ginsburg, J., concurring); id. (O’Connor, J., concurring in part and concurring in judgment); id. at 387 (Stevens, J., concurring in judgment).

Id. at 357–58.

183

Id. at 358.

184

Id. at 359.

185

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consider in determining whether regulation of the activities of nonmembers is ‘necessary to protect tribal self‑government or to control internal relations’ ” and is not in itself “dispositive.”186 The Court further characterized Montana as standing generally for the proposition that “[t]ribal assertion of regulatory authority over nonmembers must be connected to th[e] right of the Indians to make their own laws and be governed by them.”187 Although states do not possess “the same degree of regulatory authority within a reservation[]” as possessed off reservation, their “sovereignty does not end at a reservation’s border.”188 In this instance, state sovereignty was implicated because the ability to serve process on reservation with respect to off-reservation conduct “is necessary to ‘prevent [such areas] from becoming an asylum for fugitives from justice.’ ”189 “The State’s interest in execution of process is considerable,” the Court held, and thus “even when it relates to Indian-fee lands it no more impairs the tribe’s self-government than federal enforcement of federal law impairs state government.”190 It additionally characterized as “irrelevant” the contention that the state’s interest was diminished insofar as the involved claims were directed to the officers in their individual capacities, reasoning that “a State ‘can act only through its officers and agents,’ and if a tribe can ‘affix penalties to acts done under the immediate direction of the [state] government, and in obedience to its laws,’ ‘the operations of the [state] government may at any time be arrested at the will of the [tribe].’ ”191 After rejecting the United States’ suggestion that various federal statutes reflected congressional intent to preclude state officers from “enter[ing] a reservation (including Indian-fee land) to investigate or prosecute violations of state law occurring off the reservation,”192 the Court addressed the question whether the tribal court could entertain claims under section 1983. In answering it negatively, the Court distinguished tribal courts from state courts—which do have concurrent jurisdiction over section 1983 claims—on several grounds. “ ‘Under our system of dual sovereignty,’ ” state courts are “ ‘presumptively competent’ ” to decide claims under federal law, a “historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases . . . completely missing with respect to tribal courts.”193 Tribal courts, moreover, differ from

186 Id. at 360; see also id. (“the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers”).

Id. at 361.

187

Id. at 361–62.

188

Id. at 364.

189

Id.

190

Id. at 365.

191

Id. at 366.

192

Id. at 366–67.

193

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state courts because the latter are not “courts of ‘general jurisdiction.’ ”194 “A state court’s jurisdiction is general, in that it ‘lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe[,]’ ” but “[t]ribal courts . . . cannot be courts of general jurisdiction in this sense, for a tribe’s inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction.”195 Lastly, tribal courts differ from state courts “because the general federal-question removal statute refers only to removal from state court” and, thus, “defendants would inexplicably lack the right available to state-court § 1983 defendants to seek a federal forum.”196 While the specific holding in Hicks—state officers are not subject to suit in tribal court over on-reservation service of legal process with respect to alleged off-reservation criminal offenses—was narrow, its analysis has significantly broader implications. First, the Court’s opinion casts doubt on the notion that a coterminous relationship exists between tribal adjudicatory and regulatory authority. The lead opinion by Justice Scalia explicitly left that issue open and criticized Justice O’Connor’s concurring opinion for “simply answer[ing]” the question “in the affirmative.”197 Justice Scalia thus declined to hold that tribal court jurisdiction could ever be exercised over nonconsenting nonmembers and thereby invited future litigation over the issue.198 Second, the Court clarified that Montana principles have the same force and effect with respect to nonmember conduct on tribal lands as on nontribal lands. Justice Souter emphasized this holding in his concurrence by stating that “[i]t is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact.”199 Unanswered, however, is the weight that should be accorded the locus of the regulated activity in applying the Montana exceptions—a principal point of disagreement between the majority and

Id. at 367.

194

Id.

195

Id. at 368. The Court distinguished the general federal removal statute, 28 U.S.C. § 1441, from the removal provision in the Price-Anderson Act, 42 U.S.C. § 2210(n)(2), at issue in El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999), on the basis that the tort claims in dispute there, though deemed to be actions arising under § 2210, initially arose under tribal law. Thus, “there was little doubt that the tribal court had jurisdiction over such tort claims,” and that the “distinctive provisions for the handling of ‘nuclear incident’ cases in federal court” made it “clear Congress envisioned the defendant’s ability to get into federal court in all instances.” 533 U.S. at 368. In contrast, accepting the contention that § 1441 removal was available to the tribal court defendants not only would ignore the unique statutory scheme embodied in the Price-Anderson Act but also would mean “attribut[ing] to tribal courts jurisdiction that is not apparent.” Id. at 369. 196

Id. at 374.

197

Id. at 358 n.2 (“Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general”). 198

Id. at 382.

199

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Justice O’Connor.200 Third, despite the absence of any express reference to the second exception, the Court’s analysis relied on Strate’s treatment of the exception and made explicit the earlier decision’s apparent conclusion that the Williams preemption rule—i.e., Indians have “the right to make their own laws and be governed by them”201—governs determination of “ ‘what is necessary to protect tribal self-government and control internal relations’ ” for purposes of justifying nonmember regulation.202 In this regard, Justice O’Connor criticized the Court’s application of the Williams standard but did not dispute its centrality to determining whether the second exception was present.203 Hicks, like Strate, therefore suggests that the second exception applies only in those situations where application of state law would be preempted under the Williams infringement test.204 Last, the Court’s refusal to recognize the jurisdiction of tribal courts to enforce section 1983 underscored that, as Strate also had determined, such courts are available, absent congressional delegation, only to entertain tribal law–based claims.205

200 Id. at 392 (O’Connor, J., concurring in part and concurring in judgment) (“The Court’s reasoning suffers from two serious flaws: It gives only passing consideration to the fact that the state officials’ activities in this case occurred on land owned and controlled by the Tribes, and it treats as dispositive the fact that the nonmembers in this case are state officials”); see generally Joseph William Singer, Canons of Conquest: The Supreme Court’s Attack on Tribal Sovereignty, 37 New Eng. L. Rev. 641, 652 (2003) (criticizing Hicks as “go[ing] substantially beyond the Montana line of cases to hold that a tribe has no jurisdiction over a nonmember who enters tribal land” and as “com[ing] close to extending Oliphant to civil jurisdiction”).

Id. at 361.

201

533 U.S. at 359.

202

Id. at 395 (“[s]aying that tribal jurisdiction must ‘accommodat[e]’ various sovereign interests does not mean that tribal interests are to be nullified through a per se rule”). 203

204 See generally John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen’s Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 765 (2006) (arguing that Hicks’s “suggestion that the kind of interest-balancing sometimes applied to questions of state power in Indian country may also be used to delimit tribal power is without precedent in the Supreme Court’s Indian law jurisprudence”); Getches, supra note 168, at 335 (criticizing majority opinion on the ground, inter alia, “[n]ot only has the Supreme Court never applied the test of whether state action infringes on the right of reservation Indians to be governed by their own rules to tribal jurisdiction cases but, when it has used the test, the Court has clearly rejected arguments that state jurisdiction should presumptively apply whenever no infringement can be proved[,]” but not discussing Strate’s treatment of the second Montana exception with reference to the Williams standard); Alex Tallchief Skibine, Making Sense of Nevada v. Hicks: A Reinterpretation, 14 St. Thomas L. Rev. 347, 352–53 (2001) (concluding that “the Court imported into the Montana test the traditional test used by the Court in determining whether a state has jurisdiction within Indian country[,]” and adding that “traditionally, cases which have used a balancing of the interests approach to allow state jurisdiction within Indian reservations, have not used the test to also deny tribal concurrent jurisdiction”); cf. Katosha Belvin Nakai, Comment, Red Rover, Red Rover: A Call for Comity in Linking Tribal and State Long-Arm Provisions for Service of Process in Indian Country, 35 Ariz. St. L.J. 633, 673–84 (2003) (recognizing, although disputing, the potential significance of Hicks’s analysis to the question of state authority to effect service of civil process). 205 Justice Stevens’s concurrence, which argued that “the Court’s initial assumption” that tribal courts lack jurisdiction to resolve federal law claims unless Congress conferred the authority “is deeply flawed[,]” served to reinforce the basis for the Court’s holding. 533 U.S. at 402. He reasoned that, “[a]bsent federal law to the contrary, the question whether tribal courts are courts of general jurisdiction is fundamentally one of tribal law” (id.), but, as Justice Scalia observed in response, Strate “is ‘federal law to the contrary’ ” and its “limitation on jurisdiction over nonmembers pertains to subject-matter, rather than merely personal, jurisdiction, since it turns upon whether the actions at issue are regulable by the tribe” (id. at 367 n.8). Justice Scalia’s view in this regard appears more consistent with the analysis in National Farmers Union and the later

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The Supreme Court’s most recent exploration of Montana—Plains Commerce Bank v. Long Family Land and Cattle Co.206—did not alter the legal landscape carved out by Strate and Hicks with regard to tribal adjudicatory authority. Although concerned exclusively with the validity of a tribal court judgment based in relevant part on a claim of discrimination against tribal members in connection with the sale of fee land, the Court cited Strate for the principle that “ ‘a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction’ ” and then concluded that the tribal court lacked authority to entertain the discrimination claim against the non-Indian bank because the tribe itself “lack[ed] the civil authority to regulate the Bank’s sale of its fee land.”207 In

decisions. Courts of “general jurisdiction” have authority, and perhaps the obligation under conflict of laws principles, to apply a foreign state’s substantive law in some instances. See, e.g., Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 (1984); Allstate Ins. Co. v. Hague, 449 U.S. 302, 311–12 (1981); see generally Courtland H. Peterson, Jurisdiction and Choice of Law Revisited, 59 U. Colo. L. Rev. 37, 37–38 (1988) (“The factors relevant to a constitutionally valid exercise of judicial jurisdiction are obviously similar to, and sometimes overlap, the factors relevant to a constitutionally valid state court choice of law. These two inquiries are separate in the sense that they serve different functions—in the one case determining whether a particular court can decide a case, in the other determining which state’s law is permissible to use in deciding it”). Nonetheless, in the unique context of tribal authority in Indian country, adjudicatory power typically has been seen as a direct adjunct to regulatory power. See, e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978) (emphasis in original) (granting habeas corpus relief to non‑Indians criminally prosecuted in tribal court and quoting favorably from Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 147 (1810) (Johnson, J., concurring), for the notion that “ ‘the limitation upon [tribes’] sovereignty amounts to the right of governing every person within their limits except themselves”). This restriction on tribal adjudicatory authority reflects a lack of any significant interest possessed by tribes in the nonconsensual disposition of disputes whose merits are not governed by their internal law. In any event, the holding in Hicks with respect to the lack of tribal court authority to apply federal law, at least absent the parties’ consent, seems likely to be given effect by lower courts. Cf. Burrell v. Armijo, 456 F.3d 1159, 1175 (10th Cir. 2006) (McConnell, J., concurring in judgment) (reasoning that, to the extent Hicks placed § 1983 claims outside the scope of tribal court jurisdiction, claims under 42 U.S.C. §§ 1981 and 1985 should be deemed outside such jurisdiction); see generally John P. LaVelle, Implicit Divestiture Reconsidered: Outtakes from the Cohen’s Handbook Cutting-Room Floor, 38 Conn. L. Rev. 731, 773 (2006) (arguing that Hicks’s analysis, “[d]espite some broad accompanying dicta,” should be “viewed as limited to § 1983 suits brought against state officers for allegedly having committed civil rights violations in the course of conducting officially authorized on-reservation police investigations stemming from allegations of off-reservation crime”—i.e., as limited to the case’s particular facts). Nothing precludes tribal courts, as a matter of federal law, from formulating their own common law that provides remedies comparable to those under the various civil rights acts. See generally Matthew L.M. Fletcher, Rethinking Customary Law in Tribal Court Jurisprudence, 13 Mich. J. Race and L. 57, 81, 94 (2007) (noting the “[d]earth” of tribal custom being used “as persuasive or controlling authority” in tribal court opinions; suggesting that “[o]ne method of teasing out a tribe’s primary rules may be to focus on important and fundamental rules articulated in the tribe’s language”); Matthew L.M. Fletcher, Toward a Theory of Intertribal and Intratribal Common Law, 43 Hous. L. Rev. 701, 741 (2006) (“delineat[ing] a proposed line between intertribal common law and intratribal common law as a means of explaining and emphasizing the difference between tribal law that applies in some circumstances to tribal members alone and tribal law that applies to members and nonmembers both[,]” and suggesting that “[i]f the [Supreme] Court understands the distinction, its fears of subjecting nonmembers to unfair law should be allayed”); Max Minzner, Treating Tribes Differently: Civil Jurisdiction Inside and Outside Indian Country, 6 Nev. L.J. 89, 91 (2005) (contending that existing approach to determining tribal court jurisdiction is premised on presumption that “tribal courts treat non-Indian litigants unfairly[] and that tribal courts and tribal interests are threatened when state courts exercise authority within tribal boundaries[;]” recommending instead that, as to tribes which “have adopted court systems that are procedurally and substantive[ly] similar to state systems,” a choice-of-law rather than “exclusive jurisdiction” model analogous to that used more generally in state and federal courts be employed). 128 S. Ct. 2709 (2008). A full discussion of Plains Commerce appears in Chapter 5, part II.C.6.

206 207

Id. at 2720.

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reaching that conclusion, the Court stressed the fact that the discrimination claim’s object was to restrict the bank’s ability to sell its reservation-located land and deemed the tribe to have lost any “residual sovereignty”208 to impose such a restriction.209 It deemed the sale of land to fall outside the scope of Montana’s first exception as a categorical matter because “our Montana cases have always concerned nonmember conduct on the land.”210 In short, application of Montana exceptions as a threshold matter demands that “the regulation . . . stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve self-government, or control internal relations.”211 The second Montana exception fared no better, since it derives “from the same sovereign interests that give rise to the first, interests that do not reach to regulating the sale of non-Indian fee land.”212 The decision in Plains Commerce leaves for future decision-making precisely where the line between Montana-recognized sovereign interests should be drawn. Wherever drawn, however, it remains a function of determining civil regulatory, or legislative, authority. Courts assessing civil adjudicatory issues thus likely will follow a three-step winnowing process: determining whether the tribal court defendant is a tribal member; if so, whether either Montana exception applies; and, if so, whether an independent limitation on inherent civil adjudicatory authority exists.213 Unresolved in light of Plains Commerce is whether a nonmember can consent to tribal court jurisdiction outside Montana’s boundaries by invoking it affirmatively.214 Other questions undoubtedly will arise in connection with application of Strate’s and Hicks’s analysis by lower courts. One is whether tribal court jurisdiction is ever permissible over nonconsenting nonmembers as a matter of inherent authority and, if so, whether tribal court authority is more constrained than its regulatory, or “legislative,” power and what significance should be given to the locus of the nonmember’s conduct.215 A second question of substantial

Id. at 2718.

208

Id. at 2721 (“[t]he tribal tort law . . . regulates the substantive terms on which the Bank is able to offer its fee land for sale”). 209

Id. at 2722 (emphasis supplied).

210 211

Id. at 2724. Id. at 2726.

212

See, e.g., MacArthur v. San Juan County, 497 F.3d 1057, 1068 (10th Cir. 2007).

213

Such consent has been found by lower courts but only under the aegis of the first exception. See Smith v. Salish Kootenai College, 434 F.3d 1127, 1136 (9th Cir. 2006) (en banc) (tribal court possessed jurisdiction over cross-claim brought by nonmember defendant through operation of the first Montana exception; although the nonmember did not “engage[] in any of the illustrative ‘consensual relationships’ described in Montana[,]” he “chose to appear in tribal court” and thus “did consent to the civil jurisdiction of the Tribes’ courts”); Thorstenson v. Norton, 440 F.3d 1059, 1064 (8th Cir. 2006) (purchaser of trust lands bound by tribal court judgment in proceeding that he initiated). 214

215 One panel of the Ninth Circuit, for example, has deemed the distinction between state and nonstate roads dispositive even after Hicks. McDonald v. Means, 300 F.3d 1037, 1041 (9th Cir.) (tribal jurisdiction

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importance to the states is whether they, their political subdivisions, or their representatives enjoy a categorical immunity from tribal court jurisdiction where official conduct is at issue. Although Hicks likely establishes through Montana-based standards a lack of inherent tribal authority with respect to on-reservation actions by state officials or employees,216 unaddressed by the Supreme Court is whether states or their political subdivisions are wholly immune by virtue of their sovereign status from the exercise of such authority without regard to Montana principles. The federal government and its agents possess such immunity.217 State governmental entities arguably stand in a

presumptively existed as to accident that occurred on road as to which tribe had not transferred “gatekeeping” right), amended, 309 F.3d 530, 533 (9th Cir. 2002) (“Montana limits its scope to a Tribe’s civil authority over the conduct of nonmembers on non-Indian fee land, and Strate affirms that limitation”). 216 The Hicks Court rejected the tribal officials’ contention that “even conceding the State’s general interest in enforcing its off-reservation poaching law on the reservation, Nevada’s interest in this suit is minimal, because it is a suit against state officials in their individual capacities.” 533 U.S. at 364–65. It reasoned that “a State ‘can act only through its officers and agents,’ and [that] if a tribe can ‘affix penalties to acts done under the immediate direction of [state] government, and in obedience to its laws,’ ‘the operations of the [state] government may at any time be arrested at the will of the [tribe].’ ” Id. at 365. The Court’s unwillingness to recognize tribal regulatory authority over state law enforcement officers may well extend to other contexts involving the discharge of state law responsibilities. See MacArthur v. San Juan County, 497 F.3d 1057, 1073–74 (10th Cir. 2007) (under Hicks and other precedent, “in the absence of congressional delegation, the tribes may not regulate a State qua State on non-Indian land (even within the exterior boundaries of the reservation) based only on a consensual relationship between members of the tribe and the State”); Montana Dep’t of Transp. v. King, 191 F.3d 1108 (9th Cir. 1999) (tribe lacked inherent authority under Montana standards to impose tribal employment relations office ordinance on state employees performing maintenance work on state highway located within reservation); Yellowstone County v. Pease, 96 F.3d 1169 (9th Cir. 1996) (tribal court lacked jurisdiction over county under Montana standards to enjoin enforcement of property tax imposed on tribal member). 217 See, e.g., United States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir. 1986). Lower federal courts have divided over the question whether the United States may be subject to tribal law in suits maintained under the Federal Tort Claims Act (FTCA), which provides in 28 U.S.C. § 1346(b)(1) that “the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Compare Cheromiah v. United States, 55 F. Supp. 2d 1295, 1302 (D.N.M. 1999) (construing “law of the place” to mean tribal law with respect to medical malpractice claim from treatment at Indian Health Service pueblo hospital), with LaFramboise v. Leavitt, 439 F.3d 792, 794–95 (8th Cir. 2006) (“the law of the place is the law of the State” because the FTCA’s “plain meaning” indicates that “Congress contemplated a single source of governing law[,]” the “most apposite” federal appellate decisions support that reading, and it is “unlikely that Congress meant for the liability of the United States to depend on the laws of more than 550 tribal governments throughout the country”); Mentz v. United States, 359 F. Supp. 2d 856, 860 (D.N.D. 2005) (“[s]ince the FTCA’s enactment in 1948, the ‘law of the place’ has meant the law of the state where the negligent act or omission occurred[,]” and “[t]his same approach has been used when the negligent act or omission occurred on Indian land located within a state”); and Louis v. United States, 54 F. Supp. 2d 1207, 1209–10 (D.N.M. 1999) (construing “law of the place” to mean law of the state in which pueblo hospital is located); see generally Katherine C. Pearson, Departing from the Routine: Application of Indian Tribal Law Under the Federal Torts Claims Act, 32 Ariz. St. L.J. 695, 715, 743 (2000) (concluding that “even though Congress probably did not contemplate tribal law as one of the specific options for choice-of-law under the FTCA, its use of the phrase ‘place where the act or omission occurred,’ particularly as interpreted by the Supreme Court in Richards [v. United States, 369 U.S. 1 (1962)], is broad enough to include, rather than specifically to exclude, recognition of tribal law,” but observing that “[t]he decision of the federal court to apply tribal law . . . is not without potentially negative effects on tribal sovereignty” since, for example, “[t]he federal court may make the ‘wrong’ decision about tribal law” and since “[t]he

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different position than other nonmembers with respect to tribes because of the states’ unique status under the “plan of the convention” reflected in the United States Constitution.218 Since states entered the Union with their sovereign immunity intact except to the extent compromised under that plan, and since it is now settled the Constitutional Convention did not “surrender[] the States’ immunity for the benefit of the tribes,”219 it is unlikely that tribes retain inherent authority to regulate state and local governments. Finding such regulatory authority would be problematic given not only the absence of constitutional restrictions on tribal power comparable to that on Congress under, most importantly, the Tenth Amendment, but also the absence of federal court review with respect to the merits of a tribe’s exercise of such power if deemed to exist.220 On this question, the Ninth Circuit Court of Appeals has held states immune from suits brought by an individual in tribal court.221 The Tenth Circuit Court of Appeals also has noted the issue with respect to tribal court claims against a county and its health district but declined to address it, reasoning that Montana-based analysis should first occur and that “[i]f, and only if, [the parties asserting tribal court jurisdiction] overcome the heavy presumption Montana establishes against the existence of tribal jurisdiction will a federal district court have occasion to address the sovereign immunity issue at all.”222 It held subsequently in the same litigation that the first exception did not apply to employment relationships between a state political subdivision and tribal members at a reservation health facility located on the political subdivision’s land, observing that “[t]he power to exercise regulatory authority over another independent sovereign on that sovereign’s land, even where a consensual relationship is involved, closely resembles the ‘freedom independently to determine [a tribe’s] external relations,’ which tribes necessarily relinquished as a result of their dependent status.”223

federal court’s role puts a premium on tribal law that is documented in writing, by codification or easily accessible written opinions, . . . [which] may impact a tribe’s history of customary law or less formal claims resolution processes”). Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991).

218

Id. at 782.

219

See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987).

220

Montana v. Gilham, 133 F.3d 1133, 1137 (9th Cir. 1998) (“States have retained their historic sovereign immunity from suits by individuals and . . . nothing in the inherent retained powers of tribes abrogates that immunity”). There is no dispute that the United States is immune from nonconsensual suit in tribal court. See United States v. Yakima Tribal Ct., 806 F.2d 853, 860 (9th Cir. 1986); United States v. White Mountain Apache Tribe, 784 F.2d 917, 919 (9th Cir. 1986). 221

MacArthur v. San Juan County, 309 F.3d 1216, 1226 (10th Cir. 2002).

222

MacArthur v. San Juan County, 497 F.3d 1057, 1073 (10th Cir. 2007).

223

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III. STATE ADJUDICATORY JURISDICTION The authority of state courts to adjudicate Indian country–related disputes is generally subject to those standards used to determine state regulatory jurisdiction; i.e., a “particularized inquiry” must be undertaken to determine the nature of the involved state, federal, and tribal interests and whether exercise of such authority would, on balance, interfere more with federal and tribal interests than further state interests. Courts also commonly refer to the infringement standard in Williams v. Lee224—whether the exercise of state jurisdiction will infringe upon the right of tribes to govern themselves and their members—as the test for resolving state adjudicatory jurisdiction questions, but that standard essentially requires the same interest balancing mandated by the later-decided White Mountain Apache Tribe v. Bracker.225 That the interest-balancing factors for determining state adjudicatory and regulatory jurisdiction issues are the same underscores the fundamental notion that such determination embodies at its core a decision as to whether tribal law exclusively governs the underlying controversy. Even the major statutory allocation of civil jurisdiction to the states within Indian country—Public Law 280226—reflects this interrelationship between adjudicatory and regulatory authority insofar as it makes state law the rule of decision. A. Nonstatutory Adjudicatory Jurisdiction The seminal United States Supreme Court decision concerning state civil adjudicatory authority in Indian country is Williams v. Lee,227 where the Court held an Arizona court was without jurisdiction over a suit by a nonmember merchant against two tribal members with respect to a debt incurred on the reservation. Although no federal statute expressly preempted state court jurisdiction, the Court reasoned that exercise of such jurisdiction would infringe “on the right of reservation Indians to make their own laws and be ruled by them.”228 The Williams rationale was used later in Fisher v. District Court229 to find Montana courts without jurisdiction over a pre‑Indian Child Welfare Act230 adoption proceeding in which all parties were tribal members residing on their reservation.

358 U.S. 217 (1959).

224

448 U.S. 136 (1980).

225

Pub. L. No. 83‑280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321– 1325, and 28 U.S.C. § 1360). 226

358 U.S. 217 (1959).

227

Id. at 220; accord Kennerly v. Dist. Ct., 400 U.S. 423 (1971) (per curiam) (no state court authority over lawsuit later filed concerning debt incurred by tribal members on reservation since state had failed to acquire Public Law 280 jurisdiction). 228

424 U.S. 382 (1976) (per curiam).

229

Pub. L. No. 95‑608, 92 Stat. 3069 (1978) (codified at 25 U.S.C. §§ 1901–1963).

230

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The Williams standard, while setting forth the reason the Arizona state court was deemed to lack subject matter jurisdiction, did not suggest an analytical approach for determining whether state jurisdiction impermissibly would interfere with tribal self‑governance. The basic nature of that approach, however, was identified in Washington v. Confederated Tribes of Colville Indian Reservation,231 where the Court rejected an argument that state taxation of cigarette sales to nonmembers at reservation smoke shops infringed upon tribal self‑government rights and reasoned: Washington does not infringe the right of reservation Indians to “make their own laws and be ruled by them,” . . . merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving. The principle of tribal self‑government, grounded in notions of inherent sovereignty and in congressional policies, seeks an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.232

That the Williams standard, even though developed in a civil adjudicatory context, was applied to determine the scope of state civil regulatory authority, is consistent with the notion that, just as tribal court jurisdiction is ordinarily derivative of tribal authority to regulate the underlying dispute, so too is state court jurisdiction generally derivative of the ability to apply state substantive law as the rule of decision.233 It is thus not unexpected, in view of Colville, that decision-making over the scope of state court jurisdiction typically attempts to measure the relative

447 U.S. 134 (1980).

231

Id. at 156; see also Three Affiliated Tribes v. Wold Eng’g, 467 U.S. 138, 148 (1984) (“This Court . . . repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against non‑Indians, even when those claims arose in Indian country. . . . The interests implicated in such cases are very different from those present in Williams v. Lee, where a non‑Indian sued an Indian in state court for debts incurred in Indian country, or in Fisher v. District Court, where this Court held that a tribal court had exclusive jurisdiction over an adoption proceeding in which all parties were tribal Indians residing on a reservation”) (citations and footnote omitted). 232

233 The Williams test continues as a nominal component of determining whether the exercise of state civil regulatory authority is preempted. Typically, however, federal statutory and regulatory law will control such analysis, with tribal self‑government considerations used as a backdrop for determining the preemptive scope of positive federal law. E.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143–44 (1980) (stating that, while tribal self‑government principles in some situations may form an independent barrier to application of state law, federal law–based preemption and tribal self‑government–based preemption are closely related since inherent tribal authority is subordinate to regulatory schemes adopted by Congress, but adding that such regulation’s scope, if vague or ambiguous, must be “construed generously in order to comport with . . . traditional notions of [tribal] sovereignty and with the federal policy of encouraging tribal independence”); cf. Zempel v. Liberty, 143 P.3d 123, 130–34 (Mont. 2006) (applying Montana principles to conclude that the personal injury claim by nonmember plaintiff against tribal member–owned corporation was not subject to exclusive tribal court jurisdiction); contra see generally Katherine J. Florey, Choosing Tribal Law: Why State Choice-of-Law Principles Should Apply to Disputes with Tribal Contacts, 55 Am. U. L. Rev. 1627, 1629 (2006) (challenging treatment of “the issues of which forum should hear a case and which law should be applied to it as if they were a single question—simply assuming, without explicit consideration of the issue, that the forum in which the case is brought will apply its own law”).

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weight of affected state, tribal, and, if relevant, federal interests. The New Mexico Supreme Court in Chino v. Chino,234 for example, identified three factors it believed material under Williams to resolving the question whether a state court had jurisdiction over a forcible entry and detainer action initiated by a nonmember Indian against a member Indian on fee land located within the defendant’s reservation: “(1) whether the parties are Indians or non‑Indians, (2) whether the cause of action arose within the Indian reservation, and (3) what is the nature of the interest to be protected.”235 Although later decisional law has established that nonmember Indians are viewed no differently from non‑Indians with respect to the extent of inherent tribal authority for both civil and criminal regulatory purposes,236 these criteria reflect the need to resolve state adjudicatory jurisdiction issues with respect to the tribal status of the parties, careful delineation of the on- and off‑reservation contacts associated with the involved controversy, and the specific governmental interest militating for and against state court jurisdiction. While these general factors are interrelated, the most important is the tribal status of the defendant. Whenever a tribe or tribal member seeks to assert a reservation‑based claim against a nonmember, exercise of state adjudicatory jurisdiction is permissible.237 Conversely, where the defendant is a noncon-

561 P.2d 476 (N.M. 1977).

234

Id. at 479; accord State ex rel. Vega v. Medina, 549 N.W.2d 507, 510 (Iowa 1996) (applying Chino factors in paternity and support proceeding). The Montana Supreme Court recently adopted a somewhat different standard that bears less of a discernibly direct relationship to Williams. General Constructors, Inc. v. Chewculator, Inc., 21 P.3d 604, 608 (Mont. 2001) (impermissible infringement on a tribe’s “interest in self-government for civil matters arising within a reservation’s boundaries can be implicated in one of two ways: (1) when a state or federal court resolves a dispute that impinges upon the tribe’s right to adjudicate controversies arising within the ‘province of the tribal courts;’ and (2) the dispute itself calls into question the validity or propriety of an act fairly attributable to the tribe as a government body”). 235

E.g., Duro v. Reina, 495 U.S. 676, 685–88 (1990); Colville, 447 U.S. at 160–61.

236

See, e.g., Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877, 888 (1986) (“[t]his Court and many state courts have long recognized that Indians share [an] interest in access to the courts, and that tribal autonomy and self‑government are not impeded when a State allows an Indian to enter its court to seek relief against a non‑Indian concerning a claim arising in Indian county”); Three Affiliated Tribes v. Wold Eng’g, 467 U.S. 138, 148–49 (1984) (“[a]s a general matter, tribal self‑government is not impeded when a State allows an Indian to enter its courts on equal terms with other persons to seek relief against a non‑Indian concerning a claim arising in Indian country”); State v. Zaman, 984 P.2d 528 (Ariz. 1999) (state court had authority to effect service on non-Indian within Indian reservation); Golden Hill Paugussett Tribe v. Town of Southbury, 651 A.2d 1246 (Conn. 1995) (state court did not abridge tribe’s right to self-government by determining whether plaintiff purporting to represent tribe was authorized to do so); Lambert v. Ryozik, 886 P.2d 378 (Mont. 1994) (tribal member had right of access to state courts for purpose of suing nonmember with respect to reservation motor vehicle accident); Wacondo v. Concha, 873 P.2d 276 (N.M. Ct. App. 1994) (state court has concurrent jurisdiction over torts committed within boundaries of pueblo by member of another pueblo); but see Unalachtigo Band of Nanticoke–Lenni Lenape Nation v. State, 867 A.2d 1222, 1229 (N.J. Super. Ct. App. Div. 2005) (declining to exercise jurisdiction over claim under the Nonintercourse Act because “Congress expressly intended to preserve exclusive federal jurisdiction over claims to Indian land, which is subject to restriction against alienation”); cf. Jicarilla Apache Tribe v. Board of County Comm’rs, 883 P.2d 136 (N.M. 1994) (state courts had jurisdiction to adjudicate claim brought by tribe to enjoin county from blading road across tribally owned, off-reservation land notwithstanding tribe’s determination to challenge jurisdiction on appeal after losing on the merits before trial court); see generally Robert Laurence, Symmetry 237

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senting tribal member, state court jurisdiction is dependent upon whether tribal law exclusively governs the parties’ rights and responsibilities.238 That determination, as indicated by Chino, is made with reference to factors such as the extent of off‑reservation contacts affecting the dispute239 and whether there are compelling state concerns at stake, such as paternity and child support.240 Regardless of the standard nominally applied, however, state courts

and Asymmetry in Federal Indian Law, 42 Ariz. L. Rev. 861, 914–15 (2000) (arguing that, while the Supreme Court correctly held in Three Affiliated Tribes that the tribes should have access to state court as a plaintiff, the latter court lacked subject matter jurisdiction over any counterclaim against the tribe; “[t]he WilliamsWold asymmetry is acceptable because its ultimate aim is to guard that part of a tribe’s sovereignty that is represented by its judicial system”). 238 Tribes or their members, of course, can consent to state court jurisdiction. See Tempest Recovery Servs., Inc. v. Belone, 74 P.3d 67, 72 (N.M. 2003) (state court had jurisdiction over tribal member’s counterclaim under tribal law seeking relief against motor vehicle repossession; “an Indian generally has the right to invoke the jurisdiction of a state court to protect his or her rights against a non-Indian defendant, even if the controversy arose in Indian country”); cf. Doe ex rel. J.H. v. Santa Clara Pueblo, 154 P.3d 644, 651 (N.M. 2007) (tribe possessed authority under the Indian Gaming Regulatory Act to enter into a gaming compact with a state consenting to state court jurisdiction over personal injury claims arising from casino operations); Granite Valley Hotel v. Jackpot Junction Bingo & Casino, 559 N.W.2d 135 (Minn. Ct. App. 1997) (exercising jurisdiction over contract action against tribal gaming business, where tribe waived sovereign immunity and consented to suit in state court). 239 E.g., J & M Aircraft Mobile T Hangers, Inc. v. Johnston County Airport Auth., 605 S.E.2d 611, 613–14 (Ga. Ct. App. 2004) (state court jurisdiction existed over claim against “nonreservation Indians” and arising outside “Cherokee Indian country”); Tempest Recovery Servs., Inc. v. Belone, 74 P.3d 67, 71–72 (N.M. 2003) (exercise of state court jurisdiction over contract claim with tribal member, who resided in Indian country, related to motor vehicle purchase did not infringe impermissibly on tribal self-governance where contract formed outside Indian country); In re Estate of Osceola, 744 So. 2d 1251 (Fla. Dist. Ct. App. 1999) (state court possessed jurisdiction over probate proceeding where deceased’s property was situated outside Indian country); Maxa v. Yakima Petroleum, Inc., 924 P.2d 372, 374–75 (Wash. Ct. App. 1996) (exercising jurisdiction over dispute not clearly arising on or off reservation); Aircraft Equip. Co. v. Kiowa Tribe, 921 P.2d 359 (Okla. 1996) (claim for breach of contract executed outside Indian country); First Nat’l Bank v. Kiowa, Comanche and Apache Intertribal Land Use Comm., 913 P.2d 299 (Okla. 1996) (same); Hoover v. Kiowa Tribe, 909 P.2d 59 (Okla. 1995) (same); Landreman v. Martin, 530 N.W.2d 62, 65 (Wis. Ct. App. 1995) (state service of process within the reservation on tribal member defendant was valid where tribal law did not regulate such service, particularly in view of state’s “compelling interest in maintaining personal jurisdiction over a [tribal member] who has violated a law off the reservation, then returns to tribal lands”); Begay v. Roberts, 807 P.2d 1111 (Ariz. Ct. App. 1990) (state court had jurisdiction over claim against reservation‑domiciled member for off‑reservation debt and authority to effect on‑reservation service of process but lacked jurisdiction to enforce ensuing judgment through garnishment of wages earned on reservation); Foundation Reserve Ins. Co. v. Garcia, 734 P.2d 754 (N.M. 1987) (state court possessed jurisdiction over declaratory judgment action to determine rights under insurance contract initiated by carrier with respect to an on‑reservation accident since the contract was entered into off reservation); Estate of Standing Bear v. Belcourt, 631 P.2d 285 (Mont. 1981) (state court had probate jurisdiction and authority to enjoin distribution of proceeds from sale of decedent’s chattel located off reservation at the time of his death but subsequently removed to the reservation); Crawford v. Roy, 577 P.2d 392 (Mont. 1978) (where services performed both on and off reservation for tribal member defendant, state jurisdiction existed over claim for the value of those services); State Sec., Inc. v. Anderson, 506 P.2d 786 (N.M. 1973) (state court had jurisdiction to entertain claim against tribal members arising from contracts entered into off reservation); see generally Katosha Belvin Nakai, Comment, Red Rover, Red Rover: A Call for Comity in Linking Tribal and State Long-Arm Provisions for Service of Process In Indian Country, 35 Ariz. St. L.J. 633 (2003) (discussing potential service-of-process issues where defendant located within Indian country). 240 Substantial division exists among state courts over state court authority to determine the paternity and child support obligations of tribal members. Compare Rolette County Soc. Serv. Bd. v. B.E., 697 N.W.2d 333, 337 (N.D. 2005) (state court properly exercised concurrent jurisdiction over proceeding to secure child support and medical insurance from noncustodial parent who was a tribal member residing off reservation

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have been reluctant to exercise jurisdiction over a tribal member defendant where the dispute has arisen on the reservation.241 These latter decisions reflect

at the time the litigation began and who conceded that she was the biological mother of the children); Roe v. Doe, 649 N.W.2d 566 (N.D. 2002) (state court properly exercised jurisdiction over paternity and child support action between members of different tribes whose relationship occurred outside either of tribes’ reservations and where the place of child’s conception was unknown); State ex rel. Jealous of Him v. Mills, 627 N.W.2d 790 (S.D. 2001) (state court possessed jurisdiction over member to collect AFDC benefits where defendant father was domiciled off reservation); Anderson v. Beaulieu, 555 N.W.2d 537, 541 (Minn. Ct. App. 1996) (exercising jurisdiction over tribal member residing on reservation for purpose of adjudicating paternity and enforcing child support obligation where mother and child, though members, resided off reservation, mother applied for AFDC benefits off reservation, and “the tribe’s interest is outweighed by the state interest in securing child support payments as required by the AFDC program”); State ex rel. Vega v. Medina, 549 N.W.2d 507, 510 (Iowa 1996) (exercising jurisdiction over action to establish paternity, support, and aid to dependent children obligation of tribal member residing on reservation with respect to child conceived off reservation); and State ex rel. Dep’t of Human Servs. v. Jojola, 660 P.2d 590, 593 (N.M. 1983) (state court could assume jurisdiction over paternity and aid for dependent children support action against putative tribal member father residing on reservation in view of the strong state interest in “the uniform enforcement of paternity determination and child support obligations within this State”), with McKenzie County Soc. Servs. Bd. v. C.G., 633 N.W.2d 157, 161 (N.D. 2001) (declining to exercise jurisdiction over paternity and child support proceeding; “the determination of the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them”); State ex rel. Dep’t of Human Servs. v. Whitebreast, 409 N.W.2d 460, 463 (Iowa 1987) (refusing to find state court jurisdiction over claim by state agency to recover aid to dependent children payments from putative tribal member father); and Jackson County ex. rel. Smoker v. Smoker, 459 S.E.2d 789 (N.C. 1995) (same); cf. First v. Montana Dep’t. of Soc. and Rehab. Servs., 808 P.2d 467, 471 (Mont. 1991) (state permitted to utilize its income-withholding procedure against off‑reservation income payable to tribal member residing on reservation in enforcing court order for child support obligation, where federal law mandated “participating states to enact and enforce income withholding proceedings to collect outstanding child support owed by parents absent from the jurisdiction wherein the child support obligation is owed”); Utah Dep’t of Soc. Servs. v. Vijil, 784 P.2d 1130 (Utah 1989) (setting aside writ of garnishment issued against tribal member for support payments made by state agency where record was insufficient to show absence or presence of subject matter jurisdiction). 241 Domestic relations: E.g., Langdeau v. Langdeau, 751 N.W.2d 722 (S.D. 2008) (state court properly declined to exercise jurisdiction over spousal child custody dispute given tribe’s status as a “state” under South Dakota’s formulation of the Uniform Child Custody Jurisdiction Enforcement Act, but erred in not exercising jurisdiction over divorce action filed by nonmember spouse residing off reservation when no tribal court divorce action was pending); Swalef v. Anderson, 646 S.E.2d 458 (Va. Ct. App. 2007) (state trial court properly declined to exercise jurisdiction over spousal child custody dispute concurrently pending in a Minnesota tribal court given fact that the mother and children were living on reservation there, that most of the relevant witnesses and information were located there, and that only the tribal court had an outstanding custody order); Baker v. John, 982 P.2d 738, 759–61 (Alaska 1999) (state court has concurrent jurisdiction over custody dispute between members of different Native villages that do not occupy Indian country); In re Marriage of Skillen, 956 P.2d 1 (Mont. 1998) (tribal courts have exclusive jurisdiction over child custody disputes between parents where child resides on reservation); In re Marriage of Wellman, 852 P.2d 559 (Mont. 1993) (while the state district court had jurisdiction to enter a decree of dissolution brought by a tribal member against a nonmember, it did not have jurisdiction to adjudicate the disposition of Indian trust land as part of the marital dissolution action); Harris v. Young, 473 N.W.2d 141, 145 (S.D. 1991) (concluding that jurisdiction concurrent with tribal court existed to modify a child custody decree entered in another state where the involved child, who was not shown as eligible for tribal membership, resided on reservation with her member mother and where the petitioning nonmember father was domiciled off reservation); Byzewski v. Byzewski, 429 N.W.2d 394 (N.D. 1988) (assuming jurisdiction over marriage res for purposes of granting divorce but refusing to exercise jurisdiction for purposes of child custody or support determinations); State ex rel. Flammond v. Flammond, 621 P.2d 471 (Mont. 1980) (refusing to exercise jurisdiction over Uniform Reciprocal Enforcement of Support Act proceeding initiated by nonmember spouse residing out of state against member spouse residing on reservation); Malaterre v. Malaterre, 293 N.W.2d 139 (N.D. 1980) (refusing to entertain petition to modify state court–granted child custody decree where custodial spouse and children had established residence on reservation); Natewa v. Natewa, 499 P.2d 691, 693 (N.M. 1972) (exercising jurisdiction over Uniform Reciprocal Enforcement of Support Act proceeding against tribal member spouse residing on reservation where “[t]he totality of the marriage relationship shows

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significant contacts with jurisdictions other than the . . . Reservation”); cf. Weston v. Jones, 603 N.W.2d 706 (S.D. 1999) (refusing to set aside divorce decree between tribal members for lack of jurisdiction in collateral proceedings on estoppel grounds, where parties had relied on decree and where its invalidation would upset expectations formed on such reliance); see generally Barbara Ann Atwood, Fighting Over Indian Children: The Use and Abuses of Jurisdictional Ambiguity, 36 UCLA L. Rev. 1051 (1989) (discussing jurisdictional conflicts between state and tribal courts over interspousal child custody disputes). Contracts: E.g., Rodriguez v. Wong, 82 P.3d 263, 267 (Wash. Ct. App. 2004) (tribe possessed inherent authority to adopt employee manual that prescribed procedure for employment-related disputes, and state court lacked concurrent jurisdiction over such disputes because “the State’s assertion of jurisdiction would impose state regulations on the tribe whenever nonmembers become employees of the tribe[] and would undermine the right of the tribe to govern reservation affairs”); Balyeat Law, P.C. v. Pettit, 967 P.2d 398, 407–09 (Mont. 1998) (state court lacked jurisdiction under state statute making spouse responsible for “necessaries of the family” debts of other spouse where defendant spouse was tribal member and debt arose from an on-reservation transaction); Lewis v. Sac and Fox Nation, 896 P.2d 503, 507–09 (Okla. 1994) (concurrent jurisdiction exercised over contract and accounting claim brought by tribal members against tribal housing authority established pursuant to state law); Robles v. Shoshone-Bannock Tribes, 876 P.2d 134 (Idaho 1994) (no state court jurisdiction over action for back wages against tribal corporation unless, pursuant to Idaho law, the tribe has consented to such jurisdiction); Liberty v. Jones, 782 P.2d 369 (Mont. 1989) (no state court jurisdiction over contract disputes between tribal members residing on reservation); Geiger v. Pierce, 758 P.2d 279 (Mont. 1988) (no state court jurisdiction over action to recover debt incurred by tribal member on reservation). Torts: E.g., Diepenbrock v. Merkel, 97 P.3d 1063, 1067, 1068 (Kan. Ct. App. 2004) (no state court jurisdiction existed over wrongful death action brought by casino patron’s survivors where, inter alia, tribal law-andorder-code “provides the tribe with authority over all land within the boundaries of the reservation” and the relevant gaming compact “has given the tribal court jurisdiction over tort claims arising from alleged injuries to patrons of the Tribe’s gaming facilities”); Winer v. Penny Enters., Inc., 674 N.W.2d 9, 15 (N.D. 2004) (no state court jurisdiction over personal injury claim brought by nonmember against tribal member with respect to on-reservation accident; rejecting nonmember’s reliance on Strate v. A-1 Contractors because, inter alia, “[t]he interests implicated when a non-Indian is sued are ‘very different from those present’ when a non-Indian sues an Indian in state court over incident occurring in Indian country”); Ellis v. Allied Snow Plowing, Removal & Sanding Servs. Corp., 838 A.2d 237, 240 (Conn. Ct. App. 2004) (state court jurisdiction existed over negligence claim against independent contractor retained by tribe; rejecting contention that prior Connecticut precedent “stands for the proposition that a properly authorized tribal court with broad tribal authority unfailingly ousts the [state court] of jurisdiction to hear any case that is in any way related to tribal activities”); Risse v. Meeks, 585 N.W.2d 875, 877–78 (S.D. 1998) (state court lacked jurisdiction over punitive damages claim against tribal members where conduct giving rise to claim occurred in Indian country); Snooks v. Ninth Jud. Dist. Ct., 919 P.2d 1064, 1066–67 (Nev. 1996) (no state court jurisdiction over personal injury claim against tribal member related to on-reservation accident); Milbank Mut. Ins. Co. v. Eagleman, 705 P.2d 1117 (Mont. 1985) (no state court jurisdiction over subrogation claim by insurer against tribal member arising from on‑reservation accident); State ex rel. Peterson v. Dist. Ct., 617 P.2d 1056 (Wyo. 1980) (no state jurisdiction over action between tribal members arising from on-reservation accident); Enriquez v. Superior Ct., 565 P.2d 522 (Ariz. Ct. App. 1977) (no state court jurisdiction over claim against tribal members arising from on‑reservation accident); Schantz v. White Lightning, 231 N.W.2d 812, 814–15 (N.D. 1975) (no state court jurisdiction over reservation accident where defendant was tribal member; “if an action to recover money for goods sold on credit would interfere and infringe on the right of the Indians to govern themselves, certainly an action to collect money for an injury sustained as a result of an accident would likewise infringe on the rights of Indians to govern themselves”). Miscellaneous: Housing Auth. of Kiowa Tribe v. Ware, 10 P.3d 226 (Okla. 2000) (although determination of issue turned on construction of tribal constitution, state court possessed jurisdiction to decide which group of competing tribal members were rightful commissioners of a state law–authorized housing authority); Anderson v. Engelke, 954 P.2d 1106 (Mont. 1998) (provisions of Uniform Money-Judgments Recognition Act could not be used by state court to enforce tribal court judgment against tribal member as to assets within reservation); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 929 P.2d 379 (Wash. 1996) (state court had in rem jurisdiction over action to partition fee property notwithstanding fact that individual allottees conveyed interest to tribe); Walker v. Reynolds, 912 P.2d 899 (Okla. Civ. App. 1996) (state court had jurisdiction to determine heirship but not tribal membership status); Sage v. Sicangu Oyate Ho, Inc., 473 N.W.2d 480 (S.D. 1991) (holding that state courts lacked jurisdiction over claim by a principal that a tribal school district violated state law in connection with his termination because application of such law was preempted); In re Guardianship of Flyinghorse, 456 N.W.2d 567 (S.D. 1990) (no state court jurisdiction over

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the principle that state law will not be applied to the on‑reservation activities of tribal members absent a demonstration of very significant state interests in such regulation.242 Even when subject matter jurisdiction is present, care must be taken to ensure that state court standards governing service of process within Indian country are observed.243 Finally, Iowa Mutual–like deferral issues244 can arise even when state court jurisdiction exists if tribal court proceedings have been initiated previously. Most decisions in such instances favor deferral on comity grounds.245 The Connecticut Supreme Court, however, concluded that deferral is required by federal common law principles.246 It reasoned that, while “[t]he [United States] Supreme Court cases do not conclusively indicate that the exhaustion rule is substantive federal law, which is binding in state courts pursuant to the supremacy clause of the federal constitution, . . . there are strong suggestions that the rule is substantive in nature.”247 The Connecticut court ruled alterna-

guardianship application filed by Veterans Administration with respect to elderly tribal member residing on reservation); Powell v. Farris, 620 P.2d 525 (Wash. 1980) (assuming jurisdiction to dissolve partnership and for accounting with respect to on‑reservation business); Chino v. Chino, 561 P.2d 476 (N.M. 1977) (no state court jurisdiction over forcible entry and detainer action brought against tribal member with respect to on‑reservation dwelling); cf. In re Estate of Hobbs, 46 P.3d 594, 598 (Mont. 2002) (concluding that state statute, which disclaimed intent to confer jurisdiction to adjudicate ownership of real property of tribe or Indian, and 28 U.S.C. § 1362 precluded district court from exercising probate jurisdiction over estate of nonmember that purported to include portion of lake held in trust for tribe by United States); see generally Robert Laurence, The Off-Reservation Garnishment of an On-Reservation Debt and Related Issues in the CrossBoundary Enforcement of Money Judgments, 22 Am. Indian L. Rev. 355, 367 (1998) (contending that income earned on reservation but deposited off reservation in bank account of tribal member residing on reservation should not be subject to state court garnishment proceedings but that income earned off reservation and deposited off reservation in the account may be garnished). See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 (1987).

242

See Bradley v. Deloria, 587 N.W.2d 591, 594 (S.D. 1998) (per curiam) (requiring compliance with outof-state service of process rule when tribal member served on reservation). 243

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987); see generally supra part I.B.1.

244

See Meyer & Assocs., Inc. v. Coushatta Tribe, 965 So. 2d 930, 935, 936 (La. Ct. App. 2007) (exhaustion “doctrine is applied as a matter of comity” whose application is “favor[ed]” when, inter alia, “suit is pending in tribal cout and suit is then filed in state court[;]” deferral was proper in contract dispute to allow tribal court to determine whether waiver of sovereign immunity existed); Nielsen v. Brocksmith Land & Livestock, Inc., 88 P.3d 1269, 1273 (Mont. 2004) (deferral on comity grounds appropriate where state court claims “were all based upon or arose out of the same sales agreements that were the subject matter of the litigation pending in the [tribal court]” and where the tribal court had “explicitly asserted jurisdiction over th[e] action”); Matsch v. Prairie Island Cmty., 567 N.W.2d 276 (Minn. Ct. App. 1997) (refusing to exercise jurisdiction over employment claim already subject to tribal court proceeding); Agri W. v. Koyama Farms, Inc., 933 P.2d 808 (Mont. 1997) (deferring to tribal court under state law comity principles where litigation over contract dispute between nonmembers had been initiated first); but see Astorga v. Wing, 118 P.3d 1103, 1108 (Ariz. Ct. App. 2005) (superior court did not abuse its discretion in declining to dismiss proceeding in light of parallel tribal court case; “[p]olicy considerations that prevent a court from dismissing a case when a similar case is pending in the court of a different sovereign include the possibility of: 1) unforeseen procedural problems in the other forum; 2) unreasonable delays in the other forum; 3) changes in the law; and 4) the need to provide interim relief, such as a temporary restraining order or a preliminary injunction”). 245

Drumm v. Brown, 716 A.2d 50 (Conn. 1998).

246

Id. at 62–63; see also Bowen v. Doyle, 880 F. Supp. 99, 125 (W.D.N.Y. 1995) (holding that state court “was required to follow the rule of abstention in favor of tribal court jurisdiction” where the issue involved only a question of tribal law); In re Absher Children, 750 N.E.2d 188, 193–94 (Ohio Ct. App. 2001) (exercise 247

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tively that, even in the absence of a federal law requirement in this respect, “deference to th[e] same policy counsels that we also adopt the doctrine for the courts of this jurisdiction.”248 The court’s reasoning can be questioned, since nothing in Iowa Mutual suggests that the deferral rule is other than prudential and binding only on the federal courts’ exercise of jurisdiction.249 The practical effect of the court’s federal law–based holding nevertheless was mitigated not only by the alternative state law basis for the decision but also by the court’s recognition that the deferral is proper only when the exercise of state court jurisdiction would interfere with an ongoing tribal court proceeding.250 B. Public Law 280 Jurisdiction In 1953, Congress enacted Public Law 280,251 which transferred criminal jurisdiction and certain civil jurisdiction over Indian country in five states and the territory of Alaska but authorized other states to assume such jurisdiction at their option.252 With respect to transfer of civil jurisdiction,253 section 4 of the statute254 states in part that the mandatory transfer applied to “civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country [in each designated] State to the same extent that such State has jurisdiction over other civil causes of action,” and further that “those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State[.]”255 Section 4 disclaims intent to

of state court jurisdiction over child custody proceeding between unmarried parents involving children residing off reservation with mother would impermissibly infringe upon tribal self-governance when reservation-domiciled father initiated prior custody proceeding in tribal court); contra Seneca v. Seneca, 741 N.Y.S. 2d 375, 379 (App. Div. 2002); Lemke v. Brooks, 614 N.W.2d 242, 245–46 (Minn. Ct. App. 2000); Gavle v. Little Six, Inc., 555 N.W.2d 284, 291–92 (Minn. 1996); cf. Bear v. Patton, 451 F.3d 639 (10th Cir. 2006) (remanding for district court to determine whether final judgment existed for Rooker-Feldman doctrine purposes in action filed by tribal member to enjoin state court from assuming jurisdiction over partnership dissolution and property partition dispute). Drumm, 716 A.2d at 63.

248

See generally John J. Harte, Validity of a State Court’s Exercise of Concurrent Jurisdiction Over Civil Actions Arising in Indian Country: Application of the Indian Abstention Doctrine in State Court, 21 Am. Indian L. Rev. 63 (1997) (concluding that mandatory state court deferral is not required because state courts cannot review directly tribal court determinations concerning adjudicatory jurisdiction). 249

716 A.2d at 65.

250

Pub. L. No. 83‑280, 67 Stat. 588 (1958) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321– 1325, and 28 U.S.C. § 1360). 251

252 In two of the five mandatory states, Minnesota and Oregon, one reservation was excepted from the jurisdictional transfer. Id. § 4, 67 Stat. 589 (codified as amended at 28 U.S.C. § 1360(a)). 253 The operation of Public Law 280 with respect to criminal jurisdiction is discussed in Chapter 4, part I.C.1.

28 U.S.C. § 1360.

254

Id. § 1360(a). Section 7 of Public Law 280 gave nonmandatory, or optional, states the authority to assume the same extent of civil jurisdiction. 67 Stat. 590 (codified as amended at 25 U.S.C. § 1322(a)). 255

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authorize application of state laws in specified contexts256 and requires “[a]ny tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess . . . , if not inconsistent with any applicable civil law of the State, [to] be given full force and effect in the determination of civil causes of action pursuant to this section.”257 Aside from this direction for state courts to apply tribal law in certain instances is the question whether the statute was intended to restrict inherent tribal adjudicatory authority. The issue has received little decisional treatment in the civil context, but that authority indicates no such restriction was effected.258 Lastly, Public Law 280 as initially enacted did not require tribal consent to the assumption of jurisdiction by nonmandatory states, but a consent requirement for any future jurisdiction assumptions—as well as a procedure for states to retrocede jurisdiction—was added in 1968.259 The Supreme Court held in Bryan v. Itasca County260 that Public Law 280 was not intended to grant states broad civil regulatory authority over Indian

The relevant portion of § 4, codified in 28 U.S.C. § 1360(b), reads:

256

Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. See Foster v. State Dep’t of Transp., 34 P.3d 1288, 1291 (Alaska 2001) (state court lacked jurisdiction under Public Law 280 to determine Alaska Native’s trespass claim against state agency, since “the superior court would have to resolve competing interests to Native allotment land”). A similar restriction applies with respect to the assumption of civil jurisdiction by nonmandatory states. 25 U.S.C. § 1322(b); see Unalachtigo Band of Nanticoke–Lenni Lenape Nation v. State, 867 A.2d 1222, 1228–29 (N.J. Super. Ct. App. Div. 2005) (relying on 25 U.S.C. §§ 1221 and 1222 and 28 U.S.C. § 1360 for conclusion that federal courts possess exclusive jurisdiction over claims to Indian lands alleged subject to restriction against alienation); cf. Doe ex rel. J.H. v. Santa Clara Pueblo, 154 P.3d 644, 656 (N.M. 2007) (construing 25 U.S.C. § 2710(d)(3)(C)(ii) in the Indian Gaming Regulatory Act, which identifies “the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations” as a permissible element of a tribal-state compact, to authorize inclusion of a provision allocating to state courts concurrent jurisdiction over personal injury suits related to casino operations). 257 Id. § 1360(c). An identical requirement exists with respect to the assumption of civil jurisdiction by nonmandatory states. Id. § 1322(c); Zander v. Zander, 720 N.W.2d 360, 369–70 (Minn. Ct. App. 2006) (declining to give effect to tribal domestic code that provided gaming per-capita payments constituted nonmarital property belonging to member, since the provision was inconsistent with state law); In re Marriage of Jacobsen, 18 Cal. Rptr. 3d 162, 166 (Ct. App. 2004) (declining to give effect to tribal resolution providing that gaming revenue distributions should not be awarded to nonmember spouses for support purposes where member spouse initiated dissolution proceedings and where resolution was “at odds with the strong [California] public policy . . . requiring spouses to support each other”). 258 See TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 684–85 (5th Cir. 1999) (concluding that Ysleta Restoration Act, which provides in part that Texas exercises authority over the Ysleta Indian Reservation as if such jurisdiction had been assumed under Public Law 280, did not deprive tribal court of concurrent jurisdiction, since “state court jurisdiction under Public Law 280 is [not] exclusive of tribal jurisdiction”). 259 Pub. L. No. 90‑284, §§ 402, 404–05, 82 Stat. 73, 79–80 (1968) (codified at 25 U.S.C. §§ 1322, 1325–1326).

426 U.S. 373 (1976).

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country. It specifically held the statute did not remove the traditional immunity from state taxation of tribal members with respect to reservation‑based property, reasoning in the face of “sparse legislative history” that “§ 4 subsection (a) seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes[.]”261 Thus, as to such private disputes, Public Law 280 provides not only for a state court forum but also for application of state substantive law unless tribal law could be applied consistently with state law. The distinction between state civil laws that may supply a rule of decision and state regulatory laws that cannot be enforced by virtue of Public Law 280 civil jurisdiction is hardly clear and has caused difficulty in application.262 Bryan

261 Id. at 383, 385 (the language of § 1360(a) “and its legislative history virtually compels our conclusion that the primary intent of § 4 was to grant jurisdiction over private civil litigation involving reservation Indians in state court”); see Cohen v. Little Six, Inc., 543 N.W.2d 376, 380–81 (Minn. Ct. App. 1996) (Public Law 280 does not effect waiver of tribal immunity from suit), aff’d, 561 N.W.2d 889 (Minn. 1997); Meier v. Sac and Fox Tribe, 476 N.W.2d 61, 63 (Iowa 1991) (rejecting contention that Public Law 280 abrogated tribal immunity from suit since “the language of Public Law 280 and section 1.12 [of the Iowa Code] clearly confers narrow civil jurisdiction over individual Native Americans, and not the Tribe per se”). 262 Compare Becker County Welfare Dep’t v. Bellcourt, 453 N.W.2d 543, 544 (Minn. Ct. App. 1990) (rejecting defendant’s claim that state agency could not bring action to determine paternity and stating that, “[w]hile chapter 256 of Minnesota Statutes regarding AFDC does contain some regulatory aspects, in a paternity action, the county is only acting on behalf of a private party who has assigned her rights to establish paternity and recover child support”), with State ex rel. Dep’t of Human Servs. v. Whitebreast, 409 N.W.2d 460, 463 (Iowa 1987) (concluding that Public Law 280 jurisdiction did not authorize action by state agency to recover aid to dependent family payments since “the public character of the Child Support Recovery Unit . . . seems to us unescapable”); see also Lamere v. Superior Ct., 31 Cal. Rptr. 3d 880, 883, 885 (Ct. App. 2005) (Public Law 280 did not authorize state court jurisdiction over tribal membership dispute since “[i]t is very clear that Public Law 280 does not provide jurisdiction over disputes involving a tribe[;]” also reasoning that “[t]he jurisdiction to state courts granted under Public Law 280 can hardly be construed to go further than that conferred upon the Courts of Indian Offenses,” which lack adjudicatory authority over internal tribal government controversies); In re Commitment of Burgess, 665 N.W.2d 124, 132 (Wis. 2003) (concluding that civil commitment statute directed to sexually violent persons properly characterized as criminal-prohibitory; “[t]he ‘civil’ proceedings under [the commitment statute] are enveloped on both sides by criminal conduct”); United States v. Humboldt County, 615 F.2d 1260 (9th Cir. 1980) (Public Law 280 did not authorize application of county zoning and building codes against Indian construction projects on tribal trust lands); Landauer v. Landauer, 975 P.2d 577, 582 (Wash. Ct. App. 1999) (although state court possessed no jurisdiction under Public Law 280 to direct transfer of trust property in a marriage dissolution proceeding, court could “consider the existence and value of trust property in making its distribution of the marital estate”); In re Marriage of Purnel, 60 Cal. Rptr. 2d 667 (Ct. App. 1997) (state court possessed jurisdiction in dissolution action to order spouse to pay child support and attorneys’ fees, and rejecting claim that order constituted tax on trust income); State v. Lemieux, 317 N.W.2d 166, 169 (Wis. Ct. App. 1982) (Public Law 280 grant of civil jurisdiction insufficient to allow enforcement of statutory prohibition against possession of uncased or loaded firearms in vehicles against on‑reservation activity of tribal members); Houlton Band of Maliseet Indians v. Boyce, 688 A.2d 908, 910–11 (Maine 1997) (asserting jurisdiction over claim seeking relief with respect to intratribal dispute on the basis of the Settlement Act); see generally Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation Indians, 22 UCLA L. Rev. 535, 576–80 (1976) (discussing the difficulty in determining the precise scope of state substantive civil law authorized to be applied under Public Law 280).

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suggests, however, that “ ‘laws of contract, tort, marriage, divorce, insanity, descent, etc.’ ” may supply the governing substantive rule of decision.263 In the most detailed lower court discussion of Public Law 280 civil jurisdiction, the Ninth Circuit Court of Appeals held in Doe v. Mann264 that stateinitiated proceedings under California’s child dependency statute fell within the ambit of state adjudicatory jurisdiction conferred under the federal law. The analytical path to this conclusion was simplified, to some extent, by the fact that the case constituted a “child custody proceeding” subject to the Indian Child Welfare Act,265 which itself supplies textual support for the proposition that such proceedings are subject to Public Law 280.266 Nonetheless, the court’s reasoning began with a more general assessment of the latter law’s substantive scope. The panel pointed first to “the plain language of Public Law 280’s civil jurisdictional provision”—i.e., the statute’s reference to “those civil laws . . . that are of general application to private persons or private property”—and its view that the common “theme” in the Supreme Court’s Public Law 280 decisions addressing the statute’s civil jurisdiction component was “the private nature of the disputes.”267 It deemed the controversy before it sufficiently “private” because “[a]t the heart of the dependency proceedings is a dispute about the

263 426 U.S. at 384 n.10 (quoting from Daniel H. Israel and Thomas L. Smithson, Indian Taxation, Tribal Sovereignty and Economic Development, 49 N.D. L. Rev. 267, 296 (1973)); see Johnson v. Wright, 682 N.W.2d 671, 680 (Minn. Ct. App. 2004) (Public Law 280 jurisdiction existed over commercial contract dispute involving tribal member and nonmember); In re Commitment of Burgess, 665 N.W.2d 124, 132–33 (Wis. 2003) (state statute providing for civil commitment of certain sexual offenders falls within § 1360’s authorization); Smith v. Babbitt, 96 F. Supp. 2d 907, 918 (D. Minn. 2000) (Public Law 280 precluded application of tribal custom with respect to establishing marital status where state “had expressly abolished and held void any marriage entered into without a solemnized contract and a valid marriage license”); Lemke v. Brooks, 614 N.W.2d 242, 246 (Minn. Ct. App. 2000) (“the [state] wrongful death statute . . . is not a regulatory law, but a civil law of general application to private persons, which has the same effect and application on the reservation as elsewhere”); Sheppard v. Sheppard, 655 P.2d 895, 907 (Idaho 1982) (“Bryan draws a clear distinction between state regulatory and taxing activity, which is not authorized by Public Law 280, and state jurisdiction over private civil actions for divorce, which is authorized by that law”); cf. Bowen v. Doyle, 880 F. Supp. 99, 119–23 (W.D.N.Y. 1995) (comparably worded 25 U.S.C. § 233 did not vest New York state courts with jurisdiction over claim alleging violation of tribal constitution); see generally Nancy Thorington, Civil and Criminal Jurisdiction Over Matters Arising in Indian Country: A Roadmap for Improving Interaction Among Tribal, State and Federal Governments, 31 McGeorge L. Rev. 973, 1025–27 (2000) (discussing various analytical difficulties posed by the text of 25 U.S.C. § 1360).

415 F.3d 1038 (9th Cir. 2005).

264

25 U.S.C. §§ 1901–1963.

265

Id. § 1918. Aside from its “abstract analysis of Public Law 280,” the court of appeals relied on two references in the Indian Child Welfare Act itself, “both of which indicate that Congress intended Public Law 280 states to have jurisdiction over dependency proceedings in Indian country.” 415 F.3d at 1061. It found the first of those references in 25 U.S.C. § 1911(a), a core jurisdictional provision in the statute containing a “federal law” exclusion, and, perhaps more important, in § 1918(a) insofar as it provides a procedure for tribes “which became subject to State jurisdiction” under Public Law 280 to “reassume jurisdiction” over such proceedings. “Through use of the term ‘reassume,’ ” the court observed, “Congress manifested its awareness that Public Law 280 states would continue to exercise jurisdiction over child custody proceedings, both voluntary and involuntary.” 415 F.3d at 1061. It added that “[s]ection 1918(a) would make little sense unless § 1911(a) permits Public Law 280 states to exercise jurisdiction over child custody proceedings.” 415 F.3d at 1062. 266

Id. at 1058–59.

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status of the child, a private individual,” and because “the simple fact that the state steps in as a party does not transform what is an adjudicatory proceeding involving private parties into a regulatory proceeding.”268 The court drew support as to the latter point from the reference in Bryan to insanity proceedings269 as representative of a matter subject to civil Public Law 280 jurisdiction and from In re Burgess,270 where the Wisconsin Supreme Court alternatively held the state sexual-offender civil involuntary commitment statute to be encompassed under 28 U.S.C. § 1360. The three situations—determining an individual’s mental competency, the civil commitment of a sexual offender, and the adjudication of a child’s dependency—all shared the common characteristic of being focused on the status of a private party, which the Ninth Circuit believed to be “compelling evidence that [the California proceeding] is adjudicatory, not regulatory.”271 Aside from questions over the substantive scope of civil jurisdiction that has been mandatorily imposed or may be assumed voluntarily under Public Law 280, various procedural issues have arisen. In Washington v. Confederated Bands & Tribes of Yakima Indian Nation,272 the Court rejected a tribe’s challenge to the assumption of partial jurisdiction by a nonmandatory state.273 The Court first held section 6 of the law did not require disclaimer states to amend their

Id. at 1059.

268

426 U.S. at 384 n.10.

269

665 N.W.2d 124 (Wis. 2003). Subsequent to Mann, the Seventh Circuit denied a habeas corpus petition by the involuntarily committed tribal member. Burgess v. Watters, 467 F.3d 676 (7th Cir. 2006). There, a majority of the panel rejected the Wisconsin court’s reliance on the state’s Public Law 280 criminal jurisdiction—observing that the involuntary commitment law had been held civil in other contexts and that no reason had been given “why this state statute should suddenly become criminal solely for the purpose of jurisdiction over crimes committed by Indians” (id. at 685)—but relied on Mann for the proposition that the alternative finding of Public Law 280 civil jurisdiction was not “outside the bounds of permissible differences of opinion” and thus did not “unreasonably appl[y] clearly established federal law” (id. at 687)—the standard against which habeas petitions must be measured under 28 U.S.C. § 2254(d). A plurality of the Minnesota Supreme Court, in a later decision and without discussion of either Burgess decision, held that state’s predatory-offender registration statute encompassed within Public Law 280 criminal jurisdiction and distinguished two earlier cases that construed the statute as nonpunitive under standards prescribed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). State v. Jones, 729 N.W.2d 1, 4–11 (Minn. 2007). The court recognized that its use of “the terms ‘punitive’—which we used interchangeably with ‘criminal’ [in the prior cases]—and ‘civil, regulatory’ could cause confusion in our [Public Law 280] analysis” but reasoned that “ ‘punitive’ is not the same as ‘prohibitory,’ and the definition of ‘regulatory’ under the Kennedy analysis [in the prior cases] does not have the same meaning as ‘regulatory’ employed by Pub.L. 280 and Cabazon.” Id. at 11. Two of the remaining four Justices concurred in the result, despite deeming the plurality’s Public Law 280 rationale “tenuous and unnecessary” (id. at 12 (G. Anderson, J., concurring)), by finding the “exceptional circumstances” requisite to on-reservation civil regulation of tribal members outside the taxation context. Id. at 13 (“the state’s need to know the whereabouts of convicted kidnappers on Indian reservations qualifies as ‘exceptional’ ”). 270

415 F.3d at 1061.

271

439 U.S. 463 (1979).

272

The involved Washington statute, which was enacted in 1963, assumed state civil and criminal jurisdiction over all Indian country except as to “ ‘Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States[.]’ ” 439 U.S. at 465 n.1 (quoting from Wash. Rev. Code § 37.12.010 273

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constitutions to accept civil or criminal jurisdiction.274 It then found authorization in section 7 for the assumption of partial jurisdiction—especially where a state conditioned its willingness to assume full civil and criminal jurisdiction on tribal consent and where, without such consent, “[s]tate jurisdiction is complete as to all non‑Indians on reservations and is also complete as to Indians on nontribal lands.”275 The Court, finally, saw no equal protection violation in the checkerboard nature of the state jurisdictional assumption, remarking that the Washington law “is fairly calculated to further the State’s interest in providing protection to non‑Indian citizens living within the boundaries of a reservation while at the same time allowing scope for tribal self‑government on trust or restricted lands.”276 Yakima accordingly suggests that, as a usual matter, partial assumption of Public Law 280 jurisdiction is permissible, and nonmandatory state assumption of jurisdiction has been partial in other instances.277 Retrocession of previously assumed Public Law 280 jurisdiction is governed by 25 U.S.C. § 1323(a): The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by

(1976)). Excluded from the exception were eight subject matter categories and those tribes that petitioned for and became subject to full state civil and criminal jurisdiction before a specified date. Id. 274 Id. at 484–93. Washington, like various other western states, was admitted to the Union pursuant to an enabling act that obligated it to “ ‘disclaim all right and title . . . to all lands lying within said [state’s] limits owned or held by any Indian or Indian tribe[]’ ” and provided further that “ ‘until the title thereto shall have been extinguished by the United States the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.’ ” Id. at 479 n.23 (quoting from Act of Feb. 22, 1889, 25 Stat. 676, 677). Section 6 of Public Law 280 reads:

Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be. The Court concluded that “§ 6 was designed to remove an obstacle to state jurisdiction, not to create one[,]” and that state law, rather than federal law, must determine whether a constitutional amendment is necessary to assume Public Law 280 jurisdiction. Id. at 491, 493. 275 Id. at 498. Section 7 provided that “[t]he consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.”

439 U.S. at 502.

276

See Fla. Stat. Ann. § 285.16 (general civil and criminal jurisdiction); Idaho Code §§ 67‑5101 to 67‑5103 (enumerated list of legal matters); Iowa Code Ann. §§ 1.12–1.15 (general civil jurisdiction concerning Sac and Fox Indian Settlement); Mont. Code Ann. §§ 2‑1‑301 to 2‑1‑307 (partial civil and felony criminal jurisdiction over Flathead Indian Reservation); Nev. Rev. Stat. § 41.430 (jurisdiction over public offenses and civil actions); S.D. Codified Laws Ann. §§ 1‑1‑12 to 1‑1‑21 and § 23A‑16‑1 (general criminal and civil jurisdiction); but see Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164, 1170–71 (8th Cir. 1990) (Public Law 280 did not authorize state assumption of civil and criminal jurisdiction only over highways running through Indian country). 277

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such State pursuant to the provisions of section 1162 of Title 18, section 1360 of Title 28, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section.

Executive Order No. 11435 designated the Secretary of the Interior as the federal officer empowered to accept such retrocession but requires the Secretary to consult with the United States Attorney General before acceding to retrocession of criminal jurisdiction. Under the executive order, retrocession is effected upon the Secretary’s publishing in the Federal Register a description of the jurisdiction retroceded and the retrocession’s effective date.278 Because the United States is authorized to accept retrocession of “all or any measure” of civil or criminal jurisdiction previously assumed under Public Law 280, states presumably may seek partial retrocession.279 Nonetheless, merely because states so request does not mean the United States must accept the offer as made.280 Less clear is how a transfer of jurisdiction affects pending civil proceedings or choice of law determinations with respect to claims arising prior to retrocession. Section 1325 of Title 25 governs abatement of federal proceedings upon cession of jurisdiction to states,281 but no comparable provision governs state proceedings when retrocession is accepted. The Eighth Circuit has held that “the substance of what [a state] retroceded, or more specifically, what [a state] did with . . . actions pending in its courts is a question of state law.”282 IV. RECOGNITION OF FOREIGN JUDGMENTS: FULL FAITH AND CREDIT OR COMITY Whether tribal court judgments are entitled to full faith and credit or merely comity, and whether those courts must extend full faith and credit to judgments from federal or state courts, are difficult and largely unresolved issues. The constitutional full faith and credit provision refers only to the

See Val/Del, Inc. v. Superior Ct., 703 P.2d 502, 508 n.2 (Ariz. Ct. App. 1985).

278

See Yakima, 439 U.S. at 493 n.40 (§ 1323 was designed to “authorize the United States to accept retrocession of jurisdiction, full or partial,” from states that had previously been given or voluntarily assumed jurisdiction under Public Law 280). 279

280 Omaha Tribe v. Vill. of Walthill, 334 F. Supp. 823, 834 (D. Neb. 1971) (upholding secretarial determination to accept retrocession offer as to one, but not a second, reservation), aff’d, 460 F.2d 1327 (8th Cir. 1972) (per curiam). 281 Section 1325(a) relates to civil proceedings and states in part that “[n]o action or proceeding pending before any court or agency of the United States immediately prior to any cession of jurisdiction by the United States pursuant to this subchapter shall abate by reason of that cession.” 282 Tyndall v. Gunter, 840 F.2d 617, 618 (8th Cir. 1988) (finding state court jurisdiction over criminal proceeding concluded after retrocession acceptance, where state supreme court had held retrocession resolution did not intend to relinquish state jurisdiction over pending criminal matters).

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judicial proceedings of states and thus has no significance in this area.283 The complexity largely arises from federal and state statutes drafted without consideration of how, if at all, tribal courts are to be treated for judgment recognition purposes. The principal federal statute governing recognition of foreign judgments is 28 U.S.C. § 1738. It provides that the “records and judicial proceedings of any court of any such State, Territory or Possession”—the rendering forum—shall be given “full faith and credit in every court within the United States and Its Territories and Possessions”—the enforcing forum. Once a court determines that section 1738 applies, the proceedings of the rendering forum “need [have done] no more than satisfy the minimum procedural requirements of the Fourteenth Amendment’s Due Process Clause in order to qualify for the full faith and credit guaranteed by federal law.”284 Even determinations concerning subject matter jurisdiction, if “fully and fairly litigated and finally decided in the court which rendered the original judgment,” are binding.285 The latter rule, however, is “not without exceptions”—including those arising by virtue of federal preemption or sovereign immunity.286 It is settled further that “the policy embodied in full faith and credit will give way before the national policy that requires protection of the dignity and of the fundamental interests of each individual State” where nonmonetary judgments are at issue.287 Once it is determined that a judgment is entitled to full faith and credit, the enforcing state must give it the same preclusive effect as the rendering state.288 Even if a judgment, such as one of a foreign nation, is not subject to section 1738, it still may be recognized under notions of comity.289 Comity is a discretionary act of the enforcing court and entails consideration of a broader range of factors than relevant in full faith and credit analysis. The classic formulation of those factors appears in Hilton v. Guyot,290 where the Supreme

283 Article IV, section 1, of the United States Constitution provides that each state shall give full faith and credit to the “public Acts, Records, and judicial Proceedings of every other state.” See Red Fox v. Red Fox, 542 P.2d 918 (Or. Ct. App. 1975) (Indian tribes are not states within the meaning of Article IV, section 1, of the United States Constitution).

Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481 (1982).

284

Durfee v. Duke, 375 U.S. 106, 111 (1963); accord Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n, 455 U.S. 691, 706–07 (1982). 285

286 Durfee, 375 U.S. at 114. The right to challenge the existence of tribal adjudicatory authority or tribal court determinations of the scope of a tribe’s regulatory jurisdiction would presumably fall within those exceptions if full faith and credit were deemed to extend to tribal court judgments. E.g., Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987).

Restatement (Second) of Conflict of Laws § 103 cmt. b (1969).

287

Durfee, 375 U.S. at 109; see generally Restatement (Second) of Conflict of Laws § 93 cmt. b.

288

Id. at § 98; see also MacArthur v. San Juan County, 497 F.3d 1057, 1066 (10th Cir. 2007) (where enforcement of tribal court’s preliminary injunction was sought, comity considerations governed since a “non-final order[]” was involved). 289

159 U.S. 113 (1895).

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Court required proof not only of the foreign court’s subject matter jurisdiction but also that there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it is sitting, or fraud in procuring the judgment.291

The determination whether tribal court judgments must be given full faith and credit or merely recognized under comity principles therefore may have importance in at least some cases.292 Whether the full faith and credit requirements of section 1738 apply to tribal court judgments is disputed. An early United States Supreme Court case dealing with an act concerning the District of Columbia293 and a series of Eighth Circuit Court of Appeals opinions concerning Indian territory in the late nineteenth century294 include language supporting giving full faith and credit to tribal court decisions. These decisions, although not construing section 1738, have been relied upon by some courts for the proposition that tribes are “possessions” or “territories” under that statute.295 Other courts have reached a

291 Id. at 202; see MacArthur v. San Juan County, 497 F.3d 1057, 1067 (10th Cir. 2007) (comity requires nonrecognition of tribal court judgment when the “court lacked either personal or subject matter jurisdiction” or “where the party against whom enforcement was sought was not afforded due process of law”). 292 See generally Clinton, supra note 118, at 45 (arguing that application of comity, rather than full faith and credit, principles “would reduce the ability of federal courts to oversee and control tribal courts, a prospect seemingly inconsistent with colonial mindset of white domination of Indians and their governmental institutions that has pervaded Indian-white relationships since contact”). 293 United States ex rel. Mackey v. Coxe, 59 U.S. (18 How.) 100, 103–04 (1855) (terms “proper authority in any of the United States or territories thereof ” include Indian tribes). 294 The Eighth Circuit opinions dealt with decisions from courts of the Five Civilized Tribes. E.g., Raymond v. Raymond, 83 F. 721 (8th Cir. 1897) (pursuant to federal law, tribal court had exclusive jurisdiction over divorce between tribal member and adopted tribal member); Cornells v. Shannon, 63 F. 305 (8th Cir. 1894) (remanding for hearing on jurisdiction, and stating that, when Creek Nation courts have jurisdiction, the territorial courts of the United States grant their judgments full faith and credit); Standley v. Roberts, 59 F. 836, 844–45 (8th Cir. 1894) (refusing to bar Choctaw court action between same Choctaw parties because the Choctaw court was a court of coordinate jurisdiction and a federal act granted full faith and credit to tribal court cases in Oklahoma territory). 295 Sheppard v. Sheppard, 655 P.2d 895, 902 (Idaho 1982) (full faith and credit required under § 1738 for tribal adoption decree); Chischilly v. Gen. Motors Acceptance Corp., 629 P.2d 340 (N.M. Ct. App. 1980) (repossession laws of Navajo Nation were entitled to full faith and credit), rev’d on other grounds, 628 P.2d 683 (N.M. 1981) (area where repossession occurred was not Indian country); Jim v. C.I.T. Fin. Servs. Corp., 533 P.2d 751 (N.M. 1975) (laws of Navajo Nation are entitled to full faith and credit under the “territory” provision of § 1738, but forum state need not subordinate its policies in choice of law question); see also Tracy v. Superior Ct., 810 P.2d 1030, 1038–40 (Ariz. 1991) (collecting cases under § 1738 but declining to resolve issue, although concluding that the Navajo Reservation fell within the scope of the term “territory” as used in the definition of “state” in the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceeding); cf. In re Lynch’s Estate, 377 P.2d 199 (Ariz. 1962) (full faith and credit granted to Navajo probate decision pursuant to Arizona probate statute).

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contrary conclusion either specifically296 or without apparent consideration of the question in determining that comity, not full faith and credit, principles govern whether tribal judgments should be recognized.297 Commentators also disagree on how much analytical support such cases provide for requiring that full faith and credit be given to tribal court decisions by other courts.298

296 Wilson v. Marchington, 127 F.3d 805, 807–09 (9th Cir. 1997) (full faith and credit not extended to trial court judgments); John v. Baker, 982 P.2d 738, 762 (Alaska 1999) (reasoning that “[b]ecause Congress specifically distinguished between territories and possessions and Indian tribes in enacting [the Indian Child Welfare Act’s] full faith and credit clause, we do not view [§ 1738] as extending the full faith and credit requirement to tribal judgments[,]” but adopting Wilson’s comity standards); Brown v. Babbitt Ford, Inc., 571 P.2d 689 (Ariz. Ct. App. 1977) (Navajo Tribe is not a “territory” or “possession” within the meaning of § 1738); compare MacArthur v. San Juan County, 309 F.3d 1216, 1225 (10th Cir. 2002) (noting the courts’ division over § 1738’s scope, but declining to resolve issue), on remand, 391 F. Supp. 2d 895, 1023 (D. Utah) (extensively discussing decisional authority and academic commentary relevant to full faith and credit versus comity controversy, but finding it unnecessary to resolve question because “[u]nder either approach—and absent specific legislative mandate to the contrary—this court is not required to enforce [the] interlocutory, non-‘final’ orders of the Navajo courts” at issue), reconsid. denied, 405 F. Supp. 2d 1302 (D. Utah 2005), with Burrell v. Armijo, 456 F.3d 1159, 1171–73 (10th Cir. 2006) (following Marchington with respect to use of comity principles, and holding that due process violation prevented giving preclusive effect to the tribal court judgment). 297 See, e.g., John v. Baker, 125 P.3d 323, 327 (Alaska 2005) (state trial court properly declined to extend comity to tribal court order requiring “each parent [to] ‘help each other financially’ ” and “not to ‘hit the other with child support[;]’ ” while “a tribal child support order need not match the format of a support order issued by the Alaska courts, it must, at a minimum, be concrete enough to be enforceable”) (some internal quotation marks omitted); First Nat’l Bank v. Temple, 642 N.W.2d 197, 203 (S.D. 2002) (stating that “South Dakota courts will recognize tribal court orders under the principle of comity, . . . but the party seeking recognition must first establish that the tribal court order complies with SDCL 1-1-25[,]” and concluding that requisite showing was not made) (citation omitted); Gesinger v. Gesinger, 531 N.W.2d 17 (S.D. 1995) (granting comity to tribal court judgment awarding damages for breach of contract and wrongful conversion of cattle); Red Fox v. Hettich, 494 N.W.2d 638, 641 (S.D. 1993) (refusing to recognize under comity standards judgment for damages where tribal court jurisdiction not found); Algeria v. Redcherries, 812 P.2d 1085 (Ariz. Ct. App. 1991) (recognizing tribal court custody decree under comity principles where the petitioner had appeared in tribal court and litigated subject matter jurisdiction issue); Wells v. Wells, 451 N.W.2d 402 (S.D. 1990) (applying state statute that governed recognition of tribal court judgments, but refusing to extend comity to tribal court decree where service of process was insufficient under tribal law); In re Application of DeFender, 435 N.W.2d 717 (S.D. 1989) (applying state statute governing recognition of tribal court judgments, but refusing to give comity to tribal court decision where tribal court did not have jurisdiction over nontribal member Indian); Mexican v. Circle Bear, 370 N.W.2d 737 (S.D. 1985) (applying common law principles and giving comity to tribal decision concerning disposition of body), superseded by S.D. Consol. L. § 1-1-25; Wippert v. Blackfeet Tribe, 654 P.2d 512 (Mont. 1982) (courts may show tribal court judgments deference as a matter of comity but such judgments must be enforced in an action or special proceeding); Lohnes v. Cloud, 254 N.W.2d 430 (N.D. 1977) (court rejects application of comity in an attempt to obtain funds from the state unsatisfied judgment fund based on a tribal court judgment because the specific requirements of the state statute governing unsatisfied judgment funds were not met). Comity principles have also been applied in determining whether to recognize tribal actions that are asserted as a bar to state court claims. Compare Evans v. Native Vill. of Selawik IRA Council, 65 P.3d 58 (Alaska 2003) (declining to extend comity to tribal resolution that recognized adoption where biological parent received no notice prior to resolution’s passage), with Mills v. Vilas County Bd. of Adjustment, 660 N.W.2d 705, 711 (Wis. Ct. App. 2003) (Court gave comity to tribal referendum results because “[c]omity . . . encompasses more than just the competing jurisdiction of courts. It is the recognition that one state allows within its territory to legislative, executive or judicial acts of another, having due regard to duty and convenience and to the rights of its own citizens”). 298 Compare Clinton, supra note 118, at 26, 28 (“the reference [in § 1738] to enforcing courts is geographic since it employs the word within[,]” thereby including tribal courts, and “[n]o apparent reason exists why Congress would desire to impose on some courts a full faith and credit obligation to enforce the judicial proceedings of other courts, when their own judgments or orders might not be enforced”);Carl H. Johnson, A Comity of Errors: Why John v. Baker Is Only a Tentative First Step in the Right Direction, 18 Alaska L. Rev. 1,

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The same issues arise under the Parental Kidnapping Prevention Act,299 which defines the term “State” to include “a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.”300 Several federal statutes, unlike sections 1738 and 1738A, do require that full faith and credit be granted to tribal court judgments or tribal laws and customs in particular contexts. Public Law 280 requires state courts to give full force and effect to tribal laws and customs, where not inconsistent with state law.301 The Indian Child Welfare Act302 requires the United States, states, territories, possessions, and Indian tribes to give full faith and credit to the “public acts, records, and judicial proceedings of Indian tribes applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.”303 As a result of a settlement act, two Indian tribes and the

35, 37 (2001) (stating initially that “[f]ederal courts have long held that tribal court decisions are entitled to full faith and credit recognition[,]” but later remarking that “it is certainly a mixed and unsettled issue” and “[t]here is no hard line of cases that clearly points to full faith and credit recognition”); Robert N. Clinton, Tribal Courts and the Federal Union, 26 Williamette L. Rev. 841, 902–08 (1990) (cases support granting full faith and credit under § 1738 and comity to tribal court judgments), with William V. Vetter, Of Tribal Courts and “Territories” Is Full Faith and Credit Required?, 23 Cal. W.L. Rev. 219, 224–34 (1987) (cases do not provide a solid foundation for viewing tribal entities as territories); see also James B. Wadley, Indian Citizenship and the Privileges and Immunities Clauses of the United States Constitution: An Alternative to the Problems of the Full Faith and Credit and Comity?, 31 S. Ill. U. L.J. 31, 32–33 (2006) (discussing the full faith and credit and comity “problem[s]” and arguing for the existence of an “Indian citizenship” that would form the basis for protecting federal statutory rights accorded individuals with such status under the Privileges and Immunities Clause of the Fourteenth Amendment); Kevin K. Washburn and Chloe Thompson, A Legacy of Public Law 280: Comparing and Contrasting Minnesota’s New Rule for the Recognition of Tribal Court Judgments with the Recent Arizona Rule, 31 Wm. Mitchell L. Rev. 479, 483–84 (2004); Lindsay Loudon Vest, Comment, Cross-Border Judgments and the Public Policy Exception: Solving the Foreign Judgment Quandary by Way of Tribal Courts, 153 U. Pa. L. Rev. 797, 802–04 (2004); Daina B. Garonzik, Comment, Full Reciprocity for Tribal Courts from a Federal Courts Perspective: A Proposed Amendment to the Full Faith and Credit Act, 45 Emory L.J. 723 (1995); Dennis W. Arrow, Oklahoma’s Tribal Courts: A Prologue, the First Fifteen Years of the Modern Era, and a Glimpse at the Road Ahead, 19 Okla. City Univ. L. Rev. 5, 63–69 (1994); Fred L. Ragsdale, Jr., Problems in the Application of Full Faith and Credit for Indian Tribes, 7 N.M. L. Rev. 133 (1977); John T. Moshier, Comment, Conflicts Between State and Tribal Law: The Application of Full Faith and Credit Legislation to Indian Tribes, 1981 Ariz. St. L.J. 801 (1981); Note, The Application of Full Faith and Credit to Indian Nations, 20 Ariz. L. Rev. 1064 (1978). 28 U.S.C. § 1738A.

299

Id. § 1738A(b)(8); compare In re Marriage of Susan C., 60 P.3d 644, 774 (Wash. Ct. App. 2002) (observing that “[c]ourts are split on the question[,]” but adopting construction that “State” includes Indian tribes), with In re Custody of Sengstock, 477 N.W.2d 310 (Wis. Ct. App. 1991) (rejecting argument that tribe was a “state” under § 1738A but nonetheless recognizing tribal court custody order under comity principles); see generally Robert Laurence, Full Faith and Credit in Tribal Courts: An Essay on Tribal Sovereignty, Cross­Boundary Reciprocity and the Unlikely Case of Eberhard v. Eberhard, 28 N.M. L. Rev. 19, 47 (1998) (contrasting the absence of any mention of tribes in the definition of “State” in the Parental Kidnapping Prevention Act with their inclusion in the definition of “State” in the Full Faith and Credit for Child Support Act, 28 U.S.C. § 1738B, and criticizing the conclusion in Eberhard v. Eberhard, 24 Indian L. Rep. 6059 (Chy. R. Sx. Tr. Ct. Feb. 18, 1997), that tribes are encompassed within the former’s definition). 300

28 U.S.C. § 1360(c).

301

25 U.S.C. §§ 1901–1963.

302

Id. § 1911(d); see Native Vill. of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 1991).

303

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State of Maine give full faith and credit to each other’s judicial proceedings.304 In regulating the descent and distribution of trust lands, the Secretary of the Interior must give full faith and credit to tribal actions concerning the estates of decedents in some situations.305 More recently, the Full Faith and Credit for Child Support Act306 limits the authority of courts of one state to modify child support orders entered by a court of another state and defines the term “state” to include Indian country as defined in 18 U.S.C. § 1151.307 Another recent example is the full faith and credit provision in the Violence Against Women Act (“VAWA”),308 providing that “[a]ny protection order issued that is consistent with [18 U.S.C. § 2265(b)] by the court of one State or Indian tribe (the issuing State or Indian tribe) shall be accorded full faith and credit by the court of another State or Indian tribe (the enforcing State or Indian tribe) and enforced as if it were the order of the enforcing State or tribe.”309 Aside from these federal statutes, some states have adopted legislation addressing full faith and credit issues arising with respect to tribal court judg-

25 U.S.C. § 1725(g).

304

Id. § 2207.

305

Pub. L. No. 103-383, 108 Stat. 4063 (1994) (codified at 28 U.S.C. § 1738B).

306

See Day v. Montana Dep’t of Soc. and Rehab. Servs., 900 P.2d 296, 297 (Mont. 1995) (concluding that definition of “state” encompasses Indian tribes). 307

Pub. L. No. 103-322, tit. IV, 108 Stat. 1902 (1994).

308

18 U.S.C. § 2265(a); see State v. Esquivel, 132 P.3d 751, 754 (Wash. Ct. App. 2006) (tribal protection order satisfied VAWA full faith and credit requirements, since it was issued “by a court that has jurisdiction over the parties and the matter under the law of the State or Indian tribe” and the defendant was “given reasonable notice and opportunity to be heard sufficient to protect due process rights”). Commentary on this provision has been spirited. Compare Comment, Sandra J. Schmieder, The Failure of the Violence Against Women Act’s Full Faith and Credit Provision in Indian Country: An Argument for Amendment, 74 U. Colo. L. Rev. 765, 767, 792 (2003) (arguing that “[a]lthough the full faith and credit provision of the VAWA requires implementation by individual tribes, many tribes simply do not pass resolutions giving full faith and credit to foreign protection orders” and that “[i]n part, this omission arises from intentional oversight; many tribes ignore the statute because they view it as an infringement on tribal sovereignty[;]” and recommending that “Congress should amend Section 2265 to expressly create both a federal right and a private cause of action that allows individuals to sue tribal officials for prospective injunctive relief if a tribe fails to enact full faith and credit legislation”), with Sarah Deer and Melissa L. Tatum, Tribal Efforts to Comply with VAWA’s Full Faith and Credit Requirements: A Response to Sandra Schmieder, 39 Tulsa L. Rev. 403, 407, 408, 414 (2003) (arguing that “Schmieder repeatedly claims that tribal governments have refused to honor foreign orders, but she provides little to no evidence to support such assertions,” and that “Schmieder’s assertion that tribal governments are hostile to the notion of full faith and credit is also nullified by the fact that numerous tribal governments have passed full faith and credit enabling legislation[;]” and criticizing proposed amendment as, inter alia, possibly causing “a Native woman [to be viewed] . . . as promoting the federal intrusion into tribal laws and affairs,” and “[t]he resulting antagonism could be counter-productive to the goal of ensuring enforcement of protection orders”); see also Rebecca A. Hart and M. Alexander Lowther, Comment, Honoring Tribal Sovereignty: Aiding Efforts to Protect Native American Women from Domestic Violence, 96 Cal. L. Rev. 185, 226–27 (2008) (discussing obstacles to effectively addressing violence against American Indian women, and recommending various initiatives to address issues, including a limited congressional override of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), to allow tribal court prosecutions against nonIndians for domestic violence); Melissa L. Tatum, Establishing Penalties for Violations of Protection Orders: What Tribal Governments Need to Know, 13-FALL Kan. J.L. & Pub. Pol’y 125 (2003) (discussing jurisdictional and remedial complexities raised by VAWA’s full faith and credit provision). 309

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ments.310 Many states, moreover, have adopted the Uniform Enforcement of Foreign Judgments Act,311 which provides a procedure for enforcement of judgments entitled to full faith and credit,312 and the Uniform Foreign MoneyJudgments Recognition Act,313 which provides a procedure for recognition of a judgment granting or denying recovery of a sum of money from a “foreign state,” defined as “any governmental unit other than the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands.”314 Consistent with Hilton v. Guyot, however, the latter statute has codified comity standards as the measure of whether the foreign judgment should be recognized.315

310 See generally Kevin K. Washburn and Chloe Thompson, A Legacy of Public Law 280: Comparing and Contrasting Minnesota’s New Rule for the Recognition of Tribal Court Judgments with the Recent Arizona Rule, 31 Wm. Mitchell L. Rev. 479, 493, 495 (2004) (while the Arizona rules “track[] closely, in fact, nearly word-forword, with the federal common law rule regarding the recognition of tribal court judgments[,]” the “Minnesota Rule provides broad discretion and little guidance”); Darby L. Hoggatt, Comment, The Wyoming Tribal Full Faith and Credit Act: Enforcing Tribal Judgments and Protecting Tribal Sovereignty, 30 Land & Water L. Rev. 531, 549 (1995) (identifying South Dakota, Wisconsin, and Wyoming as states that have adopted legislation specifying procedures with respect to recognition and enforcement of tribal court judgments); compare Stephanie Moser Goins, Comment, Beware the Ides of Marchington: The Erie Doctrine’s Effect on Recognition and Enforcement of Tribal Court Judgments in Federal and State Courts, 32 Am. Indian L. Rev. 189, 216 (2007–2008) (arguing that adoption of federal common law rules with respect to enforcement of tribal court judgments “risks unnecessary abrogation of conflicting state law, thus posing a risk to states’ rights guaranteed under the Tenth Amendment, as well as to established policies of protecting the sovereignty of federal Indian tribes”), with R. Stephen McNeill, In a Class by Themselves: A Proposal to Incorporate Tribal Courts into the Federal Court System Without Compromising Their Unique Status as “Domestic Dependent Nations,” 65 Wash. & Lee L. Rev. 283, 341–42 (2008) (arguing that the comity approach in Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997), should be congressionally adopted). The Wisconsin Supreme Court has construed its full faith and credit statute as not applying where concurrent state and tribal proceedings exist, reasoning that a contrary interpretation would result in a first-to-judgment rule. Teague v. Bad River Band of Lake Superior Tribe, 665 N.W.2d 899, 915–16 (Wis. 2003) (Abrahamson, C.J., concurring). The court instead formulated and applied a 13-factor comity test in concluding that the tribal court judgment should be given effect. Id. at 917–18; see generally Bryan Cahill, Note, Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians: Bringing the Federal Exhaustion Rule of Tribal Remedies Home to Wisconsin Courts, 2004 Wis. L. Rev. 1291, 1343 (Teague “gives the nod to tribal courts” so that “[i]f a controversy implicates tribal sovereignty, state courts should abstain from exercising jurisdiction, even if no tribal court proceeding is pending,” and thereby “transforms Wisconsin from a mandatory [Public Law 280] state into an optional state requiring the consent of each tribe”); Recent Cases, Teague v. Bad River Band of Lake Superior Tribe, 665 N.W.2d 899 (Wis. 2003), 117 Harv. L. Rev. 988, 994 (2004) (summarizing litigation’s history and Wisconsin court’s opinions before concluding that “by finding in favor of tribal court jurisdiction despite the arguable weakness of the factors pointing toward that result, the court may in fact have intended to create a presumption—wholly apart from [the full faith and credit statute]—in favor of tribal court jurisdiction”). 311

See 13 Uniform Laws Annotated 149 (1986).

Uniform Enf. Foreign J. Act (1964) § 1, reprinted in 13 Uniform Laws Annotated at 152; see Walksalong v. Mackey, 549 N.W.2d 384, 387 (Neb. 1996) (assuming without discussion that tribal court custody order constituted a “foreign judgment” under the Uniform Act but refusing to recognize order after concluding court lacked subject matter jurisdiction under tribal domestic relations code). 312

See 13 Uniform Laws Annotated at 261.

313

Uniform Foreign Money-J. Recognition Act § 1(2) (1962), reprinted in 13 Uniform Laws Annotated

314

at 263. Id. § 4, reprinted in 13 Uniform Laws Annotated at 268.

315

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Since reciprocal full faith and credit obligations are imposed upon jurisdictions subject to 28 U.S.C. § 1738, the statute would require tribal courts, if deemed courts “within the United States and its Territories and Possessions,” to extend full faith and credit to the judgments of federal, state, or other tribal courts.316 Tribal courts, of course, may also enforce foreign judgments as a matter of comity.317 Finally, a significant but unresolved issue is whether a successful tribal court plaintiff may enforce a judgment against a nonmember in federal court under federal question jurisdiction. This issue turns on whether enforcement of a tribal court judgment necessarily requires the successful plaintiff to establish the existence of inherent or federally delegated authority over the nonmember, as opposed to the latter’s simply having lack of such jurisdiction as a defense.318 Diversity jurisdiction under 28 U.S.C. § 1332 will be available when the federal court plaintiff and defendant are citizens of different states. Absent federal jurisdiction, tribal court litigants would be required to seek enforcement of their judgments in state court.

316 Some tribal courts nonetheless have resisted granting full faith and credit to state and other tribal court judgments. See Little Horn State Bank v. Crow Tribal Ct., 690 F. Supp. 919 (D. Mont. 1988) (tribal court refuses to act on state default judgment), vacated pursuant to stipulation, 708 F. Supp. 1561 (D. Mont. 1989). Commentators have disagreed over whether tribal interests would be furthered by the reciprocal recognition requirement. Compare David S. Clark, State Court Recognition of Tribal Court Judgments: Securing the Blessings of Civilization, 23 Okla. City L. Rev. 353, 378 (1998) (concluding that “Native Americans should not unduly fear the full faith and credit principle but rather should take it as an important instrument of government” and that the obligation to give reciprocal recognition to state court judgments is tempered by “[t]he preemptive doctrines of federal Indian law [that] greatly limit state power over claims against Indians arising in Indian country”), with Robert Laurence, The Bothersome Need for Asymmetry in Any Federally Dictated Rule of Recognition for the Enforcement of Money Judgments Across Indian Reservation Boundaries, 27 Conn. L. Rev. 979, 1000 (1995) (arguing that tribal courts, when asked to enforce state court judgments, should determine whether state court had subject matter jurisdiction and whether, on the merits, “the underlying cause of action is broadly consistent with tribal law and ways,” while state courts, when asked to enforce a tribal court judgment, should determine whether the tribal court had jurisdiction and whether the Indian Civil Rights Act was complied with but should not address the merits). Federal judgments may also be entitled to recognition under a liberal reading of § 1738 or federal supremacy principles. See Clinton, supra note 298, at 916 n.179. 317 See Baker v. Sebastian, 33 Indian L. Rep. 6025 (Mash. Peq. Tr. Ct. Dec. 7, 2005) (recognizing state court money judgment on comity grounds); Ace Equip. Sales, Inc. v. Sebastian, 31 Indian L. Rep. 6136 (Mash. Peq. Tr. Ct. Sept. 3, 2004) (same); Smith v. Scott, 30 Indian L. Rep. 6105 (Mash. Peq. Tr. Ct. Apr. 23, 2003) (same); Husband v. Wife, 30 Indian L. Rep. 6099 (Mash. Peq. Ct. App. Jan. 24, 2003) (construing reference to “full faith and credit” in tribal family relations law to mean comity since determination to recognize foreign judgment must be made with regard to whether such judgment contravenes tribal public policy); cf. Carson v. Barham, 30 Indian L. Rep. 6126 (Colv. Ct. App. Apr. 22, 2003) (recognizing as a matter of comity jurisdiction of state court over parentage dispute under “first to file” rule in the absence of exceptional circumstances). 318 Compare MacArthur v. San Juan County, 309 F.3d 1216, 1224 (10th Cir. 2002) (“[t]o the extent appellants’ complaint [seeking enforcement of tribal court injunction] anticipates a defense arising under federal law, it runs up against the well-pleaded complaint rule”), with Chilkat Indian Vill. v. Johnson, 870 F.2d 1469, 1470 (9th Cir. 1989) (finding federal question jurisdiction over claim by tribe to enforce ordinance against nonmember).

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Chapter 7 Tribal Sovereign Immunity and the Indian Civil Rights Act

Indian tribes are unique political entities, and the relation of a tribe and the United States is “perhaps unlike that of any other two people in existence.” They are not foreign nations separate and apart from the United States; instead they are “domestic dependent nations” located within United States territory that have certain retained inherent powers of self-government. Consistent with this quasi-sovereign status, Indian tribes are not parties to the United States Constitution and derive no power or obligations directly from it despite being mentioned twice. Tribes thus are not subject to the limitations on governmental action contained in the Bill of Rights or the Fourteenth Amendment. This chapter examines two related features of the unique sovereign status of Indian tribes. First, an important incident of such status is a substantial measure of immunity from unconsented suit in any court. Although some members of the United States Supreme Court have questioned the doctrine’s propriety, immunity from suit remains an important manifestation of tribal sovereignty, particularly in view of the broad array of governmental and commercial activity in which tribes now engage. Second, in recognition of the extra-constitutional

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).



Id.; see generally Chapter 1, part I.A.



See generally Chapter 5, part II.



E.g., Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 268–69 (1997); Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 782 (1991). 

 U.S. Const. art. 1, § 2, cl. 3 (excluding “Indians not taxed” from the apportionment formula for congressional representation and taxation purposes); id. art. I, § 8, cl. 3 (Indian Commerce Clause); see generally 1 Francis Paul Prucha, The Great Father: The United States Government and the American Indians 50 (1984) (“the Constitution is meager indeed on the subject of Indians, and what does appear was not the product of long debate”); Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1147–1155 (1995) (detailing the discussion of Indian affairs during the Constitutional Convention). The provision related to “Indians not taxed” became nugatory by virtue of the Fourteenth and Sixteenth Amendments’ adoption. Consequently, for modern purposes, the only relevant textual reference is to “Indian tribes” in the Commerce Clause.  Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 757–58 (1998); see also Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991) (Stevens, J., concurring) (characterizing tribal sovereign immunity as “founded upon an anachronistic fiction”).

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quality of tribal sovereignty, Congress adopted the Indian Civil Rights Act of 1968 to provide many, but not all, of the individual-right protections found in the Bill of Rights. This statute, while largely unenforceable in federal or state courts, constitutes a hallmark example of Congress’s exercising its authority over tribal affairs under the Indian Commerce Clause. I. SOVEREIGN IMMUNITY FROM SUIT A. Doctrinal Foundation: Fidelity & Guaranty Through Manufacturing Technologies A core element of tribal sovereignty is a common law immunity from suit against all but the federal government. The doctrine of sovereign immunity is commonly understood to relate to two different concepts: whether a sovereign is immune to suit in its own courts or in the courts of another sovereign,10 and whether it is subject to substantive law at all.11 For present purposes, only the first category of immunity is relevant and, as a general matter, only the question of tribal immunity from suit in courts other than those of the affected tribe is at issue. Claims of immunity in courts of another sovereign ordinarily depend upon the law of the forum jurisdiction.12 Federal common law, however, supplies a largely contrary rule where Indian tribes are involved.

 Pub. L. No. 90-284, §§ 201–701, 82 Stat. 73, 77–81 (1968) (codified as amended at 25 U.S.C. §§ 1301–1303, 1321–1326, 1331, 1341).  EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1075 (9th Cir. 2001); Fla. Paraplegic Ass’n v. Miccosukee Tribe, 166 F.3d 1126, 1135 n.21 (11th Cir. 1999); United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th Cir. 1987); United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir. 1986); United States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir. 1986); see also NLRB v. Chapa De Indian Health Program, Inc., 316 F.3d 995 (9th Cir. 2003) (federal administrative agency subpoena challenged solely on basis that tribal organization not subject to involved statute); cf. compare United States v. Velarde, 40 F. Supp. 2d 1314, 1316 (D.N.M. 1999) (tribal officials not immune from subpoena from United States and defendant in Major Crimes Act prosecution, since “the federal government’s interest in enforcing [such statute] is sufficient to justify an infringement on tribal sovereignty”), with Tribal immunity from suit as a matter of federal common law presumably does not extend beyond those tribes federally recognized. E.g., Carruthers v. Flaum, 365 F. Supp. 2d 448, 466–67 (S.D.N.Y. 2005) (federal recognition as Indian tribe is necessary predicate for sovereign immunity); State ex rel. Bd. of Univ. and Sch. Lands v. Alexander, 718 N.W.2d 2, 5 (N.D. 2006) (rejecting claim of group’s indispensable status on the basis that it was not a federally recognized tribe); but see Ellenbast v. Watkins, 821 N.Y.S.2d 275 (App. Div. 2006) (state recognized but not federally recognized tribe entitled to immunity from suit).  See Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (sovereign’s authority to define both the jurisdiction of its courts and the substantive rights of its citizens explains the lesser authority to define its own sovereign immunity).

See Nevada v. Hall, 440 U.S. 410, 414 (1979) (Nevada not immune from suit in California courts).

10

See Seminole Tribe v. Florida, 517 U.S. 44, 102–03 (1996) (Souter, J., dissenting) (“The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is not bound by the law’s provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts”). 11

See Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).

12

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Tribal sovereign immunity was first recognized expressly in United States v. United States Fidelity & Guaranty Co.13 At issue in Fidelity & Guaranty was a dispute involving leases of coal lands by the United States on behalf of the Choctaw and Chickasaw Nation in exchange for royalties that were bonded by a surety. The coal companies that had leased the lands later went into receivership. In the course of the receivership proceedings, judgment was entered against the tribes based on credits that the coal companies claimed were owed them by the tribes. No appeal was taken from that judgment. The United States subsequently brought suit against the bonding company on the tribes’ behalf, seeking payment on the bond for the royalties. The surety claimed that the previous judgment barred the second suit. The coal company’s trustee intervened and counterclaimed based on the prior judgment. The Supreme Court held that “Indian Nations are exempt from suit without congressional authorization” and that the prior judgment was void insofar as it rendered judgment against the tribes,14 relying upon Turner v. United States15 as support for its conclusion. The Court also held that the immunity from direct suit necessarily included immunity from counterclaims like the trustee’s.16 The Supreme Court clarified the reach of Fidelity & Guaranty’s holding in several later decisions.17 In Puyallup Tribe, Inc. v. Department of Game,18 the Court found a tribe, but not its members, immune from a state court action seeking to enjoin off-reservation fishing activities that were claimed to violate state law, reasoning that “[a]bsent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.”19 The reference to a “waiver or consent” was significant because it removed any doubt that tribes possessed the power to submit themselves

13 309 U.S. 506 (1940); see generally Andrea M. Seielstad, The Recognition and Evolution of Tribal Sovereign Immunity Under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental Aspect of American Indian Sovereignty, 37 Tulsa L. Rev. 661, 689–695 (2002); Thomas P. McLish, Note, Tribal Sovereign Immunity: Searching for Sensible Limits, 88 Colum. L. Rev. 173, 178 (1989); Note, In Defense of Tribal Immunity, 95 Harv. L. Rev. 1058, 1059 (1982).

309 U.S. at 512.

14

248 U.S. 354 (1919). Turner involved a suit by a Creek member against the Creek Nation, seeking damages for the destruction of a fence by a group of tribal members. The Court held first that the tribe was free from liability on the basis that, as a governmental entity, it was not liable as a substantive matter for injuries to property on the basis of a failure to keep the peace. Id. at 357–58. The Court then rejected the contention that a 1908 special statute, which gave the Court of Claims jurisdiction to entertain Turner’s lawsuit against the tribe whose government by then had been dissolved, imposed such liability in contravention to common law and observed that, absent the 1908 law, the tribe would have been immune from suit “in any court, at least without its consent.” Id. at 358. 15

309 U.S. at 513.

16

Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 172–73 (1977); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991); Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 757–58 (1998). 17

433 U.S. 165 (1977).

18

Id. at 172.

19

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voluntarily to suit.20 One year after Puyallup Tribe, the Court made clear in Santa Clara Pueblo v. Martinez21 that tribal immunity from suit was subject to congressional abrogation, since “[t]his aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress.”22 However, any such abrogation, the Court emphasized, “cannot be implied but must be unequivocally expressed.”23 In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe,24 the Court affirmed its ruling in Fidelity & Guaranty, and refused a request to narrow the breadth of tribal sovereign immunity or abandon the doctrine altogether.25 Citizen Band Potawatomi resulted from a suit for injunctive relief brought by a tribe, which sought to enjoin a state from collecting sales taxes on past cigarette sales at a tribally owned convenience store on Indian country trust land, and from a counterclaim by the state, which sought prospective relief with respect to the tax’s future collection and retroactive relief in the form of past uncollected tax amounts.26 The Oklahoma Tax Commission argued that the rule in Fidelity & Guaranty should be modified “because tribal business activities such as cigarette sales are now so detached from traditional tribal interests that the tribal-sovereignty doctrine no longer makes sense in this context [but] should be limited to the tribal courts and the internal affairs of tribal government, because no purpose is served by insulating tribal business ventures from the authority of the States to administer their laws.”27 The Supreme Court was unpersuaded. It reasoned that although “Congress has always been at liberty to dispense with such tribal immunity or to limit it” and “has occasionally authorized limited classes of suits against Indian tribes, it has never authorized suits to enforce tax assessments” and has “consistently reiterated its approval of the immunity doctrine.”28 It distilled from this course of action a congressional desire to promote tribal self-government and economic development and held that, consistent with Fidelity & Guaranty, the tribe was immune from the state’s counterclaim.29 The Court nonetheless then ruled,

20 See United States v. Oregon, 657 F.2d 1009, 1013 (9th Cir. 1981) (remarking on the doubts some courts have expressed over the ability of tribes to waive their immunity but finding such authority present under Turner and Puyallup).

436 U.S. 49 (1978).

21

Id. at 58. Martinez is discussed more fully infra at part II.B.

22

Id. (internal quotation marks omitted)

23

498 U.S. 505 (1991).

24

Id. at 510.

25

Id. at 511.

26

Id.

27

Id. at 510.

28

Id.

29

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also consistent with earlier decisions,30 that the state had authority to tax sales to nonmembers.31 In response to the state’s contention that the latter conclusion created “a right without a remedy,” the Court identified various potential enforcement methods, including the possibility of holding tribal officers and agents liable for damages.32 Justice Stevens concurred separately in Citizen Band Potawatomi and raised issues that suggested possible limitations on the immunity doctrine. He recognized “[t]he rule that an Indian tribe is immune from an action for damages absent its consent is . . . an established part of our law,”33 but saw a distinction between whether a tribe may be liable “for past sales taxes which it never collected” and “whether the tax commission may require the Tribe to collect state taxes on its sales in the first place.”34 By reaching the substantive issue of the state’s right to impose the sales tax on nonmember transactions, Justice Stevens believed the Court had rejected “the argument that this governmental entity—the tribe—is completely immune from legal process” and that “the Court today recognizes that a tribe’s sovereign immunity from actions seeking money damages does not necessarily extend to actions seeking equitable relief.”35 Justice Stevens also expressed uncertainty regarding whether “the rule of tribal sovereign immunity extends to cases arising from a tribe’s conduct of commercial activity outside its own territory.”36 Seven years later, the Supreme Court declined to follow the path suggested by Justice Stevens. The case, Kiowa Tribe v. Manufacturing Technologies, Inc.,37 arose from a state court judgment enforcing against a tribe a promissory note for the purchase of stock in an off-reservation aviation company. Whether the note was executed within the tribe’s lands was disputed. Writing for a six-member majority, Justice Kennedy reversed the state court judgment through a straightforward application of the sovereign immunity doctrine. “As a matter of federal law,” he wrote, “an Indian tribe is subject to suit only where

30 Washington v. Confederated Tribes of Colville Reserv., 447 U.S. 134 (1980); Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976).

Id. at 512–14.

31

Id. at 514.

32

Id.

33

Id. at 515.

34

Id. at 516; but see In re Greene, 980 F.2d 590, 596 (9th Cir. 1992) (reading Citizen Band Potawatomi to conclude that, “[e]ven though tribal immunity did not prevent the state from imposing a duty to collect the tax on the Tribe, tribal immunity prevented the state from suing to collect the amounts due”). 35

36 498 U.S. at 515; see Cass County Jnt. Water Resource Dist. v. 1.43 Acres of Land in Highland Township, 643 N.W.2d 685, 687 (N.D. 2002) (tribal sovereignty does not prohibit an in rem condemnation action against fee land owned by the tribe that is not located within the reservation, is not allotted land, is not part of the tribe’s aboriginal land, is not trust land, and over which the federal government exercises no superintendence).

523 U.S. 751 (1998).

37

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Congress has authorized the suit or the tribe has waived its immunity,” and “[t]o date, our cases have sustained tribal immunity from suit without drawing a distinction based on where the tribal activities occurred.”38 The majority opinion nonetheless conceded that the doctrine itself was constructed on arguably questionable foundations. Justice Kennedy thus observed that, “[t]hough the doctrine of tribal immunity is settled law and controls this case, we note that it developed almost by accident”39 through a “passing reference to immunity” in Turner v. United States.40 He further acknowledged that “[i]n our interdependent and mobile society . . . tribal immunity extends beyond what is needed to safeguard tribal self-governance.”41 Outweighing these objections, Justice Kennedy reasoned, were the cardinal considerations that Congress had “acted against the background of our decisions” recognizing tribes’ immunity from suit42 and that Congress, rather than the Court, was the appropriate entity “to weigh and accommodate the competing policy concerns and reliance interests.”43 The Court accordingly “decline[d] to revisit our case law” and held that “[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.”44 Justice Stevens dissented from the judgment in Manufacturing Technologies. He argued first that “it is quite wrong for the Court to suggest that it is merely following precedent, for we have simply never considered whether a tribe is immune from a suit that has no meaningful nexus to the Tribe’s land or its sovereign functions” and that “none of our opinions has attempted to set forth any reasoned explanation for a distinction between the States’ power to regulate the off-reservation conduct of Indian tribes and the power to adjudicate disputes arising out of such off-reservation conduct.”45 Justice Stevens next gave several reasons for “not extend[ing] the [immunity] doctrine beyond its present contours”: Because the Court “is announcing a rule that pre-empts state power,” there must be strong federal interests to justify the rule, but the

Id. at 754.

38

Id. at 756.

39

248 U.S. 354 (1919).

40

523 U.S. at 758; see generally Amelia A. Fogelman, Note, Sovereign Immunity of Indian Tribes: A Proposal for Statutory Waiver for Tribal Businesses, 79 Va. L. Rev. 1345 (1993) (contending that sovereign immunity can discourage nonmembers from doing business with tribes or tribal enterprises). 41

523 U.S. at 758.

42

Id. at 759.

43

523 U.S. at 760; see also Kiowa Indian Tribe v. Hoover, 150 F.3d 1163 (10th Cir. 1998) (reversing dismissal of action by tribe seeking to enjoin state court proceedings and seizure of tribal assets pursuant to state court processes, and vacating denial of preliminary injunction); Hoover v. Kiowa Tribe, 986 P.2d 516 (Okla. 1999) (overruling Hoover v. Kiowa Tribe, 957 P.2d 81 (Okla. 1998), in view of Manufacturing Technologies, and remanding with instructions to enter judgment for tribe). 44

523 U.S. at 764.

45

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Court “all but concedes that the present doctrine lacks such justification”; the rule is “anomalous” since it accords tribes “broader immunity than the States, the Federal Government, and foreign nations”; and “the rule is unjust”—i.e., “[g]overnments, like individuals, should pay their debts and should be held accountable for their unlawful, injurious conduct.”46 The decision in Manufacturing Technologies leaves no doubt about the vitality or breadth of the sovereign immunity doctrine. So, for example, while it arose in the context of a commercial contract dispute, no reason exists to limit its scope to such disputes, and lower courts thus have extended its holding to tort claims.47 Prior to Manufacturing Technologies, as indicated by Justice Stevens’s concurring opinion in Citizen Band Potawatomi, doubt existed as well

46 Id. at 764–766. In contrast to Justice Stevens are various commentators who have argued that the judgment was correct but that the majority’s analysis, insofar as it reflected unease with the conceptual validity or modern utility of the immunity doctrine, was questionable. Theresa R. Wilson, Nations Within a Nation: The Evolution of Tribal Immunity, 24 Am. Indian L. Rev. 99, 126 (2000) (concluding that “[w]hile the ultimate holding in Kiowa upheld the tribe’s immunity from suit, the Court was clear in its disdain for the doctrine” and that “[t]he Court used the case to send an unambiguous message to Congress” to act legislatively); Christopher W. Day, Note, Kiowa Tribe v. Manufacturing Technologies, Inc.: Doing the Right Thing for All the Wrong Reasons, 49 Cath. U. L. Rev. 279, 321–28 (1999) (criticizing Manufacturing Technologies for disregarding “the roots of tribal sovereign immunity from suit in United States history,” failing “to recognize that tribal immunity is an essential aspect of the inherent sovereignty of the Indian tribes,” and neglecting, inter alia, “to inform Congress of the existence of its moral obligation to act in good faith to protect Indian sovereignty” insofar as it “invit[ed] Congress to abrogate tribal immunity”); David M. LaSpaluto, Comment, A “Strikingly Anomalous,” “Anachronistic Fiction”: Off-Reservation Sovereign Immunity for Indian Tribal Commercial Enterprises, 36 San Diego L. Rev. 743, 787 (1999) (arguing in part that the Supreme Court “effectively legislated, rather than merely interpreting [sic], when it expanded the [sovereign immunity] doctrine into areas in which tribal immunity has never before been applied”); see also Andrea M. Kurak, Note, Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida: Balancing Competing Interests, 30 Stetson L. Rev. 361, 390 (2000) (discussing the potential negative impact on tribal commercial activities from the assertion of immunity from suit; “this shield may be the sword that causes the tribe’s demise when potential customers refuse to patronize tribal facilities for fear of relinquishing many of their otherwise federally protected rights”); John W. Borchert, Comment, Tribal Immunity Through the Lens of the Foreign Sovereign Immunities Act: A Warrant for Codification?, 13 Emory Int’l L. Rev. 247, 280 (1999) (contrasting tribes’ immunity from suit and that of foreign nations under the Foreign Sovereign Immunities Act, and suggesting that “[t]he law of foreign sovereign immunities can serve as a powerful guide as Congress continues to consider legislative proposals in this area”); Eric Governo, Comment, Tribal Sovereign Immunity: History, Competing Policies, and Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 34 New Eng. L. Rev. 175 (1999) (collecting cases, and summarizing arguments for and against expansive tribal immunity from suit); but see Seielstad, supra note 13, at 680 (“[d]espite its concerns regarding the doctrine, the Supreme Court’s decision in Kiowa Tribe is solid in its endorsement of tribal immunity”). 47 E.g., Sevastian v. Sevastian, 808 A.2d 1180 (Conn. App. 2002) (sovereign immunity protects tribe from tort action in state court arising on off-reservation land owned by the tribe); Redding Rancheria v. Superior Ct., 105 Cal. Rptr. 2d 773 (Ct. App. 2001) (tribe was immune in state court suit brought by hotel employee injured during party of tribe’s casino employees held at off-reservation hotel not owned by tribe); Doe v. Oneida Indian Nation, 717 N.Y.S.2d 417 (App. Div. 2000) (tribe was immune from state court action for injury plaintiff suffered while staying at hotel owned by tribe and located off-reservation); but see Doe v. Santa Clara Pueblo, 154 P.3d 644, 657 (N.M. 2007) (“Congress intended [under IGRA] the parties to negotiate, if they wished, the choice of laws for personal injury suits against casinos as well as a choice of venue for the enforcement of those laws”); Humes v. Fritz Co., 105 P.3d 1000, 1006–07 (Wash. Ct. App. 2005) (sovereign immunity protects tribe from being subject to suit or incurring liability but does not bar allocation of fault to it in a negligence action against nontribal company stemming from injury sustained on reservation); cf. Worrall v. Mashantucket Pequot Gaming Enter., 131 F. Supp. 2d 328 (D. Conn. 2001) (gaming enterprise was an agency of the tribe and therefore immune from suit bringing tort claim for injury occurring when chair in reservation casino collapsed).

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over whether, and to what extent, a tribe’s immunity is extraterritorial—i.e., extends to off-reservation or non–Indian country transactions.48 In the latter regard, Manufacturing Technologies eliminates any distinction between the immunity doctrine’s application on or off reservation despite the fact that tribes generally will be subject to state law when off reservation, and thereby creates the possibility, indeed the likelihood, that state and local governments will experience difficulty in enforcing otherwise valid laws.49 Nonetheless, as the majority opinion bluntly observed, “[t]here is a difference between the right to demand compliance with state laws and the means available to enforce them.”50 The Supreme Court, in sum, has determined in the face of its own

48 Manufacturing Technologies comported with the majority of courts that had considered whether a tribe has immunity from suit for activities arising off reservation. See Sac and Fox Nation v. Hanson, 47 F.3d 1061 (10th Cir. 1995) (tribe possessed immunity against indemnification suit in state court with respect to off-reservation commercial activity); Maynard v. Narragansett Indian Tribe, 984 F.2d 14, 16 (1st Cir. 1993) (refusing to imply waiver of sovereign immunity under the Rhode Island Indian Claims Settlement Act with respect to nonmember claim against tribe for trespass on lands to which the tribe relinquished all title under the Act); Frederico v. Capital Gaming Int’l, Inc., 888 F. Supp. 354 (D.R.I. 1995) (tribe possessed immunity against action by lobbyist for breach of contract); Elliot v. Capital Int’l Bank & Trust, Ltd., 870 F. Supp. 733 (E.D. Tex. 1994) (dismissing on immunity grounds complaint against tribe alleging fraud with respect to off-reservation commercial activities); Welch Contracting, Inc. v. North Carolina Dep’t of Transp., 622 S.E.2d 691, 697 (N.C. Ct. App. 2005) (relying on Manufacturing Technologies to reject contention that tribal immunity from suit waived by virtue of tribe’s entering into construction agreement off reservation); Thompson v. Crow Tribe, 962 P.2d 577 (Mont. 1998) (the filing by a tribe of a tax lien off reservation against an on-reservation business was not a waiver of immunity); Gavle v. Little Six, Inc., 555 N.W.2d 284, 292–96 (Minn. 1996) (tribal corporation entitled to immunity from suit with respect to allegedly tortious conduct, some of which occurred off reservation, absent express waiver); Diver v. Peterson, 524 N.W.2d 288, 291 (Minn. Ct. App. 1994) (“tribal sovereign immunity applies to tribal officials acting in their official capacity, even where one element of a claim occurred outside the reservation”); North Sea Prods., Ltd. v. Clipper Seafoods Co., 595 P.2d 938 (Wash. 1979) (tribe not subject to garnishment proceeding to enforce judgment against worker employed at tribal enterprise’s off-reservation fish cannery). A few courts had reached a different conclusion. E.g., Hoover v. Kiowa Tribe, 909 P.2d 59, 62 (Okla. 1995) (“a contract between an Indian tribe and a non-Indian is enforceable in state court when the contract is executed outside of Indian country”); compare Padilla v. Pueblo of Acoma, 754 P.2d 845 (N.M. 1988) (allowing state court action to proceed against tribe because one sovereign’s immunity need not be recognized in the courts of another, because no constitutional or treaty provision prohibited the state’s exercise of jurisdiction over sovereign Indian tribes for off-reservation conduct, and because the recognition of such immunity as a matter of comity would not be appropriate because “[i]t is the policy of New Mexico to allow breach of written contract actions against the state”), with In re Greene, 980 F.2d 590, 594–95 (9th Cir. 1992) (criticizing Padilla for its failure “to recognize that the scope of tribal immunity in the courts of New Mexico was not wholly a question of New Mexico law” and that tribal sovereign immunity could not be abridged by unilateral state action; and holding that the tribe’s common law status “had an extraterritorial component” and so bankruptcy trustee could not sue a tribe solely on the basis of the tribe’s amenability to suit by the federal government). Commentators nonetheless had discussed the difficulty attendant to recognition of immunity from suit with respect to off-reservation activities. See generally Brian C. Lake, Note, The Unlimited Sovereign Immunity of Indian Tribal Business Operating Outside the Reservation: An Idea Whose Time Has Gone, 1996 Colum. Bus. L. Rev. 87 (1996); McLish, supra note 13, at 191–92.

See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973).

49

523 U.S. at 755; see also Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 213 (4th Cir. 2007) (although merely being subject to liability under 42 U.S.C. § 1981 would not deprive a tribe of its immunity from suit, “Alaska Native Corporations and their subsidiaries are not comparable sovereign entities” entitled to assert such immunity); cf. Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 24–25 (1st Cir. 2006) (en banc) (deeming “tribal sovereign immunity . . . [as] an incidence or subset of tribal sovereignty[,”] and overruling Aroostook Band of Micmacs v. Ryan, 404 F.3d 48 (1st Cir. 2005), insofar as it held that resolu50

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misgivings about the doctrine’s efficacy to leave the balancing of the sensitive policy, social, and economic interests implicated by tribal immunity from suit to Congress. It warrants remembering in this regard that the doctrine’s effect extends across the broad array of litigation that may involve tribes and thus can serve to prevent adjudication of legal disputes substantially different in character from those involved in the seminal line of cases commencing with Fidelity & Guaranty.51

tion of issues related to state regulatory authority and tribal immunity from suit is governed by distinct standards). 51 A repeated example of the impact of tribal immunity from suit is the claimed status of tribes or their officers as required parties under Fed. R. Civ. P. 19 in suits where their joinder is not feasible. E.g., Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 551–53 (4th Cir. 2006) (tribe was a necessary and indispensable party to a claim under 42 U.S.C. § 1981 alleging that employment preference provision in contract with casino management company discriminated based on race); Wilbur v. Locke, 423 F.3d 1101, 1111–15 (9th Cir. 2005) (tribe was a necessary and indispensable party in a suit challenging constitutionality of state statute that authorized governor to enter into contracts with Indian tribes concerning cigarette sales); EEOC v. Peabody W. Coal Co., 400 F.3d 774, 781 (9th Cir. 2005) (Rule 19 did not preclude joinder of tribe in suit brought by a federal agency against private party, even when Congress has not specifically abrogated tribal immunity, since tribe enjoys no immunity from suit by the United States); Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002) (tribes with existing compacts with the state for the operation of gaming casinos were necessary and indispensable parties to the action); Sac and Fox Nation v. Norton, 240 F.3d 1250, 1258–60 (10th Cir. 2001) (tribe not an indispensable party under Fed. R. Civ. P. 19 in action challenging Secretary of the Interior’s taking land into trust for tribe’s gaming operation because suit focused on propriety of Secretary’s actions whose interest was identical to tribe’s); Manybeads v. United States, 209 F.3d 1164, 1166 (9th Cir. 2000) (Hopi Tribe indispensable party with respect to constitutional challenge by Navajo tribal members to land accommodation agreement with Navajo Nation where, inter alia, the United States was incapable of representing the Hopi Tribe’s interests because it was obligated statutorily to “protect the property and personal rights of the individual Navajos subject to relocation” and thus “would stand on both sides of the question” if it purported to represent the Tribe’s interests); Davis v. United States, 192 F.3d 951, 960 (10th Cir. 1999) (rejecting contention that, once a tribe is determined to be a necessary party under Rule 19(a), “immunity is so compelling by itself as to eliminate the need to weigh the four Rule 19(b) factors[,]” and remanding for consideration of those factors); Thomas v. United States, 189 F.3d 662, 667 (7th Cir. 1999) (tribal council not an indispensable party to action concerned with validity of administrative decision overturning constitution-amendment election, since “[a]t its base, this lawsuit is a challenge to the way certain federal officials administered an election for which they were both substantively and procedurally responsible”); Taylor v. BIA, 325 F. Supp. 2d 1117, 1119–23 (S.D. Cal. 2004) (tribe was necessary and indispensable party in action filed by disenrolled plaintiffs seeking to enjoin BIA from impounding their cattle allegedly grazing on tribal land because suit directly implicated tribe’s membership determinations); Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313, 351–52 (N.D.N.Y. 2003) (Iroquois Confederacy was not necessary party where it disclaimed any interest in the disputed property); Artichoke Joe’s v. Norton, 216 F. Supp. 2d 1084 (E.D. Cal. 2002) (Indian tribes not necessary parties to suit challenging existing compacts because their interests were adequately represented by existing parties to the action), aff’d, 353 F.3d 712 (9th Cir. 2003); Native Am. Mohegans v. United States, 184 F. Supp. 2d 198 (D. Conn. 2002) (tribe indispensable party to challenge of settlement act by competing faction); Lebeau v. United States, 115 F. Supp. 2d 1172 (D.S.D. 2000) (tribes not indispensable parties when United States could protect their interests in suit by individual Indians challenging constitutionality of statutes giving tribes a portion of plaintiffs’ share of settlement fund); see also Comanche Nation v. United States, 393 F. Supp. 2d 1196, 1204–05 (W.D. Okla. 2005) (tribe’s permissive intervention under Fed. R. Civ. P. 24(b) mooted defendant’s argument that tribe was necessary and indispensable party); Laborde v. Pecot, 942 So. 2d 699, 707 (La. Ct. App. 2006) (tribe not an indispensable party in multiparty personal injury suit given intervening determination that hotel was not within Indian country during the relevant period, thereby eliminating the possibility of tribal court proceedings and state statutes identifying “a verdict comparatively assessing the fault of all actors as adequate” even when all actors may not be parties); Golden Oil Co. v. Chace Oil Co., 994 P.2d 772 (N.M. Ct. App. 1999) (tribe indispensable party in suit by company, which purchased oil and gas operating rights from tribe’s lessee, to compel lessee to execute lease assignment required by tribe); cf. State ex rel. Dewberry v. Kulongoski, 187 P.2d 220, 226–27 (Or. Ct. App. 2008) (tribe was required to be joined in any action under

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The decisions in Fidelity & Guaranty, Martinez, Citizen Band Potawatomi, and Manufacturing Technologies set out the core elements of tribal immunity from suit: The immunity is judge-made, not constitutional, in character and thus is subject to abrogation by Congress or waiver by a tribe; it applies to suits in federal or state court brought by any party other than the federal government; it applies without regard to the nature of the controversy itself, including where the dispute arises, or the requested relief; it applies without regard to whether the involved tribal activity is subject to regulation under valid federal or state law; it ordinarily does not preclude prospective relief against tribal officers or employees when their actions are alleged to violate federal or otherwise applicable state law; and it does not apply to actions taken by tribal members in their individual capacities. These basic principles, while easily distilled from Supreme Court precedent, nevertheless have led to substantial litigation. The result is a welter of sometimes difficult to reconcile cases best grouped under the general categories of congressional abrogation, tribal waiver, and the doctrine’s place in claims against tribal officers or employees. B. Current Application of the Tribal Sovereign Immunity Doctrine 1. Congressional abrogation Consonant with reasoning in Santa Clara Pueblo v. Martinez,52 strict sideboards exist on finding that Congress has manifested with requisite clarity its determination to abrogate tribal immunity from suit in a particular context. The abrogation question arises most commonly where tribes are subject to regulation under a statute of general applicability—itself an often vexing issue;53 legislation specific to Indian tribes such as Public Law No. 28054 or eastern land claim settlement acts; and compulsory process in federal and state court litigation where they are not parties.

state declaratory judgment statute—whose joinder provision applied to the exclusion of ordinary state procedural rules); see generally Matthew L.M. Fletcher, The Comparative Rights of Indispensable Sovereigns, 40 Gonz. L. Rev. 1 (2005) (extensively reviewing cases involving indispensability of tribal, state, and federal sovereigns in broad classes of Indian law topics, including natural resources cases, Indian land claims, tribal government operations, and gaming operations cases, with special emphasis on gaming compact cases and suggested strategies for tribal litigants). The Supreme Court also has approved Rule 19 dismissal in the context of foreign governments granted sovereign immunity under the Foreign Sovereign Immunities Act of 1976 under standards that leave little room for actions where such governments are required parties under Rule 19 but cannot be joined because of their statutorily granted immunity. Republic of Philippines v. Pimentel, 128 S. Ct. 2180, 2191 (2008) (“[prior] cases instruct us that where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign”). 436 U.S. 49 (1978).

52

See Chapter 1, part I.B.4 (discussing cases relevant to whether tribes are subject to statutes of general applicability). 53

54 Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321–1325, and 28 U.S.C. § 1360).

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a. Federal statutes of general applicability. Where a general federal regulatory statute is accompanied by a judicial enforcement mechanism and plainly encompasses tribes, courts appear uniform in finding congressional abrogation of tribal sovereign immunity. Examples include the 1974 Safe Drinking Water Act,55 the 1975 Hazardous Materials Transportation Act,56 and the Federal Debt Collection Act.57 Disputes begin to arise, however, when the statute’s scope is less clear with respect to the coverage of tribes. An important instance of potential difficulty in this regard is the Bankruptcy Code, which defines the term “governmental unit” to include, inter alia, any “foreign or domestic government.”58 The Ninth Circuit Court of Appeals has reasoned that “Indian tribes are domestic governments” and therefore subject to the express abrogation of sovereign immunity in 11 U.S.C. § 106(a).59 Other federal courts sitting in bankruptcy have reached an opposite conclusion.60 Various federal statutes have been deemed insufficient to abrogate tribal sovereign immunity merely because they constitute statutes of general applicability to which tribes are subject.61 An analogous, but thus far rarely addressed, issue

55 Pub. L. No. 93-523, 88 Stat. 1660 (1974) (codified as amended at 42 U.S.C. §§ 300f–300j-26); see Osage Tribal Council v. USDOL, 187 F.3d 1174, 1182 (10th Cir. 1999) (“where Congress grants an agency jurisdiction over all ‘persons,’ defines ‘persons’ to include ‘municipality,’ and in turn defines ‘municipality,’ to include ‘Indian Tribe[s],’ in establishing a uniform national scheme of regulation of so universal a subject as drinking water, it has unequivocally waived tribal immunity”). 56 Pub. L. 93-633, 88 Stat. 2156 (1975) (codified as amended at 49 U.S.C. §§ 5101–5128); see Pub. Serv. Co. v. Shoshone-Bannock Tribes, 30 F.3d 1203, 1206–07 (9th Cir. 1994) (finding tribes subject to suit under the preemption provision of the Hazardous Materials Transportation Act because that provision specifically referred to tribally imposed requirements in authorizing suits to determine whether nonfederal law has been preempted by the Act); N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 462 (8th Cir. 1993) (same). 57 28 U.S.C. §§ 3001–3008; see United States v. Weddell, 12 F. Supp. 2d 999 (D.S.D. 1998) (congressional abrogation under Federal Debt Collection Act by virtue of its including Indian tribes within the definition of “person[s]” who may be garnishees), aff’d per curiam, 187 F.3d 645 (8th Cir. 1999).

11 U.S.C. § 101(27).

58

Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1058 (9th Cir. 2004); cf. In re Greene, 980 F.2d 590, 597–98 (9th Cir. 1992) (tribal immunity not abrogated under prior version of § 106 with respect to preference claim by trustee). 59

60 Mayes v. Cherokee Nation (In re Mayes), 294 B.R. 145, 148 n.10 (B.A.P. 10th Cir. 2003) (noting split among bankruptcy courts over whether § 106(a) of Bankruptcy Code abrogates tribal sovereign immunity, and stating that tribes are “probably not” encompassed within the term “domestic government” to which section applies); In re Nat’l Cattle Cong., 247 B.R. 259, 265–67 (Bankr. N.D. Iowa 2000) (tribal immunity from suit not abrogated under § 106(a) of the Bankruptcy Code); see generally Greggory W. Dalton, Note, A Failure of Expression: How the Provisions of U.S. Bankruptcy Code Fail to Abrogate Tribal Sovereign Immunity, 81 Wash. L. Rev. 645, 662 (2006) (discussing division among courts over whether the Bankruptcy Code abrogates tribal immunity from suit, and arguing that “[t]he mere fact that the general phrase [‘other foreign or domestic government’ in 11 U.S.C. § 101(27)] logically seems to encompass Indian tribes does not suffice to meet the unequivocal expression standard”). 61 Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004) (per curiam) (no abrogation under Family and Medical Leave Act); Sanderlin v. Seminole Tribe, 243 F.3d 1282 (11th Cir. 2001) (Congress did not abrogate tribal immunity in the Vocational Rehabilitation Act notwithstanding tribe’s acceptance of federal funds requiring compliance with statute); Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 357 (2d Cir. 2000) (refusing to find abrogation of tribal immunity from suit under the Copyright Act by private parties where nothing in the statute purports to effect such abrogation; while the law is of general application, “the fact

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is when federal constitutional provisions may supersede the federal common law–based immunity doctrine.62 Unquestioned, however, is that a simple grant of federal court jurisdiction over a particular class of claim—such as federal questions—does not effect abrogation.63 b. Indian tribe-specific statutes. There seems no question that the principal source of state civil adjudicatory authority within Indian country—Public Law 280—does not abrogate a tribe’s immunity from suit.64 That conclusion comports with the statute’s focus on adjudication of disputes “between Indians or to which Indians are parties” and the absence of any reference to controversies involving tribes.65 Public Law 280’s civil component mentions tribes only in the context of disclaiming any intent to authorize regulation under

that a statute applies to Indian tribes does not mean that Congress abrogated tribal immunity [from suit] in adopting it”); Fla. Paraplegic Ass’n v. Miccosukee Tribe, 166 F.3d 1126 (11th Cir. 1999) (although Title III of the Americans with Disabilities Act applies to a tribe because it is a statute of general applicability, the tribe is not subject to suit under the Act since “Congress declined to abrogate Indian tribes’ sovereign immunity from suit either by direct statement in Title III itself or by reference to other statutes having that effect”); see generally Eagle H. Robinson, Comment, Infringing Sovereignty: Should Federal Courts Protect Patents and Copyrights from Tribal Infringement?, 32 Am. Indian L. Rev. 233, 255 (2007–2008) (arguing that the balancing standard adopted in Coeur d’Alene Tribal Farm v. Donovan, 751 F.2d 1113 (9th Cir. 1985), with respect to application of statutes of general applicability to tribes governs and that, under such standard, abrogation should be found; otherwise, inter alia, tribal “immunity may become a sword, to be wielded for economic gain, rather than a shield, to protect against tribal loss”). 62 See Agua Caliente Band of Cahuilla Indians v. Superior Ct., 148 P.3d 1126, 1136 (Cal. 2006) (accepting argument that “the state’s enforcement of [campaign contribution disclosure statute] is an exercise of . . . powers” protected by the Tenth Amendment and the Guarantee Clause and therefore not subject to the ordinary federal common law rule); cf. Vann v. Kempthorne, 467 F. Supp. 2d 56, 69 (D.D.C. 2006) (provisions of an 1866 treaty, which abolished slavery within the Cherokee Nation and required the tribe to grant liberated slaves and their descendants “all the rights of native Cherokees,” incorporated the principles of the Thirteenth Amendment, as well as the 1866 Civil Rights Act, and embodied unequivocal congressional “intent to abrogate the tribe’s immunity with regard to racial oppression prohibited by the Thirteenth Amendment”); see generally Gary Goldsmith, Big Spenders in State Elections—Has Financial Participation by Indian Tribes Defined the Limits of Tribal Sovereign Immunity from Suit?, 34 Wm. Mitchell L. Rev. 659, 698–99 (2008) (criticizing the reasoning in Agua Caliente, and arguing that the case could have been more narrowly decided on grounds consistent with authority allowing suits for prospective relief against tribal officers acting in violation of state law); Lydia Edwards, Comment, Protecting Black Tribal Members: Is the Thirteenth Amendment the Linchpin to Securing Equal Rights Within Indian Country?, 8 Berkeley J. Afr.-Am. L & Pol’y 122 (2006) (arguing that the claims of descendants from freed slaves of the Cherokee and Seminole Tribes are “sui generis” and that, since “[c]ourts have found that the Thirteenth Amendment reaches Native American tribes[,] . . . the enforcement legislation should also reach them”).

E.g., Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1011 (10th Cir. 2007).

63

See Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877, 892 (1986) (“[w]e have never read Pub.L. 280 to constitute a waiver of tribal sovereign immunity”); California v. Quechan Tribe, 595 F.2d 1153, 1156 (9th Cir. 1979) (“[n]either the express terms of [Public Law 280], nor the Congressional history of the statute, reveal any intention by Congress for it to serve as a waiver of a Tribe’s sovereign immunity”); Ackerman v. Edwards, 17 Cal. Rptr. 3d 517, 522 (Ct. App. 2004) (Public Law 280 does not “confer[] jurisdiction in the states over the tribes themselves”); Gross v. Omaha Tribe, 601 N.W.2d 82, 83 (Iowa 1999) (tribe’s immunity against suit for injury suffered at casino was not abrogated under 25 U.S.C. § 1322; “[t]he sovereign-immunity question is separate and distinct from any civil-action jurisdiction”); see also Bishop Paiute Tribe v. County of Inyo, 291 F.3d 549, 556–57 (9th Cir. 2002) (following Quechan Tribe), vacated and remanded on other grounds, 538 U.S. 701 (2003). 64

28 U.S.C. § 1360.

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state law of certain matters and to preserve applicability of tribal law in some instances.66 Whether the criminal component of Public Law 280 could be used to prosecute tribes appears unconsidered by any appellate court.67 In contrast to Public Law 280, which potentially applies to any Indian country and addresses only adjudicatory authority, are various statutes enacted to resolve land claims by, most typically, eastern tribes.68 These statutes often authorize application of state law to settlement lands69 and, in so doing, have provoked litigation over the question whether such authorization subjects the tribes or their officials to state court jurisdiction—with the answer depending upon the particular provision’s language and the nature of the controversy.70

Id. § 1360(b) and (c).

66

18 U.S.C. § 1162. Unlike its civil counterpart, § 1162(a) extends state criminal jurisdiction to Indian country generally within those states that either were congressionally mandated or voluntarily assumed such jurisdiction. 67

68 Rhode Island Indian Claims Settlement Act, 25 U.S.C. §§ 1701–1716; Maine Indian Claims Settlement Act, id. §§ 1721–1735; Florida Indian (Miccosukee) Land Claims Settlement Act, id. §§ 1741–1750e; Connecticut Indian Land Claims Settlement Act, id. §§ 1751–1760); Massachusetts Indian Land Claims Settlement Act, id. §§ 1771–1771i; Florida Indian (Seminole) Land Claims Settlement Act, id. §§ 1772–1772g; see also id. §§ 1300q–1300q-7 (Ysleta del Sur Pueblo restoration to federal supervision). 69 25 U.S.C. § 1708(a); id. § 1746; id. § 1725; id. § 1777e. Certain of the settlement acts, however, incorporate by reference Public Law 280’s provisions. Id. § 1300q-4(f); id. § 1755; id. § 1772d(d). 70 Compare Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 26 (1st Cir. 2006) (en banc) (Rhode Island Indian Claims Settlement Act abrogated tribe’s immunity from execution of state court search warrant); Atkins v. Penobscot Nation, 130 F.3d 482 (1st Cir. 1997) (Maine Indian Claims Settlement Act subjected tribe to state jurisdiction except as to “internal tribal matters”); Texas v. Ysleta del Sur Pueblo, 79 F. Supp. 2d 708, 710–11 (W.D. Tex. 1999) (federal restoration act that explicitly extended state prohibition on gaming to the tribe’s reservation abrogated tribal immunity against state enforcement of gaming laws), aff’d, 237 F.3d 631 (5th Cir. 2000); Boudman v. Aroostook Band of Micmac Indians, 54 F. Supp. 2d 44, 46–48 (D. Me. 1999) (Micmac Tribe not afforded immunity from suits based on “internal tribal matters” provision applicable to other tribes in the Maine Indian Claims Settlement Act); and Kitras v. Town of Aquinnah, 833 N.E.2d 157, 167–68 (Mass. App. Ct. 2005) (provisions in Massachusetts Indian Land Claims Settlement Act making transfer of easements over settlement lands subject to state law waives involved tribe’s sovereign immunity for purposes of state court action to establish easement of necessity by adjacent landlocked neighbors), with Maynard v. Narragansett Indian Tribe, 984 F.2d 14, 16 (1st Cir. 1993) (refusing to imply waiver of sovereign immunity under the Rhode Island Indian Claims Settlement Act with respect to nonmember claim against tribe for trespass on lands to which the tribe relinquished all title under the act); Wampanoag Tribe v. Massachusetts Comm’n Against Discrimination, 63 F. Supp. 2d 119, 124 (D. Mass. 1999) (provisions in Massachusetts Indian Land Claims Settlement Act giving state jurisdiction over settlement lands did not authorize state to apply civil rights law to the tribe itself absent explicit abrogation of sovereign immunity); Silva v. Ysleta del Sur Pueblo, 28 S.W.3d 122, 125 (Tex. App. 2000) (grant of adjudicatory jurisdiction under 25 U.S.C. § 1300g-4 “merely authorize[d] the State of Texas to exercise the type of jurisdiction described in [the federal statute] . . . [but] does not mandate the surrender of tribal immunity”); and Shannon v. Houlton Band of Maliseet Indians, 54 F. Supp. 2d 35, 38–41 (D. Me. 1999) (provisions of Maine Indian Claims Settlement Act subjecting tribes to state law generally did not affect such tribes’ exclusion from coverage under Title VII of the Civil Rights Act); cf. Francis v. Pleasant Point Passamaquoddy Hous. Auth., 740 A.2d 575, 577–78 (Me. 1999) (housing authority whose governing board was appointed by tribe but which was organized under state law did not constitute the tribe for purposes of applying the “internal tribal affairs” provision of the Maine Indian Claims Settlement Act); Francis v. Dana-Cummings, 868 A.2d 196, 198–99 (Me. 2005) (reaffirming Pleasant Point Passamaquoddy, and adding that individual tribal members cannot invoke the immunity protections of “the internal tribal affairs” provision of the Maine Indian Claims Settlement Act); see generally Erik S. Laakkonen, Up in Smoke? Narragansett, Hicks, and the Erosion of Tribal Sovereign Immunity,11 J. Gender Race & Justice 453, 470 (2008) (criticizing First Circuit’s Narragansett decision, and agreeing with the dissent’s contention that “the majority’s application of sovereign immunity has implications for similarly-situated

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Abrogation issues additionally have arisen under other laws that have application to specific tribes or Indian country more broadly, and there too the outcome has been dictated by the statute’s formulation and the involved facts.71 Recent litigation in this regard has focused on the Indian Gaming Regulatory Act72 and 18 U.S.C. § 1161, which removes federal criminal sanctions for alcohol-related activities to the extent compliant with state and tribal law.73 c. Compulsory process. Courts have divided over whether tribes or their officials are subject to nonparty subpoenas issued by federal courts, at least where criminal proceedings and attendant constitutional rights may be affected. The leading case declining to find abrogation is United States v. James,74 where the Ninth Circuit Court of Appeals held that tribal sovereign immunity required quashing subpoena duces tecum issued at criminal defendant’s re-

Eastern tribes, and the ‘majority’s treatment of tribal sovereign immunity will not be limited to the facts of [the Narragansett] case’ ”). 71 Compare Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 921–23 (9th Cir. 1995) (tribe’s immunity against award of prejudgment interest abrogated under Navajo-Hopi Settlement Act, which authorized court to use “all available remedies” in enforcing judgments obtained pursuant to Act), with Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1265–66 (10th Cir. 1998) (refusing to infer abrogation under Ute Partition and Termination Act in suit over management of tribal assets because, inter alia, “[f]inding a waiver of tribal immunity based on the purpose of the [Act], rather than an unequivocal expression of intent to waive immunity, is inconsistent with both the language and the analysis of the Supreme Court in Santa Clara Pueblo”); Evans v. McKay, 869 F.2d 1341, 1345–47 (9th Cir. 1989) (refusing to find abrogation either in liability insurance provision of the Indian Self-Determination Act, since it addresses only the rights and liability of insurance carriers and not tribes, or in standard Bureau of Indian Affairs contract under which tribes indemnify the United States); and Big Spring v. USBIA, 767 F.2d 614, 617–18 (9th Cir. 1985) (tribal sovereign immunity not abrogated under 25 U.S.C. § 345, which authorizes suits against the United States with respect to claims that the complainant has been deprived wrongly of an allotment interest); see generally Seielstad, supra note 13, at 717–29 (discussing various Indian-related statutes where Congress has abrogated tribal immunity); cf. Walton v. Tesuque Pueblo, 443 F.3d 1274, 1279–80 (10th Cir.) (2006) (Indian tribe’s waiver, pursuant to Indian Self-Determination and Education Assistance Act, of sovereign immunity with respect to suits arising out of its performance of contractual duties did not confer jurisdiction on district court in action over tribe’s revocation of non-Indian vendor’s flea market permit; vendor was not a party to a selfdetermination contract, and his claims did not arise from any such contract). 72 Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 18 U.S.C. §§ 1166–1168 and 25 U.S.C. §§ 2701–2721); see Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 933 (7th Cir. 2008) (tribal immunity from suit abrogated under 25 U.S.C. § 25 U.S.C. § 2710(d)(7)(A)(ii) “when the alleged violation relates to a compact provision agreed upon pursuant to the [Indian Gaming Regulatory Act] negotiation process”—i.e., a provision among those that a compact is authorized to address under 25 U.S.C. § 2710(d)(3)(C)); Dewberry v. Kulongoski, 406 F. Supp. 2d 1136, 1145–46 (D. Or. 2005) (tribal immunity from suit not abrogated under Indian Gaming Regulatory Act with respect to claim by private parties that gaming compact was unlawful). 73 Compare Bittle v. Bahe, 2008 WL 314902 (Okla. 2008) (tribal sovereign immunity against dram shop–based personal injury claim abrogated by requirement in § 1161 for compliance with state law), with Foxworthy v. Puyallup Tribe of Indians Ass’n, 169 P.3d 53, 57 (Wash. Ct. App. 2007) (§ 1161’s waiver of tribal sovereignty extends only to the states’ regulation of alcohol licensing and distribution and not to “private tort lawsuits in state court”); Filer v. Tohono O’Odham Nation Gaming Enter., 129 P.3d 78, 80–85 (Ariz. Ct. App. 2006) (§ 1161 “does not even mention tribal immunity, much less waive it for private dram shop actions”); and Holguin v. Ysleta del Sur Pueblo, 954 S.W.2d 843, 854 (Tex. App. 1997) (tribal sovereign immunity is “not waived for a private suit brought under the Texas Dram Shop Act”).

980 F.2d 1314 (9th Cir. 1992).

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quest.75 The same result has been reached where nonparty civil subpoenas are involved.76 More numerous are decisions that, at least in criminal proceedings, have rejected immunity claims by tribes or their officials, including district courts in the Ninth Circuit itself.77 The latter typically have not relied on abrogation under the Federal Rules of Criminal Procedure but instead found denial of access to tribal records inconsistent with due process and other constitutional guarantees or the existence of criminal jurisdiction over Indian country generally—an issue not specifically addressed in James.78 Reliance on general constitutional considerations, logically extended, eliminates any distinction between federal and state court process for criminal proceeding purposes.79 This issue likely will continue to arise in varied contexts, and whether James’s view on the abrogation question will prevail remains to be seen. 2. Tribal waiver Questions related to the waiver of tribal sovereign immunity arise in various contexts. Three categories capture a large proportion of the cases: contract waiver, litigation-related waiver, and “sue and be sued” provision-related waiver. It is important to remember that the first and third categories require determination of not only whether consent to suit exists but also the forum

Id. at 1320.

75

Catskill Devel., L.L.C. v. Park Place Enter. Corp., 206 F.R.D. 78 (S.D.N.Y. 2002). Here, a casino developer sued a competitor for tortious interference with its relationship with an Indian tribe. Id. at 81–82. On motions to quash subpoenas served upon tribal members, tribal attorneys, and the tribe’s bank, the court ruled that the tribal gaming authority had waived its sovereign immunity broadly and that tribal members enjoyed no sovereign immunity as individuals, “except when they are tribal officials acting in their official capacity and within the scope of their authority.” Id. at 89–90. Accordingly, such individuals could be questioned regarding any matters relevant to an action that “do not involve matters of tribal governance.” Id. at 90. 76

77 United States v. Juvenile Male 1, 431 F. Supp. 2d 1012, 1018 (D. Ariz. 2006) (James did not control “because the defendant there did not raise constitutional challenges to the claim of immunity[,]” and tribe’s motion to quash subpoena for records of tribal school and social services agency therefore was denied in light of, inter alia, constitution-based considerations); United States v. Snowden, 879 F. Supp. 1054, 1057 (D. Or. 1995) (distinguishing James, and denying motion to quash subpoenas issued at defendant’s request); see also United States v. Velarde, 40 F. Supp. 2d 1314, 1316–17 (D.N.M. 1999) (finding James unpersuasive, and denying motion to quash subpoenas in criminal proceeding issued at prosecution’s and defendant’s requests); see generally Jon W. Monson, Note, Tribal Immunity from Process: Limiting the Government’s Power to Enforce Search Warrants and Subpoenas on American Indian Land, 56 Rutgers L. Rev. 271, 295–302 (2003) (discussing decisional authority, and proposing six “canons” to determine whether service of process is inconsistent with tribal sovereign immunity). 78 Velarde, 40 F. Supp. 2d at 1315–16; Snowden, 879 F. Supp. at 1057; but see United States v. Boggs, 493 F. Supp. 1050, 1054 (D. Mont. 1980) (denying motion to quash grand jury subpoena directed to tribe with respect to alleged embezzlement and theft from tribal organization in violation of 18 U.S.C. § 1163 on the ground that § 1163 abrogated tribal immunity). 79 See generally Laakkonen, supra note 70, at 495 (reading James to conclude “[i]n essence . . . that the tribe’s interest in its own immunity from federal criminal process outweighed the defendant’s constitutional right to a defense”); Milton Hirsh, “The Voice of Adjuration”: The Sixth Amendment Right to Compulsory Process Fifty Years After United States ex rel. Touhy v. Ragen, 30 Fla. St. U.L. Rev. 81, 135 (2002) (“the inability of a state defendant to enforce his subpoena frustrates more than that defendant’s constitutional rights; it also frustrates the state court’s truth-seeking function”).

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where such suit may be brought. The “where” issue may prove vexing when the waiver provision is silent or arguably ambiguous on the permissible forum for either sovereign immunity or substantive jurisdictional purposes. a. By agreement. The first category of decisions involves the effect of provisions in individual contracts.80 Commercial arbitration clauses have been a particularly fertile source of litigation and provide a good guide to what language satisfies the stringent waiver standard.81 In Pan American Co. v. Sycuan Band of Mission Indians82 a controversy arose between a tribe and a company with which the tribe contracted to construct and operate a reservation bingo enterprise. The parties’ contract contained an arbitration provision committing all disputes to arbitration and subjecting the parties to the rules and regulations of the American Arbitration Association.83 The bingo contractor then sued the tribe, seeking not enforcement of the arbitration provision but a determination of the dispute’s merits.84 The Ninth Circuit Court of Appeals concluded that the arbitration clause “simply [did] not contain that unequivocal expression of tribal consent to suit necessary to effect a waiver of the [tribe’s] sovereign immunity” with respect to resolving the substantive breach of contract claim because, “[a]bsent an affirmative textual waiver in the terms of a contractual

80 E.g., Dawavendewa v. Salt River Project Agric. Improvement and Power Dist., 276 F.3d 1150 (9th Cir. 2002) (holding that an unsuccessful applicant for a position at a power-generating facility located on an Indian reservation could not bring a Title VII action challenging the tribal employment preference contained in the operator’s lease agreement with the tribe because the tribe was an indispensable party incapable of joinder given its sovereign immunity). 81 The textual discussion assumes an affirmative response to the antecedent question whether a valid contract has been entered into by the parties. Compare Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Kean-Argovitz Resorts, 249 F. Supp. 2d 901, 910 (W.D. Mich. 2003) (no need to reach waiver issue where contract containing arbitration provision void ab initio), rev’d, 383 F.3d 512, 515–18 (6th Cir. 2004) (tribe’s allegation that development agreement was void under the Indian Gaming Regulatory Act challenged the substance rather than the existence of the agreement and was therefore subject to the agreement’s arbitration clause), with Iowa Mgmt. Consultants, Inc. v. Sac and Fox Tribe, 656 N.W.2d 167, 171 (Iowa 2003) (if the entire management agreement is invalid under federal law due to lack of National Indian Gaming Commission approval, then arbitration clause is also invalid), and Bradley v. Crow Tribe, 67 P.3d 306 (Mont. 2003) (affirming district court determination that contractual undertaking established, but reversing determination that choice of law and venue provision did not constitute adequate waiver of immunity from suit); cf. Rush Creek Solutions, Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406–08 (Colo. Ct. App. 2004) (tribal officer with authority to sign agreements on tribe’s behalf had apparent authority to waive sovereign immunity in purchase agreement despite no express authority to do so).

884 F.2d 416 (9th Cir. 1989).

82

The arbitration agreement provided that “[i]n the event a dispute arises between its parties . . . either party may seek arbitration of said dispute and both parties do hereby subject themselves to the jurisdiction of the American Arbitration Association and do agree to be bound by and comply with its rules and regulations as promulgated from time to time.” Id. at 419. 83

84 Id. at 417. The contractor, simultaneously with filing the federal court action, had invoked the arbitration procedure, but its claim was held nonarbitrable. Id.

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agreement or tribal constitution, federal courts have consistently declined to find tribal consent to federal jurisdiction.”85 In contrast to the bingo operator’s approach in Pan American, a housing contractor successfully argued in Rosebud Sioux Tribe v. Val-U-Construction Co. of South Dakota, Inc.86 that a similarly worded arbitration provision constituted a waiver of a tribe’s immunity for purposes of attempting to enforce an arbitration award.87 The Eighth Circuit Court of Appeals characterized the contract language as “spare but explicit” and ruled that, “[b]y designating arbitration in accordance with specified arbitration rules as the forum for dispute resolution, the parties clearly intended a waiver of sovereign immunity with respect to resolving disputes under the contract.”88 The court held further that two tort causes of action asserted by the nontribal party were barred by the tribe’s immunity since the waiver was limited to contractual claims.89 Although there was a question as to the precise reach of Pan American, most courts viewed typical commercial arbitration provisions as waiving a tribe’s immunity both for purposes of the arbitration itself and for any ensuing judicial enforcement proceedings, but as not waiving tribal immunity for any other form of relief. Other federal circuit courts, in particular, reached conclusions comparable to that in Val-U-Construction.90 By analogy, it also appeared

Id. at 419.

85

50 F.3d 560 (8th Cir. 1995); see also Val-U Constr. Co. v. Rosebud Sioux Tribe, 146 F.3d 573, 577 (8th Cir. 1998) (stating that “while the Supreme Court has expressed its protectiveness of tribal sovereign immunity by requiring that any waiver be explicit, it has never required the invocation of ‘magic words’ stating that the tribe hereby waives its sovereign immunity”). 86

87 The arbitration clause provided that “[a]ll questions of dispute under this Agreement shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.” 50 F.3d at 562.

Id.

88

Id. at 563. Similarly, because a waiver of tribal sovereign immunity is a voluntary act, a tribe may prescribe the terms and conditions of any waiver, and any such limitations upon the tribe’s consent to be sued must be “strictly construed and applied.” Mo. River Servs., Inc. v. Omaha Tribe, 267 F.3d 848, 852 (8th Cir. 2001) (agreement containing tribe’s waiver of sovereign immunity specifically limited the property upon which judgment could be executed, and a subsequent amendment to the agreement not approved by the Bureau of Indian Affairs was invalid). 89

90 See Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659–60 (7th Cir. 1996) (finding waiver under arbitration provision committing all disputes under contract to arbitration, subjecting arbitration to American Arbitration Association rules, and making arbitration award enforceable in any court with jurisdiction); compare Tamiami Partners, Ltd. v. Miccosukee Tribe, 177 F.3d 1212, 1224–25 (11th Cir. 1999) (tribe contractually waived immunity from suit with respect to claims seeking to enforce arbitration award and to compel arbitration of disputes arising out of agreement), with Tamiami Partners, Ltd. v. Miccosukee Tribe, 63 F.3d 1030, 1048–49 (11th Cir. 1995) (contract provision waiving immunity against suit to compel arbitration or enforce arbitration award did not waive immunity with respect to breach of contract claim seeking damages); cf. Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 313 F.3d 1087 (8th Cir. 2002) (waiver of immunity in one agreement does not allow action to proceed against tribe, which alleges violation of separate, although related, agreement). State appellate courts reasoned similarly. See, e.g., Great W. Casinos, Inc. v. Morongo Band of Mission Indians, 88 Cal. Rptr. 2d 828 (Ct. App. 1999); Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 826 P.2d 751, 754–55 (Alaska 1992); Val/Del, Inc. v. Superior Ct., 703 P.2d 502, 508–09 (Ariz. Ct. App. 1985); Native Vill. of Eyak v. GC Contractors, 658 P.2d 756, 760–61 (Alaska 1983); but see Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108, 113 (S.D. 1998) (tribal chairman’s agreement to participate

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likely that a contractual provision selecting a particular nontribal judicial forum for resolution of disputes, especially if coupled with a choice of nontribal law as governing, would form an adequate basis for waiver.91 Merely specifying that, upon contractual default, the aggrieved party will have “such . . . rights and remedies provided by law,” however, could well be found insufficient to constitute a waiver.92 The Supreme Court eventually supplied substantial guidance in this area in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe.93 There,

in arbitration of employment dispute did not waive tribe’s immunity, since “[a] waiver must be clear and unequivocal and must issue from a tribe’s governing body, not from unapproved acts of tribal officials”). 91 See Altheimer & Gray v. Sioux Mfg. Co., 983 F.2d 803 (7th Cir. 1993) (deferral to tribal court inappropriate where tribal corporation had consented to suit in Illinois state or federal court); compare United States v. Oregon, 657 F.2d 1009, 1016 (9th Cir. 1981) (consent to suit reflected in fish management agreement providing for federal court resolution of disputes and for continued jurisdiction of court over underlying controversy); Building Inspector v. Wampanoag Aquinnah Shellfish Hatchery Corp., 818 N.E.2d 1040, 1048–51 (Mass. 2004) (tribe waived sovereign immunity in a federally approved land settlement agreement by agreeing to hold land “in the same manner, and subject to the same laws, as any other Massachusetts corporation”); Warburton/Buttner v. Superior Ct., 127 Cal Rptr. 2d 706, 722 (Ct. App. 2002) (because an effective tribal waiver of sovereign immunity may be established by choice of law provision executed by authorized person together with statement that tribe would not assert immunity, discovery should be allowed to establish the trial court’s jurisdiction); and Smith v. Hopland Band of Pomo Indians, 115 Cal. Rptr. 2d 455, 462–63 (Cal. App. 2002) (tribe waived sovereign immunity in contract with architect that contained arbitration and choice of California law clauses because tribal council authorized chairperson to negotiate and execute contract, was aware of its terms, and approved contract by resolution), with McClendon v. United States, 885 F.2d 627, 632 (9th Cir. 1989) (entry into settlement agreement filed with court in action over landownership did not constitute consent to subsequent suit to enforce lease related to the land, where settlement agreement contained no waiver of immunity); Danka Funding Co. v. Sky City Casino, 747 A.2d 837 (N.J. Super. Law Div. 1999) (contract provision selecting law of state where processing center located and consenting to “jurisdiction of any local, state, or federal court located within such state” insufficient to effect waiver of tribal immunity). 92 Am. Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1376 (8th Cir. 1985); see also Sanderlin v. Seminole Tribe, 243 F.3d 1282 (11th Cir. 2001) (even though tribe’s chief signed contracts agreeing to comply with Vocational Rehabilitation Act, he had no actual or apparent authority to waive immunity when tribal ordinance required approval by tribal council for waiver); Dillon v. Yankton Sioux Tribe, 144 F.3d 581, 584 (8th Cir. 1998) (tribal resolution that permitted tribe’s housing authority to waive immunity itself did not effect waiver, and authority’s agreement to be bound by civil rights requirements in Title 24 of the Code of Federal Regulations did not constitute waiver since none of the regulations mandated such waiver); World Touch Gaming, Inc. v. Massena Mgmt., LLC, 117 F. Supp. 2d 271 (N.D.N.Y. 2000) (clause contained in lease agreement executed by manager of tribe’s casino waiving immunity was ineffective when tribe’s constitution specified that only tribal council could waive immunity); Tribal Smokeshop, Inc. v. Alabama-Coushatta Tribes, 72 F. Supp. 2d 717, 719 (E.D. Tex. 1999) (mere fact that contract provided a method for calculating damages was insufficient basis for finding waiver of immunity); Chayoon v. Sherlock, 877 A.2d 4, 8–9 (Conn. App. Ct. 2005) (reference to Family and Medical Leave Act in tribe’s employment forms did not waive sovereign immunity); Miccosukee Tribe v. Napoleoni, 890 So. 2d 1152, 1154 (Fla. Dist. Ct. App. 2004) (writ of prohibition against further administrative proceedings before Judge of Compensation Claims was warranted because mere purchase of workers’ compensation policy did not constitute waiver); White Mountain Apache Tribe v. Industrial Comm’n, 696 P.2d 223, 228–29 (Ariz. Ct. App. 1985) (purchase of workers’ compensation insurance coverage, whose terms were subject to state law, did not waive immunity); cf. Ledoux v. Grand Casino-Coushatta, 954 So. 2d 902, 906 (La. Ct. App. 2007) (sovereign immunity waiver effected by gaming compact provision authorizing aggrieved patrons to “seek their remedy through a legal action or proceeding” in the event mediation fails); Sokaogan Gaming Enter. Corp. v. Tushie-Montgomery Assocs. Inc., 86 F.3d 656, 660 (7th Cir. 1996) (distinguishing American Indian Agricultural Credit but not “suggest[ing] that we agree with it”).

532 U.S. 411 (2001).

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a tribe had contracted with a construction firm to roof a tribally owned building located off reservation on nontrust land. The parties’ agreement provided that all claims and disputes were to be decided by arbitration and that the ensuing award could be enforced “in any court having jurisdiction thereof.”94 The contract additionally specified as controlling the law of the “place where the project was located”—in this instance Oklahoma.95 The Court found that the contract possessed the “requisite clarity” to waive tribal immunity from suit to enforce the arbitration award that the contractor had secured, since the arbitration clause extended “to all contract-related disputes” and since, “[b]y selecting Oklahoma law . . . to govern the contract, . . . the parties have effectively consented to confirmation of the award ‘in accordance with’ the Oklahoma Uniform Arbitration Act.”96 In rejecting the tribe’s argument that the contract provided for dispute resolution without waiving immunity from suit, the Court observed that the dispute resolution regime has a real world objective; it is not designed for regulation of a game lacking practical consequences. And to that real world end, the contract specifically authorizes judicial enforcement of the resolution arrived at through arbitration.97

The Court’s decision stands for the general proposition that, while clarity of expression is essential to a tribe’s waiver of immunity from suit,98 particular words of art are not, and that the purported waiver provisions must be read in their entirety and with an eye to their practical purposes. In light of C & L Enterprises, lower courts presumably will find waiver of tribal immunity from suit to compel arbitration or to enforce arbitration awards where authorized by the parties’ agreement.99 Although waiver issues related to contracts typically arise in the context of litigation between the parties, the impact of waiver, or claimed waiver, provisions can extend beyond purely bilateral disputes. This has taken place recently with respect to claims predicated on gaming-related activities subject

Id. at 414.

94

Id. at 415.

95

Id. at 419.

96

Id. at 422.

97

E.g., Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir. 2006) (employment application provision stating that the applicant “could be terminated ‘for any reason consistent with applicable state or federal law’ ” did not waive tribal immunity from wrongful discharge claims). 98

99 Cf. Bank One v. Shumake, 281 F.3d 507, 515–16 (5th Cir. 2002) (declining to extend C & L Enterprises to contracts between commercial entities and individual tribal members for contracts entered into on reservation where effect would be to allow members to waive tribal court exhaustion requirement); Doe ex rel. J.H. v. Santa Clara Pueblo, 154 P.3d 644, 651 (N.M. 2007) (C & L Enterprises authorizes tribes to select state court forum to resolve gaming compact–related disputes); Campo Band of Mission Indians v. Bluehawk, 39 Cal. Rptr. 3d 875, 881–82 (Ct. App. 2006) (applying C & L Enterprises, and finding tort liability waiver in tribe’s gaming compact with the state).

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to state-tribal compacts under the Indian Gaming Regulatory Act.100 Insurance contracts similarly have been a source of disputes over waiver issues.101 b. In litigation. The second context in which the waiver of tribal sovereign immunity may occur is litigation, although courts rarely find waiver here. The decision in United States v. United States Fidelity & Guaranty Co.102 established that merely initiating a lawsuit does not constitute consent to suit in the form of a counterclaim, although a defendant may recoup against a

100 Compare Lawrence v. Barona Valley Ranch Resort and Casino, 64 Cal. Rptr. 3d 23, 27–28 (Ct. App. 2007) (although the gaming compact required the tribe to purchase liability insurance for patron claims and thereby waived immunity from suit, the “waiver did not constitute consent to suit in state court” since the tribe “was permitted to choose the forum for resolution of [negligence] claims and the terms governing the process for such resolution”); Buzulis v. Mohegan Sun Casino, 871 N.E.2d 527, 529–30 (Mass. App. Ct. 2007) (state court lacked jurisdiction over patron’s personal injury suit where the gaming compact preserved sovereign immunity and tribal law directed all such claims into the tribal gaming court); Ortego v. Tunica-Biloxi Indians, 865 So. 2d 985, 996 (La. Ct. App. 2004) (gaming compact provision that Louisiana law applied where the compact was silent on an issue did not waive tribe’s immunity from suit under state workers’ compensation statute; immunity from “tribal sovereign immunity cannot be inferred—instead, it must be expressly waived”); Bonnette v. Tunica-Biloxi Indians, 873 So. 2d 1, 6 (La. Ct. App. 2003) (commitment by tribe in gaming compact to “[p]reserve the full territorial and subject matter jurisdiction of the State” did not effect waiver of immunity from suit in state court by employees and others alleging personal injury; “[c]onsidering that the compact is an agreement between the Tribe and the State, we do not find the [compact] language . . . represents the Tribe’s consent to be sued by a third party in state court”), overruled in part on other grounds, Laborde v. Pecot, 942 So. 2d 699 (La. Ct. App. 2006); Gallegos v. Pueblo of Tesuque, 46 P.3d 668 (N.M. 2002) (rejecting contention that provision in gaming compact, which contained a waiver of immunity with respect to personal injury claims by casino patrons, applied since, subsequent to the alleged injury, the compact was declared invalid on the basis of the governor’s lack of authority to bind the state); and Kizis v. Morse Diesel Int’l, Inc., 794 A.2d 498 (Conn. 2002) (tort claim against the tribal gaming authority and non-Indian employees arising from a slip-and-fall on casino premises must be brought before the tribal gaming disputes court established pursuant to gaming compact with state; tribe did not consent in agreement or otherwise to state jurisdiction over private actions involving matters that occurred on tribal land), with Ledoux v. Grand Casino–Coushatta, 954 So. 2d 902, 906 (La. Ct. App. 2007) (sovereign immunity waiver effected by gaming compact provision authorizing aggrieved patrons to “seek their remedy through a legal action or proceeding”); Campo Band of Mission Indians v. Bluehawk, 39 Cal. Rptr. 3d 875, 881–83 (Ct. App. 2006) (because tribe’s gaming compact “unambiguously” required creation of a tort remedy for casino patrons, the trial court properly deemed mandatory an arbitration provision in the tribal gaming regulation claimed by tribe to be discretionary; tribe’s liability was limited to amount of insurance coverage required by compact; trial court did not have jurisdiction to resolve procedural arbitrability issue but could compel arbitration to determine if plaintiff complied with procedural requirements in tribal gaming regulation); cf. see generally Matthew L.M. Fletcher, The Comparative Rights of Indispensable Sovereigns, 40 Gonz. L. Rev. 1, 73-105 (2005) (extensively reviewing cases involving indispensability of tribal, state, and federal sovereigns in gaming operations and compact cases). 101 See Seminole Tribe v. McCor, 903 So. 2d 353, 359 (Fla. Dist. Ct. App. 2005) (negligence action arising from casino accident barred; “[a]lthough it may be a plausible inference that the purchase of insurance indicates an intention to assume liability and waive tribal immunity, such an inference is not a proper basis for concluding that there was a clear waiver by the Tribe”); Miccosukee Tribe v. Napoleoni, 890 So. 2d 1152, 1154 (Fla. Dist. Ct. App. 2004) (tribe’s purchase of workers’ compensation policy did not effect waiver, and thus writ of prohibition against further administrative proceedings before Judge of Compensation Claims was warranted); cf. Prescott v. Little Six, Inc., 284 F. Supp. 2d 1224, 1231 (D. Minn. 2003) (waiver effected under several employee benefit plans that stated beneficiaries “may file suit in a federal court” if plan funds are misused or beneficiaries discriminated against), rev’d on other grounds, 387 F.3d 753 (8th Cir. 2004) (trial court erred in not giving proper deference to tribal court finding that plans were not authorized under tribal law).

309 U.S. 506 (1940).

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sovereign an amount not to exceed the latter’s claim.103 However, a tribe has been held to have waived its immunity with respect to counterclaims to quiet title and for damages by requesting in its complaint that the defendants assert any claim they had to the land at issue.104 Intervention by a tribe in an action also has been found to bind it to the subsequent court judgment of any issue presented by the litigation,105 but mere initiation of a lawsuit limits the waiver “to the issues necessary to decide the action brought by the tribe” and will not

103 Id. at 511 (allowing setoff of $2,000 recovered by United States on behalf of tribe in bankruptcy proceeding against debtor); see also Berrey v. Asarco Inc., 439 F.3d 636, 642–45 (10th Cir. 2006) (tribe’s suit against mining company waived immunity against counterclaims that sounded in recoupment; recoupment claims arise out of same transaction or occurrence, seek same kind of relief as tribe, and do not seek an amount in excess of that sought by tribe; “[w]aiver under the doctrine of recoupment . . . does not require prior waiver by the sovereign or an independent congressional abrogation of immunity”); Chemehuevi Indian Tribe v. California State Bd. of Equal., 757 F.2d 1047, 1053 (9th Cir.) (no waiver under Fed. R. Civ. P. 13(a) of tribal sovereign immunity with respect to mandatory counterclaims), rev’d on other grounds, 474 U.S. 9 (1985) (per curiam); Warfield v. Navajo Nation (In re Davis Chevrolet, Inc.), 282 B.R. 674 (Bankr. D. Ariz. 2002) (tribe waived sovereign immunity by filing proofs of claim in Chapter 7 proceeding for amounts owing on debtor’s lease and promissory note); Beecher v. Mohegan Tribe, 918 A.2d 880, 885–86 (Conn. 2007) (claim against tribe predicated on prior alleged strategic lawsuit against public participation was not encompassed within counterclaim setoff exception); cf. Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313, 354 (N.D.N.Y. 2003) (converting setoff affirmative defense to counterclaim since “defendants are seeking to reduce the amount of the Tribal plaintiffs’ recovery, if any, by the amount of any consideration which the Tribes may have received for the subject property”). “Recoupment” claims are not limited to monetary recovery and may encompass prospective relief. Cayuga Indian Nation v. Vill. of Union Springs, 293 F. Supp. 2d 183, 194 (N.D.N.Y. 2003). 104 Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir. 1995); see Washoe Tribe v. Brooks, 175 F. Supp. 2d 1255, 1257 (D. Nev. 2001) (in language “remarkably similar to Rupp,” tribe waived sovereign immunity in bringing action to resolve all adverse claims to property, thereby asking for counterclaims); cf. Wyandotte Nation v. City of Kansas City, 200 F. Supp. 2d 1279 (D. Kan. 2002) (tribe’s commencement of quiet title action waived its sovereign immunity as to defendant’s own quiet title counterclaim “arising out of the same transaction or occurrence,” but did not waive immunity as to a reimbursement counterclaim, which is “different in kind and nature from” quiet title action and which exceeds the amount of relief sought by tribe). 105 Compare Confederated Tribes of Colville Reserv. Tribal Credit v. White (In re White), 139 F.3d 1268 (9th Cir. 1998) (participation by tribe’s “administrative arm” as creditor in Chapter 11 bankruptcy reorganization proceeding waived immunity from adjudication of its claim in such proceeding, and this waiver was carried forward when proceeding was converted to a Chapter 7 liquidation); United States v. Oregon, 657 F.2d 1009, 1015 (9th Cir. 1981) (“[b]y intervening, the Tribe assumed the risk that its position would not be accepted, and that the Tribe itself would be bound by an order it deemed adverse”); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 327 F. Supp. 2d 995, 999–1000 (W.D. Wis. 2004) (tribe’s permissive intervention for purposes of moving to dismiss did not waive sovereign immunity), aff’d, 422 F.3d 490 (7th Cir. 2005); Sac and Fox Nation v. Babbitt, 92 F. Supp. 2d 1124, 1126–27 (D. Kan. 2000) (tribe did not waive immunity against suit by intervention to oppose entry of temporary restraining order where, in answer eventually filed, it asserted such immunity), rev’d on other grounds, 240 F.3d 1250 (10th Cir. 2001); and In re National Cattle Cong., 247 B.R. 259, 267–69 (Bankr. N.D. Iowa 2000) (requiring tribe to withdraw proof of claim if it wished to pursue immunity defense), with State Eng’r v. S. Fork Band of Te-Moak Tribe, 66 F. Supp. 2d 1163, 1172–73 (D. Nev. 1999) (participating in removal of action to federal court sufficient to waive immunity against suit, as was voluntarily assuming water rights subject to existing decree over which state court retained continuing enforcement jurisdiction), opinion vacated in part on other grounds, 114 F. Supp. 2d 1046 (D. Nev. 2000), aff’d on other grounds, 339 F.3d 804 (9th Cir. 2003); and South Fork Band of the Te-Moak Tribe v. Sixth Jud. Dist. Court, 7 P.3d 455 (Nev. 2000) (tribe waived immunity from suit in water rights proceeding where United States purchased reservation land subject to adjudicated water rights and tribe historically had complied with water decree); cf. Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000) (failing to answer complaint did not effect waiver of immunity by implication).

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be construed as consent to suit on arguably related matters.106 Participation in administrative proceedings that form the predicate for later judicial review has been held not to waive immunity from suit in the latter proceeding.107 Finally, waiver provisions cannot create subject matter jurisdiction in themselves and, in the absence of forum-selection or choice-of-law language, may be subject to ordinary federal common law limits on state court authority.108 c. Through “sue and be sued” ordinance and corporate charter provisions. The final context in which issues over waiver of tribal sovereign immunity arise is the most complex and involves application of “sued and be sued” provisions in tribal ordinances or corporate charters. The first source of this complexity lies in sections 16 and 17 of the Indian Reorganization Act,109 which authorize tribes, with the approval of the Secretary of the Interior, to adopt, respectively, constitutions for their internal governance and charters of incorporation for entities whose purpose is to acquire property or to engage in commercial enterprises.110 These charters frequently have “sue and be sued” provisions to facilitate involvement in commerce.111 Despite the theoretically

106 McClendon v. United States, 885 F.2d 627, 630 (9th Cir. 1989) (action brought to determine ownership of land did not waive immunity against subsequent suit to enforce lease agreement related to the property); see also Jicarilla Apache Tribe v. Hodel, 821 F.2d 537, 539 (10th Cir. 1987) (action by tribe to cancel oil and gas leases did not constitute consent to suit in a subsequent proceeding brought to obtain bonuses under leases); Ramey Constr. Co. v. Apache Tribe, 673 F.2d 315, 320 (10th Cir. 1982) (“the Tribe consented only to entry of judgment in the amount of the contract retainage; it did not thereby agree to be sued on any other claims”); Mayes v. Cherokee Nation (In re Mayes), 294 B.R. 145, 156–57 (B.A.P. 10th Cir. 2003) (tribe did not waive its immunity from suit in bankruptcy proceeding by filing lawsuit in state court that resulted in judicial lien sought to be avoided under Bankruptcy Code); see also Pezold, Richey, Caruso & Barker v. Cherokee Nation Indus., Inc., 18 P.3d 364 (Okla. Civ. App. 2000) (immunity from suit precluded imposition of sanctions against defendant tribe for discovery abuses where plaintiff agreed to dismissal following issuance of Manufacturing Technologies). 107

Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459–60 (9th Cir. 1994).

See Oglala Sioux Tribe v. C & W Enters., Inc., 516 F. Supp. 2d 1044, 1052–53 (D.S.D. 2007) (where contract provided for enforcement of arbitration awards “ ‘in any court having jurisdiction thereof[,]’ ” tribe retained right to assert immunity from suit in state court since, under ordinary adjudicatory principles, subject matter jurisdiction did not exist there). 108

25 U.S.C. §§ 476, 477.

109

One commentator has remarked that “[t]he purpose of adopting a charter [of incorporation] is different than that of adopting a constitution, the charter being oriented more toward business than toward governmental organization.” Comment, Tribal Self‑Government and the Indian Reorganization Act of 1934, 70 Mich. L. Rev. 955, 966 (1972); accord Opinion No. M-36515, 65 Interior Dec. 483, 484 (1958) (purpose of § 16 “was to facilitate and stabilize the tribal organization of Indians residing on the same reservation, for their common welfare[,]” while the purpose of § 17 “was to empower the Secretary to issue a charter of business incorporation to such tribes to enable them to conduct business through this modern device”). Felix Cohen stated in his treatise that, once “the corporate status of an Indian tribe is established, it will ordinarily be held to be within the scope of federal legislation extending certain benefits to corporations.” Felix S. Cohen, Handbook of Federal Indian Law 278 (1942). 110

111 See generally William V. Vetter, Doing Business with Indians and the Three “S”es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction, 36 Ariz. L. Rev. 169, 175 (1994) (“[s]ection 17 was added because of congressional concern that non-Indians would not do business with tribal governments that are immune from suit”). Even where a consent to suit provision is present in a § 17 charter, it may be limited in scope and will be construed favorably to the involved tribe. E.g., American Vantage Cos. v. Table Moun-

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clear distinction between section 16 incorporation and section 17 chartering, a substantial amount of litigation has focused on the difference as those provisions play out in practice.112 The results in these cases are generally fact-specific

tain Rancheria, 292 F.3d 1091 (9th Cir. 2002) (act of waiving sovereign immunity did not establish that the tribe had a corporate character such that it would be a citizen of the state for the purpose of establishing diversity jurisdiction); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1044 (8th Cir. 2000) (authorization in tribal college’s charter “ ‘to waive any immunity from suit it might otherwise have’ ” in itself did not effect waiver); Md. Cas. Co. v. Citizens Nat’l Bank, 361 F.2d 517, 520–21 (5th Cir. 1966) (applying restrictions on consent to suit expansively); Chayoon v. Sherlock, 877 A.2d 4, 8–9 (Conn. App. Ct. 2005) (waiver of immunity from suit in tribal court over some employment-related claims did not effect waiver with respect to suit in state court for alleged violation of the Family and Medical Leave Act, and mere reference to the statute in employment forms did not otherwise give rise to waiver); Seminole Tribe v. McCor, 903 So. 2d 353, 358–59 (Fla. Dist. Ct. App. 2005) (noting and appearing to accept tribe’s argument that waiver could be effected only if consistent with tribal resolution, and finding none simply on the basis of liability insurance purchase); Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548, 551–53 (N.M. Ct. App. 2004) (no waiver was created by “sue or be sued” clause in tribal corporation’s charter because other charter requirements needed to effectuate waiver were not met; waiver of sovereign immunity cannot be implied or inferred by tribal corporation’s commitment to antidiscrimination standards in employee handbook, participation in state workers’ compensation program, or inconsistent waivers in other business dealings); Chance v. Coquille Indian Tribe, 963 P.2d 638 (Or. 1998) (authorization in tribal ordinance for tribal officials to consent to suit is not itself a waiver of immunity); Robles v. Shoshone-Bannock Tribes, 876 P.2d 134, 136 (Idaho 1994) (authorization of suit in charter did not mean corporation consented to suit in state court); cf. Cherokee Nation v. Nations Bank, N.A., 67 F. Supp. 2d 1303, 1307 (E.D. Okla. 1999) (tribe deemed to have waived immunity against garnishment action in state court with respect to tribal court judgment under latter court’s rule providing that “ ‘[t]he procedure for obtaining, entering, enforcement and collection of judgments in the Federal Rules of Civil Procedure and in the rules and statutes of the State of Oklahoma shall apply to obtaining, entering, enforcement and collection of [tribal court] judgments’ ”). 112 E.g., Linneen v. Gila River Indian Cmty., 276 F.3d 489 (9th Cir. 2002) (“sue and be sued” clause in corporate charter does not affect sovereign immunity of tribe acting as a governmental entity, and therefore tribe and its officers were immune from 42 U.S.C. § 1983 claim arising out of events surrounding arrest); Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1268 (10th Cir. 1998) (“[a]lthough courts have held that a ‘sue and be sued’ clause in a tribe’s [section 17] corporate charter may constitute a waiver of immunity of the tribal corporation, this waiver is limited to actions involving the corporate activities of the tribe and does not extend to actions of the tribe in its capacity as a political governing body”); Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir. 1993) (tribal ski resort owned by tribe in sovereign, not corporate, capacity); Native Am. Distributing v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d 1056, 1067 (N.D. Okla. 2007) (tobacco enterprise formed under tribal law partook of the tribe’s immunity and was not subject to “sue and be sued” clause in section 17 corporate charter where, inter alia, the resolution creating the enterprise “expressly declares all acts of the tobacco company to be essential ‘governmental’ functions of the Tribe, indicating that [the entity] functions as an entity of the Tribe and not the Tribal Corporation”); Veeder v. Omaha Tribe, 864 F. Supp. 889, 900–01 (N.D. Iowa 1994) (“sue and be sued” clause in § 17 corporate charter did not waive tribe’s immunity, as opposed to § 17 corporation’s immunity); Cameron v. Bay Mills Indian Cmty., 843 F. Supp. 334, 336 (W.D. Mich. 1994) (“sue and be sued” provision in tribal corporate charter did not waive immunity of tribe when not sued for activities undertaken in corporate capacity); Parker Drilling Co. v. Metlakatla Indian Cmty., 451 F. Supp. 1127, 1132–35 (D. Alaska 1978) (finding questions of fact that precluded granting summary judgment over whether airport and an aviation company were owned and operated by tribe in § 16 capacity or tribal corporation in § 17 capacity); Ogden v. Iowa Tribe, 250 S.W.3d 822, 827 (Mo. Ct. App. 2008) (“[c]ourts have concluded that the ‘sue and be sued’ clause is a waiver of immunity as to the corporation (though not as to the tribe) unless there is something specific about the particular case that tempers the waiver in some way”); Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 925 P.2d 246, 250 (Alaska 1996) (property of entity created under §§ 16 and 17 of the IRA was immune from state court–ordered execution to satisfy judgment to the extent “not owned under or dedicated to the § 17 corporate function”); DeFeo v. Ski Apache Resort, 904 P.2d 1065 (N.M. Ct. App. 1995) (tribe possessed immunity from personal injury claim with respect to onreservation skiing accident notwithstanding fact that tribal resort engaged in commercial activity); Lubbers v. Anderson, 524 N.W.2d 735, 734–35 (Minn. Ct. App. 1994) (tribe immune from suit by former employee for alleged defamation “only remotely related to [his] employment contract,” since tribal constitution at most waived immunity as to commercial activities); Dacotah Properties–Richfield, Inc. v. Prairie Island Indian Cmty., 520 N.W.2d 167, 170 (Minn. Ct. App. 1994) (observing that, “if a Native American community mixes

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and do not lend themselves to ready synthesis. One commentator has distilled eight factors considered by courts, which focus principally on the degree of integration between the tribe and corporate entity, but cautions that “[n]o one item is determinative.”113 Another area of conflict with respect to “sue and be sued” provisions involves tribal ordinances relating to tribal housing authorities. Many tribes have adopted without substantive change language contained in a model ordinance developed by the Department of Housing and Urban Development,114 and, while uniformity of interpretation might be expected, such has not occurred. Some courts have found the provision to constitute the requisite unequivocal consent to suit,115 but others have read the provision as merely investing housing authorities with the power to waive immunity from suit through transaction-specific contractual undertakings.116 Compounding the complexity that may attend determining applicability under existing decisional authority of “sue and be sued” provisions in the first instance—the “whether” of waiver—is the possible need of forum-specific waiver. Most notably, the Second Circuit Court of Appeals has extended the reasoning of Eleventh Amendment precedent, which limits waivers of sovereign immunity under state law to actions in the particular state’s courts, absent an express extension to federal courts, to tribal ordinance waivers—the “where”

its use of governmental and corporate powers, it may be deemed to have waived immunity by virtue of a ‘sue and be sued’ clause in its corporate charter”); Wippert v. Blackfeet Tribe, 859 P.2d 420, 427 (Mont. 1993) (“sue and be sued” provision in section 17 corporate charter did not waive sovereign immunity when “tribe acted only in its constitutional or governmental capacity”); Houghtaling v. Seminole Tribe, 611 So. 2d 1235 (Fla. 1993) (discussing differences between §§ 16 and 17, and directing trial court to dismiss claim for lack of subject matter jurisdiction unless it found consent to suit); Atkinson v. Haldane, 569 P.2d 151, 175 (Alaska 1977) (where allegedly tortious actions involved governmental functions, suit was deemed against tribe in its § 16 capacity, not against its § 17 corporation, and barred by sovereign immunity); Martinez v. S. Ute Tribe, 374 P.2d 691 (Colo. 1962) (holding that consent-to-suit provision in § 17 charter waived immunity with respect to claim that exclusion from membership and expulsion from reservation were improper). Vetter, supra note 111, at 177.

113

See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 30 n.6 (1st Cir. 2000) (“ ‘[t]he Council hereby gives its irrevocable consent to allowing the Authority to sue or be sued in its corporate name, upon any contract, claim or obligation arising gout [sic] of its activities under the ordinance and hereby authorities [sic] the Authority to decree by contract to waive any immunity from suit which it might otherwise have; but the Tribe shall not be liable for the debts or obligations of the Authority’ ”). 114

115 E.g., Whitebird v. Kickapoo Hous. Auth., 751 F. Supp. 928, 929–30 (D. Kan. 1990); Snowbird Constr. Co. v. United States, 666 F. Supp. 1437, 1441 (D. Idaho 1987); Namekagon Devel. Co. v. Bois Forte Reservation Hous. Auth., 395 F. Supp. 23, 27 (D. Minn. 1974), aff’d, 517 F.2d 508 (8th Cir. 1975). The Ninth Circuit Court of Appeals in litigation involving the Blackfeet Housing Authority adopted this view and, on rehearing, relied additionally on a tribal court construction that found waiver. Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 979 (9th Cir. 2006), modified, 519 F.3d 838, 843–44 (9th Cir. 2008). 116 Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 30 (1st Cir. 2000); Dillon v. Yankton Sioux Hous. Auth., 144 F.3d 581, 583–84 (8th Cir. 1998).

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of waiver.117 Whether this additional gloss on “sue and be sued” jurisprudence will find more general acceptance remains to be seen. It bears emphasis that “sue and be sued”–related issues must be distinguished from the question whether corporations or other business entities created under tribal or nontribal law constitute an “arm” of a tribe.118 Cases

117 Compare Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 87 (2d Cir. 2002) (citing, inter alia, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), for the proposition that “courts considering a bare ‘sue and be sued’ clause in the contexts of foreign and state sovereign immunity have arrived at the same conclusion: the clause constitutes a waiver of immunity (if at all) only in the courts of the sovereign”), with Doe ex rel. J.H. v. Santa Clara Pueblo, 154 P.3d 644, 651 (N.M. 2007) (“[t]aken in context, C & L Enterprises suggests that when a sovereign tribe waives its immunity from suit, it may also choose the forum in which the resulting litigation will occur, including state court, whether or not it has express congressional authority to do so”). 118 E.g., Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 705 n.1 (2003) (accepting without substantive analysis assertion that tribal corporation was an “‘arm’ of the Tribe” and therefore entitled to assert tribal immunity from suit); Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir. 2006) (tribally owned and operated casino constituted an “arm of the Tribe” where the “[i]mmunity of the Casino directly protects the sovereign Tribe’s treasury”); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000) (where community college “serves as an arm of the tribe and not as a mere business,” it partakes of tribe’s immunity); Ferguson v. SMSC Gaming Enter., 475 F. Supp. 2d 929, 931 (D. Minn. 2007) (deeming defendant to be “a branch of the tribal government”); Wright v. Colville Indian Enter. Corp., 147 P.3d 1275, 1279 and n.3 (Wash. 2006) (adopting, in a plurality opinion, a “bright-line rule” for determining when a tribal corporation possesses immunity—i.e., “tribal sovereign immunity protects tribal governmental corporations owned and controlled by a tribe, and created under its own tribal laws”); Davidson v. Mohegan Gaming Auth., 903 A.2d 228, 231–32 (Conn. App. Ct. 2006) (tribal gaming authority and casino protected by tribe’s sovereign immunity); Trudgeon v. Fantasy Springs Casino, 84 Cal. Rptr. 2d 65, 67–72 (Ct. App. 1999) (concluding that corporation created under tribal law to conduct gaming operations partakes of tribe’s immunity); Gavle v. Little Six, Inc., 555 N.W.2d 284, 294 (Minn. 1996) (concluding that tribally owned casino corporation enjoyed tribe’s immunity from suit because, “as a tribal business entity, [it was] organized for the general benefit of the [tribe] and closely linked to the governing structure of the [tribe]”); C & B Investments v. Wis. Winnebago Health Dep’t, 542 N.W.2d 168 (Wis. Ct. App. 1995) (tribal health board was arm of tribe’s business committee and that the latter’s immunity from suit was not waived by entering into commercial contract where, inter alia, corporate charter did not contain sue-and-be-sued clause); Dixon v. Picopa Constr. Co., 772 P.2d 1104, 1109 (Ariz. 1989) (concluding that corporation created by tribe was not subordinate economic organization and did not partake of the tribe’s immunity); White Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654, 656 (Ariz. 1971) (logging company was a “subordinate economic organization” created by tribe under powers contained in its § 16 constitution); compare Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, 658 N.E.2d 989, 992–93 (N.Y. 1995) (extending sovereign immunity to a nonprofit corporation formed under District of Columbia law on the rationale that “[t]ribal subagencies and corporate entities created by the Indian Nation to further governmental objectives, such as providing housing, health and welfare services, may also possess attributes of tribal sovereignty”); with Runyon ex rel. B.R. v. Ass’n of Vill. Presidents, 84 P.3d 437, 440–41 (Alaska 2004) (citing Ransom for principle that a state nonprofit corporation could be an arm of a tribe, but holding that the involved entity was not because the shareholders—various Alaska Native villages—were insulated from liability for the corporation’s debts and thus not “real parties in interest”); cf. E.F.W. v. St. Stephen’s Mission Indian High Sch., 264 F.3d 1297, 1306 (10th Cir. 2001) (contract with state to provide child protective services did not transform conduct by tribal agency into state action for purposes of 42 U.S.C. § 1983); Squirrel v. Bordertown Bingo, 125 P.3d 680, 682–84 (Okla. Civ. App. 2005) (tribe’s workers’ compensation insurer is estopped from asserting tribal sovereign immunity); Welch Contracting, Inc. v. North Carolina Dep’t of Transp., 622 S.E.2d 691, 697 (N.C. Ct. App. 2005) (state corporate charter granted tribe did not result in waiver of tribal immunity from suit); McNally CPA’s & Consultants, S.C. v. DJ Hosts, Inc., 692 N.W.2d 247, 248–53 (Wis. Ct. App. 2004) (when an Indian tribe purchases all shares of an existing nontribal for-profit corporation and takes control of corporate operations, tribal immunity is not conferred on the corporation); Huron Potawatomi, Inc. v. Stinger, 574 N.W.2d 706, 709 (Mich. Ct. App. 1997) (per curiam) (no waiver of sovereign immunity by virtue of tribe’s incorporation under state statute containing sue-andbe-sued provision). Tribal housing authorities’ “sue and be sued” provisions also have produced substantial litigation. E.g., Marceau v. Blackfeet Hous. Auth., 519 F.3d 838, 843 (9th Cir. 2008) (noting tribal court decision and holding that a “sue and be sued” clause in a tribal housing authority charter waived immunity from

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addressing that issue are concerned not with waiver of sovereign immunity but instead with the entity’s ability to assert such immunity at all—i.e., whether the particular entity should be deemed the tribe for immunity purposes. They nevertheless may well look to some of the same considerations when determining “arm of the tribe” status as cases attempting to resolve questions over section 17 status for purposes of applying “sue and be sued” waiver provisions, with the key consideration generally being the extent to which any judgment may effectively operate against the involved tribe’s treasury.119 At a minimum, the exceptional analytical difficulties of this area underscore the need for care in commercial negotiations with tribal-related entities when fashioning contractual remedies. Congress has attempted to mitigate the complexity attendant to this aspect of tribal sovereign immunity through the Indian Tribal Economic Development and Contract Encouragement Act of 2000.120 The law amended 25 U.S.C. § 81, which regulates contracts encumbering Indian lands, in various respects. The modifications include defining the term “Indian lands” to include lands held in trust for a tribe or subject to a restriction on alienation;121 requiring any contract encumbering such lands for seven years or more to be approved by the Secretary of the Interior;122 conditioning secretarial approval on inclusion of a provision for adjusting breach of contract claims, a provision identifying any tribal code, ordinance or ruling that grants a tribe immunity from suit, or a provision waiving such immunity;123 and striking the current requirement in § 81 for approval of attorney contracts.124 Whether these amendments will have a significant practical

suit alleging violation of federal statute and regulations); Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.3d 581, 583–84 (8th Cir. 1998) (“sue and be sued” provision in charter authorized housing authority to waive immunity from suit but did not in itself effect waiver); see generally Gregory J. Wong, Note, Intent Matters: Assessing Sovereign Immunity for Tribal Entities, 82 Wash. L. Rev. 205, 222 (2007) (“[T]he U.S. Supreme Court has not established a test to determine whether an entity is an ‘arm of the tribe’ entitled to sovereign immunity. Lower courts have created various balancing tests to make this determination”). 119 E.g., Allen, 464 F.3d at 1047 (“[i]mmunity of the Casino directly protects the sovereign Tribe’s treasury, which is one of the historic purposes of sovereign immunity in general”); Runyon ex rel. B.R., 84 P.3d at 441 (Native village association did not partake of villages’ sovereign immunity because “[a]ny judgment will be paid out of the Association’s coffers alone” and “the villages’ assets will be safe from execution[,]” and finding “insight” from earlier section 17–based decision “relevant” to its holding). 120 Pub. L. No. 106-179, 114 Stat. 46 (2000); see generally Anna-Emily C. Gaupp, Note, The Indian Tribal Economic Development and Contracts Encouragement Act of 2000: Smoke Signals of a New Era in Federal Indian Policy?, 33 Conn. L. Rev. 667, 686 (2001) (criticizing the sovereign immunity disclosure-or-waiver provisions as “creat[ing] a paternal protection for the Non-Tribal party”).

25 U.S.C. § 81(a)(1).

121

Id. § 81(b).

122

Id. § 81(d).

123

Id. § 81(f)(1).

124

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effect in view of the limited nature of the contractual undertakings to which they apply is uncertain.125 3. Officer capacity suits Tribal officers or other agents do not partake fully of the immunity possessed by tribes.126 Citizen Band Potawatomi, although alluding to the Ex parte Young127 fiction,128 suggested that a broader range of relief may be available than the prospective relief that is the exclusive remedy authorized against states under Young129 because the Court referred to the possibility of damages or retroactive relief for violation of state law.130 This issue has not been addressed subsequently. Lower courts nonetheless have been willing to apply a Young-like exception and to find prospective relief available in many instances. As with other areas of the sovereign immunity doctrine, however, “variability” exists in decision-making.131 Courts have been most receptive to applying an officer-suit exception for prospective, or nondamages, relief purposes where tribal officers are alleged to be acting pursuant to an invalid tribal regulation or otherwise outside the scope of their lawful authority under federal or, where applicable, state law.132

125 E.g., Ashley v. USDOI, 408 F.3d 997, 1001 (8th Cir. 2005) (individual tribal members lack standing to obtain court order rescinding government-approved assignment agreement between tribe and bond purchaser because even if the court “were to void the government’s approval for the original bond agreement[,]” the Indian Tribal Economic Development and Contract Encouragement Act of 2000 permits the tribe to “enter a new bond contract that would pick up where the old one left off without needing to secure government approval”). 126 Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165 (1977); Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991).

209 U.S. 123 (1908).

127

Under the Young fiction,

128

state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by . . . the Eleventh Amendment . . . . The officer’s action “is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. Seminole Tribe v. Florida, 517 U.S. 44, 173–74 (1996) (Souter, J., dissenting). The officer’s state or, where the Young fiction is applied in the face of tribal sovereign immunity, tribe retains its immunity from suit even though, as a practical matter, its sovereign functions will be affected. E.g., Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1011–12 (10th Cir. 2007). 129 “An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction.” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).

Oklahoma Tax Comm’n, 498 U.S. at 514.

130

Seielstad, supra note 13, at 701–02 (noting decisional authority and concluding that “[v]ariability . . . exists in judicial determinations about whether and to what extent the official actions of tribal officers may be subject to suit”). 131

132 E.g., Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30 (1st Cir. 2006) (en banc) (neither employees of tribal store nor tribal officers were immune from arrest for selling contraband cigarettes; as to

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This willingness nevertheless has not proved unbounded. Prospective relief, for example, has been denied where the remedy sought against individual officers “ ‘would work an intolerable burden on governmental functions, outweighing any consideration of private harm.’ ”133 The Young-like exception also has not been applied where simple breach of contract is alleged134 or, quite commonly,

the latter, the tribe’s legal obligation to comply with the state cigarette tax scheme meant that “violations of that scheme by the Tribe’s officers fall outside the scope of their official capacity”); Comstock Oil & Gas Inc. v. Ala. and Coushatta Indian Tribes, 261 F.3d 567 (5th Cir. 2001) (tribal council members are not entitled to tribal sovereign immunity in suits for declaratory and injunctive relief); TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 680 (5th Cir. 1999) (“[t]he distinction between a suit for damages and one for declaratory or injunctive relief is eminently sensible, and nothing in Kiowa Tribe v. Manufacturing Techs., Inc., 523 U.S. 751 (1998)] undermines the relevant logic”); Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1133–34 (9th Cir. 1995) (“Tribal sovereign immunity . . . does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law. Here, APS has alleged that certain Navajo officials violated federal law by acting beyond the scope of their authority”); Tamiami Partners, Ltd. v. Miccosukee Tribe, 63 F.3d 1030, 1050–51 (11th Cir. 1995) (holding that tribal sovereign immunity did not bar claims against tribal officers, and analogizing to Young); N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 460 (8th Cir. 1993) (“[i]f the tribe did not have the power to enact this ordinance, then the tribal officers were not clothed with the tribe’s sovereign immunity”); Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1471–72 (8th Cir. 1994) (same); Tenneco Oil Co. v. Sac and Fox Tribes, 725 F.2d 572, 574 (10th Cir. 1984) (per curiam) (same); Wisconsin v. Baker, 698 F.2d 1323, 1333 (7th Cir. 1983) (per curiam) (“[i]f a sovereign’s powers are limited, then so too must be the immunity of that sovereign’s officials from suit”); Ferguson v. SMSC Gaming Enter., 475 F. Supp. 2d 929, 931 (D. Minn. 2007) (“[t]he tribe’s sovereign immunity also may extend to tribal officials in their official capacity, provided the tribe had the authority to take the action it delegated to the official”); Davids v. Coyhis, 869 F. Supp. 1401, 1410 (E.D. Wis. 1994) (prospective relief available against tribal officers if acting in violation of Indian Gaming Regulatory Act); Russell v. Fort McDowell Yavapai Nation (In re Russell), 293 B.R. 34, 37 n.10 (Bankr. D. Ariz. 2003) (noting in dictum that, even if tribe were immune from application of the Bankruptcy Code’s discharge provisions, “the Debtor presumably could obtain equivalent injunctive relief (but not recovery of past withholdings) by an adversary proceeding against the Tribal officer who is responsible for distributing the per capita payments”); Wright v. Colville Indian Enter. Corp., 147 P.3d 1275, 1280 (Wash. 2006) (sovereign immunity shared by tribal officials when acting in their representative capacity and within the scope of their authority); Ackerman v. Edwards, 17 Cal. Rptr. 3d 517, 523 (Ct. App. 2004) (for Young-like relief to be available, the involved law must apply substantively to the tribal officers and must be enforceable through a private right of action); cf. State v. Velky, 821 A.2d 752, 759 (Conn. 2003) (observing in dictum that no authority exists for the “proposition that tribal sovereign immunity may be invoked by tribal officials in criminal trials”); see generally Lisa R. Hasday, Note, Tribal Immunity and Access for the Disabled, 109 Yale L.J. 1199, 1200 (2000) (arguing that the plaintiffs in Fla. Paraplegic Ass’n v. Miccosukee Tribe, 166 F.3d 1126 (11th Cir. 1999), where a tribe was held subject to, but immune from, suit under the Americans with Disabilities Act, “might have circumvented the obstacle of tribal sovereign immunity if they had sued tribal members rather than the Miccosukee Tribe as a whole”). 133 Shermoen v. United States, 982 F.2d 1312, 1320 (9th Cir. 1992) (quoting Washington v. Udall, 417 F.2d 1310, 1318 (9th Cir. 1969)); see also Fletcher v. United States, 116 F.3d 1315, 1323–26 (10th Cir. 1997) (tribal officials immune from suit against them in their official capacity); Ordinance 59 Ass’n v. Babbitt, 970 F. Supp. 914, 923 (D. Wyo. 1997) (sovereign immunity barred claim where relief would run against tribe), aff’d, 163 F.3d 1150 (10th Cir. 1998). The Shermoen court’s reliance on the rather broad language quoted above arguably was tempered by the belief that the relief sought did not require merely “ ‘cessation of the conduct complained of but . . . affirmative action by the sovereign or the disposition of unquestionably sovereign property.’ ” 982 F.2d at 1320 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949)). The plaintiffs in Shermoen requested a declaration that a statute in part creating separate reservations for two tribes from a previously consolidated reservation was unconstitutional—relief that, if granted, would have deprived the absent tribe of its reservation. 134 TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999) (“federal courts do not have jurisdiction to entertain routine contract actions against Indian tribes”); Tamiami Partners, Ltd. v. Miccosukee Tribe, 177 F.3d 1212, 1226 (11th Cir. 1999) (“[i]t is well established that Ex parte Young does not permit individual officers of a sovereign to be sued when the relief requested would, in effect, require the sovereign’s specific performance of a contract”); Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 862 F. Supp.

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where an inadequate showing has been pled or made with respect to matters such as whether the officer acted in an ultra vires fashion.135 These cases, taken as a whole, suggest that the officer-suit exception will be informed by ordinary Young standards but that the precise standards to be applied and the results in particular cases may well be difficult to predict. Where retroactive relief is sought, personal as opposed to official liability is necessary, and courts not only demand the predicate action to be nondiscretionary in character but also that the official or employee was not “acting within the scope of . . . delegated power.”136

995, 1003 (W.D.N.Y. 1994) (recognizing ultra vires exception, but refusing to apply it where simple breach of contract alleged). 135 Compare Burlington N.R.R. v. Vaughn, 509 F.3d 1085, 1093 (9th Cir. 2007) (applying Young principles, and concluding challenge to tribal possessory interest tax could be maintained against tribal official responsible for enforcing tax but not against tribal chairman who had no such responsibility); Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004) (per curiam) (party alleging violation of Family and Medical Leave Act could not “circumvent tribal immunity by merely naming officers or employees of the Tribe when the complaint concerns actions taken in defendants’ official or representative capacities and the complaint does not allege they acted outside the scope of their authority”); Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271–72 (9th Cir. 1991) (refusing to allow officer-capacity suit where complaint failed to allege a viable claim that individual defendants had acted beyond their authority in denying access to road); Stringer v. Chrysler (In re Stringer), 252 B.R. 900, 901 (Bankr. W.D. Pa. 2000) (rejecting sovereign immunity defense raised by individual Indian where “there is no allegation that [the Indian] is an official of the tribe or that the operation of her business was done in an official capacity for the tribe”); Filer v. Tohono O’Odham Nation Gaming Enter., 129 P.3d 78, 85–86 (Ariz. Ct. App. 2006) (following Imperial Granite Co. and rejecting officer-capacity suit where plaintiff failed to indicate individual tribal casino employees acted beyond their authority by serving alcohol to a patron); Lamere v. Superior Ct., 31 Cal. Rptr. 3d 880, 884 (Ct. App. 2005) (finding immunity from suit where tribal membership committee members exercised discretionary, not merely ministerial, functions); Chayoon v. Sherlock, 877 A.2d 4, 10 (Conn. App. Ct. 2005) (insufficient for party claiming violation of Family and Medical Leave Act to “merely . . . allege that the defendants violated federal law or tribal policy in order to state a claim that they acted beyond the scope of their authority”); and Thompson v. Crow Tribe, 962 P.2d 577, 582 (Mont. 1998) (finding tribal employees immune from a suit seeking cancellation of tax liens filed on behalf of tribe, since “the issue is not whether Montana law permits or prohibits the filing of tribal tax liens directly with the county recording official, but rather whether the Tribe’s officials were acting within the scope of their representational or delegated authority as agents of the Tribe in filing the Tribe’s tax liens in accordance with Tribal law”), with Wallett v. Anderson, 198 F.R.D. 20 (D. Conn. 2000) (state liquor inspector’s claim that tribal attorney retaliated for inspector’s enforcement of state laws adequately alleged that the attorney’s actions were outside scope of authority); and Wright v. Prairie Chicken, 579 N.W.2d 7, 11 (S.D. 1998) (individual members of tribal health care provider’s board did not share in tribe’s immunity where “the underlying dispute involves not the Board’s mission of providing health care to Indian people, but an election contest between elected candidates and current directors for Board membership and whether internal procedures for filing election protests was [sic] followed”); cf. compare Dry v. United States, 235 F.3d 1249 (10th Cir. 2000) (affirming dismissal of federal constitutional and tort claims brought against law enforcement officers by tribal members arrested for distributing literature on tribal grounds and charged with disturbing the peace, where they acted in tribal and not federal capacity and thus were not subject to constitutional limitations), with Armstrong v. Mille Lacs County Sheriffs Dep’t, 228 F. Supp. 2d 972, 987–88 (D. Minn. 2002) (discretionary decision by tribal police officer in making arrest rather than issuing citation protected by qualified immunity in 42 U.S.C. § 1983 action, where tribe deemed municipality under state law and therefore subject to potential liability for constitutional violation), aff’d, 63 Fed. Appx. 970 (8th Cir. 2003). 136 United States v. Yakima Tribal Ct., 806 F.2d 853, 860 (9th Cir. 1986); see Native Am. Distributing v. Seneca-Cayuga Tobacco Co., 491 F. Supp. 2d 1056, 1071 (N.D. Okla. 2007) (“a tribal official, even if sued in an individual capacity, is only stripped of tribal immunity when he acts ‘without any colorable claim of authority’ ”); Matheson v. Gregoire, 161 P.3d 486, 491 (Wash. Ct. App. 2007) (where damages sought, “tribal sovereign immunity continues to protect individual tribal officials acting in their representative capacity

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II. THE INDIAN CIVIL RIGHTS ACT A. The ICRA’s Provisions In 1968, Congress enacted the Indian Civil Rights Act (ICRA).137 The ICRA extends to tribal governments certain protections guaranteed under the Bill of Rights with respect to federal and state governments. The need to provide such rights statutorily can be traced back to Talton v. Mayes,138 where the Supreme Court concluded that the Cherokee Nation could use grand juries whose number of members did not meet the requirements of the United States Constitution in connection with the prosecution of one tribal member for a crime against another member. The Court reasoned that, while the involved tribe was subject to the dominant authority of Congress, its powers were those of a “local,” or nonfederal, government, unconstrained by the Fifth Amendment.139 This conclusion means that citizens of the United States, by virtue of their tribal membership, are subject to the commands of a government within United States territory that is not fundamentally constrained by constitutional norms. Since its first articulation, this core principle has never been questioned.140 To fill this vacuum,141 Congress imposed some, but not all, Bill of Rights obligations upon tribes under ICRA. The statute contains the following substantive requirements:

and within the scope of their authority”); Zeth v. Johnson, 765 N.Y.S.2d 403 (App. Div. 2003) (tribal snowplow employee immune from personal injury suit when acting in the course of employment); Lewis v. Edwards, 815 So. 2d 656, 657 (Fla. Dist. Ct. App. 2002) (remanding for determination whether tribal police officer was acting in course and scope of employment at time of accident); Turner v. Martire, 99 Cal. Rptr. 2d 587, 595 (Ct. App. 2000) (in tort and state civil rights suit by union organizers against tribal law enforcement officers, defendants required to show for purposes of establishing immunity that they “performed discretionary or policymaking functions [for the Tribe] so that exposing them to liability would undermine immunity of Tribe itself”); Trudgeon v. Fantasy Springs Casino, 84 Cal. Rptr. 2d 65, 72 (Ct. App. 1999) (finding tribal employees immune from suit, since complaint over personal injuries suffered at tribal casino alleged that the individual defendants had acted within scope of employment and since “the commission of a tort is not per se an act in excess of authority”). 137 Pub. L. No. 90-284, §§ 201–701, 82 Stat. 73, 77–81 (1968) (codified as amended at 25 U.S.C. §§ 1301–1303, 1321–1326, 1331, 1341). Other provisions of ICRA concern state assumption of criminal and civil jurisdiction, action by the Commissioner of Indian Affairs on tribal agreements, legal counsel, and the publication of materials on Indian law. See 25 U.S.C. §§ 1321, 1322, 1331, 1341.

163 U.S. 376 (1896).

138

Id. at 382, 384.

139

Duro v. Reina, 495 U.S. 676, 693 (1990); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56–57 (1978); United States v. Wheeler, 435 U.S. 313, 322–23 (1978); see also Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007) (“[n]or need the tribe, in the absence of Congressional constraints, comply with the constitutional limitations binding on federal and state governments when it exercises [its authority to determine membership] and other powers”). 140

See S. Rep. No. 721, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 1837, 1864, 1867.

141

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No Indian tribe in exercising powers of self government shall—

(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;



(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;



(3) subject any person for the same offense to be twice in jeopardy;



(4) compel any person in any criminal case to be a witness against himself;



(5) take any private property for public use without just compensation;



(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;



(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both;



(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;



(9) pass any bill of attainder or ex post facto law; or



(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.142

Among the constitutional provisions absent from ICRA rights are “the Establishment Clause, the right to jury trial in civil cases, and the right of indigents to appointed counsel in criminal cases.”143 These protections were not incorporated into ICRA because of the “unique political, cultural, and

25 U.S.C. § 1302.

142

Duro v. Reina, 495 U.S. 676, 693 (1990); see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 62–63 (1978); United States v. Doherty, 126 F.3d 769 (6th Cir. 1997); State v. Walker, 153 P.3d 614, 617 (Mont. 2007); State v. Spotted Eagle, 71 P.3d 1239, 1243–44 (Mont. 2003); see generally Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 478 (2005); Kristen A. Carpenter, Considering Individual Religious Freedoms Under Tribal Constitutional Law, 14-SPG Kan. J.L. & Pub. Pol’y 561 (2005); Robert T. Anderson, Criminal Jurisdiction, Tribal Courts and Public Defenders, 13-FALL Kan. J.L. & Pub. Pol’y 139, 143–45 (2003). 143

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economic needs” of tribes.144 Furthermore, even where the general analogue of a constitutional right has been included within ICRA, its scope may not be identical to the Bill of Rights counterpart.145

144 Martinez, 436 U.S. at 62–63; see also Spotted Eagle, 71 P.3d at 1245. Notwithstanding the determination not to incorporate certain federal constitutional values, scholarly debate continues over the efficacy or appropriateness of extending any of those values to tribal societies. See generally Angela R. Riley, Good (Native) Governance, 107 Colum. L. Rev. 1049, 1116 (2007) (recognizing that “[e]ven though ICRA extended certain civil rights provisions to tribal governments, the fact remains that, in many respects, tribes are free to act illiberally[,]” and identifying two areas—sovereign immunity and banishment—that present special difficulty); Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N.C. L. Rev. 779, 841–42 (2006) (“If the use of various forms of coercive violence, such as incarceration and the death penalty, is one of the indicators of ‘statehood,’ then the limitations on tribal coercive power, such as those set forth in the Indian Civil Rights Act, must raise questions as to whether tribal governments are sovereigns at all. . . . [T]ribes lack this key indicator of ‘statehood’ or sovereignty and are, at best, only ‘quasi-sovereign’ states. In other words, just as full self-determination is not achievable under the existing scheme, tribal sovereignty is necessarily substantially limited as long as the federal scheme and its norms predominate”); Frickey, supra note 143, at 478 (“[i]f the two primary rights ‘missing’ from ICRA—free representation for indigent defendants and a jury that includes nonmembers—need to be extended somehow to save the tribal criminal justice scheme, the courts could interpret ICRA’s due process clause to require both”); Matthew L.M. Fletcher, Theoretical Restrictions on the Sharing of Indigenous Biological Knowledge: Implications for Freedom of Speech in Tribal Law, 14-SPR Kan. J.L. & Pub. Pol’y 525, 534 (2005) (“The kind of coercive, arbitrary, and violent government actions generated by Euro-American governments—i.e., imprisonment, execution, police brutality, denial of governmental benefits and services, eminent domain, interrogation, entrapment, surveillance, quartering of soldiers, and so on—were rarely, if ever, perpetuated by Indian communities. Nevertheless, with the imposition—again, by the dominant government—of hierarchical tribal governments first, through the creation of leadership roles for the purpose of executing treaties and, second, through the creation of tribal governments as we know them today under the Indian Reorganization Act, the coercive, arbitrary, and violent actions inherent in Euro-American governments began to manifest themselves in tribal governments. In short, ICRA is a half-baked federal compromise solution to a problem created by a series of previous half-baked federal compromise solutions”); Lindsay Loudon Vest, Comment, Cross-Border Judgments and the Public Policy Exception: Solving the Foreign Judgment Quandry by Way of Tribal Courts, 153 U. Pa. L. Rev. 797, 816, 819–20 (2004) (arguing that “[a] discernable result of the [ICRA] was to establish a set of policies to which the Indian tribes and the United States agreed, and that—if followed—would have the effect of ensuring that neither the tribal nor the federal governments’ ability to govern is compromised[,]” and reasoning that such a “constitution-like” approach could be employed on an international basis to limit expansive application of the public policy exception to recognition and enforcement of foreign judgments); Gloria Valencia-Weber, Santa Clara Pueblo v. Martinez: Twenty-Five Years of Disparate Cultural Visions, 14-FALL Kan. J.L. & Pub. Pol’y 49, 54 60 (2004) (“Incorporating or reconciling indigenous law with external norms, especially the constitutional standards, is a daunting task for those who try. . . . The external world’s demand for individual equality cannot be satisfied while tribes simultaneously struggle to protect their consensual values and political autonomy. . . . Tribal nations must be accepted for what they are: politically organized communities in continuity with values not anchored in individualistic rights”). 145 Compare United States v. Schmidt, 403 F.3d 1009, 1013 (8th Cir. 2005) (“[a]lthough the fourth amendment does not apply to the conduct of Indian tribal officials in Indian territory, the same standards are applicable to their actions under the Indian Civil Rights Act”); United States v. Becerra-Garcia, 397 F.3d 1167, 1171 (9th Cir. 2005) (same); People v. Ramirez, 56 Cal. Rptr. 3d 631, 636 (Ct. App. 2007) (“[t]his language [in 25 U.S.C. § 1302(2) concerning searches and seizures] is, for all intents and purposes, identical to the language of the Fourth Amendment . . . and thus evidences a congressional intent to extend, as against the Indian tribes, ‘[t]he security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment’ ”) (footnote omitted); Tracy v. Superior Ct., 810 P.2d 1030, 1045–46 (Ariz. 1991) (while certain ICRA provisions do not mirror those in the federal Constitution, the ones that clearly mirror the federal provisions in language and intent are generally held to be identical), with Chippewa-Ottowa Tribes v. Payment Jr., 18 Indian L. Rep. 6141 (Chippewa-Ottowa Consv. Ct. May 29, 1991) (§ 1302(4) of ICRA may not require Miranda warnings); see generally David A. Castleman, Comment, Personal Jurisdiction in Tribal Courts, 154 U. Pa. L. Rev. 1253, 1282 (2006) (arguing that “[j]ust as the Due Process Clauses of the Fifth and Fourteenth Amendments constrain the exercise of personal jurisdiction by federal and state courts, the Due Process Clause of the ICRA, which was enacted as a parallel to those amendments, should bind tribal courts to the conception of modern personal jurisdiction”).

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The substantive requirements of ICRA apply to an “Indian tribe” when exercising the “powers of self-government.” ICRA defines “Indian tribe” as “any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government.”146 The phrase “powers of self-government” in turn is defined as all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses[] and . . . the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.147

The concluding phrase—“the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians”—was added temporarily in 1990148 and then made permanent the following year149 in response to the holding in Duro v. Reina150 that tribes lack inherent criminal jurisdiction over nonmember Indians.151 To carry out this purpose, the amendments included a definition of the term “Indian” devoid of a requirement of tribal membership within the tribe exercising criminal jurisdiction.152 The meaning and validity of the amendment to the “power of selfgovernment” definition was unsettled for a dozen years. Two federal circuit courts of appeals issued conflicting en banc opinions concerning whether the amendments should be construed as restoring inherent tribal authority, i.e., legislatively overruling Duro, or as delegating federal criminal power.153 Both involved defenses based upon the Double Jeopardy Clause of the Fifth Amendment and interposed by a federal court criminal defendant following a tribal court conviction arising out of the same transaction. In the first case, the Ninth Circuit construed the amendments as congressionally recognizing inherent tribal jurisdiction over nonmember Indians and concluded further

25 U.S.C. § 1301(1).

146

Id. § 1301(2); see Barker v. Menominee Nation Casino, 897 F. Supp 389 (E.D. Wis. 1995) (because gaming commission and casino did not exercise powers of self-government, ICRA protections were unavailable); cf. Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 n.3 (9th Cir. 1998) (noting that “[o]nly the tribal judiciary and legislature would be subject to liability in federal court under ICRA”); Learned v. Cheyenne-Arapaho Tribe, 596 F. Supp. 537, 540 (W.D. Okla. 1984) (ICRA does not authorize claims against the United States or any of its agencies); Bruette v. Knope, 554 F. Supp. 301, 304 (E.D. Wis. 1983) (ICRA provides no rights against tribal members acting in their individual capacities). 147

Pub. L. No. 101-511, § 8077, 104 Stat. 1856, 1892–93 (1990).

148

Pub. L. No. 102-137, § 1, 105 Stat. 646 (1991).

149

495 U.S. 676 (1990).

150

See Conf. R. No. 938, 101st Cong., 2d Sess. 132–33 (1990).

151

152 25 U.S.C. § 1301(4) (“any person who would be subject to the jurisdiction of the United States as an Indian under section 1153 of Title 18 if that person were to commit an offense listed in that section in Indian country to which that section applies”). 153 Compare United States v. Enas, 255 F.3d 662 (9th Cir. 2001) (en banc), with United States v. Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), rev’d, 541 U.S. 193 (2004).

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that Duro embodied a federal common law determination “based on history”154 that Congress could “trump.”155 The federal prosecution therefore was valid since the tribal proceeding had been conducted pursuant to the exercise of inherent authority.156 The Eighth Circuit disagreed, holding that “the distinction between a tribe’s inherent and delegated powers is of constitutional magnitude and therefore entrusted to the Supreme Court.”157 Without textual analysis of the amendments, the Lara court then held that the amendments had effected a delegation of federal authority to tribes—a construction that vitiated the federal criminal prosecution.158 The Supreme Court resolved the circuit split in United States v. Lara.159 Rejecting the Eighth Circuit’s construction of the amendments, a five-Justice majority of the Court held that they simply “adjust[ed] the tribes’ status” by “relax[ing] the restrictions, recognized in Duro, that the political branches had imposed on the tribes’ exercise of inherent prosecutorial power.”160 The question to be resolved, therefore, was “whether the Constitution authorizes Congress to do so.”161 The Court answered that question affirmatively and identified the Commerce Clause, the Treaty Clause, and “the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government” as

Enas, 255 F.3d at 674.

154

Id. at 673.

155

Id. at 665–66; see, e.g., United States v. Wheeler, 435 U.S. 313, 323 (1978).

156

Lara, 324 F.3d at 639.

157

Id. at 640 (“The Spirit Lake Nation exercises authority over external relations only to the extent such a power has been delegated to it by Congress. As a nonmember, Lara was necessarily prosecuted pursuant to that delegated power”). Shortly before Lara was issued, the Seventh Circuit Court of Appeals addressed the question “whether the dual sovereignty exception to the Double Jeopardy Clause applies to those Indian tribes that were first ‘terminated’ and then ‘restored’ by act of Congress.” United States v. Long, 324 F.3d 475, 479 (7th Cir. 2003). In answering this question affirmatively, the court accepted the principle that the involved restoration act should be construed “to effect full restoration of the Menominee Tribe’s pre-Termination Act powers.” Id. at 482. It briefly distinguished Enas and an earlier Eighth Circuit case, United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998), vacated by equally divided court, 165 F.3d 1209 (8th Cir. 1999) (en banc), which had left in place a district court judgment finding the Duro-related amendments a valid recognition of inherent authority, with the observation that “[o]ur case does not involve creation of any new ‘inherent’ rights” and that the restoration act “merely sought to restore to the Menominee that which it had taken from the Tribe earlier.” Id. at 483. 158

541 U.S. 193 (2004).

159

Id. at 200; see generally Bethany R. Berger, United States v. Lara as a Story of Native Agency, 40 Tulsa L. Rev. 5, 9, 23–24 (2004) (recognizing that “because Indian tribes are sovereigns, Congress can, as it does with other sovereigns, relax restrictions on their inherent sovereignty,” and adding that “for the first time in years, we have a Supreme Court decision that alters the judicial description of tribal sovereignty so as to expand rather than contract it”). 160

161 541 U.S. at 200; see generally Frickey, supra note 143, at 463 (“Because the Court had held in Duro that tribes lacked the authority to prosecute nonmember Indians, the question in Lara was whether tribal prosecutions of such persons pursuant to the Duro fix are actions grounded in delegated federal authority or in inherent tribal power. If they are the former, double jeopardy would bar a subsequent federal prosecution; if they are the latter, it would not”).

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the sources of the requisite power.162 Two Justices concurred in the judgment but not in the majority’s reasoning,163 while two Justices dissented and would have construed the amendments to be a delegation of federal prosecutorial power to “eliminate[] the jurisdictional gap.”164 The Court left unresolved potential challenges to the Duro amendments on due process and equal protection grounds.165

162 541 U.S. at 201; see generally Alex Tallchief Skibine, United States v. Lara, Indian Tribes, and the Dialectic of Incorporation, 40 Tulsa L. Rev. 47, 49, 52, 60, 70 (2004) (arguing that because “one cannot have tribal ‘incorporation’ and congressional ‘plenary power’ at the same time,” the Court “should use the incorporation doctrine to conclude that Indian tribes have in fact been incorporated into the United States political and legal system as third sovereigns” and that, therefore, “it is not tribal inherent sovereignty that has disappeared, but congressional plenary power[;]” moreover, while deferring to Congress the “primary authority in defining the terms under which Indian tribes are being incorporated” into the federal system, the Supreme Court “is far from having given up its role as the ultimate arbiter of tribal status”); William Bradford, “Another Such Victory and We Are Undone”: A Call to an American Indian Declaration of Independence, 40 Tulsa L. Rev. 71, 71–72, 90–98 (2004) (characterizing Lara as a Pyrrhic victory for Indian self-­determination that simply reaffirms Congress’s plenary power over Indian tribes). Implicit in the majority’s reasoning is the proposition that Congress may “relax” restrictions on inherent tribal authority in other contexts. See generally Ann E. Tweedy, Using Plenary Power as a Sword: Tribal Civil Regulatory Jurisdiction Under the Clean Water Act After United States v. Lara, 35 Envtl. L. 471 (2005) (examining Lara’s implications for tribes seeking treatment-as-state status under the Clean Water Act, and concluding that because the Clean Water Act recognizes and affirms tribal sovereignty over water quality, it should be read, under Lara, to reinvest tribal sovereignty). 163 541 U.S. at 211 (Kennedy, J., concurring in judgment); id. at 214 (Thomas, J., concurring in judgment); see generally Frickey, supra note 143, at 466–67, 470–71 (Justice Kennedy’s “argument from deep constitutional structure and ongoing consent of the governed” was “question-begging” and “obscure,” such that it “exemplifies the root problem in federal Indian law.” Justice Thomas, on the other hand, delivered “the most candid statement by a Supreme Court justice on federal Indian law since the Marshall Court.” By questioning the “ ‘two largely incompatible and doubtful assumptions’ ” on which federal Indian law precedents are based—“that Congress has plenary authority over the tribes, and that the tribes nonetheless retain sovereignty”—he challenged the concept of congressional plenary power like no Justice before. His reasoning nonetheless simultaneously “point[ed] in two starkly opposing directions: a reduction of federal power over tribes, without a sense for whether a corresponding expansion of state authority would be the other shoe to drop, or a judicial termination of tribal sovereignty”); Skibine, supra note 162, at 58–59 (Justice Thomas “convincingly demonstrates why the Commerce Clause does not vest plenary power over Indian tribes to Congress” and chides “the majority for finding both that Indian tribes are still sovereign and that Congress has plenary power over them,” seemingly “daring the Court to choose one or the other”); Robert Laurence, Don’t Think of a Hippopotamus: An Essay on First-Year Contracts, Earthquake Prediction, Gun Control in Baghdad, the Indian Civil Rights Act, the Clean Water Act, and Justice Thomas’s Separate Opinion in United States v. Lara, 40 Tulsa L. Rev. 137, 146–53 (2004) (commenting on Justice Thomas’s concurring opinion in Lara and arguing the ambiguities, complexities, and inherent tensions in American Indian law require one to hold two contradictory thoughts in one’s mind at one time, balancing European-style individual freedoms with tribal self-determination). 164 541 U.S. at 231 (Souter, J., dissenting); see generally Frickey, supra note 143, at 468–70 (like Justice Kennedy, Justice Souter failed to identify what constitutional provision “forbids inherent tribal authority over nonmember Indians” or by what right the Supreme Court claims “authority to immunize its decisions about tribes from congressional override”). 165 541 U.S. at 204–05; see Means v. Navajo Nation, 432 F.3d 924, 929–35 (9th Cir. 2005) (Duro amendments do not violate nonmember Indian’s Fifth Amendment equal protection or due process rights); Morris v. Tanner, 288 F. Supp. 2d 1133, 1141–44 (D. Mont. 2003) (same), aff’d, 160 Fed. Appx. 600 (9th Cir. 2005); see generally David A. Castleman, Comment, Personal Jurisdiction in Tribal Courts, 154 U. Pa. L. Rev. 1253, 1282 (2006) (arguing that ICRA’s due process protection as to the exercise of personal jurisdiction should be coterminous with the Fifth Amendment’s due process requirements); Will Trachman, Comment, Tribal Criminal Jurisdiction After U.S. v. Lara: Answering Constitutional Challenges to the Duro Fix, 93 Cal. L. Rev. 847, 896 (2005) (discussing Morris district court litigation, and suggesting the Supreme Court’s “willingness

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Finally, ICRA’s only explicit remedy provision provides for “[t]he privilege of the writ of habeas corpus . . . in a court of the United States to test the legality of [the petitioner’s] detention by order of an Indian tribe.”166 Ten years would pass after ICRA’s enactment before resolution of whether the habeas corpus remedy was the exclusive method of enforcing the law. B. Santa Clara Pueblo v. Martinez Whether ICRA created an implied right of action for relief other than habeas corpus was decided in the negative in Santa Clara Pueblo v. Martinez.167 At issue in Martinez was a request for declaratory and injunctive relief against the Santa Clara Pueblo and its governor to prevent enforcement of a tribal ordinance denying tribal membership to children of female members who marry outside the tribe but granting tribal membership to the children of male members who marry outside the tribe. A female child of a tribal member claimed the ordinance discriminated on the basis of sex and ancestry, denying her equal protection of the law in violation of ICRA.168 The district court held that while the tribe had existed for over 600 years and the tribal ordinance had only a 38-year history, the ordinance nevertheless reflected the tribe’s traditional value of patriarchy, and found that resolving the balance of interests between the tribe and the female child was better left to the tribe to determine.169 The court of appeals disagreed, reasoning that the ordinance violated ICRA because it was relatively new and because it did not identify members of the Santa Clara Pueblo rationally.170

to uphold the Duro fix may come at a significant price to tribes if it requires construing ICRA to incorporate wholesale protections for defendants that are imported from the Constitution”). 166 25 U.S.C. § 1303; see Quair v. Sisco, 359 F. Supp. 2d 948, 974 (E.D. Cal. 2004) (although disenrollment and exclusion were effected by action of the general council composed of tribe’s entire adult population, tribal council members are properly named as respondents because they “act[] on behalf of and at the behest of the General Council”); see generally Angela R. Riley, Good (Native) Governance, 107 Colum. L. Rev. 1049, 1116 (2007) (“History and contemporary circumstances tell us that, unless limited, powerful elites may misuse their authority. This is not to say that tribes should avoid employing banishment as a punishment altogether. But because banishment has the potential for such grave abuse—to silence dissenting voices or to increase remaining members’ shares of goods and services—it is critical that it is used in conjunction with other important protections. The absence of any of the requisite factors may raise concerns about the legitimacy of banishment and, correspondingly, Native governance”) (footnote omitted); Eric Reitman, Note, An Argument for the Partial Abrogation of Federally Recognized Indian Tribes’ Sovereign Power Over Membership, 92 Va. L. Rev. 793, 812, 815 (2006) (construing Quair “effectively [to] allow[] a habeas action against a sovereign[,]” but nonetheless criticizing “the extremely limited force of weak habeas review—whose guarantee of ‘appropriate due process’ amounts to ‘essentially a re-hearing’ ”).

436 U.S. 49 (1978).

167

25 U.S.C. § 1302(8). The Pueblo’s denial of tribal membership meant that the child could not vote in tribal elections, could not hold elective office, could not inherit a mother’s home or a possessory interest in lands, and had no right to remain on the reservation upon his mother’s death. Martinez, 436 U.S. at 51. 168

Id. at 54.

169

Martinez v. Santa Clara Pueblo, 540 F.2d 1039, 1046–48 (10th Cir. 1976), rev’d, 436 U.S. 49 (1978).

170

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The Supreme Court reversed the court of appeals’ decision. It found first that tribal sovereign immunity barred suit against the tribe because “[n]othing on the face of . . . the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief” and “since the respondent in a habeas corpus action is the individual custodian of the prisoner” rather than the tribe itself.171 The Court then turned its attention to the more difficult question of whether a female member whose child is denied membership may nonetheless maintain an action against the pueblo’s governor. The Court began this analysis with the observation that, [a]lthough Congress clearly has the power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief in § 1303, a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent.172

In a lengthy discussion of the provisions of ICRA itself, the Court noted the “distinct and competing purposes” of strengthening the position of individual tribal members with respect to their tribes and promoting tribal selfgovernment.173 Based on this conclusion and ICRA’s legislative history, which showed rejection of provisions that would have authorized “de novo review in federal court of all convictions obtained in tribal courts”174 and “proposals for federal review of alleged violations of the Act arising in a civil context,”175 the Court was “persuade[d] . . . that Congress, aware of the intrusive effect of federal judicial review upon tribal self-government, intended to create only a limited mechanism for such review, namely, that provided for expressly in § 1303.”176 The Martinez Court dealt only with whether a private cause of action existed in federal court. The Court did find that “tribal forums are available to vindicate rights created by the ICRA[] and [that] § 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply.”177 Absent a private right of action in federal court to enforce the full range of

436 U.S. at 59.

171

Id. at 60.

172

Id. at 61.

173

Id. at 67.

174

Id.

175

Id. at 70. Justice White dissented, agreeing that the tribe possessed immunity from suit but believing that a private right of action against tribal officers should be implied. Id. at 73 and n.2 (White, J., dissenting). 176

177 436 U.S. at 65; see generally Kevin J. Worthen, Shedding New Light on an Old Debate: A Federal Indian Law Perspective on Congressional Authority to Limit Federal Question Jurisdiction, 75 Minn. L. Rev. 65, 89–90, 119 (1990).

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rights created under ICRA, however, the statute’s efficacy is questionable. As one commentator has put it, Martinez “results in the anomaly of a federal civil rights act that provides only very limited federal remedies to enforce it.”178 C. Post-Martinez Federal Court Enforcement Since Martinez, there have been a relatively small number of decisions addressing the scope of or the entitlement to the habeas corpus remedy. The nature of the required “detention” for purposes of habeas corpus jurisdiction was examined perhaps most extensively in Poodry v. Tonawanda Band of Seneca Indians.179 The petitioners in Poodry had accused tribal officials of misconduct and, in response, were served with an order of banishment from the reservation for treason. The tribe maintained that banishment was not “detention” under ICRA. The court of appeals rejected the tribe’s argument that detention was limited to criminal matters and found that banishment was a sufficiently significant restraint on personal liberty to invoke the potential right to habeas corpus relief.180 It ruled that a cause of action existed against tribal officials with authority to rescind the banishment order notwithstanding the tribe’s immunity from suit.181 Habeas relief also may be available in a limited class of other civil matters, such as civil commitment, delinquency, child custody,

178 Charles F. Wilkinson, American Indians, Time, and the Law 114 (1987); see also Eric Reitman, Note, An Argument for the Partial Abrogation of Federally Recognized Indian Tribes’ Sovereign Power Over Membership, 92 Va. L. Rev. 793, 833–34 (2006) (although recognizing the strength of habeas corpus review in other contexts, arguing that “as tribal due process is not bound by federal constitutional due process jurisprudence—or indeed any substantive body of law justiciable outside the tribe—the ‘re-hearing’ made available under the procedural habeas approach may afford challengers little, if any, traction before a hostile tribal government”); David A. Castleman, Comment, Personal Jurisdiction in Tribal Courts, 154 U. Pa. L. Rev. 1253, 1282 (2006) (arguing that “Congress has both chosen to limit the exercise of personal jurisdiction through the ICRA and chosen not to create a federal cause of action to challenge tribal courts’ violations of the ICRA”). The absence of a direct cause of action to enforce ICRA, however, does not mean that its violation may not have collateral consequences in state or federal prosecutions. Compare People v. Ramirez, 56 Cal. Rptr. 3d 631, 639 (Ct. App. 2007) (holding that ICRA requires state courts to exclude evidence seized by tribal officers in violation of ICRA’s requirements since “we take it as given that Congress expected this well-established common law principle—the exclusionary rule—to be as much a part of the prohibition against unreasonable searches and seizures in section 1302(2) as it was then considered a part of the identical prohibition in the federal Constitution”), with State v. Walker, 153 P.3d 614, 617–18 (Mont. 2007) (no error in relying on uncounselled tribal court conviction in state court prosecution since neither ICRA nor the involved tribe’s law required appointment of counsel in the tribal proceeding).

85 F.3d 874 (2d Cir. 1996).

179

Id. at 893–96.

180

Id. at 899; see Shenandoah v. USDOI, 159 F.3d 708, 714 (2d Cir. 1998) (distinguishing Poodry and holding habeas corpus relief unavailable where complainants claimed, inter alia, interference with employment and various membership rights since the conduct, as alleged, did not constitute “a ‘severe or potential restraint on [their] liberty’ ”); Alire v. Jackson, 65 F. Supp. 2d 1124, 1127 (D. Or. 1999) (discussing Poodry and concluding that “the writ of habeas corpus available under section 1303 is limited to unlawful detentions arising out of tribal criminal decisions”). The pre-Poodry decision in Randall v. Yakima Nation Tribal Court, 841 F.2d 897, 902 (9th Cir. 1988), presented the issue of reconciling ICRA with tribal customs in a quite different context but nevertheless is instructive of the considerations that may counsel deference to those customs. There, a tribal court’s refusal to rule on a member’s motion for a waiver of filing fees in her appeal from an embezzlement conviction was found to violate federal constitutional standards and to warrant relief under § 1303. The court refused to accept tribal custom or tradition as controlling because the tribe’s 181

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and contempt proceedings.182 As reflected in Duro v. Reina183 and Oliphant v. Suquamish Indian Tribe,184 such relief may be awarded with respect to actual custody arising from criminal proceedings.185 A divided panel of the Tenth Circuit Court of Appeals, however, did create a narrow exception to Martinez’s general bar to ICRA claims being brought against Indian tribes in federal courts. In Dry Creek Lodge,186 nonmembers brought suit against two Indian tribes for damages related to the tribes’ closing of a road leading to the nonmembers’ guest lodge. The court of appeals agreed with the district court jury that plaintiffs’ constitutional rights had been violated and remanded the case for a trial on damages. The court found Martinez inapposite because it concerned purely intratribal policy matters and involved at least one plaintiff who was a tribal member with the right to participate directly in tribal governance. In contrast, the court of appeals reasoned, the Dry Creek Lodge plaintiffs had no forum and no remedy other than self-help absent the availability of federal court intervention.187 The validity of the Dry Creek exception is questionable. Although one federal district court has employed it in a reported decision to award substantive relief,188 a substantial number of courts either have found it incompatible with Martinez or have distinguished it factually.189 Even the Tenth Circuit and

appellate procedures were similar to those employed in Anglo-Saxon society and so were not entitled to the deference generally accorded to a more traditional tribal justice system. Id. at 900. 182 DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 515 (8th Cir. 1989); LaBeau v. Dakota, 815 F. Supp. 1074 (W.D. Mich. 1993); Tracy v. Superior Ct., 810 P.2d 1030, 1049 (Ariz. 1991); but see Shenandoah v. Halbritter, 366 F.3d 89, 92 (2d Cir. 2004) (destruction of home constituted “an economic restraint, rather than a restraint on liberty,” and did not give rise to habeas corpus remedy under ICRA); Sandman v. Dakota, 816 F. Supp. 448 (W.D. Mich. 1992) (writ of habeas corpus not available to tribal member to challenge child custody order of tribal court), aff’d, 7 F.3d 234 (6th Cir. 1993). Habeas corpus under ICRA may not be appropriate, however, in child custody proceedings if the children are not in tribal custody. See Weatherwax ex rel. Carlson v. Fairbanks, 619 F. Supp. 294, 296–97 (D. Mont. 1985); Wells v. Philbrick, 486 F. Supp. 807, 809 (D.S.D. 1980).

495 U.S. 676, 681–82 (1990).

183

435 U.S. 191 (1978).

184

See Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948, 952–54 (9th Cir. 1998) (addressing claimed compulsory process violation on the merits, but declining to resolve alleged confrontation denial because of failure to exhaust tribal court remedies). 185

Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980).

186

Id. at 685.

187

Little Horn State Bank v. Crow Tribal Ct., 690 F. Supp. 919 (D. Mont. 1988) (enjoining tribal court order that directed return of property seized by bank pursuant to state court judgment after tribal court refused for over two years to act on bank’s request to enforce judgment), vacated pursuant to stipulation, 708 F. Supp. 1561 (D. Mont. 1989); see also Boudman v. Aroostook Band of Micmac Indians, 54 F. Supp. 2d 44, 49 n.4 (D. Me. 1999) (plaintiff’s motion to amend complaint to allege ICRA claim in employment termination permitted when she alleged tribe ignored her repeated attempts to utilize the tribal forum, although “[t]he Court hesitates to rule on whether Santa Clara leaves room for any exceptions to its broad rule, since neither party has briefed the issue . . . and the as yet unelaborated facts of this case likely will be relevant to a determination on that question”). 188

189 Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256, 1260 n.5 (9th Cir. 2000) (noting the Dry Creek exception and prior Ninth Circuit authority appearing to reject the exception, but

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district courts within that circuit have emphasized that the exception’s application is restricted to cases involving particularly egregious actions for which plaintiffs are left remediless after exhausting tribal court procedures.190 Dry Creek, in short, provides little, if any, assistance to parties seeking to enforce the terms of ICRA under any provision other than the statute’s express habeas corpus remedy.

concluding that “we need not decide if we should follow the Tenth Circuit in creating a limited exception to the Santa Clara rule because the plaintiffs are not, at least at this stage of the litigation, without alternative avenues of relief”); Fillion v. Houlton Band of Maliseet Indians, 54 F. Supp. 2d 50, 53 (D. Me. 1999) (plaintiff must actually seek available tribal remedy with respect to her employment termination, not merely allege such remedy’s futility, before invoking Dry Creek exception); Shannon v. Houlton Band of Maliseet Indians, 54 F. Supp. 2d 35, 43 (D. Me. 1999) (Dry Creek exception not available in employment termination when complainant was tribal member and, in any event, did not follow grievance procedure outlined in tribe’s personnel manual); Whiteco Metrocom Div. v. Yankton Sioux Tribe, 902 F. Supp. 199, 202 (D.S.D. 1995) (refusing to follow Dry Creek where claim involved “a simple contract dispute and raise[d] no issue of constitutional magnitude”); Barker v. Menominee Nation Casino, 897 F. Supp. 389, 394–96 (E.D. Wis. 1995) (finding Dry Creek exception inapplicable to wrongful discharge claim); Williams v. Pyramid Lake Paiute Tribe, 625 F. Supp. 1457, 1458 (D. Nev. 1986) (wrongful death action where court noted plaintiffs had not exhausted tribal court remedies and observed further that “Dry Creek is not the law of this circuit, nor is it the law of the United States”); United Nuclear Corp. v. Clark, 584 F. Supp. 107 (D.D.C. 1984) (suit seeking declaratory judgment to require Navajo Tribe’s approval of mine lease was not analogous to Dry Creek); see generally Bruce A. Wagman, Advancing Tribal Sovereign Immunity as a Pathway to Power, 27 U.S.F. L. Rev. 419, 449–53, 471 (1993). 190 See Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1012–13 (10th Cir. 2007) (claim that tribal forfeiture proceeding violated ICRA was not reviewable under the Dry Creek exception since, inter alia, mere allegation that tribe would assert sovereign immunity in tribal court proceedings was inadequate to establish futility and since the plaintiffs in fact “participated in the Tribal Court forfeiture proceeding and they affirmatively contended in their district court complaint that they have exhausted all tribal remedies”); Walton v. Tesuque Pueblo, 443 F.3d 1274, 1279 (10th Cir. 2006) (identifying requirements for Dry Creek exception’s applicability, and finding one such requirement—the unavailability of any tribal forum—absent even though no remedy was available against the tribe; “[a] tribal court’s dismissal of a suit as barred by sovereign immunity is simply not the same thing as having no tribal forum to hear the dispute”); Ordinance 59 Ass’n v. USDOI, 163 F.3d 1150, 1158 (10th Cir. 1998) (finding Dry Creek exception inapplicable where dispute involved tribal enrollment and tribal forum may exist to address controversy, and emphasizing “the minimal precedential value of Dry Creek”); Olguin v. Lucero, 87 F.3d 401, 404 (10th Cir. 1996) (distinguishing Dry Creek because the plaintiffs there “were prevented from even filing a cause of action in tribal court and were instead directed to use ‘self-help,’ while the appellants currently have a cause of action pending before the tribal court”); Nero v. Cherokee Nation, 892 F.2d 1457, 1460 (10th Cir. 1989) (Dry Creek exception is limited to plaintiffs who pursue tribal court remedies in disputes not concerning the internal tribal affairs of membership and government); Wheeler v. Swimmer, 835 F.2d 259 (10th Cir. 1987) (federal district court lacks subject matter jurisdiction over tribal members’ claims for declaratory, injunctive, and monetary damages under ICRA in connection with a tribal election); White v. Pueblo of San Juan, 728 F.2d 1307, 1312–13 (10th Cir. 1984) (complaint alleging deprivation of property without due process and without compensation related to land sale dismissed because, if tribal remedies exist, they are exclusive and because plaintiffs had failed to exhaust those remedies); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir. 1982) (claims alleging violation of due process by filing suit in federal court do not involve particularly egregious personal restraints, and such claims are barred by tribal sovereign immunity); Sahmaunt v. Horse, 593 F. Supp. 162 (W.D. Okla. 1984) (claims against tribal business committee members in official capacities and as individuals concerning tribal elections dismissed as barred even prior to Martinez); Kenai Oil & Gas Inc. v. DOI, 522 F. Supp. 521 (D. Utah 1981) (claims against members of Ute Business Committee and Ute Tribe concerning approval of agreements fails to state ICRA claim, but even if it did, plaintiffs must show that a tribal remedy is nonexistent), aff’d on other grounds, 671 F.2d 383 (10th Cir. 1982); see generally Jennifer S. Byram, Civil Rights on Reservations: The Indian Civil Rights Act and Tribal Sovereignty, 25 Okla. City L. Rev. 491 (2000) (advocating limited federal court review of tribal ICRA decisions based on arbitrary and capricious standard).

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D. Tribal Court Application of ICRA In earlier cases many tribal courts rejected claims that tribal procedures did not satisfy ICRA’s requirements. In Kinslow v. Business Committee,191 for example, the tribal supreme court found that the plaintiff’s due process rights were not violated when fellow members of the business committee, victims of his alleged wrongdoing, had testified against him at a removal hearing and then voted for his removal from the business committee, reasoning that their votes were not predetermined.192 As ICRA reaches its fortieth year, the reported cases have multiplied and reflect a general, but hardly universal, view that federal Constitution–based law governs the statute’s application.193

15 Indian L. Rep. 6007 (Citizen B. Potaw. S. Ct. Feb. 17, 1988).

191

See also McLean v. Bailey, 15 Indian L. Rep. 6013 (N. Chy. Tr. Ct. Apr. 22, 1988) (no deprivation of due process in plaintiff’s removal from housing authority board where plaintiff had no property right in membership because her appointment was temporary); Squaxin Island Tribe v. Johns, 15 Indian L. Rep. 6010 (Squaxin Is. Tr. Ct. June 30, 1987) (no violation of due process where criminal defendant waived right to jury trial by failing to appear for two scheduled jury trials and failed to request a jury seven days before the trial). 192

193 Compare High Elk v. Veit, 33 Indian L. Rep. 6033 (Cheyenne R. Sx. Ct. App. Jan. 5, 2006) (attachment/garnishment order violated ICRA’s due process requirements of notice and hearing); Cheyenne River Hous. Auth. v. Howard, 32 Indian L. Rep. 6165 (Cheyenne R. Sx. Ct. App. Sept. 23, 2005) (ICRA provides no right to appointed counsel, and the right to retained counsel applies only to criminal proceedings, which does not include civil eviction proceeding; nonetheless, given pro se defendant’s history of impairment and incapacitation caused by alcoholism, customary tribal concepts of “fundamental fairness and respect,” as well as ICRA’s due process standard, required tribal court to ensure defendant had a “realistic opportunity” to present his defense); Cheyenne River Sioux Gas Co. v. Dupris, 32 Indian L. Rep. 6137 (Cheyenne R. Sx. Ct. App. Aug. 25, 2005) (any challenge to the validity of a contempt order invokes the right to counsel under ICRA); Monette v. Schlenvogt, 32 Indian L. Rep. 6074 (Turtle Mt. Ct. App. Mar. 31, 2005) (insufficient notice of contempt hearing violated ICRA’s due process guarantee); In re Suspension of Bluespruce, 31 Indian L. Rep. 6105 (Cheyenne R. Sx. Ct. App. Aug. 23, 2004) (suspension of attorney from practice before tribal court without hearing violated due process guarantee of ICRA); McGrady v. Three Affiliated Tribes, 31 Indian L. Rep. 6058 (N. Plns. Intertr. Ct. App. May 19, 2004) (prosecution’s failure to notify defendant that he must request a jury trial at the time of arraignment, and by not doing so he waives that right, violates right to jury trial guaranteed under ICRA); Synowski v. Confederated Tribes of Grand Ronde, 31 Indian L. Rep. 6117 (Grand Ronde Cmty. Ct. App. Jan. 22, 2003) (federal procedural due process standards applied in determining that tribal employee entitled to representation by attorney at independent review board hearings); Grossi v. Mashantucket Pequot Gaming Enter., 26 Indian L. Rep. 6112 (Mash. Peq. Ct. App. Nov. 5, 1998) (denial of right to call and cross-examine witnesses constituted per se violation of ICRA requiring no showing of actual prejudice); Carmenoros v. S. Ute Tribe, 18 Indian L. Rep. 6147 (Sw. Intertr. Ct. App. Aug. 29, 1991) (reversing a guilty plea on the basis that failing to advise a defendant that an arraignment could be postponed in order for the defendant to obtain counsel violated due process); and Griffith v. Wilkie, 18 Indian L. Rep. 6058 (N. Plns. Intertr. Ct. App. Jan. 10, 1991) (tribe violated equal protection because it precluded the father of an illegitimate child from the custody, services, and earnings of the child), with Colville Confederated Tribes v. Bearcub, 35 Indian L. Rep. 6011 (Colville Confederated Tr. Ct. Feb. 5, 2008) (reasoning that “free speech” for purposes of the tribal civil rights code, which was adopted to implement ICRA, was not necessary the same as under the First Amendment, and concluding that criminal prosecution for email alleged to impeach the honesty and integrity or reputation of others should not be dismissed before trial); Bryant v. Saginaw Chippewa Tribal Clerk, 32 Indian L. Rep. 6090 (Saginaw Chippewa Tr. Ct. App. Mar. 21, 2005) (refusing to construe tribe’s constitutional membership eligibility provision in a manner that violates ICRA’s due process and equal protection guarantees); Thomas v. Coquille Indian Tribe, 31 Indian L. Rep. 6083 (Coquille Indian Tr. Ct. Mar. 9, 2004) (declining to reach issue of whether tribal court remedies exist to address due process and equal protection challenges because complaint failed to state a claim); Frost v. S. Ute Tribal Council, 23 Indian L. Rep. 6135, 6138–39 (S. Ute Tr. Ct. June 25, 1996) (rejecting selective enforcement claim and finding due process allegation premature); and Sitting Crow v. Widow, 20 Indian L. Rep. 6073 (Cheyenne R. Sx. Ct. App. July 6, 1993) (inadvertent failure to tape record a hearing on a motion to vacate judgment

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These decisions, however, do not permit easy categorization with respect to how federal law has been interpreted, and litigants thus must pay close attention to the precedent of the particular tribal court system. As in federal courts, the question of immunity from suit has provoked controversy. Some tribal courts in early post-ICRA cases held that tribal sovereign immunity barred claims under the statute not only against a tribe but also against its officials.194 However, later decisions indicate that suits against

did not violate due process under ICRA); cf. Finley v. Colville Tribal Servs. Corp., 33 Indian L. Rep. 6038 (Colville Confederated Tr. Ct. App. Mar. 6, 2006) (under due process clause in tribal civil rights act that is identical to ICRA’s due process clause, seasonal employee had a reasonable expectation of continued employment, which is a property interest protected by due process procedures); Colville Confederated Tribes v. Marchand, 33 Indian L. Rep. 6036 (Colville Confederated Tr. Ct. Feb. 7, 2006) (refusing to follow the Sixth Amendment confrontation clause holding and analysis in Washington v. Crawford, 541 U.S. 36 (2004), and instead calling for an elders’ panel to explain to the court any traditions or customs as they relate to a right to confront accusers, because “[i]n elucidating the meaning of the generic phrase ‘right of confrontation,’ this Court must look to our history, not the history of the United States nor the history of England”); McAllister v. Spirit Mountain Gaming, Inc., 33 Indian L. Rep. 6057 (Grand Ronde Cmty. Tr. Ct. Dec. 29, 2005) (refusing to dismiss complaint alleging tribal tort claims ordinance violated ICRA’s due process guarantee); Strickland v. DeCoteau, 31 Indian L. Rep. 6021 (Turtle Mt. Tr. Ct. Nov. 25, 2003) (drug testing policy constituted unreasonable search in violation of ICRA); Pearsall v. Tribal Council, 31 Indian L. Rep. 6129 (Grand Ronde Cmty. Tr. Ct. Feb. 19, 2003) (rejecting claim that five-month suspension constituted excessive fine in violation of ICRA); see generally Patrick M. Garry et al., Tribal Incorporation of First Amendment Norms: A Case Study of the Indian Tribes of South Dakota, 53 S.D. L. Rev. 335, 363 (2008) (analyzing the few reported freedom of speech, freedom of the press, free exercise, and freedom of assembly decisions from various tribal courts outside South Dakota; reporting results of survey among South Dakota tribes that revealed “very few individual rights disputes”—a finding that the authors attributed to the fact that “tribal society is a more community based society, and a less individualistic one, [and thus] apparently generates much fewer individual rights type conflicts than does the more dominant U.S. society”); Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Cal. L. Rev. 799, 839 (2007) (“[T]ribal courts retain interpretive authority over ICRA provisions and need not interpret them “jot for jot” with federal courts. In other words, Indian tribes are authorized and encouraged to apply ICRA’s provisions consistent with tribal values and traditions”) (footnote omitted); Matthew L.M. Fletcher, Theoretical Restrictions on the Sharing of Indigenous Biological Knowledge: Implications for Freedom of Speech in Tribal Law, 14-SPR Kan. J.L. & Pub. Pol’y 525, 538 (2005) (reviewing tribal court decisions that reflect “the broad spectrum of tribal courts’ choice of law (federal, state, tribal law, or a combination thereof ) and the application of that law”); Matthew L.M. Fletcher, Tribal Employment Separation: Tribal Law Enigma, Tribal Governance Paradox, and Tribal Court Conundrum, 38 U. Mich. J.L. Reform 273, 279, 294–335 (2005) (analyzing various tribal court due process formulations and tribal sovereign immunity in employment separation law context, and arguing that “Euro-American law and jurisprudence is uniquely unsuited to Indian Tribes and Tribal Courts”); Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479 (2000) (extensively reviewing tribal court decisions under ICRA, and suggesting various analytical approaches to applying the statute’s requirements); Robert J. McCarthy, Note, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 34 Ind. L. Rev. 465 (1998) (arguing that tribal courts, with their emphasis on alternative dispute resolution, are a good model of an alternative to the adversarial system); Christian M. Freitag, Note, Putting Martinez to the Test: Tribal Court Disposition of Due Process, 72 Ind. L.J. 831, 863 (1997) (reviewing post-Martinez decisions from several tribal court systems, and noting “the infrequency with which tribal courts are faced with issues concerning the civil rights provisions contained in Title II of the ICRA”). 194 See generally Angela R. Riley, Good (Native) Governance, 107 Colum. L. Rev. 1049, 1111 (2007); Vicki J. Limas, Employment Suits Against Indian Tribes: Balancing Sovereign Rights and Civil Rights, 70 Denv. U.L. Rev. 359 (1993); Ralph W. Johnson and James M. Madden, Sovereign Immunity in Indian Tribal Law, 12 Am. Indian L. Rev. 153, 158, 160–69 (1984). Tribal courts’ views on whether the tribe has waived or Congress has abrogated a tribe’s sovereign immunity in tribal courts may track federal court decisions or may be based on cultural concerns. See id. at 160–69, 190–93.

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officials acting beyond their authority will be allowed.195 Substantial litigation

195 See Jackson v. Kahgegab, 33 Indian L. Rep. 6105 (Saginaw Chippewa Indian Tr. App. Ct. Aug. 11, 2003) (declining to recognize Ex parte Young exception because it is concerned “with principles of federalism involving the relationship of the federal and state sovereigns to each other[,]” but nevertheless refusing to extend immunity as a defense to all requests for prospective relief since “the due process and equal protection guarantees of ICRA also vindicate important tribal cultural values that ought not to be jeopardized by unduly expansive notions of tribal sovereign immunity”); Fox v. Brown, 32 Indian L. Rep. 6175 (Mohegan Tr. Ct. Oct. 3, 2005) (allegations in official capacity suit were insufficient to state a claim that tribal council members acted beyond the scope of their authority); Whiteeagle v. Cloud, 32 Indian L. Rep. 6024 (Ho-Chunk Sup. Ct. Jan. 3, 2005) (“bald statement that any actions that interfere with or abridge a member’s right to participate in [tribal council meeting] is unconstitutional per se” is insufficient to show individuals charged with arranging the meeting acted outside the scope of their authority); Bear Don’t Walk v. Confederated Salish and Kootenai Tribal Council, 31 Indian L. Rep. 6061 (Confederated Salish & K. Tr. Ct. App. May 28, 2004) (tribal law extends sovereign immunity to individual tribal council members in employment discrimination action); Thomas v. Coquille Indian Tribe, 31 Indian L. Rep. 6083 (Coquille Indian Tr. Ct. Mar. 9, 2004) (same holding in action seeking specific performance to hire tribal police officer); Gilman v. Janus, 31 Indian L. Rep. 6041 (Mohegan Tr. Ct. Feb. 9, 2004) (dismissing complaint where tribal constitution waived immunity for employees only when acting outside scope of authority); Strickland v. DeCoteau, 31 Indian L. Rep. 6021 (Turtle Mt. Tr. Ct. Nov. 25, 2003) (tribal official is subject to injunctive relief when acting outside scope of authority and therefore may be held liable for violations of ICRA); Terry-Carpenter v. Las Vegas Paiute Tribal Council, 30 Indian L. Rep. 6150 (Las Vegas Paiute Ct. App. June 9, 2003) (construing tribal code to divest tribal courts of jurisdiction only when sovereign immunity is asserted properly, and holding further that tribal officials can be sued for prospective and retroactive relief in their individual capacities even when acting within scope of authority); DeCoteau v. Fort Peck Tribes, 30 Indian L. Rep. 6069 (Ft. Peck Tr. Ct. App. Dec. 5, 2002) (ICRA does not abrogate tribal immunity from suit except for habeas corpus actions under 25 U.S.C. § 1303, but tribal ordinance waived immunity of tribal officers and employees for prospective relief if acting outside scope of authority); Terry-Carpenter v. Las Vegas Paiute Tribal Council, 29 Indian L. Rep. 6041, 6046–48 (Las Vegas Paiute Ct. App. Feb. 25, 2002) (rejecting contention that ICRA abrogated tribal immunity from suit, but concluding that tribal ordinance waived such immunity); Milos v. Mashantucket Pequot Gaming Comm’n, 28 Indian L. Rep. 6174, 6177 (Mash. Peq. Ct. App. July 12, 2001) (questioning in dictum the assertion that sovereign immunity either categorically or presumptively abrogated by Congress with respect to ICRA claims); Ho-Chunk Nation Legislature v. Ho-Chunk Nation Gen. Council, 28 Indian L. Rep. 6168, 6172 (Ho-Chunk Tr. Ct. June 22, 2001) (holding that Ex parte Young exception available to seek nonmonetary relief against officers when acting outside scope of authority); Standing Rock Group for Accountability v. Defender, 29 Indian L. Rep. 6014, 6107 (Standing Rock Tr. Ct. June 13, 2001) (officials subject to prospective relief to secure compliance with tribal law); Healy v. Mashantucket Pequot Gaming Enter., 26 Indian L. Rep. 6189, 6191 (Mash. Peq. Ct. App. Jan. 7, 1999) (exercise of tribal court jurisdiction over ICRA claim does not intrude impermissibly on tribal sovereign immunity because relief is limited to determining whether ICRA violation can impose no substantive liability on tribe); Hall v. Lakeside State Bank, 26 Indian L. Rep. 6032, 6037 (Ft. Berthold Reserv. Dist. Ct. Nov. 11, 1998) (stating that “barring tribal elected officials from attending to their appropriate duties would constitute a violation of the Indian Civil Rights Act cognizable under the habeas corpus provisions of the ICRA,” but withholding final disposition of claim pending further tribal council meetings); Work v. Fallon Paiute-Shoshone Tribe, 24 Indian L. Rep. 6078 (Intertr. Ct. App., Feb. 25, 1997) (ICRA abrogates sovereign immunity for matters within statute’s scope); Pawnee Tribe v. Fransen, 19 Indian L. Rep. 6007 (Pawnee Ct. Indian App. Sept. 17, 1991) (court finds that while ICRA does not waive sovereign immunity to permit damage claims against the tribe, some courts allow injunctive relief where claim asserts that tribal official acted outside of lawful tribal or other authority in constitutional or election matters); Bell v. Executive Comm., 18 Indian L. Rep. 6041 (Wichita Ct. Indian App. Sept. 25, 1990) (ultra vires claims can be made only against officials, not the tribe); Davis v. Keplin, 18 Indian L. Rep. 6148 (Turtle Mt. Tr. Ct. Aug. 13, 1990) (concluding that Congress had waived tribal sovereign immunity in ICRA and that the statute creates private right of action in tribal court for denial of due process in an employment termination); Committee for Better Tribal Gov’t v. S. Ute Election Bd., 17 Indian L. Rep. 6095 (S. Ute Tr. Ct. Aug. 13, 1990) (tribal immunity extends to tribal officials acting within statutory or constitutional authority); cf. High Elk v. Iron Hawk, 33 Indian L. Rep. 6031 (Cheyenne R. Sx. Ct. App. Feb. 1, 2006) (sovereign immunity is generally not available in a mandamus action brought against a tribal officer to perform a duty created by tribal law enacted by the tribal council); see generally Matthew L.M. Fletcher, Tribal Employment Separation: Tribal Law Enigma, Tribal Governance Paradox, and Tribal Court Conundrum, 38 U. Mich. J.L. Reform 273, 323–29 (2005) (claiming tribal courts blur the doctrines of tribal sovereign immunity and official qualified immunity, neither of which is a traditional or customary tribal doctrine, and arguing tribal courts perhaps

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has additionally occurred over consent-to-suit provisions.196

do so intentionally “to come to a more correct result under Tribal custom”); Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 155–61, 177 (2004) (discussing various tribes’ approaches to providing remedies against tribal overreaching, and arguing that “[b]y waiving immunity from suit in tribal court, and not elsewhere, a tribe can provide accountability for governmental behavior while simultaneously reinforcing the authority of tribal courts and providing those courts with the opportunity to develop the substantive law in ways that reflect the tribe’s norms”). 196 Lake and Kerry Spears Masonry, Inc. v. Mashantucket Pequot Tribal Nation, 33 Indian L. Rep. 6040 (Mash. Peq. Tr. Ct. Mar. 3, 2006) (tribal council resolution, which acknowledged ongoing legal dispute between tribe and plaintiff and referred the matter to tribal court for resolution, did not constitute clear, unequivocal waiver of sovereign immunity for plaintiff’s untimely claims); McAllister v. Spirit Mountain Gaming, Inc., 33 Indian L. Rep. 6057 (Grand Ronde Cmty. Tr. Ct. Dec. 29, 2005) (tribal constitution waived sovereign immunity against actions challenging tribal council’s legislative acts); Hockaday v. Karuk Tribal Hous. Auth., 32 Indian L. Rep. 6169 (Karuk Tr. Ct. Oct. 7, 2005) (tribal constitution authorizes redress of members’ grievances before either the tribal council or the tribal court; member’s petition therefore could not be heard in tribal court because he had unsuccessfully sought relief from the tribal council); Confederated Tribes of Grand Ronde v. Strategic Wealth Mgmt., Inc., 32 Indian L. Rep. 6148 (Grand Ronde Cmty. Tr. Ct. Aug. 5, 2005) (tribe did not waive sovereign immunity against $1.7 million award of attorneys’ fees and costs associated with arbitration proceeding by filing suit under state securities act or agreeing to arbitrate dispute); LaVigne v. Mohegan Tribe, 32 Indian L. Rep. 6044 (Mohegan Tr. Ct. Mar. 3, 2005) (tribal ordinance proscribing certain employment practices waived tribal immunity for specific employment-related claims but slander was not included in the ordinance, therefore tribe did not waive immunity from suit for slander); Henry v. Confederated Tribe of Grand Ronde Cmty., 31 Indian L. Rep. 6092 (Grand Ronde Cmty. Tr. Ct. Apr. 14, 2004) (failure to exhaust administrative remedies precluded application of tribal ordinance’s limited waiver of sovereign immunity); Kalantari v. Spirit Mountain Gaming, Inc., 31 Indian L. Rep. 6079 (Grand Ronde Cmty. Tr. Ct. Mar. 24, 2004) (class III gaming compact provision waived tribe’s immunity from suit for amounts in excess of limit imposed under tribal tort claim ordinance); DeSouza v. Mashantucket Pequot Tribe, 31 Indian L. Rep. 6015 (Mash. Peq. Tr. Ct. Dec. 29, 2003) (no waiver of immunity from suit for alleged violations of tribal Indian preference policy even though characterized as equal protection or negligence claims); Mountain v. Fort Berthold Hous. Auth., 31 Indian L. Rep. 6102 (N. Plns. Intertr. Ct. App. Sept. 24, 2003) (negligence claim was not encompassed within tribal constitution’s waiver of sovereign immunity for prospective relief for ICRA violations, and mere purchase of liability insurance did not waive such immunity); Gwin v. Four Bears Casino & Lodge, 30 Indian L. Rep. 6120, 6121 (Ft. Berth. Reserv. Tr. Ct. Feb. 10, 2003) (although tribal business council and tribal chairman were immune from suit, casino waived its immunity “by enacting personnel policies and procedures that enable this Court to review the decisions of its third party administrators in termination of employment matters”); Laducer v. Fort Totten Hous. Auth., 28 Indian L. Rep. 6101 (Spirit Lake Tr. Ct. Jul. 10, 2000) (noting question whether ICRA abrogates tribal immunity from suit, but resolving issue on the basis of plaintiff’s failure to state a claim under the statute); Long v. Mohegan Tribal Gaming Auth., 25 Indian L. Rep. 6111, 6115–16 (Mohegan Gaming Disputes Trial Ct. Dec. 5, 1997) (holding that complaint’s allegations did not establish equal protection or due process violations, and therefore declining to determine whether tribe had waived immunity under tribal constitution with respect to actions that would state a claim under the ICRA); Shourd v. Mashantucket Gaming Enter., 24 Indian L. Rep. 6011 (Mash. Peq. Tr. Ct. Apr. 20, 1995) (action on contract claim against tribal enterprise not authorized under ordinance waiving sovereign immunity as to torts covered by liability insurance); Shippentower v. Confederated Tribes of Umatilla Indian Reserv., 20 Indian L. Rep. 6026 (Umatilla Tr. Ct. Jan. 27, 1993) (claim for equitable relief not barred by tribal sovereign immunity because tribal resolution granted court jurisdiction to hear plaintiff’s discrimination claim); Francis v. Wilkinson, 20 Indian L. Rep. 6015 (N. Plns. Intertr. Ct. App. Jan. 21, 1993) (sovereign immunity does not bar injunctive relief where tribal constitution provides that “Tribal Court [has] authority to enforce the provisions of the [ICRA] . . . including the award of injunctive relief only against the Tribal Business Council”); Board of Trustees v. Wynde, 18 Indian L. Rep. 6033 (N. Plns. Intertr. Ct. App. May 3, 1990) (sovereign immunity bars suit against college despite “sue or be sued” clause); Dupree v. Cheyenne River Hous. Auth., 16 Indian L. Rep. 6106 (Cheyenne R. Sx. Ct. App. Aug. 19, 1988) (remanding for determination of whether the complaint or facts show a waiver of sovereign immunity under “sue or be sued” clause or ICRA); Dubray v. Rosebud Hous. Auth., 12 Indian L. Rep. 6015 (Rosebud Sx. Tr. Ct. Feb. 1, 1985) (housing authority immune from suit by employees); see generally Kristen A. Carpenter, Considering Individual Religious Freedoms Under Tribal Constitutional Law, 14-SPG Kan. J.L. & Pub. Pol’y 561, 569 (2005) (discussing availability of tribal court remedies for ICRA rights generally, and observing that “an individual who seeks to lodge a religious freedoms claim against a tribal government is most likely to have her case heard if she brings it in tribal court”).

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Chapter 8 Indian Reserved Water Rights

Most treaties and executive orders that set aside land for Indian reservations do not have express provisions addressing water rights. Nevertheless, courts, with few exceptions, have found that there is an implied federal water right sufficient to fulfill the purposes of each reservation. These implied rights are called federal reserved rights, or “Winters rights,” after the United States Supreme Court case. Reserved rights differ from state-based prior appropriation rights because their priority is the reservation’s creation date, and they are not subject to forfeiture or abandonment for non-use. Many Indian tribes’ reserved rights are currently being adjudicated as part of comprehensive general stream adjudications occurring throughout the West. Given the early priorities that most reserved rights carry, coupled with the potential for large water awards in river systems that are often already overappropriated, these unquantified Indian reserved rights have the potential to impact the course of continued development in the West. Frequently, the lack of infrastructure required for the tribes to fully exploit their rights and the high cost of litigation

 Reserved rights apply to all federal enclaves. Cappaert v. United States, 426 U.S. 128, 138 (1976). This power stems from the Property Clause, U.S. Const. art. IV, § 3, and the Commerce Clause, U.S. Const. art. I, § 8. Cappaert, 426 U.S. at 138. If Indian reservations were established by treaty, the Treaty Clause, U.S. Const. art. II, § 2, also may be a basis for the exercise of federal power. See United States v. Adair, 723 F.2d 1394 (9th Cir. 1983).  Winters v. United States, 207 U.S. 564 (1908). As discussed below, the doctrine’s roots predate Winters, and reserved rights are recognized under two theories: Winters rights arising from federal reservations of land, and rights based on aboriginal use, which are often called Adair or Winans rights.  Arizona v. California, 373 U.S. 546, 600 (1963) (Arizona I). State-based prior appropriation rights generally carry a priority date of first use or diversion. A. Dan Tarlock, Law of Water Rights and Resources, §§ 5:29–5:31 (2002) (discussing state-based rights).  E.g., In re Gen. Adjudication of All Rights to Use of Water in Gila River Sys. and Source, 35 P.3d 68, 72 (Ariz. 2001) (“Gila V”). State-based rights are subject to abandonment or forfeiture if unused for a sufficient time. Tarlock, supra note 3, at §§ 5:87–5:89.

See Tarlock, supra note 3, at § 7; Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571 (1983).



See United States v. New Mexico, 438 U.S. 696, 705 (1978) (“federal reserved rights will frequently require a gallon-for-gallon reduction for water needy” appropriators). 

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has resulted in many tribes compromising their claims for reduced quantities of water accompanied by funding for infrastructure. The substantive differences between reserved rights and state rights has resulted in problems integrating the reserved rights into the state systems. The overlap of state and federal jurisdictions, and the relationships among the Indian tribes, the United States, and the individual states—all sovereigns—have resulted in complex litigation issues. Further, because each reservation’s rights are examined on their own terms, and each state has its own set of laws, judicial decisions are highly fact specific in nature and, therefore, of limited precedential value. Part I of this chapter discusses the substantive elements and historical development of reserved water rights and their relationship to state-based rights. The problems surrounding the adjudication and administration of state and tribal water rights, as well as the issues surrounding the appropriation and regulation of waters within Indian reservations, are discussed in part II of this chapter.

 See, generally, Bonnie G. Colby, John E. Thorson, and Sarah Britton, Negotiating Tribal Water Rights— Fulfilling Promises in the Arid West (2005); Tarlock, supra note 3, at § 9.44. One commentator accordingly has stated that “[c]urrently the primary barrier to development of tribal water resources is not the inability to reach settlement, but the inability to fund development once settlement is reached.” Barbara Cosens, A Framework for Evaluation of Tribal Water Settlements, 18-FALL Nat. Resources & Env’t 41, 43 (2003). With specific reference to Montana’s Milk River Basin, she identified as the elements of a durable settlement (1) a comprehensive solution; (2) an equitable distribution among current users, and between current and future generations; and (3) ease of implementation. The second factor, equitable distribution, presented particular difficulty in her view because “Tribal water development has not kept pace with that of their neighbors.” Id. at 43. The same commentator addressed the considerations militating toward settlement of reserved rights claims in a suite of articles dealing with the recent Nez Perce water rights agreement. Barbara Cosens, Truth or Consequences: Settling Water Disputes in the Face of Uncertainty, 42 Idaho L. Rev. 717 (2006); Francis E. McGovern, Mediation of the Snake River Basin Adjudication, 42 Idaho L. Rev. 547 (2006); K. Heidi Gudgell, Steven C. Moore, and Geoffrey Whiting, The Nez Perce Tribe’s Perspective on the Settlement of Its Water Right Claims in the Snake River Basins Adjudication, 42 Idaho L. Rev. 563 (2006); Ann R. Klee and Duane Mecham, The Nez Perce Indian Water Right Settlement—Federal Perspective, 42 Idaho L. Rev. 595 (2006); Steven W. Strack, Pandora’s Box or Golden Opportunity? Using the Settlement of Indian Reserved Water Right Claims to Affirm State Sovereignty Over Idaho Water and Promote Intergovernmental Cooperation, 42 Idaho L. Rev. 633 (2006); Laurence Michael Bogert, The Future Is No Place to Place Your Better Days: Sovereignty, Certainty, Opportunity and Governor Kempthorne’s Shaping of the Nez Perce Agreement, 42 Idaho L. Rev. 672 (2006); see also Alexander Hays V (Ti), The Nez Perce Water Rights Settlement and the Revolution in Indian Country, 36 Envtl. L. 869 (2006).  See generally John B. Carter, Indian Aboriginal and Reserved Water Rights: An Opportunity Lost, 64 Mont. L. Rev. 377 (2003) (noting that Montana’s 1972 constitutional amendments failed to recognize Indian reserved rights, and asserting that had the 1972 constitution recognized and confirmed these long-standing rights much expensive and divisive litigation might have been avoided).  United States v. New Mexico, 438 U.S. 696, 700–701 (1978) (careful examination is required because the right is implied, and because Congress almost invariably defers to state water law).

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I. SUBSTANTIVE ELEMENTS OF RESERVED WATER RIGHTS A. Historic Background Federal reserved water rights are ultimately derived from federal law, not tribal law, and must be traced to a treaty, agreement, statute, or execu­tive order.10 The substantive elements of a reserved water right also are determined by reference to federal law.11 The determination whether state laws, such as those relating to the abandonment of water rights for nonuse, are applicable to the administration of reserved water rights depends on the nature and purpose of the implied reservation, the history of regulation, and the characteristics of the water supply.12 The settlement of the western United States and the related development of the prior appropriation doctrine bear directly upon the development and present shape of the reserved water rights doctrine. Prior to Euro-American set­tlement, most of the western Indian tribes were seminomadic and traversed vast territories while hunting, fishing, and gathering for their sustenance. The policy of the United States throughout much of the nineteenth century was to gain sub­stantial land cessions from the Indian tribes for the purpose of nonIndian settlement and to concentrate Indians in areas reserved from cession while encouraging them to abandon their nomadic traditions.13 Most western reserva­tions were thus established with the purpose of converting tribes into agrarian societies, but their location on arid or semiarid lands necessitated irrigation water to fulfill the reservations’ purposes.14

10 See Winters v. United States, 207 U.S. 564, 577 (1908) (recognizing that it is the “power of the govern­ ment to reserve waters and exempt them from appropriation under the state laws”); New Mexico, 438 U.S. at 699–700; Arizona I, 373 U.S. 546, 600 (1963); see generally Harold A. Ranquist, The Winters Doctrine and How It Grew: Federal Reservation of Rights to the Use of Water, 1975 B.Y.U. L. Rev. 639, 647–48 (1975) (reservation of water is an exercise of federal power). 11 Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571 (1983) (“[O]ur decision in no way changes the substantive law by which Indian rights in state water adjudications must be judged. State courts, as much as federal courts, have a solemn obligation to follow federal law”); accord Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976); United States v. Dist. Ct. for Eagle County, 401 U.S. 520, 526 (1971). 12 Colville Confederated Tribes v. Walton, 460 F. Supp. 1320, 1326 (E.D. Wash. 1978), aff’d on other grounds, 647 F.2d 42 (9th Cir. 1981); In re Gen. Adjudication of All Rights to Use Water in Big Horn River Sys., 835 P.2d 273 (Wyo. 1992) (Big Horn III); United States v. City and County of Denver, 656 P.2d 1, 34 (Colo. 1982); State ex rel. Greeley v. Confederated Salish and Kootenai Tribes, 712 P.2d 754, 768 (Mont. 1985). 13 Winters v. United States, 207 U.S. 564, 576 (1908) (“[i]t was the policy of the government, it was the desire of the [I]ndians, to change those habits and become a pastoral and civilized people”); 1 Francis Paul Prucha, The Great Father: The United States Government and the American Indian 315–18, 562–81 (1984). 14 Winters, 207 U.S. at 576 (“[t]he lands were arid, and without irrigation were practically valueless”); see generally John W. Powell, Report on the Lands of the Arid Region (1879); Walter P. Webb, The Great Plains (1959); Wallace Earle Stegner, Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West (1953); Donald Worster, Rivers of Empire: Water, Aridity and the Growth of the American West (1985); Marc Reisner, Cadillac Desert (1986).

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At much the same time the reservation system was being established, the water law of the western states began to develop in the mining camps.15 Because of the aridity of the western territories, miners rejected the riparian law principles prevalent in the eastern, more humid regions of the country and, in a manner similar to the patenting of mining claims, created water rights by claiming and actually diverting water. The priority and quantity of a water right were set by the date of first use and the amount put to beneficial use.16 Eventually, these customs evolved into the appropriation doctrine recognized, in one form or another, in all the western states.17 Congress quickly recognized this developing legal system when it determined that “water rights on the public domain could be acquired under state law embodying the appropriation doctrine.”18 Against the backdrop of the prior appropriation system, federal courts began to develop the “implied reservation of water” doctrine. The seeds were first sown in United States v. Rio Grande Dam & Irrigation Co.,19 where the Court, while confirming that states had the power to change the common law of riparian rights and adopt an appropriative rights system, noted two limitations, one of which provided that in the absence of specific authority from Congress a State cannot by its legislation destroy the right of the United States, as owner of lands bor­ dering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the government property.20

Rio Grande did not establish that the government had a specific water right but rather held that it could enjoin the construction of a dam and the appro­priation of waters that would have substantially diminished the navigability of the Rio Grande.

15 E.g., United States v. City and County of Denver, 656 P.2d 1, 4–8 (Colo. 1982); Tarlock, supra note 3, at §§ 5.02–5.04; George A. Gould, Douglas L. Grant, and Gregory S. Weber, Cases and Materials on Water Law 20 (7th ed. 2005). 16 See, e.g., Irwin v. Phillips, 5 Cal. 140 (1855); Tarlock, supra note 3, at § 5.30. Under this doctrine, subsequent increases in the quantity of water diverted were considered new appropriations, and the pri­ority of the increased appropriation was the date of actual diversion. Thus, the increment above the orig­inal use was subject to intervening priorities. 17 Nineteen states currently use some form of the appropriation doctrine. Nine states rely solely on the appropriation, or the Colorado, doctrine: Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mex­ico, Utah, and Wyoming. Ten other states utilize what is known as the California doctrine, which relies primarily on the appropriation doctrine but also recognizes riparian rights in varying degrees: California, Kansas, Mississippi, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Washington. 18 United States v. City and County of Denver, 656 P.2d 1, 7–8 (Colo. 1982); see also California v. United States, 438 U.S. 645, 656 (1978); Cal. Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155 (1935); Act of July 26, 1866, § 9, 14 Stat. 253; Act of July 9, 1870, § 17, 16 Stat. 218; Act of Mar. 3, 1877, 19 Stat. 377.

174 U.S. 690 (1899).

19

Id. at 703. The other limitation discussed by the Rio Grande court stemmed from the navigation power contained in the Commerce Clause. Id. 20

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Several years later, in United States v. Winans,21 the Supreme Court reviewed language in the 1855 Treaty with the Yakimas22 reserving to the tribes the “right of taking fish at all usual and accustomed fish grounds . . . in common with the citizens of the territory.”23 The Court, reasoning that such language was “not a grant of rights to the Indians but a grant of rights from them—a reservation of those not granted”24—held that such rights impressed a continuing servitude upon the land that ran against the United States and its grantees.25 Importantly, the Court found the treaty fishing right was a perpetual right that continued to exist even after the state, upon admission into the Union, assumed sovereign authority over all fish and game within its boundaries.26 With these cases as the conceptual backdrop the Court rendered the seminal decision in Winters v. United States.27 Citing both Rio Grande and Winans, the Court held that an 1888 agreement and statute, which created the Fort Belknap Reservation in north-central Montana, implicitly reserved to the tribe water from the Milk River for irrigation purposes. The Court found that the policy of the United States to promote the transformation of tribal members to a “pastoral and civilized people” would be defeated and the land would become “practically valueless” unless the tribe’s supply of irriga­tion water was protected from non-Indians claiming water under state law.28 The Winters court did not clearly specify the basis of the right, a fact that spawned debate as to whether reserved water rights are made by Congress pursuant to its powers under the Property Clause and the Commerce Clause or reserved by the United States and the tribe under the terms of the appropriate treaty.29 The difference can be significant as to the nature, and particularly the priority, of the right.30 Reserved water rights have, in fact, been

198 U.S. 371 (1905).

21

12 Stat. 951 (1859).

22

Id. at 953.

23

Winans, 198 U.S. at 381–82.

24

Id.

25

Id. at 382–84.

26

207 U.S. 564 (1908). Implied Indian reserved water rights are generally referred to as “Winters rights.” See generally Norris Hundley, Jr., The “Winters” Decision and Indian Water Rights: A Mystery Reexamined, XIII W. Hist. Q. 17 (1982) (historical account of the Winters case); John Shurts, Indian Reserved Water Rights: The Winters Doctrine in Its Social and Legal Context, 1880s–1930s (Legal History of North America Series, Vol. 8, 2000). 27

Winters, 207 U.S. at 576.

28

See generally Michael C. Blumm, in 4 Water & Water Rights § 37.01(b)(2) (Robert E. Beck ed. 1996); Tarlock, supra note 3, at § 9.07(1)(b); Hundley, supra note 27, at 34. Indeed, the absence of a precise analytical foundation for the Winters doctrine has led at least one commentator to contend that it is susceptible of being applied to eastern Indian tribes, including nonfederally recognized tribes and those without lands or rights reserved by treaty or statute. Hope M. Babcock, Reserved Indian Water Rights in Riparian Jurisdictions: Water, Water Everywhere, Perhaps Some Drops for Us, 91 Cornell L. Rev. 1203 (2006). 29

E.g., Blumm, supra note 29, at § 37.02(a).

30

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recognized under both theories. The “Winters” right arises from government reservations of land, is generally consump­tive in nature, and is grounded essentially on the assumption that the federal government intended to convert tribes into agrarian peoples.31 Those based on an explicit reservation by the tribe of preexisting, or aboriginal, rights—sometimes referred to as “Adair” or even “Winans” rights—are generally nonconsumptive in nature and derive from aboriginal use, specific treaty lan­guage of reservation, and an established need for specific water flows to effectuate that reservation.32 In Winters, the Court focused on the bilateral aspects of the subject agreement to imply an intent on the part of the federal government to reserve water for the tribe, leaving open a question as to whether a similar reservation of water occurred when the federal government unilaterally settled tribes on reservations created pursuant to executive order or statute. It is now settled that reserved water rights may arise from unilateral actions such as executive orders setting aside lands for the use of Indian tribes.33 Since such executive orders are empowered by an implied but limited delegation of congressional authority to withdraw lands from the public domain,34 they are most akin to Winters rights and are based on the purposes of the reserva­tion created by the executive order. Finally, quite distinct Winters-related issues are presented by New Mexico Indian pueblos that were part of the territory ceded under the Treaty of Guadalupe Hidalgo. Those lands were not set aside for the affected tribes’ occupancy by congressional or executive branch action but instead are held in fee pursuant to Spanish land grants.35 As such, they fall outside the Winters paradigm of lands “reserved” for tribal occupancy by action of the federal government.36 Their unique status, however, does not mean either that Indian Pueblos have rights inferior to those that might otherwise be available under Winters. Instead, a New Mexico federal district court has held that “the Pueblos have aboriginal title, Indian rights or original Indian rights to their lands and the use of them including appurtenances” and accordingly have “long established rights to the use of water on their lands and for domestic purposes which were

31 Blumm, supra note 29, at § 37.02(a)(1); Martha C. Franks, The Uses of the Practically Irrigable Acreage Standard in the Quantification of Reserved Water Rights, 31 Nat. Res. J. 549, 563–571 (1991). 32 United States v. Adair, 723 F.2d 1394, 1409–11 (9th Cir. 1983); Colville Confederated Tribes v. Walton, 460 F. Supp. 1320 (E.D. Wash. 1978), aff’d on other grounds, 647 F.2d 42 (9th Cir. 1981); Blumm, supra note 29, at § 37.02(a)(2).

Arizona I, 373 U.S. 546, 598 (1963); United States v. Walker River Irr. Dist., 104 F.2d 334, 336 (9th Cir.

33

1939). See United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915).

34

See United States v. Sandoval, 231 U.S. 28, 48 (1913).

35

New Mexico ex rel. Reynolds v. Aamodt, 618 F. Supp. 993, 996 (D.N.M. 1985) (Aamodt II); see also New Mexico v. Aamodt, 537 F.2d 1102, 1108 (10th Cir. 1976) (“[t]he Pueblos did not obtain any rights by either treaty with the United States or by Executive Order”). 36

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recognized by Spain and Mexico.”37 Those rights, in turn, constitute a “prior right to use all of the water of the stream system necessary for their domestic use and that necessary to irrigate their lands,” excluding those pueblo lands whose tribal ownership was terminated by Congress.38 The same use priority was held to apply with regard to “ground water physically interrelated to the surface water as an integral part of the hydrologic cycle.”39 Water rights held by persons or entities that succeeded to ownership of Indian pueblo lands do not carry such priority but are subject to generally applicable prior appropriation principles.40 B. Non-Indian Reserved Water Rights Cases Until 1963 most cases applying the reserved water rights doctrine dealt with Indian reservations.41 The first actual allocation of reserved water for non-Indian lands came in Arizona I.42 All subsequent opinions from the Court construing the reserved water rights doctrine have involved non-Indian lands. These cases emphasize that, because the reserved water rights doctrine is based upon implication, it should be narrowly construed.43 In Cappaert v. United States44 the Court held that the presidential proc­ lamation creating the Devil’s Hole National Monument implicitly reserved water sufficient to preserve the habitat of the endangered desert pupfish. The Court noted, however, that the quantity of the water reserved must be “only

37 Aamodt II, 618 F. Supp. at 1009; accord State ex rel Martinez v. Kerr-McGee Corp., 898 P.2d 1256, 1264–65 (N.M. Ct. App. 1995).

Id. at 1010.

38

Id.

39

State ex rel. Martinez v. City of Las Vegas, 89 P.3d 47 (N.M. 2004), overruling Cartwright v. Pub. Serv. Co., 343 P.2d 654 (N.M. 1958). Under the “pueblo water right doctrine” repudiated in Martinez, “municipalities that are the successors-in-interest to colonization pueblos established by antecedent sovereigns possess a pueblo water right,” which “entitles a municipality to take as much water from an adjacent water course as necessary for municipal purposes and permits expansion of the right to accommodate increased municipal needs due to population increases.” Id. at 48; see generally Taiawagi Helton, Indian Reserved Water Rights in the Dual-System State of Oklahoma, 33 Tulsa L.J. 979 (1998); Pierre Levy, Note, Which Right Is Right: The Pueblo Water Rights Doctrine Meets Prior Appropriation, 35 Nat. Res. J. 413 (1995). 40

Cf. FPC v. Oregon, 349 U.S. 435, 447–49 (1955).

41

Arizona I, 373 U.S. 546, 601 (1963) (upholding special master’s award of water rights to Lake Mead National Recreation Area). 42

43 A contemporaneous decision by the Court not dealing with reserved water rights, but rather tribal treaty-based claims to natural resources, supports the view that Indian reserved rights should also be nar­ rowly construed. In Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979), the Court, in addressing the allocation of a shared and scarce natural resource, migratory salmon, established the proposition that “Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood—that is to say, a moderate living.” Id. at 686. The Court cited Arizona I in support of this proposition. See also In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. and Source, 989 P.2d 739, 749 n.10 (Ariz. 1999) (Gila IV) (citing Commercial Passenger Fishing Vessel for the principle that tribes have no “ ‘untrammeled right’ to exploit natural resources”).

Cappaert v. United States, 426 U.S. 128 (1976).

44

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that amount of water necessary to fulfill the purpose of the reserva­tion, no more.”45 In United States v. New Mexico46 the Court considered a claim by the United States Forest Service to in-stream flows for the Gila National Forest. Emphasizing Congress’s traditional deference to state water law, the Court held that reserved rights can be implied only to “fulfill the very purposes for which a federal reservation is created,” and not where it is merely “valuable for a secondary use of the reservation.”47 The primary pur­pose for which the national forest was created was to “secure . . . favorable conditions of water flows, and to furnish a continuous supply of timber.”48 Because the Forest Service had failed to show how the requested in-stream flow was necessary to prevent this purpose from being “entirely defeated,” the claim was denied.49 Even the dissent in New Mexico noted that the reserved water rights doctrine should be applied “with sensitivity to its impacts upon those who have obtained water rights under state law.”50 The Supreme Court has not addressed the question of whether the reasoning in Cappaert and New Mexico applies to Indian reserved water rights. The debate centers on the narrow construction afforded the doctrine in those decisions, and specifically New Mexico’s “primary purpose” limitation. State Supreme Court decisions on the issue are mixed. The Washington Supreme Court has adopted New Mexico to restrict Indian reserved water rights to the primary purposes of reservations.51 In the Big Horn River adjudication, the Wyoming Supreme Court questioned whether the “primary purpose” test from New Mexico applied to Indian reserved water rights, but did not reach the issue, since it found the Wind River Reservation had “a sole agricultural purpose.”52 The Arizona Supreme Court found it “clear to us that each of the Indian reservations in question was created as a ‘permanent home and abiding place’ . . . as explained in Winters.”53 This is a broad purpose that must be liberally construed to “achieve the twin goals of Indian self-determination

45 Id. at 141; see also Arizona I, 373 U.S. 546, 600–01 (1963); United States v. Dist. Ct., 401 U.S. 520, 523 (1971).

438 U.S. 696 (1978).

46

Id. at 702. The Court stated that water for “secondary” purposes was to be acquired “in the same manner as any other public or private appropriator.” See also City of Pocatello v. State, 180 P.3d 1048, 1054 (Idaho 2008) (“[w]hile Congress can certainly grant water rights under the Property Clause, it would require explicit language to overcome the right of the state to manage and allocate its own water resources”). 47

Act of June 4, 1897, 30 Stat. 34, 35 (codified at 16 U.S.C. § 475).

48

New Mexico, 438 U.S. at 700.

49

Id. at 718 (Powell, J., dissenting).

50

Dep’t of Ecology v. Yakima Reserv. Irr. Dist., 850 P.2d 1306, 1316 (Wash. 1993).

51

52 In re Gen. Adjudication of All Rights to Use of Water in Big Horn River System, 753 P.2d 76, 96 (Wyo. 1988) (Big Horn I), judgment aff’d by evenly divided court, 492 U.S. 406 (1989).

Gila V, 35 P.3d 68, 76 (Ariz. 2001).

53

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and economic self-sufficiency.”54 These goals “preclude application of [New Mexico’s primary-secondary purpose] test” to Indian reservations.55 The court observed parenthetically that “even if the New Mexico test were to apply, tribes would be entitled to the full measure of their reserved rights because water use necessary to the establishment of a homeland is a primary, not secondary, purpose.”56 Decisions from the Ninth Circuit Court of Appeals vary in their application of New Mexico to tribal claims. In one case the court questioned whether New Mexico is “directly applicable” to Winters rights, yet nonetheless adopted as “guidelines” the primary purpose test and the requirement that water is reserved only in the amount “necessary to fulfill the purpose of the reservation, no more.”57 In an earlier case, however, the Ninth Circuit applied the New Mexico deci­sion to tribal reserved water rights without qualification.58 C. Purposes of the Reservation The purpose of each federal reservation is a controlling factor on how much water that reservation will receive.59 The general principle is easily enough stated: “The purpose of a federal reservation of land defines the scope and nature of impliedly reserved water rights.”60 That purpose is based on the intent of the federal government at the time it established the reservation,61 which in turn is ascertained by reference to the relevant treaty, statute, or executive order.62 Canons of construction applicable to Indian treaties must

Id. at 76.

54

Id. at 77.

55

Id. at 77.

56

United States v. Adair, 723 F.2d 1394, 1408–09 (9th Cir. 1983).

57

Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981). In part, the court may not have critically examined application of the New Mexico decision because it found a very broad primary purpose for the reservation in question, i.e., “to provide a home for the Indians.” Id. 58

59 Arizona I, 373 U.S. 546, 600–01 (1963). The amount is also limited to appurtenant water unappropriated at the time of reservation. Cappaert v. United States, 426 U.S. 128, 138 (1976). 60 United States v. Adair, 723 F.2d 1394, 1419 (9th Cir. 1983); see also Cappaert, 426 U.S. at 141 (“[t]he implied-reservation-of-water doctrine . . . reserves only that amount of water necessary to fulfill the purpose of the reservation”); United States v. New Mexico, 438 U.S. 696, 700 (1978) (“[e]ach time this Court has applied the ‘implied-reservation-of-water doctrine’ it has carefully examined . . . the spe­cific purposes for which the land was reserved”); United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1063 (W.D. Wash. 2005) (while “[t]he primary purpose of the reservation defines the scope and extent of impliedly reserved water rights[,] . . . [t]here may be more than one primary purpose of a reservation”) (citation omitted), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007); see also Franks, supra note 31. 61 Winters v. United States, 207 U.S. 564, 577 (1908); Arizona I, 373 U.S. 546, 600 (1963) (reservation covers future as well as present needs); State ex rel. Greeley v. Confederated Salish and Kootenai Tribes, 712 P.2d 754, 762 (Mont. 1985) (“[r]eserved water rights are estab­lished by reference to the purposes of the reservation rather than to actual, present use of the water”). 62 The Arizona Supreme Court has found that reference to historic documents is of limited value. Gila V, 35 P.3d 68, 79 (Ariz. 2001); see also United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1061

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be used,63 provided that the court does not in the process “remake history.”64 In applying these principles, the issue is whether the purpose of Indian reser­ vations should be construed in a general or specific manner and, if the latter, whether there may be more than one specific, or “primary,” purpose sup­porting the implication of a water right.65 The existence of both Winters- and Adair-type rights complicates the matter. The broader view is premised on the proposition that the overall purpose of Con­gress in establishing the Indian reservations was to create a “ ‘permanent home and abiding place’ ” in order to encourage Indians to develop a civilization analogous to mainstream American culture and move the tribes toward economic self-sufficiency.66 This understanding looks to current federal policies to promote Indian self-determination and encourage economic development on Indian reservations. However, specific legislation giving effect to then-­contemporary—i.e., past—Indian policies is not altered impliedly by later changes in federal Indian policy,67 and reliance on modern congressional policies to determine the purposes of a reservation for the purpose of inferring Winters rights appears problematic. Courts have been troubled, as well, by the fact that the “homeland” approach places no limits on the nature—and thus the scope

(W.D. Wash. 2005) (concluding “the historical facts surrounding the Treaty . . . largely undisputed[,]” and stating that, “[a]lthough the parties place different weight on the various historical facts, the Court finds that the purposes of the reservation may be determined as a matter of law”), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007). 63 Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985); Washington v. Washington State Comm’l Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174 (1973); United States v. Shoshone Tribe, 304 U.S. 111, 117 (1938); Big Horn I, 753 P.2d 76, 94–95 (Wyo. 1988), judgment aff’d by evenly divided court, 492 U.S. 406 (1989); State ex rel. Greeley, 712 P.2d at 762–63; see also United States v. Gila Valley Irr. Dist., 31 F.3d 1428 (9th Cir. 1994) (canons of construction also applicable to consent decree regarding tribe’s water rights). 64 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 617 (1977); DeCoteau v. District County Court, 420 U.S. 425, 449 (1975); see also Big Horn I, 753 P.2d at 97 (“courts should not distort the words of a treaty to find rights inconsistent with its language”). 65 In this context courts have used the terms “specific purpose,” “primary purpose,” “controlling pur­ pose,” and “essential purpose” interchangeably. 66 Gila V, 35 P.3d 68, 72, 76 (Ariz. 2001) (quoting Winters, 207 U.S. at 565) ; see also Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78, 89 (1918) (Indian reservations were established to “encourage, assist, and protect the Indians in their effort to train themselves to habits of industry, become self-sustaining, and advance to the ways of civilized life”); In re Application for Beneficial Use Water Permits Nos. 66459-76L, 923 P.2d 1073, 1079 (Mont. 1996) (Indian reserved water rights may be inferred to support “acts of civilization”). 67 E.g., Confederated Tribes and Bands of Yakima Nation v. County of Yakima, 903 F.2d 1207, 1215 (9th Cir. 1990) (changes in federal Indian policy do not alter the legal effectiveness of statutes from past eras carry­ing out policies later repudiated by Congress, absent express congressional action overturning or amend­ing the statute), aff’d, 502 U.S. 251 (1992); see also Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 423 (1989) (change in Indian policy engendered by Indian Reorganiza­tion Act is “irrelevant” in analyzing the legal effect of the Allotment Act on a tribe’s treaty right to regulate activities of nonmembers on fee lands); cf. United States v. Aam, 887 F.2d 190, 195 (9th Cir. 1989) (trial court did not abuse discretion in excluding, as being too remote, evidence of treaty parties’ actions occurring more than two decades after treaty was signed).

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and quantity—of the tribal claim. Accordingly, some courts have declined to quantify reserved water rights to serve broad general purposes.68 With a minor exception,69 Arizona I and the reserved water rights cases preceding it found a single specific agricultural purpose, focusing solely on the government’s allotment-era policy of converting tribes to agrar­ian socie­ ties. Later decisions in the Ninth Circuit, relying on Winans, broad­ened the purposes for which reserved water rights were implied to include quantities of water necessary to preserve aboriginal fishery resources. Colville Confederated Tribes v. Walton70 and United States v. Adair71 are essentially aboriginal rights cases and differ from Arizona I and the previous reserved water rights cases in that the fisheries purpose found by the court was based on specific treaty language72 and strong evidence of traditional use of and dependency on the fisheries.73 Moreover, despite the explicit recognition in those cases that the reservations were created as “homelands,” the courts found that only specific (i.e., “essential”) purposes supported the implication of a water right. In Walton,74 the court found that the purpose for the creation of the Colville Reservation was to “provid[e] a homeland for the survival and growth of the Indians and their way of life.”75 Accordingly, the court found that, in addition to providing for a land-based agrarian society, the treaty was intended to preserve the tribes’ traditional, pre-treaty access to historic fishing grounds on the Columbia River.76 In United States v. Adair,77 the court of appeals explicitly stated what was implicit in Walton, that “[n]either Cappaert nor New Mexico requires [the court] to . . . identify a sin­gle essential purpose”78 for the reservation. Noting there that “an Indian tribe agreeing to reside on a permanent

68 E.g., Big Horn I, 753 P.2d 76, 94–98 (Wyo. 1988), judgment aff’d by evenly divided court, 492 U.S. 406 (1989); cf. Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) (discussed supra at notes 56–59 and accompanying text); see generally David H. Getches, Management and Marketing of Indian Water: From Conflict to Pragmatism, 58 U. Colo. L. Rev. 515, 543 (1988) (“[s]urely non-Indian society would judge entry into the free market and utilization of tribal resources, including land, minerals, timber and water, as capital assets, to be among the most ‘civilized’ activities a tribe could undertake”).

United States v. Walker River Irr. Dist., 104 F.2d 334, 340 (9th Cir. 1939) (power-generation purposes).

69

647 F.2d 42 (9th Cir. 1981).

70

723 F.2d 1394, 1414 (9th Cir. 1983).

71

Id. at 1409; see Joint Bd. of Control v. United States, 832 F.2d 1127 (9th Cir. 1987); Kittitas Reclamation Dist. v. Sunnyside Valley Irr. Dist., 763 F.2d 1032 (9th Cir. 1985); Dep’t of Ecology v. Yakima Reserv. Irr. Dist., 850 P.2d 1306, 1316–17 (Wash. 1993); James L. Merrill, Aboriginal Water Rights, 20 Nat. Res. J. 45 (1980). 72

Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981).

73

647 F.2d 42 (9th Cir. 1981).

74

Id. at 49.

75

Id. at 48. Because post-treaty construction of dams blocking the migration of anadromous fish had destroyed the tribes’ traditional fishery, the court found an implied reservation of water for the develop­ ment of a nonnative replacement fishery on a reservation lake and its tributary streams. 76

723 F.2d 1394, 1414 (9th Cir. 1983).

77

Id. at 1410.

78

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homeland would understand such an agreement to include the right to use the water as it has always used it on the land it reserved as a permanent home,”79 the Adair court found a water right for “the purpose of supporting Klamath agriculture, [as well as] . . . maintaining the Tribe’s treaty right to hunt and fish on reservation lands.”80 Until the Arizona Supreme Court’s Gila V ruling, no recent court had specifically found a reservation purpose outside agriculture or fisheries protection, although logically a court could find that Congress had impliedly reserved water for any “specific federal purpose.”81 In Big Horn I, the Wyoming Supreme Court rejected the Shoshone and Northern Arapahoe Tribes’ claims for water based upon alleged fisheries, mineral and industrial, and wildlife and aesthetics purposes.82 In addition, tribal claims for water for livestock, municipal, domestic, and commercial uses were deemed subsumed under the agricultural purpose.83 In litigation over the reserved water rights of the Yakima Tribe, the Washington Supreme Court found that the “controlling” pur-

Id. at 1414.

79

Id. at 1410; see also Dep’t of Ecology v. Yakima Reserv. Irr. Dist., 850 P.2d 1306, 1317 (Wash. 1993) (dual “controlling” purposes of agriculture and fisheries). In the most exhaustive application of Walton and Adair, a federal district court determined that the primary water-use purposes for the Lummi Indian Reservation on coast of Washington State lay in agricultural and domestic uses. United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050 (W.D. Wash. 2005), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007). It rejected, as inconsistent with Adair, the plaintiff tribe’s contention that the general “homeland” purpose recognized by the Arizona Supreme Court in Gila River V, 35 P.3d 68 (Ariz. 2001), also constituted a primary reservation objective under reserved water rights doctrine. It accepted the defendant state agency’s characterization of the “homeland” theory as “ ‘simply a formulation that does away with determining the purpose and begs the question of what water was reserved to make the “homeland” livable.’ ” 375 F. Supp. 2d at 1065. The court reasoned, “[t]he appropriate inquiry under federal law requires a primary purpose determination based on the intent of the federal government at the time the reservation was established.” Id. 80

81 United States v. New Mexico, 438 U.S. 696, 700 (1978). Dicta in several other cases have been read as suggesting the possibility of reserved water rights for purposes other than agriculture and fisheries protec­tion. The Winters Court held that water could be reserved for “acts of civilization.” Winters v. United States, 207 U.S. 564, 576 (1908). In Arizona I the Court stated that Indians are entitled to sufficient water “to make the reservation livable.” 373 U.S. 546, 599 (1963). The Montana Supreme Court remarked that these passages might “include consumptive uses for industrial purposes” but did not reach the issue. State ex rel. Greeley v. Confederated Salish and Kootenai Tribes, 712 P.2d 754, 765 (Mont. 1985).

With respect to the tribes’ industrial claim, the Wyoming court held:

82

All parties to the treaty were well aware before it was signed of the valuable mineral estate underlying the [reservation]. . . . The ques­tion of whether, because the Indians own the minerals, the intent was that they should have the water nec­essary to develop them must be determined, of course, by the intent in 1868. Neither the Tribes nor the United States has cited this court to any provision of the treaty or other evidence indicating that the parties contemplated in 1868 that a purpose of the reservation would be for the Indians to develop the minerals. The fact that the Tribes have since used water for mineral and industrial purposes does not establish that water was impliedly reserved in 1868 for such uses. 753 P.2d at 98 (citations omitted). Similarly, the wild­life claim was rejected because “the Tribes and the United States did not introduce sufficient evidence of a tradition of wildlife and aesthetic preservation which would justify finding this to be a purpose[.]” Id. at 99. Id.

83

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pose of the treaty was to establish an agricultural reserva­tion but also found additional water rights for fishing, based on treaty lan­guage expressly reserving the tribe’s right to fish.84 The Arizona Supreme Court’s Gila V ruling recognized that the parties disputed the purposes of the reservations involved in the case, but the court “agree[d] with the Supreme Court that the essential purpose of Indian reservations is to provide Native American people with a ‘permanent home and abiding place,’ . . . that is, a ‘livable’ environment.”85 In this regard, it characterized as “highly questionable” the value of “examin[ing] historical documents in determining the purpose and reason for creating a federal reservation on non-Indian lands” because, most recognizably, “many documents do not accurately represent the true purpose for which Indian reservations were created” and may not reflect the Indians’ understanding or intent, as required by principles of treaty interpretation.86 “Limiting an Indian reservation’s purpose to agriculture, as the PIA standard implicitly does,” thus was seen as improper, since “[j]ust as the nation’s economy has evolved, nothing should prevent tribes from diversifying their economies if they so choose and are reasonably able to do so.”87 “The permanent homeland concept,” in contrast, “allows for this flexibility and practicality.”88 D. Quantity of Reserved Water Right 1. Historical approaches The Winters Court did not prescribe a method for quantifying reserved water rights. Instead, it simply upheld a lower court decision enjoining nonIndian settlers from interfering with the tribe’s existing use of water, which

Dep’t of Ecology v. Yakima Reserv. Irr. Dist., 850 P.2d 1306, 1317 (Wash. 1993).

84

Gila V, 35 P.3d 68, 79 (Ariz. 2001).

85

Id. at 74–75.

86

Id. at 76.

87

Id. The Arizona Supreme Court’s approach expectedly has generated commentary. Compare Barbara A. Cosens, The Measure of Indian Water Rights: The Arizona Homeland Standard, Gila River Adjudication, 42 Nat. Resources J. 835, 836–37 (2002) (“recognition of the homeland purpose is supported by a principled application of the law prior to 1963 and the principles of statutory and treaty construction in the field of Indian law” and eliminates the inequities that result from the current approach), with Dana Smith, Note, Doctrinal Anachronism?: Revisiting the Practicably Irrigable Acreage Standard in Light of International Law for the Rights of Indigenous Peoples, 22 Ariz. J. Int’l. & Comp. L. 691, 705–14, 728 (2005) (contrasting the decisions in the Big Horn and Gila general adjudications, and arguing that Indian water rights should be “quantified in a way that does not promote an anachronistic legal doctrine, but instead supports tribal self-determination”); and Galen Lemei, Abandoning the PIA Standard: A Comment on Gila V, 9 Mich. J. Race & L. 235, 266–67 (20 03) (“The [Gila V] Court purported to reject the PIA standard because it is unfair to Indians, but in its place it offered a standard that gives tribes a shadow of what they had before. . . . The PIA standard does not deal inequitably with tribes”); see also John E. Thorson et al., Dividing Western Waters: A Century of Adjudicating Rivers and Streams, 9 U. Denv. Water L. Rev. 299, 418–20 (2006) (discussing Gila V and subsequent judicial response). 88

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was found to have been reasonable.89 Following Winters, lower courts struggled to devise standards for quantifying agricultural reserved water rights90 and eventually developed three general approaches.91 The first, used in Conrad Investment Co. v. United States,92 was to avoid a final quantification by leaving the decree open. There, the district court quantified a portion of the Blackfeet Tribe’s reserved water right based on the amount of existing irrigation. Because the United States could claim reserved rights “not only for present uses, but for future requirements,”93 the court specifically provided that “the government will have leave to apply for a modification of [the] decree at any time that it may determine that its needs will be in excess of the amount of water [presently decreed].”94 The other two approaches were used by courts rendering final determinations of reserved rights claims. The “reasonable needs” test was utilized in United States v. Walker River Irrigation District,95 where the court stated: “[T]he area of irrigable land included in the reservation is not necessarily the criterion for measuring the amount of water reserved. . . . The extent to which the use of water might be necessary could only be demonstrated by experi­ence.”96

Winters v. United States, 143 F.2d 740 (9th Cir. 1906), aff’d, 207 U.S. 564 (1908).

89

Nonagricultural rights are discussed separately infra at notes 136–143 and accompanying text.

90

In addition to the quantification of reserved water rights by the use of the judge-made standards dis­cussed in the text, the federal government may, by legislative or administrative action, affirmatively quantify those rights. This stems from the federal government’s status as trustee of tribal properties and Congress’s authority to limit and even abrogate Indian treaty rights. See South Dakota v. Bourland, 508 U.S. 679, 687–88 (1993); Shoshone Tribe v. United States, 299 U.S. 476 (1937). Such power applies to reserved water rights as well. Arizona v. California, 460 U.S. 605, 626–27 (1983) (Arizona III) (“[a]s a fiduciary, the United States had full authority to bring the Winters rights claim for the Indians and bind them in the liti­ gation”). In Department of Ecology v. Yakima Reservation Irrigation District, 850 P.2d 1306, 1320–23 (Wash. 1993), the Washington Supreme Court thus concluded that Congress, or an Executive Branch official acting in accordance with a congressional grant of authority, could unilaterally quantify or otherwise limit a tribe’s reserved water right, provided the standards regarding treaty abrogation set forth in United States v. Dion, 476 U.S. 734 (1986), were met. Applying those standards, the Washington court held that there was no “clear evidence” that either Congress or various Executive Branch officials “actually considered the conflict between its intended action . . . and Indian treaty rights . . . and chose to resolve the conflict by abrogating the treaty.” 850 P.2d at 1321; see generally Judith E. Jacobsen, The Navajo Indian Irrigation Project and Quantification of Navajo Winters Rights, 32 Nat. Res. J. 835 (1992). It nevertheless ultimately rejected the water rights claim on res judicata grounds. 850 P.2d at 1324; see also State ex rel. Martinez v. Kerr-McGee Corp., 898 P.2d 1256, 1260–63 (N.M. Ct. App. 1995) (disagreeing with Dep’t of Ecology on an Indian Claims Commission judgment as the basis for res judicata). 91

161 F. 829, 832 (9th Cir. 1908).

92

Id. at 832.

93

Id.

94

104 F.2d 334 (9th Cir. 1939).

95

Id. at 340. The court quantified the water rights of the Paiute Tribe based on the tribe’s actual histor­ical use. Although the reservation contained 10,000 acres of arable land, the tribe only irrigated and culti­vated 2,000 acres. The amount of irrigated acreage, as well as the tribe’s population, had been constant for 70 years. Given this experience, the court accepted historical use as a fair measure of the tribe’s reserved water rights. See also United States v. Ahtanum Irr. Dist., 236 F.2d 321 (9th Cir. 1956). 96

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Conversely, in Skeem v. United States,97 the court utilized an “irrigable acreage” approach in quantifying the water rights of Indian allottees in an area that was formerly part of the Fort Hall Reservation. The allottees had opted to remain on their lands when the Shoshone-Bannock Tribes ceded that portion of the reservation to the United States.98 The court rejected arguments that the allottees’ water rights should be limited to historical use, holding instead that the allottees were entitled to water rights that “will enable the Indians to cultivate eventually the whole of their lands so reserved to their use.”99 2. The practicably irrigable acreage standard It was against the equivocal background of inconsistent lower court decisions that the Supreme Court made its historic decision in Arizona v. California.100 Faced with having to quantify water rights on five Indian reservations in Arizona, California, and Nevada, all located on hot, arid lands practically valueless without irrigation, the special master chose to quantify the water rights by determining the “practicably irrigable acreage” of each reservation. The Supreme Court affirmed the special master’s decision, stating: [The special master] found that the water was intended to satisfy the future as well as the present needs of the Indian Reservations and ruled that enough water was reserved to irrigate all the practicably irrigable acreage on the reservations. Arizona, on the other hand, contends that the quantity of water reserved should be measured by the Indians’ “rea­sonably foreseeable needs,” which, in fact, means by the number of Indians. How many Indians there will be and what their future needs will be can only be guessed. We have concluded, as did the Master, that the only feasible and fair way by which reserved water for the reserva­tions can be measured is irrigable acreage.101

A later challenge to the “practicably irrigable acreage” (PIA) standard in the Arizona v. California litigation would shed some light upon the Court’s choice of PIA as the presumptive quantification standard for Indian reserved water rights.

273 F. 93 (9th Cir. 1921).

97

Id. at 94.

98

Id. at 95. The decision in Skeem, however, was not intended to establish a general principle for quan­tification of Winters rights. Rather, it was based upon a section of the Fort Bridger Treaty providing that the tribe’s cession of an area containing allotments should not be “understood or construed in such a manner as to deprive without his consent any individual member of the tribe of his right to any tract of land selected by him.” Id. Because lack of irrigation water would deprive allottees of the use of a portion of their lands, the court was constrained by the terms of the treaty to find sufficient water rights to allow each allottee full use of his land. 99

100 Arizona I, 373 U.S. 546 (1963); see also Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29 (1994) (United States did not breach its trust responsibility to Fort Mojave and Colorado River Indian tribes in Arizona I litigation), aff’d, 64 F.3d 677 (Fed. Cir. 1995).

373 U.S. at 600–01.

101

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American Indian Law Deskbook, Fourth Edition

The Supreme Court observed in Arizona III102 that it could have adopted an open-ended decree that would have allowed each reservation to “divert at any particular time all the water reasonably necessary for its agricultural and related uses.”103 The Court believed, however, that the possibility of expanding needs on the reservations would create uncertainty for junior appropriators and would make it difficult to obtain financing for nonmember irrigation projects.104 It was therefore deemed desirable to adopt a fixed calculation of the tribes’ reserved water rights. The Court concluded that the irrigable acreage standard allowed a water allocation that would be appropriate to meet both the present and future needs of the tribes.105 The PIA standard was at issue again in the adjudication of the Big Horn River system in Wyoming.106 After determining that the primary purpose of the Wind River Indian Reservation was to promote agriculture among the resident tribes, the Wyoming Supreme Court agreed with the parties that the proper measure of the tribes’ reserved water right was PIA, which it defined as “those acres susceptible to sustained irrigation at reasonable costs.”107 In the end, the tribes were decreed a reserved water right of 500,000 acre-feet, 72 percent greater than historical use.108 After the Wyoming court issued its decision, both Wyoming and the tribes filed petitions for writs of certiorari to the United States Supreme Court, raising numerous challenges to the state court’s determination of the tribes’ water rights. The Court granted review concerning whether the PIA standard applied in the absence of any demonstrated neces-

Arizona III, 460 U.S. 605 (1983).

102

Id. at 623 n.15.

103

Id.

104

Id. at 617. Because the boundaries of several of the Indian reservations were in dispute, the 1964 decree in Arizona v. California left open the possibility that the quantification of reserved water rights could be adjusted through supplemental decrees once the boundaries were finally determined. Arizona v. California, 376 U.S. 340, 345 (1964) (Arizona I decree). Supplemental decrees issued in 1979 and 1983 recognized the possibility of future adjustments to the boundaries of all five Indian reservations subject to the Arizona v. California decree. Id. at 605, 636–37; see also Arizona v. California, 439 U.S. 419, 421 (1979) (per curiam) (Arizona II). In concurrent proceedings before the Indian Claims Commission, the Quechan Tribe alleged that the cession of a portion of its reservation was either void or obtained for unconscionable consideration, and sought compensation from the United States based on alternative theories of taking and trespass. The United States and the tribe eventually entered into a consent decree settling all claims made by the tribe. The states then alleged that the consent decree barred any claims for water rights to lands within the disputed cession. The Court held in Arizona IV, however, that the consent judgment in the Indian Claims Commission proceedings did not preclude the tribe from asserting that the disputed lands remained part of the reservation, since “ownership of the disputed boundary lands [was] not actually litigated and decided.” Arizona v. California, 530 U.S. 392, 417 (2000) (Arizona IV). It also held that the state preclusion claims were untimely. Id. at 410. 105

Big Horn I, 753 P.2d 76, 99–107 (Wyo. 1988), judgment aff’d by evenly divided court, 492 U.S. 406

106

(1989). Id. at 101.

107

Brief for Petitioner State of Wyoming at 29, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309). 108

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sity for additional water to fulfill reservation purposes and in the presence of substantial state water rights long in use on the reservation,109 but an evenly divided court eventually affirmed the judgment without opinion.110 3. The future of the PIA standard A substantial body of academic analysis has been directed to proposed alternatives to PIA.111 Congress, for example, has made some effort to foster agricultural development within reservations, but the efficacy of its efforts in this regard has been questioned.112 Other more general federal law constraints, both substantive and procedural, exist with respect to federal or federally funded actions that may have a significant environmental effect—a virtual certainty where depletion of a cornerstone natural resource is involved.113 Despite the PIA standard’s faults, however, the Court may well be reluctant to abandon the test outright and, instead, may attempt to tailor it in some manner. The Court’s rejection of an equitable bal­ancing approach in Arizona III114 arguably reflects that reluctance since the PIA standard goes a substantial distance in meeting the dual goals of finality and objectivity found valuable there, especially in light of the fact that it has been the subject of some judicial interpretation and has analogues in the methodologies used in federal government water planning.115 If faced with quantifi­cation of an amount of water disproportionate to its present or actual needs or which otherwise would cause a substantial

Wyoming v. United States, 488 U.S. 1040 (1989).

109

Wyoming v. United States, 492 U.S. 406 (1989). Justice O’Connor recused herself from the panel after the case was argued, thus allowing the tie to occur. See generally Andrew W. Mergen and Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States, 68 U. Colo. L. Rev. 683 (1997) (discussing draft opinion authored by Justice O’Connor before recusal). 110

111 E.g., Peter W. Sly, Reserved Water Rights Settlement Manual 110–11 (1988); Walter Rusinek, A Preview of Coming Attractions? Wyoming v. United States and the Reserved Rights Doc­trine, 17 Ecology L.Q. 355, 405 (1990); Franks, supra note 31, at 584; Carla J. Bennett, Quan­tification of Indian Water Rights: Foresight or Folly?, 8 UCLA J. Envtl. L. & Pol’y 267 (1989). 112 E.g., American Indian Agricultural Resource Management Act of 1994, 25 U.S.C. §§ 3701–3746; see generally Darla Mondou, The American Indian Agricultural Resources Management Act: Does the Winters Water Bucket Have a Hole in It?, 3 Drake J. Agric. L. 381 (1998) (arguing that the Act’s lack of any provision to fund tribal irrigation projects limits its effectiveness). 113 One commentator, for example, has stressed that the Endangered Species Act (ESA) potentially limits new tribal water projects, since any federally funded project would have to be evaluated for its impact on species listed under the ESA. Brian Schmidt, Reconciling Section 7 of the Endangered Species Act with Native American Reserved Water Rights, 18 Stan. Envtl. L. J. 109, 115 (1999). He ultimately argued, however, that junior water rights should be cut off in lieu of prohibiting the new development of currently dormant Winters rights. Id. at 137–38. Federally funded water projects for the benefit of tribes are also potentially subject to the procedural requirements of the National Environmental Policy Act (NEPA). See, e.g., Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir. 1998) (holding that city and county had standing under NEPA to challenge implementation of tribal water rights settlement act, since they asserted that transfer of water rights would lead to changes to underground water supply and adversely affect city and county lands).

See supra notes 100–04 and accompanying text.

114

See, e.g., Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies, 48 Fed. Reg. 10,250 (1983). 115

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disruption or reallocation of state law rights, the Court thus might use PIA as a starting point and require a modification based on clear evidence that the tribe did not need the full allo­cation of water or endorse measures designed to mitigate the extent of the impact on existing uses.116 In the absence of clear guidance from the Supreme Court regarding the future of the PIA standard, lower courts have continued to refine the standard. Recent cases define a three-part test, with each part narrowing the scope of irrigable lands. In the first part, soil scientists determine the largest area of arable land that can be considered for irrigation.117 In the second part, engineers evaluate the water supply and the topography to design an irriga­tion system.118 In the third part, economists examine cropping patterns, yields, and prices to determine net returns, with the goal of determining the mixture of lands that, when placed into production, will return the maxi­mum net profit to the tribe.119 The trend, if one can be said to exist, is to scrutinize more closely all portions of the analysis, perhaps reflecting the reality that the era of large-scale development of irrigated farmland is on the wane. State ex rel. Martinez v. Lewis120 injects another element into the uncertainty surrounding the PIA standard: On many Indian reservations application of the PIA standard may result in the award of no irrigation water. In Lewis, the New Mexico Court of Appeals upheld a trial court decision finding that the tribe’s proposed irrigation projects were not practically irrigable because they did not meet minimum standards of economic feasibility.121 In so doing, the court rejected arguments that certain key factual components of the PIA analysis—such as discount rate, cropping patterns, and labor cost—must be viewed from a “reservation perspective” and instead held:

116 Cf. see generally James L. Huffman, Avoiding the Takings Clause Through the Myth of Public Rights: The Public Trust and Reserved Rights Doctrines at Work, 3 J. Land Use & Envtl. L. 171 (1987).

Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29, 35 (1994).

117

Id.; see also United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1070 (W.D. Wash. 2005) (although the reserved water right determination would be limited to a discrete groundwater source, “PIA is necessarily based on engineering calculations for service, which are dependent (at least in part) on source location[,]” and it thus “would be error to exclude consideration of [another] source when determining PIA, where consideration of that source would have the effect of maximizing the [tribe’s] PIA reserved water right”), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007). 118

119 32 Fed. Cl. at 35; see also Big Horn I, 753 P.2d 76, 101 (Wyo. 1988) (requiring a three-part analysis: (1) determina­tion of the arability of the lands; (2) determination of the engineering feasibility of irrigating those lands determined to be arable; and (3) a cost/benefit analysis to determine if the cost of irrigation was reasonable), judgment aff’d by evenly divided court, 492 U.S. 406 (1989). Litigation to determine the practicably irrigable acreage involved numerous factual disputes, including disagreements over cropping patterns, crop yield, arability standards, irrigation efficiencies, and discount rates. Small changes in any one factor could produce large changes in the determination of irrigable acreage. See generally Franks, supra note 31, at 572–582.

861 P.2d 235 (N.M. Ct. App. 1993).

120

Id. at 250.

121

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We do not believe that finders of the facts on PIA issues are required by law to adopt any particular view of the facts. In other words, they are neither required to find that specialty crops cannot be grown nor required to find that they can be grown. Their findings are to be based on the evidence before them, and they are to be made with the same sound judgment and good common sense that our legal system expects in all of its cases.122

Lewis suggests many PIA claims may fail due to the difficulty of demonstrating the feasibility of large-scale irrigation projects under current economic conditions. If so, there also will likely be a renewed interest in developing alternative methods to quantify reserved rights.123 The Arizona Supreme Court recently rejected exclusive reliance on the PIA standard and instead directed “ ‘balancing a myriad of factors’ ” as the proper method to quantify federal reserved rights for Indian lands within the Gila River system.124 “Considering the objective that tribal reservations be allocated water necessary to achieve their purpose as permanent homelands,” it stated, “such a multi-faceted approach appears best suited to produce a proper outcome.”125 It added that tribes had used this methodology “in settling water rights claims” and that a feature of those settlements had been “the development of master land use plans specifying the quantity of water necessary for different purposes on the reservation.”126 Although it recognized that the parties disputed the purposes of the reservations involved in the case, the court “agree[d] with the Supreme Court that the essential purpose of Indian reservations is to provide Native American people with a ‘permanent home and abiding place,’ . . . that is, a ‘livable’ environment.”127 “Limiting an Indian reservation’s purpose to agriculture, as the PIA standard implicitly does,” thus was seen as improper, since “[j]ust as the nation’s economy has evolved, nothing should prevent tribes from diversifying their economies if they so choose and are reasonably able to do so.”128 “The permanent homeland concept,” in contrast to PIA, “allows for this flexibility and practicality.”129

Id.

122

One commentator has also asserted that the PIA standard should be revisited because principles of modern international human rights law suggest that indigenous peoples’ rights to control their natural resources should be guided by principles of self-determination. Dana Smith, Note, Doctrinal Anachronism?: Revisiting the Practicably Irrigable Acreage Standard in Light of International Law for the Rights of Indigenous Peoples, 22 Ariz. J. Int’l. & Comp. L. 691 (2005). 123

124 Gila V, 35 P.3d 68, 79 (Ariz. 2001). The court rejected arguments that “federal law has preemptively established PIA as the standard. . . . Indeed, nothing in Arizona I or [III] suggests otherwise.” Id. at 78.

Id. at 79.

125

Id. The court added that land use plans were not required and tribes were free to present evidence in a different manner. Id. 126

Id. at 74.

127

Id. at 76.

128

Id.

129

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Consistent with this approach, the Arizona court refused “an across-theboard application of PIA.”130 It found the PIA standard unwise because of the attendant potential disadvantage to tribes living in “ ‘agriculturally marginal terrains[;]’ ” its requiring “tribes to pretend to be farmers in an era when large agricultural projects . . . are risky, marginal enterprises[,] [and] creat[ing] a temptation for tribes to concoct inflated, unrealistic irrigation projects[;]” and its “potentially frustrat[ing] the requirement that federally reserved water rights be tailored to minimal need” and thereby encouraging “an overabundance of water by including every irrigable acre of land in the equation.”131 The court cited the Lewis case as an example of the inequity that could result under a PIA standard.132 In the PIA standard’s stead, the court identified a variety of nonexclusive considerations for determining the amount of a permanent homeland-based reserved right: (1) the tribe’s history and culture; (2) “the tribal land’s geography, topography, and natural resources, including groundwater availability[;]” (3) the reservation’s “[p]hysical infrastructure, human resources, including present and potential employment base, technology, raw materials, financial resources, and capital[;]” (4) past water use; and (5) “a tribe’s present and projected future population.”133 The court found application of a separate “sensitivity” analysis unnecessary because determining the minimal amount necessary to effectuate the permanent homeland purpose “demonstrates the appropriate sensitivity and consideration of existing users’ water rights, and at the same time provides a realistic basis for measuring tribal entitlements.”134 The court concluded by emphasizing the latitude vested in the trial court to consider “information it deems relevant to determining tribal water rights” and that the “proposed uses” need only meet the two-part test of being “achievable from a practical standpoint” and “economically sound.”135 4. Standards for quantifying nonagricultural reserved rights A reserved water right for fisheries purposes is generally nonconsumptive in nature and only allows the tribe to prevent other water users from depleting the stream below a certain protected level.136 Various methodolo­gies exist to

35 P.3d at 78.

130

Id. at 78–79.

131

Id. at 78.

132

Id. at 79–80.

133

Id. at 81.

134

Id.

135

United States v. Adair, 723 F.2d 1394, 1411 (9th Cir. 1983); State ex rel. Greeley v. Confederated Salish and Kootenai Tribes, 712 P.2d 754, 764 (Mont. 1985); Blumm, supra note 29, at §37.02(c)(3). 136

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determine the minimum flows necessary to preserve certain species of fish.137 Such minimum flows may vary with the species of fish and the life stage sought to be protected. Another critical factor is the level of fishing activity that the tribe seeks to support. The courts have yet to fully address whether tribes are entitled to water levels that will restore fisheries to predevelopment levels or merely support a moderate fishery in light of present conditions. In regard to other types of nonagricultural claims, there is sparse decisional authority. Two decisions, both of which have been vacated, stand out. First, the Lummi adjudication district court has found domestic water use a primary reservation purpose and, in view of the fact that any water allocated for the other primary reservation purpose—agriculture—would be limited, stated that it would be inappropriate “to include the domestic award as a percentage or adjustment to the agricultural award,” as some courts had done.138 It instead looked to “Winters and its progeny” for the proposition that “water is impliedly reserved for the Tribe in sufficient quantities to make the Reservation livable, including those portions not suitable for agriculture.”139 Second, the Adair district court addressed the role of the moderate living standard in the reserved rights quantification process, but its decision was vacated on ripeness grounds by the Ninth Circuit Court of Appeals.140 It had concluded that “[i]n quantifying the right . . . , the Tribe is entitled to ‘whatever water is necessary to achieve’ the result of supporting productive habitat[,]” not “some ‘minimum amount’ ” of water.141 Only then in the court’s view did the application of moderate-livingstandard considerations—the second step of its analysis—become relevant, and the court imposed a restriction that made such application problematic; i.e., “the moderate living standard cannot be applied to have the effect of reducing water levels below a level that would support productive habitat,” since to do so “would have the effect of abrogating the reserved rights.”142 Under the court of appeal’s decision, this issue must be resolved at least initially in the state general adjudication.143

137 See Joint Bd. of Control v. United States, 646 F. Supp. 410, 418 (D. Mont. 1986), rev’d, 832 F.2d 1127 (9th Cir. 1987) (noting the use of various methodologies to determine minimum instream flows for fisheries maintenance); see generally Eric Eisenstadt, Fish out of Water: Setting a Single Standard for Allocation of Treaty Resources, 17 Am. Ind. L. Rev. 209 (1992) (comparison of PIA and fishery quantification standards). 138 United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1067 (W.D. Wash. 2005), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007).

Id.

139

United States v. Adair, 187 F. Supp. 2d 1273 (D. Or. 2002), vacated, 338 F.3d 971 (9th Cir. 2003).

140

Id. at 1277.

141

Id.

142

United States v. Braren, 338 F.3d 971 (9th Cir. 2003).

143

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E. Priority of Reserved Water Rights As a general rule, the priority of an Indian reserved water right is the date the reservation was established.144 This date is important because reserved rights extend only to those waters that were not already appropri­ated at the time the reservation was created.145 Although this is a question of fact that in most instances may be determined by reference to the treaty, statute, or executive order creating the reservation, the date of establishment of some reservations may predate those instruments. In Minnesota v. Hitchcock,146 the Court articulated the standard for determining whether, in fact, a reservation had been created: “[I]n order to create a reservation, it is not nec­essary that there should be a formal act setting aside a particular tract. It is enough that from what has been done there results a certain defined tract appropriated to certain purposes.”147 Minnesota was not concerned with when but with whether the specific reservation was created. Other cases involving executive order reservations, however, provide that for the purpose of determining priority in relation to other rights, the date a reservation is deemed to have been established may “relate back” from the date of the order to some earlier governmental action. In both United States v. Walker River Irrigation District148 and Northern Pacific Railway Co. v. Wismer,149 a reservation was held to have been created on the date the “head of [a] department”150 or clearly authorized military officer151 took an action to “initiate the establishment of a reservation.”152 This “relation back” rule requires the concurrence of two elements: the setting aside of a specific tract of land153 and the intent that it be used exclusively as a reservation for the tribe.154 These principles apply as well to the interpretation of treaties. Many

144 Winters v United States, 207 U.S. 564, 572 (1908); Arizona I, 373 U.S. 546, 600 (1963); Cappaert v. United States, 426 U.S. 128, 138–39 (1976). The Arizona Supreme Court found that the priority date is the date of the original reservation and that subsequent additions to that reservation would also have the original priority date. Gila V, 35 P.3d 68, 74 (Ariz. 2001).

Winters, 207 U.S. at 575, 577.

145

185 U.S. 373, 390 (1902).

146

Id. at 390; see also Mattz v. Arnett, 412 U.S. 481 (1973); United States v. McGowan, 302 U.S. 535 (1938); Spaulding v. Chandler, 160 U.S. 394 (1896); Sac and Fox Tribe v. Licklider, 576 F.2d 145 (8th Cir. 1978). 147

104 F.2d 334 (9th Cir. 1939).

148

246 U.S. 283 (1918).

149

104 F.2d at 338.

150

246 U.S. at 287.

151

152 104 F.2d at 338; see also Nevada v. United States, 463 U.S. 110, 115–16 (1983); accord Carson-Truckee Water Conserv. Dist. v. Watt, 549 F. Supp. 704, 706 (D. Nev. 1982), aff’d in part, 741 F.2d 257 (9th Cir. 1984). 153 The specific boundaries of that tract, however, need not be surveyed until a later time. United States v. Carpenter, 111 U.S. 347 (1884); Corrigan v. Brown, 169 F. 477 (9th Cir. 1907). 154 Healing v. Jones, 210 F. Supp. 125, 147–48 (D. Ariz. 1962), is instructive as to the latter element. It sug­gests that actions of the military, taken for military reasons, cannot be attributed to the Department

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were “peace and amity” treaties not specifically intended to set aside a specific tract of land as a reservation for the tribe.155 Accordingly, such a treaty would not normally be an appropriate vehicle upon which to base a reserved water right priority date. In contrast, the New Mexico Court of Appeals concluded in State ex rel. Martinez v. Lewis156 that executive orders establishing the Mescalero Apache Indian Reservation related back to an earlier peace and amity treaty that promised to “designate, settle, and adjust” the tribe’s territorial boundaries.157 The court determined that canons of construction favoring liberal interpretation of Indian treaties required the priority date to relate back to “the date the United States promised to create a reservation and promised to give that promise a liberal construction, while at the same time exacting promises from the Indians, which subjected them to the authority of the United States.”158 The one exception to using the date of a reservation as the priority date is for reserved water rights based on aboriginal use. For water needed to support pre-treaty activities in which the tribe historically engaged, such as hunting and fishing, courts employ a priority date of “time immemorial.”159 The “time immemorial” date is intended to conform such water rights to “one of the fundamental principles of prior appropriations law that priority for a particular water right dates from the time of first use.”160 Since the date of first use of waters for hunting and fishing by an Indian tribe is generally lost to antiquity, “time immemorial” is one method used by courts to establish a date of use relative to other water users. F. Miscellaneous Issues Although the full range of issues presented in reserved water rights cases is beyond the scope of this chapter, several of them do warrant limited discussion.

of the Interior for the purpose of determining whether, and when, a tribe settled on a particular tract of land. 155 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (discussing 1852 treaty); Mescalero Apache Tribe v. O’Cheskey, 625 F.2d 967, 971 (10th Cir. 1980); but see State ex rel. Martinez v. Lewis, 861 P.2d 235, 239–44 (N.M. Ct. App. 1993).

861 P.2d 235 (N.M. Ct. App. 1993).

156

Id. at 239–44, 257.

157

Id. at 244.

158

E.g., United States v. Adair, 723 F.2d 1394, 1412–15 (9th Cir. 1983); see also Joint Bd. of Control v. United States, 832 F.2d 1127, 1131 (9th Cir. 1987); Blumm, supra note 29, at § 37.02(b). In Martinez, the New Mexico Court of Appeals declined to rule on the tribe’s claim that its water right had a “time immemorial” priority because the treaty-based priority date to which it was other­wise entitled was already senior to all other water users on the stream. 861 P.2d at 238. 159

Adair, 723 F.2d at 1414.

160

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1. Appurtenant waters In general discussions relating to the nature of reserved water rights, the Supreme Court has suggested that the doctrine is limited to waters appurtenant to federal reservations, even while recognizing reserved rights where such waters were not.161 The Colorado Supreme Court has suggested a similar limitation.162 Nevertheless, none of these cases specifically decided the issue. The “real task lies not so much in an examination of federal power to reserve waters but rather with the necessity to state the limits and contours of the exercise of such federal power.”163 Arguments for an appurtenance limitation stem from the “narrow construction” language in Cappaert164 and New Mexico165 as well as the historical distinction between on- and off-reservation water sources drawn by Congress and the Supreme Court, and the deference paid to state law on the latter class of lands.166 Arguments against the limitation similarly focus on the intent of the government and claim that in some cases, the government did, in fact, intend to reserve nonappurtenant water.167 2. Groundwater Closely related to the appurtenance issue is the question of whether reserved water rights extend to groundwater. Although this question has not been definitively answered by the Supreme Court, several cases suggest the likely answer. In Cappaert v. United States,168 the Supreme Court answered the opposite question affirmatively when it held that a reserved right could be

161 Compare Cappaert v. United States, 426 U.S. 128, 138 (1976) (“when the Federal Government with­ draws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated”); United States v. New Mexico, 438 U.S. 696, 698 (1978) (“Congress did not intend . . . to relinquish its authority to reserve unappropriated water in the future for use on appurtenant lands withdrawn from the public domain”); and United States v. Rio Grande Dam & Irr. Co., 174 U.S. 690, 703 (1899) (referring to “the right of the United States, as the owner of lands bordering on a stream”), with Arizona I, 373 U.S. 546, 596–98 (1976) (awarding water to the Cocopah Reservation, which is approximately two miles from Colorado River). It should be noted, however, that the Cocopah Reservation consists of several discrete portions, two of which abut the Colorado River, and the court may have considered the discrete sections as one reservation. See also Blumm, supra note 29, at § 37.02(d). 162 United States v. Jesse, 744 P.2d 491, 493 (Colo. 1987); United States v. City and County of Denver, 656 P.2d 1, 17 (Colo. 1983). The Colorado Supreme Court also noted that the term “appurtenant” as used in this context means water “on, under, or touching the reserved lands.” Id. at 35.

Denver, 656 P.2d at 20.

163

Cappaert v. United States, 426 U.S. 128 (1976).

164

United States v. New Mexico, 438 U.S. 696 (1978).

165

See California v. United States, 438 U.S. 645, 656 (1978); FPC v. Oregon, 349 U.S. 435, 447–48 (1955); see generally Harry B. Sondheim and John R. Alexander, Federal Indian Water Rights: A Retrogression to QuasiRiparianism, 34 S. Cal. L. Rev. 1, 16–17 (1960); see also Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) (United States did not breach trust responsibility in declining to assert off-reservation water right claims based on treaty-reserved right to hunt on unoccupied lands). 166

167 See generally Judith V. Royster, A Primer on Indian Water Rights: More Questions Than Answers, 30 Tulsa L.J. 61, 67–68 (1994).

426 U.S. 128 (1976).

168

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protected from adjacent groundwater diversions. The water held to have been reserved in Cappaert was in an underground pool, which the Court characterized as “underground surface water.”169 The Court thus did not reach the question. In Big Horn I170 the Wyoming Supreme Court, while acknowledging that “[t]he logic which supports a reservation of surface water . . . also supports the reservation of groundwater,”171 refused to extend the Winters doctrine because no other court had explicitly done so. Several courts, however, have implicitly recognized a Winters groundwater right.172 Again, the question here is not whether the federal government had the power to reserve such waters, but whether it is reasonable to imply that it did. In many cases the sources of groundwater to which tribal claims extend were not even known when the reservation was created. In such cases it is unlikely that, as a factual matter, a reservation of groundwater occurred. In the first case to address directly the question whether federal reserved water rights extend to groundwater, the Arizona Supreme Court, ruling in the abstract, held that the “doctrine applies not only to surface water but to groundwater,” but that “a reserved right to groundwater may only be found where other waters are inadequate to accomplish the purpose of a reservation.”173 The court reasoned that the “significant question for the reserved rights doctrine is not whether water runs above or below the ground but whether it is necessary to accomplish the purpose of the reservation.”174 It then addressed the question of “whether a federal reservation may invoke broader protection than state law provides if state law turns out to be inadequate to preserve the waters necessary to accomplish the purpose of the reservation.”175 “Cappaert provides an explicit answer[,]” and thus where a “federal reservation establishes a reserved right to groundwater, it may invoke federal law to protect its groundwater from subsequent diversion to the extent such protection is necessary to fulfill its reserved right.”176

Id. at 143.

169

753 P.2d 76 (Wyo. 1988); aff’d by equally divided court, 492 U.S. 406 (1989).

170

Id. at 99.

171

E.g., Gila River Pima-Maricopa Indian Cmty. v. United States, 695 F.2d 559 (Fed. Cir. 1982); Tweedy v. Texas Co., 286 F. Supp. 383, 385 (D. Mont. 1968); Nevada ex rel. Shamburger v. United States, 165 F. Supp. 600 (D. Nev. 1958), aff’d on other grounds, 279 F.2d 699 (9th Cir. 1960); see generally Eric F. Spade, Comment, Indian Reserved Water Rights Doctrine and the Groundwater Question, 19 Am. Ind. L. Rev. 403 (1994). 172

Gila IV, 989 P.2d 739, 748 (Ariz. 1999).

173

Id. at 747; see generally Debbie Shosteck, Beyond Reserved Rights: Tribal Control Over Groundwater Resources in a Cold Winters Climate, 28 Colum. J. Envtl. L. 325, 331 (2003) (arguing that although the Arizona “Court’s decision offers doctrinal consistency and scientific logic,” the Supreme Court is unlikely to ultimately adopt such a generous standard, but suggesting other methods by which a tribe might protect its groundwater). 174

Id. at 749.

175

Id. 749–50.

176

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Relying in part on the Gila IV ruling, the Montana Supreme Court, in a suit brought by the Confederated Salish and Kootenai Tribes, vacated an administrative order that would have allowed groundwater pumping from private property within the Flathead Reservation.177 The court had previously ordered the state Department of Natural Resources and Conservation (“DNRC”) not to issue permits on the reservation until the tribes’ reserved rights were quantified, but the DNRC reasoned that the tribes’ reserved rights did not include groundwater, and thus the permit could issue. Although the Montana court did not rule that groundwater was necessary to accomplish the purpose of the reservation, it saw no reason to limit the scope of its prior “holdings by excluding groundwater from the tribes’ federally reserved water rights in this case.”178 So, too, the federal district court in the Lummi Indian Reservation controversy held that groundwater falls within the scope of the Winters doctrine.179 Indeed, the entire litigation there focused on a groundwater claim.180 The court, however, expressed disagreement with Gila IV insofar as the Arizona court required a hydrologic connection between surface water and groundwater for the latter to come within Winters.181 The claim was not litigated to conclusion because of the subsequent settlement. 3. Allotments and reacquired lands Many reservations were allotted to tribal members pursuant to the General Allotment Act182 or similar enactments. Some of those allotments are presently subject to trust restrictions, others are held in fee, and many have been alienated to nonmembers.183 Trust allottees possess a right to use a portion of the tribe’s reserved right that is measured by the “relationship between the number of irrigable acres owned and the number of irrigable acres owned within the reservation.”184 Fee allottees and their successors have a right to use

177 Confederated Salish and Kootenai Tribes v. Stults, 59 P.3d 1093 (Mont. 2002). The court also cited Tweedy v. Texas Co., 286 F. Supp. 383 (D. Mont. 1968); United States v. Cappaert, 508 F.2d 313 (9th Cir. 1974), aff’d, 426 U.S. 128 (1976); and the Supreme Court’s decision in Cappaert.

Confederated Salish and Kootenai Tribes, 59 P.3d at 1099.

178

United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050 (W.D. Wash. 2005), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007). 179

Id. at 1059, 1068.

180

Id. at 1068 (no other authority supported the propriety of “permitting reserved groundwater rights only where surface waters are inadequate to provide for the needs of the Reservation”). 181

Act of Feb. 8, 1887, 24 Stat. 388.

182

See generally Richard B. Collins, Indian Allotment Water Rights, 20 Land & Water L. Rev. 421 (1985); David H. Getches, Water Rights on Indian Allotments, 26 S.D. L. Rev. 405 (1981). 183

184 Colville Confederated Tribes v. Walton, 752 F.2d 397, 401 (9th Cir. 1985); see also United States v. Powers, 305 U.S. 527, 532 (1939); United States v. Anderson, 736 F.2d 1358, 1362 (9th Cir. 1984); United States v. Adair, 723 F.2d 1394, 1416 (9th Cir. 1983); Big Horn I, 753 P.2d 76, 113 (1988), judgment aff’d by evenly divided court, 492 U.S. 406 (1989).

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a portion of the tribe’s reserved water right,185 subject to that right being found abandoned unless put to use within a reasonable time after trust removal.186 In some circumstances, tribes have reacquired allotments that were patented to nonmember settlers. To the extent that such allotments retain their appurtenant reserved water rights, such rights also will pass back to the tribe by operation of law.187 If there are no appurtenant water rights, or if they were abandoned, some reacquired tracts have been considered to be newly created federal reservations, with a reserved water right implied to serve the purposes of the tribe’s reserved right as of the date of reacquisition.188 G. Change of Use and Transfer of Reserved Water Rights Two of the most controversial and presently unsettled questions regarding Indian reserved water rights are: (1) whether a tribe or its mem­bers are entitled to change the manner, place, or period of use of their reserved water right and, if so, under what conditions; and (2) whether a tribe or its members may transfer the right to use all or a portion of a reserved water right to nonIndians on or off the reservation. 1. Change of use As to the first question, the special master in the Arizona v. California litigation determined that quantification of water rights based on practicable irrigable acreage did not limit the tribes to using such water for irrigation: This [method of quantifying water rights] does not necessarily mean, however, that water reserved for Indian Reservations may not be used for purposes other than agricultural and related uses. . . . The measure­ ment used in defining the magnitude of the water rights is the amount of water necessary for agriculture and related purposes because this was the initial purpose of the reservation, but the decree establishes a prop­erty right which the United States may utilize or dispose of for the bene­fit of the Indians as the relevant law may allow.189

Nonetheless, the special mas­ter noted further that “[t]he question of change in the character of use is not before me. I hold only that the amount

185 Skeem v. United States, 273 F. 93 (9th Cir. 1921); United States ex rel. Ray v. Hibner, 27 F.2d 909 (D. Idaho 1928). 186 Colville Confederated Tribes v. Walton, 752 F.2d 397, 402 (9th Cir. 1985); Lewis v. Hanson, 227 P.2d 70, 72 (Mont. 1951); Anderson v. Spear-Morgan Livestock Co., 79 P.2d 667 (Mont. 1938); see In re Gen. Adjudication of All Rights to Use Water in Big Horn River Sys., 48 P.3d 1040, 1056 (Wyo. 2002) (Big Horn V) (rejecting contention that “reasonable time” for placing Walton water right to use after interim purchase by tribal member begins anew; “[t]here would be no certainty of priority dates because mere repurchase by an Indian successor anywhere in the chain of title would restart the ‘reasonable time’ ”).

United States v. Anderson, 736 F.2d 1358, 1363 (9th Cir. 1984).

187

Id.; see also United States v. Adair, 723 F.2d 1394, 1410 (9th Cir. 1983); Big Horn I, 753 P.2d 76, 115 (Wyo. 1988), judgment aff’d by evenly divided court, 492 U.S. 406 (1989). 188

Arizona v. California, Report of Special Master 265–66 (Dec. 5, 1960).

189

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of water reserved, and hence the magnitude of the water rights created, is determined by agricul­tural and related requirements, since when the water was reserved that was the purpose of the reserva­tion.” His opinion that rights impliedly reserved for irrigation needs can be changed to other uses thus was dictum and did not appear to constitute strong authority for transfer of Indian reserved water rights. The Department of the Interior relied heavily on that report, however, to support its 1964 opinion that changes in the manner of use were permissible and allowed water reserved for irrigation to be used for a resort and housing development.190 The Ninth Circuit also cited the special master’s report in Arizona v. California as authority for its finding that, “[w]hen the Tribe has a vested property right in reserved water, it may use it in any lawful manner.”191 The Supreme Court approved a stipulated supplemental decree that specifically set forth conditions that were to be applied “[i]f all or part of the adjudicated water rights of any of the five Indian Reservations is used other than for irrigation or other agricultural application.”192 Thus, it seems generally accepted, even if not well established, that a tribe may change a reserved right from one use to another.193 However, simply recognizing that a change in the use of the tribe’s water right may occur does not answer the question of what limitations should be placed upon any such change or, put differently, what the “relevant law may allow.”194 For example, state law appropriative rights may be changed, but only

Mem. Sol. Int. (Feb. 1, 1964).

190

Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981). The court, however, was addressing not a substantial change in the nature of use but rather a minimal change from one instream use—the maintenance of a destroyed natural fishery—to another instream use—the maintenance of a nonnatural, replacement fishery. 191

192 Arizona II, 439 U.S. 419, 422–23 (1979) (per curiam); see United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1070 (W.D. Wash. 2005) (citing Arizona II for the proposition that “[o]nce the water rights of the [tribe] have been quantified, the water may be used for any purpose, including domestic, commercial, and industrial purposes”), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007). Provisions setting forth limiting conditions to be applied if all or part of tribal reserved water rights are used for other than agricultural purposes were also included in the final settlement agreements recently approved by the Supreme Court. Arizona v. California, 547 U.S. 150, 167–69 (2006). 193 See generally David H. Getches, Water Law 305 (1984); Sylvia F. Liu, Comment, American Indian Reserved Water Rights: The Federal Obligation to Protect Tribal Water Resources and Tribal Autonomy, 25 Envtl. L. 425 (1995); Susan M. Williams, Indian Winters Water Rights Administration: Averting New War, 11 Pub. Land L. Rev. 53 (1990). Thus, in a ruling upholding the state engineer’s approval of a change in use from irrigation to an in-stream flow to maintain a fishery, a federal district court found that such a use was a primary purpose of the reservation and that the tribe did not need to acquire a new water right for that purpose. United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245 (D. Nev. 2004), aff’d, 429 F.3d 902 (9th Cir. 2005). The court, however, declined to resolve whether the tribe could apply its water to any lawful purpose, which the tribe and the United States had argued, or whether the tribe’s use was limited only to the primary purposes of the Reservation. Id. at 1253. 194 Although the conditions upon which change in use of reserved rights can occur present a federal question, state law requirements may be deemed to control as a matter of federal law. See United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1072–73 (W.D. Wash. 2005) (looking to state law for purposes of determining presumptive period within which to put “inchoate” water rights from Indian al-

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under certain conditions. The most important is that junior appropriators are entitled to the maintenance of the conditions substantially as they existed on the date they first exercised their rights.195 Significant injury to other water users could occur if changes of use of reserved water rights are not subject to similar conditions. Again, direct authority in this area is rare. The Supreme Court’s admonition that reserved water rights are to be narrowly drawn, since they not only are based on implication but also are an exception to the otherwise consistent thread of state primacy regarding the allocation of water,196 suggests that, once quantified, reserved water rights should be subject to the same rules as all other water rights in the western United States. Thus, as discussed above, the Supreme Court approved a stipulated supplemental decree in the Arizona v. California litigation that treated reserved water rights similarly to appropriative rights for the purpose of a change in use by specifying that a “consumptive use” limitation applies to a tribe’s change of its water right to a use other than agriculture.197 Although for the most part this limitation protects the quantity of junior users’ rights, it does not protect their place and means of diversion.

lottee to use), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007). The Ninth Circuit Court of Appeals thus has held that the stay provision of Nevada’s water code governed use of an Indian tribe’s adjudicated reserved water right, noting that state law had been applied to other rights under the decree and that the United States Supreme Court has construed the policies of the 1902 Reclamation Act to require that “state water law . . . control in the appropriation and later distribution of the water.” United States v. Orr Water Ditch Co., 391 F.3d 1077, 1081 (9th Cir. 2004), amended, 400 F.3d 1117 (9th Cir. 2005); see also United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245, 1250–51 (D. Nev. 2004) (Indian tribe’s reserved rights subject to administration pursuant to state law since terms of the decree adjudicating those reserved rights required application of state law), aff’d, 429 F.3d 902 (9th Cir. 2005). 195 Orr v. Arapahoe Water and Sanitation Dist., 753 P.2d 1217 (Colo. 1988); see also 2 Wells A. Hutchins, Water Rights Laws in the Nineteen Western States 577 (1974); Williams, supra note 193, at 73. This is commonly known as the “no injury” rule. To more fully understand the significance of this rule, it is necessary to explore the factual context of water use in the West. Although water is used for a variety of purposes and under a variety of circumstances, the most common is for irrigated agriculture. Irrigation generally does not consume all of the water actually diverted from a stream system. Changes in the time, place, or manner of use typically affect the amount of water consumed. A change in manner of use from irrigation, with a high return flow, to manufacturing, with a low return flow, will hurt other water users. Changes in place of use similarly can injure other water users. If, for example, the diverted water is transferred out of the watershed, then there will be no return flow, and the consumptive use will double or even triple.

United States v. New Mexico, 438 U.S. 696, 701–02 (1978).

196

Arizona II, 439 U.S. 419, 422–23 (1979) (per curiam) (“[i]f all or part of the adjudicated water right . . . is used other than for irrigation or other agricultural application, the total consumptive use . . . shall not exceed the consumptive use that would have resulted if the diversions listed in [the decree] had been used for irrigation of the number of acres specified [therein]”). The application of this rule is complicated somewhat by the fact that under the PIA standard water may be awarded to a tribe beyond the amount currently put to use—often called “futures” rights. This presents the question as to whether the transfer can occur only after a first use of the “futures” water for the purpose for which it was quantified. If not, it would be necessary to determine what conditions would have existed on the date a junior user first appropriated water if the tribe had then been using all of its decreed water to define the nature of the junior’s protectible interests. Cf. United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245, 1254 (D. Nev. 2004) (the condition on which injury is determined is not the actual usage but the decreed right, which as a matter of law constitutes no injury), aff’d, 429 F.3d 902 (9th Cir. 2005). 197

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The Wyoming Supreme Court has gone even further, holding that the tribes of the Wind River Reservation must comply with Wyoming water law to change water reserved for future irrigation projects to in-stream flows for fisheries.198 No clear rationale emerges from the decision due to the fact that each justice wrote separately, with the three justices in the majority each taking different approaches to the issue. The one fact central to the decision was that the water that the tribes sought to change to in-stream flows had been decreed to the tribes but not yet diverted for irrigation. The court left undecided whether water currently being used for irrigation could be diverted to instream flows.199 Leaving similarly unanswered the precise scope of a tribe’s ability to change a reserved right from one purpose to another was a more recent decision in the Orr Ditch litigation.200 There, in a ruling upholding the state engineer’s approval of a change in use from irrigation to an in-stream flow to maintain a fishery, the Nevada federal district court found that such a use was a primary purpose of the reservation and that the tribe did not need to acquire a new water right for that purpose. The court, however, declined to resolve whether the tribe could apply its water to any lawful purpose, which the tribe and the United States had argued, or whether the tribe’s use was limited only to the primary purposes of the reservation.201 2. Transfer of tribal reserved water rights The second question centers on the transfer of reserved water to nonmembers inside or outside the reservation. As to either type of transfer, the Nonintercourse Act provides that “[n]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.”202 Several decisions suggest that the word “land” as used therein includes appurtenant

198 In re Gen. Adjudication of All Rights to Use of Water in Big Horn River Sys., 835 P.2d 273 (Wyo. 1992) (Big Horn III). 199 Id. at 279. Commentators did not respond favorably to the result in Big Horn III. Wes Williams, Jr., Note, Changing Water Use for Federally Reserved Indian Water Rights: Wind River Indian Reservation, 27 U.C. Davis L. Rev. 501 (1994); Peggy Sue Kirk, Note, Cowboys, Indians and Reserved Water Rights: May a State Court Limit How Indian Tribes Use Their Water? 28 Land & Water L. Rev. 467 (1993); Tom Kinney, Comment, Chasing the Wind: Wyoming Supreme Court Decision in Big Horn III Denies Beneficial Use for Instream Flow Protection, But Empowers State to Administer Federal Indian Reserved Water Right Awarded to the Wind River Tribes, 33 Nat. Res. J. 841 (1993).

United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245 (D. Nev. 2004), aff’d, 429 F.3d 902 (9th Cir.

200

2005). Id. at 1253.

201

25 U.S.C. § 177.

202

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Winters water rights.203 Accordingly, conveyances of Indian water rights will generally require congressional approval. A limited exception to the Nonintercourse Act may be contained in 25 U.S.C. § 415, which authorizes tribes, with the approval of the Secre­tary of the Interior, to lease trust-restricted land for “public, religious, educa­tional, recreational, residential, or business purposes.” That statute also provides for the “development or utilization of natural resources in connec­tion with operations under such leases.” Although this section of the statute has not received judicial construction, “natural resources” likely include a tribe’s reserved water rights, a construction that allows a tribe to transfer water and perhaps change the nature of its use in connection with leases of trust-restricted reservation land. Aside from these statutory restrictions, another hurdle to the transferability of a reserved water right may lie in the nature of the right itself. The possible limitations stem from the fact that “Winters rights were created as an adjunct to land[,] have no existence apart from that land[,] . . . [and] were intended to have only a limited purpose.”204 The other view is that the federal goal of economic self-sufficiency and political autonomy for Indian tribes mandates the conclusion that reserved water may be freely transferred on and off the reservation.205 In answering this question, the distinction between on- and off-reservation transfers may be significant. An argument can be made that on-reservation transfers, if otherwise sanctioned by federal law, remain faithful to the purposes of encouraging reservation development. On the other hand, the transfer of water off the reservation bears little relation to the purpose for which the water was originally reserved. This distinction was recognized in Big Horn I, where the Wyoming Supreme Court noted that the tribes were

203 Holmes v. United States, 53 F.2d 960, 963 (10th Cir. 1931); see also N. Side Canal Co. v. Twin Falls Canal Co., 12 F.2d 311 (D. Idaho 1926) (construing statute recognizing federal jurisdiction over suits involving United States “lands” to include suits over water rights). 204 Jack D. Palma II, Considerations and Conclusions Concerning the Transferability of Indian Water Rights, 20 Nat. Res. J. 91, 93 (1980); see also Sondheim and Alexander, supra note 174 (“[P]ersonal participation by Indians in the program of water use contemplated by the parties is basic to the rationale of Winters. . . . If such personal participation is lacking or if the water is not used for the purposes which the parties contemplated, then it is submitted that the foundation facts underlying the Winters rationale are absent, and [it] has no applicability”) (emphasis in original). 205 Getches, supra note 68, at 542–44; see also Christine Lichtenfels, Comment, Indian Reserved Water Rights: An Argument for the Right to Export and Sell, 24 Land & Water L. Rev. 131 (1989); Lee H. Story, Comment, Leasing Indian Water off the Reservation: A Use Consistent with the Reservation’s Purpose, 76 Calif. L. Rev. 179 (1988); Karen M. Schapiro, An Argument for the Marketability of Indian Reserved Water Rights: Tapping the Untapped Reservoir, 23 Idaho L. Rev. 277 (1981). Essentially the debate comes down to whether Winters should be construed as an “economic doctrine, designed to assist the tribes in achieving greater financial, and hence political, autonomy.” Palma, supra note 204, at 92.

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not entitled to market their reserved water rights to non-Indians outside the Wind River Reservation.206 One instance in which transfer of water rights is allowed is where such rights are appurtenant to lands conveyed to a nonmember. In Colville Confederated Tribes v. Walton207 the Ninth Circuit Court of Appeals held that nonmember purchasers of allotments acquire the allottees’ rights to use reserved waters, with a date-of-reservation priority date.208 The nonmember purchaser acquires such a right even if the allottee did not put the water to beneficial use, so long as the purchaser “appropriates with reasonable dili­gence after the passage of title.”209 Nonmembers acquiring lands within Indian reservations pursuant to the Homestead Act and similar federal laws, however, do not acquire the right to share in reserved water rights. When reservation lands are ceded by the tribe, or unilaterally opened to settlement by Congress, the reserved water right disappears “because the purpose for which it was recognized no longer pertain[s].”210

206 753 P.2d 76, 100 (Wyo. 1988) (“The District Court held that ‘[t]he Tribes can sell or lease any part of the water covered by their reserved water rights but [it] cannot be for exportation off of the Reservation.’ The Tribes did not seek permission to export reserved water, and the United States concedes that no fed­eral law permits the sale of reserved water to non-Indians off the reservation”), judgment aff’d by evenly divided court, 492 U.S. 406 (1989); but see generally Chris Seldin, Comment, Interstate Marketing of Indian Water Rights: The Impact of the Commerce Clause, 87 Calif. L. Rev. 1545 (1999) (suggesting that states cannot inhibit tribes from interstate marketing of water by characterizing such marketing as a wholly off-reservation activity). 207

647 F.2d 42 (9th Cir. 1981). Id. at 51.

208

Id.; see Big Horn V, 48 P.3d 1040, 1055 (Wyo. 2002) (requiring Walton right holders, in the context of a large federal irrigation project constructed over many years, to demonstrate on remand “their efforts to put lands under irrigation within a reasonable time and with due diligence, as defined by state law, what lands were put under irrigation after the federal project facilities became available to the properties”). In the most extensive treatment of Walton transfer principles, the Lummi adjudication district court held: (1) A nonmember transferee receives an “inchoate” water right “limited to the amount appropriated ‘with reasonable diligence after the passage of title’ from the original Indian allottees (or their heirs)[] and ‘maintained by continued use’ by each subsequent successor” (United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1072 (W.D. Wash. 2005), vacated pursuant to settlement, No. C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007)); (2) Washington state law would be looked to “for guidance” in determining whether the rights were put to use with reasonable diligence (id. at 1073); (3) reacquisition of the appurtenant land by the tribe from a nontribal successor includes “only those rights which have not been lost through nonuse, whether perfected or unperfected at the time of the original transfer to the non-[tribal] successor” (id. at 1075); and (4) “the party alleging the existence of a water right”—whether tribal or nontribal—“has the burden of proof and must prove it by a preponderance of the evidence” (id. at 1076). 209

210 In re the Gen. Adjudication of All Rights to Use Water in the Big Horn River Sys., 899 P.2d 848, 854 (Wyo. 1995); see also City of Pocatello v. State, 180 P.3d 1048, 1057 (Idaho 2008) (provision in a statute ceding land from a reservation and granting a town the right to “free and undisturbed use in common with [the tribe]” of reservation streams in the town’s vicinity did not entitle it “to a share of the Tribes’ reserved water right”); United States v. Anderson, 736 F.2d 1358, 1363 (9th Cir. 1984) (“where the land has been removed from the Tribe’s possession and conveyed to a homesteader, the purposes for which Winters rights were implied are eliminated”).

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II. JURISDICTIONAL ISSUES A. State Legal Systems Relating to Water Rights An understanding of the jurisdictional issues presented by Indian reserved water rights and their integration into state water law systems pro­ceeds initially from an examination of the structure of state legal and administrative systems relating to water rights. Generally, each state water law system performs three basic functions: authorization of new uses or “appropriation,” determination of existing uses or “adjudication,” and the supervised distribution of recognized water rights.211 In the exercise of each of these functions, the substantive principles defining the nature of a water right, such as beneficial use, priority date, and the “no injury” rule, are applied to determine the relative rights of appropriators to a particular water source. Western states have different institutional structures to imple­ment these functions. For example, in Colorado the water court not only adjudicates existing rights but is also the sole forum in which a change of use or a new appropriation can be recognized.212 More typically, states bifurcate these functions between judicial forums, which adjudicate water rights, and administrative agencies, which authorize new water rights and changes in use of existing ones.213 Other states, such as Oregon, provide for a strong administrative agency role even in the adjudication process.214 1. State regulation of water rights State regulation of water rights falls into two general areas. First is the regulation of the acquisition of new water rights, and second is the regula­tion of the use and change in use of existing water rights. As to the former, it is generally accepted that unappropriated water located within a state is held in trust by the state for its citizens.215 Consistent with this interest and trust obligation, states have enacted various statutory criteria to ensure that unappropriated water is allocated to uses deemed of primary social impor­tance.216 The acquisition of new rights from unappropriated waters generally is made conditional on compliance with statutory requirements.

211

See generally 1 Hutchins, supra note 195, at 301–06. Colo. Rev. Stat. § 37-92-203; State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).

212

Cal. Water Code §§ 11460–11463; Mont. Code Ann. § 85-2-402; Wash. Rev. Code §§ 90.03.250, 90.03.380; Utah Code Ann. § 73-3-1; Or. Rev. Stat. § 540.010. 213

214 See generally Or. Rev. Stat. §§ 539.005–539.350; United States v. Oregon, 44 F.3d 758 (9th Cir. 1994) (finding that Oregon procedures constitute “suit” for purposes of McCarran Amendment); Tarlock, supra note 3, at § 7.14. 215 Cal. Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935); United States v. City and County of Denver, 656 P.2d 1 (Colo. 1982); Mont. Const. art. IX, § 3(3); Tarlock, supra note 3, at § 5.14. 216 See generally Tarlock, supra note 3, at §§ 5.30, 5.36, 5.52 (discussing evolving concepts of beneficial use and public interest requirements on new appropriations).

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The second area of state regulation relates to the ongoing administra­ tion and enforcement of existing, i.e., adjudicated or otherwise recognized, water rights. This involves two activities. The first is the traditional function of ditch riders or water commissioners—the physical delivery of water in accordance with its decreed elements. The second aspect stems from the need to update decrees and regulate prospectively the change of use of decreed rights. Regulation of change of use generally involves the applica­tion of substantive rules defining the nature of the water right.217 The most significant rule is that changes in the exercise of appropriative rights must not cause injury to others, even junior appropriators, holding water rights in the same system.218 Changes in use, and the concomitant state administra­tive authority over such changes, have become increasingly important as western water law begins to address the problem of reallocating water from historical patterns to uses of greater economic or social importance.219 Courts have ordinarily viewed agency action in change of use and new appropriation proceedings as administrative, rather than adjudicatory, in nature.220 In other words, the agency does not adjudicate water rights in approving a new appropriation or granting a change of use but rather “autho­rizes the applicant to proceed, if he can, to complete his appropriation and perfect his water right.”221 For example, in United States v. District Court222 the United States brought an original action in the Utah Supreme Court to chal­lenge the jurisdiction of the state engineer to grant a change of use application premised upon “no injury” to other users—which in that case included a right held by the federal government. The Utah Supreme Court upheld the permit, noting that “the [State] Engineer does not adjudicate the rights of the protestants or the applicant to the use of the water in question, nor the rights which the applicant may obtain under the application.”223 The Montana Supreme Court

217 Although there are differences between states, the following items are usually recognized as pro­ tectible elements of an appropriative water right: priority date, quantity of water (measured by beneficial use), point and type of diversion, purpose of use, and place of use. See generally 2 Hutchins, supra note 195, at 488–546; 6 Waters and Water Rights pt. XI, subpt. A (Robert E. Beck ed., 1991 ed. & repl. vol. 1994) (surveying law in, inter alia, Columbia, Colorado, and Missouri Basins). Many states have also imposed public interest criteria upon changes of appropriative rights. See, e.g., 2 Waters and Water Rights § 14.04(d) (Robert E. Beck ed., 1991 ed. & repl. vol. 2001). 218 E.g., Idaho Code § 42-108; Mont. Code Ann. § 85-2-311; Wash. Rev. Code. § 90.03.380; Utah Code Ann. § 73-3-3.

George A. Gould, Transfer of Water Rights, 29 Nat. Res. J. 457, 458 (1989).

219

See generally 2 Beck, supra note 217, at § 15.01; but see Rettkowski v. Dep’t of Ecology, 858 P.2d 232 (Wash. 1993) (under Washington law, state agency could not issue “cease and desist” order to jun­ior appropriator in absence of general adjudication of source). 220

2 Beck, supra note 217, at § 14.04(c).

221

242 P.2d 774 (Utah 1952).

222

Id. at 777. Rather, “[the engineer] decides only that there is probable cause to believe that [the] applicant may be able to establish rights . . . without impairing the rights of others.” United States v. Dist. Ct., 238 P.2d 1132, 1137 (Utah 1951). 223

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has adopted the opposite approach and forbids applications for permits to use waters within Indian reservations until such time as the tribe’s reserved water rights are quantified.224 The court reasoned that until such a quantification is made, the applicant cannot fulfill his burden of prov­ing that his proposed use would not unreasonably interfere with the tribe’s reserved water rights.225 In Confederated Salish and Kootenai Tribes v. Stults226 the court made clear that this prohibition extended to groundwater and vacated an administrative order that would have allowed groundwater pumping from the reservation. More recently, however, the court concluded that the Clinch and Stults decisions do not necessarily preclude the state regulatory agency from considering an application to change the place and manner of use of a permitted water right held by a non-Indian on a reservation, even when tribal claimed reserved rights have not been quantified in the ongoing general adjudication.227 Applying its understanding of the preemption analysis in White Mountain Apache Tribe v. Bracker,228 the court held that state authority was not preempted by federal or tribal interests, since neither the federal government nor the tribes had sought to regulate reservation water rights.229 It found, however, that questions of fact existed over whether DNRC’s exercise of regulatory control would infringe on the tribes’ sovereignty and thus be preempted because of such exercise’s impact on the tribal economic security, health or welfare.230 It remanded the matter to the district court to consider that issue. 2. Adjudication of water rights Water rights adjudications take two different forms. The first is the ordi­ nary civil action by one appropriator against another to protect his property interest and gain legal or equitable relief for specific injury.231 The other is the statutory general adjudication proceeding, which is intended “to provide

In re Application for Beneficial Use Water Permits Nos. 66459-76L, 923 P.2d 1073, 1079 (Mont. 1996).

224

Id. at 1080. Following the Montana Supreme Court’s decision, the Montana legislature, in an attempt to authorize the issuance of water use permits prior to quantification of tribal reserved water rights, eliminated the provision requiring applicants to prove that the proposed use would not interfere unreasonably with reserved water rights and substituted a provision requiring applicants to demonstrate that water was physically and legally available at the proposed point of diversion. Confederated Salish and Kootenai Tribes v. Clinch, 992 P.2d 244, 248 (Mont. 1999). The Montana court, referring to a state constitutional provision recognizing and confirming “existing” water rights, interpreted “legally available” to “mean there is water available which, among other things, has not been federally reserved for Indian tribes.” Id. at 250. Thus, the court again ordered the responsible state agency not to issue water permits on the involved reservation pending quantification of the tribal reserved water rights. Id. 225

59 P.3d 1093 (Mont. 2002).

226

Confederated Salish and Kootenai Tribes v. Clinch, 158 P.3d 377 (Mont. 2007).

227

448 U.S. 136 (1980).

228

158 P.3d at 384, 386.

229

Id. at 386.

230

See, e.g., Basey v. Gallagher, 87 U.S. 670, 683 (1874); 2 Hutchins, supra note 195, at 191.

231

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a workable, comprehensive procedure for the determination of relative rights on a stream system . . . as a prerequisite to State control of distribution of the water for the protection of all users in the exercise of their rights.”232 The general adjudication suit does not afford individual users specific relief but instead provides “in a permanent form the evidence of those [rights] pre­viously acquired.”233 Because of the interrelated nature of water resources, the adjudication of a particular water right may affect some or all water rights from the same source of supply.234 Necessarily, therefore, some or all of the other appropriators in the same system may be necessary parties depending on the nature of the relief or remedy requested.235 Both Congress and the Supreme Court have recognized this as a particular characteristic of general adjudication proceedings.236 The Senate report on the McCarran Amendment237 observed that by reason of the interlocking nature of adjudicated rights on any stream system, any order or action affecting one right affects all such rights. Accordingly, all water users on a stream in virtually all cases are interested and necessary parties to any court proceedings.238 Similarly, the Supreme Court in Colorado River Water Conservation District v. United States239 characterized the general adjudication proceeding at issue as analogous to the type of in rem proceedings, such as those involving the corpus of a trust, where jurisdiction over the entire res is required in order to determine each claimant’s respective share.240 The need for general adjudications stems from the fact that most, if not all, of the early water rights in the West were acquired by actual use and were not generally evidenced by a deed, permit, or similar instrument. Without a decree or similar compilation of all of the rights on a stream, neither appro­ priators nor state administrative agencies were able to accurately determine

2 Hutchins, supra note 195, at 445; see also S.D. Codified Laws § 46-10-2.3.

232

New Mercer Ditch Co. v. Armstrong, 40 P. 989, 990 (Colo. 1895); see generally Tarlock, supra note 3, at § 7.02. 233

2 Beck, supra note 217, at §16.01.

234

Id. In some situations involving narrow issues such as relative priorities between two claimants or the ownership of a particular right, other appropriators may not be affected. 235

236 2 Beck, supra note 217, at § 16.02(b) (“[i]n an action for the general adjudi­cation of water, all users of water from the stream, and all persons who claim the right to use water from the stream should be made parties”).

Pub. L. No. 82-495, § 208, 66 Stat. 549, 560 (1952) (codified at 43 U.S.C. § 666(a)).

237

S. Rep. No. 755, 82d Cong., 1st Sess. 2 (1951).

238

424 U.S. 800 (1976).

239

Id. at 818; see also Nevada v. United States, 463 U.S. 110 (1983) (actions involving water rights are gen­erally in nature of in rem proceedings); California v. United States, 235 F.2d 647, 663 (9th Cir. 1956) (“[t]he only proper method of adjudicating the rights on a stream, whether riparian or appropriative or mixed, is to have all owners of land on the watershed and all appropriators who use water from the stream involved in another watershed in court at the same time”). 240

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the quantity of specific water rights.241 The doctrine of sovereign immunity, however, effectively frustrated the states’ ability to quantify reserved water rights and to incorporate them into decrees and administrative systems. Until the enactment of the McCarran Amendment in 1952,242 most state general adjudications in basins containing reserved water rights claims were incom­plete. Holders of existing state law–based rights under those decrees were uncertain as to the quality of their rights. In part due to the passage of the McCarran Amendment and in part due to the increasing competition for scarce water, most western states have commenced general adjudications of varying scope in order to quantify reserved water rights and incorporate them into comprehensive state water management systems. B. The McCarran Amendment and State Adjudication of Reserved Rights In deference to traditional state regulation of water rights, Congress passed the McCarran Amendment243 in 1952, waiving the sovereign immu­nity of the United States and allowing it to be named as a defendant in state general adjudication and administration proceedings.244 In United States v. Idaho ex rel. Director245 the Court noted that the McCarran Amendment “submits the United

See generally Albert W. Stone, Are There Any Adjudicated Streams in Montana?, 19 Mont. L. Rev. 19

241

(1957). 43 U.S.C. § 666(a).

242

Title 43, section 666(a) provides:

243

Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to such a suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual in like circumstances[.] 244 In exercise of its plenary authority over Indian affairs, Congress may waive federal or tribal sovereign immunity with respect to trust property. Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976); Bryan v. Itasca County, 426 U.S. 373 (1976); Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463 (1979); Menominee Tribe v. United States, 391 U.S. 404 (1968). Waivers must be strictly construed. Library of Congress v. Shaw, 478 U.S. 310, 318 (1986). The primary factor in that construction is the congressional intent. Franchise Tax Bd. v. USPS, 467 U.S. 512, 521 (1984). The liability and the remedy are created by the waiver, and a limitation or condition upon the remedy is a similar limit or condition on the right. United States v. Hennen, 300 F. Supp. 256, 261 (D. Nev. 1968) (citing Dalehite v. United States, 346 U.S. 15 (1953)). A related question is presented by the second sentence of § 666(a) (“[t]he United States shall . . . be deemed to have waived any right to plead that the state laws are inapplicable”) as to whether § 666(a) is a choice of law provision in addition to the waiver of sovereign immunity. The court in Nevada ex rel. Shamberger v. United States, 165 F. Supp. 600, 604 (D. Nev. 1958), rejected this notion, holding that “[t]his does not mean, however, that the United States cannot invoke Federal statutes and decisions in support of its claim. . . . This Court does not believe that the [United States] stultified itself by giving its case away in advance: All laws, both State and Federal, are to be considered in this case, insofar as they are relevant.”

508 U.S. 1 (1993).

245

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States generally to state adjective law, as well as to state substantive law of water rights.”246 Although the McCarran Amendment does not provide textually that reserved water rights are included in the waiver, the Court in United States v. District Court for Eagle County247 held that it was an “all-inclusive statute concerning ‘the adjudication of rights to the use of water of a river system’ which . . . has no exceptions and which . . . includes appropriate [sic] rights, riparian rights, and reserved rights.”248 Eagle County only addressed a reserved water claim for the White River National Forest and thus did not specifically hold that Indian reserved water rights fell within the scope of the waiver. However, neither Eagle County nor the language and legislative history of the McCar­ran Amendment provide a basis to distinguish between Indian reserved and other federal reserved water rights. The Senate committee report on the McCarran Amendment suggests that Congress intended to have all reserved rights adjudicated pursuant to state law: Since it is clear that the States have the control of the water within their boundaries, it is essential that each and every owner along a given water course, including the United States, be amenable to the law of the state, if there is to be a proper administration of the water law as it developed over the years.249

Accordingly, in Colorado River Water Conservation District v. United States,250 the Supreme Court held that the McCarran Amendment allows Indian water rights to be adjudicated in state court by suing the United States in its role as trustee for the tribes. Tribes themselves cannot be named as defendants in state adjudication proceedings, since the McCarran Amendment did not waive the sovereign immunity enjoyed by Indian tribes.251 The practical significance

Id. at 8.

246

401 U.S. 520, 524 (1971).

247

Id. at 524; see also United States v. Idaho ex rel. Dir., 508 U.S. 1, 7 (1993) (rejecting narrow, technical construction of McCarran Amendment). 248

249 S. Rep. No. 755, 82d Cong., 1st Sess. 6 (1951); see also California v. United States, 438 U.S. 645, 653 (1978) (history of state-federal relationship regarding reclamation of arid lands displays a “consistent thread of purposeful and continued deference to state water law by Congress”); but see Stephen M. Feld­man, The Supreme Court’s New Sovereign Immunity Doctrine and the McCarran Amendment: Toward Ending State Adjudication of Indian Water Rights, 18 Harv. Envt’l L. Rev. 433 (1994) (arguing that Colorado River was wrongly decided and should be reexamined in the wake of United States v. Nordic Village, Inc., 503 U.S. 30 (1992)). 250 424 U.S. 800 (1976). It is noteworthy that at almost every opportunity the Court has stated that the intent of Congress in enacting the McCarran Amendment was to subject all federal water rights of what­ever nature to comprehensive state proceedings. Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983); United States v. Dist. Ct. for Eagle County, 401 U.S. 520, 524 (1971); United States v. Dist. Ct. for Water Div. No. 5, 401 U.S. 527 (1971); but see Scott B. McElroy and Jeff J. Davis, Revisiting Colorado Water Conservation District v. United States: There Must Be a Better Way, 27 Ariz. St. L. Rev. 597 (1995) (arguing that Colorado River was wrongly decided and should be revisited). 251 San Carlos Apache, 463 U.S. at 566 n.17. A tribe’s sovereign immunity, however, has been held expressly waived through the purchase of lands subject to previously adjudicated water rights, especially where the tribe benefited from and abided by the decree for more than five decades by paying assessment

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of their immunity nevertheless is minimal, since any judgment against the United States as trustee is binding on the tribes.252 Tribes concerned that the United States will not adequately represent their interests may waive their sovereign immunity and intervene in the state adjudication. The McCarran Amendment also has been interpreted to remove other possible barriers to state court jurisdiction. For example, most western states have enabling acts that prohibit or disclaim any state jurisdiction over “Indian lands.”253 The Supreme Court construes the McCarran Amendment to remove any limits that the enabling acts may have otherwise imposed on state jurisdiction to adjudicate Indian reserved water rights.254 In representing Indian tribes in water rights adjudications, the United States is bound by its trust obligation255 but retains considerable discretion to decide which claims to bring.256 The United States’ representation as a trustee of an Indian tribe in litigation that results in a decree binds the tribe to the decree and does not require the tribe’s acquiescence.257 Consequently, regardless of whether the government has the authority to extinguish tribal water rights, it does have the power to represent a tribe’s interest in litigation for purposes of quantifying reserved water rights.258 1. Nature of state adjudications to which McCarran Amendment applicable Most western states have statutory provisions for general stream adjudi­ cations.259 In Dugan v. Rank,260 the Supreme Court held that the waiver of sov­ereign immunity in subsection (a)(1) of the McCarran Amendment was conditioned upon the state’s instituting a general adjudication and did not allow

fees and allowing water commissioners to enter the lands to administer the decree. S. Fork Band of Te-Moak Tribe v. Sixth Jud. Dist. Ct., 7 P.3d 455, 458 (Nev. 2000); see In re Humboldt River Stream and Sys., 59 P.3d 1226 (Nev. 2002) (state district court had authority to require tribe to post bond to ensure compliance with decree). Id.

252

See, e.g., Act of Feb. 22, 1889, 25 Stat. 676, 677 (admitting Montana, North Dakota, South Dakota, and Washington to the Union). 253

San Carlos Apache, 463 U.S. at 564.

254

See, e.g., Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29, 33 (1994) (citing Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417, 426 (1991)), aff’d, 64 F.3d 677 (Fed. Cir. 1995). 255

256 Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995); see generally Joseph R. Membrino, Indian Reserved Water Rights, Federalism and the Trust Responsibility, 27 Land & Water L. Rev. 1, 16B23 (1992); Liu, supra note 193. 257 In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. and Source, 127 P.3d 882, 895–96 (Ariz. 2006) (Gila River VI).

Id. at 897.

258

Tarlock, supra note 3, at § 7.04.

259

372 U.S. 609 (1963).

260

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joinder of the United States in water quantification suits of lesser scope.261 In later cases, the Court refined this position and allowed jurisdiction over the United States in a supplemental adjudication, even though the United States had not been a party to the prior adjudication.262 The Court has also upheld jurisdiction when the state court adjudicated water rights on an ongoing basis.263 The federal government has argued that a general adjudication must meet a rigid “comprehensiveness” test in order to invoke the waiver of the McCarran Amendment,264 which to its thinking includes all water, surface and ground, that is hydrologically connected, no matter how slight the connection.265 The Idaho Supreme Court adopted such reasoning when it held that all of the tributaries to the Snake River were required to be included in that state’s general adjudication in order to involve the McCarran Amendment waiver.266 Other courts have been less demanding. The Ari­zona Supreme Court held that nontributary (or “percolating”) groundwater not appropriable under state law was not required to be included in the adjudication as a condition of the McCarran Amendment waiver.267 The Ninth Circuit Court of Appeals likewise rejected the United States’ argument that Oregon’s adjudication procedures were not compre­hensive because they excluded groundwater, noting that it was unlikely Con­gress intended to require inclusion of groundwater because at the time the McCarran Amendment was passed, the relationship between ground and surface waters was poorly understood.268 In the same decision, the court held that Oregon could exclude water rights recognized by existing adminis­trative permits without running afoul of the McCarran Amendment.269

261 The Court defined a general adjudication as involving “all of the rights of various owners on a given stream.” Id. at 618 (quoting S. Rep. No. 755, 82d Cong., 1st Sess. (1951)).

United States v. Dist. Ct. for Eagle County, 401 U.S. 520, 525 (1971).

262

United States v. Dist. Ct. for Water Div. No. 5, 401 U.S. 527, 529 (1971).

263

In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. and Source, 857 P.2d 1236, 1247 (Ariz. 1993) (Gila II); see also Thomas H. Pacheco, How Big Is Big? The Scope of Water Rights Suits Under the McCarran Amendment, 15 Ecology L.Q. 627 (1988). 264

Gila II, 857 P.2d at 1247.

265

See In re General Adjudication of Rights to Use Water from Snake River Basin Water Sys., 764 P.2d 78, 86 (Idaho 1988); see also Elephant Butte Irr. Dist. v. Regents, 849 P.2d 372, 378 (N.M. Ct. App. 1993) (general rule under McCarran Amendment is that all of mainstem and tributaries must be included in adjudication; “unique” situation there allowed adjudication of only lower portion of Rio Grande below Elephant Butte Dam, since dam was source of diversion for waters delivered to Texas under Rio Grande Compact, and waters below dam were essentially a separate water system). 266

267 Gila II, 857 P.2d at 1247–48 (McCarran Amendment was not intended to impose on the states a federal definition of “river system or other source”). The Arizona Supreme Court thereafter held that federal case law provides a separate basis on which to include groundwater in the general adjudication. Gila IV, 989 P.2d 739 (Ariz. 1999) (relying upon Cappaert v. United States, 426 U.S 128 (1976), and Arizona I, 373 U.S. 546 (1963)).

United States v. Oregon, 44 F.3d 758, 769 (9th Cir. 1994).

268

Id. at 768.

269

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Similarly, the Arizona Supreme Court has held that a settlement agreement resolving the claims of one tribe in a general stream adjudication does not strip the adjudication proceedings of their comprehensive nature for the purposes of the McCarran Amendment.270 The court specifically found that interpreting the McCarran Amendment to mean that a settlement of one claim terminated the comprehensive nature of an adjudication would make it impossible for any settlement to occur and would conflict with the McCarran Amendment’s purpose of resolving rather than exacerbating water rights conflicts.271 The Ninth Circuit’s review of Oregon’s adjudication procedures also addressed a question that frequently arises in adjudications involving the United States: To what degree can the burden of adjudicating water rights be detailed to an administrative agency without violating the McCarran Amend­ment’s requirement that the adjudication constitute a “suit”? Oregon and many other states place the initial burden of conducting the adjudication on the state engineer or water resources agency. In Oregon, the Water Resources Department accepts claims and objections to claims, holds hearings on con­tested claims, and makes findings of fact determining the parties’ water rights.272 The result is an administrative order that is filed with the court. After a hearing, the court enters a judgment affirming or modifying the order as it considers proper.273 The United States challenged the Oregon procedures, asserting that they did not constitute a “suit” as required by the McCarran Amendment. The Ninth Circuit rejected the argument, reasoning that under the historical context of

270 In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. and Source, 173 P.3d 440, 446 (Ariz. 2007).

Id.

271

Id. at 764.

272

Id. Tribes have also challenged the adequacy of state general stream adjudications on grounds other than the McCarran Amendment. In Arizona, the legislature amended the statutes governing the State’s general adjudication process in the midst of the Gila River general stream adjudication. A number of tribes challenged the amendments on federal and state constitutional grounds. San Carlos Apache Tribe v. Superior Ct., 972 P.2d 179 (Ariz. 1999). The court upheld the procedural changes generally but did invalidate substantive changes and those that intruded on the judicial process. Additionally, it struck down a provision that potentially altered past settlements of tribal water right claims by providing that a contribution from an appropriator of surface water to such settlements did not diminish the appropriator’s decreed water right. Id. at 192. Later in the adjudication, the same tribes alleged that the presiding judge’s ex parte contacts with the Department of Water Resources were grounds for disqualification. San Carlos Apache Tribe v. Bolton, 977 P.2d 790, 793–94 (Ariz. 1999). The court held that since the adjudication statutes directed adjudication judges to seek technical assistance from the Department, the ex parte communications fell within the exception in the Canon of Judicial Conduct allowing ex parte communications where expressly authorized by law. Id. at 794. The court did note, however, that the judge must give notice of any substantive ex parte communications to all parties. Id. at 796; see generally Sean E. O’Day, San Carlos Apache Tribe v. Superior Court: Rejecting Legislative Favoritism in Water Right Allocations, 4 U. Denv. Water L. Rev. 29, 30 (2000) (arguing that “the San Carlos decision should signal to other western states that reserved rights are vested property rights deserving of the same protection as other state-granted property rights, and that the public trust doctrine should be enforced as a constitutional obligation, which state legislatures are not free to destroy or ignore”). 273

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the McCarran Amendment it was clear that “Congress had in mind not only traditional suits in equity but hybrid adjudications taking advantage of the expertise of nonjudicial officials.”274 The court thus held it was “not a material distinction for purposes of the McCarran Amendment” whether “the case is initiated in court and then referred to an agency for administrative proceedings, or is initiated through an administrative proce­dure before being reviewed by a court.”275 Its decision affirms that states have great flexibility to structure adjudication systems that meet their partic­ular needs, as long as those proceedings result in the ultimate judicial deter­mination of all claims.276 A question related to the need for comprehensive adjudications is whether a state court may resolve seasonal water supply disputes occurring in basins containing Indian reserved water rights prior to the entry of a final decree in a general adjudication. This is a particular problem, given the length of time required to complete general adjudications and the fact that disputes between individual appropriators invariably arise prior to the entry of a final decree. In most states the general adjudication procedures are not exclusive and do not prevent water rights holders or claimants from protecting their rights in a separate action.277 The court hearing the seasonal or distribution disputes is generally limited to entering interlocutory relief to control the rights of the parties until the final decree in the general adjudication is entered.278 Since

44 F.3d at 766; see also San Carlos Apache Tribe, 972 P.2d at 197–99.

274

44 F.3d at 767. The Ninth Circuit further has held that a federal district court lacked jurisdiction “to clarify the scope of the federal water rights involved and to assess the propriety of the water rights standards announced in a preliminary assessment issued in the Oregon Adjudication.” United States v. Braren, 338 F.3d 971, 972 (9th Cir. 2003). In the court’s view, the issues were not prudentially ripe because, given the preliminary nature of the challenged assessment, “further factual development is needed to establish what standard Oregon will actually apply to the federal water claims.” Id. at 975–76. It also found no hardship to the United States and the involved tribe because “[t]he distribution of water—the ultimate relief sought by all of the parties in this case—cannot occur until the Adjudication is completed, regardless of whether the federal courts weigh in more than we already have on the standard for measuring the federal water rights.” Id. at 976. The court accordingly directed the district court to stay its proceeding “pending completion of the Oregon Adjudication and related appellate review.” Id. It did not address the question whether the district court would have jurisdiction in light of the Rooker-Feldman doctrine to review rulings by the Oregon judiciary once the adjudication was concluded. See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); Dist. of Columbia Ct. of App. v. Feldman, 460 U.S. 462 (1983). 275

276 In a related issue, the Supreme Court has held that the McCarran Amendment does not waive immunity to filing fees, at least where such fees are a substitute for expenses that the state previously taxed as costs at the conclusion of the adjudication. United States v. Idaho ex rel. Dir., 508 U.S. 1, 8 (1993); see also Oregon, 44 F.3d at 770 (state conceded that its fees were prohibited by the decision in Idaho); United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245, 1255 (D. Nev. 2004) (citing Idaho, and holding that the Orr Ditch Decree lacks specific language waiving sovereign immunity for state fees and that no payment was required for transfer application made by the tribe). 277 2 Hutchins, supra note 195, at 463; but see In re Application for Beneficial Use Water Per­mits Nos. 66459–76L, 923 P.2d 1073 (Mont. 1996) (applicants for water right permits to use waters within the boundaries of an Indian reservation could not proceed until the tribe’s reserved water rights were quantified in an ongoing general adjudication, since they could not meet their statutory burden of prov­ing no injury to the tribe’s water rights); Confederated Salish and Kootenai Tribes v. Clinch, 992 P.2d 244 (Mont. 1999) (invalidating legislative attempt to address Montana Supreme Court’s 1996 decision).

See, e.g., Utah Code Ann. § 73-4-24; Mont. Code Ann. § 85-2-406.

278

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most of these supervision statutes are only operative when and if there has been a general adjudication commenced in a particular basin, a dispute arising in a basin where a general adjudication has not com­menced would generally require an adjudication of affected water rights. To the extent a determination of those rights affected reserved water rights, the McCarran Amendment would not be operative, and the action would be barred by sovereign immunity. On the other hand, it seems clear that in a basin included in a general adjudication, the temporary resolution of seasonal disputes by this statutory procedure is most properly viewed as ancillary to that adjudication and therefore is subject to the McCarran Amendment.279 2. Federal court abstention The McCarran Amendment does not provide state courts with exclu­sive jurisdiction to adjudicate federal reserved water rights. Federal courts may have original or federal question jurisdiction over such actions.280 Generally, federal courts have an “unflagging obligation” to exercise the jurisdiction given them.281 The Supreme Court, however, has identified sev­eral factors that may warrant federal court abstention to a pending state adjudication proceeding. The most important is the McCarran Amendment itself. Concurrent jurisdiction would offend the policy of uti­lizing comprehensive state adjudication systems and of avoiding piecemeal adjudication of water rights. Other factors include the relative progress of the state and federal suits, the convenience of the federal forum, the gen­eral judicial bias against piecemeal litigation, and whether the federal gov­ernment is participating in the state proceedings.282

279 See 43 U.S.C. § 666(a) (“[c]onsent is hereby given to join the United States as a defendant in any suit . . . (2) for the administration of such rights”); but see Confederated Salish and Kootenai Tribes v. Clinch, 158 P.3d 377, 383 (Mont. 2007) (ordinary Indian law preemption principles, not the waiver of sovereign immunity in the McCarran Amendment, control whether a state agency may regulate on-reservation water rights during the pendency of a general water adjudication). 280 Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 808–09 (1976); see also Gardner v. Stager, 892 F. Supp. 1301 (D. Nev. 1995). Two provisions in Title 28 of the United States Code are jurisdictionally relevant: 28 U.S.C. § 1345, which provides district courts with original jurisdiction over all civil suits brought by the United States, and 28 U.S.C. § 1362, which provides jurisdiction over civil suits brought by Indian tribes when the suit involves a federal question.

Colorado River, 424 U.S. at 817.

281

Id. at 820. The Supreme Court has rejected the argument that, in lieu of complete abstention, tribal water rights should be decided in federal court and then be incorporated into a comprehensive state decree. The Court characterized the proposed process as “duplicate and wasteful,” since the state adjudication could be delayed while waiting for the federal action to conclude, or litigants in the state adjudication may engage in “an unseemly and destructive race” to decide Indian claims before the federal court could. Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 567–69 (1983); see also White Mountain Apache Tribe v. Hodel, 784 F.2d 921, 924 (9th Cir. 1986) (tribe should assert its water rights claim by intervening in state adjudication rather than through parallel or collateral proceedings in federal district court). Incorporating the federal determination into the state court decree also would prove futile because parties to the state proceedings who were not parties to the federal proceeding could challenge the federal determinations. Mikel L. Moore and John B. Weldon, Jr., General Water-Rights Adjudication in Arizona: Yesterday, Today and Tomorrow, 27 Ariz. L. Rev. 709, 722 (1985). 282

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Abstention in deference to an ongoing state adjudication nevertheless is not auto­matic. State courts may stay their consideration of the issues raised in fed­eral court, or the federal suit may be so far along that it would be “wasteful” to dismiss it when the state adjudication is filed. Federal jurisdiction additionally may be retained if state water rights are not extensively involved in the fed­eral suit or if the state proceedings are somehow inadequate to resolve the federal claims.283 Finally, a federal suit brought by Indians on their own behalf that seeks only to adjudicate Indian rights may survive dismissal, if all other arguments for and against deference to state adjudication are closely matched.284 Several decisions by the Ninth Circuit Court of Appeals involving Colorado River abstention suggest that fed­eral courts will exercise substantial care to avoid, if at all possible, quantifying reserved water rights when there is an ongoing state court proceeding. First, in United States v. Adair,285 the United States brought suit in federal district court to determine the water rights within the former Klamath Indian Reservation. Several months later a state adjudication suit was filed, and the state moved to dismiss the federal suit. The Ninth Circuit upheld the district court’s decision to retain jurisdiction but did so based in part on the lower court’s pretrial order limiting the court’s exercise of juris­ diction to matters other than a quantification of the reserved right.286 Next, in Kittitas Reclamation District v. Sunnyside Valley Irrigation District,287 the court of appeals upheld a district court’s authority to order the release of reservoir water to protect Indian fishing rights despite a pending state adjudication. The trial court explicitly declined to address the tribe’s water rights claim, acting instead to enforce a 40-year-old consent decree that required cer­tain releases and under which the court retained jurisdiction to administer its provisions. Last, the Ninth Circuit’s decision in Joint Board of Control v. United States288 was inconclusive on the absten­tion issue. There, the lower court had enjoined the implementation of an interim operating plan for an Indian irrigation district because the BIA had not allowed non-Indian irrigators to participate in the formulation of the plan. Implementation of the interim plan would have

283 Colorado River, 424 U.S. at 820; but see generally Reed D. Benson, Can’t Get No Satisfaction: Securing Water for Federal and Tribal Lands in the West, 30 Envtl. L. Rep. 11,056 (2000) (asserting that abstention is not appropriate given that the pace of general stream adjudications results in “decades-long delays in recognition and satisfaction of reserved water rights”).

San Carlos Apache Tribe v. Arizona, 463 U.S. 545, 569 (1983).

284

723 F.2d 1394 (9th Cir. 1983).

285

The district court limited itself to deciding whether water rights had been reserved for hunting and fishing, whether such rights passed to subsequent holders of fee title lands within the former reservation, and the relative priorities among present owners of former reservation lands. Id. at 1399. 286

763 F.2d 1032 (9th Cir. 1985).

287

832 F.2d 1127 (9th Cir. 1987).

288

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adversely affected some of those irrigators by limiting diversions in order to protect on-reserva­tion fisheries. In issuing the injunction, the district court had made it clear that it was not basing the order on any actual adjudication or quantification of the tribal fisheries claim.289 The Ninth Circuit set aside the injunction because the district court had failed to accord greater weight to the tribe’s “colorable” fisheries claim.290 However, the Ninth Circuit panel left open the question of whether on remand the district court actually needed to deter­mine the quantity of the tribe’s fisheries claim in order to protect it and, con­sequently, whether abstention under Colorado River was warranted. In actions other than general adjudications, federal courts may be significantly more willing to retain jurisdiction. In Confederated Salish and Kootenai Tribes v. Simonich,291 the tribes filed an action in federal court challenging Mon­ tana’s jurisdiction to apply Montana law to regulate new and existing uses of water on the Flathead Indian Reservation. Immediately thereafter, the tribes filed an action in state court raising issues relating to the interpretation of state statutes.292 The federal court granted the tribes’ motion to stay the pro­ ceedings and granted a motion to reserve all federal issues for litigation after the conclusion of the state court litigation. The federal court denied the state’s motion to dismiss under the abstention doctrine of Younger v. Har­ris,293 which requires abstention when there are ongoing state proceedings that implicate important state interests and such proceedings present an adequate opportunity to raise federal constitutional challenges.294 The appel­late court upheld the district court’s action, reasoning that the retention of federal issues for future litigation “in light of the state court’s rulings” did not restrain the ongoing state proceedings.295 Federal courts are also unlikely to exercise abstention when addressing the operation of federal water facilities within basins subject to a general stream adjudication. In Klamath Water Users Protective Association v. Patterson,296 a group of irrigators brought suit against the Bureau of Reclamation, challenging certain water allocation decisions made by the Bureau relating to operation of a Bureau dam in the Klamath River Basin. The court held that the Bureau retained the right to “direct operation of the Dam to comply with Tribal water

289 Joint Bd. of Control v. United States, 646 F. Supp. 410, 416 (D. Mont. 1986), rev’d, 832 F.2d 1127 (9th Cir. 1987).

832 F.2d at 1131.

290

29 F.3d 1398 (9th Cir. 1994).

291

Id. at 1401.

292

401 U.S. 37 (1971).

293

29 F.3d at 1402.

294

Id. at 1405–06.

295

204 F.3d 1206 (9th Cir. 1999).

296

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requirements.”297 Previous federal court decisions had recognized the existence of tribal reserved water rights in the basin, but such rights were still awaiting quantification in a state general stream adjudication. Although not directly addressing the issue of abstention, the court was careful to note the existence of the general adjudication concerning tribal reserved water rights in the basin and cautioned that its decision related “only to questions involving the Bureau’s operation and management of the Project, and not to the relative rights of others not before the court to the use of the waters in the Basin.”298 3. Removal to federal court If a case involving reserved water rights is originally brought in state court, removal to a federal court is unlikely. The main obstacle is the impos­ sibility of getting all defendants to sign the petition for removal. Courts have rejected arguments that individual claimants in state adjudication suits are nominal parties and therefore do not have to sign the removal petition,299 and also have rejected attempts to realign all parties but the United States as plaintiffs based on their common interest in reducing the water rights of the federal government and the Indian tribes.300 Courts further have rejected arguments that the United States could remove the reserved rights issue as a separate and independent claim under 28 U.S.C. § 1441, reasoning there can be no separate and independent claims in a general adjudication, since “all claims must be evaluated among themselves.”301 C. The McCarran Amendment and State Administration of Water Rights The “first generation” of McCarran Amendment cases generally dealt with issues of adjudicatory jurisdiction. Because states have been largely successful in incorporating Indian reserved water rights into state general adjudications, a “second generation” of cases involving state administrative authority over quantified federal reserved water rights under the McCarran Amendment are now coming to the fore. These issues, like the earlier ones,

Id. at 1214.

297

Id. at 1214 n.3; see also DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (holding that the intra-interagency exception under the Freedom of Information Act did not apply to documents submitted by various tribes to the Department of the Interior in connection with development of a long-term operation plan for a Bureau of Reclamation Project, since the tribes were not acting as consultants to the Department but instead were urging the Department to take a position adverse to other claimants in a related water rights adjudication). 298

299 See United States v. Bluewater-Toltec Irr. Dist., 580 F. Supp. 1434, 1441 (D.N.M. 1984); South Dakota ex rel. Meierhenry v. Rippling Water Ranch, Inc., 531 F. Supp. 449, 455–56 (D.S.D. 1982); Nat’l Audubon Soc’y v. Dep’t of Water & Power, 496 F. Supp. 499 (E.D. Cal. 1980). 300 Bluewater-Toltec, 580 F. Supp. at 1441–42 (such alignment was considered irrational, since each claimant is also interested in reducing others’ rights).

Id.

301

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are of great significance to states in their efforts to administer comprehen­sive water law systems. Prior to discussing the major issues presented by section 666(a)(2), sev­eral preliminary matters must be addressed. The first is whether section 666(a)(2) applies to Indian reserved rights at all. Some may argue that the language “where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under state law, by pur­chase, by exchange, or otherwise” qualifies the “for the administration of such rights” language to the exclusion of Indian reserved water rights. Since the Supreme Court has already held that the phrase “or otherwise” includes reserved rights302 and that section 666(a)(1) applies to Indian reserved rights as well,303 this argument is not likely to succeed. Colorado River indicates the Court will read both clauses of the McCarran Amendment consistently,304 and a review of the legislative history of the amendment provides little basis for distinguishing between subsections (a)(1) and (a)(2). A related question focuses on the meaning of the term “administration.” This question has not yet been addressed by the Supreme Court, but the two lower courts that have discussed the issue have adopted a fairly nar­row definition of the meaning and scope of “administration” under section 666(a)(2). In United States v. Hennen,305 the court stated that “[t]o administer a decree is to execute it, to ensure its provisions, to resolve con­flicts as to its meanings, [and] to construe and interpret its language.”306 Similarly, the Wyoming Supreme Court in Big Horn I has suggested that “[t]he role of the state engineer is thus not to apply state law, but to enforce the reserved rights as decreed under principles of federal law.”307 The major issue raised by section 666(a)(2) relates to the circum­stances under which the waiver for the purpose of administrative jurisdic­tion becomes operative. The first case to address section 666(a)(2) was Hennen. There, on petition of the state engineer, a Nevada state court entered a decree in 1929 adjudicating all rights to the waters of Pahranget Lake and its tributaries. That order contained a clerical error omitting two paragraphs of the state engineer’s report. Subsequent to the 1929 decree, the United States acquired a ranch with

302 United States v. Dist. Ct. for Eagle County, 401 U.S. 520 (1971); United States v. Dist. Ct. for Water Div. No. 5, 401 U.S. 527 (1971).

Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 811 (1976).

303

Id. at 810–11.

304

300 F. Supp. 256 (D. Nev. 1968).

305

Id. at 263.

306

753 P.2d 76, 115 (Wyo. 1988), aff’d by equally divided court, 492 U.S. 406 (1989); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983); see also Cappaert v. United States, 426 U.S. 128, 145 (1976) (“federal water rights are not dependent upon state laws or state procedures”); see also Big Horn III, 835 P.2d 273, 282–83 (Wyo. 1992) (same). 307

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appurtenant water rights contained in the decree. Proceedings to correct the clerical error commenced in state court in 1964. The United States lodged no objection to those proceedings. In 1968, however, the United States sued to enjoin the state engineer from enforcing the provisions of the included paragraphs on the basis of sovereign immunity. All parties agreed that the 1929 decree constituted an adequate “adjudication” under section 666(a)(1), but the federal government argued the supplemental proceedings did not fall under the provisions of section 666(a)(2). The court disagreed, relying on the legislative history of the McCarran Amendment, and held that, [o]nce a legal proceeding within the purview of section 666(a)(1), determining the relative rights of claimants to the waters of a stream system or other source, has been had and a decree adjudicating such rights entered, Congress has given its consent to any suit properly commenced for the administration of such rights under section 666(a)(2).308

On that basis, the district court upheld the power of the Nevada state engineer to amend the 1929 decree and to enforce the terms of the amended decree. In South Delta Water Agency v. United States,309 a California municipal corporation sued the United States Bureau of Reclamation to enjoin it from violating a provision of the state water resource code. The Bureau contended, inter alia, that the district court did not have jurisdiction over the issue because the McCarran Amendment precluded the particular relief requested by the plaintiff.310 As to that issue, the court stated: Logically, a court cannot adjudicate the administration of water rights until it determines what those rights are. If plaintiffs’ claim were reviewable merely because it relates to the administration of water rights, without plaintiffs first proving the validity of that claim, then the require­ment of a general stream adjudication . . . would be superfluous.311

On that basis the court held that the McCarran Amendment was to be applied in seriatim: “Congress intended a waiver of immunity under subsection (2) only after a general stream determination under subsection (1) has been made.”312 When a state court action to enforce a prior decree is found to fall within the coverage of section 666(a)(2), the issue then becomes whether the state

300 F. Supp. at 263.

308

767 F.2d 531 (9th Cir. 1985).

309 310 311

Id. at 541.

Id.

Id. (citing Hennen, 300 F. Supp. at 263); see also Holly v. Totus, 655 F. Supp. 548 (E.D. Wash. 1983), rev’d in part per mem., 749 F.2d 37 (9th Cir. 1984); cf. Confederated Salish and Kootenai Tribes v. Clinch, 158 P.3d 377, 381 n.3 (Mont. 2007) (because “[f]or McCarran purposes, administration of water rights can happen only after their adjudication,” the Amendment did not govern determination of whether pre-decree regulation by state agency of on-reservation water rights was preempted). 312

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court has exclusive jurisdiction or the action is subject to removal to the federal court. The Ninth Circuit Court of Appeals has held that the doctrine of prior exclusive jurisdiction is not altered by the terms of the McCarran Amendment and that the first court to take jurisdiction over a river system for adjudication purposes retains exclusive jurisdiction over the administration of that river system.313 The controversy arose when Nevada brought suit against a tribe to enforce provisions of the Humboldt Decree in state court. The tribe and the United States sought removal to federal court, which was initially granted. Upon reconsideration, however, the district court abstained from exercising what it held to be its concurrent jurisdiction and remanded to state court.314 Although affirming the district court, the Ninth Circuit employed a substantially different analytical approach and made several significant holdings. First, the court concluded that the doctrine of prior exclusive jurisdiction could be applied to water rights.315 Second, the court held that contempt actions to enforce a decree are quasi in rem and that the doctrine of prior exclusive jurisdiction therefore applies to such actions.316 Third, the court deemed the McCarran Amendment as applying retroactively and thus as waiving the United States’ immunity from suit for the administration of water rights acquired before the law came into effect.317 Based on these conclusions the court found the state court, as the original decree court, to have exclusive jurisdiction over the contempt proceedings.318 The last question is whether the McCarran Amendment allows only judicial proceedings to administer reserved water rights, or whether state water resource agencies may also administer such rights. It is clear that under section 666(a)(2), state courts may, in an appropriate suit, administer Indian319 and federal320 reserved water rights recognized in a decree entered in a general adjudication. Other courts have indicated that decreed non-Indian reserved rights can be administered by state executive agencies.321 The only court to address the authority of a state executive agency to admin­ister Indian reserved water rights quantified under a general adjudication decree was the Wyoming

State Eng’r v. S. Fork Band of Te-Moak Tribe, 339 F.3d 804 (9th Cir. 2003).

313

State Eng’r v. S. Fork Band of Te-Moak Tribe, 114 F. Supp. 2d 1046 (D. Nev. 2000), aff’d on other grounds, 339 F.3d 804 (9th Cir. 2003). 314

339 F.3d at 810.

315

Id. at 811.

316

Id. at 813.

317

Id. at 814.

318

Big Horn I, 753 P.2d 76, 115 (Wyo. 1988), judgment aff’d by evenly divided court, 492 U.S. 406 (1989).

319

Fed. Youth Ctr. v. Dist. Ct., 575 P.2d 395, 399–400 (Colo. 1978).

320

Id. at 400; see also Barcellos & Wolfson, Inc. v. Westlands Water Dist., 491 F. Supp. 263, 266–67 (E.D. Cal. 1980); United States v. Bell, 724 P.2d 631, 644 (Colo. 1986). 321

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Supreme Court in Big Horn I.322 There, the court held that the Wyoming state engineer had the power to enter the Wind River Indian Reservation to “monitor” the tribe’s water use. However, the Wyoming court held that the state engineer had no direct enforcement authority with respect to the tribe’s water as he does with respect to state law appropria­tors,323 and thus could enforce the decree as against the tribe only by appli­cation to the appropriate court.324 D. Inherent Tribal Authority Over Water Rights and Resources 1. Regulatory authority based on tribal proprietary interests in water Tribal civil regulatory authority over water rights and resources will fall into two general areas. The first is based on the tribe’s proprietary interest in water. Outside of a post–McCarran Amendment adjudication situation, the regulation and use of a reserved water right by tribal members on the reser­ vation is a matter committed to tribal self-government.325 In addition, to the extent a nonmember enters into a consensual relationship with the tribe as to on-reservation use of tribal waters, tribal regulatory authority similarly would be present.326 The restrictions on this general principle come in three areas. First, it is limited to on-reservation uses; absent a specific exemption in a treaty or statute, tribes and tribal members are generally obligated to comply with state laws once they are outside the reservation.327 Second, the allocation of tribes’ reserved water to be used for irrigation purposes may by law be committed to the Secretary of the Interior.328 Third, significant complexity arises in reconciling exclusive tribal regulatory authority over tribal water rights given the interrelated nature of water resources; i.e., tribal regulatory decisions may affect the rights of nonmembers both on and off the reservation. Because of this interrelatedness, a state may have concurrent authority over the use of tribal water, the presence of which will be determined by reference to the

753 P.2d 76, 115 (Wyo. 1988), judgment aff’d by evenly divided court, 492 U.S. 406 (1989).

322

Wyo. Stat. Ann. § 41-3-503 (division superintendents, under supervision of state engineer, shall execute the laws relative to the distribution of water in accordance with the rights of priority of appropriation). 323

324 753 P.2d at 115; see also Big Horn III, 835 P.2d 273, 282–83 (Wyo. 1992) (further explanation of state engineer’s authority under Big Horn I).

See, e.g., Montana v. United States, 450 U.S. 544 (1981); United States v. Wheeler, 435 U.S. 313, 322

325

(1978). Montana, 450 U.S. at 565–66.

326

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–49 (1973) (“[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the state”); Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 398 (1968); Organized Vill. of Kake v. Egan, 369 U.S. 60, 74–75 (1962). 327

328 The General Allotment Act authorizes the Secretary of the Interior to distribute irrigation water on a “just and equal” basis. 25 U.S.C. § 381; accord Hackford v. Babbitt, 14 F.3d 1457 (10th Cir. 1994); Joint Bd. of Control v. United States, 832 F.2d 1127 (9th Cir. 1987); Holly v. Totus, 655 F. Supp. 557 (E.D. Wash. 1985), aff’d per mem., 812 F.2d 714 (9th Cir. 1987).

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respective interests of the state, the tribe, and the federal government.329 An important element in any such balancing will be the strong federal policy of deference to state water law systems, which may be deemed to limit tribal regulatory authority over reserved water rights.330 2. Tribal regulatory authority over appropriative water rights and unappropriated waters on reservation Many tribes have enacted water codes or have otherwise asserted juris­diction over all water resources within the reservation.331 Many of these codes purport to extend to the use of state law appropriative rights held and used by nonmembers on the reservation, as well as the allocation and use of unappropriated, or “excess,” water within reservation boundaries. The assertion by tribes of regulatory authority over unappropriated or “excess” water within reservations conflicts directly with the states’ claims of trust title and concomitant regulatory authority over all unappropriated waters within the particular state. The codes extending to nonmembers are generally based on the theory of retained inherent authority over all land and natural resources within the reservation and look to the “second exception” in Montana v. United States332 for support. The Supreme Court’s recent decisions, however, suggest that Montana’s second exception should be applied only when necessary to protect tribal self-government or to control internal relations.333 This rule sug­gests that

329 See White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983); Puyallup Tribe v. Dep’t of Game, 433 U.S. 165 (1977). 330 United States v. Orr Ditch Co., 914 F.2d 1302 (9th Cir. 1990); United States v. Alpine Land & Reservoir Co., 878 F.2d 1217 (9th Cir. 1989). 331 Many tribes subject to the provisions of the 1934 Indian Reorganization Act, 25 U.S.C. §§ 461–479, have constitutions that require submission of tribal ordinances or codes to the Secretary of the Interior for approval. In 1975, the Secretary imposed a moratorium on the approval of water codes in order to permit the Department to promulgate guidelines for approval. Proposed rules were published in 1977 and revised in 1981, but final rules have not yet been issued and the moratorium remains in place. See Indian Reservation Use of Water, 42 Fed. Reg. 14,885 (1977); Regulation of Reserved Waters on Indian Reservations, 46 Fed. Reg. 944 (1981). The moratorium has not prevented tribal regulation entirely. Several IRA tribes have ignored the moratorium and implemented their water codes without secretarial approval. Getches, supra note 68, at 528. Additionally, tribes whose constitutions do not require secretarial approval are unaffected by the moratorium. See Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985); but see Confederated Colville Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981). The United States also has made at least one exception to its moratorium and approved a tribal water code provided for in a water rights compact between Montana and the Assiniboine and Sioux Tribes of the Fort Peck Reservation. See generally Peter Capossela, Indian Reserved Water Rights in the Missouri River Basin, 6 Great Plains Nat. Resources J. 131, 150–51 (2002); Thomas W. Clayton, The Policy Choices Tribes Face When Deciding Whether to Enact a Water Code, 17 Am. Ind. L. Rev. 523 (1992); Williams, supra note 193, at 53. 332 450 U.S. 544 (1981). In dictum, the Court stated that “[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health and wel­fare of the tribe.” Id. at 567. 333 Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709, 2726–27 (2008); Nevada v. Hicks, 533 U.S. 353, 360 (2001); Strate v. A-1 Contractors, 520 U.S. 438, 457–58 (1997); South Dakota v. Bourland,

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unless tribal authority over nonmembers is necessary to preserve “the right of reservation Indians to make their own laws and be ruled by them,”334 such authority likely will not be found. Earlier Ninth Circuit decisions addressed the issue of administrative authority over unappropriated waters within Indian reservations. The first was Colville Confederated Tribes v. Walton.335 There, the court held that Washington did not have permitting authority over “excess”336 waters of the No Name Creek on the Colville Indian Reservation. Since the creek began and ended entirely within the reservation, and since state authority over that water would impair tribal fishery interests, Washington’s interests were insufficient to justify jurisdiction. The factual situation of Walton was somewhat unusual, and thus it is not likely to be of significance in the more common situation where a stream runs through or borders a reservation, such as presented in United States v. Anderson.337 Anderson was part of an action adjudicating the rights of water users to the waters of Chamokane Creek, which formed a portion of the eastern boundary of the Spokane Indian Reservation. After quantifying the Spokane Tribe’s reserved water right, it was apparent that “excess” waters remained in Chamokane Creek. The Ninth Circuit upheld Washington’s permitting authority with respect to excess waters on the reservation. The court, noting that there was “no consensual agreement between the non-Indian water users and the Tribe which would furnish the basis for implication of tribal regulatory authority,”338 and that tribal interests were otherwise protected by the quantification in the federal decree and oversight by a federal master, held that the state’s regulation of excess water on the reservation did not directly affect the political integrity, economic security, or health and welfare of the tribe.339 In Holly v. Confederated Tribes and Bands of Yakima Indian Nation,340 the court raised, but did not answer, another question that may be relevant in some circumstances to the determination of regulatory authority over “excess”

508 U.S. 679, 694–95 (1993); Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 430–31 (1989). The general standards governing the scope of inherent tribal authority and the preemption of state law in a civil regulatory context are discussed in Chapter 5. Williams v. Lee, 358 U.S. 217, 220 (1959).

334

647 F.2d 42 (9th Cir. 1981).

335

A careful examination of the opinions in Walton raises the question of whether there were “excess” waters in No Name Creek. The Ninth Circuit held that the waters of the creek not awarded by the district court were needed for tribal fisheries purposes, thereby precluding the state from exercising jurisdiction and a non-Indian from appropriating the same. The practical effect of this holding was to find that no “excess waters” existed. 336

736 F.2d 1358 (9th Cir. 1984).

337

Id. at 1365.

338

Id.

339

655 F. Supp. 557 (E.D. Wash. 1985), aff’d mem., 812 F.2d 714 (9th Cir. 1987).

340

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waters on a reservation. Applying the Anderson analysis, the court held the Yakima Tribe lacked jurisdiction to regulate non-Indian use of excess water on non-Indian-owned land within the reservation.341 The court declined, however, to rule on whether the state had such jurisdiction because the absence of the United States as a party precluded the required “particularized inquiry into the state, federal, and tribal interests at stake.”342

341 Id. at 559. In Holly the tribe’s rights to waters appurtenant to the reservation had not been adjudi­ cated, but the existence of excess waters was stipulated to by the parties. In a somewhat unusual situation the Wyoming Supreme Court in Big Horn III reversed, on state constitutional grounds, a lower court deci­ sion removing the state engineer from administrative authority over state-based water rights on the Wind River Indian Reservation and granting that authority to the tribal water resource agency. Big Horn III, 835 P.2d 273, 282 (Wyo1992). 342 665 F. Supp. at 599. The specific federal interest that concerned the court arose from 25 U.S.C. § 381, which requires the Secretary of the Interior to provide a “just and equal distribution” of irrigation waters, which the court suggested may preempt some state authority. It is likely, however, that most cases will turn on the examination of the policies embodied in the McCarran Amendment, which recognize the need for unitary water distribution systems based on state law. See also Holly v. Totus, 655 F. Supp. 548, 554–55 (E.D. Wash. 1983), rev’d in part per mem., 749 F.2d 37 (9th Cir. 1984).

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Chapter 9 Fish and Wildlife Regulation

Indian hunting and fishing issues arise in a wide variety of contexts. Individual tribal members take fish and wildlife inside and outside Indian reservation boundaries, often raising questions of whether state, tribal, and federal laws apply to their actions. Nonmembers also take fish and wildlife in a variety of locations, raising similar questions. Frequently, the several governments serve different constituencies with equally different interests—a fact that may lead to inconsistent policies concerning conservation and harvest management. Organizing the mix of constitutional, treaty, statutory, and common law considerations that attend resolution of fish and wildlife issues in an Indian law context can be approached in various ways. From a practitioner’s perspective, however, the key concerns typically are where the regulated activity takes place—i.e., whether in or outside of Indian country—and whether the activity is the subject of a federal statute or treaty. The analysis in this chapter is structured with those concerns principally in mind. It begins with an overview of core constitutional principles that inform much of what follows. I. CONSTITUTIONAL FRAMEWORK Under the constitutional framework of the United States, the federal government and the states exercise concurrent, but unequal, authority. States have general police powers, while the federal government has only those powers enumerated in the United States Constitution. Included within the states’ police powers is the authority to regulate human activity with respect to fish and wildlife within state borders, limited only by the federal and state constitutions. The United States may regulate such relationships where they

E.g., Printz v. United States, 521 U.S. 898, 918–20 (1997).



E.g., United States v. Lopez, 514 U.S. 549, 552 (1995).



E.g., Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 386 (1978); Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 287–88 (1977) (Rehnquist, J., concurring in part); Kleppe v. New Mexico, 426 U.S. 529, 545 (1976); Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 426 (1936); Lacoste v. Louisiana Dep’t of Conservation, 263 U.S. 545, 549 (1924); New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 39 (1908); Geer v. Connecticut, 161 

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fall under an enumerated power. Generally, state laws regulating hunting and fishing apply equally to all persons within state boundaries, including Indians. Federal law nonetheless may preempt state law on occasion. Preempting federal laws may include international and Indian treaties and legislation implementing them. The President has authority to execute treaties with the advice and consent of the Senate, and the Congress has the power to enact implementing legislation. Treaties and implementing legislation may include provisions regulating the way in which people relate to wild animals. Other preempting federal laws may include statutes governing land owned by the United States,10 such as lands held in trust for the benefit of Indians, and statutes regulating interstate and foreign commerce.11 Congress has power to regulate the taking of fish and wildlife within federal lands under the Property Clause,12 and in commerce under the Commerce Clauses.13 Congress possesses “plenary power” over Indian affairs, including fish- and wildlife-related matters.14

U.S. 519, 528–29, 534 (1896); see also Hughes v. Oklahoma, 441 U.S. 322, 338–39 (1979); Toomer v. Witsell, 334 U.S. 385, 393–94, 402 (1948); Sohappy v. Smith¸ 302 F. Supp. 899, 908 (D. Or. 1969). Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999).



Puget Sound Gillnetters Ass’n v. United States Dist. Ct., 573 F.2d 1123, 1130 (9th Cir. 1978), vacated on other grounds, 443 U.S. 658 (1979); United States v. Washington, 520 F.2d 676, 684 (9th Cir. 1975); see Oregon Dep’t of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774 (1985); Organized Vill. of Kake v. Egan, 369 U.S. 60, 75 (1962). 

 For a general discussion of preemption, see Julie Lurman and Sanford P. Rabinowitch, Preemption of State Wildlife Law in Alaska: Where, When, and Why, 24 Alaska L. Rev. 145 (2007).  Missouri v. Holland, 252 U.S. 416, 432–43 (1920) (Migratory Bird Treaty and implementing legislation); United States v. Washington, 520 F.2d 676, 684 (9th Cir. 1975) (Indian treaties).

U.S. Const. art. II, § 2, cl. 2 (treaty clause); id. art. I, § 8, cl. 18 (necessary and proper clause).



Missouri v. Holland, 252 U.S. 416, 432–35 (1920) (Migratory Bird Treaty was properly within United States’ treaty-making power, and Congress had power to implement it through the Migratory Bird Treaty Act); United States v. Winans, 198 U.S. 371, 384 (1905) (treaty provision securing to Yakama Indians “the right of taking fish at usual and accustomed places” was properly within United States’ treaty-making power). 

10 E.g., 16 U.S.C. §§ 170, 256b (prohibiting hunting in Glacier and Olympic National Parks); id. § 835d (hunting and fishing by Colville and Spokane Indians on a portion of the Grand Coulee Dam reservoir “shall be subject only to such reasonable regulations as the Secretary [of the Interior] may prescribe”). 11 Washington Game Dep’t v. FPC, 207 F.2d 391 (9th Cir. 1953) (Federal Power Act, enacted under Commerce Clause, preempted state’s laws protecting fish habitat). Congress stated in the Marine Mammal Protection Act (MMPA), enacted under the Commerce Clause, that state laws “related to the taking” of marine mammals are preempted. 16 U.S.C. § 1379(a). The extent to which that section preempts state laws that protect marine mammals is unclear. See State v. Arnariak, 941 P.2d 154, 157–58 (Alaska 1997) (MMPA did not preempt state law prohibiting discharge of firearms within state-owned walrus sanctuary). 12 U.S. Const. art. IV, § 3, cl. 2; see Kleppe v. New Mexico, 426 U.S. 529, 540–41 (1976); Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78, 87 (1918). 13 U.S. Const. art. I, § 8, cl. 3; see GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003); Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997); Bradford C. Mank, After Gonzales v. Raich: Is the Endangered Species Act Constitutional Under the Commerce Clause?, 78 U. Colo. L. Rev. 375 (2007). 14 E.g., United States v. Lara, 541 U.S. 193, 200 (2004); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); Morton v. Mancari, 417 U.S. 535, 551–52 (1974).

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Indian tribes also have some regulatory authority, though tribal governments are outside the constitutional framework of the United States.15 Indian tribes retain the inherent aboriginal powers they had before Euro-American settlement where not extinguished by federal law. These include a tribe’s inherent power to regulate the conduct of its members,16 including the manner in which tribal members harvest fish and game.17 Federal statutes and treaties may preserve certain tribal aboriginal powers, such as tribes’ power to regulate the use of resources within lands they own or that are held in trust for them by the United States.18 Congress also may delegate federal regulatory power to Indian tribes where the tribes already possess some independent regulatory authority preserved by statute or treaty.19 In either instance, federal law may preempt state law, either because state law conflicts with federal policies promoting tribal independence or because tribal regulations adopted in accordance with federal law conflict with state law or occupy the field of regulation.20 Tribal law standing alone does not preempt state law.21 In some cases, tribes and states may have overlapping authority to regulate the same activity.22 II. FISHING AND HUNTING WITHIN INDIAN COUNTRY When the United States government sets aside lands for Indians, it is presumed to act under a policy of promoting tribal independence from states.23

15 Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 782 (1991); see Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 34–37, 39–40 (1831) (Baldwin, J., concurring); “Indians Not Taxed”—Interpretation of Constitutional Provision, 57 Interior Dec. 195, 196–98 (1940). 16 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331 (1983); United States v. Wheeler, 435 U.S. 313 (1978). 17 United States v. Washington, 520 F.2d 676, 686 and n.4 (9th Cir. 1975); Settler v. Lameer, 507 F.2d 231, 236 (9th Cir. 1974); see Whitefoot v. United States, 293 F.2d 658 (Ct. Cl. 1961).

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 337–38 (1983).

18

Rice v. Rehner, 463 U.S. 713, 728–31 (1983); United States v. Mazurie, 419 U.S. 544, 557 (1975); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000); see Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc); Cassidy v. United States, 875 F. Supp. 1438, 1453–54 (E.D. Wash. 1994). 19

20 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 325, 344 (1983); compare Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (tribe possessed inherent authority to tax nonmember oil and gas lessee) with Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (state and tribe possessed concurrent jurisdiction to tax same lessee and transaction). 21 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 668 F. Supp. 1233, 1241 (W.D. Wis. 1987); see Montana v. Crow Tribe, 523 U.S. 696, 714–15 (1998); Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 158 (1980); United States v. Washington, 520 F.2d 676, 686 n.4 (9th Cir. 1975); Cree v. Waterbury, 873 F. Supp. 404, 416 (E.D. Wash. 1994), rev’d in part on other grounds, 78 F.3d 1400 (9th Cir. 1996). 22 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983); United States v. Montana, 604 F.2d 1162, 1171–72 (9th Cir. 1979), rev’d on other grounds, 450 U.S. 544 (1981); United States v. Washington, 520 F.2d 676, 686 and n.4 (9th Cir. 1975); see Confederated Tribes of Colville Indian Reserv. v. Washington, 591 F.2d 89 (9th Cir. 1979).

McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172–73 (1973).

23

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State authority is, therefore, more limited within Indian country than it is outside Indian country, and federal and tribal authority is more extensive.24 A. Fishing and Hunting by Tribal Members Congress and the Executive Branch are presumed to preserve traditional tribal hunting and fishing practices when they set aside lands for Indians.25 Some federal laws that create Indian reservations expressly provide the resident tribe with exclusive usufructuary rights.26 Others have been construed as implicitly providing the resident tribe with exclusive usufructuary rights.27 1. Tribal regulation Federal laws creating Indian reservations are presumed to preserve tribes’ inherent powers to regulate their members’ hunting and fishing within the tribe’s reservation, and to enforce such regulations.28 The Indian Civil Rights Act restricts the sentence that a tribe can impose to one year in prison or a fine of $5,000, or both.29 Tribal members who violate their own tribe’s regulations may also be federally prosecuted under the Lacey Act, which authorizes stiffer penalties than the Indian Civil Rights Act.30 The Lacey Act makes it a federal crime for “any person” to acquire fish or wildlife taken “in violation of any Indian tribal law,” defined as a regulation “enforceable by any Indian tribe . . . within Indian country.”31 One court has held that a nonmember Indian could be prosecuted under the Lacey Act though the tribe could not have prosecuted him.32 It is

24 “Indian country” is defined in 18 U.S.C. § 1151. See, e.g., Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520 (1998); United States v. John, 437 U.S. 634, 648–49 (1978). 25 See United States v. Dion, 476 U.S. 734, 738 (1986); Menominee Tribe v. United States, 391 U.S. 404, 405–06 (1968); Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78, 88–89 (1918); State v. Stritmatter, 688 P.2d 499, 502 (Wash. 1984). 26 E.g., Treaty with the Walla-Wallas, art. I, 12 Stat. 945, 946 (1859); Treaty with the Yakamas, art. III, § 2, 12 Stat. 951, 953 (1859); Treaty with the Nez Perces, art. III, § 2, 12 Stat. 957, 958 (1859); Treaty with the Flatheads, art. III, § 2, 12 Stat. 975, 976 (1859); see State v. McClure, 268 P.2d 629, 635 (Mont. 1954) (construing Flathead Treaty). 27 E.g., United States v. Washington, 384 F. Supp. 312, 332 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925); State v. Stritmatter, 688 P.2d 499, 502–03 (Wash. 1984); see Alaska Pac. Fisheries Co. v. United States, 248 U.S. 78 (1918).

See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983).

28

25 U.S.C. § 1307(7).

29

16 U.S.C. §§ 3371–3378; United States v. Sohappy, 770 F.2d 816, 819–20 (9th Cir. 1985); see United States v. Gardner, 244 F.3d 784, 788 (10th Cir. 2001) (because Lacey Act is not a “general law of the United States,” prosecutions under the Act do not fall within the scope of 18 U.S.C. § 1152, which would require proof of non-Indian status as essential element of jurisdiction). 30

16 U.S.C. §§ 3372(a)(1), 3371(c).

31

United States v. Big Eagle, 881 F.2d 539, 541 (8th Cir. 1989). Congress has since recognized tribes’ inherent power to exercise criminal jurisdiction over nonmember Indians. 25 U.S.C. § 1301(2). 32

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unlikely that Congress intended in the Lacey Act to create a federal mechanism for enforcing tribal fish and wildlife laws against non-Indians, however.33 2. State regulation Because federal laws creating Indian reservations are presumed to implement a policy of promoting tribal independence from states, they also are presumed to preempt state fish and wildlife laws as applied to tribes and tribal members within the tribe’s reservation, absent exceptional circumstances.34 Exceptional circumstances may exist where animals that tribal members take on the reservation are part of a population that migrates off the reservation and a particular state regulation of on-reservation activity by tribal members is necessary for the conservation of the population as a whole.35 The federal law securing on-reservation rights to the tribe does not preempt such state regulation because it “does not give the Indians a federal right to pursue the last living [fish] until it enters their nets.”36 If the United States chooses to regulate on-reservation tribal fishing or hunting, however, federal law may occupy the field and preempt state law even when the activity has significant off-reservation impact.37 In Public Law 280, Congress authorized states to assume jurisdiction over offenses committed by Indians within Indian country under certain circumstances.38 Public Law 280, by its express terms, does not extend state criminal jurisdiction to hunting and fishing crimes where such jurisdiction would deprive Indians of federal rights.39

33 See United States v. Sohappy, 770 F.2d 816, 820–22 (9th Cir. 1985); 16 U.S.C. § 3378(c)(3) (“[N]othing in this Act shall be construed as . . . enlarging or diminishing the authority of any State or Indian tribe to regulate the activities of persons within Indian reservations”). 34 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331–33 and n.15, 340 n.25 (1983); Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 814–15 (8th Cir. 1983); Arnett v. Five Gill Nets, 121 Cal. Rptr. 906, 911 (Ct. App. 1975); see Gobin v. Snohomish County, 304 F.3d 909 (9th Cir. 2002); Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665, 669 (10th Cir. 1980); State v. McConville, 139 P.2d 485 (Idaho 1943); Pioneer Packing Co. v. Winslow, 294 P. 557, 559 (Wash. 1930). 35 Puyallup Tribe v. Washington Game Dep’t, 433 U.S. 165, 172–77 (1977); Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 814–15 (8th Cir. 1983); United States v. Oregon, 657 F.2d 1009, 1016 (9th Cir. 1981); Mattz v. Superior Ct., 758 P.2d 606, 619–20 (Cal. 1988) (Kaufman, J., concurring); see Nevada v. Hicks, 533 U.S. 353, 362 (2001) (“[w]hen . . . state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land”). 36 Washington Game Dep’t v. Puyallup Tribe, 414 U.S. 44, 49 (1973); see id. at 50 (“the Indian fishery cannot take so many fish that the natural run would suffer progressive depletion”) (White, J., concurring); Puyallup Tribe v. Washington Game Dep’t, 433 U.S. 165, 177 (1977) (rejecting tribe’s challenge to decision allocating to treaty Indian fishery 45 percent of steelhead that “could be taken without diminishing the number in future years”).

See Mattz v. Superior Ct., 758 P.2d 606 (Cal. 1988); People v. McCovey, 685 P.2d 687, 694–96 (Cal.

37

1984). Pub. L. No. 83‑280, 67 Stat. 588 (1953).

38

Pub. L. 83‑280, § 2(b), 67 Stat. 588, 589 (1953) (codified as amended at 18 U.S.C. § 1162(b) (“[n]othing in this section . . . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fish39

Fish and Wildlife Regulation

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Allotment and sale of reservation lands to nonmembers extinguishes exclusive tribal fishing and hunting rights on the nonmember-owned lands unless Congress expressly reserves such rights.40 Tribal members do not have a right to fish or hunt on such lands without the landowner’s permission. States with Public Law 280 jurisdiction may prosecute tribal members for trespass under state law.41 Finally, state officers may conduct law enforcement activities against tribal members within Indian reservations with respect to fish and wildlife crimes committed outside the reservation.42 B. Fishing and Hunting by Nontribal Members 1. Tribal regulation Tribal authority to regulate the activities of nonmembers is very limited. The general rule is that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.43 Indian tribes may regulate the activities of nonmembers only if (1) Congress authorizes such regulation, (2) the regulation has a nexus with a consensual relationship between the nonmember and the tribe, or (3) the nonmember conduct threatens the political integrity, economic security, or health or welfare of the tribe.44 Even where a tribe may regulate nonmember activities, where the nonmember is a non-Indian, the tribe may use only civil mechanisms, not criminal or quasicriminal mechanisms such as forfeitures, to enforce its regulations.45 Where the nonmember is an Indian enrolled in another tribe, however, Congress

ing or the control, licensing, or regulation thereof”); see also Pub. L. No. 90‑285, § 401(b), 82 Stat. 73, 78–79 (1968) (codified at 25 U.S.C. § 1321(b)) (Public Law 280’s civil counterpart). 40 Blake v. Arnett, 663 F.2d 906, 909–11 (9th Cir. 1981); see South Dakota v. Bourland, 508 U.S. 679, 689 (1993); Montana v. United States, 450 U.S. 544, 559 n.9 (1981); Antoine v. Washington, 420 U.S. 194, 207 n.11 (1975).

State v. LaRose, 543 N.W.2d 246 (Minn. Ct. App. 1996).

41

Nevada v. Hicks, 533 U.S. 353, 362–64 (2001); but see State v. Cummings, 679 N.W.2d 484 (S.D. 2004) (declining to find fresh pursuit authority with respect to off-reservation traffic violation); State v. Cayenne, 158 P.3d 623 (Wash. Ct. App. 2007) (state court lacked jurisdiction to prohibit on-reservation conduct as part of sentence for off-reservation crime). 42

43 Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709, 2719–20 (2008); Nevada v. Hicks, 533 U.S. 353, 358–59 (2001); Montana v. United States, 450 U.S. 544, 565 (1981). 44 Id. at 565–66. Montana’s formulation, which was developed in response to an effort by a tribe to regulate non-Indian hunting and fishing within its reservation on nonmember fee land, has been adhered to repeatedly by the Supreme Court in various contexts. E.g., Plains Commerce, 128 S. Ct. at 2719–20 (tribal regulation of nonmember land sale); Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650–54 (2001) (imposition of tribal hotel occupancy tax on nonmembers); Hicks, 533 U.S. at 358–60 (tribal regulation of on-reservation state law enforcement–related activities); see also Lower Brule Sioux Tribe v. South Dakota, 104 F.3d 1017, 1023 (8th Cir. 1997) (tribal regulation of nonmember hunting and fishing). 45 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); Mescalero Apache Tribe v. New Mexico, 630 F.2d 724, 735–36 (10th Cir. 1980), aff’d, 462 U.S. 324 (1983); Miner Elec., Inc. v. Muscogee (Creek) Nation, 464 F. Supp. 2d 1130 (N.D. Okla. 2006), rev’d on other grounds, 505 F.3d 1007 (10th Cir. 2007); White Earth Band of Chippewa Indians v. Alexander, 518 F. Supp. 527, 535 (D. Minn. 1981), aff’d, 683 F.2d 1129 (8th Cir. 1982); see Quechan Tribe v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976).

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has recognized the “inherent power of Indian tribes . . . to exercise criminal jurisdiction over all Indians.”46 Whether that jurisdiction extends to persons who are not members of federally recognized tribes, but who may be “Indians” under some federal statutes, remains an open question.47 The ownership of land is an important factor in the analysis of tribal authority, though it does not control the outcome.48 Tribes generally have authority over the activities of nonmembers within lands that the United States holds in trust for the tribe or its members, or that are owned by the tribe or its members, and to which they control access. For example, in New Mexico v. Mescalero Apache Tribe, the Supreme Court accepted New Mexico’s concession that the tribe had authority to regulate nonmember fishing and hunting within the Mescalero Apache Reservation. The Court noted that the tribe owned all but 193.85 acres within a reservation of more than 460,000 acres.49 The rationale for tribal authority to regulate nonmember activity on trust lands and tribally owned lands is that tribes have inherent authority to exclude nonmembers from their land and the included right to set conditions upon their entry.50 Consistent with that rationale, the United States may prosecute nonmembers under 18 U.S.C. § 1165 for fishing or hunting on tribal lands without tribal permission.51 Section 1165 is viewed as a trespass statute, not an attempt by Congress to incorporate tribal fish and game regulation as federal law.52 Within reservation lands owned by nonmembers, “the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction.”53 For example, in Montana v. United States, the Court held that the Crow

25 U.S.C. § 1301(2); see United States v. Lara, 541 U.S. 193 (2004).

46

Means v. Navajo Nation, 432 F.3d 924, 934–35 (9th Cir. 2005); see In re Garvais, 402 F. Supp. 2d 1219 (E.D. Wash. 2004) (Spokane Tribe lacked criminal jurisdiction over person who had Indian blood but was not enrolled in any federally recognized tribe); Weston Meyring, “I’m an Indian Outlaw, Half Cherokee and Choctaw”: Criminal Jurisdiction and the Question of Indian Status, 67 Mont. L. Rev. 177 (2006). 47

48 Nevada v. Hicks, 533 U.S. 353, 360 (2001); see also Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709, 2720 (2008). 49 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 326 (1983); see also Montana v. United States, 450 U.S. 544, 557 (1981) (tribe could regulate nonmember hunting and fishing on land belonging to the tribe or held by the United States in trust for it).

South Dakota v. Bourland, 508 U.S. 679, 688 (1993); but see Confederated Salish and Kootenai Tribes v. Namen, 665 F.2d 951, 964 (9th Cir. 1982) (tribe could regulate non-Indian use of tribally owned lakebed because non-Indian conduct had the potential for significantly affecting tribe’s economy, welfare, and health). 50

51 See United States v. Murdock, 132 F.3d 534 (10th Cir. 1997) (nonmember Indian charged with violating 18 U.S.C. § 1165); Cassidy v. United States, 875 F. Supp. 1438 (E.D. Wash. 1994) (nonmember was not fishing “unlawfully” under 18 U.S.C. § 1165 because tribe lacked authority to require him to possess a tribal fishing license at the place where he was fishing).

United States v. Jackson, 600 F.2d 1283, 1287 (9th Cir. 1979).

52

Nevada v. Hicks, 533 U.S. 353, 360 (2001).

53

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Tribe could not regulate nonmember fishing and hunting on reservation land owned in fee by nonmembers of the tribe.54 2. State regulation States are presumed to have authority to regulate the activities of nonmembers within Indian reservations.55 Again, however, federal law may preempt state law. Such preemption may but need not be express.56 More often, it is not, and courts balance federal, tribal, and state interests, in light of the federal policy of promoting tribal self-determination, to determine whether the federal and tribal interests outweigh those of the state.57 Federal and tribal interests have been held to outweigh state interests when the United States holds nearly all of the reservation land in trust for the tribe and its members, the federal and tribal governments conduct a comprehensive resource management program within the reservation, the animals do not travel beyond the boundaries of the reservation, and the state conducts few or no resource management activities within the reservation.58 Conversely, state law may not be preempted where the state has historically invested in and managed reservation game and fish populations.59 States and tribes sometimes may have concurrent authority to regulate fishing and hunting within an Indian reservation.60 Given the uncertainties concerning state and tribal authority and possible jurisdictional overlaps, it may be in the best interests of both sovereigns to enter into cooperative agreements

54 Montana v. United States, 450 U.S. 544, 566–67 (1981); see South Dakota v. Bourland, 508 U.S. 679 (1993) (tribe lacked authority to regulate nonmember hunting and fishing on reservation lands the United States had acquired for reservoir project); Lower Brule Sioux Tribe v. South Dakota, 104 F.3d 1017 (8th Cir. 1997) (tribe lacked authority to regulate nonmember hunting and fishing on fee lands and lands the United States had acquired for reservoir project); Cassidy v. United States, 875 F. Supp. 1438 (E.D. Wash. 1994) (tribe could not regulate nonmember fishing on reservation lands the United States had acquired for reservoir project). 55 County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 257–58 (1992); United States v. Montana, 604 F.2d 1162, 1170–72 (9th Cir. 1979), rev’d on other grounds, 450 U.S. 544 (1981); State v. Shook, 67 P.3d 863, 867 (Mont. 2002); see Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32, 36 (1999); United States v. McBratney, 104 U.S. 621, 623–24 (1882); Lower Brule Sioux Tribe v. South Dakota, 104 F.3d 1017, 1024 (8th Cir. 1997); People v. McCovey, 685 P.2d 687, 698 (Cal. 1984); State v. Reber, 171 P.3d 406, 408 (Utah 2007) (state had jurisdiction to prosecute non-Indian defendant for victimless crime of taking wildlife on public land within Indian reservation).

See Warren Trading Post Co. v. Arizona State Tax Comm’n, 380 U.S. 685, 690 (1965).

56

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983); see White Mountain Apache Tribe v. Arizona Dep’t of Fish & Game, 649 F.2d 1274 (9th Cir. 1981); Confederated Salish & Kootenai Tribes v. Montana, 750 F. Supp. 446 (D. Mont. 1990). 57

58 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 326–29, 342 (1983); see also E. Band of Cherokee Indians v. North Carolina Wildlife Res. Comm’n, 588 F.2d 75, 78 (4th Cir. 1978) (federal law preempted state fishing license law applied to nonmembers fishing on reservation streams stocked by tribe and federal government).

White Earth Band of Chippewa Indians v. Alexander, 683 F.2d 1129, 1137–38 (8th Cir. 1982).

59

United States v. Montana, 604 F.2d 1162, 1170–72 (9th Cir. 1979), rev’d on other grounds, 450 U.S. 544 (1981); Confederated Tribes of Colville Indian Reserv. v. Washington, 591 F.2d 89 (9th Cir. 1979). 60

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concerning the management of fish and wildlife and the regulation of fishing and hunting within Indian reservations.61 III. FISHING AND HUNTING OUTSIDE INDIAN COUNTRY A. General Principles By virtue of their inherent police powers, states can regulate the taking of fish and game within their borders.62 Outside Indian country, nondiscriminatory state laws are presumed to apply to Indians absent express federal law to the contrary.63 Treaties between tribes and the United States that secure off-reservation fishing and hunting rights may be express federal law that preempts state law.64 A statute may also be express federal law.65 The Ninth Circuit has suggested that a prestatehood executive order creating an Indian reservation may secure off-reservation rights as well.66 The Executive Branch, however, can create such rights only if Congress expressly delegates the power to do so.67 In Oregon, special off-reservation rights have been established under congressionally authorized agreements among the United States, a tribe, and the state.68 Oregon may regulate the exercise of such rights in accordance with

61 See Minn. Stat. §§ 97A.151–165 (ratifying and implementing agreements with tribes); Wash. Rev. Code § 77.32.010(3) (implementing agreement with Colville tribes concerning fishing within a portion of Colville Reservation); Wis. Stat. § 29.2295 (implementing agreement with Lac du Flambeau Band of Lake Superior Chippewa); State v. Shook, 67 P.3d 863, 868–69 (Mont. 2002) (upholding regulation adopted pursuant to agreement between Montana and tribes of Flathead Reservation). 62 Lacoste v. Dep’t of Conservation, 263 U.S. 545, 552 (1924); Geer v. Connecticut, 161 U.S. 519 (1896); United States v. Washington, 520 F.2d 676, 684 (9th Cir. 1975). 63 Oregon Dep’t of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 765 n.16 (1985); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335 n.18 (1983); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–49 (1973); Organized Vill. of Kake v. Egan, 369 U.S. 60, 62, 75 (1962); United States v. Washington, 520 F.2d 676, 684 (9th Cir. 1975); People v. Patterson, 833 N.E.2d 223, 225–26 (N.Y. 2005); State v. Watters, 156 P.3d 145, 149–50 (Or. Ct. App. 2007); State v. Quigley, 324 P.2d 827, 829 (Wash. 1958); State v. Posenjak, 111 P.3d 1206, 1210 (Wash. Ct. App. 2005); see Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 815 (8th Cir. 1983) (“[i]f either Act disestablished the reservation boundaries, the application of state law on the land taken by that Act no longer would be preempted, and South Dakota would have jurisdiction to regulate hunting and fishing by tribal members on that land absent federal law preserving the Indians’ treaty hunting and fishing rights”). 64 United States v. Washington, 759 F.2d 1353, 1355 (9th Cir. 1985) (en banc) (“[t]he treaties bind the State of Washington under the Supremacy Clause”); United States v. Washington, 520 F.2d 676, 684 (9th Cir. 1976); Puget Sound Gillnetters Ass’n v. Moos, 603 P.2d 819, 825 (Wash. 1979). 65 Antoine v. Washington, 420 U.S. 194, 205 (1975); see 16 U.S.C. § 835d (Colville and Spokane tribal hunting and fishing rights in set-aside portion of Grand Coulee Dam reservoir “shall be subject only to such reasonable regulations as the Secretary [of the Interior] may prescribe”).

Confederated Tribes of the Chehalis Indian Reserv. v. Washington, 96 F.3d 334, 342–43 (9th Cir.

66

1996). See Hynes v. Grimes Packing Co., 337 U.S. 86, 103–05 (1949).

67

See State v. Berry, 753 P.2d 433 (Or. Ct. App. 1988) (Siletz); Or. Admin. Rules §§ 635‑041‑0510 (Siletz), -0600 (Grand Ronde). 68

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the terms of the agreements. In a few instances, state laws grant usufructuary rights to groups that are not federally recognized as Indian tribes.69 Indian tribes have authority to regulate their members’ exercise of federally ­­secured off-reservation fishing rights, and to impose criminal sanctions for a member’s violation of tribal regulations, as part of their retained inherent sovereign powers.70 Courts have not recognized such authority as extending to the activities of nonmembers.71 Federal statutes of general applicability apply to the exercise of federally ­secured, tribal off-reservation usufructuary rights where such application is nondiscriminatory and necessary to achieve the conservation purpose of the statute.72 B. Aboriginal Rights Before Euro-American settlement, Indian tribes occupied and used much of North America. Aboriginal title refers to the right to use and occupy aboriginal territory that belonged to the continent’s original inhabitants. A tribe held aboriginal title by continually and exclusively fishing, hunting, gathering, and otherwise occupying lands.73 Aboriginal title included a right to use the land for traditional subsistence activities.74 Aboriginal title exists at the pleasure of the United States and may be extinguished without payment of compensation.75 Extinguishment can occur

69 Wash. Rev. Code § 77.12.453 (Wanapum Indians); see Commonwealth v. Maxim, 708 N.E.2d 636 (Mass. 1999) (recognition of tribal shellfishing rights by Massachusetts). 70 Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974); see Reich v. Great Lakes Indian Fish & Wildlife Comm’n, 4 F.3d 490, 494 (7th Cir. 1993) (“[T]he exercise of usufructuary rights off the reservation is as important to the Indians as the exercise of their occupancy rights within the reservations and maybe more so, since only about a third of all Indians live on reservations. An effective system of property rights, we have long been reminded by skeptics about laissez-faire, depends upon regulations establishing and enforcing those rights”); State v. Moses, 15 P.3d 1058, 1061 (Wash. Ct. App. 2001) (assuming that tribe had authority to prosecute member for violating off-reservation hunting laws on “open and unclaimed lands” within tribe’s aboriginal hunting grounds), aff’d on other grounds, 37 P.3d 1216 (Wash. 2002). 71 See United States v. Washington, 384 F. Supp. 312, 410 (W.D. Wash. 1974) (tribe enforcing off-reservation fishing regulations “has authority only over its own members”), aff’d on other grounds, 520 F.2d 676 (9th Cir. 1975). 72 Anderson v. Evans, 371 F.3d 475, 497–501 (9th Cir. 2004) (Marine Mammal Protection Act applied to Makah Tribe’s exercise of off-reservation treaty whaling rights). The Anderson court, however, “express[ed] no opinion as to whether and, if so, the extent to which our decision has relevance to assessment of state conservation regulation that touches on treaty rights.” Id. at 497 n.21. The potential distinction between the “conservation” standard adopted with respect to federal legislation and the “conservation necessity” standard employed with respect to state regulation lies in the fact that “the states do not have the power held by Congress to regulate affairs with Indian nations.” Id.; see infra part III.C.3.d (discussing conservation necessity principles).

United States v. Santa Fe Pac. R.R., 314 U.S. 341, 345 (1941).

73

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 352 (7th Cir. 1983); State v. Coffee, 556 P.2d 1185, 1188 (Idaho 1976) (“hunting and fishing rights are part and parcel with aboriginal title”). 74

75 Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955); see Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1974) (“Indian title, recognized to be only a right of occupancy, was extinguishable by the United States”).

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“by treaty, by the sword, by purchase, by the exercise of complete domination adverse to the right of occupancy, or otherwise.”76 For example, in the Alaska Native Claims Settlement Act,77 Congress expressly extinguished Alaska Natives’ aboriginal rights in the uplands and territorial sea of Alaska,78 but did not expressly extinguish aboriginal rights in the continental shelf bordering Alaska.79 Whether Alaska Natives retain some aboriginal subsistence rights in the continental shelf remains an open question.80 Even without action by the United States, a tribe has no aboriginal title after it abandons possession of its tribal territory.81 Extinguishment of aboriginal title extinguishes all aboriginal rights, except those that are expressly reserved from extinguishment by federal law.82 Language in treaties and other documents reciting that a tribe cedes all right, title, and interest in lands creates a strong presumption that any tribal right to engage in usufructuary activities free of state regulation has been extinguished.83 There can be no separate existence of aboriginal fishing or hunting rights without a treaty or other federal law to preserve them from general

United States v. Santa Fe Pac. R.R., 314 U.S. 341, 347 (1941).

76

Pub. L. No. 92‑203, 85 Stat. 688 (1971) (codified as amended at 43 U.S.C. §§ 1601–1629e). Congress later addressed subsistence needs of rural Alaskans, including the state’s Native population, in the Alaska National Interest Lands Conservation Act, Pub. L. No. 96‑487, 94 Stat. 2371 (1980) (codified as amended at 16 U.S.C. §§ 3101–3233), by providing priority status for subsistence activities on most federal public lands and waters. 77

43 U.S.C. § 1603(b).

78

People v. Hodel, 869 F.2d 1273, 1279–80 (9th Cir. 1989).

79

Native Vill. of Eyak v. Trawler Diane Marie, Inc., 154 F.3d 1090, 1095–97 (9th Cir. 1998) (Alaska Native claim of sovereign rights in continental shelf is repugnant to federal paramountcy doctrine, but limited assertions of aboriginal subsistence rights might not be); Eyak Native Vill. v. Daley, 375 F.3d 1218 (9th Cir. 2004) (en banc) (vacating district court judgment and remanding with instructions to decide “what aboriginal rights to fish beyond the three-mile limit, if any, the plaintiffs have”); see generally David J. Bloch, Colonizing the Last Frontier, 29 Am. Indian L. Rev. 1 (2004–2005) (discussing the Eyak litigation and the relationship between aboriginal title and the federal paramountcy doctrine with respect to the ownership of offshore fishing grounds, and arguing that the Ninth Circuit erred by applying the latter doctrine to find aboriginal title extinguished); Andrew P. Richards, Note, Aboriginal Title or the Paramountcy Doctrine? Johnson v. McIntosh Flounders in Federal Waters off Alaska in Native Village of Eyak v. Trawler Diane Marie, Inc., 78 Wash. L. Rev. 939, 965 (2003) (arguing that the Ninth Circuit’s 1998 Eyak decision erred in construing paramountcy doctrine to extinguish aboriginal fishing rights). 80

Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835).

81

E.g., W. Shoshone Nat’l Council v. Molini, 951 F.2d 200, 202–03 (9th Cir. 1991) (“unqualified transfer of title includes a transfer of hunting and fishing rights”); United States v. Dann, 873 F.2d 1189, 1194 (9th Cir. 1989) (aboriginal grazing rights did not survive extinguishment of aboriginal title); United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir. 1976) (aboriginal tree-harvesting rights do not survive extinguishment of aboriginal title); see also Red Lake Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980) (per curiam); In re Wilson, 634 P.2d 363, 368 (Cal. 1981). 82

83 Oregon Dep’t of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 766–68 (1985); see Solem v. Bartlett, 465 U.S. 463, 470–71 (1984) (reservation diminishment); Ottawa Tribe v. Ohio Dep’t of Natural Resources, 541 F. Supp. 2d 971 (N.D. Ohio 2008) (treaty provision that “privileges of every description” under prior treaty would “forever cease” terminated fishing rights); State v. Hero, 282 N.W.2d 70, 71 (S.D. 1979) (reservation diminishment); but see Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 198–202 (1999) (cession language extinguished land claims but not usufructuary rights).

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extinguishment of aboriginal title.84 Moreover, laches can defeat a claim that a treaty preserves aboriginal usufructuary rights.85 C. Federally Secured Off-Reservation Indian Fishing and Hunting Rights Language in treaties and other federal laws securing off-reservation fishing and hunting rights has been construed as preserving aboriginal rights that Indians traditionally exercised before the treaties were executed. They have been characterized as being similar to a profit à prendre, an easement to enter the land of another to take fish or game.86 Treaty fishing and hunting clauses are “not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.”87 From that principle flow many of the rules courts have formulated. 1. The holder of the right Treaties between the United States and Indian tribes are contracts between sovereigns.88 Off-reservation treaty rights are, therefore, tribal entitlements, not personal property.89 The rights are vested in the tribal groups that those signing the treaty represented, not in individual persons of Indian ancestry.90 An ethnic Indian who is not a member of a tribe with reserved off-reservation fishing and hunting rights is in the same position with respect to state fish and wildlife laws as any other citizen of the state.91 Nonmembers may take fish from public waters only to the extent state law allows it since their “interest is . . .

84 Confederated Tribes of Chehalis Indian Reserv. v. Washington, 96 F.3d 334, 341 (9th Cir. 1996); W. Shoshone Nat’l Council v. Molini, 951 F.2d 200, 202–03 (9th Cir. 1991); see Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176, 176 n.12 (9th Cir. 1981).

Ottawa Tribe v. Ohio Dep’t of Natural Resources, 541 F. Supp. 2d 971 (N.D. Ohio 2008).

85

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 352 (7th Cir. 1982); United States v. Washington, 898 F. Supp. 1453, 1458 (W.D. Wash. 1995); see Restatement (Third) of Property (Servitudes) § 1.2(2) (2000). 86

87 United States v. Winans, 198 U.S. 371, 381 (1905); see Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675, 678 (1979); but see United States v. Oregon, 470 F.3d 809, 816 (9th Cir. 2006) (suggesting the possibility that a congressionally ratified agreement between a tribe and the United States could grant “new” off-reservation fishing rights to a nonparty Indian band). 88 Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675, 679 (1979); Blackfeather v. United States, 190 U.S. 368, 377 (1903).

Whitefoot v. United States, 293 F.2d 658, 663 (Ct. Cl. 1961).

89

Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 679 (1979); United States v. Oregon, 29 F.3d 481, 487, amended, 43 F.3d 1284 (9th Cir. 1994); United States v. Washington, 641 F.2d 1368, 1372–73 (9th Cir. 1981); State v. Posenjak, 111 P.3d 1206, 1211 (Wash. Ct. App. 2005); see Confederated Tribes of Chehalis Indian Reserv. v. Washington, 96 F.3d 334, 340–41 (9th Cir. 1996); United States v. Suquamish Indian Tribe, 901 F.2d 772, 776 (9th Cir. 1990). 90

91 Puget Sound Gillnetters Ass’n v. United States Dist. Ct., 573 F.2d 1123, 1130 (9th Cir. 1978), vacated on other grounds, 443 U.S. 658 (1979); State v. Shabaiash, 485 N.W.2d 24, 726 (Minn. App. 1992); Whiterock v. State, 918 P.2d 1309, 1313 (Nev. 1996).

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derivative of the state’s interest” in regulating the species for “the people of the state as a whole.”92 To show that it is entitled to exercise treaty rights, a tribe claiming them must demonstrate that it has maintained an organized tribal structure and political and cultural cohesion with a treaty signatory band.93 Merely having individual members who may be descended from treaty signatory bands is not enough.94 Though vested in the tribe, treaty rights are exercised by its individual members.95 Tribes have authority to regulate their members’ exercise of the treaty rights.96 For example, tribes may allocate resources and fishing and hunting privileges among tribes and among members within a tribe.97 A tribe’s authority does not include the power to permit nonmembers to exercise treaty rights on its behalf; only tribal members may exercise treaty rights.98 Nonmember spouses and children may assist a tribal member in the exercise of a treaty right if tribal law allows it, however.99 Tribal regulations do not preempt state law, although the treaties can and do preempt state law in material respects. Multiple prosecutions against tribal members by separate tribal and state sovereigns typically do not create a double jeopardy.100 Tribes and states have overlapping regulatory authority

92 Puget Sound Gillnetters, 573 F.2d at 1132; Puget Sound Gillnetters Ass’n v. Moos, 603 P.2d 819, 824 (Wash. 1979); Purse Seine Vessel Owners Ass’n v. State, 966 P.2d 928, 935 (Wash. Ct. App. 1998); Atwood v. Shanks, 958 P.2d 332, 338 (Wash. Ct. App. 1998); see Bigelow v. Michigan Dep’t of Natural Res., 727 F. Supp. 346, 352 (E.D. Wis. 1978) (preferential treatment of treaty Indians did not violate non-Indians’ equal protection rights), vacated on other grounds, 970 F.2d 154 (6th Cir. 1992). 93 United States v. Washington, 394 F.3d 1152, 1158–61 (9th Cir. 2005); United States v. Oregon, 29 F.3d 481, 485, amended, 43 F.3d 1284 (9th Cir. 1994); United States v. Suquamish Indian Tribe, 901 F.2d 772, 776 (9th Cir. 1990); United States v. Washington, 641 F.2d 1368, 1372–74 (9th Cir. 1981); State v. Posenjak, 111 P.3d 1206, 1211 (Wash. Ct. App. 2005).

See United States v. Washington, 641 F.2d 1368, 1370, 1373–74 (9th Cir. 1981).

94

Mason v. Sams, 5 F.2d 255, 258 (W.D. Wash. 1925).

95

Settler v. Lameer, 507 F.2d 231, 238 (9th Cir. 1974).

96

See Whitefoot v. United States, 293 F.2d 658, 663 (Ct. Cl. 1961) (tribe may determine which of its members are entitled to use accustomed fishing places); United States v. Washington, 384 F. Supp 312, 417 (W.D. Wash. 1974) (intertribal allocation), aff’d, 520 F.2d 676 (9th Cir. 1975). 97

98 United States v. Washington, 384 F. Supp. 312, 412 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); Cree v. Waterbury, 873 F. Supp. 404, 428–29 (E.D. Wash. 1994), rev’d on other grounds, 78 F.3d 1400 (9th Cir. 1996); see State v. Price, 942 P.2d 377, 380–81 (Wash. App. 1997) (non-Indian spouse of tribal member could not exercise treaty right).

United States v. Washington, 384 F. Supp. 312, 412 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir.

99

1975). 100 See State v. Moses, 37 P.3d 1216 (Wash. 2002); cf. United States v. Wheeler, 435 U.S. 313, 323–28 (1978) (tribal court conviction did not interpose jeopardy for purposes of subsequent federal prosecution for same conduct); United States v. Lara, 541 U.S. 193, 197 (2004) (same). Some states, however, do not recognize the separate sovereign doctrine that allows an individual to be held criminally liable for the same transaction under, most commonly, state and federal law. See, e.g., Mont. const. art. 2, § 25 (“[n]o person shall be again put in jeopardy for the same offense previously tried in any jurisdiction”).

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as to treaty tribal member fishing,101 and states also have authority to regulate fishing by persons who are not members of treaty tribes. In that limited sense, states and tribes may be said to be “co‑managers” of the fisheries.102 Tribes may have “primary rights” vis-à-vis each other. A tribe with a “primary right” in a particular area may control another tribe’s exercise of usufructuary rights in that area.103 Intertribal primary rights do not alter the relationship between treaties and state law, though they may complicate relationships between tribal and state fishery managers. 2. Effect of changing circumstances on the exercise of the rights Though treaty fishing and hunting clauses preserve aboriginal rights, tribes have adapted to changing circumstances in their manner of exercising the rights. Indians exercising treaty rights may use modern fishing and hunting implements, such as steel hooks and modern rifles, that were not available when the treaties were executed.104 Treaty fisheries take fish produced in modern hatcheries105 and species introduced after the treaties were executed.106 Tribal members exercising treaty rights may use modern public moorage facilities.107 The Eighth Circuit has held, however, that a treaty fishing and hunting right did not secure a right to use modern means of transportation, such as motorized boats, to get to preferred fishing and hunting places.108

101 United States v. Washington, 520 F.2d 676, 686 n.4 (9th Cir. 1975); see Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204–05 (1999) (treaty rights and state management authority can coexist). “[T]ribal sovereignty, standing alone, does not preclude state jurisdiction over Indian conduct off-reservation.” Cree v. Waterbury, 873 F. Supp. 404, 416 (E.D. Wash. 1994), rev’d in part on other grounds, 78 F.3d 1400 (9th Cir. 1996); but see Lac Courte Oreilles Band of Indians v. Wisconsin, 668 F. Supp. 1233, 1241 (W.D. Wis. 1987) (“effective tribal self-regulation of a particular resource or activity precludes state regulation of that resource or activity as to the tribes”). 102 See Midwater Trawlers Coop. v. United States Dep’t of Commerce, 139 F. Supp. 2d 1136, 1145 (W.D. Wash. 2000) (tribes are “co-managers” of shared fishery resources to the extent they manage their members’ fishing on the fish allotted to tribal fisheries), rev’d in part on other grounds, 282 F.3d 710 (9th Cir. 2002). 103 United States v. Skokomish Indian Tribe, 764 F.2d 670, 671 (9th Cir. 1985); United States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981); United States v. Washington, 393 F. Supp. 2d 1089, 1093–95 (W.D. Wash. 2005). 104 Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 838 (D. Minn. 1994), aff’d, 124 F.3d 904 (8th Cir. 1997), aff’d, 526 U.S. 172 (1999); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1430 (W.D. Wis. 1987); Peterson v. Christensen, 455 F. Supp. 1095, 1099 (E.D. Wis. 1978); United States v. Washington, 384 F. Supp. 312, 402, 407 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); see Anderson v. Evans, 371 F.3d 475, 499 (9th Cir. 2004) (“Tribe is not limited to a particular method of [whale] hunting by the terms of the Treaty of Neah Bay”).

United States v. Washington, 759 F.2d 1353, 1358–60 (9th Cir. 1985) (en banc).

105

United States v. Washington, 157 F.3d 630, 640 (9th Cir. 1998).

106 107

Grand Traverse Band of Ottawa & Chippewa Indians v. Director, 141 F.3d 635 (6th Cir. 1998). United States v. Gotchnik, 222 F.3d 506, 510 (8th Cir. 2000).

108

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A treaty fishing or hunting right may include a right to sell fish or game if the Indians traditionally engaged in trade.109 The Oregon Supreme Court has held, however, that a treaty right of “taking” fish off reservation did not include a right to buy or sell fish taken by others.110 3. The geographic scope of off-reservation federally secured rights Treaties and other federal laws that secure off-reservation fishing and hunting rights may contain language limiting the geographic scope of such rights. The “Stevens/Palmer treaties” of the Pacific Northwest are particularly noteworthy in this respect because they limit fishing rights to “usual and accustomed” grounds, stations, or places, and they limit hunting, gathering, and grazing rights to “open and unclaimed lands.”111 Some treaties in the Rocky Mountain region secure a hunting right on “unoccupied lands of the United States.”112 Other treaties in the Great Lakes region secure usufructuary rights within the lands ceded in the tribe’s treaty.113 A few federal statutes secure fishing and hunting rights within lands that were formerly reserved for the tribe but later removed from reservation status.114 A tribal member fishing or hunting at a place that is not within the geographic limits of the tribe’s federally secured off-reservation rights is not exercising a federally secured right. The member is therefore subject to state laws regulating fishing or hunting.115 The possibility of such prosecution makes important a firm understanding of where off-reservation treaty rights apply.116

109 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1430 (W.D. Wis. 1987); United States v. Washington, 384 F. Supp. 312, 343 n.19 (W.D. Wash. 1974); State v. Jim, 725 P.2d 372, 374 (Or. Ct. App. 1986); cf. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 758 F. Supp. 1262 (W.D. Wis. 1991) (no treaty right to harvest timber commercially because selling timber was not a customary activity at treaty time). 110

Seufert Bros. Co. v. Hoptowit, 237 P.2d 949 (Or. 1951).

Treaty with the Nisquallys, 10 Stat. 1132 (1855); Treaty with the Dwámish Indians, 12 Stat. 927 (1859); Treaty with the S’Klallams, 12 Stat. 933 (1859); Treaty with the Makah Tribe, 12 Stat. 939 (1859); Treaty with the Walla-Wallas, 12 Stat. 945 (1859); Treaty with the Yakamas, 12 Stat. 951 (1859); Treaty with the Nez Percés, 12 Stat. 957 (1859); Treaty with the Tribes of Middle Oregon, 12 Stat. 963 (1859); Treaty with the Qui‑Nai‑Elts, 12 Stat. 971 (1859); Treaty with the Flatheads, 12 Stat. 975 (1859). 111

112 Treaty with the Eastern Band Shoshoni and Bannock, 15 Stat. 673 (1869); Treaty with the Crows, 15 Stat. 649 (1868). The Idaho Supreme Court has construed the hunting right of the Treaty of Fort Bridger as including a fishing right. State v. Tinno, 497 P.2d 1386, 1390 (Idaho 1972).

Treaty with the Chippewa, 10 Stat. 1109 (1855); Treaty with the Chippewa, 7 Stat. 503 (1836).

113

See Antoine v. Washington, 420 U.S. 194 (1975); Menominee Tribe v. United States, 391 U.S. 404 (1968); Kimball v. Callahan, 590 F.2d 768 (9th Cir. 1979). 114

115 United States v. Washington, 384 F. Supp. 312, 408 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); see State v. Watters, 156 P.3d 145 (Or. Ct. App. 2007); State v. Buchanan, 978 P.2d 1070, 1081 (Wash. 1999); State v. Petit, 558 P.2d 796, 797 (Wash. 1977). 116 E.g., State v. Stasso, 563 P.2d 562, 565 (Mont. 1977) (“Prima facie, all persons within this state are subject to its criminal laws and come within the jurisdiction of its courts. If an exception exists it must be shown by the defendant”).

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a. “Usual and accustomed” fishing places in the Stevens/Palmer treaties. Courts have construed the “usual and accustomed” language in the fishing clauses of the Stevens/Palmer treaties as limiting the right to places where a tribe traditionally fished when the treaties were executed, whether within or without the lands ceded in the tribe’s treaty.117 “Usual and accustomed grounds,” however, may include depths to which humans had no access until modern technology became available.118 A party seeking to establish that a place is a tribe’s “usual and accustomed place” must show the “tribe’s (or its predecessors’) regular and frequent treatytime use of that area for fishing purposes.”119 Evidence that individual tribal members may have used a place at treaty time by virtue of marriage into other tribes does not establish that place as a usual and accustomed place of the tribe itself.120 A place that was an “unfamiliar location,” or “used infrequently or at long intervals and extraordinary occasions,” or “where use was occasional or incidental,” is not a usual and accustomed place.121 The testimony of an expert anthropologist, based on documentary evidence, can establish that a place was a tribe’s treaty-time usual and accustomed fishing place. Tribal elder testimony may bolster such evidence but may be insufficient by itself.122 The testimony of a few tribal members that they fished at a place during the twentieth century is not enough to show that the place was a usual and accustomed fishing place of their tribe in the mid-1850s.123 In western Washington State, treaty tribes’ usual and accustomed grounds and stations have been identified through extensive litigation, as shown in the following table. The only major unresolved question is the seaward extent of the ocean usual and accustomed grounds of several treaty tribes.124

117 E.g., Seufert Bros. Co. v. United States, 249 U.S. 194 (1919); United States v. Winans, 198 U.S. 371 (1905); United States v. Washington, 730 F.2d 1314 (9th Cir. 1984); United States v. Washington, 384 F. Supp. 312, 332, 353 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); United States v. McGowan, 2 F. Supp. 426 (W.D. Wash. 1931); United States v. Taylor, 13 P. 333 (Wash. Terr. 1887), enf’d, 44 F. 2 (C.C.D. Wash. 1890).

United States v. Washington, 157 F.3d 630, 643 (9th Cir. 1998).

118

United States v. Washington, 626 F. Supp. 1405, 1531 (W.D. Wash. 1985).

119

United States v. Washington, 873 F. Supp. 1422, 1447 (W.D. Wash. 1994) (Yakama Nation failed to prove usual and accustomed shellfishing places in western Washington). 120

121 United States v. Washington, 384 F. Supp. 312, 332, 353, 356 (W.D. Wash. 1974) (findings of fact 14 and 23), aff’d, 520 F.2d 676 (9th Cir. 1975). 122 United States v. Washington, 459 F. Supp. 1020, 1059 (W.D. Wash. 1975); State v. Courville, 676 P.2d 1011, 1016 (Wash. Ct. App. 1983); see State v. James, 435 P.2d 521, 522–23 (Wash. 1967). 123 United States v. Washington, 764 F.2d 670, 674 (9th Cir. 1985) (tribal elder testimony about fishing activity in early 1900s could not support finding about treaty-time fishing places); United States v. Washington, 730 F.2d 1314, 1315, 1318 (9th Cir. 1984) (discounting elder testimony about fishing during the 1900s); see State v. Petit, 558 P.2d 796, 798–99 (Wash. 1977) (Utter, J., dissenting) (describing testimony that majority had held insufficient to show that a place was a usual and accustomed place).

See Midwater Trawlers Coop. v. Dep’t of Commerce, 282 F.3d 710, 716 (9th Cir. 2002).

124

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American Indian Law Deskbook, Fourth Edition Tribal Usual and Accustomed Grounds and Stations Adjudicated in United States v. Washington, Civil No. 70-9213 (W.D. Wash.)

Tribe

Findings Regarding Usual and Accustomed Grounds and Stations

Hoh

United States v. Washington, 384 F. Supp. 312, 359, 372 (W.D. Wash. 1974)

Jamestown S’Klallam United States v. Washington, 626 F. Supp. 1405, 1486 (W.D. Wash. 1985) Lower Elwha Klallam United States v. Washington, 459 F. Supp. 1020, 1049, 1067 (W.D. Wash. 1975–76); United States v. Washington, 626 F. Supp. 1405, 1418–19 (W.D. Wash. 1978), aff’d, 642 F.2d 1141 (9th Cir. 1981); id. at 1442–43 (1983) Lummi

United States v. Washington, 384 F. Supp. 312, 360 (W.D. Wash. 1974); Muckle­ shoot Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000); United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000)

Makah

United States v. Washington, 384 F. Supp. 312, 364 (W.D. Wash. 1974); United States v. Washington, 459 F. Supp. 1020, 1067 (W.D. Wash. 1976); United States v. Washington, 626 F. Supp. 1405, 1418 (W.D. Wash. 1978), aff’d, 642 F.2d 1141 (9th Cir. 1981); United States v. Washington, 626 F. Supp. 1405, 1466–68 (W.D. Wash. 1982), aff’d, 730 F.2d 1314 (9th Cir. 1984)

Muckleshoot

United States v. Washington, 384 F. Supp. 312, 367 (W.D. Wash. 1974); United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000)

Nisqually

United States v. Washington, 384 F. Supp. 312, 369 (W.D. Wash. 1974); United States v. Washington, 626 F. Supp. 1405, 1441 (W.D. Wash. 1981)

Nooksack

United States v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1975)

Port Gamble S’Klallam United States v. Washington, 626 F. Supp. 1405, 1442, 1470 (W.D. Wash. 1983) Puyallup

United States v. Washington, 384 F. Supp. 312, 371 (W.D. Wash. 1974); United States v. Washington, 626 F. Supp. 1405, 1441 (W.D. Wash. 1981)

Quileute

United States v. Washington, 384 F. Supp. 312, 372 (W.D. Wash. 1974); United States v. McGowan, 62 F.2d 955 (9th Cir.) (no treaty fishing places in Columbia River estuary), aff’d mem., 290 U.S. 592 (1933)

Quinault

United States v. Washington, 384 F. Supp. 312, 374–75 (W.D. Wash. 1974); United States v. McGowan, 62 F.2d 955 (9th Cir.) (no treaty fishing places in Columbia River estuary), aff’d mem., 290 U.S. 592 (1933)

Sauk-Suiattle

United States v. Washington, 384 F. Supp. 312, 376 (W.D. Wash. 1974)

Skokomish

United States v. Washington, 384 F. Supp. 312, 377 (W.D. Wash. 1974)

Squaxin Island

United States v. Washington, 384 F. Supp. 312, 378 (W.D. Wash. 1974); United States v. Washington, 626 F. Supp. 1405, 1441 (W.D. Wash. 1981)

Stillaguamish

United States v. Washington, 384 F. Supp. 312, 379 (W.D. Wash. 1974); United States v. Washington, 459 F. Supp. 1020, 1068 (W.D. Wash. 1976)

Suquamish

United States v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1975); United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990); United States v. Washington, 2007 WL 30869 (W.D. Wash. 2007)

Swinomish

United States v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1975); Muckleshoot Indian Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998)

Tulalip

United States v. Washington, 626 F. Supp. 1405, 1527–32 (W.D. Wash. 1985), aff’d, 841 F.2d 317 (9th Cir. 1988)

Upper Skagit

United States v. Washington, 384 F. Supp. 312, 379 (W.D. Wash. 1974); United States v. Washington, 837 F. Supp. 1422, 1449–50 (W.D. Wash. 1994)

Yakama

United States v. Washington, 384 F. Supp. 312, 380–81 (W.D. Wash. 1974); United States v. Washington, 873 F. Supp. 1422, 1447 (W.D. Wash. 1994)

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By contrast, little litigation has occurred regarding the locations of “usual and accustomed places” in the Columbia River basin.125 The federal government has set aside specific “in-lieu” sites and treaty fishing access sites along the Columbia River to substitute for traditional Indian fishing sites inundated by dams.126 Washington and Oregon recognize the mainstem Columbia River from just above Bonneville Dam upstream to the Snake River mouth as an area where mid-Columbia treaty tribes are entitled to exercise treaty fishing rights.127 The status of other locations remains unsettled. b. Treaty hunting rights on “open and unclaimed lands” and “unoccupied lands of the United States.” Although the Stevens/Palmer treaties securing a hunting right on “open and unclaimed lands” do not expressly limit the exercise of such rights to ceded lands or lands where a tribe traditionally hunted, the Washington Supreme Court has concluded that the treaties include such a limitation.128 Construing the “unoccupied lands of the United States” clause of the Treaty of Fort Bridger, the Idaho Supreme Court similarly suggested that the hunting right in that treaty is limited to lands traditionally used by the tribe.129 Land can change in status from “open and unclaimed” to closed and claimed, and perhaps vice versa.130 Public lands not put to a use inconsistent with hunting, such as national forest lands where active logging is not occurring, may be “open and unclaimed” or “unoccupied.”131 Public land used in a manner

125 In State v. James, 435 P.2d 521 (Wash. 1967), the court determined that the Columbia River between Bonneville Dam and the Bridge of the Gods is a usual and accustomed place of the Yakama Nation. Other litigation about particular sites along the Columbia River occurred before dams inundated them. United States v. Brookfield Fisheries, 24 F. Supp. 712 (D. Or. 1938); Seufert v. Olney, 193 F. 200 (E.D. Wash. 1911). 126 See Pub. L. No. 100‑581, § 401, 102 Stat. 2938, 2944 (1988); Sohappy v. Hodel, 911 F.2d 1312 (9th Cir. 1990); 25 C.F.R. pts. 247, 248. 127 See Or. Admin. Rules § 635‑041‑0005 (Indian fishing areas); Wash. Admin. Code § 220‑22‑010(6), (7), (8) (defining fishing areas); id. § 220‑32‑050(2)(a) (Indian commercial fishing areas); id. § 220‑32‑055 and Or. Admin. Rules § 635‑041‑0015 (Indian subsistence fishing areas). This area is sometimes called “Zone 6.” See id. § 635‑042‑0001. 128 State v. Buchanan, 978 P.2d 1070, 1079–80 (Wash. 1999); see Wash. Admin. Code § 232‑12‑253 (hunting enforcement policy regarding area ceded in Medicine Creek Treaty). 129 State v. Tinno, 497 P.2d 1386, 1391 (Idaho 1972); see People v. LeBlanc, 248 N.W.2d 199, 206–07 (Mich. 1976) (fishing right extended to area to which tribe had aboriginal title).

See United States v. Hicks, 587 F. Supp. 1162 (W.D. Wash. 1984).

130

Confederated Tribes of the Umatilla Indian Reserv. v. Maison, 262 F. Supp. 871, 873 (D. Or. 1966), aff’d, 382 F.2d 1013 (9th Cir. 1967); State v. Tinno, 497 P.2d 1386, 1391 (Idaho 1972); State v. Arthur, 261 P.2d 135, 141 (Idaho 1953); State v. Buchanan, 978 P.2d 1070, 1082 (Wash. 1999); but see Crow Tribe v. Repsis, 73 F.3d 982, 993 (10th Cir. 1995) (national forest was “occupied” and therefore not subject to treaty hunting right). 131

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inconsistent with hunting, such as a national park, however, may not be “open and unclaimed.”132 Private homesteads are not “open and unclaimed.”133 The status of privately owned commercial timber land remains unsettled. The Idaho Court of Appeals has held that such land, as a matter of law, is not “open and unclaimed.”134 The Oregon Court of Appeals has held that private commercial timber land that was gated, included cabins, was posted with signs, and had cattle guards, roads, and drift fences was not “open and unclaimed,” but the court did not decide whether different facts might dictate a different outcome.135 No appellate court has addressed the issue in Montana or Washington. County trial courts in Washington have issued conflicting decisions.136 c. Treaty-based right of access as easement and property right. The right of taking fish at usual and accustomed places in the Stevens/Palmer treaties preserves to the Indians an easement in land to get to and use traditional fishing places for taking fish and the associated activities mentioned in the treaties. The easement applies to traditionally used trails that now lie on private property, for settlers acquired the land subject to the Indians’ preexisting treaty rights.137 The easement may be conditioned to protect landowners.138

132 United States v. Hicks, 587 F. Supp. 1162, 1165–66 (W.D. Wash. 1984) (Olympic National Park); State v. Cutler, 708 P.2d 853 (Idaho 1985) (state elk ranch); see United States v. Peterson, 121 F. Supp. 2d 1309 (D. Mont. 2000) (congressional action creating national park and designating it as a wildlife sanctuary impliedly abrogated treaty hunting rights); see generally Curt Sholar, Note, Glacier National Park and the Blackfoot Nation’s Reserved Rights: Does a Valid Tribal Co-Management Authority Exist?, 29 Am. Indian L. Rev. 151, 165–67 (2004–2005) (discussing Peterson and prior cases that addressed the Blackfoot Tribe’s hunting rights within Glacier National Park). 133 State v. Coffee, 556 P.2d 1185, 1194 (Idaho 1976); State v. Arthur, 261 P.2d 135, 141 (Idaho 1953); State v. Stasso, 563 P.2d 562, 565 (Mont. 1977); State v. Chambers, 506 P.2d 311, 314–15 (Wash. 1973); see State v. Moses, 15 P.3d 1058, 1059, 1060 (Wash. Ct. App. 2001) (defendants who killed elk on private property posted with “No Trespassing” signs failed to show the land was “open and unclaimed”), aff’d on other grounds, 37 P.3d 1216 (Wash. 2002); cf. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 365 (7th Cir. 1983) (“exercise of these [treaty usufructuary] rights is limited to those portions of the ceded lands that are not privately owned”); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 740 F. Supp. 1400, 1420–21 (W.D. Wis. 1990) (same). 134 State v. Simpson, 54 P.3d 456 (Idaho Ct. App. 2002); cf. Sokaogon Chippewa Cmty. v. Exxon Corp., 805 F. Supp. 680, 704–06 (E.D. Wis. 1992) (land owned by large corporation not available for occupation by tribe), aff’d, 2 F.3d 219 (7th Cir. 1993).

State v. Watters, 156 P.3d 145, 156 (Or. Ct. App. 2007).

135

Compare State v. Sanders, Nos. PA CR 94‑2403/‑2044/-2405/-2597/-2598, Ct.’s Mem. Op. on “Open and Unclaimed Lands” Issue (Cowlitz Cnty. Wash. Dist. Ct. Dec. 7, 2001) (private tree farm whose gates were open was “open and unclaimed”), with State v. Peterson, No. 3562‑05 (Clallam Cnty. Wash. Dist. Ct. Dec. 11, 2006) (private tree farm whose gates were closed was not “open and unclaimed”); cf. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1432 (W.D. Wis. 1987) (“if the owners of privately owned lands have made provision for hunting, fishing, and gathering by the public generally . . . the Chippewa can exercise their usufructuary rights on those lands”). 136

137 United States v. Winans, 198 U.S. 371 (1905); United States v. Taylor, 13 P. 333 (Wash. Terr. 1887), enf’d, 44 F. 2 (C.C.D. Wash. 1890); see United States v. Washington, 157 F.3d 630, 646–47 (9th Cir. 1998) (shellfish on private tidelands). 138 United States v. Winans, 198 U.S. 371, 384 (1905); United States v. Washington, 157 F.3d 630, 654 (9th Cir. 1998).

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For example, before a tribe may exercise treaty shellfishing rights on a private beach, the tribe must pay for a survey to estimate the quantity of shellfish present and notify the property owner well in advance of any survey or harvest.139 The treaty right to hunt, gather, and graze on “open and unclaimed lands” in the Stevens/Palmer treaties, however, does not secure an easement across private lands to get to “open and unclaimed lands,” but one court of appeals concluded that tribes may acquire such an easement by prescription.140 The Sixth Circuit has held that a treaty right of access to fishing places secured an easement requiring municipalities to allow Indians to moor their commercial fishing vessels at public marinas.141 In contrast, the treaty right of access to fishing places does not include a right to set up a fish-buying business on private land.142 The treaty right of access to usual and accustomed fishing grounds and stations, finally, is a property right for which just compensation must be paid if taken.143 d. Preemption and conservation necessity. During the twentieth century, a great deal of litigation occurred over the question of whether and to what extent treaties securing off-reservation fishing rights preempt state fishing regulations as applied to treaty Indians. Most of the litigation occurred in the Pacific Northwest and involved the Stevens/Palmer treaties.144 The treaties themselves say nothing about states and regulation, a silence that provided advocates on both sides with arguments. Tribal advocates argued that the treaties occupied the field and left no room for state regulation.145 States argued that the treaties’ silence left them with full police powers to regulate fishing by

139 United States v. Washington, 898 F. Supp. 1453, 1472–73 (W.D. Wash. 1995), amended, 909 F. Supp. 787 (1995), aff’d, 157 F.3d 630 (9th Cir. 1998). 140 United States v. Vulles, 282 F. Supp. 829, 831–32 (D. Mont. 1968) (tribes had no treaty-based easement across private land to get to “open and unclaimed lands”), rev’d in part, 437 F.2d 177 (9th Cir. 1971) (tribes had prescriptive easement).

Grand Traverse Band of Ottawa & Chippewa Indians v. Director, 141 F.3d 635, 639–41 (6th Cir.

141

1998). Seufert Bros. Co. v. Hoptowit, 237 F.2d 949 (Or. 1951).

142

Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1510, 1516 (W.D. Wash. 1988); see Nw. Sea Farms v. United States Army Corps of Eng’rs, 931 F. Supp. 1515, 1521 (W.D. Wash. 1996). 143

144 See generally Fronda Woods, Who’s in Charge of Fishing?, 106 Or. Hist. Q. 412 (2005), available at http://www.historycooperative.org/journals/ohq/106.3/woods.html (last visited July 19, 2008). 145 See Makah Indian Tribe v. McCauly, 39 F. Supp. 75, 78 (W.D. Wash. 1941) (enjoining state fishing regulation because no “proof here that the Indians knew of or appreciated the present or possible future existence of any state sovereignty which might attempt to limit the fishing rights of either Indians or other citizens”), rev’d, 128 F.2d 867 (9th Cir. 1942); Dep’t of Game v. Puyallup Tribe, 422 P.2d 754, 764–71 (Wash. 1967) (Donworth, J., dissenting in part); State v. McCoy, 387 P.2d 942, 953–64 (Wash. 1963) (Donworth, J., dissenting); State v. Satiacum, 314 P.2d 400, 401–10 (Wash. 1957) (Donworth, J.); State v. Tulee, 109 P.2d 280, 287–91 (Wash. 1941) (Simpson, J., dissenting); State v. Towessnute, 154 P. 805, 809–10 (Wash. 1916) (Holcomb, J., dissenting); see generally Ralph W. Johnson, The States Versus Indian Off-Reservation Fishing: A United States Supreme Court Error, 47 Wash. L. Rev. 208, 213–15 (1972); U.S. Dep’t of the Interior, Federal Indian Law 511–12 (1958).

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treaty Indians.146 Ultimately, the Supreme Court held that the treaties preempt some state laws, but not all.147 States may regulate the exercise of off-reservation federally secured fishing and hunting rights where reasonable and necessary for the conservation of fish or game.148 State regulations that are discriminatory and not necessary for conservation conflict with the federal laws securing the rights, and are preempted and unenforceable by operation of the Supremacy Clause.149 Reversing customary conflict preemption analysis, the courts have assigned to the state the burden to show that its regulations are not preempted and may be enforced against Indians exercising federally secured rights.150 While the standard for determining the legal propriety of state conservation measures is more stringent than the federal constitutional standard concerning the scope of state police power,151 there is no clear way to tell whether a state regulation fails the “reasonable and necessary for conservation” test. “Conservation” may include “perpetuation of the species.”152 It “embraces procedures and practices designed to forestall the imminence of extinction.”153 It may include protection of ecosystems.154 “ ‘[R]easonable’ means that a specifically identified conservation measure is appropriate to its purpose; and ‘necessary’ means that such purpose in addition to being reasonable must be essential to conservation.”155 Where the tribe has adopted a regulation that is

146 See Tulee v. Washington, 315 U.S. 681, 683–84 (1942); New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916); State v. Meninock, 197 P. 641 (Wash. 1921) (en banc); State v. Towessnute, 154 P. 805 (Wash. 1916).

Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 399 (1968); Tulee v. Washington, 315 U.S. 681, 684

147

(1942). 148 E.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 205 (1999); Puyallup Tribe v. Dep’t of Game, 433 U.S. 165, 177 (1977); Antoine v. Washington, 420 U.S. 194, 207 (1975); Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 399 (1968). 149 Antoine v. Washington, 420 U.S. 194, 206 (1975) (“ratifying legislation must be construed to exempt the Indians’ preserved rights from like state regulation, . . . else Congress preserved nothing which the Indians would not have had without that legislation”); Dep’t of Game v. Puyallup Tribe, 414 U.S. 44 (1973) (regulation prohibiting use of traditional Indian fishing gear was discriminatory); see United States v. Washington, 520 F.2d 676, 684–86 (9th Cir. 1975). 150 Makah Indian Tribe v. Schoettler, 192 F.2d 224, 226 (9th Cir. 1951); State v. Miller, 689 P.2d 81, 86 (Wash. 1984); Dep’t of Game v. Puyallup Tribe, 422 P.2d 754, 761 (Wash. 1967), aff’d, 391 U.S. 392 (1968).

Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 402 n.14 (1968).

151

United States v. Washington, 384 F. Supp. 312, 333 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); see id. at 342, 415. 152

United States v. Oregon, 718 F.2d 299, 305 (9th Cir. 1983).

153

Anderson v. Evans, 371 F.3d 475, 499–500 (9th Cir. 2004).

154

United States v. Washington, 384 F. Supp. 312, 342 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); see Puyallup Tribe v. Dep’t of Game, 433 U.S. 165, 177 (1977) (regulations allocating 45 percent of harvestable steelhead run to tribal fishery met “conservation necessity” standards), aff’g 548 P.2d 1058 (Wash. 1976); United States v. Oregon, 657 F.2d 1009, 1012, 1017 (9th Cir. 1981) (upholding order enjoining Yakama Nation fisheries on spring chinook). 155

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similar to the state regulation in question, the state regulation is presumed to be necessary for conservation.156 State regulations also must be nondiscriminatory and meet appropriate procedural standards.157 The available case law suggests that state regulations may be discriminatory if they prohibit the use of traditional Indian gear158 or require Indians to pay a fee to exercise a treaty right.159 Under the Stevens/ Palmer treaties, which secure to the signatory tribes a right of taking fish “in common with” citizens, state fishing regulations are discriminatory if they fail to provide tribes with an opportunity to take a share of available fish.160 Procedural standards are “appropriate” if they recognize tribal fisheries as distinct from non-Indian commercial and recreational fisheries, and if they meet the requirements of state administrative procedure statutes.161 State health and safety regulations that do not otherwise impede the exercise of federally secured fishing and hunting rights are not preempted, and they may be enforced against Indians exercising such rights.162 e. Quantifying treaty rights: Securing a “fair share.” Most litigation concerning allocation of natural resources between Indians and others has occurred in the Pacific Northwest and has focused on salmon. After World War

156 United States v. Williams, 898 F.2d 727, 729–30 (9th Cir. 1990); State v. Bronson, 858 P.2d 467, 468–69 (Or. Ct. App. 1993); State v. McCormack, 812 P.2d 483, 484–86 (Wash. 1991); see United States v. Sohappy, 770 F.2d 816, 824–25 (9th Cir. 1985). 157 E.g., Antoine v. Washington, 420 U.S. 194, 207 (1977); Dep’t of Game v. Puyallup Tribe, 414 U.S. 44, 48 (1973) (regulation banning Indian gear was discriminatory toward Indians); Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 399 (1968); Makah Indian Tribe v. Schoettler, 192 F.2d 224 (9th Cir. 1951); United States v. Washington, 384 F. Supp. 312, 342, 401–02 (W.D. Wash. 1974); Sohappy v. Smith, 302 F. Supp. 899, 907–12 (D. Or. 1969). 158 Dep’t of Game v. Puyallup Tribe, 414 U.S. 44, 48 (1973) (“There is discrimination here because all Indian net fishing is barred and only hook-and-line fishing, entirely preempted by non-Indians, is allowed”). Much of the Indian treaty fishing rights litigation of the twentieth century had to do with state laws prohibiting the use of nets in rivers. E.g., State v. McCoy, 387 P.2d 942 (Wash. 1963) (prosecution of Indian using a net in Skagit River); State v. Allen, 141 P. 292 (Wash. 1914) (prosecution of Indian using a net in Skokomish River). 159 Tulee v. Washington, 315 U.S. 681 (1942) (Yakama Treaty preempts state fishing license fee); cf. Cree v. Flores, 157 F.3d 762 (9th Cir. 1998) (Yakama Treaty preempts state truck license fees). 160 United States v. Washington, 384 F. Supp. 312, 403 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); Sohappy v. Smith, 302 F. Supp. 899, 910–11 (D. Or. 1969). 161 United States v. Washington, 384 F. Supp. 312, 346–47, 402 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975); Sohappy v. Smith, 302 F. Supp. 899, 911–12 (D. Or. 1969). 162 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 740 F. Supp. 1400, 1423 (W.D. Wis. 1990); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 668 F. Supp. 1233, 1238–39 (W.D. Wis. 1987); State v. Olney, 72 P.3d 235, 238 (Wash. Ct. App. 2003) (state law prohibiting possession of a loaded firearm in a vehicle was a general safety law, not a hunting regulation, and could be enforced against Indians exercising treaty hunting rights); State v. Matthews, 635 N.W.2d 601, 602–03 (Wis. Ct. App. 2001); see United States v. Gallaher, 275 F.3d 784, 788–89 (9th Cir. 2001) (federal statutes prohibiting felons from possessing firearms and ammunition do not infringe upon federally secured tribal hunting rights and may lawfully be applied to tribal members); State v. Big John, 432 N.W.2d 576, 581–82 (Wis. 1988) (upholding regulation on motorboat use); but see State v. Lemieux, 327 N.W.2d 669 (Wis. 1983) (loaded-firearm law was an impermissible regulation of Indian hunting).

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II, the demand for salmon outstripped the supply. Tribal fisheries were at a disadvantage because of their location. Most notably, non-Indian fisheries in marine areas and in the lower Columbia River intercepted salmon migrating to spawning grounds before the salmon reached tribal usual and accustomed fishing places upstream. Few fish remained by the time the salmon reached tribal fisheries, and state regulators often sought to restrict tribal fishing to conserve the runs.163 After the Supreme Court held in 1968 that states could enforce nondiscriminatory regulations that are necessary for conservation against Indians exercising treaty fishing rights,164 tribal advocates sought to limit the effect of that decision. Their vehicle was a consolidated case involving Columbia River salmon fisheries, Sohappy v. Smith/United States v. Oregon. The United States and four tribal intervenors argued that the state’s overall regulation was discriminatory and not necessary for conservation if it failed to provide the tribes with an opportunity to take a “fair and equitable share” of harvestable fish at their usual and accustomed fishing places. The basis for the argument was the Stevens/Palmer treaty language securing to the tribes a right of taking fish “in common with” citizens.165 District Court Judge Belloni agreed and declared that Oregon must regulate its downstream fisheries so as to pass a “fair share” of fish to tribal fishing places upstream.166 The court did not decree a specific allocation, hoping that the parties would reach agreement on what constituted a “fair share.” The court retained jurisdiction to implement its decree, and United States v. Oregon remains an active case. In 1970, the United States, again joined by tribal intervenors, filed a similar lawsuit against Washington concerning salmon runs that pass through the “usual and accustomed grounds and stations” of treaty Indian tribes in western Washington, whose treaties similarly secure a right of taking fish “in common with” citizens.167 The lawsuit resulted in a 1974 opinion commonly referred to as the “Boldt Decision” since it was issued by Senior District Court Judge Boldt.168 The court followed the reasoning of the 1969 decision in Sohappy v. Smith, holding that (1) state fishing regulations that are not necessary

See Maison v. Confederated Tribes of the Umatilla Indian Reserv., 314 F.2d 169 (9th Cir. 1963).

163

Puyallup Tribe v. Dep’t of Game, 391 U.S. 392 (1968).

164

Treaty with the Walla-Wallas, art. I, 12 Stat. 945, 946 (1859); Treaty with the Yakamas, art. III, § 2, 12 Stat. 951, 953 (1859); Treaty with the Nez Perces, art. III, § 2, 12 Stat. 957, 958 (1859); Treaty with Indians in Middle Oregon, art. I, 12 Stat. 963, 964 (1859). 165

166 Sohappy v. Smith, 302 F. Supp. 899, 911 (D. Or. 1969); see generally John C. Gartland, Sohappy v. Smith: Eight Years of Litigation Over Indian Fishing Rights, 56 Or L. Rev. 680 (1977). 167 Treaty with the Nisquallys, art. III, 10 Stat. 1132, 1133 (1855); Treaty with the Dwámish Indians, art. V, 12 Stat. 927, 928 (1859); Treaty with the S’Klallams, art. IV, 12 Stat. 933, 934 (1859); Treaty with the Makah Tribe, art. IV, 12 Stat. 939, 940 (1859); Treaty with the Yakamas, art. III, § 2, 12 Stat. 951, 953 (1859); Treaty with the Qui‑Nai‑elts, art. III, 12 Stat. 971, 972 (1859).

United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975).

168

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for conservation conflict with the treaties and are therefore preempted and unenforceable against treaty Indians,169 and (2) the treaty right being “in common with” other people, the tribes are entitled to a fair and equitable share of harvestable fish.170 State fishing regulations that fail to provide the tribes with a fair share conflict with the treaties and are preempted.171 Ultimately, the Supreme Court affirmed these principles in 1979.172 The Boldt decision was very controversial, but most of the controversy had to do with the remedy, not the law.173 Unlike the court in Sohappy v. Smith, Judge Boldt decreed a specific equitable allocation to implement the tribes’ right to a fair share of harvestable fish. Because, in part, of the tribes’ historic dependence on fishing for food and commerce, the court set the tribal share at 50 percent.174 That meant non-Indian fisheries had to be severely curtailed, resulting in several years of turmoil. The Supreme Court generally affirmed the 50 percent remedy but was sensitive to the concerns of non-Indians, making some adjustments in the sharing formula and leaving the door open for future adjustments.175 In particular, the Court said the state may seek a sharing adjustment if a tribe turns to “other sources of support” and does not need 50 percent for a “livelihood” or “moderate living.”176 Thus, the Court held that “a livelihood—that is to say, a moderate living”—defines the maximum tribal share.177 The Court did not say whether the tribes are entitled to any particular minimum quantity of fish.178 Recognizing the special significance of ceremonial and subsistence fishing, however, the Court left open the possibility that “the purposes of the treaty” might justify a revision of the equitable remedy to give priority for tribal ceremonial and subsistence

See United States v. Washington, 520 F.2d 676, 684–86 (9th Cir. 1975).

169

United States v. Washington, 384 F. Supp. 312, 401 (W.D. Wash. 1974); cf. United States v. Michigan, 505 F. Supp. 467, 473 (W.D. Mich. 1980) (two tribes party to a treaty without the “in common with” language are entitled to as many fish or other animals as the tribes needed, while “other citizens of the state might have access to resources left over after the Indian needs are satisfied”). 170

See United States v. Washington, 520 F.2d 676, 687–88 (9th Cir. 1975).

171

Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 684–85 (1979).

172

See generally Laura Berg, Let Them Do as They Have Promised, 14 Hastings W.-N.W. J. Envtl. & Pol’y 311, 323–28 (2008) (discussing reactions to Judge Belloni’s and Judge Boldt’s decisions). 173

174 United States v. Washington, 384 F. Supp. 312, 343–44, 416–17 (W.D. Wash. 1974), aff’d, 520 F.2d 676, 687–90 (9th Cir. 1975). Seven weeks after the Boldt decision, the district court in the Sohappy v. Smith/United States v. Oregon litigation amended its 1969 judgment, concluding that equal shares of harvestable salmon destined for tribal fishing places were “fair” for Columbia River fisheries as well. Sohappy v. Smith, Order Amending Judgment of October 10, 1969 (D. Or. May 10, 1974), aff’d & remanded, 529 F.2d 570, 573–74 (9th Cir. 1976).

Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 685–89 (1979).

175

Id. at 686–87; see Fed. R. Civ. P. 60(b)(5).

176

Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. at 685–87 and n.27.

177

Id. at 686.

178

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needs “in a period of short supply.”179 Fifty percent of the harvestable fish thus constitutes the outer limit of a tribe’s “fair share” absent equitable factors suggesting another division.180 Aside from the amount of fish, other questions have arisen over which fish are subject to the treaty right. Salmon originating from hatcheries are included in the allocation of “fair shares.” The rationale is that hatchery fish replace naturally spawning fish lost to habitat degradation caused by dams and development, and it would be unfair if they were not shared.181 The treaties have been construed to secure a right to take fish species to which Indians did not have access at the time the treaties were executed.182 Shellfish from artificial beds are not included in the allocation of “fair shares” because of a limitation in the western Washington treaties that Indians “shall not take shell fish from any beds staked or cultivated by citizens.”183 The “fair share” allocation concept has also been applied to treaty usufructuary rights under a treaty that does not have the “in common with” language. In that case, the court concluded, however, that the Indians who executed the treaty would have understood that they would be exercising the rights in common with settlers.184 The court embraced the concept of equal sharing, capped by tribes’ moderate living needs.185 Whether on-reservation fishing rights secure an allocation of fish remains unclear. The Ninth Circuit has held that the Secretary of Commerce was authorized to regulate Pacific Ocean fisheries so as to allocate half of the harvestable Klamath River fall chinook salmon to tribal fisheries on the Hoopa Valley Reservation.186 The court assumed that the executive order creating the

179 Id. at 688–89; cf. id. at 707 (Powell, J., dissenting) (“I would hold that,” under the treaties, tribes “are guaranteed enough fish to satisfy their ceremonial and subsistence needs”). 180 Id. at 685 (1979); see Puyallup Tribe v. Washington Dep’t of Game, 433 U.S. 165, 177 (1977); Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994, 1004 n.11 (9th Cir. 2004) (Pacific whiting); Midwater Trawlers Coop. v. Dep’t of Commerce, 282 F.3d 710, 719 (9th Cir. 2002) (Pacific whiting); United States v. Washington, 157 F.2d 630, 631 (9th Cir. 1998) (shellfish). It is therefore not correct to state that the tribes have an absolute treaty right to half the fish, or that the phrase “in common with” in the treaties means half. “In common with” means the fishing opportunity is shared. Equities may dictate an allocation other than 50 percent. See United States v. Washington, 157 F.3d 630, 652–53 (9th Cir. 1998) (tribes not entitled to 50 percent of shellfish growers’ production).

United States v. Washington, 759 F.2d 1353, 1358–60 (9th Cir. 1985) (en banc).

181

Midwater Trawlers Coop. v. Dep’t of Commerce, 282 F.3d 710, 716–17 (9th Cir. 2002) (Pacific whiting); United States v. Washington, 157 F.3d 630, 643–44 (9th Cir. 1998) (shellfish). 182

Id. at 653.

183

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 740 F. Supp. 1400, 1413–20 (W.D. Wis. 1990); but see United States v. Michigan, 505 F. Supp. 467, 473 (W.D. Mich. 1980) (tribes whose treaty did not include “in common with” language were entitled to take as much fish and game as they needed; non-Indian share, if any, was limited to what remained). 184

185 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 740 F. Supp. 1400. 1416–18 (W.D. Wis. 1990); see also Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420, 1434 (W.D. Wis. 1987).

Parravano v. Masten, 70 F.3d 539 (9th Cir. 1995).

186

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reservation entitled the tribe to that allocation of fish.187 The Seventh Circuit, however, has held that a treaty securing on-reservation fishing rights does not guarantee a right to a portion of the catch absent treaty language that can be construed as such a guarantee.188 Adding to this doctrinal difficulty, the Ninth Circuit has held that an executive order creating on-reservation fishing rights was not equivalent to a treaty creating off-reservation fishing rights for purposes of harvest allocation. The court concluded that the tribe holding the off-reservation fishing right was entitled to half the harvestable salmon returning to the Chehalis River, while non-Indians and the tribe holding the on-reservation right must share the remainder.189 Tribes with treaty fishing rights on the same fish populations may be entitled to equitable shares among themselves.190 Several “subproceedings” have been filed in United States v. Washington concerning intertribal allocation, but none has resulted in substantive rulings setting forth standards that might guide such allocation.191 In 2006, the court held in an unpublished order that, in the absence of factors demonstrating that one tribe is entirely preempting another tribe’s right of taking fish, equitable allocation among tribes is not a legal issue for determination by the court.192 f. Burdens of proof in state court prosecutions. State prosecutors sometimes find themselves with a defendant claiming a treaty right as a bar to criminal liability—a claim that raises the question whether the alleged existence of such a right constitutes an affirmative defense that must be proved

187 See Parravano v. Babbitt, 861 F. Supp. 914, 924 (N.D. Cal. 1994), aff’d 70 F.3d 539 (9th Cir. 1995); see also 25 C.F.R. § 241.3 (fishing regulations in Annette Islands Reserve shall be based on “fair and equitable sharing” between Metlakatla Indian Community and other fishermen).

Menominee Indian Tribe v. Thompson, 161 F.3d 449, 461 (7th Cir. 1998).

188

United States v. Washington, 235 F.3d 438 (9th Cir. 2000).

189

Cf. Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983) (interstate apportionment of fish); see generally Thomas F. Haensly, Equitable Apportionment of Intertribal Shares of Anadromous Fish, 8 Stan. Envtl. L.J. 174 (1989); Mason D. Morisset, The Legal Standards for Allocating the Fisheries Resource, 22 Idaho L. Rev. 609, 625–26 (1986). 190

191 See United States v. Washington, 393 F. Supp. 2d 1089 (W.D. Wash. 2005) (by unilaterally claiming a particular share of the available tribal harvest, tribe was impermissibly regulating other tribes’ fisheries in violation of court-approved intertribal agreement). 192 United States v. Washington, Civil No. 70‑9213, Subproceeding 05‑2, 2006 WL 3386868 (W.D. Wash. Nov. 21, 2006), recons. denied, 2007 WL 171904 (W.D. Wash. Jan. 18, 2007).

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by the one who asserts it.193 Washington appellate decisions in particular have addressed this issue. A defendant initially must show membership in a tribe possessing the claimed treaty right.194 A defendant who fails to show membership in a tribe entitled to exercise treaty rights is subject to state law to the same extent as other citizens.195 The defendant next must bring the challenged activity within the scope of that right. So, for example, a defendant seeking to establish that he was exercising a treaty fishing right under the Stevens/Palmer treaties must prove by a preponderance of the evidence that the place where allegedly unlawful fishing occurred is a usual and accustomed fishing place of the tribe of which the defendant is a member.196 Likewise, a defendant seeking to establish a treaty hunting right must prove by a preponderance of the evidence that the place where the hunting took place is within the ceded area or traditional hunting grounds of the tribe of which the defendant is a member.197 If the defendant demonstrates exercise of a treaty right, the burden shifts to the prosecution to show that the state regulation can validly be enforced against Indians exercising treaty rights. To establish that a state regulation can be so enforced, the prosecution must “introduce clear and convincing evidence that the regulation was reasonable and necessary for conservation purposes.”198 The state meets that standard by proving that the conservation measure chosen “was appropriate to the conservation goal and necessary to protect the native [salmon] run from serious harm.”199 The fact that a federal court has approved the regulation is evidence of conservation necessity.200 The prosecution may meet its burden of establishing that a state law is necessary for conservation by showing that a defendant’s tribal law contains a similar provision.201 The

193 State v. Stasso, 563 P.2d 562, 565 (Mont. 1977); State v. Petit, 558 P.2d 796, 797 (Wash. 1977); State v. Moses, 483 P.2d 832, 835 (Wash. 1971); State v. Posenjak, 111 P.3d 1206, 1210–11 (Wash. Ct. App. 2005); State v. Courville, 676 P.2d 1011, 1016 (Wash. Ct. App. 1983); see State v. Watters, 156 P.3d 145, 151 (Or. Ct. App. 2007). 194 See United States v. Washington, 459 F. Supp. 1020, 1037 (W.D. Wash. 1974); United States v. Washington, 384 F. Supp. 312, 409 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975). 195 Puget Sound Gillnetters Ass’n v. United States Dist. Ct., 573 F.2d 1123, 1130 (9th Cir. 1978), vacated on other grounds, 443 U.S. 658 (1979); State v. Quigley, 324 P.2d 827 (Wash. 1958) (Chinook Indian was subject to state hunting laws); State v. Posenjak, 111 P.3d 1206, 1211 (Wash. Ct. App. 2005) (Snoqualmoo Indian was subject to state hunting laws). 196 State v. Petit, 558 P.2d 796, 797 (Wash. 1977); State v. Courville, 676 P.2d 1011, 1016 (Wash. Ct. App. 1983); see State v. Moses, 483 P.2d 832, 835 (Wash. 1971).

See State v. Buchanan, 978 P.2d 1070, 1081 (Wash. 1999).

197

State v. Reed, 595 P.2d 916, 919 (Wash. 1979).

198

Id.

199

Id.; see United States v. Michigan, 653 F.2d 277, 279 (6th Cir. 1981); State v. James, 435 P.2d 521, 525 (Wash. 1967). 200

201 United States v. Williams, 898 F.2d 727, 729–30 (9th Cir. 1990); State v. Bronson, 858 P.2d 467, 468–69 (Or. Ct. App. 1993); State v. McCormack, 812 P.2d 483, 484–86 (Wash. 1991).

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“conservation necessity” showing may be made at a pretrial hearing after the citation has been issued but before the trial on the merits.202 In addition, in a hunting case under the Stevens/Palmer treaties, the state has been held by Washington courts to have the burden to show that the land on which the defendant was hunting had outward indications, observable to a reasonable person (fences, buildings, or “No Trespassing” signs), that the land was not “open and unclaimed.”203 Montana courts have taken a different tack, placing the burden on the defendant.204 No dispute exists, however, that the meaning of treaty language is a question of law for the court, not a question of fact for a jury.205 While treaties may preempt state regulation of tribal members’ hunting or fishing, they do not oust state courts of jurisdiction over tribal members. State courts have jurisdiction over prosecutions or injunctive actions against tribal members who claim to be exercising off-reservation treaty rights.206 4. Off-reservation treaty rights and habitat Whether any treaty or other federal law securing off-reservation usufructuary rights includes a right of habitat protection, such as an environmental servitude, has yet to be resolved. a. Phase II of United States v. Washington. The question of whether the “right of taking fish” secured in the Stevens/Palmer treaties includes a habitat protection servitude has generated two prolonged rounds of inconclusive litigation in United States v. Washington207 and hundreds of pages of commentary.208 It remains unresolved. The tribal plaintiff-intervenors in United States v. Washington alleged in their 1971 complaints that the treaties prevent Washington from regulating the

State v. Peterson, 297 N.W.2d 52 (Wis. 1980).

202

State v. Chambers, 506 P.2d 311, 314–15 (Wash. 1973).

203

State v. Stasso, 563 P.2d 562, 565 (Mont. 1977).

204

Seneca Nation v. New York, 206 F. Supp. 2d 448, 506 (W.D.N.Y. 2002); State v. Chambers, 506 P.2d 311, 313 (Wash. 1973); State v. Byrd, 628 P.2d 504, 505 (Wash. Ct. App. 1981). 205

206 Puyallup Tribe v. Washington Dep’t of Game, 433 U.S. 165, 171–72 (1977); State v. Watters, 156 P.3d 145, 149–50 (Or. Ct. App. 2007). 207

United States v. Washington, Civil No. 70‑9213 (W.D. Wash.).

Brian E. Schartz, Note, Fishing for a Rule in a Sea of Standards: A Theoretical Justification for the Boldt Decision, 15 N.Y.U. Envtl. L.J. 314 (2007); Vincent Mulier, Recognizing the Full Scope of the Right to Take Fish Under the Stevens Treaties: The History of Fishing Rights Litigation in the Pacific Northwest, 31 Am. Indian L. Rev. 41 (2006–2007); Lindsay Halm, Putting Flesh on the Bones of United States v. Winans: Private Party Liability Under Treaties That Reserve Actual Fish for the Tribal Taking, 79 Wash. L. Rev. 1181 (2004); O. Yale Lewis III, Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights Implied by the Fishing Clause of the Stevens Treaties, 27 Am. Indian L. Rev. 281 (2003); Brian J. Perron, When Tribal Treaty Fishing Rights Become a Mere Opportunity to Dip One’s Net Into the Water and Pull It Out Empty: The Case for Money Damages When Treaty-Reserved Fish Habitat Is Degraded, 25 Wm. & Mary Envtl. L. & Pol’y Rev. 783 (2001); Mary Christina Wood, The Tribal Property Right to Wildlife Capital (Part II): Asserting a Sovereign Servitude to Protect 208

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use of fish habitat in a manner that “deprives the tribes and their members of sufficient fish for the maintenance of their livelihood.” That issue was set aside for determination in “Phase II” of the litigation.209 The United States and tribal plaintiff-intervenors activated “Phase II” in 1976. They alleged that the state had a treaty-based duty to avoid taking or authorizing actions that “significantly and adversely affect fish habitat and which directly or indirectly reduce the number or quality of fish available to treaty Indians.” In 1980, the court granted their motion for summary judgment and held that the treaties implicitly imposed on the state a duty not to impair fish habitat.210 The court concluded that the “treaties reserve to the tribes a sufficient quantity of fish to satisfy their moderate living needs.”211 Therefore, said the court, the “duty imposed upon the State (as well as the United States and third parties) is to refrain from degrading the fish habitat to an extent that would deprive the tribes of their moderate living needs.”212 Though the court did not use the word “servitude,” commentators and courts have recognized that the ruling effectively declared an environmental servitude encumbering the lands that the tribes ceded in the treaties.213 The ruling was made in the

Habitat of Imperiled Species, 25 Vt. L. Rev. 355, 412–13 (2001); Mary Christina Wood, The Tribal Property Right to Wildlife Capital (Part I): Applying Principles of Sovereignty to Protect Imperiled Wildlife Populations, 37 Idaho L. Rev. 1 (2000); Michael C. Blumm et al., Judicial Termination of Treaty Water Rights: The Snake River Case, 36 Idaho L. Rev. 449 (2000); Ed Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right, 30 Envtl. L. 279 (2000); Rollie Wilson, Removing Dam Development to Recover Columbia Basin Treaty Protected Salmon Economies, 24 Am. Indian L. Rev. 357 (2000); Ivy Anderson, Protecting the Salmon: An Implied Right of Habitat Protection in the Stevens Treaties, and Its Impact on the Columbia River Basin, 24 Vt. L. Rev. 143 (1999); Michael C. Blumm and Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. Colo. L. Rev. 407 (1998); Starla Kay Roels, Borrowing Instead of Taking: How the Seemingly Opposite Threads of Indian Treaty Rights and Property Rights Activism Could Intertwine to Restore Salmon to the Rivers, 28 Envtl. L. 374 (1998); Allen H. Sanders, Damaging Indian Treaty Fisheries: A Violation of Tribal Property Rights?, 17 Pub. Land & Resources L. Rev. 153 (1996); Martin H. Belsky, Indian Fishing Rights: A Lost Opportunity for Ecosystem Management, 12 J. Land Use & Envtl. L. 45 (1996); Gary D. Meyers, United States v. Washington (Phase II) Revisited: Establishing an Environmental Servitude Protecting Treaty Fishing Rights, 67 Or. L. Rev. 771 (1988); Judith W. Constans, The Environmental Right to Habitat Protection: A Sohappy Solution, 61 Wash. L. Rev. 731 (1986); Allen H. Sanders, The Northwest Power Act and Reserved Tribal Rights, 58 Wash. L. Rev. 357 (1983); Donald T. Hornstein, Indian Fishing Rights Return to Spawn: Toward Environmental Protection of Treaty Fisheries, 61 Or. L. Rev. 93 (1982); Peter C. Monson, United States v. Washington (Phase II): The Indian Fishing Conflict Moves Upstream, 12 Envtl. L. 469 (1982); Thomas G. Galligan, Jr., Pacific Northwest Indian Treaty Fishing Rights, 5 U. Puget Sound L. Rev. 99 (1981). See Skokomish Indian Tribe v. United States, 410 F.3d 506, 522 n.2 (9th Cir. 2005) (en banc) (Berzon, J., dissenting in part) (citing the Third Edition of the Deskbook). See United States v. Washington, 384 F. Supp. 312, 328 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir.

209

1975). 210 211

United States v. Washington, 506 F. Supp. 187, 205–07 (W.D. Wash. 1980); see also id. at 203.

Id. at 208; see also id. at 193.

212 Id. at 208. In No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981), the court applied this ruling to a federal approval of an oil pipeline project. 213 Mary Christina Wood, The Tribal Property Right to Wildlife Capital (Part II): Asserting a Sovereign Servitude to Protect Habitat of Imperiled Species, 25 Vt. L. Rev. 355, 363 (2001); Gary D. Meyers, United States v. Washington (Phase II) Revisited: Establishing an Environmental Servitude Protecting Treaty Fishing Rights, 67 Or. L. Rev. 771, 778 (1988); see Skokomish Indian Tribe v. United States, 410 F.3d 506, 527 (9th Cir. 2005) (en

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absence of a factual context, however, and the court did not say what types of actions or inactions would violate the treaty-based duty it had declared. The state appealed. The case was first heard by a three-judge panel of the Ninth Circuit, which rejected the trial court’s reasoning.214 Instead, the panel advanced an alternative theory—that the treaties impose on the state, the United States, and the tribes an obligation to take “reasonable steps” to preserve and enhance the fishery.215 The panel did not clearly explain its rationale, but it apparently relied on a different property-based concept—that the state and the tribes share a cotenancy in the fishery resource.216 The United States and the tribes were granted rehearing en banc. First, the en banc court concluded that it lacked jurisdiction over the environmental issue and dismissed the appeal. Then the state sought rehearing. Finally, in 1985, a divided eleven-member court issued an opinion vacating the trial court’s judgment of an environmental servitude as contrary to the exercise of sound judicial discretion because it was decided without a factual context: The legal standards that will govern the State’s precise obligations and duties under the treaty with respect to the myriad State actions that may affect the environment of the treaty area will depend for their definition and articulation upon concrete facts which underlie a dispute in a particular case.217

In 2001, the United States and the tribes returned to the district court with “concrete facts”: state-owned road and highway culverts that block fish passage. They asked the court to declare: The “right of taking fish,” secured to the plaintiff tribes in the Stevens Treaties, imposes a duty upon the State of Washington to refrain from diminishing, through the construction or maintenance of culverts under State owned roads and highways, the number of fish that would otherwise return to or pass through the tribes’ usual and accustomed fishing grounds and stations, to the extent that such diminishment would impair the tribes’ ability to earn a moderate living from the fishery.218

They asked the court to declare that the state had violated this alleged duty and to order the state to identify and fix all of its culverts within five years of the date of judgment.

banc) (Berzon, J., dissenting); United States v. Washington, 694 F.2d 1374, 1381, 1384, 1389 (9th Cir. 1982), vacated, 759 F.2d 1353 (9th Cir. 1985) (en banc). United States v. Washington, 694 F.2d at 1377.

214

Id. at 1374, 1375 and n.1, 1381, 1386, 1389–90 and n.1.

215

Id. at 1375, 1381.

216

United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc).

217

United States v. Washington, Civil No. C70‑9213, Subproceeding No. 01‑1 (W.D. Wash.), Request for Determination, § 4.1; see United States’ Response to Request for Determination, § 4.1. 218

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In 2006, the state and the tribes filed cross-motions for summary judgment, the United States opposing the state’s but not joining the tribes’. A year later, the court granted partial summary judgment to the tribes in a 12-page unpublished order, declaring [T]hat the right of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest. The Court further declares that the State of Washington currently owns and operates culverts that violate this duty.219

The court characterized its decision as “a narrow directive to refrain from impeding fish runs in one specific manner,” not “a broad ‘environmental servitude’ or the imposition of an affirmative duty to take all possible steps to protect fish runs.”220 The court did not order the state to fix any culverts, instead urging the parties to negotiate an agreed remedy. As of early 2008, seven years after the culvert litigation was filed, and 37 years after the environmental issue was first raised in United States v. Washington, negotiations are ongoing, and no final judgment has been entered.221 b. Other habitat litigation. During the long course of the United States v. Washington Phase II litigation, the court has issued declaratory rulings, but, as of early 2008, it has ordered no other type of relief concerning a treaty-based off-reservation environmental right. Neither has any other court. Courts have rejected treaty-based claims for money damages for destruction of fish and wildlife habitat. The Ninth Circuit has held that the Point No Point Treaty, one of the Stevens/Palmer treaties, did not form a basis for an implied private right of action for damages against third parties such as the City of Tacoma, whose hydroelectric project had substantially altered the flow of a river.222 The court left open the possibility that the United States could be liable for damages under a breach-of-contract theory for its role in failing to prevent the harm from the project.223 Courts have also held that tribes with off-reservation treaty fishing rights have no property interest in the fish that can support an action for monetary damages,224 and have suggested that off-

219 United States v. Washington, Civil No. 70‑9213, Subproceeding 01‑1, 2007 WL 2437166, at *10 (W.D. Wash. Aug. 22, 2007).

Id.

220

Commentary on the culvert litigation can be expected. See Rob Roy Smith, At A Complex Crossroads: Animal Law in Indian Country, 14 Animal L. 109, 122–23 (2007). 221

Skokomish Indian Tribe v. United States, 410 F.3d 506, 512–14 (9th Cir. 2005) (en banc).

222

Id. at 510–11.

223

Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791, 810 and n.22, 819 (D. Idaho 1994); see generally Michael Mirande, Sustainable Natural Resource Development, Legal Dispute, and Indigenous Peoples: ProblemSolving Across Cultures, 11 Tulane Envtl. L.J. 33 (1997) (discussing settlement process used in Idaho Power 224

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reservation treaty fishing rights must adapt to changing circumstances, such as federally authorized infrastructure development.225 Courts have also rejected claims for injunctive relief. In Gros Ventre Tribe v. United States,226 the tribe brought an action for equitable relief against several federal agencies, alleging that the government had breached its trust obligations under two treaties by approving mining operations on nontribal lands outside the tribe’s reservation that diminished water quality within the reservation. The court rejected the claim, holding that the language of the treaties could not be read as imposing on the government a duty to manage nontribal resources for the benefit of the tribe. In a case involving treaties in the Great Lakes region, a tribe contended that, because fish passage obstructions had destroyed its on-reservation fishery, it was entitled to a remedy in the form of an off-reservation fishery not subject to state regulation. The court denied relief because it “would amount to an impermissible rewriting of the treaty.”227 Finally, a state court in Idaho could find no language in the Nez Perce Treaty, one of the Stevens/Palmer treaties, supporting a claim that the treaty “right of taking fish” implicitly included a right to in-stream water flows.228 The Winters doctrine229 may provide tribes with a more limited basis for asserting water rights to support off-reservation fisheries. The Winters doctrine holds that a federal reservation of land includes an appurtenant right to sufficient water to fulfill the reservation’s purpose.230 It is analogous to the common law riparian rights doctrine, which holds that ownership of land along a stream includes a right to the continued flow of the stream.231 In several cases, courts have held that federal laws reserving lands for Indians entitle the tribe to in-stream flows for fish under the Winters doctrine, where fishing was a purpose of the reservation.232 The Washington Supreme Court has held

litigation, and offering observations on methods for increasing likelihood of successful negotiations between tribes and private companies). Nez Perce Tribe, 847 F. Supp. at 805.

225

Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006).

226

Menominee Indian Tribe v. Wisconsin, 922 F. Supp. 184, 215 (W.D. Wis. 1996), aff’d, 161 F.3d 449 (7th Cir. 1998). 227

228 In re SRBA, Case No. 39576, Subcase No. 03‑10022, Order on Mots. Summ. J. at 37 (Idaho Dist. Ct., Nov. 10, 1999), http://www.srba.state.id.us/FORMS/sumjudg.PDF (last visited July 19, 2008). The parties ultimately succeeded in negotiating a settlement to this case. See Alexander Hays, Comment: The Nez Perce Water Rights Settlement and the Revolution in Indian Country, 36 Envtl. L. 869 (2006).

Winters v. United States, 207 U.S. 564 (1908).

229

Cappaert v. United States, 426 U.S. 128, 138–39 (1976).

230

See Winters v. United States, 143 F. 740, 749 (9th Cir. 1906), aff’d, 207 U.S. 340 (1908).

231

Joint Bd. of Control v. United States, 832 F.2d 1127, 1131 (9th Cir. 1987); United States v. Adair, 723 F.2d 1394, 1412–15 (9th Cir. 1983); Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981); United States v. Anderson, 591 F. Supp. 1, 5–6 (E.D. Wash. 1982); Dep’t of Ecology v. Yakima Reserv. Irr. Dist., 850 P.2d 1306 (Wash. 1993). 232

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that the Yakama Nation’s treaty-secured easement233 in certain off-reservation “usual and accustomed” fishing places carries with it a Winters right to “the minimum instream flow which is necessary to maintain anadromous fish life” at those places.234 This right has been quantified in the Yakima River Basin general stream adjudication.235 IV. FEDERAL REGULATION OF FISHING AND HUNTING The federal government may regulate the taking of animals where such regulation falls within one of its constitutionally enumerated powers. Such regulation may apply to the taking of fish and wildlife by Indians whose tribes hold federally secured fishing and hunting rights, either because (1) the regulation is consistent with the treaty right,236 or (2) Congress intended to abrogate Indian treaty rights when it enacted the regulatory legislation.237 Congress has the power to abrogate Indian treaties but must clearly express its intent to do so.238 In the absence of such congressional action, the United States’ treaties with Indian tribes impose on federal executive agencies a duty to protect the exercise of treaty-secured usufructuary rights.239 A. Bureau of Indian Affairs Management Authority Under 25 U.S.C. §§ 2 and 9, the Commissioner of Indian Affairs may adopt regulations for Indian affairs and relations. The Department of the Interior

See United States v. Winans, 198 U.S. 371, 381, 384 (1905).

233

Dep’t of Ecology v. Yakima Reserv. Irrigation Dist., 850 P.2d 1306, 1318 (Wash. 1993); see also Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032 (9th Cir. 1985) (court administering water consent decree had equitable authority to order measures to protect salmon redds from dewatering while tribe’s treaty-based Winters claims were pending in general stream adjudication in another court). 234

235 State v. Acquavella, No. 77‑2‑01494‑5, Report of the Court Concerning the Water Rights for the Yakama Indian Nation (Yakima Cnty. Wash. Super. Ct. Nov. 13, 1995). 236 See Anderson v. Evans, 371 F.3d 475, 500–01 (9th Cir. 2004) (Marine Mammal Protection Act applies to Makah Tribe’s exercise of treaty whaling rights); United States v. Eberhardt, 789 F.2d 1354, 1359–61 (9th Cir. 1986) (regulation of on-reservation Indian fishing was consistent with government’s obligation to conserve Indian resources); Makah Indian Tribe v. United States, 7 Ind. Cl. Comm. 477, 514 (1959) (treaty fishing rights “are not so unlimited and untouchable that they cannot be tempered, accommodated, or adjusted to fit changing circumstances such as when the [federal] Government finds it necessary to take reasonable steps to conserve and protect fish and wildlife and other natural resources which belong collectively to all the people”), aff’d, 151 Ct. Cl. 701 (1960).

United States v. Dion, 476 U.S. 734 (1986).

237

South Dakota v. Bourland, 508 U.S. 679, 687 (1993); United States v. Dion, 476 U.S. 734, 738–49 (1986); Menominee Tribe v. United States, 391 U.S. 404, 412–13 (1968). 238

239 Nw. Sea Farms, Inc. v. United States Army Corps of Eng’rs, 931 F. Supp. 1515, 1520 (W.D. Wash. 1996) (federal agency “owes a fiduciary duty to ensure that the Lummi Nation’s treaty rights are not abrogated or impinged upon absent an act of Congress”); cf. Parravano v. Masten, 70 F.3d 539, 547 (9th Cir. 1995) (“the Tribes’ federally reserved fishing rights are accompanied by a corresponding duty on the part of the [federal] government to preserve those rights”); Pyramid Lake Paiute Tribe v. United States Dep’t of Navy, 898 F.2d 1410, 1420 (9th Cir. 1990) (United States’ trustee obligations to Indian tribes “extend to any federal government action”).

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has relied on this authority to adopt regulations for tribal fishing within Indian reservations and at off-reservation sites subject to treaty fishing rights.240 The Ninth Circuit has held that regulation of tribal fishing under this general authority is consistent with the Department’s obligations to manage and conserve Indian resources.241 Because such regulations are adopted for the benefit of Indians, the federal government need not demonstrate that they are necessary for conservation before enforcing them against Indians exercising federal rights.242 Title 25, sections 2 and 9 of the United States Code nevertheless do not authorize the Department to adopt regulations purporting to allow fishing in contravention of state law absent some other preempting federal law.243 B. Federal Regulatory Statutory Schemes 1. Endangered Species Act The Endangered Species Act (ESA)244 prohibits the taking of endangered or threatened species of fish and wildlife.245 It requires the Secretaries of Commerce and the Interior to adopt regulations for the conservation of such species, which may include regulations prohibiting “take.” The ESA prohibits the violation of such rules.246 Tribes are subject to the ESA when they undertake activities that are not the subject of a treaty right.247 Whether the ESA applies to Indians exercising treaty rights is an open question, however. One court has said it does; another has said it does not. Both courts asked whether Congress intended to abrogate Indian treaty rights in the ESA.248 Because it is well established that even some state conservation regulations do not conflict with treaty rights, a better way to frame the issue might be to ask whether treaty rights extend to the taking of endangered species.249 In a 1980 opinion, the Department of the Interior’s

240 25 C.F.R. pts. 241 (reservations in Alaska), 242 (Red Lake Indian Reservation), 249 (off-reservation); see Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 691 (1979) (off-reservation); N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 749–50 (10th Cir. 1987) (25 U.S.C. §§ 2 and 9 coupled with treaty creating reservation authorized Department of the Interior to adopt interim game code to protect wildlife within reservation in the absence of tribal regulation); United States v. Eberhardt, 789 F.2d 1354, 1361 (9th Cir. 1986) (on-reservation); United States v. Michigan, 623 F.2d 448 (6th Cir. 1980) (off-reservation). 241 Eberhardt, 789 F.2d at 1360–61; but see Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925) (regulation requiring Indian fishermen to sell to licensed buyers and pay royalties not within Commissioner’s authority).

Eberhardt, 789 F.2d at 1362.

242

Organized Vill. of Kake v. Egan, 369 U.S. 60, 62–63 (1962).

243

16 U.S.C. §§ 1531–1544.

244

Id. § 1538(a)(1)(B).

245

Id. § 1538(a)(1)(G).

246

Gobin v. Snohomish County, 304 F.3d 909, 917 (9th Cir. 2002) (dictum).

247

United States v. Dion, 752 F.2d 1261, 1269–70 (8th Cir. 1985) (en banc), rev’d on other grounds, 476 U.S. 734 (1986); United States v. Billie, 667 F. Supp. 1485 (S.D. Fla. 1987). 248

249 See Washington Dep’t of Game v. Puyallup Tribe, 414 U.S. 44, 49 (1973) (“the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets”); United States v.

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Solicitor stated that the ESA “is in complete harmony with the exercise of treaty hunting and fishing rights by Indians because those rights do not include the right to take endangered or threatened species.”250 More recently, the federal agencies that administer the ESA have sought to avoid determining whether the statute applies to the exercise of Indian treaty rights. In 1997, the Secretaries of Commerce and the Interior adopted the Secretarial Order on American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.251 Its stated purpose is to harmonize the federal government’s obligations to Indian tribes with its obligations under the ESA. The secretarial order commits to consultation with tribes on ESA actions that affect them. The two agencies have developed procedures that can protect tribal activities from ESA “take” liability while leaving unanswered the question of whether the activities are subject to the ESA. Because many tribal fisherymanagement activities receive federal funding, the funding agency may be required to consult under section 7(a)(2) of the ESA.252 Tribal actions consistent with an incidental take statement resulting from such a consultation are protected from ESA “take” liability, regardless of whether the ESA would apply to such actions.253 With respect to threatened anadromous fish, the Department of Commerce has developed procedures under section 4(d) of the ESA254 that make it unnecessary to decide whether tribes are subject to the ESA when they exercise fishing rights secured by treaties and other federal laws.255 Finally, an unlitigated but potentially nettlesome question is whether treaties may guarantee to tribes some minimum population level of fish or

Eberhardt, 789 F.2d 1354, 1363 (9th Cir. 1986) (“In the context of state regulation of Indian fishing rights, we have rejected the endangered species approach to conservation, finding that fishing limitations may be proper even though extinction is not imminent”); United States v. Washington, 520 F.2d 676, 686 n.3 (9th Cir. 1975) (limiting treaty fishing to fish not needed for spawning “deprives the Indians of no rights”). 250 Application of the Endangered Species Act to Native Americans with Treaty Hunting and Fishing Rights, 87 Interior Dec. 525, 527 (1980). 251 Background about the secretarial order is described in Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights–Endangered Species Secretarial Order, 72 Wash. L. Rev. 1063 (1997). The order itself is appended to the article. Id. at 1089; see also Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty: What Does the Tribal Rights–Endangered Species Order Accomplish?, 83 Minn. L. Rev. 523 (1998) (analyzing relationship between the ESA and tribal treaty rights and the secretarial order’s attempt to clarify federal agency responsibilities when actions taken under the ESA involve tribal trust lands).

16 U.S.C. § 1536(a)(2).

252

See Ramsey v. Kantor, 96 F.3d 434, 442 (9th Cir. 1996) (state fisheries conducted in compliance with an incidental take statement issued to a federal agency were protected from ESA “take” liability). 253

16 U.S.C. § 1533(d).

254

See 50 C.F.R. § 223.204 (actions under tribal resource management plans exempt from rule prohibiting take of threatened salmonids). 255

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game to support the exercise of treaty rights256 that may exceed the population level required for delisting under the ESA.257 If so, the question becomes how such a guarantee would affect the federal government’s obligation to develop recovery plans for endangered and threatened species.258 The 1997 secretarial order in this regard directs the National Marine Fisheries Service and the United States Fish and Wildlife Service to “be cognizant of tribal desires to attain population levels and conditions that are sufficient to support the meaningful exercise of reserved rights.”259 2. Magnuson-Stevens Fishery Conservation and Management Act The Secretary of Commerce may regulate fishing in the “Exclusive Economic Zone” between 3 and 200 miles off the United States coasts under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).260 Such regulation is accomplished through the development of fishery management plans. Fishery management plans must be consistent with “any other applicable law.”261 “Other applicable law” includes Indian treaties and other federal laws securing a share of fish to Indian tribes.262 One treaty Indian tribe, the Makah, has adjudicated treaty fishing grounds in the Exclusive Economic Zone.263 By administrative regulation, the Secretary has recognized “usual and accustomed fishing areas” for three other treaty

256 See Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 688 (1979) (“[w]e need not now decide whether priority for [ceremonial and subsistence] uses would be required in a period of short supply in order to carry out the purposes of the treaty”).

See 16 U.S.C. § 1533(a).

257

Id. § 1533(f ); cf. N. Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C. Cir. 1980) (in implementing the ESA, “where the Secretary [of the Interior] has acted responsibly in respect of the environment, he has implemented responsibly, and protected, the parallel concerns of the Native Alaskans”). 258

259 Wilkinson, 72 Wash. L. Rev. supra note 251, at 1106; cf. 65 Fed. Reg. 42,422, 42,440 (Jul. 10, 2000) (ESA “protections will no longer be needed only if the abundance of fish is sufficient to satisfy treaty fishing rights and to fulfill the trust obligations of the United States”). The National Marine Fisheries Service is also known as NOAA Fisheries. 260 16 U.S.C. §§ 1801–1883; see Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 10, 1983) (proclaiming Exclusive Economic Zone). States retain authority to regulate fishing in the Exclusive Economic Zone where the Secretary has not acted. State v. F/V Baranof, 677 P.2d 1245 (Alaska 1984); see Skiriotes v. Florida, 313 U.S. 69, 75–78 (1941).

16 U.S.C. § 1853(a)(1)(C).

261

Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994, 998 (9th Cir. 2004); Midwater Trawlers Coop. v. Dep’t of Commerce, 282 F.3d 710, 716–17 (9th Cir. 2002); Parravano v. Masten, 70 F.3d 539, 547 (9th Cir. 1995); Wash. State Charterboat Ass’n v. Baldrige, 702 F.2d 820, 823 (9th Cir. 1983). 262

263 United States v. Washington, 730 F.2d 1314 (9th Cir. 1984); see Midwater Trawlers Coop., 282 F.3d at 717–18.

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tribes.264 Within these areas, the Secretary adopts special allocations and regulations for treaty Indian fishing.265 In 1993, in an unpublished order, the court in the United States v. Washington litigation ruled that the Secretary’s authority to regulate treaty Indian fishing under the Magnuson Act and the Northern Pacific Halibut Act266 was limited by the “conservation necessity” standard that courts use to determine whether the treaties preempt state regulation of treaty Indian fishing.267 Since then, however, the Ninth Circuit appears to have equated the “conservation necessity principle” with the statutory conservation standards of the Magnuson Act.268 How “conservation necessity” relates to the Magnuson Act is nevertheless a problematic issue. For example, whether the United States must prove that a Magnuson Act regulation is necessary for conservation in a criminal prosecution against a treaty Indian has not been litigated. 3. Pacific Salmon Treaty Act Some salmon stocks from the Pacific Northwest migrate into Canada where they are caught. Some salmon that spawn in Canada are caught in the United States. Allocation of salmon among the two countries has been contentious for over a century. To address those problems, the United States and Canada signed the Pacific Salmon Treaty in 1985.269 Congress implemented the treaty in the United States through the Pacific Salmon Treaty Act.270 It sets up the institutions that enable the United States to carry out its obligations to Canada. Because many of the salmon stocks that are

264 E.g., 50 C.F.R. § 300.64 (halibut); id. § 660.324 (groundfish); 72 Fed. Reg. 24,539, 24,547–48 (May 3, 2007) (salmon); see Midwater Trawlers Coop. v. Dep’t of Commerce, 139 F. Supp. 2d 1136, 1144 (W.D. Wash. 2000), rev’d on other grounds, 282 F.3d 710 (9th Cir. 2002). 265 E.g., 50 C.F.R. § 300.64 (halibut); id. § 660.324(d) (groundfish); id. § 660.408(k) (salmon); id. § 660.518(d) (coastal pelagic species); 72 Fed. Reg. 19,390, 19,392 (Apr. 18, 2007) (groundfish); 72 Fed. Reg. 24,539, 24,542, 24,547–548 (May 3, 2007) (salmon).

16 U.S.C. §§ 773–773k.

266

Makah Indian Tribe v. Brown, No. C85‑1606R/United States v. Washington, No. C70‑9213, Subproceeding 92‑1, Order on Five Mots. Relating to Treaty Halibut Fishing at 6–7 (W.D. Wash. Dec. 29, 1993); see United States v. Washington, 143 F. Supp. 2d 1218, 1222–23 (W.D. Wash. 2001). 267

268 Anderson v. Evans, 371 F.3d 475, 497–501 and n.24 (9th Cir. 2004); Midwater Trawlers Coop. v. Dep’t of Commerce, 282 F.3d 710, 719 (9th Cir. 2002); cf. 50 C.F.R. § 660.408(k) (ocean treaty salmon fishing must stop when quota for weakest stock is reached). 269 T.I.A.S. No. 11091; see Confederated Tribes & Bands of Yakama Indian Nation v. Baldrige, 898 F. Supp. 1477 (W.D. Wash. 1995), aff’d, 91 F.3d 1366 (9th Cir. 1996); Confederated Tribes and Bands of Yakima Indian Nation v. Baldrige, 605 F. Supp. 833 (W.D. Wash. 1985). The Pacific Salmon Treaty and its predecessors have been a favorite subject for commentators. E.g., Austin Williams, The Pacific Salmon Treaty: A Historical Analysis and Prescription for the Future, 22 J. Envtl. L. & Litig. 153 (2007); Karol de Zwager Brown, Truce in the Salmon War: Alternatives for the Pacific Salmon Treaty, 74 Wash. L. Rev. 605 (1999); Joy A. Yanagida, The Pacific Salmon Treaty, 81 Am. J. Int’l L. 577 (1987); Thomas C. Jensen, The United States–Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview, 16 Envtl. L. 363 (1986); Charles F. Wilkinson and Daniel Keith Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 U. Kan. L. Rev. 17 (1983).

16 U.S.C. §§ 3631–3644.

270

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the subject of the treaty pass through the fishing places of Pacific Northwest treaty Indian tribes, some of the implementation bodies created by Congress include one or more tribal members.271 The Pacific Salmon Treaty Act states that it “shall not be interpreted or applied so as to affect or modify rights established in existing Indian treaties.”272 Generally, the tribes and states affected by the Pacific Salmon Treaty manage their own fisheries.273 If a tribe or state adopts a fishing regulation that “place[s] the United States in jeopardy of not fulfilling its international obligations under the [Pacific Salmon] Treaty,” the Secretary of Commerce may adopt preemptive regulations.274 For example, the Secretary preempted Lummi tribal fishing regulations in 1986 and 1994.275 4. Marine Mammal Protection Act In the Marine Mammal Protection Act,276 Congress generally prohibited the taking of marine mammals.277 The Act contains an exemption for Alaska Natives, but no other groups, who take marine mammals for subsistence purposes or for the creation of Native articles of handicrafts and clothing.278 In Anderson v. Evans,279 the Ninth Circuit held that the Marine Mammal Protection Act applies to the Makah Indian Tribe, a non-Alaskan group, in its exercise of treaty whaling rights. The court held that the Marine Mammal Protection Act was consistent with the treaty right, and did not reach the issue of whether Congress had abrogated the treaty.280 5. Whaling Convention Act In 1946 the United States and other nations signed the International Convention for the Regulation of Whaling (ICRW), to “provide for the proper conservation of whale stocks.”281 It prohibits the taking of gray or right whales except for aboriginal subsistence.282 Congress enacted the Whaling Convention

Id. § 3632.

271

Id. § 3643.

272

Id. § 3633(b).

273

Id. § 3635.

274

59 Fed. Reg. 47,283 (Sept. 15, 1994); 51 Fed. Reg. 33,761 (Sept. 23, 1986).

275

16 U.S.C. §§ 1361–1421h.

276

Id. § 1372(a).

277

Id. § 1371(b).

278

371 F.3d 475 (9th Cir. 2004).

279

Id. at 497–501. Article IV of the Treaty with the Makah Tribe secures to that tribe a “right . . . of whaling . . . at usual and accustomed grounds and stations . . . in common with all citizens of the United States.” 12 Stat. 939, 940 (1859). 280

62 Stat. 1716, 1717 (1948).

281

Id. at 1718–19; see generally Elizabeth M. Bakalar, Note, Subsistence Whaling in the Native Village of Barrow: Bringing Autonomy to Native Alaskans Outside the International Whaling Commission, 30 Brook. 282

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Act three years later to implement the ICRW in the United States.283 The Whaling Convention Act provides that any person engaging in whaling must obtain a license from the Secretary of Commerce after meeting certain requirements. The Secretary has authority to administer the statute’s provisions and adopt conforming regulations.284 Pursuant to that authority, rules governing the taking of whales have been promulgated. They contain detailed provisions regulating aboriginal subsistence whaling.285 With the tribe’s consent, the Secretary has regulated the Makah Tribe’s exercise of treaty whaling rights under the Whaling Convention Act.286 The Ninth Circuit has held, however, that the Marine Mammal Protection Act applies to the Makah Tribe’s exercise of treaty whaling rights.287 That law generally prohibits the taking of marine mammals except by Alaska Natives.288 The Makah Tribe has requested a waiver of the prohibition.289 6. Bald and Golden Eagle Protection Act In the Bald and Golden Eagle Protection Act (BGEPA),290 Congress prohibited the taking of bald and golden eagles.291 The Supreme Court has held that the BGEPA abrogates Indian treaty rights to hunt eagles, and that treaty Indians are subject to its provisions.292 Prosecutions of tribal members under the statute have been held not to violate the religion clauses of the First Amendment to the United States Constitution or the Religious Freedom Restoration Act.293 The BGEPA includes a provision allowing the Secretary of the Interior to permit the taking of bald and golden eagles “for the religious purposes of

J. Int’l L. 601 (2005) (discussing the Alaskan Native subsistence exemption adopted by the International Whaling Commission, and recommending that management of particular whale species be relinquished by the Commission to Native organizations). 16 U.S.C. §§ 916–916l.

283

Id. §§ 916d, 916j.

284

50 C.F.R. pt. 230.

285

See Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000); 63 Fed. Reg. 16,701 (Apr. 6, 1998).

286

Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004).

287

16 U.S.C. §§ 1371(b), 1372.

288

See id. § 1371(a)(3)(A); 71 Fed. Reg. 9,781 (Feb. 27, 2006); 70 Fed. Reg. 10,359 (Mar. 3, 2005).

289

16 U.S.C. §§ 668–668d.

290

Id. § 668(a).

291

United States v. Dion, 476 U.S. 734 (1986). The Ninth Circuit had previously reached the same conclusion in United States v. Fryberg, 622 F.2d 1010 (9th Cir. 1980). 292

293 United States v. Friday, 525 F.3d 936, 952–59 (10th Cir. 2008) (rejecting RFRA-based challenge to permit process under Eagle Protection Act); United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) (per curiam) (same); United States v. Hugs, 109 F.3d 1375, 1378–79 (9th Cir. 1997) (per curiam) (rejecting Free Exercise Clause–based facial challenge to Eagle Protection Act); United States v. Top Sky, 547 F.2d 486 (9th Cir. 1976) (per curiam) (rejecting Free Exercise challenge); see generally Matthew Perkins, The Federal Indian Trust Doctrine and the Bald and Golden Eagle Protection Act: Could Application of the Doctrine Alter the Outcome in U.S. v. Hugs?, 30 Envtl. L. 701 (2000).

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Indian tribes.”294 To implement that provision, the Secretary issues permits for the taking and possession of eagles and eagle parts.295 Only members of federally recognized Indian tribes are eligible for such permits. Federal courts of appeal have split on the question of whether that limitation violates the Religious Freedom Restoration Act.296 The Ninth and Eleventh Circuits have held that it does not,297 while the Tenth Circuit has held that it does.298 The federal circuit court decisions have prompted commentary on the constitutionality of the permitting system, and particularly its limitation of permits to members of federally recognized tribes.299 7. Migratory Bird Treaty Act The Migratory Bird Treaty Act (MBTA)300 implements several international treaties by generally prohibiting the taking, possessing, or selling of migratory birds and their parts except in accordance with regulations of the Secretary of the Interior.301 The MBTA specifically provides that the Secretary of the Interior may adopt regulations allowing Alaska Natives to take migratory birds for essential subsistence needs.302 The Secretary has also issued rules governing

16 U.S.C. § 668a.

294

50 C.F.R. § 22.22.

295

42 U.S.C. §§ 2000bb–2000bb‑4.

296

United States v. Antoine, 318 F.3d 919, 922–24 (9th Cir. 2003) (limiting permits to members of federally recognized tribes did not violate Religious Freedom Restoration Act); Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000) (per curiam) (limiting permits to members of federally recognized tribes did not violate Religious Freedom Restoration Act; regulation advanced compelling governmental interest through least restrictive means); see United States v. Vasquez-Ramos, 531 F.3d 987, 990–91 (9th Cir. 2008) (per curiam) (government has a compelling interest in eagle protection even though the bald eagle has been removed from Endangered Species List; Antoine remains binding circuit precedent); see also United States v. Winddancer, 435 F. Supp. 2d 687, 698 (M.D. Tenn. 2006) (rejecting Religious Freedom Restoration Act challenge to limiting eagle parts possession to members of federally recognized tribes; “[w]ere the BGEPA to allow all persons to possess the eagle parts for any religious use, it would create severe difficulties in enforcing poaching laws, because it is (1) very rare to catch poachers in the act of poaching, and (2) nearly impossible to determine whether the birds were poached or not, when confiscated”). 297

298 United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) (en banc) (limiting permits to members of federally recognized tribes violated Religious Freedom Restoration Act unless government could show that limitation was least restrictive means of advancing government’s interests in preserving eagle populations and protecting tribal culture). 299 Kevin J. Worthen, Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience, 76 U. Colo. L. Rev 989 (2005); James R. Dalton, Comment, There Is Nothing Light About Feathers: Finding Form in the Jurisprudence of Native American Religious Exemptions, 2005 B.Y.U. L. Rev. 1575; see Roberto Iraola, The Bald and Golden Eagle Protection Act, 68 Alb. L. Rev. 973 (2005) (discussing BGEPA generally, including Religious Freedom Restoration Act–based challenges).

16 U.S.C. §§ 703–712.

300

Id. § 703; see generally Andrus v. Allard, 444 U.S. 51 (1979) (upholding constitutionality of regulations forbidding sale of Indian artifacts containing feathers from birds legally taken before MBTA and BGEPA were enacted); 50 C.F.R. pts. 20 (migratory bird hunting), 21 (migratory bird permits). Part 22 of Title 50 C.F.R., governing eagle permits, was adopted under the authority of the BGEPA, as well as the MBTA. 301

16 U.S.C. § 712; see 50 C.F.R. pt. 92; 73 Fed. Reg. 13,788 (Mar. 14, 2008).

302

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the hunting of migratory birds by tribal members in other places,303 apparently under the general regulatory authority of the MBTA.304 An informal policy of the United States Department of the Interior allows members of federally recognized tribes to possess migratory birds and feathers for their own use without a permit.305 Federal courts have issued inconsistent decisions on whether Indians with treaty hunting rights can be prosecuted under the MBTA.306 Defenses based on the First Amendment and the Religious Freedom Restoration Act have consistently failed, however.307 C. Lacey Act The Lacey Act308 prohibits certain activities in connection with fish or wildlife taken or possessed in violation of state, federal, or tribal law.309 A state law can be the basis for a Lacey Act prosecution only where it is not preempted by federal law. Thus, where the defendant is a treaty Indian and the predicate law is a state law, the prosecutor must show that the state law is reasonable and necessary for conservation.310 The prosecution may meet that burden by showing that the defendant’s tribe has adopted a regulation similar to the state regulation at issue.311 The prosecutor need not make a “conservation necessity” showing where the predicate law is a federal law.312

303 50 C.F.R. § 20.110; see, e.g., 72 Fed. Reg. 58,452 (Oct. 15, 2007) (2007–08 regulations for hunting by certain tribes); 50 Fed. Reg. 23,459, 23,467–468 (June 4, 1985) (guidelines for tribal regulations).

16 U.S.C. § 704.

304

See United States v. Eagleboy, 200 F.3d 1137 (8th Cir. 1999) (rejecting assertion that policy amounted to race discrimination); United States v. Winddancer, 435 F. Supp. 2d 687, 694 (M.D. Tenn. 2006) (rejecting non-tribal-member defendant’s assertion that policy should be expanded to apply to him). 305

306 Compare United States v. Dion, 752 F.2d 1261, 1265 (8th Cir. 1985) (en banc) (Indians selling feathers and carcasses could be prosecuted under the MBTA because the defendants’ treaty hunting right did not extend to commercial activity), aff’d on other grounds, 476 U.S. 734 (1986), with United States v. Bresette, 761 F. Supp. 658 (D. Minn. 1991) (Indians selling feathers could not be prosecuted under MBTA because the defendants’ treaty hunting right did extend to commercial activity and Congress did not intend by enacting MBTA to abrogate the treaty); see also United States v. Cutler, 37 F. Supp. 724, 725 (D. Idaho 1941) (Indian exercising on-reservation treaty hunting right could not be prosecuted under MBTA). 307 United States v. Tawahongva, 456 F. Supp. 2d 1120 (D. Ariz. 2006) (rejecting as-applied challenge under Free Exercise Clause to the MBTA on standing grounds because Indian defendant failed to seek a permit, and rejecting challenge under Religious Freedom Restoration Act to prosecution under the MBTA because defendant failed to demonstrate a substantial burden on his personal free exercise of his religion); United States v. Winddancer, 435 F. Supp. 2d 687, 694 (M.D. Tenn. 2006) (rejecting as-applied challenge under Religious Freedom Restoration Act to the MBTA on standing grounds because non-tribal-member defendant failed to seek a permit, and rejecting facial challenge on the merits).

16 U.S.C. §§ 3371–3378.

308

Id. § 3372.

309

See United States v. Williams, 898 F.2d 727, 729 (9th Cir. 1990); United States v. Sohappy, 770 F.2d 816, 823–25 (9th Cir. 1985). 310

311

United States v. Williams, 898 F.2d 727, 729–30 (9th Cir. 1990).

United States v. Eberhardt, 789 F.2d 1354, 1362 (9th Cir. 1986) (predicate law was regulation adopted under Bureau of Indian Affairs’ management authority). 312

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Where the predicate law is a tribal law, it can be enforced only within Indian country as defined in 18 U.S.C. § 1151.313 The Ninth Circuit has held that off-reservation Indian communities on land held in trust by the United States were “Indian country” for purposes of a Lacey Act prosecution based on tribal law.314 Though the Lacey Act authorizes federal penalties against tribal members who violate their own tribe’s regulations, it is unlikely that Congress intended to create a federal mechanism for enforcing tribal fish and wildlife laws against non-Indians.315 D. Alaska National Interest Lands Conservation Act In Alaska, the United States did not enter into treaties with indigenous groups. Instead, the government has defined its relationship with those groups primarily through congressional enactments. The principal enactment today is the Alaska Native Claims Settlement Act (ANCSA),316 which Congress enacted in 1971. In ANCSA, Congress extinguished “any aboriginal hunting and fishing rights that may exist” in Alaska,317 but ANCSA envisioned that Congress would enact further legislation concerning the use of federal public lands in the state.318 That legislation, completed in 1980, is the Alaska National Interest Lands Conservation Act (ANILCA).319 Among other things, ANILCA gives rural Alaskans priority in hunting and fishing for subsistence on federal public lands in Alaska, in part to preserve subsistence opportunities for rural Alaska Natives.320 Title VII of ANILCA, which has been the subject of nearly continuous litigation since the mid1980s,321 requires the United States Secretaries of the Interior and Agriculture to implement a rural subsistence preference program, but it defers to state regulatory authority if the State of Alaska enacts and implements a program consistent with ANILCA. Alaska did enact such a program, but in 1989 the

16 U.S.C. § 3371(c).

313

United States v. Sohappy, 770 F.2d 816, 822–23 (9th Cir. 1985).

314

See 16 U.S.C. § 3378(c)(3) (“[N]othing in this Act shall be construed as . . . enlarging or diminishing the authority of any State or Indian tribe to regulate the activities of persons within Indian reservations”); United States v. Sohappy, 770 F.2d 816, 819–22 (9th Cir. 1985). 315

Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as amended at 43 U.S.C. §§ 1601–1629e).

316

43 U.S.C. § 1603(b).

317

43 U.S.C. § 1616(d)(2)(D).

318

Pub. L. No. 96‑487, 94 Stat. 2371 (1980) (codified as amended at 16 U.S.C. §§ 3101–3233).

319

16 U.S.C. §§ 3111–3126; see generally Sophie Theriault et al., The Legal Protection of Subsistence: A Prerequisite of Food Security for the Inuit of Alaska, 22 Alaska L. Rev. 35 (2005) (describing statute’s operation and suggesting improvements for enhancing Inuit “food security”). 320

321 See, e.g., Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988) (state definition of “rural” not consistent with ANILCA).

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Alaska Supreme Court ruled that it was unconstitutional under the Alaska State Constitution.322 After Alaska’s program was invalidated, the United States Departments of the Interior and Agriculture assumed responsibility for implementing the rural subsistence preference provisions of ANILCA.323 Despite repeated challenges,324 federal regulations continue to govern subsistence fishing and hunting on federal public lands and waters in Alaska.325 Efforts to amend the Alaska Constitution so as to enable the state to assume regulatory authority have been unsuccessful. Advocates for Alaska Natives are seeking to amend ANCSA so as to provide for Alaska Native “co-management” of certain lands subject to the subsistence preference.

McDowell v. State, 785 P.2d 1 (Alaska 1989).

322

See 55 Fed. Reg. 27,114 (June 29, 1990) (temporary regulations); 57 Fed. Reg. 22,940 (May 29, 1992) (permanent regulations). 323

324 See John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc); Ninilchik Traditional Council v. United States, 227 F.3d 1186 (9th Cir. 2000); Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999); Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995); Totemoff v. State, 905 P.2d 954 (Alaska 1995).

See 73 Fed. Reg. 19,433 (Apr. 10, 2008); 36 C.F.R. pt. 242; 50 C.F.R. pt. 100.

325

Environmental Regulation

427

Chapter 10 Environmental Regulation

Beginning with the Clean Air Act (CAA) in 1963, Congress enacted a series of comprehensive statutes designed to clean up and protect the environment. Environmental statutes administered by the United States Environmental Protection Agency (EPA) include the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), the Resource Conservation and Recovery Act (RCRA), the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The Hazardous Materials Transportation Act (HMTA) is administered by the Department of Transportation, and the Surface Mining Control and Reclamation Act (SMCRA) is administered through the Office of Surface Mining Reclamation and Enforcement within the Department of Interior. As a general matter, the major federal environmental laws are based on a model of “cooperative federalism.” They establish certain federal environmental quality standards as a floor or baseline. A state then may have the option to assume regulation of matters covered under those acts by submit­ting an implementation plan that includes standards at least as stringent as the federal ones to the involved federal agency for approval. Once the state program is approved, the state assumes primary enforcement authority, or “primacy,” and implements its own program in lieu of the federal agency implementing the federal program.



Pub. L. No. 88-206, 77 Stat. 392 (1963) (codified as amended at 42 U.S.C. §§ 7401–7671q).



Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33 U.S.C. §§ 1251–1387).



Pub. L. No. 93-523, 88 Stat. 1660 (1974) (codified as amended at 42 U.S.C. §§ 300f–300j-26).



Pub. L. No. 94-580, 90 Stat. 2796 (1976) (codified as amended at 42 U.S.C. §§ 6901–6979b).



Pub. L. No. 92-516, 86 Stat. 973 (1972) (codified as amended at 7 U.S.C. §§ 136–136y).



Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601–9675).



Pub. L. No. 103-272, 108 Stat. 759 (1994) (codified as amended at 49 U.S.C. §§ 5101–5127).

      

Pub. L. No. 95-87, 91 Stat. 445 (1977) (codified as amended at 30 U.S.C. §§ 1201, 1202, 1211, 1221– 1230a, 1231–1243, 1251–1279, 1281, 1291–1309, 1311–1316, 1321–1328). 

427

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In the 1980s and early 1990s, most of these federal environmental laws were amended to allow tribes to assume implementation responsibility. Because the relevant provisions often are worded awkwardly and because each statute defines somewhat differently the conditions under which pri­macy may be granted to tribes, questions exist over the appropriate alloca­tion of state and tribal regulatory authority. This jurisdictional complexity is compounded by the fact that all states and many tribes address environmen­tal concerns through laws that operate independently of primacy determina­tions and, at least arguably, concurrently with the federal statutes. The applicability of these state and tribal laws must be determined by reference to ordinary legal standards for determining the scope of civil-regulatory jurisdiction within Indian country.10 I. TRIBAL AND STATE PROGRAMS A. Tribal Regulatory Authority Relying on their inherent powers, an increasing number of Indian tribes are enacting programs to regulate reservation environmental quality. As with other types of civil regulation, the predominant issue is whether tribal authority extends to nonmember activity. This issue is discussed generally in Chapter 5, but it has special relevance where environmental regula­tion is involved not only because tribal authority, if present, allows the tribe to regulate directly but also because it may form the predicate for regulatory primacy under federal environmental statutes.

 See, e.g., Pub. L. No. 100-4, § 506, 101 Stat. 76 (1987) (codified as amended at 33 U.S.C. § 1377) (CWA); Pub. L. No. 99-339, § 302(a), 100 Stat. 665 (1986) (codified at 42 U.S.C. 300j-11) (SDWA); Pub. L. No. 1-549, §§ 107(d), 108(I), 104 Stat. 2464, 2467 (1990) (codified at 42 U.S.C. § 7601(d)) (CAA); Pub. L. No. 96-510, § 126 (1980), and Pub. L. No. 99-499, § 207(e), 100 Stat. 1706 (1986) (codified at 42 U.S.C. § 9626) (CERCLA). 10 The subject of environmental regulation within Indian reservations has generated considerable commentary. E.g., H. Scott Althouse, Idaho Nibbles at Montana: Carving Out a Third Exception for Tribal Jurisdiction Over Environmental and Natural Resource Management, 31 Envtl. L. 721 (2001); Tim De Young and William C. Scott, Environmental Protection in Indian Country, 15-SUM Nat. Resources & Env’t 20 (2000); Dean B. Suagee, Symposium: Environmental Justice: Mobilizing for the 21st Century: The Indian Country Environmental Justice Clinic: From Vision to Reality, 23 Vt. L. Rev. 567 (1999); Regina Cutler, To Clear the Muddy Waters: Tribal Regulatory Authority Under Section 518 of the Clean Water Act, 29 Envtl. L. 721 (1999); Andrea K. Leisy, Inherent Tribal Sovereignty and the Clean Water Act: The Effect of Tribal Water Quality Standards on Non-Indian Lands Located Both Within and Outside Reservation Boundaries, 29 Golden Gate U. L. Rev. 139 (1999); Dean B. Suagee and Patrick A. Parenteau, Fashioning a Comprehensive Environmental Review Code for Tribal Governments: Institutions and Processes, 21 Am. Ind. L. Rev. 297 (1997); Jane Marx, Jana L. Walker and Susan M. Williams, Tribal Jurisdiction Over Reservation Water Quality and Quantity, 43 S.D. L. Rev. 315 (1998); Kevin Gover and James B. Cooney, Cooperation Between Tribes and States in Protect­ing the Environment, 10 WTR–Nat. Resources & Env’t 35 (1996); Dean B. Suagee and Christopher T. Stearns, Indigenous Self-Government, Environmental Protection, and the Consent of the Governed: A Tribal Environmental Review Process, 5 Colo. J. Int’l Envtl. L. & Pol’y 59 (1994); Nancy B. Collins and Andrea Hall, Nuclear Waste in Indian Country: A Paradoxical Trade, 12 Law & Inequal. 267 (1994); Walter E. Stern, Envi­ronmental Compliance Considerations for Developers of Indian Lands, 28 Land & Water L. Rev. 77 (1993); Timothy R. Malone and Bradley B. Furber, Regulatory Jurisdiction Over Nonmembers’ Land Within Indian Reservations, 7 SPR–Nat. Resources & Env’t 14 (1993).

Environmental Regulation

429

The seminal decision for land use regulation purposes is Montana v. United States,11 where the Supreme Court concluded that the inherent sovereign powers of a tribe presumptively did not extend to regulation of nonmember hunting and fishing on nontribal land.12 The Court, however, identified two possible exceptions to this general rule that have factored into subsequent decisions addressing the scope of inherent tribal authority in the environmental context. The first, or “consent,” exception provides that tribes “may regulate . . . the activities of nonmembers who enter into consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”13 The second Montana exception provides that “[a] tribe may also retain inherent power to exercise civil authority over the conduct of nonmembers on fee lands within its reserva­tion when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.”14 Since tribes typically can control, and therefore condition, access to or use of their own lands, the second exception has become the focal point of litiga­tion over the authority of tribes to regulate nonmember activity. In the years immediately following Montana, two federal courts of appeals relied on its exceptions to recognize tribal authority to regulate nonmember conduct in a land use context. In Confederated Salish and Kootenai Tribes v. Namen,15 the Ninth Circuit Court of Appeals held that the plaintiff tribes retained title to the bed and banks of the south half of Flathead Lake16 and that as a consequence, the first Montana exception provided them with the authority to enforce a shoreline protection ordinance against nonmembers erecting docks or other structures below the high-water mark of the lake.17 The Namen court suggested that tribal authority might be found also under the second exception,18 but since that discussion took place in the context of nonmembers’ use of tribal trust land, it was unnec­essary. The Tenth Circuit Court of Appeals, in Knight v. Shoshone and Arapahoe Tribes,19 sustained a lower court’s determination that the tribes had jurisdiction to impose their zoning and land use ordinance over fee lands on the reservation.20 The appeals court

11

450 U.S. 544 (1981). Id. at 565.

12

Id.

13

Id. at 566.

14

665 F.2d 951 (9th Cir. 1982).

15

Id. at 962.

16

Id. at 964.

17

Id.

18

670 F.2d 900 (10th Cir. 1982).

19

Id. at 903.

20

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based its determination primarily on the district court’s finding that the tribes had a “significant and substantial interest” in the involved lands and on the fact that neither Wyoming nor any of its political subdivisions had attempted to exercise any form of land use control over the involved lands.21 The validity of the holding in Knight, to the extent grounded in the second Montana exception, was brought into doubt by Brendale v. Confederated Tribes and Bands of Yakima Indian Nation,22 a splintered yet important explication of the second Montana exception. There, a majority of the Supreme Court concluded that the Yakima Nation’s inherent authority to impose its zon­ing and planning ordinance did not extend to certain non-member-owned fee lands within the reservation.23 Four Justices would never have found such authority and instead would have required the tribes to resort to federal and state remedies to protect tribal environmental or other interests.24 Two other Justices concluded that such authority should exist only where nonmem­ber lands formed a de minimis component of a geographically distinct portion of the reservation containing resources of particular significance to the tribes, such as areas of “cultural and religious significance” or natural areas “reserved for the exclusive benefit of the Tribe.”25 Under either approach, therefore, the practical significance of the second exception appeared quite limited. After Brendale, lower federal courts generally were reluctant to find inher­ent tribal authority over nonmember conduct on nontribal lands under the second Montana exception. For example, on remand from the Supreme Court’s decision in South Dakota v. Bourland,26 the Eighth Circuit Court of Appeals con­cluded that various incidents associated with nonmember hunting on nontribal land, while “undoubtedly . . . vexatious to the individual Indians affected[,] . . . [did] not amount to a direct effect on the political integrity, the economic secu­rity, or the health and welfare of the tribe as a whole.”27 Similarly, in Lower Brule Sioux Tribe v. South Dakota28 the Eighth Circuit Court of Appeals held the tribe’s allega­tions that its inability to regulate hunting and fishing by nonmembers would cause a loss of revenue, adversely affect the

21 Id. In another case involving the Montana exceptions, Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1982), the Ninth Circuit found that a tribe had inherent authority to enforce its safety and building regulations against a nonmember operating a grocery store on fee land. Although the court concluded that tribal authority existed under both Montana exceptions, id. at 366, it did not indicate what evidence it relied upon in reaching that conclusion.

492 U.S. 408 (1989).

22

Id. at 432–33 (White, J.).

23

Id. at 430–31.

24

Id. at 441–42 (Stevens, J.).

25

508 U.S. 679 (1993).

26

South Dakota v. Bourland, 39 F.3d 868, 870 n.5 (8th Cir. 1994).

27

917 F. Supp. 1434 (D.S.D. 1996), aff’d, 104 F.3d 1017 (8th Cir. 1997).

28

Environmental Regulation

431

involved population of wildlife, and discourage hunting and fishing on the reservation were both unsubstantiated and ultimately insufficient to serve as a basis for tribal authority.29 In a third post-Brendale case, Yankton Sioux Tribe v. Southern Missouri Waste Management District,30 a district court addressed, among other things,31 the issue whether the tribe’s inherent authority extended to a municipal solid waste landfill built on fee land within the exterior boundaries of the reserva­tion. On that question the court held that the tribe had “failed to produce suffi­cient evidence” regarding any adverse effect on the “political integrity, economic security, or health and welfare of the Tribe” upon which it could base a finding of regulatory authority.32 The tribe did not cross-appeal from that por­tion of the district court’s decision.33 Standing contrary to this trend are two appellate decisions finding the second exception applicable to tribal assertions of inherent authority to establish water quality standards for reservation waters. In Montana v. USEPA,34 the Ninth Circuit found the second exception satisfied based upon “generalized findings” of potential environmental harm to tribal waters that could be caused by nonmember activities. The Seventh Circuit reached a similar conclusion in Wisconsin v. EPA.35 The analytical approach in these post-Brendale decisions, which has focused on the practical impact of the activity sought to be regulated, arguably contrasts with the later-decided Strate v. A-1 Contractors.36 Although Strate arose from a challenge to tribal adjudicatory jurisdiction over a reservation motor vehicle accident between nonmembers on a state highway, the Court’s analysis was based on application of Montana civil-regulatory standards37 and eschewed a test grounded simply in an assessment of the effect of a particular activity. The Court instead examined whether the exercise of state jurisdiction over the activity would interfere with “ ‘the right of reservation Indians to make their own laws and be ruled by them’ ”38 and therefore would be preempted.

104 F.3d at 1023–24.

29

890 F. Supp. 878 (D.S.D. 1995), aff’d on other grounds, 99 F.3d 1439 (8th Cir. 1996), rev’d on other grounds, 522 U.S. 329 (1998). 30

31 It also held that the Yankton Sioux Reservation had not been disestablished or diminished. 99 F.3d at 1457. The Supreme Court, however, reached the opposite conclusion on that point. South Dakota v. Yank­ ton Sioux Tribe, 522 U.S. 329 (1998).

890 F. Supp. at 888, citing Brendale, 492 U.S. at 424.

32

99 F.3d at 1442.

33

137 F.3d 1135 (9th Cir. 1998).

34

266 F.3d 741 (7th Cir. 2001).

35

520 U.S. 438 (1997).

36

Id. at 453 (“[a]s to nonmembers, . . . a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction”). 37

Id. at 459 (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)).

38

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American Indian Law Deskbook, Fourth Edition

Conse­quently, even if the impact on tribal interests of the conduct sought to be regulated is “demonstrably serious,” absent a federal statute or treaty autho­ rizing tribal regulation of nonmember conduct, state law supplies the rule of decision unless application of that law so infringes on tribal self-governance powers as to be preempted. The reasoning in Strate appears consistent with Justice White’s opinion in Brendale, since it requires tribes and tribal mem­ bers to utilize applicable state or federal law and processes to vindicate their interests with respect to nonmember conduct. In several subsequent decisions the Supreme Court confirmed the narrowness of the scope of inherent tribal authority with respect to nonmembers: Atkinson Trading Co. v. Shirley,39 Nevada v. Hicks,40 and Plains Commerce Bank v. Long Family Land and Cattle Co.41 Like Strate, these decisions focused on whether particular tribal regulation was essential to maintenance of tribal self-governance. In Atkinson, the Court concluded that imposition of a hotel occupancy tax on nonmember guests of a nonmember business did not meet this standard, rejecting the argument that the tax was necessary to compensate the tribe for the provision of governmental services with the observation that “unless the drain of the nonmember’s conduct upon tribal services and resources was so severe that it actually ‘imperil[s]’ the political integrity of the Indian tribe,” the second Montana exception is unavailable.42 “The exception,” the Court added, “is only triggered by nonmember conduct that threatens the Indian tribe” and “does not broadly permit the exercise of civil authority whenever it might be considered ‘necessary’ to self-government.”43 The Court continued on to hold that, whatever the precise effect of the nonmember business operations on the surrounding tribal lands, those operations did “not endanger the [tribe’s] political integrity.”44 In Hicks, which involved the question whether tribal court jurisdiction existed over claims against state fish and game officers arising from an onreservation search of a tribal member’s residence with respect to a possible off-reservation hunting violation, the Court similarly reasoned that Montana stands for the general principle that “[t]ribal assertion of regulatory authority over nonmembers must be connected to th[e] right of the Indians to make their own laws and be governed by them.”45 It relied heavily on a preemption

532 U.S. 645 (2001).

39

533 U.S. 353 (2001).

40

128 S. Ct. 2709 (2008).

41

532 U.S. at 657 n.12.

42

Id.

43

Id. at 658–59.

44

533 U.S. at 361.

45

Environmental Regulation

433

case—Washington v. Confederated Tribes of Colville Reserv.46—to conclude that application of state law was not foreclosed by federal law and hence not an impermissible infringement on tribal self-governance.47 Hicks, like Brendale and Strate, suggested further that the existence of adequate federal or state remedies to redress the perceived wrong militated against the presence of inherent authority.48 The most recent treatment of Montana’s exceptions—Plains Commerce— arose in the context of a challenge to tribal court jurisdiction over a tribal law–based discrimination claim against a bank concerning the sale of reservation land to a corporation owned by tribal members. The Supreme Court reaffirmed the Strate rule that adjudicatory jurisdiction cannot exceed regulatory authority49 and concluded that such authority was lacking generally because the tribe possessed no “residual sovereignty”50 to regulate the bank’s right to sell its land. It reasoned that the sale did not infringe impermissibly on the tribe’s internal self-governance, since “[a]ny direct harm to its political integrity that the tribe sustains as a result of fee land sale is sustained at the point the land passes from Indian to non-Indian hands” when “the tribe and its members lose the ability to use the land for their purposes.”51 The first Montana exception was thus inapplicable—given the fact that there was no inherent authority to consent to.52 The Court found the second exception equally inapplicable because, applying the standard in Justice White’s Brendale opinion, the involved nonmember conduct “must do more than injure the tribe, it must ‘imperil the subsistence’ of the tribal community”53—i.e., the exercise of tribal power “ ‘must be necessary to avert catastrophic consequences.’ ”54 The “catastrophic” standard becomes even higher if, as Justice White’s opinion also stated, the availability of ameliorating federal or state regulatory regulatory mechanisms must be considered.

447 U.S. 134 (1980).

46

533 U.S. at 362–64; see also id. at 364 (“tribal authority to regulate state officers in executing process related to the violation, off-reservation, of state laws is not essential to tribal self-government or internal relations—to ‘the right to make laws and be governed by them’ ”). 47

48 Id. at 374 (“[s]tate officials operating on a reservation to investigate off-reservation violations of state law are properly held accountable for tortious conduct and civil rights violations in either state or federal court, but not in tribal court”).

128 S. Ct. at 2720.

49

Id. at 2718.

50

Id. at 2723–24.

51

52 Id. at 2726 (tribe lost “authority to restrain the sale of fee simple parcels” as a result of allotmentera statutes, and “[n]othing in Montana gives it back”).

Id.

53

Id. (quoting Cohen’s Handbook of Federal Indian Law § 4.02[3][c], at 232 n.220 (Nell Newton et al. eds. 2005)). 54

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American Indian Law Deskbook, Fourth Edition

B. State Regulatory Authority in Indian Country Within or without Indian country, Congress may preempt state laws by explicitly articulating its intention to do so.55 Nonetheless, almost all federal environmental laws expressly disclaim a preemptive intent, thereby recog­ nizing the authority of states to enact standards or requirements equivalent to or more stringent than those required by the federal government.56 Differ­ ent preemption standards apply with respect to Indian country. Under those standards, the reviewing court must engage in a “particularized inquiry into the nature of the state, federal, and tribal interests at stake.”57 In such a case, “[s]tate jurisdiction is pre‑empted by the operation of federal law if it inter­ feres or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”58 Perhaps the most relevant case with respect to state authority over envi­ ronmental matters on Indian reservations is New Mexico v. Mescalero Apache Tribe,59 where the Supreme Court held that New Mexico’s laws purporting to regulate non-Indian hunting and fishing on the Mescalero Apache Reservation were preempted by the tribe’s federally approved, comprehensive scheme for managing the reservation’s fish and wildlife resources.60 Critical to the Supreme Court’s reasoning was the fact that the state and tribal regulatory schemes could not in that instance operate concurrently61 and that New Mexico had not identified sufficient interests in the reservation’s fish and wildlife resources to justify the imposition of regulatory authority.62 Even more impor­tant to the outcome was the fact that the Mescalero Apache Reservation con­sists almost wholly of tribal lands and that the regulated activity would have taken place on those lands.63 The importance in preemption analysis of the location of the regulated reservation activity is reflected in Washington Department of Ecology v. EPA.64

55 See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 56 See, e.g., 33 U.S.C. § 1370 (CWA); 42 U.S.C. § 9614 (CERCLA); 42 U.S.C. § 7416 (CAA); 42 U.S.C. § 6929 (RCRA); 42 U.S.C. § 300g–3(e) (SDWA). 57 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333 (1983) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980)).

Id. at 334.

58

462 U.S. 324 (1983).

59

Id. at 345.

60

Id. at 339.

61

Id. at 342–43.

62

Id. at 327 (“[t]he . . . reservation comprises more than 460,000 acres, of which the Tribe owns all but 193.85 acres”). 63

752 F.2d 1465 (9th Cir. 1985).

64

Environmental Regulation

435

There, Washington applied to the EPA for approval under RCRA of its hazardous waste program, including within the scope of its application Indian activities on trust and tribal lands.65 The EPA refused to delegate RCRA authority to the state,66 and its decision was upheld on appeal. In so doing, the court of appeals discussed the general principles regarding state regulatory authority over Indian activities on trust lands67 and held that the EPA’s construction of RCRA as not expanding the state’s authority was reasonable and entitled to deference.68 However, the court was careful to explain that its decision only pertained to the EPA’s decision not to allow the State to exercise authority under RCRA with respect to Indian activities on trust lands.69 Consequently, the court left open the questions whether the tribe had inherent authority over nonmembers or the state had regulatory authority over nonmembers on fee land. The fact that the regulated activity takes place on tribal land nevertheless need not be dispositive of the jurisdictional issue. The nature of the regulation and the attendant regulatory schemes are also important. In California v. Celtor Chemical Corp.70 California brought a cost-recovery action under both CERCLA and state law against the previous owner of an ore-processing plant located within the boundaries of the Hoopa Valley Reservation. The defendant claimed that the state law was preempted by CERCLA when the cleanup occurred on Indian land. The district court disagreed and held that the state law claim was not preempted, since the defendant demonstrated neither that the State’s par­ ticipation in the cleanup was incompatible with CERCLA nor that application of state law infringed on tribal interests any more than the comparable federal regulation under CERCLA.71 The district court’s decision makes practical sense because the state activity—the cleanup—had occurred already without apparent tribal opposition and California was seeking merely to recover the costs attendant to that activity from a wrongdoer. Celtor Chemical thus exemplifies the kind of “particularized” inquiry directed by Mescalero Apache Tribe and White

Id. at 1469.

65

Notice of Approval, Washington, Phase I and Phase II, Components A and B, Interim Authorization of the State Hazardous Waste Management Program, 48 Fed. Reg. 34,954 (Aug. 2, 1983). 66

753 F.2d at 1469–72.

67

Id. at 1469 (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). Congress, of course, can authorize the exercise of state authority generally or with respect to certain matters that may affect EPA’s authority to use reservation status as a basis for denying a state’s application for regulatory primacy under a federal environmental statute. See Maine v. Johnson, 498 F.3d 37, 44–46 (1st Cir. 2007) (EPA properly extended primacy to state with regard to discharge permitting authority given the jurisdictional allocation made under the Maine Indian Claims Settlement Act but erred in excluding tribal lands from its primacy determination). 68

Id. at 1467–68.

69

901 F. Supp. 1481 (N.D. Cal. 1995).

70

Id. at 1490–91.

71

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American Indian Law Deskbook, Fourth Edition

Mountain Apache Tribe v. Bracker.72 Other instances in which state regulation of on-reservation tribal land activities may arise are where an on‑reserva­tion activity has potentially serious off‑reservation effects.73 Less troublesome are cases where the state regulated activity involves nonmember conduct on nontribal land. In Lower Brule Sioux Tribe v. South Dakota,74 the Eighth Circuit Court of Appeals upheld South Dakota’s assertion of authority to regulate nonmember hunting and fishing on fee lands. The court’s holding was based on three related conclusions: The federal government did not comprehensively regulate directly or through the tribe hunting and fishing on the involved lands; the tribe lacked the authority to do so; and, in any event, regulation by the state would not frustrate any federal interest in fish and wild­life resources on the reservation.75 Indeed, it appears clear the balance of state, federal, and tribal interests usually will tip in favor of the conclusion that states have authority to regulate nonmember activity on nontribal lands.76 II. EPA-ADMINISTERED FEDERAL REGULATORY PROGRAMS A. EPA’s Implementation of Federal Environmental Laws on Indian Reservations 1. Procedure for tribal program approval EPA’s procedural approach toward integrating Indian tribes into the regulatory structure of the various environmental laws allowing tribal implementation has evolved over time. As a general matter, when a state seeks to assume program authority, or “primacy,” over a particular regula­tory program it must go through a formal application, public comment, and decision-making

448 U.S. 136, 145 (1980).

72

E.g. Rice v. Rehner, 463 U.S. 713, 724 (1983); Mescalero Apache Tribe, 462 U.S. at 336; Lower Brule Sioux Tribe v. South Dakota, 917 F. Supp. 1434, 1451 (D.S.D. 1996), aff’d, 104 F.3d 1017 (8th Cir. 1997); see also Notice of Denial, Washington Department of Ecology, Underground Injection Con­trol Program for Indian Lands, 53 Fed. Reg. 43,080, 43,082 (Oct. 25, 1988) (EPA denied application by State of Washington to administer the Underground Injection Control program on Indian lands, in part because its application failed to analyze possible spillover effects); see generally Jeffrey W. Walbridge, State Minimum Environmental Standards on the Native American Reservation, 68 S. Cal. L. Rev. 1075 (1995); Roger Romulus Martella, Jr., Note, “Not in My State’s Indian Reservation”—A Legislative Fix to Close an Environmental Law Loophole, 47 Vand. L. Rev. 1863 (1994). 73

104 F.3d 1017 (8th Cir. 1997).

74

Id. at 1023–24.

75

See County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 258 (1992) (“[t]his Court’s more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non‑Indians located on reservation lands”). 76

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process.77 The general criteria the EPA examines are the state’s legal authority78 and technical capability79 to implement the pro­posed program, and whether the program meets minimum federal stan­dards for stringency.80 Each statute generally provides for record review in a federal court of appeals of EPA program approval or disapproval decisions.81 The tribal program assumption provisions of the CWA, CAA, and SDWA in general mirror the provisions in those statutes providing for state primacy, although the former more explicitly address the issue of jurisdiction.82 Because of this, the EPA, early in the process of implementing the “treatment as a state” programs, established a prequalification process focusing largely on jurisdiction. Under that process tribes were required to demonstrate their jurisdiction before they were eligible to submit applications for primacy with respect to specific regulatory programs.83 In 1994, the EPA revised its general approach to tribal program approval by abolishing, in all but one situation, the requirement that Indian tribes secure a jurisdictional determination.84 Under the EPA’s revised procedures that determination will be made as part

77 E.g., 40 C.F.R. § 123.21–.34 (CWA National Pollution Discharge Elimination (NPDES) Program); 40 C.F.R. § 142.10–.19 (SDWA Public Water System (PWS) Program); 40 C.F.R. § 145.31–.34 (SDWA Under­ground Injection Control (UIC) Program). 78 E.g., 40 C.F.R. § 123.23 (CWA NPDES Program); 40 C.F.R. § 142.11(6)(I) (SDWA PWS Program); 40 C.F.R. § 145.24 (SDWA UIC Program). 79 E.g., 40 C.F.R. § 123.22 (CWA NPDES Program); 40 C.F.R. § 142.10 (SDWA PWS Program); 40 C.F.R. § 145.12 (SDWA UIC Program).

E.g., 33 U.S.C. § 1342(b) (CWA); 42 U.S.C. § 300h(b) (SDWA).

80

See, e.g., 33 U.S.C. § 1369(b)(1)(D) (CWA); 42 U.S.C. § 300j-7(a)(2) (SDWA).

81

82 The United States Government Accountability Office issued a report in October 2005 describing the status of the TAS (Treatment-as-a-State) process. U.S. Gov’t Accountability Office, Indian Tribes—EPA Should Reduce the Review Time for Tribal Requests to Manage Environmental Programs (Oct. 2005) (GAO-0695), available at http://www.gao.gov/new.items/d0695.pdf (last visited Aug. 2, 2008). In January 2008, the EPA issued its updated strategy to improve the timeliness and effectiveness of the TAS review process in response to the report. Strategy for Reviewing Tribal Eligibility Applications to Administer EPA Regulatory Programs (Jan. 2008), available at http://www.epa.gov/tribal/pdf/strategy-for-reviewing-applications-for-tas01-23-08.pdf (last visited Jul. 31, 2008). It also warrants remembering that tribes, regardless of TAS status, may well have enforcement remedies in federal court available under the citizen suit provisions of the various EPA-administered environmental statutes and federal common law. See generally James M. Grijalva, The Tribal Sovereign as Citizen: Protecting Indian Country Health and Welfare Through Federal Environmental Citizen Suits, 12 Mich. J. Race & L. 33, 39–43, 55 (2006) (arguing that “[t]ribal citizen suits offer a measure of environmental control without putting sovereignty at stake[,]” and discussing various procedural and substantive considerations attendant to such suits); Allan Kanner, Ryan Casy, and Barrett Ristroph, New Opportunities for Native American Tribes to Pursue Environmental and Natural Resource Claims, 14 Duke Envtl. L. & Pol’y F. 155 (2003) (arguing that tribes may avail themselves of tribal courts, citizen suits authorized by the federal environmental statutes, and the common law and, further, that they can assert parens patriae authority to clean up pollution). 83 Final Rule, Amendments to Water Quality Standards Regulation That Pertain to Standards on Indian Reservations, 56 Fed. Reg. 64,876 (Dec. 12, 1991) (Water Quality Standards Final Rule). 84 Final Rule, Indian Tribes, Eligibility for Program Authorization, 59 Fed. Reg. 64,339 (Dec. 14, 1994). EPA also discontinued the use of the term “treatment as a state,” substituting in its place except where the involved statute provided otherwise the term treatment “in a manner similar to a state.” Id. at 64,343.

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of the program approval process as a whole.85 However, because the approval of a water quality standards program under section 303 of the CWA does not normally require a demonstration of jurisdiction, the prequalifica­tion process was retained in that case so the EPA could ensure that the statu­tory jurisdictional criteria are met.86 Under the EPA’s revised procedures, an Indian tribe seeking program approval under the CWA, CAA, or SDWA must demonstrate that it (1) is federally recognized and possesses a governing body carrying out substantial duties;87 (2) possesses civil-regulatory jurisdiction to carry out the functions it seeks to exercise;88 and (3) can reasonably be expected to be capable of car­rying out those functions.89 As to the first criterion, a tribe may demonstrate “federal recognition” simply by citing the list of federally recognized tribes published periodically by the Secretary of the Interior.90 A tribe may demon­strate that it exercises substantial governmental functions by showing that it is currently performing governmental functions to promote public health, safety, and welfare.91 As to the “capability” criterion, the EPA considers fac­tors such as a tribe’s previous management experience, existing environmental programs, governmental structure, relationship with regulated entities, and the capabilities of the tribal technical and administrative staff.92 The EPA’s 1994 regulatory revisions also, again with the exception of tribal applications under the water quality standards program, eliminate the initial opportunity that existed under prior regulations for other govern­ments to comment on a tribe’s assertion of jurisdiction.93 Under the water quality standards program, the EPA will continue to provide notice of a tribe’s jurisdictional assertion to all “appropriate governmental entities.”94 Otherwise, notice of a tribe’s jurisdictional assertion occurs in the context of the general program approval process, and generally is accorded to all “interested parties” through publication

Id.

85

Id. at 64,340; see also 33 U.S.C. § 1377(e)(2). 

86

59 Fed. Reg. at 64,339.

87

Id.

88

Id. Congress has created an additional requirement for Oklahoma tribes—state concurrence. Pub. L. 109-59, § 10211(b), 119 Stat. 1144, 1937 (2006). See generally Lane R. Neal, Comment, 2008 Highway Appropriations Bill Shapes Tribal Sovereignty: A Look at Oklahoma Tribes’ Ability to Set Environmental Standards in Light of Recent Federal Legislation, 32 Am. Indian L. Rev. 219 (2007–2008) (discussing the appropriations rider). 89

59 Fed. Reg. at 64,339–40.

90

Id. at 64,440.

91

Id. at 64,341.

92

Id. at 64,340.

93

40 C.F.R. § 131.8. The EPA defines the term “governmental entities” as encompassing only states, tribes, and other federal entities contiguous to the reservation. See Water Quality Standards Final Rule, supra note 83, 56 Fed. Reg. at 64,884. 94

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in the Federal Register and local newspapers.95 Comments or objections that any interested party may have with respect to an Indian tribe’s jurisdictional assertion may be raised at the time the tribe’s program application is under review.96 The EPA’s jurisdictional decision may be subject to judicial review as provided in the authorizing statute97 or, if there is no applicable judicial review provision, in an action brought under the Administrative Procedures Act.98 Finally, the EPA pre­sumes that where interested parties do not provide comments “there is no objection to the tribal applicant’s jurisdictional assertion,”99 and that juris­dictional questions decided in earlier administrative proceedings are disposi­tive in subsequent ones raising the same questions.100 2. EPA’s Indian policy and interpretation of federal Indian law The centerpiece of the EPA’s approach toward implementing federal environmental laws on Indian reservations is its 1984 Indian Policy,101 which recognizes Indian tribes as “the primary parties for setting standards, making environmental policy decisions and managing programs for reservations.”102 Pursuant to that policy, the EPA has encouraged tribal assumption of environ­ mental regulatory programs and, in the absence of an approved tribal pro­gram, will assume direct implementation and enforcement responsibility.103 While

95 E.g., 40 C.F.R. § 123.61 (notice of state program submission for approval of NPDES program pub­ lished in Federal Register and local newspapers, with comments from public to be submitted within 45 days); 40 C.F.R. § 142.13 (notice of determination of primary enforcement responsibility for public water systems program published in Federal Register and local newspapers); 40 C.F.R. § 145.31 (UIC program). 96 E.g., 40 C.F.R. § 123.61 (CWA NPDES Program); 40 C.F.R. § 142.13 (SDWA PWS Program); 40 C.F.R. § 145.31 (SDWA UIC Program). 97 See 33 U.S.C. § 1369(b)(1)(D) (action to review EPA decisions involving state NPDES programs must be filed in court of appeals within 120 days); 42 U.S.C. § 300j–7(2) (action to review EPA decisions under SDWA must be filed in court of appeals within 45 days).

5 U.S.C. §§ 701–706.

98

59 Fed. Reg. at 64,340.

99

Id.

100

Office of the Administrator, United States Environmental Protection Agency, EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984) (1984 Indian Policy), available at www.epa.gov/tribalportal/pdf/indian-policy-84.pdf (last visited Aug. 3, 2008). The policy has been reaffirmed by later EPA administrators, most recently in 2005. Sept. 26, 2005 Memo. re EPA Indian Policy, available at http://www.epa.gov/tribalportal/pdf/reaffirmation-indian-policy.pdf (last visited Aug. 4, 2008); see generally Bradford D. Cooley, Note, The Navajo Uranium Ban: Tribal Sovereignty v. National Energy Demands, 26 J. Land Resources & Envtl. L. 393, 415 (2006) (discussing the initiation of the 1984 policy, and characterizing it as laying “the groundwork for cooperation between tribal governments, Congress, and the EPA in amending federal environmental statutes to allow for tribal assumption of implementation authority”). 101

1984 Indian Policy § 2.

102

Id. § 3; see also Concept Paper: Federal, Tribal and State Roles in the Protection and Regulation of Reservations Environments 3 (Jul. 10, 1991) (Concept Paper), available at http://www.epa.gov/region4/ indian/EPAStTri_relations.pdf (last visited Aug. 4, 2008); Notice of Intent to Issue General Permit: National Pollution Discharge Elimination System (NPDES) General Permit for Activities Related to Natural Gas Production Within the Geographical Boundaries of Southern Ute Indian Reservation as Located Within the Political Boundaries of the State of Colorado, 55 Fed. Reg. 40,235–36 (Oct. 2, 1990). 103

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the EPA suggested that it may approve state programs involving lands within an Indian reservation,104 as a practical matter its policy of treat­ing reservations as “single administrative units”105 has precluded any such program approval. The other key component of the EPA’s policy is its approach toward inher­ ent tribal authority. That approach is generally set forth in the Water Quality Standards Final Rule. There, the EPA discussed how it interprets—and intends to apply—the case law relative to determining the scope of inherent tribal authority. After first reaffirming its previous conclusion that section 518 of the CWA does not constitute a delegation of federal regulatory power to Indian tribes,106 the EPA explained that its determination whether a particular tribe possesses inherent tribal authority over nonconsenting nonmembers on fee lands will be determined by reference to federal common law principles, including those articulated in Montana v. United States107 and later United States Supreme Court decisions.108 The EPA’s ensuing application of Montana is predicated on three key assumptions. The first is that Brendale v. Confederated Tribes and Bands of Yakima Indian Nation109 is distinguishable on the basis of the media being regu­lated.110 The second is that Brendale otherwise merely “confirmed,” and did not nar-

104 See, e.g., 40 C.F.R. § 123.23(b) (state may “seek authority over activities on Indian lands”); Proposed Rule: Subtitle D Regulated Facilities; State/Tribal Permit Program Determination of Adequacy; State/Tribal Implementation Rule, 61 Fed. Reg. 2584, 2588 (Jan. 26, 1996); Notice of Denial, Washington Department of Ecology; Underground Injection Control Program for Indian Lands, 53 Fed. Reg. 43,080 (Oct. 25, 1988). 105 Concept Paper, supra note 103, at 3; see also Water Quality Standards Final Rule, supra note 83, 56 Fed. Reg. at 64,878. 106 56 Fed. Reg. at 64,876, 64,880. This is generally consistent with how states are treated. Under the in‑lieu programs, states, before assuming primacy, must establish that the laws of the state provide ade­quate authority to carry out the required provisions of the federal program. See, e.g., USDOE v. Ohio, 503 U.S. 607 (1992); California v. United States Dep’t of Navy, 845 F.2d 222, 225 (9th Cir. 1988); 33 U.S.C. § 1342(b); 40 C.F.R. § 123.23; 40 C.F.R. § 145.24; see generally Colburn T. Cherney and Karen M. Wardzinski, State and Federal Roles Under the Clean Water Act, 1 WTR–Nat. Resources & Env’t 19 (1986) (“[i]n approving state NPDES programs, EPA does not delegate its own authority to the state, but rather authorizes the state to administer its program in lieu of the federal program and pursuant to the state’s own legal authorities”); Final Rule: Safe Drinking Water Act—National Drinking Water Regulations, Underground Injection Control Regulations, Indian Lands, 53 Fed. Reg. 37,396 (Sept. 26, 1988).

450 U.S. 544 (1981).

107

Water Quality Standards Final Rule, supra note 83, 56 Fed. Reg. at 64,876, 64,880.

108

492 U.S. 408 (1989).

109

Relying in part on a distinction between land management authority and environmental regulation discussed in California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987), the EPA has argued that Brendale is a land use case inapplicable in the environmental regulatory context. E.g., Water Quality Standards Final Rule, supra note 83, 56 Fed. Reg. at 64,879. However, there appears to be little support in Brendale itself for the prop­osition that, from a jurisdictional standpoint, environmental regulation is substantively different from land use regulation. See Lower Brule Sioux Tribe v. South Dakota, 917 F. Supp. 1434, 1446 n.16 (D.S.D. 1996) (“there appears to be little merit in distinguishing Brendale on the basis that it was a zoning law case”), aff’d, 104 F.3d 1017 (8th Cir. 1997). Moreover, water quality and land use regula­tion have common roots in police power and common law nuisance principles. Compare Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) (land use), with Illinois v. City of Milwaukee, 406 U.S. 91, 107 (1972) (water quality regulation). Finally, the distinction set out in Granite Rock was specific to the involved statutes. 480 U.S. at 586–89. Strate v. A-1 Contractors, 520 U.S. 438, 445–46 (1997), appears to have removed any question that, 110

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row or modify, the second Montana exception.111 The final assumption is that the CWA (and by logical extension all other federal environmental laws) itself constitutes a finding by Congress that impacts to water quality constitute potential impacts to human health and welfare that is sufficient, without more, to satisfy the second Montana exception.112 Because of this “generalized find­ing,” the EPA will presume the existence of tribal authority over all surface waters within the reservation upon a relatively simple showing of facts that there are [1] waters within the reservation used by the Tribe or tribal members . . . and [2] that the waters and critical habitat are subject to protection under the Clean Water Act. The Tribe must also explicitly assert that impairment of such waters by the activities of non-Indians, would have a serious and sub­stantial effect on the health and welfare of the Tribe.113

Whether this approach represents a proper application of Montana and Bren­ dale remains dubious—particularly in light of Strate v. A-1 Contractors114 and subsequent Supreme Court decisions—notwithstanding its approval by the Seventh and Ninth Circuits.115 The EPA has made clear that it does not view Strate as impeding its approach to treating tribes as states for regulatory purposes, based on minimal showings by tribes and the agency’s generalized findings of harm from potential pollution. According to the agency, “protecting the public through environmental protection programs from serious and substantial effects on health and welfare is a core governmental function whose exercise is critical to self-government.”116 Whether EPA’s view of Strate is valid will likely continue to arise in litigation challenging EPA approvals of tribal applications for treatment as a state. B. Federal Environmental Laws Providing for State or Tribal Program Assumption 1. Clean Water Act The Clean Water Act (CWA) is the primary federal law concerned with preserv­ing and protecting the quality of the nation’s waters. The goals of the

regardless of the context, Montana standards govern determi­nation of whether inherent tribal authority exists with respect to nonmember conduct on nontribal lands. 111

Water Quality Standards Final Rule, supra note 83, 56 Fed. Reg. at 64,877–78.

112

Id. at 64,878.

113

Id. at 64,879.

114

520 U.S. 438 (1997); see supra notes 36–54 and accompanying text.

115

Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001); Montana v. USEPA, 137 F.3d 1135 (9th Cir. 1998).

116

64 Fed. Reg. 46,012, 46,014 (Aug. 23, 1999); see also 63 Fed. Reg. 70,190, 70,219–20 (Dec. 18,

1998).

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CWA are achieved primarily through the National Pollutant Discharge Elimination Sys­tem (NPDES), a nationwide system of permits issued to individuals and entities that discharge pollutants directly into surface waters.117 In addition, where a particular body of water is subject to degradation by diffuse—or “nonpoint”—sources of pollution, the CWA allows for the application of man­agement constraints on the associated agricultural, municipal, or industrial practices.118 The cornerstone of both the NPDES and nonpoint source pro­grams are water quality standards, which consist of two general components: end‑of‑pipe effluent limitations for the discharge of specific pollutants and water quality standards established for individual water bodies.119 Under the CWA, the EPA sets nationwide water quality standards that are enforced through the NPDES program. A state or Indian tribe120 is eligible to promulgate its own water quality standards that, if approved by the EPA as being at least as stringent as the national standards, may be enforced in lieu of the EPA’s.121 State or tribal standards may be more stringent than those set by the EPA.122 NPDES permits are issued by the EPA, or by a state or tribe that has been granted authority with respect to the NPDES program.123 Once a state or tribe has gained NPDES program approval, it is the initial and primary NPDES permit issuer for pollution sources within its jurisdiction.124 A state or tribe may also assume authority over the section 404 “dredge and fill” permit

33 U.S.C. § 1342.

117

Id. § 1329.

118

Id. § 1313. The subject of what constitutes an “individual” water body was addressed in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004). While the Court declined to reach the federal government’s “unitary waters” argument that discharge permits should not be required when “water from one navigable water body is discharged, unaltered, into another navigable water body” (id. at 106), it held that at a minimum water bodies must be “meaningfully distinct” for the discharge of one to the other to be subject to regulation under the National Pollutant Discharge Elimination System (id. at 112). 119

120 Section 518 of the CWA, 33 U.S.C. § 1377(e), provides that Indian tribes may be treated as states for purposes of Title II and sections 104, 106, 303, 305, 308, 309, 314, 319, 401, 402, and 404 of the CWA. 121 33 U.S.C. § 1313; see Final Rule, Review and Approval of State and Tribal Water Quality Standards (WQS), 65 Fed. Reg. 24,641 (Apr. 27, 2000) (tribal or state WQSes do not take effect until EPA approval); see generally James M. Grijalva, Where Are the Tribal Water Quality Standards and TMDLS? 18‑FALL Natural Res. & Env’t 63, 67 (2003) (advancing reasons why “the vast majority of . . . federally recognized tribes” have neither applied for nor obtained EPA approval of a tribal water quality program); Dean B. Suagee and James J. Havard, Tribal Governments and the Protection of Watersheds and Wetlands in Indian Country, 13 St. Thomas L. Rev. 35 (2000) (discussing implementation of the CWA and SDWA in Indian country); Dean B. Suagee and John P. Lowndes, Due Process and Public Participation in Tribal Environmental Programs, 13 Tul. Envtl. L.J. 1 (1999) (discussing constitutional, statutory, and regulatory considerations in connection with the exercise of primacy authority under, inter alia, the CWA). 122 33 U.S.C. § 1370; see also City of Albuquerque v. Browner, 97 F.3d 415, 422–23 (10th Cir. 1996). The EPA has centralized for review various water quality–related documents that affect tribes at http://www. epa.gov/waterscience/tribes/regs.htm (last visited Aug. 2, 2008).  123 33 U.S.C. § 1342; see Final Rule, Treatment of Indian Tribes as States for Purposes of Sections 308, 309, 401, 402, and 405 of the Clean Water Act, 58 Fed. Reg. 67,966 (Dec. 22, 1993).

33 U.S.C. § 1342.

124

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program125 and, upon approval of its water quality standards, issue water quality standard certifications under section 401.126 Any state or tribal admin­istration of an approved program is subject to EPA oversight. Three general issues have arisen with respect to the role of Indian tribes under the CWA: (1) the scope of tribal jurisdiction over on‑reservation pollution sources,127 (2) the applicability of tribal water quality standards to pollution sources off reservation,128 and (3) the application of the EPA’s dispute resolution mechanism.129 As to the first of these issues, the CWA allows for the assumption of program authority by an Indian tribe only if the functions to be exercised by the Indian tribe pertain to the manage­ment and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation.130

The ambiguous phrasing of this section makes it difficult to determine exactly what Congress intended with respect to the scope of tribal jurisdic­tion. First, the geographical reach of that provision is unclear.131 Second, it is uncertain

125 Id. § 1344; see also Final Rule, Clean Water Act, Section 404 Tribal Regulations, 58 Fed. Reg. 8172 (Feb. 11, 1993).

33 U.S.C. § 1341; see PUD No. 1 v. Washington Dep’t of Ecology, 511 U.S. 700 (1994).

126

See generally Kathleen A. Kannler, Note, The Struggle Among the States, the Federal Government, and Federally Recognized Indian Tribes to Establish Water Quality Standards for Waters Located on Reservations, 15 Geo. Int’l Envtl. L. Rev. 53 (2002); Robert Erickson, Comment, Protecting Tribal Waters: The Clean Water Act Takes Over Where Tribal Sovereignty Leaves Off, 15 Tul. Envtl. L.J. 425 (2002); William C. Galloway, Note, Tribal Water Quality Standards Under the Clean Water Act: Protecting Traditional Cultural Uses, 70 Wash. L. Rev. 177 (1995); Charlotte Uram and Mary J. Decker, Jurisdiction Over Water Quality on Native American Lands, 8 J. Nat. Resources & Envtl. L. 1 (1992/1993); James M. Grijalva, Tribal Government Regulations of Non-Indian Polluters of Reservation Waters, 71 N.D. L. Rev. 433 (1995); John S. Harbison, The Downstream People: Treating Indian Tribes as States Under the Clean Water Act, 71 N.D. L. Rev. 473 (1995). 127

128 See generally Kurt R. Moser, Water Quality Standards and Indian Tribes: Are Tribes Afraid of Clean Water?, 8 U. Denv. Water L. Rev. 27 (2004); Jessica Owley, Tribal Sovereignty Over Water Quality, 20 J. Land Use & Envtl. L. 61 (2004); Anna Fleder and Darren J. Ranco, Tribal Environmental Sovereignty: Culturally Appropriate Protection or Paternalism?, 19 J. Nat. Resources & Envtl. L. 35, 36 (2004–2005); Kevin H. Kono, Comment, The Trust Doctrine and Clean Water Act: The Environmental Protection Agency’s Duty to Enforce Tribal Water Quality Standards Against Upstream Polluters, 80 Or. L. Rev. 677, 712 (2001); Denise D. Fort, State and Tribal Water Quality Standards Under the Clean Water Act: A Case Study, 35 Nat. Resources J. 771 (1995); Mark A. Bilut, Albuquerque v. Browner, Native American Tribal Authority Under the Clean Water Act: Raging Like River Out of Control, 45 Syracuse L. Rev. 887 (1994); Harbison, supra note 127, at 481–84. 129 Section 518(e) also required the EPA to “provide a mechanism for the resolution of any unreason­able consequences that may arise as a result of differing water quality standards that may be set by state and Indian tribes.” In pertinent part, the EPA’s regulations implementing section 518(e) establish a pro­cess of mediation and nonbinding arbitration and limit the entities that can initiate the dispute resolu­tion process to states and Indian tribes. 40 C.F.R. § 131.7; see also Fort, supra note 128, at 791–94. 130 33 U.S.C. § 1377(e)(2). The CWA defines “reservation” as “all land within the limits of any Indian reserva­tion under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights‑of‑way running through the reservation.” Id. § 1377(h). 131 The main ambiguities in section 518(e)(2) are whether the concluding phrase “or otherwise within the borders of an Indian reservation” relates to the “property interest[s]” held by members of an Indian tribe mentioned in the immediately preceding clause or whether it relates to the more expansive “water

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whether section 518 embodies a delegation of federal power or simply provides tribes with the right to seek primacy with respect to regulat­ing discharges that they otherwise may regulate pursuant to their inherent authority. The EPA has concluded that section 518(e)(2) does not constitute a delegation of authority to tribes. Instead, EPA reads that section as a requirement for tribes to demonstrate their inherent regulatory authority as a precondition to exercising primacy over a particular pollution source.132 The EPA’s subsequent tribal program approvals have provoked litigation on the question whether, as the EPA presumes, inherent tribal authority always extends to the regulation of water quality on waters appurtenant to nonmem­ber-owned fee lands. In one of the first cases arising under section 518, a dis­trict court rejected a challenge by the State of Montana to a decision by the EPA granting primacy to the Confederated Salish and Kootenai Tribes over waters appurtenant to non-member-owned fee land on the Flathead Reservation.133 The district court credited the EPA’s “generalized findings” that water quality affects human health and welfare, and the agency’s preference for “unitary” administration of the CWA on the reservation, and upheld the EPA’s determination that the second exception under Montana v. United States134 had been satis­fied.135 The Ninth Circuit Court of Appeals affirmed the district court’s decision.136 In its decision, the court of appeals first held that EPA’s interpretation of federal Indian law was not entitled to administrative deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,137 since it “has nothing to do with its own expertise or with any need to fill interstitial gaps in the statute.”138 The

resources” mentioned in the initial clause of that section, and if the latter, whether the word “or” can or should be construed as “and.” 132 See Water Quality Standards Final Rule, supra note 83, 56 Fed. Reg. at 64,877–80. Justice White’s opinion in Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 428 (1989), has been read as suggesting that § 518 does constitute a delegation of federal power, but the issue was not before the Court and, in context, his reference to the CWA provision appears to indicate only that section 518 might be claimed by a litigant as constituting a delegation. Cf. Ann E. Tweedy, Using Plenary Power as a Sword: Tribal Civil Regulatory Jurisdiction Under the Clean Water Act After United States v. Lara, 35 Envtl. L. 471 (2005) (advancing reasons why, as a result of United States v. Lara, 541 U.S. 193 (2004), section 518(e) should be read as restoring, rather than delegating, inherent tribal authority over the regulation of water quality). 133 Montana v. USEPA, 941 F. Supp. 945 (D. Mont. 1996), aff’d, 137 F.3d 1135 (9th Cir. 1998); see generally Daniel I.S.J. Rey-Bear, Comment, The Flathead Water Quality Standards Dispute: Legal Bases for Tribal Regulatory Authority Over Non-Indian Reservation Lands, 20 Am. Indian L. Rev. 151 (1996); Raymond Cross, When Brendale Met Chev­ron: The Role of Federal Courts in the Construction of an Indian Environmental Law, 1 Greater N. Cent. Nat. Resources J. 1 (1996).

450 U.S. 544 (1981).

134

941 F. Supp. at 958.

135

Montana v. USEPA, 137 F.3d 1135 (9th Cir. 1998).

136

467 U.S. 837, 843–44 (1984).

137

137 F.3d at 1140.

138

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court nonetheless accepted EPA’s application of the second Montana exception, reasoning that its decision in Colville Confederated Tribes v. Walton139 had already determined that inherent tribal authority under the second Montana exception “includes conduct that involves the tribe’s water rights.”140 It then went on to explain that Colville also supported EPA’s “generalized finding” regarding the mobile nature of pollution and the unitary nature of water resources.141 Left unexplained was whether the court of appeals’ reasoning was applicable in situations involving media other than water or whether, in those situations where its reasoning did apply, there were any circumstances under which inherent tribal authority over nonmembers would not be found. The answers to these questions await further judicial development. The Seventh Circuit Court of Appeals also upheld EPA’s approval of a Wisconsin tribe’s application to establish water quality standards in Wisconsin v. EPA.142 In addition to challenging EPA’s application of the second Montana exception, on grounds similar to those raised in Montana v. USEPA, the state also argued that the tribe lacked the requisite inherent authority to regulate navigable waters over which the state had obtained sovereignty at statehood— ninety years before the reservation was created—by operation of the equal footing doctrine. The court acknowledged that the statute did not delegate federal power to tribes and that tribes thus are required to demonstrate inherent regulatory authority.143 Nonetheless, the court concluded that Congress recognized tribal authority over waters notwithstanding state ownership.144 Applying the second Montana exception, the court held that because the tribe’s “water resources are essential to its survival,” the threat of water pollution sufficed to satisfy the test for inherent authority, even if the potentially harmful activities occur off reservation.145 Other litigation has addressed the effect of EPA-approved tribal water quality standards outside the reservation. In one of its first actions involving tribal water quality standards established pursuant to the CWA, the EPA approved the Isleta Pueblo’s adoption of water quality standards for the Rio Grande that

647 F.2d 42 (9th Cir. 1981).

139

137 F.3d at 1141.

140

Id.

141

266 F.3d 741 (7th Cir. 2001).

142

Id. at 744.

143

Id. at 747; see generally Micah E. Salsman, Hey Betsy, Sew on Another Star: A Comment on Wisconsin vs. EPA, 18 J. Natural Res. & Envtl. L. 113 (2003–2004) (arguing that the court of appeals’ interpretation of the equal footing doctrine was contrary to the Commerce Clause); Frank W. DiCastri, Comment, Are All States Really Equal? The “Equal Footing” Doctrine and Indian Claims to Submerged Lands, 1997 Wis. L. Rev. 179, 203–05 (1997) (discussing significance of the equal footing doctrine to the CWA litigation in Wisconsin). 144

266 F.3d at 749–50.

145

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were stricter than those established by the State of New Mex­ico.146 The City of Albuquerque, which lies upstream of the pueblo, filed suit alleging that the EPA had failed to follow required procedures in approving the standards, that the EPA’s regulations for resolving conflicts between state and tribal water quality standards were inadequate, that the pueblo’s water quality standards lacked a rational basis, and finally that section 518 did not incorporate section 510, which allows states to adopt standards more strin­gent than federal standards.147 The district court granted summary judgment to the EPA after first concluding that the agency had adhered to appropriate procedures in approving the pueblo’s standards and that the administrative record con­tained adequate evidence to support such approval.148 The court also con­cluded that tribes may adopt standards more stringent than those of the federal government, and that a rational basis existed for those adopted by the pueblo.149 The district court did raise a concern, however, with the fact that on the basis of the pueblo’s stringent standards, the EPA had included limits in the city’s NPDES permit “without first concluding that the quality of the river water five miles further downstream will be measurably improved.”150 The Tenth Circuit Court of Appeals affirmed, first rejecting the city’s argument that a settlement agreement providing for a four-year NPDES permit mooted the case.151 The court of appeals next agreed that, while section 518 did not incorporate section 510, the absence of such express authority did not prevent tribes from promulgating standards more stringent than the EPA’s and that the EPA was within its authority to require Albuquerque to comply with such standards.152 Lastly, the court of appeals upheld the EPA’s dispute resolution process as a reasonable con­struction of the statute.153

146 City of Albuquerque v. Browner, 97 F.3d 415, 419 (10th Cir. 1996); see generally Fort, supra note 128, at 773; Robin Kundis Craig, Borders and Discharges: Regulation of Tribal Activities Under the Clean Water Act in States with NPDES Program Authority, 16 UCLA J. Envt’l. L. & Pol’y 1 (1997–98).

97 F.3d at 420.

147

865 F. Supp. at 739–41.

148

Id. at 740–41.

149

Id. at 742.

150

97 F.3d at 420–21.

151

152 Id. at 422–23. The court did not engage in an extensive analysis of the jurisdictional issue, conclud­ing that the “EPA’s construction of the 1987 amendments to the Clean Water Act—that tribes may estab­lish water quality standards that are more stringent than those imposed by the federal government—is permissible because it is in accord with powers inherent in Indian tribal sovereignty.” Id. at 423. Because the pueblo is wholly owned tribal land, however, the court’s comment presumably has little significance in situations where a tribe seeks to regulate discharges from nontribal land.

Id. at 427–28.

153

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2. Safe Drinking Water Act The Safe Drinking Water Act (SWDA) establishes two major regulatory pro­grams to ensure the quality of publicly supplied drinking water: the Public Water Systems (PWS)154 and the Underground Injection Control (UIC)155 pro­ grams. With several exceptions,156 the PWS program regulates all public water systems that serve at least twenty-five individuals.157 To implement the PWS program, the EPA has promulgated nationwide primary drinking water stan­ dards,158 which set “maximum contaminant level goals” for drinking water contaminants at a level at which there is little known or anticipated adverse effect on human beings.159 If the EPA is unable to determine the safe level of a particular contaminant, the agency may instead require the use of spe­cific treatment technologies to prevent, to the greatest extent possible, adverse health effects.160 As a general matter, states and Indian tribes are entitled to “primary enforcement responsibility” of the PWS program so long as they have their own standards and enforcement procedures in place that are no less strin­gent than the EPA’s.161 If a state or tribe has an approved PWS program, it is entitled, subject to EPA oversight,162 to grant variances163 and exemptions164 from EPA’s nationwide standards. If a tribe has no approved PWS program, or fails to adequately implement the program it has, the EPA will administer a PWS program within the relevant geographic area.165 The UIC program established under SDWA protects groundwater sources by regulating the underground injection of fluids.166 SDWA requires designated states167 to establish a UIC permitting program.168 To receive a permit under

42 U.S.C. §§ 300g–300g-9.

154

Id. §§ 300h–300h-8.

155

Id. § 300g.

156

Id. § 300f(4).

157

Id. § 300g-1.

158

Id. § 300g-1(b)(1)(A) and (b)(4).

159

Id. § 300g-1(b)(7).

160

Id. §§ 300g-2(a), 300j-11(a)(2).

161

Id. §§ 300g-4(a)(1)(G)(I), 300g-5(d)(2)(A), 300j-11.

162

Id. §§ 300g-4, 300j-11.

163

Id. §§ 300g-5, 300j-11.

164

Id. § 300j-11; 40 C.F.R. § 142.3(b)(2).

165

42 U.S.C. §§ 300h–300h-3. Related SDWA programs include the wellhead protection program, which requires states to develop and implement programs to protect areas around public water system wells from contamination (id. § 300h-7), and the sole source aquifer demonstration program, which assists states in the development of programs to establish “critical aquifer protection areas” within sole-source aquifers (id. § 300h-6). 166

Id. § 300h-1(a); see also 40 C.F.R. pt. 147.

167

42 U.S.C. § 300h(b).

168

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a UIC program, an applicant must demonstrate that the pro­posed injection will not endanger drinking water sources; the permit must include inspection, monitoring, and reporting requirements.169 As with the PWS program, if a state UIC program is not approved or is inadequate, the EPA will implement the federal UIC program.170 The 1986 amendments to the SDWA171 added a specific provision for UIC enforcement by Indian tribes, providing in relevant part that “[a]n Indian Tribe may assume primary enforcement responsibility for underground injection control[;]” that “[u]ntil an Indian Tribe assumes primary enforcement responsi­bility, the currently applicable underground injection control program shall continue to apply[;]” and that “[i]f an applicable underground injection control program does not exist for an Indian Tribe, the [EPA] shall prescribe such a pro­gram.”172 This provision is consistent with the result in Phillips Petroleum Co. v. EPA,173 where the Tenth Circuit Court of Appeals upheld the EPA’s promulga­tion of a UIC program for the Osage Indian Mineral Reserve in Oklahoma under the pre-1986 version of the SDWA that, for this purpose, was silent with respect to Indian tribes and reservations.174 The EPA’s regulations provide that when promulgating direct UIC regulations under the 1986 amendment it will consider “[t]he interest and preferences of the tribal government having respon­sibility for the given reservation or Indian lands [and] [t]he consistency between the alternate program and any program in effect in an adjoining jurisdiction.”175 In addition to the specific provision addressing UIC tribal program authorization, the SDWA provides more generally that the EPA “is authorized to treat Indian Tribes as states [and] may delegate to such Tribes primary enforcement responsibility for public water systems and for underground injection control.”176 The statute sets out standard governmental organiza­tion and capability requirements177 and also requires tribes to demonstrate that “the functions to be exercised by the Indian Tribe are within the area of the

169 Id. § 300h(b)(1). Underground injections associated with oil or natural gas production are generally exempted from SDWA requirements unless the “requirements are essential to assure that underground sources of drinking water will not be endangered.” Id. § 300h(b)(2).

Id. § 300h-1(c); see also Phillips Petroleum Co. v. EPA, 803 F.2d 545 (10th Cir. 1986).

170

Pub. L. No. 99-339, 100 Stat. 642 (1986).

171

42 U.S.C. § 300h-1(e).

172

803 F.2d 545 (8th Cir. 1986).

173

Id. at 551–58.

174

40 C.F.R. § 144.2.

175

42 U.S.C. § 300j-11(a).

176

Id. § 300j-11(b)(1)(A) and (C).

177

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Tribal Government’s jurisdiction.”178 The EPA has promulgated regula­tions implementing the SDWA provisions allowing for tribal assumption of PWS179 and UIC180 programs.181 3. Clean Air Act The Clean Air Act (CAA) authorizes the EPA to establish nationally uniform ambient air quality standards for ozone, lead, sulfur dioxide, particulates, nitrogen dioxide, and carbon monoxide. “Primary” standards limit the maxi­mum allowable concentration of each pollutant to the level that protects the public health.182 “Secondary” standards protect against adverse impacts on public welfare, including impacts on visibility, vegetation, animals, wildlife, materials, and property.183 Tribes and states are then responsible for imple­ menting the federal standards pursuant to implementation plans. The plans estimate the emissions reductions needed to attain the ambient standards and establish control programs as needed to achieve the required reduc­tions.184 In areas where the air quality meets or exceeds national standards, the state or tribe must issue permits consistent with “prevention of signifi­cant deterioration” requirements, the basic component of which is subject­ing emission sources to “best available control technology” requirements.185 Title V of the 1990 Clean Air Act Amendments186 established a new, central­ized operating permit program to be administered by states subject to EPA oversight.187 Regulations adopted by the EPA set forth the criteria for EPA approval of state

178 Id. § 300j-11(b)(1)(B) Litigation has arisen over EPA’s determination of what constitutes “Indian country” and an “informal reservation” for purposes of recognizing tribal jurisdiction under § 300j–11(b)(1)(C) of the SDWA. In HRI, Inc. v. USEPA, 198 F.3d 1224 (10th Cir. 2000), the Tenth Circuit Court of Appeals upheld EPA’s view of “Indian country” and “informal reservations” and its decision not to approve an aquifer exemption permit issued by New Mexico in two areas adjacent to the Navajo Reservation that fell within those categories. See generally Bradford D. Cooley, Note, The Navajo Uranium Ban: Tribal Sovereignty v. National Energy Demands, 26 J. Land Resources & Envtl. L. 393, 418–20 (2006) (discussing the Navajo Nation’s 2005 ban on uranium development and the potential significance of the HRI decision to the ban’s geographical scope); Suagee and Havard supra note 121, at 48–51 (discussing HRI decision). 179 40 C.F.R. §§ 142.72, 142.76, 142.78; see Final Rule, Safe Drinking Water Act, National Drinking Water Regulations, Underground Injection Control Regulations, Indian Lands, 53 Fed. Reg. 37,396 (Sept. 26, 1988).

40 C.F.R. §§ 145.52, 145.56, 145.58.

180

On an SDWA-related matter, the Tenth Circuit Court of Appeals held that the Act’s whistle-blower provision, 42 U.S.C. § 300j–9(i)(1), abrogates tribal sovereign immunity for suits within its scope. Osage Tribal Council v. USDOL, 187 F.3d 1174 (10th Cir. 1999). 181

42 U.S.C. § 7409(b)(1).

182

Id. § 7409(b)(2); S. Rep. No. 101-228 (1990), at 5, reprinted in 1990 U.S.C.C.A.N. at 3385, 3391.

183

42 U.S.C. § 7410.

184

Id. § 7475(a)(4).

185

Pub. L. No. 101-549, §§ 107(d), 108(I), 104 Stat. 2399, 2464, 2467 (1990).

186

42 U.S.C. §§ 7661–7661f.

187

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Title V programs.188 In the absence of an approved state program, the EPA will implement the federal operating permits program.189 In a modification of the language used in the CWA and the SDWA, the 1990 amendments to the CAA authorize tribes to assume program authority if, in addition to the governmental organization and capability require­ments, “the functions to be exercised by the Indian tribe pertain to the man­agement and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe’s jurisdiction.”190 In 1998 the EPA issued a final “Tribal Authority Rule,” to implement the 1990 statutory amendments.191 The rule reflects EPA’s interpretation of the Clean Air Act as granting qualifying tribes regulatory authority over all air resources not only within the exterior boundaries of a reservation, but also over “trust lands that have been validly set apart for the use of a tribe even though the land has not been formally designated as a reservation.”192 The final rule was challenged subsequently without success.193 The CAA further provides that implementation plans submitted by tribes “shall become applicable to all areas (except as provided otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the

40 C.F.R. pt. 70.

188

Id. pt. 71.

189

42 U.S.C. § 7601(d)(2)(B).

190

Final Rule, Indian Tribes: Air Quality Planning and Management, 63 Fed. Reg. 7254 (Feb. 12, 1998) (codified at 40 C.F.R. pts. 9, 35, 49, 50, 89). In January 2000, EPA amended the final rule to allow the general public, in addition to appropriate governmental entities, to comment on boundary or jurisdictional issues. Clarification, Indian Tribes: Air Quality Planning and Management, 65 Fed. Reg. 1322 (Jan, 10, 2000). In the 1999 revisions to its rules implementing Title V, 64 Fed. Reg. 8247 (Feb. 19, 1999) (codified at 40 C.F.R. § 71.4(b)), EPA assumed authority to administer a federal operating permit program in areas “for which EPA believes the Indian country status is in question.” Id. at 8249–50 (emphasis supplied). The agency also determined that rather than provide notice-and-comment procedures to resolve disputes over Indian country status of particular areas, it would address such disputes in the context of adjudications over individual sources. Id. at 8250. A federal court of appeals invalidated both features of EPA’s rules, finding them inconsistent with the provisions of the CAA. Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001). 191

63 Fed. Reg. at 7258.

192

Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000); see generally Patricia S. Mariella, The Gila River Indian Community’s Tribal Air Quality Implementation Plan, 21-WTR Nat. Resources & Env’t 24 (2007) (describing the 1990 CAA amendments as “an unequivocal delegation of federal authority”); O. Wes J. Layton, The Thorny Gift: Analysis of EPA’s Intent to Empower Indian Tribal Governments with Clean Air Act Regulatory Authority over Non-Tribal Lands and Immunize Tribal Governments from CAA Citizen Suits, 7 Envtl. Law. 225, 278 (2001) (arguing that EPA has exceeded its authority in finding congressional delegation of regulatory authority to tribes and that Montana-based analysis is required); Kristina Marie Reader, Note, Empowering Tribes—The District of Columbia Circuit Upholds Tribal Authority to Regulate Air Quality Throughout Reservation Lands in Arizona Public Service Company v. Environmental Protection Agency, 12 Vill. Envtl. L.J. 295, 330 (2001) (arguing that majority opinion in Arizona Public Service reached correct result and that “a bright line rule defining the extent of Tribes’ authority to implement, enforce and maintain air quality standards over all lands within a Tribe’s reservation is necessary to effectively enforce federal clean air standards”); Sandra D. Benischek, Clean Air in Indian Country: Regulation and Environmental Justice, 12 Vill. Envtl. L.J. 211 (2001) (contending that “cooperative management federalism” among the federal government, states, and tribes constitutes “a superior stance to implement environmental regulation of air pollution[,]” and recommending cooperative agreements between states and tribes). 193

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issuance of any patent and including rights‑of‑way running through the reservation.”194 Areas within Indian reservations may be excluded from tribal implementation plans,195 and the EPA may assume direct federal implementation where tribal implementation is otherwise “inappropriate or administratively infeasible.”196 In the absence of a tribal implementation plan, EPA assumes authority for CAA-related purposes.197 Finally, the CAA gives Indian tribes the authority to redesignate the prevention of significant deterioration (PSD) status of lands “within the exte­rior boundaries of reservations.”198 This provision allows tribes to limit indi­rectly or promote industrial development on reservations and to some extent control off-reservation activities that affect the air quality on the res­ervation. The statute also contains a provision regarding the resolution of disputes arising between states and Indian tribes as a result of a redesigna­tion of PSD status or the proposed issuance of a permit for a new major emit­ting facility.199 4. Resources Conservation and Recovery Act The Resources Conservation and Recovery Act (RCRA) provides a comprehen­sive federal regulatory system for the management of solid and hazardous waste. Under Subtitle C of RCRA, the EPA is required to establish a federal program for regulating the treatment, storage, and disposal of hazardous wastes.200 Under Subtitle D of RCRA, the EPA must promulgate regulations covering the disposal of nonhazardous solid waste and small quantities of solid wastes not covered by Subtitle C.201 As with the CWA and SDWA, RCRA authorizes states to apply to the EPA to assume primacy in lieu of the federal government and to issue and enforce permits for the storage, treatment, and disposal of hazardous waste covered by Subtitle C.202 With respect to solid wastes covered by Subtitle D, RCRA requires states to develop regional solid waste management plans and submit such plans for EPA approval.203 If a state fails to

42 U.S.C. § 7410(o).

194

Id.

195

Id. § 7601(d)(4).

196

See Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington, 70 Fed. Reg. 18,074, 18,076 (Apr. 8, 2005) (“Since the CAA was amended in 1990, EPA has been clear in its approvals of State programs that the approved State program does not extend into Indian country. It is EPA’s position that, absent an explicit finding of jurisdiction and approval in Indian country, State and local governments lack authority under the CAA over air pollution sources, and the owners or operators of air pollution sources, throughout Indian country”). 197

42 U.S.C. § 7474(c).

198

Id. § 7474(e).

199

Id. §§ 6921–6939e.

200

Id. §§ 6941–6949a. 

201

Id. § 6926(b).

202

Id. § 6946.

203

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submit a solid waste management plan or the plan submitted is not approved, the state is required to apply the EPA’s national solid waste standards204 in its regulation of landfills and other solid waste repositories.205 Unlike most other federal environmental statutes, RCRA does not con­tain a specific provision authorizing participation by Indian tribes, although RCRA does include tribes in the definition of “municipality.”206 Despite this lack of explicit statutory authorization, the EPA attempted to implement a policy of administratively interpreting RCRA to allow tribes to assume landfill permit programs207 and proposed revisions to the EPA regula­tions allowing authorization of direct tribal assumption of other RCRA pro­grams.208 Because the EPA believed that Congress has not directly spoken to whether tribes may assume RCRA programs, it concluded that it may fill what it describes as a “gap” in the regulatory structure.209 However, in Backcountry Against Dumps v. EPA,210 the District of Colum­ bia Court of Appeals held the EPA’s policy beyond its authority under RCRA. The court initially noted that RCRA included tribes within the definition of “municipalities” and not “states.”211 It also deemed “it significant that when Congress wants to treat Indian tribes as states, it does so in clear and precise language.”212 The court thus found RCRA “neither silent nor ambiguous” and

EPA’s national standards for municipal solid waste landfills are codified at 40 C.F.R. part 258.

204

In Yankton Sioux Tribe v. Southern Missouri Waste Mgmt. District, 890 F. Supp. 878 (D.S.D. 1995), aff’d on other grounds, 99 F.3d 1439 (8th Cir. 1996), rev’d on other grounds, 522 U.S. 329 (1998), a federal district court found that until the EPA acts to approve a tribal or state permit program, federal regulations apply to all landfills within the boundaries of an Indian reservation. 205

206 42 U.S.C. § 6903(13). As municipalities, tribes are entitled to apply for federal funding to develop solid waste management programs and are subject to citizen suits to enforce the applicable solid waste management regulations. See Blue Legs v. USBIA, 867 F.2d 1094, 1097 (8th Cir. 1989). 207 See Campo Band of Mission Indians, Final Determination of Adequacy of Tribal Municipal Solid Waste Permit Program, 60 Fed. Reg. 21,191 (May 1, 1995); see generally Jana L. Walker and Kevin Gover, Commercial Solid and Hazardous Waste Disposal Projects on Indian Lands, 10 Yale J. On Reg. 229 (1993). 208 Proposed Rule, Subtitle D Regulated Facilities, State/Tribal Permit Program Determination of Adequacy, State/Tribal Implementation Rule, 61 Fed. Reg. 2584 (Jan. 26, 1996); Proposed Rule, Authorization of Indian Tribe’s Hazardous Waste Programs Under RCRA Subtitle C, 61 Fed. Reg. 30,472 (June 14, 1996); see generally John Karl Gross, Note, Nuclear Native America: Nuclear Waste and Liability on the Skull Valley Goshute Reservation, 7 B.U. J. Sci. & Tech. L. 140 (2001); Mark Poole, Nuclear Sovereignty: Reservation Waste Disposal for the Twenty-First Century and Beyond, 4 Hastings W.-N.W. J. Envt’l. L. & Pol’y 165 (1998); A. Cassidy Sehgal, Note, Indian Tribal Sovereignty and Waste Disposal Regulation, 5 Fordham Envtl. L.J. 431 (1994). 209 60 Fed. Reg. 21,191 (May 1, 1995); 61 Fed. Reg. 2584 (Jan. 25, 1996); 61 Fed. Reg. 30,472 (June 14, 1996). In interpreting RCRA to allow tribal assumption of permit programs, the EPA explained that it “ha[d] undertaken to reconcile RCRA with broad federal mandates, analogous environmental statutes, EPA’s longstanding Indian Policy and relevant principles of federal Indian law.” 60 Fed. Reg. 21,191, 21,192 (May 1, 1995). 210 211

100 F.3d 147 (D.C. Cir. 1996).

Id. at 150–51. Id.

212

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held that there was no need to give Chevron-based deference213 to the EPA’s construction.214 It stressed that the decision did not deprive the tribe of any inherent authority it might other­wise have had and that any concern over a “regulatory gap” was most appropriately addressed by Congress.215 Moreover, the court noted that the tribal regulatory objectives could still be achieved by having the EPA incorporate those objectives into federal regulations.216 In light of Backcountry Against Dumps, EPA acknowledged that it cannot treat tribes as states under RCRA.217 Aside from not being eligible for direct assumption of RCRA program implementation, tribes also may have substantial difficulty in enforcing consent decrees entered into by the federal government with respect to reservation waste under more general principles governing such enforceability.218 Although it did not involve the question of program assumption under RCRA, Yankton Sioux Tribe v. Southern Missouri Waste Management District219 did address, among other things,220 the more general issue of whether the Yankton Sioux Tribe could assert civil-regulatory jurisdiction over a municipal solid waste landfill built on non-Indian land within the exterior boundaries of the reservation. On that question the district court held that the tribe had “failed to produce sufficient evidence” regarding any adverse effect on the “political integrity, economic security, or health and welfare of the Tribe” upon which

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

213

100 F.3d at 151.

214

Id. at 151–52.

215

Id. at 152.

216

See 64 Fed. Reg. 19,494 (Apr. 21, 1999). The EPA has not applied Backcountry Against Dumps outside its particular statutory context. The agency thus reached an opposite conclusion in proposed rulemaking under the Toxic Substances Control Act, 15 U.S.C. §§ 2601–2692, with respect to its ability to treat a tribe as a state, where it distinguished RCRA from TSCA because the latter statute is silent with respect to tribes and reasoned that this “gap” can be filled by treating tribes as states under that law. 63 Fed. Reg. 70,190, 70,218 (Dec. 18, 1998) (under Chevron principles, “[w]here ‘Congress has not directly addressed the precise question at issue’ in a statute, . . . the Agency charged with implementing that statute may adopt any interpretation which, in the Agency’s expert judgment, is reasonable in light of the goals and purposes of the statute as a whole”). 217

218 See United States v. FMC Corp., 531 F.3d 813, 820–21 (9th Cir. 2008) (consent decree not enforceable by a nonparty tribe deemed an incidental, and not an intended, beneficiary of the decree). 219 890 F. Supp. 878 (D.S.D. 1995), aff’d on other grounds, 99 F.3d 1439 (8th Cir. 1996), rev’d on other grounds, 522 U.S. 329 (1998). 220 The case also addressed whether the Yankton Sioux Reservation had been disestablished or diminished. The district court held that it had not (890 F. Supp. at 888), and that determination was upheld by the court of appeals (99 F.3d at 1457) but reversed by the Supreme Court (522 U.S. at 342). See generally Judith V. Royster, Of Surplus Lands and Landfills: The Case of the Yankton Sioux, 43 S.D. L. Rev. 283 (1998).

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it could base a finding of regulatory authority.221 The tribe did not appeal that portion of the district court’s decision.222 Subsequent to the district court’s decision in Southern Missouri Waste Management District, the EPA developed a site-specific regulation allowing the district to seek a waiver of the otherwise applicable composite liner require­ ment directly from the EPA. The EPA’s action approving a waiver under that regulation was upheld in Yankton Sioux Tribe v. EPA.223 In a related develop­ ment, the EPA also reversed a prior determination to approve South Dakota’s application for program approval under RCRA for fee lands within the reserva­ tion, explaining that all lands within the reservation were Indian country and that South Dakota had failed to demonstrate its authority to regulate fee lands “either pursuant to Congressional authorization or applicable principles of Fed­eral Indian Law.”224 5. Federal Insecticide, Fungicide, and Rodenticide Act The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the handling, storage, sale, and application of pesticides. Under FIFRA pesticides may not be distributed, sold, shipped, or delivered unless registered with the EPA.225 States may apply to the EPA to assume primacy for certification of applications of pesticides226 and for primary enforcement responsibility for pesticide use violations.227 While FIFRA does not provide that Indian tribes are entitled to “primary enforcement responsibility,”228 the EPA may enter into cooperative agreements “to delegate to any . . . Indian tribe the authority to cooperate in the enforcement of [FIFRA]” and “to assist . . . tribes that enter into cooperative agreements, to train and certify [pesticide] applicators.”229 The EPA accordingly promul­gated regulations authorizing tribes to develop their own programs for certi­fication of pesticide applicators.230

221 890 F. Supp. at 888, citing Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 424 (1989); see generally Robert Sitkowski, Commercial Hazardous Waste Projects in Indian Country: An Opportunity for Tribal Economic Development Through Land Use Planning, 10 J. Land Use & Envtl. L. 239 (1995); Sehgal, supra note 208, at 444–47; Walker and Gover, supra note 207, at 233–35.

99 F.3d at 1443 n.5.

222

950 F. Supp. 1471 (D.S.D. 1996).

223

South Dakota, Final Determination of Adequacy of State’s Municipal Solid Waste Permit Program over Non-Indian Lands for the Former Lands of the Yankton Sioux, Lake Traverse (Sisseton-Wahpeton) and Parts of the Rosebud Indian Reservation, 61 Fed. Reg. 48,683, 48,685 (Sept. 16, 1996). 224

7 U.S.C. § 136a.

225

Id. § 136i.

226

Id. § 136w-1.

227

Id. § 136w-1; see also id. at § 136(aa) (definition of “State” does not include Indian tribes).

228

Id. § 136u(a)(1) and (2).

229

40 C.F.R. § 171.10.

230

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C. Federal Environmental Laws Not Providing for Direct Program Assumption by States or Tribes The Comprehensive Environmental Response, Compensation and Lia­ bility Act (CERCLA)231 and related provisions of the Oil Pollution Act (OPA)232 establish a program for cleaning up existing environmental contamination. Section 107 of CERCLA imposes liability for the costs of such cleanups on a wide range of “potentially responsible parties” (PRPs).233 PRPs include current and past owners and operators of the site, persons who transported hazardous substances to the site, and persons who arranged to have hazardous sub­stances transported to the site.234 In general, anyone who incurs cleanup costs, whether the government or a private party, may sue to recover those costs from a PRP. A PRP may also be liable under section 107 for damages for injury to or loss of natural resources.235 If no PRP can be made to pay the cost of cleaning up a site, CERCLA creates a revolving fund, the “Superfund,” to cover the cost.236 Under CERCLA, states and Indian tribes are entitled to receive notice of the release of hazardous substances into the environment,237 to be con­sulted by EPA regarding approved corrective actions,238 to carry out reme­dial actions under a cooperative agreement with the EPA,239 to provide input into the EPA’s prioritization of hazardous waste sites for cleanup,240 and to recover compensation for damages to or destruction of natural resources.241 Title III of the Superfund Amendments and Reauthorization Act, known as the Emergency Planning and Com­munity Right‑To‑Know Act,242 requires states to develop emergency plans to respond to releases of hazardous materials.243 Unlike the programs dis­cussed above, CERCLA does not contain an option for states or tribes to assume direct program responsibility, or “primacy.” It instead contemplates partnerships among the governments.244

231 CERCLA (Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601–9675)) and SARA (Pub. L. No. 99-499, 100 Stat. 1613 (1986)) are collectively referred to as CERCLA/SARA, or more commonly as just CERCLA.

33 U.S.C. §§ 2701–2761.

232

42 U.S.C. 9607.

233

Id. § 9607(a).

234

Id. § 9607(f).

235

Id. § 9611.

236

Id. § 9603(a).

237

Id. § 9604(c)(2).

238

Id. § 9604(d)(1).

239

Id. § 9605.

240

Id. § 9607(f).

241

Id. §§ 11001–11050.

242

Id. §§ 11001–11003.

243

Id. § 9604(d)(1).

244

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Section 126 of CERCLA provides that “[t]he governing body of an Indian tribe shall be afforded substantially the same treatment as a State”245 with respect to most of the significant portions of the Act. Section 104 more specifically provides that tribes may enter into contracts or cooperative agreements with the EPA to carry out remedial actions in the same manner as states.246 The EPA’s directives require that in order to be afforded the same treatment as a state under section 104 of CERCLA with regard to a particular site, a tribe must be (1) federally recognized; (2) “[h]ave a . . . governing body that is currently performing governmental functions to promote the health, safety, and welfare of the affected population or to protect the envi­ronment within a defined geographic area”; and (3) “[h]ave jurisdiction over [the] site at which Fund-financed response, including pre-remedial activities, is contemplated.”247 Section 107 of CERCLA authorizes the relevant state, tribal, and federal officials, acting as public trustees, to institute actions against responsible parties to recover damages for harm to natural resources caused by the release of hazardous substances.248 Such liability extends to all natural resources “belonging to, managed by, controlled by, or appertaining to [an Indian tribe], or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation.”249 Federally permitted damages that have been specifically iden­tified as an “irreversible and irretrievable commitment” of natural resources in an environmental impact statement are exempted from CERCLA liability; however, in the case of damages to an Indian tribe, the scope of exemption is limited to those actions that were “not inconsistent with the fiduciary duty of the United States with respect to such Indian tribe.”250 If a tribe uses the regulations promulgated by the Department of the Interior to assess natural resource damages,251 the

245 Id. § 9626(a); see generally Richard A. DuBey and James M. Grijalva, Closing the Circle: Tribal Imple­mentation of the Superfund Program in the Reservation Environment, 9 J. Nat. Resources & Envtl. L. 279 (1993–94); Catherine Baker Stetson and Kevin Gover, CERCLA Liability and Regulation of Solid and Hazard­ ous Waste on Indian Lands, 7 SPR-Nat. Resources & Env’t 24 (1993). 246 42 U.S.C. § 9604(d)(1)(A); see also Cooperative Agreements and Superfund State Contracts for Superfund Response Actions, 40 C.F.R. pt. 35.O. 247 40 C.F.R. § 300.515(b); see also id. at 35.6010 (identifying general requirements for Superfund cooperative agreements); 42 U.S.C. § 9604(c)(3) (for the purpose of allocating funds and implementation responsibilities in federally funded remedial actions, CERCLA utilizes the same jurisdictional language used in the CWA to except Indian tribes from certain cost-share and implementation responsibilities).

42 U.S.C. § 9607(f)(1).

248

Id. § 9607(f)(1). Natural resources for which damages may be recovered are defined as all “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by . . . any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe.” Id. § 9601(16). Damages recoverable are “for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from [the] release.” Id. § 9607(a)(4)(C). 249

Id. § 9607(f)(1).

250

43 C.F.R. §§ 11.10–11.93.

251

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tribe is entitled to a rebuttable presumption in any administrative or judicial proceedings to recover the damages.252 CERCLA’s natural resource damage provision extends to resources “belonging to, managed by, controlled by, or appertaining to” a tribe or state.253 Under this provision, Indian tribes have sought to recover damages to on­ reservation resources and off‑reservation resources in which they assert treatyreserved interests.254 While it has not been determined in a reported decision, an Indian tribe’s treaty-reserved usufructuary rights to take fish, game, and other natural substances off reservation, along with the concomitant powers to regulate member use of those resources,255 may be found to be sufficient to give rise to a section 107 trusteeship interest.256 If so, such an interest may overlap or be concurrent with the trusteeship interests of state and federal governments, posing difficult questions regarding the proper allocation of natural resource damages among cotrustees and the protection of PRPs from double recovery.257 Moreover, the unique nature of and limitations on tribal regulatory authority over non-member-owned fee lands on reservations raise similar questions as to whether the tribe or the state is the appropriate trustee to recover for damages to qualifying natural resources on those lands.258 In a case involving state and tribal jurisdiction under CERCLA, California v. Celtor Chemical Corp.,259 California brought a cost-recovery action under both CERCLA and California law against the previous owner of an ore-process­ing plant located within the boundaries of the Hoopa Valley Reservation. The defendant claimed that the state law was preempted by CERCLA when the cleanup was conducted on Indian land. The district court disagreed, explaining

42 U.S.C. § 9607(f)(2)(C).

252

Id. § 9607(f)(1). In Ohio v. USDOI, 880 F.2d 432 (D.C. Cir. 1989), the court held that “a substantial degree of governmental regulation, management or other form of control over the property would be sufficient to make the CERCLA natural resource damage provision applica­ble.” Id. at 461. On a related note, 42 U.S.C. § 9613(I) provides that interested persons may intervene in natural resource damage actions unless the existing parties are adequately representing their interests. 253

254 E.g., Montana v. Atlantic Richfield Co., No. CV-83-317-H-PGH (D. Mont. filed Oct. 17, 1994) (com­ plaint in intervention at 3); Coeur d’Alene Tribe of Idaho v. Gulf Res. & Chem. Co., No. CIV91-0342N HLR (D. Idaho filed Jul. 31, 1991) (complaint at 8–9); see also Menominee Indian Tribe v. Thompson, 164 F.R.D. 672, 674 (W.D. Wis. 1996) (Indian tribe brought action against Wisconsin seeking a declaration that the tribe has usufructuary rights in an area covered by CERCLA proceedings), dismissed on other grounds, 922 F. Supp. 184 (W.D. Wis. 1996), aff’d, 161 F.3d 449 (7th Cir. 1998).

See, e.g., Settler v. Lameer, 507 F.2d 231, 237 (9th Cir. 1974).

255

See generally Phillip Thompson, Native American Tribes as Natural Resource Trustees, in the New Rules for Natural Resource Damage Assessments and Claims Under CERCLA and OPA 725 (1994); Rachel Jacobson and Peter Monson, Natural Resource Damages: Tribes as Trustees, Am. Bar Ass’n, Fifth Annual Conference on Natural Resource Management and Environmental Enforcement on Indian Lands, Albuquerque, N.M. (Feb. 4–5, 1993). 256

42 U.S.C. § 9607(f)(1).

257

Jacobson and Monson, supra note 256, at 17–21.

258

901 F. Supp. 1481, 1483 (N.D. Cal. 1995).

259

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that the defendant demonstrated neither that the state’s participation in the cleanup was incompatible with CERCLA nor that it infringed on tribal sover­ eignty any more than regulation under CERCLA.260 D. Tribal Liability for Violation of Federal Pollution Control Statutes It appears settled that Congress abrogated tribal sovereign immunity with respect to violations of RCRA. In Blue Legs v. United States Bureau of Indian Affairs261 several members of the Oglala Sioux Tribe of the Pine Ridge Indian Reservation brought suit against the tribe, the BIA, the Indian Health Service, and others, alleging that garbage dumps located on the reservation violated RCRA. In considering the tribe’s claim of sovereign immunity, the court noted that RCRA allows citizen suits against any “person” or governmental entity alleged to be in violation of the RCRA. The term “person” is defined to include all municipalities, and municipalities are in turn defined to include “an Indian tribe or authorized tribal organization.”262 By adopting those definitions, the court con­cluded, Congress clearly abrogated tribal sovereign immunity.263 A similar conclusion was reached in Atlantic States Legal Foundation v. Salt River Pima‑Maricopa Indian Community.264 The Atlantic States Legal Foun­ dation filed an action against the community under the citizen suit provisions of RCRA and the CWA, alleging that the community’s landfill discharged pollut­ants into the Salt River. The district court held that the term “person” in the rel­evant provisions of RCRA and the CWA unequivocally included Indian tribes, and therefore was sufficient to abrogate the sovereign immunity of the commu­nity.265 The same analysis could be applied to SDWA based on the definitions found in that statute.266 In contrast to RCRA and the CWA, Indian tribes are not included in the definition of the term “person” subject to suit in CERCLA or CAA.267 Some commentators have suggested that because of this omission in CERCLA, Indian tribes may have sovereign immunity for liability as a responsi­ble party under CERCLA.268

Id. at 1490–91.

260

867 F.2d 1094 (8th Cir. 1989).

261

Id. at 1097 (citing 42 U.S.C. §§ 6972(a)(1)(A), 6903(15), and 6903(13)(A)).

262

Id. at 1097–98; see generally Stetson and Gover, supra note 245, at 25–26.

263

827 F. Supp. 608 (D. Ariz. 1993).

264

Id. at 610. Where solid waste disposal facilities on tribal lands require approval of the BIA, such approval is also subject to the requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321– 4370d, including preparation of an environmental impact statement. See County of San Diego v. Babbitt, 847 F. Supp. 768 (S.D. Cal. 1994), aff’d, 61 F.3d 909 (9th Cir. 1995). 265

42 U.S.C. § 300f(10) and (12).

266

Id. §§ 7602(e), 9601(21).

267

Stetson and Gover, supra note 245, at 26; see also Michael L. Emge, Applicability of the Clean Water Act to Indian Tribes: May Tribes Stop or Constrain a Cleanup?, 8 Nat’l Envtl. Enforcement J. 3 (Dec. 1993/Jan. 1994). In Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir. 1995), an action was brought against a tribe for alleged 268

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III. NON-EPA FEDERAL ENVIRONMENTAL PROGRAMS A. Hazardous Materials Transportation Act In 1990, Congress amended the Hazardous Materials Transportation Act (HMTA)269 to allow regulation by tribal governments. As with states, most aspects of tribal regulation, such as standards for the packaging and handling of haz­ardous materials, are preempted unless “substantively the same” as federal statutes and regulations.270 Tribal and state governments may apply to the Secretary of Transportation for a waiver of preemption.271 Preemption may be waived if the tribal or state requirement affords an equal or greater level of public protection than do federal requirements and does not unreasonably burden commerce.272 Fees associated with tribal or state regulation under HMTA must be equitable and “used for purposes related to transporting haz­ardous materials, including enforcement and planning, developing, and maintaining a capability for emergency response.”273 The HMTA authorizes tribal governments to establish and enforce spe­cific highway routes over which hazardous materials may be transported “in the area subject to the jurisdiction of the . . . tribe.”274 Such routing designa­tions must meet federal standards that require, among other things, public participation and consultation with state and local officials.275 State concur­rence is required as to any routing designation that will affect the transporta­tion of hazardous materials in the state.276 In the event a dispute arises between the routing designations of a tribe and a state, either party may petition the Secretary of Transportation to resolve the dispute.277 The Secre­tary then has one year to resolve the dispute by choosing the course of action that provides “the greatest level of highway safety without being an unreasonable burden on commerce.”278

violations of the CWA and RCRA in its manage­ment of a CERCLA site. The action did not position the tribe as a PRP under CERCLA. 49 U.S.C. §§ 5101–5127.

269

Id. § 5125(b)(1).

270

Id. § 5125(e).

271

Id.

272

Id. § 5125(g).

273

Id. § 5112(b)(1)(A).

274

Id. § 5112(b)(1)(B).

275

Id. § 5112(b)(1)(E). As an alternative, the tribe may seek approval of the Secretary of Transporta­tion. Id. The reverse is also true: Tribes must agree to any state routing designations that cross lands sub­ject to the tribe’s authority. Id. 276

Id. § 5112(d)(2).

277

Id. States or tribes adversely affected by the Secretary’s decision can file an appeal not later than 89 days after the decision becomes final. Id. § 5112(d)(3)(B). 278

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The HMTA abrogates tribal sovereign immunity to allow affected parties to assert that tribal regulations are preempted.279 Tribal ordinances have been challenged by regulated entities in several instances. In Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community280 a power company sought a preliminary injunction enjoining the community from enforcing a tribal ordinance that would regulate the transportation of radio­active materials across the community’s reservation. The ordinance forbade the transportation of any radioactive substances without a transportation license. The fee for a license for a single shipment was $1,000.281 The court issued the preliminary injunction, finding that the power company would likely prevail on its claim that the tribal ordinance was preempted by the HMTA because the tribal ordinance imposed a substantially greater burden on transporters than federal regulations.282 The fact that the community ordinance defined radioactive materials more broadly than the HMTA also was a factor in the court’s decision.283 Another challenge involving radioactive materials came in Public Service Co. v. Shoshone‑Bannock Tribes.284 Through regulation, the tribes asserted the right to ban shipments of spent nuclear fuel crossing the Fort Hall Reservation on the way from the Fort St. Vrain Nuclear Power Plant in Platteville, Colorado, to the Department of Energy’s processing plant at the Idaho National Engineer­ing Laboratory.285 The utility company brought suit in federal court, asserting that the tribal ordinance was preempted by the HMTA. An initial appeal involved an unsuccessful assertion of tribal sovereign immunity, and the issue was remanded for a decision on the merits.286 B. Surface Mining Control and Reclamation Act The Surface Mining Control and Reclamation Act (SMCRA) of 1977287 was adopted after six years of legislative consideration and two presidential vetoes of earlier acts. The Act regulates surface coal-mining activities and provides for

Pub. Serv. Co. v. Shoshone‑Bannock Tribes, 30 F.3d 1203, 1206–07 (9th Cir. 1994).

279

781 F. Supp. 612 (D. Minn. 1991), aff’d, 991 F.2d 458 (8th Cir. 1993).

280

Id. at 613–14.

281

282 Id. at 618 (citing the community’s 180-day waiting period for transportation permits and $1,000 application fee). 283 Id. The community defined radioactive substances as “all things releasing energy because of radio­ active decay unless specifically excepted by this section.” The court found that the definition included items that released no more radioactivity than that normally present in the environment. Id. at 613.

30 F.3d 1203 (9th Cir. 1994).

284

Id. at 1204–05.

285

Id. at 1208.

286

Pub. L. No. 95-87, 91 Stat. 445 (1977) (codified as amended at 30 U.S.C. §§ 1201–1328).

287

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reclamation of lands disturbed by surface and underground coal extraction.288 SMCRA established the Office of Surface Mining and Reclama­tion and Enforcement (OSM) to carry out the federal government’s responsi­bilities under the Act.289 Those responsibilities principally include promulgation of regulatory standards to govern all surface coal-mining oper­ations,290 issuance of permits to persons engaged in such operations that must contain a requirement that detailed environmental performance stan­dards are met,291 inspection and monitoring of those operations,292 and civil enforcement authority with respect to violations of permit conditions or any regulatory provision in the statute.293 OSM’s authority in this regard extends to “lands within any State[,]”294 “Federal lands[,]”295 and “Indian lands[.]”296

288 See Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 278 n.19 (1981) (tracing legislative history leading to the adoption of SMCRA); see generally Roberts A. Waters, Note, A Summary of the Legisla­tive History of the Surface Mining Control and Reclamation Act of 1977 and the Relevant Legal Periodical Liter­ature, 81 W. Va. L. Rev. 775 (1979).

30 U.S.C. § 1211.

289

Id. § 1291. Sections 701(28)(A) and (B) in part define “surface coal mining operations” as “activities conducted on the surface of lands in connection with a surface coal mine . . . and surface impacts inci­dent to an underground coal mine” and “the areas upon which such activities occur or where such activi­ties disturb the natural land surface.” Id. § 1291(28)(A), (B). 290

Id. §§ 1256, 1265.

291

Id. § 1267.

292

Id. §§ 1268, 1271.

293

The phrase “lands within any State” is defined as “all lands within a State other than Federal lands and Indian lands[.]” Id. § 1291(11). 294

295 The term “Federal lands” is defined as “any land, including mineral interests, owned by the United States without regard to how the United States acquired ownership of the land and without regard to the agency having responsibility for management thereof, except Indian lands,” and excluding certain lands entrusted to or managed by the Tennessee Valley Authority for purposes of §§ 714 and 715. Id. §§ 1291(4), 1304, 1305. 296 The term “Indian lands” is defined as “all lands, including mineral interests, within the exterior boundaries of any Federal Indian reservation, notwithstanding the issuance of any patent, and including rights‑of‑way, and all lands including mineral interests held in trust for or supervised by an Indian tribe[.]” Id. The concluding clause—“all lands including mineral interests held in trust for or super­vised by an Indian tribe”—has been construed to include off‑reservation mineral interests held in trust for a tribe, even though the surface lands are in private ownership, and allegedly off‑reservation surface lands owned by a tribe in fee, even though the subsurface mineral estate has been severed and is owned in fee by another party. Montana v. Clark, 749 F.2d 740 (D.C. Cir. 1984); Valencia Energy Co., 109 I.L.B.A. 40, 65 (1989). The “Indian lands” definition does not include allotted lands held in trust but situated outside the exterior boundaries of a reservation. See New Mexico ex rel. Energy & Minerals Dep’t v. USDOI, 820 F.2d 441, 444 (D.C. Cir. 1987). Nonetheless, mineral leasing and extraction on allotted lands where both the surface and associated mineral interests are still maintained in trust for the allottee are subject to the Secretary of the Interior’s regulations governing surface exploration, mining, and reclama­tion of lands. See 25 C.F.R. §§ 216.1–216.12. The Secretary’s authority to promulgate regulations condition­ing the issuance of mineral leases under statutes other than SMCRA is preserved in § 702(b), 30 U.S.C. § 1292(b), but he has limited application of the performance standards in 25 C.F.R. §§ 216.100–216.111 until OSM issues or denies a permit under SMCRA. 25 C.F.R. § 216.100(a); 30 C.F.R. § 750.16.

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With respect to “lands within any State,” SMCRA authorizes states to adopt both regulatory and abandoned mine reclamation programs.297 Upon approval of its regulatory program, a state assumes direct permitting and enforcement responsibilities as to ongoing and new surface coal-mining operations. OSM then assumes an oversight role.298 Where an approved state reclamation pro­ gram exists, the state must receive one‑half of the reclamation fee assessed under section 402(a) with respect to all mining activity within the state except, under OSM regulations, that on “Indian lands” the remaining half of the section 402(a) reclamation fee may be expended in any state at the Sec­retary’s discretion.299 “Federal lands” are subject to OSM authority for regulatory and reclama­ tion program purposes under SMCRA, although that agency may enter into a cooperative agreement with any state having an approved program “to pro­ vide for State regulation of surface coal mining and reclamation operations on Federal lands within the State[.]”300 As to “Indian lands[,]” Congress directed the Secretary “to study the question of the regulation of surface min­ing on Indian lands which will achieve the purpose of this [act] and recognize the special jurisdictional status of these lands” and to submit a report by Jan­uary 1, 1978.301 Within 30 months of SMCRA’s effective date, all surface coal-mining activities on Indian lands were to comply with, inter alia, the statute’s reclamation plan requirements, performance bond obligations, and environ­mental protection performance standards. Those statutory provisions were to be incorporated

297 30 U.S.C. §§ 1235, 1253. Section 405(b) of SMCRA authorizes adoption of state reclamation pro­ grams for “coal mined lands eligible for reclamation[,]” which, under § 405(b), must be within the state’s borders. Id. §§ 1234, 1235(b). Although such lands could include both “Federal lands” and “Indian lands,” OSM views the scope of a state reclamation program as geographically coterminous with that of a state regulatory program, relying on the definition of “State program” that “means a program established by a State pursuant to section [503] of this [act] to regulate surface coal mining and reclama­tion operations, on lands within such State[.]” Id. § 1291(25); see Montana v. Clark, 749 F.2d 740, 747 n.14 (D.C. Cir. 1984). 298 30 U.S.C. §§ 1256, 1271(b); see In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 518–21 (D.C. Cir. 1981) (en banc); see generally John D. Edgcomb, Comment, Cooperative Federalism and Environmental Protection: The Surface Mining Control and Reclamation Act of 1977, 58 Tul. L. Rev. 299 (1983); K.W. James Rochow, The Far Side of Paradox: State Regulation of the Environmental Effects of Coal Mining, 81 W. Va. L. Rev. 559 (1979). Regulations detailing the status of each state under SMCRA are set forth at 30 C.F.R. §§ 901–950. 299 30 U.S.C. § 1232(g); 30 C.F.R. § 872.11(b)(2), (3); see Montana v. Clark, 749 F.2d 740, 746–52 (D.C. Cir. 1984). 300 30 U.S.C. § 1273(c). Regulations detailing the status of each state under SMCRA are set forth in 30 C.F.R. §§ 901–950. 301 30 U.S.C. § 1300(a) and (b). Section 710(h) also directs the Secretary to “analyze and make recom­ mendations regarding the jurisdictional status of Indian Lands outside the exterior boundaries of Indian reservations” and then adds a proviso that “nothing in this [act] shall change the existing jurisdictional sta­tus of Indian Lands.” Id. § 1300(h). While the proviso’s purpose is hardly clear, it presumably is not intended to modify SMCRA’s otherwise express treatment of Indian lands as distinct from “Federal lands” and “lands within any State.” Thus, to the extent a state may have had arguably greater regulatory juris­diction over surface coal-mining activities on lands encompassed within the definition of Indian lands prior to the statute’s enactment, the proviso cannot be read as preserving such jurisdictional claim. Con­versely, the mere inclusion of lands within that definition should not alter jurisdictional relationships for other purposes.

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into existing and new coal leases.302 Although the study report was submitted in 1979, no action has been taken with regard to tribal regulatory authority over such lands.303 Tribes are deemed “states” under sec­tion 405(k)304 for reclamation program purposes, but the absence of tribal reg­ulatory authority has generally prevented the Secretary from granting them reclamation program authority.305

302 Id. § 1300(d); see In re Surface Mining Regulation, 627 F.2d 1346, 1363–65 (D.C. Cir. 1980); 30 C.F.R. §§ 750.12, 750.16, 750.17. 303 See Montana v. Clark, 749 F.2d 740, 741 n.1 (D.C. Cir. 1984). Regulations governing OSM’s responsi­ bilities with respect to Indian lands do require it to consult with the Bureau of Indian Affairs (BIA) before approving permits for surface coal-mining operations, and the BIA is obligated to consult with the affected tribe. 30 C.F.R. § 750.6(a)(2), (d). When special extraction or reclamation requirements relating to protection of noncoal resources exist, OSM must consult directly with both the BIA and the involved tribal government. Id. § 750.6(a)(4). OSM is further required to give notice of on‑site inspections to tribal representatives, who may then accompany the agency inspector. Id. § 750.18(d). Lastly, the agency is authorized to enter into agreements with tribes “to allow [a] tribe to work with and assist OSM in the review of permit applications, and to recommend appropriate action on permits, permit applications, inspection and enforcement, and bond release or forfeiture[.]” Id. § 755.12(a). 304 30 U.S.C. § 1235(k). The term “State” is defined for all other purposes as “a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa and Guam[.]” Id. § 1291(24). 305 Id. § 1235(c); see Montana v. Clark, 749 F.2d 740, 741–42 (D.C. Cir. 1984). The absence of such authority also is reflected arguably by the first proviso in section 523(a), “[t]hat except as provided in sec­tion [710] . . . the provisions of this [act] shall not be applicable to Indian lands.” 30 U.S.C. § 1273(a). Noth­ing in § 710 accords tribes reclamation program authority. Whether § 523(a) should be so read, however, is questionable in view of section 405(k) and a 1987 amendment to the latter provision permitting the Crow, Hopi, and Navajo Tribes to assume reclamation program responsibilities without an approved regulatory program. Those tribes now have approved reclamation programs. 30 C.F.R. pt. 756.

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American Indian Law Deskbook, Fourth Edition

Chapter 11 Taxation in Indian Country

Taxation has been a frequent source of controversy between states and Indian tribes. Freedom of a sovereign government from taxation by another sovereign has been recognized as an important aspect of our federal system, and this concept has been extended to activities of Indian tribes and mem­bers within their reservations. Indian reservations continue to be parts of the states in which they are located, however, so state sovereignty over the same geographic areas exists. State authority in this respect is particularly relevant when taxation of nonmembers for activities or transactions within Indian country is involved. The tension that exists when state and tribal sovereignty apply to the same parties and activities has given rise to considerable litiga­tion over the last thirty years and continues to do so today. While that litigation has served to clarify many of the basic rules governing the respective powers of states and tribes, the proper application of those rules continues to challenge federal and state courts. I. TRIBAL TAXATION AUTHORITY Indian tribes are governments that have long been recognized as possessing the power to impose taxes within their jurisdictions, although until recently this power was often unused. In Washington v. Confederated Tribes of Colville Indian Reservation the Supreme Court confirmed that a tribe’s inherent authority to regulate activity occurring within the boundaries of its reservation was not limited solely to internal matters among tribal members, but that a tribe’s inherent authority included the power to tax nonmember cigarette purchases from tribal vendors occurring on the reservation. The Court held that “[t]he power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).



Felix S. Cohen, Handbook of Federal Indian Law 142–43 (1941).



447 U.S. 134 (1980).



464

Taxation in Indian Country

465

the tribes retain unless divested of it by federal law or necessary implication of their dependent status.” The Supreme Court elaborated on the source of tribal authority to tax in Merrion v. Jicarilla Apache Tribe. Merrion involved a tribal severance tax, which had been approved by the Secretary of the Interior pursuant to a requirement under the tribe’s constitution and bylaws, imposed on oil and gas leases executed as far back as 1953 under the 1938 Indian Min­eral Leasing Act. The tax was challenged as being beyond the scope of tribal power to tax and a violation of the Commerce Clause. The Court stated: The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial manage­ment. This power enables a tribal government to raise revenues for its essential services. The power does not derive solely from the Indian tribe[’]s power to exclude non-Indians from tribal lands. Instead, it derives from the tribe’s general authority, as sovereign, to control eco­nomic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enter­prises engaged in economic activities within that jurisdiction.

Two years later the Court extended the holding in Merrion to a tribe that, unlike the Jicarilla Tribe, was not chartered under the Indian Reorganization Act of 1934 and did not need approval by the Secretary of the Interior of its taxation ordinance. Supreme Court decisions addressing the scope of tribal powers over nonmembers establish that tribal powers over nonmembers are limited. In Montana v. United States10 the Court held that an Indian tribe had no power to regulate non-Indian hunt­ing and fishing on reservation land owned by nonmembers of the tribe. The Court noted that “exercise of tribal power beyond what is necessary to pro­tect tribal self-government or to control internal relations is inconsistent with the dependent status of tribes, and so cannot survive without express congressional delegation.”11 The Court recognized two exceptions to this general rule.12 First, a tribe may regulate through taxation and other means

Id. at 152.



455 U.S. 130 (1982).



25 U.S.C. §§ 396a–396g.



Merrion, 455 U.S. at 137.



25 U.S.C. §§ 461–479.



Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985) (rejecting contentions that the Indian Reorgani­ zation Act and the Indian Mineral Leasing Act reflected congressional intent that tribal mineral taxation ordinances must have received secretarial approval as a condition precedent to being valid). 

450 U.S. 544 (1981).

10 11

Id. at 564. Id. at 565.

12

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the activities of nonmembers who enter consensual relations with the tribe or its members through commercial dealings, contracts, leases, or other arrangements.13 Second, a tribe retains inherent power to exercise civil authority over non-Indian conduct within its reservation when that conduct threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe.14 Regardless of the pre­cise contours of the Montana exceptions, the ordinary presumption against the exercise of inherent tribal authority over nonmembers reflected in that and Supreme Court decisions over the next twenty years would prove strong.15 Until 2001, the principal unresolved issue with respect to the scope of tribal taxing power was the extent to which the inherent authority rules being devel­oped in other areas of Indian law apply. The majority opinion in Merrion made no reference to Montana, but the oil and gas lessee was carrying out its production activities on tribal lands, not non-member-owned lands.16 Responding to the dissent’s contention that the tribe’s power to regulate derived exclusively from its right to exclude persons from tribal lands and that such right had been waived implicitly in the leases, the Court stressed, “[w]e do not question that there is a significant territorial component to tribal power: a tribe has no authority over a nonmember until the nonmember enters tribal lands or conducts business with the tribe.”17 Since the term “tribal lands” likely referred to lands owned by the tribe within its reserva­tion, the Court by negative inference limited the tribal taxing authority to persons consensually entering those lands or otherwise choosing to conduct business with the tribe. This formulation of the scope of inherent tribal power, while differing from that in Montana, nonetheless could be brought within the first, or consent, exception in the earlier decision.18

Id.

13

Id.

14

Strate v. A-1 Contractors, 520 U.S. 438 (1997); South Dakota v. Bourland, 508 U.S. 679 (1993); Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408 (1989). 15

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 135 (1982).

16

Id. at 142. The Court’s formulation was influenced by several cases dealing with tribal taxation pow­ ers that were decided in the early part of the twentieth century and were discussed at length in the major­ity and dissenting opinions. Id. at 141–44 and 175–83 (Stevens, J., dissenting). All three cases arose in Indian Territory and involved application of tribal laws imposing taxes on the privilege of doing business. Morris v. Hitchcock, 194 U.S. 384 (1904) (permit tax imposed on cattle, horses, and mules owned by nonmembers within tribe’s territory); Buster v. Wright, 135 F. 947 (8th Cir. 1905) (privilege tax imposed on nonmembers trading within tribe’s territory), appeal dismissed, 203 U.S. 599 (1906); Maxey v. Wright, 54 S.W. 807 (Ct. App. Ind. Terr.) (occupation tax imposed on attorneys carrying on their profession within tribe’s territory), aff’d, 105 F. 1003 (8th Cir. 1900). 17

18 See FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1314–15 (9th Cir. 1990) (sustaining applicability of tribal employment ordinance to corporation doing business on fee land on the basis of various contracts with tribe and its members, including leases to mine phosphate slate processed in plant, and employment of some members).

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The Supreme Court removed any doubt over the applicability of Montana-based principles to the taxation context in Atkinson Trading Co. v. Shirley.19 There the Court held that Montana’s general rule governed determination of whether the Navajo Nation could impose an 8 percent hotel occupancy tax on nonmember guests of a nontribal business.20 It rejected the contention that Merrion established an inherent authority standard for taxation more generous to a tribe than that in other civil regulatory contexts because “[a]n Indian tribe’s sovereign power to tax—whatever its derivation—reaches no further than tribal land.”21 This conclusion was consistent with Merrion, the Court explained, since the situation there “involved a tax that only applied to activity occurring on the reservation” and the case’s holding was “therefore easily reconcilable with the Montana-Strate line of authority.”22 The Court went on to find that neither Montana exception applied. With respect to the first, or consent, exception, the Court held that the controlling consensual relationship must stem from commercial dealings, contracts, leases, or other arrangements and that merely receiving tribal services was an insufficient predicate for tribal taxation authority.23 With respect to the second exception—i.e., jurisdiction is necessary to protect tribal selfgovernment or to control internal relations—the Court held that there may be no assertion of civil authority beyond tribal lands within a reservation unless the drain of the nonmember’s conduct upon tribal services is so severe that it directly imperils the tribe’s political integrity.24 The Court’s reasoning thus appears to leave little, if any, room for tribes to tax activities by nonmembers on nontribal land. Indeed, even before the Atkinson Trading decision was issued, the Ninth Circuit Court of Appeals had recognized, given Strate’s reasoning, the applicability of Montana standards to a nonmember challenge to a tribal tax in Big Horn County Electric Cooperative, Inc. v. Adams.25 The Big Horn court invalidated a 3 percent ad valorem tax imposed upon an electric cooperative’s property located on a federally granted right-of-way and, in so holding, deemed existing

532 U.S. 645 (2001).

19

Id. at 648.

20

Id. at 653.

21

Id.

22

Id. at 655.

23

Id. at 657 n.12. The limited availability of the second Montana exception as a general matter was reiterated subsequently in Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709 (2008). As the Court explained, “[t]he [nonmember] conduct must do more than injure the tribe, it must ‘imperil the subsistence’ of the tribal community” and cited favorably a treatise for the proposition that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.” Id. at 2726 (quoting Cohen’s Handbook of Federal Indian Law § 4.02[3][c], at 232 n.220 (Nell Newton et al. eds. 2005)). 24

219 F.3d 944 (9th Cir. 2000).

25

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circuit precedent that supported a contrary result, Burlington Northern Railroad v. Blackfeet Tribe,26 overruled by Strate.27 It reasoned, in part, that “Montana limits tribal jurisdiction under the first exception to the regulation of activities of nonmembers.”28 More recently, in Burlington Northern Santa Fe Railway v. Assiniboine and Sioux Tribes,29 the court of appeals held that the 1991 Burlington Northern decision was not binding even between the parties under res judicata principles and rejected the contention that the first Montana exception could be employed to justify the tax. With respect to res judicata, the court reasoned that the earlier decision did “not preclude [the railroad’s] claim that an intervening change of law rendered the Company’s future payments of taxes, distinct annual events, invalid.”30 With respect to the consent exception, the court followed the analysis in Big Horn and stated that the tribal exaction “taxes the right-of-way property directly, in a manner that has no nexus to any consensual relationship between the Tribes and [the railroad].”31 It explicitly disavowed the suggestion in the prior decision that the railroad’s voluntarily seeking a right-of-way under an 1888 statute gave rise to the requisite consent to the tax as “misread[ing] the nature of the first Montana exception” given intervening case law.32 The court nevertheless found error in the district court’s denial of an opportunity for discovery related to applicability of the second Montana exception and remanded for further proceedings.33 Factual issues aside, Burlington Northern Santa Fe reflects the basic conclusion that, after Atkinson Trading, no dispute remains that Montana standards govern determination of a tribe’s inherent authority to tax nonmembers.34

924 F.2d 899 (9th Cir. 1991).

26

Big Horn, 219 F.3d at 953.

27

Id. at 951 (emphasis supplied). This understanding of the first Montana exception was subsequently endorsed by the Supreme Court in Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709, 2721 (2008). 28

323 F.3d 767 (9th Cir. 2003).

29

Id. at 771.

30

Id. at 772.

31

Id. at 772 n.5.

32

Id. at 774 (“[t]he Tribes cannot show that there is a genuine issue of material fact concerning whether their political integrity, economic security, health, or welfare is directly threatened in a serious and substantial manner if they are not permitted some discovery on the nature of the threat facing them prior to the summary judgment determination”). Whether remand with respect to potential availability of the second exception would have occurred under the “catastrophic” standard later approved in Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709, 2726–27 (2008), is open to question. 33

34 See Reservation Tel. Coop. v. Henry, 278 F. Supp. 2d 1015, 1018–24 (D.N.D. 2003) (applying Montana, and holding that tribe lacked authority to impose possessory interest tax on cooperative’s telephone lines and rights-of-way within reservation); cf. Willman v. Washington Utils. & Transp. Comm’n, 93 P.3d 909, 915 (Wash. Ct. App. 2004) (rejecting challenge to utility’s determination to pay tribal franchise fee and utility commission’s determination to allow such fee to be passed through to the utility’s customers; the commission “does not act arbitrarily or capriciously by permitting utilities to recover taxes unless they are clearly invalid”—a conclusion not possible “on the limited record before the [commission] and us”), aff’d, 117 P.3d 343 (Wash. 2005).

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Finally, the Supreme Court held in Merrion that the sovereign power of a tribe to tax may only be waived if evidenced by unmistakable contractual terms.35 No decision thus far has found such a waiver, although, in another context, a tribe has been deemed to have waived its power to regulate a nonmember corporation under the terms of a contract.36 II. STATE TAXATION AUTHORITY A. General Principles The Supreme Court early held that the laws of a state have no force within the territory of an Indian tribe.37 Modern cases do not follow that rule generally or in the specific context of taxation. Instead, courts employ a more flexible approach under which state laws apply to Indian country transactions or property involving nontribal members unless authority to do so is pre­empted by federal statute or treaty or otherwise would infringe upon the rights of tribes to make their own laws and be ruled by them.38 As for tribes and their members, a more bright-line standard governs where state taxation is involved: State taxes will not apply to their on-reservation activities or property unless Congress has authorized them in unmistakable terms. Essentially the converse applies where off-reservation activities or property is taxed. There, state laws including taxes may be given effect unless Congress has expressly indicated otherwise. The latter principle reflects the territorial limitations on tribal self-government and, necessarily, the weight to be accorded tribal interests.39 Resolution of Indian law tax issues thus requires careful attention to, most importantly, where the taxable transaction occurs;40 the state law– ­defined nature of the tax—i.e., identifying what is being taxed and who bears

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).

35

Ariz. Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1135 (9th Cir. 1995); cf. United States v. Winstar Corp., 518 U.S. 839, 876–77 (1996) (discussing “unmistakability doctrine” in the context of federal contracts and its application in Merrion). 36

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

37

Although most decisional authority in this area has arisen in con­nection with reservations, the Supreme Court has made clear the principle that this special rule has appli­cation to any land within the definition of “Indian country” under 18 U.S.C. § 1151. Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991); accord Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 123 (1993). 38

39 See, e.g., Sac and Fox Nation, 508 U.S. at 123 (“[t]he [Indian country] residence of a tribal member is a significant component of the McClanahan presumption against state tax jurisdiction”); Citizen Band Potawatomi Indian Tribe, 498 U.S. at 511 (reaf­firming jurisdictional consequences of engaging in conduct off reservation). 40 See, e.g., Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 101–02 (2005); Sac and Fox Nation, 508 U.S. at 126–27; County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 268–70 (1992); United States ex rel. Cheyenne River Sioux Tribe v. South Dakota, 105 F.3d 1552, 1556 (8th Cir. 1997); see also Dark-Eyes v. Comm’r, 887 A.2d 848, 858 (Conn. 2006) (relying on Sac and Fox, and holding the tribal member who did not reside within Indian country was subject to state income taxation).

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its legal incidence; and whether the on-reservation activity taxed is centered in a commercial relationship between the taxpayer and a tribe and, if so, the nature of any federal statutes or regulations applicable to the relationship and whether the state provides services generally to the reservation or the taxed nonmember.41 A more detailed discussion of these broad principles reflects the analytical complexity that can attend their application. 1. Taxation of tribes and tribal members In reviewing on-reservation taxes imposed on tribes or their members, the Supreme Court has adopted a per se rule. Imposition of the legal incidence of state taxes on tribes or tribal members with respect to transactions or property on their reservation is presumptively invalid.42 As it explained in California v. Cabazon Band of Mission Indians: We have repeatedly addressed the issue of state taxation of tribes and tribal members and the state, federal, and tribal interests which it implicates. We have recognized that the federal tradition of Indian immunity from state taxation is very strong and that the state interest in taxation is correspondingly weak. Accordingly, it is unnecessary to rebalance these interests in every case.43

This categorical rule is subject to congressional modification, but Congress must evince its intention to do so in “unmistakably clear” terms.44 It is settled, however, that this rule applies only to a reservation’s governing tribe or its members and that Indians who are not members of the tribe stand no differently than non-Indians for state tax purposes.45 The most nettlesome element of the categorical rule’s application has proven to be identifying whether the tribe or a tribal member bears the involved tax’s legal incidence. The concept of “legal incidence” was developed by the Supreme Court orginally to determine whether a state tax was imposed on the United States rather than a contractor with which the federal government was doing business.46 It must be distinguished from the “economic incidence”

Sac and Fox Nation, 508 U.S. at 126.

41

Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995).

42

480 U.S. 202, 215 n.17 (1987).

43

E.g., Montana v. Blackfeet Tribe, 471 U.S. 759, 765 (1985); County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 258 (1992). 44

45 Washington v. Confederated Tribes of the Colville Reserv., 447 U.S. 134, 161–62 (1980); accord In re Smith, 158 B.R. 818 (Bankr. D. Ariz. 1993); New Mexico Taxation and Revenue Dep’t v. Greaves, 864 P.2d 324 (N.M. Ct. App. 1993); State v. Dillon, 826 P.2d 1186 (Ariz. Ct. App. 1991); but see Flat Ctr. Farms, Inc. v. State, 49 P.3d 578, 582 (Mont. 2002) (expressing skepticism over the general proposition that nonmember Indians are taxable as non-Indians and holding that a state-chartered corporation owned by a tribal member and a nonmember Indian spouse is not taxable on its activities that have an on-reservation site). 46 Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954) (“[t]he doctrine of sovereign immunity is so embedded in constitutional history and practice that this Court cannot subject the Government or its official agencies to state taxation without a clear congressional mandate”).

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of tax that may fall upon the United States without constitutional embarrassment.47 The importance of determining legal incidence in an Indian law context was established in Moe v. Confederated Salish and Kootenai Tribes,48 where the Court upheld a cigarette tax to the extent imposed on non-Indian purchasers at tribal smokeshops. The object of legal incidence analysis is to determine the economic actor on whom the involved state legislature has imposed the legal incidence—i.e., the person whom the legislature has designated or otherwise indicated as having the legal obligation to pay the tax either directly or through another participant in the commercial transaction.49 Consequently, although determination of where a state legislature has placed legal incidence presents a question of federal law, the inquiry is always focused on discerning legislative intent.50 In the absence of an express legislative declaration concerning the entity bearing legal incidence, significant difficulty can attach to resolving the question.51 Even a state legislature’s express allocation of legal incidence has been found inadequate by some lower federal courts to identify the party bearing the tax’s legal burden.52

47 United States v. Boyd, 378 U.S. 39 44 (1964) (“[t]he Constitution immunizes the United States and its property from taxation by the States, . . . but it does not forbid a tax whose legal incidence is upon a contractor doing business with the United States, even though the economic burden of the tax, by contract or otherwise, is ultimately borne by the United States”); accord Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32, 36 (1999); United States v. New Mexico, 455 U.S. 720, 735 n.11 (1982). 48 425 U.S. 463, 482 (1976); accord Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 150–51 (1980). 49 See United States v. California State Bd. of Equalization, 650 F.2d 1127, 1130–31 (9th Cir. 1981), aff’d mem., 456 U.S. 901 (1982). 50 E.g., Gurley v. Rhoden, 421 U.S. 200, 208 (1975); Am. Oil Co. v. Neill, 380 U.S. 451, 455–56 (1965); see also Barona Band of Mission Indians v. Yee, 528 F.3d 1184, 1190 (9th Cir. 2008) (examining “the underlying [state] statute to determine whether the legal incidence falls upon the Tribe,” and agreeing with district court that interpretive regulations established the incidence fell upon the construction contractor “ ‘consumer’ ” and not the tribe; declining to recognize tribe’s attempted “end-run around the ‘legal incidence’ test by structuring its contract to designate subcontractors as ‘purchasing agents’ for the tax-exempt Tribe”); cf. Winnebago Tribe v. Kline, 150 P.3d 892, 900, 903 (Kan. 2007) (Nebraska tribe importing motor fuel into Kansas for on-reservation sale bore no fuel tax liability since, under relevant state statutes, such liability attaches only to the “distributor of first receipt” and not importers to whom “no transfer of possession” of the fuel in Kansas occurs). 51 See, e.g., Wagnon v. Prairie Band Potawatomi Nation, 546 U.S.. 95, 102 (2005); Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 461 (1995); California State Bd. of Equal. v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985) (per curiam); Sac and Fox Nation v. Pierce, 213 F.3d 566, 578–80 (10th Cir. 2000); Goodman Oil Co. v. State Tax Comm’n, 28 P.3d 996, 1002–04 (Idaho 2001). 52 See Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d 881, 888 (6th Cir. 2007) (reasoning that, “if the actual operation of the tax contravenes the expressed legislative purpose, it would make little sense to rely entirely on a statement of legislative intent, and an examination of the operation of the law is thus warranted[,]” but concluding that a permissive, rather than mandatory, pass-through of the tobacco tax from retailer to consumer and the absence of a bad debt provision for retailers did not serve to negate the legislative declaration that consumers bear the tax’s legal incidence); Coeur d’Alene Tribe v. Hammond, 384 F.3d 674, 684 (9th Cir. 2004) (“while the legislative declaration is ‘dispositive’ as to what the legislature intended, removing the need to predict the legislative aim from reports and legislative statements, it cannot be viewed as entirely ‘dispositive’ of the legal issue that the federal courts are charged with determining as to the incidence of the tax”); Squaxin Island Tribe v. Stephens, 400 F. Supp. 2d 1250, 1255–56 (W.D. Wash. 2005) (following Hammond, and declining to give effect to express legislative allocation of fuel tax’s legal

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A different but similarly categorical rule controls where the state taxation is directed to off-reservation activities or property of a tribe or tribal members. In that situation, “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non­discriminatory state law otherwise applicable to all citizens of the State.”53 That this rule stands in direct counterpoint to the per se approach adopted when the activity or property is reservation-based seems implicit in the fact that the Court issued its decision in McClanahan v. State Tax Commission54 on the same date as Mescalero Apache. There, it invalidated a state tax imposed on a tribal member’s reservation-derived income.55 Indian country status of the location where the tax initially attaches is therefore a critical concern in assessing the reach of state law.56 Under the Mescalero Apache standard, the Court upheld imposition of a state tax on an off-reservation tribal ski resort’s gross receipts but not a compensating use tax imposed on materials used to construct a ski lift. The first tax was deemed appropriate because no federal statute precluded it; the second was found impermissible because the land on which the ski resort was located fell within the protective ambit of 25 U.S.C. § 415, which allows the Secretary of the Interior to take land into trust and proscribes state taxation of such land.57 The phrase “express federal law to the contrary” seemingly would mean law providing an explicit exemption for state taxation, but the Ninth Circuit Court of Appeals has interpreted it as encompassing treaty provisions that make no reference to state taxes and require elaboration through extrinsic

incidence), reconsider. denied, 2006 WL 278559, at *3 (W.D. Wash. Feb. 3, 2006) (characterizing Wagnon’s legal incidence analysis as “relatively brief[,]” and declining to alter prior legal incidence determination), and Squaxin Island Tribe v. Stephens, 2006 WL 521715, at *2–*3 (W.D. Wash. Mar. 2, 2006) (following Hammond with respect to determining special fuel tax’s legal incidence). Mescalero Apache Tribe v. Jones, 411 U.S. 145, 147–48 (1973).

53

411 U.S. 164 (1973).

54

Id. at 171 (“ ‘Indians and Indian property on an Indian reservation are not subject to State taxation except by virtue of express authority conferred upon the State by act of Congress’ ”). 55

56 Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 110–15 (2005) (rejecting Bracker interestbalancing standards where tax was imposed on nontribal distributor with respect to off-reservation receipt of fuel later marketed to tribal retailer); see also Oneida Indian v. City of Sherrill, 337 F.3d 139, 154 (2d Cir. 2003) (because “land in Indian country, including reservation land, is not subject to state taxation absent express congressional authorization[,]” Indian country status of land where tribally owned property was located controlled resolution of challenge to local ad valorem taxation), rev’d on other grounds, 544 U.S. 197 (2005); Tunica-Biloxi Tribe v. Bridges, 437 F. Supp. 2d 599 (M.D. La. 2006) (taxable event occurred off reservation where sale was consummated under state law–based standards); see generally Kelly Gaines Stoner and Casey Ross-Petherick, The “Who and Where” Means the State Takes All: State Taxation Crosses Into Indian Country, 30 Am. Indian L. Rev. 385, 395 (2005–2006) (discussing the development of the Wagnon litigation and the significance of “exactly where the act giving rise to the tax liability occurs” because “[i]f the act is delivery of the motor fuel by the refinery to [a] tribal distributor’s place of business (assuming the place of business is Indian country), then the legal incidence of the tax will fall squarely on the tribe in Indian country and should be entitled to a categorical [preemption] bar”). Precedent prior to Wagnon suggesting that Bracker standards apply where the taxable event occurs outside Indian country is thus overruled. E.g., Ketchikan Gateway Borough v. Ketchikan Indian Corp., 75 P.3d 1042, 1047 n.22 (Alaska 2003).

411 U.S. at 155–59.

57

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evidence to support the exemption.58 Whether this interpretation comports with the Supreme Court’s intent in Mescalero Apache is open to question.59 2. State taxation of nonmembers Courts have recognized that states have extensive jurisdiction over per­sons who are not members of any tribe. Nonmembers are presumptively taxable by a state with respect to on-reservation activities,60 but the courts will look beyond the legal incidence of the tax so that even though the tax is legally imposed on a nonmember, it may be barred if it is deemed to interfere impermissibly with a federal regulatory scheme or tribal sovereignty.61 For example, in Warren Trading Post v. Arizona Tax Commission,62 the Supreme Court held the Arizona transaction privilege tax could not be applied to a sale by a licensed Indian trader for sales to tribal members, even though the legal incidence of the tax was on the non-Indian seller. Conversely, sales or like taxes imposed on reservation purchases by nonmembers have been upheld subsequently in a series of cases.63 With respect to taxing on-reservation activities by, or property, of nonmembers, the Supreme Court has identified two independent but related potential barriers to the taxation.64 First, state authority may be preempted by federal law.65 Second, it may infringe on the right of the reservation Indians to

58 Cree v. Flores, 157 F.3d 762 (9th Cir. 1998) (applying Indian canons of construction, and concluding that the treaty provision that reserved to tribal members “the right, in common with citizens of the United States, to travel upon all public highways” prohibited imposition of state truck registration and gross weight fees); cf. Ramsey v. United States, 302 F.3d 1074 (9th Cir. 2002) (declining to find exemption from federal taxes for heavy vehicle and diesel fuel use under 26 U.S.C. §§ 4041 and 4481 for the same tribal member taxpayer as in Cree on the basis of the treaty right); see generally infra notes 319–323 and accompanying text (contrasting application of Indian canons of construction where federal and state tax exemptions are claimed). 59 See Mescalero Apache, 411 U.S. at 156 (implying that ordinary standards for determining the existence of an exemption from generally applicable tax govern; “ ‘[i]f Congress intends to prevent the State . . . from levying a general non-discriminatory estate tax applying alike to all its citizens, it should say so in plain words. Such a conclusion can not rest on dubious inferences’ ”); see also Chickasaw Nation v. United States, 534 U.S. 84, 95 (2001) (discussing the interaction of the presumption against tax exemptions and the Indian canons of construction); Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 464–65 (1995) (rejecting reliance on treaty provision “ ‘that no Territory or State shall ever have a right to pass laws for the government of the [Chickasaw] Nation of Red People and their descendants’ ” as exempting tribal members living off reservation from state taxation with respect to income earned on reservation). 60 See County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 257–58 (1992) (“[t]his Court’s more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on reservation lands”).

White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).

61

380 U.S. 685 (1965).

62

See Dep’t of Taxation and Fin. v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 71 (1994).

63

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980).

64

Id. at 142.

65

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make their own laws and be ruled by them.66 While in theory, either barrier can be a sufficient basis for striking down a state law,67 in practice the Court has found the first dispositive in determining the validity of taxes imposed on nonmembers, with tribal sovereignty traditions used to inform the posi­tive federal law preemption analysis.68 In determining whether federal law preemption exists, the Supreme Court has directed a “particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific con­text, the exercise of state authority would violate federal law” and thus be preempted.69 “State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in fed­eral law, unless the state interests at stake are sufficient to justify the assertion of state authority.”70 In conducting this balancing of federal, tribal, and state interests, “[t]he traditional notions of Indian sovereignty provide a crucial ‘backdrop’ against which any assertion of state authority must be assessed.”71 There are numerous factors that inform the required “partic­ularized inquiry.” One highly relevant consideration is whether the taxed activity involves only nonmembers.72 Given the limited tribal sovereignty over nonmembers, tribal sovereignty has been accorded little weight as a “backdrop” in assessing the legality of a state tax where the sole parties to the taxed transactions are nonmembers subject to state jurisdiction.73 Another factor is whether the state

Id.; see also Williams v. Lee, 358 U.S. 217 (1959).

66

Bracker, 448 U.S. at 143.

67

Id.; see also Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 176 (1989) (“[a]lthough determining whether federal legislation has preempted state taxation of lessees of Indian land is primarily an exercise in examining congressional intent, the history of tribal sovereignty serves as a necessary ‘backdrop’ to that process”). 68

69 Bracker, 448 U.S. at 145; accord Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 837 (1982); see also Peabody Coal Co. v. State, 761 P.2d 1094, 1100 (Ariz. Ct. App. 1988) (“while the [United States Supreme] Court has not articulated a specific preemption/sovereignty test, other than the particularized interests analysis previously mentioned, all cases involved a two-pronged inquiry into: (1) whether a suf­ ficient state interest supported imposition of the tax, despite heavy federal regulation of the taxed activ­ity, and (2) how did the tax directly or indirectly impact upon Indians, that is, where did the economic burden of the tax fall as compared to where the legal burden of the tax was initially imposed”); but see Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999) (rejecting the interest-balancing test, and instead adopting a bright-line standard under which nonmembers contracting with the federal government are subject to nondiscriminatory state taxation unless Congress expressly provides otherwise).

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983).

70

Id. at 334–35.

71

72 Gila River Indian Cmty. v. Waddell, 91 F.3d 1232 (9th Cir. 1996); Salt River Pima-Maricopa Indian Cmty. v. Yavapai County, 50 F.3d 734 (9th Cir. 1995). 73 See infra part I. Indeed, one state appellate court has concluded that “the infringement doctrine as now conceived by the United States Supreme Court does not apply in cases testing the legality of state taxation of non-Indians arising out of on-reservation transactions, regardless of whether the economic burden of the tax is passed along to reservation Indians.” Loveness v. State ex rel. Arizona Dep’t of Revenue, 963 P.2d 303, 309 (Ariz. Ct. App. 1998).

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provides res­ervation services generally or to the taxed activity itself, because the courts have looked with disfavor on taxation when “the State has had nothing to do with the on-reservation activity, save tax it.”74 Also considered has been whether an “unusually large state tax has imposed a substantial burden” on a tribe.75 Fur­ther, as in the case of cigarette sales to nonmembers where the seller’s business effectively relies on the marketing of an exemption from state taxation, tribal interests are “strongest when the revenues are derived from value generated on the reser­vation by activities involving the Tribes and when the taxpayer is the recipient of tribal services,” and state interests are “strongest when the tax is directed at off-reservation value and the taxpayer is the recipient of state services.”76 In some contexts federal policies supporting tribal development and self-suffi­ciency have been viewed as significant.77 Lastly, in two decisions the Supreme Court stressed the fact that a tax imposed an economic burden on a tribe and, in so doing, interfered with the federal statutory or regulatory scheme within which the taxed transaction occurs, but in others it has been reluctant to assign preemptive effect to the mere adverse economic impact of state taxes on tribal or tribal member profits.78

74 Compare Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 186 (1989), with Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 844–46 (1982). 75 Cotton Petroleum, 490 U.S. at 186 n.17; see Montana v. Crow Tribe, 484 U.S. 997 (1988), summarily aff’g 819 F.2d 895 (9th Cir. 1987); see also Crow Tribe v. Montana, 650 F.2d 1104 (9th Cir. 1981), amended, 665 F.2d 1390 (9th Cir. 1982). 76 Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134, 156–57 (1980). The Supreme Court often looks to the duties or responsibilities of the state in relation to the imposition of the tax. Cotton Petroleum, 490 U.S. at 163; Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 843 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. at 150; Warren Trading Post, 380 U.S. at 691. 77 Ramah Navajo, 458 U.S. at 838. The Supreme Court has rejected, however, the federal policy of encouraging tribal economic development as an overriding force preempting an otherwise valid state tax. Colville, 447 U.S. at 155; see also Cotton Petroleum, 490 U.S. at 187. 78 Compare Ramah Navajo, 458 U.S. at 844 n.8 (finding “it significant that the economic burden of the asserted taxes would ultimately fall on the Tribe, even though the legal incidence of the tax was on the non-Indian logging company”); and Bracker, 448 U.S. at 151 (same), with Cotton Petroleum, 490 U.S. at 186–87 (“It is, of course, reasonable to infer that the New Mexico taxes have at least a marginal effect on the demand for on-reservation leases, the value to the Tribe of those leases, and the ability of the Tribe to increase its tax rate. Any impairment to the federal policy favoring the exploitation of on-reservation oil and gas resources by Indian tribes that might be caused by these effects, however, is simply too indirect and too insubstantial to support Cotton’s claim of preemption. To find preemption of state taxation in such indirect burdens on this broad congressional purpose, absent some special factor such as those present in Bracker and Ramah Navajo School Board, would be to return to the pre-1937 doctrine of inter­governmental tax immunity”); Colville, 447 U.S. at 151 (“The State may sometimes impose a nondiscrimi­natory tax on non-Indian customers of Indian retailers doing business on the reservation. Such a tax may be valid even if it seriously disadvantages or eliminates the Indian retailer’s business with non-Indians”); Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 482 (1976) (“[s]ince nonpayment of the tax is a misdemeanor as to the retail purchaser, the competitive advantage which the Indian seller doing business on tribal lands enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax”) (footnote omitted); see also Thomas v. Gay, 169 U.S. 264, 273 (1898) (upholding a territorial personal prop­erty tax imposed on nonmember lessees with respect to the value of cattle grazing on reservation lands pursuant to tribal leases and stating, “it is obvious that a tax put upon the cattle of the lessees is too remote and indirect to be deemed a tax upon the lands or privileges of the Indians”); see generally Anna-Marie Tabor, Sovereignty

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Perhaps the most definitive reflection of current doctrinal develop­ment in an area that has been marked by division among members of the Supreme Court is Cotton Petroleum Corp. v. New Mexico,79 where the Court upheld a state oil and gas tax imposed on a tribe’s lessee and demonstrated that there are limits to the balancing of interests test used in prior decisions. It reviewed in detail the demise of the intergovernmental immunity tax doc­trine and concluded broadly that “[u]nder current doctrine . . . a State can impose a nondiscriminatory tax on private parties with whom the United States or an Indian tribe does business, even though the financial burden of the tax may fall on the United States or Tribe.”80 The question, it said, is therefore “whether Congress has acted to grant [a] Tribe such [tax] immunity, either expressly or by plain implication.”81 The Court nonetheless empha­sized various considerations that must inform the preemption determination and instructed lower courts that • the associated analysis must be “sensitive to the particular facts and legislation involved[;]” • “in examining the pre-emptive force of the relevant federal legislation, we are cognizant of both the broad policies that underlie the legislation and the history of tribal independence in the field at issue[;]” • “although congressional silence no longer entails a broad-based immunity from taxation for private parties doing business with Indian tribes, federal pre-emption is not limited to cases in which Congress has expressly—as compared to impliedly—pre-empted the state activity[;]” and • “although state interests must be given weight and courts should be careful not to make legislative decisions in the absence of congres­sional action, ambiguities in federal law are, as a rule, resolved in favor of tribal independence.”82

Applying these principles, the Court found no basis for preempting the New Mexico taxes and indicated that, at least in a mineral-leasing context, the tax­ ation of nonmember producers should be upheld unless either the state pro­ vides no services on or off reservation to the taxed entity and the tribe or the tax is “ ‘extraordinarily high.’ ”83

in the Balance: Taxation by Tribal Governments, 15 U. Fla. J. L. & Pub. Pol’y 349, 385–88 (2004) (examining economic burden issues). 79 490 U.S. 163 (1989); see Montana v. Crow Tribe, 523 U.S. 696, 714 (1998) (characterizing Cotton Petroleum as a “pathmarking decision”); see generally Erik M. Jensen, Taxation and Doing Business in Indian Country, 60 Me. L. Rev. 1, 74 (2008) (characterizing Cotton Petroleum “as the [a]rchetypical [b]alancing [c]ase”).

490 U.S. at 175.

80

Id. at 175–76.

81

Id. at 176–77.

82

Id. at 186 n.17; but see Hoopa Valley Tribe v. Nevins, 881 F.2d 657, 661 (9th Cir. 1989) (finding state timber yield tax preempted despite the substantial nature of on-reservation services provided by the state and 83

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Significantly, Cotton Petroleum rejected the claim that a state tax can be barred because it interferes with a tribe’s ability to impose its own tax.84 The Court found the possibility of taxation by both state and tribe to be real but concluded this “burdensome consequence [was] entirely attributable to the fact that the leases are located in an area where two governmental entities share jurisdiction.” While Congress could prohibit a state or tribal tax, the Court stated that because it has not done so, concurrent taxing jurisdiction exists over the taxpayers.85 The Supreme Court has underscored subsequently that it will give considerable weight to the interests of a state in preventing tax avoidance by nonIndians. In Department of Taxation and Finance v. Milhelm Attea & Bros, Inc.,86 the Court unanimously held that state regulation of wholesalers selling to Indian retailers was not preempted by federal law, even though the transactions were considered to be sales to an Indian on a reservation and were subject to federal regulation under the federal trader statutes.87 The Court wrote that its previous decisions “make clear that the States have a valid interest in ensuring compliance with lawful taxes that might easily be evaded through purchases of tax-exempt cigarettes on reser­vations; that interest outweighs tribes’ modest interest in offering a tax exemption to customers who would ordinarily shop elsewhere.”88 It refused to give the federal trader statutes the broad scope urged by the wholesalers, distinguishing Warren Trading Post because the New York tax was not imposed on Indian traders with respect to transactions directly with tribal members and, despite “broad language in Warren Trading Post [that] lends support to a contrary conclusion,” holding that “Indian traders are not wholly immune from state regulation that is reasonably necessary to the col­ lection of lawful taxes.”89 Cotton Petroleum and Milhelm Attea suggest the Court is reluctant to find federal preemption of state taxes imposed on nonmembers doing busi­ness with tribes on Indian reservations. If the legal incidence of a tax is on a nonmem­ber and the state provides governmental services to the reservation generally or the taxed activity specifically, the Court will not take an expan­sive view of federal preemption unless there is express congressional preemption or significant interference with policies underlying the particular federal legislative scheme

absent any showing that the tax was exceptionally large, since the tax “does not fund services that directly relate to the harvesting of tribal timber and is otherwise unconnected with tribal timber activities”). 490 U.S. at 188–90.

84

Id. at 189.

85

512 U.S. 61 (1994).

86

25 U.S.C. §§ 261–264.

87

512 U.S. at 73.

88

Id. at 75.

89

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governing the taxpayer-tribal relationship. Post–Milhelm Attea lower court decisions have been consistent with this approach, upholding state taxes even if the transactions take place in trib­ally owned facilities, the tribe regulates the activities, and the tribe receives tax and rent income from the activities.90 B. Validity of Specific Types of State Taxes The preceding overview reflects an increasing degree of uniformity in the standards applied by the Supreme Court to all forms of state taxation of nonmembers in Indian country. The Court thus applied the interest-balancing, “particular­ized inquiry” principles first articulated in White Mountain Apache Tribe v. Bracker,91 a case involving motor fuel excise taxes, most recently in Depart­ment of Taxation and Finance v. Milhelm Attea & Bros., Inc.,92 a case involving imposition of cigarette taxes on wholesalers. Despite the analytical conver­gence, the most coherent manner of reviewing the extensive body of decisional authority in this area is by category of tax. It is nonetheless important to recognize that the fabric of law being developed by the courts cannot be segregated neatly by tax type. 1. Natural resource taxes Taxation of nonmember mineral lessees was, in the earlier part of this century, marked by the primacy of the doctrine of intergovernmental immunity and the resulting immunity of federal instrumentalities from state taxation under the doctrine.93 Having decided early in the century that restricted Indian lands were federal instrumentalities,94 the Supreme Court extended the instrumentality concept to private mining companies operating within Indian reservations and bestowed on them immunity from some, but not all, forms of state taxes.95 The extension of immunity enabled the United States to

90 Gila River Indian Cmty. v. Waddell, 91 F.3d 1232 (9th Cir. 1996); Salt River Pima-Maricopa Indian Cmty. v. Yavapai County, 50 F.3d 734 (9th Cir. 1995); see generally Scott A. Taylor, A Judicial Framework for Applying Supreme Court Jurisprudence to the State Income Taxation of Indian Traders, 2007 Mich. St. L. Rev. 841, 876 (2007) (examing the Warren Trading Post “line of cases,” including Milhelm Attea; concluding that “preemption applies to sales of goods and services to tribes and their members” but that “[s]ales to non­Indians, especially when they involve the marketing of a tax exemption, do not enjoy exemption from state taxation”); Richard J. Ansson, Jr., State Taxation of Non-Indians Who Do Business With Indian Tribes: Why Several Recent Ninth Circuit Holdings Reemphasize the Need for Indian Tribes to Enter Into Taxation Compacts With Their Respective States, 78 Ore. L. Rev. 501 (1999) (discussing potential effects on tribes from state taxes on nonmembers conducting business in Indian country).

448 U.S. 136, 144–45 (1980).

91

512 U.S. 61, 73 (1994).

92

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973).

93

United States v. Rickert, 188 U.S. 432 (1903); see also Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 173–174 (1989). 94

95 The Court ruled that such non-Indian mineral lessees were exempt from state occupation and privi­lege taxes (Choctaw, O. & G.R.R. v. Harrison, 235 U.S. 292 (1914)); from state taxes on the value of their lease­hold (Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522 (1916)); from state gross production

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carry out the “duty and established policy of the government to protect these dependents in respect of their property.”96 Stated another way, “[a] tax upon the leases is a tax upon the power to make them, and could be used to destroy the power to make them.”97 The doctrine, as applied to lessees, reached its zenith in Gillespie v. Oklahoma,98 where the Court invalidated a state tax on the net income derived by a nonmember lessee from sales of his share of oil produced on Indian lands. As the Court saw it, “stopping short of theoretical possibilities, a tax upon such profits is a direct hamper upon the effort of the United States to make the best terms it can for its wards.”99 This judicially created immunity was not absolute. It applied to federal “instrumentalities” only when government legislation was silent. The Court acknowledged that Congress, if it wished, could “waive” the immunity by legislation subjecting oil and gas lessees and other private companies on fed­ eral and Indian lands to state taxes.100 The period of the 1920s was marked by federal legislation, such as the Indian Oil Leasing Act of 1924,101 accomplish­ ing that end. Helvering v. Mountain Producers Corp.102 marked the end of the tax immunity doctrine as applied to lessees on Indian reservations. The Court held that its earlier decisions in Gillespie v. Oklahoma103 and Burnet v. Coro­nado Oil & Gas Co.104 were “out of harmony with [the] correct principle and accord­ingly they should be, and they now are, overruled.”105 Reviewing its other decisions on the immunity of lessees, the Court concluded that “the distinc­tions thus maintained have attenuated [Gillespie’s] teaching and raised grave doubt as to

taxes (Howard v. Gipsy Oil Co., 247 U.S. 503 (1918), Large Oil Co. v. Howard, 248 U.S. 549 (1919)); and from state ad valorem taxes in some circumstances (Jaybird Mining Co. v. Weir, 271 U.S. 609 (1926)). Id. at 612.

96

Indian Territory Illuminating Oil Co.v. Oklahoma, 240 U.S. 522, 530 (1916).

97

257 U.S. 501 (1922).

98

Id. at 506.

99

See, e.g., Jaybird Mining Co. v. Weir, 271 U.S. 609, 613 (1926) (“without congressional consent, no fed­eral agency or instrumentality can be taxed by state authority”). 100

101 Act of May 29, 1924, 43 Stat. 244 (codified at 25 U.S.C. §§ 397–398). In the Mineral Lands Leasing Act of 1920, 41 Stat. 437 (codified at 30 U.S.C. § 189), Congress authorized states to impose taxes on fed­eral lessees. In § 5 of the Act of March 3, 1921, 41 Stat. 1249, 1250, Congress authorized Oklahoma to impose a gross production tax on oil produced by non-Indian lessees of the Osage Tribe. The Indian Oil Act of 1927, Act of Mar. 3, 1927, 44 Stat. 1347 (codified at 25 U.S.C. § 398c), allowed state taxation of les­sees upon land within executive order Indian reservations. Lastly, in the Act of May 10, 1928, 45 Stat. 495, 496, Congress permitted states to tax oil and gas lessees operating on restricted lands of the Five Civilized Tribes in Oklahoma.

303 U.S. 376 (1938).

102

257 U.S. 501 (1922).

103

285 U.S. 393 (1932).

104

Helvering, 303 U.S. at 387.

105

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whether it should longer be supported.”106 The Court specifically disagreed with the “theoretical conceptions” in Gillespie that a state tax on a lessee was a tax upon the power to make a lease and interfered with efforts of the United States to make the best terms for its ward Indians.107 The full implications of Helvering were realized in Cotton Petroleum Corp. v. New Mexico.108 There, the Supreme Court upheld state taxation of oil and gas production by nontribal lessees on the Jicarilla Apache Reservation pursuant to tribal leases entered into under the Indian Mineral Leasing Act of 1938.109 In the state courts Cotton had sought to avoid a pre­emption or infringement analysis as well as the Commerce Clause analysis applied in Commonwealth Edison Co. v. Montana.110 Instead, on the basis of footnote 26 in Merrion v. Jicarilla Apache Tribe,111 Cotton proposed a distinct cost-benefit test that would measure whether the tax on the activity was greater than the state’s contact with the activity would justify.112 The Supreme Court first set out present law: Under current doctrine a state can impose a nondiscriminatory tax on private parties with whom the United States or an Indian tribe does business, even though the financial burden of the tax may fall on the United States or tribe. Although a lessee’s oil production on Indian lands is therefore not “automatically exempt from state taxation,” Congress does retain the power to grant such immunity. The granting of such immunity is a question that “is essentially legislative in character.”113 In conducting its preemption analysis, the Court found no support in the legislative history of the 1938 Act for the proposition that Congress intended to “remove all barriers to [tribal] profit maximization” from lease revenues, most notably the barrier of state taxation.114 Although recognizing that “a purpose of the 1938 Act is to provide Indian tribes with badly needed revenue,” the Court

Id. at 385–86.

106 107

Id. at 384–87. 490 U.S. 163 (1989).

108

Act of May 11, 1938, 52 Stat. 347 (codified at 25 U.S.C. §§ 396a–396g). Prior to Cotton Petroleum, the Supreme Court in Montana v. Blackfeet Tribe, 471 U.S. 759 (1985), considered the issue of state taxation of tribal royalty interests received from oil and gas leases entered into under both the 1938 Act and the ear­lier Act of May 29, 1924, 43 Stat. 244 (codified at 25 U.S.C. §§ 397–398 and amending Act of Feb. 28, 1891, 26 Stat. 794). The Court held that the 1924 Act specifically permitted state taxation of tribal royalty inter­ests, but that the 1938 Act did not. Id. at 767. See also Crow Tribe v. Montana, 819 F.2d 895 (9th Cir. 1987) (invalidating severance and gross proceeds taxes on coal producers holding tribal leases entered into under the 1938 Act), aff’d mem., 484 U.S. 997 (1988). 109

110 See Cotton Petroleum v. State, 745 P.2d 1170, 1173 (N.M. Ct. App. 1987) (discussing Commerce Clause tax analysis set forth in Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981)), aff’d, 490 U.S. 163 (1989). 111

455 U.S. 130, 158 n.26 (1982). Cotton Petroleum, 490 U.S. at 169–70.

112

Id. at 175 (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 150 (1973), and Oklahoma Tax Comm’n v. Texas Co., 336 U.S. 342, 365–66 (1949)). 113

Id. at 180.

114

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found the effects of the state tax on the federal policy favoring development of on-reservation oil and gas resources were “too indi­rect and too insubstantial” to imply preemption of the state tax.115 The Court also examined the state’s involvement in the on-reservation activity and the absence of an economic burden on the tribe caused by the state tax in refus­ing to construe the Act as implicitly preempting a state’s right to tax on-reser­vation oil and gas production activities by nontribal lessees, at least where the state provides some onreservation services and where the tax is not extraordinarily large.116 The Court rejected Cotton’s contention that the state tax constituted an “ ‘unlawful multiple tax burden on interstate commerce.’ ”117 Concurrent tax­ing jurisdiction was permissible, it concluded, because Congress had not pro­hibited state taxation of Cotton’s on-reservation leases.118 Although the concurrent jurisdiction of the state and the tribe did result in a greater tax burden, the burden was allowable because the state taxes were “adminis­tered in an evenhanded manner and are imposed at a uniform rate through­out the State—both on and off the reservation.”119 Even the great differences between revenue gained from the taxes by the state and on-reservation expenditures made in return did not mandate the invalidation of the taxes. First, the Court reasoned, the argument failed to account for the off-reservation and on-reservation services that are available both to the tribe’s lessee and to tribal members living on the reservation.120 The state had not abdicated its responsibility for regulating oil and gas activi­ties on the reservation or for providing other services: “This is not a case in which the State has had nothing to do with the on-reservation activity, save tax it.”121 Those services—“[t]he intangible value of citizenship in an orga­nized society”—must be included in the quotient.122 Second, the notion that benefits received must equal the amount of taxes paid was rejected. In the Court’s view, a tax is not a fee with an inherent quid pro quo but is instead a generalized imposition made

Id. at 186.

115

Id. The Court stated that this was not a “case in which an unusually large state tax has imposed a substantial burden on the Tribe” and noted that “[w]e therefore have no occasion to reexamine our sum­mary affirmance” of the Ninth Circuit in Montana v. Crow Tribe, 484 U.S. 997 (1988), summarily aff’g 819 F.2d 895 (9th Cir. 1987). Id. at n.17. 116

Id. at 187–88.

117

Id. at 188–89.

118

Id. at 189.

119

Id.; cf. Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 843–44 (1982) (off-reservation ser­vices provided to contractor insufficient justification for imposition of gross receipts tax on reservation school construction for a tribal entity where state had “declined to take any responsibility for education” of Indian students). 120

490 U.S. at 186.

121

Id. at 189.

122

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for the support of government in general.123 The Court further explained in Montana v. Crow Tribe124 that even an “exorbitant” state tax is preempted only to the extent it is “extraordinarily high.”125 Finally, the Court, addressing a question it had invited the parties to argue, held that the Commerce Clause did not require a tribe to be treated as a state for the purpose of determining whether or not the state tax must be apportioned to account for the similar tribal taxes.126 Traditional Commerce Clause analysis of commerce among the states was thus inappropriate to use in the context of the concurrent taxing jurisdiction enjoyed by the tribe and the state.127 2. Personal and real property taxes Principles defining the power of states to tax the property of reservation Indians on federally established reservations were clarified in McClanahan v. Arizona State Tax Commission.128 As summarized in its companion case, Mes­ calero Apache Tribe v. Jones,129 the United States Supreme Court concluded: In the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan . . . lays to rest any doubt in this respect by holding that such taxation is not permissible absent Congressional consent.130

Applying the principles enunciated in McClanahan, the United States Supreme Court has invalidated attempts by state and local governments to impose property taxes on personal and real property owned by reservation tribes or members of those tribes situated on a reservation or within Indian country as defined in 18 U.S.C. § 1151.131

123 Id. at 190–91; accord Gila River Indian Cmty. v. Waddell, 91 F.3d 1232, 1239 (9th Cir. 1996) (rejecting argument that there must be a direct connection between tax revenues and services provided to the tribe); Peabody Coal Co. v. State, 761 P.2d 1094, 1101 (Ariz. Ct. App. 1988) (“The State need not show a direct quid pro quo relationship between taxes imposed and benefits supplied”).

523 U.S. 696 (1998).

124

Id. at 717–18.

125

Id. at 192.

126

Id.; see also Peabody Coal Co. v. State, 761 P.2d 1094, 1101 (Ariz. Ct. App. 1988).

127

411 U.S. 164 (1973); see also United States v. Rickert, 188 U.S. 432 (1903); The New York Indians, 72 U.S. 761 (1866); The Kansas Indians, 72 U.S. 737 (1866). 128

411 U.S. 145 (1973).

129

Id. at 148.

130

Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 126 (1993) (remanding for purpose of determining whether tribal members on whom tax is imposed reside in Indian country); cf. Salt River PimaMaricopa Indian Cmty. v. Yavapai County, 50 F.3d 739 (9th Cir. 1995) (state personal and real property taxes apply to property owned by tribe off reservation). 131

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a. Taxes on tribal personal property. In Moe v. Confederated Salish and Kootenai Tribes132 the Court, relying primarily on McClanahan and Mescalero Apache, invalidated an attempt by Montana to impose a personal property tax on property owned by tribal members residing on the Indian reservation.133 Similarly, in Bryan v. Itasca County134 an attempt by a county to impose personal property taxes on a mobile home owned by a reservation Indian and located on the reservation was invalidated. In that case the Court rejected the argument that in passing Public Law 280135 Congress expressly or impliedly granted the states the power to tax real and personal property of Indians on a reservation. Never­theless, with respect to personal property taxes on movable property such as motor vehicles, the Supreme Court has indicated that states may impose nondiscriminatory taxes on that part of the use of such property that occurs outside Indian country.136 Because of the per se rule embodied in McClanahan, the proper char­ acterization of a tax may be decisive. In United States ex rel. Cheyenne River Sioux Tribe v. South Dakota,137 for example, the issue was whether a onetime fee paid at the time a motor vehicle is purchased or acquired for use in the state was a sales tax or a property tax. The issue was central because the taxes in question related to vehicles acquired off reservation, and the par­ties agreed that, if deemed a sales tax, reservation-resident members were obligated to pay it but, if deemed a property tax, they were not.138 A major­ity of the court of appeals concluded it was a tax on the motor vehicle itself, not the underlying transaction in which it was acquired and thus taxable.139 In reaching this conclusion, the court relied on the facts that the tax was paid only by South Dakota residents who purchased vehicles in the state and that such residents were liable for the tax even if they acquired vehicles outside the state, and that persons moving to South Dakota were required to pay the tax absent proof that their vehicles had been subject to an equal or greater tax in another state.140 Under these circumstances, the court rea­soned, “[t]he South Dakota tax essentially operates as a tax on the owner­ship of a motor vehicle, rather than as a tax

425 U.S. 463 (1976).

132

Id. at 478–79 (rejecting claim that tribal members were subject to such tax on the basis of 25 U.S.C. § 349, which, in part, states that allottees shall become “subject to the laws, both civil and criminal of the state or territory in which they reside” upon receipt of patent in fee). 133

426 U.S. 373 (1976).

134

Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (codified as amended in relevant part at 28 U.S.C. § 1360). 135

Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 125 (1993).

136

105 F.3d 1552 (8th Cir. 1997).

137

Id. at 1556.

138

Id. at 1558.

139

Id. at 1557.

140

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on off-reservation sales transactions.”141 The court of appeals, however, found valid an annual motor vehicle registration fee imposed on tribal members as a condition of receiv­ing license plates or renewal tags, reasoning that it was not a property tax, since it was based on a vehicle’s weight and not its value, but instead was a permissible nondiscriminatory fee charged for registering vehicles with the state and receiving a license plate.142 b. Taxes on tribal real property. While state and local property taxation of reservation or tribal trust lands is generally prohibited, in County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation143 the Supreme Court construed sections 5 and 6 of the General Allotment Act of 1887144 as providing express congres­sional consent for states and local governments to assess property taxes on fee-patented lands located within the boundaries of an Indian reservation.145 In affirming the decision rendered by the Ninth Circuit Court of Appeals, however, the Court rejected the lower court’s conclusion that a Brendale-type analysis should be utilized before the county could impose its property tax on fee-patented parcels owned by the tribe or a tribal member, finding that form of analysis inapplicable since “ ‘[e]ither Congress intended to pre-empt state taxing authority or it did not’ ” and since, under the court of appeals’ approach, “litigation would surely engulf the States’ annual assessment and taxation process, with the validity of each levy dependent upon a multiplic­ity of factors that vary from year to year, and from parcel to parcel.”146 The Court also affirmed the Ninth Circuit’s conclusion that the General Allotment Act did not authorize the state’s excise tax on the sale of fee-patented land on the reservation to or by a tribe or tribal member because

141 Id. at 1558; but see Tunica-Biloxi Tribe v. Louisiana, 964 F.2d 1536 (5th Cir. 1992) (statute imposing tax on all retail sales within state, but not upon sales outside state, was sales tax); cf. Quinnault Indian Nation v. Grays Harbor County, 310 F.3d 645, 651 (9th Cir. 2002) (tax designed to capture benefit of reduced tax applicable to forest lands when those lands are sold was not appropriately characterized as ad valorem tax subject to imposition by virtue of 25 U.S.C. § 349; “[t]he essence of this tax is that it is triggered by a specific event—a property transfer”). 142 105 F.3d at 1558–59. On remand, the district court directed excise tax refunds to tribal members, but not to nonmember Indians, with prejudgment interest predicated on the rate applicable to tax refunds under South Dakota law, for the six-year, 90-day limitation period prescribed under 28 U.S.C. § 2415 from the date the United States filed its complaint in intervention. United States ex rel. Cheyenne River Sioux Tribe v. South Dakota, 102 F. Supp. 2d 1166 (D.S.D. 2000). The court also denied the state’s motion to reopen the liability determination for the purpose of apportioning the tax on the basis of within-and-without Indian country use pursuant to a recently adopted administrative rule. Id. at 1178–79. The court reasoned that the tax was invalid under federal law and that the apportionment rule could not alter that status; it also questioned the rule’s validity as a matter of state law. Id. A similar decision was issued in a companion case. Standing Rock Sioux Tribe v. Janklow, 103 F. Supp. 2d 1146 (D.S.D. 2000).

502 U.S. 251 (1992).

143

Act of Feb. 8, 1887, 24 Stat. 388 (codified at 25 U.S.C. §§ 348, 349).

144

502 U.S. at 267–68.

145

Id. at 703; see Confederated Tribes and Bands of the Yakima Nation v. County of Yakima, 903 F.2d 1207, 1218 (9th Cir. 1990), aff’d in part and rev’d in part, 502 U.S. 251 (1992). 146

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that tax was “upon the Indian’s activity of selling the land” and “the General Allotment Act explicitly authorizes only ‘taxation of . . . land,’ not ‘taxation with respect to land,’ or ‘taxation of transactions involving land,’ or ‘taxation based on the value of land.’ ”147 The Supreme Court subsequently made clear in Cass County v. Leech Lake Band of Chippewa Indians148 that the holding in County of Yakima was not limited to allotment lands conveyed pursuant to the General Allotment Act. The reservation lands at issue in Cass County included “pine lands” and agricultural “homesteading” lands that left the public domain through conveyances to non-Indians under the Nelson Act of 1889.149 These lands were acquired later by the tribe. In reversing the court of appeals, which had held the lands were not subject to ad valorem taxation under state law, the Supreme Court reiterated that, while it has “consistently declined to find that Congress has authorized . . . taxation [of tribally owned reservation property] unless it has ‘made its intention to do so unmistakably clear[,]’ . . . [w]e have determined that Congress has manifested such an intent when it has authorized reservation lands to be allotted in fee to individual Indians, thus making the lands freely alienable and withdrawing them from federal protection.”150 Thus, “although it is possible for Congress to render reservation land alienable and still forbid states from taxing it, this unlikely arrangement [will] not be presumed unless Congress ‘clearly manifest[s]’ such an intent.”151 Since such lands would be taxable if conveyed from the public domain directly to Indians, the Court reasoned, “Congress surely intended reservation lands conveyed in fee to nonIndians also to be taxable.”152 The Court additionally rejected for two reasons the contention that the pine and agricultural lands became nontaxable upon the

502 U.S. at 269.

147

524 U.S. 103 (1998).

148

Act of Jan. 14, 1889, 25 Stat. 642.

149

524 U.S. at 110–11.

150

Id. at 113.

151

Id.; compare Oneida Tribe v. Vill. of Hobart, 542 F. Supp. 2d 908, 920 (E.D. Wis. 2008) (“Yakima and Cass County make clear that once Congress withdraws federal protection from the Tribe’s reservation lands, as it did in enacting the Allotment Acts, all restrictions on taxation and alienation of such lands are removed”), with Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d 514, 531 (6th Cir. 2006) (mere fact that land was alienable is insufficient to allow imposition of state ad valorem taxes where allotments provided for by treaty, not statute; court therefore disagreed with Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993), on proposition that “alienability equals taxability”); see generally Anne Zimmermann, Taxation of Indians: An Analysis and Comparison of New Mexico and Oklahoma State Tax Laws, 41 Tulsa L. Rev. 91, 115 (2005) (Cass County “extended the holding in Yakima ‘to any alienable lands held by a tribe, not just those that passed out of trust under legislation expressly stating that the lands would be taxable’ ”); Sarah Krakoff, City of Sherrill v. Oneida Indian Nation of New York: A Regretful Postscript to the Taxation Chapter in Cohen’s Handbook of Federal Indian Law, 41 Tulsa L. Rev. 5, 9 (2005) (“in Cass County, the Court clarified that when Congress explicitly makes Indian lands freely alienable, state taxation is permissible unless Congress clearly states otherwise”); Judith V. Royster, Decontextualizing Federal Indian Law: The Supreme Court’s 1997–98 Term, 34 Tulsa L.J. 329, 334 (1999) (criticizing Cass County because the Court concluded that “examination of the [Nelson Act] was unnecessary . . . so long as the statute authorized the alienability of reservation lands”). 152

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tribe’s acquisition. First, “[t]he subsequent repurchase of reservation land by a tribe does not manifest any congressional intent to reassume federal protection of that land and to oust state taxing authority,” and second, the contention, if accepted, “would render partially superfluous” the Secretary of the Interior’s authority under 25 U.S.C. § 465 to place land into trust and thereby to render it immune from state taxation.153 Notwithstanding the decision in Cass County, the application of state taxes to reservation real property remains subject to continued litigation.154

153 524 U.S. at 114. The Court left unanswered as outside the scope of the question as to which certiorari was granted whether the Indian Nonintercourse Act, 25 U.S.C. § 177, “applies to land that has been rendered alienable by Congress and later reacquired by an Indian tribe.” 524 U.S. at 115 n.5. Lower courts thus far have found the Act inapplicable. In Thompson v. County of Franklin, 314 F.3d 79 (2d Cir. 2002), a panel majority agreed with the principle that “land made alienable by a conveyance governed by and in compliance with the [Nonintercourse Act] is land made alienable by Congress, and hence taxable.” Id. at 82–83 (Van Graafeiland, J.); see id. at 86 (Winter, J., concurring in judgment) (“for a plot of reservation land to pass into individual ownership, Congress must authorize the conveyance and that very authorization serves to authorize taxation”); Oneida Tribe, 542 F. Supp. 2d at 932 (citing and agreeing with decisions that have concluded that the Nonintercourse Act poses no barrier to state taxation with respect to previously alienated lands). 154 Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d 514, 520, 530 (6th Cir. 2006) (fee lands held by tribe were not taxable where they were allotted under a treaty providing that “the Indians shall not be required to remove from the homes hereby set apart for them[;]” in the court’s view, “Congress makes its intent to allow state taxation of reservation lands unmistakably clear when it passes a statute to that effect[,]” and “[a] treaty simply does not embody this clear congressional intent, as a treaty’s ratification only involves the Senate, and thus does not have the same bicameral hurdles of an act of Congress”); Quinnault Indian Nation v. Grays Harbor County, 310 F.3d 645, 652 (9th Cir. 2002) (“compensating tax” imposed on transfer of tribally owned land into trust and intended to recapture prior reductions in property taxes based upon forest land status was not an ad valorem tax; tax instead derives from owner’s decision to transfer land, and its amount is not identical to amount obtained “by merely summing up the [property] tax savings from previous years”); Bay Mills Indian Cmty. v. State, 626 N.W.2d 169 (Mich. Ct. App. 2001) (1856 conveyance of land to non-Indian by United States consituted consent to state taxation; subsequent conveyance by nonIndian to state governor under condition that it be held in trust for tribe did not preclude tax sale); In re Application of Kaul, 4 P.3d 1170, 1176–77 (Kan. 2000) (finding land allotted to tribal member taxable since, under Cass County, “Congress manifests the intent to authorize state and local taxation of Indian reservation land when it authorizes reservation lands to be allotted in fee to individual Indians, which makes the lands freely alienable and withdraws them from federal protection”); compare Jefferson v. Big Horn County, 4 P.3d 26, 29 (Mont. 2000) (district court did not err in vacating prior judgment prohibiting imposition of ad valorem taxes upon tribal member–owned land in view of Cass County, which established that “when Congress makes reservation lands freely alienable, it is ‘unmistakably clear’ that Congress intends that land to be taxable by state and local governments unless a contrary intent is ‘clearly manifested[]’ ”), with Baraga County v. State Tax Comm’n, 622 N.W.2d 109, 112 (Mich. Ct. App. 2000) (per curiam) (although res judicata does not preclude relitigation “where a subsequent change in the law alters the legal principles on which the subsequent case is to be resolved,” Cass County merely holds “that states and their political subdivisions may only impose ad valorem property taxes on reservation land made alienable by Congress, sold to nonIndians, and later repurchased by the tribe”), rev’d on other grounds, 645 N.W.2d 13 (Mich. 2002); see also City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) (tribe could not assert sovereignty over former reservation lands by purchasing them in fee two centuries following their conveyance into non-Indian ownership; consequently, tribe could not assert immunity from local property tax imposed on such parcels); but see Oneida Indian Nation v. Madison County, 401 F. Supp. 2d 219 (N.D.N.Y 2005) (tribal immunity, state law, and due process requirements barred foreclosure as remedy for tribe’s nonpayment of taxes); Oneida Indian Nation v. Oneida County, 432 F. Supp. 2d 285 (N.D.N.Y. 2006) (same); see generally Sarah Krakoff, City of Sherrill v. Oneida Indian Nation of New York: A Regretful Postscript to the Taxation Chapter in Cohen’s Handbook of Federal Indian Law, 41 Tulsa L. Rev. 5, 6 (2005) (although Sherrill constituted an “odd and cowardly avoidance of the substantive legal question” of reservation diminishment or disestablishment, it

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c. Taxes on nontribal property. The authority of a state or local government to impose property taxes on property of nonmembers situated on tribal lands was recognized in Utah & Northern Railway v. Fisher155 and Thomas v. Gay.156 In these cases the Supreme Court held simply that state taxation of a nonmember’s property located on the reservation did not interfere with tribal sovereignty and that the state had jurisdiction to assess property taxes on the property of non­members situated on the reservation. Whether the analytical standard, as opposed to the result, in these earlier decisions remained correct was perhaps in doubt in light of the interest-bal­ancing standard adopted in White Mountain Apache Tribe v. Bracker,157 but the Montana Supreme Court employed that standard to the issue of whether the state could impose its property tax on that portion of a natural gas pipeline owned by a nonmember company crossing an Indian reservation.158 Consistent with the rule that nonmember property is taxable, several courts have upheld taxes on possessory interests in leasehold interests in reservation property owned by nonmembers.159 3. Motor fuel taxes State taxation related to the use of motor vehicles and trucks has proved to be a staple of Indian law ligitation. Indeed, the seminal decision in the area of state civil regulatory authority generally, White Mountain Apache Tribe v. Bracker,160 and its attendant interest-balancing approach arose in this context. The most recent litigation has centered on taxes directed to the sale rather than the use of fuel and has raised various issues, including state law questions related to legal incidence and federal law questions related to, most importantly, proper application of the interest-balancing standards and the potential applicability of the Hayden-Cartwright Act161 to Indian country transactions. In White Mountain Apache Tribe v. Bracker,162 the Supreme Court invali­ dated Arizona’s attempt to impose state use fuel taxes on a nonmember log­ ging company operating trucks on roads located solely on the reservation. This ruling was based on several factors. First, the Court held that federal laws governing tribal forestry operations were so pervasive as to preclude and

has “an upside” because it “will be difficult to apply [the decision] as a precedent in other cases involving tribal claims of immunity from state and local taxation”). 116 U.S. 28 (1885).

155

169 U.S. 264 (1898).

156

448 U.S. 136, 144–45 (1980).

157

Northern Border Pipeline Co. v. State, 772 P.2d 829, 834–35 (Mont. 1989).

158

Fort Mojave Tribe v. San Bernardino County, 543 F.2d 1253 (9th Cir. 1976); Pimalco, Inc. v. Maricopa County, 937 P.2d 1198 (Ariz. Ct. App. 1997). 159

448 U.S. 136 (1980).

160

Act of June 16, 1936, § 10, 49 Stat. 1519, 1521 (codified as amended at 4 U.S.C. § 104).

161

448 U.S. 136 (1980).

162

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preempt the additional burdens sought to be imposed by Arizona in assessing use fuel taxes against a nonmember logging company contracting with the tribe to conduct logging operations solely on the reservation.163 Next, the Court noted that the state’s interest in taxing the use of reservation roads was no more than a generalized interest in raising revenue, while the economic burden of the state tax would ultimately fall on the tribe and reduce the revenues the tribe could generate from its tribal timber opera­tions.164 However, the tribe conceded that the state could tax the use of state-maintained roads that happened to pass through the reservation, even if those roads were used in the furtherance of the tribal logging operation.165 Similarly, in Marty Indian School Board, Inc. v. South Dakota,166 the Eighth Circuit Court of Appeals held that the state’s imposition of a motor fuel tax on motor fuel purchased by the on-reservation Indian school from an off­reservation commercial motor fuel supplier and stored on the school’s premises was preempted by federal law. Citing Bracker and Ramah Navajo School Board, Inc. v. Bureau of Revenue,167 the Court found that the strong fed­eral and tribal interests in Indian education and self-determination and the pervasive involvement of the federal government in the operation and fund­ing of the Marty Indian School left no room for the additional burden that the state’s motor fuel tax would impose.168 Application of the Bracker inter­est-balancing test, however, was unnecessary in Marty Indian School Board because the legal incidence of the motor fuel tax fell on the school—not on the vendor that was required to collect the tax from its customer.169 Since the school was apparently a tribal entity, the only question should have been whether the tax was expressly authorized by Congress, and the court of appeals summarily rejected the state’s reliance on the Hayden-Cartwright Act170 as per­mitting such taxation.171

Id. at 145–48.

163

Id. at 148–51.

164

Id. at 140 n.6.

165

824 F.2d 684 (8th Cir. 1987).

166

458 U.S. 832 (1982).

167

824 F.2d at 688.

168

Id. at 685; see Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458–60 (1995) (invalidating state motor fuels tax where the legal incidence of the tax fell directly on the tribal retailers, not on nonmember fuel distributors or consumers, and finding it unnecessary to balance state, tribal, and federal interests). 169

4 U.S.C. § 104.

170

824 F.2d at 688. The court of appeals relied on a footnote in Bracker for this conclusion; the footnote reads in relevant part: “We agree with petitioners that the Hayden-Cartwright Act, which authorizes state taxes ‘on United States military or other reservations,’ was not designed to overcome the otherwise pre­ empted effect of federal regulation of tribal timber. We need not reach the more general question whether the Hayden-Cartwright act applies to Indian reservations at all.” 448 U.S. at 152 n.16. 171

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The situation in Marty Indian School Board can be contrasted with extensive federal and state court litigation over the validity of the Kansas fuel tax. In Sac and Fox Nation v. LaFaver,172 a federal district court held that application of Bracker interest-balancing standards compelled preemption of a motor fuel tax whose legal incidence fell on distributors, not the plaintiff tribal retailers. The court reasoned that, since the economic incidence of the tax will be passed on to the retailers, they stood to suffer a loss of revenue and that the impact of such loss “on tribal functions would be much greater than the impact on the state of Kansas.”173 The court’s conclusion that the distributors themselves could have challenged successfully the tax on the basis of the impact on the tribes was doubtful, given the analysis in Cotton Petroleum Corp. v. New Mexico174 and Washington v. Confederated Tribes of Colville Indian Reservation.175 The district court’s preemption holding was in the alternative because the court initially had determined that on-reservation fuel transactions were entitled to an exemption from the tax under a state statutory provision. This ground for the decision, however, was eliminated one day after the opinion’s issuance by the Kansas Supreme Court. The latter construed the statutory exemption relied upon by the federal court as not extending to such transactions.176 No less important, the Kansas court further rejected a preemption claim by nonmember retailers, concluding that “there has been no showing by Retailers that payment of fuel tax to Kansas interferes with the self-­government of a Kansas tribe or a Kansas tribal member or the tax impairs a specific right granted or reserved by federal law to Kansas Indians.”177 On appeal of the federal district court decision, the Tenth Circuit Court of Appeals relied upon the Kaul interpretation of state law and reversed the district court’s decision with respect to its application of federal Indian law principles, finding Colville dispositive.178 In reaching that conclusion, the court first determined that the legal incidence of the fuel tax was borne by nonmember distributors, not tribal retailers,179 and that the Indian trader statutes180 did

172 31 F. Supp. 2d 1298 (D. Kan. 1998), mot. for reconsideration denied, 45 F. Supp. 2d 859 (D. Kan. 1999), rev’d, 213 F.3d 566 (10th Cir. 2000).

31 F. Supp. 2d at 1307–08.

173

490 U.S. 163 (1989).

174

447 U.S. 134 (1980).

175

Kaul v. State Dep’t of Revenue, 970 P.2d 60, 64–67 (Kan. 1998).

176

Id. at 69.

177

Sac and Fox Nation v. Pierce, 213 F.3d 566, 583–84 (10th Cir. 2000).

178

Id. at 578–80. The court relied most heavily on provisions in the state tax that excluded tribal retailers from tax liability and expressly imposed the tax’s “incidence” on “the distributor of first receipt of the motor fuel.” Id. at 579. 179

25 U.S.C. §§ 261–264.

180

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not preempt the tax’s application.181 It found Colville controlling since the fuel tax’s legal incidence fell on the nontribal distributors and since “the ultimate economic burden of the tax most assuredly falls on the consumer.”182 The court of appeals nonetheless limited its decision to “the record before us” and left open the possibility of a future challenge because, “if a substantial portion of the Tribes’ retail fuel sales are to tribal members, the Tribes’ argument that the indirect burden of the fuel tax improperly interferes with their internal affairs would not be without force.”183 The Supreme Court eventually ended the Kansas fuel litigation in Wag­ non v Prairie Band Potawatomi Nation,184 a challenge brought by a tribe with respect to taxes paid on fuel that it purchased for sale at an on-reservation convenience store largely serving nonmember customers of an adjacent tribal casino. Under the state fuel tax statute, legal incidence is placed expressly on fuel distributors of “first receipt,” which in this instance occurred off reservation at the involved distributor’s place of business.185 Both the district court and court of appeals applied the Bracker interest-balancing test in resolving the controversy’s merits but reached different results, with the former upholding the tax and the latter striking it down.186 They did so even though there ap-

181 213 F.3d at 580–83. The court chiefly relied upon a decision issued subsequently to Central Machinery—Department of Taxation and Finance v. Milhelm Attea & Bros., 512 U.S. 61 (1994)—for the proposition that the Supreme Court had “narrowed its interpretation of the trader statutes” (213 F.3d at 581–82) and the fact that “the threat of the distributors perpetrating fraud or abuse upon the Tribes appears negligible” because “[n]othing in the record indicates the Tribes’ distributors distribute all of their fuel, or even a significant portion of it, to the Tribes” (id. at 581).

Id. at 584; accord Prairie Band Potawatomi Nation v Richards, 241 F. Supp. 2d 1295, 1307–09 (D. Kan.

182

2003). 183 Id.; see Sac and Fox Nation v. Richards, 158 F. Supp. 2d 1274, 1277 (D. Kan. 2001) (vacating preliminary injunction against fuel tax’s enforcement, and observing that “to have a chance for success[,] . . . the Tribes must show that a ‘substantial portion’ of their retail fuel sales are to Tribal members”). A different result, under different facts, was reached in Ramah Navajo Sch. Bd., Inc. v. New Mexico Taxation and Revenue Dep’t, 977 P.2d 1021 (N.M. Ct. App. 1999). There, the legal incidence of a state fuel tax fell on two nontribal distributors with respect to gasoline sold to a tribal school board. The board, as an assignee of the distributors, sought a declaration that the tax was invalid. The court first found the fact that the school board bore the tax’s economic incidence was “not without force” as a basis for preemption under the reasoning in Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832 (1982), but could not be given legal significance in light of New Mexico Supreme Court authority holding that “the preemption-by-implication doctrine does not apply to taxes imposed on non-Indians outside the reservation.” Id. at 1029. Nevertheless, the court overturned the tax because state law would exempt gasoline used by the federal government and because the tribal activities being taxed were conducted and paid for pursuant to a contract between the tribe and the United States under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450–458bbb2. The court found that the statute evidenced congressional intent that Indian communities not suffer financially by the transfer of services. But see Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32, 38–39 (1999) (rejecting the argument that the Self-Determination Act required identical tax treatment of tribal and federal contractors, and holding that a federal contractor is taxable even if a tax on a tribal contractor would be preempted).

546 U.S. 95 (2005).

184

Kan. Stat. Ann. § 79-3408(c).

185

546 U.S. at 100–01; see Prairie Band Potawatomi Nation v. Richards, 241 F. Supp. 2d 1295 (D. Kan. 2003), rev’d, 379 F.3d 979 (10th Cir. 2004). 186

Taxation in Indian Country

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peared no dispute among the parties that the tribe’s distributor bore the tax’s legal incidence and that the obligation to pay the tax arose off reservation upon the fuel’s receipt.187 Before the Supreme Court, however, the legal incidence and the location of the taxable event were placed at issue by the tribe.188 The Court thus stressed at the opinion’s inception that it was concerned not only with the “who” of the case—i.e., which economic entity bears the fuel tax’s legal incidence—but also the “where” of the case—i.e., at what point (and hence place) the legal obligation to pay the tax attaches.189 Only after resolving those issues could the Court address the first question as to which certiorari had been granted: “whether Kansas may tax a non-Indian distributor’s off-reservation receipt of fuel without being subject to the Bracker interest-balancing test.”190 The Court disposed of the legal incidence issue first. It noted that the Kansas statute explicitly imposed legal incidence on the “ ‘distributor of the first receipt of the motor fuel’ ” and that “[w]e have suggested that such ‘dispositive language’ from the state legislature is determinative of who bears the legal incidence of a state excise tax.”191 Nonetheless, “even if the state legislature had not employed such ‘dispositive language,’ thereby requiring us instead to look to a ‘fair interpretation of the taxing statute as written and applied,’ ” the Court stated that it would still find the motor fuel tax’s legal incidence imposed on distributors.192 It then cited to other sections in the Kansas tax making “clear that it is the distributor, rather than the retailer, that is liable to pay the motor fuel tax[,]” including a provision that allows but does not require distributors “to pass the cost of the tax to downstream purchasers.”193 The Court buttressed this conclusion with Tenth Circuit and district court opinions and an administrative determination from the Kansas Department of Revenue reaching the same result.194 The Court devoted more attention to the “where” question and applied the “fair interpretation” standard. It pointed out that “[a]s written” the tax is imposed on first receipt and that such tax is paid “ ‘but once.’ ”195 Under the statute, therefore, “the distributor who initially receives the motor fuel is liable for payment of the fuel tax, and the distributor’s tax liability is determined

241 F. Supp. 2d at 1299, 1311; 379 F.3d at 982; see also 546 U.S.at 105.

187

Id. at 102.

188

Id.

189

Id. at 101.

190

Id. at 102.

191

Id. at 102–03.

192

Id. at 103.

193

Id. at 103–04.

194

Id. at 106.

195

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by calculating the amount of fuel received by the distributor.”196 Additional support for this reading was found in another section “expressly provid[ing] that a distributor’s monthly tax obligations are determined by the amount of fuel received by the distributor during the preceding month.”197 It rejected the tribe’s contention that accrual of the tax liability was affected by the availability of deductions for “certain postreceipt transactions”198 because the distributor “must pay the tax even for fuel that sits in its inventory”199 and because “the availability of tax deductions does not change the nature of the taxable event, here the distributor’s receipt of the fuel.”200 The Court also rejected the tribe’s reliance on a provision allowing a distributor to seek a refund for taxes paid on destroyed fuel. In its view, the provision merely “illustrates that a distributor pays taxes for fuel in its possession that it has not delivered or sold, and is only entitled to the refund described in this section for tax it has already paid on fuel that is subsequently destroyed.”201 Having identified the “who” and the “where” of the Kansas tax, the Court turned to whether the Bracker interest-balancing test applied. It prefaced the analysis with the general observation that the “test has never been applied where, as here, the State asserts its taxing authority over non-Indians off the reservation” and, while the issue had never been addressed directly before, “our Indian tax immunity cases counsel against such an application.”202 The Court then cited its numerous decisions that had applied Bracker in an onreservation context and reasoned that its limitation to such a context was reasonable given the importance of territoriality in determining issues of tribal sovereignty.203 It contrasted the doctrinal rule in those decisions with the standard that has been applied for over 30 years as to off-reservation conduct by Indians, where “we have concluded that ‘[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.’ ”204 In light of that standard, “it follows that [a State] may apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction.”205 The Court further found nonap-

Id.

196

Id.

197

Id. at 107.

198

Id. at 108.

199

Id. at 109.

200

Id. at 109–10.

201

Id. at 110.

202

Id. at 110–11.

203

Id. at 113.

204

Id.

205

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plication of Bracker consistent with its efforts in Indian tax matters to create “bright-line standards” and that, under the tribe’s approach, “any off-reservation tax imposed on the manufacture or sale of any good imported by the Nation or one of its members would be subject to interest balancing.”206 It rejected reliance by the tribe on the effects of the state tax on its ability to impose a tribal fuel tax, characterizing the argument as “ultimately a complaint about the downstream economic consequences of the Kansas tax.”207 Lastly, the Court saw no merit in the tribe’s contention that the fuel tax impermissibly discriminated because it allowed deductions for sales to other sovereigns, such as the federal government and states. It reasoned that the tribe was situated differently, since Kansas uses the tax proceeds to maintain a highway infrastructure on the reservation and since “to the extent Kansas fuel retailers bear the cost of the fuel tax, that burden falls equally upon all retailers within the State regardless of whether those retailers are located on an Indian reservation.”208 In dissent, Justice Ginsburg, joined by Justice Kennedy, began by characterizing Bracker as “address[ing] the question whether a State should be preempted from collecting otherwise lawful taxes from non-Indians in view of the burden consequently imposed upon a Tribe or its members”209 and as “evaluating claims that state taxes levied on non-Indians should be preempted because they undermine tribal and federal interests”210—formulations that omitted any reference to the “where” of the tax. Against this broad understanding of the interest-balancing test, she turned first to the legal incidence issue and expressed doubt over whether the distributor bears legal incidence. Justice Ginsburg reasoned that, given the availability of the various deductions and refunds, “the Kansas Legislature anticipated that distributors would shift the tax burden further downstream.”211 She nonetheless stopped short of concluding definitively that distributors did not bear the legal incidence and ultimately stated only that “one can demur to the assertion that the legal incidence of the tax falls on the distributor.”212 From the dissent’s perspective, the key consideration was the fact that “[w]ith respect to sales and deliveries to [the tribe’s convenience store], . . . the nontribal entity can indeed be described as ‘engaged in [an on-reservation]

Id. at 113–14.

206 207

Id. at 114. Id. at 115.

208

Id. at 117.

209 210 211

Id. at 118.

Id. at 119. Id. at 123.

212

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transaction with [a Tribe].’ ”213 Justice Ginsburg thus could “not comprehend why” the “reservation destination of fuel purchased [by the tribe] does not show the requisite engagement.”214 It was enough of a predicate for application of Bracker standards, in other words, that the tribe bears the economic incidence of the tax with respect to an on-reservation activity—here the purchase of fuel. The dissent concluded by applying Bracker and finding that tribal and federal interests outweighed state interests. In this regard, Justice Ginsburg relied heavily on (1) the fact that “[f]uel sales at the Nation Station are ‘integral and essential part of the [Tribe’s] on-reservation gaming enterprise[;]’’’ (2) “the poor conditions of reservation roads” generally and federal regulations directed “at enhancing the ability of tribal governments to promote road construction and maintenance[;]” and (3) the relationship of the tribe’s road system to its gaming operation and, therefore, to “federal interests in tribal economic development advanced by the Indian Gaming Regulatory Act.”215 The sole countervailing state interest in her view was raising revenue.216 The dissent also disputed Kansas’s commitment to the reservation’s road infrastructure, relying on the tribe’s “responsibility for a growing number of road miles within the reservation.”217 Finally, the applicability of the Hayden-Cartwright Act218 to Indian reservation–based transactions has received substantial recent attention, with several decisions holding that it does not apply.219 The Act was adopted in 1936

Id.

213

Id.

214

Id. at 127–28.

215

Id. at 128.

216

Id. at 129.

217

Act of June 16, 1936, § 10, 49 Stat. 1519, 1521 (codified as amended at 4 U.S.C. § 104). The Act reads in relevant part: 218

All taxes levied by any State, Territory, or the District of Columbia upon, with respect to, or measured by, sales, purchases, storage, or use of gasoline or other motor vehicle fuels may be levied, in the same manner and to the same extent, with respect to such fuels when sold by or through post exchanges, ship stores, ship service stores, com­missaries, filling stations, licensed traders, and other similar agencies, located on United States military or other reservations, when such fuels are not for the exclusive use of the United States. Such taxes, so lev­ied, shall be paid to the proper taxing authorities of the State, Territory, or the District of Columbia, within whose borders the reservation affected may be located. 219 Coeur d’Alene Tribe v. Hammond, 384 F.3d 674 (9th Cir. 2004), cert. denied, 543 U.S. 1187 (2005); Winnebago Tribe v. Kline, 297 F. Supp. 2d 1291, 1304 (D. Kan. 2004); Prairie Band Potawatomi Nation v. Richards, 241 F. Supp. 2d 1295, 1303–07 (D. Kan. 2003), rev’d on other grounds, 379 F.3d 979 (10th Cir. 2004), rev’d on other grounds, 546 U.S. 95 (2005); Pourier v. South Dakota Dep’t of Revenue, 658 N.W.2d 395 (S.D. 2003), modified on reh’g, 674 N.W.2d 314 (S.D. 2004); Goodman Oil Co. v. Idaho State Tax Comm’n, 28 P.3d 996 (Idaho 2001); see also Mann v. North Dakota Tax Comm’r, 692 N.W.2d 490, 498 (N.D. 2005) (declining to issue discretionary supervisory writ with respect to trial court order rejecting state’s reliance on the Act, since “[t]he risk that the district court committed error in its construction of the Hayden-Cartwright Act is negligible”); cf. Mann v. North Dakota Tax Comm’r, 736 N.W.2d 464, 468 (N.D. 2007) (rejecting due process–based challenge to fuel tax refund process adopted by state legislature in the wake of the earlier litigation); see generally Luke Spellmeier, Note, A Winning Hand or Time to Fold? State Taxation of Fuel Sales on Kansas Indian Reservations,

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in response to Standard Oil Co. v. California,220 which had invalidated a fuel tax imposed on a distributor supplying gasoline to a military reservation post exchange, and authorizes such taxes with respect to transactions, inter alia, by “licensed traders” or at “filling stations” on “United States military or other reservations” unless the fuel is for the federal government’s exclusive use. The statute’s very breadth has proved the issue, with several courts holding the Indian canons of construction applicable and finding the term “reservations” not “unmistakably clear” with respect to whether it encompasses Indian reservations.221 They similarly have discounted the statute’s reference to “licensed traders” because, as one court reasoned, the term “could have meant licensed sellers of malt beverages, licensed retailers on government reservations or licensed traders selling goods on all government reservations.”222 Prior admininstrative interpretations223 reaching a contrary conclusion concerning the law’s reach were deemed unpersausive.224 These opinions rest in large measure on application of the Indian canons, but, insofar as the Hayden-Cartwright Act constitutes a statute of general applicability, the canons may be unavailable.225 It is additionally uncertain whether the the broad use of the term “reservation” carries with it any ambiguity so as to require resort to interpretive aids, since Indian reservations are understood to be included with the common meaning of that term.226 The recent decisions thus may not be the last word on whether the Act extends into Indian reservations.

43 Washburn L.J. 141, 144–53 (2003) (analyzing applicability of Hayden-Cartwright Act to Indian reservation motor fuel sales). 291 U.S. 242 (1934).

220

Prairie Band Potawatomi, 241 F. Supp. 2d at 1305 (“the term ‘reservation’ has broad meaning and may or may not include Indian reservations”); Coeur d’Alene Tribe, 224 F. Supp. 2d at 1269 (“[a]lthough Indian Reservations might come to mind when discussing reservations, the term ‘reservation’ has a much broader meaning”); Pourier, 658 N.W.2d at 401 (“an Indian reservation has distinct characteristics unique from those of other federal government reservations”); Goodman Oil, 28 P.3d at 1000 (“Indian reservations are different: distinct from every other type of reservation, i.e., national parks, wilderness areas, military reservations, and even further, Indian reservations are a distinct entity within the law”); cf. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 n.16 (1980) (declining to “reach the more general question whether the Hayden-Cartwright Act applies to Indian reservations at all” given the Court’s conclusion that the Act “was not designed to overcome the otherwise pre-emptive effect of federal regulation of tribal timber”). 221

Prairie Band Potawatomi, 241 F. Supp. 2d at 1305.

222

38 Op. Att’y Gen. 522 (1936); 57 Interior Dec. 129 (1940).

223

Prairie Band, 241 F. Supp. 2d at 1306–07; Pourier, 658 N.W.2d at 401–02; Goodman, 28 P.3d at 1000–01. 224

See FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960).

225

Id. at 111; see also United States v. Celestine, 215 U.S. 278, 285 (1909) (“[t]he word is used in land law to describe any body of land, large or small, which Congress has reserved from sale for any purpose”). 226

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American Indian Law Deskbook, Fourth Edition

4. Nonfuel excise and sales taxes a. Liquor taxes. In Rice v. Rehner227 the Supreme Court held that Cal­ifornia could require a federally licensed Indian trader, who was a tribal member, to obtain a state liquor license prior to selling liquor for off-pre­mises consumption. In so holding, the Court inquired into whether there existed a tradition of tribal sovereign immunity from such state action, not­ing that if no such tradition existed, or if the balance of state, federal, and tribal interests so required, the required Bracker analysis would “accord less weight to the ‘backdrop’ of tribal sovereignty.”228 The Court then found that, although in Indian matters Congress usually acts upon the assumption that the states have no power to regulate the affairs of tribal members on reserva­tions, “that assumption would be unwarranted in the narrow context of the regulation of liquor.”229 The Court then held that, since there is no tradition of sovereign immunity favoring Indians with regard to liquor regulations and since the activity in question “potentially has a substantial impact beyond the reservation, we may accord little if any weight to any asserted interest in tribal sovereignty in this case.”230 The Court further determined that, in enacting 18 U.S.C. § 1161, Congress expressly provided the authority for state and local regulation of liquor sales on reservation and tribal trust lands.231 Presumably, the power to regulate includes the power to tax sales of liquor to nonmembers. In Squaxin Island Tribe v. Washington232 the Ninth Circuit, relying heavily on Rice, Colville,233 and Moe,234 upheld a Washington State sales tax on liquor sales by the tribe on the reservation to nonmember customers. Deeming the rationale of the Supreme Court in Rice applicable, the court of appeals found that no tribal sovereignty interests were implicated by the state tax on the sale of liquor to nonmembers, that no federal law pre­empted the state’s authority to tax tribal liquor sales to nonmembers in light of 18 U.S.C. § 1161, and that the tribe as not authorized to mar­ket an exemption from state taxation to persons

463 U.S. 713 (1983).

227

Id. at 720.

228

Id. at 723.

229

Id. at 725.

230

Id. at 732–33; see New York Dep’t of Taxation and Fin. v. St. Regis Group (Mohawk Aswesasne Reserv.), 635 N.Y.S.2d 980 (App. Div. 1995) (upholding state’s temporary seizure of a truckload of liquor being imported into New York by tribe for sale on the reservation, since tribe was not a state registered distribu­tor of liquor and liquor was not purchased from state-registered distributor of liquor); In re 1,750 Cases of Liquor, 633 N.Y.S.2d 702 (Sup. Ct. 1995); New York State Dep’t of Taxation and Fin. v. Tyler Distrib. Ctrs. Inc., 639 N.Y.S.2d 515 (App. Div. 1996) (reversing, on the basis of St. Regis Group, dismissal of forfeiture actions directed at liquor seized for noncompliance with distributor registration requirements and remanding for further proceedings). 231

781 F.2d 715, 719–20 (9th Cir. 1986).

232

Washington v. Confederated Tribes of Colville Reserv., 447 U.S. 134 (1980).

233

Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976).

234

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497

who would normally do their business elsewhere.235 Unresolved is whether section 1161 authorizes state taxation of on-reservation sales to members.236 b. Cigarette taxes. Excise taxes on cigarettes generally include both a cigarette excise tax and a general sales tax. Many tribes operate tribal smokeshops on their reservations that have the primary purpose of selling cigarettes and other tobacco products to nonmembers from surrounding communities. A common issue is whether and to what extent a state can require an Indian tribe to collect and remit cigarette excise taxes and sales taxes on the sale of cigarettes to nonmembers. A related issue concerns the means by which a state can enforce its cigarette and sales tax laws on tribal retail stores operating on the reservation.237 The United States Supreme Court considered these issues in Washing­ton v. Confederated Tribes of Colville Indian Reservation.238 There, a state sought to impose its cigarette excise and general sales taxes upon on-reservation tribal sales of cigarettes to nonmembers. The cigarette excise tax was enforced through the distribution of tax stamps by the state and the requirement that dealers may only sell cigarettes to which stamps have been affixed.239 The tribes were permitted to possess unstamped ciga­rettes for intratribal sales but were required by regulation to collect the tax with respect to sales to nonmembers.240 The Court accepted the finding of the lower court that the legal incidence of the tax fell on the nonmember purchaser.241 The sales tax was collected from the purchaser by the retailer.242 The state sought to enforce its cigarette excise and sales taxes by seizing unstamped cigarette shipments bound for the reservations.243 The Court first referred to its decision in Moe v. Confederated Salish and Kootenai Tribes244 in noting that

Squaxin Island, 781 F.2d at 719–20.

235

See Fort Belknap Indian Cmty. v. Mazurek, 43 F.3d 428, 432–35 (9th Cir. 1994) (holding that § 1161 authorizes states to enforce their liquor regulations through criminal prosecutions against Indians with respect to reservation transactions). 236

237 In Chickasaw Nation v. Oklahoma ex rel. Oklahoma Tax Commission, 31 F.3d 964, 967–68 (10th Cir. 1994), aff’d in part and rev’d in part, 515 U.S. 450 (1995), the court of appeals held that a state beer tax could be imposed on all sales by tribal retailers under the authority of 18 U.S.C. § 1161. It ruled alterna­tively that, even if authority to tax tribal entities or members were not granted under § 1161, the tax could still be imposed since its legal incidence fell on nonmember beer wholesalers. Id. at 968–71.

447 U.S. 134 (1980).

238

Id. at 141.

239

Id.

240

Id. at 142.

241

Id.

242

Id.

243

425 U.S. 463 (1976).

244

498

American Indian Law Deskbook, Fourth Edition Moe establishes several principles relevant to the present cases. The State may sometimes impose a nondiscriminatory tax on non-Indian customers of Indian retailers doing business on the reservation. Such a tax may be valid even if it seriously disadvantages or eliminates the Indian retailers[] business with non-Indians. And the State may impose at least “minimal” burdens on the Indian retailer to aid in enforcing and collecting the tax. There is no automatic bar, therefore, to Washington’s extending its tax and collection and record keeping requirements onto the reservation in the present cases.245

Consequently, the Supreme Court reaffirmed its decision in Moe that, at least in the area of cigarette sales, the state could impose its cigarette excise and sales tax laws on sales by reservation tribal retailers to nonmembers. Colville also considered whether a tribe could impose its own tax on reservation cigarette sales to nonmembers and, if so, whether a state could also tax the transaction. The Court held that an Indian tribe could levy its own tax on such sales, but imposition of such a tax did not bar or preempt a state from imposing its own cigarette excise and sales taxes on the sales to nonmembers. In so holding, the Court reasoned: It is painfully apparent that the value marketed by the smokeshops to persons coming from the outside is not generated on the reservations by activities in which the Tribes have a significant interest. . . . What the smokeshops offer these customers, and what is not available elsewhere, is solely an exemption from state taxation. The Tribes assert the power to create such exceptions by imposing their own taxes or otherwise earn­ing revenue by participating in the reservation enterprises. If this asser­tion were accepted, the Tribes could impose a nominal tax and open chains of discount stores at reservation borders, selling goods of all descriptions at deep discounts and drawing customers from surrounding areas. We do not believe that principles of federal Indian law, whether stated in terms of preemption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere.246

The Court found nothing in the Indian Reorganization Act of 1934,247 the Indian Self Financing Act of 1974,248 the Indian Self-Determination and Edu­cation Assistance Act of 1975,249 or the Indian trader statutes250 to indicate

Colville, 447 U.S. at 151.

245

Id. at 155.

246

25 U.S.C. §§ 461–479.

247

Id. §§ 1451–1453.

248

Id. §§ 450–450n.

249

Id. §§ 261–264.

250

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that Congress had provided the Indian tribes the power to preempt state sales taxes on reservation sales to nonmembers.251 The Court also found that the Washington taxes did not infringe on tribal self-government merely because the tribes taxed the same activity and the imposition of the state cigarette excise and sales taxes would deprive the tribes of revenues they were then receiving.252 Both the tribes and the state had legitimate interests in raising revenues: While the Tribes do have an interest in raising revenues for essential government programs, that interest is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate, governmental interest in raising revenues, and that interest is strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services.253

Because the tribes were deriving revenues from the sale of cigarettes pur­chased off reservation to nonmembers, the Court found that the value to them was not generated by activities on the reservation involving products manufactured or services rendered by the tribes but solely by the claimed exemption from state cigarette excise and state sales taxes. Imposition of the state taxes, which were uniformly applied to all dealers in the state, did no more than remove this competitive advantage.254 The Court continued on in Colville to reject claims that the Indian Com­ merce Clause barred all state and local taxation of Indian activity signifi­cantly touching the political and economic interest of the tribes, and that the state’s failure to grant a credit on tribal taxes paid rendered the state taxes invalid.255 The Court also rejected the argument that the state taxes inter­fered with tribal self-government, since the tribes’ taxing scheme was directed not at regulation but at revenue raising and “since each government is free to impose its taxes without ousting the other.”256

447 U.S. at 155–56.

251

Id. at 156.

252

Id. at 157.

253

Id.; accord Salt River Pima-Maricopa Indian Cmty. v. Yavapai County, 50 F.3d 734, 738 (9th Cir. 1995) (upholding state sales and rental taxes on nonmember consumers and tenants at tribally owned mall where “[t]he [tribe] contributes relatively little to the value of the products and services sold at the mall; the businesses are managed and owned by non-Indians, and the [tribe] does not participate in business decisions and does not share in the profits”). 254

Colville, 447 U.S. at 157–58.

255

Id. at 158; see California State Bd. of Equal. v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985) (per curiam) (rejecting court of appeals’ construction of cigarette tax statute with respect to legal incidence), on remand, 800 F.2d 1446 (9th Cir. 1986) (rejecting preemption, interference with tribal self-government, and Indian Commerce Clause challenges). 256

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Having determined that Washington could properly impose its cigarette excise and sales taxes on reservation sales to nonmembers, the Court turned to methods the state could use to enforce its tax laws to these sales. It deter­ mined, drawing again on its decision in Moe, that the state could impose at least “minimal burdens” on Indian businesses to aid in collecting and enforc­ing the taxes.257 In Moe the Supreme Court approved Montana’s requirement that tribal retailers precollect the cigarette sales tax on anticipated sales to nonmembers by paying the tax when purchasing cigarettes from their whole­sale supplier.258 The Court found no problem with the tribes reimbursing themselves for the precollected tax by adding the state sales tax onto the pur­chase price of cigarettes sold to nonmembers.259 The Court in Colville simi­larly found the collection burden imposed by Washington to be no more burdensome than that approved in Moe.260 Washington’s regulations required the tribes to keep detailed records of both taxable and nontaxable transactions.261 Finally, the Court determined that Washington’s action in seizing unstamped cigarette shipments before they reached the reservation as contraband was a justifiable method with which to induce tribal compliance with its cigarette excise and sales tax laws and regulations.262 The Court did not reach the issue of whether the state could enter onto the reservation to seize and sell contraband stocks of cigarettes, although in sustaining the propriety of off-reservation seizures it observed, “[i]t is significant that these seizures take place outside the reservation, in locations where state power over Indian affairs is considerably more expansive than it is within reserva­tion boundaries.”263 In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe264 the Supreme Court reaffirmed the principles it set out in Colville and Moe in reversing in part a decision by the Tenth Circuit Court of Appeals. The is-

Colville, 447 U.S. at 159–60.

257

425 U.S. at 483; see also id. at 468 n.6.

258

Id. at 483.

259

Colville, 447 U.S. at 159.

260

Id.

261

Id. at 161–62.

262

Id. at 162. Congress has authorized seizure by federal law enforcement officials of cigarettes not stamped in compliance with state law in the Contraband Cigarette Trafficking Act, 18 U.S.C. §§ 2341–2346. See, e.g., Grey Poplars, Inc. v. One Million Three Hundred Seventy-One Thousand (1,371,100) Assorted Brands of Cigarettes, 282 F.3d 1175, 1177 (9th Cir. 2002) (rejecting contention that federal government’s on-reservation seizure of unstamped cigarettes under Contraband Cigarette Trafficking Act was improper “because the State of Washington could not directly enforce its cigarette tax laws by seizures within Indian country[;] . . . [t]he fact that the CCTA refers to state law of taxation does not make it any less a federal statute”). Congress also has been held to confer authority on state officials to enforce state tax statutes through on-reservation cigarette seizures by virtue of a provision in the Rhode Island Indian Claims Settlement Act subjecting settlement lands to state civil and criminal jurisdiction. Narragansett Indian Tribe v. Rhode Island, 296 F. Supp. 2d 153, 169–71 (D.R.I. 2003), aff’d, 449 F.3d 16 (1st Cir. 2006) (en banc) (applying 25 U.S.C. § 1708). 263

498 U.S. 505 (1991).

264

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sues before the Court in Citizen Band were whether Oklahoma, a non–Public Law 280 state, could impose a cigarette sales tax on nonmember purchases from a tribal convenience store and whether the tribe’s immunity from suit pre­cluded the state’s counterclaim for past, uncollected taxes.265 The Court con­cluded that the tribe itself could not be held liable for the past taxes266 but that the state tax nonetheless was applicable to the nonmember sales.267 In so holding, the Court indicated that the latter conclusion was not dependent on whether a state had asserted jurisdiction over Indian country under Pub­lic Law 280 since, while Moe and Colville each involved Public Law 280 reser­vations, “[t]hose cases stand for the proposition that the doctrine of tribal sovereign immunity does not prevent a State from requiring Indian retailers doing business on tribal reservations to collect a state-imposed cigarette tax on their sales to nonmembers of the Tribe.”268 The Court further considered in Citizen Band Potawatomi the issue of what reme­dies exist for a state to enforce the collection of tax on tribal sales to non­ members. Although reaffirming that the doctrine of tribal sovereign immunity bars a suit to collect back taxes against the tribe,269 it suggested alternatives may exist, such as suit against the individ­ual agents or officers of the tribal business, utilizing precollection proce­dures such as those approved in Colville and Moe for cigarette excise taxes, seizure of goods before they arrive at the reservation, assessing wholesalers who sell to the tribal business, or entering into intergovernmental agree­ments with the tribe.270 If all else failed, the Court wrote, the states could apply to Congress for appropriate statutory relief.271 Most recently, in Department of Taxation and Finance v. Milhelm Attea & Bros., Inc.,272 the Supreme Court considered New York’s authority to regulate a cigarette wholesaler’s sales of untaxed cigarettes to a tribal smokeshop so as to limit the number of untaxed cigarettes that might be sold to nontribal members. New York’s regulations imposed a quota on the number of untaxed cigarettes that could be sold by the wholesaler to tribal smokeshops—an amount based on an estimate of the number of cigarettes that the resident membership of the tribe would consume.273 The regula­tions also imposed record-keeping requirements on wholesalers and tribal retailers to ensure that the sale of unstamped cigarettes

Id. at 509.

265

Id. at 509–10.

266

Id. at 511–13.

267

Id. at 513.

268

Id.

269

Id. at 512.

270

Id.

271

512 U.S. 61 (1994).

272

Id. at 66.

273

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American Indian Law Deskbook, Fourth Edition

did not exceed the quota.274 Remarking that, in light of Moe and Colville, “[i]t would be anoma­lous to hold that a State could impose tax collection and bookkeeping bur­dens on reservation retailers who are themselves enrolled tribal members, including stores operated by the tribes themselves, but that similar burdens could not be imposed on wholesalers, who often (as in this case) are not,” the Court held that, despite the Indian trader statutes, “Indian traders are not wholly immune from state regulation that is reasonably necessary to the assessment or collection of lawful state taxes.”275 The Court then concluded that, on their face, the challenged regulations did not place an undue burden on Indian traders or tribal retailers.276 The status of the law after Moe, Colville, Citizen Band Potawatomi, and Milhelm Attea, at least as to reservation sales of cigarettes, is that a state may validly impose its excise and state sales tax on any on-reservation sale to a nonmem­ber and may require the tribe to precollect, or prepay, the excise tax when it purchases stock from the wholesaler.277 A state may also seize cigarette ship­ments as contraband as a means to enforce its tax laws and regulations and require the tribe to keep detailed sales records to enable the state to monitor

Id. at 67.

274

Id. at 75.

275

Id. at 77. Subsequent to the Supreme Court’s decision in Milhelm Attea, New York repealed the challenged regulations because of “ ‘the inability of the regulations to achieve the purposes of the Tax Law and also the State’s respect for the Indian Nations’ sovereignty.’ ” New York Ass’n of Convenience Stores v. Urbach, 699 N.E.2d 904, 909 (N.Y. 1998) (rejecting contention by tribal retailers’ competitors that strict scrutiny standards applied to equal protection claim based upon state’s failure to enforce tax statute against tribal retailers), on remand, 712 N.Y.S.2d 220, 222 (App. Div. 2000) (finding rational basis for permanent enforcement forbearance where “the statutes cannot effectively be enforced without the cooperation of the Indian tribe,” where tribal immunity forecloses suit or records examination on or off reservation, and where enforcement efforts through interdiction of tobacco and motor fuel shipments “resulted in civil unrest, personal injuries and significant interference with public transportation”); see generally Karen L. Folster, Comment, Just Cheap Butts, or an Equal Protection Violation: New York’s Failure to Tax Reservation Sales to Non-Indians, 62 Alb. L. Rev. 697 (1998) (discussing circumstances surrounding determination not to enforce cigarette and gas taxes within reservations and ensuing litigation, and concluding that nonenforcement policy, whether analyzed under the strict scrutiny or the rational-basis standard, is unconstitutional); cf. Jonathon B. Tingley, Comment, Stealing from the Poor to Give to the Rich: Why New York Should Abandon Attempts to Collect Fuel Taxes on Reservations, 69 Alb. L. Rev. 357 (2005–2006) (discussing continuing controversy over enforcement of state transaction–based taxes—presently fuel taxes—on Indian reservations). A more recent legislative attempt to enforce state cigarette taxes with respect to reservation sales has also proved unsuccessful to date. Day Wholesale, Inc. v. State, 856 N.Y.S.2d 808, 809 (A.D. 2008) (2005 statute failed to take effect on March 1, 2006, where agency declined to adopt implementing rules and regulations because of “its longstanding policy of forebearance”). 276

277 See Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d 881, 892 (6th Cir. 2007) (prepayment requirement imposed on tribal tobacco retailers with respect to both member and nonmember sales constituted minimal burden where state provided refund procedure for prepayment related to member sales with “the roughly $1000 . . . lost in interest is a relatively insignificant amount when compared to the $400,000 in refunds received by the Community”); cf. Keweenaw Bay Indian Cmty. v. Kleine, 546 F. Supp. 2d 509, 525 (W.D. Mich. 2008) (sales and use tax imposed on all consumers, whether Indian or not, valid where prepayment mechanism for claiming federal law–based exemption provided; “[t]he enforcement scheme in the present case is similar in many important aspects to that approved . . . in Rising”).

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compliance with the law. Left unanswered is the scope of other enforcment remedies available to states.278 c. Gross receipts and other sales taxes. It is clear that an Indian tribe and its mem­bers are exempt from the payment of state sales or gross receipts taxes for goods or services purchased on the reservation from nonmembers by the tribe or its members, irrespective of whether the nonmember sellers are licensed under the Indian trader statutes. In the case of a gross receipts tax on sales, this tax is normally imposed on the seller but is measured by the amount of the transaction. These taxes are commonly passed on to the purchaser. In Warren Trading Post Co. v. Arizona Tax Commission279 the Supreme Court invalidated Arizona’s attempt to impose the state gross receipts tax on a licensed Indian trader’s sales to reservation Indians. The tax was invali­dated on the grounds that the Indian trader statutes preempted a state from taxing transactions with reservation Indians.280 In Central Machinery Co. v. Arizona State Tax Commission281 the Supreme Court extended its position in Warren Trading Post to invalidate imposition of Arizona’s gross receipts tax on reservation sales by a nonmember seller, which had no permanent place of business on the reservation and was not licensed under the Indian trader statutes, to a tribal enterprise. The Court found that all on-reservation trans­actions with the Indian tribe or tribal members were exempt from state gross receipts taxes because the Indian trader statutes preempted the states from taxing such transactions regardless of whether the seller was a licensed Indian trader.282 Similarly, in Ramah Navajo School Board, Inc. v. Department of Reve­nue,283 the Supreme Court invalidated New Mexico’s attempt to impose its gross receipts tax on a contractor hired by the Navajo Tribe to construct a school on the reservation. Again, the tax was imposed on the measure of the gross

278 See Keweenaw Bay Indian Cmty., 477 F.3d at 895 (off-reservation seizure of untaxed tobacco products from United States Postal Service upheld against allegation that “the state interference with the mails violates the Supremacy Clause and Congress’s authority to regulate the mails[;]” “contrary to the Community’s argument, the Supreme Court has clearly endorsed state seizures as a remedy where sovereign immunity prevents in-court remedies”). An increasing concern for states is the sale of cigarettes over the Internet by reservation-based vendors. See Ward v. New York, 291 F. Supp. 2d 188, 202–07 (W.D.N.Y. 2003) (applying interest-balancing standards developed in Indian tax decisions where tribal vendors challenged state statute that prohibits direct shipment of cigarettes to consumers); see generally Jonathan I. Sirois, Remote Vendor Cigarette Sales, Tribal Sovereignty, and the Jenkins Act: Can I Get a Remedy?, 42 Duq. L. Rev. 27, 107–09 (2003) (discussing legal issues attendant to Internet cigarette sales in Indian country, and concluding that the reporting provisions of the Jenkins Act, 15 U.S.C. §§ 375–378, may provide effective remedial device if amended to provide for felony penalties and to transfer enforcement responsibility to the Bureau of Alcohol, Tobacco and Firearms).

380 U.S. 685 (1965).

279

Id. at 691.

280

448 U.S. 160 (1980).

281

282 Id. at 165 (“[t]he Indian trader statutes and their implementing regulations apply no less to a non­ resident person who sells goods to Indians on a reservation than they do to a resident trader”).

458 U.S. 832 (1982).

283

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receipts received by the contractor from the tribe.284 However, the Court looked to federal statutes concerning the provision of education for Indians as reflecting a comprehensive federal regulatory scheme for the con­struction of Indian schools and found that this scheme left no room for imposition of the additional burden of state taxes on the transaction between the contractor and the tribe.285 The Court further rejected the wholesale use of the “legal incidence of the tax” test as a per se basis for imposition of the gross receipts tax on the nonmember contractor.286 On the other hand, when a tax is imposed on transactions between nonmembers, a state tax will generally be permitted. In Gila River Indian Community v. Waddell287 the Ninth Circuit Court of Appeals upheld the impo­sition of Arizona’s transaction privilege tax on the sale of tickets to concerts, boat races, and auto races. The court held in part that federal interests in res­ervation economic development and federal regulation of reservation leases did not preempt a state tax on transactions between non-Indians and that there was no interference with tribal sovereignty because the state and tribe had concurrent jurisdiction to tax non-Indian transactions.288 Subsequently in Barona Band of Mission Indians v. Yee,289 the Ninth Circuit upheld imposition of a state sales tax imposed on an electrical subcontractor for materials purchased off reservation but delivered to the reservation for use in constructing a $75 million tribal casino expansion. The case contained the additional element of a contract provision whose admitted purpose was to avoid state taxes and which made the project’s various contractors “ ‘purchasing agent[s]’ ” for the tribe and required all purchasing orders initiated by the contractors to contain language making the sale complete and passing title only upon the contractors’ on-reservation acceptance of the materials.290 After

Id. at 835.

284

Id. at 839–42.

285

Id. at 844 n.8. A different rule governs where a federal contractor is involved. In Arizona Department of Revenue v. Blaze Construction Co., 526 U.S. 32 (1999), the Supreme Court resolved the conflict between the Arizona and New Mexico courts by adopting a bright-line standard established in United States v. New Mexico, 455 U.S. 720 (1982), under which nonmembers contracting with the federal government with respect to reservation projects are taxable by states unless Congress expressly provides otherwise, and specifically rejected application of the interest-balancing test used in Ramah Navajo. Blaze Construction, 526 U.S. at 37 (“we have never employed this balancing test in a case such as this one where a State seeks to tax a transaction between the Federal Government and its non-Indian contractor”); see generally Taylor, supra at note 90, at 876 (in light of Blaze Construction, “[r]oad builders should become licensed Indian traders, the BIA should enter into contracts with the Tribes to make road-building grants, and the Tribes should then enter into road construction contracts with the road builder”). 286

91 F.3d 1232 (9th Cir. 1996).

287

Id. at 1237, 1239; see also Yavapai-Prescott Indian Tribe v. Scott, 117 F.3d 1107 (9th Cir. 1997) (nontribal lessee of hotel taxable on sales to nonmembers). 288

528 F.3d 1184 (9th Cir. 2008).

289

Id. at 1187–88.

290

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determinging that the subcontractor bore the sales tax’s legal incidence,291 the court engaged in substantial analysis of the competing tribal, federal, and state interests. Although acknowledging that “Tribal interests [were] implicated” since the construction occurred on reservation, the court held that “the right of territorial autonomy is significantly compromised by the Tribe’s invitation to the non-Indian subcontractor to theoretically consummate purchases on its tribal land for the sole purpose of receiving preferential tax treatment.”292 It additionally deemed “weak” the tax’s impact on the tribe—even when viewed in the context of all of the project’s contractors—given the project’s overall cost and the fact that, but for an indemnification agreement, the cost would be borne by the taxpayer subcontractor. As to the federal interest, the court reasoned that, notwithstanding “the federal government’s interest in Indian economic vitality[,]” such interest “does not alone defeat an otherwise legitimate state tax[,] . . . continues to fade when the commercial activity is rigged to trigger a tax exemption,” and “necessarily lessens in the specific context of a multimillion dollar casino expansion.”293 It deemed the Bracker analysis to “tip[]” in the state’s favor “where the state levies a neutral sales tax on non-­Indians’ purchases which—but for contractual creativity—would have occurred on nonIndian land.”294 Under the circumstances, “the general state interest of revenue raising and consistent application of its tax laws trump the weak interests of the Tribe and federal government.”295 5. Income taxes In McClanahan v. Arizona State Tax Commission,296 the Supreme Court held that a state lacked jurisdiction to collect an income tax on income earned on the reservation by a tribal member residing on the reservation, absent

Id. at 1189–90.

291

Id. at 1191.

292

Id. at 1192.

293

Id.

294

Id. at 1193. The Ninth Circuit also rejected the tribe’s reliance on the Indian Gaming Regulatory Act (IGRA) as an independent basis for preemption. “Extending IGRA to preempt any commercial activity remotely related to Indian gaming—employment contracts, food service contracts, innkeeper codes—stretches the statute beyond its stated purpose.” Id. It deemed Bracker as the applicable “test to determine whether federal interests preempt state taxes.” Id. 295

296 411 U.S. 164 (1973); compare Fatt v. State Tax Comm’n, 884 P.2d 1233 (Utah 1994) (tribal member ser­viceman stationed in California exempt from state income tax where domicile was deemed to be on his reservation under the Soldiers’ and Sailors’ Relief Act), with Maryboy v. Utah State Tax Comm’n, 904 P.2d 662, 667 (Utah 1995) (applying Bracker interest-balancing test in concluding that Navajo member living on his reservation subject to state taxes with respect to income from his position as county commissioner, and rejecting contention that per se McClanahan rule governed).

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authorization from Congress.297 Subsequently, in Oklahoma Tax Commission v. Sac and Fox Nation,298 the Supreme Court held that the limitation on state tax­ ing jurisdiction in McClanahan extends to income earned by tribal members residing within “Indian country” as defined in 18 U.S.C. § 1151, but not on a reservation.299 In Sac and Fox Nation, all the tribal members before the Court were employed by the tribe on tribal lands.300 The Court remanded the case for a determination of which members resided in Indian country and who therefore fell outside the state’s taxing jurisdiction.301 The Court noted but declined to discuss whether the tribe’s right to self-governance constituted an independent ground on which to preempt the state from taxing the income of those tribal members found to be residing outside Indian country.302 Most recently, in Oklahoma Tax Commission v. Chickasaw Nation303 the Supreme Court specifically held that the state could impose income taxes on wages earned by tribal members who were employed on the reservation but resided outside the reservation. The Court based its holding on the “well established principle of interstate and international taxation” that a jurisdic­ tion may tax all the income of its residents, including income earned outside the taxing jurisdiction.304 The tribe had argued that to allow the state to tax this income would impair rights granted or reserved to the tribe and its members under its treaty with the United States.305 The Court rejected the tribe’s interpretation of the involved treaty, as well as the argument that to impose income taxes on the wages of the tribal members is tantamount to taxing the tribal government.306

297 411 U.S. at 168–71. In the same term the Supreme Court declined to review a case upholding an income tax on a non-Indian tribal employee. Kahn v. Arizona State Tax Comm’n, 490 P.2d 846 (Ariz. Ct. App. 1971), appeal dismissed, 411 U.S. 941 (1973).

508 U.S. 114 (1993).

298

Id. at 124–25.

299

Id. at 118–19.

300

Id. at 126; cf. Flat Ctr. Farms, Inc. v. State, 49 P.3d 578, 581 (Mont. 2002) (holding state corporation license tax inapplicable where business’s “activities occur solely on Indian land owned in fee or held in trust[,]” and reasoning that “[i]n reality, the value the State wishes to tax is generated entirely in a sovereign state . . . [and] is not earned in Montana”). 301

Sac and Fox, 508 U.S. at 126.

302

515 U.S. 450 (1995); accord Anderson v. Wisconsin Dep’t of Revenue, 484 N.W.2d 914 (Wis. 1992).

303

515 U.S. at 462–63; but see Lac du Flambeau Band of Lake Superior Chippewa Indians v. Zeuske, 145 F. Supp. 2d 969 (W.D. Wis. 2000) (members of tribe in Wisconsin not subject to Wisconsin income tax if they live on reservation even though their income is earned out of state and hence off reservation, where only basis for state taxation is on-reservation residence). 304

515 U.S. at 465.

305

Id. at 466. The treaty language in question stated that “ ‘no Territory or State shall ever have a right to pass laws for the government of the [tribe] and [its] descendants but the U.S. shall forever secure said [tribe] from, and against, all [such] laws.’ ” Id. at 465. The Court reasoned that “[w]e comprehend this Treaty language to provide for the tribe’s sovereignty within Indian County” and that it did not confer “supersovereign authority to interfere with another jurisdiction’s sovereign right to tax income, from all sources, 306

Taxation in Indian Country

507

III. FEDERAL TAXATION AUTHORITY Tribes and their members are subject to federal tax laws unless Congress or a treaty has provided otherwise.307 The Supreme Court thus has stated that “Indians are citizens and that in ordinary affairs of life, not governed by treaties or remedial legislation, they are subject to the payment of income taxes as are other citizens.”308 The Court stressed further that “exemptions to tax laws should be clearly expressed.”309 Nevertheless, it has applied Indian canons of statutory construction to determine whether the requisite clarity of expression exists.310 The Supreme Court recently clarified that the canons are not mandatory rules but are guides that “ ‘need not be conclusive.’ ”311 The Court repeated the canon that tax exemptions will be found in federal statutes only if clearly expressed, and rejected the argument that the pro-Indian canon is “inevitably stronger—particularly where the interpretation of a congressional statute rather than an Indian treaty is at issue. This Court’s earlier cases are too individualized, involving too many different kinds of legal circumstances, to warrant any such assessment about the two canons’ relative strength.”312

of those who choose to live within the jurisdiction’s limits.” Id. at 466. With respect to character­izing the state tax as one on the tribe, the Court observed that it “doubt[ed] the signatures meant to incor­porate this now-defunct view into the treaty” and that, if accepted, it would mean no tribal employee, including a nonmember, could be taxed—a proposition “even the Tribe is not urging.” Id. at 466–67; see also Jefferson v. Comm’r, 631 N.W.2d 391, 396 (Minn. 2001) (rejecting preemption claim based on the Indian Gaming Regulatory Act that tribal members residing off reservation were not subject to state income tax with respect to per capita payments received from tribe and generated by on-reservation gaming operation; “[t]he [taxpayers’] arguments fail for the simple reason that [IGRA] does not expressly preempt state taxation of income received in the form of per capita payments from reservation gaming activity”); Loveness v. State ex rel. Ariz. Dep’t of Revenue, 963 P.2d 303 (Ariz. Ct. App. 1998) (nonmembers subject to state taxation of income earned from contract with tribal corporation for on-reservation timbering services); compare LaRock v. Wisconsin Dep’t of Revenue, 621 N.W.2d 907 (Wis. 2001) (nonmember Indian living and working on the reservation is treated no differently from non-Indian for civil regulatory purposes and thus subject to state income tax); and Esquiro v. Department of Revenue, 969 P.2d 381 (Or. 1998) (per curiam) (nonmember Indian residing on reservation subject to state taxation of income earned off reservation), with Flat Ctr. Farms, Inc. v. State, 49 P.3d 578, 582 (Mont. 2002) (“the tribal status of the individual or corporation to be taxed may be relevant, but it is by no means dispositive”). 307

See, e.g., Squire v. Capoeman, 351 U.S. 1 (1956); Choteau v. Burnet, 283 U.S. 691 (1931). Capoeman, 351 U.S. at 6.

308

Id.; see also Bruner v. United States, 340 F. Supp. 2d 1204, 1220 (N.D. Okla. 2004) (oil and gas income from allotted lands subject to federal taxation absent explicit statutory exemption; the fact that involved lands subject to restriction against alienation was immaterial since for federal tax purposes “land restrictions and tax exemptions are discrete entities” and “do not go hand in hand”), aff’d in part and vacated in part, 159 Fed. Appx. 859 (10th Cir. 2005), George v. Comm’r, T.C. Memo. 2006-121 (declining to find exemption from federal income tax based upon Executive Order No. 13175 (2000)—requiring Executive Branch agencies to consult and collaborate with Indian tribes—because the Order “is not grounded in a statutory mandate”); see generally Jensen, supra note 79, at 41–55 (discussing federal taxation within Indian country). 309

310 311

351 U.S. at 6–7.

Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001).

312 Id. at 95; see generally Jensen, supra note 79, at 30–31 (arguing that Chickasaw Nation reflected the Supreme Court’s “increasing[] skeptic[ism] about application of the canons” in nontreaty cases; “[t]he Court strained to find no ambiguity, and hence no role for the canons, in an inherently ambiguous situation:

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Notwithstanding the clarification provided in Chickasaw, there remains uncertainty over the proper interaction between the Indian canons of construction and determinations of whether tribes or Indians are entitled to an exemption from a generally applicable federal tax. This issue was confronted directly in Ramsey v. United States.313 The controversy involved application of federal diesel fuel and heavy vehicle taxes314 to a tribal member who transported timber harvested on reservation trust lands to off-reservation locations. The taxpayer’s tribe is party to an 1855 treaty that secured “ ‘the right of way, with free access from the [reservation] to the nearest public highway’ ” and also “ ‘the right in common with citizens of the United States, to travel upon all public highways.’ ”315 The “in common with” language had been construed in Cree v. Flores316 to exempt the same taxpayer from state highway–related fees. In reaching that conclusion, extrinsic evidence in the form of testimony concerning the likely meaning of the treaty provision to the tribal representatives was considered and given controlling weight.317 The Ramsey district court relied upon the holding in Cree to find a similar exemption with respect to the federal tax, but the court of appeals reversed.318 The court of appeals predicated reversal on a distinction that it perceives between the “express federal law to the contrary standard” found with respect to application of state law to off-reservation activities of tribes or their members319 and the “clearly expressed” exemption required for nonapplication of federal law. With respect to the former, it reasoned, “federal law must be interpreted in the light most favorable to the Indians, and extrinsic evidence may be used to show the federal government’s and the Indians’ intent.”320 However, where a federal tax is involved, “we do not engage the canon of construction favoring the Indians unless express exemptive language is first found in the text of the statute or treaty.”321 The court added that “[t]he language need not explicitly state that the Indians are exempt from the specific [federal] tax at issue; it must only provide evidence of the federal government’s intent to exempt Indians

the Court interpreted a statute that on its face made no sense in a way that subjected two tribes to federal wagering laws”). 302 F.3d 1074 (9th Cir. 2002).

313

26 U.S.C. §§ 4041, 4481.

314

302 F.3d at 1076–77 (quoting June 9, 1855, Treaty with Yakamas, 12 Stat. 951, 952–53 (1859)).

315

157 F.3d 762 (9th Cir. 1998).

316

Id. at 768.

317

Ramsey v. United States, 134 F. Supp. 2d 1203 (E.D. Wash. 2000), rev’d, 302 F.3d 1074 (9th Cir.

318

2002). See supra notes 42–45 and accompanying text.

319

302 F.3d at 1079.

320

Id.

321

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from taxation.”322 Because the involved treaty did not contain the requisite “express exemptive language,” the federal taxes could be imposed on the tribal member.323 Under this test, it appears few situations will arise where exemptions from federal taxes will be found.

322 Id. As examples of such language, the court of appeals suggested “ ‘free from incumbrance,’ ‘free from taxation,’ and ‘free from fees.’ ” Id.

Id. at 1080.

323

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Chapter 12 Indian Lands Gaming

No other economic activity undertaken by Indian tribes has been as far-reaching and important as tribal gaming, starting in the late 1970s and expanding in earnest since the early 1990s. Unsurprisingly, this gaming explosion has spawned a significant level of litigation and regulatory controversy as the result of tribes engaging in what otherwise has been a disfavored industry in all but a few states until quite recently. Most importantly, in one of the few instances where Congress has acted to encourage intersovereign cooperation, it adopted a comprehensive scheme in the Indian Gaming Regulatory Act of 1988 (IGRA) to permit and regulate casino-like, or “class III,” tribal gaming. The statute is based on a legislative conclusion that class III gaming should occur pursuant to a tribal-state compact and provided a mechanism to accomplish that objective: subjecting states to federal court suits by tribes for failure to negotiate in good faith over the terms of such compacts. However, in litigation where a tribe sought to enforce the good-faith negotiating duty, the United States Supreme Court upheld the state’s claim of Eleventh Amendment immunity from suit. That decision, Seminole Tribe v. Florida, has had far-reaching effects in the field of federalism generally, but it also dulled, if not broke, the sword that Congress had created to ensure compliance by states with IGRA. Notwithstanding the Supreme Court’s invalidation of this central feature of IGRA, Indian gaming continues to flourish. Before IGRA was passed in 1988, a modest number of tribal gaming operations generated just over $100 million in annual revenue. In 2007, 226 of

National Indian Gaming Comm’n, Annual Report 1 (2004).



Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 18 U.S.C. §§ 1166–68 and 25 U.S.C. §§ 2701–21). 

517 U.S. 44 (1996).



S. Rep. No. 446, 100th Cong., 2d Sess., at 2 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3072. A 1986 Survey by the Department of the Interior indicated that 108 gambling facilities existed on Indian lands—104 with bingo, 93 with pull tabs or punch cards, 15 with card games, 4 with casino-like gaming, and 15 with other gaming activities. Although a precise calculation of the gross receipts to tribes from this gaming activity was not possible, the Department found credible an estimate of $100 million. See Federal Standards and Regulations for the Conduct of Gaming Activities Within Indian Country: Hearings on S. 902 Before the Senate 

510

Indian Lands Gaming

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562 federally recognized tribes offered gaming at about 419 sites in 28 states, generating net gambling revenues of $26 billion, a 1,300 percent increase since IGRA’s adoption. With the potential for great income has come a great amount of public policy controversy and litigation. This chapter focuses on the latter phenomenon, tracing the statutory development of Indian gaming and the manner in which courts have construed and applied those statutes. I. PRE-IGRA REGULATION OF INDIAN COUNTRY GAMING The regulation of gambling in Indian country historically was a combination of federal and state effort. The federal effort concentrated on enforcement of two statutes relating specifically to gambling and a third statute incorporating by reference, at the least, state laws that prohibit gambling activities. The state effort varied depending upon the Indian or non-Indian status of the person conducting the gaming activity and whether the involved state possessed criminal jurisdiction pursuant to Public Law 280.

Select Committee on Indian Affairs, 99th Cong., 2d Sess. 49 (1986) (statement of Frank A. Ryan, Deputy to Ass. Sec’y Indian Affairs (Trust & Econ. Dev., Dep’t of Interior)). National Indian Gaming Comm’n Newsletter, Vol. II, No. III, at 2 (Fall 2007).



Press Release, Nat’l Indian Gaming Comm’n, NIGC Announces 2007 Indian Gaming Revenues (June 18, 2008), available at http://www.nigc.gov/ReadingRoom/PressReleases/PR93062008/tabid/841/Default. aspx (last visited July 25, 2008). In 2005, Indian gaming was estimated to account for approximately 27 percent of all legal gambling nationwide. Press Release, Nat’l Indian Gaming Comm’n, NIGC Announces 2006 Indian Gaming Revenues, Additional Documents (June 4, 2007), available at http://www.nigc.gov/ Portals/0/NIGC%20Uploads/readingroom/pressreleases/Shawn%20color%20charts.pdf (last visited Jul. 25, 2008). See Steven Andrew Light and Kathryn R.L. Rand, Reconciling the Paradox of Tribal Sovereignty: Three Frameworks for Developing Indian Gaming Law and Policy, 4 Nev. L.J. 262, 266–67 (2003/2004) (discussing growth of tribal gaming revenues); Naomi Mezey, Note, The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming, 48 Stan. L. Rev. 711 (1996) (critiquing the redistributing effects of IGRA gaming for Indian tribes). 

 IGRA’s economic impact has had significant collateral effects. See generally Matthew L.M. Fletcher, Bringing Balance to Indian Gaming, 44 Harv. J. on Legis. 39, 67–71, 90–94 (2007) (discussing public backlash against “reservation shopping” and “off-reservation gaming”); Joshua L. Sohn, Note and Comment, The Double-Edged Sword of Indian Gaming, 42 Tulsa L. Rev. 139, 139–69 (2006) (arguing that despite Indian gaming’s economic success, it has had more negative effects on tribal sovereignty); Charlene Wear Simmons, Gambling in the Golden State: 1998 Forward (Cal. Research Bureau, Sacramento, Cal.) 2006, at 2–6 (evaluating economic benefits and social costs of Indian gaming facilities in California); Kevin K. Washburn, Federal Law, State Policy, and Indian Gaming, 4 Nev. L.J. 285, 298 (2003/2004) (“Indian gaming has transformed the nature of Indian policy in the United States from an exclusively federal issue to an important issue of state politics. From the tribal government perspective, the good news is that tribes have proven very effective at the state level. Tribal organization and financial resources have made them powerful forces within state politics. On the other hand, tribal governments are subject to state politics to a far greater extent than in the past”); Wisconsin Policy Research Institute, Gambling, http://www.wpri.org/pages/subjects/gambling. html (last visited Jul. 25, 2008) (listing studies that generally acknowledge gaming’s positive effects on tribes but consistently find tribal casinos cost the state in terms of lost or substituted revenue and social ills such as crime, bankruptcy, and problem or pathological gambling).  Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321–1325 and 28 U.S.C. § 1360). Public Law 280 gives six specifically enumerated states a broad grant of criminal jurisdiction and a limited grant of civil-regulatory jurisdiction over tribes located within their borders. See supra Chapters 4 and 5.

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A. Federal Regulation The principal basis for federal regulation of Indian country gambling prior to IGRA’s passage was 18 U.S.C. § 1955. Section 1955(a) subjects “[w]ho[m]ever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business” to a fine of not more than $20,000 or imprisonment for not more than five years, or both. The term “illegal gambling business” is defined as a gambling business which—(i) is in violation of the law of a State or political subdivision in which it is conducted; (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.10

The term “gambling” includes, but is not limited to, “pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.”11 A statute of general application, section 1955 is not concerned only with Indian country or federal enclave gambling. The first appellate decision applying section 1955 to Indian country was United States v. Farris,12 which arose from casino-like gaming operations on the Puyallup Indian Reservation conducted by tribal members and nonmembers. The Ninth Circuit Court of Appeals held that state law provided the substantive basis upon which to determine the legality of the alleged activity, observing that “Washington public policy prohibits the type of gambling business conducted by appellants.”13 Farris thus suggested that only state criminal laws that prohibited, as opposed to those that imposed a regulatory scheme enforceable through criminal sanctions, could provide the necessary state law predicate for prosecution under section 1955. The Sixth Circuit Court of Appeals rejected this civil-regulatory/criminalprohibitory approach in United States v. Dakota,14 where it upheld a declaratory judgment that certain card and dice games operated by tribal members violated section 1955. The court reasoned that such an approach, even if proper for determining whether to exercise Public Law 280 criminal jurisdiction over those members, was inappropriate for use in a section 1955 context because

Section 1955 was enacted as part of the Organized Crime Control Act of 1970. Pub. L. No. 91-452, § 803(a), 84 Stat. 922, 937 (1970). 

18 U.S.C. § 1955(a), (b)(1).

10 11

Id. § 1955(b)(2). 624 F.2d 890 (9th Cir. 1980).

12

Id. at 895.

13

796 F.2d 186 (6th Cir. 1986).

14

Indian Lands Gaming

513

(1) “any prosecution under [such provision] must be brought in federal court, exclusive of state courts . . . [and therefore] the statute raises no danger of encroachment on Indian sovereignty by the states”; and (2) “the language of section 1955 contains no indication that the criminal-prohibitory/civil­regulatory test should be used in its interpretation.”15 It therefore concluded the only relevant inquiry was simply whether the alleged conduct was made unlawful under the affected state’s law. The difference between the Sixth and Ninth Circuits was noted by the Supreme Court in its pivotal 1987 Indian gaming case, California v. Cabazon Band of Mission Indians,16 but the Court did not decide the question. The differing conclusions of the Sixth and Ninth Circuits, however, over this issue have been mooted by the latter court’s more recent conclusion that the adoption of 18 U.S.C. § 1166 in IGRA has eliminated the need to consider the civil-regulatory/criminal-prohibitory issue when a violation of section 1155 is alleged. In United States v. E.C. Investments, Inc.,17 the Ninth Circuit reinstated a 23-count indictment against operators of the Morongo Band of Mission Indians casino that charged, inter alia, operating an illegal gambling business under section 1955, use of a facility in interstate commerce in aid of racketeering,18 and use of gambling devices in violation of the Johnson Act.19 All counts originally arose from operation of slot machines in violation of California law but were dismissed by the district court on the grounds that, under the civil-regulatory/criminal-prohibitory test employed in Cabazon, the involved state law provision was “regulatory” and could not be used as the predicate to a section 1955 offense. The court of appeals rejected this analysis, reasoning that the incorporation of state gambling law into “Federal law” under section 1166 extended to prosecutions under section 1955 and that, under prior circuit precedent, the civil-regulatory/criminal-prohibitory distinction had been held inapplicable in determining whether class III gaming violated state law.20 The prosecution could proceed under section 1955 because slot machine gambling is illegal under California law. A second federal statute relating to gambling within Indian country is 15 U.S.C. § 1175. Part of the Johnson Act adopted in 1951,21 section 1175 makes it unlawful “to manufacture, recondition, repair, sell, transport, possess, or

Id. at 188 (citation omitted).

15

480 U.S. 202, 213–14 (1987); see also United States v. Cook, 922 F.2d 1026, 1034 (2d Cir. 1991) (applying civil-regulatory/criminal-prohibitory distinction in § 1955 prosecution). 16

77 F.3d 327 (9th Cir. 1996).

17

See 18 U.S.C. § 1952.

18

See 15 U.S.C. § 1175.

19

77 F.3d at 330–31.

20

Act of Jan. 2, 1951, § 5, 64 Stat. 1134, 1135 (codified at 15 U.S.C. § 1175).

21

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use any gambling device in the District of Columbia, in any possession of the United States, within Indian country as defined in section 1151 of Title 18 or within the special maritime and territorial jurisdiction of the United States as defined in section 7 of Title 18.” The term “gambling device” encompasses slot machines and any other machine or mechanical device (including, but not limited to, roulette wheels and similar devices) designed and manufactured primarily for use in connection with gambling, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property[.]22

The Johnson Act remains vital notwithstanding IGRA’s subsequent adoption. Because latter statutes only permit class III Indian lands gaming that is governed by a tribal-state compact, uncompacted class III Indian lands gaming remains subject to the restrictions of the Johnson Act.23 Of all the pre-IGRA federal laws relating to gambling, IGRA specifically addresses the continuing applicability only of section 1175, stating that such provision is inapplicable to gaming conducted pursuant to a tribal-state compact entered into under 25 U.S.C. § 2710(d)(3) and in effect for a state where the involved gambling devices are lawful.24 Like the Ninth Circuit in United States v. E.C. Investments, Inc.,25 the Second Circuit Court of Appeals earlier held in United States v. Cook26 that 18 U.S.C. § 1955 was not impliedly repealed by IGRA with respect to class III gaming, while the Tenth Circuit concluded in dicta that state gaming laws may no longer form the basis for prosecution under 18 U.S.C. § 1152.27

22 15 U.S.C. § 1171(a); see, e.g., United States v. One Hundred Thirty-Seven (137) Draw Poker-Type Machines, 606 F. Supp. 747, 756 (N.D. Ohio 1984) (video draw-poker electronic machines constituted “gambling devices”); United States v. Sixteen Electronic Gambling Devices, 603 F. Supp. 32, 34 (D. Haw. 1984) (electronic video gambling machines constituted “gambling devices”). 23 25 U.S.C. § 2710(d)(6); see United States v. 1020 Electronic Gambling Machines, 38 F. Supp. 2d 1213, 1215–16 (E.D. Wash. 1998) (granting summary judgment in favor of United States on Johnson Act claim seeking forfeiture of electronic gaming machines on Indian lands). 24 25 U.S.C. § 2710(d)(6); see Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir. 1993) (IGRA provides waiver of Johnson Act where gambling devices are compacted for in a state permitting them, but, because Oklahoma is not a state in which such devices are legal, IGRA does not operate to waive prohibition against their importation into Indian country); United States v. 1020 Electronic Gambling Machines, 38 F. Supp. 2d 1213, 1214–16 (E.D. Wash. 1998) (rejecting contention that tribes possess the authority to determine unilaterally whether otherwise proscribed “gambling devices” may be lawful on Indian lands, and holding them subject to the Johnson Act’s prohibitions); see also S. Rep. No. 446, supra note 4, at 2, reprinted in 1988 U.S.C.C.A.N. 3082 (discussing the scope of the phrase “not otherwise prohibited by Federal law” used in 25 U.S.C. § 2710(b)(1)(A) with respect to class II gaming).

77 F.3d 327 (9th Cir. 1996).

25

922 F.2d 1026, 1034 (2d Cir. 1991).

26

United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170, 1177 (10th Cir. 1991). The Tenth Circuit’s conclusion in this regard appears correct with respect to class III gaming because 18 U.S.C. § 1166 incorporates state gaming laws into federal law: “all State laws pertaining to the licensing, regulation, 27

Indian Lands Gaming

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The final federal law upon which pre-IGRA prosecutions were initiated is 18 U.S.C. § 1152, often referred to as the General Crimes Act.28 Section 1152 makes applicable to Indian country, unless otherwise expressly provided by federal statute, “the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States[.]” One of those “general laws” is the Assimilative Crimes Act,29 which generally incorporates into federal law the penal statutes of the state or territory where a federal enclave is situated. State gambling laws have been used as predicates for prosecutions against tribal members under section 1152.30 B. State Regulation Analysis of pre-IGRA state regulatory authority over gaming activity by tribes or their members begins with Seminole Tribe v. Butterworth.31 There, a tribe sued to prevent enforcement by local government officials of Florida bingo laws that authorized only certain organizations, not including Indian tribes, to conduct bingo games. The state statutes provided criminal penalties for violations, and, because Florida had assumed Public Law 280 criminal jurisdiction over all Indian country, the local officials relied on such jurisdiction for their claimed enforcement power. Applying the civil-regulatory/criminal-prohibitory distinction, the Fifth Circuit Court of Appeals rejected that claim: Although the inclusion of penal sanctions makes it tempting at first glance to classify the statute as prohibitory, the statute cannot be automatically classified as such. A simplistic rule depending on whether the statute includes penal sanctions could result in the conversion of every regulatory statute into a prohibitory one. . . . The classification of the statute is more complex, and requires a consideration of the public policy of the state on the issue of bingo and the intent of the legislature in enacting the bingo statute.32

or prohibition of gambling, including but not limited to criminal sanctions applicable thereto, shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State.” Section 1166 thus eliminates the need for reliance on § 1152. Questions remain nonetheless with respect to the applicability of the latter section to alleged class II gaming violations. Act of Jun. 25, 1948, ch. 645, 62 Stat. 757.

28

18 U.S.C. § 13.

29

United States v. Sosseur, 181 F.2d 873, 875–76 (7th Cir. 1950) (operating slot machines); see also United States v. Farris, 624 F.2d 890, 897 (9th Cir. 1980) (remarking in dictum that prosecutions for operating casino-like gaming were possible under 18 U.S.C. § 1152); but see supra note 27 and accompanying text. 30

658 F.2d 310 (5th Cir. 1981).

31

Id. at 314 (citation omitted).

32

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The court then concluded that “[b]ingo appears to fall in a category of gambling that the state has chosen to regulate by imposing certain limitations to avoid abuses.”33 The reasoning in Butterworth was adopted the following year by the Ninth Circuit Court of Appeals in Barona Group of Capitan Grande Band of Mission Indians v. Duffy,34 where declaratory and injunctive relief was granted against the enforcement of county and state laws regulating bingo games. The court found those laws civil-regulatory in nature and thus inapplicable to the tribal activities by virtue of California’s status as a Public Law 280 jurisdiction, since “[t]he fact that so many diverse organizations are allowed to conduct bingo operations, albeit under strict regulation, is contrary to a finding that such operations violate California public policy[.]”35 Using comparable reasoning, federal district courts found state bingo and pull-tab gaming laws in Connecticut and Wisconsin inapplicable to Indian country.36 The United States Supreme Court decided California v. Cabazon Band of Mission Indians37 against the background of Butterworth and later cases. In accordance with ordinances approved by the Secretary of the Department of the Interior, two tribes conducted reservation bingo and, in one instance, card games that did not comply in their entirety with state or local law.38 Facing the possibility of state prosecution, the tribes sought declaratory and injunctive relief against those laws’ enforcement, and, like the defendants in the earlier gambling cases, the state and local government defendants relied on California’s Public Law 280 criminal jurisdiction as a basis for enforcement; they also relied on 18 U.S.C. § 1955 as authority for the proposed state regulation. The Supreme Court, however, noted its earlier holding in Bryan v. Itasca County39 that Public Law 280 did not constitute a grant of civil-regulatory jurisdiction and reasoned that [w]hen a State seeks to enforce a law within an Indian reservation under the authority of Pub. L. 280, it must be determined whether the state law is criminal in nature and thus fully applicable to the reservation under [18

Id.

33

694 F.2d 1185 (9th Cir. 1982).

34

Id. at 1189.

35

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Williquette, 629 F. Supp. 689, 692 (W.D. Wis. 1986) (Wisconsin raffle laws, which were deemed civil-regulatory, construed to include pull-tab gaming); Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245, 249 (D. Conn. 1986) (Connecticut bingo laws deemed civil-regulatory); Oneida Tribe v. Wisconsin, 518 F. Supp. 712, 719 (W.D. Wis. 1981) (Wisconsin bingo laws deemed civil-regulatory). 36

480 U.S. 202 (1987).

37

Id. at 205–06.

38

426 U.S. 373 (1976).

39

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517

U.S.C. § 1162], or civil in nature and applicable only as it may be relevant to private civil litigation in state court.40

It then cited favorably the Butterworth line of cases and stated: We are persuaded that the prohibitory/regulatory distinction is consistent with Bryan’s construction of Pub. L. 280. It is not a bright-line rule, however; and as the Ninth Circuit itself observed, an argument of some weight may be made that the bingo statute is prohibitory rather than regulatory.41

“The shorthand test,” it said, “is whether the conduct at issue violates the State’s public policy.”42 The Court concluded that the bingo and card games did not, since “California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery[.]”43 It summarily dismissed any reliance on section 1955: “There is nothing in [the Organized Crime Control Act] indicating that the States are to have any part in enforcing federal criminal laws or are authorized to make arrests on Indian reservations that in the absence of OCCA they could not effect.”44 The Supreme Court’s analysis nonetheless did not stop with the rejection of Public Law 280 and 18 U.S.C. § 1955 as grounds for the asserted regulatory power. Even without reference to Public Law 280 criminal jurisdiction, it reasoned that the state regulation was not barred automatically and that, instead, the propriety of such regulation must be measured against the interest-­­balancing test applied in New Mexico v. Mescalero Apache Tribe45 and other cases.46 Decision in this case turns on whether state authority is pre-empted by the operation of federal law; and “[s]tate jurisdiction is pre-empted . . . if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”47

In weighing those interests, the Court determined that California law was preempted because the gambling activity was conducted in accordance with

480 U.S. at 208.

40

Id. at 210.

41

Id. at 209.

42

Id. at 211. Aside from bingo and the state lottery, the only gambling activities authorized under California law specifically mentioned by the Court were parimutuel horserace betting and card games such as those played on one of the reservations. Id. Although questioning whether Public Law 280 was intended to authorize application of county ordinances to reservation activities of tribes or their members, the Court also found the involved ordinance to be regulatory, and not prohibitory, in character. Id. at 212 n.11. 43

Id. at 213–14.

44

462 U.S. 324 (1983); see, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144–45 (1980).

45

480 U.S. at 214–17.

46

Id. at 216 (quoting Mescalero Apache Tribe, 462 U.S. at 334).

47

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secretarially approved ordinances, provided significant employment to tribal members and a large share of the tribes’ governmental revenue, represented a significant economic investment by the tribes, and was not alleged to have been infiltrated by criminal elements.48 However, Cabazon left available a basis for states, even those without Public Law 280 criminal jurisdiction, upon which to assert regulatory authority over reservation gaming activity by tribes or their members if the affected state interests were quite substantial. IGRA would later remove that basis. II. THE INDIAN GAMING REGULATORY ACT The combination of the increasing number of tribal gaming enterprises49 and the decision in California v. Cabazon Band of Mission Indians50 served as a catalyst for the passage of the Indian Gaming Regulatory Act in 1988.51 A complex statute, IGRA is perhaps most easily understood through analysis of its geographical scope, the classes into which it separates gaming activities and the differing regulatory schemes for each class, the requirements for legally conducting such classes of gaming, and the criminal and civil sanctions available to enforce it.52 Responsibility for administering the law’s substantive provisions is divided between the Secretary of the Department of the Interior (Secretary) and the National Indian Gaming Commission (Commission).53

Id. at 216–21.

48

See supra notes 4–5 and accompanying text.

49

480 U.S. 202 (1987).

50

Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 18 U.S.C. §§ 1166–1168 and 25 U.S.C. §§ 2701–2721); see In re Campbell, 81 T.C.M. (CCH) 1241, 1246 n.13 (2001) (listing all amendments to IGRA since initial passage); S. Rep. No. 446, supra note 4, at 1–3, reprinted in 1988 U.S.C.C.A.N. 3071–73 (discussing the background leading to the development of the bill later enacted as IGRA); see generally Joseph M. Kelly, Indian Gaming Law, 43 Drake L. Rev. 501, 504–08 (1993–94) (extensive review of congressional debate preceding IGRA’s enactment). Constitutional attacks on various IGRA provisions have proved unsuccessful with the exception of Congress’s attempt to subject states to unconsented suit for alleged failure to negotiate in good faith over the terms of a class III gaming compact. See, e.g., Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 281 (8th Cir. 1993) (rejecting, inter alia, Tenth Amendment challenge that IGRA forces states to negotiate tribal-state gaming compacts); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 259 F. Supp. 2d 783, 787 (W.D. Wis. 2003) (rejecting nondelegation doctrine, Appointments Clause, and Tenth Amendment challenges to gubernatorial consent provision in 25 U.S.C. § 2719(b)(1)(A)); Red Lake Band of Chippewa Indians v. Swimmer, 740 F. Supp. 9, 14–15 (D.D.C. 1990) (rejecting, inter alia, substantive due process– and Article III–based challenges by tribes). 51

52 Virtually all of IGRA’s provisions fall within the scope of these broad categories of concern. However, one provision that is particularly relevant to tribes does not: 25 U.S.C. § 2719(d)(1). That provision deals with reporting and withholding federal taxation of gaming revenue. In Chickasaw Nation v. United States, 534 U.S. 84, 85 (2001), the Supreme Court held that section 2719(d)(1) does not exempt tribal gaming from the 25 percent excise tax on gambling wagers and an occupational tax imposed on each person engaged in the wagering business. 53 The Commission is composed of three full-time members whose terms, as a general matter, are three years in length, with its chairman appointed by the President. 25 U.S.C. § 2704(a), (b)(1)(A), (b)(4). The remaining members are appointed by the Secretary of the Interior, and at least two must be tribal members. Id. § 2704(b)(1)(B), (b)(3). No more than two members may be of the same political party. Id.

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A. Geographical Scope Perhaps the most important term in IGRA is “Indian lands,” because tribal gaming can only occur on land that meets the statutory definition, otherwise it is subject to state gambling laws.54 Although Cabazon55 and prior related cases had dealt only with gaming on lands owned by or held in trust for tribes within reservations, the definition of “Indian lands” is broader: the term “Indian lands” means

(A) all lands within the limits of any Indian reservation; and

54 See Wyandotte Nation v. Sebelius, 337 F. Supp. 2d 1253, 1258 (D. Kan. 2004), aff’d in part and rev’d in part on other grounds, 443 F.3d 1247 (10th Cir. 2006) (citing National Indian Gaming Commission: Definitions Under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12382, 12388 (1992)). Several courts have addressed the question whether IGRA preempts state laws regulating gaming on Indian lands. Compare State ex rel. Nixon v. Coeur d’Alene Tribe, 164 F.3d 1102, 1108–09 (8th Cir. 1999) (remanding case to district court to determine whether action was properly removed under the complete preemption doctrine, with instructions to determine whether the tribe’s Internet lottery was a gaming activity on Indian lands), with Gaming Corp. v. Dorsey & Whitney, 88 F.3d 536, 542–47 (8th Cir. 1996) (finding removal proper under complete preemption doctrine where state law–based claims predicated on conduct related to licensing of tribal facility within reservation), and New York v. Shinnecock Indian Nation, 274 F. Supp. 2d 268, 270–71 (E.D.N.Y. 2003) (applying complete preemption doctrine in declining to remand removed litigation over legality of proposed tribal casino); cf. AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 909–10 (9th Cir. 2002) (multistate lottery deemed approved by the Commission was valid until approval invalidated, and state attorneys general accordingly lacked jurisdiction to issue letters under 18 U.S.C. § 1084(d) warning common carrier that provision of toll-free telephone service would violate federal and state law because lottery would effectuate gaming activities off Indian lands). Other decisions have addressed the question of IGRA’s preemptive scope in contexts unrelated to whether the gaming occurred on Indian lands. Casino Res. Corp. v. Harrah’s Entm’t Inc., 243 F.3d 435, 437–40 (8th Cir. 2001) (deeming dispute between nontribal general contractor and nontribal subcontractor not preempted by IGRA, although parties’ contract was peripherally associated with tribal gaming); Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481, 484–87 (9th Cir. 1998) (rejecting preemption challenge to state open records law under which report of state investigation of tribal casino was to be disclosed, and refusing to apply preemption standards adopted in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), “because this case concerns application of a state statute unrelated to Indian gaming”); Oneida Indian Nation v. Oneida County, 132 F. Supp. 2d 71, 74–76 (N.D.N.Y. 2000) (state court action to determine whether tribe and state had entered into a valid gaming compact could not be properly enjoined by federal court under the federal Anti-Injunction Act because issue of governor’s authority to enter into compact governed by state law); Prairie Island Indian Cmty. v. Minnesota Dep’t of Pub. Safety, 658 N.W.2d 876, 883 (Minn. Ct. App. 2003) (IGRA did not preempt application of generally applicable state public information disclosure statute with respect to tribal casino audit data supplied to agency under class III compact); Srader v. Verant, 964 P.2d 82, 88 (N.M. 1998) (claims against state governmental officials for alleged failure to enforce state anti-gambling laws were not preempted, since no valid compacts existed and it was thus “the responsibility of the Government Defendants to determine if New Mexico’s existing gaming or other laws were being violated outside of the reservation”); Confederated Tribes of Chehalis Reserv. v. Johnson, 958 P.2d 260, 270 (Wash. 1998) (rejecting challenge to authority of state gambling commission to release information concerning the amount of a tribe’s “community contribution” under a compact, since “IGRA was not intended to diminish the right of state citizens to monitor, through requests for information, the performance of public servants in state agencies”); Simms v. Napolitano, 73 P.3d 631, 633–34 (Ariz. Ct. App. 2003) (agency denial of request to withdraw application for certificate to provide off-track betting services to tribal casinos constituted exercise of state police power and not exercise of contractual right created under tribal-state compacts); see generally Alexa Koenig and Jonathan Stein, Lost in the Shuffle: State-Recognized Tribes and the Tribal Gaming Industry, 40 U.S.F. L. Rev. 327, 329–30 (2006) (arguing that the benefits of Indian gaming should be extended to nonfederally acknowledged tribes by states, as to which tribes IGRA has no preemptive force and with which “states have the intrinsic power to enter into gaming compacts”).

480 U.S. 202.

55

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(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.56

The term thus includes not only tribal lands but also reservation lands owned in fee by nonmembers; it further includes lands outside the exterior boundaries of a reservation held in trust or restricted status if subject to a tribe’s “governmental power.” The broad scope of this definition may reflect congressional misapprehension of pre-IGRA decisional authority. The last finding in the statute’s opening section provides that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.”57 While that finding accurately summarizes the conclusion in Cabazon with respect to application of state criminal sanctions to tribes or their members pursuant to Public Law 280 jurisdiction, there was no analytical predicate in Cabazon or other decisions for the notion that tribes possessed exclusive authority to regulate gaming by nonmembers on nontribal lands.58 This apparent misconception with respect to Cabazon significantly affects the entire statute’s operation with respect to the role of states in regulating Indian lands gaming conducted by nonmembers. Consequently, several ambiguous terms affecting IGRA’s geographical scope have received significant attention. 1. Reservation IGRA does not define the term “reservation,” nor does it have a simple, universal meaning in federal law.59 In Sac and Fox Nation v. Norton,60 the court of appeals held that no deference was owed to the Secretary’s construction of the term “reservation” as used in IGRA because the Commission, not the Secretary, is charged with “interpreting any ambiguous phrases or terms con-

56 25 U.S.C. § 2703(4). The definition of “Indian lands” is distinct from the definition of “Indian country” in 18 U.S.C. § 1151. See generally supra Chapter 2, part III (discussing geographical scope of “Indian country”). Commission regulations provide that “Indian lands” are those located within the limits of an Indian reservation, “or” held in trust by the United States for the benefit of an Indian tribe or individual, over which an Indian tribe exercises governmental power. 25 C.F.R. § 502.12. The Commission’s authority to expand the definition of “Indian lands” by substituting the statutory conjunctive “and” with the disjunctive “or” in the regulation is suspect and may require judicial resolution.

25 U.S.C. § 2701(5).

57

See generally supra Chapter 5, part II (discussing the scope of retained inherent tribal civil-­regulatory authority). 58

59 See Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 469–71 (D.C. Cir. 2007) (finding IGRA’s use of the term “reservation” to be ambiguous). 60 240 F.3d 1250, 1265 (10th Cir. 2001); contra Citizens Exposing Truth About Casinos, 492 F.3d at 465 (declining to follow Sac and Fox); City of Roseville v. Norton, 348 F.3d 1020, 1029–30 (D.C. Cir. 2003) (same).

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tained in IGRA.” The court ultimately determined that a cemetery reserved to a tribe by treaty, but never occupied, was not a “reservation” within the scope of IGRA’s after-acquired lands provision.61 The court reasoned that IGRA’s plain language, particularly the distinction between a “reservation” and “lands held in trust,” indicated that Congress intended to adopt the common law meaning of the term “reservation”—which refers to land set aside by the federal government for the occupation of Indian tribes.62 The court further concluded that “IGRA’s use of the phrase ‘the reservation of the Indian tribe’ ” in section 2719(a)(1) indicates Congress envisioned that each tribe would have only one reservation for gaming purposes.63 Following Sac and Fox, Congress immediately clarified that the Secretary is authorized under IGRA to determine whether specific land is a “reservation” for IGRA purposes.64 Despite the absence of any published regulations to guide the Secretary’s decision, courts subsequently have deferred to secretarial judgments in that regard.65 2. Governmental power The term “governmental power” is also undefined. A tribe must first have jurisdiction to assert “governmental power,”66 and tribal jurisdiction derives from congressional intent and purpose, rather than recent unilateral actions

240 F.3d at 1267; see 25 U.S.C. § 2719.

61

240 F.3d at 1266–67.

62

Id. at 1267. Absent explicit congressional authorization, it is inherently contradictory for two federally recognized sovereigns to exercise jurisdiction over the same property. See Williams v. Clark, 742 F.2d 549, 555 (9th Cir. 1994); Native Am. Church of North Am. v. Navajo Tribal Council, 272 F.2d 131, 133 (10th Cir. 1959) (“Indian nations and tribes are distinct political entities, having territorial boundaries within which their authority is exclusive”). 63

64 2002 Dep’t of the Interior and Related Agencies Appropriations Act, Pub.L. No. 107-63, § 134, 115 Stat. 414, 442–43 (2001). By Memorandum of Agreement, the Secretary and Commission subsequently agreed that the Secretary is to determine whether a tribe meets one of IGRA’s exceptions when the Secretary decides to take land into trust for gaming. Citizens Exposing Truth About Casinos, 492 F.3d at 462–63 (citing Mem. of Agreement between Commission and Dep’t of the Interior (Feb. 26, 2007)); but see Sault Ste. Marie Tribe v. United States, No. 2:06-CV-276, 2007 WL 2479293, at *9–*12 (W.D. Mich. Aug. 28, 2007) (granting Chevron deference to Commission’s construction of the term “reservation” in section 2719); Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295, 322 (W.D.N.Y. 2007) (same), amended on recons., No. 06-CV-0001S, 2007 WL 1200473, at *3–*4 (W.D.N.Y. Apr. 20, 2007) (recognizing Secretary is authorized to determine whether land qualifies as a “reservation” under IGRA). 65 E.g., Citizens Exposing Truth About Casinos, 492 F.3d at 469–70 (deferring to Secretary’s reliance upon “reservation” definition in regulations implementing the Indian Reorganization Act, 25 C.F.R. § 151.2(f ), to construe “reservation” as used in IGRA, and relying in part on the 2001 statute to reject anti-gambling group’s reliance on Sac and Fox); Michigan Gambling Opp’n v. Norton, 477 F. Supp. 2d 1, 8 (D.D.C. 2007) (“because there has been a congressional delegation of authority to the administrative agency to interpret . . . IGRA, and [the Secretary’s] interpretation of the term ‘reservation’ is not demonstrably arbitrary, capricious, or contrary to the statute, the Court ‘must accept’ the agency’s interpretation that the term ‘reservation’ does not include a housing requirement”). 66 Kansas v. United States, 249 F.3d 1213, 1229 (10th Cir. 2001); Miami Tribe v. United States, 927 F. Supp. 1419, 1422 (D. Kan. 1996).

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by a tribe.67 “Meeting [the governmental power] requirement does not depend upon the Tribe’s theoretical authority, but upon the presence of concrete manifestations of that authority. Consequently, an inquiring court must assay the jurisdictional history of the [lands in issue].”68 The court in Cheyenne River Sioux Tribe v. South Dakota69 held that “governmental power” over offreservation allotments may be demonstrated by evidence showing whether the area is developed, whether tribal members reside in the area, whether any governmental services are provided and by whom, whether law enforcement is provided by the tribe or state, and other indicia as to who exercises governmental power in the area.70 The question of when a tribe has the requisite “governmental power” over off-reservation lands can present significant difficulty. Litigation over a small parcel of land in Kansas exemplifies this problem. In Miami Tribe v. United States,71 the court upheld the Commission’s decision to deny approval of a class II gaming permit to the tribe on the grounds that the proposed site was not Indian lands as required by IGRA. The basis of the court’s ruling was that the tribe lacked “governmental power” over the land because, most importantly, the tract’s history showed Congress’s intent to abrogate any tribal jurisdiction over the property. The court, however, did not consider the effect, if any, of steps the tribe took after the Commission’s decision, which included amending the tribe’s constitution to admit the owners of the land as members of the tribe, leasing the land from its owners to establish gaming operations, and obtaining the owners’ consent to jurisdiction of the tribe over the land.72 The tribe subsequently reapplied for a class II gaming permit that the Commission again denied on the ground that the site was not Indian lands. The district court reversed the agency decision as an abuse of discretion and remanded the proceedings for further consideration.73 The court concluded that the Commission had failed to indicate whether the tribe’s recent actions

Kansas v. United States, 249 F.3d at 1229–30.

67

Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 703 (1st Cir. 1994) (citing DeCoteau v. Dist. County Ct., 420 U.S. 425, 442 (1975)); see also id. at 703 n.18 (a “ ‘longstanding assumption of jurisdiction . . . not only demonstrates the parties’ understanding’ ” but could create “ ‘justifiable expectations which should not be upset’ ”) (quoting Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604–05 (1977)). 68

830 F. Supp. 523, 528 (D. S.D. 1993), aff’d, 3 F.3d 273, 279 (8th Cir. 1993).

69

Cf. Miami Tribe v. United States, 374 F. Supp. 2d 934, 945 (D. Kan. 2005) (reversing Department of the Interior ruling denying tribal member’s application to give one-third of his undivided interest in an allotment to the tribe, and finding that the tribe “exercise[d] jurisdiction over the land” for purposes of the Indian Land Consolidation Act, notwithstanding the Tenth Circuit’s contrary determination under IGRA, because “[i]t patrols and protects the lands, takes care of any burning needed, passes laws governing use of the lands, leases the lands, issues permits for individuals to use the lands, and uses the lands for religious ceremonies”). 70

927 F. Supp. 1419, 1424–26 (D. Kan. 1996).

71

Id. at 1427–28.

72

Miami Tribe v. United States, 5 F. Supp. 2d 1213, 1219 (D. Kan. 1998).

73

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had established its jurisdiction over the land and ignored the tribe’s argument that jurisdiction existed despite the land’s history.74 Following remand, the Commission issued an opinion that the land qualified as “Indian lands” under IGRA.75 The state successfully challenged this determination, and the court entered a preliminary injunction against the federal government.76 In part, the court found the state would likely succeed in establishing that the agency determination was arbitrary and capricious because it had not considered the threshold issue of whether the tribe had jurisdiction over the land.77 The Tenth Circuit Court of Appeals affirmed, holding that since the Commission’s action had “a direct and immediate impact” on the sovereign rights of the state, the state had standing to challenge the Indian lands determination, an issue avoided by the district court.78 The court additionally held that the Quiet Title Act,79 which prohibits challenges to the title of “trust or restricted Indian lands,” did not bar Kansas’s claim because “[a] determination that a tract of land does or does not qualify as ‘Indian lands’ within the meaning of IGRA in no way affects title to the land” but instead “ ‘would merely clarify sovereignty over the land in question.’ ”80 After rejecting the contention that the tribe was an indispensable party, the appellate court concluded, as had the district court, that “[t]he [Commission’s] failure to thoroughly analyze the jurisdictional question in its most recent decision likely renders its conclusion that the tract constitutes ‘Indian lands’ within the meaning of IGRA arbitrary and capricious.”81 Resolution of that issue, it added, should “focus[] principally on congressional intent and purpose, rather than recent unilateral actions of the Miami Tribe.”82 The Commission subsequently determined that the land adjacent to the cemetery constitutes “Indian lands” under IGRA but did not qualify for any of IGRA’s after-acquired lands exceptions in section 2719, and that therefore the tribe had been operating a class II gaming facility unlawfully.83 Kansas officials responded by securing a search warrant from state court and seizing various items from the casino. The tribe sought, and was granted, a preliminary injunction by the district court that directed the return of the seized items

Id. at 1218–19.

74

25 U.S.C. § 2703(4).

75

State ex rel. Graves v. United States, 86 F. Supp. 2d 1094 (D. Kan. 2000).

76

Id. at 1098.

77

Kansas v. United States, 249 F.3d 1213, 1218 (10th Cir. 2001).

78

28 U.S.C. § 2409a(a).

79

249 F.3d at 1225.

80

Id. at 1229.

81

Id.

82

Wyandotte Nation v. Sebelius, 337 F. Supp. 2d 1253, 1262 (D. Kan. 2004), aff’d in part and rev’d in part, 443 F.3d 1247 (10th Cir. 2006). 83

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but additionally enjoined further gaming on the parcel.84 The Tenth Circuit Court of Appeals subsequently affirmed the injunction insofar as it provided relief against state officials but vacated the order with respect to the gaming prohibition because the tribe was given no prior notice that such relief might be granted.85 The appellate court suggested further that, even had notice been given, the doctrine of primary jurisdiction might have precluded relief since “the determination of whether gaming is allowed on Indian Lands under IGRA is within the NIGC’s area of expertise.”86 The district court ultimately concluded that the parcel fell within the land claim settlement exception under section 2719(b)(1)(B)(i) but rejected the contention that two other exceptions in section 2719—the last acknowledged reservation and the restored land exceptions—applied.87 3. Prohibition of gaming on land acquired in trust after October 17, 1988, and the exceptions The potential scope of “Indian lands” is limited somewhat by section 2719. That section generally prohibits gaming on lands acquired in trust for a tribe after October 17, 1988, IGRA’s effective date.88 Various—and quite technical—exceptions exist to this general prohibition. The first two exceptions—one for lands within or “contiguous” to an existing reservation and a second dependent upon state gubernatorial concurrence—will be discussed first. The remaining three exceptions, whose scope presents particularly difficult issues, will then be addressed. As to the latter, the Secretary recently issued regulations outlining the substantive standards to be followed in determining their applicability.89 Section 2719 has generated substantial litigation under the Administrative Procedure Act,90 and this trend can be expected to continue.91

Id. at 1274.

84

Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1248–49 (10th Cir. 2006).

85

Id. at 1254 n.11.

86

Wyandotte Nation v. NIGC, 437 F. Supp. 2d 1193, 1272 (D. Kan. 2006).

87

25 U.S.C. § 2719(a).

88

73 Fed. Reg. 29,354 (May 20, 2008), corrected, 73 Fed. Reg. 35,579 (June 24, 2008) (codified at 25 C.F.R. pt. 292) (effective date stayed until Aug. 25, 2008). 89

5 U.S.C. §§ 701–706.

90

See, e.g., Sokaogon Chippewa Cmty. v. Babbitt, 929 F. Supp. 1165 (W.D. Wis. 1996) (limiting review of decision that denied application to acquire off-reservation lands for class III gaming to administrative record, and rejecting contention that Secretary’s determination is quasi-adjudicative since consultation with state and local officials is mandatory under statute); St. Croix Indians v. Kempthorne, 535 F. Supp. 2d 33, 27–38 (D.D.C. 2008) (agency official’s letter stating intent to make land-into-trust determination before addressing § 2719(b)(1)(A) factors did not constitute final agency action for APA-judicial review purposes). A prerequisite to such review is constitutional and prudential standing to sue—an issue that has posed significant difficulties for some complainants. Compare Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 464 (D.C. Cir. 2007) (finding prudential standing for nonprofit to challenge Secretary’s interpretation of IGRA’s “initial reservation” exception, because “it seeks to enforce the provision that Congress included regarding affected communities”); and Sault Ste. Marie Tribe v. United States, 288 F.3d 910, 916 (6th Cir. 2002) 91

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a. Within or contiguous to an existing reservation. Lands located within or contiguous to a tribe’s reservation boundaries as of October 17, 1988, is not subject to the general prohibition of gaming on after-acquired lands.92 “The subsection includes an obvious temporal limitation: [a]ny land . . . not ‘within or contiguous to the boundaries of the reservation’ of the tribe on October 17, 1988 does not qualify for the exception.”93 The term “contiguous” is undefined, which could lead to questions about whether, or to what extent, newly acquired land must share a common boundary with an existing reservation to qualify for the exception.94 The exception has been held inapplicable even where a compact provided for class III gaming within the tribe’s “reservation” and the tribal constitution defined “reservation” to include all lands owned or held in trust for the tribe regardless of whether they were located within the boundaries of the treaty reservation.95 It additionally bears note that Congress did not include the entire scope of “Indian lands,” as defined in section 2703(4), within section 2719(a)’s permissive scope. Instead, it expressly conditioned the tribes’ ability to game on lands acquired after October 17, 1988, on the appropriate relationship between newly acquired land and an existing “reservation.” Use of the term “reservation” throughout section 2719(a) relates back to the term “Indian reservation” in section 2703(4)(A), and thereby reflects Congress’s intent to limit section 2719’s applicability to a specific subcategory of “Indian lands.” In other words, the term “reservation” in section 2719(a) may not include trust lands or other parcels subject to restraints against alienation—i.e., allotments—over which a tribe may exercise authority. But whether Congress intended such a consequence is questionable, given a colloquy between Senators Evans and Inouye

(tribe lacked injury-in-fact component of constitutional standing to challenge decision to take land into trust for another tribe where it showed only that the new casino was 40 miles from its casino), with City of Roseville v Norton, 219 F. Supp. 2d 130, 171 (D.D.C. 2002) (plaintiffs had standing to bring IGRA, National Environmental Policy Act, and nondelegation claims but not to assert Enclaves Clause, Statehood Clause, equal footing doctrine, or Tenth Amendment claims), aff’d on other grounds, 348 F.3d 1020 (D.C. Cir. 2003); and TOMAC v. Norton, 193 F. Supp. 2d 182, 186–91 (D.D.C. 2002) (private parties residing near proposed casino possessed standing to challenge determination to take land into trust), aff’d on other grounds, 433 F.3d 852 (D.C. Cir. 2006); cf. Kansas v. United States, 249 F.3d 1213, 1223 (10th Cir. 2001) (state had interest within the zone of those protected under IGRA with respect to whether parcel of land constitutes “Indian lands”; contrary conclusion “would set an unwarranted precedent by placing the sovereign status of land within the State of Kansas wholly in the hands of the Miami Tribe and the NIGC”). 25 U.S.C. § 2719(a)(1).

92

Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt, 116 F. Supp. 2d 155, 160 (D.D.C. 2000) (after-acquired Hatch Tract, contiguous to Peterman Tract, did not qualify for contiguous lands exception because Peterman Tract was not part of the reservation on October 17, 1988). 93

94 See Langley v. Edwards, 872 F. Supp. 1531, 1533 (W.D. La. 1995) (noting, in dicta, finding by Dep’t of the Interior, Office of the Solicitor, that proposed gaming site connected to preexisting reservation lands by “fairly narrow strip of land” qualifies as contiguous); cf. Carcieri v. Kempthorne, 497 F.3d 15, 45 (1st Cir. 2007) (en banc) (upholding Secretary’s decision to acquire as an “on-reservation” acquisition new land that is adjacent to tribe’s existing trust land but separated by a town road).

Keweenaw Bay Indian Cmty. v. United States, 136 F.3d 469, 474–77 (6th Cir. 1998).

95

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during the debate preceding the Senate’s passage of IGRA indicating a general “understanding that the references in the bill to ‘Indian lands,’ ‘Indian lands of the Indian tribe,’ ‘Indian lands over which the tribe has jurisdiction,’ and ‘lands owned by the Indian tribes’ are meant to be interpreted the same way to apply to all lands within reservation boundaries and trust lands outside the reservations.”96 An exception to the existing reservation requirement is provided under certain circumstances for tribes that had no reservation as of October 17, 1988. For those tribes, the requirement is satisfied for those tribes when



(A) such lands are located in Oklahoma and—

(i) are within the boundaries of the Indian tribe’s former reservation, as defined by the Secretary, or



(ii) are contiguous to other land held in trust or restricted status by the United States for the Indian tribe in Oklahoma; or

(B) such lands are located in a State other than Oklahoma and are within the Indian tribe’s last recognized reservation within the State or States within which such Indian tribe is presently located.97

The district court in Wyandotte Nation v. NIGC 98 examined, inter alia, the “last recognized reservation” exception in section 2719(a)(2). There, Congress enacted a 1984 statute that directed the Secretary to use a portion of proceeds from an Indian Claims Commission judgment to acquire real property in trust for the tribe. The property eventually purchased was a parcel in Kansas City, Kansas, contiguous to land that the United States has held in trust for the tribe since 1855. The tribe’s governmental seat and population base, however, are located a substantial distance away in Oklahoma. The district court first rejected the claim that the “last recognized reservation” exception in section 2719(a)(2)(B) applied because the tribe is not “presently located” in Kansas. In making that determination, the court accepted the Commission’s construction of that term as meaning a “major governmental presence” in the state where the “last reservation” allegedly existed and found no such presence in Kansas.99 b. Secretarial determination and gubernatorial concurrence. The general prohibition of gaming on after-acquired lands can also be avoided if the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would

134 Cong. Rec. S12,643, 12,652 (1988).

96

25 U.S.C. § 2719(a)(2).

97

437 F. Supp. 2d 1193 (D. Kan. 2006).

98

Id. at 1206–07.

99

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be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary’s determination[.]100

The constitutional validity of the gubernatorial concurrence requirement has been challenged but upheld by the Ninth Circuit in Confederated Tribes of Siletz Indians v. United States101 against claims of violations of the Appointments Clause and general separation-of-powers principles. In concurring in the Secretary’s determination—i.e., “that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community”—the governor does not exercise the “significant authority” expected of a federal appointee but serves merely to fulfill conditions necessary for the operation of law to apply in excepting an acquisition from the general prohibition.102 Siletz has been followed elsewhere in challenges predicated not only on the Appointments Clause but also on the nondelegation doctrine, the Tenth Amendment, and the equal protection component of the Fifth Amendment’s Due Process Clause.103 The recently promulgated regulations address the gubernatorial concurrence exception generally104 and, perhaps most important, provide that a tribe may provide for the required secretarial determination prior to the involved land being taken into trust.105 c. The three general exceptions. The first exception—the “settlement of a land claim” exception106—will be deemed by the Secretary to apply when the settlement

(1) Is executed by the parties, which includes the United States, returns to the tribe all or part of the land claimed by the tribe, and resolves or extinguishes with finality the claims regarding the returned land; or

100 25 U.S.C. § 2719(b)(1)(A). Section 2719 nominally applies only to lands acquired in trust by the Secretary for the benefit of an Indian tribe, and it is thus unclear whether the same restrictions obtain with respect to nonreservation, noncontiguous lands acquired in trust for the benefit of an individual. The absence of any provision in § 2719 for inclusion of after-acquired lands other than those held on behalf of a tribe suggests that individual member trust property may not enjoy such status even if, for example, gubernatorial approval were secured.

110 F.3d 688 (9th Cir. 1997).

101

Id. at 697.

102

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 259 F. Supp. 2d 783 (W.D. Wis. 2003), aff’d, 367 F.3d 650 (7th Cir. 2004) (also rejecting a challenge alleging violation of the federal trust responsibility toward the tribe). 103

25 C.F.R. §§ 292.13–292.15 and 292.21–292.24.

104

Id. § 292.15.

105

25 U.S.C. § 2719(b)(1)(B)(i).

106

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(2) Is not executed by the United States, but is entered as a final order by a court of competent jurisdiction or is an enforceable agreement that in either case predates October 17, 1988 and resolves or extinguishes with finality the land claim at issue.107

The second exception—the “initial reservation” exception108—will be deemed to apply when

(a) The tribe has been acknowledged (federally recognized) through the administrative process under part 83 of this chapter.



(b) The tribe has no gaming facility on newly acquired lands under the restored land exception of these regulations.



(c) The land has been proclaimed to be a reservation under 25 U.S.C. 467 and is the first proclaimed reservation of the tribe following acknowledgment.



(d) If a tribe does not have a proclaimed reservation on the effective date of these regulations, to be proclaimed an initial reservation under this exception, the tribe must demonstrate the land is located within the State or States where the Indian tribe is now located, as evidenced by the tribe’s governmental presence and tribal population, and within an area where the tribe has significant historical connections and one or more of the following modern connections to the land:



(1) The land is near where a significant number of tribal members reside; or



(2) The land is within a 25-mile radius of the tribe’s headquarters or other tribal governmental facilities that have existed at that location for at least 2 years at the time of the application for land-into-trust; or



(3) The tribe can demonstrate other factors that establish the tribe’s current connection to the land.109

107 25 C.F.R. § 292.5(b). Decisional authority on this exception predating the new regulation exists. In Wyandotte Nation v. NIGC, 437 F. Supp. 2d 1193, 1207–12 (D. Kan. 2006), the court deemed the land claim settlement exception applicable on the basis of a 1984 statute that directed the Secretary to use a portion of proceeds from an Indian Claims Commission judgment to acquire real property in trust for the tribe. It rejected the Commission’s contention that the exception extends only to settlements for land itself, as opposed to monetary settlements to compensate tribes for land previously acquired by the United States. “The plain meaning of ‘land claim’ does not limit such claim to one for the return of land,” the court stated, “but, rather, includes an assertion of an existing right to the land.” Id. at 1208. Put otherwise, “a ‘land claim’ means that the operative facts giving rise to a right arise from a dispute over land, not that the land claim be resolved by the return of land.” Id. It reasoned further that the agency’s “focus on the ICC money judgment might pass muster if the Tribe had merely purchased the [parcel] with money received from a claim brought before the ICC,” but here “Congress mandated that $100,000 of the Tribe’s ICC judgment funds be utilized to purchase land to be taken into trust for the benefit of the Tribe as a means of effectuating a judgment that resolved the Tribe’s land claims.” Id. at 1210.

25 U.S.C. § 2719(b)(1)(B)(ii).

108

25 C.F.R. § 292.6; see also Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460, 467–71 (D.C. Cir. 2007) (upholding Secretary’s reliance on Solicitor’s Office opinion that the first time a federal reservation is proclaimed, it constitutes an “initial reservation” for IGRA purposes; land must be placed in 109

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The third and final exception—the “restored lands” exception110—will be deemed to apply when

(a) The tribe at one time was federally recognized, as evidenced by its meeting the criteria in [25 C.F.R.] § 292.8;



(b) The tribe at some later time lost its government-to-government relationship by one of the means specified in § 292.9;



(c) At a time after the tribe lost its government-to-government relationship, the tribe was restored to Federal recognition by one of the means specified in § 292.10; and



(d) The newly acquired lands meet the criteria of “restored lands” in § 292.11.111

As the “restored lands” exception regulation indicates, separate rules must be consulted in determining its applicability, and it promises to prove complex in implementation.112 This exception also has been the most frequently utilized vehicle for obtaining post-1988 gaming lands and, expectedly, has therefore received the most judicial attention.113 That decisional authority may prove

trust at or before the time of initial proclamation; an “initial reservation” may only be requested once; and rejecting contention that state reservation, over which tribe did not exercise governmental jurisdiction, negates the “initial reservation” exception). 110 111

25 U.S.C. § 2719(b)(1)(B)(iii).

25 C.F.R. § 292.7.

For example, the overarching requirement that the involved lands meet the “criteria of ‘restored lands’ in § 292.11” demands the following showing: 112

(a) The newly acquired lands must be located within the State or States where the tribe is now located, as evidenced by the tribe’s governmental presence and tribal population, and the tribe must demonstrate one or more of the following modern connections to the land: (1) The land is within reasonable commuting distance of the tribe’s existing reservation; (2) If the tribe has no reservation, the land is near where a significant number of tribal members reside; (3) The land is within a 25-mile radius of the tribe’s headquarters or other tribal governmental facilities that have existed at that location for at least 2 years at the time of the application for land-into-trust; or (4) Other factors demonstrate the tribe’s current connection to the land. (b) The tribe must demonstrate a significant historical connection to the land. (c) The tribe must demonstrate a temporal connection between the date of the acquisition of the land and the date of the tribe’s restoration. To demonstrate this connection, the tribe must be able to show that either: (1) The land is included in the tribe’s first request for newly acquired lands since the tribe was restored to Federal recognition; or (2) The tribe submitted an application to take the land into trust within 25 years after the tribe was restored to Federal recognition and the tribe is not gaming on other lands. Id. § 292.12. 113 Oversight Hearing on Land Eligible for Gaming Pursuant to IGRA Before the S. Comm. on Indian Affairs, 109th Cong. 2–3, 8 (Jul. 27, 2005) (testimony of George T. Skibine, Acting Deputy Assist. Secr’y–Indian Affairs); see also id. at 9 (Pending Gaming Applications: 9 out of 11 applications cite restored lands).

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germane to likely challenges to either the new rules or their subsequent application by the Secretary. Several courts have examined the provision’s language to find that the terms “restore” and “restoration of land” should be given their ordinary meaning.114 To qualify for the exception, the tribe has been required first to establish its status as a “restored tribe”; that is, at some point the federal government formally recognized the tribe,115 terminated recognition, and subsequently restored recognition.116 The tribe then must demonstrate that the subject land qualifies as its restored land.117 To avoid a result that would mean “any and all

114 TOMAC v. Norton, 433 F.3d 852, 865 (D.C. Cir. 2006) (applying the dictionary meaning of “restore”—“ ‘to put back into a former or proper position’ ”—and finding that the involved restoration act “did both” insofar as (1) legislative history and the statute itself “make clear that the Band’s ‘proper’ place is one of federal recognition” and (2) the tribe has been “[placed] back in its ‘former’ place as a recognized tribe”); Confederated Tribes of Coos v. Babbitt, 116 F. Supp. 2d 155, 162 (D.D.C. 2000) (giving 25 U.S.C. § 2719(b)(1)(B)(iii) a “natural (and broad) reading”); see also Oregon v. Norton, 271 F. Supp. 2d 1270 (D. Or. 2003) (rejecting contention that Secretary of the Interior lacked authority to interpret restored lands provision; deferring under Chevron principles to Secretary’s construction as reasonable); see generally Heidi McNeil Staudenmaier and Anne Bishop, Reservation Shopping, 9 Gaming L. Rev. 439, 443–44 (2005) (discussing judicial application of the restored lands exception, and noting the Department of the Interior’s new policy under which “suitable land must be taken into trust for gaming before the gaming compact will be approved”—a change intended “[t]o address growing concern over reservation shopping”). 115 Proof of recognition requires a legal basis for recognition—i.e., congressional or executive action— and empirical indicia of recognition—namely, a continuing political relationship with the group, such as by providing services through the Bureau of Indian Affairs. Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att’y, 369 F.3d 960, 968 (6th Cir. 2004); Mashpee Tribe v. Sec’y, 820 F.2d 480, 484 (1st Cir. 1987); W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1056–57 (10th Cir. 1993); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1273 (9th Cir. 2004) (“Federal recognition may arise from treaty, statute, executive or administrative order, or from a course of dealing with the tribe as a political entity”) (quoting William C. Canby, Jr., American Indian Law in a Nutshell 4 (4th ed. 2004)); compare Carcieri v. Kempthorne, 497 F.3d 15, 32 (1st Cir. 2007) (“It is not self-evident that simply because a tribe had signed a treaty with the U.S. government it necessarily was recognized under federal jurisdiction in 1934; recognition as intended in [25 U.S.C. § 479] requires an ongoing government-to-government relationship between a tribe and the United States”), with City of Sault Ste. Marie v. Andrus, 532 F. Supp. 157, 161 (D.D.C. 1980) (indicating that a period of nonrecognition existed by stating that “although the question of whether some groups qualified as Indian tribes for purposes of IRA benefits might have been unclear in 1934, that fact does not preclude the Secretary from subsequently determining that a given tribe deserved recognition in 1934”), and Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att’y, 198 F. Supp. 2d 920, 924 (W.D. Mich. 2002), aff’d, 369 F.3d 960 (6th Cir. 2004) (“[b]etween 1872 and 1980, the Band continually sought to regain its status as a federally recognized tribe[,]” yet the Secretary invoked his authority under 25 U.S.C. § 465 to take 21 parcels of land into trust for the tribe). 116 Grand Traverse Band, 198 F. Supp. 2d at 928–34 (tribe restored to recognition in 1980 under federal administrative acknowledgment process, 25 C.F.R. § 83, qualifies as “restored” tribe for purposes of § 2719), aff’d, 369 F.3d 960, 967 (6th Cir. 2004) (further holding that because administrative acknowledgment of a tribe under 25 C.F.R. § 83 is permissible even when a tribe had been previously terminated by administrative or executive action, a tribe may be both a “restored” tribe and an “acknowledged” tribe for § 2719 purposes); Confederated Tribes of Coos, 116 F. Supp. 2d at 162 (“restored tribes which reacquired lands previously held by the tribe would qualify for the [restoration of lands] exception” without reference to “[t]he manner of restoration”); see Federally Recognized Indian Tribe List Act of 1994, Pub.L. No. 103-454, § 103(3) (1994) (codified at 25 U.S.C. § 479a) (federal recognition may only be established by congressional act, secretarial acknowledgment under the federal acknowledgment process, or “decision of a United States court”).

Grand Traverse Band, 369 F.3d at 967.

117

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property acquired by restored tribes would be eligible for gaming,”118 courts limited the phrase by imposing a three-part test to determine whether land qualifies as restored lands, considering (1) the circumstances of the acquisition, (2) the location of the acquisition, and (3) the temporal relationship of the acquisition to tribal restoration.119 Courts have held further the land must hold “historic, economic and cultural significance” for the tribe.120 Geographic proximity to historic tribal lands, however, was not imposed as an absolute requirement.121 Needless to say, where Congress has provided specific instructions to take land into trust for the benefit of a restored tribe, the Secretary retains no discretion to do otherwise.122 B. Classes of Gaming IGRA establishes three classes of gaming. There are, as well, grandfather and grace-period provisions that have resulted in assigning what ordinarily would be one class of gaming to another class. Determining which class a particular form of gaming activity falls into is a central consideration in applying the statute, since the conditions precedent attendant to the legality of each class’s gaming vary substantially. 1. Class I gaming Class I gaming is defined as “social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or celebrations.”123 The Senate report accompanying the bill adopted with minor changes, as IGRA124 stated,

118 Confederated Tribes of Coos, 116 F. Supp. 2d at 164; see also Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att’y, 46 F. Supp. 2d 689, 700 (W.D. Mich. 1999). 119 Grand Traverse Band, 198 F. Supp. 2d at 935; see Wyandotte Nation, 437 F. Supp. 2d at 1214–15 (upholding the Commission’s conclusion that the tribe had not shown a “geographical connection” to the parcel given its substantial distance from the tribe’s principal occupation area in Oklahoma or a “historical nexus” in light of the tribe’s relatively short occupancy of the parcel during the mid-nineteenth century and deferring to the Commission’s determination regarding temporal connection that “the purchase of the [parcel] was not part of a systematic land acquisition plan and did not fit the pattern of other tribal acquisitions”); Confederated Tribes of Coos, 116 F. Supp. 2d at 162 (rejecting contention that restoration of lands must occur contemporaneously with congressional restoration to tribal status).

Grand Traverse Band, 198 F. Supp. 2d at 936.

120

See City of Roseville v. Norton, 219 F. Supp. 2d 130, 160 (D.D.C. 2002) (“ ‘restoration of lands’ refers to lands taken into trust that would make [the tribe] whole, or place it in its ‘former’ position”), aff’d, 348 F.3d 1020, 1030 (D.C. Cir. 2003) (“A tribe’s pre-termination reservation is, as here, not always available. Given the passage of years between termination and restoration of federal recognition of tribes, it is likely that earlier reservation land could not easily be reestablished as a reservation for a restored tribe. . . . If the ‘restoration of lands’ exception applied only to such lands, the ‘equalization’ purpose of the exception would mean very little in practice”). 121

122 Sault Ste. Marie Tribe v. United States, 78 F. Supp. 2d 699, 703–04 (W.D. Mich. 1999), remanded on other grounds, 288 F.3d 910 (6th Cir. 2002).

25 U.S.C. § 2703(6).

123

134 Cong. Rec. S12,643, 12,652–653, 657 (1988).

124

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the Senate Select Committee on Indian Affairs’ hesitancy “to attempt to define traditional or ceremonial gaming as it is clearly an area of tribal self­government.”125 As examples of such gaming, the report listed “traditional gaming activities such as the ‘stick’ or ‘bone’ games that are played by tribes in conjunction with ceremonies, pow wows, [and] celebrations” and “rodeos, horse races, or other kinds of gaming with purses or prizes . . . traditionally . . . held in conjunction with such activities for members and guests, including publicly invited guests[.]”126 The phrase “social games solely for prizes of minimal value,” if construed literally, encompasses any form of gaming when played between individuals and involving no opportunity for other than minimal gain or, conversely, no risk of other than minimal loss. The controlling consideration behind this prong of the class I gaming definition, therefore, is the absence of the possibility for meaningful pecuniary gain or loss. By contrast, the phrase “traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or celebrations” facially permits substantial pecuniary gains or losses, so long as they are borne by the individual participants and the gaming activities themselves possess the requisite “traditional” nature and nexus to tribal ceremonies or celebrations. Substantial questions could arise in connection with the latter type of gaming, since what constitutes “traditional forms of Indian gaming” may be open to dispute and since the definition does not require the involved tribe to have had the particular type of gaming as part of its gaming tradition. Although the amorphous class I gaming definition renders uncertain the kinds of gambling activity included within it, little, if any, litigation has resulted. 2. Class II gaming The most detailed definition of gaming is that describing class II activities. As a general matter, it includes two basic forms of gaming: bingo or “other games similar to bingo” and certain nonbanking card games.128 The definition, however, also contains a grandfather provision for certain card games played in four states and a grace period during which otherwise class III gaming will be deemed class II in nature.129 127

S. Rep. No. 446, supra note 4, at 8, reprinted in 1988 U.S.C.C.A.N. 3078.

125

Id. at 11, reprinted in 1988 U.S.C.C.A.N. 3081.

126

25 U.S.C. § 2703(7).

127

Id. § 2703(7)(A).

128

Id. § 2703(7)(C)–(D).

129

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a. Bingo and related gaming. Section 2703(7)(A)(i) states that class II gaming includes the game of chance commonly known as bingo (whether or not electronic, computer, or other technologic aids are used in connection therewith)—

(I) which is played for prizes, including monetary prizes, with cards bearing numbers or other designations,



(II) in which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and



(III) in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards, including (if played in the same location) pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo[.]130

The Senate report indicated that the category of class II gaming was created to allow tribes maximum flexibility in utilizing bingo and bingo-­related games to foster economic development.131 The report further reflects that IGRA was not intended to establish restrictions with respect to the size of bingo games, the level of participation in those games, or the technology utilized to play them.132 However, the complexity of the bingo definition—and specifically the “technologic aids” component—is reflected in litigation over the class II gaming status of “MegaMania” machines. In cases before the Ninth and Tenth Circuits, the United States’ attempts to have those machines deemed class III gaming were rebuffed.133 The government contended in part that Mega­ Mania machines, rather than constituting simple technologic aids to bingo,

130 In Oneida Tribe v. Wisconsin, 951 F.2d 757, 761–62 (7th Cir. 1991), the Seventh Circuit rejected a claim that several high-stake lotteries constituted a “lotto,” as such term is used in section 2703(7)(A)(i). The court concluded that “lotto is a game of chance, played in a bingo-like setting on a bingo-like card, following bingo-like procedures.” Id. at 761. The Commission’s regulations defining various IGRA terms, including “class II gaming,” reach a similar conclusion. See 25 C.F.R. § 502.3(a).

S. Rep. No. 446, supra note 4, at 9, reprinted in 1988 U.S.C.C.A.N. 3079.

131

“The Committee specifically rejects any inference that tribes should restrict class II games to existing game sizes, levels of participation, or current technology. The Committee intends that tribes be given the opportunity to take advantage of modern methods of conducting class II games and the language regarding technology is designed to provide maximum flexibility. In this regard, the Committee recognizes the tribes may wish to join with other tribes to coordinate their class II operations and thereby enhance the potential of increasing revenues. For example, linking participant players at various reservations whether in the same or different States, by means of telephone, cable, television or satellite may be a reasonable approach for tribes to take. Simultaneous games participation between and among reservations can be made practical by use of computers and telecommunications technology as long as the use of such technology does not change the fundamental characteristics of the bingo or lotto games and as long as such games are otherwise operated in accordance with applicable Federal communications law.” S. Rep. No. 446, supra note 4, at 9, reprinted in 1988 U.S.C.C.A.N. 3079. 132

133 United States v. 103 Electronic Gambling Devices, 223 F.3d 1091, 1097–1101 (9th Cir. 2000); United States v. 162 MegaMania Gambling Devices, 231 F.3d 713, 720–25 (10th Cir. 2000). The Tenth Circuit described the game’s general operation as follows:

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are “designed to resemble slot machines, are faster-paced than traditional or manual bingo, require more investment by the participants than bingo, and cause the individual player to run a greater risk of loss than the average bingo player in a traditional bingo parlor.”134 In rejecting this contention, the Ninth Circuit reasoned that the terminal used for the game “is merely an electronic aid to human players of bingo, something like electronic mail with a graphic user interface” and that, “[u]nlike a slot machine, MegaMania is in truth being played outside the terminal”—i.e., “the terminal merely permits a person to connect to a network of players comprising each MegaMania game. . . .”135 It was principally due to these court decisions that the Commission revised its definitional rules to widen the definition of bingo and to permit a broader use of technology in the play of bingo, even if such devices appeared to violate the Johnson Act. In those revisions, the Commission abandoned the definition of “[g]ame similar to bingo” in its 1992 final rule136 in favor of one that allows any “variant on the game of bingo,” provided it is not house banked and allows players to compete with each other.137 b. Banking and nonbanking card games. Class II gaming includes those card games that

(I) are explicitly authorized by the laws of the State, or



(II) are not explicitly prohibited by the laws of the State and are played at any location in the State, but only if such card games are played in conformity with those laws and regulations (if any) of the State regarding hours or

A person playing MegaMania begins the game by electronically selecting up to four cards with randomly generated numbers. The player must pay twenty‑five cents per card to begin the game. A game will commence once at least twelve players nationwide purchase at least forty‑eight cards. A bingo “blower” located in Indian country in Oklahoma selects three numbered balls, and a human operator transmits the numbers on the balls by computer to Multimedia’s headquarters where they are sent through a computer network to each player station. The player then touches the corresponding space or spaces on the player’s card appearing on the MegaMania station screen. To continue playing the game, a player must pay an additional twenty‑five cents per card in exchange for the numbers on the next three balls. These numbers are transmitted in roughly ten second intervals. Consequently, the player must continue to pay twenty‑five cents to one dollar every ten seconds to stay in the game. Id. at 716. Id. at 723.

134

103 Electronic Gambling Devices, 223 F.3d at 1100; see also 162 MegaMania Gambling Devices, 231 F.3d at 725 (machines constituted “aid to bingo” because they linked up group of persons who played against one another and not house or the machine itself and because machines were not a “facsimile” of bingo, so as to fall outside class II gaming definition and into class III gaming, because they are not “an exact copy or replica of the traditional game of bingo”); but see Seneca-Cayuga Tribe v. NIGC, 327 F.3d 1019, 1041 (10th Cir. 2003) (rejecting United States’ suggestion that a “ ‘broaden participation’ requirement should be grafted onto IGRA” when determining whether technological aid, as opposed to facsimile, is involved). 135

57 Fed. Reg. 12,393 (Apr. 9, 1992).

136

67 Fed. Reg. 41,166 (June 17, 2002) (codified at 25 C.F.R. § 502.9). The amended regulation is discussed infra at notes 143–147 and accompanying text. 137

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periods of operation of such card games or limitations on wagers or pot sizes in such card games.138

The potential scope of this provision is limited by section 2703(7)(B)(i), which expressly excludes from class II gaming status “any banking card games, including baccarat, chemin de fer, or blackjack (21)[.]” The distinction between banking and nonbanking card games was identified in the Senate report as, in the first instance, “where players play against the house and the house acts as the banker” and, in the second, “those games where players play against each other rather than the house[.]”139 The status of nonbanking card games as class II must be determined by reference to state law. Under section 2703(7)(A)(ii) such status can be shown either by express state law authorization or by (1) the absence of an explicit state law prohibition and (2) the fact that such games are played lawfully anywhere in the involved state, but only to the extent any applicable state law concerning hours of operation and wager limits are observed.140 The second of these alternative grounds effectively means that, where state law is silent as to the validity of nonbanking card games, they will be valid even if played only on Indian lands. Consequently, such games are permissible unless state law explicitly prohibits them. c. Electronic or electromechanical facsimiles. Section 2703(7)(B)(ii) excludes from the definition of class II gaming “electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.” This exclusion is aimed at “the use of electronic facsimiles in which a single participant plays a game with or against a machine rather than with or against other players.” While the Commission’s original definitional regulations stated that the term “electronic or electromechanical facsimile” includes “any gambling device as defined in 15 U.S.C. § 1171(a)(2) or (3)”—the Johnson Act—the Commission revised its definitions, presumably in response to the MegaMania decisions, dropping any reference to the Johnson Act. The original definitional regulations distinguish facsimiles from electronic, computer, or other technologic aids, which are deemed to include a device such as a computer, telephone, cable, television, satellite or bingo blower and which when used: (1) [i]s not a game of chance but merely assists a player or the playing of a game; and (2) [i]s readily distinguishable

25 U.S.C. § 2703(7)(A)(ii).

138

S. Rep. No. 446, supra note 4, at 9, reprinted in 1988 U.S.C.C.A.N. 3079.

139

Id. (“[t]he Committee notes that, while existing law does not require that Indian card games conform with State law, it agreed to adoption of bill language to provide that these card games be operated in conformity with laws of statewide application with respect to hours for periods of operation, or limitations on wages or pot sizes for such card games”). 140

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American Indian Law Deskbook, Fourth Edition from the playing of a game of chance on an electronic facsimile; and (3) [i]s operated according to applicable Federal communications law.141

As examples of technological aids, the Commission referred in the summary preceding the regulations to items mentioned in the Senate report: computers, telephones, cable, television, satellites, and devices that “allow bingo players to keep track of cards” or “help in performing one function of bingo.” These definitions therefore established that electronic facsimiles of bingo or bingorelated games such as, for example, video pull-tabs do not constitute class II gaming. The District of Columbia Circuit, without reaching the question of whether the Commission’s regulations were valid in all respects, held in Cabazon Band of Mission Indians v. NIGC142 that computerized pull-tab devices constituted facsimiles, not technological aids, and thus fell within the proscription of the Johnson Act. In 2002 a divided Commission removed the definitional tie to the Johnson Act in adopting a new set of definitions.143 The relevant definition now reads:

(a) Electronic, computer or other technologic aid means any machine or device that: (1) Assists a player or the playing of a game; (2) Is not an electronic or electromechanical facsimile; and (3) Is operated in accordance with applicable Federal communications law.



(b) Electronic, computer or other technologic aids include, but are not limited to, machines or devices that: (1) Broaden the participation levels in a common game; (2) Facilitate communication between and among gaming sites; or (3) Allow a player to play a game with or against other players rather than with or against a machine.



(c) Examples of electronic, computer or other technologic aids include pull tab dispensers and/or readers, telephones, cables, televisions, screens, satellites, bingo blowers, electronic player stations, or electronic cards for participants in bingo games.144

In defining “electronic or electromechanical facsimile,” the Commission added the following:

25 C.F.R. § 502.7 (1992).

141

14 F.3d 633, 636–37 (D.C. Cir. 1994); see also Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 542–43 (9th Cir. 1994) (concurring in the reasoning in Cabazon that electronic pull-tab devices used by tribe are class III devices under IGRA, and rejecting tribe’s argument that the autotab devices were mere “aids” to playing the game). 142

143 67 Fed. Reg. 41,166 (June 17, 2002). Following withdrawn attempts to revise its class II regulations in 2006, the Commission published for comment in 2007 proposed amendments concerning classification standards appearing in 25 C.F.R. §§ 502 and 546, the definition for electronic or electromechanical facsimile in 25 C.F.R. § 502, and a proposed new rule for technical standards for electronic, computer, or other technological aids used to play class II games in 25 C.F.R. § 547. 72 Fed. Reg. 60,482–83, 60,508 (Oct. 24, 2007).

25 C.F.R. § 502.7.

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Electronic or electromechanical facsimile means a game played in an electronic or electromechanical format that replicates a game of chance by incorporating all of the characteristics of the game, except when, for bingo, lotto, and other games similar to bingo, the electronic or electromechanical format broadens participation by allowing multiple players to play with or against each other rather than with or against a machine.145

It appears the Commission relied upon MegaMania and other cases for the proposition that if a device merely facilitates the ability of multiple players to play with or against each other, it is not a “facsimile” of a game but, instead, is merely a “technologic aid” to the play of a game. The revised regulation reflects the Commission’s apparent view that the Johnson Act does not prohibit mechanical devices otherwise permissible as class II gaming technological aids.146 The regulations, finally, make clear that the technological aid authorization extends beyond bingo to other forms of class II gaming such as pull-tabs.147 d. Grandfathered card games. Section 2703(7)(C) includes within the scope of class II gaming card games played in the State of Michigan, the State of North Dakota, the State of South Dakota, or the State of Washington that were actually operated in such State by an Indian tribe on or before May 1, 1988, but only to the extent of the nature and scope of the card games that were actually operated by an Indian tribe in such State on or before such date, irrespective of whether they would be so classified otherwise.

This provision was directed at banking card games conducted by tribes in the listed states prior to IGRA’s adoption and was intended to preserve the status quo ante, and not to “serve as the basis for expansion of existing gaming operations to new locations not in operation as of May 1, 1988.”148 Senator Inouye, the principal sponsor of the legislation resulting in IGRA, stated that, while

Id. § 502.8.

145

But see Seneca-Cayuga v. NIGC, 327 F.3d 1019, 1031 (10th Cir. 2003) (“the NIGC has provided only limited guidance, issuing no amendments to the Code of Federal Regulations that address the relationship between the Johnson Act and IGRA Class II technologic aids”). Federal courts of appeals have divided on this issue. Compare id. at 1035 (Johnson Act inapplicable if device is permissible class II aid); United States v. 162 MegaMania Gambling Devices, 231 F.3d 713, 725 (10th Cir. 2000) (same); and Diamond Game Enters., Inc. v. Reno, 230 F.3d 365, 367 (D.C. Cir. 2000) (same), with United States v. Santee Sioux Tribe, 324 F.3d 607, 611–12 (8th Cir. 2003) (Johnson Act must be satisfied even if device is permissible class II aid). The Ninth and District of Columbia Circuits have reached seemingly contrary conclusions in two decisions with respect to whether the Johnson Act must be satisfied independently. Compare United States v. 103 Electronic Gambling Devices, 223 F.3d 1091, 1101 (9th Cir. 2000) (Johnson Act inapplicable to permissible class II aids), with Cabazon, 14 F.3d at 635 n.3 (Johnson Act not repealed impliedly with respect to class II aids); see generally Heidi McNeil Staudenmaier and Andrew D. Lynch, The Class II Gaming Debate: The Johnson Act vs. The Indian Gaming Regulatory Act, 8 Gaming L. Rev. 227 (2004) (reviewing decisional authority, regulations, and other administrative materials related to relationship between the Johnson Act and IGRA). 146

See Seneca-Cayuga, 327 F.3d at 1036–40 (extending Chevron deference to amended definition).

147

134 Cong. Rec. S12,643, 12,651 (1988) (remarks of Sen. Reid).

148

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grandfathered establishments were not precluded from adding new tables or seats, they were prohibited from “the institution of new games.”149 The exact incidents of the status quo ante referenced during the Senate debate on IGRA are not clear. That issue instead is left to the courts with whatever guidance can be gleaned from the debate and the Senate report. In the only significant decision on this issue, the Eighth Circuit has concluded that an increase in an establishment’s period of operation does not alter the “nature and scope” of the business so as to vitiate its grandfathered status.150 That a particular establishment is grandfathered means only that it enjoys class II gaming status. Whether it is lawful must be resolved with reference to those standards by which the legality of such gaming is measured. e. Grace periods. Congress additionally included for one year following IGRA’s enactment a grace period in which class II gaming would include any electronic or electromechanical facsimiles of any game of chance or slot machines of any kind that [were] legally operated on Indian lands on or before May 1, 1988, if the Indian tribe having jurisdiction over the lands on which such gaming was operated requests the State, by no later than the date that is 30 days after the date of enactment of this Act, to negotiate a Tribal-State compact under [section 2710(d)(3)].151

This grace period was later extended for Minnesota tribes and for certain gaming in Montana and Wisconsin.152 3. Class III gaming Class III gaming “means all forms of gaming that are not class I or class II gaming.”153 This residual class accordingly captures those types of gaming, such as casino-like gambling and parimutuel betting, that have presented the most sensitive public policy issues.

149 Id. (remarks of Sen. Inouye); see also S. Rep. No. 446, supra note 4, at 10, reprinted in 1988 U.S.C.C.A.N. 3080 (“[i]t is not the Committee’s intention . . . to restrict these grandfathered games to a specific number of chairs, tables, or other similar conditions of operation”).

United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 368 (8th Cir. 1990).

150

The term “legally operated” has been construed as having a scope concurrent with gaming permitted under § 2710(b)(1)(A): “the device is operated in a state that permits such gaming for any purpose by any person or organization and such gaming is not specifically prohibited by federal law.” United States v. Cook, 922 F.2d 1026, 1035 (2d Cir. 1991). While this construction of the term comports with the statute’s treatment of the specified activities as class II gaming, those activities would be prohibited, to the extent they occur in Indian country, by 15 U.S.C. § 1175 unless IGRA intended to sanction them during the grace period. 151

152 Pub. L. No. 101-121, § 118, 103 Stat. 701, 722 (1989) (Minnesota); Pub. L. No. 101-301, § 6, 104 Stat. 206, 209 (1990) (Montana and Wisconsin); Pub. L. No. 102-238, § 2, 105 Stat. 1908 (1991) (Montana and Wisconsin); Pub. L. No. 102-497, § 14, 106 Stat. 3255, 3261 (1992) (Montana).

25 U.S.C. § 2703(8).

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C. Requirements for Lawful Indian Lands Gaming IGRA establishes quite different standards for determining the legality of each gaming class. The statute evinces a general intent to impose greater constraints on the authority of tribes to control gambling on Indian lands as the class of gaming increases. 1. Class I gaming IGRA declares class I gaming to be “within the exclusive jurisdiction of the Indian tribes” and exempt from its provisions.154 Vesting exclusive jurisdiction over such gaming within tribes deprives the federal government or states of any regulatory authority they may have possessed prior to the statute’s enactment as to class I activities. Future litigation over class I gaming likely will be limited to whether the particular activity falls into that class. 2. Class II gaming All class II gaming on Indian lands “shall continue to be within the jurisdiction of the Indian tribes[.]”155 However, unlike its exclusive jurisdiction with respect to class I gaming, the authority of a tribe to “engage in, or license and regulate” class II gaming is subject to two conditions: (1) the involved gaming must be “located within a State that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law)”; and (2) the tribe’s governing body must adopt a gaming ordinance or resolution thereafter approved by the Commission’s chairman. A tribe must further issue separate licenses for “each place, facility, or location” where class II gaming is conducted.156 The Commission is directed to monitor all class II gaming157 except where a certificate of self-regulation has issued to a tribe,158 and its chairman must approve management contracts with respect to such gaming.159 IGRA denies states any regulatory authority with respect to class II gaming. a. Requirements for lawful gaming. i. State law compliance. The state law condition precedent to lawful class II gaming is capable of straightforward application in most instances. For ex-

154 Id. § 2710(a)(1). The term “Indian tribe” is defined in § 2703(5) as “any Indian tribe, band, nation, or other organized group or community of Indians which—(A) is recognized as eligible by the Secretary for the special programs and services provided by the United States to Indians because of their sta­tus as Indians, and (B) is recognized as possessing powers of self-government.”

Id. § 2710(a)(2).

155

Id. § 2710(b)(1).

156

Id. § 2706(b)(1)–(2).

157

Id. § 2710(c)(5)(A).

158

Id. §§ 2711, 2712.

159

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ample, where a state permits charitable organizations to conduct bingo or card games, a tribe can engage in such activities if the ordinance condition has been satisfied. Disputes may nonetheless arise when, as another example, state law permits the traditional form of bingo, but is silent as to pull-tabs, and a tribe desires to engage in pull-tab gaming. While not addressing that precise situation, the Senate report did remark that “Federal courts will rely on the distinction between state criminal laws which prohibit certain activities and the civil laws of a State which impose a regulatory scheme upon those activities to determine whether class II games are allowed in certain States.”160 This statement, when construed together with the term “such gaming” in section 2710(b)(1), can be read as suggesting that only those particular forms of class II gaming permitted, or “regulated,” under state law are intended to be authorized.161 Beyond the types of class II gaming referred to in section 2704(7) is the question whether the tribe must comply with every substantive restriction imposed by state law on such gaming. The Eighth Circuit Court of Appeals in United States v. Sisseton-Wahpeton Sioux Tribe answered this question negatively. It reasoned that “the legislative history [of IGRA] reveals that Congress intended to permit a particular gaming activity, even if conducted in a manner inconsistent with state law, if the state law merely regulated, as opposed to completely barred, that particular gaming activity.”162 The court of appeals’ conclusion appears correct, since nothing in the language of section 2710(b)(1)(A) suggests an intent to require compliance with all aspects of state law or to use such law in any way other than to determine whether the particular type of gaming is permitted under any circumstances. The court’s conclusion is also consistent with Cabazon163 and earlier decisions permitting tribes to set the conditions applicable to tribally sponsored gaming. The exception to the general rule

S. Rep. No. 446, supra note 4, at 6, reprinted in 1988 U.S.C.C.A.N. 3076.

160

One district court suggested shortly after IGRA’s passage that the civil-regulatory/criminal­prohibitory distinction employed in determining the reach of the criminal component of Public Law 280, 18 U.S.C. § 1162, should be applied in determining the scope of class III gaming under § 2710(d)(1)(B). Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480, 485–86 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992). This approach has been rejected in later decisions. E.g., Rumsey Indian Rancheria v. Wilson, 41 F.3d 421 (9th Cir. 1994), amended, 64 F.3d 1250, 1259 n.5 (9th Cir. 1994) and 99 F.3d 321 (9th Cir. 1996); Coeur d’Alene Tribe v. Idaho, 51 F.3d 876, 878 (9th Cir. 1995); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 279 (8th Cir. 1993). Nevertheless, there does appear to be judicial consensus that the civil-regulatory/criminal-prohibitory distinction is relevant to determinations under § 2710(b)(1)(A) with respect to class II gaming. Rumsey, 64 F.3d at 1259 n.5; Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1334 n.17 (5th Cir. 1994). 161

162 897 F.2d 358, 365 (8th Cir. 1990). The legislative history most heavily relied upon for the court’s conclusion included statements in the Senate report indicating that tribes were free to engage in class II gaming unless the particular game was criminally prohibited by state law. Id. at 365–66 (citing S. Rep. No. 446, supra note 4, at 6, 12, reprinted in 1988 U.S.C.C.A.N. 3076, 3082). It also noted the report’s comments that, with respect to class II card games, the only state law limitations imposed upon a tribe’s discretion in conducting otherwise lawful games were those identified in 25 U.S.C. § 2703(7)(A)(ii). Id. at 367 (citing S. Rep. No. 446, supra note 4, at 9, reprinted in 1988 U.S.C.C.A.N. 3079).

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

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that tribes need not conform their gaming to state law requirements is the requirement in section 2703(7)(A)(ii) that nonbanking card games be “played in conformity with those laws and regulations (if any) of the State regarding hours or periods of operation of such card games or limitations on wagers or pot sizes in such card games.” Lastly, the parenthetical phrase “and such gaming is not otherwise specifically prohibited on Indian lands by Federal law” in section 2710(b)(1)(A) was discussed in the Senate report: The phrase “not otherwise prohibited by Federal Law” refers to gaming that utilizes mechanical devices as defined in 15 U.S.C. § 1175. That section prohibits gambling devices on Indian lands but does not apply to devices used in connection with bingo and lotto. It is the Committee’s intent that with the passage of this act, no other Federal statute, such as those listed below, will preclude the use of otherwise legal devices used solely in aid of or in conjunction with bingo or lotto or other such gaming on or off Indian lands. The Committee specifically notes the following sections in connection with this paragraph: 18 U.S.C. §§ 13, 371, 1084, 1303–1307, 1952–1955 and 1961–1968; 39 U.S.C. § 3005; and as except as noted above, 15 U.S.C. §§ 1171–1178. However, it is the intention of the Committee that nothing in the provision of this section or in this act will supersede any specific restriction or specific grant of Federal authority or jurisdiction to a State which may be encompassed in another Federal statute, including the Rhode Island Claims Settlement Act . . . and the Marine [sic] Indian Claim Settlement Act[.]164

Whatever the import of this statement in the report, as noted in the Commission’s revised definitional regulations, the Commission takes the view that the use of certain technological devices for the play of class II gaming will not come within the ambit of 15 U.S.C. § 1175.165 Perhaps more meaningful is the report’s suggestion that the phrase includes federal settlement acts, such as those identified in the report, under which a state’s laws have been made applicable to a tribe’s lands for both adjudicatory and regulatory purposes.166 Whether the Senate report’s suggestion

164 S. Rep. No. 446, supra note 4, at 12, reprinted in 1988 U.S.C.C.A.N. 3082; see also 134 Cong. Rec. S12,643, 12,650 (1988) (statements of Sens. Pell, Chafee, and Inouye).

See supra notes 141–147 and accompanying text.

165

Rhode Island Indian Claims Settlement Act, Pub. L. No. 95-395, § 9, 92 Stat. 813, 817 (1978) (codified at 25 U.S.C. § 1708(a)) (“[e]xcept as otherwise provided in this subchapter, the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island”); Maine Indian Claims Settlement Act, Pub. L. No. 96-420, § 8(a), 94 Stat. 1785, 1795 (1980) (codified at 25 U.S.C. § 1725(a)) (with certain exceptions “all Indians, Indian nations, or tribes or bands of Indians in the State of Maine . . . and any lands or natural resources owned by any such Indian, Indian nation, tribe or band of Indians and any lands or natural resources held in trust by the United States, or by any other person or entity, for any such Indian, Indian nation, tribe, or band of Indians shall be subject to the civil and criminal jurisdiction of the State, the laws of the State, and the civil and criminal jurisdiction of the courts of the State, to the same extent as any other person or land therein”); see also Florida Indian (Miccosukee) Land Claims Settlement Act, Pub. L. No. 97-399, § 8(b)(2)(A), 96 Stat. 2012, 2015 (1982) (codified at 25 U.S.C. § 1747(b)(2)(A)) (“[t]he 166

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in this regard will be followed by a court as to class II gaming is unclear. In Rhode Island v. Narragansett Indian Tribe,167 for example, the First Circuit Court of Appeals concluded that the Rhode Island Settlement Act did not exempt that state from IGRA’s requirements as to class III gaming because of the latter statute’s silence and the fact that an explicit exclusion was removed shortly before its passage. The contrary result was reached later by the same court as to the Maine Settlement Act in Passamaquoddy Tribe v. Maine,168 but only because section 16(b) of that act provided that any federal statute adopted after October 10, 1980, for the benefit of Indians, Indian nations, or tribes or bands of Indians, which would affect or preempt the application of the laws of the State . . . to lands owned by or held in trust for Indians, or Indian nations, tribes, or bands of Indians . . . shall not apply to the State of Maine, unless such provision of such subsequently enacted Federal law is specifically made applicable within the State of Maine.169

The Rhode Island Settlement Act had no corresponding provision, and in 1996 Congress addressed the Narragansett decision by amending the Rhode Island statute to remove “settlement lands” from the definition of “Indian lands” under IGRA.170 ii. Ordinance requirement. The Commission chairman is responsible for approving ordinances governing class II gaming whether adopted before or after IGRA’s enactment.171 Section 2710(b)(2) mandates various ordinance

laws of Florida relating to alcoholic beverages . . . , gambling . . . , sale of cigarettes . . . , and their successor laws, shall have the same force and effect within said transferred lands as they have elsewhere within the State and the State shall have jurisdiction over offenses committed by or against Indians under said laws to the same extent the State has jurisdiction over said offenses committed elsewhere within the State”); Massachusetts Indian Land Claims Settlement Act, Pub. L. No. 100-95, § 9, 101 Stat. 704, 709–10 (1987) (codified at 25 U.S.C. § 1771g) (“[e]xcept as otherwise expressly provided in this subchapter, or in the State Implementing Act, the settlement lands and any other land that may now or hereafter be owned by or held in trust for any Indian tribe or entity in the town of Gay Head, Massachusetts, shall be subject to the civil and criminal laws, ordinances, and jurisdiction of the Commonwealth of Massachusetts in the town of Gay Head, Massachusetts (including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance)”); Florida Indian (Seminole) Land Claims Settlement Act, Pub. L. No. 100-228, § 6(d)(1), 101 Stat. 1556, 1560 (1987) (codified at 25 U.S.C. § 1772d(d)(1)) (“[t]he laws of Florida relating to alcoholic beverages, gambling, sale of cigarettes, and their successor laws, shall have the same force and effect within said transferred lands as they have elsewhere within the State”). 19 F.3d 685, 697–700 (1st Cir. 1994).

167

75 F.3d 784, 789 (1st Cir. 1996).

168

25 U.S.C. § 1735(b).

169

Pub. L. No. 104-208, Div. A, Title I, § 101(d), 110 Stat. 3009 (1996) (codified at 25 U.S.C. § 1708(b)); see Narragansett Indian Tribe v. NIGC, 158 F.3d 1335, 1339–42 (D.C. Cir. 1998) (rejecting equal protection challenge to amendment). 170

171 25 U.S.C. §§ 2710(b)(2), 2712; see 25 C.F.R. §§ 522–523. Section 2712 requires review by the chairman of all ordinances or resolutions authorizing class II or III gaming, including those adopted prior to IGRA’s passage. The chairman must determine whether the ordinance complies with the requirements in

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provisions: (1) The tribe must have the sole proprietary interest and responsibility for conducting the gaming activity, unless the ordinance provides for the licensing of such activities by persons other than the tribe in accordance with section 2710(b)(4);172 (2) net revenues173 from class II gaming may be used only to fund tribal government operations or programs, provide for the general welfare of the tribe and its members, promote tribal economic development, donate to charitable organizations, or fund operations of local government agencies;174 (3) annual outside audits must be conducted and their results supplied to the Commission; (4) all supply, services, or concession contracts in excess of $25,000, excluding those for legal or accounting services, must be subject to independent audits; (5) construction and maintenance of gaming facilities, as well as the actual operation of the gaming itself, must be “conducted in a manner which adequately protects the environment and the public health and safety”; and (6) there must be an adequate system for background investigations on “the

§ 2710(b). 25 U.S.C. § 2712(b)(1); 25 C.F.R. §§ 522.4, 523.3. If an existing ordinance is disapproved, the tribe is given 120 days to bring it into compliance with the statute. 25 U.S.C. § 2712(b)(3); 25 C.F.R. § 523.3(c). As its literal text indicates, the statute does not extend “to contracts entered into between a tribe and a third party (as contrasted with tribal legislation or regulations officially enacted by the tribe).” Guidiville Band of Pomo Indians v. NDV Gaming, Ltd., 531 F.3d 767, 782–83 (9th Cir. 2008). 172 Section 2710(b)(4) authorizes tribal licensing of individually owned gaming if it is licensed and regulated pursuant to an approved ordinance; the income to the tribe from the gaming is used only for those purposes identified in § 2710(b)(2)(B); not less than 60 percent of the gaming operation’s net revenue is income to the tribe; the gaming operation’s owner pays to the Commission the assessment provided under § 2717(a)(1); and the tribe’s licensing requirements are at least as restrictive as those applicable to that form of gaming under state law. The statute further provides that “[n]o person or entity, other than the Indian tribe, shall be eligible to receive a tribal license to own a class II gaming activity conducted on Indian lands within the jurisdiction of the Indian tribe if such person or entity would not be eligible to receive a State license to conduct the same activity within the jurisdiction of the State.” Id. § 2710(b)(4)(A); see 25 C.F.R. § 522.10. Individually owned class II gaming operations doing business as of September 1, 1986, are exempted from these restrictions except those requiring tribal licensing, controlling the use by tribes of income from such gaming, mandating at least 60 percent of the net revenue be returned to the tribe, and directing payment of the Commission assessment. 25 U.S.C. § 2710(b)(4)(B)(i); 25 C.F.R. § 522.11. The exemption may not be transferred and is effective “only so long as the gaming activity remains within the same nature and scope as operated [on the date of IGRA’s] enactment.” 25 U.S.C. § 2710(b)(4)(B)(ii). 173 The term “net revenues” is defined as “gross revenues of an Indian gaming activity less amounts paid out as, or paid for, prizes and total operating expenses, excluding management fees.” Id. § 2703(9). 174 Section 2710(b)(3) allows a tribe to use class II gaming net revenues for per capita payments to members if certain conditions are satisfied, including existence of a plan approved by the Secretary to allocate the remaining revenue for uses consistent with those described in the text. Compare Maxam v. Lower Sioux Indian Cmty., 829 F. Supp. 277, 279–81 (D. Minn. 1993) (concluding that tribal members had standing to challenge payment method for per capita amounts funded with class II gaming revenue and, in arguable dictum, that tribe’s decision to engage in such gaming effected waiver of sovereign immunity), with Montgomery v. Flandreau Santee Sioux Tribe, 905 F. Supp. 740, 744, 747 (D.S.D. 1995) (no private right of action under IGRA with respect to claim of unequal per capita distributions from gaming revenue, and finding tribal court proper forum for claim that tribal officers violated fiduciary duties under tribal law); Smith v. Babbitt, 875 F. Supp. 1353, 1359–62 (D. Minn. 1995) (distinguishing Maxam because per capita distribution plan had received secretarial approval, and concluding dispute involved internal tribal membership matter over which federal courts had no jurisdiction), aff’d, 100 F.3d 556 (8th Cir. 1996); and Davids v. Coyhis, 869 F. Supp. 1401, 1411–12 (E.D. Wis. 1994) (finding no waiver of tribe’s sovereign immunity under IGRA and no private right of action under statute in favor of tribal members against tribal officers); cf. Harrell v. DeCora (In re DeCora), 387 B.R. 230, 240 (Bankr. W.D. Wis. 2008) (tribe retained right under authorizing ordinance “not to issue a per capita distribution if the tribe elects not to do so”).

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primary management officials and key employees of the gaming enterprise” and for their continuing oversight on an ongoing basis. b. The Commission’s responsibilities. The Commission must review all class II gaming licenses issued by a tribe and, within thirty days, notify the latter of any objections to such issuance.175 It is more generally responsible for monitoring class II gaming on a regular basis, inspecting all premises where such gaming is conducted, performing background investigations it deems necessary, inspecting all records pertinent to class II gaming,176 and ensuring the land on which a tribe proposes to conduct class II gaming is “Indian lands,” as defined by IGRA.177 A tribe operating a class II gaming activity, however, may petition the Commission for a certificate of self-regulation once it has conducted the activity without interruption for at least three years.178 If the petition is granted, the tribe is exempted from the Commission’s class II gaming oversight responsibilities in section 2706(b)(1) through (4) but must continue to submit both the annual independent audits specified under section 2510(b)(2)(C) and a resumé of all employees hired and licensed by the tribe

175 25 U.S.C. § 2710(c)(1). If the Commission provides a tribe with reliable information that a primary management official or key employee may “pose a threat to the public interest or the effective regulation of gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices and methods and activities in the conduct of gaming,” id. § 2710(b)(2)(F)(ii)(II)), the tribe must suspend the license and, after notice and hearing, may revoke it, id. § 2710(c)(2). 176 Id. § 2706(b)(1)–(4); see, e.g., 73 Fed. Reg. 6019 (Feb. 1, 2008) (codified at 25 C.F.R. pts 502, 522, 559 & 573) (class II and III gaming facility licensing); 25 C.F.R. pt. 566 (background investigations). 177 See Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295, 323–27 (W.D.N.Y. 2007) (requiring Commission chairman to consider whether tribe proposes to conduct class III gaming on Indian lands over which tribe has, or would have, jurisdiction), amended on recons., No. 06-CV-0001S, 2007 WL 1200473, at *3–*4 (W.D.N.Y. Apr. 20, 2007); Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att’y, 46 F. Supp. 2d 689, 706–08 (W.D. Mich. 1999) (holding that Commission has “primary jurisdiction” to determine all factual and legal questions arising under IGRA in the first instance, and staying action pending agency’s ruling on whether tribe’s gaming activities are on Indian lands); cf. New York v. Oneida Indian Nation, 78 F. Supp. 2d. 49, 58 (N.D.N.Y. 1999) (declining to defer to Commission because complaint alleging violation of tribal-state gaming compact did not raise “technical or policy considerations within the specialized knowledge of the NIGC”). In response to a September 2005 report by the Office of the Inspector General for the Department of the Interior that the Department and the Commission lack a process for ensuring that all lands used by Indian tribes for gaming meet IGRA’s “Indian lands” requirement, the Commission has published for comment proposed rules for facility license standards that, with respect to new tribal gaming facilities, would require tribes to identify the parcel where the gaming will be located and provide information sufficient to show that the gaming will occur on “Indian lands,” as defined in IGRA. 72 Fed. Reg. 59,044 (Oct. 18, 2007) (codified at 25 C.F.R. §§ 502, 522, 559, 573). The proposed rules also include provisions intended to ensure that gaming facilities are constructed, maintained, and operated in a manner that adequately protects the environment and public health and safety, by requiring tribes to identify the relevant laws and codes that apply to the gaming operation and certify the facility is in compliance. Id. 178 25 U.S.C. § 2710(c)(3). The term “gaming activity” is not defined in IGRA, but Commission regulations make clear that self-regulation certificates are issued to the petitioning tribe for all class II activities and not particular gaming operations. 25 C.F.R. § 518.1. Because a certificate applies only to gaming facilities operated by the tribe, id., the Commission’s general oversight responsibilities with respect to class II gaming that is individually owned appear unaffected. See id. § 518.9 (Commission retains all investigative and enforcement responsibilities notwithstanding issues of self-regulation certificate).

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subsequent to the certificate’s issuance.179 A certificate of self-regulation may be removed by majority vote of the Commission at any time for just cause and after an opportunity for hearing.180 In exercising its regulatory responsibilities, the Commission, in 1999, developed Minimum Internal Control Standards (MICS). These standards require each tribal gaming regulatory authority, in accordance with the gaming ordinance, to establish and implement tribal internal control standards that provide a level of control that equals or exceeds those set forth by the Commission.181 The MICS relate principally to cash accounting, handling, verification, and security procedures for gaming materials and equipment, and they provide for enforcement by the Commission.182 A tribe may enter into management contracts for the operation of a class II gaming activity, but those contracts, whether made before or after IGRA’s enactment, are subject to the Commission chairman’s review and approval.183 The term “management contract” includes both the principal contract and “all collateral agreements to such contract that relate to the gaming activity.”184

25 U.S.C. § 2710(c)(5); 25 C.F.R. §§ 518.7–518.8.

179

25 U.S.C. § 2710(c)(6); 25 C.F.R. § 518.10.

180

25 C.F.R. § 542.3.

181

182 Id. In 2007 the Commission published for comment a proposed rule intended to supersede certain specified sections of the current MICS for class II gaming in 25 C.F.R. § 542.3 and replace it with a new rule in 25 C.F.R. § 543. 72 Fed. Reg. 60,495 (Oct. 24, 2007). 183 25 U.S.C. §§ 2711, 2712; 25 C.F.R. §§ 533.1–533.2; see AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 905–10 (9th Cir. 2002) (Commission’s approval of the management contract and non-disapproval of tribal resolution for a national telephone lottery meant that agency concluded lottery operation was lawful under IGRA); see generally Kevin K. Washburn, The Mechanics of Indian Gaming Management Contract Approval, 8 Gaming L. Rev. 333, 344–46 (2004) (describing Commission’s review and approval process for management contracts and the role collateral agreements play in such review). Not unexpectedly, claims related to the absence of Commission approval of alleged management contracts have been joined with claims based on the failure to secure agency approval of contracts related to Indian lands. E.g., United States ex rel. Saint Regis Mohawk Tribe v. President R.C.–St. Regis Mgmt. Co., 451 F.3d 44, 49–53 (2d Cir. 2006) (tribe’s action to have construction contract declared invalid as a collateral agreement not approved by the Commission was barred by failure to exhaust administrative remedies available before the agency, while the qui tam remedy under a now-repealed provision in 25 U.S.C. § 81 was superseded by IGRA with respect to the regulation of management and collateral agreements); United States ex rel. Bernard v. Casino Magic Corp., 384 F.3d 510, 513–14 (8th Cir. 2004) (25 U.S.C. § 81, as codified prior to its 2000 amendment, limited the United States’ recovery on tribe’s behalf to “all money or any other thing of value” paid by the tribe “on account of . . . services” provided by the defendant pursuant to the invalid contract); Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 144 F. Supp. 2d 215, 221–24 (S.D.N.Y. 2001) (discussing IGRA’s regulatory scheme with respect to approval of management contracts and interrelationship between such scheme and secretarial approval requirement under 25 U.S.C. § 81), modified, 154 F. Supp. 2d 696 (S.D.N.Y. 2001). 184 25 U.S.C. § 2711(a)(3); see First Am. Kickapoo Operations, L.L.C. v. Multimedia Games, Inc., 412 F.3d 1166, 1175 (10th Cir. 2005) (reviewing regulations and Commission materials concerning indicia of management contracts and rejecting contention that “a contract is only a management contract if it confers rights rather than opportunities to manage”); United States ex rel. Bernard v. Casino Magic Corp., 293 F.3d 419, 424–26 (8th Cir. 2002) (construction and consulting agreement invalid without chairman’s approval); Jena Band of Choctaw Indians v. Tri-Millennium Corp., 387 F. Supp. 2d 671, 677, 680 (W.D. La. 2005) (distilling from First American Kickapoo and Commission regulations as a general standard to determine management contract status whether the involved agreement “grant[s] to a party other than the tribe management authority with regard to the gaming operation”; applying same standard to determine collateral agreement status;

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Approval may occur only if the chairman determines that the contract provides at least

(1) for adequate accounting procedures that are maintained, and for verifiable financial reports that are prepared, by or for the tribal governing body on a monthly basis;



(2) for access to the daily operations of the gaming to appropriate tribal officials who shall also have a right to verify the daily gross revenues and income made from any such tribal gaming activity;



(3) for a minimum guaranteed payment to the Indian tribe that has preference over the retirement of development and construction costs;



(4) for an agreed ceiling for the repayment of development and construction costs;



(5) for a contract term not to exceed five years, except that, upon the request of an Indian tribe, the Chairman may authorize a contract term that exceeds five years but does not exceed seven years if the Chairman is satisfied that the capital investment required, and the income projections, for the particular gaming activity require the additional time; and



(6) for grounds and mechanisms for terminating such contract, but actual contract termination shall not require the approval of the Commission.185

The management contract may provide for a fee based upon a reasonable percentage of the gaming activity’s net revenues, but the fee may not exceed 30 percent as an ordinary matter.186 The chairman, moreover, must disapprove any contract where certain, specified circumstances are present.187 The chairman’s determination must be issued within 180 days of the contract’s submission, although he retains the authority with respect to post-IGRA contracts to ex-

and holding that provision which granted a contractor the exclusive right to gaming “ ‘on the first Gaming Operation . . . and the exclusive right [to] enter into a management contract with [the] Jena [Band]’ ” constituted “an alienation by [the] Jena Band of its right to manage gaming operations located on tribal lands in Louisiana”); Machal, Inc. v. Jena Band of Choctaw Indians, 387 F. Supp. 2d 659, 665, 669 (W.D. La. 2005) (same); Catskill Dev., 154 F. Supp. 2d at 702 (land purchase, construction, and shared facilities agreements related only to class III gaming and therefore did not constitute “collateral agreements”); see generally Heidi McNeil Staudenmaier and Ruth K. Khalsa, Theseus, the Labyrinth, and the Ball of String: Navigating the Regulatory Maze to Ensure Enforceability of Tribal Gaming Contracts, 40 J. Marshall L. Rev. 1123, 1146–47, 1154 (2007) (reviewing cases concerned with the status of agreements as management or collateral contracts; stressing the importance of the agreement’s “payment terms” since “[t]he structure of the payment terms reveals much regarding whether [a] contract created an ongoing management-type of relationship between the tribe and the non-tribal contractor, or whether any relationship was limited to a definite term[;]” and recommending consideration of the “checklist” of factors identified in the Jena Band decisions). 25 U.S.C. § 2711(b)(1)–(6); see 25 C.F.R. § 531.1.

185

25 U.S.C. § 2711(c)(1). The fee may be increased to no more than 40 percent of net revenues “if the Chairman is satisfied that the capital investment required, and the income projections, for such tribal gaming activity require the additional fee requested by the Indian tribe.” Id. § 2711(c)(2); see 25 C.F.R. § 531.1(i). 186

25 U.S.C. § 2711(e); 25 C.F.R. § 533.6(b).

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tend for cause that period for an additional period not to exceed 90 days.188 If a management contract previously approved by the Secretary of the Interior is determined not to meet the statute’s requirements, the parties must be notified of the modifications necessary to effect compliance and given 120 days to make those modifications.189 An approved contract may be voided or modifications directed after notice and hearing if the chairman “subsequently determines that any of the provisions of [section 2711] have been violated.”190 c. State regulatory authority. As the exemption in section 2710(b)(4)(B) for the grandfathered, individually owned class II gaming operations indicates, persons other than tribes were engaged in such gaming activity prior to IGRA. To the extent they were nonmembers, these operators commonly were required to comply with state law. The question thus becomes whether, after the statute’s enactment, states retain any regulatory authority as to that or other class II gaming activity. The answer is debatable. Section 2710(a)(2) states that “[a]ny” class II gaming on Indian lands is within tribal jurisdiction and subject to IGRA’s provisions. Although this literal reading of the statute is arguably subject to dispute because of the authorization for a tribe to “engage in, or license and regulate, class II gaming on Indian lands within such tribe’s jurisdiction,”191 a colloquy between Senators Evans and Inouye during the debate preceding the Senate’s passage of IGRA indicated an “understanding that the references in the bill to ‘Indian lands,’ ‘Indian lands of the Indian tribe,’ ‘Indian lands over which the

25 U.S.C. §§ 2711(d), 2712(c)(1); 25 C.F.R. § 533.4.

188

25 U.S.C. § 2712(c)(3); 25 C.F.R. § 533.5(a). The 120-day period is enlarged to 180 days if the management contract was approved by the Secretary prior to IGRA’s enactment. Id. 189

190 25 U.S.C. § 2711(f); see 25 C.F.R. § 535.3. IGRA provides no remedies for enforcement of management contracts against tribes or their officials. Although Commission regulations require such contracts to include dispute resolution procedures, the rules do not specify what the procedures should be. Id. § 531.1(k). The authority of federal courts to resolve management contract disputes is constrained by tribal immunity from suit and, at least arguably, subject matter jurisdiction requirements. Compare Tamiami Partners, Ltd. v. Miccosukee Tribe, 63 F.3d 1030, 1049 (11th Cir. 1995) (IGRA does not create private right of action for management contractor “to compel an Indian tribe to license the employees the contractor designates to operate the gaming facility”); Gallegos v. San Juan Pueblo Bus. Dev. Bd., Inc., 955 F. Supp. 1348, 1350 (D.N.M. 1997) (claim seeking to enforce alleged management contract did not support federal question jurisdiction for removal purposes); and Jimi Develop. Corp. v. Ute Mountain Ute Indian Tribe, 930 F. Supp. 493, 498 (D. Colo. 1996) (even if characterized as management contract, tribe’s sovereign immunity barred suit), with Tamiami Partners, Ltd. v. Miccosukee Tribe, 177 F.3d 1212, 1225 (11th Cir. 1999) (finding that the tribe’s management agreement with the development corporation contained a valid waiver of the tribe’s sovereign immunity, and holding that action arose under federal law because the management agreement incorporated IGRA—“by operation of law if not by reference”); Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1092, 1094–96 (8th Cir. 1999) (rejecting various alleged breaches of management contract but remanding for resolution of claims not addressed by district court); Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1421 (8th Cir. 1996) (finding federal question over dispute involving validity of management contract because, “[w]hile the issue of the contract’s validity does not raise a federal question per se, certainly there are aspects of the dispute which do,” but requiring contractor to exhaust tribal court remedies); and Abdo v. Fort Randall Casino, 957 F. Supp. 1111, 1113 (D.S.D. 1997) (same).

25 U.S.C. § 2710(b)(1) (emphasis added).

191

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tribe has jurisdiction,’ and ‘lands owned by the Indian tribes’ are meant to be interpreted the same way to apply to all lands within reservation boundaries and trust lands outside the reservations.”192 Thus, there are conflicting textual and historical bases for construing IGRA, given its expansive definition of “Indian lands,” as applying only to class II gaming activities on reservation lands owned or held in trust for a tribe.193 Whether Congress intended that IGRA supplant preexisting state regulatory authority is questionable. In explaining that, under the new statute, the civil-regulatory/criminal-prohibitory distinction was relevant as to class II gaming solely in determining if “a body of [state] law is applicable, as a matter of federal law, to either allow or prohibit certain activities[,]” the Senate report observed that “[t]he Committee did not intend for [IGRA] to be used in any way to subject Indian tribes or their members who engage in class II games to the criminal jurisdiction of States in which criminal laws prohibit class II games.”194 The report later stated in connection with its discussion of the provisions dealing with individually owned class II games that, “while income may accrue to a tribe through taxation or other assessments on an individually owned bingo or card game, the purpose of an individually owned enterprise is profit to the individual owner[s] of Indian trust lands.”195 3. Class III gaming Three conditions must be satisfied before class III gaming may be conducted on Indian lands: (1) The gaming must be authorized under a tribal ordinance approved by the Commission chairman; (2) the state in which the activity is located must permit the gaming; and (3) the gaming must be conducted in accordance with a secretarially approved and effective tribal-state compact or pursuant to “procedures” adopted by the Secretary following a state’s refusal to accept a mediator-selected compact.196 The first two of these requirements closely parallel the conditions precedent to valid class II gaming, while the third is both novel and complex in approach. a. Ordinance requirement. A tribal ordinance authorizing class III gaming activities must contain the same provisions as class II gaming ordinances and be submitted to the Commission chairman for approval.197 Before approving

134 Cong. Rec. S12,643, 12,652 (1988) (remarks of Sen. Evans).

192

The Commission’s regulations comport with a literal construction of the statute. 25 C.F.R. §§ 522.10–522.11 (describing tribal ordinance requirements for individually owned gaming operations). 193

S. Rep. No. 446, supra note 4, at 6, reprinted in 1988 U.S.C.C.A.N. 3076 (emphasis added).

194

Id. at 12, reprinted in 1988 U.S.C.C.A.N. 3082 (emphasis added).

195

25 U.S.C. §§ 2710(d)(1), 2710(d)(7)(B)(vii); see 25 C.F.R. §§ 522, 523.

196

25 U.S.C. § 2710(d)(2)(A); 25 C.F.R. § 522.2. Other than the chairman’s ordinance and management contract approval authority, the Commission has no oversight responsibility for class III gaming, in contrast 197

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such an ordinance, the chairman must consider whether the tribe proposes to conduct class III gaming on Indian lands over which the tribe has, or would have, jurisdiction.198 The chairman is required to approve the ordinance unless he concludes that it was not adopted in accordance with the tribe’s “governing documents”—presumably meaning the tribal constitution or bylaws—or that “the tribal governing body was significantly and unduly influenced in the adoption of such ordinance or resolution by any person identified in [section 2711(e)(1)(D)].”199 The chairman is further directed to publish in the Federal Register the ordinance and his approval order.200 Upon such publication class III gaming may occur to the extent consistent with the terms of an effective tribal-state compact.201 A class III gaming ordinance may be revoked at the tribe’s discretion, and such revocation renders class III gaming illegal when published in the Federal Register by the Commission chairman.202 Existing class III gaming operations, however, may continue for a one-year period after the Federal Register publication if otherwise in conformity with an effective tribal-state compact.203 b. State law condition requirement. Section 2710(d)(1)(B) requires that class III gaming activities be “located in a State that permits such gaming for any purpose by any person, organization, or entity[.]” This requirement is identical to that in section 2710(b)(1)(A) except for deletion of the parenthetical phrase

with its duties as to class II gaming. See 25 U.S.C. §§ 2707(b), 2710(d)(9). The Commission attempted to extend MICS to class III compacted gaming, 25 C.F.R. § 542.4, by relying on its general authority to issue regulations to implement IGRA, 25 U.S.C. § 2706(b)(10), and its general rulemaking power, id. § 2707(b)(1). See 70 Fed. Reg. 23,012 (May 4, 2005). However, the District of Columbia Circuit Court of Appeals recently affirmed the district court’s finding that the Commission lacked authority to regulate class III gaming through such standards. Colo. River Indian Tribe v. NIGC, 383 F. Supp. 2d 123, 136 (D.D.C. 2005) (invalidating a Commission order that assessed a fine against a tribe because of its interference with an MICS audit; relying in part on IGRA’s provisions related to tribal-state compacts and the absence of any express grant of agency authority to issue class III MICS for the proposition that “Congress understood that it would be the Tribes and the States, not the federal government, who would be responsible for the regulation of Class III Indian gaming”), aff’d, 466 F.3d 134, 138 (D.C. Cir. 2006) (further noting, inter alia, S. Rep. No. 446’s reliance on tribal-state compacts as the means for regulating class III gaming). The Commission nonetheless does have available to it quite broad civil enforcement authority, discussed infra at notes 295–303 and accompanying text, encompassing all gaming activity subject to IGRA. See supra notes 66–87 and accompanying text.

198

25 U.S.C. § 2710(d)(2)(B); see 25 C.F.R. §§ 522.6–522.7. Section 2711(e)(1)(D) includes any individual “determined to be a person whose prior activities, criminal record if any, or reputation, habits, and associations pose a threat to the public interest or to the effective regulation and control of gaming, or create or enhance the dangers of unsuitable, unfair, or illegal practices, methods, and activities in the conduct of gaming or the carrying on of the business and financial arrangements incidental thereto[.]” 199

25 U.S.C. § 2710(d)(2)(B); 25 C.F.R. § 522.8.

200

25 U.S.C. § 2710(d)(2)(C); 25 C.F.R. § 522.12. Although an approved class III gaming ordinance is a condition precedent to lawful gaming of that type, the absence of an ordinance has been held not to suspend a state’s obligation to enter into negotiations over a compact. Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1028 (2d Cir. 1990). 201

25 U.S.C. § 2710(d)(2)(D)(i)–(ii); 25 C.F.R. § 522.12(b).

202

25 U.S.C. § 2710(d)(2)(D)(iii)(I); 25 C.F.R. § 522.12(c).

203

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“and such gaming is not otherwise specifically prohibited on Indian lands by Federal law[.]” That modifying phrase is made unnecessary with respect to class III gaming in part because 15 U.S.C. § 1175 elsewhere is made inapplicable to gaming conducted in accordance with an effective tribal-state compact.204 The critical question posed by the provision is the scope of the term “such gaming” in section 2710(d)(1)(B)—i.e., whether it limits the permissible forms of gaming to those authorized under state law or whether, once any type of class III gaming is authorized under state law, all forms of class III gaming are to be included within a tribal-state compact. The two courts of appeals addressing this issue have concluded that only those specific games of chance permitted under state law constitute “such gaming.”205 In Rumsey Indian Rancheria v. Wilson,206 the most extensively reasoned of the appellate decisions, the Ninth Circuit found in its original decision that

25 U.S.C. § 2710(d)(6).

204

Rumsey Indian Rancheria v. Wilson, 41 F.3d 421 (9th Cir. 1994), amended, 64 F.3d 1250, 1258–59 (9th Cir. 1994) and 99 F.3d 321 (9th Cir. 1996); Coeur d’Alene Tribe v. Idaho, 51 F.3d 876, 878 (9th Cir. 1995) (per curiam); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 279 (8th Cir. 1993) (“The ‘such gaming’ language of [IGRA] does not require the state to negotiate with respect to forms of gaming it does not presently permit”); Dewberry v. Kulongoski, 406 F. Supp. 2d 1136, 1151 (D. Or. 2005) (relying on Rumsey for the principle that “courts must determine whether applicable state law permits a specific type of game rather than a broad category of gaming[,]” and rejecting contention that the state constitution’s prohibition against operation of “casinos” precluded any class III gaming given the fact that “Oregon law permits a wide range of gaming activities for various purposes”); contra N. Arapaho Tribe v. Wyoming, 389 F.3d 1308, 1311–12 (10th Cir. 2004), order granting reh’g en banc vacated, 429 F.3d 934, 935 (10th Cir. 2005) (noting panel opinion is nonprecedential and limited to the facts of the case); Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1029–32 (2d Cir. 1990); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480, 486 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992); see also United States v. E.C. Invs., Inc., 77 F.3d 327, 330 (9th Cir. 1996) (IGRA does not incorporate Public Law 280 “public policy test” for purposes of determining whether particular form of class III gaming permitted). Some commentators have suggested that Rumsey and Cheyenne River create a circuit split by running counter to the Second Circuit’s earlier decision in Mashantucket Pequot. Melissa S. Taylor, Comment, Categorical vs. Game-Specific: Adopting the Categorical Approach to Interpreting “Permits Such Gaming,” 43 Tulsa L. Rev. 89, 97–107 (2007); Sohn, supra note 7, at 149; Justin Neel Baucom, Comment, Bringing Down the House: As States Attempt to Curtail Indian Gaming, Have We Forgotten the Foundational Principles of Tribal Sovereignty, 30 Am. Indian L. Rev. 423, 437–40 (2005–2006). Neither the district court nor the court of appeals, however, identified the specific games that the Pequot Tribe wanted to offer at its casino. Sohn, supra note 7, at 150. Although the Court of Appeals of New York has not reached formally the question of the standard to be used to determine which specific games should be the subject of negotiation, it has concluded that, notwithstanding a constitutional prohibition against “commercial gaming,” state law “permits” charitable and lottery gaming and that, therefore, the governor is allowed, if not obligated, to negotiate over class III gaming for commercial purposes. Dalton v. Pataki, 835 N.E.2d 1180, 1189 (N.Y. 2005); see generally Wesley D. Huber, Developments in State Constitutional Law: 2005, Gambling—Vice or Virtue?: The Federal Indian Gaming Regulatory Act Preempts the New York Constitution’s Ban on Commercial Gambling. Dalton v. Pataki, 835 N.E.2d 1180 (N.Y. 2005), 37 Rutgers L.J. 1317, 1335 n.31 (2006) (suggesting “[o]ther jurisdictions’ highest state courts should look to [Dalton] and the majority’s . . . analysis of the interaction of the IGRA and the New York Constitution, coupled with a similar look to other jurisdictions, as the dissent does”; and noting that while Ohio and New York appear to have similar constitutional gambling prohibitions, Ohio courts have interpreted theirs more liberally); Bennett Liebman, New York’s Expanded Gambling Statute Survives Judicial Scrutiny: A Closer Look at Dalton v. Pataki, 9 Gaming L. Rev. 579, 588–91 (2005) (reviewing the Dalton litigation, and suggesting several issues that remain over the scope of permissible class III gaming in New York State under the Court of Appeals’ definition of “lottery”). 205

41 F.3d 421.

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section 2710(d)(1)(B) was clear on its face and requires states “only [to] allow Indian tribes to operate games that others can operate”; i.e., under IGRA states “need not give tribes what others cannot have.”207 The tribe sought rehearing of the original Rumsey decision. In initially denying the petition, the panel added a new footnote208 that explained the difference between its holding and the reasoning in Sycuan Band of Mission Indians v. Roache.209 In Sycuan the court of appeals relied upon the statement in Cabazon210 that California regulated, rather than prohibited, gaming in general and that California thus lacked authority to enforce its law on tribal lands.211 The Rumsey footnote clarified that the statement in Sycuan as to class II gaming was dictum and that the Sycuan court had left open explicitly the question whether the civilregulatory/criminal-prohibitory test applies to class III gaming.212 The footnote accordingly indicated that Cabazon’s civil-regulatory/criminal-prohibitory test applies to class II gaming, while class III gaming is governed by the statutory test—i.e., whether the state authorizes the specific class III gaming activity at issue.213 The court subsequently vacated its order denying rehearing pending the California Supreme Court’s decision in the appeal from the California Court

207 Id. at 427. In Artichoke Joe’s v. Norton, 353 F.3d 712 (9th Cir. 2003), the court dealt with the arguably inverse issue of whether a state may “permit” by state law a monopoly for casino gaming activities exclusively for tribes—i.e., grant tribes what “others cannot have.” In March 2000, California voters approved a constitutional amendment to permit casino gaming exclusively for federally recognized Indian tribes. Non-Indian plaintiffs, engaged in legal but non-casino gaming activities, challenged the tribal-state compacts as violating IGRA and their equal protection rights. The Ninth Circuit examined the phrases “permits such gaming” and “by any person, organization, or entity” in section 2710(d)(1)(B) and concluded that they neither allow nor prohibit expressly a state from giving tribes what it “need not give,” namely, gaming not permitted to nontribal interests. Id. at 722–23. The court also determined that the relevant ambiguity was not resolved by reading the subsection and the statute as a whole. The court then turned to the congressional findings, purpose, and legislative history of IGRA and, as with the other analytical approaches, found no clear support for, or bar against, tribal gaming monopolies under state law. Id. at 725–31. As the tie-breaker, the court relied on the Indian canon of construction that when doubt exists as to the proper interpretation of an ambiguous provision in a federal statute enacted for the benefit of an Indian tribe, the court should adopt the reading favorable to the tribe. Id. at 728–31. Applying this interpretive rule, the court deemed the California compacts consistent with IGRA. Id. at 736. The court additionally rejected an equal protection challenge to the constitutional amendment, citing United States Supreme Court precedent for the proposition that federal regulation of Indian affairs is not based upon impermissible racial classifications but instead is rooted in the unique status of Indians as “a separate people” with their own political institutions. Id. at 733. While the state constitutional provision permitting a tribal casino monopoly was not federal law, the court reasoned that where state law “readjusts” jurisdiction over Indians, that state law is reviewed as if it were federal law. Id. at 734. Using the lax rational relationship test, it upheld the state-created monopoly as justified by both Congress’s trust obligations to the Indians and legitimate state interests. Id. at 740.

64 F.3d at 1258 n.5.

208

54 F.3d 535 (9th Cir. 1994).

209

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

210 211

Sycuan, 54 F.3d at 539.

See id. (“[w]e express no opinion concerning Class III, but at least insofar as the State’s argument is directed at Class II–type gaming, of the sort engaged in by the Tribes in Cabazon Band, the state cannot regulate and prohibit, alternately, game by game and device by device, turning its public policy off and on by minute degrees”). 212

64 F.3d at 1258 n.5.

213

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of Appeals’ decision in Western Telcon, Inc. v. California State Lottery,214 a case involving the question whether the California state lottery could operate a form of banking game. Following the state supreme court decision in Western Telcon,215 the Rumsey court again denied the petition for rehearing and let stand the earlier decision with a minor further amendment.216 c. Tribal-state compact or secretarially prescribed procedures requirement. The Senate report viewed the compact approach as the “best mechanism to assure that the interests of both sovereign entities are met with respect to the regulation of complex gaming enterprises.”217 The report continued: A tribe’s governmental interests include raising revenue to provide governmental services for the benefit of the tribal community and reservation residents, promoting public safety as well as law and order on tribal lands, realizing the objectives of economic self-sufficiency and Indian self­determination and regulating activities of persons within its jurisdictional borders. A State’s governmental interests with respect to class III gaming on Indian lands include the interplay of such gaming with the State’s public policy, safety, law and other interests, as well as the impacts on the State’s regulatory system, including its economic interests in raising revenue for its citizens. It is the Committee’s intent that the compact requirement for class III not be used as a justification by a State for excluding Indian tribes from such gaming or for the protection of other State-licensed gaming enterprises from free market competition with Indian tribes.218

It additionally recognized that the terms of individual compacts “may vary extensively depending on the type of gaming, the location, the previous relationship of the tribe and State, etc.”219

43 Cal. Rptr. 2d 747 (Ct. App. 1995), rev’d, 917 P.2d 651 (Cal. 1996).

214

Western Telcon, Inc. v. California State Lottery, 917 P.2d 651 (Cal. 1996). The California Supreme Court invalidated the then-operating California Keno game as an unlawful banking game, holding that, as a matter of state law, the state lottery could operate only lottery games and that lottery games and banking games are mutually exclusive under statutory law and well-understood definitions. Id. at 657. The court expressly declined to reach the question of whether California Keno was a prohibited slot machine or whether California permits its state-operated lottery to be dispensed or played on a nonbanking gambling device that otherwise might fall within the definition of a slot machine. Id. at 662. The court subsequently did reach the question of whether casino-like gaming is valid under the then-existing California Constitution. Hotel Employees & Rest. Employees Int’l Union v. Davis, 981 P.2d 990, 1009 (Cal. 1999) (holding that “IGRA legalizes only gaming conducted pursuant to a compact validly entered into by both the state and the tribe,” and invalidating a voter-enacted legislative initiative that purported to allow “Nevada style” casino gaming on Indian lands despite a state constitutional prohibition against such activities). 215

216 Rumsey Indian Rancheria v. Wilson, 99 F.3d 321, 322 (9th Cir. 1996); see generally William E. Horwitz, Note, Scope of Gaming Under the Indian Gaming Regulatory Act of 1988 After Rumsey v. Wilson: White Buffalo or Brown Cow?, 14 Cardozo Arts & Ent. L.J. 153, 174–86 (1996) (summarizing decisional authority).

S. Rep. No. 446, supra note 4, at 13, reprinted in 1988 U.S.C.C.A.N. 3083.

217

Id.

218

Id. at 14, reprinted in 1988 U.S.C.C.A.N. 3084.

219

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To accommodate the varying interests or circumstances of tribes and states, IGRA made the compacting process wholly voluntary.220 It nonetheless simultaneously established a judicial procedure through which the good faith of a state’s negotiating tactics could be challenged. While even this judicial process cannot result in a state being required to consent to a compact it opposes, Congress empowered the Secretary to adopt “procedures” pursuant to which class III gaming may be conducted even in the absence of a compact. The Fifth Circuit Court of Appeals subsequently held the Secretary lacked authority to impose such procedures on states absent a judicial determination of bad faith,221 further strengthening states’ rights under IGRA. i. Authority to enter into compacts. A threshold issue, which has arisen thus far only in connection with the state representatives, is whether the person negotiating on behalf of a state or tribe has authority to do so and to enter into a compact.222 State or tribal law presumably controls the extent of such

220 Notwithstanding the nominally voluntary nature of the compacting process, Tenth Amendment issues have been raised in litigation and discussed in commentary. See Ponca Tribe v. Oklahoma, 37 F.3d 1422, 1434 (10th Cir. 1994) (rejecting Tenth Amendment challenge), vacated 577 U.S. 1129 (1996); see generally Neil Scott Cohen, Note, In What Often Appears to Be a Crapshoot Legislative Process, Congress Throws Snake Eyes When It Enacts the Indian Gaming Regulatory Act, 29 Hofstra L. Rev. 277, 297 (2000) (“[T]he Act maintains that a ‘State shall negotiate,’ not that a state shall ‘consider’ negotiating, or that a state shall have the ‘prerogative’ to decline the offer to negotiate. Simply, the state must take up its red pens and pencils, its yellow legal pads, its costly lawyers, and its precious time, walk over to the bargaining table, and labor to come to an agreeable resolution”). Indeed, IGRA’s requirement that states negotiate in good faith does not mean the parties must reach an agreement, or that failure to agree necessarily constitutes bad faith. See Texas v. United States, 497 F.3d 491, 511 (5th Cir. 2007) (“IGRA . . . does not guarantee an Indian tribe the right to conduct Class III gaming”).

Id. at 501–10.

221

Compare Dewberry v. Kulongoski, 406 F. Supp. 2d 1136, 1154–56 (D. Or. 2005) (statute authorizing state agency to enter into agreements with Indian tribes granted power to governor to negotiate and sign class III gaming compact); Willis v. Fordice, 850 F. Supp. 523, 532–33 (S.D. Miss. 1994) (finding authority for governor to enter into compact), aff’d, 55 F.3d 633 (11th Cir. 1995); Langley v. Edwards, 872 F. Supp. 1531, 1535–36 (W.D. La. 1995) (same); Taxpayers of Mich. Against Casinos v. State, 732 N.W.2d 487, 492–94 (Mich. 2007) (rejecting facial and as-applied separation of powers challenge to legislative approval of provision that authorized governor to enter into compact amendments); Panzer v. Doyle, 680 N.W.2d 666, 670 (Wis. 2004) (governor had power to enter into gaming compacts by virtue of express statutory authorization, but certain provisions in compacts were beyond the statutory delegation authority), overruled in part, Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408, 416, 442–43 (Wis. 2006) (compact provision contemplating amendments authorized governor to agree to gaming otherwise prohibited under later-enacted constitutional provision); and Huron Group, Inc. v. Pataki, 785 N.Y.S.2d 827, 852–56 (Sup. Ct. 2004) (although governor had statutory authority to execute compacts with tribes, an “alternate site” provision was beyond such authorization, and the provision therefore was severed), aff’d, 803 N.Y.S.2d 865 (App. Div. 2005), appeal dismissed as moot, 845 N.E.2d 1270 (N.Y. 2006), with Saratoga County Chamber of Commerce v. Pataki, 798 N.E.2d 1047, 1059–61 (N.Y. 2003) (finding no authority for governor to enter into compact binding on state); Narragansett Indian Tribe v. Rhode Island, 667 A.2d 280, 282 (R.I. 1995) (same); State ex rel. Clark v. Johnson, 904 P.2d 11, 17 (N.M. 1995) (same); and State ex rel. Stephan v. Finney, 836 P.2d 1169, 1178–84 (Kan. 1992) (same); cf. Sears v. Hull, 961 P.2d 1013, 1020 (Ariz. 1998) (citizens lack standing to challenge governor’s authority to enter into compact); see also Dalton v. Pataki, 835 N.E.2d 1180, 1191 (N.Y. 2005) (legislature subsequently authorized the New York governor to execute the tribal‑state compacts and specified that such agreements would be deemed ratified legislatively upon the governor’s certification that the compacts contained certain provisions); see generally Kathryn R.L. Rand, Caught in the Middle: How State Politics, State Law, and State Courts Constrain Tribal Influence Over Indian Gaming, 90 Marq. L. Rev. 971 (2007) (discussing the importance of 222

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authority. Despite the controlling nature of nonfederal law as to such authority issues, litigation over them is not limited to nonfederal forums.223 So, for example, at least two disputes have begun in state court, where a definitive construction of state law was secured, and then were taken into federal court by a tribe dissatisfied with the state court determination.224 The most detailed treatment of this phenomenon is Pueblo of Santa Ana v. Kelly,225 where the Tenth Circuit was asked to revisit the New Mexico Supreme Court’s decision in State ex rel. Clark v. Johnson.226 The court of appeals held that IGRA imposes two compact-related requirements before class III gaming may be offered: first, that the compact be entered into validly under the respective state’s and tribe’s internal laws, and, second, that it receive appropriate secretarial approval.227 Rather than resolving the first question on the ground that the New Mexico Supreme Court’s construction of state law was conclusive, however, the court of appeals held that it agreed with the state court’s construction of New Mexico law.228 Various states have adopted legislation clarifying the authority of state officials to enter into state-tribal compacts, thereby minimizing the possibility of litigation over the authority question.229

state law, including gubernatorial authority, in the compacting process). Resolution of challenges to gubernatorial authority to enter into compacts also may encounter jurisdictional or other difficulties unrelated to the merits. E.g., Dewberry, 406 F. Supp. 2d at 1143, 1146–50 (suit by citizens attacking compact as outside governor’s authority barred by lack of standing—since only a “generalized grievance” was involved despite claim that plaintiffs who lived near the proposed casino would experience increased traffic with accompanying safety hazards and pollution—and by the status of the affected tribe as a necessary and indispensable party under Fed. R. Civ. P. 19). 223 See generally Rand, supra note 222, at 1000 (“IGRA’s tribal-state compact requirement, in its reference to the ‘State,’ presumably left it to state political branches to decide how to negotiate and approve compacts. The sometimes rancorous state politics over Indian gaming have resulted in litigation—not between a tribe and state in federal court, as IGRA authorized and Congress envisioned, but between state political actors in state court”). 224 Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997); see also Kickapoo Tribe v. Babbitt, 43 F.3d 1491, (D.C. Cir. 1995) (because state was indispensable party, complaint by tribe challenging Secretary’s refusal to approve compact dismissed without prejudice).

104 F.3d 1546 (10th Cir. 1997).

225

904 P.2d 11 (N.M. 1995).

226

104 F.3d at 1553.

227

Id. at 1559.

228

E.g., Ariz. Rev. Stat. Ann. §§ 5-601 to 604 (authorizing governor to negotiate, Arizona Racing Department to implement, and tribal-state compact fund to provide financing); Cal. Const. art. IV, § 19(f) (authorizing governor to negotiate and execute compacts, subject to ratification by the legislature) and Cal. Gov’t Code § 12012.25(d), (e) (same); Idaho Code §§ 67-429A, 67-429C, 67-7409 (authorizing, respectively, governor to negotiate compacts but allowing for legislative ratification of compacts not negotiated by the governor, and allowing tribe to voluntarily amend compact to incorporate specific terms without further state action; state lottery director responsible for monitoring class III gaming); Iowa Code Ann. § 10A.104(10) (director of Department of Inspections and Appeals to negotiate and implement compacts); La. Rev. Stat. Ann. § 46:2303 (authorizing governor to enter into and sign compacts); Minn. Stat. Ann. § 3.9221 (authorizing governor to enter into compacts, designating attorney general as governor’s legal counsel in compact negotiations, and requiring governor to appoint legislators if utilizing designees in negotiations); S.D. Codified Laws §§ 1-4-25, 229

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ii. Compact provisions and approval. Because the particular circumstances of the negotiating parties will dictate the precise terms of any compact, IGRA specifies no provisions that must be included. It nonetheless does identify general areas that may be addressed in a compact:

(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;



(ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations;



(iii) the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity;



(iv) taxation by the Indian tribe of such activity in amounts comparable to amounts assessed by the State for comparable activities;



(v) remedies for breach of contract;



(vi) standards for the operation of such activity and maintenance of the gaming facility, including licensing; and



(vii) any other subjects that are directly related to the operation of gaming activities.230

These general areas do not constitute the full range of permissible topics for negotiation, but their breadth is such that they will likely encompass most, if not all, matters that the parties may wish to discuss, such as, inter alia, revenue

42-7B-11 (respectively, requiring governor to hold hearings prior to entering into compacts with tribes, and authorizing gaming commission to implement compacts); Wash. Rev. Code Ann. § 43.06.010(14) (authorizing governor to execute compacts negotiated by gambling commission); Wis. Stat. Ann. § 14.035 (authorizing governor to enter into compacts). The Arizona statute’s validity has been the subject of substantial litigation. Compare Am. Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012, 1069–72 (D. Ariz. 2001) (invalidating Ariz. Rev. Stat. Ann. § 5-601, which authorizes governor to enter into gaming negotiations and to execute resulting compacts, as inconsistent with state constitution’s delegation-of-legislative-authority limitations), vacated on other grounds, 305 F.3d 1015 (9th Cir. 2002), with Salt River Pima-Maricopa Indian Cmty. v. Hull, 945 P.2d 818, 825 (Ariz. 1997) (rejecting federal law and state constitutional challenge to Ariz. Rev. Stat. Ann. § 5-601.01, since repealed, which “instructed [the governor] to give those tribes without compacts the same terms he had given the other tribes”); see also Taxpayers of Mich. Against Casinos v. State, 685 N.W.2d 221, 232 (Mich. 2004) (legislature’s concurrent resolution was an appropriate method to approve tribal-state compacts, given the legislature’s power to bind the state to a contract with a tribe), on remand, 708 N.W.2d 115, 124 (Mich. Ct. App. 2005) (notwithstanding legislative approval of the compacts themselves, compact provision that authorized amendments was invalid under separation-of-powers principles, since “no party has identified any statutory or constitutional authorization for the Governor to enter into compacts or amendments to compacts that are not subject to legislative approval”), aff’d in part and rev’d in part, 732 N.W.2d 487 (Mich. 2007); Panzer v. Doyle, 680 N.W.2d 666, 686–89 (Wis. 2004) (Wisconsin statute authorizing governor to enter into gaming compacts was not unconstitutional delegation of legislative power), overruled on other grounds, Dairyland Greyhound Park v. Doyle, 719 N.W.2d 408, 416, 442–43 (Wis. 2006); cf. Worthington v. City Council, 31 Cal. Rptr. 3d 59, 67 (Ct. App. 2005) (agreement between tribe and city related to mitigating potential effects from casino operation did not constitute legislative action subject to referendum process). 25 U.S.C. § 2710(d)(3)(C)(i)–(vii).

230

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sharing and employment conditions.231 The statute additionally makes clear that the parties may use the compact to allocate regulatory and adjudicatory jurisdiction as they deem appropriate.232 It is thus permissible to vest in the state civil jurisdiction over nonmembers with respect to gaming activities on non-member-owned lands and to vest such jurisdiction within the tribe only with respect to gaming activities on tribally owned or trust lands.233 Similarly, agreement may be had on a state governmental entity performing background checks, the tribal gaming commission to issue gaming licenses, for auditing authority, for inspection regimens, for MICS, or for remedial devices, such as insurance, to protect casino customers in the event of injury caused by employee negligence or other tortious conduct.234 There is, as well, no prohibition

231 See In re Indian Gaming Related Cases, 331 F.3d 1094, 1110–17 (9th Cir. 2003) (§ 2710(d)(3)(C)(vii) authorizes negotiations over revenue and regulatory cost-sharing provisions and labor protections). The Acting Assistant Secretary of Indian Affairs recently testified before Congress that the Secretary has only approved revenue-sharing agreements “that call for tribal payments when the state has agreed to provide valuable economic benefit of what the Department has termed ‘substantial exclusivity’ for Indian gaming in exchange for the payment.” Indian Gaming Regulatory Act: Hearing Before the S. Comm. on Indian Affairs, 108th Cong. 2–3 (2003) (statement of Aurene M. Martin, Acting Asst. Secretary, Indian Affairs). Thus, the Department’s current position is “that if the payments are made in exchange for the grant of a valuable economic benefit that the governor has discretion to provide,” the payments are not a tax. Id.; see generally Matthew L.M. Fletcher, Bringing Balance to Indian Gaming, 44 Harv. J. on Legis. 39, 43 (2007) (“[t]he critical weakness of [revenue sharing] agreements is their questionable validity in the light of the IGRA’s prohibition on state taxation of Indian gaming revenues”); Katie Eidson, Note, Will States Continue to Provide Exclusivity in Tribal Gaming Compacts or Will Tribes Bust on the Hand of the State in Order to Expand Indian Gaming, 29 Am. Indian L. Rev. 319, 338–39 (2004–2005) (discussing recent revenue-sharing legislation in Oklahoma and comparable statutes in other states, and observing that “[t]o date, the Department [of the Interior] continues to assert that substantial exclusivity of Class III gaming allows for the revenue sharing among a tribe and its local state”); Kelly B. Kramer, Current Issues in Indian Gaming: Casino Lands and Gaming Compacts, 7 Gaming L. Rev. 329, 333 (2003) (“[t]he surest—perhaps only—way states may obtain federal approval of revenue sharing provisions is to grant tribes exclusive gaming rights”); Kevin K. Washburn, Recurring Problems in Indian Gaming, 1 Wyo. L. Rev. 427, 440 (2001) (discussing Secretary of the Interior’s policy with respect to approval of compacts with revenue-sharing provisions; “[t]he Secretary has generally taken the position that such compacts are lawful only if the tribe obtains separate consideration for revenue sharing” such as “an exclusivity agreement giving tribes a monopoly over gaming”). 232 Compacts ordinarily should address the issue of whether regulatory jurisdiction allocations are intended to be exclusive, since, under § 2710(d)(5), a tribe retains the right “to regulate class III gaming on its Indian lands concurrently with the State, except to the extent such regulation is inconsistent with, or less stringent than, the State laws and regulations made applicable by any Tribal-State compact[.]” 233 IGRA’s principal criminal sanction component, 18 U.S.C. § 1166, recognizes that a tribe may consent to criminal jurisdiction over class III gaming activities being allocated to a state in a compact, an allocation that deprives the United States of its exclusive jurisdiction to prosecute class III violations. Id. § 1166(d). 234 See Ledoux v. Grand Casino–Couishatta, 954 So. 2d 902, 905–06 (La. Ct. App. 2007) (state court properly exercised jurisdiction over casino patrons’ claims that they were wrongly denied slot machine payouts where tribe waived sovereign immunity from suit by agreeing to compact terms that included a dispute resolution process allowing patrons to “seek their remedy through a legal action or proceeding”); Doe ex rel. J.H. v. Santa Clara Pueblo, 154 P.3d 644, 653–56 (N.M. 2007) (recognizing Congress’s intent to authorize “jurisdiction shifting” arrangements in gaming compacts for personal injury suits against tribes that are “directly related to the operation of gaming activities,” 25 U.S.C. § 2710(d)(3)(C)(vii)); Hatcher v. Harrah’s NC Casino Co., 610 S.E.2d 210, 214 (N.C. Ct. App. 2005) (state adjudicatory jurisdiction precluded with respect to a private civil claim relating to alleged gaming fraud at a casino that was subject to a tribalstate compact, since the compact permitted the exercise of state court jurisdiction only when it related to off-casino gambling or involved criminal or regulatory enforcement against a non-Indian in the casino).

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against compacts addressing class II gaming regulation, although such regulation would not appear a matter over which a state is required to negotiate. While the general areas listed in section 2710(d)(3)(C) are intended only to suggest issues that may be discussed, the third and fourth items suggest by negative inference that states may not seek to include provisions that permit application of their gambling taxes or fees to class III gaming, except to the extent those taxes or fees equal the cost of state regulatory functions performed pursuant to the compact. This inference is reinforced by section 2710(d)(4), which disclaims any intent to confer “upon a State or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an Indian tribe or upon any other person or entity authorized by an Indian tribe to engage in a class III activity,” and prohibits the state from refusing to enter into negotiations because of the absence of such authority. An agreed-upon compact must be submitted to the Secretary for approval and may be disapproved “only if such compact violates

(i) any provision of [IGRA],



(ii) any other provision of Federal law that does not relate to jurisdiction over gaming on Indian lands, or



(iii) the trust obligations of the United States to Indians.”235

The Secretary’s failure to disapprove the compact within forty-five days of submission is deemed as approval “to the extent the compact is consistent with the provisions of [IGRA].”236 Notice of all approved or not timely disapproved compacts must be published in the Federal Register, and they become effective upon such publication.237 iii. Compact enforcement. After the Secretary publishes notice of compact approval in the Federal Register, a state or tribe may initiate civil actions in federal district court to enjoin any class III gaming conducted in violation of a

25 U.S.C. § 2710(d)(8).

235

Id. § 2710(d)(8)(C). The extent to which this provision is enforceable is problematic in view of the Eleventh Amendment. In Pueblo of Sandia v. Babbitt, 47 F. Supp. 2d 49 (D.D.C. 1999), the tribe sought review of the Secretary’s “no action” approval of a compact that was signed by the tribe following a “take it or leave it” offer from the New Mexico legislature. The compact contained no waiver of a state’s sovereign immunity and imposed a revenue-sharing and regulatory-fee scheme on the tribe that placed a tax on each slot machine. Id. at 50–51. The tribe contended that the compact was approved only to the extent it was consistent with IGRA. The district court dismissed the action under Fed. R. Civ. P. 19(b), holding that New Mexico was an indispensable party and leaving the tribe without a remedy. Id. at 56–57; cf. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 502 (7th Cir. 2006) (dismissing on subject matter jurisdiction grounds an Administrative Procedure Act judicial review challenge to the Secretary’s allowing a compact to become effective through nonaction because of the tribe’s failure to respond to the government’s argument “that the IGRA commits to [her] the decision whether to disapprove a compact,” but observing that “[t]here may be convincing counterarguments to the Secretary’s position”). 236

25 U.S.C. § 2710(d)(3)(B), 2710(d)(8)(D).

237

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compact.238 The precise scope of the jurisdictional grant in § 2710(d)(7)(A)(ii), however, is unclear. Some may argue that claims alleging breach of a compact can be maintained only in state or tribal court—or before a nonjudicial forum agreed upon by the parties in the compact itself—because compacts constitute nonfederal contracts. A divided Ninth Circuit panel, however, has found federal question jurisdiction over a breach-of-compact claim, at least where Eleventh Amendment immunity had been waived.239 The right of a state to seek injunctive relief under section 2710(d)(7)(A)(ii) against gaming that violated a compact also has been recognized.240 Some claimants, however, may be left without a remedy if the tribe or state is determined to be a required party.241 Some courts have construed compacts to determine whether application of

Id. § 2710(d)(7)(A)(ii).

238

Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1055–56 (9th Cir. 1997) (finding federal question jurisdiction because the compact is a “creation of federal law”). Another Ninth Circuit panel reached the merits of a dispute over the meaning of a compact’s terms in a suit initiated by a tribe without addressing whether federal question jurisdiction attached or the Eleventh Amendment precluded the tribe’s compact-based claim. Crow Tribe v. Racicot, 87 F.3d 1039 (9th Cir. 1996). 239

240 New York v. Oneida Indian Nation, 90 F.3d 58, 60 n.1 (2d Cir. 1996); Compare Idaho v. Shoshone-Bannock Tribes, 465 F.3d 1095, 1098–1100 (9th Cir. 2006) (federal question jurisdiction exists to determine whether compact language requires tribe to renegotiate compact to arrive at amendment adding video machines as permitted form of class III gaming, characterizing compact as a contract governed by federal law, and authorizing use of state contract law interpretation principles where there is no difference from federal contract law), with Wisconsin v. Ho-Chunk Nation, 463 F.3d 655, 658–62 (7th Cir. 2006) (federal question jurisdiction did not exist to enforce a compact’s arbitration clause), on remand, 478 F. Supp. 2d 1093, 1096–97 (W.D. Wis. 2007) (federal question jurisdiction over amended complaint’s declaratory and injunctive relief claims existed under 25 U.S.C. § 2710(d)(7)(A)(ii) since tribe’s failure to make allegedly required payments rendered its gaming activities noncompliant with the compact; “[t]he likely Congressional intent in enacting the statute was to provide a remedy for compact violations which limits impingement on tribal sovereignty by stopping short of statutorily waiving sovereign immunity against a suit for money damages or to compel specific performance” but which allows a state “to sue to enjoin the authorized gaming in the event the Tribe fails to comply with the requirements of the compact”), aff’d in part, vacated in part, 512 F.3d 921, 934 (7th Cir. 2008) (“federal jurisdiction under 25 U.S.C. § 2710(d)(7)(A)(ii) is limited to alleged compact violations relating to the seven items listed in 25 U.S.C. § 2710(d)(3)(C)(i–vii)” as permissible matters for compact negotiations); cf. Sault Ste. Marie Tribe v. Granholm, 475 F.3d 805, 808 (6th Cir. 2007) (resolving dispute over meaning of the term “wager” where tribal-state compact had been “memorialized” in consent decree over which district court retained continuing jurisdiction). 241 Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022–27 (9th Cir. 2002); Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295, 317 (W.D.N.Y. 2007) (finding neither tribe nor state indispensable in action challenging Commission chairman’s approval of tribal gaming ordinance), amended on recons., No. 06-CV-0001S, 2007 WL 1200473, at *3–*4 (W.D.N.Y. Apr. 20, 2007); Dewberry v. Kulongoski, 406 F. Supp. 1136, 1143, 1146–50 (D. Or. 2005) (citizens’ suit attacking compact as outside governor’s authority barred because affected tribe was necessary and indispensable party); Pueblo of Sandia, 47 F. Supp. 2d at 56–57 (dismissing tribal action against Secretary of the Interior because state was necessary and indispensable party); see also Cachil Dehe Band of Wintun Indians v. California, 536 F.3d 1034, (9th Cir. 2008) (all tribes that executed virtually identical bilateral gaming compacts with the state are not required to resolve one signatory tribe’s challenge to, inter alia, the state’s computation of the statewide maximum number of slot machine licenses available under the compact, or the state’s assumption of authority to administer unilaterally the licensing of gaming devices to all signatory tribes).

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state law is foreclosed for purposes of resolving controversies related to matters other than the legality of the underlying tribal gaming.242 IGRA does not address the status of a compact if state law is subsequently amended to prohibit some or all of the class III gaming conducted under the compact. Literal application of the state law requirement in section 2710(d)(1)(B) would mean that, notwithstanding the compact, the affected gaming would become unlawful.243 Prosecution under 18 U.S.C. § 1166, however, may not be available since that provision excludes from the term “gambling” gaming conducted pursuant to an effective tribal-state compact.244 To avoid confusion, the effect of state law changes should be specified in the compact. iv. Good-faith litigation. The Senate report remarked that finding an incentive for states to negotiate concerning class III gaming compacts “had proved elusive.”245 IGRA attempted to create such an incentive by requiring them to negotiate in good faith upon receipt of a request from a tribe to enter into a compact.246 A tribe is further authorized to initiate suit in federal district court, no sooner than 180 days following its request, alleging that a state has failed to

242 Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481, 484–85 (9th Cir. 1998) (whether certain tribal gaming–related information could be disclosed pursuant to state public records law); Cates v. California Gambling Control Comm’n, 65 Cal. Rptr. 3d 513, 518–21 (Ct. App. 2007) (reversing summary judgment against taxpayer in action seeking to compel state defendants to discharge duty to collect money owed state from various Indian tribes pursuant to gaming compact terms; taxpayer was not entitled to tribes’ specific financial information); Confederated Tribes of Chehalis Reserv. v. Johnson, 958 P.2d 260, 267–69 (Wash. 1998) (disclosure of tribal gaming–related information pursuant to state law); CBA Credit Servs. v. Azar, 551 N.W.2d 787, 790 (N.D. 1996) (refusing to enforce claim assigned to collection agency by tribal casino for gaming debt where extension of credit by casino to debtor was illegal under state law and not sanctioned under compact). 243 But see Catawba Indian Tribe v. State, 642 S.E.2d 751, 754–55 (S.C. 2007) (provision in federal statute implementing a gaming agreement between tribe and state that permitted tribe to operate video poker “to the same extent that the devices are authorized by state law” bound the tribe to any subsequent state legislative enactments affecting video poker devices, including a statewide ban on the devices); Dairyland Greyhound Park v. Doyle, 719 N.W.2d 408, 439 (Wis. 2006) (compact provisions authorizing amendments allowed the governor to agree to types of gaming proscribed under a constitutional amendment adopted subsequent to the compacts’ negotiation; “[t]hese provisions create a contractual obligation to allow new games should the parties agree to amend the scope of gaming”—a contractual obligation deemed by the court to be binding, notwithstanding the constitutional amendment, by virtue of federal and state prohibitions against impairment of contracts); see generally Rand, supra note 222, at 1000 (reviewing Dairyland Greyhound’s legislative and judicial background, and arguing that the Wisconsin Supreme Court’s decisions “viewed the issue [of the compact amendments’ validity] as one of state law, appropriately decided by the state court, regardless of the tribes’ participation in the cases and their impact on tribal interests”); Kyle S. Conway, Note, A Tale of Two Sovereigns: The Implications of Dairyland Greyhound Park, Inc. v. Doyle on Tribal and State Self-Government, 2007 Wis. L. Rev. 1313, 1339, 1346 (2007) (arguing that Dairyland Greyhound’s Contract Clause analysis not only “set dangerous precedent infringing on the sovereign legislative power of the State” but also failed to recognize that the agreements should have been protected by “the unique nature of tribal sovereignty [that] renders the gaming compacts more enforceable than private contracts”).

18 U.S.C. § 1166(c)(2).

244

S. Rep. No. 446, supra note 4, at 13, reprinted in 1988 U.S.C.C.A.N. 3083.

245

25 U.S.C. § 2710(d)(3)(A).

246

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negotiate in good faith.247 This type of litigation promised to present difficult jurisdictional and substantive questions. That promise has been fulfilled. Much of the initial good-faith litigation under IGRA centered on the Eleventh Amendment to the United States Constitution. The issue involved whether the authorization for tribes to sue states under section 2710(d)(7)(A)(i) constitutes a valid abrogation of the states’ Eleventh Amendment immunity. The states’ claim of immunity was resolved inconsistently by federal courts of appeals.248 This division of authority was settled by the Supreme Court in Seminole Tribe v. Florida.249 The Court, speaking through a five-member majority, first rejected Florida’s position that the plurality opinion in Pennsylvania v. Union Gas Co.250 was inapposite because enactment of IGRA was premised on congressional power under the Indian Commerce Clause. In Union Gas the Supreme Court held that the Interstate Commerce Clause provided Congress authority to abrogate the states’ Eleventh Amendment immunity. In addressing the scope of Congress’s authority under the Indian Commerce Clause, the Court said: Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes.251

However, the Court concluded that Union Gas should be overruled because it “reached a result without an expressed rationale agreed upon by a majority of the Court”;252 “deviated sharply from our established federalism jurisprudence” since “[n]ever before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment”;253 and “has, since its issuance, been of questionable precedential value, largely

Id. § 2710(d)(7)(B)(i).

247

Compare Ponca Tribe v. Oklahoma, 37 F.3d 1422, 1426, 1432 (10th Cir. 1994) (no Eleventh Amendment immunity), vacated, 517 U.S. 1129 (1996); Spokane Tribe v. Washington, 28 F.3d 991, 998 (9th Cir. 1994), vacated, 517 U.S. 1129 (1996); and Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 280–81 (8th Cir. 1993), with Seminole Tribe v. Florida, 11 F.3d 1016, 1021–29 (11th Cir. 1994) (Eleventh Amendment immunity), aff’d in relevant part, 517 U.S. 44 (1996). 248

517 U.S. 44 (1996).

249

491 U.S. 1 (1989).

250

517 U.S. at 62.

251

Id. at 65.

252

Id.

253

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because a majority of the Court expressly disagreed with the rationale of the plurality.”254 The Court then held that “[t]he Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”255 The Court also rejected the tribe’s argument that the Ex parte Young doc256 trine, which creates an exception to a state’s Eleventh Amendment immunity, was a basis for prospective relief against individual state officers’ refusal to negotiate under IGRA, pointing to the “carefully crafted and intricate remedial scheme set forth in section 2710(d)(7)”257 and reasoning that, “where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should be hesitant before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young.”258 The Court looked to “the fact that Congress chose to impose upon a State a liability which is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young” and determined that “Congress had no wish to create the latter under section 2710(d)(3).”259 While the full effect of Seminole Tribe on negotiations between states and tribes remains to be seen, certain immediate consequences are apparent. First, in the decision’s wake, the Secretary promulgated regulations establishing a procedure by which class III gaming could be approved administratively when “(a) [a] State and Indian tribe are unable to voluntarily agree to a compact; and (b) [t]he State has asserted its immunity from suit brought by an Indian tribe under 25 U.S.C. § 2710(d)(7)(B).”260 The Secretary did not issue any final procedures for tribal gaming activities under the rule. Nonconsenting states have subsequently challenged the Secretary’s authority to unilaterally impose class III gaming procedures absent a judicial finding that the state failed to negotiate in good faith.261 One district court has

Id. at 66.

254

Id. at 72–73.

255

209 U.S. 123 (1908).

256

517 U.S. at 73–74.

257

Id. at 74; cf. Confederated Tribes and Bands of Yakama Indian Nation v. Locke, 176 F.3d 467 (9th Cir. 1999) (where tribe sought prospective relief against governor to enjoin on-reservation operation of state lottery, claim was barred by Ex parte Young since governor had no responsibility for enforcing the challenged law and thus served merely as representative of the state). 258

517 U.S. at 75–76.

259

25 C.F.R. § 291.1. On May 9, 1996, the Senate Committee on Indian Affairs held hearings on the question of whether the Secretary should adopt procedures for the prescription of class III gaming in the event a state raises an Eleventh Amendment jurisdictional bar to a suit brought against it under 25 U.S.C. § 2710(d)(7). On the following day, the Secretary issued a Request for Comments to his Advanced Notice of Proposed Rulemaking, 61 Fed. Reg. 21,394, 25,604 (May 10, 1996), as to the advisability of issuing a rule allowing for such procedures, eliciting responses from tribes and states. 260

261 The Supreme Court noted the issue in Seminole Tribe but expressed no opinion on it. 517 U.S. at 76 n.18. See generally Nicholas S. Goldin, Note, Casting a New Light on Tribal Casino Gaming: Why Congress

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upheld the Secretary’s authority262 but in Texas v. United States263 a divided panel of the Fifth Circuit Court of Appeals held the secretarial procedures to be invalid, noting that Congress did not explicitly authorize the procedures and IGRA’s “judicially-managed scheme of good-faith litigation, followed by negotiation, then mediation, allows the Secretary to step in only at the end of the process, and then only to adopt procedures based upon the mediator’s proposed compact.”264 The second noticeable consequence of Seminole Tribe is that it has made some federal courts reluctant to enjoin the operation of uncompacted class III gaming.265 This reluctance is compounded by the limited nature of remedies arguably available to states with respect to such gaming activity. Most notably, the Eleventh Circuit Court of Appeals has ruled that, absent a tribe’s voluntary

Should Curtail the Scope of High Stakes Indian Gaming, 84 Cornell L. Rev. 798, 843 (1999) (“if the Secretary of the Interior directly imposes tribal casino gaming on a state, then this unelected federal official effectively assumes a massive unilateral power that Congress did not intend to delegate”); Joe Laxague, Note, Indian Gaming and Tribal-State Negotiations: Who Should Decide the Issue of Bad Faith?, 25 J. Legis. 77, 83–90 (1999) (arguing that the regulations are ultra vires and contrary to the balance of interests achieved by Congress in IGRA). 262 Santee Sioux Nation v. Norton, No. 8:05CV147, 2006 WL 2792734, at *4–*6 (D. Neb. Sept. 26, 2006) (Seminole Tribe created a “gap” in IGRA, and “[w]here a gap in a statute exists because of an intervening case, the resolution by an agency will be sustained as long as it is supported under the statute” and constitutes “a reasonable interpretation of [the statute]”). 263 497 F.3d 491, 501–03 (5th Cir. 2007) (majority opinion). The majority found IGRA neither ambiguous nor containing an implicit grant of rulemaking authority to fill in the enforcement void created by Seminole Tribe. Id. at 503–06. The court additionally found the regulations—even if issued pursuant to valid delegation of authority—unreasonable as, inter alia, inconsistent with Congress’s intent to make compacts “[t]he lynchpin of IGRA’s balancing of interests” and “incoherent” to allow the Secretary to “play the role of tribal trustee and objective arbiter of both parties’ interests simultaneously.” Id. at 507–08. The court also rejected the contention that more general statutes—25 U.S.C. §§ 2 and 9—vested the requisite rulemaking authority in the Secretary. Id. at 509–10; see generally Michael E. Wheeler, One White Buffalo, Why Not Three?: Native American Gaming in the Lone Star State, 26 Miss. C. L. Rev. 147, 157–58 (2006–2007) (discussing generally the status of Indian gaming in Texas, including the secretarial procedure issue). 264 Id. at 503. Other courts have given countenance to the secretarial procedures in dicta. See United States v. Spokane Tribe, 139 F.3d 1297, 1302 (9th Cir. 1998) (noting secretarial procedures to be “a lot closer to Congress’s intent than mechanically enforcing IGRA against tribes even when states refuse to negotiate. Whether or not such rulemaking would bring IGRA’s operation close enough to Congress’s intent to save the statute depends on the as yet undisclosed details of the proposed regulations”); Seminole Tribe v. Florida, 11 F.3d 1016, 1029 (11th Cir. 1994) (holding that upon dismissal for lack of jurisdiction when a state does not consent to waive its Eleventh Amendment immunity, the tribe may go directly to the Secretary for the prescription of class III gaming procedures under § 2710(d)(7)(B)(vii) and bypass the requirements for the 60-day order and submission to a mediator that otherwise appear to be statutory prerequisites for secretarial involvement), aff’d on other grounds, 517 U.S. 44 (1996). 265 E.g., Spokane Tribe, 139 F.3d at 1299 (characterizing Seminole Tribe as an “emasculation” of IGRA, the court reasoned that it “seems highly unlikely that Congress would have passed one part without the other, leaving the tribes essentially powerless”); United States v. Santa Ynez Band of Chumash Indians, 983 F. Supp. 1317, 1320 (C.D. Cal. 1997) (tribes must be permitted to prove, in light of Seminole Tribe, nonparty state’s bad faith in defense of federal civil action to enjoin conduct of uncompacted class III gaming); compare Chemehuevi Indian Tribe v. Wilson, 987 F. Supp. 804, 808 (N.D. Cal. 1997) (United States has obligation to sue state for purpose of vindicating tribes’ rights under IGRA to negotiate a compact), with United States v. 1020 Electronic Gambling Machines, 38 F. Supp. 2d 1213, 1217 (E.D. Wash. 1998) (declining to follow decision in Chemehuevi).

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waiver of sovereign immunity, uncompacted gaming cannot be enjoined.266 The court relied on section 2710(d)(7)(A)(ii), where Congress abrogated tribal sovereign immunity by authorizing a state to sue in district court to enjoin class III gaming located on Indian lands and conducted in violation of any tribal-state compact. The court noted “that Congress may abrogate a sovereign’s immunity only by using statutory language that makes its intention unmistakably clear” and reasoned that, because ambiguities in federal laws implicating Indian rights must be resolved in the Indians’ favor, Congress did not evince in the requisitely unambiguous terms a determination to abrogate tribal immunity when a tribe conducts class III gaming in the absence of an existing tribal-state compact.267 The court also rejected the state’s arguments that the tribe impliedly waived its immunity by engaging in IGRA-regulated gaming and that the tribe’s immunity did not extend to prospective equitable relief.268 The term “good-faith” is not defined in the statute, but section 2710(d)(7)(B)(iii) does provide that, in resolving claims by tribes of bad faith bargaining, courts

(I) may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities, and



(II) shall consider any demand by the State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith.

The second of these considerations corresponds to some extent to the negative inference that can be drawn from section 2710(d)(3)(C)(iii). The first suggests that a state’s good faith must be measured with reference to the broad array of those interests potentially affected by the types of class III gaming a tribe desires and the conditions under which such gaming is sought to be played.269 Nonetheless, IGRA does not address questions such as

(1) whether bad faith is present only if the state negotiators seek to preclude or restrict class III gaming so as to create or preserve an economic advantage for non-Indian lands gaming, or whether bad faith can be

Florida v. Seminole Tribe, 181 F.3d 1237, 1245 (11th Cir. 1999).

266

Id. at 1242; cf. Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050,1059–60 (9th Cir. 1997) (§ 2710(d)(7)(A)(ii) does not confer jurisdiction to a state beyond that expressly agreed upon in a compact, and state therefore had no jurisdiction over gaming not addressed by the compact); New York v. Oneida Indian Nation, 78 F. Supp. 2d 49, 54 (N.D.N.Y. 1999) (distinguishing Cabazon Band of Mission Indians v. Wilson, and finding that the gaming compact effected a waiver of tribal sovereign immunity that gave the court jurisdiction to consider suit for injunctive relief against class III gaming not permitted under compact); cf. Texas v. Ysleta del Sur Pueblo, 79 F. Supp. 2d 708, 710–11 (W.D. Tex. 1999) (holding that tribal sovereign immunity related to gaming issues was expressly abrogated by Congress in the act restoring the tribe to federally recognized status), aff’d, 237 F.3d 631 (5th Cir. 2000) (table). 267

Seminole Tribe, 181 F.3d at 1242–44.

268

See S. Rep. No. 446, supra note 4, at 14, reprinted in 1983 U.S.C.C.A.N. 3084.

269

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American Indian Law Deskbook, Fourth Edition found, even absent such an intent, because state negotiators deem class III gaming on Indian lands substantially more expansive than that on non-Indian lands as contrary to the public policy established by state law with respect to gambling generally;270



(2) whether good-faith bargaining implicitly obligates a state to make concessions, or whether a state may adopt at the negotiations’ outset a firm or immutable position premised on a proposal that, although not acceptable to the tribe, is nonetheless objectively reasonable;271 and



(3) whether an honestly held, but legally or factually incorrect, position may constitute evidence of bad faith.272

The Seminole Tribe decision273 has had the practical effect of leaving these and other questions concerning the scope of the bargaining obligation under IGRA largely unanswered. The most detailed post–Seminole Tribe discussion of a state’s good-faith duty appears in the Ninth Circuit Court of Appeals’ decision, In re Indian Gaming Related Cases.274 There, the court rejected challenges by a group of tribes to several provisions in a compact establishing a revenue-­sharing trust fund to benefit nongaming tribes, a “special distribution fund” from which gaming revenue deposited by the tribes would be used for legislatively specified purposes, such as providing grants to local governments affected by the gaming activities and labor relations protection for union organizational and representation rights. After rejecting summarily the claim that the governor had failed to negotiate in an active and timely manner,275 the court of appeals turned to the “substantive objections” and found them unpersuasive: • Revenue Sharing Trust Fund. The court disagreed that the state, by conditioning the agreement on such a fund violated section 2710(d)(4). It reasoned in part that the statutory provision’s disclaimer on any intent to confer authority on states “to impose any tax, fee, charge or other assessment” simply reflected Congress’ intent to prevent compacts “from being used as a subterfuge for imposing State jurisdiction on tribes concerning issues

270 E.g., In re Indian Gaming Related Cases, 331 F.3d 1094, 1099 (9th Cir. 2003) (“[o]ur decision in Rumsey [Indian Rancheria v. Wilson] meant that the State had no obligation to negotiate with tribes over the most lucrative forms of class III gaming”); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 279 (8th Cir. 1993) (§ 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming not allowed under state law). 271 Cf. Wisconsin Winnebago Nation v. Thompson, 22 F.3d 719, 724 (7th Cir. 1994) (state did not bargain in bad faith when it refused to reopen negotiations for class III gaming on a location not authorized in recently concluded compact); see generally Kelly, supra note 51, at 531 (discussing Wisconsin Winnebago). 272 A blanket refusal to negotiate over a class III gaming compact based upon a mistaken, but sincere, legal view has been found to violate IGRA. Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1033 (2d Cir. 1990).

Seminole Tribe v. Florida, 517 U.S. 44 (1996).

273

331 F.3d 1094.

274

Id. at 1110.

275

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unrelated to gaming.”276 Since “the State offered meaningful concessions in return for its demands, it did not ‘impose’ the [trust fund] within the meaning of § 2710(d)(4).”277 • Special Distribution Fund. The court acknowledged that “the contributions tribes must make to the [distribution fund] are significant,” but it found an adequate quid pro quo.278 “The tribes,” it observed, “receive in exchange an exclusive right to conduct class III gaming in the most populous State in the country” and could not claim as “inimical to the purpose or design of IGRA for the State . . . to ask for a reasonable share of tribal gaming revenues for the specific purposes identified in the [distribution fund’s] provisions.”279 • Labor Relations Provision. The court deemed the state’s concerns as to organizational and representation issues “ ‘directly related to the operation of gaming activities’ and thus permissible pursuant to 25 U.S.C. § 2710(d)(3)(C)(vii).”280 It added that “[w]e may consider the public interest of the State when deciding whether it has negotiated in good faith[] and [that] a State’s concern for the rights of its citizens employed at tribal gaming establishments is clearly a matter within the scope of that interest.”281 The court stressed again the fact “that the State offered numerous concessions to the tribes in return for the Labor Relations provision (including the right to exclusive operation of Las Vegas style class III gaming in California).”282

The Indian Gaming court, in sum, resolved the substantive bad-faith claims through a two-step analysis that first examined whether the provision itself was proscribed by IGRA and then reviewed the give-and-take of bargaining to determine whether on balance the state’s position was reasonable.283

Id. at 1111.

276

Id.

277

Id. at 1114–15.

278

Id. at 1115.

279

Id. at 1116.

280

Id.

281

Id.

282

It may be argued that IGRA’s good-faith negotiation requirement does not extend to compact amendments because Congress intended to level the playing field for tribes seeking to enter into gaming. See S. Rep. No. 446, supra note 4, at 13, reprinted in 1988 U.S.C.C.A.N. 3083 (Congress intended “to provide some incentive for States to negotiate with tribes in good faith because tribes will be unable to enter into such gaming unless a compact is in place”). A tribe with an existing compact has fulfilled Congress’s objective, and cannot claim it has been denied entry into gaming. IGRA makes no mention of providing the same protections for a tribe seeking to improve upon its established class III gaming position. See Wisconsin Winnebago Nation v. Thompson, 22 F.3d 719, 724 and n.6 (7th Cir. 1994) (court lacks jurisdiction under IGRA’s good-faith negotiations clause to entertain a challenge to a completed compact; “Section 2710(d)(7) is meant to give Indian tribes a mechanism through which to force a reluctant state government to the bargaining table and require it to negotiate a compact in good faith; it is not intended to be a means by which a tribe may make an end-run around an existing agreement”). 283

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Compounding the difficulty associated with determining the standards to be used in resolving bad-faith claims by tribes is the peculiar burden of proof allocation with respect to those claims. Under section 2710(d)(7)(B)(ii) the tribe’s prima facie case is established by showing that no compact has been negotiated and that either the state simply failed to respond to the negotiating request or responded but did not bargain in good faith. The “burden of proof” then shifts to the state “to prove that [it] has negotiated with the Indian tribe in good faith to conclude a Tribal-State compact governing the conduct of gaming activities.”284 Despite the statute’s awkward wording,285 courts likely will apply ordinary burden-of-proof standards; i.e., as proponent of the proposition that the state did not negotiate in good faith, the tribe will always have the burden of persuasion with respect to such proposition, but the state may be required to present evidence on the good-faith issue if, by virtue of the tribe’s prima facie showing, a finding of bad faith would be appropriate.286 At the end of the day, however, the Ninth Circuit Court of Appeals likely captured the essence of the analysis when it stated that “the good faith inquiry is nuanced and factspecific, and is not amendable to bright-line rules.”287 Once the district court determines that a state has not negotiated in good faith, it must order the parties to conclude a compact within 60 days.288 Should they fail to do so, the court appoints a mediator to whom each party submits a proposed compact.289 The mediator then selects “the one which best comports with the terms of [IGRA] and any other applicable Federal law and with the findings and order of the court.”290 The proposed compact selected by the mediator must be submitted to the parties and, if consented to by the state within 60 days of its submis-

25 U.S.C. § 2710(d)(7)(B)(ii).

284

The Senate report’s explanation of how good-faith litigation should proceed does little to clarify the burden-of-proof issue: “While a tribe must show a prima facie case, after doing so the burden will shift to the State to prove that it did act in good faith. The Committee notes that it is States, not tribes, that have crucial information in their possession that will prove or disprove tribal allegations of failure to act in good faith.” S. Rep. No. 446, supra note 4, at 14–15, reprinted in 1988 U.S.C.C.A.N. 3084–85 (emphasis added). The statute, as drafted, requires far more than a mere allegation of bad faith; it mandates actual proof that the state has failed to negotiate in good faith as part of the tribe’s prima facie showing. 285

286 James Bradley Thayer, A Preliminary Treatise on Evidence 378 (1898) (“[w]e see that the burden of going forward with evidence may shift often from side to side; while the duty of establishing his proposition is always with the actor, and never shifts”); see also Speas v. Merchants’ Bank & Trust Co., 125 S.E. 398, 401 (N.C. 1924) (“A ‘prima facie’ case, or ‘prima facie’ evidence, does not change the burden of proof. It only stands until its weight is met by evidence to the contrary. The opposing party, however, is not required as a matter of law to offer evidence in reply. He only takes the risk of an adverse verdict if he fails to do so”).

In re Indian Gaming Related Cases, 331 F.3d 1094, 1113 (9th Cir. 2003).

287

25 U.S.C. § 2710(d)(7)(B)(iii). If a compact is reached, it is then subject to the secretarial approval requirements in § 2710(d)(8). 288

Id. § 2710(d)(7)(B)(iv).

289

Id.

290

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sion, “shall be treated as a Tribal-State compact entered into under [section 2710(d)(3)].”291 Where state consent is not timely given, the mediator shall notify the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures—

(I) which are consistent with the proposed compact selected by the mediator . . . , the provisions of [IGRA], and the relevant provisions of the laws of the State, and



(II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction.292

The term “procedures” is not defined, but it means the conditions under which class III gaming may be conducted in lieu of a compact accepted by a state.293 The import of the reference to “relevant provisions” of state law is also not entirely clear; however, that phrase presumably is intended to ensure that the procedures do not authorize gaming that otherwise could not be authorized under a compact. In short, the procedures should parallel as closely as possible the compact selected by the mediator, compensating for the lack of any state involvement otherwise contemplated under that compact and ensuring that the additional procedures do not violate IGRA or state law recognized as applicable under IGRA as restricting the permissible content of a compact. The Secretary is authorized to enforce his procedures in federal district court.294 D. Federal Civil and Criminal Enforcement Authority The Commission is given authority to levy and collect fines, to order temporary and permanent closures of gaming establishments, to modify or terminate management contracts, to subpoena persons and the production of documents, and to order depositions.295 Civil fines may be imposed in an

291 Id. § 2710(d)(7)(B)(v)–(vi). No complementary provision is made for tribal consent. Consequently, even if the state proposal is selected by the mediator and is unacceptable to the tribe, the state’s consent alone will affect a compact.

Id. § 2710(d)(7)(B)(vii).

292

An issue attendant to the Secretary’s authority to prescribe procedures for conducting class III gaming absent a compact is whether he may impose affirmative regulatory responsibilities on a nonconsenting state. Conceivably a state may have rejected a mediator-selected compact because it contained regulatory or other duties the state did not wish to assume. In such a situation, it makes little sense for the Secretary then to be given power to impose those duties over the state’s objection, since Congress could simply have required the parties to be bound to the mediator-selected compact, subject to the normal tribal-state compact review procedure under § 2710(d)(8). Authorizing the Secretary to impose regulatory burdens on a state would raise substantial concerns under the Tenth Amendment. New York v. United States, 505 U.S. 144, 162 (1992). Nevertheless, nothing in § 2710(d)(7)(B)(vii) limits the secretarial discretion in this regard, but presumably the Secretary will act consistently with constitutional limitations. 293

25 U.S.C. § 2710(d)(7)(A)(iii).

294

Id. §§ 2713, 2715; see United States v. Santee Sioux Tribe, 254 F.3d 728, 736–37 (8th Cir. 2001) (tribal accounts subject to garnishment for fines imposed for noncompliance with judgment requiring tribal casino’s 295

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amount not exceeding $25,000 for each violation by a tribal operator of an Indian game or a management contractor “of any provision of [IGRA], any regulation prescribed by the Commission pursuant to [IGRA], or tribal regulations, ordinances, or resolutions approved under [section 2710 or 2712].”296 Temporary game closures may be ordered “for substantial violation” of the same provisions, but a hearing before the Commission must be held within 30 days of the temporary closure order’s issuance, and a decision on whether permanent closure is appropriate must be rendered within 60 days of such hearing.297 A permanent closure may be ordered whenever a fine would be proper, as may termination or modification of a management contract.298 The subpoena power may be used with respect to “any matter under consideration or investigation” by the Commission.299 Depositions may also be ordered “in any proceeding or investigation pending before the Commission at any stage of such proceeding or investigation.”300 Review of closure orders is subject to the Administrative Procedure Act,301 and exhaustion of agency procedures thus is ordinarily necessary.302 The Commission also has been held to possess authority under 25 U.S.C. § 2710(b) to resolve disputes over distribution of gaming.303 IGRA added three new criminal provisions to Title 18 of the United States Code. The most important is 18 U.S.C. § 1166, paragraph (a) of which incorporates into federal law “all State laws pertaining to the licensing, regulation, or prohibition of gambling, including but not limited to criminal sanctions applicable thereto” for purposes of application to Indian country.304 Conduct

closure pursuant to Commission order, and tribal council members subject to civil contempt for noncompliance with judgment); United States v. Santee Sioux Tribe, 135 F.3d 558, 562 (8th Cir. 1998) (Commission orders enforceable by U.S. attorneys under 28 U.S.C. § 516); Sac and Fox Tribe v. United States, 264 F. Supp. 2d 830, 840–41 (N.D. Iowa 2003) (granting preliminary injunction enforcing temporary closure order). 25 U.S.C. § 2713(a)(1).

296

Id. § 2713(b).

297

Id. § 2713(a)(3).

298

Id. § 2715(a).

299

Id. § 2715(d); see also id. § 2706(b)(8) (authorizing Commission to “hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as [it] deems appropriate”). 300

5 U.S.C. §§ 701–706.

301

See Sac and Fox Tribe, 264 F. Supp. 2d at 837–40.

302

Hein v. Capitan Grande Band, 201 F.3d 1256, 1260–61 (9th Cir. 2000).

303

See United States v. Santee Sioux Tribe, 135 F.3d 558, 565 (8th Cir. 1998) (§ 1166(a) incorporates state common law remedies, including authority to enjoin the commission of criminal acts, by virtue of the Rules of Decision Act, 28 U.S.C. § 1652). The other provisions are 18 U.S.C. § 1167, which prohibits theft of property belonging to a tribally licensed gaming establishment, and 18 U.S.C. § 1168, which prohibits similar conduct by an officer, employee, or individual licensee of such an establishment but imposes more severe penalties than § 1167. IGRA also makes 18 U.S.C. §§ 1301 through 1304, which deal with use of interstate commerce, the United States mails, or federally licensed radio stations to disseminate lottery tickets or information, inapplicable to gaming conducted by a tribe pursuant to the statute. 25 U.S.C. § 2720. 304

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in violation of those laws is made a federal offense under paragraph (b). Paragraph (c), however, excludes from the term “gambling”

(1) Class I gaming or class II gaming regulated by [IGRA], or



(2) Class III gaming conducted under a Tribal-State compact approved by the Secretary of the Interior under [section 2710(d)(8)] of [IGRA] that is in effect.305

Paragraph (d) additionally vests in the United States exclusive jurisdiction over criminal prosecutions of State gambling laws that are made applicable under this section to Indian country, unless an Indian tribe pursuant to a Tribal-State compact approved by the Secretary under [section 2710(d)(8)] of [IGRA], or under any other provision of Federal law, has consented to the transfer to the State of criminal jurisdiction with respect to gambling on the lands of the Indian tribe.

The Ninth Circuit Court of Appeals in Sycuan Band of Mission Indians v. Roache306 construed the reference to “any other provision of Federal law” as not including Public Law 280.307 In that case, California argued that the language of section 1166(d) provided only for federal enforcement of state criminal laws “made applicable under this section to Indian country” and that Public Law 280 constituted preexisting authority to enforce state criminal laws.308 The court rejected the state’s argument and held Public Law 280 impliedly repealed by section 1166, at least as to class III gaming activities.309 As it stands, neither section 1166 nor any other federal statute directly authorizes federal criminal prosecution for gaming in violation of IGRA. Federal jurisdiction to enforce IGRA’s prohibition against uncompacted class III gaming by civil action has been the subject of some debate. In United States v. Santee Sioux Tribe,310 the Eighth Circuit Court of Appeals indicated its satisfaction that the United States has jurisdiction to enforce Commission closure

305 The reference in 18 U.S.C. § 1166(c)(2) only to compacts approved under 25 U.S.C. § 2710(d)(8) technically excludes procedures adopted by the Secretary pursuant to 25 U.S.C. § 2710(d)(7)(B)(vii) to implement a mediator-selected, but state-rejected, compact. It seems likely the omission was a drafting oversight—as was the failure to refer to secretarially approved procedures in 25 U.S.C. § 2510(d)(1)(C).

54 F.3d 535, 538–40 (9th Cir. 1994).

306

Also in Lac du Flambeau Band of Lake Superior Indians v. Wisconsin, 743 F. Supp. 645, 653–54 (W.D. Wis. 1990), the district court concluded that the phrase did not include the mandatory transfer of criminal jurisdiction to Wisconsin effected by Public Law 280 in 1953. It reasoned that the federal law reference was “to a recent Indian land claims settlement in Rhode Island and to similar settlements of Indian land controversies that might be reached in the future.” Id. at 654. It is unclear, however, how vesting concurrent jurisdiction in Public Law 280 states disrupts IGRA’s enforcement scheme or overall purpose, since Congress has determined to incorporate state law as the measure of class III gaming legality absent a tribal-state compact. 307

54 F.3d at 538 (emphasis added).

308

Id. at 540; accord United States v. E.C. Invs., Inc., 77 F.3d 327, 330–31 (9th Cir. 1996).

309

135 F.3d at 562.

310

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orders. The court also gave its approval for a federal civil action to enjoin illegal tribal gaming because a civil suit to enjoin illegal gambling is available under state law as incorporated by IGRA pursuant to 18 U.S.C. § 1166(a).311 Moreover, in United States v. Spokane Tribe,312 the Ninth Circuit impliedly affirmed the power of the United States to bring a civil injunctive action to enforce IGRA’s prohibition against uncompacted gaming, at least where IGRA’s judicial remedies to compel compact negotiations have not been denied to the tribe by state assertion of Eleventh Amendment immunity.313 It appears settled, finally, that IGRA creates no implied private right of action—i.e., no action by states, tribes, or other persons to enforce the statute is cognizable except those specified in section 2710(d)(7)(A).314

311 Id. at 565. In United States v. Santa Ynez Band, 983 F. Supp. 1317, 1325 (C.D. Cal. 1997), the district judge suggested that 18 U.S.C. § 1166 should be construed as authorizing only federal prosecution of state criminal laws and that civil enforcement of state gambling laws should be left to the states. The judge concluded, however, that authority to bring a civil action must be inferred because of the “bluntness” of the criminal remedy. Id.; see also United States v. Seminole Tribe, 45 F. Supp. 2d 1330, 1331 (M.D. Fla. 1999) (United States had authority to seek civil injunctive relief against conduct of unlawful gaming activities on Indian tribe’s reservation properties).

139 F.3d 1297, 1301 (9th Cir. 1998).

312

See also Keweenaw Bay Indian Cmty. v. United States, 136 F.3d 469, 477 (6th Cir. 1998) (remanding for reconsideration of United States’ motion for preliminary injunction against class III gaming on lands that had not been approved for gaming under 25 U.S.C. § 2719). 313

314 E.g., Hein v. Capitan Grande Band, 201 F.3d 1256, 1260 (9th Cir. 2000); Florida v. Seminole Tribe, 181 F.3d 1237, 1248 (11th Cir. 1999); Burdett v. Harrah’s Kan. Casino Corp., 260 F. Supp. 2d 1109, 1116 (D. Kan. 2003); Hartman v. Kickapoo Tribe Gaming Comm’n, 176 F. Supp. 2d 1168, 1175 (D. Kan. 2001), aff’d, 319 F.3d 1230 (10th Cir. 2003); Whiteco Metrocom Div. v. Yankton Sioux Tribe, 902 F. Supp. 199, 202 (D.S.D. 1995).

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Chapter 13 Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (ICWA)1 was enacted in response to what was characterized as “[t]he wholesale separation of Indian children from their families” through various methods of state court voluntary or involuntary termination of parental rights or other removal of Indian children from their families.2 Statistics further indicated that such separations occurred at a sub‑ stantially higher rate for Indian than non‑Indian families.3 This higher rate of separation was attributed to the insensitivity of “many social workers [to] . . . Indian cultural values and social norms,” which led to misevaluation of parent‑ ing skills and to unequal application of considerations such as parental alcohol abuse.4 State legal procedures were additionally faulted for not providing Indian parents with legal representation or access to qualified expert witnesses and for coercing them into voluntary waivers of parental rights.5  The ICWA addresses these general concerns in procedural and substantive ways. Its most important procedural elements include establishing tribal courts as the required or preferred forum for adjudication of Indian child custody proceedings6 and imposing stringent notice requirements after involuntary

Pub. L. No. 95‑608, 92 Stat. 3069 (1978) (codified at 25 U.S.C. §§ 1901–1963).

1

H.R. Rep. No. 1386, 95th Cong. 2d Sess. 9, reprinted in 1978 U.S.C.C.A.N. 7530, 7531.

2

Id. (“The disparity in placement rates for Indians and non‑Indians is shocking. In Minnesota, Indian children are placed in foster care or in adoptive homes at a per capita rate five times greater than non‑Indian children. In Montana, the ratio of Indian foster‑care placement is at least 13 times greater. In South Dakota, 40 percent of all adoptions made by the State’s Department of Public Welfare since 1967–68 are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is, per capita, nearly 16 times greater than the non‑Indian rate. In the state of Washington, the Indian adoption rate is 19 times greater and the foster care rate 10 times greater. In Wisconsin, the risk run by Indian children of being separated from their parents is nearly 1,600 percent greater than it is for non‑Indian children”); see also 25 U.S.C. § 1901(4). 3

4 H.R. Rep. No. 1386, supra note 2, at 10, reprinted in 1978 U.S.C.C.A.N. at 7532; see also 25 U.S.C. § 1901(5). 5 H.R. Rep. No. 1386, supra note 2, at 11, reprinted in 1978 U.S.C.C.A.N. at 7533; cf. Marlee Kline, Child Welfare Law, “Best Interests of the Child” Ideology, and First Nations, 30 Osgoode Hall L.J. 375 (1992) (citing similar experiences with the children of Canada’s First Nations—i.e., descendants of peoples indigenous to the territory now called Canada).

25 U.S.C. § 1911(a) and (b).

6

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child custody proceedings are initiated in state court.7 Its more significant substantive components obligate any state court having jurisdiction over the merits of a child custody proceeding involving an Indian child to apply certain minimum burdens of proof when an involuntary placement or parental rights termination is involved,8 to make such placement or termination only after receipt of supporting testimony from qualified expert witnesses,9 and to follow statutorily prescribed placement preferences in all child custody proceedings.10 Nonetheless, while the remedial objectives of the ICWA are clear, application of its provisions has resulted in substantial litigation because of ambiguities in the statute itself, and the varied nature of the state court proceedings subject to it.11 Several states have adopted ICWA-like statutes intended to implement the ICWA that impose, or could be construed to impose, more stringent limits on the courts’ authority in child custody proceedings involving Indian children.12 

Id. § 1912(a). Id. § 1912(e) and (f). 9 Id. 10 Id. § 1915(a) and (b). 11 See generally Edward L. Thompson, Protecting Abused Children: A Judge’s Perspective on Public Law Deprived Child Custody Proceedings and the Impact of the Indian Child Welfare Acts, 15 Am. Indian L. Rev. 1 (1990) (discussing interaction of Oklahoma law and ICWA with respect to involuntary termination of pa‑ rental rights proceedings). Other commentators have contended that, ambiguities aside, state courts have been reluctant in some instances to comply with the Act. Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 Gonz. L. Rev. 353 (1991–92) (describing a variety of state court procedural mechanisms used to avoid transfer of cases to tribal court or to retain jurisdiction under the Act); Peter W. Gorman and Michelle Therese Paquin, A Minnesota Lawyer’s Guide to the Indian Child Welfare Act, 10 Law and Ineq. J. 311, 313 (1991) (explaining that “[a]lthough a federal law, the ICWA is not a national substantive code for juvenile child protection proceedings” and that state compliance with ICWA varies). Notwithstanding various difficulties in its application, however, the ICWA has never been amended. See Marcia Yablon, The Indian Child Welfare Act Amendments of 2003, 38 Fam. L.Q. 689 (2004) (discussing proposed amendments that, if adopted, would have addressed issues related to the Act’s application in Alaska, full faith and credit, and notice of state proceedings to tribes). 12 Iowa Code §§ 232B.1–232B.14; Neb. Rev. Stat. §§ 43-1501 to –1516; 10 Okl. Stat. Ann. §§ 40-40.9; see generally Jerry R. Foxhoven, The Iowa Indian Child Welfare Act: Clarification and Enhancement of the Federal Act, 54 Drake L. Rev. 53 (2005) (comparing provisions of ICWA and the Iowa ICWA). California, which generates a very substantial portion of ICWA-related decisions, recently adopted comprehensive legislation designed, in part, to ensure compliance with, inter alia, the federal statute’s notice requirements. 2006 Cal. Stat. 838 (codified in part at Cal. Welf. & Inst. Code §§ 224–224.6); see In re Alice M., 74 Cal. Rptr. 3d 863, 869–71 (Ct. App. 2008) (discussing whether the new legislation imposed heightened burden with respect to inquiries into Indian child status); In re William K., 73 Cal. Rptr. 3d 737, 744 (Ct. App. 2008) (new statu‑ tory provision that requires tribal response concerning membership, or eligibility for membership, and not merely enrollment, or eligibility for enrollment); In re J.T., 65 Cal. Rptr. 3d 320, 324 (Ct. App. 2007) (new legislation “expressly provides that heightened state law standards shall prevail over more lenient ICWA requirements”); see also In re H.B., 74 Cal. Rptr. 3d 27, 31 (Ct. App. 2008) (“[a] violation of ICWA notice requirements may be harmless error, particularly when, as here, the source of the duty to inquire is not ICWA itself but rather . . . a rule of court implementing ICWA”). Decisions from these states thus must be examined to determine whether their holdings derive from ICWA itself or from local law that may impose additional, and more stringent, demands. Compare In re N.V., 744 N.W.2d 634, 637–38 (Iowa 2008) (Iowa ICWA, unlike ICWA, does not impose a timeliness restriction on tribal transfer requests), with In re N.N.E., 752 N.W.2d 1, 8–9 (Iowa 2008) (invalidating on state constitutional grounds greater limitations on the ability of parents to direct placement outside ICWA preferences). 7 8

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I. ICWA APPLICABILITY A. “Child Custody Proceeding” 1. General scope The ICWA applies to any “child custody proceeding” that a state court knows, or has reason to know, involves an “Indian child.”13 The term “child custody proceeding” is defined to include four types of proceedings potentially affecting an Indian child’s custodial relationship with its parents or Indian custodian:

(1) “child custody proceeding” shall mean and include—

(i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary place‑ ment in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;



(ii) “termination of parental rights” which shall mean any action result‑ ing in the termination of the parent‑child relationship;



(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termina‑ tion of parental rights, but prior to or in lieu of adoptive placement; and



(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.14 

The terms comprising the definition of “child custody proceeding” include commonly used methods by which a parent’s custodial rights may be affected through voluntary or involuntary proceedings under state law.15 Although not stated in the definition of “adoptive placement,” such a placement generally occurs after termination of parental rights, and the actual placement will often 13 See, e.g., In re T.R., 653 A.2d 777, 779–780 (Vt. 1994) (where Bureau of Indian Affairs’ response to court inquiry about father indicated that eligibility for tribal membership could not be established and father did not provide additional information, court had no reason to believe that children were Indian children under the Act); In re A.E.V., 782 P.2d 858, 860 (Colo. Ct. App. 1989) (ICWA inapplicable to adop‑ tion proceeding where affected children became eligible for membership after placements became final); State ex rel. Juvenile Dep’t v. Tucker, 710 P.2d 793, 796 (Or. Ct. App. 1985) (child custody proceeding order not invalidated by ICWA where court and state agency relied in good faith on Bureau of Indian Affairs advise‑ ment that child was ineligible for tribal membership). 14 25 U.S.C. § 1903(1)(i)–(iv); see In re Alexis H., 33 Cal. Rptr. 3d 242, 245 (Ct. App. 2005) (no foster care placement or parental rights termination proceeding subject to ICWA existed where children declared dependent but left in mother’s custody); J.A.V. v. Velasco, 536 N.W.2d 896 (Minn. Ct. App. 1995) (because paternity action would not result in termination of parental rights, ICWA did not apply).

See generally Robert M. Horowitz and Howard A. Davidson, Legal Rights of Children §§ 9.02, 9.03, 9.16, 9.23 (1984) (discussing the purposes and procedures associated with foster case placement, termina‑ tion of parental rights, and adoption proceedings in United States). 15

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be decreed in an entirely separate action.16 Therefore, care must be taken to identify the precise nature and stage of the involved state court action when determining which, if any, of the subdefinitions of “child custody proceeding” applies, since the ICWA imposes different procedural and substantive require‑ ments to each type of proceeding.17 Where successive placements occur within a particular child custody proceeding, each must comply with the statute.18  Expressly excluded from the scope of a “child custody proceeding” is any “placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.”19 Substantial litigation has arisen over the scope of the di‑ vorce exception, with intraspousal disputes typically being distinguished from intra­family disputes involving other relatives.20 Nonetheless, the exception is

16 See generally Homer Harrison Clark, The Law of Domestic Relations in the United States §§ 21.4, 21.5 (2d ed. 1987). 17 See, e.g., Terry S. v. State, 168 P.3d 489, 498 (Alaska 2007) (conditioning visitation rights on participa‑ tion in sex offender treatment program as part of a foster care child custody proceeding under § 1912(e) did not constructively terminate parental rights and thereby require compliance with the heightened proof standard under § 1912(f)); In re S.B., 30 Cal. Rptr. 3d 720, 735–36, 737 (Ct. App. 2005) (neither a detention hearing—which involved only an emergency removal—nor periodic review proceedings—where child’s custody status was not at issue—constituted child custody proceedings); In re Mahaney, 51 P.3d 776, 782 (Wash. 2002) (where mother revoked her voluntary placement with grandmother and grandmother peti‑ tioned for custody of children, custody proceedings were involuntary placement proceedings governed by the standards and burdens set forth in § 1912 of the ICWA since children not returnable on demand); In re J.R.S., 690 P.2d 10, 15 (Alaska 1984) (distinguishing between “termination of parental rights” and “adop‑ tive placement” proceedings for purposes of tribal intervention rights under § 1911(c)); cf. In re Welfare of R.M.B., 735 N.W.2d 348, 352 n.6 (Minn. Ct. App. 2007) (child in need of protection or services proceeding and permanent placement proceeding, even if considered “one continuous proceeding” under state law, were distinct child custody proceedings under ICWA); Interest of A.B., 663 N.W.2d 625, 632 (N.D. 2003) (distinguishing between foster care placement and parental rights termination for purposes of determin‑ ing whether tribe’s transfer petition was untimely); see generally Richard B. Maltby, Note, The Indian Child Welfare Act of 1978 and the Missed Opportunity to Apply the Act in Guardianships, 46 St. Louis U. L.J. 213, 238 (2002) (arguing that applicability of ICWA to some guardianship proceedings is insufficiently appreciated; “[t]he guardianship must be one that does not allow for the return of the child upon demand of the nonguardian parent[,]” with “[t]he key inquiry involv[ing] the comparison between the rights of the guardian and the rights of custodial parent”). 18 See People in Interest of S.R.M., 153 P.3d 438, 442 (Colo. Ct. App. 2006) (parental rights termination judgment vacated for failure to comply with ICWA notice requirements as to the motion to terminate such rights, even though tribe had received notice when proceeding began for the purpose of securing temporary custody); In re C.H., 79 P.3d 822, 828 (Mont. 2003) (where possible Indian child status was not raised until after parental rights terminated, termination order’s validity was unaffected, but in “any future proceeding regarding [the child][] this appeal puts the District Court and the [social services agency] on notice that [the child] might be an Indian child”).

25 U.S.C. § 1903(1).

19

Compare In re Larch, 872 F.2d 66, 69 (4th Cir. 1989) (ICWA inapplicable to divorce proceedings); Cherino v. Cherino, 176 P.3d 1184 (N.M. Ct. App. 2007) (applying divorce exception to custody dispute be‑ tween biological parents); Comanche Nation v. Fox, 128 S.W.3d 745, 753 (Tex. App. 2004) (modification of “conservatorship” granting sole management authority to paternal grandparent did not constitute “child custody proceeding” subject to ICWA); In re Absher Children, 750 N.E.2d 188, 191 (Ohio Ct. App. 2001) (ICWA inapplicable to child custody dispute between unmarried parents, but exercise of state court jurisdiction over dispute—where prior child custody proceeding filed in tribal court—would impermissibly interfere with tribe’s self-governance); In re Custody of Sengstock, 477 N.W.2d 310, 312–13 (Wis. Ct. App. 1991) (ICWA inapplicable to custody dispute between estranged spouses); Walksalong v. Mackey, 549 N.W.2d 384, 387 (Neb. 1996) (ICWA inapplicable since proceeding involves “custody dispute between parents in which one 20

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limited to “divorce” or comparable proceedings between parents and has no application to a foster care proceeding where custody need not be placed with the noncustodial parent.21 A related issue generating seemingly inconsistent decisions involves the question whether the ICWA applies to child custody disputes between a parent and an Indian custodian, both of whom enjoy pro‑ tected status under the Act.22  With respect to the status offense exception, the Bureau of Indian Affairs (BIA) issued Guidelines in 1979 to assist state courts in applying the ICWA.23

of the parents has physical custody of the child”); Harris v. Young, 473 N.W.2d 141, 143 (S.D. 1991) (ICWA inapplicable to custody dispute between divorced parents); In re Application of DeFender, 435 N.W.2d 717, 721 (S.D. 1989) (ICWA inapplicable to custody dispute between unmarried parents); In re Marriage of Baisley, 749 P.2d 446, 449 (Colo. Ct. App. 1987) (ICWA inapplicable to custody issue in divorce proceeding); and State ex rel. Dep’t of Human Servs. v. Jojola, 660 P.2d 590, 592 (N.M. 1983) (ICWA inapplicable to “paternity determination and child support enforcement when a state is a party and the other party is an Indian”), with In re R.L.A., 147 P.3d 306, 308 (Okla. Civ. App. 2006) (ICWA applies to step-parent adoption petition, since “[p]roceedings for adoption without consent are not matters ‘springing out of a divorce action’ but instead are independent statutory proceedings”); In re Guardianship of J.C.D., 686 N.W.2d 647, 649 (S.D. 2004) (guardianship case initiated by grandparent constituted child custody proceeding because parent could not have child returned to her custody upon request); Jordan v. Jordan, 983 P.2d 1258, 1261 (Alaska 1999) (where child was placed with a family member other than a parent in a divorce proceeding, the custody determination regarding placement of the child with that family member is a foster care placement cov‑ ered by the ICWA even though it was raised in the context of a divorce proceeding); In re Interest of D.A.C., 933 P.2d 993, 1000–01 (Utah Ct. App. 1997) (ICWA applicable to proceeding to terminate parental rights of divorced noncustodial father); In re Custody of A.K.H., 502 N.W.2d 790, 793–96 (Minn. Ct. App. 1993) (holding ICWA applies to intrafamily custody dispute between parents and grandparents, all of whom were Indians, since Act only excludes custody disputes in divorce actions and delinquency proceedings); Harvick v. Harvick, 828 P.2d 769, 771–72 (Alaska 1992) (ICWA deemed applicable to post-divorce relinquishment of child custody from parent to former spouse without discussion of the divorce exception); In re Crystal K., 276 Cal. Rptr. 619, 621–25 (Ct. App. 1990) (holding ICWA applicable to a non-Indian mother’s action to terminate Indian father’s parental rights after divorce); and In re Guardianship of Q.C.M., 808 P.2d 684, 688 (Okla. 1991) (ICWA applicable to custody dispute between grandparents and mother); see generally Barbara Ann Atwood, Fighting over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. Rev. 1051 (1989) (discussing child custody jurisdictional issues that arise outside ICWA context). E.g., In re Jennifer A., 127 Cal. Rptr. 2d 54, 61 (Ct. App. 2002) (“[t]his is not a custody battle arising out of a dissolution proceeding and we cannot apply the dissolution exception to the facts of this case”). 21

22 Compare Gerber v. Eastman, 673 N.W.2d 854, 858 (Minn. Ct. App. 2004) (non-Indian father’s motion to regain custody of child from Indian custodian did not constitute “child custody proceeding” in light of “Congress’s policy reason for enacting the ICWA, that Indian children placed for adoption be placed with Indian families to preserve the Indian tribe and family”); and J.W. v. R.J., 951 P.2d 1206, 1215 (Alaska 1998) (holding that the evidentiary showing required under § 1912(e) was inapplicable to such disputes because “[t]here would appear to be no logical reason consistent with the statutory purpose to apply § 1912(e) in a contest between two equally favored contestants,” and remanding with instructions to the trial court to determine whether the nonparent was an Indian custodian under the Act), with D.J. v. P.C., 36 P.3d 663, 672 (Alaska 2001) (reaching opposite result in parental termination proceeding under § 1912(f) since parent’s rights are not “equally affect[ed]”—i.e., if Indian custodian prevails, the parent’s rights are terminated, but if Indian custodian loses, she still retains custody).

44 Fed. Reg. 67,584 (Nov. 26, 1979). While intended to be nonbinding (id. at 67,584), the Guidelines have generally been viewed as persuasive by courts. E.g., State ex rel. Juvenile Dep’t v. Tucker, 710 P.2d 793, 796 n.3 (Or. Ct. App. 1985); D.E.D. v. Alaska, 704 P.2d 774, 779 n.8 (Alaska 1985); In re Junious M., 193 Cal. Rptr. 40, 43 n.7 (Ct. App. 1983); In re M.E.M., 635 P.2d 1313, 1318 (Mont. 1981); but see Fresno County Dep’t of Children & Family Servs. v. Superior Ct., 19 Cal. Rptr. 3d 155, 166 (Ct. App. 2004) (Guidelines constitute “the Interior Department’s considered opinion and recommendation, not a mandate to state courts”). 23

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They provide that, while “placements” of Indian children based on offenses that would be criminal if committed by adults are excluded from the statute’s operation, discrete proceedings to terminate parental rights premised on such conduct are covered.24 Consequently, proceedings against Indian children for status offenses that can result in at least temporary removal from their homes fall within the scope of a “child custody proceeding,” since such a removal is “usually premised on the conclusion that the present custodian of the child is not providing adequate care or supervision.”25  2. Existing Indian family doctrine Despite the facial breadth of the term and the inclusion of only specified exceptions, a number of courts have construed “child custody proceeding” as not encompassing actions that, although literally falling within its scope, af‑ fect Indian children who, because of their age or other circumstances, have never been integrated into an “Indian environment.”26 This nonstatutory ex‑

44 Fed. Reg. at 67,587–88 (Guideline B.3 Commentary).

24

Id. at 67,587 (Guideline B.3 Commentary); see In re Alejandro A., 74 Cal. Rptr. 3d 44, 46 (Ct. App. 2008) (commitment to youth-offender program did not trigger ICWA applicability under the foster care prong of the “child custody proceeding” definition since no restriction on parental rights was imposed); In re Enrique Q., 40 Cal. Rptr. 3d 570, 573 (Ct. App. 2006) (rejecting contention that ICWA applied in delinquency proceeding where juvenile’s “placement outside of his mother’s home was ‘based on’ anything other than the crimes he committed that landed him in front of the juvenile court to begin with”). 25

26 E.g., In re T.C.T., 165 S.W.3d 529, 533 (Mo. Ct. App. 2005) (ICWA inapplicable where record indi‑ cated no removal of child from Indian cultural setting); In re S.D., 599 N.W.2d 772, 775 (Mich. Ct. App. 1999) (where termination of father’s parental rights did not “result[] in the breakup of an ‘Indian family,’” the active-efforts requirement in 25 U.S.C. § 1912(d) was inapplicable); In re D.C.C., 971 S.W.2d 843, 846 (Mo. Ct. App. 1998) (concluding that trial court did not abuse its discretion in denying motion to withdraw consent to adoption on the grounds of, inter alia, noncompliance with the ICWA “‘where an Indian child is not being removed from an Indian cultural setting, where the natural parents have no substantive ties to a specific tribe, and where neither of the parents nor their families have resided or plan to reside with a tribal reservation’”); Hampton v. J.A.L., 658 So. 2d 331 (La. Ct. App. 1995) (ICWA did not apply when adoption would not cause breakup of an existing Indian family or remove child from Indian family); In re S.C., 833 P.2d 1249, 1252–56 (Okla. 1992) (affirming continuance of “existing Indian family” doctrine where Indian father had minimal contact with children for six years), overruled, In re Baby Boy L., 103 P.3d 1099, 1101 (Okla. 2004); In re Adoption of Crews, 825 P.2d 305, 308–312 (Wash. 1992) (holding ICWA inapplicable when an Indian child is not being removed from an Indian cultural setting, the natural parents have no substan‑ tive ties to a specific tribe, and neither parents nor their families have resided or plan to reside within a tribal reservation); S.A. v. E.J.P., 571 So. 2d 1187, 1188–90 (Ala. Civ. App. 1990) (using the “Indian family” exception to deny application of ICWA); In re Adoption of T.R.M., 525 N.E.2d 298, 303 (Ind. 1988) (where child was abandoned shortly after birth by mother and spent next seven years with non-Indian adoptive parents in non-Indian culture, “we cannot discern how the subsequent adoption proceeding constituted a ‘breakup of the Indian family’”); Claymore v. Serr, 405 N.W.2d 650, 654 (S.D. 1987) (ICWA inapplicable where child resided with tribal member biological father only for six weeks, received no support or care from him or his family except for occasional presents, and lived off reservation with non-Indian mother); In Interest of S.A.M., 703 S.W.2d 603, 608 (Mo. Ct. App. 1986) (where Indian father had no contact with child for first seven years of her life, the purpose of avoiding breakup of Indian families was not served); In re Adoption of Baby Boy L., 643 P.2d 168, 175 (Kan. 1982) (ICWA does not “dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother”); cf. In re J.J.G., 83 P.3d 1264, 1268 (Kan. Ct. App. 2004) (relying on existing Indian fam‑ ily doctrine in affirming termination of non-Indian father’s parental rights where “permanency plan” had been approved “for placement of [the child] with her maternal half-sister and brother-in-law . . . with the

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ception, known as the existing Indian family doctrine, has been rejected by other courts.27 The California Court of Appeals has reflected this split vividly: Three appellate districts have deemed the exception warranted, including two that reached this conclusion on constitutional grounds, while four districts have rejected it as inconsistent with ICWA’s text.28 One of the districts that

ultimate goal of integrating [the child] into the home of her Indian mother”); In re SNK, 108 P.3d 836–838 (Wyo. 2005) (noting existing Indian family issue, but finding question of ICWA’s applicability moot); In re Cari B., 763 N.E.2d 917, 923 (Ill. App. Ct. 2002) (although believing that “under appropriate circumstances a court may find that no Indian family exists for the ICWA to protect[,]” court refused to recognize categorical exemption from active efforts requirement for incarcerated parents). 27 E.g., Ex parte C.L.J., 946 So. 2d 880, 889 (Ala. Civ. App. 2006) (declining to apply existing Indian family exception notwithstanding fact that “it does not appear that the child at issue has been part of an Indian family or has been significantly exposed to Indian culture” because the child’s mother was an Indian and the “exception has been applied only in those instances in which a non-Indian mother relinquishes her child”); In re Baby Boy C., 805 N.Y.S. 2d 313, 323 (App. Div. 2005) (deeming the existing Indian family exception “fundamentally inconsistent with both the plain language of ICWA and one of its core purpose[s] of preserving and protecting the interests of Indian tribes in their children”); In re Baby Boy L., 103 P.3d 1099, 1101 (Okla. 2004) (overruling prior decisions recognizing doctrine “[b]ecause of recent statutory amend‑ ments to the Oklahoma [Indian Child Welfare] Act which in essence codified the holding in [Holyfield]”); In re Interest of A.B., 663 N.W.2d 625, 636 (N.D. 2003) (doctrine “is contrary to the plain language of ICWA, which was enacted not only to preserve interests of Indian children and Indian families, but also to protect a tribe’s interest in the welfare of its children and the maintenance of its culture”; refusing to follow In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001), for proposition that substantial nexus between child and tribal community required to satisfy various constitutional restrictions on Congress); S.H. v. Calhoun County Dep’t of Human Res., 798 So. 2d 684, 692 (Ala. Ct. App. 2001) (the facts did not warrant such an exception to the ICWA); Michael J., Jr. v. Michael J., Sr., 7 P.3d 960, 963 (Ariz. Ct. App. 2000) (not only is the language of the statute unambiguous and free of exceptions, but legislative history also indicates Congress rejected inclusion of existing Indian family requirement); In re Interest of D.A.C., 933 P.2d 993, 998–1000 (Utah Ct. App. 1997) (reviewing decisions from other states and rejecting Indian family exception); In re Baby Boy Doe, 849 P.2d 925, 931–32 (Idaho 1993) (rejecting the Indian family doctrine); In re D.S., 577 N.E.2d 572, 573–74 (Ind. 1991) (rejecting Indian family doctrine argument as long as child is an “Indian child” as defined by ICWA); In re Child of Indian Heritage, 543 A.2d 925, 932 (N.J. 1988) (ICWA applicable to private adoption placement “even where the child has never lived in an Indian family or in an Indian environment”); In re Custody of S.B.R., 719 P.2d 154, 156 (Wash. Ct. App. 1986) (refusing to imply an exception from ICWA, where child had never been part of an Indian family, because “the language of the Act contains no such excep‑ tion”); A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982) (refusing to imply an exception to ICWA coverage in adoption proceeding even though sister‑ and brother‑in‑law were adoptive parents and application of the statute was “not required to preserve [the Indian child’s] ties to Indian cultural or social values”); see also In re Adoption of Riffle, 922 P.2d 510, 513 (Mont. 1996) (refusing to follow In re Bridget R., 49 Cal. Rptr. 2d 507 (Ct. App. 1996), for the proposition that “the ICWA could not be constitutionally applied in the absence of evidence that the biological parents have a significant social, cultural, or political relationship with the Tribe”); Quinn v. Walters, 881 P.2d 795, 808–09 (Or. 1994) (Unis, J., dissenting) (nothing in the ICWA indicates that any particular quality or quantity of Indian “culture” must be present in order for ICWA to apply). 28 Compare In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001) (summarizing decisional authority on existing Indian family doctrine, and finding that application of ICWA to Indian child with little or no connection to tribe would violate equal protection, due process, and Tenth Amendment principles); Crystal R. v. Superior Ct., 69 Cal. Rptr. 2d 414, 426 (Ct. App. 1997) (the Indian family requirement “ensures that a child’s ties with his or her Indian parents and with the tribe are protected and preserved where such ties exist. . . . In the absence of such ties, the doctrine ensures that the invocation of the Act’s protections will not be abused and that state law will operate to protect the best interests of the child”) (citation omitted); In re Alexandria Y., 53 Cal. Rptr. 2d 679, 686 (Ct. App. 1996) (summarizing decisions, concluding that In‑ dian family exception exists, and refusing to limit it to situations where the child and both parents lack a significant relationship with Indian life); and In re Bridgit R., 49 Cal. Rptr. 2d 507, 529–30 (Ct. App. 1996) (concluding that “principles of substantive due process, equal protection and federalism all carry the same implication regarding the proper scope of ICWA—it can properly apply only where it is necessary and actually effective to accomplish its stated, and plainly compelling, purpose of preserving Indian families,”

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adopted the doctrine, however, has limited its reach to ICWA applicability issues other than notice obligations under section 1912(a).29 The effect of a recent legislative initiative aimed at foreclosing the doctrine’s application in that state is uncertain.30 Whether the existing Indian family doctrine can be reconciled with the literal language of ICWA or Mississippi Band of Choctaw Indians v. Holyfield,31 where the Supreme Court found the ICWA applicable to a voluntary adoption proceeding consummated shortly after the birth of two Indian children in a hospital 200 miles away from their reservation and

and agreeing “with those courts which have held that ICWA’s purpose is not served by an application of the Act where the child may be of Indian descent, but where neither the child nor her parent maintains any significant social, cultural or political relationship with Indian life”), with In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 610 (Ct. App. 2006) (“[t]he only exceptions to application of ICWA’s provisions have been specified by Congress; judicial creation of additional exceptions of any kind are not permitted”); In re Alicia S., 76 Cal. Rptr. 2d 121, 128 (Ct. App. 1998) (discussing conflicting decisions issued among California appellate districts concerning existing Indian family doctrine, and concluding that doctrine should not be recognized because “[t]here is no threshold requirement in the Act that a child must have been born into or be living with an existing Indian family, or must have some particular type of relationship with the tribe or her Indian heritage”); In re Adoption of Lindsay C., 280 Cal. Rptr. 194, 196–201 (Ct. App. 1991) (reversing trial court decision that held the ICWA inapplicable based on In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982)); In re Crystal K., 276 Cal. Rptr. 619, 623–25 (Ct. App. 1990) (rejecting a narrow construction of “Indian home” and “removal” based on In re Adoption of Baby Boy L.); and In re Junious M., 193 Cal. Rptr. 40, 46 (Ct. App. 1983) (rejecting “Indian family” requirement for ICWA coverage because “[t]he language of the Act contains no such exception to its applicability, and we do not deem it appropriate to create one judicially”). The California legislature responded to the division among these courts with a statute provid‑ ing that “[a] determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings.” Cal. Welf. and Inst. Code, § 360.6(c). Whether the statute has any substantive impact is uncertain, since the existing Indian family doctrine represents judicial interpretation of Congress’s intent with respect to the scope of ICWA’s coverage—intent that a state legislature cannot alter. See In re Santos Y., 112 Cal. Rptr. 2d at 727, 731 (holding that § 360.6 had no effect on whether ICWA could be applied constitutionally to Indian child with limited or no reservation contacts). The tie, however, was broken when a panel of the Sixth District Court of Appeals, relying on the California legislature’s repudiation of the doctrine, the absence of any ambigu‑ ity in the ICWA itself, and its conclusion that the exception cannot be justified on substantive due process grounds because an Indian child has no federal constitutional right to remain in a stable home, rejected the doctrine’s applicability. In re Vincent M., 59 Cal. Rptr. 3d 321, 334–37 (Ct. App. 2007). 29 In re Suzanna L., 127 Cal. Rptr. 2d 860, 870 (Ct. App. 2002) (“[g]iving notice . . . at least permits the tribe to be heard on the question of whether the child does have an existing Indian family”). 30 The legislature replaced California Welfare and Institutions section 360.6 with a comparably worded California Welfare and Institutions Code section 224(c). In re Vincent M., 59 Cal. Rptr. 3d 321, 333 n.8 (Ct. App. 2007); see generally Daniel Albanil Adlong, The Terminator Terminates Terminators: Governor Schwarzenegger’s Signature, SB 678, and How California Attempts to Abolish the Existing Indian Family Exception and Why Other States Should Follow, 7 Appalachian J. L. 109, 129–30 (2007) (contending that the new legislation has “made it clear that courts should not circumvent this statute by stating directly that . . . courts are supposed to follow the ICWA’s placement preferences” regardless of, inter alia, “‘where the child has resided or been domiciled’”) (quoting Cal. Welf. & Inst. Code § 224(a)(2)). 31

490 U.S. 30 (1989).

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gave decided preference to tribal interests rather than the biological parents’ wishes,32 appears problematic.33  B. “Indian Child” Status Aside from whether a “child custody proceeding” is involved, the other threshold issue of ICWA coverage is whether the involved child is an “Indian child.” That term includes “any unmarried person who is under the age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an 32 The Holyfield decision has generated abundant legal commentary with respect to its calibration of the tribal interests. E.g., Solangel Maldonado, Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians v. Holyfield, 17 Colum. J. Gender & L. 1, 41 (2008) (discussing, inter alia, the tension in ICWA and Holyfield between “a biological definition of race” reflected in ancestry and “a social and cultural construction of race” reflected by association with tribal life); Diane Allbaugh, Tribal Jurisdiction over Indian Children: Mississippi Band of Choctaw Indians v. Holyfield, 16 Am. Indian L. Rev. 533 (1991) (Holyfield at‑ tempts to balance the interests of the tribe, the child, and the state and reinforces tribal rights to maintain contact with their members); Roger M. Baron, The Resurgence of the “Tribal Interest” in Indian Child Custody Proceedings, 26 Tulsa L.J. 315 (1991) (Holyfield has caused state courts to reconsider previous rulings that failed to recognize the “tribal interest”); Donna J. Goldsmith, Individual vs. Collective Rights: The Indian Child Welfare Act, 13 Harv. Women’s L.J. 1 (1990) (Holyfield’s recognition of collective rights of tribe over the indi‑ vidual actions of tribal members has implications for American Indian women’s rights); see also Richard B. Taylor, Curbing the Erosion of the Rights of Native Americans: Was the Supreme Court Successful in Mississippi Band of Choctaw Indians v. Holyfield?, 29 J. Fam. L. 171 (1990–91) (barriers to state court compliance with the ICWA continue even after Holyfield). 33 Compare In re Baby Boy C., 805 N.Y.S.2d 313, 319 (App. Div. 2005) (“[t]he legal landscape surround‑ ing the [existing Indian family] exception changed in 1989, when the United States Supreme Court decided” Holyfield); In re Adoption of M., 832 P.2d 518, 520–22 (Wash. Ct. App. 1992) (distinguishing In re Adoption of Crews, 825 P.2d 305 (Wash. 1992), and finding child to be “Indian child”); In re Adoption of Lindsay C., 280 Cal. Rptr. 194, 201 (Ct. App. 1991) (ICWA applicable where “Indian child” and “child custody proceeding” are present and statutory divorce and delinquency exceptions are not involved); and In re Adoption of Baade, 462 N.W.2d 485, 489–90 (S.D. 1990) (distinguishing Claymore v. Serr, 405 N.W.2d 650 (S.D. 1987), in light of Holyfield), with Crystal R. v. Superior Ct., 69 Cal. Rptr. 2d 414, 426 (Ct. App. 1997) (“[t]he [Holyfield] court did not mention the existing Indian family doctrine and did not address the issue whether the Act should ap‑ ply in the absence of such a family because both parents in Holyfield resided on the reservation and clearly had significant ties to tribal culture. The purpose of the Act was to prevent the removal of Indian children in precisely such a situation”). Most commentators have expressed disfavor of the existing Indian family doctrine. Compare, e.g., Cheyanna L. Jaffke, The “Existing Indian Family” Exception to the Indian Child Welfare Act: The States’ Attempt to Slaughter Tribal Interests in Indian Children, 66 La. L. Rev. 733, 749–50 (2006) (“With this unambiguous definition [of Indian child], Congress identified the relationship that a parent and child must have with the tribe for the ICWA to apply: membership. [¶] The ‘existing Indian family’ exception adds requirements to this definition”); Kevin Noble Maillard, Parental Ratification: Legal Manifestations of Cultural Authenticity in Cross-Racial Adoption, 28 Am. Indian L. Rev. 107, 129 (2003–2004) (“Because the existing Indian family exception is not stated anywhere within the statutory language of ICWA, each court is left with the discretion to decide its applicability. Such haphazard discretion generates a suspicious jurisdiction question that leaves the parties at the mercy of the personal racial prescriptions of individual courts”); Barbara Ann Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587, 634 (2002) (criticizing the exception as “rewriting the Act’s definition of ‘Indian child’ without statutory basis” and “undercut[ting] the sovereign authority of tribes to determine their own membership”); Lorie M. Graham, “The Past Never Vanishes”: A Contextual Critique of the Existing Indian Family Doctrine, 23 Am. Indian L. Rev. 1 (1998) (same); Christine Metteer, Hard Cases Making Bad Law: The Need for Revision of the Indian Child Welfare Act, 38 Santa Clara L. Rev. 419, 427–36 (1998) (same); and B.J. Jones, The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children Against the Vagaries of State Law, 73 N.D. L. Rev. 395, 400–22 (1997) (same), with Brian Gallagher, Indian Child Welfare Act of 1978: The Congressional Foray into the Adoption Process, 15 N. Ill. U. L. Rev. 81 (1994) (arguing for continued vitality of the existing Indian family doctrine to avoid disrupting adoptions, even after Holyfield).

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Indian tribe[.]”34 The proponent of ICWA coverage bears the burden of prov‑ ing “Indian child” status,35 but actual determination of tribal membership, or entitlement thereto together with membership of a biological parent, is a question committed to the involved tribe’s or, under some circumstances, the BIA’s determination.36 Notice requirements in ICWA are designed to facilitate the opportunity for potentially affected tribes to make those determinations 34 25 U.S.C. § 1903(4); see In re Jose C., 66 Cal. Rptr. 3d 355, 358 (Ct. App. 2007) (where children were eligible for tribal membership but neither biological parent was a member in the tribe, Indian child status did not exist). The term “Indian tribe” extends to “an Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for services provided to Indians by the Secretary [of the Interior] because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43[.]” 25 U.S.C. § 1903(8). Political affiliation with a non–federally recognized tribe thus cannot serve as a predicate for “Indian child” status under the ICWA. In re A.C., 65 Cal. Rptr. 3d 767, 770 (Ct. App. 2007); Alyssa B. v. State, 165 P.3d 605, 610–611 (Alaska 2007); In re Adoption of A.M.C., 246 S.W.3d 426, 429–30 (Ark. 2007); In re Fried, 702 N.W.2d 192, 196 (Mich. Ct. App. 2005); In re A.D.L., 612 S.E.2d 639, 644 (N.C. Ct. App. 2005); In re C.H., 79 P.3d 822, 826 (Mont. 2003); In re P.A.M., 961 P.2d 588 (Colo. Ct. App. 1998); In re John V., 7 Cal. Rptr. 2d 629, 638–39 (Ct. App. 1992); In re T.I.S., 586 N.E.2d 690, 692–93 (Ill. App. Ct. 1991); In re M.C.P., 571 A.2d 627, 633 (Vt. 1989); In re Wanomi P., 264 Cal. Rptr. 623, 632 (Ct. App. 1989); In re Stairwalt, 546 N.E.2d 44, 48 (Ill. App. Ct. 1989); see also In re A.J., 733 A.2d 36 (Vt. 1999) (upholding the constitutionality of excluding non–federally recognized tribes from the protections of the ICWA). One court has explained that “ICWA’s requirement of current tribal membership of at least one party to the pro‑ ceedings is an outgrowth of the limits on Congressional authority in Indian legislation . . . [which] extends only to tribal Indians” and thus “creates a political, rather than a racial, preference.” In re Adoption of C.D., 751 N.W.2d 236, 244 (N.D. 2008); see also In re A.W., 741 N.W.2d 793, 810 (Iowa 2007) (invalidating under the state constitution’s equal rights provision the Iowa ICWA’s expansion of the “Indian child” definition to include children who were not members of, or eligible for membership in, the relevant tribe; notwithstand‑ ing the legislature’s “laudable goal of preservation of Indian tribes, . . . the challenged classification bears insufficient relation to the traditional rationale for upholding federal Indian legislation—advancement of tribal self-government—to be considered a ‘political’ classification”). 35 E.g., In re C.K., 221 S.W.3d 467, 470 (Mo. Ct. App. 2007) (parental rights termination); Knoll v. D.M., 730 N.W.2d 604, 608 (N.D. 2007) (parental rights termination); In re Welfare of M.L.A., 730 N.W.2d 54, 58–59 (Minn. Ct. App. 2007) (parental rights termination); In re C.P., 641 S.E.2d 13, 16–17 (N.C. Ct. App. 2007) (foster care placement); People in Interest of D.T., 667 N.W.2d 694, 699 (S.D. 2003) (parental rights termina‑ tion); Hofmann v. Anderson, 31 P.3d 510, 512 (Or. Ct. App. 2001) (adoption proceeding); In re C.N., 752 N.E.2d 1030, 1044 (Ill. 2001); In re A.L, 623 N.W.2d 418, 420–21 (N.D. 2001) (parental rights termination proceeding); In Interest of M.N.W., 577 N.W.2d 874, 876 (Iowa Ct. App. 1998) (same); see In re J.D.B., 584 N.W.2d 577, 580–82 (Iowa Ct. App. 1998) (ICWA does not preempt state error-preservation rules, and “[h]aving failed to come forward with evidence that the children qualified as ‘Indian,’ [the mother] and the [tribe] cannot now complain the juvenile court did not apply ICWA to the [child-in-need-of-care] proceedings”); cf. Arizona Dep’t of Econ. Sec. v. Bernini, 48 P.3d 512, 515 (Ariz. Ct. App. 2002) (proponent of coverage bore burden of establishing “Indian child” status for purposes of temporary custody proceeding held during period when notice compliance efforts were ongoing but not completed). 36 In re S.L.H.S., 885 N.E.2d 603, 613 (Ind. Ct. App. 2008); In re Adoption of C.D., 751 N.W.2d 236, 241–42 (N.D. 2008); People in Interest of J.A.S., 160 P.3d 257, 260 (Colo. Ct. App. 2007); In re Welfare of C.B., 143 P.3d 846, 854–55 (Wash. Ct. App. 2006); In re H.D., 797 N.E.2d 1112, 1117 (Ill. App. Ct. 2003); In re Dependency of A.L.W., 32 P.3d 297, 301 (Wash. Ct. App. 2001); In re Desiree F., 99 Cal. Rptr. 2d 688, 696 (Ct. App. 2000); In re Welfare of S.N.R., 617 N.W.2d 77, 84 (Minn. Ct. App. 2000); In re Dependency of E.S., 964 P.2d 404, 410 (Wash. Ct. App. 1998); In re Adoption of Riffle, 902 P.2d 542, 545 (Mont. 1995); In re Interest of J.L.M., 451 N.W.2d 377, 387 (Neb. 1990); In re M.C.P., 571 A.2d 627, 633 (Vt. 1989); In re Shawboose, 438 N.W.2d 272, 273 (Mich. Ct. App. 1989); In re Dependency of Smith, 731 P.2d 1149, 1153 (Wash. Ct. App. 1987); State ex rel. Juvenile Dep’t v. Tucker, 710 P.2d 793, 796 n.3, 797 (Or. Ct. App. 1985); In re C.A.J., 709 P.2d 604, 606 (Colo. Ct. App. 1985); In re Appeal in Maricopa County Juvenile Action No. A‑25525, 667 P.2d 228, 232–33 (Ariz. Ct. App. 1983); contra Nelson v. Hunter, 888 P.2d 124 (Or. Ct. App. 1995) (concluding that child’s parent was not eligible for tribal membership under tribal constitution’s eligibility criteria and rejecting tribe’s contrary argument); Barbry v. Dauzat, 576 So. 2d 1013, 1021–22 (La. Ct. App. 1991) (applying state civil law derived from Justinian’s Code to conclude that child with one-quarter Indian blood cannot be an Indian child because Indian ancestry did not come through child’s mother); see 44 Fed. Reg. at 67,586 (Guideline B.1); cf. In re Petition of Phillip A.C., 149 P.3d 51, 56–57, 60 (Nev. 2006) (although tribe’s determination of membership status is conclusive,

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where foster care placement or parental rights termination proceedings are involved.37 A different factual standard—“reason to know”—controls whether such notice is statutorily compelled.38 Notwithstanding the nominally straight‑ forward nature of these basic rules, disputes over “Indian child” status are common, particularly with respect to whether the “reason to know” notice threshold has been reached. 1. Multiple tribal membership and unwed fathers The ICWA anticipates the possibility that an Indian child may be a member, or eligible for membership, in more than one tribe and defines the term “Indian child’s tribe” in such a situation as “the Indian tribe with which the Indian child has the more significant contacts[.]”39 This definition strongly suggests, as the BIA has concluded, that an Indian child has only one tribe for ICWA purposes.40 Where multiple tribal affiliations exist, the state court must accordingly determine with which tribe the child has such contacts, although the Guidelines recommend soliciting the views of all affected tribes before making that decision.41  a party is entitled to dispute the authority of the tribal official to make such determination); People in Interest of D.T., 667 N.W.2d 694, 699 (S.D. 2003) (tribe’s response that child lacked membership did not resolve Indian-child status issue, since such status could be shown by eligibility for membership if biological parent was member). Two potentially limiting considerations as to tribal membership determinations do exist. First, the primacy of tribal decision-making as to membership issues does not mean that a tribe may expand the statutory definition to encompass a child who does not meet that definition. State ex rel. State Office for Servs. to Children and Families v. Klamath Tribe, 11 P.3d 701, 707 (Or. Ct. App. 2000). Second, state law–based evidentiary rules must be considered in establishing the tribal determination itself. In re Adoption of C.D., 751 N.W.2d 236, 242 (N.D. 2008) (state court has duty, inter alia, to resolve the factual question “whether the party who states that the child or parent is a member is authorized to make such statements on the tribe’s behalf”); In re T.J.H., 81 P.3d 504, 507 (Mont. 2003) (declining to resolve hearsay challenge to letter from tribal officer that found no membership status where lack of such status was established by other evidence); In Interest of A.G.-G., 899 P.2d 319, 321 (Colo. Ct. App. 1995) (no one method of proof of tribal membership exists; testimony of tribal government or enrollment may be probative, but testimony of parents without any corroborating evidence was insufficient); Quinn v. Walters, 881 P.2d 795, 800–01 (Or. 1994) (affidavit of tribal registrar concerning child’s eligibility for membership held inadmissible hearsay). 37 25 U.S.C. § 1912(a); see In re Antoinette S., 129 Cal. Rptr. 2d 15, 25 (Ct. App. 2002) (“the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry”). 38 See, e.g., Dwayne P. v. Superior Ct., 126 Cal. Rptr. 2d 639, 649 (Ct. App. 2002) (criticizing social services agency for not “distinguish[ing] between a showing that may establish a child is an Indian child within the meaning of the ICWA and the minimal showing required to trigger the statutory notice provisions”); In re I.E.M., 592 N.W.2d 751, 757 (Mich. Ct. App. 1999) (“[a]lthough the brief testimony regarding respondent’s Indian ancestry was inconclusive regarding her tribal membership status, the information was sufficient to require the state agency to provide notice regarding this proceeding”).

25 U.S.C. § 1903(5).

39

44 Fed. Reg. at 67,587 (Guideline B.2 Commentary).

40

Id. at 67,586–87 (Guideline B.2 (b)); see People in Interest of T.I., 707 N.W.2d 826, 835 (S.D. 2005) (where child was enrolled member of one tribe and eligible for membership in a second tribe, only the first had the right to request transfer of the child custody proceeding); In Interest of J.W., 498 N.W.2d 417, 422 (Iowa Ct. App. 1993) (concluding that where children are eligible for membership in two tribes, notice of proceedings should be given to both tribes and the tribes should make membership determinations); In re Welfare of B.W., 454 N.W.2d 437, 445 (Minn. Ct. App. 1990) (as between two tribes, the “child’s tribe” is the one with which the child has more contacts). California has adopted by statute factors to be considered by its courts in resolving multiple membership issues. Cal. Welf. & Inst. Code § 224.1(d)(2). 41

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Nettlesome questions also may arise when the mother is non‑Indian or possesses an insufficient amount of Indian blood to establish her child as an “Indian child” under applicable tribal law but a putative father does have an adequate quantum of Indian blood that, either alone or in combination with the mother’s, would satisfy membership eligibility requirements. In such an instance, the issue will be whether the putative father qualifies as a “par‑ ent”—a term specifically excluding “the unwed father where paternity has not been acknowledged or established.”42 The only decisions addressing this issue indicate that the mandated acknowledgment or proof of paternity must have occurred prior to termination of the mother’s parental rights and must be determined under state or tribal law standards.43 Consequently, in certain cases determination of “Indian child” status and applicability of the ICWA will necessarily turn on whether a putative father acknowledged or established himself as a “parent” in a timely fashion.44  2. “Reason to know” Section 1912(a) requires a state court in any involuntary child custody proceeding to give notice of the proceeding to a child’s parent or Indian cus‑ todian and the child’s tribe “where the court knows or has reason to know that an Indian child is involved.” No issue related to “Indian child” status has proved more vexing than determining when the “reason to know” threshold has been crossed. The BIA’s Guidelines address this issue under the rubric of

42 25 U.S.C. § 1903(9). “Parent” is defined as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom” but, as stated in the text, excludes unwed fathers unless they have acknowledged or established paternity. See In re Adoption of Baby Girl B., 67 P.3d 359, 367–68 (Okla. Ct. App. 2003) (putative father entitled to notice where he had taken DNA test that established paternity and where, in any event, sufficient evidence was before the trial court to place it on notice that “further inquiry was mandatory in order to ascertain whether [the putative] father had previously qualified as a ‘parent’”); In re N.E.G.P., 626 N.W.2d 921 (Mich. Ct. App. 2001) (putative father was not entitled to notice until he established paternity pursuant to a paternity test); Michael J., Jr. v. Michael J., Sr., 7 P.3d 960, 963 (Ariz. Ct. App. 2000) (where putative father acknowledged paternity, he was parent under the ICWA despite fact that he did not acknowledge paternity in a formal legal proceeding). A non‑Indian may therefore be a “parent.” E.g., K.N. v. State, 856 P.2d 468, 474 n.8 (Alaska 1993) (holding ICWA requirements apply even when the state is seeking to terminate the parental rights of a non-Indian parent); In re Riva M., 286 Cal. Rptr. 592, 597 n.6 (Ct. App. 1991) (concluding that non-Indian biological father is a “parent” within the meaning of the ICWA). 43 In re Daniel M., 1 Cal. Rptr. 3d 897, 900 (Ct. App. 2003); In re Child of Indian Heritage, 543 A.2d 925, 935–37 (N.J. 1988); In re Adoption of Baby Boy D., 742 P.2d 1059, 1064 (Okla. 1985). Whether the forum state’s standards should be applied in determining acknowledgment issues appears unclear in light of Holyfield. There, the Supreme Court held that Congress did not intend the meaning of “domicile” to vary from one jurisdiction to another and that a common law definition, informed by the purposes of the ICWA and not wedded to an individual state’s law, should be used. Holyfield, 490 U.S. at 43–47. 44 See In re Daniel M., 1 Cal. Rptr. 3d at 900 (putative father lacked standing to assert ICWA error on appeal where his paternity had not been acknowledged or established, and applying California law to resolve “parent” status “because the ICWA does not provide a standard for the acknowledgment or establishment of paternity”); A.A. v. State, 982 P.2d 256, 262 (Alaska 1999) (where child of unwed parents is not an “Indian child” unless the putative father acknowledges paternity, the state is not obligated to make active efforts to offer rehabilitative services to the putative father until he acknowledges or establishes paternity).

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“reason to believe” and provide that such reason exists in, but is not limited to, the following instances:

(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child.



(ii) Any public or state-licensed agency involved in child protection services or family support had discovered information which suggests that the child is an Indian child.



(iii) The child who is the subject of the proceeding gives reason to believe he or she is an Indian child.



(iv) The residence or domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominately Indian community.



(v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.45 

The arguable breadth of certain of these criteria, particularly the second and fifth, is tempered by the definition of “Indian child,” which requires tribal membership or eligibility for membership together with actual membership of a biological parent, and not mere Indian ancestry. Some courts have emphasized tribal membership or eligibility for mem‑ bership in holding claims of Indian heritage insufficient to give rise to “reason to know.”46 Other courts, however, have found the requisite “reason to know” on 44 Fed. Reg. at 67,586 (Guideline B.1(c)).

45

E.g., In re Z.H., 740 N.W.2d 648, 653 (Iowa Ct. App. 2007) (“vague statement about [the father’s] Native American heritage” raised on “the eve of termination” after having previously denied such status was insuf‑ ficient to trigger ICWA notice requirements); In re T.A., 883 N.E.2d 639, 647 (Ill. App. 2008) (“bare assertions of Indian heritage,” without any suggestion of tribal membership or eligibility for membership, was insufficient to establish “reason to know”); In re Joseph P., 45 Cal. Rptr. 3d 591, 597 (Ct. App. 2006) (“reason to know” did not arise by virtue of father’s assertion of “Mohegan heritage” during termination hearing held almost one year after the human services agency had given ICWA notice predicated on his claim of American Indian heritage in a tribe whose name he could not remember; “[a]t a minimum, the parent must explain on what basis he is now claiming heritage in a particular tribe”); In re Interest of R.M.W., 188 S.W.3d 831, 834 (Tex. Civ. App. 2006) (assertion that child’s father was of “Indian ‘heritage’” did not give rise to “reason to know” where “there is no evidence or suggestion that any member of the . . . family belongs to an Indian tribe”); In re S.B., 30 Cal. Rptr. 3d 720, 733–34 (Ct. App. 2005) (deeming the absence of any mark in boxes next to entries for possible tribal membership or Indian ancestry to be an “affirmative representation” that ICWA did not apply, and drawing inference that reasonable investigation of Indian child status conducted); In re Aaron R., 29 Cal. Rptr. 3d 921, 929 (Ct. App. 2005) (grandmother’s statement during hearing that she was a member of the “Black Native American Association” was inadequate basis to trigger inquiry into Indian child status, since “[t]he historical association was not itself a tribe[] and the record contains no information regarding its requirements of membership”); In re T.D., 890 So. 2d 473, 475 (Fla. Dist. Ct. App. 2004) (counsel’s statement prior to rebuttal closing argument concerning possible Indian heritage was insufficient to require further inquiry by trial court); In re C.H., 79 P.3d 822, 828 (Mont. 2003) (trial court deemed to have “reason to know” of possible Indian child status for any future child custody proceedings where issue was raised for first time after entry of parental-rights termination order); In re Aaliyah G., 135 Cal. Rptr. 2d 680, 681 (Ct. App. 2003) (where state agency marked box that indicated no Indian status and subsequently reported that ICWA was inapplicable, court had no obligation to conduct further inquiry “absent any information or suggestion that the child might have Indian heritage”); In re Termination of Parental Rights to Arianna R.G., 657 N.W.2d 363, 370 (Wis. 2003) (father, although claiming Indian heritage for affected child, “has never asserted that the children are members of a federally recognized tribe and are biological children of a tribe member”); In re 46

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the basis of Indian heritage.47 The latter construction has been justified on the fact that “‘biological descendance’ is often a prerequisite for tribal membership” and that “the bar is indeed very low to trigger ICWA notice” given the Guide‑ lines and tribal interests.48 Those courts adopting the broader construction have O.K., 130 Cal. Rptr. 2d 276, 279 (Ct. App. 2003) (“[t]he information provided by the paternal grandmother that the father ‘may have Indian in him’ was not based on any known Indian ancestors but on [a] nebulous assertion”); In re Guardianship of J.O., 743 A.2d 341, 347 (N.J. Super. Ct. App. Div. 2000) (simple assertion by a parent that the child might have Indian ancestry, absent an offer of any evidence regarding child’s membership status or tribal affiliation, is insufficient to compel conclusion that the child is an Indian child under the ICWA); In re M.S., 706 N.E.2d 524, 527 (Ill. App. Ct. 1999) (observing that mother “failed even to allege that her children would fall within the meaning of ‘Indian children’ under the ICWA. If her children are not eligible for membership in an “Indian tribe,” then the ICWA is inapplicable”); see also In re Rebecca R., 49 Cal. Rptr. 3d 951, 953–54 (Ct. App. 2006) (rejecting contention that duty to inquire as to Indian child status had not been discharged adequately given the absence of “inconsistencies in the evidence to rebut the presumption that [the responsible agency] properly carried out its duties[,]” and remarking that “[t]he ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves”); In re E.H., 46 Cal. Rptr. 3d 787, 789 (Ct. App. 2006) (no error in trial court’s concluding that the ICWA did not apply given mother’s failure to object to social worker reports that indicated no such application). 47 E.g., In re Interest of M.B., 176 P.3d 977, 983 (Kan. Ct. App. 2008) (“reason to know” existed on the basis of mother’s claim of “Cherokee” tribal affiliation notwithstanding fact that neither parent was an enrolled member since enrollment “‘is not the only means [of determining member status] nor is it neces‑ sarily determinative”); People in Interest of S.R.M., 153 P.3d 438, 443 (Colo. Ct. App. 2006) (adequate reason to know since “[w]hen the caseworker filed the motion to terminate, she knew that that child would be eligible to enroll in the [tribe] if mother enrolled”); B.H. v. People in Interest of X.H., 138 P.3d 299, 304 (Colo. 2006) (mere fact that neither parent nor child was a “registered” member of a tribe was insufficient to ne‑ gate notice obligation given “the possibility” of the mother’s and grandmother’s membership in a federally recognized tribe; “[b]ecause membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act[,] with those criteria “includ[ing], but not necessarily limited to, such considerations as enrollment, blood quantum, lineage, or residence on a reservation”); In re Dependency of T.L.G., 108 P.3d 156, 161 (Wash. Ct. App. 2005) (“tribal enrollment is not the only means of establishing Indian heritage”); In re Nikki R., 131 Cal. Rptr. 2d 256, 258 (Ct. App. 2003) (“At the detention hearing, the juvenile court asked the mother if she or the alleged father had American Indian heritage. The mother replied that she did not, but the father had Cherokee heritage”); In re Antoinette S., 129 Cal. Rptr. 2d 15, 21 (Ct. App. 2002) (“reason to know” existed where social services agency “file[d] petition indicating [child] ‘may be of Indian ancestry’”); In re Suzanna L., 127 Cal. Rptr. 2d 860, 866 (Ct. App. 2002) (“[T]he evidence did not show that [the child] was, in fact, an Indian child; i.e., it did not show that she was a member of, or eligible for membership in, an Indian tribe or that Edward was a member of an Indian tribe. However, it did show that [the father’s] maternal grandparents were Indian”); In re T.M., 628 N.W.2d 570, 573 (Mich. Ct. App. 2001) (per curiam) (mother’s testimony that she had Indian heritage was sufficient to trigger notice requirements of ICWA); S.H. v. Calhoun County Dep’t of Human Res., 798 So. 2d 684, 692 (Ala. Ct. App. 2001) (failure to notify tribe of termination of parental rights proceeding required reversal and remand where court disallowed mother’s testimony regarding her Indian heritage and applicability of the ICWA); In re Kahlen W., 285 Cal. Rptr. 507, 511, 513 (Ct. App. 1991) (notice required “whenever the court knows or has reason to believe the child is an Indian child” irrespective of “how late in the proceedings a child’s possible Indian heritage is discovered”); see also In re Christopher W., 19 Cal. Rptr. 3d 296, 299–300 (Ct. App. 2004) (even though father reported that his great-great-grandmother was Cherokee Indian, trial court had no reason to know or believe that dependent child was Indian child within meaning of ICWA where both biological parents disavowed tribal membership); In re M.C.P., 571 A.2d 627, 634 (Vt. 1989) (requiring notice to be given tribe since “[t]he father’s membership in [the] tribe alone gives reason to know that the juvenile could be a member of the tribe and thus an Indian child”). However, even courts that might otherwise apply the more lenient standard have drawn a line between “bare” assertions and no assertions. E.g., In re N.E., 73 Cal. Rptr. 3d 123, 126 (Ct. App. 2008) (no prejudice shown where, even on appeal, father “still declines to assert he in fact has Indian ancestry”). 48 In re Antoinette S., 129 Cal. Rptr. 2d at 21. The Antoinette S. court additionally relied upon Cal. R. Ct. 1439(d) for its holding. The rule states that circumstances which “may provide probable cause for the court to believe the child is an Indian child include,’ inter alia, when ‘[a] party . . . provides information

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ameliorated the practical impact of reversing child custody proceeding orders by providing for reinstatement of the vacated order if “Indian child” status is not found on remand after appropriate notice to affected tribes or the BIA.49 Finally, where the requisite “reason to know” arises after orders have been entered in a child custody proceeding, ICWA requirements presumably apply only to future actions that may be taken in the proceeding.50  II. JURISDICTION UNDER THE ICWA Once it determines that an Indian child is the subject of a child custody proceeding, a state court must decide whether it has authority to proceed with the action. That decision will be governed by section 1911(a) and (b) of the ICWA. Those provisions contain the statute’s basic jurisdictional mandates. A. Exclusive Tribal Jurisdiction Over All Child Custody Proceedings Under section 1911(a) of the ICWA, tribal jurisdiction is exclusive as to all child custody proceedings when the Indian child resides or is domiciled on the involved tribe’s reservation “except where such jurisdiction is vested in the State by existing Federal law[,]” or, regardless of residence or domicile, the child is a ward of the tribal court. Section 1911(a) thus can be read as giving a tribe exclusive jurisdiction over any Indian child residing or domiciled within

suggesting that the child is an Indian child.’” Id. A prior decision held that “rule 1439 imposes substantively the same criteria as the Guidelines for determining when notice is necessary.” Dwayne P. v. Superior Ct., 126 Cal. Rptr. 2d 639, 647 (Ct. App. 2002) ; see also In re Miguel E., 16 Cal. Rptr. 3d 530, 551 (Ct. App. 2004) (relying on Dwayne P. for proposition that “[a] hint may suffice for this minimal showing”). Indeed, by court rule a California child services agency has “‘an affirmative and continuing duty to inquire whether a child for whom a petition under [Welfare and Institutions Code] section 300 . . . has been [] filed is or may be an Indian child’” even without evidence of Indian child status. In re J.N., 41 Cal. Rptr. 3d 494, 502 (Ct. App. 2006). 49 E.g., In re Justin S., 59 Cal. Rptr. 3d 376, 383–84 (Ct. App. 2007) (requiring (1) the involved parent to “be given the opportunity to participate in the proceedings on remand” with the assistance of counsel and (2), in accordance with a court rule, a period of at least 60 days between serving the ICWA notice and the ICWA applicability hearing, with proof of service and any responses filed in advance of the hearing); Nicole K. v. Superior Ct., 53 Cal. Rptr. 3d 251, 255–56 (Ct. App. 2007) (all orders in case must be vacated in light of failure to provide the required ICWA notice, with reinstatement contingent on tribe’s determining that the involved minors are not Indian children or not responding); B.H. v. People in Interest of X.H., 138 P.3d 299, 304 (Colo. 2006) (“[i]f it is ultimately determined, after proper notice, that [the child] is not an Indian child, the district court’s order terminating parental rights shall stand affirmed”); In re Brooke C., 25 Cal. Rptr. 3d 590, 595 (Ct. App. 2005) (“[i]f, after proper notice is given under the ICWA, [the child] is determined not to be an Indian child and ICWA does not apply, prior defective notice becomes harmless error”); In re Kenneth M., 19 Cal. Rptr. 3d 752, 757 (Ct. App. 2005) (“[i]f after proper notice, the . . . tribes either do not respond or determine that the minors are not Indian children with respect to the . . . tribes, the juvenile court shall reinstate the orders”); Dwayne P. v. Superior Ct., 126 Cal. Rptr. 2d at 651 (“[i]f, after receiving notice, no tribe intervenes, the juvenile court shall reinstate its order”). 50 See In re Adoption of Kenten H., 725 N.W.2d 548, 555 (Neb. 2007) (discussing ICWA decisional au‑ thority that addresses the question of the statute’s applicability to orders entered prior to when the trial court had reason to know of possible Indian status, and holding that “[t]hese cases establish the principle that the provisions of ICWA . . . apply prospectively from the date Indian child status is established on the record”).

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that tribe’s reservation even if such tribe is not the “Indian child’s tribe.” Sec‑ tion 1911(b), however, permits the exercise of state court jurisdiction over an Indian child “not domiciled or residing within the reservation of the Indian child’s tribe.” This arguable conflict has not received judicial attention, but various considerations militate toward limiting exclusive tribal jurisdiction under the residence or domicile prong of section 1911(a) only to the “Indian child’s tribe.” First, significant equal protection issues arise if Indian children in‑ eligible for membership in the reservation tribe are treated differently than non‑Indian children living on the reservation. Any such distinction would be racial, since the political relationship reflected by actual or possible tribal membership would not exist.51 Second, the absence of exclusive tribal juris‑ diction over membership‑ineligible Indian children would not contravene ac‑ cepted principles of tribal sovereignty in civil matters, which have established that nonmember Indians and non‑Indians are similarly situated.52 Third, as to children who are members or eligible for membership in the reservation tribe but have more significant contacts with another tribe, vesting exclusive jurisdiction in a tribe other than the affected child’s tribe would run counter to the ICWA’s objective of permitting tribes to protect their societal interest in their children and its premise that a child has only one tribe for child cus‑ tody proceeding purposes.53 Fourth, the ICWA’s legislative history reflected no intent to expand the sovereignty rights of one tribe as against members of different tribes but, instead, indicated only that the statute’s jurisdictional standards paralleled extant case law; those decisions, in turn, recognized ex‑

51 See, e.g., United States v. Antelope, 430 U.S. 641, 646 (1977); Morton v. Mancari, 417 U.S. 535, 553–54 (1974). The Department of Justice expressed concern over the constitutionality of the definition of “Indian child” insofar as it extends such status to a person who is not actually a tribal member. H.R. Rep. No. 1386, supra note 2, at 35–40, reprinted in 1978 U.S.C.C.A.N. at 7558–63. The racial versus membership distinc‑ tion has received substantial academic attention. See generally Christine M. Metteer, A Law Unto Itself: The Indian Child Welfare Act as Inapplicable and Inappropriate to the Transracial/Race-Matching Adoption Controversy, 38 Brandeis L.J. 47, 57–66 (Fall 1999/Fall 2000) (characterizing ICWA as a statute predicated on the unique trust relationship between the United States and Indians and on the quasi-sovereign nature of tribes thereby distinguishable from laws or other official actions directed at fostering race-matching adoptions); Carole Goldberg-Ambrose, Not “Strictly” Racial: A Response to “Indians as Peoples,” 39 UCLA L. Rev. 169 (1991) (discussing the special status of Indians); David Williams, Sometimes Suspect: A Response to Professor Goldberg-Ambrose, 39 UCLA L. Rev. 191 (1991) (defending his equal protection analysis of Indians’ special status); John Robert Renner, The Indian Child Welfare Act and Equal Protection Limitations on the Federal Power Over Indian Affairs, 17 Am. Indian L. Rev. 129 (1992) (describing limits of federal authority as constrained by the Equal Protection Clause). Federal law generally prohibits persons or governments involved in adoption or foster care placements from denying any individual “the opportunity to become an adoptive or foster parent on the basis of the race, color, or national origin of the individual, or the child, involved” or to “delay or deny the placement of a child for adoption or into foster care[] on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved.” 42 U.S.C. § 1996b(1). This statute, however, expressly disclaims any intent to affect the ICWA’s application. Id. § 1996b(3). 52 Duro v. Reina, 495 U.S. 676, 688 (1990); Rice v. Rehner, 463 U.S. 713, 720 (1983); Washington v. Confederated Tribes of Colville Reserv., 447 U.S. 134, 161 (1980). 53 Cf. In re Adoption of Halloway, 732 P.2d 962, 969–70 (Utah 1986) (ICWA “recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents”).

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clusive tribal jurisdiction in child custody matters involving a tribe’s children domiciled on its reservation.54 Fifth, to the extent a state court is authorized to maintain jurisdiction under section 1911(b), it is arguable the “existing Federal law” exception in section 1911(a) applies. A different conclusion, however, may be warranted where an Indian child eligible for membership only in one tribe has been made a ward of another tribe’s court. Such an order would be entitled to full faith and credit consideration under section 1911(d), where the tribal court otherwise has jurisdiction over child custody proceedings, and no conflict between section 1911(a) and 1911(b) exists since the child’s domicile or residence is not an issue. The concept of domicile is not defined in the statute,55 but the Supreme Court held in Mississippi Band of Choctaw Indians v. Holyfield56 that, notwith‑ standing the lack of such a definition, there was “no reason to believe Con‑ gress intended to rely on state law for the definition of a critical term[.]”57 The Court instead looked “both to the generally accepted meaning of . . . ‘domicile’ and to the purpose of the statute.”58 It then concluded the newborn twins in question were domiciled on their mother’s reservation even though she had purposefully given birth off‑reservation to facilitate their adoption by nonmembers, reasoning that “to permit individual members of the tribe to avoid tribal exclusive jurisdiction by the simple expedient of giving birth off the reservation would, to a large extent, nullify the purpose the ICWA was intended to accomplish.”59 Holyfield accordingly indicates that, while ordinary rules for resolving domicile issues govern, courts must be careful to apply

54 H.R. Rep. No. 1386, supra note 2, at 21, reprinted in 1978 U.S.C.C.A.N. at 7543–44; see Wisconsin Potawatomies v. Houston, 393 F. Supp. 719 (W.D. Mich. 1973) (tribe, rather than state probate court, had au‑ thority to control custody and placement of Indian children domiciled on reservation when probate court assumed jurisdiction); Wakefield v. Little Light, 347 A.2d 228 (Md. 1975) (state court did not have jurisdiction over custody proceeding where Crow Indian child domiciled on Crow Reservation); In re Greybull, 543 P.2d 1079, 1080 (Or. Ct. App. 1975) (rejecting argument that state court jurisdiction did not exist as to termination of parental rights action where the involved children never resided on reservation, because “[t]he general rule is that Indians domiciled off their reservation are subject to state laws”). 55 The BIA had previously declined to define, among others, the term “domicile” in the Guidelines, remarking that “[s]uch definitions were not included because those terms are well defined under existing state law” and “[t]here is no indication that the state law definitions tend to undermine in any way the purposes of the Act.” 44 Fed. Reg. at 67,585. 56

490 U.S. 30 (1989).

Id. at 44.

57

Id. at 47.

58

Id. at 52; accord People ex rel. S.G.V.E., 634 N.W.2d 88, 92 (S.D. 2001) (applying Holyfield standards, and concluding that mother domiciled off reservation because of conduct that indicated her move from reservation was not intended to be temporary); In re Custody of K.K.S., 508 N.W.2d 813 (Minn. Ct. App. 1993) (kidnapping of child by parent removing child from reservation to avoid tribal court jurisdiction did not divest tribal court of jurisdiction); but see In re Adoption of S.S., 657 N.E.2d 935, 941–42 (Ill. 1995) (dis‑ tinguishing Holyfield where Indian parent residing on reservation allegedly abandoned children who were being raised off reservation); cf. Navajo Nation v. Confederated Tribes and Bands of Yakama Indian Nation, 331 F.3d 1041, 1044–45 (9th Cir. 2003) (accepting state trial court’s domicile determination after “clear error review” without discussion of choice of law issue). 59

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them consistently with the underlying purposes of the ICWA—a cardinal one of which is to give tribes adjudicatory jurisdiction over child custody proceed‑ ings involving their children.60 The final sentence of section 1911(a), which provides for exclusive tribal jurisdiction irrespective of a child’s domicile or residence if the child is a tribal court ward, has not been extensively litigated, but courts have disagreed over its scope.61  There are two statutory exceptions to section 1911(a)’s grant of exclusive tribal jurisdiction.62 The first is contained in that provision’s exception for situ‑ ations where “jurisdiction is otherwise vested in the State by existing Federal law.” The most common instance of this exception’s applicability is in those states that have assumed civil jurisdiction over Indian reservations under

60 See also In re Adoption of Halloway, 732 P.2d 962, 968 (Utah 1986) (“[i]n effect, Congress used the domicile of the child as a basis for distinguishing between those who maintain close ties with the tribe and, therefore, should be subject to its exclusive control and those who are sufficiently removed from the tribe and its ways to justify giving jurisdiction over them to non‑Indian courts in certain circumstances”); cf. In re Baby Girl Doe, 865 P.2d 1090, 1093–95 (Mont. 1993) (relying on Holyfield’s federal law analysis to reconcile conflict between § 1915(a) requiring compliance with tribal placement preferences and § 1915(c) requiring deference to parental request for anonymity). 61 Compare In re Parental Placement of M.R.D.B., 787 P.2d 1219, 1222–24 (Mont. 1990) (finding wardship status even after tribal court had granted mother’s petition to regain physical custody of child), with In re J.D.M.C., 739 N.W.2d 796, 805 (S.D. 2007) (“the only effective way a wardship order can be used to obtain exclusive jurisdiction is to enter the order while the Indian child is domiciled or residing on the reserva‑ tion and before the proceeding commenced”) (footnote omitted); In re Interest of Dakota L., 712 N.W.2d 583, 592–93 (Neb. Ct. App. 2006) (exclusive jurisdiction provision of Nebraska Indian Child Welfare Act inappli‑ cable because evidence of wardship status was inconclusive and children were domiciled off reservation); People ex rel. S.G.V.E., 634 N.W.2d 88, 92–93 (S.D. 2001) (no wardship status where record did not disclose continuing tribal court jurisdiction over child); and In re Adoption of T.R.M., 525 N.E.2d 298, 306 (Ind. 1988) (limiting availability of tribal wardship orders to instances where they “are entered while the child is resid‑ ing or domiciled on the reservation”); see generally Patrice H. Kunesh, Borders Beyond Borders—Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act, 42 New Eng. L. Rev. 15 (2007) (tracing ICWA’s development, discussing decisional authority concerned with the wardship provision in § 1911(a), and criticizing J.D.M.C). 62 Aside from the statutory exceptions, 25 U.S.C. § 1919(a) permits states and tribes “to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case‑by‑case basis and agreements which provide for concurrent jurisdiction between States and Indian tribes.” Consequently, a tribe that otherwise has exclusive jurisdiction under § 1911(a) may consent to the exercise of state court jurisdiction in a specific case or class of cases. Any such agreement may be revoked upon 180 days’ written notice, but revocation does not affect “any action or proceeding over which a court has already assumed jurisdiction, unless the agreement provides otherwise.” Id. § 1919(b); see Sayers v. Beltrami County, 481 N.W.2d 547, 550–52 (Minn. 1992) (recognizing a long-standing arrangement or “infor‑ mal understanding” between the tribe and the county for the county to provide courtesy supervision of children and the county to maintain a branch office on the reservation as an ICWA agreement authorized by § 1919(a)); cf. In re J.D.M.C., 739 N.W.2d at 807 (rejecting tribe’s reliance on a purchase service agreement as providing exclusive jurisdiction over child custody proceedings because, construed in accordance with ordinary contract principles, a jurisdictional transfer “was not within the contemplation of the parties”); see generally Patrice Kunesh, Building Strong, Stable Indian Communities Through the Indian Child Welfare Act, 27 Clearinghouse Rev. 753, 757–58 (1993) (advocating the use of tribal-state agreements); cf. Indian Child Protection and Family Violence Protection Act, 25 U.S.C. § 3210(d)(3)(C) (authorizing use of federal funds to “provide for the coordination and cooperation of law enforcement agencies, courts of competent jurisdiction, and other tribal, Federal, and State agencies through intergovernmental or interagency agree‑ ments that define and specify each party’s responsibilities”).

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Public Law 28063 or similar laws, but section 1918 authorizes tribes subject to such jurisdiction to reassume authority over child custody proceedings upon approval by the Secretary of the Interior.64 The second exception arises with respect to emergency removals of a child “who is a resident or domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian” pursuant to section 1922. The sole purpose of emergency removals is “to prevent imminent physical damage or harm to the child[,]” and the responsible state official must “expeditiously initiate a child custody proceeding subject to the provisions of [the ICWA], transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.”65 No specific time requirements are imposed with respect to the transfer to tribal jurisdiction, but the Guidelines state it should occur as soon as the tribe asserts jurisdiction if the grounds for the emergency removal continue.66  B. Preferred Tribal Jurisdiction Over Foster Care Placement and Parental Rights Termination Proceedings Under 25 U.S.C. § 1911(b), when an Indian child is not domiciled on or a resident of the reservation of the child’s tribe, the ICWA establishes a pref‑ erence for tribal court jurisdiction over foster care placement and parental rights termination proceedings. That preference is subject to rebuttal on sev‑ eral grounds: good cause for nontransfer, parental opposition, and tribal court declination. Whether it applies only to involuntary foster care placement and parental rights termination proceedings and when Public Law 280 jurisdiction exists is unresolved. 63 Act of Aug. 15, 1953, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321–25, and 28 U.S.C. § 1360); see Native Vill. of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 555 (9th Cir. 1991).

25 C.F.R. § 13.1–13.16; see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 42 n.16 (1989); Doe v. Mann, 415 F.3d 1038, 1061–62 (9th Cir. 2005); In re F.P., 843 P.2d 1214, 1215–16 (Alaska 1992), overruled, In re C.R.H., 29 P.3d 849 (Alaska 2001); In re K.E., 744 P.2d 1173 (Alaska 1987) (per curiam); see generally Andrea V.W. Wan, The Indian Child Welfare Act and Inupiat Customs: A Case Study of Conflicting Values with Suggestions for a Change, 21 Alaska L. Rev. 43, 72 (2004) (recommending that “forms should be developed for tribes seeking to file reassumption petitions, providing examples to follow without forcing tribes to seek costly legal counsel” and that assistance should be provided by, inter alia, the Department of the Interior to avoid tribes’ being “deterred by the difficulties in complying with the requirements of filing the petition”). Consistent with the definition of “child custody proceeding” in § 1903(1), the Ninth Circuit has rejected the contention that the “existing Federal law” exception applies only to voluntary proceedings—and therefore not to a state-initiated child dependency proceeding—where the state court is exercising civil jurisdiction authorized under Public Law 280. Mann, 415 F.3d at 1059–67. An unlitigated question is whether a state court, other than one in the state where the reservation is located, must defer to tribal court jurisdiction prior to reassumption of jurisdiction over child custody proceedings pursuant to 25 U.S.C. § 1918. The definition of “tribal court” suggests not, since in relevant part that term means “a court with jurisdiction over child custody proceedings[.]” A different conclusion, moreover, would result in a senseless distinction between state courts similarly situated except as to location. 64

65 25 U.S.C. § 1922. Consistent with the emergency nature of such removals, notice need not be given to a tribe prior to removal. State ex rel. Juvenile Dep’t of Clackamas County v. Charles, 810 P.2d 393, 395 (Or. Ct. App. 1991).

44 Fed. Reg. at 67,589 (Guideline B.7(c)).

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Most reported decisions concerned directly with section 1911(b) center on determining whether good cause exists not to transfer. Moreover, because involuntary foster care placement or termination of parental rights proceedings invariably is involved, issues over compliance with the notice requirements in section 1912(a) are commonplace. These requirements apply regardless of whether mandatory or preferred tribal court jurisdiction may be at stake, but litigation over them has occurred almost exclusively in connection with proceedings subject to section 1911(b). It is thus both convenient and logical to address notice issues as a component of a state court’s determination of preferred jurisdiction questions under section 1911(b). 1. General scope Section 1911(b) provides: In any State court proceeding for foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

This section, literally read, applies to all foster care placement or ter‑ mination of parental rights proceedings. Whether that construction is correct appears questionable when viewed in pari materia with section 1911(a), which provides for notice to an Indian child’s tribe only in involuntary foster care placement and termination of parental rights proceedings.67 The reading that section 1911(b) does not extend to voluntary foster care and parental rights termination proceedings also is consistent with the ability of the child’s par‑ ent to block transfer to tribal court and the concomitant assumption that such parent desires state court adjudication. This issue has not been judicially addressed. In any event and unlike section 1911(a), which encompasses all forms of child custody proceedings, section 1911(b) applies only to foster care placement and termination of parental rights proceedings; i.e., where pre‑ adoptive placement or adoptive placement is at issue and the Indian child is not a resident or domiciliary of its tribe’s reservation, ICWA does not require transfer to tribal court.68  67 Navajo Nation v. Superior Ct., 47 F. Supp. 2d 1233, 1237–38 (E.D. Wash. 1999), aff’d on other grounds, 331 F.3d 1041 (9th Cir. 2003); In re Interest of J.J., 454 N.W.2d 317, 327 (S.D. 1990); Catholic Soc. Servs., Inc. v. C.A.A., 783 P.2d 1159, 1160 (Alaska 1989) (per curiam); see also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 57–58 (1989) (Stevens, J., dissenting) (“[t]he Act provides for a tribal right of notice and intervention in involuntary proceedings, but not in voluntary ones”); 59 Fed. Reg. 2248, 2254 (Jan. 13, 1994) (rejecting recommendation to require notice to tribes in voluntary child custody proceedings). 68 E.g., In re A.P., 962 P.2d 1186, 1189–91 (Mont. 1998) (transfer provisions do not apply to adoption proceedings after parental rights had been terminated); In re Matter of J.B., 900 P.2d 1014 (Okla. Civ. App.

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Section 1911(b), also unlike section 1911(a), makes no reference to in‑ stances where jurisdiction is otherwise vested in a state by federal law, and it is thus unclear whether its transfer requirement applies when the tribe to whose court the transfer would be made is subject to Public Law 280 jurisdiction. The Alaska Supreme Court held initially in Native Village of Nenana v. State69 that the transfer requirement was inapplicable where Public Law 280 jurisdiction existed. However, it overruled Nenana in In re C.R.H.70 The C.R.H. court distin‑ guished section 1911(a), which it construed as “mak[ing] clear [that] Congress intended P.L. 280 to affect tribes’ exclusive jurisdiction[,]” from section 1911(b) where, through its reference to “any State” and Congress’s failure to “articulate a P.L. 280 exception to tribal transfer jurisdiction[,]” no such intent could be inferred.71 The effect of this construction is to vest Public Law 280 state courts with jurisdiction over foster care placement and parental right termination proceedings for Indian children residing on reservation without any transfer obligation but to establish preferred tribal jurisdiction over Indian children who do not reside on reservation. The Alaska court did not address this seeming anomaly, perhaps because there is little Indian country in the state.72 

1995) (same). The absence of a transfer obligation as to preadoptive and adoptive placement proceedings, however, does not mean they are exempt from all provisions of the ICWA. See 25 U.S.C. §§ 1913(c), 1915–1917, 1919, 1920. 722 P.2d 219, 221 (Alaska 1986).

69

29 P.3d 849 (Alaska 2001).

70

Id. at 852–53; but see Native Vill. of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 555 (9th Cir. 1991) (indicating in dictum that referral under § 1911(b) not required in Public Law 280 state absent affirmative authorization by Secretary of the Interior under 25 U.S.C. § 1918) ; 2004 Alaska Op. Atty. Gen. 1 (constru‑ ing C.R.H. as holding that Alaska tribes that have not reassumed jurisdiction pursuant to Public Law 280’s provisions may request transfer under § 1911(b), but otherwise leaving Nenana intact); see generally Daniel L. Meehan, Comment, Native Children in Alaska: The State of Tribal Self-Determination in Child Custody Proceedings, 32 Am. Indian L. Rev. 167 (2007–2008) (discussing the 2004 Attorney General’s opinion and the related case law). The California Court of Appeals subsequently reached the same conclusion as C.R.H. but with additional analysis. In re M.A., 40 Cal. Rptr. 3d 439 (Ct. App. 2006). It construed the reference in § 1918(a) to “reassum[ing] jurisdiction” to mean reassuming exclusive jurisdiction over child custody matters that existed prior to Public Law 280’s passage and stressed that “the Tribe’s failure to obtain the Secretary’s approval does not mean that it lacks jurisdiction to adjudicate a juvenile dependency proceeding or to ac‑ cept transfer of this case.” Id. at 443. The court rejected the county child services department’s reliance on § 1918(b)(2)—which provides that the Secretary may accept partial retrocession that “will enable tribes to exercise referral jurisdiction” when “the jurisdictional provisions of [§ 1911(a)] are not feasible”—because it deemed that construction to produce the “absurd result” of conditioning reassumption of jurisdiction over referral cases upon a tribe’s “request[ing] complete jurisdiction, which the Secretary must consider and reject[;]” i.e., a tribe would be foreclosed from simply seeking reassumption of jurisdiction over referral cases. Id. at 444. The court of appeals further found unpersuasive the department’s reliance on the “con‑ fusing passage” in the Ninth Circuit’s Venetie I.R.A. Council opinion concerning the applicability of § 1918 to § 1911(b)–based referral jurisdiction, reasoning that § 1918 was limited to reacquiring jurisdiction “lost through the enactment of Public Law 280” and that referral jurisdiction “was newly created by ICWA.” Id. at 445. 71

72

See Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520 (1998).

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An oral transfer request by a tribe or a parent has been found sufficient for section 1911(b) purposes,73 but the formalities attendant to a tribal decli‑ nation of jurisdiction are disputed.74 Objection by either parent bars transfer irrespective of a contrary tribal request.75  2. Notice requirements Where a state court “knows or has reason to know that an Indian child is involved,”76 section 1912(a) provides that “the party seeking the foster care placement of, or termination of parental rights to, an Indian child” is responsible for giving notice77 of the proceeding and the right to intervene78

73 In re Shawnda G., 634 N.W.2d 140, 144–45 (Wis. Ct. App. 2001); In re People in Interest of J.L.P., 870 P.2d 1252, 1257–58 (Colo. Ct. App. 1994); In re Laurie R., 760 P.2d 1295, 1299 (N.M. Ct. App. 1988); see 44 Fed. Reg. at 67,590 (Guideline C.1); see generally Andrea V.W. Wan, The Indian Child Welfare Act and Inupiat Customs: A Case Study of Conflicting Values with Suggestions for a Change, 21 Alaska L. Rev. 43, 47–48 (2004) (discussing availability of reassumption under § 1918 without addressing question whether the Public Law 280 exception applies where child is not domiciled on a “reservation” as defined in ICWA). 74 Compare In the Interest of C.Y., 925 P.2d 447, 449 (Kan. 1996) (“it is the tribal court which must decline to exercise jurisdiction over a case transferred to it under § 1911(b)”), with J.S. v. State, 50 P.3d 388, 393 (Alaska 2002) (state court possessed jurisdiction since “[t]here is evidence that the . . . Tribe reserved the right to petition that the proceedings be transferred to the tribal court but there is no indication that a petition was ever filed”); and People ex rel. Interest of A.N.W., 976 P.2d 365, 368 (Colo. Ct. App. 1999) (“tribe essentially declined jurisdiction” by intervening in state proceeding “only to ensure compliance with the procedural requirements of the ICWA”); see 44 Fed. Reg. at 67,592 (Guideline C.4(b)) (“[t]he tribal court may inform the state court of its decision to decline either orally or in writing”); cf. In re J.M., 718 P.2d 150, 154–56 (Alaska 1986) (refusing to find waiver of tribal court jurisdiction over ward where Native village chief’s letter did not do so unambiguously and where, in any event, chief lacked authority to waive jurisdiction under the village’s internal law). 75 Brown on Behalf of Brown v. Rice, 760 F. Supp. 1459, 1463 (D. Kan. 1991); People in Interest of D.G., 679 N.W.2d 497, 501 n.1 (S.D. 2004) (per curiam); In re K.D., 630 N.W.2d 492 (S.D. 2001); In re Interest of D.A.C., 933 P.2d 993, 995–97 (Utah Ct. App. 1997); In re Appeal in Maricopa County Juvenile Action No. JD-6982, 922 P.2d 319 (Ariz. Ct. App. 1996); In re Larissa G., 51 Cal. Rptr. 2d 16 (Ct. App. 1996); In re W.L., 859 P.2d 1019, 1021 (Mont. 1993); In re Appeal in Maricopa County Juvenile Action No. JS‑7359, 766 P.2d 105, 108 (Ariz. Ct. App. 1988); In re S.Z., 325 N.W.2d 53, 56 (S.D. 1982); see 44 Fed. Reg. at 67,590 (Guideline C.2(a)); H.R. Rep. No. 1386, supra note 2, at 21, reprinted in 1978 U.S.C.C.A.N. at 7544; cf. In re Andrea Lynn M., 10 P.3d 191, 195 (N.M. Ct. App. 2000) (transfer over objection of parent was appropriate where child and both parents were enrolled members and evidence did not establish whether child was domiciled on reservation); In re Welfare of R.I., 402 N.W.2d 173, 177 (Minn. Ct. App. 1987) (oral objection by parent not honored by state court where tribal court had found consent to transfer when parent left children on reservation with relatives).

See supra notes 45–50 and accompanying text (discussing “reason to know” standards).

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25 U.S.C. § 1912(a); see In re Suzanna L., 127 Cal. Rptr. 2d 860, 866 (Ct. App. 2002) (mother seeking termination of father’s parental rights to facilitate cross-adoption, not social services agency, “technically” had obligation to give notice). 77

78 See, e.g., In re G.S.R., 72 Cal. Rptr. 3d 398, 408 (Ct. App. 2008) (notices insufficient because they were “confusing” and “contain[ed] conflicting information”); In re Suzanna L., 127 Cal. Rptr. 2d at 868 (remand‑ ing because of § 1912(a) violation where “insufficient evidence existed that the [social services agency] properly notified the tribes, not only of the proceeding, but also of their right to intervene”); In re Jeffrey A., 127 Cal. Rptr. 2d 314, 318 (Ct. App. 2002) (“request for verification” of membership form insufficient notice because it did not “contain[] notice of the proceedings and of the right to intervene”); In re Samuel P., 121 Cal. Rptr. 2d 820, 825 (Ct. App. 2002) (notice insufficient when, “although the Department sent a request for confirmation of the child[’s] status to the pertinent tribe after learning of the mother’s family’s possible affiliation, there was no information about the dependency proceedings, no court number identifying the proceedings, and no notice informing the tribe of the dates of any of the hearings”).

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to the parent or Indian custodian79 and the child’s tribe80 by registered 79 The term “Indian custodian” is defined as “any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child[.]” 25 U.S.C. § 1903(6); see Pam R. v. State, 185 P.3d 67, 72 (Alaska 2008) (one parent’s objection to Indian custodian status of maternal grandmother precluded finding such status since the objection “could not be resolved under tribal custom without bringing it before a tribal court”); In re Adoption of J.T., 38 P.3d 245, 247 (Okla. Civ. App. 2001) (maternal grandmother was not “Indian custodian” where she relinquished custody of Indian child almost immediately after receiving physical custody and waited until nine months after final adoption decree’s entry to challenge decree); In re Interest of J.J., 454 N.W.2d 317, 327 (S.D. 1990) (state agency placement of children with grandmother did not render her “Indian custodian” since “[c]ase law makes it clear that absent custody given by parents, a person does not qualify as a ‘custodian’ under the [ICWA]”); State ex rel. Juvenile Dep’t v. England, 640 P.2d 608, 613 (Or. 1982) (child’s aunt was not “Indian custodian” where she served merely as state‑compensated foster parent and custody remained vested in state agency). While the statutory notice requirement extends only to the child’s parent or Indian custodian, the Guidelines recommend that ordinarily both parties be notified. 44 Fed. Reg. at 67,589 (Guideline B.5 Commentary). 80 See, e.g., In re J.T., 65 Cal. Rptr. 3d 320, 324 (Ct. App. 2007) (notice to BIA was insufficient to cure failure to provide notice to all tribes in which the child may be a member or eligible for membership as re‑ quired by recently enacted legislation designed to implement ICWA); In re Mary G., 59 Cal. Rptr. 3d 703, 722 (Ct. App. 2007) (remanding for renoticing in light of failure to file a response from one tribe and to serve another at its Federal Register–listed address, and rejecting contention that no response could be filed if none was received since “[i]f the agency did not receive a response from the [tribe], it is required to advise the court”); In re C.F., 218 S.W.3d 22, 25 n.2 (Mo. Ct. App. 2007) (testimony concerning compliance with ICWA notice requirements, together with a letter from a tribal representative approving the parental rights termination, deemed sufficient, although “a better practice would be to introduce into evidence the actual letter to the tribes and the certified mail receipt”); In re Robert A., 55 Cal. Rptr. 3d 74, 80 (Ct. App. 2007) (declining to allow augmentation of record to include notices and documents filed in a half-sibling’s case; not only do “[a]ppellate courts rarely accept postjudgment evidence or evidence that is developed after the challenged ruling is made[,]” but also “[i]t is important not to lose sight of the fact that ICWA notices in sepa‑ rate dependency cases are not fungible evidence—even when the separate cases involve half-siblings who share the same parent with Indian heritage”); In re Interest of Dakota L., 712 N.W.2d 583, 596–97 (Neb. Ct. App. 2006) (noting absence of any indication in the trial court record that the tribal representatives served were those agents “designated [by the BIA] and entitled to receive notice[;]” directing that notice be given to designated agents on remand; but rejecting contention that notice must contain information concerning children’s current placement status); In re Jasmine G., 26 Cal. Rptr. 3d 394, 400 (Ct. App. 2005) (when tribe fails to respond to notice, agency’s only obligation is to file “the actual notices sent . . . (along with the return receipts) so the juvenile court can determine if they complied with the ICWA”); In re Merrick V., 19 Cal. Rptr. 3d 490, 498 (Ct. App. 2004) (remand ordered where social services agency failed to submit proof of notice to tribe or BIA); In re D.M., 685 N.W.2d 768, 771–73 (S.D. 2004) (actual notice of child custody pro‑ ceeding to tribe sufficed to comply with 25 U.S.C. § 1912(a), and notice required only at the commencement of the proceeding and not prior to every hearing within the proceeding); In re Elizabeth W., 16 Cal. Rptr. 3d 514, 518 (Ct. App. 2004) (two-step procedure to comply with ICWA notice provision required “‘sending proper notice to all possible tribal affiliations and filing with the [juvenile] court copies of the notices, the return receipts and any correspondence from the tribes”); In re Gerardo A., 14 Cal. Rptr. 3d 798, 803–04 (Ct. App. 2004) (notice was defective where information relevant to “Indian child” status determination was not included even though known by social services agency); In re S.M., 13 Cal. Rptr. 3d 606, 612 (Ct. App. 2004) (notice was defective where information provided did not comply with BIA regulations and where “[t]he social worker did not say this information is unavailable”); In re Louis S., 12 Cal. Rptr. 3d 110, 115 (Ct. App. 2004) (errors in notice violated ICWA); In re J.J.G., 83 P.3d 1264, 1267 (Kan. Ct. App. 2004) (failure to comply with notice requirements was not basis for setting aside parental rights termination in view of “Tribe’s actual participation in all custody proceedings regarding [the Indian child], including scheduling for the termina‑ tion proceedings”); In re Karla C., 6 Cal. Rptr. 3d 205, 212 (Ct. App. 2003) (“[join[ing] weight of [California] authority and hold[ing] [that] the filing requirement set forth in the Guidelines is an essential component of the ICWA notice process” because “[w]ithout review of the notices, the juvenile court is unable to deter‑ mine whether they complied with the ICWA”); In re D.T., 5 Cal. Rptr. 3d 893, 897 (Ct. App. 2003) (information provided in notice was inadequate where it included “the names, birth dates, and birthplaces of the minors and their parents” but “failed to include information already known to the social worker, such as [the mother’s] married name, the parents’ current addresses, the names of the minors’ grandparents, and that the claimed tribal affiliation was Cherokee[;]” and stating that “the social worker’s affirmative duty to in‑ quire whether the minors might be Indian children mandated, at a minimum, that she make some inquiry

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mail.81 The state court may not proceed to hearing on such proceedings sooner than 10 days after the notice’s receipt by those parties, which period may be extended an additional 20 days upon request by any of them.82 If “the identity or location of the parent or Indian custodian and the tribe regarding the additional information required to be included in the ICWA notice”); In re L.B., 3 Cal. Rptr. 3d 16, 19, 20 n.3 (Ct. App. 2003) (agency had no obligation to file notice forms with trial court, and “ordinar‑ ily, when a social worker’s report or other documentation indicates that ICWA notice has been provided, it can properly be presumed that such notice complied with the requirements of the ICWA in the absence of any evidence in the record to the contrary or any challenge to this representation in juvenile court”); In re C.D., 1 Cal. Rptr. 3d 578, 586–87 (Ct. App. 2003) (“look[ing] to the Guidelines in determining whether [a state form] satisfies the notice requirements of the ICWA,” and concluding that form was inadequate because it failed to make provision for all information set forth in 25 C.F.R. § 23.11(d)(3) “if such information is known”); In re Asia L., 132 Cal. Rptr. 2d 733, 739–40 (Ct. App. 2003) (failure to provide juvenile court with copy of notice and return receipt constituted reversible error, particularly since notice sent to tribal busi‑ ness committee whose authority to speak for the tribe was not established and since responses received by state social service agency from individual whose authority also was not established); In re Welfare of M.S.S., 936 P.2d 36 (Wash. Ct. App. 1997) (service of notice by overnight mail on tribe substantially complied with administrative rule that notice be served by certified mail but giving only seven days’ notice did not comply with ten-day notice requirement notwithstanding tribal representative’s statement of intent not to intervene; state agency also failed to carry burden of establishing that BIA received proper notice; appropri‑ ate remedy was to remand for appropriate notices to be given and, if a tribe intervenes subsequently, to vacate the parental termination order); In re Krystle D., 37 Cal. Rptr. 2d 132, 141–42 (Ct. App. 1994) (non‑ compliance with notice requirements as to both tribal member parent and tribe waived when tribe entered general, as opposed to special, appearance in proceeding); People ex rel. South Dakota Dep’t of Soc. Servs., 510 N.W.2d 119 (S.D. 1993) (if there has been inadequate notice to determine whether ICWA applies to children involved in termination of parental rights proceeding, remand with instructions to follow ICWA notification procedure is required); In Interest of J.W., 498 N.W.2d 417, 419–22 (Iowa Ct. App. 1993) (holding that failure to give adequate notice to tribe divests a state court of jurisdiction; that appellate court should raise issue of inadequate notice sua sponte because termination and subsequent adoption could be invalidated for in‑ adequate notice; that filing of certified mail receipt as to notice to tribe was unacceptable proof of service by mail because no copy of what was mailed was attached, and no affidavit was filed verifying what was mailed; and that the provisions of ICWA must be strictly construed); In re D.S., 577 N.E.2d 572, 574–75 (Ind. 1991) (remanding for trial court to determine on the record if notice to the tribe complied with Guidelines); cf. Cherokee Nation v. Nomura, 160 P.3d 967, 975–77 (Okla. 2007) (construing the Oklahoma Indian Child Welfare Act to require notice to the involved tribe and the BIA in a voluntary adoption proceeding, and holding that the ICWA similarly requires). A parent has been deemed to have standing to challenge the ad‑ equacy of notice to the child’s tribe. E.g., In re W.D.H., 43 S.W.3d 30, 38 (Tex. App. 2001). 81 BIA regulations require the notice be given by certified mail with return receipt requested. 25 C.F.R. § 23.11 (a) and (b). The difference has been noted but not accorded any significance by at least one court. In re Welfare of M.S.S., 936 P.2d 36 (Wash. Ct. App. 1997). Proof of actual service has been held adequate. In re Dependency of E.S., 964 P.2d 404, 411 (Wash. Ct. App. 1998) (observing that “[f]ollowing the BIA guidelines regarding filing of proof of service in the trial court’s file would be the most efficient way of meeting that burden of proof” but nonetheless crediting trial court’s determination of when tribe received actual notice of termination proceeding); see also In re Suzanna L., 127 Cal. Rptr. 2d 860, 867 (Ct. App. 2002) (notice defective where trial court record contained no copies of notices sent or return receipts, thereby resulting in “insufficient evidence that two of the tribes—the tribes that failed to respond—received actual notice”); In re T.M., 628 N.W.2d 570, 574 (Mich. Ct. App. 2001) (per curiam) (where notice to BIA authorized, actual notice, as opposed to notice by registered mail, adequate). 82 25 U.S.C. § 1912(a); see In re Jennifer A., 127 Cal. Rptr. 2d 54, 63 (Ct. App. 2002) (record, even if augmented, showed that jurisdictional hearing occurred less than 10 days after receipt of notice; fact that dispositional hearing occurred later immaterial); In re Jonathan D., 111 Cal. Rptr. 2d 628, 632 (Ct. App. 2001) (rejecting substantial compliance argument where only one of three tribes received notice within 10-day period); In re Desiree F., 99 Cal. Rptr. 2d 688, 697 (Ct. App. 2000) (where the court had reason to know that child might be Indian child, failure to suspend all proceedings until a minimum of 10 days after the tribe received notice rendered the proceedings invalid); cf. In re A.G., 109 P.3d 756, 759 (Mont. 2005) (district court erred in going forward with parental rights termination proceeding where both noticed tribes requested more information to make membership status determination); In re D.C., 92 P.3d 1138, 1143–44 (Kan. Ct. App. 2004) (delay in complying with ICWA notice requirements resulted in failure to consider adoption

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is not ascertainable,” the “notice should be given to the Secretary in like manner” who, in turn, has 15 days after receipt to give notice to the par‑ ent or Indian custodian and the tribe.83 As one court has explained, “[t]he purpose of the ICWA notice is to enable the tribe or the BIA to investigate and determine whether the child is in fact an Indian child[,]” and the notice therefore must “contain enough information to permit a tribe to conduct a meaningful review of its records to determine the child’s eligibility for membership.”84  Whether state procedural default rules can be applied to preclude an in‑ dividual party from challenging on appeal for the first time allegedly defective notice is unclear. Appellate districts within the California Court of Appeals, for example, have reached conflicting conclusions.85 The basis for deeming such application in timely manner under Interstate Compact for Placement of Children); see generally Metteer, supra note 33, at 451–55 (reviewing cases addressing compliance with notice requirements). 83 25 U.S.C. § 1912(a); see In re S.B., 79 Cal. Rptr. 3d 449, 459 (Ct. App. 2008) (advising social services agency to “contact the BIA for assistance in determining whether in view of the family’s heritage [the child] may be a member of or eligible for membership in any tribe other than the Mescalero Apache” and that “[i]f the Agency cannot determine the identity of the tribe or tribes, then ‘[s]erving the BIA eliminates the need to serve the remaining Apache tribes’”); In re Cody, 63 Cal. Rptr. 3d 652, 658–59 (Ct. App. 2007) (describing notice procedure when tribe’s identity unknown); In re Miguel E., 16 Cal. Rptr. 3d 530, 552 (Ct. App. 2004) (failure to indicate whether BIA served with notices one basis for remand where paternity questionnaire stated that children had or might have “American Indian heritage” through an Apache tribe); In re Louis S., 12 Cal. Rptr. 3d 110, 116 (Ct. App. 2004) (if social services agency is unable to determine which existing tribe absorbed another tribe’s members, agency “should give notice to the BIA and the tribes [it] knows absorbed members of the . . . tribe”); In re C.D., 1 Cal. Rptr. 3d 578, 588 (Ct. App. 2003) (following In re Edward H.); In re Edward H., 122 Cal. Rptr. 2d 242, 244–45 (Ct. App. 2002) (where father informed social worker only that “he had reason to believe he belonged to ‘tribe out in Arkansas,’” it was immaterial that proper notice was given to some but not all possible tribes in which the affected child might be eligible for membership since notice was given to BIA); In re Kahlen W., 285 Cal. Rptr. 507, 512 (Ct. App. 1991) (where the identity or location of child’s possible tribe is unknown, “the burden of identifying and providing notice to the proper tribe . . . shifts from the state court to the Secretary [of the Interior]”). The BIA issued revised rules in 1994 with respect to certain of the procedures for service on regional BIA offices where parents, Indian custodian, or tribe cannot be identified or located; contents of notice and publication by Secretary of designated tribal agents for service purposes; and for payment of appointed counsel in Indian child custody proceedings in state courts. 59 Fed. Reg. 2248 (Jan. 13, 1994) (codified at 25 C.F.R. pt. 23); see also 71 Fed. Reg. 43,788 (Aug. 2, 2006) (BIA notice of designated tribal agents for service of notice under the ICWA). Two changes regarding mandatory notice to the BIA are noteworthy. First, 25 C.F.R. § 23.11(a) now requires the moving party to send copies of notices to the Secretary and the specified area director where the court knows or has reason to believe an Indian child is involved, not just when one parent or the tribe cannot be located. Second, 25 C.F.R. § 23.11(e) requires that state notices to the BIA include that agency’s formulation of the parent’s, Indian custodian’s, and tribe’s rights under the ICWA. Previously the regulations required the BIA to include such information in its notice to the person or tribe being notified. The first of these requirements appears inconsistent with the language of § 1912(a), but the deference typically accorded the Guidelines counsels compliance.

In re Cheyanne F., 79 Cal. Rptr. 3d 189, 192 (Ct. App. 2008).

84

Compare In re S.B., 79 Cal. Rptr. 3d 449, 458 (Ct. App. 2008) (where mother had actual notice of hear‑ ing and did not object on the basis of ICWA noncompliance, issue was forfeited for appeal purposes); In re I.G., 35 Cal. Rptr. 3d 427, 433 (Ct. App. 2005) (characterizing the number of reversals for notice deficiencies as a “virtual epidemic[,]” and noting that such errors had contributed “to 72 unpublished cases statewide in this year alone reversing, in whole or in part, because of noncompliance with ICWA”); In re S.B., 30 Cal. Rptr. 3d 720, 732 (Ct. App. 2005) (finding waiver on mother’s part with respect to alleged ICWA violations where tribe had intervened in proceeding; “[t]he parent has an independent right to invalidate prior ac‑ tions [under 25 U.S.C. § 1914], but there is every reason to hold that this can be waived”); In re Pedro N., 41 Cal. Rptr. 2d 819, 821–23 (Ct. App. 1995) (where state contacted BIA and relied on information of Indian 85

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rules inapplicable is the notion that “[t]he notice requirement is designed to protect the interests of the tribe” and that “to the extent a notice defect impairs the tribe’s ability to participate, another party cannot waive it.”86 The propriety of this view appears questionable, at least insofar as premised on ICWA-based preemption rather than state law–based policy, because even those courts deeming notice defects nonwaivable find other purported violations of ICWA subject to procedural default, and because nothing in the statute itself suggests a more stringent standard for section 1912(a) compliance-related issues.87 The practical effect of the nonwaiver rule, however, has been mitigated by the avail‑ ability of harmless error principles, the possibility of appellate augmentation of the record, and remand orders that allow the trial court’s original determi‑ nation to be reinstated after section 1912(a) compliance and the absence of a tribal transfer request, tribal intervention, or changed circumstances.88 

heritage provided by BIA and where mother did not challenge court’s decision to proceed on that informa‑ tion, mother could not raise issue of inadequate notice), with In re Gerardo A., 14 Cal. Rptr. 3d 798, 804 (Ct. App. 2004) (“[u]nless a tribe has participated in or expressly indicated no interest in the proceedings, the failure to comply with ICWA notice requirements . . . constitutes prejudicial error”) (citation omitted); In re Nikki R., 131 Cal. Rptr. 2d 256, 260 (Ct. App. 2003) (“[c]ase law is clear that the issue of ICWA notice is not waived by the parent’s failure to first raise it in the trial court[,]” and declining to follow Pedro N.); Dwayne P. v. Superior Ct., 126 Cal. Rptr. 2d 639, 643 (Ct. App. 2002) (“respectfully disagree[ing]” with Pedro N.); and In re Marinna J., 109 Cal. Rptr. 2d 267, 272–73 (Ct. App. 2001) (same); but see In re X.V., 33 Cal. Rptr. 3d 893, 899 (Ct. App. 2005) (declining to extend Dwayne P. to appeal after prior remand for compliance with ICWA notice requirements, where parents failed to object to alleged deficiencies in notices forwarded by human services agency during remand proceedings; “we are unwilling to further prolong the proceedings for another round of ICWA notices to which the parents may again object on appeal”); cf. compare In re Isayah C., 13 Cal. Rptr. 3d 198, 205 n.9 (Ct. App. 2004) (suggesting in dictum that non-Indian parent may lack standing to raise notice issue, at least where the court could not “see how proper ICWA notice could possibly have resulted in a trial court order more favorable to [the parent]”), with People ex rel. J.O., 170 P.3d 840, 842 (Colo. Ct. App. 2007) (non-Indian mother possessed standing to raise notice issue not litigated below since “the notice requirements of the ICWA serve the interests of the Indian tribes”); see generally Sarah Martinez, Comment, Turning Back the Clock: The Loss of Tribal Jurisdiction Over Involuntary Juvenile Dependency Proceedings, 10 U.C. J. Juv. L. & Pol’y 541, 548–51 (2006) (discussing X.V. and Dwayne P., and criticizing the former). 86 In re Nikki R., 131 Cal. Rptr. 2d at 261; but see In re N.M., 74 Cal. Rptr. 3d 138, 150 (Ct. App. 2008) (objection to notice not raised before juvenile court in remand proceeding from prior appellate decision finding notice error deemed waived; “‘we do not believe Congress envisioned or intended successive or serial appeals on ICWA notice issues when, given a proper objection, they could easily be resolved during proceedings on remand for the specific purpose of determining whether proper notice was given’”); In re Miracle M., 73 Cal. Rptr. 3d 24, 33 (Ct. App. 2008) (failure to raise claim that biological parents had not been served with ICWA notice was procedurally defaulted where tribe was notified properly and responded that the child was not eligible for enrollment). 87 In re Jennifer A., 127 Cal. Rptr. 2d 54, 65 (Ct. App. 2002) (“Case law is clear that the mother could not waive the ICWA requirements regarding notice to the tribes, any more than the father could. . . . But this does not mean that it is impossible for her to waive the application of certain provisions of the ICWA not affecting the rights of the tribes”) (citations omitted). 88 E.g., In re Cheyanne F., 79 Cal. Rptr. 3d 189, 192 (Ct. App. 2008) (disagreeing with contention that any deficiency in a notice requires reversal; “[r]ather, where notice has been received by the tribe, . . . er‑ rors or omissions in the notice are reviewed under the harmless error standard”); In re Rayna N., 77 Cal. Rptr. 3d 628 (Ct. App. 2008) (2006 amendments to state law addressing ICWA notice requirements did not abrogate authority to enter limited reversals given legislature’s presumed knowledge of such practice and use of language “essentially identical to the ICWA notice provisions” under which the practice developed); In re Veronica G., 68 Cal. Rptr. 3d 465, 471–72 (Ct. App. 2007) (remand without vacatur of existing order ap‑ propriate where parental rights termination not involved); In re Francisco W., 43 Cal. Rptr. 3d 171, 177 (Ct.

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3. Good cause not to transfer The party opposing transfer bears the burden of establishing “good cause” for retention of state court jurisdiction where a request for transfer has been made by a parent or tribe.89 That term is not defined in the ICWA, but House Report 1386 commented it was “intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.”90 The forum non conveniens doctrine has been considered or relied upon in various cases as a ground for finding good cause to refuse transfer.91 The other principal reasons used to deny transfer

App. 2006) (rejecting challenge to the propriety of remanding for proper notice and reinstatement of prior custody determination in the absence of tribal intervention; such remand approach “allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue” and thus “afford[s] [the child] the protection of the juvenile court, and, at the same time, [allows] his or her case [to be] processed to cure the ICWA error, which is more expeditious than a full rehearing on all [termination] issues”); In re S.B., 30 Cal. Rptr. 3d 720, 736–37 (Ct. App. 2005) (finding harmless any error in delay with respect to determining Indian child status); In re Dependency of T.L.G., 108 P.3d 156, 163 (Wash. Ct. App. 2005) (“[w]here notice is the sole issue, remand for the giving of proper notice is . . . ordinarily the correct course”); In re Brooke C., 25 Cal. Rptr. 3d 590, 595 (Ct. App. 2005) (harmless error doctrine applies if proper notice given and ICWA is determined not to apply); In re Glorianna K., 24 Cal. Rptr. 3d 582, 585–87 (Ct. App. 2005) (remanding to determine whether notice appropriately given, and declining motion to take additional evidence on notice issue in appeal); Alicia B. v. Superior Ct., 11 Cal. Rptr. 3d 1, 8 (Ct. App. 2004) (allowing appeal record to be augmented with the notices sent to tribes because those notices were not “new evidence” and augmentation would promote “‘the state’s strong interest in the expeditiousness and finality of juvenile court dependency proceedings’”); In re Christopher I., 131 Cal. Rptr. 2d 122, 142–43, 146 (Ct. App. 2003) (relying alternatively on augmented appellate record and harmless error); In re Antoinette S., 129 Cal. Rptr. 2d 15, 23–24 (Ct. App. 2002) (harmless error); In re Suzanna L., 127 Cal. Rptr. 2d 860, 866 (Ct. App. 2002) (noting availability of harmless error doctrine); In re Jennifer A., 127 Cal. Rptr. 2d at 67 (reinstatement of trial court order); but see In re Nikki R., 131 Cal. Rptr. 2d 256, 265 (Ct. App. 2003) (reject‑ ing request to augment trial court record where “there are no extraordinary circumstances compelling us to act as the juvenile court and determine whether ICWA notice was adequate based on the proffered ad‑ ditional evidence”); cf. In re Terrance B., 50 Cal. Rptr. 3d 815, 820 (Ct. App. 2006) (superior court possessed jurisdiction under remittitur, absent extraordinary circumstances, only to “ensur[e] proper ICWA notice and proceed[] in accordance with any responses”). In re Jonathon S., 28 Cal. Rptr. 3d 493, 498–99 (Ct. App. 2005); In re Ashley Elizabeth R., 863 P.2d 451, 454 (N.M. Ct. App. 1993); In re Adoption of R.R.R., 763 P.2d 94, 101 (Okla. 1988); In re Wayne R.N., 757 P.2d 1333, 1335 (N.M. Ct. App. 1988); In re M.E.M., 635 P.2d 1313, 1317 (Mont. 1981); see 44 Fed. Reg. at 67,591 (Guideline C.3(d)). The nature of the hearing in connection with the good cause issue is not specified in ICWA, but one state has held that the person opposing transfer is entitled to an evidentiary hearing and that the trial court must indicate on the record its consideration of the various factors identified in the Guidelines as possible grounds for good cause. In re M.C., 504 N.W.2d 598 (S.D. 1993); see Ex parte C.L.J., 946 So. 2d 880, 892 (Ala. Civ. App. 2006) (juvenile court erred in ordering transfer without hearing based solely on witness lists submitted by the mother and a tribe identifying a number of Oklahoma witnesses; the record indicated that the child had “little to no contact with the [tribe] or with members of the [tribe]” and contained no showing of witness knowledge or hardship where proceeding held in Alabama). 89

H.R. Rep. No. 1386, supra note 2, at 21, reprinted in 1978 U.S.C.C.A.N. at 7544.

90

In re Interest of Lawrence H., 743 N.W.2d 91, 100 (Neb. Ct. App. 2007); In re J.L., 654 N.W.2d 786, 791 (S.D. 2002); In re Adoption of S.W., 41 P.3d 1003, 1012, 1014 (Okla. Civ. App. 2001); In re A.P., 961 P.2d 706, 712–13 (Kan. Ct. App. 1998); In re Adoption of S.S., 657 N.E.2d 935, 942–43 (Ill. 1995); In re Interest of B.M., 532 N.W.2d 504, 506 (Iowa Ct. App. 1995); C.E.H. v. L.M.W., 837 S.W.2d 947, 953–55 (Mo. Ct. App. 1992); Chester County Dep’t of Soc. Servs. v. Coleman, 399 S.E.2d 773, 776 (S.C. 1990) (per curiam); In re Interest of J.J., 454 N.W.2d 317, 330 (S.D. 1990); In re Robert T., 246 Cal. Rptr. 168, 174 (Ct. App. 1988); In re Wayne R.N., 91

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requests have included delay by the tribe in submitting a transfer request92 and the perceived adverse emotional or physical impact on an Indian child if uprooted from his present familial environment.93 The first of these additional grounds—delay in requesting transfer—must be distinguished from delay in intervening in the child custody proceeding. Section 1911(c) grants a child’s Indian custodian or tribe the right to intervene “at any point” in a foster care placement or termination of parental rights proceeding,94 and that right may not be unreasonably burdened by state procedural laws.95 

757 P.2d 1333, 1336 (N.M. Ct. App. 1988); In re N.L., 754 P.2d 863, 869 (Okla. 1988); In Interest of J.R.H., 358 N.W.2d 311, 317 (Iowa 1984); In re Bird Head, 331 N.W.2d 785, 790 (Neb. 1983); cf. In re Interest of Brittany C., 693 N.W.2d 592, 603 (Neb. Ct. App. 2005) (affirming denial of transfer on the basis of distance between reservation and where many witnesses reside, possible lack of tribal court compulsive process, and failure of tribe to intervene in prior proceedings); In re Guardianship of J.C.D., 686 N.W.2d 647, 649–50 (S.D. 2004) (reversing trial court’s reliance on forum non conveniens doctrine as basis for nontransfer); In re Interest of A.B., 663 N.W.2d 625, 633 (N.D. 2003) (affirming juvenile court’s rejection of forum non conveniens claim where tribal court offered to sit in off-reservation city convenient to the parties); see 44 Fed. Reg. at 67,591 (Guideline C.3(b)(iii)); see generally Metteer, supra note 33, at 440–41 (reviewing cases). 92 E.g., In re Welfare of R.M.B., 735 N.W.2d 348, 353–54 (Minn. Ct. App. 2007); In re Welfare of Child of T.T.B., 724 N.W.2d 300, 308–09 (Minn. 2006); In re D.M., 661 N.W.2d 768, 772–73 (S.D. 2003); State ex rel. State Office for Servs. to Children and Families v. Lucas, 33 P.3d 1001, 1003–04 (Or. Ct. App. 2001); In re Adoption of S.W., 41 P.3d 1003, 1014 (Okla. Civ. App. 2001); People ex rel. S.G.V.E., 634 N.W.2d 88, 93 (S.D. 2001); In re Cody S., 618 N.W.2d 274 (Wis. Ct. App. 2000); In re Dependency of E.S., 964 P.2d 404, 411–12 (Wash. Ct. App. 1998); In re Interest of J.W., 528 N.W.2d 657 (Iowa Ct. App. 1995); In re People in Interest of A.T.W.S., 899 P.2d 223, 224–26 (Colo. Ct. App. 1994); In re Appeal in Maricopa County Juvenile Action No. JS-8287, 828 P.2d 1245, 1251 (Ariz. Ct. App. 1991); In re Robert T., 246 Cal. Rptr. 168, 173–74 (Ct. App. 1988); In re Laurie R., 760 P.2d 1295, 1299 (N.M. Ct. App. 1988); In re Wayne R.N., 757 P.2d 1333, 1335–36 (N.M. Ct. App. 1988); contra In re Interest of Armell, 550 N.E.2d 1060, 1064–66 (Ill. App. Ct. 1990); cf. People in Interest of T.I., 707 N.W.2d 826, 835 (S.D. 2005) (where child was enrolled member of one tribe and eligible for membership in a second tribe, only the first had the right to request transfer of the child custody proceeding, and hence its withdrawal of a transfer request resolved the transfer issue as to that child); In re D.M., 685 N.W.2d 768, 773 (S.D. 2004) (trial court could permissibly predicate good cause not to transfer in part on the absence of any objection to state court jurisdiction from the affected Indian children); In re Interest of A.B., 663 N.W.2d 625, 632 (N.D. 2003) (motion to transfer filed seven weeks after parental rights termination petition timely, and rejecting contention that period for determining delay should have commenced over a year earlier when foster care proceeding initiated; “[t]he juvenile court’s interpretation of ‘child custody proceeding’ correctly distinguishes between proceedings for ‘foster care placement’ and ‘termination of parental rights’ and recognizes the different purposes that may trigger each proceeding”); see also 44 Fed. Reg. at 67,591 (Guideline C.3(b)(i)). 93 In re Adoption of S.W., 41 P.3d 1003, 1009 (Okla. Civ. App. 2001); In re T.S., 801 P.2d 77, 79–82 (Mont. 1990); In re Interest of J.J., 454 N.W.2d 317, 331 (S.D. 1990); In re Robert T., 246 Cal. Rptr. 168, 174–75 (Ct. App. 1988); In re Adoption of T.R.M., 525 N.E.2d 298, 308 (Ind. 1988). 94 E.g., In re W.D.H., 43 S.W.3d 30, 38 (Tex. App. 2001) (where court orally granted tribe’s request to intervene but did not issue written order or notify tribe that its motion had been granted, there was no error since state served tribe with amended notice of trial setting and tribe never pursued the case); In re Desiree F., 99 Cal. Rptr. 2d 688, 698 (Ct. App. 2000) (ICWA authorizes tribe to intervene at any time, and nothing “permit[s] a state procedural statute to preempt the substantive provisions of the federal ICWA”); In re Guardianship of Q.G.M., 808 P.2d 684, 689 (Okla. 1991) (even if a tribe fails to intervene at the beginning of a proceeding, it is not precluded from intervening at a later point in the absence of an express waiver of the right to intervene); see 44 Fed. Reg. at 67,590 (Guideline C.1 Commentary) (“[w]hile the Act permits in‑ tervention at any point in the proceeding, it does not explicitly authorize transfer requests at any time”). 95 In re Ashley Elizabeth R., 863 P.2d 451 (N.M. Ct. App. 1993); State ex rel. Juvenile Dep’t v. Shuey, 850 P.2d 378, 379–81 (Or. Ct. App. 1993); cf. In re C.G.L., 28 S.W.3d 502, 505 (Mo. Ct. App. 2000) (trial court’s denial of request to intervene by tribal members who were extended family resulted in miscarriage of justice because family members may have legal rights to preference in adoption). Tribal intervention in nonchild custody proceedings is not guaranteed by § 1911(c), but the right of a tribe to intervene may ex‑

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The appropriateness of considering at the transfer stage the last of these considerations—the impact of removing the Indian child from an existing fa‑ milial environment—has attracted critical attention by a number of commenta‑ tors96 and courts.97 Nonetheless, one appellate district of the California Court of Appeals has stated, in the context of a proceeding to invalidate a voluntary relinquishment of parental rights for noncompliance with section 1913, that “we believe it would constitute a violation of the Due Process Clause of the Fifth and Fourteenth Amendments to remove a child from a stable placement, based upon statutory violations which occurred in making the placement, without a hearing to determine whether the child would suffer harm if removed from the placement.”98 The court then concluded that California guardianship law supplied the appropriate decisional standard: “The [Indian children] shall not be returned to the custody of the biological parents and may instead remain with the [adoptive parents] if, and only if, the [adoptive parents] can establish by clear and convincing evidence, including the testimony of qualified expert witnesses, that a change would be detrimental to the [Indian children] and a grant of custody to the [adoptive parents] is necessary to serve the [Indian children’s] best interests.”99 

ist independently under state law. See In re Baby Girl A., 282 Cal. Rptr. 105, 108–09 (Ct. App. 1991); In re J.R.S., 690 P.2d 10, 15–19 (Alaska 1984); In re Appeal in Maricopa County Juvenile Action No. A‑25525, 667 P.2d 228, 233 (Ariz. Ct. App. 1983); cf. In re Baby Boy C., 805 N.Y.S. 2d 313, 329 (App. Div. 2005) (although the right of intervention provided under § 1911(c) does not extend to adoption proceedings, intervention was authorized under state procedural rules since the tribe “had a valid interest, recognized by Congress and the Supreme Court in [Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)], that this child custody proceeding concerning an Indian child be conducted in accordance with ICWA”). 96 Metteer, supra note 33, at 441–42 (discussing the differing approaches taken by courts); B.J. Jones, supra note 33, at 425 (“the use of the best interest of the child standard to deny transfers of jurisdiction back to tribal courts is [an] example of state judicial exception-making that does violence to the language of the statute itself in an attempt to craft ICWA into something which state court judges feel comfortable applying”); Denise L. Stiffarm, Comment, The Indian Child Welfare Act: Guiding the Determination of Good Cause to Depart from the Statutory Preferences, 70 Wash. L. Rev. 1151, 1170 (1995) (proposing codification of BIA Guidelines to “reduce state courts’ discretion and guide the ‘good cause’ determination”); Dale, supra note 11 (criticizing state court procedural mechanisms used to deny transfer of cases to tribal court or to retain jurisdiction under the Act by applying “best interest of the child” test). 97 Courts rejecting a “best interests” test for transfer reason that it infects purely jurisdictional issues with placement considerations and reflects distrust of tribal courts’ impartiality. See In re Guardianship of J.C.D., 686 N.W.2d 647, 650 (S.D. 2004) (“[i]t is for the [tribal] Court to consider these matters and decide what is in [the Indian child’s] best interests”); In re Interest of A.B., 663 N.W.2d 625, 633–34 (N.D. 2003) (citing and “agree[ing] with those courts that have concluded the best interest of the child is not a consideration for the threshold determination of whether there is good cause not to transfer jurisdiction to a tribal court”); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 170 (Tex. App. 1995) (“[f]or a court to use this standard when deciding a purely jurisdictional matter[] alters the focus of the case, and the issue becomes not what judicial entity should decide custody, but the standard by which the decision itself is made”); In re People in Interest of J.L.P., 870 P.2d 1252, 1257–58 (Colo. Ct. App. 1994) (rejecting “best interest of the child” standard for purposes of determining good cause to transfer); cf. In re J.L., 654 N.W.2d 786, 792 (S.D. 2002) (considering child’s best interests, but determining that those interests warranted transfer to tribal court).

In re Bridget R., 49 Cal. Rptr. 2d 507, 533 (Ct. App. 1996).

98

Id. at 535); see also In re C.R.H., 29 P.3d 849, 854 n.24 (Alaska 2001) (“not[ing] that state courts are split on the question whether good cause analysis for denying section 1911 transfer jurisdiction should include substantive considerations of the best interests of the child[,]” but not reaching issue). 99

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Good cause factors identified under the Guidelines are that “[t]he Indian child is over twelve years of age and objects to the transfer” and that “[t]he parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe.”100 The Guidelines also state that “[s]ocio‑economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists[,]”101 but this limitation is predicated on the BIA’s view of the ICWA’s proper application rather than any express provision in the statute.102 Since no specific quantum of evidence is specified with respect to establishing good cause, state courts presumably have discretion in determining whether a preponderance or more stringent standard applies.103 A final procedural issue is whether an appeal can be taken from an order directing transfer. The California Court of Appeals concluded that it could not, since state court authority to issue effective relief is lost upon the tribal court’s assumption of jurisdiction.104 The California court counseled that this result could be avoided only by seeking “an immediate stay of the transfer order pending . . . exhaustion of . . . appellate remedies.”105  III. STATE COURT ADJUDICATION OF CHILD CUSTODY PROCEEDINGS: THE MERITS If, after application of section 1911(a) and (b), a state court determines that it has and should retain jurisdiction over a child custody proceeding, subsequent adjudication of the merits is governed by certain minimum sub‑ stantive standards.106 The precise nature of these standards differs depending

44 Fed. Reg. at 67,591 (Guideline C.3(b)(ii) and (iv)).

100

Id. at 67,591 (Guideline C.3(c)).

101

Id. at 67,592 (Guideline C.3 Commentary); but see In re Interest of C.W., 479 N.W.2d 105, 118 (Neb. 1992) (“[a]lthough we realize that the guidelines deem inappropriate considerations of tribal socioeconomic considerations and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems, we also recognize that, in the case of two of the children, those considerations become neces‑ sary to a determination of the best interests of the children and, therefore, ‘good cause’ not to transfer the case”). 102

103 People ex rel T.I. 707 N.W.2d 826, 833–34 (S.D. 2005) (applying clear and convincing evidence standard prospectively, and overruling prior precedent that used abuse of discretion standard in reviewing trial court good-cause determinations); In re Adoption of S.W., 41 P.3d 1003, 1013 (Okla. Civ. App. 2001) (adopting clear and convincing evidence standard); In re A.P., 961 P.2d 706, 713 (Kan. Ct. App. 1998) (following decisions from other states and applying clear and convincing evidence standard). 104 In re M.M., 65 Cal. Rptr. 3d 273, 285 (Ct. App. 2007) (discussing myriad decisions from California and other states that have entertained appeals over transfer orders, but finding none dispositive since “[e]ven if we were to reverse, neither the juvenile court nor this court has the power to command the courts of a wholly separate sovereign to return the case to us”).

Id. at 287.

105

Section 1921 of ICWA provides that, “[i]n any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this [Act], the State or Federal 106

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upon the type of child custody proceeding involved and its voluntary or in‑ voluntary nature. Once the termination decision is made, actual placement of the Indian child must follow prescribed statutory preferences absent good cause for not doing so. A. Involuntary Proceedings Involuntary proceedings involve either foster care placement or termina‑ tion of parental rights. Section 1912 imposes various requirements on a state court when addressing the merits of petitions in such proceedings: (1) The party seeking the placement or termination must satisfy the court by an un‑ identified quantum of evidence “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family and that these efforts have proved unsuccessful”;107 (2) foster care placement may only be ordered if a determination, “supported by clear and convincing evidence, including testimony of qualified expert witnesses, [is made] that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage

court shall apply the State or Federal standard.” Several states have adopted their own versions of ICWA or other child protection statutes that provide a higher degree of protection. See, e.g., In re B.B., 500 N.W.2d 9, 12 n.1 (Iowa 1993) (state burden of “clear and convincing evidence” in proving dependency petition was comparable to the ICWA standard for foster care placement); New York City Dep’t of Social Servs. on Behalf of Oscar C., Jr. v. Oscar C., 600 N.Y.S.2d 957, 959–60 (App. Div. 1993) (concluding that state law standard harmonizes with and is more protective than ICWA); see generally Kirk Albertson, Applying Twenty-Five Years of Experience: The Iowa Indian Child Welfare Act, 29 Am. Indian L. Rev. 193, 212 (2004–2005) (comparing provisions of recently adopted Iowa Indian Child Welfare Act with ICWA, and arguing that Iowa law “clari‑ fies many of the provisions contained in the Federal Act and provides effective guidelines for interpreta‑ tion of ICWA”); Sheri L. Hazeltine, Speedy Termination of Alaska Native Parental Rights: The 1988 Changes to Alaska’s Child in Need of Aid Statutes and Their Inherent Conflict With the Mandates of the Federal Indian Child Welfare Act, 19 Alaska L. Rev. 57, 58 (2002) (“argu[ing] that the State’s CINA laws should be amended to incorporate the special requirements under the ICWA for Indian child welfare proceedings”); Catherine M. Brooks, The Indian Child Welfare Act in Nebraska: Fifteen Years, A Foundation for the Future, 27 Creighton L. Rev. 661 (1994) (discussing Nebraska’s enactment of ICWA verbatim as the Nebraska Indian Child Welfare Act); Kim Laree Schnuelle, When the Bough Breaks: Federal and Washington State Indian Child Welfare Law and Its Application, 17 U. Puget Sound L. Rev. 101, 129–38 (1993) (describing multiple measures enacted in Washington to bring state into compliance with or exceed ICWA standards); Lynn Klicker Ulthe, The Best Interests of Indian Children in Minnesota, 17 Am. Indian L. Rev. 237 (1992) (describing Minnesota law applicable to Indian children); Gorman and Paquin, supra note 11, at 318–320 (describing the Minnesota Indian Family Preservation Act, Minn. Stat. §§ 257.351–257.3579, the Minnesota Minority Heritage Act, 1983 Minn. Laws ch. 278, and the Minnesota “reasonable efforts” legislation, 1989 Minn. Laws ch. 235); Michelle K. Bennett, Note, Native American Children: Caught in the Web of the Indian Child Welfare Act, 16 Hamline L. Rev. 953 (1993) (critiquing Minnesota law). 107

25 U.S.C. § 1912(d). The Guidelines elaborate upon the active efforts requirement as follows:

These efforts shall take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe. They shall also involve and use the available resources of the extended family, the tribe, Indian social agencies and individual Indian care givers. 44 Fed. Reg. at 67,592 (Guideline D.2). One court has held an allegation of compliance with the active ef‑ forts requirement is an essential pleading element in a parental rights termination petition. In re Sabrienia B., 621 N.W.2d 836, 843 (Neb. Ct. App. 2001); accord In re Interest of Dakota L., 712 N.W.2d 583, 594–95 (Neb. Ct. App. 2006). 25 U.S.C. § 1912(e).

108

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to the child”;108 and (3) termination of parental rights may be ordered only if a determination, “supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, [is made] that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”109 Cases on each of these elements are legion and typically fact specific. While myriad, “active efforts” challenges find success infrequently. The most common reasons for rejecting them are futility arising from parental noncooperation110 and parental failure to comply with treatment plans.111 Incar‑ cerated parents pose particular problems, but the mere fact of imprisonment generally is insufficient to eliminate the “active efforts” duty categorically.112 In

Id. § 1912(f).

109

E.g.,Wilson v. State, 185 P.3d 94, 101 (Alaska 2008) (“[i]f a parent has a long history of refusing treat‑ ment and continues to refuse treatment, [the state children services agency] is not required to keep up its active efforts once it is clear that these efforts would be futile”); In re A.N., 106 P.3d 556, 561 (Mont. 2005) (active efforts requirement satisfied where father’s “apathy and indifference” and not lack of such efforts “prevented him from completing his treatment plan”); In re William G., 107 Cal. Rptr. 2d 436, 438 (Ct. App. 2001) (where state agency delivered notice to parent’s last known address of offer to provide services and where parent actively avoided contact with agency for almost a year, the agency’s repeated attempts to notify him sufficed as active efforts); In re Dependency of A.M., 22 P.3d 828 (Wash. Ct. App. 2001) (ICWA does not require state to continue making unsuccessful efforts at the expense of damage to the child); In re M.S., 624 N.W.2d 678, 684 (N.D. 2001) (ICWA does not impose a duty to persist with active efforts that can only be destined for failure due to the parent’s lack of cooperation); Letitia v. Superior Ct., 97 Cal. Rptr. 2d 303, 308 (Ct. App. 2000) (where substantial but unsuccessful efforts were made to address entrenched substance abuse problem in case involving sibling, those efforts need not be duplicated, since ICWA does not require idle acts). 110

111 E.g., In re T.H., 105 P.3d 354, 358–59 (Okla. Civ. App. 2005) (active efforts by state agency not required where mother had gone through treatment plan in another state and was aware of father’s history of child abuse); In re J.P., 674 N.W.2d 273, 280 (N.D. 2004) (mother failed to follow through with treatment plan); In re Custody of A.L.R., 54 P.3d 17, 20 (Mont. 2002) (rejecting claim that treatment plan inadequate because in place only four months before arrest, where evidence showed noncompliance before arrest and failure of prior plans); E.A. v. State Div. of Family and Youth Servs., 46 P.3d 986, 990 (Alaska 2002) (state agency carried its active efforts burden despite failure to update mother’s psychological evaluation when evidence showed that she was unable or unwilling to take advantage of substance abuse treatment); N.A. v. State, 19 P.3d 597, 603–04 (Alaska 2001) (where child protection agency worked with Department of Corrections and Native organization to provide numerous varied and exemplary efforts to assist parent and where parent demonstrated a lack of willingness to participate in treatment, the state met its burden under § 1912(d)). 112 E.g., People in Interest of D.G., 679 N.W.2d 497, 502 (S.D. 2004) (per curiam) (parent’s incarceration did not eliminate active efforts requirement but did “narrow the available options”); In re Cari B., 763 N.E.2d 917, 924 (Ill. App. Ct. 2002) (although mere fact of incarceration did not eliminate active efforts require‑ ment, evidence established compliance with § 1912(d), since family services agency made adequate efforts to provide those services which it could and corrections agency provided other services); In re Interest of S.D.C., 36 P.3d 540, 545 (Utah Ct. App. 2001) (where corrections agency made substantial but unsuccessful efforts to remediate incarcerated father’s behavior, active efforts requirement satisfied); T.F. v. State Dep’t of Health and Soc. Servs., 26 P.3d 1089, 1094, 1096 (Alaska 2001) (active efforts requirement did not apply until paternity established, and requirement was satisfied as to incarcerated parent by corrections department enrolling him in appropriate classes and treatment programs); Doty-Jabbaar v. Dallas County Child Protective Servs., 19 S.W.3d 870, 875–76 (Tex. App. 2000) (although case worker testified that case plan would be insufficient to rehabilitate, evidence demonstrated that parent had substantially complied with the case plan and did not support requisite finding that remedial and rehabilitative efforts had been unsuccessful); A.M. v. State, 891 P.2d 815, 827 (Alaska 1995) (holding that neither incarceration nor doubtful prospects for rehabilitation will relieve the state of its duty under ICWA to make active remedial efforts, and distinguish‑ ing active from passive remedial efforts), after remand, 945 P.2d 296 (Alaska 1997) (affirming trial court’s determination that state agency provided treatment services sufficient to satisfy ICWA requirement).

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assessing the adequacy of a state’s rehabilitation activities—typically embodied in treatment plans—courts will view agency efforts in their entirety with def‑ erence ordinarily paid to trial court findings113 but impose a more substantial burden than may be associated with a state law requirement of “reasonable” efforts.114 In the latter regard, the relationship between ICWA’s active efforts requirement and the reasonable efforts duty under the Adoption and Safe Families Act115 has received some judicial attention, but the issue is largely unresolved.116 Lastly, section 1912(d) does not set forth the quantum of proof

113 Maisy W. v. State ex rel. Dep’t of Health and Soc. Servs., 175 P.3d 1263, 1268 (Alaska 2008) (“look[ing] to the state’s involvement in its entirety” to reject active efforts based challenge); People in Interest of K.D., 155 P.3d 634, 637 (Colo. Ct. App. 2007) (active efforts need not be part of treatment plan associated with the involved dependency proceeding; rather, “[a] department may engage in ‘active efforts’ by providing formal or informal efforts to remedy a parent’s deficiencies before dependency proceedings begin”); State ex rel. V.H., 154 P.3d 867, 871 (Utah Ct. App. 2007) (active efforts requirement deemed satisfied where fa‑ ther failed to marshal and challenge the evidence that supported the trial court’s findings); In re Welfare of Children of S.W., 727 N.W.2d 144, 150 (Minn. Ct. App. 2007) (evidence showing provision of psychological and visitation services established requisite active efforts); Wendell C. v. State, 118 P. 3d 1, 5 (Alaska 2005) (agency did not fail to engage in active efforts when it conditioned family reunification on the father’s alcohol abstinence and, given prior treatment program failures, changed goal of third program from reuni‑ fication to adoption); People in Interest of D.B., 670 N.W.2d 67, 73 (S.D. 2003) (active efforts made where, inter alia, social services agency provided weekly visits with child until custody returned to father, assisted mother with in-patient treatment, supplied transportation, and obtained day care funds); In re D.M., 661 N.W.2d 768, 774 (S.D. 2003) (requirement satisfied where state agency “offered a wide range of services to these parents and attempted to work toward reunification over a considerable period of time”); In re G.S., 59 P.3d 1063, 1072 (Mont. 2002) (holding that ICWA demands that social services agency “work towards meeting these requirements [to avoid breakup of an Indian family] from the time it becomes involved with a family until a show cause hearing is held[,]” and finding active efforts obligation satisfied); V.S.B. v. State Dep’t of Health and Soc. Servs., 45 P.3d 1198, 1208 (Alaska 2002) (active efforts requirement satisfied despite parent’s compliance with treatment plan; compliance “does not guarantee that parental rights will not be terminated because it cannot guarantee that adequate parenting skills will be acquired from the treatment regimen”)); In re G.S., 59 P.3d 1063, 1072 (Mont. 2002) (holding that ICWA demands that social services agency “work towards meeting these requirements [to avoid breakup of an Indian family] from the time it becomes involved with a family until a show cause hearing is held[,]” and finding active efforts obligation satisfied); In re Michael G., 74 Cal. Rptr. 2d 642, 650 (Ct. App. 1998) (“‘active’ and rehabilitative efforts must be directed at remedying the basis for the parental termination proceedings, and thus the type of required services depend[s] upon the facts of each case”). 114 E.g., In re J.S., 177 P.3d 590, 593 (Okla. Civ. App. 2008) (following decisional authority from other states that holds that “the ‘active efforts’ standard requires more effort than the ‘reasonable effort’ standard in non-ICWA cases”); C.J. v. State Dep’t of Health and Soc. Servs., 18 P.3d 1214, 1219 (Alaska 2001) (where state relied upon officials from another state to investigate and make reports on their efforts and where it was unclear whether other state officials understood that the higher ICWA standard requiring that active efforts be made, reversal of termination of parental rights determination required); see generally Mark Andrews, “Active” Versus “Reasonable” Efforts: The Duties to Reunify the Family Under the Indian Child Welfare Act and the Alaska Child in Need of Aid Statutes, 19 Alaska L. Rev. 85 (2002) (discussing Alaska Supreme Court’s ap‑ plication of active efforts requirement).

Pub. L. No. 105-89 (1997) (codified in relevant part at 42 U.S.C. § 671).

115

People in Interest of J.S.B., 691 N.W.2d 611, 619–20 (S.D. 2005) (statutes operate independently), with J.S. v. State, 50 P.3d 388, 392 (Alaska 2002) (“enactment of the Adoption and Safe Families Act of 1997 . . . convinces us that it is the policy of Congress to not require remedial measures in situations where a court has determined that a parent has subjected his or her child to sexual abuse”); see generally C. Eric Davis, In Defense of the Indian Child Welfare Act in Aggravated Circumstances, 13 Mich. J. Race & L 433, 452 (2008) (arguing that the ASFA’s definition of “aggravated circumstances” is “amorphous” and, because states have authority to create additional such circumstances, “[t]he result has been a laundry list of aggravated circum‑ stances used throughout the U.S., some that fall particularly hard on American Indians”); Mark Andrews, 116

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by which the required showing must be made, and courts are divided on the issue. Some have adopted the “beyond a reasonable doubt” standard.117 Most have opted for preponderance or clear and convincing evidence standards.118  As the ICWA’s text indicates, the evidentiary requirements in an invol‑ untary foster care placement proceeding subject to section 1912(e) are iden‑ tical to those in a parental rights termination proceeding subject to section 1912(f) other than the burden of proof. The difference in such burden reflects Congress’s concern over the substantially more serious impact on parental and tribal interests under the latter than under the former.119 Cases discussing the clear and convincing standard employed under section 1912(e) are relatively

Terminating Active Efforts: The Alaska Supreme Court Misfires in J.S. v. State, 20 Alaska L. Rev. 305 (2003) (arguing, inter alia, that ICWA and ASFA do not reference each other and impose independent duties). 117 E.g., In re R.L., 961 P.2d 606, 608 (Colo. Ct. App. 1998); In re E.M., 466 N.W.2d 168, 172 (S.D. 1991); In re D.S.P., 458 N.W.2d 823, 829 (Wis. Ct. App. 1990), aff’d, 480 N.W.2d 234 (Wis. 1992); In re L.N.W., 457 N.W.2d 17, 19 (Iowa Ct. App. 1990); In re S.R., 323 N.W.2d 885, 887 (S.D. 1982); see also In re Termination of Parental Rights to R.S., 706 N.W.2d 269, 291 and n.63 (Wis. 2005) (noting split of authority on applicable burden of proof, and affirming special verdict instruction that used beyond a reasonable doubt standard without resolving issue). 118 E.g., In re Interest of Walter W., 744 N.W.2d 55, 60–61 (Neb. 2008) (discussing decisional authority from other states, and adopting clear and convincing evidence standard); In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 612 (Ct. App. 2006) (applying clear and convincing evidence standard); In re H.J., 149 P.3d 1073, 1077 (Okla. Civ. App. 2006) (reviewing the varying approaches to the burden of proof issue, and ap‑ plying clear weight of the evidence standard—the “equitable standard of review” governing custody contests under state decisional authority); In re T.F., 681 N.W.2d 786, 792 (N.D. 2004) (applying clear and convinc‑ ing evidence standard that governs generally under state law with respect to parental rights termination); In re J.P., 674 N.W.2d 273, 276 (N.D. 2004) (same); In re G.S., 59 P.3d at 1071 (noting split of authority, and choosing clear and convincing standard because it “is the same standard we apply to the underlying ICWA proceeding”); In re Cari B., 763 N.E.2d at 923 (adopting preponderance standard); In re M.S., 624 N.W.2d at 684 (agency must demonstrate by clear and convincing evidence that active efforts were made and that they were unsuccessful); In re Dependency of A.M., 22 P.3d at 833 (petitioning party must meet state standard that requires petitioner to prove by clear, cogent, and convincing evidence that active efforts have been made); A.H. v. State Dep’t of Health and Soc. Servs., 10 P.3d 1156, 1164 (Alaska 2000) (state is required to prove by a preponderance of the evidence that its active efforts to provide remedial services were unsuccessful); In re Michael G., 74 Cal. Rptr. 2d at 647–49 (reviewing case law and adopting clear and convincing standard); In re A.P., 961 P.2d 706, 715 (Kan. Ct. App. 1998) (applying clear and convincing standard); In re T.W., 921 P.2d 604, 609 n.7 (Alaska 1996) (applying preponderance standard); In re Baby Boy Doe, 902 P.2d 477, 483 (Idaho 1995) (a comparison of the “shall satisfy” terminology with the stricter “beyond a reasonable doubt” and “clear and convincing” standards shows that a lesser standard is appropriate); In re Annette P., 589 A.2d 924, 928 n.8 (Me. 1991) (applying clear and convincing standard). 119 The difference in standards was a matter of congressional choice and not constitutional mandate. The “beyond a reasonable doubt” standard exceeds that constitutionally required or typically imposed in other state termination of parental rights proceedings. See Santosky v. Kramer, 455 U.S. 745, 769 (1982) (requiring “clear and convincing evidence” standard under Due Process Clause of the Fourteenth Amendment). 120 See A.H. v. State Dep’t of Health and Soc. Servs., 10 P.3d 1156, 1165 (Alaska 2000); In re L.F., 880 P.2d 1365, 1368 (Mont. 1994). The Washington Supreme Court has held that § 1912(e) “does not replace the best interests test of [state law] but merely requires that the foster care finding be made by clear and convincing evidence” and that “[b]oth federal and Washington law are settled that court proceedings deciding matters of child custody should aim to protect the child’s best interests.” In re Mahaney, 51 P.3d 776, 784 (Wash. 2002); see also Steven H. v. Arizona Dep’t of Econ. Sec., 173 P.3d 479, 481 (Ariz. Ct. App. 2008) (§ 1912(e) is not satisfied merely by “establishing a direct causal link between the emotional damage suffered by Children as a result of Parents’ abuse or failures to prevent abuse altogether with several experts’ recommendations that neither child be returned to Parents without services and intervention[;]” instead, “expert testimony opining on future conditions” is necessary).

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few.120 Decisions under section 1912(f), in contrast, are numerous and, as would be expected, often entail careful appellate court examination of lower court factual findings.121 Section 1912(f), in this regard, leaves to state courts the task of fashioning the procedural framework within which the required substantive findings must be made. So, for example, the statute does not address when those findings must be made with reference to the termination order’s actual issuance, but one court has stated that, “based on the family-protective policies underlying the ICWA, it is reasonable to assume the . . . finding[s] must be made at, or within a reasonable time before, the termination decision is made.”122 The ICWA similarly leaves to state courts issues such as the role of harmless error or the precise manner in which the necessary substantive findings must

121 E.g., State ex rel. Dep’t of Human Servs. v. Cain, 150 P.3d 439, 440 (Or. Ct. App. 2006) (beyond a rea‑ sonable doubt burden satisfied in light of mother’s mental illness and drug use and father’s voluntary lack of contact with child); In re Barbara R., 40 Cal. Rptr. 3d 687, 694 (Ct. App. 2006) (rejecting contention that one-year delay between parental rights termination findings and actual termination order violated ICWA absent evidence of “a change in circumstances sufficient to call into question the continuing validity of the ICWA detriment finding”); People in Interest of O.S., 701 N.W.2d 421, 427–28 (S.D. 2005) (mother possessed long-term alcohol abuse problem, and child not only manifested fetal alcohol syndrome at birth but also was developmentally delayed); Carl N. v. State Dep’t of Health & Soc. Servs., 102 P.3d 932, 936 (Alaska 2004) (likelihood that currently incarcerated father would abdicate parental responsibilities toward bipolar child warranted termination); People in Interest of D.G., 679 N.W.2d 497, 502 (S.D. 2004) (per curiam) (father’s criminal record, current incarceration and alcoholism provided adequate basis for trial court’s determination that, with respect to child who required extra care and monitoring and “could not wait for him to address his parenting issues and alcoholism[,]” § 1912(f) showing made); State ex rel. Dep’t of Health and Soc. Servs. v. M.L.L., 61 P.3d 438, 442–43 (Alaska 2002) (evidence concerning changes in mother’s lifestyle supported trial court’s determination that state agency failed to carry burden); In re M.D.M., 59 P.3d 1142, 1145 (Mont. 2002) (evidence concerning father’s criminal conduct, failure to comply with treatment plans, impact of removing child from foster family, and risk of emotional or physical harm to child if returned to father satisfied evidentiary burden); E.A. v. State Div. of Family and Youth Servs., 46 P.3d 986, 991–92 (Alaska 2002) (testimony of experts, who had substantial contact with Indian child and linked child’s aberrant behavior to traumatic relationship with mother, and other evidence of mother’s instability and parental incapacity satisfied § 1912(f) burden); J.J. v. State Dep’t of Health and Soc. Servs., 38 P.3d 7, 10–11 (Alaska 2001) (where psychologist’s conclusions based on case file review, with no interview of parent, and where parent “has made substantial progress,” reasonable doubt standard not met); C.J. v. State Dep’t of Health and Soc. Servs., 18 P.3d 1214, 1219 (Alaska 2001) (where testimony offered by expert witness was based solely on general‑ izations instead of particular facts and issues of the case, where expert never met the children or parent, where parent offers unrebutted, substantial, and detailed evidence that he successfully was parenting another child and had made preparations to provide for children, and where state offered only conclusory statements of unnamed officials from other state in which parent resides, evidence was insufficient to war‑ rant parental rights termination); Doty-Jabbaar v. Dallas County Child Protective Servs., 19 S.W.3d 870 (Tex. App. 2000) (where state failed to offer expert testimony required by § 1912(f), evidence was insufficient to support termination of parental rights under ICWA); K.E. v. State, 912 P.2d 1002, 1004 (Utah Ct. App. 1996) (qualified expert witness testimony requirement extends only to serious emotional or physical damage element). 122 In re Matthew Z., 95 Cal. Rptr. 2d 343, 349 (Ct. App. 2000) (upholding termination decision where § 1912(f) findings made at a disposition hearing nine months before actual termination hearing); compare In re W.D.H., 43 S.W.3d 30, 35 (Tex. App. 2001) (reversible error for trial court to omit making findings required under § 1912(f)), with In re M.J.J., 69 P.3d 1226, 1228 (Okla. Civ. App. 2003) (absence of specific reference to reasonable doubt standard in parental rights termination order was not reversible error, since “[w]e will presume the trial court was aware of the standard of proof mandated by § 1912(f) and complied with that standard”); and In re M.D.M., 59 P.3d at 1146 (refusing to reverse termination of parental rights order because trial court did not find explicitly that state met burden of proof; such a finding was “certainly implicit in the court’s statements[] and to hold otherwise would be to elevate form over substance”).

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be expressed.123 State courts also have addressed, in an essentially uniform manner, the procedure for integrating ICWA requirements into generally ap‑ plicable parental rights termination decision-making.124 The differing burden of proof standards in ICWA and non-ICWA litigation have been held, equally uniformly, not to have constitutional ramifications.125  123 E.g., In re G.F., 923 A.2d 578, 582 (Vt. 2007) (holding “the failure explicitly to make the finding required by § 1912(f) under the required standard of proof can be harmless error depending on the evidence before the court[,]” and finding the trial court’s failure harmless under the standard applicable to nonconstitutional errors—i.e., harmless beyond a reasonable doubt); In re M.R.G., 97 P.3d 1085, 1087 (Mont. 2004) (trial court was not obligated to state explicitly that beyond a reasonable doubt standard applied; rather, ICWA “requires that a state court’s determination be ‘supported by evidence beyond a reasonable doubt’”). 124 E.g, In re Interest of Walter W., 744 N.W.2d 55, 64 (Neb. 2008) (applying the clear and convincing evidence standard to state law elements of a parental rights termination case, rather than the beyond a rea‑ sonable doubt standard, since the former standard governs in non-ICWA proceedings); Valerie M. v. Arizona Dep’t of Econ. Sec., 2008 WL 2426807 (Ariz. Ct. App. 2008) (cataloguing and following “court in other states that have determined that separate burdens of proof apply to termination findings mandate by [ICWA] and those that must be made pursuant to state law, commonly referred to as the ‘dual burden of proof’ require‑ ment”); In re R.L.A., 147 P.3d 306, 310–11 (Okla. Civ. App. 2006) (declining to find the beyond a reasonable doubt standard applicable in an adoption without consent proceeding where parental rights were not ter‑ minated, and disapproving uniform jury instruction that directs all issues in a parental rights termination proceeding to be determined with reference to the reasonable doubt standard); In re Termination of Parental Rights to R.S., 706 N.W.2d 269, 291 (Wis. 2005) (affirming special verdict burden of proof instructions that specified reasonable certainty for state law elements and beyond a reasonable doubt for ICWA elements); Carl N. v. State Dep’t of Health & Soc. Servs., 102 P.3d 932, 935 (Alaska 2004) (discussing discrete findings and burdens of proof required under ICWA and state law with respect to parental rights termination); In re S.R., 97 P.3d 559, 561 (Mont. 2004) (applying ordinary review standards in determining whether ICWA beyond a reasonable doubt standard satisfied, and giving effect to state statutory presumption that parental right termination appropriate where child has been in foster care for 15 of the most recent 22 months); In re T.F., 681 N.W.2d 786, 789 (N.D. 2004) (noting “dual burden of proof on the party seeking termination of parental rights to an Indian child” under state and federal law, and analyzing state law requirements for parental rights termination under clear and convincing evidence standard separately from ICWA requirement for serious emotional or physical damage to child under beyond a reasonable doubt standard); In re W.D.H., 43 S.W.3d at 37 n.11 (ICWA’s beyond a reasonable doubt standard applies only to ICWA issues; state law’s clear and convincing standard applies to state law grounds for termination); In re A.P., 961 P.2d 706, 713 (Kan. Ct. App. 1998) (applying a “dual burden of proof ” standard under which “the court must determine by clear and convincing evidence that the state law provisions for termination are satisfied and then turn to the more stringent standard under the ICWA”); In re Interest of D.A.C., 933 P.2d 993, 1003 (Utah Ct. App. 1997) (remanding to trial court for determination whether the higher evidentiary burden of the ICWA satisfied after concluding state law clear and convincing evidence standard satisfied); K.E. v. State, 912 P.2d at 1004 (state law requirement that termination of parental rights be justified by clear and convincing evidence applies, but mandated ICWA finding concerning serious emotional or physical damage must be established beyond a reasonable doubt); In re Denice F., 658 A.2d 1070, 1072 (Me. 1995) (ICWA’s reasonable doubt standard does not apply to state grounds for termination, but state grounds provide a supplemental degree of protection using clear and convincing evidence standard); New York City Dep’t of Social Servs. on Behalf of Oscar C., Jr. v. Oscar C., 600 N.Y.S.2d 957, 960 (App. Div. 1993) (holding that ICWA does not preempt state law standard prescribing preponderance of evidence for fact-finding hearing to determine if child is abused or neglected; state law standard harmonizes with and is more protective than ICWA standards); In re Bluebird, 411 S.E.2d 820, 822–23 (N.C. Ct. App. 1992) (ICWA creates a dual burden of proof in which state and federal provisions must be satisfied separately); In re D.S.P., 480 N.W.2d 234, 237–39 (Wis. 1992) (burden of proof is issue specific; ICWA does not preempt but harmonizes with state standards); cf. V.S.B. v. State Dep’t of Health and Soc. Servs., 45 P.3d 1198, 1203–04 (Alaska 2002) (state law–imposed condition precedent to resolving parental termination question was clear and convincing evidence that child was in need of aid). 125 See In re M.K., 964 P.2d 241, 243–44 (Okla. Civ. App. 1998) (state law establishing a lesser burden of proof than the ICWA in non-ICWA proceedings to terminate parental rights did not violate equal protec‑ tion clause); In re Marcus S., 638 A.2d 1158 (Me. 1994) (same); cf. In re Interest of Phoenix L., 708 N.W.2d 786, 797–98 (Neb. 2006) (rejecting equal protection challenge by non-Indian parents to differing burdens of proof

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The “qualified expert witnesses” requirement—a predicate for both foster care placement and parental rights termination—has received substantial ju‑ dicial attention. The term itself is not defined but, according to House Report 1386, “is meant to apply to expertise beyond the normal social worker quali‑ fications.”126 The Guidelines include as “most likely to meet the requirements for a qualified expert witness”:

(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices;



(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and culture standards and childrearing practices within the Indian child’s tribe.



(iii) A professional person having substantial education and experience in the area of his or her specialty.127 

State appellate courts likewise have accepted the general proposition that a “qualified expert witness” should have either specific experience with family service matters affecting Indians or, where the risks of cultural bias are deemed slight, a substantial educational and professional background pertinent to the opinion rendered.128 Courts thus have accepted frequently as qualified with respect to parental rights termination that exist under proceedings not subject to the Nebraska Indian Child Welfare Act and proceedings subject to it, and noting other states’ decisions that reached same result under ICWA); see generally Katherine S. Vogel, Note, In re Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006): An Analysis of Parental Rights and the Nebraska Indian Child Welfare Act, 86 Neb. L. Rev. 459, 479 (2007) (suggesting that the Nebraska ICWA may infringe upon the fundamental rights of Indian parents insofar as its placement provisions limit their ability “to decide whether it is in the best interest of the child to be adopted by a selected family off of the reservation”). H.R. Rep. No. 1386, supra note 2, at 22, reprinted in 1978 U.S.C.C.A.N. at 7545.

126

44 Fed. Reg. at 67,593 (Guideline D.4(b)(i)–(iii)); see In re Brandon T., 80 Cal. Rptr. 3d 287 (Ct. App. 2008) (deeming Guidelines “‘entitled to great weight[,]’” and relying on them for the conclusion that testimony from more than one expert witness required under § 1912(f) in parental rights termination proceeding); State ex rel. Juvenile Dep’t v. Charles, 688 P.2d 1354, 1360 n.3 (Or. Ct. App. 1984) (declining “to adopt the specific recommendations of the ‘guidelines,’” but agreeing with “the general proposition that an expert witness within the meaning of that term in 25 U.S.C. § 1912(e) must possess special knowledge of social and cultural aspects of Indian life”); In re M.E.M., 635 P.2d 1313, 1318 (Mont. 1981) (concluding that the Guidelines concerning qualified expert witnesses “comport with the spirit” of the ICWA); In re D.S.P., 458 N.W.2d 823, 830–31 (Wis. Ct. App. 1990) (applying the Guidelines, and emphasizing experts’ experi‑ ence with Indian child custody proceedings); ); In re D.S., 577 N.E.2d 572, 575–76 (Ind. 1991) (applying the Guidelines, and holding that court must inquire of expert witnesses as to their qualifications related to Indian culture and practices concerning the raising of Indian children); cf. In re Welfare of B.W., 454 N.W.2d 437, 443–44 (Minn. Ct. App. 1990) (construing state agency manual, which required qualified Indian child welfare expert to have “‘substantial knowledge of prevailing social and cultural standards and child rearing practices within the Indian community[,]’” to impose a higher standard of protection than the ICWA and therefore finding such standard applicable by virtue of § 1911). 127

128 E.g., Thomas H. v. State, 184 P.3d 9, 17 (Alaska 2008) (purpose of the qualified expert requirement is to avoid reliance on testimony by social workers “‘who possess[] neither the specialized professional education nor the familiarity with Native culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect’”); In re M.C.M., 180 P.3d 688, 694 (Okla. Civ. App. 2007) (special knowledge of Indian life not required where expert possesses substantial education and experience

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experts individuals with relevant professional degrees opining as to matters within their expertise.129 Social worker testimony often is challenged as failing to satisfy the expert witness requirement, with courts typically demanding some special educational training or professional experience as a predicate for admissibility.130 Tribal members, including those of tribes other than the

and where testimony does not implicate matters of cultural bias); J.S. v. State, 50 P.3d 388, 392 (Alaska 2002) (since termination proceeding, which involved allegations of sexual abuse, did not implicate cultural bias, special familiarity with Native cultural standards not required); In re M.S., 624 N.W.2d 678, 685 (N.D. 2001) (where parent failed to provide young child with basic necessities of life, expert witness need not be familiar with tribal cultural norms or child-rearing practices because culture was not implicated); In re R.L., 961 P.2d 606, 609 (Colo. Ct. App. 1998) (“if termination is based on parental unfitness unrelated to Indian culture or society, an expert witness . . . need not possess special knowledge of Indian life”); Rachelle S. v. Arizona Dep’t of Econ. Sec., 958 P.2d 459, 462 (Ariz. Ct. App. 1998) (“[t]his interpretation—that distinctive knowledge of Indian life is necessary only when cultural mores are involved—is consistent with the Act’s overall concern”); In re Krystle D., 37 Cal. Rptr. 2d 132, 144–45 (Ct. App. 1994) (“neither the Guidelines nor the commentary restricts expert opinion witnesses to those who combine whatever other expertise they have with an expertise in tribal culture and childrearing practices”); In re Riva M., 286 Cal. Rptr. 592, 596 n.5 (Ct. App. 1991) (“[w]hen cultural bias is clearly not indicated, the expert need not possess special knowledge of Indian life”); In re N.L., 754 P.2d 863, 868 (Okla. 1988) (“[w]here cultural bias is clearly not implicated, expert witnesses who do not possess special knowledge of Indian life may provide the necessary proof that continued custody of the child by the parent will result in serious emotional or physical harm to the child”); see generally Paul David Kouri, Note, In re M.J.J., J.P.L., & J.P.G.: The “Qualified Expert Witness” Requirements of the Indian Child Welfare Act, 29 Am. Indian L. Rev. 403, 419 (2004–2005) (Oklahoma courts, rather than simply requiring a determination that no cultural bias exists and thereby allowing experts to be “qualified” for ICWA purposes even though possessing no special knowledge of Indian life, should “mandate[] expert testimony concerning whether cultural bias is implicated in every case in which ICWA applies”). 129 E.g., People in Interest of K.D., 155 P.3d 634, 638 (Colo. Ct. App. 2007) (since “the determination of unfitness supporting termination was based on father’s emotional illness, a consideration that is culturally neutral[,] . . . the witness qualified to testify as an expert . . . was not required to have special knowledge of Indian life”); In re Interest of Phoebe S., 664 N.W.2d 470, 482–83 (Neb. Ct. App. 2003) (professor with doctorate and “substantial education and experience in the area of child welfare, bonding and attachment and in the sociological aspects of childhood” and who “is experienced and knowledgeable about the ICWA constituted a qualified expert witness); Burks v. Arkansas Dep’t of Human Servs., 61 S.W.3d 184, 188 (Ark. Ct. App. 2001) (witness with degree in occupational therapy but experience in psychology and director of domestic violence intervention program deemed qualified expert even in the absence of any showing of familiarity with tribal culture); State ex rel. State Office for Servs. to Children and Families v. Lucas, 33 P.3d 1001, 1006 (Or. Ct. App. 2001) (where three witnesses were “professionals having substantial education and experience in their areas of specialty” and a fourth had “substantial experience in the delivery of child and family services to Indians[,]” qualified expert requirement satisfied); Jordan v. Jordan, 983 P.2d 1258, 1261–62 (Alaska 1999) (in dissolution proceeding where nonparent family member sought removal of custody from Indian mother, superior court determination that witnesses, each of whom had graduate degrees in their field of specialty, were not “experts” under § 1912(f) because they did not meet either the first or second of the BIA Guidelines was “problematic” but harmless); K.E. v. State, 912 P.2d 1002, 1005 (Utah Ct. App. 1996) (“professionals having substantial education and experience in child welfare might well qualify as expert witnesses under ICWA, even though their experience with Indians is limited”); In re Interest of C.W., 479 N.W.2d 105, 112 (Neb. 1992) (psychologist “possesse[d] substantial education and experience in his area of specialty, and his lack of experience with the Indian way of life in no way compromised or undermined the value of his testimony”); but see People in re M.H., 691 N.W.2d 622, 626–27 (S.D. 2005) (lawyer with substantial experience as tribal attorney and tribal defender did not qualify as expert witness where “his contacts and knowledge of the [involved tribe] were extremely limited” and his testimony thus lacked “any specifics concerning the [tribe’s] unique culture or the available tribal services to address the needs of the[] parents and children”). 130 People in Interest of O.S., 701 N.W.2d 421, 425–27 (S.D. 2005) (social worker constituted qualified expert where one-half of her caseload involved Indian children, she had attended specialized ICWA courses, and she testified as to her familiarity regarding Indian child-rearing practices, including those of the child’s tribe); In re M.J.J., 69 P.3d 1226, 1228 (Okla. Civ. App. 2003) (where tribal social worker testified that “emotional abuse and use of marijuana [] were not consistent with the culture of the tribe,” a state social

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child’s tribe, have been qualified based upon their knowledge of the relevant tribe’s child-rearing customs.131 Upon request of a party or the court in a state court involuntary child custody proceeding, the BIA must assist in identifying qualified expert witnesses and interpreters, although the BIA disclaims any responsibility to pay for such services.132  Last, each party to an ICWA foster care placement or termination of pa‑ rental rights proceeding in state court has the right to examine “all reports or other documents filed with the court upon which any decision with respect to such action may be based.”133 Appointment of counsel additionally is available as a matter of right for an indigent parent or Indian custodian in any removal, placement, or termination proceeding, while appointment of counsel for an Indian child is authorized when deemed in the child’s best interests.134 

worker “possess[ing] expertise beyond the normal social worker” may serve as a qualified expert witness); In re D.M., 661 N.W.2d 768, 773 (S.D. 2003) (trial court did not abuse discretion in finding social worker a qualified expert where she had worked with tribal courts and agencies in the past, received training on ICWA, and had testified previously as a qualified expert in ICWA proceedings); L.G. v. State Dep’t of Health and Soc. Servs., 14 P.3d 946, 952 (Alaska 2000) (where social worker was member of a tribe other than the child’s tribe, but from the same cultural group, and provided testimony that child-rearing practices in her tribe were the same as those of the child’s tribe, trial court did not abuse discretion in qualifying her as an expert witness); Doty-Jabbaar v. Dallas County Child Protective Servs., 19 S.W.3d 870 (Tex. App. 2000) (where there was no evidence that social worker had education or familiarity with Indian culture and child-rearing practices, social worker was not a qualified expert); In re K.H., 981 P.2d 1190, 1197–98 (Mont. 1999) (“enlight‑ ened” courts have noted that it is preferable that any expert under ICWA possess significant knowledge and expertise with Indian culture, family structure, and child-rearing practices, and thus a social worker’s mere interaction with Indians, even on a regular basis, does not necessarily qualify her as an ICWA expert); In re Adoption of H.M.O., 962 P.2d 1191, 1197 (Mont. 1998) (“a social worker must possess expertise beyond that of the normal social worker to satisfy the qualified expert witness requirement”); In re Interest of D.A.C., 933 P.2d 993, 1002 n.9 (Utah Ct. App. 1997) (licensed clinical social worker with master’s degrees in social work and sociology, extensive counseling experience with children and families, prior qualification as an expert in custody cases, and experience counseling Indian children possessed qualified expert status); In re K.A.B.E., 325 N.W.2d 840, 843–44 (S.D. 1982) (social worker with baccalaureate degree, four years’ profes‑ sional experience, and contact with Indians on regular basis was qualified expert witness, as was director of shelter center with bachelor of science degree in social work and one year of study toward master’s degree). 131 E.g., In re Welfare of Children of S.W., 727 N.W.2d 144, 151 (Minn. Ct. App. 2007) (although not a member of the child’s tribe, witness “is a member of the larger tribal consortium that includes [the child’s] tribe” and had “more than 20 years experience in providing social services, with 14 of those as social services director for the Leech Lake Reservation”); People in Interest of T.I., 707 N.W.2d 826, 838 (S.D. 2005) (ICWA coordinator of tribe constituted qualified expert witness as to child-rearing practices of another tribe where the involved child was eligible for membership in both tribes; “we have never required a court to consider expert testimony concerning each tribe the child is eligible for enrollment with”); In re A.N., 106 P.3d 556, 559, 561–62 (Mont. 2005) (qualified expert witness requirement satisfied by tribal member who had been “raised according to tribal traditions and practices”); In re T.H., 105 P.3d 354, 359 (Okla. Civ. App. 2005) (tribal representative deemed qualified expert given his knowledge of tribe’s family organization and childrearing practices; “[t]he requirement of substantial education and experience applies to non-Indian expert witnesses”); In re K.S., 75 P.3d 325, 328 (Mont. 2003) (witness deemed qualified expert where, although not a member of child’s tribe, she had substantial knowledge of its cultural standards and previously had provided family services to its members).

25 C.F.R. §§ 23.81, 23.82.

132

25 U.S.C. § 1912(c); see also id. § 3205 (authorizing state and tribal protective service agencies to provide confidential records to tribal and state agencies). 133

134 25 U.S.C. § 1912(b). Because of the mandatory nature of counsel appointment upon request by an indigent parent or Indian custodian, one court has recognized a cause of action for ineffective assistance of

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B. Voluntary Proceedings If a parent or Indian custodian desires to consent to foster care place‑ ment or termination of parental rights, the consent must meet three require‑ ments: (1) It must be “executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the judge’s certificate that the terms and consequences of the consent were fully explained in de‑ tail and were fully understood by the parent or Indian custodian[;]”135 (2) the court must “certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood[;]”136 and (3) the consent may not be given sooner than the eleventh day after the Indian child’s birth.137 Consent to a foster care placement may be withdrawn at any time, and the child must then be returned to the parent or Indian custodian.138 Consent to termination of parental rights or adoptive placement may be withdrawn only “prior to the entry of a final decree of termination or adoption[.]”139  C. Placement Preferences Section 1915 of ICWA restricts the placement discretion of state courts in important ways. When an Indian child is the subject of an adoptive placement, the child must be placed, absent good cause to the contrary, with a member

counsel. Doe v. Mann, 285 F. Supp. 2d 1229, 1239–40 (N.D. Cal. 2003), aff’d on other grounds, 415 F.3d 1038 (9th Cir. 2005). 135 Id. § 1913(a); see 44 Fed. Reg. at 67,593 (Guideline E.1). An attorney’s failure to obtain proper consent to adoption under ICWA has been held to constitute malpractice as a matter of law. Doe v. Hughes, Thorsness, Gantz, Powell and Brudin, 838 P.2d 804, 807 (Alaska 1992).

25 U.S.C. § 1913(a).

136

Id.

137

Id. § 1913(b); see In re Adoption of K.L.R.F., 515 A.2d 33, 37–38 (Pa. Super. Ct. 1986) (withdrawal of consent under § 1913(b) requires immediate return of the child even if she “will be uprooted from her home and familiar surroundings”); see also 44 Fed. Reg. at 67,594 (Guideline E.3); cf. Erika K. v. Brett D., 75 Cal. Rptr. 3d 152, 160 (Ct. App. 2008) (§ 1913(b) applies to foster care placements initiated by the state and not to “the informal placement of a child”). 138

139 25 U.S.C. § 1913(c); see In re Adoption of Keith M.W., 79 P.3d 623, 629–30 (Alaska 2003) (where state law did not authorize conditional relinquishment of parental rights, relinquishment functioned as a con‑ sent to adoption and could be withdrawn under § 1913(c) prior to adoption); Cheree L. v. Arizona Dep’t of Econ. Sec., 66 P.3d 1248, 1254 (Ariz. Ct. App. 2003) (consensual relinquishment of parental rights could be withdrawn prior to adoption where consent predicated on adoption by a specific couple who subsequently declined to adopt); In re Dependency of M.D., 42 P.3d 424, 431 (Wash. Ct. App. 2002) (§ 1913(c) does not authorize parent to withdraw consent to parental rights termination after such rights have been terminated even though final adoption decree not yet entered); In re Kiogima, 472 N.W.2d 13, 15 (Mich. Ct. App. 1991) (“ ‘The consent [§ 1913(c)] refers to may be one of two kinds: a consent to termination of parental rights or a consent to adoptive placement. A consent to termination may be withdrawn at any time before a final decree of termination is entered; a consent to adoption at any time before a final decree of adoption’ ”); In re Adoption of Crews, 825 P.2d 305, 311 (Wash. 1992) (“[c]ourts cut off a parent’s right to withdraw consent once a final decree of termination is entered even if the adoption is not yet final”); B.R.T. v. Executive Dir., 391 N.W.2d 594, 599 (N.D. 1986) (same); see also 44 Fed. Reg. at 67,594 (Guideline E.4); see generally Metteer, supra note 33, at 455–59 (reviewing cases).

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of the child’s extended family,140 other members of the child’s tribe, or other Indian families.141 Any foster care or preadoptive placement must be “in the least restrictive setting which most approximates a family and in which [the Indian child’s] special needs, if any, may be met[,]” must be “within reasonable proximity to his or her home, taking into account any special needs of the child[,]” and, in the absence of good cause to the contrary, must be with

(i) a member of the Indian child’s extended family;



(ii) a foster home licensed, approved, or specified by the Indian child’s tribe;



(iii) an Indian foster home licensed or approved by an authorized non‑Indian licensing authority; or



(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.142 

The person or entity claiming extended family member status shoulders the burden to establish such status.143  The statutory preferences applicable to adoptive placements and to foster care or preadoptive placements may be modified by the child’s tribe through resolution.144 Absent contrary good cause, tribally established preferences must

140 Section 1903(2) of the ICWA states that “‘extended family member’ shall be as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of 18 and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother‑in‑law or sister‑in‑law, niece or nephew, first or second cousin, or stepparent[.]” See In re Adoption of M.T.S., 489 N.W.2d 285, 288 (Minn. Ct. App. 1992) (paternal grandmother); State ex rel. Juvenile Dep’t v. Charles, 810 P.2d 393, 395–96 (Or. Ct. App. 1991) (maternal aunt); In re Oscar C., Jr., 559 N.Y.S.2d 431, 434–35 (Fam. Ct. 1990) (maternal grandmother), aff’d, New York City Dep’t of Soc. Servs. on Behalf of Oscar C., Jr. v. Oscar C., 600 N.Y.S.2d 957 (App. Div. 1993). 141 25 U.S.C. § 1915(a); see 44 Fed. Reg. at 67,594 (Guideline F.1). The Guidelines specifically include single-parent families within the scope of “Indian families.” Id. (Guideline F.1(a)(iii)). An individual who is not a member of a federally recognized tribe may not qualify as an Indian family placement under § 1915(a). In re H.N.B, 619 N.W.2d 340, 345 (Iowa 2000). No placement subject to the preferences occurs where custody remains in a biological parent. See In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 611 (Ct. App. 2006) (step-father adoption where “the child would be living with the biological mother”).

25 U.S.C. § 1915(b); see 44 Fed. Reg. at 67,594 (Guideline F.2).

142

In re Krystle D., 37 Cal. Rptr. 2d 132, 147 (Ct. App. 1994) (tribe responsible for establishing indi‑ viduals as extended family members); see also C.L. v. P.C.S., 17 P.3d 769, 777 (Alaska 2001) (ICWA does not establish preference order among extended family members). 143

144 See In re Liliana S., 10 Cal. Rptr. 3d 553, 556 (Ct. App. 2004) (tribal resolution that restricted place‑ ment to Indian relatives “conflicts with the requirements” of § 1915(b) insofar as it excluded “all members of the[] children’s [non-Indian] paternal family as potential placement alternatives”); In re Julian B., 99 Cal. Rptr. 2d 241, 247 n.3 (Ct. App. 2000) (while ICWA allows tribal resolutions to alter the order of placement preferences, it does not permit tribes “to designate a specific placement”); In re H.N.B, 619 N.W.2d 340, 345 (Iowa 2000) (tribal “position statement” did not qualify as tribal resolution under § 1915(b)(ii)); but see Doe v. Mann, 285 F. Supp. 2d 1229, 1231–1232, 1239 (N.D. Cal. 2003) (allegation that full faith and credit due under 25 U.S.C. § 1911(d) to tribal resolution declaring “tribe’s prevailing social and cultural standards, as well as [the child’s] interests, would best be served by placing her for adoption with [the mother’s] brother and sister-in-law” stated a claim under Fed. R. Civ. P. 12(b)(6)), aff’d on other grounds, 415 F.3d 1038 (9th Cir.

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be followed as long as, with respect to foster care and preadoptive placements, the placement selected satisfies the “least restrictive setting” condition.145 Because Congress believed that “[a]ll too often State public and private agen‑ cies, in determining whether or not an Indian family is fit for foster care or adoptive placement of an Indian child, apply a white, middle‑class standard which, in many cases, forecloses placement with the Indian family[,]”146 sec‑ tion 1915(d) provides that “[t]he standards to be applied in meeting the prefer‑ ence requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.”147  What constitutes “good cause” for departing from the placement prefer‑ ences is not specified in ICWA. House Report 1386 remarked generally that section 1915(a) and (b) “establish[es] a Federal policy that, where possible, an Indian child should remain in the Indian community, but is not to be read as precluding the placement of an Indian child with a non‑Indian family.”148 The Guidelines identify the following good cause criteria:

(i) The request of the biological parents or the child when the child is of sufficient age.



(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.



(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.149 

State courts, although considering the Guidelines’ criteria,150 often weigh a broad range of factors. Most controversial is consideration of whether the child’s

2005); Cutright v. State, 244 S.W.2d 702, 709 (Ark. Ct. App. 2006) (letters to trial court from tribe expressing its placement preference were controlling absent good cause to the contrary). 145

25 U.S.C. § 1915(c).

146

H.R. Rep. No. 1386, supra note 2, at 24, reprinted in 1978 U.S.C.C.A.N. at 7546.

147

25 U.S.C. § 1915(d).

148

H.R. Rep. No. 1386, supra note 2, at 23, reprinted in 1978 U.S.C.C.A.N. at 7546.

44 Fed. Reg. at 67,594 (Guideline F.3(a)(i)–(iii)). The Guidelines notably do not include consideration of “the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties,” which § 1915(d) mandates be applied in meeting the preference requirements themselves. One court neverthe‑ less has cautioned that while § 1915(d) has no application to a good-cause determination under § 1915(a), “‘white, middle class’ standards may not be applied to reassess the suitability of a preferred placement.” In re Adoption of Sara J., 123 P.3d 1017, 1024 (Alaska 2005). 149

150 E.g., Seminole Tribe v. Dep’t of Children and Families, 959 So. 2d 761, 765 (Fla. Dist. Ct. App. 2007) (“the trial court utilized the appropriate BIA guidelines in interpreting good cause as per section 1915(b)” and properly assigned the burden of proof to the good-cause exception’s proponents); In re Adoption of Sara J., 123 P.3d at 1025 (noting agreement between state law and Guidelines that good-cause exception propo‑ nent bears burden of proof); Fresno County Dep’t of Children & Family Servs. v. Superior Ct., 19 Cal. Rptr. 3d

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best interests warrant departure from the statutory preferences.151 Consistent with the Guidelines, another commonly cited factor is parental or Indian child preferences.152 All in all, courts have displayed a willingness to give weight

155, 166 (Ct. App. 2004) (Guidelines . . . should be given important but not controlling significance); In re Adoption of Keith M.W., 79 P.3d 623, 626 (Alaska 2003) (Guidelines with respect to placement preferences, while “only persuasive and . . . neither exclusive nor binding,” are considered); In re Adoption of F.H., 851 P.2d 1361, 1364–65 (Alaska 1993) (applying the Guidelines, maternal preference was given great weight in determining whether there was good cause to deviate from the placement preferences). 151 Compare In re Adoption of Baby Girl B., 67 P.3d 359, 373 (Okla. Civ. App. 2003) (endorsing a multifactor analysis under which “[t]he trial court’s task is to engage in a fact-finding process leading to a determination of the children’s best interests, yet keeping in mind the permanent facts that Indian children and an Indian nation are involved”); L.G. v. State Dep’t of Health and Soc. Servs., 14 P.3d 946, 955 (Alaska 2000) (where experts agreed that removal of child from current placement was certain to cause child serious emotional harm, best interest of child was paramount in justifying good cause to deviate from the placement preferences); and People ex rel. Interest of A.N.W., 976 P.2d 365, 369 (Colo. Ct. App. 1999) (“[c]ourts addressing the issue of what constitutes good cause under 1915(a) have considered the best interests of the child, the wishes of the biological parents, the suitability of the persons preferred for placement, the child’s ties to the tribe, and the child’s ability to make any cultural adjustments necessitated by a particular placement”), with In re Adoption of Riffle, 922 P.2d 510, 514–15 (Mont. 1996) (best interests standard inapplicable when determining whether adoption placement preferences should be followed); and In re Custody of S.E.G., 521 N.W.2d 357, 362 (Minn. 1994) (“a finding of good cause cannot be based simply on a determination that placement out‑ side the preferences would be in the child’s best interests” because best interest determinations are often “imbued with the values of the majority culture”); cf. In re Baby Boy Doe, 902 P.2d 477, 486–49 (Idaho 1995) (finding reasoning of S.E.G. persuasive but upholding good cause to avoid placement preferences due to other factors). Commentators differ on whether the child’s best interest is an appropriate consideration. Compare Joseph G. Twomey, Note, Considering a Native American Child’s Need for Permanent Placement Under the Indian Child Welfare Act: In Re S.E.G., A.L.W., and V.M.G., 521 N.W.2d 357 (Minn. 1994), 18 Hamline L. Rev. 281 (1995) (criticizing S.E.G.’s conclusion that the need for permanent placement did not constitute extraordinary needs justifying good cause to deviate from the placement preferences); and Atwood, supra note 33, at 662 (concluding that “[s]ection 1915 . . . poses a policy dilemma[,]” and suggesting as “[a] way out of this conundrum” a standard of proof that requires clear and convincing evidence to depart from ICWA’s placement preferences), with Metteer, supra note 33, at 444–45 (“courts which fail to follow the Act’s place‑ ment preferences most often do so because they apply a best interests of the Indian child test, and then make an Anglo determination of the Indian child’s best interests”); and Erik W. Aamot-Snapp, Note, When Judicial Flexibility Becomes Abuse of Discretion: Eliminating the “Good Cause” Exception in Indian Child Welfare Act Adoptive Placements, 79 Minn. L. Rev. 1167 (1995) (supporting S.E.G. as consistent with protecting the relationship between tribes and their children). 152 In re Adoption of B.G.J., 111 P.3d 651, 657 (Kan. Ct. App. 2005) (finding no abuse of discretion by trial court’s reliance of parental objection to placement with family members or Native Americans); In re Liliana S., 10 Cal. Rptr. 3d 553, 556 (Ct. App. 2004) (finding good cause based upon child’s and parents’ desire for placement with non-Indian paternal grandmother whose “proximity to the parents[] allow[ed] for visitation and a better chance for reunification”); In re Adoption of Keith M.W., 79 P.3d 623, 630–31 (Alaska 2003) (good cause existed because of the open nature of the adoption, the bonding between the child and adoptive parents over the two-year period since adoption, and the birth mother’s preference); In re Dependency of Z.F.S., 51 P.3d 170, 173 (Wash. Ct. App. 2002) (upholding determination to place child with Native village couple rather than with cousin as requested by mother where, inter alia, cousin refused to testify at placement hearing concerning her custodial suitability, tribal status, or commitment to care for child permanently); In re Adoption of N.P.S., 868 P.2d 934 (Alaska 1994) (giving weight to deceased mother’s preference stated in her will and finding that, while child’s cultural interests would have been best served by living with maternal grandmother, most of other Guidelines factors supported adoption by mother’s friend with whom child had lived for most of child’s life); see also In re N.N.E., 752 N.W.2d 1, 9 (Iowa 2008) (Iowa ICWA preference provision violates state substantive due process requirements insofar as it precludes consideration of parental placement requests; the statute is not narrowly tailored to serve any compelling state interest the state may possess in a tribe’s survival, since it “makes the rights of a tribe paramount to the rights of an Indian parent or child even where, as in this case, the parent who is the tribal member has no connection to the reservation and has not been deemed unfit to parent”). One commentator has argued that the Indian child’s desires in placement decision-making have received insufficient attention. Barbara

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to multiple criteria in making placement departure determinations.153 The proponent of the “good cause” exception bears the burden of establishing its existence, but courts have disagreed over the evidentiary standard.154  IV. COLLATERAL ATTACK UPON STATE COURT DECREES Section 1914 of ICWA authorizes an Indian child who is the subject of a foster care placement or termination of parental rights proceeding under state law, any parent or Indian custodian from whose custody the child was removed, or its tribe to request a “court of competent jurisdiction” to invalidate the state court decree if it was not entered in compliance with sections 1911 through 1913.155 By limiting its scope to violations of sections 1911 through 1913, section

Atwood, The Voice of the Indian Child: Strengthening the Indian Child Welfare Act Through Children’s Participation, 50 Ariz. L. Rev. 127, 131 (2008) (“[t]he Act and the non-binding Bureau of Indian Affairs Guidelines . . . acknowledge a role for children’s wishes, but the reported case law often either ignores the child’s views or accepts a one-dimensional representation of the child’s perspective”). 153 See Fresno County Dep’t of Children & Family Servs. v. Superior Ct., 19 Cal. Rptr. 3d 155, 169 (Ct. App. 2004) (juvenile court properly relied on preservation of sibling relationship in finding good cause to depart from preferences, since “ICWA does not preempt the court’s consideration of a sibling relationship in evaluating good cause”); In re C.G.L., 63 S.W.3d 693, 698–99 (Mo. Ct. App. 2002) (good cause not to fol‑ low preferences existed where evidence indicated parents did not want grandparents to have custody and where grandparents likely were unable to satisfy Indian child’s special medical needs); In re S.N.R., 617 N.W.2d 77, 85 (Minn. Ct. App. 2000) (where foster parent did not qualify as extended family, was not a member of the child’s tribe or any other Indian tribe, was not a preferred placement under ICWA, and did not provide expert testimony that child had extraordinary emotional or physical needs that provide good cause not to follow the placement preferences, the trial court did not err in dismissing the foster parent’s petition to adopt); 154 Compare In re Adoption of Baby Girl B., 67 P.3d at 373–74 (clear and convincing evidence), with Seminole Tribe v. Dep’t of Children and Families, 959 So. 2d 761, 765 (Fla. Dist. Ct. App. 2007) (adopting abuse of discretion standard—i.e., whether the trial court considered improper factors or weighed them improperly); In re Adoption of B.G.J., 133 P.3d 1, 10 (Kan. 2006) (reviewing other states’ decisions with respect to standard of review for good-cause determinations, and selecting abuse of discretion; “[s]ubstantial discretion is abused when the district court fails to properly apply the ICWA factors in making its findings of fact rendering the findings clearly erroneous”); In re Adoption of Sara J., 123 P.3d 1017, 1024 (Alaska 2005) (“under Alaska law the burden of showing good cause is on the party proposing placement outside the statutory preferences”); County Dep’t of Children & Family Servs. v. Superior Ct., 19 Cal. Rptr. 3d 155, 168 (Ct. App. 2004) (proponent of good cause bears burden of proof with substantial evidence test applied to juvenile court’s evidentiary findings—i.e., “whether the trial court’s factual findings are rationally supported by record evidence”); In re Adoption of F.H., 851 P.2d 1361, 1363 (Alaska 1993) (preponderance of evidence). 155 See Navajo Nation v. Superior Ct., 47 F. Supp. 2d 1233, 1240–41 (E.D. Wash. 1999) (tribe lacked parens patriae standing to challenge adoption order on behalf of individual member; tribal member lacked protect‑ able interest under the ICWA since she never possessed “Indian custodian” status), aff’d on other grounds, 331 F.3d 1041 (9th Cir. 2003); In re Welfare of Children of S.W., 727 N.W.2d 144, 152 (Minn. Ct. App. 2007) (§ 1914 did not authorize court to invalidate parental rights termination order merely because ICWA violations may have occurred during temporary foster care placement proceedings); In re Interest of Enrique P., 709 N.W.2d 676, 689–690 (Neb. Ct. App. 2006) (reviewing in detail other state courts’ application of § 1914; observing that “[u]nder our general appellate jurisprudence [the mother] would be precluded from asserting error in the adjudication and dispositional orders by virtue of her failure to preserve any error by a timely appeal[;]” but determining not to reach procedural default issue because trial court’s failure to apply ICWA was harm‑ less error); In re S.B., 30 Cal. Rptr. 3d 720, 731–33 (Ct. App. 2005) (finding waiver of parent’s right under § 1914 to object to alleged violation of notice requirements by failure to raise claim during the juvenile court proceedings); In re Jonathon S., 28 Cal. Rptr. 3d 493, 499–500 (Ct. App. 2005) (§ 1914 did not grant appel‑ late court authority to invalidate prior unappealed orders in child custody proceeding; “competent court”

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1914 does not authorize collateral attack upon state court decrees because of placement determinations allegedly inconsistent with section 1915.156 That the child’s tribe is given standing to challenge collaterally such decrees suggests, as the Supreme Court held in Mississippi Band of Choctaw Indians v. Holyfield,157 that the tribe has an independent, statutorily protected interest in ensuring compliance with the statute’s provisions—even when the child’s parents, or perhaps the child himself, do not desire to set the state court decree aside.158  Collateral review authority under section 1914 nevertheless has been held as not authorizing a federal court to relitigate ICWA issues previously or currently being litigated in state court.159 State courts presumably are available to adjudicate claims under this provision. The statute contains no limitation period for section 1914 actions, and state law periods thus have been held ap‑ plicable.160 Section 1913(d) permits the validity of a consent to termination of parental rights or adoptive placement to be attacked collaterally if the consent

requirement must be determined with reference to jurisdiction possessed under state law); In re S.M.H., 103 P.3d 976, 981 (Kan. Ct. App. 2005) (§ 1914 authorized review of mother’s claim that ICWA applied, even though not raised before trial court); S.H. v. Calhoun County Dep’t of Human Res., 798 So. 2d 684, 692 (Ala. Ct. App. 2001) (where court refused to permit mother’s testimony regarding her Indian heritage and ap‑ plicability of the Act, mother and father had right under § 1914 to petition to invalidate the proceedings); In re W.D.H., 43 S.W.3d 30, 38 (Tex. App. 2001) (parent has standing under § 1914 to challenge adequacy of notice to the child’s tribe); Carson v. Carson, 13 P.3d 523 (Or. Ct. App. 2000) (adoptive parent does not fall within one of the three classes of persons identified in § 1914 with standing to challenge compliance with ICWA); In re Welfare of M.S.S., 936 P.2d 36 (Wash. Ct. App. 1997) (non-Indian father had standing to challenge termination decree for noncompliance with ICWA). 156 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 58 n.5 (1989) (Stevens, J., dissenting); Doe v. Mann, 285 F. Supp. 2d 1229, 1240–41 (N.D. Cal. 2003), aff’d on other grounds, 415 F.3d 1038 (9th Cir. 2005); Navajo Nation, 47 F. Supp. 2d at 1242–43; In re Interest of J.W., 528 N.W.2d 657 (Iowa Ct. App. 1995); State ex rel. Juvenile Dep’t v. Woodruff, 816 P.2d 623, 625 (Or. Ct. App. 1991); B.R.T. v. Executive Dir., 391 N.W.2d 594, 601 (N.D. 1986); see also Morrow v. Winslow, 94 F.3d 1386, 1394 n.4 (10th Cir. 1996) (rejecting view of some state courts that § 1914 provides remedy only to parent from whose custody child actually removed). 157

490 U.S. 30, 51–53 (1989).

See In re Petition of Phillip A.C., 149 P.3d 51, 58–60 (Nev. 2006) (voluntary adoption proceeding con‑ stituted a termination of parental rights, since a biological parent’s consent to adoption includes voluntary relinquishment of parental rights, susceptible to collateral attack by tribe under § 1914 for noncompliance with § 1913(a)). 158

159 Morrow v. Winslow, 94 F.3d 1386 (10th Cir. 1996); Comanche Indian Tribe v. Hovis, 53 F.3d 298 (10th Cir. 1995); Confederated Tribes of Colville Reserv. v. Superior Ct., 945 F.2d 1138 (9th Cir. 1991); Kiowa Tribe v. Lewis, 777 F.2d 587, 592 (10th Cir. 1985); Navajo Nation v. Dist. Ct., 624 F. Supp. 130, 134–35 (D. Utah 1985), aff’d on mootness grounds, 831 F.2d 929 (10th Cir. 1987); see also Doe v. Mann, 415 F.3d 1038, 1047 (9th Cir. 2005) (§ 1914 creates exception to Rooker-Feldman doctrine, which generally prohibits collateral attack in lower federal courts on the validity of a state court judgment, since “Congress explicitly authorized federal courts to invalidate state court judgments in this limited arena”); see generally Jones, supra note 33, at 432 (characterizing § 1914 as “a toothless saber”). 160 In re Adoption of T.N.F., 781 P.2d 973, 978–82 (Alaska 1989) (applying one‑year limitation period of forum state since child had “significant contacts” with such state); see also In re Adoption of Erin G., 140 P.3d 886, 890–94 (Alaska 2006) (declining to accord stare decisis effect to T.N.F. given the lack of a common rationale subscribed to by a majority of the court, but nevertheless holding the state one-year limitation period applicable); cf. In re Pedro N., 41 Cal. Rptr. 2d 819, 824 (Ct. App. 1995) (§ 1914 does not preempt state law requiring timely notices of appeal from a parent who appeared in the underlying proceedings and who had knowledge of the applicability of ICWA).

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was obtained by fraud or duress and the adoption has been effective for less than two years unless a longer period for seeking such invalidation is provided under state law.161  A potentially important issue related to collateral attack under section 1914 is whether the provisions of ICWA are enforceable separately under 42 U.S.C. § 1983. That issue had not been addressed directly until the Alaska Su‑ preme Court’s decision in State v. Native Village of Curyung.162 The court first held that an Alaska Native village possessed “person” status under section 1983 to sue in a parens patriae capacity to enforce ICWA requirements on its members’ behalf against state officials for purposes of prospective relief.163 It turned then to the question whether ICWA’s remedial scheme forecloses resort to a cause of action under § 1983. The general rule is that, where a statute contains its own remedial scheme, application of section 1983 is presumptively precluded.164 That presumption, however, is rebuttable, and the court identi‑ fied three considerations for making that determination, which included (1) “whether the [statute’s] remedy would normally be available under § 1983 or whether, instead, the remedy expands upon those available under § 1983[;]” (2) “whether the statutory remedy creates procedural limitations that are more stringent than those provided in § 1983[;]” and (3) whether allowing “a party to proceed under § 1983 would be inconsistent with the compromises reached in the statute.”165 The court’s ensuing analysis was concerned principally with the effect of section 1914, and it held that the ICWA’s express collateral review provision was intended “not to displace § 1983, but rather to supplement it” and that recognition of a section 1983 remedy would not undermine the ICWA’s purposes.166 It seems likely that this issue—which appears susceptible to dif‑ fering conclusions—will be revisited by other courts. Finally, should a final decree of adoption be vacated or the adoptive par‑ ents otherwise consent to termination of their parental rights, section 1916(a) requires an Indian child to be returned to his biological parent or Indian cus‑ todian upon petition by such parent or custodian “unless there is a showing, in a proceeding subject to the provisions of section 1912, that such return of custody is not in the best interests of the child.” The requirements of section 1916(a) facially apply even should an adoption decree be set aside for reasons

See 44 Fed. Reg. at 67,595 (Guideline G.1(a)) ; cf. In re Adoption of Kenten H., 725 N.W.2d 548, 555–56 (Neb. 2007) (two-year limitation period under the Nebraska Indian Child Welfare Act for challenging adop‑ tion decree requires the action to be filed, not to be resolved, within two years of the decree’s entry). 161

162

151 P.3d 388 (Alaska 2006).

163

Id. at 399–402.

164

Id. at 408.

165

Id. at 409.

166

Id. at 412.

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other than noncompliance with ICWA. So, for example, the father of a child born out of wedlock who failed to acknowledge or establish paternity prior to termination of his parental rights and entry of the adoption decree would presumably be entitled to custody of the child, absent the contrary showing mandated by section 1916(a), if he successfully challenged the original pro‑ ceeding on constitutional or state statutory grounds. V. FULL FAITH AND CREDIT REQUIREMENTS Section 1911(d) of ICWA requires that [t]he United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.167 

Article IV, section 1, of the United States Constitution additionally re‑ quires states to give full faith and credit to the “public Acts, Records, judicial Proceedings of every other state[,]” while 28 U.S.C. section 1738 provides that the “records and judicial proceedings of any court of any . . . State, Territory or Possession” shall be given “full faith and credit in every other court within the United States and its territories and possessions[.]” The constitutional pro‑ vision, applying only to states, consequently is expanded under the federal statute to include at least the United States itself and territorial courts. It is unclear whether the terms “territories or possessions” in section 1738 include reservations or other land constituting Indian country.168 Absent section 1738’s applicability, tribes will be obligated under 25 U.S.C. § 1911(d) to extend full faith and credit to a child custody determination by another tribe only to

167 See Native Vill. of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 562 (9th Cir. 1991) (Native village in Public Law 280 state, to the extent deemed an Indian tribe, entitled to full faith and credit with respect to tribal child custody determinations); Starr v. George, 175 P.3d 50, 55 (Alaska 2008) (where paternal grand‑ parents possessed due process rights by virtue of party status in ongoing state custody case, tribal council resolution approving adoption by maternal grandparents was not entitled to full faith and credit because the paternal grandparents were given no opportunity to participate in the council proceedings; “[f]ull faith and credit . . . requires that the issuing court afford the parties due process . . . in accordance with federal and state constitutional standards”); In re J.D.M.C., 739 N.W.2d 796, 812 (S.D. 2007) (applying minimum contacts analysis to determine whether tribal court possessed jurisdiction over nonmember father so as to require full faith and credit to tribal court judgment, and concluding that no such jurisdiction existed since he had never resided on reservation and had not “purposely availed himself to the benefits and protections of the laws of the . . . reservation” and since “neither his children nor his ex-wife resided or domiciled on the reservation” during any time “relevant to this proceeding”); Searle v. Searle, 38 P.3d 307 (Utah Ct. App. 2001) (full faith and credit required where tribal court custody determination was final, jurisdictionally sound, and entered consistently with due process principles); In re Laura F., 99 Cal. Rptr. 2d 859, 867 (Ct. App. 2000) (full faith and credit not required with respect to tribal resolution where tribe never exercised jurisdiction over child notwithstanding fact that failure to accord full faith and credit results in decision that violates tribal custom and tradition). 168

See generally Chapter 6, part IV (discussing decisional conflict over the scope of 28 U.S.C. § 1738).

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the extent, by virtue of its own law, the first tribe does so with respect to the public acts, records, and judicial proceedings of any other tribal or nontribal government.169 Section 1911(d) imposes no obligation on tribes to extend full faith and credit to state custody determinations. The Ninth Circuit Court of Appeals has concluded that section 1911(d) creates a private right of action upon which a tribe may sue to compel recogni‑ tion of tribal court adoption orders by an Alaska state agency for the purpose of qualifying for aid to families with dependent children benefits.170 It further held that the tribal court orders would constitute exercise of inherent author‑ ity if the involved Native villages were deemed “the modern‑day successors to an historical sovereign band of Native Americans”171 and that, even though the villages had not reassumed jurisdiction over child custody proceedings pursuant to 25 U.S.C. § 1918 of the ICWA, they nonetheless would possess concurrent jurisdiction with the state over such proceedings.172 Section 1911(d), however, is not a source of authority to relitigate issues previously decided in state court.173  VI. RIGHTS OF ADULT ADOPTEES Section 1917 of ICWA provides: Upon application by an Indian individual who has reached the age of eighteen and who was the subject of an adoptive placement, the court which entered the final decree shall inform such individual of the tribal

169 The extent to which any obligation under § 1911(d) could be enforced against a tribe outside its own court system is uncertain in the absence of congressional abrogation of tribal common law immunity against unconsented suit. Compare Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978) (rejecting claim that Indian Civil Rights Act creates private right of action in federal court to enforce the statute’s requirements), with Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991) (suggesting the availability of relief against tribal officers by analogy to Ex parte Young, 209 U.S. 123 (1908)). 170 Native Vill. of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 562 (9th Cir. 1991); see also Native Vill. of Venetie I.R.A. Council v. Alaska, 155 F.3d 1150 (9th Cir. 1998) (holding that § 1911 creates a right enforceable under 42 U.S.C. § 1983, with attorneys’ fees awardable under 42 U.S.C. § 1988); but see Doe v. Mann, 285 F. Supp. 2d 1229, 1241 (N.D. Cal. 2003) (finding no private right of action to enforce § 1915; reasoning that Native Village of Venetie “does not stand for the proposition that a right of action may be implied under any provision of ICWA” and that “it seems clear from the text of section 1914 that Congress intended to provide a cause of action only for violation of three ICWA sections”), aff’d on other grounds, 415 F.3d 1038 (9th Cir. 2005). An unresolved question, however, is whether a tribal placement preference resolution or ordinance may be enforced under § 1914 through the full faith and credit requirement in 25 U.S.C. § 1911(d). Id. at 1239 (allegation that state court failed to follow tribal resolution declaring placement preference stated a claim for Fed. R. Civ. P. 12(b)(6) purposes). 171

Native Vill. of Venetie, 944 F.2d at 562.

Id. at 561–62. The Alaska Supreme Court rejected the Ninth Circuit’s analysis of In re F.P., 843 P.2d 1214, 1215–16 (Alaska 1992), with respect to the existence of concurrent tribal jurisdiction for § 1911(b) purposes but subsequently overruled F.P. in In re C.R.H., 29 P.3d 849 (Alaska 2001). Cf. John v. Baker, 30 P.3d 68, 74 (Alaska 2001) (adopting comity standards with respect to recognition of tribal court child custody order in non-ICWA proceeding). 172

173

Comanche Indian Tribe v. Hovis, 53 F.3d 298 (10th Cir. 1995).

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affiliation, if any, of the individual’s biological parents and provide such other information as may be necessary to protect any rights flowing from the individual’s tribal relationship.

This requirement supersedes state adoption laws prohibiting the release of the identity or other information about a biological parent. As a consequence, state courts must fashion remedies through which the adult adoptee’s tribal affiliation can be established while respecting confidentiality concerns.174 Sec‑ tion 1917 applies regardless of whether the original adoption was subject to the provisions of the Act.175  Section 1951(a) of ICWA additionally requires any state court entering a final decree in any Indian child adoptive placement (after the date of the enactment of ICWA) to provide the Secretary of the Interior with a copy of the decree and specific information about the name and tribal affiliation of the child, the names and addresses of the biological parents, the names and addresses of the adoptive parents, and the identity of any agency having files or information relating to such adoption.176 Where court records contain an affidavit of a biological parent requesting that his or her identity be kept confi‑ dential, the court is required to include such affidavit with the other informa‑ tion. The Secretary is required to ensure the confidentiality of such adoption records.177 Upon request of an adult adoptee, the adoptive or foster parents of an Indian child, or an Indian tribe, the Secretary must disclose “such informa‑ tion as may be necessary for the enrollment of an Indian child in the tribe for which the child may be eligible for enrollment or for determining any rights or benefits associated with that membership.”178 Where a biological parent has filed an anonymity affidavit, the Secretary is permitted to certify to the Indian child’s tribe, if the information warrants, that the child’s parentage and other circumstances of birth entitle the child to enrollment under the criteria established by the tribe.179 

174 44 Fed. Reg. at 67,595 (Guideline B.2(b)); see In re Adoption of Mellinger, 672 A.2d 197, 198–99 (N.J. Super. Ct. 1996) (§ 1917 preempts state law confidentiality requirements to extent more stringent than under ICWA). 175 See In re Hanson, 470 N.W. 2d 669, 672–73 (Mich. Ct. App. 1991) (holding that where consent of adult adoptee’s living biological parents has not been obtained, the trial court should release the identifying information to the appropriate tribe, with a request that the tribe keep the information confidential); In re Adoption of Rebecca, 601 N.Y.S.2d 682, 683–84 (Surr. Ct. 1993) (instructing trial court to release informa‑ tion only to the tribe with the request that the tribe keep the information confidential to protect biological parents’ privacy rights and at the same time ensure adult adoptee’s rights under ICWA). 176

25 C.F.R. § 23.71(a)(1).

177

Id. § 23.71(a)(2).

178

Id. § 23.71(b).

179

Id.

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Chapter 14 State-Tribal Cooperative Agreements

States and tribes share adjacent lands, resources, and citizens, while jurisdictional rules are often not clearly established under federal law. This situation has historically created conflict and uncertainty, often leading to expensive and lengthy litigation. Meanwhile, as tribes acquire land and engage in economic development initiatives, the potential for these jurisdictional tensions may increase. Often the litigation mode has not proven the best means to resolve the core uncertainties and distrust between states and tribes. Rather than spend resources and goodwill in litigation, it can be more fruitful to attempt to find a cooperative way to solve the underlying problem. In light of the shared state and tribal concerns, as well as a lack of definitive federal guidelines, there exists significant potential for cooperation between tribal and state governments in addressing these shared concerns. Often the problems faced by states and tribes are transboundary in nature in areas such as air and water pollution, treatment of hazardous wastes, and resource conservation. Law enforcement activities in Indian country can benefit from cross-deputization agreements empowering law enforcement personnel of one government to enforce laws in the other’s jurisdiction. Cooperation in the area of social service delivery, in a manner respecting tribal culture and differences, may directly benefit the tribes, while indirectly benefitting the states by laying the predicate for cooperation in other areas. The federal government has announced a policy of cooperation and negotiated agreement concerning quantification of reserved Indian water rights. Some federal acts, such

 See 1990 Annual Report to the Western Governors’ Association: A New Era for State-Tribal Relations 14 (Jul. 1990) (concluding that in rural areas of western states, many of the same or similar problems face states and tribes).  55 Fed. Reg. 9223 (Mar. 12, 1990). Tribal reactions to these guidelines, however, have generally been unfavorable. Eileen Shimuzu, Indian Water Rights: An Examination of the Current Status of the Department of Interior’s Guidelines and Opposition to Them, 38 Fed. B. News & J. 88 (1991).

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as the Indian Gaming Regulatory Act and Indian Child Welfare Act, include provisions authorizing or requiring states and tribes to enter into cooperative agreements for the promotion of the spe­cific legislation’s purpose. This chapter first looks at the recent trend toward statewide mechanisms for state-tribal government-to-government relations. Next, the chapter considers the authority of state and tribal governments to enter into cooperative agreements. Next, subject areas appropriate for cooperative state-tribal agreements are explored. This exploration, however, is not meant to be exhaustive. Some very general negotiation considerations are set forth, but one must keep in mind that each negotiation contains its own fact-specific considerations. Part V of the chapter analyzes a comprehensive state-tribal cooperative agreement to reveal the kinds of obstacles that may be encountered during negotiations and the creative solutions found to overcome those obstacles. Finally, the chapter closes with a section surveying a representative sample of state-tribal cooperative agreements that have been negotiated. Generally, state-tribal agreements are entered for a specified term and are terminable at the will of either government. Consequently, the agreements discussed in this part may no longer be in operation but are included merely as being representative. Readers are encouraged to contact the state or tribe involved in a particular negotiation for more information. I. CONDUCT OF GOVERNMENT-TO-GOVERNMENT RELATIONS Particularly in recent years, there has been an increasing trend for states to develop mechanisms for establishing communication and cooperation with tribes. The following are some examples. In the last several years the State of Oregon has adopted a structure for government-to-government relations with the federally recognized tribes in Oregon, first through a 1996 governor’s executive order and then through

 Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701–2721 and 18 U.S.C. §§ 1166, 1167, 1168); see generally Michael W. Ridgeway, Comment, The Potawatomi/Oklahoma Gaming Compact of 1992: Have Two Sovereigns Achieved a Meeting of the Minds?, 18 Am. Indian L. Rev. 515 (1993).  Pub. L. No. 95-608, 92 Stat. 3069 (1978) (codified at 25 U.S.C. §§ 1901–1963); see generally June M. Mickens, Tribal and State Intergovernmental Child Support Agreements: The Process Behind the Contract, 9 Am. J. Fam. Law 11 (1995).  See generally Chapter 12 (discussing Indian Gaming Regulatory Act) and Chapter 13 (discussing Indian Child Welfare Act).  See generally Susan Johnson and J. Kaufmann, Government to Government: Models of Cooperation Between States and Tribes (Nat’l Cong. Am. Indians and Nat’l Conf. State Legislatures 2002) (describing the variety of potential mechanisms for cooperation between tribal and state governments, including state legislative committees, state commissions, and state-tribal agreements and protocols).  Exec. Order No. 96-30 (Or. 1996), available at http://www.oregon.gov/LCD/docs/ govtogov/eo96-30.pdf (last visited Aug. 1, 2008).

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legislation adopted in 2001. The executive order and statute require state agencies to designate tribal “key contacts,” and provide for an annual meeting of state and tribal leaders. The statute requires state agencies to establish tribal relations policies and to provide an annual report. It also requires annual training for managers and employees who have regular contact with tribes. Through the executive order process, the state and tribes established interestarea “cluster groups” of state agency and tribal staff who meet on a regular basis to share information and discuss issues of concern. In April 2001, Alaska and over 60 of the 229 federally recognized tribes in Alaska entered into a unique arrangement known as the Millennium Agreement. The agreement does not address specific issues but rather “provides a framework for the establishment of lasting government-to-government relationships.” Among its provisions is a set of guiding principles, including that tribes have a right of self-governance and self-determination; that tribal-state relations shall be based on equal dignity, mutual respect, and free and informed consent; and that tribes and the state should communicate openly and early about matters affecting one another. The agreement establishes a permanent State-Tribal Forum that is to be held at least once a year and is to provide for dialogue at the “highest level” between the state and the signatory tribes. The agreement also creates a “centralized office, council, or commission to oversee tribal-state relations.” In 1989, the State of Washington entered into a “Centennial Accord” agreement with the federally recognized tribes in Washington, affirmed by gubernatorial proclamation. The Accord required that state agencies identify individuals responsible for mutual concerns and provided for institutionalization of government-to-government process by the state and tribes through accountability and communication, including an annual meeting. In 1999, the state and various tribes executed a “New Millennium Agreement” reaffirming and strengthening the 1989 Centennial Accord.10

Or. Rev. Stat. §§ 182.162–182.168.



See generally Karen Quigley, Oregon’s Approach to State Tribal Relations, Oregon Legislative Commission on Indian Services, (Apr. 2004), originally published at Pac. Conference Newsletter, Winter 2004. 

10 Washington Centennial Accord and Millennium Agreement, available at http://www.goia.wa.gov/ (last visited Jul. 27, 2008); see also Kan. Stat. Ann. § 46-2303 (establishing joint committee on tribal relations); S.D. Codified Laws Ann. §§ 1-4-1 to 1-4-4 (establishing South Dakota Office of Tribal Governmental Relations); id. § 2-6-20 (creating state-tribal relations committee); and id. § 2-6-23 (outlining responsibilities of state-tribal relations committee); Okl. Stat. Ann. 74 § 1222 (creating committee and defining committee responsibilities); Exec. Order No. 2006-14 (Ariz. 2006) (Arizona Executive Order directing all state agencies to develop tribal consultation policies and to designate a principal point of contact for tribal issues) available at http://azgovernor.gov/eop/documents/2006/101606_EO_200614_cooperation.pdf (last visited Feb. 29, 2008); Exec. Order No. 39 (Wis. 2004) (Wisconsin Executive Order directing state cabinet agencies to consult Wisconsin tribes when formulating and implementing policies or programs directly affecting them) available at http://www.wisgov.state.wi.us/journal_media_detail.asp?locid=19&prid=413 (last visited Feb. 29, 2008); Executive Order No. 2005-04 (New Mexico Governor’s order directing agencies to adopt pilot tribal consultation plans), available at http://www.iad.state.nm.us/newdocs/EO2005-4Pilot TribalConsultation-

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II. GOVERNMENTAL AUTHORITY FOR ENTERING STATE-TRIBAL COOPERATIVE AGREEMENTS A first step in negotiating a state-tribal cooperative agreement is to determine the authority of each governmental entity to enter into such an agreement. While state officials ordinarily may have implied authority to enter into agreements with tribal governments, some states have enacted statutes that specifically address the issue.11 The value of specific authorizing legislation can be seen from litigation in the gaming context over this issue.12 Various states have recognized that value with respect to gaming.13 This type of legislation is often helpful in providing explicit ground rules to be followed by states and local governments in negotiating agreements. Tribes may have authority to enter into some agreements without federal approval, but agreements relating to, in particular, tribal land or trust property may require such approval.14

Plans.pdf (last visited Jul. 27, 2008); Exec. Directive No. 2004-5 (Michigan Governor’s Directive requiring state agency consultation with tribes and requiring each agency to designate a coordinator for interactions with tribes), available at http://www.michigan.gov/gov/0,1607,7-168-36898_36900-92821—,00.html (last visited Aug. 2, 2008); see generally Erich W. Steinman, Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law Through Institutional Entrepreneurship, 39 Law & Soc’y Rev. 759, 777–78 (2005) (discussing tribes’ sovereign-based strategy, which consisted of “explicit state-tribal agreements” and introduction of “government-to-government language into the domain of fisheries as [the] premise of negotiations,” to institutionalize the 1974 Boldt treaty-fishing decision—a strategy that laid the foundation for the 1989 Centennial Accord). 11

See infra part II.B.

E.g., Saratoga County Chamber of Commerce v. Pataki, 798 N.E.2d 1047 (N.Y. 2003); Narrangansett Indian Tribe v. Rhode Island, 667 A.2d 280 (R.I. 1995); State ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995); State ex rel. Stephan v. Finney, 836 P.2d 1169 (Kan. 1992); cf. compare Sears v. Hull, 961 P.2d 1013 (Ariz. 1998) (citizens lack standing to challenge governor’s authority to enter into compact), with Dewberry v. Kulongoski, 406 F. Supp. 2d 1136, 1154–56 (D. Or. 2005) (finding Oregon statute authorizing governor to enter into agreements with tribes to authorize gaming compacts). 12

13 See Ariz. Rev. Stat. Ann. §§ 5-601 to 5-604; Idaho Code §§ 67-429A; Iowa Code Ann. § 10A.104(10); Kan. Stat. Ann. §§ 46-2301 to 46-2303; Minn. Stat. Ann. §§ 3.9221, 299L.07 and 340A.410; Miss. Code Ann. § 7-1-13; S.D. Codified Laws, §§ 1-4-25 and 42-7B-11; Wash. Rev. Code Ann. § 43.06.010; Wis. Stat. Ann. § 14.035. However, legislation that fails to provide adequate standards may be subject to challenge under state law as an unconstitutional standardless delegation of legislative authority. See American Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012, 1069–72 (D. Ariz. 2001) (declaring Ariz. Rev. Stat. Ann. § 5-601, which authorizes governor to negotiate and enter into class III gaming compacts with tribes, invalid on nondelegation grounds), vacated on other grounds, 305 F.3d 1015 (9th Cir. 2002); Panzer v. Doyle, 680 N.W.2d 666, 686–689 (Wis. 2004) (Wisconsin statute authorizing governor to enter into gaming compacts held to be lawful delegation of legislative authority), overruled in part on other grounds; Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408, 416 (Wis. 2006); see generally James J. Wawrzyn, Note, Panzer v. Doyle: Wisconsin Constitutional Law Deals the Governor a New Hand, 89 Marq. L. Rev. 221, 230–31 (2005) (although negotiation of gaming compacts with Indian tribes constituted a legislative function, the legislature’s delegation of such authority to the governor “satisfied the nondelegation doctrine because safeguards remained in place for the legislature to regain or curtail the governor’s power”). 14 See generally Alan D. Cohn, Mutual Aid: Intergovernmental Agreements for Emergency Preparedness and Response, 37 Urb. Law. 1, 36–38 (2005) (discussing various state laws that authorize cooperative arrangements with tribes and the availability of agreements under the Indian Law Enforcement Reform Act as mechanisms for addressing disaster assistance issues in Indian country); Jennifer L. King, Note, Increasing Telephone Penetration Rates and Promoting Economic Development on Tribal Lands: A Proposal to Solve the Tribal and State Jurisdictional Problems, 53 Fed. Comm. L.J. 137, 159–60 (2000) (recommending that Telecommunications Act of 1996 be amended to recognize tribal jurisdiction over on-reservation telecommunication

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A. Tribal Authority Determining tribal authority to enter into agreements involves consideration of both federal law and tribal law. 1. Tribal law It is important to determine which tribal entity or official will be signing the agreement and whether that entity or official has authority to do so. Even though many tribes are organized under the Indian Reorganization Act,15 it is not safe to assume that any one tribe is organized like another. Therefore one should consult the tribe’s constitution and ordinances to ensure that necessary authorization can be obtained under tribal law. For instance, authority to approve a certain kind of agreement may be delegated to a certain tribal official or governing body, or approval may require a vote of the entire tribal membership. In addition, it may be important to consider the ordinance or other documents governing the relevant tribal entity, which may have been organized pursuant to the Indian Reorganization Act, pursuant to tribal charter or tribal ordinance or even pursuant to state law. It is particularly critical to determine tribal authority, because the doctrine of apparent authority may not serve to bind the tribe.16 Accordingly, it is not prudent to rely on a contractual clause representing that the signator has authority. It is reasonable to raise this authority issue with the attorney representing the tribe in the transaction and ask for relevant documentation. 2. Federal law Generally, cooperative agreements that do not involve tribal lands or trust property do not require federal approval, while those that do must bear the express approval of the Secretary of the Interior.17 This federal approval

services and that states and tribes be given authority to negotiate cooperative agreements with respect to regulation of such services); Note, Intergovernmental Compacts in Native American Law: Models and Expanded Usage, 112 Harv. L. Rev. 922, 924–25 (1999) (discussing federal statutes that relate to state-tribal agreements); Joel H. Mack and Gwyn Goodson Timms, Cooperative Agreements: Government-to-Govern­ment Relations to Foster Reservation Business Development, 20 Pepp. L. Rev. 1295, 1313 (1993) (recommending that “[b]oth the state and the tribe should consent to be bound by cooperative agreements prior to entering into them” by enabling statutes and ordinances). 25 U.S.C. §§ 461–479.

15

See, e.g., Sanderlin v. Seminole Tribe, 243 F.3d 1282 (11th Cir. 2001) (tribe’s chief who signed contracts had no actual or apparent authority to approve waiver of sovereign immunity). 16

17 See 25 U.S.C. § 81 (regulating certain contracts encumbering trust or restricted land); id. § 85 (prohibiting contracts with any individual Indian relating to tribal funds or property in hands of the United States without prior federal consent); id. § 177 (prohibiting all sales, leases, or other convey­ances of Indian land without federal approval); Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355, 1359 (9th Cir. 1993) (requirement for federal approval in 25 U.S.C. § 177 applies only to transactions involving trust land; “once Congress removes restraints on alienation of land, protections of Non-Intercourse Act no longer apply”); A.K. Mgmt. Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir. 1986) (agreement between tribe and manager of bingo facility located on tribal trust land void without BIA approval); United States ex rel. Saginaw Chippewa Tribe v. Michigan, 882 F. Supp. 659, 674–76 (E.D. Mich. 1995) (25 U.S.C. § 177 requirements apply

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requirement has recently been liberalized, so that it applies only if the tribe encumbers its lands for a period of seven or more years. Under the new law, it is possible to obtain a determination from the Bureau of Indian Affairs that approval of the Secretary of the Interior is not required.18 When negotiating with a tribe that has reorganized pursuant to the Indian Reorganization Act,19 moreover, tribal consent must be obtained concerning any sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets.20 Additionally, the Indian Reorganization Act authorizes tribal incorporation into a business entity.21 The tribal corporation, as principal, may enter into contracts without secretarial approval, and it may waive the tribe’s sovereign immunity. However, the tribal corporation has no authority to sell, mortgage, or lease any restricted land located within the limits of the reservation for a period exceeding 25 years.22 The waiver of immunity is applicable to the tribal corporation, not the tribe itself.23 Any cooperative agreements not involving tribal lands or trust property likely do not require federal approval.24 B. State Authority As with any agreement into which state government enters, it is important to determine that the state or specific contracting entity has authority to do so.25 Some states have enacted legislation generally authorizing agreements

only to trust land–related transactions), rev’d on other grounds, 106 F.3d 130 (6th Cir. 1997); United States ex rel. Shakopee Mdewakanton Sioux Cmty. v. Pan Am. Mgmt. Co., 616 F. Supp. 1200, 1218 (D. Minn. 1985) (contract between Indian tribe and private corporation for bingo hall management inextricably intertwined with property rights flowing from establishment of bingo operations on tribal trust lands, requiring secretarial approval); Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed. Reg. 9223 (Mar. 12, 1990); see generally Mack and Timms, supra note 14, at 1314–19 (discussing possible federal law constraints on tribal compacting powers). 18 25 U.S.C. § 81; 25 C.F.R. pt. 84; see generally Anna-Emily C. Gaupp, Note, The Indian Tribal Economic Development and Contracts Encouragement Act of 2000: Smoke Signals of a New Era in Federal Indian Policy?, 33 Conn. L. Rev. 667 (2001) (describing amendments to 25 U.S.C. § 81).

25 U.S.C. §§ 461–479.

19

Id. § 476.

20

Id. § 477.

21

Id.

22

See generally Chapter 7, part I.B.2.c (discussing sovereign immunity of tribes incorporated under 25 U.S.C. § 476 and tribal corporations chartered under 25 U.S.C. § 477). 23

24 E.g., United States ex rel. Steele v. Turn Key Gaming, Inc., 260 F.3d 971 (8th Cir. 2001); Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355, 1359 (9th Cir. 1993); Sac and Fox Tribe v. Apex Constr. Co., Inc., 757 F.2d 221, 222 (10th Cir. 1985); Native Vill. of Eyak v. GC Contractors, 658 P.2d 756, 759–60 (Alaska 1983). 25 Although this chapter focuses primarily on state-tribal cooperative agreements, recent decisions also illustrate the challenges associated with interpretation of local government-to-government agreements, particularly agreements for provision of municipal services to tribal gaming operations. See Hesperia Citizens for Responsible Dev.. v. City of Hesperia, 60 Cal. Rptr. 3d 124 (Ct. App. 2007) (statute that prohibits redevelopment agency from providing assistance to gaming facilities does not bar agency from entering into agreement for city to provide municipal services to tribe’s planned gaming facility); County of Amador v. City of Plymouth, 57 Cal. Rptr. 3d 704 (Ct. App. 2007) (agreement for city to vacate city road and provide municipal services must comply with California Environmental Quality Act); Alexanderson v. Clark County

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with tribes. Typical of legislation expressly authorizing a state to enter into cooperative agreements with recognized tribes residing within its borders is Montana’s State-Tribal Cooperative Agreements Act.26 Under the act, a “public agency,” defined broadly to encompass “any political subdivision, including municipalities, counties, school districts, and any agency or department of the state of Montana,”27 may enter into a cooperative agreement with a tribal government “to perform any administrative service, activity or undertaking that any of the public agencies or tribal governments entering into the con­ tract is authorized by law to perform.”28 The statute thus envisions agreements through which one governmental entity discharges responsibilities ordinarily performed by the other. It does not authorize a cession or acquisition of substantive jurisdiction by either party. A public agency may not use the law as a means to disclaim jurisdiction or duties imposed under state law, although the agency may agree that a tribal government will perform certain actions on the agency’s behalf or that the agency will forbear performing a particular function, if such forbearance is consistent with state law, to the extent the tribal government discharges a corresponding regulatory function.29 The only exception to this general prohibition against cession or acquisition of substantive jurisdiction is when a federal statute provides otherwise.30 The Act further provides that any agreement must contain specific provisions31 and be submitted to the state attorney general for approval.32 The attorney general’s review extends to both the question of whether the agreement’s form complies with the Act and the question of whether the parties have the authority to do that which the agreement provides.

Bd. of Comm’rs, 144 P.3d 1219 (Wash. Ct. App. 2006) (memorandum of understanding with tribe constituted de facto amendment to the county’s comprehensive land use plan, and the county board thus had jurisdiction to consider petition opposing agreement). 26 Mont. Code Ann. §§ 18-11-102 to -112; see also State-Tribal Relations Act, Idaho Code Ann. §§ 674001 to 67-4007; State-Tribal Cooperative Agreements Act, Neb. Rev. Stat. Ann. §§ 13-1501 to 13-1509; Joint Powers Agreement Act, N.M. Stat. Ann. §§ 11-1-1 to 11-1-7; 74 Okla. Stat. Ann. § 1221; Interlocal Cooperation Act, Wash. Rev. Code Ann. §§ 39.34.010 to 39.34.920; see generally Mack and Timms, supra note 14, at 1327 (observing that “several states have patterned their enabling statutes after the Montana statute” because of its degree of specificity). State law also may authorize agreements on specific topics or specific agreements. E.g., 2005 Nev. Stat. 358 (authorizing agreement between the State of Nevada and the Reno-Sparks Indian Colony with respect to the construction and financing of correctional facility on tribal land and the exchange of land for state-owned land); Okla. Stat. tit. 68, §§ 346–349 (authorizing tribal tobacco tax agreements); Colo. Rev. Stat. § 24-62-101 (authorizing agreement between the Southern Ute Indian Tribe and the State of Colorado concerning air quality control on the Southern Ute Indian Reservation).

Mont. Code Ann. § 18-11-102(1).

27

Id. § 18-11-103(1).

28

Id. § 18-11-110(1).

29

See, e.g., 25 U.S.C. § 1919 (authorizing transfer of jurisdiction on case-by-case basis in state-tribal agreements respecting care and custody of Indian children). 30

Mont. Code Ann. § 18-11-104.

31

Id. § 18-11-105.

32

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North Dakota has also enacted legislation authorizing agreements between public agencies and Indian tribes with substan­tive technical provisions similar to those found in the Montana statute, with one major distinction.33 In 1987, the North Dakota law was amended to require public notice of the contents of an agreement entered into by a tribe and the state in a newspaper in every county reasonably expected to be affected by the agreement.34 If requested, a public hearing is required to permit comment by third parties. The publication requirement was expanded in 1991 to include newspapers of general circulation published for the benefit of tribal members affected by the proposed agreement.35 This provision is a reflection that many state-tribal cooperative agreements have a direct impact on local tribal and nontribal citizens, and that those citizens should have an opportunity to comment upon arrangements that potentially implicate their interests before they become final.36 The North Dakota law also authorizes any political subdivision or tribe affected by an agreement to request preparation by the state Indian affairs committee of a report “concerning the utility and effectiveness of the agreement taking into account the original intent of the parties.”37 Like its Montana counterpart, the statute imposes various substantive limitations on any agreement, including a prohibition against enlarging or diminishing the parties’ respective jurisdiction over criminal and civil matters.38 In addition to express statutory schemes that establish authority and ground rules for negotiating state-tribal cooperative agreements, it may be helpful to have interagency and intergovernmental committees that monitor the need for and progress of state-tribal negotiations. These committees can monitor to the extent possible consistency of approach on common issues, as well as provide a forum to identify concerns and conflicts. Where there is not general authority for state-tribal agreements, specific enabling statutes may need to be examined. Often state laws were adopted without tribes in mind. For instance, a state statute or administrative rule may authorize a specific agency to make grants for social services to local

33 N.D. Cent. Code § 54-40.2-02 (also authorizing state-tribal cooperative agreements as vehicles for dispute resolution).

Id. § 54-40.2-03.1.

34

1991 N.D. Laws 606, § 2 (codified at N.D. Cent. Code § 54-40.2-03.1).

35

Under the North Dakota statute, no state-tribal agreement becomes final until approved by the governor and the tribal governing body, and that approval can occur only after any hearing necessitated by a citizen request. N.D. Cent. Code § 54-40.2-04. 36

37 Id. § 54-40.2-05.1. The report is deemed by the statute informational only, and its findings are inadmissible in any administrative or judicial proceeding.

Id. § 54-40.2-08.

38

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governmental bodies, but not include grants to tribes. In such cases, it may be worth efforts to amend the rule or legislation.39 Even without such an existing statutory or administrative structure, meaningful cooperative frameworks can be established. Utah thus entered into a memorandum of understanding with the Ute Indian Tribe and the counties of Duchesne and Uintah, and separately with the Navajo Nation and San Juan County. The Utah agreements establish procedures for negotiating matters of concern to the state, local, and tribal governments; identify matters ripe for negotiations; and contemplate litigation only as a last resort except where necessary to clarify fundamental rights of the parties. The overriding purpose of the agreements is to resolve issues on the basis of mutual consent and to facilitate the orderly administration of governmental functions through cooperative efforts. The agreements form a state-tribal discussion group composed of representatives from the state and local governments, the tribe, and industry in the affected area.40 Any state-tribal agreements reached by the discussion group are to be reduced to writing, and a cooperative approach will be pursued in obtaining necessary administrative, congressional, or state legislative approval. Caution nevertheless must be taken not to exceed legislative authorization and thereby to avoid invalidation of part or all of an agreement. In State ex rel. State Office for Services to Children and Families v. Klamath Tribe,41 for example, the court determined that an Oregon state agency exceeded its authority when it agreed to provide a tribe with involvement in decisions about children of tribal members, who themselves were not entitled to tribal membership. Federal law authorizing states to enter into agreements with tribes respecting care and custody of Indian children defines eligible children as those who are members or are eligible for membership. The agency could not enlarge this authority by agreeing with the tribe to include ineligible nonmember children merely because their parents were members. To the extent it attempted to do so, its agreement was unenforceable.

39 Oregon’s intergovernmental agreement statute was amended to provide that the power to enter into cooperative agreements with tribes “extends to any unit of local government or state agency that is not otherwise expressly authorized to enter into an agreement with” a tribe. Or. Rev. Stat. 190.110(2). 40 The memorandum of understanding among Utah, the counties of Duchesne and Uintah, and the Ute Indian Tribe, dated December 13, 1994, also provided for a representative from the Bureau of Indian Affairs in the state-tribal discussion group formed by that agreement.

11 P.3d 701 (Or. Ct. App. 2000).

41

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III. SUBJECT AREAS APPROPRIATE FOR STATETRIBAL COOPERATIVE AGREEMENTS A. Environmental Issues 1. Legislation authorizing tribal responsibility over environmental programs Congress has addressed programs for cleaning up much of the country’s environmental pollution through broad pieces of legislation, most often intended for state implementation pursuant to at least minimum federal standards.42 These include programs for the cleanup of air43 and water44 pollution, hazardous waste disposal,45 pesticide application,46 and the surface mining of coal.47 Some of these federal statutes contain provisions authorizing the Environmental Protection Agency (EPA) to treat a qualified tribe as a state for purposes of assuming regulatory primacy on its reservation.48 Where a tribe obtains “treatment as state” status, difficult jurisdictional and programmatic issues can arise.49 Congress was acutely aware of these potential conflicts. The CWA, for example, anticipates that “unreasonable consequences” may arise from tribes and states setting different environmental standards on adjacent, common resources,50 such as where a tribal water quality standard is more or less restrictive than that set by an upstream or surrounding state, thereby potentially restricting that state’s ability to put its water to beneficial use. The EPA is required to act as mediator between the tribes and states to mitigate these

See generally Chapter 10 (discussing the various federal environmental statutes).

42

Clean Air Act (CAA), Pub. L. No. 95-95, 91 Stat. 685 (1977) (codified as amended at 42 U.S.C. §§ 7401–7642). 43

44 Clean Water Act (CWA), Pub. L. No. 92-500, 86 Stat. 896 (1972) (codified as amended at 33 U.S.C. §§ 1251–1387); Safe Drinking Water Act (SDWA), Pub. L. No. 93-523, 88 Stat. 1660 (1974) (codified as amended at 42 U.S.C. §§ 300j-1–300j-10). 45 Resource Conservation and Recovery Act, Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. §§ 6901–6992). 46 Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), Pub. L. No. 92-516, § 2, 86 Stat. 975 (1972) (codified as amended at 7 U.S.C. §§ 136–136y). 47 Surface Mining Control and Reclamation Act, Pub. L. No. 95-87, 91 Stat. 445 (1977) (codified as amended at 30 U.S.C. §§ 1201–1328). 48 CWA, 33 U.S.C. § 1377; SDWA, 42 U.S.C. § 300j-11; see also FIFRA, 7 U.S.C. § 136u (authorizing EPA and tribes to enter into cooperative agreements for tribal enforcement authority and to assist tribes in developing training and certification programs for pesticide applicators); CAA, 42 U.S.C. § 7601(d) (qualified tribes authorized to regulate air quality in Indian country through tribal implementation plans); Comprehensive Environmental Response, Compensation and Liability Act, Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601–9675) (authorizing Indian tribes in § 9604(d)(1) to enter cooperative agreements with federal government for enforcement and other related activities).

See generally Chapter 10, part II.B.

49

See 33 U.S.C. § 1377(e).

50

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consequences.51 The EPA is also charged with the federal government’s trust responsibility to Indian tribes.52 States, and indeed tribes themselves, may suspect the EPA’s ability to perform the concomitant roles of objective arbiter and trustee—a possibility arguably counseling that state and tribal policymakers negotiate as much of an agreement as possible prior to requesting the federal agency’s intervention. Comprehensive management of environmental problems is essential because of their often migratory nature and grave impact. Where multiple sovereigns have regulatory responsibility, cooperation is typically not only the best but also the only method for coping with the phenomenon of transboundary environmental pollution. States may in many cases possess greater technical experience generally, but tribes frequently have quite detailed information concerning natural resource–related matters on their reservations and the practical ability to exert an enhanced regulatory presence there. Cross-deputization of state and tribal officers to enforce environmental regulations on tribal and nontribal lands located on the reservations thus can be an effective means of leveraging the relative advantage that each party has. Just as important, joint state-tribal efforts likely will constitute meaningful steps toward the ultimate goal of a coherent environmental management policy, with first priority devoted to protection of the environment.53 2. Hazardous or solid waste disposal programs The EPA currently permits tribes to assume responsibility for development of hazardous and solid waste management programs on reservations, although there is no explicit statutory authority for such delegation and one

51 See Office of the Adm’r, USEPA, EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984) (EPA Indian Policy). The policy was reaffirmed most recently by the EPA Ad­mini­ strator in a memorandum dated September 26, 2005. See http://www.epa.gov/tribal/pdf/reaffirmation-­indianpolicy.pdf (last visited Aug. 2, 2008); see generally Elizabeth Burleson, Tribal, State and Federal Cooperation to Achieve Good Governance, 40 Akron L. Rev. 207 (2007) (discussing the nature of tribal jurisdiction under the Clean Water Act and the EPA’s objective “to facilitate cooperative water-sharing agreements among tribal, state, and federal entities involving watershed management”). 52 EPA Indian Policy at 3; see also Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 6, 2000) (noting trust obligation in setting out policy with respect to government-to-government relationship between Executive Branch agencies and tribes). 53 See generally Kevin Gover and James B. Cooney, Cooperation Between Tribes and States in Protecting the Environment, 10 Nat. Res. & Env’t 35 (1996). A recent article, Jacqueline Phelan Hand, Protecting the World’s Largest Body of Fresh Water: The Often Overlooked Role of Indian Tribes’ Co-management of the Great Lakes, 74 Nat. Resources J. 815 (2007), compares the level of inclusion of tribes in two intergovernmental planning processes regarding the Great Lakes: “Annex 2001,” a subsidiary to the Great Lakes Charter agreement between the Great Lakes States and Canadian Provinces regarding water diversions from the Great Lakes—which drew protests from tribes and Canadian First Nations—and the Great Lakes Regional Collaboration, a process beginning in 2004 for coordination and planning with respect to a variety of environmental issues relating to the Great Lakes, which included tribes in a more significant way. The article contends that the cooperation of tribes is necessary for the effective implementation of such efforts, argues for a variety of reasons why tribes can contribute a different and crucial perspective and political role, and suggests mechanisms for inclusion of tribes.

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federal court of appeals54 has concluded it lacks the authority to do so under the Resource Conservation and Recovery Act (RCRA).55 A state may not be able to assume primacy status over hazardous waste programs on the reservation given current EPA practice.56 This situation furthers the interests of neither party. Tribes naturally have an interest in ensuring that others comply with RCRA with respect to reservation activities; however, tribes also have an interest in ensuring that they themselves are compliant because Congress has abrogated tribal immunity from suit for RCRA violations that they commit.57 By the same token, hazardous wastes generated on an Indian reservation are arguably within the purview of wastes for which a state must show treatment capacity in order to be eligible for federal funds under the Comprehensive Environmental Response Compensation and Liability Act.58 This combination of tribal and state responsibility for on-reservation hazardous wastes evidences the propriety of coordinating state and tribal efforts for the treatment of such wastes. Such coordination may entail the inclusion of tribal representatives in the state’s ongoing technical training program, the sharing of data, and the cross-depu­tization of state and tribal officers for enforcement purposes. B. Resource Conservation States and tribes share common interests in management of fish and game species that are harvested for ceremonial, religious, subsistence, sport, or commercial purposes. Many species are migratory and inhabit waters and lands within and outside reservation boundaries at various stages of their life cycles. Other species are the subject of tribal off-reservation hunting and fishing rights. Some species are threatened by overharvesting and habitat degradation. The conservation of these resources may require management practices such as harvest limitations or habitat preservation and restoration. The success of such practices requires coordination and cooperation between resource managers from state and tribal governments, and often such issues are incorporated into cooperative agreements. Many of the wildlife management agreements currently in place arose from litigation,59 and their primary

Backcountry Against Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996).

54

Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. §§ 6901–6992).

55

Washington Dep’t of Ecology v. EPA, 752 F.2d 1465, 1472 (9th Cir. 1985).

56

42 U.S.C. §§ 6903(13)(A), 6972(a)(1)(A); see Blue Legs v. USBIA, 867 F.2d 1094, 1097 (8th Cir.

57

1989). 42 U.S.C. § 9604(k) (“Superfund” provisions); 40 C.F.R. § 300.510(e)(2).

58

See, e.g., Southern Ute Tribe v. State of Colorado, Dep’t of Natural Resources, Civil Action No. 3858 (D. Colo. 1972) (consent decree providing for cross-deputization of tribal and state game wardens, coopera­tive game management practices, technical assistance and training by state to tribe, licensing agreement); United States v. Washington, Civil Action No. 9213, subproceeding 89-3 (W.D. Wash. 1994) (consent decree regarding shellfish sanitation issues in treaty shellfishing activities, state provision of technical assistance in public health and shellfish sanitation issues, licensing, inspection and certification requirements for inter- and 59

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element is almost invariably the clarification of which sovereign will enforce its management scheme and where. These agreements often involve coordination of wildlife enforcement activities similar to the cross-deputization agreements for criminal law enforcement and coordinated management plans involving hunting seasons and bag limits. Other resource conservation areas amenable to cooperative arrangements include agreements for the effective conservation of oil and gas resources on reservation lands. A state’s regulation of forest practices may lead to disputes over tribal treaty hunting and fishing rights, or Indian cultural or religious sites, making regulation of timber practices an appropriate subject matter for state-tribal cooperation. C. Taxation Issues States have in common with tribal governments a desire to promote the economic vitality of reservation populations as well as the orderly develop­ment of tribal lands. While states may not levy taxes on member Indian income earned entirely on the reservation, on personal property, or on real property held in trust or restricted status, state taxes generally do apply to reservation tribal members whose income is earned off the reservation and to reservation lands held in fee.60 Disputes arise over a state’s authority to tax activities or transactions occurring between tribes and nonmembers on reservation lands.61 Jurisdictional disputes and uncertainties over which governmental entity is the proper taxing authority have the potential to deter and slow nonmember investments and development of the reservations. Just as multiple taxation of a single transaction is common for off-reservation activities, the quickening pace of tribal economic development and involvement of nonmember businesses in reservation activities are giving rise to judicial recognition of state and local taxation authority for transactions on tribal lands.62 For example, a state tax imposed on the reservation sale to a nonmember of a product such as cigarettes, liquor, gasoline, or dry goods that has no particular connection with the tribe and that is sold largely to nonmembers is likely to be upheld.63 State-tribal cooperative agreements, in sum, can benefit both governmental

intrastate shipment of shellfish, and state-tribal exchange, review, and comment of regulations and other data, including reports of shellfish-related human illness). See generally Chapter 11, part II.B.2 and 5.

60

Id., part II.A.2.

61

See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989); Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134 (1980). 62

63 See, e.g., Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 512–14 (1991); Dep’t of Taxation and Fin. v. Milhelm Attea & Bros., 512 U.S. 61 (1994).

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entities by streamlining the tax collection process and facilitating compliance with state and tribal law.64 D. Law Enforcement Activities Law enforcement activities in Indian country may involve state police, municipal police, the county sheriff, tribal police, and federal officers. Cross-deputization agreements have been developed to coordinate arrest and detention practices between tribal and nontribal communities, often in answer to the common need for effective response by law enforcement officials in an emergency situation. While the rules are complicated concerning which court system—federal, state, or tribal—handles prosecutions of crimes occurring in Indian country, the criminal jurisdictional lines are fairly well established.65 Cross-deputization of law enforcement officials cannot avoid the jurisdictional issues; when formal charges are brought against a criminal defendant, jurisdiction must be faced. However, state-tribal cross-deputization agreements allow the jurisdictional question to be dealt with in the courtroom and relieve law enforcement officers from having to perform the sometimes difficult analysis of which governmental entity has jurisdiction before an arrest can be made. Moreover, as with law enforcement activities involving any two or more neighboring governments, cooperative agreements can address protocols involving issues such as mutual assistance and fresh pursuit. Even when substantive jurisdiction is not at issue, as in a Public Law 280 state that has criminal jurisdiction over Indian country, cooperative agreements may eliminate the need to address potentially troublesome questions that arise in the administration of state law.66

64 See generally Matthew L.M. Fletcher, The Power to Tax, the Power to Destroy, and the Michigan TribalState Agreements, 82 U. Det. Mercy L. Rev. 1 (2004); Richard J. Ansson, Jr., State Taxation of Non-Indians Who Do Business with Indian Tribes: Why Several Recent Ninth Circuit Holdings Re-emphasize the Need for Indian Tribes to Enter into Taxation Compacts with Their Respective State, 78 Or. L. Rev. 501 (1999).

See generally Chapter 4.

65

E.g., Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701 (2003) (rejecting claim by tribe under 42 U.S.C. § 1983 for violation of sovereign immunity through execution of otherwise valid search warrant on tribal casino records, but remanding for determination of whether some other basis exists for exercise of federal court jurisdiction); Cornelius v. Kansas Dep’t of Revenue, 180 P.3d 579, 583 (Kan. Ct. App. 2008) (tribal officer orally deputized by county sheriff’s department pursuant to state statutory authority possessed jurisdiction to issue citations to motorist at off-reservation checkpoint); State v. Manypenny, 662 N.W.2d 183, 188 (Minn. Ct. App. 2003) (upholding validity of cooperative agreement in Public Law 280 state under which tribal officers granted concurrent jurisdictional authority to that of county sheriff, since Public Law 280 does not “prohibit tribes and state governments from entering into mutually beneficial agreements to provide law-enforcement services that are well short of the retrocession standard”), aff’d, 682 N.W.2d 143 (Minn. 2004) (agreement did not surrender state jurisdiction but provided for sharing of law enforcement authority, which is compatible with federal law); State v. Nelson, 90 P.3d 206, 208 (Ariz. Ct. App. 2004) (offreservation traffic stop by tribal officer valid where state statute conferred peace officer status on officer); State v. Oakes, 89 P.3d 1274, 1276–77 (Or. Ct. App. 2004) (off-reservation traffic stop by tribal officer valid based on cross-deputization agreement); see generally Elizabeth Burleson, Tribal, State and Federal Cooperation to Achieve Good Governance, 40 Akron L. Rev. 207 (2007) (discussing criminal law jurisdiction issues in Indian country generally and in matters affecting homeland security). A collection of cooperative law 66

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Formal agreements between state and tribal governments are the most common form of cross-deputization agreement. These agreements may set out the qualifications for becoming a peace officer, the criteria for training, and measures to protect officers from personal liability. Other criminal enforcement agreements involve hot pursuit, and sharing and coordination of jails, detention centers, radio equipment, recordkeeping, and investigation information. The relationship that arises from the joint training, deputization, and working of tribal and nontribal police officers under a cross-deputization program can enhance the effectiveness of law enforcement.67 In 1990 Congress enacted the Indian Law Enforcement Reform Act.68 This statute provides express authority for cross-deputization agreements involving enforcement of federal and tribal laws in Indian country. While the act authorizes the Secretary of the Interior to enter into cooperative agreements with a “Federal, tribal, State, or other governmental agency” to aid law enforcement in Indian country, the affected tribe is given veto power over the use of nonfederal personnel under such an agreement.69 The law also extends coverage

enforcement agreements from different states may be found on the National Congress of American Indians web page at http://www.ncai.org/Law_Enforcement_Agreements.100.0.html (last visited Jul. 27, 2008) Similar value presumably will attend cooperative agreements as to civil law matters, particularly where concurrent jurisdiction may exist. One commentator thus has suggested formation of state-tribal judge forums, particularly in Public Law 280 states where concurrent civil jurisdiction often may exist, to consider jurisdictional agreements. B.J. Jones, Welcoming Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court Relations, 24 Wm. Mitchell L. Rev. 457, 484–98 (1998). Professor Jones reasoned that, “[u]nlike non–Public-Law-280 states, where the allocation of jurisdiction among state and tribal courts may be proscribed by federal law, no such impediment exists in Public Law 280 states because jurisdictional allocation would involve deferring the exercise of one court’s valid jurisdiction to another forum which similarly has valid jurisdiction.” Id. at 486. “Abstention agreements” are suggested as worth considering as to matters not covered in a tribal code but addressed in positive state law, claims based on state law such as antidiscrimination statutes, and claims that, if resolved in state court, may undermine tribal self-governance. Id. at 490–91. Also identified as “[a]n area that cries out for some judicial dialogue among federal, state and tribal judges is domestic violence within and across reservation boundaries.” Id. at 495. Child support enforcement additionally is seen as a potential arena for agreements in view of recent federal legislation recognizing the authority of states and tribes to enter into cooperative agreements as to support orders. Id. at 498 (citing 42 U.S.C. § 654(7)). 67 Commission on State-Tribal Relations, State-Tribal Agreements: A Comprehensive Study 11 (1981); see also State v. Waters, 971 P.2d 538, 543–44 (Wash. Ct. App. 1999) (city police officers had authority to effect on-reservation arrest of tribal member for off-reservation civil traffic infraction by virtue of commission as tribal police officers); cf. Nevada v. Hicks, 533 U.S. 353, 364 (2001) (state fish and game officers authorized to execute search warrant of tribal member’s home in connection with investigation of off-reservation crime).

Pub. L. No. 101-379, 104 Stat. 473 (1990) (codified at 25 U.S.C. §§ 2801–2809).

68

25 U.S.C. § 2804(a). The BIA issued a notice in February 2004 with respect to its existing policies regarding the various types of intergovernmental agreements that it enters into pursuant to the Indian Law Enforcement Reform Act. 69 Fed. Reg. 6321 (Feb. 10, 2004). The agency stated in part that “[t]o increase the effectiveness of law enforcement in Indian country, the authority and status of law enforcement officers, relationships among and between law enforcement departments, as well as potential liability and liability coverage, must be clear.” Id. Thus, for example, special law enforcement commissions issued to tribal officers allow such officers “to enforce Federal law, to investigate Federal crimes, and to protect the rights of people in Indian country, particularly against crimes perpetrated by non-Indians against tribal members” and that “[w]ithout such commissions, tribal law enforcement in many jurisdictions is limited . . . until a county, State, or Federal officer arrives.” Id. Recent decisional authority underscores the need for clarity as 69

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of the Federal Tort Claims Act70 to individuals, who are not otherwise federal employees, acting under authority granted by the Secretary.71 E. Quantification of Reserved Indian Water Rights Since the United States Supreme Court’s pronouncement of the Winters doctrine,72 there have been numerous expensive and lengthy lawsuits in the western United States over a tribe’s right to have water rights quantified, and over the proper forum for that quantification. States and tribes have an interest in avoiding the high cost and length of such litigation. Negotiated agreements, aside from quantifying a reserved right, may also contain other provisions that address such settlement issues as postdecree administration, water marketing alternatives, and protection of nonreserved existing uses.73

to the authority of the various agencies with Indian country law enforcement responsibilities. E.g., United States v. Terry, 400 F.3d 575, 580 (8th Cir. 2005) (authority of tribal police to detain non-Indian suspect until federal or state law enforcement officers arrive); United States v. Becerra-Garcia, 397 F.3d 1167, 1172 (9th Cir. 2005) (status of tribal “rangers” as governmental agents for search and seizure purposes); Cabazon Band of Mission Indians v. Smith, 388 F.3d 691, 696–97 (9th Cir. 2004) (protracted litigation over the application of state law to off-reservation operation of tribal police vehicles with emergency light bars displayed, in which deputation agreement between BIA and tribe ultimately played significant role); United States v. Peltier, 344 F. Supp. 2d 539, 546 (E.D. Mich. 2004) (noting the United States’ contention “that local law enforcement agencies have entered into agreements with tribal authorities to honor each other’s search warrants,” but finding that “no evidence of any such agreements has been presented to the Court”); State v. Martinez, 112 P.3d 293, 296 (N.M. Ct. App. 2005) (county sheriff not prohibited by N.M. Stat. Ann. § 29-1-11(C)(8), which authorizes the chief of state police to commission tribal officers as state peace officers, from commissioning tribal officers as deputy sheriffs); State v. Branham, 102 P.3d 646 (N.M. Ct. App. 2004) (oral understanding among federal, state, and tribal officials did not satisfy relevant statutes, including the Indian Law Enforcement Reform Act). Act of Aug. 2, 1946, 60 Stat. 812, 842 (codified as amended in scattered sections of Title 28).

70

25 U.S.C. § 2804(f)(1)(A). The Department of Justice is responsible for making determinations concerning whether individual tribal officers should be deemed federal employees for FTCA purposes. See 69 Fed. Reg. 6321, 6322 (Feb. 10, 2004) (BIA notice stating that agency “expects that . . . liability coverage under the Federal Tort Claims Act . . . may be available to officers carrying Federal [special law enforcement commissions],” but adding that “the Department of Justice makes all determinations on FTCA coverage on a case-by-case, factual basis, and [its] decisions are final”). Those determinations, however, are subject to judicial review. E.g., Allender v. Scott, 379 F. Supp. 2d 1206, 1209 (D.N.M. 2005) (reversing refusal by Department to certify that tribal police officers subject to Indian Self-Determination and Education Assistance Act contract were federal employees acting within the scope of their employment when enforcing state law pursuant to commissions issued by county sheriff). 71

72 Winters v. United States, 207 U.S. 564 (1908) (Congress reserved sufficient water to fulfill its primary purpose in creating reservation, with a priority date as of the date of the reservation). 73 A valuable resource regarding the negotiation of tribal water rights is Bonnie Colby, John Thorsen, and Sarah Britton, Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West (Univ. of Ariz. Press 2005). The book contains an extensive discussion of water rights settlement processes, a description of representative settlements and settlement efforts, and a table of water rights settlements and quantification cases from different states. Montana, through its Reserved Water Rights Compact Commission, and Indian tribes in that state have been particularly active in resolving water right claims through comprehensive compacts in the ongoing general adjudication there. Mont. Code Ann. tit. 85, pt. 20 (codifying compacts reached with Fort Peck, Northern Cheyenne, Chippewa Cree, Crow, and Fort Belknap and Blackfeet Tribes); see generally Barbara Cosens, A Framework for Evaluation of Tribal Water Settlements, 18 Nat. Resources & Env’t 41 (2003); Gina McGovern, Note, Settlement or Adjudication: Resolving Indian Reserved Rights, 36 Ariz. L. Rev. 195 (1994); Elizabeth Checchio and Bonnie G. Colby, Indian Water Rights: Negotiating the Future (1993); Indian Water in the New West (Thomas R. McGuire et al. eds., 1993); Peter W. Sly, Reserved Water Rights Settle-

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F. Protection of Indian Graves, Sacred Sites, and Cultural Items Because cultural sites of significance to Indian tribes often are found off tribal lands and because treatment of these sites and items can be matters of great sensitivity, this can be a fruitful area for cooperation.74 Issues appropriate for such agreements include protocols regarding notification of tribes when sites are located or ground-disturbing activities planned, confidentiality of information, access to and protection of sites, and resolution of disputes.75 IV. CONSIDERATIONS FOR NEGOTIATING COOPERATIVE AGREEMENTS76 A. Find a Common Ground Often disputes between states and tribes appear, at first blush, to be resolvable only through litigation resulting in an all-or-nothing decision. Ex-

ment Manual (1988). State-specific analyses also exist. E.g., John B. Weldon, Jr. and Lisa M. McKnight, Future Indian Water Settlements in Arizona: The Race to the Bottom of the Watershed?, 49 Ariz. L. Rev. 441 (2007); Jennifer E. Pelphrey, Note, Oklahoma’s State-Tribal Water Compact: Three Cheers for Compromise, 29 Am. Indian L. Rev. 127 (2004–2005). In that regard, a comprehensive set of articles addressing that the negotiation of the 2004 Nez Perce Indian Water Rights Settlement from federal, state, tribal, and academic perspectives appears in the Idaho Law Review. K. Heidi Gudgell, Steven C. Moore, and Geoffrey Whiting, The Nez Perce Tribe’s Perspective on the Settlement of Its Water Right Claims in the Snake River Basin Adjudication, 42 Idaho L. Rev. 563 (2006); Ann R. Klee and Duane Mecham, The Nez Perce Indian Water Right Settlement—Federal Perspective, 42 Idaho L. Rev. 595 (2006); Steven W. Strack, Pandora’s Box or Golden Opportunity? Using the Settlement of Indian Reserved Water Rights Claims to Affirm State Sovereignty over Idaho Water and Promote Intergovernmental Cooperation, 42 Idaho L. Rev. 633 (2006); Laurence Michael Bogart, The Future Is No Place to Place Your Better Days: Sovereignty, Certainty, Opportunity, and Governor Kempthorne’s Shaping of the Nez Perce Agreement, 42 Idaho L. Rev. 673 (2006); Barbara Cosens, Truth or Consequences: Settling Water Disputes in the Face of Uncertainty, 42 Idaho L. Rev. 717 (2006); see also Alexander Hays V (Ti), Comment, The Nez Perce Water Rights Settlement and the Revolution in Indian Country, 36 Envtl. L. 869 (2006) (arguing that the Nez Perce settlement was a “disappointment” from the perspective of increasing in-stream flows for salmon protection purposes but, as to tribal sovereignty, constituted “a bold step in the Tribe’s continuing effort to control and manage land and natural resources”). The secretarial findings required to make final the various waivers and releases of claims under the Snake River Water Rights Act of 2004, Pub. L. No. 108-447, 118 Stat. 2809, 3431 (2004), were issued in May 2007. 72 Fed. Reg. 27,325 (May 15, 2007). 74 See generally Chapter 3, part VI.A (discussing, inter alia, Native American Graves Protection and Repatriation Act). 75 See generally Robert Retherford, Comment, A Local Development Agreement on Access to Sacred Lands, 75 U. Colo. L. Rev. 963 (2004) (describing agreement between City of Boulder and local tribes regarding access to and protection of sacred sites on city lands). In 2005, the governor of New Mexico issued an executive order requiring certain state agencies to develop a tribal consultation policy on the protection of sacred places and repatriation. Exec. Order No. 2005-003, available at http://governor.state.nm.us/orders/ 2005/EO_2005_003.pdf (last visited Aug. 2, 2008). 76 Handbook on State-Tribal Relations (1983); see also Comm’n on State-Tribal Relations, supra note 67 (discussing considerations for and completion of successful state-tribal negotiations); Note, Intergovernmental Compacts in Native American Law: Models and Expanded Usage, 112 Harv. L. Rev. 922, 928, 932, 936 (1999) (analyzing the benefits of compacts—e.g., “the inherent shortcomings of litigation, the power inequalities and fewer number of safeguards that hinder effective legislative lobbying efforts, and the multitude of substantive areas for which compacting may be used”—and their drawbacks—e.g., the fact that state can “wield dramatically greater political and economic bargaining power,” and recommending that “tribes and states . . . develop guidelines for evaluating the benefits and drawbacks”). Concerns over the potential trade-offs in the cooperative agreement process also are discussed in some detail by Ezra Rosser in Caution, Cooperative

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perience has shown, however, that lengthy litigation may threaten a common resource and adversely affect the interests of both governments. Therefore, if a common ground can be found, such as the need to preserve a wildlife habitat, conservation of a threatened wildlife species, or environmental protection of tribal and adjacent or nearby nontribal lands, the parties are well advised to articulate the common ground and search for common solutions. B. Maintain Theme of Equal Partnership and Respect A successful negotiation is premised on mutual respect and under­standing. Just as state sovereignty is an important predicate in reaching a cooperative agreement, so too is tribal sovereignty. 1. Learn about the tribe State negotiators should develop a good background knowledge of the cultural, political, and fiscal realities of the tribe with whom they are dealing. Not only do tribes differ from other governmental entities, but tribes also differ from each other; it is often important to a tribe that its uniqueness be recognized. Willingness to conduct negotiating sessions on the reservation will demonstrate respect for the tribe as a sovereign, as well as provide a basis for greater cultural and political education of the state negotiator. As is the case with other governments, political events can affect the dynamics of a negotiation; it may be helpful to know, for instance, whether there are imminent tribal elections. Tribal websites and newspapers can provide useful background. 2. Clarify approval protocols It is helpful to be clear at the outset about what protocols will need to be followed for both state and tribal approval of the agreement, including the required timelines for obtaining final approval. Participants to a negotiation from both the state and tribe should possess appropriate decision-making authority to allow the smooth forward progress of negotiations, although final approval may require action by the state governor or legislature and the tribal chair or council.

Agreements, and the Actual State of Things: A Reply to Professor Fletcher, 42 Tulsa L. Rev. 57 (2006). Responding to an Internet version of Matthew L.M. Fletcher’s article, Reviving Local Tribal Control in Indian Country, 53 Fed. Law. 38 (Mar.–Apr. 2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=879808 (last visited Aug. 2, 2008). Professor Rosser argues that unalloyed support for cooperative agreements is imprudent to the extent that they may be viewed as having the potential to “‘eliminate altogether’ uncertainty in federal Indian law” and that “[u]nconditional approval of tribal cooperative agreements must confront the effect cooperative agreements can have on internal tribal priorities and on the involvement of tribal members in fundamental decisions of the tribe, as well as the history of the Indian experience with nonIndian governments.” Id. at 67–68.

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3. Listen It is important to give the tribal representatives a real opportunity to explain their point of view. Issues different from those that state negotiators expect may be important to tribal representatives, and thus to the successful conclusion of negotiations. 4. Be professional and courteous As in any negotiation, immediate and professional attention to detail, such as responding to correspondence, returning telephone calls, and preparing drafts of agreements, will benefit the state-tribal relationship, regardless of whether a successful negotiation is attained. C. Attempt Compromise Through Creative Cross-Issue Development Some issues, when viewed individually, may appear incapable of negotiated solution. However, when tribes and states begin articulating their issues of importance, a give-and-take compromise has the potential to create a solution, or series of solutions, that ultimately gives each respective entity more than a court would have the authority to order, at less cost than litigation might entail in terms of money spent, lessons learned, or claims lost. Such compromises need not be viewed as capitulation by either the state or tribe, but rather as the means for each government to reach its respective goal. D. Avoid Demanding Jurisdictional Concessions Matters of sovereignty—i.e., which governmental entity has jurisdiction over what lands, persons, and activities—are often an insurmountable obstacle to the negotiation process. Neither the state nor the tribe ordinarily will cede its jurisdiction. Although it is wise to know over which subject area each government clearly has exclusive jurisdiction where possible, conditioning settlement on jurisdictional concessions will likely lead to impasse. It is much easier to negotiate an agreement concerning management practices, cooperation between law enforcement offices, and implementation of environmental programs, than one over jurisdiction. Many state-tribal agreements contain provisions reciting that neither entity is waiving its jurisdiction by entering into the agreement. It must further be remembered that, to the extent regulatory or adjudicatory jurisdiction over third parties is allocated under an agreement, difficult legal issues may be presented.77

77 Cf. Nevada v. Hicks, 533 U.S. 353, 372 (2001) (“[w]hether contractual relations between State and tribe can expressly or impliedly confer tribal regulatory jurisdiction over nonmembers—and whether such conferral can be effective to confer adjudicative jurisdiction as well—are questions that may arise in another case, but are not at issue here”).

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E. Involve in the Process All Parties Who Will Be Affected by the Agreement To the extent possible, all parties who might be affected by a state-tribal cooperative agreement, including local governments and surrounding communities, and persons who will be regulated in accordance with the agreement’s provisions, should be invited to participate in the negotiation process. Such involvement might entail either inviting them to the bargaining table or providing for public notice, comment, and hearing. Adhering to this practice will help to ensure the smooth operation of the agreement’s purpose, help to foster community support for the cooperative effort, and build credibility and trust into the process. It can also be helpful to consider how those who will implement the agreement on the ground will be included and informed. F. Prepare to Be Flexible and Creative Although it can sometimes be a challenge for state agencies to vary from their usual practices, they should approach negotiations with the understanding that it may well be necessary to do so in order to successfully conclude negotiations. For example, a state agency may desire a tribe to sign a form of agreement that the agency has previously entered into with another governmental entity. However, such a format may contain provisions that offend the tribe (such as standard provisions regarding the applicability of certain state laws) or fail to protect the state (such as standard choice of forum clauses without a tribal waiver of sovereign immunity). The agency should be prepared to alter its standard form. Similarly, state administrative rules governing agency programs, such as grant or loan programs, have often been drafted without tribes in mind. It may be helpful to negotiations if the state negotiators consider the possibility of amending those rules rather than insisting that the agreement conform to them. It may even be necessary in some cases to seek legislation. G. Agree on Minimum Regulatory Standards Rather than force all sovereigns to agree that particular regulatory standards will apply everywhere (such as health, criminal, or environmental standards), an alternative is to agree on minimum standards, while recognizing the authority of each sovereign to exercise its legislative authority to adopt additional or more stringent standards. State negotiators can thus affirm the tribe’s sovereign legislative authority rather than face objections to the imposition of state standards on the tribe. H. Consider Mediation In some cases, especially those involving multiple parties or particularly rancorous histories, employment of a neutral facilitator or mediator can be

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helpful to assist the parties in identifying areas and potential mechanisms for agreement. In choosing a mediator it is, of course, important to find candidates who will be respected by both state and tribal negotiators and who are capable of understanding the effect of tribal history and culture on the dynamics of negotiation as well as the particular needs of both governments. An option to consider is a mediation assessment by a neutral third party who can assist the parties in determining whether mediation is likely to be successful, and if so, in identifying potential participants and processes. I. Special Considerations for Agreement Terms There is no single or easy set of guidelines for negotiating state-tribal cooperative agreements. Questions that state and tribal negotiators might consider include: What law applies? Is an indemnification provision necessary? How long should the agreement last? Should the parties meet regularly to review progress of the agreement? Should there be designated contact persons for implementation of the agreement? How will the parties share information? Will it be necessary to provide for state access on tribal property? The list of considerations must be tailored each time by the specific situation and is generally shaped by the broad identification of such factors as the relevant state and tribal interests, the legal framework, and the desired result.78 There are some issues that are often especially sensitive in negotiating cooperative agreements with tribes. 1. Confidentiality/public records laws In states with liberal “sunshine” laws, state negotiators may normally operate with the expectation that documents related to the implementation of their programs and agreements will be readily available to the public. However, tribal representatives often do not have the same expectation, and tribal law may well not provide for access to tribal records. Accordingly, it may be useful to the ultimate implementation of the agreement to address issues regarding access to records at the outset in the agreement.79 There are various options to consider, depending on applicable state and tribal law and the preferences of the parties. For instance it may be helpful to include in the agreement a tribal acknowledgment of the applicability of state sunshine laws to particular documents, so that there are no surprises when the agreement is implemented. The parties may also consider providing

78 See generally Mack and Timms, supra note 14, at 1329–32 (discussing terms, such as severability, waiver of sovereign immunity, and remedies in the event of default, typically considered by the parties in negotiating a state-tribal agreement). 79 The advisability of addressing public records issues can be seen with especial force in the context of state-tribal gaming compacts. See Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481 (9th Cir. 1998); Prairie Island Indian Cmty. v. Minnesota Dep’t of Pub. Safety, 658 N.W.2d 876 (Minn. Ct. App. 2003); Confederated Tribes of Chehalis Reserv. v. Johnson, 958 P.2d 260 (Wash. 1998).

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protocols for the creation or handling of certain documents in order to prevent documents from inadvertently becoming subject to state sunshine laws. If there are exemptions to state sunshine laws for certain kinds of confidential documents, the agreement can also include recitals that will help demonstrate the applicability of such an exemption.80 The parties can also provide for a protocol for giving notice to the tribe if documents are requested from the state. In addition, it may be useful to include provisions as to how the parties can gain appropriate access to each other’s records during implementation of the agreement. 2. Dispute resolution, waivers of sovereign immunity, and choice of forum Providing a dispute resolution mechanism that is acceptable to both parties can be one of the most challenging aspects of negotiating a tribal-state agreement. In particular, tribes and states may each be reluctant to waive sovereign immunity or submit to the jurisdiction of each other’s courts to enforce the agreement. While many states have statutory provisions allowing for contract actions in state court, tribes are often suspicious of state courts as a forum. Depending on tribal law, it may not be possible to sue a tribe in tribal court without a tribal waiver of sovereign immunity. It may seem attractive to provide for enforcement in federal court, but federal subject matter jurisdiction does not always exist and cannot be conferred by the parties.81 Even if federal jurisdiction did exist, in order to provide for enforcement in federal court, it would be necessary to determine that the state signator had authority to waive Eleventh Amendment immunity in the agreement. It is important, therefore, to give careful consideration to the precise circumstances that could give rise to the need to employ enforcement mechanisms or resolve disputes and to give consideration to precisely what would be at stake in those situations, in order to tailor the agreement appropriately. Rather than insisting on waivers of sovereign immunity, it may be possible to provide for enforcement of the agreement through other mechanisms. Some options to consider include: Termination clause. If there are no rights to money, property, or performance that would be necessary to enforce, the parties may be sufficiently protected if the agreement provides that either government can cancel the agreement at any time upon notice to the other government.

80 See e.g., Or. Rev. Stat. §§ 192.410–192.505; Colo. Rev. Stat. Ann. § 24-72-203; Idaho Code Ann. § 9340D; Fla. Stat. Ann. § 119.021. 81 See Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1063–64 (9th Cir. 1997) (Wiggins, J., dissenting) (arguing that enforcement of state-tribal compact under Indian Gaming Regulatory Act falls outside federal jurisdiction under 28 U.S.C. §§ 1331 and 1362).

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American Indian Law Deskbook, Fourth Edition Alternative provisions regarding funds. If the state would need to recover money in the event that the agreement failed, it may be possible to provide for mechanisms such as a letter of credit, a set-off against other funds, or a deposit in escrow that would preclude the need to sue the tribe to obtain the funds. Alternative dispute resolution. Even if resort to court proceedings is ultimately necessary to enforce the agreement, that likelihood may be minimized by first requiring the use of alternate dispute resolution mechanisms, such as “meet and confer” provisions, mediation, or nonbinding arbitration.

If a tribal waiver of sovereign immunity is determined to be desirable or necessary, special care should be taken to ensure that the waiver is properly authorized by the tribe and clearly enough expressed.82 To address tribal reluctance to waive sovereign immunity, it can be helpful to recite in the proposed agreement that the agreement may be enforced against the state pursuant to the applicable state legislative waiver of sovereign immunity. 3. Choice of law Choice of law provisions, common in contracts, may present special problems in tribal agreements. As with agreements between states or entities located in different states, arguments may arise over which sovereign’s law applies. 83 Accordingly, choice of law is worthy of conscious consideration. In many cases, state law may be more comprehensive and accessible. Before agreeing to tribal law as governing law, it is prudent to determine whether there is tribal law covering the subject and how it can be accessed. 4. Indemnification Indemnification clauses are another common contractual provision that raise special considerations in the context of tribal agreements. One reason the state may want to include a provision requiring indemnification from the tribe is to protect the state against the possibility that—even where the state’s fault is nonexistent or minimal—a third party will prefer to bring an action against the state rather than follow potentially less familiar procedures for making a claim on the tribe. A promise to indemnify requires an enforcement mechanism to be effective. Besides a tribal waiver of sovereign immunity, one helpful mechanism is a specific provision requiring tribal insurance coverage. Such a provision can

82 See generally Chapter 7, part I.B.2.a (discussing waiver of tribal immunity from suit through agreement). 83 See generally Katherine J. Florey, Choosing Tribal Law: Why State Choice-of-Law Principles Should Apply to Disputes with Tribal Contacts, 55 Am. U. L. Rev 1627, 2005–06 (arguing that courts should more frequently consider choice of law questions to conclude that tribal law governs).

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include the required form and limits of the insurance coverage. In addition, the agreement can require that the policy include as named insureds the state and relevant state actors themselves; in the event of a covered incident, such a provision can facilitate the state’s ability to tender a claim directly to the insurer without having to make a demand on or bring an action against the tribe. V. A CASE STUDY: COLORADO UTE WATER RIGHTS AGREEMENT The reserved water right claims of the Ute Mountain and Southern Ute Indian Tribes of Colorado pitted the economic well-being of the non-Indian communities against the Indian communities and threatened to destroy good relationships enjoyed by these communities. The water supply of southwest Colorado and northwest New Mexico was short; most streams were over­ appropriated and new uses threatened to displace existing uses. The negotiated resolution of these claims proved to be long and complex, involving many public and private parties on federal, tribal, state, and local levels, as well as appropriation of state and federal funds and the passage of federal and state legislation. The process is not yet complete. There are still stipulations to be filed in water court, an order to be entered, and annual fed­eral appropriations are required for development funds and for the Animas–La Plata Project. By uniting and working together on a common solution to a joint problem, Colorado and the tribes likely achieved far more than either could have obtained in litigation, and both were able to address their particular needs and unique circumstances. In 1976, the United States Department of Justice filed applications in the Colorado District Court for reserved water rights for the benefit of the Ute Mountain and Southern Ute Indian Tribes. These filings included over 25 streams within the drainage basin of the Colorado River in southwestern Colorado. After the claims were filed in state water court, little activity occurred in the case until 1984. In November 1984, the State of Colorado invited the tribes to negotiate these claims, and in December the gover­nor and attorney general met with the chairmen of the two Ute tribes to discuss opportunities for a negotiated settlement. In April 1985, the parties formally convened negotiations. Present were representatives and counsel for the federal government; the Ute Indian tribes; Colorado, New Mexico, and various water conservancy districts; rural farmers; and municipalities of southwest Colorado and northwest New Mexico. These negotiations were driven by several factors. First, most of the streams claimed by the tribes were overappropriated; without an augmented source of water the Indian claims would displace existing users and economies in southwest Colorado and northwest New Mexico. Second, the tribes wanted “wet water” and an opportunity to put that water to use, even if the place of use was off reservation. Third, the tribes needed money to construct the irrigation systems

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and prepare the lands to put the water to use. Fourth, there was a “no injury” rule: Colorado would not agree to a set­tlement that injured existing holders of state water rights unless that compromise was acceptable to the holder of the state water right. Last, after litigating the question of the jurisdiction of the Colorado courts for over four years, Colorado did not want these claims quantified with federal legislation. The negotiations were further shaped by the availability of two federal reclamation projects, the Animas–La Plata Project and the Dolores Project. Both of these projects are participating projects under the Colorado River Storage Act of April 11, 1956,84 and the Colorado River Basin Project Act85 and were authorized by the Colorado River Basin Act of September 30, 1968.86 The Animas–La Plata Project was authorized to supply project water to southwestern Colorado and northwestern New Mexico, but funds for construction had never been appropriated. The Dolores Project was authorized to supply reclamation project water to southwestern Colorado, and construction was nearing completion. Construction of the Animas–La Plata Project was viewed as the cornerstone of the negotiations. In 1985, Congress appropriated $1 million for the project but conditioned this appropriation on a nonfederal cost-share agreement that had to be in place by June 30, 1986.87 When negotiations commenced the federal negotiators made clear that federal approval of a cost-share plan would be contingent upon a settlement of the Indian reserved water rights claims. With this deadline looming, the parties struggled to reach a cost-share agreement satisfactory to the federal government, and agreement on all other quantification issues. In March 1986, Colorado and the two Ute tribes were successful in reaching an Agreement in Principle on these matters, despite significant federal cost-share demands, legal obstacles, and thorny questions of interstate marketing of Indian reserved water rights. On June 30, 1986, Colorado, the New Mexico Interstate Stream Commission, several Colorado and New Mexico water user entities, the two Ute tribes, and the Secretary of the Interior signed a binding cost-share agreement. The parties to the litigation also signed an Agreement in Principle that established the parameters of the negotiated settlement. On December 10, 1986, a Final Settlement Agreement was signed by the Departments of the Interior and Justice; the State of Colorado; the Ute Mountain Indian Tribe; the Southern Ute Indian Tribe; and various water conservancy districts, munici­palities, ditch companies, and water users. The agreement was a lengthy and meticulous document, over 70 pages

Pub. L. No. 84-485, 70 Stat. 105 (1956).

84

Pub. L. No. 90-537, 82 Stat. 885 (1968) (codified at 43 U.S.C. §§ 1501–1556).

85

Id.

86

Pub. L. No. 99-88, 99 Stat. 293, 310–20 (1985).

87

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long, that provided a comprehensive settlement of the tribes’ claims for water. It has six major components:

(1) The tribes received specified amounts of water from the Animas–La Plata and Dolores Projects and additional rights to certain quantities of water from various streams that pass through the reservations;



(2) The agreement specifically addressed the administration of these waters, requiring beneficial use and judicial change-in-use proceedings as well as agreeing to state jurisdiction over all state appropriative rights and surplus waters on the reservations;



(3) The tribes waived breach of trust claims against the United States;



(4) The tribes received $60.6 million for tribal development funds to enable them to develop their water resources or otherwise make the reservations economically self-sufficient;



(5) Nonfederal parties contributed money to the construction of the Animas–La Plata Project and the tribal development funds; and



(6) The agreement deferred tribal repayment of certain project costs until the water from the projects was actually put to beneficial use.

Despite its length, the agreement was still considered a road map pointing the way to yet additional milestones that had to be achieved before the settlement could become final. These included the passage of required state and federal legislation and the filing of a proposed stipulation in the Colorado water court. The passage of the necessary federal legislation was by far the most controversial remaining task, and this was completed on November 4, 1988, when the President signed the Colorado Ute Indian Water Rights Settlement Act of 1988.88 This Act authorized the Secretary to use project water to provide water to the tribes, provided for deferral of costs that would otherwise be borne by the tribes pending their use of project water, removed reclama­tion law restrictions from the use of the tribes’ water, waived the provisions of the Nonintercourse Act and allowed the tribes to alienate their water rights, approved off-reservation use of tribal waters, established tribal development funds and authorized payments to these funds, waived tribal breach of trust and reserved water right claims, and authorized the Secretary of the Interior to comply with the administrative procedures set forth in the Agreement in Principle. Furthermore, despite initial inclinations to the contrary, Congress has fully appropriated the tribal development funds, and the construction costs were committed in November 1988.

Pub. L. No. 100-585, 102 Stat. 2973 (1988).

88

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The negotiated settlement provides the State of Colorado and the Ute tribes with more than they would have received had they litigated these claims. It quantified the tribal claims to water in a manner that did not injure or displace existing users. It created a powerful state-tribal coalition that proved insurmountable within the Department of the Interior and Congress. The parties were successful in initiating construction of a major reclamation project that will provide long-term regional economic benefits. The tribes were not restricted in their ability to use their water and are free to use their water in a manner similar to other holders of Colorado water rights. Consequently, if the tribes want to use or sell their water rights off reservation, they can do so subject to existing state law. Administration of Indian reserved water rights was integrated into the state system with beneficial use the key to all uses. The tribes and state will share resource information, and the tribes agreed that all water not reserved to them will be administered and regulated by the state. All changes in water rights or disputes over the beneficial use of the water will be heard in state court. The Colorado Ute Water Rights Settlement was the first Indian water rights settlement passed by Congress that fully addresses how an Indian reserved water right will look and be treated if used off reservation. VI. STATE-TRIBAL AGREEMENTS: A REPRESENTATIVE SAMPLE89 A. Environmental Protection 1. Clean Air Act implementation agreement between Puget Sound Air Pollution Control Agency and Puyallup Tribe of Indians In accordance with a settlement agreement resolving jurisdictional claims, Congress passed the Washington Indian Land Claims Settlement Act.90 The Act expressly allocated exclusive jurisdiction to federal, state, and local governments for the administration of environmental laws on all nontrust lands within the reservation boundaries, and gave the federal govern­ment and the tribe exclusive jurisdiction for the administration of those laws on all trust and restricted areas. In January 1992, the Puget Sound Air Pollution Control Agency (PSAPC) and the Puyallup Tribe of Indians entered into a cooperative agreement concerning implementation of the Puyallup Tribe’s air quality program within the exterior boundaries of the Puyallup Indian Reservation. The agreement established a framework for intergovernmental cooperation and coordination between the tribe and PSAPC, through consul­ tation and formation of a Review Advisory Committee comprised of two tribal

89 See Frank Pommersheim, Tribal-State Relations: Hope for the Future?, 36 S.D. L. Rev. 239 (1991) (collecting and analyzing state-tribal agreements and policies through nationwide survey sent to state attorneys general).

25 U.S.C. §§ 1773–1773j, now called the “Puyallup Tribe of Indians Settlement Act of 1989.”

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representatives, two PSAPC representatives, and other nonvoting members from the tribal council and officials from PSAPC. The agreement ensured that tribal air emission standards would be no less stringent than those adopted by PSAPC, with the State of Washington providing technical assistance and support services to the tribe. The state committed itself to seek special grant funding from the EPA to provide additional technical and support assistance for the tribe’s air program. 2. Agreement between the Southern Ute Indian Tribe and State of Colorado concerning air quality control on the Southern Ute Indian Reservation The Southern Ute Reservation is a checkerboard reservation of approximately 681,000 acres, of which 308,000 acres are trust lands. The tribe and state were in disagreement regarding Clean Air Act program administration with respect to air pollution sources on fee land within the reservation. To resolve that dispute, in 1999 the parties agreed to develop a comprehensive air quality program applicable to all lands within reservation boundaries.91 The agreement provided for phased development of a “Reservation Air Program.” The agreement provided for the establishment of a joint Southern Ute Indian Tribe/State of Colorado Environmental Control Commission to approve fees for permits, adopt regulations, and review appealable administrative actions. Establishment of the Commission required legislative action by each party. It was agreed that the day-to-day administration and enforcement of the Reservation Air Program would be the responsibility of the tribe, while the state would provide technical assistance. The agreement also addressed the tribe’s application for treatment as a state.92 3. Agreement between Assiniboine and Sioux Tribes and State of Montana for regulation and enforcement of pesticide use on the Fort Peck Reservation In 1994, the Montana Department of Agriculture and the Assiniboine and Sioux Tribes negotiated an agreement for the regulation and enforcement of pesticide use, under the Federal Insecticide, Fungicide and Rodenticide Act93 (FIFRA) on the Fort Peck Reservation. The agreement defined the responsibilities of the tribes and the state concerning the implementation of laws governing the regulation and enforcement of pesticide use, sale, and storage on the reservation. Under the agreement’s terms, the tribes retained all civil and criminal regulatory responsibilities over Indians within the exterior boundaries of the

Colo. Rev. Stat. §§ 25-7-1301 to 1309.

91

The agreement was codified at Colo. Rev. Stat. § 24-62-101.

92

7 U.S.C. §§ 136–136y.

93

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reservation, and over non-Indians on Indian lands. The state retained civil and criminal responsibility over non-Indians on non-Indian lands located within the reservation boundaries. The tribes’ certification requirements are linked to the state’s qualifications and licensing requirements under the agreement. The parties agreed to a system of cooperation in the inspection, investigation, and enforcement of pesticide laws; notification of pesticide spills that would impact adjacent lands in the other entity’s jurisdiction; and the cross­transference of information. As in most state-tribal cooperative agreements, each party disclaimed any concession of its jurisdictional claims. 4. Agreement between Assiniboine and Sioux Tribes and State of Montana for the regulation of underground storage tanks on the Fort Peck Reservation In March 1994, Montana and the Assiniboine and Sioux Tribes negoti­ated an agreement for the regulation of underground storage tanks on the Fort Peck Reservation. The agreement defined responsibilities and established a system of consultation, communication, and cooperation. The tribes retained exclusive authority to regulate underground storage tanks owned, operated, installed, or removed by the tribes or Indians within the exterior reservation boundaries, as well as civil authority over non-Indians conducting any of these activities on trust lands. The state retained civil and criminal regulatory authority over non-Indians for activities conducted on nontrust lands, and criminal authority over non-Indians on trust lands. Certain provisions authorized the tribes and state to contract with each other, and receive reimbursement, for inspecting and certifying compliance with each other’s underground storage tank regulations. The agreement also provided a mechanism by which the tribes and persons subject to the tribes’ jurisdiction could seek reimbursement for eligible expenses incurred in the cleanup of releases from underground storage tanks. 5. Hazardous waste agreement between Menominee Tribe and State of Wisconsin In 1984, the State of Wisconsin and the Menominee Tribe signed a memorandum of understanding under which the tribe agreed to conduct a multimedia waste study and enact four tribal ordinances setting standards for surface water and groundwater quality, solid waste, and hazardous waste. Upon approval of the study and ordinances by the tribal government, the parties agreed that the state and tribe would enter a second agreement under which the state would acknowledge the authority of the Menominee Tribe to regulate hazardous waste within the boundaries of the reservation. The process for enacting the ordinances took three years. After this step and completion of the study, the state and tribe prepared a second document, in 1987, that recognized the authority of the Menominee Tribe to regulate hazardous waste on the reservation. The state and tribe agreed to a procedure

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under which, without conferring jurisdiction on the state for on-reservation activities, the state would respond to emergencies created by a spill of hazardous materials, and would have standing to recover any damages and cleanup costs in tribal court. 6. Water quality management plan implementation agreement between Colville Tribe and State of Washington In 1985, the State of Washington and the Colville Tribe entered into an agreement for the implementation of the Colville Water Quality Management Plan. In the agreement, the parties recognized their differing opinions concerning jurisdictional authority to regulate water quality on fee and trust lands within the reservation and included a disclaimer of any jurisdictional concessions by the state, specifically stating that the agreement was not to be construed to set a precedent for future jurisdictional concessions. The state and tribe set up a commission to study state and tribal water quality standards in an effort to make them uniform to the maximum extent possible. Implementation of a second and third phase of the agreement involved cross-deputization of a tribal enforcement officer to administer the state and tribal regulations throughout the reservation. A dispute resolution mechanism was set up, with a terminable at will upon notice provision included. Both the state and tribe retained jurisdictional defenses in the event of attempted enforcement against either governmental entity, but otherwise agreed to refrain from challenging the other’s enforcement authority against third persons except by way of intervention in the event jurisdiction is raised affirmatively. B. Natural Resources 1. Agreement between the Colville Tribes and the Washington Department of Fish and Wildlife on jointly managed salmon and steelhead populations In 2004, the Colville Tribes approached the Washington Department of Fish and Wildlife to negotiate an agreement to share the harvest of salmon and steelhead that pass through or originate from the Colville Reservation and the former North Half of the Colville Reservation, which had been ceded to the United States. The Colville Reservation had been set aside by executive order in 1872, and in 1891 by congressionally ratified agreement with the United States the tribes retained fishing rights in the ceded North Half. The question of whether the 1891 agreement and 1872 executive order secured to the Colville Tribes a “fair share” of fish as in the Stevens treaties had never reached a court. In order to avoid litigation and achieve mutual goals regarding management of the fish resource, the parties negotiated an agreement under which the Colville Tribes and state-regulated fishers fairly share the harvestable fish not taken

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by the Columbia River Treaty Tribes. The agreement formally recognizes the “rights of the Colville Confederated Tribes to an opportunity to harvest a fair share of the salmon and steelhead originating from the Colville Reservation, the former North half thereof, and all Reservation and North Half boundary waters” as well as the “critical need to ensure that spawning escapement goals are achieved for the salmon and steelhead populations of the upper Columbia basin,” and specifies how the sharing will occur. Matters covered by the agreement include the relationship of the agreement to management under the continuing jurisdiction of the court in United States v. Oregon;94 procedures for determining the annual allocation of fish subject to the agreement; “guiding principles” and coordination protocols for hatchery, habitat, and harvest programs; and information sharing. 2. Hunting and fishing cooperative agreement between Ute Indian Tribe and State of Utah In February 1996, the Ute Indian Tribe and Utah entered into an agreement to manage cooperatively wildlife resources on lands within the exterior boundaries of the Uintah and Ouray Reservation and to allocate hunting and fishing opportunities on nontrust lands. The agreement provided for hunter safety certification and permitting requirements and established a regulatory consistency requirement to the extent possible between state and tribal game laws. The tribe retained jurisdiction to prosecute offenses committed by tribal members or “mixed bloods,” with the state retaining jurisdiction to prosecute offenses committed by other persons; state and tribal game officers agreed to refer violators to the appropriate prosecuting entity. The agreement, while establishing the state’s right to manage wildlife resource on nontrust lands and the tribe’s right to manage wildlife on trust lands, also created a mechanism for the ongoing exchange of information between the state and tribe. The agreement’s term is five years, unless otherwise termi­nated in accordance with its provisions. In 2001 the State of Utah entered into agreements with the Northwestern Band of the Shoshone Nation, the Navajo Nation, and the Kanosh Band of the Paiute Indian Tribe of Utah regarding off-reservation hunting and fishing rights to prevent disputes regarding the scope of treaty rights. The agreements address issues such as training of state law enforcement officers regarding traditional tribal hunting practices, exchange of data for wildlife management purposes, the set-aside of specific numbers of hunting permits or licenses for tribal members, and agreement by the tribe otherwise to follow state law regarding wildlife-related activities on nonreservation lands.

Civ. No. 68-513 (D. Or.).

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3. Agreements between the Confederated Tribes of the Colville Reservation and the Washington Department of Fish and Wildlife regarding regulation of hunting and fishing Following several years of litigation between the Colville Tribes and the State of Washington regarding the regulation of hunting and fishing by nonmembers on the Colville Reservation, in 1998 the parties entered into a cooperative agreement, recognizing that the “complex and confusing jurisdictional framework hinders the discharge of the respective parties’ obligations to maximize hunting and fishing opportunity while at the same time preserving, perpetuating, and protecting the wildlife resource.” The agreement provides for state and tribal fish biologists to propose parallel fishery and hunting regulations for adoption by each government. The agreement clarifies state and tribal licensing requirements for fishing on boundary waters and provides for joint surveying and information sharing and cooperation regarding enforcement. In 2007 the parties further implemented the cooperative agreement by instituting a pilot project for regulation of nonmember fishing at Lake Rufus Woods, on the reservation boundary. The 2007 agreement addressed increasing interest in the area by providing for improved fishing access and simplified licensing requirements. Contingent on legislative funding, the agreement provides for new tribally designated fishing areas to be developed with state funding, as well as protocols for joint enforcement efforts. 4. Hunting and fishing settlement agreement between Southern Ute Tribe and State of Colorado In 1972, the Southern Ute Tribal Council and the State of Colorado Department of Natural Resources entered into a consent decree that evolved from litigation over a jurisdictional conflict concerning enforcement of state hunting and fishing laws within reservation boundaries. Pursuant to the agreement, the state agreed to refrain from asserting jurisdiction over Indians within the reservation boundaries, thereby agreeing to tribal jurisdiction over tribal members hunting inside the reservation, regardless of landownership. However, members were required to obtain consent from nonmember landowners before hunting on their lands. The state retained jurisdiction over nonmembers within reservation boundaries, with the tribe agreeing to refrain from exercising any off-reservation hunting and fishing rights except to the extent permitted any other citizen. The parties established a cooperative effort to assist each other in enforcement of the other’s laws, in improving overall game management practices, and for the training of tribal officers.

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5. State-tribal cooperative agreement between Confederated Salish and Kootenai Tribes of the Flathead Reservation and Montana Department of Fish, Wildlife and Parks In 1990, the Confederated Salish and Kootenai Tribes of the Flathead Reservation and the State of Montana Department of Fish, Wildlife and Parks entered into a bird-hunting and fishing cooperative agreement in settlement of a lawsuit. The agreement covered regulation of bird hunting and fishing by nonmembers on the reservation, established a state-tribal cooperative management board to promulgate appropriate regulations, established a biological technical committee whose purpose was to develop cooperative resource management plans to present to the board, and established licensing requirements of members and nonmembers. Cross-deputization provisions enabled tribal officers to receive state appointments and enforce state fish and game laws on the reservation and vice versa. Both state and tribal officers were authorized to enforce laws anywhere on the reservation, with tribal members receiving citations to tribal court and nonmembers receiving citations to state court; members and nonmembers committing violations on Indian land were also to receive citations to tribal court. Finally, the agree­ment provided that all revenues from licensing and enforcement were ear­marked for the tribes’ conservation account, to be used solely for their fish and wildlife management program. 6. Puget Sound Salmon Management Plan In 1985, in settlement of a two-decade-long series of disputes between Washington and the Puget Sound treaty tribes over preserving the State of Washington’s salmon fishery, the Puget Sound Salmon Management Plan was negotiated and signed. The plan implemented the share harvest determinations as set forth in United States v. Washington95 and established an overall fish management plan. In addition to conservation measures that ensure that 50 percent of the fish return to inland waters, the agreement set forth a cooperative problem-solving approach to disputes. The plan also established a procedure to avoid disputes by requiring annual meetings to review and evaluate the plan’s implementation as well as requiring issue identification and corrective action goals. 7. Fort Berthold oil and gas agreement The Three Affiliated Tribes, the State of North Dakota, and the United States Department of the Interior entered into a cooperative agreement for the conservation of oil and gas resources on the Fort Berthold Indian Reservation. The agreement set up a tribal advisory committee that was empowered to

384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975).

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inquire into and receive information from any oil industry concerns with any activities on the reservation, and to make recommendations to the appropriate enforcement personnel. Additionally, the committee was given participatory access to the State Industrial Commission hearings, and any tribal recommendations accepted by the Commission result in laws binding on the state, tribes, and, if consented to, the Department of the Interior. 8. Agreement between Counties of Uintah and Duchesne, State of Utah, and Ute Indian Tribe of the Uintah and Ouray Reservation The Utah General Assembly created the Uintah Basin Revitalization Fund96 and in 1995, through a severance tax amendments act,97 allocated to the Revitalization Fund a portion of oil and gas severance taxes collected by the State of Utah from lands held in trust by the United States for the benefit of the Ute Tribe and its members. In October 1995, the counties of Uintah and Duchesne, Utah, and the Ute Indian Tribe entered a cooperative agreement to establish procedures for the fund to disburse grant moneys and loans to the counties and the tribe for the purpose of mitigating social and economic impacts arising from oil and gas development on trust lands. The agreement provided that approximately 75 percent of annual deposits to the fund be committed to projects and activities of the tribe, with 12.5 percent of annual deposits to the fund committed to each of the counties. C. Taxation Agreements 1. Agreements between State of Washington and Indian Tribes for purchase and resale of liquor The State of Washington, through its Liquor Control Board, has entered into a number of agreements with the various Indian tribes located in the state for the purchase and resale of liquor in Indian country. In addition to containing licensing, advertising, and anticompetitive pricing provisions, the agreements provide for prepayment by the tribes of the purchase price of the liquor, along with prepayment by the tribes of state taxes, with a predetermined amount to be tax-free for resale to tribal members as determined by the number of members over the age of 21. 2. Settlement agreement among State of Washington, United States, and tribes exercising treaty fishing rights in State of Washington In 1994, 21 plaintiff tribes, the State of Washington, and the United States entered into a settlement agreement resolving the challenged imposition of state ad valorem taxes imposed on boats owned by treaty tribe members whose

Utah Code Ann. §§ 9-10-101 to 108.

96

Id. § 59-5-116.

97

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principal residence was outside their tribe’s reservation.98 Under the terms of the agreement, Washington agreed not to apply its personal property and watercraft excise taxes to boats owned by the tribes or their members and used in the exercise of treaty fishing rights where the relevant tribe imposes its own treaty fishing rights–related tax. The agreement established intergov­ ernmental, cooperative registration procedures and access by, or release to, specified state, federal, foreign, and tribal law enforcement officers of tribal and state registration data, consistent with confidentiality protections. 3. Settlement agreements between State of Washington and Yakama Indian Nation, Lummi Indian Nation, and Confederated Tribes of the Colville Reservation concerning motor vehicle fuel taxation In 1994, the State of Washington and the Yakama Indian Nation entered into a consent decree resolving the tribe’s challenge to the state’s imposition of taxes on motor vehicle fuel and special fuel distributed, sold, used, or possessed on the Yakama Indian Reservation.99 The agreement established a cooperative framework for the taxation and regulation, by both the Yakama Nation and Washington, respecting distribution, sale, transfer, use, or possession of such fuel. Provisions of the agreement authorized the continued exercise of state taxation authority except with respect to fuel distributed or sold to the Yakama Nation that is used by the tribe for essential governmental functions, distributed or sold by the tribe to tribally licensed Yakama filling stations on the reservation, to the extent the fuel is resold to tribal members or Yakama businesses and is used exclusively by those tribal members or Yakama businesses, or where such fuel is distributed or sold by the tribe to tribal members or Yakama businesses that are tribally licensed to purchase bulk fuel and is used exclusively by those tribal members or businesses. Finally, the agreement established an intergovernmental cooperative procedure for the exchange of information necessary to enforce the terms of the consent decree by either entity, and a dispute resolution process that must be followed in the event a conflict arises in the implementation of the consent decree. Agreements similar to the one described above were negotiated between the State of Washington and the Confederated Tribes of the Colville Reservation in August 1994100 and the Lummi Indian Nation in October 1995. The Colville settlement was the first of these agreements, and the authority for Washington

98 United States v. Washington, No. 9213, subproceeding 88-1 (Phase I) (W.D. Wash. 1994) (addressing state taxation and regulation of treaty fishing boats).

Teo v. Steffenson, No. CY-93-3050-AAM (E.D. Wash. 1994).

99

Confederated Tribes of Colville Reserv. v. Washington Dep’t of Licensing, No. CY-92-248-JLQ (E.D. Wash.

100

1994).

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to enter into such taxation allocation agreements between the state and an Indian tribe was subsequently confirmed by the state legislature.101 4. Cigarette tax refund agreements between Oregon Department of Revenue and several Oregon tribes Several tribal governments have formal revenue-sharing agreements with the State of Oregon. The Department of Revenue entered into these agreements in recognition of federal prohibitions on state taxation of tribal members on tribal land. The tribal governments agree to obtain and sell cigarettes obtained from distributors licensed by the Oregon Department of Revenue. In exchange, the agreements specify a refund formula for calculating Oregon cigarette taxes paid on sales to tribal members on tribal land. The agreements provide for adoption of a tribal ordinance governing cigarette sales on tribal lands, including a general agreement not to sell unstamped cigarettes. The agreements also include dispute resolution provisions. D. Quantification of Water Rights In 1975, the Northern Cheyenne Tribe and the United States brought suit against the State of Montana to obtain a final determination of the tribe’s water rights, with the state initiating a general stream adjudication that included the Northern Cheyenne water rights. In 1983, both the federal district court suits and the state water court adjudication were stayed to permit negotiations by all parties; these negotiations resulted in a compact satisfying the tribe’s reserved water rights claims, providing for the administration of tribal water rights by the tribe and state administration of on-reservation water rights that are not part of the tribal water rights, off-res­ervation uses, and a dispute resolution process for resolution of conflicts between tribal water right users and state water right users.102 Both the United States and the State of Montana agreed to make monetary contributions to the settlement, with the state additionally agreeing to work cooperatively with the tribe in an effort to obtain any additional necessary federal funds and to seek enactment of any necessary legislation. Implementing federal legislation was contemplated by the compact and was adopted in 1992.103

101 Wash. Rev. Code § 82.36.450 authorizes the governor to enter into an agreement with any federally recognized Indian tribe located on a reservation regarding the imposition, collection, and use of the state’s motor vehicle fuel use, or the budgeting or use of moneys in lieu thereof, upon terms substantially the same as those in the consent decree in Confederated Tribes of the Colville Reservation v. Washington Department of Licensing. Wash. Rev. Code § 82.38.310 provides the same authority for state-tribal taxation agreements with regard to the state’s special fuel tax. The terms authorized were recently changed for new agreements. Wash. Rev. Code § 82.38.310 (2008).

Mont. Code Ann. § 85-20-301.

102

Pub. L. No. 102-374, 106 Stat. 1186 (1992).

103

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E. Law Enforcement 1. Law enforcement agreement between Kootenai Indian Tribe of Idaho and the City of Bonners Ferry, Idaho The Kootenai Indian Tribe of Idaho and the City of Bonners Ferry, Idaho, entered into one-year, cross-deputization agreements in successive years for the investigation and enforcement of laws in specified areas of the Kootenai Indian Reservation. The agreement provides for enforcement of certain federal and tribal laws by city officers, and detention procedures, all in furtherance of a contract between the Kootenai Indian Tribe and the Bureau of Indian Affairs. The BIA, in approving the agreement, provided indemnification to the tribe and the city for any claims arising out of the tribe’s or city’s good-faith performance under the agreement. 2. Cross-deputization agreement between Montana Highway Patrol, Cities of Wolf Point and Poplar, County of Roosevelt, and the Assiniboine and Sioux Tribes of the Fort Peck Reservation In April 2000, a cross-deputization agreement was entered into among the Assiniboine and Sioux Tribes of the Fort Peck Reservation, the City of Wolf Point, the City of Poplar, the Montana Highway Patrol, and the County of Roosevelt. The agreement provides for each state party to issue commissions to qualifying tribal officers and for the tribes to issue commissions to qualifying officers of the several state parties. The commissions authorize the officers to exercise the same summons-issuing, arrest, and investigatory powers possessed by law enforcement officers of the issuing party, with arrested Indians delivered to tribal detention facilities and arrested non-Indians delivered to the appropriate local government or state detention facility. A commission’s general territorial scope is limited to the exterior boundaries of the Fort Peck Reservation, but provision is made for hot pursuit of offenders off reservation. Each party is responsible for the compensation and ordinary expenses of its officers when acting under another party’s commission. Tribally commissioned state officers are deemed federal employees under the Indian Law Enforcement Reform Act and the Federal Tort Claims Act when discharging responsibilities pursuant to their commissions; the state parties assume no liability for and do not indemnify tribal officers when acting under their state commissions. The agreement sets out conditions for suspending or terminating commissions. The term of the agreement is annual, with automatic renewal unless terminated. Termination can occur at any time, with or without cause, upon 30 days’ written notice. 3. Cross-deputization agreement between State of Nebraska and several Nebraska tribes In 2004 and 2005, the State of Nebraska entered into cross-deputization agreements with several Nebraska tribes. The agreements note the mutual

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interest in the ability of both state and tribal law enforcement officers to react immediately to observed violations of the law and other emergency situations, and the difficulty of determining jurisdiction where it is not immediately clear whether the suspect is Indian or non-Indian or whether the suspected crime took place in Indian country. The agreements cover issues such as qualification criteria for cross-deputization of state and tribal officers; control and supervision of officers; protocol for arrest, disposition, and custody of suspects; territory covered by the agreement; and liability coverage. F. Delivery of Social Services 1. Agreement between the Montana Department of Public Health and Human Services and Blackfeet Tribe for tobacco use prevention program The Montana Department of Public Health entered an agreement with the Blackfeet Tribe to provide funding for a tobacco prevention specialist. The specialist is to provide a variety of tobacco use prevention services, including educational efforts and forming tobacco use prevention coalitions, while the state is to provide technical assistance and training. The agreement also covers matters such as insurance, confidentiality, and recordkeeping. 2. Indian child welfare services agreement between State of Utah and Navajo Nation In May 1996, the State of Utah and the Navajo Nation entered into a cooperative agreement for the care and custody of Indian children, and the allocation of state and tribal jurisdiction over child custody proceedings involving Indian children, under the Indian Child Welfare Act of 1978.104 The agreement provides for the Navajo Nation’s exclusive jurisdiction over any child custody proceeding involving a Navajo child who resides or is domiciled within Navajo Nation country. When a Navajo child is not domiciled or does not reside within the Navajo Nation and is the subject of a state court proceeding, the agreement provides for the orderly transfer of jurisdiction to the Navajo court where authorized under the Indian Child Welfare Act, and pursuant to the statute, the agreement establishes a preference for placements in pre-adoptive, adoptive, or foster care proceedings with a Navajo Nation family or entity. Finally, the agreement provides for intergovernmental cooperation for the transfer of information and coor­dination of case management services. 3. Indian Child Welfare Act agreement between Minnesota and 11 tribes A more recent example is the amended “Indian Child Welfare agreement” between Minnesota and 11 tribes regarding child welfare services. The agreement

25 U.S.C. § 1919.

104

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includes provisions regarding notice to tribes when Indian children are taken into custody, tribal court jurisdiction, records, training, and funding.105 4. Agreement for provision of benefits of special supplemental food program for women, infants, and children between Chippewa Cree Tribe of the Rocky Boy’s Reservation and State of Montana In July 1995, the State of Montana Department of Public Health and Human Services and the Chippewa Cree Tribe of the Rocky Boy’s Res­ervation entered into a one-year agreement for the provision of benefits under the Special Supplemental Nutrition Program for Women, Infants, and Children106 to eligible women and children residing on the Rocky Boy’s Reservation. Pursuant to the agreement, the tribe assumed primary responsibility for the administration of the program, including recordkeeping, employment, provision of services, education, training, and medical care. The Montana Department of Public Health and Human Services contracted to provide oversight and training functions and reimbursement to the tribe for salaries, fringe benefits, oper­ating expenses, and other specified costs, subject to state and federal appropriations. The tribe waived its sovereign immunity for the purposes of resolving disputes arising under the agreement, and agreed to indemnify Montana for any liability arising out of the tribe’s negligent performance. Similar agreements, renegotiated annually, exist between Montana and the Assiniboine and Sioux Tribes of the Fort Peck Reservation, the Assiniboine and Gros Ventre Tribes of the Fort Belknap Reservation, the Blackfeet Tribe, the Northern Cheyenne Tribe, and the Crow Tribe. 5. Weatherization contracts between State of Montana and various tribes The State of Montana, through its former Department of Social and Rehabilitation Services or its present Department of Public Health and Human Services, entered into separate one-year contracts with the Blackfeet Tribal Council, the Salish and Kootenai Housing Authority, the Fort Belknap Community Council, the Fort Peck Tribal Council, and the Northern Cheyenne Tribal Council for the provision of weatherization of low-income dwelling units on the respective reservations. The state agreed to disburse federal funds to the tribal committee, to provide oversight and training, and to perform federal reporting requirements.

105 Tribal/State Indian Child Welfare Agreement as Amended in 2007 (Feb. 22, 2007), available at http://edocs.dhs.state.mn.us/lfserver/Legacy/DHS-5022-ENG (last visited Aug. 1, 2008).

42 U.S.C. § 1786.

106

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6. Agreement between State of New Mexico and Navajo Nation for child support enforcement In 1993, a Joint Powers Agreement was signed between the Navajo Nation and the State of New Mexico for the development and implementation of a child support enforcement program, providing for cooperative tribal and state enforcement of child support orders. During that year, the state appropriated $150,000 of state funding to assist the Navajo Nation in hiring staff; leasing space, equipment, and supplies; and training for the Navajo Nation Child Support Enforcement Program. A second Joint Powers Agreement, signed in 1994, contained the same program objectives established in the 1993 agreement. Again in 1994, the state appropriated $150,000 in furtherance of the agreement, and in that same year, the Navajo Nation enacted the Navajo Nation Child Support Enforcement Act and began receiving clients and applications for child support. The Navajo Nation continues its development and implementation of a child support enforcement program to provide cooperative tribal and state enforcement of child support enforcement orders. Navajo Nation child support guidelines have gone through public review and comment, were approved by the Navajo Nation Supreme Court in May 1995, and were to become effective upon approval by the judiciary committee of the Navajo Nation in July 1996. 7. Agreements between Oregon Youth Authority and Oregon tribes As of 2008, the Oregon Youth Authority (“OYA”) had entered into agreements with six Oregon tribes regarding tribal member youth in OYA custody, in recognition of their mutual interest in providing for appropriate treatment and transition services for tribal member youth. The tribes and the OYA agree to notify each other when a tribal member is committed to OYA. The tribe then notifies OYA if it desires to be involved with development and implementation of a case plan for the tribal youth, with youth and parental consent. A tribal representative then serves on the multidisciplinary team that plans services. The parties agree to work together to provide culturally appropriate services, including medical, mental health, substance abuse, and transition services, as well as to make available religious ceremonies. 8. Medicaid agreement between the Montana Department of Public Health and Human Services and the Chippewa Cree Tribe of Rocky Boy’s Reservation The State of Montana and the Chippewa Cree Tribe have an agreement regarding support services for determination of Medicaid eligibility. The state provides federal grant monies to the tribe to fund personnel and other costs for determining Medicaid eligibility. The agreement sets out the permissible use of funds, the process for payment, recordkeeping, and also covers applicable federal requirements and confidentiality provisions, insurance coverage and

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indemnification, as well as auditing and access to tribal premises for monitoring contractual performance. G. Cultural Resources 1. Agreement between Wisconsin Department of Transportation and the Ho-Chunk Nation regarding the Kingsley Bend Effigy Mound Site In 2007, the Wisconsin Department of Transportation and the Ho-Chunk Nation entered into an agreement regarding the Kingsley Bend Wayside, along the highway near the Wisconsin Dells. The wayside is an effigy mound site, including approximately 22 effigy mounds, some in the shape of birds, bears, and panthers. Under the agreement, the Department of Transportation transferred the site to the Ho-Chunk Nation with a historic preservation covenant. 2. Agreement between the Oregon Parks and Recreation Department and the Confederated Tribes of the Umatilla Indian Reservation regarding cultural resources on state park lands In 2002, the Oregon Parks and Recreation Department and the Confederated Tribes of the Umatilla Indian Reservation entered into an agreement regarding the identification and protection of burial sites on state park lands. The agreement also provides for reburial of Native remains on state park lands under certain circumstances.107 3. Memorandum of understanding regarding access to Department of Natural Resources lands for hunting and gathering of resources and accessing cultural sites between the Washington State Department of Natural Resources and the Lummi Nation In 2007, the State of Washington Department of Natural Resources and the Lummi Tribe entered into an agreement that provides for access by Lummi members to certain state timber lands for hunting and gathering and access to cultural sites. The agreement expressly leaves unresolved any disagreements regarding the scope of the tribe’s treaty rights to engage in those activities. Matters covered by the agreement include the specific lands covered by the agreement and provisions for a joint monitoring program to ensure that gathering will not affect the sustainability of existing ecological relationships in the areas. The agreement also addresses confidentiality and the applicability of state public records laws to information regarding cultural sites. Under the agreement the parties are to meet annually for information sharing and to discuss areas of access for the next year and either party’s concerns.

107 Memorandum of Agreement for Protection of Native Indian Burial Sites in Certain State Park Lands, available at http://www.umatilla.nsn.us/crpp/pdf/burial_protection.pdf (last visited Aug. 2, 2008).

Table of Cases

661

Table of Cases

A-1 Contractors v. Strate, 76 F.3d 930 (8th Cir. 1996), aff ’d, 520 U.S. 438 (1997), 252–53(n155) A.A. v. State, 982 P.2d 256 (Alaska 1999), 582(n44) A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411 (9th Cir. 1986), 244(n114), 250(n141) A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982), 577(n27) Abbate v. United States, 359 U.S. 187 (1959), 146(n21) Access Fund v. USDA, 499 F.3d 1036 (9th Cir. 2007), 139(n505) Ace Equip. Sales, Inc., v. Sebastian, 31 Indian L. Rep. 6136 (Mash. Peq. Tr. Ct. Sept. 3, 2004), 286(n317) Ackerman v. Edwards, 17 Cal. Rptr. 3d 517 (Ct. App. 2004), 298(n64), 313–14(n132) Acunia v. United States, 404 F.2d 140 (9th Cir. 1968), 142(n7) Adams v. Morton, 581 F.2d 1314 (9th Cir. 1978), 54(n36) Adarand Constructors v. Pena, 515 U.S. 200 (1995), 184(n118) Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972), 35(n172) Agri W. v. Koyama Farms, Inc., 933 P.2d 808 (Mont. 1997), 272(n245) Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir. 2000), 230(n30) Agua Caliente Band of Cahuilla Indians v. Superior Ct., 148 P.3d 1126 (Cal. 2006), 298(n62) A.H. v. State Dep’t of Health and Soc. Servs., 10 P.3d 1156 (Alaska 2000), 604(nn118, 120)

Ahboah v. Housing Auth. of Kiowa Tribe, 660 P.2d 625 (Okla. 1983), 68(n127) Aircraft Equip. Co. v. Kiowa Tribe, 921 P.2d 359 (Okla. 1996), 269(n239) A.K. Mgmt. Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir. 1986), 624(n17) Akootchook v. United States, 271 F.3d 1160 (9th Cir. 2001), 84(n40) Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. CIr. 1999), 426(n324) Alaska v. Ahtna, Inc., 891 F.2d 1401 (9th Cir. 1989), 98(n130) Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995), 426(n324) Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir. 1988), 69(nn128, 131), 226(n5) Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1997), 71–73, 77, 387(n24), 591(n72) Alaska Chapter, Assoc. Gen. Contractors v. Pierce, 694 F.2d 1162 (9th Cir. 1982), 55–56(n48) Alaska Pac. Fisheries v. United States, 248 U.S. 78 (1918), 103(n166), 340(n66), 385(n12), 387(nn25, 27) Alaska v. United States, 545 U.S. 75 (2005), 100(n140) Alavarado v. Warner-Lambert Co., 30 Indian L. Rep. 6174 (Lummi Tr. Ct., May 22, 2003), 256–57(n177) Albuquerque Indian Rights v. Lujan, 930 F.2d 49 (D.C. Cir. 1991), 26(n124) Alden v. Maine, 527 U.S. 706 (1999), 183(n113) Aleman v. Chugach Support Servs., Inc. 485 F.3d 206 (4th Cir. 2007), 294(n50)

661

662 Aleut Cmty. of St. Paul Is. v. United States, 480 F.2d 831 (Ct. Cl. 1973), 84(n40) Aleutian Pribilof Ass’n v. Kempthorne, 537 F. Supp. 2d1 (D.D.C. 2008), 45(n230) Alexanderson v. Clark County Bd. of Comm’rs, 144 P.3d 1219 (Wash. Ct. App. 2006), 625–26(n25) Algeria v. Redcherries, 812 P.2d 1085 (Ariz. Ct. App. 1991), 282(n297) Alicia B. v. Superior Ct., 11 Cal. Rptr. 3d 1 (Ct. App. 2004), 596–97(n88) Alire v. Jackson, 65 F. Supp. 2d 1124 (D. Or. 1999), 324(n181) Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006), 305(n98), 311(n118) Allender v. Scott, 379 F. Supp. 2d 1206 (D.N.M. 2005), 167(n128), 635(n71) Allstate Indem. Co. v. Stump, 191 F.3d 1071 (9th Cir. 1999), 234(n56), 236(n65), 238(n73), 243(n110) Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981), 261(n205) Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803 (7th Cir. 1993), 248(n132), 304(n91) Alvarado v. Table Mountain Rancheria, 509 F.3d 1008 (9th Cir. 2007), 49(n7), 52(n24) Alyssa B. v. State, 165 P.3d 605 (Alaska 2007), 580(n34) A.M. v. State, 891 P.2d 815 (Alaska 1995), after remand, 945 P.2d 296 (Alaska 1997), 602(n112) American Fed’n of Gov’t Employees v. United States, 330 F.3d 513 (D.C. Cir. 2003), 55–56(n48) American Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012 (D. Ariz. 2001), judgment vacated on other grounds, 305 F.3d 1015 (9th Cir. 2002), 295(n51), 554–55(n229), 558(n241), 623(n13) American Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374 (8th Cir. 1985), 304(n92) American Oil Co. v. Neill, 380 U.S. 451 (1965), 471(n50) American Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091 (9th Cir. 2002), 225(n2), 308–9(n111) Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987), 84(n37) Anderson v. Beaulieu, 555 N.W.2d 537 (Minn. Ct. App. 1996), 269(n240)

Table of Cases Anderson v. Engelke, 954 P.2d 1106 (Mont. 1998), 270–71(n241) Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002), 393(n72), 397(n104) Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004), 404(n154), 416(n236), 420(n268), 421 Anderson v. Spear-Morgan Livestock Co., 79 P.2d 667 (Mont. 1938), 357(n186) Anderson v. Wisconsin Dep’t of Revenue, 484 N.W.2d 914 (Wis. 1992), 506(n303) Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 929 P.2d 379 (Wash. 1996), 104(n177), 270–71(n241) Andrus v. Allard, 444 U.S. 51 (1979), 423(n301) Ankenbrandt v. Richards, 504 U.S. 689 (1992), 246(n120) Antoine v. Washington, 420 U.S. 194 (1975), 171(n8), 389(n40), 392(n65), 398(n114), 404(nn148, 149), 405(n157) [listed as 1977 on p. 405] Arizona Dep’t of Econ. Sec. v. Bernini, 48 P.3d 512 (Ariz. Ct. App. 2002), 580(n35) Arizona Department of Revenue v. Blaze Construction Co, 526 U.S. 32 (1999), 216, 391(n55), 474(n69), 490(n183), 504(n286) Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969), 165(n119) Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir. 1995), 227(n13), 249(n134), 250(n141), 313–14(n132), 450(n193), 469(n36) Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), 173(n31), 386(n19) Arizona v. California, 373 U.S. 546 (1963) (Arizona I), 7(n27), 331(n3), 336(n33), 337, 338(n45), 339(nn59, 61), 341, 342(n81), 345, 346(n105), 352(n144), 354(n161), 370(nn261, 267) Arizona v. California, 376 U.S. 340 (1964), 346(n105) Arizona v. California, 439 U.S. 419 (1979) (per curiam) (Arizona II), 346(n105), 358(n192), 359(n197) Arizona v. California, 460 U.S. 605 (1983) (Arizona III), 20(n98), 344(n91), 346, 347 Arizona v. California, 530 U.S. 392 (2000) (Arizona IV), 346(n105)

Table of Cases Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983), 333(n11), 368(nn250, 251, 254), 373(n282), 377(n307) Armstrong v. Mille Lacs County Sheriffs Dep’t, 112 F. Supp. 2d 840 (D. Minn. 2000), 244(n114), 315(n135) Arnett v. Five Gill Nets, 121 Cal. Rptr. 906 (Ct. App. 1975), 388(n34) Aroostook Band of Micmacs v. Executive Dir., 307 F. Supp. 2d 95 (D.Me. 2004), 226–27(n9) Aroostook Band of Micmacs v. Ryan, 484 F.3d 41 (2st Cir. 2007), 86(n55), 218(n323), 219(n327), 230–31(n34), 294–95(n50) Artichoke Joe’s v. Norton, 216 F. Supp. 2d 1084, (E.D. Cal. 2002), 19(n93), 25(n117), 26(n124), 27(n126), 295(n51), 551(n207) Ashley v. USDOI, 408 F.3d 997 (8th Cir. 2005), 16(n83), 17(n86), 313(n125) Assiniboine & Sioux Tribes v. Montana, 568 F. Supp. 269 (D. Mont. 1983), 229(n21) Astorga v. Wing, 118 P.3d 1103 (Ariz. Ct. App. 2005), 272(n245) AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899 (9th Cir. 2002), 239(n83), 519(n54), 545(n183) Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), 229(n23), 311(n117) Atkins v. Penobscot Nation, 130 F.3d 482 (1st Cir. 1997), 299(n70) Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001), 93(n101), 199–201, 202, 203, 236(n67), 244(n112), 389(n44), 432, 467 Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977), 309–10(n112) Atlantic States Legal Found. v. Salt River Pima-Maricopa Indian Cmty., 827 F. Supp. 608 (D. Ariz. 1993), 27(n129), 458 Attakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990), 139(n498) Attorney’s Process and Investigation Servs. Inc., v. Sac and Fox Tribe, 401 F. Supp. 2d 952 (N.D. Iowa 2005), 235(n61) Atwood v. Fort Peck Tribal Ct., 513 F.3d 943 (9th Cir. 2008), 238(n73) Atwood v. Shanks, 958 P.2d 332 (Wash. App. 1998), 396(n92) Austin’s Express, Inc. v. Arneson, 996 F. Supp. 1269 (D. Mont. 1998), 255(n168), 256–57(n177)

663 Automobile Owners Ins. Co. v. Saunooke, 54 F. Supp. 2d 585 (W.D.N.C. 1999), 233(n46) Auto-Owners Ins. Co. v. Tribal Ct., 495 F.3d 1017 (8th Cir. 2007), 225(n2), 227(n13) Azure v. USHHS, 758 F. Supp. 1382 (D. Mont. 1991), 245(n115) Babbitt v. Youpee, 519 U.S. 234 (1997), 10(n41) Backcountry Against Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996), 452–53, 631(n54) Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466 (8th Cir. 1994), 313–14(n132) Baker v. John, 982 P.2d 738 (Alaska 1999), 255(n168), 270(n241) Baker v. Sebastian, 33 Indian L. Rep. 6025 (Mash. Peq. Tr. Ct. Dec 7, 2005), 286(n317) Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371 (1978), 384(n3) Balyeat Law, P.C. v. Pettit, 967 P.2d 398 (Mont. 1998), 270(n241) Bank One, N.A. v. Shumake, 281 F.3d 507 (5th Cir. 2002), 231(n36), 239(n83), 245(n116), 305(n99) Banner v. United States, 238 F.3d 1348 (Fed. Cir. 2001), 86(n55) Baraga County v. State Tax Comm’n, 622 N.W.2d 109 (Mich. Ct. App. 2000) (per curiam), rev’d on other grounds, 645 N.W.2d 13 (Mich. 2002), 486 Barbry v. Dauzat, 576 So. 2d 1013 (La. Ct. App. 1991), 580(n36) Barcellos & Wolfson, Inc. v. Westlands Water Dist., 491 F. Supp. 263 (E.D. Cal. 1980), 379(n321) Barclay v. United States, 333 F.2d 847 (Ct. Cl. 1964), 117(n291) Barker v. Harvey, 181 U.S. 481 (1901), 82(n19) Barker v. Menominee Nation Casino, 897 F. Supp 389 (E.D. Wis. 1995), 319(n147), 325–26(n189) Barney v. City of Keokuk, 94 U.S. 324 (1876), 99(n135) Barona Band of Mission Indians v. Yee, 528 F.3d 1184 (9th Cir. 2008), 471(n50), 504–5 Barona Group of Capitan Grande Band of Mission Indians v. American Mgmt. & Amusement, Inc., 840 F.2d 1394 (9th Cir. 1987), 55–56(n48)

664 Barona Group of Capitan Grande Band of Mission Indians v. Duffy, 694 F.2d 1185 (9th Cir. 1982), 516 Basey v. Gallagher, 87 U.S. 670 (1874), 365(n231) Basil Cook Enters., Inc. v. St. Regis Mohawk Tribe, 914 F. Supp. 839 (N.D.N.Y. 1996), 235(n58), 244(n114) Basil Cook Enters., Inc. v. St. Regis Mohawk Tribe, 26 F. Supp. 2d 446 (N.D.N.Y. 1998), 235(n59) Basset v. Mashantucket Pequot Museum and Res. Ctr., Inc., 221 F. Supp. 2d 271 (D. Conn. 2002), 242(n132) Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000), 297–98(n61) Bay Mills Indian Cmty. v. State, 626 N.W.2d 169 (Mich. Ct. App. 2001), 486(n154) Bay View, Inc. v. United States, 46 Fed. Cl. 494 (2000), 84(n40) Bay View, Inc. v. United States, 278 F.3d 1259 (Fed. Cir. 2001), 21(n100) Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936), 384(n3) Beams v. Norton, 327 F. Supp. 2d 1323 (D. Kan. 2004), 55(n44); aff’d, 141 Fed Appx. 769 (10th Cir. 2005), 55(n44) Bear Don’t Walk v. Confederated Salish and Kootenai Tribal Council, 31 Indian L. Rep. 6061 (Confederated Salish & K.Tr. Ct. App. May 28, 2004), 319(n195) Bear Lodge Multiple Use Association v. Babbitt, 175 F.3d 814 (10th Cir. 1999), 140(n508) Bear v. Patton, 451 F.3d 639 (10th Cir. 2006), 272(n247) Becker County Welfare Dep’t v. Bellcourt, 453 N.W.2d 543 (Minn. Ct. App. 1990), 275(n262) Beecher v. Mohegan Tribe, 918 A.2d 880 (Conn. 2007), 307(n103) Beecher v. Wetherby, 95 U.S. 517 (1877), 81(n13) Begay v. Roberts, 807 P.2d 1111 (Ariz. Ct. App. 1990), 269(n239) Bell v. Executive Comm., 18 Indian L. Rep. 6041 (Wichita Ct. Indian App. Sept. 25, 1990), 329(n195) Benally v. Marcum, 553 P.2d 1270 (N.M. 1976), 165(n119) Berrey v. Asarco Inc., 439 F.3d 636 (10th Cir. 2006), 307(n103)

Table of Cases Bess v. Spitzer, 459 F. Supp. 2d 191 (E.D.N.Y. 2007), 231(n36) B.H. v. People in Interest of X.H., 138 P.3d 299 (Colo. 2006), 584(n47), 585(n49) Big Horn County Elec. Coop. v. Adams, 219 F.3d 944 (9th Cir. 2000), 201(n224), 241(n93), 255(n169), 467–68 Big Spring v. USBIA, 767 F.2d 614 (9th Cir. 1985), 300(n71) Bigelow v. Michigan Dep’t of Natural Resources, 727 F. Supp. 346 (W.D. Wis. 1978), vacated on other grounds, 970 F.2d 154 (6th Cir. 1992), 396(n92) Billie v. Abbott, 16 Indian L. Rep. 6021 (Nav. S. Ct. Nov. 10, 1988), 253(n156) Bishop Paiute Tribe v. County of Inyo, 291 F.3d 549 (9th Cir. 2002), vacated and remanded, 123 S. Ct. 1887 (2003), 298(n64) Bittle v. Bahe, 2008 WL 314902 (Okla. 2008), 300(n73) Blackfeather v. United States, 190 U.S. 368 (1903), 395(n88) Blackfeet Indian Tribe v. Montana Power Co., 838 F.2d 1055 (9th Cir. 1988), 119(n313) Blake v. Arnett, 663 F.2d 906 (9th Cir. 1981), 389(n40) Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991), 229, 230(n30), 264(n218), 287(n4), 386(n15) Blue Legs v. USBIA, 867 F.2d 1094 (8th Cir. 1989), 245(n115), 631(n57) Blunk v. Arizona Dep’t of Transp., 177 F.3d 879 (9th Cir. 1999), 210(n278) Board of County Comm’rs v. Seber, 318 U.S. 705 (1943), 50(n8) Board of Trustees v. Wynde, 18 Indian L. Rep. 6033 (Northern Plns. Intertr. Ct. App. May 3, 1990), 330(n196) Boe v. Fort Belknap Indian Cmty., 642 F.2d 276 (9th Cir. 1981), 227(n14) Bonnette v. Tunica-Biloxi Indians, 873 So. 2d 1 (La Ct. App. 2003), 306(n100) Bonnichsen v. United States, 969 F. Supp. 628 (D. Or. 1997), 130(n416) Bonnichsen v. United States, 528 U.S. 495 (2000), 127(n386) Bonnichsen v. United States, 217 F. Supp. 2d 1116 (D. Or. 2002), aff’d, 367 F.3d 864 (9th Cir. 2004), 128(n391), 129(n402), 130–32

Table of Cases Booker v. United States, 543 U.S. 220 (2005), 149(n39) Booth v. State, 903 P.2d 1079 (Alaska Ct. App. 1995), 154(n72) Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004), 235(nn59, 61) Borax Consol., Ltd. v. City of Los Angeles, 296 U.S. 10 (1935), 99(n136) Bordeaux v. Hunt, 621 F. Supp. 637 (D.S.D. 1985), aff ’d, 809 F.2d 1317 (8th Cir. 1987), 37(n183) Boudman v. Aroostook Band of Micmac Indians, 54 F. Supp. 2d 44 (D. Me. 1999), 299(n70), 325(n188) Bowen v. Doyle, 880 F. Supp. 99 (W.D.N.Y. 1995), 246(n121), 272(n247), 275(n263) Bowen v. Doyle, 230 F.3d 525 (2d Cir. 2000), 231(n36) Bradley v. Crow Tribe, 67 P.3d 306 (Mont. 2003), 302(n81) Bradley v. Deloria, 587 N.W.2d 591 (S.D. 1998) (per curiam), 272(n243) Bray v. Commissioner of Pub. Safety, 555 N.W.2d 757 (Minn. Ct. App. 1996), 158(n91) Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408 (1989), 192–94, 197(n195), 199(n208), 201, 204(n245), 231(n37), 253, 340(n67), 381–82(n333), 430, 432, 433, 440, 454(n221), 466(n15) British-American Oil Producing Co. v. Board of Equal., 299 U.S. 159 (1936), 111(n242) Brown v. Babbitt Ford, Inc., 571 P.2d 689 (Ariz. Ct. App. 1977), 281(n296) Brown v. Burns, 996 F.2d 219 (9th Cir. 1993), 164(n115) Brown v. District Court, 777 P.2d 877 (Mont. 1989), 163(n112), 173(n31) Brown v. Washoe Housing Authority, 835 F.2d 1327 (10th Cir. 1988), 244(n114) Brown on Behalf of Brown v. Rice, 760 F. Supp. 1459 (D. Kan. 1991), 592(n75) B.R.T. v. Executive Dir., 391 N.W.2d 594 (N.D. 1986), 610(n139), 615(n156) Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412 (8th Cir. 1996), 547(n190) Bruguier v. Class, 599 N.W.2d 364 (S.D. 1999), 94(n108) Bruner v. United States, 340 F. Supp. 2d 1204 (N.D. Okla. 2004), aff’d in part

665 and vacated in part, 159 Fed. Appx. 859 (10th Cir. 2005), 507(n309) Bryan v. Itasca County, 426 U.S. 373 (1976), 153(n71), 218(n323), 274–75, 276, 367(n244), 483, 516–17 Bryant v. Saginaw Chippewa Tribal Clerk, 32 Indian L. Rep. 6090 (Saginaw Chippewa Tr. Ct. App. Mar. 21, 2005), 327(n193) Bugenig v. Hoopa Valley Indian Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), 173– 74, 247(n126), 250–51(n144), 386(n19) Building & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218 (1993), 211(n279) Building Inspector v. Wampanoag Aquinnah Shellfish Hatchery Corp. 818 N.E.2d 1040 (Mass. 2004), 304(n91) Bullcreek v. USDOI, 426 F. Supp. 2d 1221 (D. Utah 2006), 227–28(n14) Burdett v. Harrah’s Kan. Casino Corp., 260 F. Supp. 2d 1109 (D. Kan. 2003), 570(n314) Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006), 281(n296) Burgess v. Watters, 467 F.3d 676 (7th Cir. 2006), 158(n92), 276–77(n270) Burks v. Arkansas Dep’t of Human Servs., 61 S.W.3d 184 (Ark. Ct. App. 2001), 608(n129) Burlington N.R.R. v. Blackfeet Tribe, 924 F.2d 899 (9th Cir. 1991), 249(n135), 468 Burlington N.R.R. v. Crow Tribal Council, 940 F.2d 1239 (9th Cir. 1991), 234(n56), 241–42 Burlington N.R.R. v. Red Wolf, 196 F.3d 1059 (9th Cir. 1999), 236(n65), 237(n68), 242(n98), 255(n168), 256(n177) Burlington N.R.R. v. Vaughn, 509 F.3d 1085 (9th Cir. 2007) 315(n135) Burlington N. Santa Fe Ry. v. Assiniboine and Sioux Tribes, 323 F.3d 767 (9th Cir. 2003), 468 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932), 479 Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006), 237(n69), 261–62(n205) Burt Lake Band of Ottawa and Chippewa Indians v. Norton, 217 F. Supp. 2d 76 (D.D.C. 2002), 65(n101) Buster v. Wright, 135 F. 947 (8th Cir. 1905), appeal dismissed, 203 U.S. 599 (1906), 191(n163), 199(n209), 200

666 Buttz v. Northern Pac. R.R., 119 U.S. 55 (1886), 81(nn12, 13), 82(n20) Buzuliz v. Mohegan Sun Casino, 871 N.E. 2d 527 (Mass. App. Ct. 2007), 306(n100) Byzewski v. Byzewski, 429 N.W.2d 394 (N.D. 1988), 270(n241) C & B Investments v. Wisconsin Winnebago Health Dep’t, 542 N.W.2d 168 (Wis. Ct. App. 1995), 311(n118) C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411 (2001), 304–5, 311(n117), 313 Cabazon Band of Mission Indians v. NIGC, 14 F.3d 633 (D.C. Cir. 1994), 536, 537(n146), 551 Cabazon Band of Mission Indians v. Smith, 388 F.3d 691 (9th Cir. 2004), 220–21, 222, 634–35(n69) Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050 (9th Cir. 1997), 558(n239), 563(n267), 641(n81) Cachil Dehe Band of Wintun Indians v. California, 536 F.3d 1034 (9th Cir. 2008), 558(n241) California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), 69(n128), 144(n11), 157(nn85, 87), 164–65(n118), 210(n278), 212(n287), 213(n288), 218(n323), 219–20, 271(n242), 470, 513, 518, 520, 540(n163), 551(nn210, 212) California v. Celtor Chem. Corp., 901 F. Supp. 1481 (N.D. Cal. 1995), 435–36, 457–58 California v. Quechan Tribe, 595 F.2d 1153 (9th Cir. 1979), 298(n64) California v. United States, 235 F.2d 647 (9th Cir. 1956), 366(n240) California v. United States, 438 U.S. 645 (1978), 334(n18), 354(n166), 368(n249) California v. United States Dep’t of Navy, 845 F.2d 222 (9th Cir. 1988), 440(n106) California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987), 440(n110) California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987), 211(n279) California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), 334(n18), 363(n215) California State Bd. of Equal. v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985) (per curiam), 499(n256)

Table of Cases Cal. Valley Miwot Tribe v. United States, 515 F.3d 1262 (D.C. Cir. 2008), 40(n200) Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108 (S.D. 1998), 303–4(n90) Cameron v. Bay Mills Indian Cmty., 843 F. Supp. 334 (W.D. Mich. 1994), 226(n8), 309(n112) Campo Band of Mission Indians v. Bluehawk, 39 Cal. Rptr. 3d 875 (Ct. App. 2006), 305(n99), 306(n100) Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313 (N.D.N.Y. 2003), 80(n5), 85(n47), 295(n51), 307(n103) Cappaert v. United States, 426 U.S. 128 (1976), 331(n1), 337–38, 339(nn59, 60), 341, 354–55, 370(n267), 377(n307) Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007) (en banc), cert. granted, 128 S. Ct. 1443 (2008), 53(nn33, 34), 75(n167), 78(n188), 90(n81), 91(n89), 525(n94) Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1982), 199(n209), 430(n21) Carl N. v. Stae Dep’t of Health & Soc. Servs., 102 P.3d 932 (Alaska 2004), 605(n121), 606(n124) Carmenoros v. Southern Ute Tribe, 18 Indian L. Rep. 6147 (Southwestern Intertr. Ct. App. Aug. 29, 1991), 329(n193) Carruthers v. Flaum, 365 F. Supp. 2d 448 (S.D.N.Y. 2005), 288(n8) Carson v. Barham, 30 Indian L. Rep. 6126 (Colv. Ct. App. Apr. 22, 2003), 286(n317) Carson v. Carson, 13 P.3d 523 (Or. Ct. App. 2000), 614–15(n155) Carson-Truckee Water Conserv. Dist. v. Watt, 549 F. Supp. 704 (D. Nev. 1982), aff ’d in part, 741 F.2d 257 (9th Cir. 1984), 352(n152) Cartwright v. Public Service Company, 343 P.2d 654 (N.M. 1958), 337(n40) Casino Res. Corp. v. Harrah’s Entm’t Inc., 243 F.3d 435 (8th Cir. 2001), 519(n54) Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998), 485–86 Cass County Joint Water Res. Dist. v. 1.43 Acres of Land, 643 N.W.2d 685 (N.D. 2002), 85(n44), 291(n36) Cassidy v. United States, 875 F. Supp. 1438 (E.D. Wash. 1994), 386(n19), 390(n51)

Table of Cases Castro Romero v. Becken, 256 F.3d 349 (5th Cir. 2001), 129(n404) Catawba Indian Tribe v. South Carolina, 718 F.2d 1291 (4th Cir. 1983), aff ’d on reh’g en banc, 740 F.2d 305 (1984) (per curiam), rev’d, 476 U.S. 498 (1986), 65–66(n104), 559(n243) Caterpillar Inc. v. Williams, 482 U.S. 386 (1987), 247(n128) Cates v. California Gambling Control Comm’n, 65 Cal. Rptr. 3d 513 (Ct. App. 2007), 559(n242) Catholic Soc. Servs., Inc. v. C.A.A., 783 P.2d 1159 (Alaska 1989) (per curiam), 590(n67) Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 144 F. Supp. 2d 215 (S.D.N.Y. 2001), modified on other grounds, 154 F. Supp. 2d 696 (S.D.N.Y. 2001), 248(n132), 301(n76), 545–46(nn183, 184) Cayuga Indian Nation of New York v. Village of Unino Springs, 317 F. Supp. 2d 128 (N.D.N.Y. 2004), 89(n76) Cayuga Indian Nation v. Cuomo, 565 F. Supp. 1297 (N.D.N.Y. 1983), 80(n4), 229(n22) Cayuga Indian Nation v. Cuomo, 667 F. Supp. 938 (N.D.N.Y. 1987), 65–66(n104) Cayuga Indian Nation v. Cuomo, 771 F. Supp. 19 (N.D.N.Y. 1991), 84–85(n42) Cayuga Indian Nation v. Pataki, 79 F. Supp. 2d 78 (N.D.N.Y. 1999), 85(n47) Cayuga Indian Nation v. Pataki, 165 F. Supp. 2d 266 (N.D.N.Y. 2001), 85(n47) Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), 86(n52) Cayuga Indian Nation v. Village of Union Springs, 293 F. Supp. 2d 183, 194 (N.D.N.Y. 2003), 307(n104) Cayuga Indian Nation v. Village of Union Springs, 317 F. Supp. 2d 128, 139–40 (N.D.N.Y. 2004), 94(n106) Cayuga Indian Nation v. Village of Union Springs, 390 F. Supp. 2d 203, 205, 206 (N.D.N.Y. 2005), 86(n52) CBA Credit Servs. v. Azar, 551 N.W.2d 787 (N.D. 1996), 559(n242) C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. Ct. App. 1992), 597(n91)

667 Central Machinery Co. v. Arizona State Tax Comm’n, 448 U.S. 160 (1980), 212(n286), 214(n292), 503 Central Machinery—Department of Taxation and Finance v. Milhelm Attea & Bros., 512 U.S. 61 (1994), 490(n181) Cermak v. United States, 478 F.3d 953 (8th Cir. 2007), 120(n321) Chance v. Coquille Indian Tribe, 963 P.2d 638 (Or. 1998), 308–9(n111) Charrier v. Bell, 547 F. Supp. 580 (M.D. La. 1982), 229(n22) Chase v. McMasters, 405 F. Supp. 1297 (D.N.D. 1975), aff ’d, 573 F.2d 1011 (8th Cir. 1978), 76(n174), 90(n80) Chase v. McMasters, 573 F.2d 1011 (8th Cir. 1978), 91(n87) Chayoon v. Chao, 355 F.3d 141 (2d Cir. 2004), 297(n61), 315(n135) Chayoon v. Sherlock, 877 A.2d 4 (Conn. App. Ct. 2005), 304(n92), 308–9(n111), 315(n135) Chemehuevi Indian Tribe v. California State Bd. of Equal., 757 F.2d 1047 (9th Cir.), rev’d on other grounds, 474 U.S. 9 (1985) (per curiam), 307(n103) Chemehuevi Indian Tribe v. Wilson, 987 F. Supp. 804 (N.D. Cal. 1997), 562(n265) Cheree L. v. Arizona Dep’t of Econ. Sec., 66 P.3d 1248 (Ariz. Ct. App. 2003), 610(n139) Cherino v. Cherino, 176 P.3d 1184 (N.M. Ct. App. 2007), 574–5(n20) Cherokee Nation v. Babbitt, 117 F.3d 1489 (D.C. Cir. 1997), 65(n101) Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), 1–2, 3, 4, 5(n21), 7, 50(n8), 186(n130), 287(n1), 386(n15) Cherokee Nation v. Nations Bank N.A., 67 F. Supp. 2d 1303 (E.D. Okla. 1999), 234(n56), 308–9(n111) Cherokee Nation v. Nomura, 160 P.3d 967 (Okla. 2007), 593–94(n80) Cherokee Nation v. Norton, 241 F. Supp. 2d 1368 (N.D. Okla. 2002), 63(n95) Cherokee Nation v. Norton, 389 F.3d 1074 (10th Cir. 2004), 64(n99) Cherokee Nation v. United States, 73 Fed. Cl. 467 (2006), 25(n117) Cheromiah v. United States, 55 F. Supp. 2d 1295 (D.N.M. 1999), 204(n245), 264(n217)

668 Chester County Dep’t of Soc. Servs. v. Coleman, 399 S.E.2d 773 (S.C. 1990) (per curiam), 597(n91) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 26, 132, 435(n68), 444–45 Cheyenne River Housing Authority v. Howard, 32 Indian L. Rep. 6165 (Cheyenne R. Sx. Ct. App. Sept. 23, 2005), 327(n193) Cheyenne River Sioux Gas Co. v. Dupris, 32 Indian L. Rep. 6137 (Cheyenne R. Sx. Ct. App., Aug. 25, 2005), 327(n193) Cheyenne River Sioux Tribe Tel. Auth. v. Public Utils. Comm’n, 595 N.W.2d 604 (S.D. 1999), 212(n286) Cheyenne River Sioux Tribe v. Dupree Am. Legion Club, 16 Indian L. Rep. 6067 (Chey. R. Sx. Tr. Ct. Feb. 6, 1989), 253(n156) Cheyenne River Sioux Tribe v. Kempthorne, 496 Supp. 2d 1059 (D.S.D. 2007), 45(n233) Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273 (8th Cir. 1993), 518(n51), 522, 540(n161), 550(n205), 560(n248), 564(n270) Cheyenne-Arapaho Tribes v. Oklahoma, 618 F.2d 665 (10th Cir. 1980), 388(n34) Chickaloon-Moose Creek Native Ass’n v. Norton, 360 F.3d 972 (9th Cir. 2004), 25(n117) Chickasaw Nation v. Oklahoma ex rel. Oklahoma Tax Commission, 31 F.3d 964 (10th Cir. 1994), 497(n237) Chickasaw Nation v. Oklahoma Tax Comm’n, 31 F.3d 964 (10th Cir. 1994), aff ’d in part and rev’d in part, 515 U.S. 450 (1995), 92(n92) Chickasaw Nation v. United States, 208 F.3d 871 (10th Cir. 2000), aff ’d, 534 U.S. 84 (2001), 25(n119), 26(n122), 473(n59) Chickasaw Nation v. United States, 534 U.S. 84 (2001), 507–8(nn311, 312), 518(n52) Chilkat Indian Village v. Johnson, 870 F.2d 1469 (9th Cir. 1989), 227(n14), 228(n15), 231(n37), 286(n318) Chino v. Chino, 561 P.2d 476 (N.M. 1977), 267–68, 270–71(n241) Chippewa-Ottawa Tribes v. Payment Jr., 18 Indian L. Rep. 6141 (Chippewa-Ottawa Consv. Ct. May 29, 1991), 318(n145)

Table of Cases Chischilly v. General Motors Acceptance Corp., 629 P.2d 340 (N.M. Ct. App. 1980), rev’d on other grounds, 628 P.2d 683 (N.M. 1981), 281(n295) Chiwewe v. Burlington N. & Santa Fe Ry., 239 F. Supp. 2d 1213 (D.N.M. 2002), 237(n69) Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), 24(n113), 101 Choctaw Nation v. United States, 318 U.S. 423 (1943), 24(n112), 25(n118) Choctaw, O. & G.R.R. v. Harrison, 235 U.S. 292 (1914), 478(n95) Chouteau v. Molony, 57 U.S. (16 How.) 203 (1853), 89(n74) Christian Children’s Fund Inc. v. Crow Creek Sioux Tribal Court, 103 F. Supp. 2d 1161 (D.S.D. 2000), 250(n141), 255(n168) Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir. 1998), 347(n113) Citizen Band Potawatomi Indian Tribe v. Graves, 514(n24) Citizen Band Potawatomi Indian Tribe v. Oklahoma Tax Comm’n, 888 F.2d 1303 (10th Cir. 1989), aff ’d in relevant part, 498 U.S. 505 (1991), 71(n142), 469(n39) Citizens Against Casino Gambling v. Kempthorne, 471 F. Supp. 2d 295 (W.D.N.Y. 2007), 521(n64) amended on recons. No. 06-CV-0001S 2007 WL 1200473 (W.D.N.Y. Apr. 20, 2007), 544(n177), 558(n241) Citizens Exposing Truth about Casinos v. Kempthorne, 492 F.3d 460 (D.C. Cir. 2007), 76(n179), 520(n59), 521(n65), 524(n91), 528–29(n109) Citizens for Responsible Dev. v. City of Hesperia, 60 Cal. Rptr. 3d 124 (Ct. App. 2007), 625(n25) Citizens to Enforce CEQA v. City of Rohnert Park, 33 Cal. Rptr. 3d 2084 (Ct. App. 2005), 218(n323) City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), 175(n44), 442(n122), 446(n146) City of Boerne v. Flores, 521 U.S. 507 (1997), 136(n476), 137–38 City of Cut Bank v. Bird, 38 P.3d 804 (Mont. 2001), 166–67(nn126, 127), 167–68(n131) City of Pocatello v. State, 180 P.3d 1048 (Idaho 2008), 338(n47), 362(n210)

Table of Cases City of Roseville v. Norton, 219 F. Supp. 2d 130 (D.D.C. 2002), 524–25(n91) aff’d, 348 F.3d 1020, 1029–30 (D.C. Cir. 2003), 520(n60), 531(n121) City of Sault Ste. Marie v. Andrus, 458 F. Supp. 465 (D.D.C. 1978), 90(n81), 91(n89) City of Sault Ste. Marie v. Andrus, 532 F. Supp. 157 (D.D.C. 1980), 91(n86), 530(n115) City of Sherrill v. Oneida Indian Nation, 544 U.S. 197(2005), 85–86, 89(n76), 486(n154) City of Tacoma v. Andrus, 457 F. Supp. 342 (D.D.C. 1978), 91(n86) City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir. 1993), 163(n114) C.J. v. State Dep’t of Health and Soc. Servs., 18 P.3d 1214 (Alaska 2001), 603(n114), 605(n121) C.L. v. P.C.S., 17 P.3d 769 (Alaska 2001), 611(n143) Clark v. Allen, 27 Indian L. Rep. 6077 (Nav. S. Ct. Sept. 29, 1999), 256–57(n177) Clark v. Richter, 27 Indian L. Rep. 6166 (Ft. Peck Tr. Ct. App. Feb. 18, 2000), 256–57(n177) Clark v. Smith, 38 U.S. (13 Pet.) 195 (1839), 81(n12) Claymore v. Serr, 405 N.W.2d 650 (S.D. 1987), 576(n26), 579(n33) Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999), aff ’d, 240 F.3d 1081 (D.C. Cir. 2001), 121(n332) Cobell v. Kempthorne, 455 F.3d 317 (D.C. Cir. 2006), 23(n108) Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001), 17(n85), 18(n90), 19(n92), 20(n97), 22(n102) Cobell v. Norton, 392 F.3d 461 (D.C. Cir. 2004), 17(n85), 22(n102), 23(n108) Cobell v. Norton, 428 F.3d 1070, 1076 (D.C. Cir. 2005), 23(n106) Coeur d’Alene Tribal Farm v. Donovan, 751 F.2d 1113 (9th Cir. 1985), 297–98(n61) Coeur d’Alene Tribe v. AT&T Corp., 23 Indian L. Rep. 6060 (Coeur d’Alene Tr. Ct. Feb. 28, 1996), 253(n156) Coeur d’Alene Tribe v. Hammond, 224 F. Supp. 2d 1264 (D. Idaho 2002), 495(n221)

669 Coeur d’Alene Tribe v. Hammond, 384 F.3d 674 (9th Cir. 2004), 471(n52), 494(n219) Coeur d’Alene Tribe v. Idaho, 51 F.3d 876 (9th Cir. 1995) (per curiam), 540(n161), 550(n205) Cohen v. Little Six, Inc., 543 N.W.2d 376 (Minn. Ct. App. 1996), aff ’d, 561 N.W.2d 889 (Minn. 1997), 274(n261) Colorado River Indian Tribe v. NIGC, 383 F. Supp. 2d 123 (D.D.C. 2005), aff’d, 466 F.3d 134 (D.C. Cir. 2006), 548–49(n197) Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), 231(n35), 245(n118), 366, 367(n244), 368–69, 373(n280), 377(n303) Columbia Ct. of App. v. Feldman, 460 U.S. 462 (1983), 372(n275) Colville Confederated Tribes v. Bearcub, 35 Indian L. Rep. 6011 (Colville Confederated Tr. Ct. Feb. 5, 2008), 327(n193) Colville Confederated Tribes v. Marchand, 33 Indian L. Rep. 6036 (Colville Confederated Tr. Ct. Feb. 7, 2006), 327–28(n193) Colville Confederated Tribes v. Walton, 460 F. Supp. 1320 (E.D. Wash. 1978), aff ’d on other grounds, 647 F.2d 42 (9th Cir. 1981), 333(n12), 336(n32), 341, 339(n58), 342(n80), 356(n184), 357(n186), 358(n191), 362, 382, 445 Comanche Indian Tribe v. Hovis, 53 F.3d 298 (10th Cir. 1995), 615(n159), 618(n173) Comanche Nation v. United States, 393 F. Supp. 2d 1196 (W.D. Okla. 2005), 295(n51) Committee for Better Tribal Gov’t v. Southern Ute Election Bd., 17 Indian L. Rep. 6095 (Southern Ute Tr. Ct. Aug. 13, 1990), 329(n195) Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), 480 Commonwealth v. Maxim, 708 N.E. 2d 636 (Mass. 1999), 393(n69) Comstock Oil & Gas, Inc. v. Alabama and Coushatta Indian Tribes, 261 F.3d 567 (5th Cir. 2001), 235(n59), 313–14(n132) Confederated Bands of Ute Indians v. United States, 330 U.S. 169 (1947), 89(n75) Confederated Salish and Kootenai Tribes v. Clinch, 158 P.3d 377 (Mont. 2007), 217(n317), 365, 372(n277), 373(n279), 378(n312)

670 Confederated Salish and Kootenai Tribes v. Montana, 750 F. Supp. 446 (D. Mont. 1990), 391(n57) Confederated Salish and Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir. 1982), 103, 390(n50), 429 Confederated Salish and Kootenai Tribes v. Simonich, 29 F.3d 1398 (9th Cir. 1994), 375 Confederated Salish and Kootenai Tribes v. Stults, 59 P.3d 1093 (Mont. 2002), 356(nn177, 178), 365 Confederated Salish and Kootenai Tribes v. United States, 343 F. ed 1193 (9th Cir. 2003), 26(n124), 75(n168) Confederated Tribes and Bands of Yakima Indian Nation v. Baldrige, 605 F. Supp. 833 (W.D. Wash. 1985), 420(n269) Confederated Tribes and Bands of Yakama Indian Nation v. Baldrige, 898 F. Supp. 1477 (W.D. Wash. 1995), aff ’d, 91 F.3d 1366 (9th Cir. 1996), 420(n269) Confederated Tribes and Bands of Yakima Nation v. County of Yakima, 903 F.2d 1207 (9th Cir. 1990), aff ’d, 502 U.S. 251 (1992), 340(n67), 436(n76), 484(n146) Confederated Tribes and Bands of Yakama Indian Nation v. Locke, 176 F.3d 467 (9th Cir. 1999), 561(n258) Confederated Tribes of Chehalis Reserv. v. Johnson, 958 P.2d 260 (Wash. 1998), 519(n54), 559(n242) Confederated Tribes of Chehalis Indian Reserv. v. Washington, 96 F.3d 334 (9th Cir. 1996), 26(n125), 392(n66), 395(nn84, 90) Confederated Tribes of Colville Reserv. Tribal Credit v. White (In re White), 139 F.3d 1268 (9th Cir. 1998), 307(n105) Confederated Tribes of Colville Indian Reserv. v. Washington, 446 F. Supp. 1339 (E.D. Wash. 1978), rev’d in part on other grounds, 447 U.S. 134 (1980), 229(n22) Confederated Tribes of Colville Indian Reserv. v. Washington, 591 F.2d 89 (9th Cir. 1979), 386(n22), 391(n60) Confederated Tribes of Colville Reserv. v. Superior Court, 945 F.2d 1138 (9th Cir. 1991), 615(n159) Confederated Tribes of Colville Reserv. v. Washington, 938 F.2d 146 (9th Cir. 1991), 157(n89)

Table of Cases Confederated Tribes of Colville Reserv. v. Washington Dep’t of Licensing, No. CY-92-248-JLQ (E.D. Wash. 1994), 654(n100) Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians v. Babbitt, 116 F. Supp. 2d 155 (D.D.C. 2000), 525(n93), 530(n114, 116), 531(n118) Confederated Tribes of Grand Ronde v. Strategic Wealth Managment, Inc., 32 Indian L. Rep. 6148 (Grand Ronde Comty. Tr. Ct., Aug. 5, 2005), 256–57(n177), 330(n196) Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481 (9th Cir. 1998), 215(n306), 519(n54), 559(n242) Confederated Tribes of Siletz Indians v. United States, 110 F.3d 688 (9th Cir. 1997), 527 Connecticut ex rel. Blumenthal v. United States Dep’t of Interior, 228 F.3d 82 (2d Cir. 2000), 90(n80) Conrad Investment Co. v. United States, 161 F. 829 (9th Cir. 1908), 344 Cordova v. Holwegner, 971 P.2d 531, 547 (Wash. Ct. App. 1999), 256(n176) Cornells v. Shannon, 63 F. 305 (8th Cir. 1894), 281(n294) Cornelius v. Kansas Dep’t of Revenue, 180 P.3d 579 (Kan. Ct. App. 2008), 633 Corrigan v. Brown, 169 F. 477 (9th Cir. 1907), 352(n153) Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), 9(n40), 213(n290), 214–15, 224(n364), 385(n14), 386(n20), 474(n68), 475(nn74, 75), 476, 480–82, 489 Cotton Petroleum v. State, 745 P.2d 1170 (N.M. Ct. App. 1987), aff ’d, 490 U.S. 163 (1983), 7(n27), 106(n196), 480(n110) County Dep’t of Children & Family Servs. v. Superior Ct., 19 Cal. Rptr. 3d 155 (Ct. App. 2004), 614(n154) County of Amador v. City of Plymouth, 57 Cal. Rptr. 3d 704 (Ct. App. 2007), 625(n25) County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) (en banc), 237(n68), 255(n168), 256(n177) County of San Diego v. Babbitt, 847 F. Supp. 768 (S.D. Cal. 1994), aff ’d, 61 F.3d 909 (9th Cir. 1995), 458(n265)

Table of Cases County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251 (1992), 24(n113), 37(n182), 215–16, 218(n323), 391(n55), 436(n76), 469(n40), 470(n44), 473(n60), 484, 485 Cramer v. United States, 261 U.S. 219 (1923), 87–88 Crawford v. Genuine Parts Co., 947 F.2d 1405 (9th Cir. 1991), 235(n61), 241, 242 Cree v. Flores, 157 F.3d 762 (9th Cir. 1998), 26(n11), 210(n278), 405(n159), 473(n58), 508 Cree v. Waterbury, 873 F. Supp. 404 (E.D. Wash. 1994), rev’d in part on other grounds, 78 F.3d 1400 (9th Cir. 1996), 386(n21), 396(n98), 397(n101) Crow Tribe v. Montana, 650 F.2d 1104 (9th Cir. 1981), amended, 665 F.2d 1390 (9th Cir. 1982), 475(n75), 480(n109) Crow Tribe v. Montana, 819 F.2d 895 (9th Cir. 1987), aff ’d mem., 484 U.S. 997 (1988) 169(n3), 214(n300) Crow Tribe v. Repsis, 73 F.3d 982 (10th Cir. 1995), 401(n131) Crow v. Gullet, 706 F.2d 856 (8th Cir. 1983), 135(n463) Crystal R. v. Superior Court, 69 Cal. Rptr. 2d 414 (Ct. App. 1997), 577(n28), 579(n33) Cutright v. State, 244 S.W.2d 702 (Ark. Ct. App. 2006), 611–12(n144) Dacotah Properties–Richfield, Inc. v. Prairie Island Indian Cmty., 520 N.W.2d 167 (Minn. Ct. App. 1994), 309–10(n112) Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408 (Wis. 2006), 553(n222), 554–55(n229), 559(n243), 623(n13) Dalehite v. United States, 346 U.S. 15 (1953), 367(n244) Dalton v. Pataki, 835 N.E.2d 1180 (N.Y. 2005), 553(n222) Danka Funding Co. v. Sky City Casino, 747 A.2d 837 (N.J. Super. Law Div. 1999), 304(n91) Danks v. Fields, 696 F.2d 572 (8th Cir. 1982), 112(n251) Dark-Eyes v. Comm’r, 887 A.2d 848 (Conn. 2006), 73(n161), 469(n40) Davids v. Coyhis, 869 F. Supp. 1401 (E.D. Wis. 1994), 313–14(n132), 543(n174) Davidson v. Mohegan Gaming Authority, 903 A.2d 228 (Conn. App. Ct. 2006), 311(n118)

671 Davis ex rel Davis v. United States, 343 F.3d 1282 (10th Cir. 2003), 83(n30) Davis v. Keplin, 18 Indian L. Rep. 6148 (Turtle Mt. Tr. Ct. Aug. 13, 1990), 329(n195) Davis v. Morton, 469 F.2d 593 (10th Cir. 1972), 114(n264) Davis v. Muellar, 643 F.2d 521 (8th Cir. 1981), 166(n127) Davis v. United States, 192 F.3d 951 (10th Cir. 1999), 295(n51) Dawavendewa v. Salt River Project Agric. Improvement and Power Dist., 276 F.3d 1150 (9th Cir. 2002), 302(n80) Day v. Montana Dep’t of Soc. & Rehab. Servs., 900 P.2d 296 (Mont. 1995), 283(n307) Day Wholesale, Inc. v. State, 856 N.Y.S.2d 808 (A.D. 2008), 502(n276) DeCoteau v. District County Court, 420 U.S. 425 (1975), 25(n118), 69(n128), 74(n163), 75(n170), 78(n184), 92(nn93, 98), 93(n99), 94(n105), 96(nn116, 117, 122, 124), 169(n3), 210(n278), 340(n64) DeCoteau v. Fort Peck Tribes, 30 Indian L. Rep., 6069 (Ft. Peck Tr. Ct. App., Dec., 5, 2002), 329(n195) D.E.D. v. Alaska, 704 P.2d 774 (Alaska 1985), 575(n23) DeFeo v. Ski Apache Resort, 904 P.2d 1065 (N.M. Ct. App. 1995), 309(n112) Delaware Nation v. Pennsylvania, 446 F.3d 410 (3d Cir. 2006), 82(n20), 87(n58) Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977), 9(n38), 10(n42), 19(n94), 63(n95) Dellmuth v. Muth, 491 U.S. 223 (1989), 229(n23) DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510 (8th Cir. 1989), 325(n182) Demontiney v. United States, 255 F.3d 801 (9th Cir. 2001), 46(n236) Department of Ecology v. Yakima Reserv. Irr. Dist., 850 P.2d 1306 (Wash. 1993), 338(n51), 341(n72), 342(n80), 343(n84), 344(n91), 416(n234) Department of Employment v. United States, 385 U.S. 355 (1966), 228(n18) Department of Game v. Puyallup Tribe, 422 P.2d 754 (Wash. 1967), 403(n145), 404(n150)

672 Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973), 404(n149), 405(nn157, 158) Department of Game v. Puyallup Tribe, Inc., 548 P.2d 1058 (Wash. 1976), aff ’d, 433 U.S. 165 (1977), 404(n155) Department of Tax’n & Fin. v. Milhelm Attea & Bros., Inc., 512 U.S. 61 (1994), 171(n12), 473(n63), 477, 501–2, 632(n63) DeSouza v. Mashantucket Pequot Tribe, 31 Indian L. Rep. 6015 (Mash. Peq. Tr. Ct. Dec. 29, 2003), 300(n196) Devils Lake Sioux Tribe v. North Dakota Pub. Serv. Comm’n, 896 F. Supp. 955 (D.N.D. 1995), 197(n195) Dewberry v. Kulongoski, 406 F. Supp. 2d 1136 (D. Or. 2005), 550(n205), 553(n222) Dewberry v. Kulongoski, 187 P.2d 220 (Or. Ct. App. 2008), 295–96(n51), 300(n72), 558(n241), 623(n12) Diamond Game Enters., Inc. v. Reno, 230 F.3d 365 (D.C. Cir. 2000), 537(n146) Dickey v. Williams, 98 P.2d 604 (Okla. 1940), 112(n250) Dickinson v. Zurko, 527 U.S. 150 (1999), 175(n46) Diepenbrock v. Merkel, 97 P.3d 1063 (Kan. Ct. App. 2004), 270–71(n241) Dillon v. Yankton Sioux Tribe, 144 F.3d 581 (8th Cir. 1998), 304(n92), 310(n116), 311–12(n118) Diver v. Peterson, 524 N.W.2d 288 (Minn. Ct. App. 1994), 294(n48) Dixon v. Picopa Constr. Co., 772 P.2d 1104 (Ariz. 1989), 311(n118) D.J. v. P.C., 36 P.3d 663 (Alaska 2001), 575(n22) Doe ex rel. J. H. v. Santa Clara Pueblo, 154 P.3d 644 (N.M. 2007), 268(n238), 273(n256), 305(n99), 311(n117), 556(n234) Doe v. Hughes, Thorsness, Gantz, Powell and Brudin, 838 P.2d 804 (Alaska 1992), 610(n135) Doe v. Kamehameha Schools, 470 F.3d 827 (9th Cit. 2006), 58(n57) Doe v. Mann, 285 F. Supp. 2d 1229 (N.D. Cal. 2003), aff’d on other grounds, 415 F.3d 1038 (9th Cir. 2005), 276, 589(n64), 609–10(n134), 611–12(n144), 615(nn156, 159), 618(n170)

Table of Cases Doe v. Oneida Indian Nation, 717 N.Y.S.2d 417 (App. Div. 2000), 293(n47) Doe v. Santa Clara Pueblo, 154 P.3d 644 (N.M. 2007), 293(n47) DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001), 21(n100), 376(n298) Donnelly v. United States, 228 U.S. 243 (1913), 70(n136) Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), 27(n128) Doty-Jabbaar v. Dallas County Child Protective Servs., 19 S.W.3d 870 (Tex. App. 2000), 602(n112), 605(n121), 608–9(n130) Douglas v. Seacoast Prods., Inc., 431 U.S. 265 (1977), 384(n3) Draper v. United States, 164 U.S. 240 (1896), 145(n17), 159(n95) Drumm v. Brown, 716 A.2d 50 (Conn. 1998), 248(n132), 272(nn246, 248) Dry v. United States, 235 F.3d 1249 (10th Cir. 2000), 315(n135) Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), 325–26 Dubray v. Rosebud Hous. Auth., 12 Indian L. Rep. 6015 (Rosebud Sx. Tr. Ct. Feb. 1, 1985), 330(n196) Dugan v. Rank, 372 U.S. 609 (1963), 369–70 Duke v. Absentee Shawnee Tribe, 199 F.3d 1123 (10th Cir. 1999), 62(n90) DuMarce v. Scarlett 446 F.3d 1294 (Fed. Cir. 2006), 125(n372) Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294 (8th Cir. 1994), 96(n118), 241(n93), 246, 249(nn134, 136) Dupree v. Cheyenne River Hous. Auth., 16 Indian L. Rep. 6106 (Cheyenne R. Sx. Ct. App. Aug. 19, 1988), 330(n196) Durfee v. Duke, 375 U.S. 106 (1963), 280(nn285, 286, 288) Duro v. Reina, 495 U.S. 676 (1990), 7(n28), 10(n42), 149(n35), 151–52, 153, 163, 167(n130), 175–76, 177–85 passim, 187(n138), 196(n189), 212(n284), 268(n236), 316(n140), 317(n143), 319–20, 321, 325, 586(n52) Dwayne P. v. Superior Court, 126 Cal. Rptr. 2d 639 (Ct. App. 2002), 581(n38), 585(n49), 595–96(n85)

Table of Cases E.A. v. State Div. of Family and Youth Servs., 46 P.3d 986 (Alaska 2002), 602(n111), 605(n121) Eastern Band of Cherokee Indians v. North Carolina Wildlife Res. Comm’n, 588 F.2d 75 (4th Cir. 1978), 391(n58) Eastman v. United States, 31 F. Supp. 754, 760 (W.D. Wash. 1940), 117(n289) Edwards v. Neal, 26 Indian L. Rep. 6019 (Crow Ct. App. Aug. 13, 1998), 256–57(n177) Edwardsen v. Morton, 369 F. Supp. 1359 (D.C. Cir. 1973), 84(n41) EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001), 27–28(n129), 288(n8) EEOC v. Peabody W. Coal Co., 400 F.3d 774 (9th Cir. 2005), 295(n51) E.F.W. v. St. Stephen’s Mission Indian High Sch., 264 F.3d 1297 (10th Cir. 2001), 311(n118) El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999), 237(n70), 238–39, 255(n168), 260(n196) Ellenbast v. Watkins, 821 N.Y.S.2d 275 (App. Div. 2006), 288(n8) Elephant Butte Irr. Dist. v. Regents, 849 P.2d 372 (N.M. Ct. App. 1993), 370(n266) Elk v. Wilkins, 112 U.S. 94 (1884), 34–35, 53(n30) Elliot v. Capital Int’l Bank & Trust, Ltd., 870 F. Supp. 733 (E.D. Tex. 1994), 294(n48) Ellis v. Allied Snow Plowing, Removal & Sanding Servs. Corp., 838 A.2d 237 (Conn. Ct. App. 2004), 270–71(n241) Employment Division v. Smith, 494 U.S. 872 (1990), 135–36, 137 Enlow v. Moore, 134 F.3d 993 (10th Cir. 1998), 255(n168) Enriquez v. Superior Court, 565 P.2d 522 (Ariz. Ct. App. 1977), 270–71(n241) Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979), 84–85(n42) Erika K. v. Brett D., 75 Cal. Rpter 3d 152 (Ct. App. 2008), 610(n138) Esquiro v. Department of Revenue, 969 P.2d 381 (Or. 1998) (per curiam), 506–7(n306) Estate of Standing Bear v. Belcourt, 631 P.2d 285 (Mont. 1981), 269(n239) Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989), 300(n71)

673 Evans v. Native Village of Selawik IRA Council, 65 P.3d 58 (Alaska 2003), 282(n297) Ex parte C.L.J., 946 So. 2d 880 (Ala. Civ. App. 2006), 577(n27), 597(n89) Ex parte Crow Dog, 109 U.S. 556 (1883), 147 Ex parte Mayfield, 141 U.S. 107 (1891), 7(n27), 187(n136) Ex parte Pero, 99 F.2d 28 (7th Cir. 1938), 52 Ex parte Young, 209 U.S. 123 (1908), 99, 229–30, 230–31(n34), 313, 329(n195), 561, 619(n169) Eyak Native Vill. v. Daley, 375 F.3d 1218 (9th Cir. 2004) (ex banc), 394(n80) Faith Temple Church v. Town of Brighon, 405 F. Supp. 2d 250 (W.D.N.Y. 2005), 138(n488) Fallon Paiute-Shoshone Tribe v. City of Fallon, 174 F. Supp. 2d 1088 (D. Nev. 2001), 127(n388) Fallon Paiute-Shoshone Tribe v. USBLM, 455 F. Supp. 2d 1207 (D. Nev. 2006), 132(n437) Fatt v. State Tax Comm’n, 884 P.2d 1233 (Utah 1994), 505(n296) Federal Youth Ctr. v. District Court, 575 P.2d 395 (Colo. 1978), 379(n320) Ferguson v. SMSC Gaming Enter., 475 F. Supp. 2d 929 (D. Minn. 2007), 311(n118), 313–14(n132) FGS Constructors, Inc. v. Carlow, 64 F.3d 1230 (8th Cir. 1995), 248(n132), 250(n141) Fidelity and Guar. Ins. Co. v. Bradley, 212 F. Supp. 2d 163 (W.D.N.C. 2002), 244(n114), 250(n141) Filer v. Tohono O’odham Nation Gaming Enter. 129 P.3d 78 (Ariz. Ct. App. 2006), 218(n323), 219(n327), 300(n73), 315(n135) Fillion v. Houlton Band of Maliseet Indians, 54 F. Supp. 2d 50 (D. Me. 1999), 325–26(n189) Finley v. Colville Tribal Servs. Corp., 33 Indian L. Rep. 6038 (Colville Confederated Tr. Ct. App., Mar. 6, 2006), 327–28(n193) First American Kickapoo Operations, L.L.C. v. Multimedia Games, Inc., 412 F.3d 1166 (10th Cir. 2005), 545(n184) First v. Montana Dep’t. of Soc. and Rehab. Servs., 808 P.2d 467 (Mont. 1991), 269–70(n240)

674 First Nat’l Bank v. Kiowa, Comanche & Apache Intertribal Land Use Comm., 913 P.2d 299 (Okla. 1996), 269(n239) First Nat’l Bank v. Temple, 642 N.W.2d 197 (S.D. 2002), 282(n297) Fisher v. District Court, 424 U.S. 382 (1976) (per curiam), 55–56(n48), 217(n315), 256(n171), 266, 267(n232) Flat Ctr. Farms, Inc. v. State, 49 P.3d 578 (Mont. 2002), 470(n45), 506–7(nn301, 306) Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), 5(n22), 81(n12), 261(n205) Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997), 314(n133) Florida Dep’t of Business Regulation v. USDOI, 768 F.2d 1248 (11th Cir. 1985), 91(n89) Florida Paraplegic Ass’n v. Miccosukee Tribe, 166 F.3d 1126 (11th Cir. 1999), 29(n137), 288(n8), 297–98(n61), 313–14(n132) Florida v. Seminole Tribe, 181 F.3d 1237 (11th Cir. 1999), 563(n266), 570(n314) FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990), 199(n209), 240(n91), 247(n126), 248–49, 466(n18) FMC Corp. v. Shoshone-Bannock Tribes, 16 Indian L. Rep. 6026 (Sho-Ban. Tr. Ct., App. Div. Oct. 10, 1988), 253(n156) Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (8th Cir. 1995), 230(n30) Ford Motor Co. v. Todecheene, 488 F.3d 1215 (9th cir. 2007), 238(n73) Forest County Potawatomi Cmty. v. Norquist, 45 F.3d 1079 (7th Cir. 1995), 117(n13) Fort Belknap Indian Cmty. v. Mazurek, 43 F.3d 428 (9th Cir. 1994), 163(n112), 173(n31), 246(n122), 497(n236) Fort Mojave Indian Tribe v. United States, 23 Cl. Ct. 417 (1991), 369(n255) Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29 (1994), aff ’d, 64 F.3d 677 (Fed. Cir. 1995), 345(n100), 348(n117), 369(n255) Fort Mojave Tribe v. San Bernardino County, 543 F.2d 1253 (9th Cir. 1976), 487(n159) Fort Peck Hous. Auth. v. Home Sav. & Loan Ass’n, 16 Indian L. Rep. 6083 (Ft. Peck Tr. Ct. Mar. 14, 1989), 253(n156)

Table of Cases Fort Peck Hous. Auth. v. USDHUD, 435 F. Supp. 2d 1125 (D. Colo. 2006), 26(n124) Foster v. State Dep’t of Transp., 34 P.3d 1288 (Alaska 2001), 273(n256) Foundation Reserve Ins. Co. v. Garcia, 734 P.2d 754 (N.M. 1987), 169(n239) Fournier v. Roed, 161 N.W.2d 458 (N.D. 1968), 165(n119) Fox v. Brown, 32 Indian L. Rep. 6175 (Mohegan Tr. Ct. Oct. 3, 2005), 329(n195) Foxworthy v. Puyallup Tribe of Indians Ass’n, 169 P.3d 53 (Wash. Ct. App. 2007), 300(n73) FPC v. Oregon, 349 U.S. 435 (1955), 337(n41), 354(n166) FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960), 27–28, 29(n135), 495(n225) Franchise Tax Bd. v. USPS, 467 U.S. 512 (1984), 367(n244) Francis v. Dana-Cummings, 868 A.2d 196 (Me. 2005), 299(n70) Francis v. Pleasant Point Passamaquoddy Hous. Auth., 740 A.2d 575 (Me. 1999), 299(n70) Francis v. Wilkinson, 20 Indian L. Rep. 6015 (Northern Plns. Intertr. Ct. App. Jan. 21, 1993), 330(n196) Fraser v. United States, 261 F.2d 282 (9th Cir. 1958), 112(n251) Frederico v. Capital Gaming Int’l, Inc., 888 F. Supp. 354 (D.R.I. 1995), 294(n48) Fresno County Dep’t of Children & Family Servs. v. Superior Ct., 19 Cal. Rptr. 3d 155 (Ct. App. 2004), 575(n23), 612– 13(n150), 614(n153) Frost v. Southern Ute Tribal Council, 23 Indian L. Rep. 6135 (Southern Ute Tr. Ct. June 25, 1996), 327(n193) Gaines v. Ski Apache, 8 F.3d 726 (10th Cir. 1993), 309(n112) Gallegos v. Pueblo of Tesuque, 46 P.3d 668 (N.M. 2002), 306(n100) Gallegos v. San Juan Pueblo Bus. Dev. Bd., Inc., 955 F. Supp. 1348 (D.N.M. 1997), 547(n190) Gaming Corp. v. Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996), 519(n54) Garcia v. Akwesasne Housing Authority, 268 F.3d 76 (2d Cir. 2001), 248 Garcia v. Akwesasne Housing Authority, 268 F.3d 76 (2d Cir. 2002), 311

Table of Cases Gardner v. Stager, 892 F. Supp. 1301 (D. Nev. 1995), 373(n280) Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996), 272(n247), 294(n48), 311(n118) GDF Realty Invs., Ltd., v. Norton, 326 F.3d 622 (5th Cir. 2003), 385(n13) Geer v. Connecticut, 161 U.S. 519 (1896), 384–85(n3), 392(n62) Geiger v. Pierce, 758 P.2d 279 (Mont. 1988), 270–71(n241) General Constructors, Inc. v. Chewculator, Inc., 21 P.3d 604 (Mont. 2001), 267–68(n235) George v. Comm’r, T.C. Memo. 2006-121, 507(n309) Gerber v. Eastman, 673 N.W.2d 854 (Minn. Ct. App. 2004), 575(n22) Gesinger v. Gesinger, 19 Indian L. Rep. 6102 (Chy. Riv. Sx. Ct. App. Jan. 17, 1992), 253(n156), 282(n297) Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), 98(n132) Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000) (per curiam), 423(n297) Gila River Indian Cmty. v. Henningson, 626 F.2d 708 (9th Cir. 1980), 227(n13) Gila River Indian Cmty. v. Waddell, 91 F.3d 1232 (9th Cir. 1996), 212(n285), 474(n72), 478(n90), 482(n123), 482(n123) Gila River Pima-Maricopa Indian Cmty. v. United States, 494 F.2d 1386 (Ct. Cl. 1974), 82(n18) Gila River Pima-Maricopa Indian Cmty. v. United States, 695 F.2d 559 (Fed. Cir. 1982), 355(n172) Gillespie v. Oklahoma, 257 U.S. 501 (1922), 479–80 Gilman v. Janus, 31 Indian L. Rep. 6041 (Mohegan Tr. Ct. Feb. 9, 2004), 329(n195) GNS, Inc. v. Winnebago Tribe, 866 F. Supp. 1185 (N.D. Iowa 1994), 227(n13) Gobin v. Snohomish County, 304 F.3d 909 (9th Cir. 2002), 219(n327), 220(n332), 388(n34), 417(n247) Golden Hill Paugussett Tribe v. Town of Southbury, 651 A.2d 1246 (Conn. 1995), 268(n237) Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51 (2d Cir. 1994), 65–66(nn101, 104)

675 Golden Oil Co. v. Chace Oil Co., 994 P.2d 772 (N.M. Ct. App. 1999), 295(n51) Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989), 230(n33) Goldman v. Weinberger, 475 U.S. 503 (1986), 137(n478) Gonzalez v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2008), 136(nn471, 477) Goodman Oil Co. v. Idaho State Tax Comm’n, 28 P.3d 996 (Idaho 2001), 494(n219), 495(n221) Goodman Oil Co. v. State Tax Comm’n, 28 P.3d 996 (Idaho 2001), 471(n51) Goodwin v. Turon, 21 Indian L. Rep. 6022 (Colv. Tr. Ct. Jan. 19, 1994), 253(n156) Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006), 138(n491) Grand River Enters. Six Nations, Ltd., v. Pryor, 425 F.3d 158 (2d Cir. 2005), 210(n278) Grand Traverse Band of Ottawa and Chippewa Indians v. Director, 141 F.3d 635 (6th Cir. 1998), 397(n107), 403(n141), 530(n115) Grand Traverse Band of Ottawa and Chippewa Indians v. Office of U.S. Att’y, 369 F.3d 960 (6th Cir. 2004), 66(n107), 530(n117) Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att’y, 46 F. Supp. 2d 689 (W.D. Mich. 1999), 531(n118), 544(n177) Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att’y, 198 F. Supp. 2d 920 (W.D. Mich. 2002), 530(nn115, 116), 531(nn119, 120) Granite Valley Hotel v. Jackpot Junction Bingo & Casino, 559 N.W.2d 135 (Minn. Ct. App. 1997), 268(n238) Great Western Casinos, Inc. v. Morongo Band of Mission Indians, 88 Cal. Rptr. 2d 828 (Ct. App. 1999), 303(n90) Greene v. Comm’r, 733 N.W.2d 490 (Minn. Ct. App. 2007), 55–56(n48) Greene v. Babbitt, 64 F.3d 1266 (9th Cir. 1995), 67(n113) Greene v. Rhode Island, 398 F.3d 45 (1st Cir. 2005), 80(n4), 85(n46), 86(n55) Grey Poplars Inc. v. One Million Three Hundred Seventy-One Thousand One Hundred (1,371,100) Assorted Brands

676 of Cigarettes, 282 F.3d 1175 (9th Cir. 2002), 27(n129), 500(n263) Griffith v. Wilkie, 18 Indian L. Rep. 6058 (Northern Plns. Intertr. Ct. App. Jan. 10, 1991), 327(n193) Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006), 17(n86), 18(n91), 21(nn100, 101), 23(n109), 139(n504), 415 Gross v. Omaha Tribe, 601 N.W.2d 82 (Iowa 1999), 298(n64) Grossi v. Mashantucket Pequot Gaming Enter., 26 Indian L. Rep. 6112 (Mash. Peq. Ct. App. Nov. 5, 1998), 327(n193) Guidiville Band of Pomo Indians v. NDV Gaming, Ltd., 531 F.3d 767 (9th Cir. 2008), 115(n271), 542–43(n171) Gurley v. Rhoden, 421 U.S. 200 (1975), 471(n50) Guru Nanak Sikh Society v. County of Sutter, 456 F.3d 978 (9th Cir. 2006), 138(n487) Gwinn v. Four Bears Casino & Lodge, 30 Indian L. Rep. 6120 (Ft. Berth. Reserv. Tr. Ct. Feb. 10, 2003), 330(n196) Hackford v. Babbitt, 14 F.3d 1457 (10th Cir. 1994), 380(n328) Hagen v. Sisseton-Wahpeton Cmty. College, 205 F.3d 1040 (8th Cir. 2000), 307(n105), 308–9(n111), 311(n118) Hagen v. Utah, 510 U.S. 399 (1994), 95(n110), 96(n119), 97(n127) Hagener v. Wallace, 47 P.3d 847 (Mont. 2002), 217(n316) Hall v. Lakeside State Bank, 26 Indian L. Rep. 6032 (Ft. Berthold Reserv. Dist. Ct. Nov. 11, 1998), 329(n195) Hall v. United States, 201 F.2d 886 (10th Cir. 1953), 112(n251) Hampton v. J.A.L., 658 So. 2d 331 (La. Ct. App. 1995), 576(n26) Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), 137(n484) Harrell v. DeCora (In re DeCora), 387 R.R. 230 (Bankr. W.D. Wis. 2008), 543(n174) Harrison v. Emerald Outdoor Adv., LLC, 44 F.3d 1077(9th Cir. 2006), 40(n197) Harris v. Young, 473 N.W.2d 141 (S.D. 1991), 270(n241), 574–75(n20) Hatcher v. Harrah’s NC Casino Co., 610 S.E. 2d 210 (N.C. Ct. App. 2005), 556(n234) Hartman v. Kickapoo Tribe Gaming Comm’n, 176 F. Supp. 2d 1168 (D. Kan.

Table of Cases 2001), aff ’d, 319 F.3d 1230 (10th Cir. 2003), 570(n314) Harvest Inst. Freedman Fed’n. v. United States, 80 Fed. Cl. 197 (2008), 16(n83), 23(n109) Harvick v. Harvick, 828 P.2d 769 (Alaska 1992), 574–75(n20) Havasupai Tribe v. United States, 752 F. Supp. 1471 (D. Ariz. 1990), aff’d on other grounds, 943 F.2d 32 (19th Cir. 1991), 89(n76) Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), 246(n119) Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962), aff ’d, 383 U.S. 758 (1963), 105(n184), 352–53(n154) Healy v. Mashantucket Pequot Gaming Enter., 26 Indian L. Rep. 6189 (Mash. Peq. Ct. App. Jan. 7, 1999), 329(n195) Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256 (9th Cir. 2000), 325–26(n189), 568(n303), 570(n314) Helvering v. Mountain Producers Corp., 303 U.S. 376 (1938), 479–80 Henry v. Confederated Tribe of Grand Ronde Cmty., 31 Indian L. Rep. 6092 (Grand Ronde Cmty. Tr. Ct. Apr. 14, 2004), 330(n196) Hicks v. Harold, 21 Indian L. Rep. 6076 (W. Nev. Intertr. Ct. App. May 13, 1994), 256(n156) Hielgeson v. Lac du Flambeau Band of Lake Superior Chippewa Indians, 25 Indian L. Rep. 6045 (Lac du Flambeau Tr. App. Ct. Jan. 30, 1998), 256–57(n177) High Elk v. Iron Hawk, 33 Indian L. Rep. 6031 (Cheyene R. Sx. Ct. App. Feb. 1, 2006), 329(n195) High Elk v. Veit, 33 Indian L. Rep. 6033 (Cheyenne R. Sx. Ct. App., Jan 5, 2006), 327(n193) Hill v. Eppolito, 772 N.Y.S. 2d 634 (App Div. 2004), 152(n64) Hilton v. Guyot, 159 U.S. 113 (1895), 280, 285 Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir. 1994), 252(n155) Hinsley v. Standing Rock Child Protective Services, 516 F.3d 668 (8th Cir. 2008), 46(n235) Ho-Chunk Nation Legislature v. Ho-Chunk Nation Gen. Council, 28 Indian L. Rep.

Table of Cases 6168 (Ho-Chunk Tr. Ct. June 22, 2001), 329(n195) Ho-Chunk Nation v. Steindorf, 27 Indian L. Rep. 6255 (Ho-Chunk Sup. Ct. Sept. 29, 2000), 250(n141) Hockaday v. Karuk Tribal Housing Authority, 32 Indian L. Rep. 6169 (Karuk Tr. Ct. Oct. 7, 2005), 330(n196) Hodel v. Irving, 481 U.S. 704 (1987), 120(nn322, 323), 121(nn327, 329), 122–23 Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981), 461(n288) Hofmann v. Anderson, 31 P.3d 510 (Or. Ct. App. 2001), 580(n35) Holden v. Joy, 84 U.S. (17 Wall.) 211 (1872), 80(n11) Holguin v. Yseleta Del Sur Pueblo, 954 S.W.2d 843 (Tex. App. 1997), 300(n73) Holly v. Confederated Tribes and Bands of Yakima Indian Nation, 655 F. Supp. 557 (E.D. Wash. 1985), aff ’d mem., 812 F.2d 714 (9th Cir. 1987), 382–83 Holly v. Totus, 655 F. Supp. 548 (E.D. Wash. 1983), rev’d in part mem., 749 F.2d 37 (9th Cir. 1984), 378(n312), 380(n328), 383(n342) Holmes v. United States, 53 F.2d 960 (10th Cir. 1931), 361(n203) Hoonah Indian Ass’n v. Morrison, 170 F.3d 1223 (9th Cir. 1999), 27(n126) Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986 (9th Cir. 2005), 20(n98), 45(n229) Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th Cir. 1989), 476–77(n83) Hoover v. Kiowa Tribe, 909 P.2d 59 (Okla. 1995), 269(n239), 294(n48) Hoover v. Kiowa Tribe, 957 P.2d 81 (Okla. 1998), 292(n44) Hoover v. Kiowa Tribe, 986 P.2d 516 (Okla. 1999), 292(n44) Hopi Tribe v. Navajo Tribe, 46 F.3d 908 (9th Cir. 1995), 300(n71) Hopi Tribe v. United States, 55 Fed. Cl. 81 (2002), 23(n108) Hopland Band of Pomo Indians v. Norton, 324 F. Supp. 2d 1067 (N.D. Cal. 2004), 45(n231) Hopland Band of Pomo Indians v. United States, 13 Cl. Ct. 276 (1987), 229(n21) Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998),

677 237(n68), 243(n110), 255(n168), 256(n177) Hotel Employees & Rest. Employees Int’l Union v. Davis, 981 P.2d 990 (Cal. 1999), 552(n215) Houghtaling v. Seminole Tribe, 611 So. 2d 1235 (Fla. 1993), 309–10(n112) Houlton Band of Maliseet Indians v. Boyce, 688 A.2d 908 (Maine 1997), 275(n262) Houlton Band of Maliseet Indians v. Ryan, 484 F.3d 73 (1st Cir. 2007), 218(n323) Housing Auth. of Kiowa Tribe v. Ware, 10 P.3d 226 (Okla. 2000), 270–71(n241) Howard v. Gipsy Oil Co., 247 U.S. 503 (1918), 478–79(n96) HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000), 73(n159), 449(n178) Hughes v. Oklahoma, 441 U.S. 322 (1979), 384–85(n3) Humes v. Fritz Co., 105 P.3d 1000 (Wash. Ct. App. 2005) 293(n47) Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977), 229(n21) Huron Group, Inc. v. Pataki, 785 N.Y.S.2d 827 (Sup. Ct. 2004), aff’d, 803 N.Y.S.2d 865 (App. Div. 2005), appeal dismissed as moot, 845 N.E.2d 1270 (N.Y. 2006), 553(n222) Huron Potawatomi, Inc. v. Stinger, 574 N.W.2d 706 (Mich. Ct. App. 1997), 311(n118) Husband v. Wife, 30 Indian L. Rep. 6099 (Mash. Peq. Ct. App. Jan. 24, 2003), 286(n317) Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 826 P.2d 751 (Alaska 1992), 303(n90) Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 925 P.2d 246 (Alaska 1996), 309(n112) Hynes v. Grimes Packing Co., 337 U.S. 86 (1949), 100(n146), 392(n67) Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997), 11(n47), 98(n131), 99(n138), 100(n140), 101(n154), 230, 287(n4), 313(n129) Idaho v. Shoshone-Bannock Tribes, 465 F.3d 1095 (9th Cir. 2006), 558(n240) Idaho v. United States, 533 U.S. 262 (2001), 101–2 Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983), 409(n190)

678 Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892), 99(n135) Illinois v. City of Milwaukee, 406 U.S. 91 (1972), 232(n42) Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991), 315(n135) Indian Educators Fed’n Local 4524 v. Kempthorne, 541 F. Supp. 2d 257 (D.D. C. 2008), 19(n94), 55(n44) In Interest of A.B., 663 N.W.2d 625 (N.D. 2003), 574(n17) In Interest of A.G.-G., 899 P.2d 319 (Colo. Ct. App. 1995), 580–81(n36) In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984), 597–98(n91) In Interest of J.W., 498 N.W.2d 417 (Iowa Ct. App. 1993), 581(n41), 593–94(n80) In Interest of M.N.W., 577 N.W.2d 874 (Iowa Ct. App. 1998), 580(n35) In re 1,750 Cases of Liquor, 633 N.Y.S. 2d 702 (Sup. Ct. 1995), 496(n231) In re Aaliyah G., 135 Cal. Rptr. 2d 680 (Ct. App. 2003), 583(n46) In re Aaron R. 29 Cal. Rptr. 3d 921, 929 (Ct. App. 2005), 583(n46) In re Absher Children, 750 N.E.2d 188 (Ohio Ct. App. 2001), 272(n247), 574(n20) In re A.C., 65 Cal. Rptr. 3d 767 (Ct. App. 2007), 580(n34) In re A.D.L. 612 S.E.2d 639 (N.C. Ct. App. 2005), 580(n34) In re Adoption of A.M.C., 246 S. W.3d 426 (Ark. 2007), 580(n34) In re Adoption of Baade, 462 N.W.2d 485 (S.D. 1990), 579(n33) In re Adoption of Baby Boy D., 742 P.2d 1059 (Okla. 1985), 582(n43) In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982), 576–77(nn26, 28) In re Adoption of Baby Girl B., 67 P.3d 359 (Okla. Ct. App. 2003), 582(n42), 613(n151), 614(n153) In re Adoption of B.G.J., 111 P.3d 651 (Kan. Ct. App. 2005), 613(n152), 614(n154) In re Adoption of C.D., 751 N.W.2d 236 (N.D. 2008), 580–81(n36) In re Adoption of Crews, 825 P.2d 305 (Wash. 1992), 576(n26), 610(n139) In re Adoption of Erin G., 140 P.3d 886 (Alaska 2006), 615(n160)

Table of Cases In re Adoption of F.H., 851 P.2d 1361 (Alaska 1993), 612–13(n150), 614(n154) In re Adoption of Halloway, 732 P.2d 962 (Utah 1986), 586(n53), 588(n60) In re Adoption of Hannah S., 48 Cal. Rptr., 3d 605, (Cal. Ct. App. 2006), 577– 78(n28), 604(n118), 611(n141) In re Adoption of H.M.O., 962 P.2d 1191 (Mont. 1998), 608–9(n130) In re Adoption of J. T, 38 P.3d 245 (Okla. Civ. App. 2001), 593(n79) In re Adoption of Keith M.W., 79 P.3d 623 (Alaska 2003), 610(n139), 612– 13(nn150, 152) In re Adoption of Kenten H., 725 N.W.2d 548 (Neb. 2007), 585(n50), 616(n161) In re Adoption of K.L.R.F., 515 A.2d 33 (Pa. Super. Ct. 1986), 610(n138) In re Adoption of Lindsay C., 280 Cal. Rptr. 194 (Ct. App. 1991), 577–78(n28), 579(n33) In re Adoption of M., 832 P.2d 518 (Wash. Ct. App. 1992), 579(n33) In re Adoption of Mellinger, 672 A.2d 197 (N.J. Super. Ct. 1996), 619(n174) In re Adoption of M.T.S., 489 N.W.2d 285 (Minn. Ct. App. 1992), 611(n140) In re Adoption of N.P.S., 868 P.2d 934 (Alaska 1994), 613(n152) In re Adoption of Rebecca, 601 N.Y.S.2d 682 (Surr. Ct. 1993), 619(n175) In re Adoption of Riffle, 902 P.2d 542 (Mont. 1995), 580(n36), 613(n151) In re Adoption of Riffle, 922 P.2d 510 (Mont. 1996), 577(n27) In re Adoption of R.R.R., 763 P.2d 94 (Okla. 1988), 597(n89) In re Adoption of Sara J., 123 P.3d 1017 (Alaska 2005), 612(nn149, 150), 614(n154) In re Adoption of S.S., 657 N.E.2d 935 (Ill. 1995), 587(n59), 597(n91) In re Adoption of S.W., 41 P.3d 1003 (Okla. Civ. App. 2001), 597(n91), 598(n93), 600(n103) In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989), 615(n160) In re Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988), 576(n26), 588(n61), 598(n93) In re A.E.V., 782 P.2d 858 (Colo. Ct. App. 1989), 573(n13)

Table of Cases In re A.G., 109 P.3d 756 (Mont. 2005), 594(n82) In re A.J., 733 A.2d 36 (Vt. 1999), 580(n34) In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Ct. App. 1996), 577(n28) In re Alexandro A., 74 Cal. Rptr., 3d 44 (Ct. App. 2008), 576(n25) In re Alexis H., 33 Cal. Rptr. 3d 242 (Ct. App. 2005), 573(n14) In re Alice M., 74 Cal. Rptt. 3d 863 (Ct. App. 2008), 572(n12) In re A.N., 106 P.3d 556 (Mont. 2005), 602, 609(n131) In re Andrea Lynn M., 10 P.3d 191 (N.M. Ct. App. 2000), 592(n75) In re Annette P., 589 A.2d 924 (Me. 1991), 604(n118) In re Antoinette S., 129 Cal. Rptr. 2d 15 (Ct. App. 2002), 581(n37), 584–85(nn47, 48), 596–97(n88) In re A.P., 961 P.2d 706 (Kan. Ct. App. 1998), 590(n68), 597(n91), 600(n103), 604(n118), 606(n124) In re Appeal in Maricopa County Juvenile Action No. A-25525, 667 P.2d 228 (Ariz. Ct. App. 1983), 580(n36), 598–99(n95) In re Appeal in Maricopa County Juvenile Action No. JD-6982, 922 P.2d 319 (Ariz. Ct. App. 1996), 592(n75) In re Appeal in Maricopa County Juvenile Action No. JS-7359, 766 P.2d 105 (Ariz. Ct. App. 1988), 592(n75) In re Application for Beneficial Use Water Permits Nos. 66459-76L, 923 P.2d 1073 (Mont. 1996), 340(n66), 365(n224), 372(n277) In re Application of DeFender, 435 N.W.2d 717 (S.D. 1989), 282(n297), 574–75(n20) In re Application of Kaul, 4 P.3d 1170 (Kan. 2000), 486(n154) In re Ashley Elizabeth R., 863 P.2d 451 (N.M. Ct. App. 1993), 597(n89), 598(n95) In re Asia L., 132 Cal. Rptr. 2d 733 (Ct. App. 2003), 593–94(n80) In re A.W., 741 N.W.2d 793 (Iowa 2007), 580(n34) In Re Baby Boy C., 805 N.Y.S. 2d 313 (App. Div. 2005), 577(n27), 579(n33), 598–99(n95) In re Baby Boy Doe, 849 P.2d 925 (Idaho 1993), 577(n27), 604(n118), 613(n151)

679 In re Baby Boy Doe, 902 P.2d 477 (Idaho 1995), 588(n60) In re Baby Boy L., 103 P.3d 1099 (Okla. 2004), 576(n26), 577(n27) In re Baby Girl A., 282 Cal. Rptr. 105 (Ct. App. 1991), 598–99(n95) In re Barbara R., 40 Cal. Rptr. 3d 687 (Ct. App. 2006), 605(n121) In re B.B., 500 N.W.2d 9 (Iowa 1993), 600–1(n106) In re Bird Head, 331 N.W.2d 785 (Neb. 1983), 597–98(n91) In re Blue Lake Forest Prods., Inc., 30 F.3d 1138 (9th Cir. 1994), 212(n287) In re Bluebird, 411 S.E.2d 820 (N.C. Ct. App. 1992), 606(n124) In re Brandon T., 80 Cal. Rptr. 3d 287 (Ct. App. 2008), 607(n127) In re Bridget R., 49 Cal. Rptr. 2d 507 (Ct. App. 1996), 577(nn27, 28), 599(n98) In re Brooke C., 25 Cal. Rptr. 3d 590 (Ct. App. 2005), 585(n49), 596–97(n88) In re Burgess, 665 N.W. 2d 124 (Wis. 2003), 276–77 In re C.A.J., 709 P.2d 604 (Colo. Ct. App. 1985), 580(n36) In re Campbell, 81 T.C.M. (CCH) 1241 (2001), 518(n51) In re Cari B., 763 N.E.2d 917 (Ill. App. Ct. 2002), 576–77(n26), 604(n118) In re C.D., 1 Cal. Rptr. 3d 578 (Ct. App. 2003), 593–94(n80), 595(n83) In re C.F., 218 S.W.3d 22 (Mo. Ct. App. 2007), 593(n80) In re C.G.L., 28 S.W.3d 502 (Mo. Ct. App. 2000), 598(n95) In re C.G.L., 63 S.W.3d 693 (Mo. Ct. App. 2002), 614(n153) In re C.H., 79 P.3d 822 (Mont. 2003), 574(n18), 580(n34), 583(n46) In re Cheyenne F., 79 Cal. Rptr. 3d 189 (Ct. App. 2008), 595(n84), 596(n88) In re Child of Indian Heritage, 543 A.2d 925 (N.J. 1988), 577(n27), 582(n43) In re Christopher I., 131 Cal. Rptr. 2d 122 (Ct. App. 2003), 596–97(n88) In re Christopher W., 19 Cal. Rptr. 3d 296 (Ct. App. 2004), 584(n47) In re C.K., 221 S.W.3d 467 (Mo. Ct. App. 2007), 580(n35) In re C.N., 752 N.E.2d 1030 (Ill. 2001), 580(n35)

680 In re Cody, 63 Cal. Rptr. 3d 652 (Ct. App. 2007), 595(n83) In re Commitment of Beaulieu, 737 N.W.2d 231 (Minn. Ct. App. 2007), 220(n332) In re Commitment of Burgess, 665 N.W.2d 124 (Wis. 2003), 158(n92), 275(nn262, 263) In re C.P., 641 S.E.2d 13 (N.C. Ct. App. 2007), 580(n35) In re C.R.H., 29 P.3d 849 (Alaska 2001), 591, 599(n99), 618(n172) In re Crystal K., 276 Cal. Rptr. 619 (Ct. App. 1990), 574–75(n20), 577–78(n28) In re Custody of A.K.H., 502 N.W.2d 790 (Minn. Ct. App. 1993), 574–75(n20) In re Custody of A.L.R., 54 P.3d 17 (Mont. 2002), 602(n111) In re Custody of K.K.S., 508 N.W.2d 813 (Minn. Ct. App. 1993), 587(n59) In re Custody of S.B.R., 719 P.2d 154 (Wash. Ct. App. 1986), 577(n27) In re Custody of S.E.G., 521 N.W.2d 357 (Minn. 1994), 613(n151) In re Custody of Sengstock, 477 N.W.2d 310 (Wis. Ct. App. 1991), 283(n300), 574(n20) In re Daniel M., 1 Cal. Rptr. 3d 897 (Ct. App. 2003), 582(nn43, 44) In re Davis Chevrolet, Inc., 282 B.R. 674 (Bankr. D. Ariz. 2002), 307(n103) In re D.C., 92 P.3d 1138 (Kan. Ct. App. 2004), 594–95(n82) In re D.C.C., 971 S.W.2d 843 (Mo. Ct. App. 1998), 576(n26) In re Denice F., 658 A.2d 1070 (Me. 1995), 606(n124) In re Dependency of A.L.W., 32 P.3d 297 (Wash. Ct. App. 2001), 580(n36) In re Dependency of A.M., 22 P.3d 828 (Wash. Ct. App. 2001), 602(n110), 604(n118) In re Dependency of E.S., 964 P.2d 404 (Wash. Ct. App. 1998), 580(n36), 594(n81) In re Dependency of M.D., 42 P.3d 424 (Wash. Ct. App. 2002), 610(n139) In re Dependency of Smith, 731 P.2d 1149 (Wash. Ct. App. 1987), 580(n36) In re Dependency of T.L.G., 108 P.3d 156 (Wash. Ct. App. 2005), 584(n47), 596–97(n88) In re Dependency of Z.F.S., 51 P.3d 170 (Wash. Ct. App. 2002), 613(n152)

Table of Cases In re Desiree F., 99 Cal. Rptr. 2d 688 (Ct. App. 2000), 580(n36), 594(n82), 598(n94) In re D.M., 661 N.W.2d 768 (S.D. 2003), 603(n113), 608–9(n130) In re D.M., 685 N.W.2d 768 (S.D. 2004), 593(n80) In re D.S., 577 N.E.2d 572 (Ind. 1991), 593–94(n80), 607(n127) In re D.S.P., 458 N.W.2d 823 (Wis. Ct. App. 1990), aff ’d, 480 N.W.2d 234 (Wis. 1992), 604(n117), 606(n124), 607(n127) In re D.T., 5 Cal Rptr. 3d 893 (Ct. App. 2003), 593–94(n80) In re Edward H., 122 Cal. Rptr. 2d 242 (Ct. App. 2002), 595(n83) In re E.H., 46 Cal. Rptr. 3d 787 (Ct. App. 2006), 583–84(n46) In re Elizabeth W., 16 Cal. Rptr. 3d 514 (Ct. App. 2004), 593(n80) In re E.M., 466 N.W.2d 168 (S.D. 1991), 604(n117) In re Emerald Outdoor Adv., LLC, 444 F.3d 1077 (9th Cir. 2006), 40(n197) In re Enqrique Q., 40 Cal. Reptr. 3d 570 (Ct. App. 2006), 576(n25) In re Estate of Hobbs, 46 P.3d 594 (Mont. 2002), 270–71(n241) In re Estate of Osceola, 744 So. 2d 1251 (Fla. Dist. Ct. App. 1999), 269(n239) In re F.P., 843 P.2d 1214 (Alaska 1992), 589(n64), 618(n172) In re Francisco W., 43 Cal. Rpter. 3d 171 (Ct. App. 2006), 596–97(n88) In re Fried, 702 N.W.2d 192 (Mich. Ct. App. 2005), 580(n34) In re Garvais, 402 F. Supp. 2d 1219(E.D. Wash. 2004), 390(n47) In re General Adjudication of All Rights to Use Water in Big Horn River System, 753 P.2d 76 (Wyo. 1988) (Big Horn I), judgment aff ’d by evenly divided court, 492 U.S. 406 (1989), 338(n52), 340(nn63, 64), 341(n68), 342, 346(n106), 348(n119), 355, 356(n184), 357(nn186, 188), 361–62, 377, 379(n319), 380 In re General Adjudication of All Rights to Use Water in the Big Horn River System, 835 P.2d 273 (Wyo. 1992) (Big Horn III), 360(n198), 377(n307), 380(n324), 383(n341)

Table of Cases In re General Adjudication of All Rights to Use Water in the Big Horn River System, 899 P.2d 848 (Wyo. 1995), 362(n210) In re General Adjudication of All Rights to Use Water in Big Horn River Sys., 48 P.3d 1040 (Wyo. 2002) (Big Horn V), 357(n186), 362(n209) In re General Adjudication of All Rights to Use Water in Gila River System and Source, 857 P.2d 1236 (Ariz. 1993) (Gila II), 370(n264, 267) In re General Adjudication of All Rights to Use Water in Gila River System and Source, 989 P.2d 739 (Ariz. 1999) (Gila IV), 337(n43), 355(n173), 356 In re General Adjudication of All Rights to Use Water in Gila River System and Source, 35 P.3d 68 (Ariz. 2001) (Gila V), 331(n4), 338(n53), 340(n66), 342, 343(n84), 349(n124) In re General Adjudication of All Rights to Use Water in Gila River System and Source, 127 P.3d 882 (Ariz. 2006) (Gila VI), 369(n257), 371(n270) In re General Adjudication of Rights to Use Water from Snake River Basin Water Sys., 764 P.2d 78 (Idaho 1988), 370(n266) In re Gerardo A., 14 Cal. Rptr. 3d 798 (Ct. App. 2004), 593(n80), 595–96(n85) In re G.F., 923 A.2d 578 (Vt. 2007), 606(n123) In re Giovanna K., 24 Cal. Rptr. 3d 582 (Ct. App. 2005), 596–97(n88) In re Greene, 980 F.2d 590 (9th Cir. 1992), 291(n35), 294(n48), 297(n59) In re Greybull, 543 P.2d 1079 (Or. Ct. App. 1975), 587(n54) In re G.S., 59 P.3d 1063 (Mont. 2002), 603(n113), 604(n118) In re G.S.R., 72 Cal. Rptr. 3d 398 (Ct. App. 2008), 592(n78) In re Guardianship of Flyinghorse, 456 N.W.2d 567 (S.D. 1990), 270–71(n241) In re Guardianship of J.C.D., 686 N.W. 2d 647 (S.D. 2004), 574–75(n20), 597– 98(n91), 599(n97) In re Guardianship of J.O., 743 A.2d 341 (N.J. Super. Ct. App. Div. 2000), 583–84(n46) In re Guardianship of Q.C.M., 808 P.2d 684 (Okla. 1991), 574–75(n20), 598(n94)

681 In re H.B., 74 Cal. Rptr. 3d 27 (Ct. App. 2008), 572(n12) In re Hankins, 125 N.W.2d 839 (S.D. 1964), 156(n82) In re Hanson, 470 N.W. 2d 669 (Mich. Ct. App. 1991), 619(n175) In re H.D., 797 N.E.2d 1112 (Ill. App. Ct. 2003), 580(n36) In re Heff, 197 U.S. 488 (1905), 37, 38(n191) In re H.J., 149 P.3d 1073 (Okla. Civ. App. 2006), 604(n118) In re H.N.B., 619 N.W.2d 340 (Iowa 2000), 611(nn141, 144) In re Humboldt River Stream and Sys., 59 P.3d 1226 (Nev. 2002), 368–69(n252) In re I.E.M., 592 N.W.2d 751 (Mich. Ct. App. 1999), 581(n38) In re I.G., 35 Cal. Rptr. 3d 427 (Ct. App. 2005), 595(n85) In re Indian Gaming Related Cases, 331 F.3d 1094 (9th Cir. 2003), 556(n231), 564–65, 566(n287) In re Interest of A.B., 663 N.W.2d 625 (N.D. 2003), 577(n27), 597–98(n91), 599(n97) In re Interest of B.M., 532 N.W.2d 504 (Iowa Ct. App. 1995), 597(n91) In re Interest of Brittany C., 693 N.W.2d 592 (Neb. Ct. App. 2005), 597–98(n91) In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992), 600(n102), 608(n129) In re Interest of D.A.C., 933 P.2d 993 (Utah Ct. App. 1997), 574–75(n20), 577(n27), 592(n75), 606(n124), 608–9(n130) In re Interest of Dakota L., 712 N.W.2d 583 (Neb. Ct. App. 2006), 588(n61), 593(n80) In re Interst of Enrique P., 709 N.W.2d 676 (Neb. Ct. App. 2006), 614(n155) In re Interest of J.J., 454 N.W.2d 317 (S.D. 1990), 590(n67), 593(n79), 597(n91), 598(n93) In re Interest of J.L.M., 451 N.W.2d 377 (Neb. 1990), 580(n36) In re Interest of J.W., 528 N.W.2d 657 (Iowa Ct. App. 1995), 615(n156) In re Interest of Lawrence H., 743 N.W.2d 91 (Neb. Ct. App. 2007), 597(n91) In re Interest of M.B., 176 P.3d 977(Kan. Ct. App. 2008), 584(n47) In re Interest of Phoebe S., 664 N.W.2d 470 (Neb. Ct. App. 2003), 608(n129) In re Interest of Phoenix L., 708 N.W. 2d 786 (Neb. 2006), 606–7(n125)

682 In re Interest of S.D.C., 36 P.3d 540 (Utah Ct. App. 2001), 602(n112) In re Interest of Walter W., 744 N.W.2d 55 (Neb. 2008), 604(n118), 606(n124) In re Isayah C., 13 Cal. Rptr. 3d 198 (Cal. Ct. App. 2004), 595–96(n85) In re Jasmine G., 28 Cal. Rptr. 3d 394 (Cal. Ct. App. 2005), 593(n80) In re J.D.B., 584 N.W.2d 577 (Iowa Ct. App. 1998), 580(n35) In re J.D.M.C., 738 N.W.2d 796 (S.D. 2007), 588(nn61, 62), 617(n167) In re Jeffrey A., 127 Cal. Rptr. 2d 314 (Ct. App. 2002), 592(n78) In re Jennifer A., 127 Cal. Rptr. 2d 54 (Ct. App. 2002), 575(n21), 596(n87), 596–97(n88) In re J.J.G., 83 P.3d 1264 (Kan. Ct. App. 2004), 576(n26), 593(n80) In re J.L., 654 N.W.2d 786 (S.D. 2002), 597(n91), 599(n97) In re J.M., 718 P.2d 150 (Alaska 1986), 592(n74) In re John V., 7 Cal. Rptr. 2d 629 (Ct. App. 1992), 580(n34) In re Jonathan D., 111 Cal. Rptr. 2d 628 (Ct. App. 2001), 594(n82) In re Jonathon S., 28 Cal. Rptr, 3d 493 (Cal. Ct. App. 2005), 597(n89), 614(n155) In re Jose C., 66 Cal. Rptr. 3d 355 (Ct. App. 2007), 580(n34) In re Joseph P., 45 Cal. Reptr. 3d 591 (Ct. App. 2006), 583(n46) In Re J.P., 674 N.W.2d 273, (N.D. 2004), 602(n111), 604(n118) In re J.R.S., 690 P.2d 10 (Alaska 1984), 574(n17), 598–99(n95) In re J.S., 177 P.3d 590 (Okla. Civ. App. 2008), 603(n114) In re J.T., 65 Cal. Rptr. 3d 320 (Ct. App. 2007), 572(n12), 593(n80) In re Julian B., 99 Cal. Rptr. 2d 241 (Ct. App. 2000), 611(n144) In re Junious M., 193 Cal. Rptr. 40 (Ct. App. 1983), 575(n23), 576–77(n28) In re Justin S., 59 Cal. Rptr. 3d 376 (Cal. Ct. App. 2007), 585(n49) In re K.A.B.E., 325 N.W.2d 840 (S.D. 1982), 608–9(n130) In re Kahlen W., 285 Cal. Rptr. 507 (Ct. App. 1991), 584(n47), 595(n83) In re Karla C., 6 Cal. Rptr. 3d 205 (Ct. App. 2003), 593(n80)

Table of Cases In re K.D., 630 N.W.2d 492 (S.D. 2001), 592(n75) In re K.H., 981 P.2d 1190 (Mont. 1999), 608–9(n130) In re Kiogima, 472 N.W.2d 13 (Mich. Ct. App. 1991), 610(n139) In re Krystle D., 37 Cal. Rptr. 2d 132 (Ct. App. 1994), 593–94(n80), 607–8(n128), 611(n143) In re K.S., 75 P.3d 325 (Mont. 2003), 609(n131) In re Larch, 872 F.2d 66 (4th Cir. 1989), 574(n20) In re Larissa G., 51 Cal. Rptr. 2d 16 (Ct. App. 1996), 592(n75) In re Laura F., 99 Cal. Rptr. 2d 859 (Ct. App. 2000), 617(n167) In re Laurie R., 760 P.2d 1295 (N.M. Ct. App. 1988), 592(n73) In re L.B., 3 Cal. Rptr. 3d 16 (Ct. App. 2003), 593–94(n80) In re L.F., 880 P.2d 1365 (Mont. 1994), 604(n120) In re Liliana S., 10 Cal. Rptr. 3d 553 (Ct. App. 2004), 611(n144), 613(n152) In re L.N.W., 457 N.W.2d 17 (Iowa Ct. App. 1990), 604(n117) In re Louis S., 12 Cal. Rptr. 3d 110 (Ct. App. 2004), 593(n80), 595(n83) In re Lynch’s Estate, 377 P.2d 199 (Ariz. 1962), 281(n295) In re M.A., 40 Cal. Rptr. 3d 439 (Ct. App. 2006), 591(n71) In re Mahaney, 51 P.3d 776 (Wash. 2002), 574(n17), 604(n120) In re Marcus S., 638 A.2d 1158 (Me. 1994), 606(n125) In re Marriage of Baisley, 749 P.2d 446 (Colo. Ct. App. 1987), 574–75(n20) In re Marriage of Jacobsen, 18 Cal. Rptr. 3d 162 (Ct. App. 2004), 274(n257) In re Marriage of Purnel, 60 Cal. Rptr. 2d 667 (Ct. App. 1997), 275(n262) In re Marriage of Skillen, 956 P.2d 1 (Mont. 1998), 270(n241) In re Marriage of Susan C., 60 P.3d 644 (Wash. Ct. App. 2002), 283(n300) In re Marriage of Wellman, 852 P.2d 559 (Mont. 1993), 270(n241) In re Mary G., 59 Cal. Rptr. 3d 703 (Ct. App. 2007), 593(n80) In re Matthew Z., 95 Cal. Rptr. 2d 343 (Ct. App. 2000), 605(n122)

Table of Cases In re Matter of J.B., 900 P.2d 1014 (Okla. Civ. App. 1995), 590–91(n68) In re M.C., 504 N.W.2d 598 (S.D. 1993), 597(n89) In re M.C.M., 180 P.3d 688 (Okla. Civ. App. 2007), 607–8(n128) In re M.C.P., 571 A.2d 627 (Vt. 1989), 580(nn34, 36), 584(n47) In re M.D.M., 59 P.3d 1142 (Mont. 2002), 605(nn121, 122) In re M.E.M., 635 P.2d 1313 (Mont. 1981), 575(n23), 597(n89), 607(n127) In re Merrick V., 19 Cal. Rptr. 3d 490 (Cal. Ct. App. 2004), 593(n80) In re Michael G., 74 Cal. Rptr. 2d 642 (Ct. App. 1998), 603(n113), 604(n118) In re Miguel E., 16 Cal. Rptr. 3d 530 (Ct. App. 2004), 595(n83) In re Miracle M., 73 Cal. Rptr. 3d 24 (Ct. App. 2008), 596(n86) In re M.J.J., 69 P.3d 1226 (Okla. Civ. App. 2003), 605(n122), 608–9(n130) In re M.K., 964 P.2d 241 (Okla. Civ. App. 1998), 606(n125) In re M.M., 65 Cal. Rptr. 3d 273 (Ct. App. 2007), 600(n104) In re M.R.G., 97 P.3d 1085 (Mont. 2004), 606(n123) In re M.S., 706 N.E.2d 524 (Ill. App. Ct. 1999), 583–84(n46) In re M.S., 624 N.W.2d 678 (N.D. 2001), 602(n110), 604(n118), 607–8(n128) In re National Cattle Cong., 247 B.R. 259 (Bankr. N.D. Iowa 2000), 29(n137), 297(n60), 307(n105) In re N.E., 73 Cal. Rptr., 3d 123 (Ct. App. 2008), 584(n47) In re N.E.G.P., 626 N.W.2d 921 (Mich. Ct. App. 2001), 582(n42) In re Nikki R., 131 Cal. Rptr. 2d 256 (Ct. App. 2003), 584(n47), 595–96(nn85, 86), 596–97(n88) In re N.L., 754 P.2d 863 (Okla. 1988), 597–98(n91), 607–8(n128) In re N.M., 74 Cal. Rptr. 3d 138 (Ct. App. 2008), 596(n86) In re N.N.E., 732 N.W.2d 1 (Iowa 2008), 572(n12), 613(n152) In re N.V., 744 N.W.2d 634 (Iowa 2008), 572(n12) In re O.K., 130 Cal. Rptr. 2d 276 (Ct. App. 2003), 583–84(n46)

683 In re Oscar C., Jr., 559 N.Y.S.2d 431 (Fam. Ct. 1990), 611(n140) In re P.A.M., 961 P.2d 588 (Colo. Ct. App. 1998), 580(n34) In re Parental Placement of M.R.D.B., 787 P.2d 1219 (Mont. 1990), 588(n61) In re Pedro N., 41 Cal. Rptr. 2d 819 (Ct. App. 1995), 595–96(n85), 615(n160) In re People in Interest of J.L.P., 870 P.2d 1252 (Colo. Ct. App. 1994), 592(n73), 599(n97) In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C. Cir. 1981) (en banc), 462(n298) In re Petition of Phillip A.C., 149 P.3d 51 (Nev. 2006), 580–51(n36), 615(n158) In re Rayna N., 77 Cal. Rptr. 3d 628 (Ct. App. 2008), 596(n88) In re Riva M., 286 Cal. Rptr. 592 (Ct. App. 1991), 582(n42), 607–8(n128) In re R.L., 961 P.2d 606 (Colo. Ct. App. 1998), 604(n117), 607–8(n128) In re R.L.A., 147 P.3d 306 (Okla. Civ. App., 2006), 574–75(n20) In re Robert A., 55 Cal. Rptr. 3d 74 (Ct. App. 2007), 593(n80) In re Robert T., 246 Cal. Rptr. 168 (Ct. App. 1988), 597(n91), 598(n93) In re Sabrienia B., 621 N.W.2d 836 (Neb. Ct. App. 2001), 601(n107) In re Samuel P., 121 Cal. Rptr. 2d 820 (Ct. App. 2002), 592(n78) In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001), 577–78(nn27, 28) In re S.B., 30 Cal. Rptr. 3d 720 (Ct. App. 2005), 574(n17), 583(n46), 595(n85), 596–97(n88), 614(n155) In re S.B., 79 Cal. Rptr. 3d 449 (Ct. App. 2008), 595(n83), 595(n85) In re S.C., 833 P.2d 1249 (Okla. 1992), 576(n26) In re S.D., 599 N.W.2d 772 (Mich. Ct. App. 1999), 576(n26) In re Shawboose, 438 N.W.2d 272 (Mich. Ct. App. 1989), 580(n36) In re Shawnda G., 634 N.W.2d 140 (Wis. Ct. App. 2001), 592(n73) In re S.I.H.S., 885 N.E.2d 603 (Ind. Ct. App. 2008), 580(n36) In re S.M., 13 Cal. Rptr. 3d 606 (Ct. App. 2004), 593(n80) In re S.M.H., 103 P.3d 976 (Kan. Ct. App. 2005), 614–15(n155)

684 In re SNK, 108 P.3d 836 (Wyo. 2005), 576–77(n26) In re S.N.R., 617 N.W.2d 77 (Minn. Ct. App. 2000), 614(n153) In re S.R., 323 N.W.2d 885 (S.D. 1982), 604(n117) In re S.R., 97 P.3d 559 (Mont. 2004), 606(n124) In re Stairwalt, 546 N.E.2d 44 (Ill. App. Ct. 1989), 580(n34) In re Suspension of Bluespruce, 31 Indian L. Rep. 6105 (Cheyenne R. Sx. Ct. App., Aug. 23, 2004), 327(n193) In re Suzanna L., 127 Cal. Rptr. 2d 860 (Ct. App. 2002), 578(n29), 584(n47), 592(nn77, 78), 596–97(n88) In re S.Z., 325 N.W.2d 53 (S.D. 1982), 592(n75) In re T.A. 883 N.E. 2d 639 (Ill. App. 2008), 583(n46) In re T.C.T., 165 S.W.3d 529 (Mo. Ct. App., 2005), 576(n26) In re T.D., 890 So. 2d 473 (Fla. Dist. Ct. App. 2004), 583(n46) In re Termination of Parental Rights to Arianna R.G., 657 N.W.2d 363 (Wis. 2003), 583(n46) In re Termination of Parental Rights to R.S., 706 N.W.2d 269 (Wis. 2005), 604(n117), 606(n124) In re Terrance B., 50 Cal. Rptr. 3d 815 (Ct. App. 2006), 596–97(n88) In re T.F., 681 N.W. 2d 786 (N.D. 2004), 604(n118), 606(n124) In re T.H., 105 P.3d 354 (Okla. Civ. App. 2005), 602(n111), 609(n131) In re T.J.H., 81 P.3d 504 (Mont. 2003), 580–81(n36) In re T.I.S., 586 N.E.2d 690 (Ill. App. Ct. 1991), 580(n34) In re T.M., 628 N.W.2d 570 (Mich. Ct. App. 2001), 584(n47), 594(n81) In re T.R., 653 A.2d 777 (Vt. 1994), 573(n13) In re T.S., 801 P.2d 77 (Mont. 1990), 598(n93) In re T.W., 921 P.2d 604 (Alaska 1996), 604(n118) In re Vincent M., 59 Cal. Rptr. 3d 321 (Ct. App. 2007), 577–78(n28) In re Wanomi P., 264 Cal. Rptr. 623 (Ct. App. 1989), 580(n34) In re Wayne R.N., 757 P.2d 1333 (N.M. Ct. App. 1988), 597–98(nn89, 91)

Table of Cases In re W.D.H., 43 S.W.3d 30 (Tex. App. 2001), 593–94(n80), 598(n94), 605(n122), 606(n124), 614–15(n155) In re Welfare of M.S.S., 936 P.2d 36 (Wash. CT. App. 1997), 614–15(n155) In re Welfare of B.W., 454 N.W.2d 437 (Minn. Ct. App. 1990), 581(n41), 607(n127) In re Welfare of C.B., 143 P.3d 846 (Wash. Ct. App. 2006), 580(n36) In re Welfare of Children of S.W., 727 N.W. 2d 144 (Minn. Ct. App. 2007), 603(n113), 609(n131), 614(n155) In re Welfare of M.R.A., 730 N.W.2d 54 (Minn Ct. App. 2007), 580(n35) In re Welfare of M.S.S., 936 P.2d 36 (Wash. Ct. App. 1997), 593–94(nn80, 81) In re Welfare of R.M.B., 735 N.W.2d 348 (Minn. Ct. App. 2007), 574(n17) In re Welfare of S.N.R., 617 N.W.2d 77 (Minn. Ct. App. 2000), 580(n36) In re William G., 107 Cal. Rptr. 2d 436 (Ct. App. 2001), 602(n110) In re William K., 73 Cal. Rptr. 3d 737 (Ct. App. 2008), 572(n12) In re Wilson, 634 P.2d 363 (Cal. 1981), 394(n82) In re W.L., 859 P.2d 1019 (Mont. 1993), 592(n75) In re X.V., 33 Cal. Rptr. 3d 893 (Ct. App. 2005), 595–96(n85) In re Z. H., 740 N.W.2d 648 (Iowa Ct. App. 2007), 583(n46) In the Interest of C.Y., 926 P.2d 447 (Kan. 1996), 592(n74) Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Okla. Tax Comm’n, 829 F.2d 967 (10th Cir. 1987), 68(n127), 92–93(n98) Indian Oasis Sch. Dist. v. Zambrano, 526 P.2d 408 (Ariz. Ct. App. 1974), 213(n288) Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522 (1916), 478(n95), 479(n97) Inter-Tribal Council of Ariz., Inc. v. Babbitt, 51 F.3d 199 (9th Cir. 1995), 16–17(n84) Inyo County v. Paiute-Shoshone Indians, 123 S. Ct. 1887 (2003), 10(n42), 230– 31(n34), 311(n118), 633(n66) Iowa Management Consultants, Inc., v. Sac and Fox Tribe, 656 N.W.2d 167 (Iowa 2003), 302(n81) Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987), 233–34, 239, 242, 243(n110),

Table of Cases 244, 245, 246, 247–48, 252, 265(n220), 272–73, 280(n286) Irwin v. Phillips, 5 Cal. 140 (1855), 334(n16) Jackson County ex. rel. Smoker v. Smoker, 459 S.E.2d 789 (N.C. 1995), 269–70(n240) Jackson v. Kahgegab, 33 Indian L. Rep. 6105 (Saginaw Chippewa Indian Tr. App. Ct. Augu. 11, 2003), 329(n195) James v. USHHS, 824 F.2d 1132 (D.C. Cir. 1987), 65(n101) J & M. Aircraft Mobil T Hangers, Inc., v. Johnston County Airport Auth., 605 S.E. 2d 611 (Ga. Ct. App. 2004), 269(n239) J.A.V. v. Velasco, 536 N.W.2d 896 (Minn. Ct. App. 1995), 573(n14) Jaybird Mining Co. v. Weir, 271 U.S. 609 (1926), 478–79(nn96, 100) Jefferson v. Big Horn County, 4 P.3d 26 (Mont. 2000), 486(n154) Jefferson v. Commissioner, 631 N.W.2d 391 (Minn. 2001), 506–7(n306) Jena Band of Choctaw Indians v. Tri-Millennium Corp., 387 F. Supp. 2d 671 (W.D. La. 2005), 545(n184) Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir. 1982), 326(n190) Jicarilla Apache Tribe v. Board of County Comm’rs, 883 P.2d 136 (N.M. 1994), 268(n237) Jicarilla Apache Tribe v. Hodel, 821 F.2d 537 (10th Cir. 1987), 308(n106) Jim v. C.I.T. Fin. Servs. Corp., 533 P.2d 751 (N.M. 1975), 281(n295) Jimi Develop. Corp. v. Ute Mountain Ute Indian Tribe, 930 F. Supp. 493 (D. Colo. 1996), 547(n190) John v. Baker, 982 P.2d 738 (Alaska 1999), 281(n296), 255(n168) John v. Baker, 30 P.3d 68 (Alaska 2001), 618(n172) John v. Baker, 125 P.3d 323, 327 (Alaska 2005), 282(n297) John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc), 426(n324) Johnson v. Gila River Indian Cmty., 174 F.3d 1032 (9th Cir. 1999), 235(n59) Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), 3–4, 6(n26), 79, 80, 88(n67) Johnson v. Wright, 682 N.W.2d 671 (Minn Ct. App. 2004), 275(n263)

685 Joint Bd. of Control v. United States, 646 F. Supp. 410 (D. Mont. 1986), rev’d, 832 F.2d 1127 (9th Cir. 1987), 341(n72), 351(n137), 353(n159), 374–75, 380(n328) Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), 65–66(n104), 84–85(n42) Jones v. Meehan, 175 U.S. 1 (1899), 7(n29), 24, 88(n67) Jordan v. Jordan, 983 P.2d 1258 (Alaska 1999), 574–75(n20), 608(n129) J.S. v. State, 50 P.3d 388 (Alaska 2002), 592(n74), 607–8(n128) Juidice v. Vail, 430 U.S. 327 (1977), 245(n118) J.W. v. R.J., 951 P.2d 1206 (Alaska 1998), 575(n22) Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004), 58(n54), 59(n60), 530(n115) Kahn v. Arizona State Tax Comm’n, 490 P.2d 846 (Ariz. Ct. App. 1971), appeal dismissed, 411 U.S. 941 (1973), 506(n297) Kalantari v. Spirit Mountain Gaming, Inc., 31 Indian L. Rep. 6079 (Grand Ronde Cmty. Tr. Ct. Mar. 24, 2004), 330(n196) Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001), 521(n66), 523(n78), 524–25(n91) Karuk Tribe v. United States, 41 Fed. Cl. 468 (1998), aff ’d, 209 F.3d 1366 (Fed. Cir. 2000), 80(n6) Kaul v. State Dep’t of Revenue, 970 P.2d 60 (Kan. 1998), 489(n176) Kawananakoa v. Polyblank, 205 U.S. 349 (1907), 288(n9) Kaw Nation ex rel. McCauley v. Lujan, 378 F.3d 1139 (10th Cir. 2004), 227–28(n14) Kaw Nation v. Springer, 341 F.3d 1186 (10th Cir. 2003), 142(n4) K.E. v. State, 912 P.2d 1002 (Utah Ct. App. 1996), 605(n121), 606(n124), 608(n129) Keeble v. United States, 412 U.S. 205 (1973), 147(n28), 149(n37) Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), 261(n205) Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988), 425(n321) Kenai Oil & Gas Inc. v. DOI, 522 F. Supp. 521 (D. Utah 1981), aff ’d on other

686 grounds, 671 F.2d 383 (10th Cir. 1982), 326(n190) Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), 276–77(n270) Kennerly v. District Court, 400 U.S. 423 (1971) (per curiam), 44(n219), 156(n81), 217(n315), 266(n228) Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 (1954), 470(n46) Kerr-McGee Corp. v. Farley, 88 F. Supp. 2d 1219 (D.N.M. 2000), 239(n83) Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985), 192(n164), 381(n331), 465(n9) Ketchikan Gateway Borough v. Ketchikan Indian Corp., 75 P.3d 1042 (Alaska 2003), 472(n56) Keweenaw Bay Indian Cmty. v. Kleine, 546 F. Supp. 2d 509 (W.D. Mich. 2008), 230–31(nn30, 34), 502(n277) Keweenaw Bay Indian Cmty. v. Naftaly, 452 F.3d 514 (6th Cir. 2006), 485(n152), 486(n154) Keweenaw Bay Indian Comt. v. Rising, 477 F.3d 881 (6th Cir. 2007), 471(n52), 502(n277), 503(n278) Keweenaw Bay Indian Cmty. v. United States, 136 F.3d 469 (6th Cir. 1998), 525(n95), 570(n313) Kickapoo Traditional Tribe v. Chacon, 46 F. Supp. 2d 644 (W.D. Tex. 1999), 129(n407) Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974), 67(n112) Kimball v. Callahan, 590 F.2d 768 (9th Cir. 1979), 398(n114) Kimball v. Land Use Regulation Comm’n, 745 A.2d 387 (Me. 2000), 78(n189) King v. Norton, 160 F. Supp. 2d 755 (E.D. Mich. 2001), 40(n200) Kiowa Indian Tribe v. Hoover, 150 F.3d 1163 (10th Cir. 1998), 292(n44) Kiowa Tribe v. Lewis, 777 F.2d 587 (10th Cir. 1985), 615(n159) Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), 8(n30), 287(n6), 291–95, 313–14(n132) Kirkpatrick v. Kirkpatrick, 282 F. Supp. 2d 613 (N.D. Ohio 2003), 235(n59) Kitras v. Town of Aquinnah, 833 N.E. 2d 157 (Mass. App. Ct. 2005), 299(n70)

Table of Cases Kittitas Reclamation Dist. v. Sunnyside Valley Irr. Dist., 763 F.2d 1032 (9th Cir. 1985), 341(n72), 374, 416(n234) Kizis v. Morse Diesel Int’l, Inc., 794 A.2d 498 (Conn. 2002), 306(n100) Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206 (9th Cir. 1999), 375–76 Klauser v. Babbitt, 918 F. Supp. 274 (W.D. Wis. 1996), 120(n321) Kleppe v. New Mexico, 426 U.S. 529 (1976), 384(n3), 385(n12) K.N. v. State, 856 P.2d 468 (Alaska 1993), 582(n42) Knight v. Shoshone and Arapahoe Tribes, 670 F.2d 900 (10th Cir. 1982), 429–30 Knoll v. D.M., 730 N.W.2d 604 (N.D. 2007), 580(n35) Koke v. Little Shell Tribe, 68 P.3d 814 (Mont. 2003), 65(n103) Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982), 280(n284) Krempel v. Prairie Island Indian Cmty., 888 F. Supp. 106 (D. Minn. 1995), 244(n114) Krystal Energy Co., v. Navajo Nation, 357 F.3d 1055 (9th Cir. 2004), 297(n59) Laborde v. Pecot, 942 So. 2d 699 (La. Ct. App. 2006), 295(n51), 306(n100) Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 259 F. Supp. 2d 783 (W.D. Wis. 2003), 17(n85), 386(n21), 518(n51) aff’d, 367 F.3d 650 (7th Cir. 2004), 17(n85), 527(n103) Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 367 F.3d 650 (7th Cir. 2004), 91(n89) Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983), 393(n74), 395(n86), 402(n133) Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 595 F. Supp. 1077 (W.D. Wis. 1984), rev’d on reconsideration, 749 F. Supp. 913 (W. O. Wis. 1990), 229(n22), 397(nn101, 104)), 398(n109), 405(n162), 408(n184) Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420 (W.D. Wis. 1987), 398(n109), 402(n136), 405(n162)

Table of Cases Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 668 F. Supp. 1233 (W.D. Wis. 1987), 408(n185) Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 740 F. Supp. 1400 (W.D. Wis. 1990), 402(n133), 408(n185) Lac du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 327 F. Supp. 2d 995 (W.D. Wis. 2004), 307(n105), 557(n236) Lac du Flambeau Band of Lake Superior Chippewa Indians v. Williquette, 629 F. Supp. 689 (W.D. Wis. 1986), 516(n35) Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 743 F. Supp. 645 (W.D. Wis. 1990), 569(n307) Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991), appeal dismissed, 957 F.2d 515 (7th Cir. 1992), 540(n161), 550(n205) Lac du Flambeau Band of Lake Superior Chippewa Indians v. Zeuske, 145 F. Supp. 2d 969 (W.D. Wis. 2000), 506(n304) Lacoste v. Louisiana Dep’t of Conservation, 263 U.S. 545 (1924), 384(n3), 392(n62) Laducer v. Fort Totten Hous. Auth., 28 Indian L. Rep. 6101 (Spirit Lake Tr. Ct. Jul. 10, 2000), 330(n196) LaFramboise v. Leavitt, 439 F.3d 792 (8th Cir. 2006), 264(n217) Lake and Kerry Spears Masonry, Inc., v. Mashantucket Pequot Tribal Nation, 33 Indian L. Rep. 6040 (Mash. Peq. Tr. Ct. Mar. 3, 1006), 330(n196) Lamere v. Superior Court, 31 Cal. Rptr. 2d 880 (Ct. App. 2005), 49(n7), 275(n262), 315(n135) Landauer v. Landauer, 975 P.2d 577 (Wash. Ct. App. 1999), 275(n262) Landmark Golf Ltd. P’ship v. Las Vegas Paiute Tribe, 49 F. Supp. 2d 1169 (D. Nev. 1999), 234(n56), 235(n61), 244(n114) Landreman v. Martin, 530 N.W.2d 62 (Wis. Ct. App. 1995), 269(n239) Langdeau v. Langdeau, 751 N.W.2d 722 (S.D. 2008), 270(n241) Langley v. Edwards, 872 F. Supp. 1531 (W.D. La. 1995), 525(n94), 553(n222) Large Oil Co. v. Howard, 248 U.S. 549 (1919), 478–79(n96)

687 LaRock v. Wisconsin Dep’t of Revenue, 621 N.W.2d 907 (Wis. 2001), 506–7(n306) Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), 314(n133) Larson v. Martin, 386 F. Supp. 2d 1083 (N.D. 2005), 248(n132) Lattimer’s Lessee v. Poteet, 39 U.S. (14 Pet.) 4 (1840), 81(n12) LaVigne v. Mohegan Tribe, 32 Indian L. Rep. 6044 (Mohegan Tr. Ct. Mar. 3, 2005), 330(n196) Lawrence v. Barona Valley Ranch Resort and Casino, 64 Cal. Reptr. 3d 23 (Ct. App. 2007), 306(n100) Lawrence v. DOI, 525 F.3d 916 (9th Cir. 2008), 19(n94), 21(n100) Learned v. Cheyenne-Arapaho Tribe, 596 F. Supp. 537 (W.D. Okla. 1984), 319(n147) LeBeau v. Dakota, 815 F. Supp. 1074 (W.D. Mich. 1993), 325(n182) LeBeau v. United States, 115 F. Supp. 2d 1172 (D.S.D. 2000), 295(n51) LeBeau v. United States, 171 F. Supp. 2d 1009 (D.S.D. 2001), 83(n30) LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007), 17(n85), 21(n100) LECG, LLC v. Seneca Nation, 518 F. Supp. 2d 274 (D.D.C. 2007), 235(n61), 236(n65) Ledoux v. Grand Casino-Coushatta, 954 So. 2d 902 (La. Ct. App. 2007), 304(n92), 306(n100), 556(n234) Leisnoi, Inc. v. Stratman, 154 F.3d 1062 (9th Cir. 1998), 84(n38) Lemke v. Brooks, 614 N.W.2d 242 (Minn. Ct. App. 2000), 272(n247) Letitia v. Superior Court, 97 Cal. Rptr. 2d 303 (Ct. App. 2000), 602(n110) Lewis v. Edwards, 815 So.2d 656 (Fla. Dist. Ct. App. 2002), 315–16(n136) Lewis v. Hanson, 227 P.2d 70 (Mont. 1951), 357(n186) Lewis v. Norton, 424 F.3d 959 (9th Cir. 2005), 49(n7), 227(n14) Lewis v. Sac & Fox Nation, 896 P.2d 503 (Okla. 1994), 270(n241) Lewis v. State, 55 P.3d 875 (Idaho Ct. App. 2002), 51(n14), 159(n99) L.G. v. State Dep’t of Health and Soc. Servs., 14 P.3d 946 (Alaska 2000), 608– 9(n130), 613(n151)

688 Liberty v. Jones, 782 P.2d 369 (Mont. 1989), 270(n241) Library of Congress v. Shaw, 478 U.S. 310 (1986), 367(n244) Lilly v. Davis, 27 Indian L. Rep. 6171 (Ft. Peck Tr. Ct. App. Feb. 14, 2000), 256–57(n177) Lincoln v. Vigil, 508 U.S. 182 (1993), 18(n88), 21(n99) Linneen v. Gila River Indian Cmty., 276 F.3d 489 (9th Cir. 2002), 309(n112) Little Horn State Bank v. Crow Tribal Court, 690 F. Supp. 919 (D. Mont. 1988), vacated pursuant to stipulation, 708 F. Supp. 1561 (D. Mont. 1989), 286(n316), 325(n188) Lohnes v. Cloud, 254 N.W.2d 430 (N.D. 1977), 282(n297) Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), 8–9 Long v. Mohegan Tribal Gaming Auth., 25 Indian L. Rep. 6111 (Mohegan Gaming Disputes Trial Ct. Dec. 5, 1997), 330(n196) Longie v. Spirit Lake Tribe, 400 F.3d 586 (8th Cir. 2005), 227(n13) Loudner v. United States, 108 F.3d 896 (8th Cir. 1997), 23–24(n109) Louis v. United States, 54 F. Supp. 2d 1207 (D.N.M. 1999), 264(n217) Loving v. United States, 517 U.S. 748 (1996), 173(n28) Loveness v. State ex rel. Ariz. Dep’t of Revenue, 963 P.2d 303 (Ariz. Ct. App. 1998), 474(n73), 506–7(n306) Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809 (8th Cir. 1983), 388(n34), 391(nn54, 55), 392(n63) Lower Brule Sioux Tribe v. South Dakota, 917 F. Supp. 1434 (D.S.D. 1996), aff ’d, 104 F.3d 1017 (8th Cir. 1997), 197(n195), 430, 436(n73), 440(n110) Lower Brule Sioux Tribe v. South Dakota, 104 F.3d 1017 (8th Cir. 1997), 389(n44), 436 Lubbers v. Anderson, 524 N.W.2d 735 (Minn. Ct. App. 1994), 309(n112) Lumber Indus. Pension Fund v. Warm Springs Forest Prods. Indus., 939 F.2d 683 (9th Cir. 1991), 27(n129) Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993), 485(n152), 624(n17), 625(n24)

Table of Cases Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), 134–35, 140(n508) MacArthur v. San Juan County, 309 F.3d 1216 (10th Cir. 2002), 209(n275), 228(n15), 255(n169), 265(n222), 281(n296), 286(n318); on remand, 391 F. Supp. 2d 895 (D. Utah), 281(n296); reconsid. denied, 405 F. Supp. 2d 1302 (D. Utah 2006), 281(n296) MacArthur v. San Juan County, 497 F.3d 1057 (10th Cir. 2007), 203(n242), 204(n244), 238(n72), 263–64(nn213, 216), 265(n223), 280(nn289, 291) Machal, Inc. v. Jena Band of Choctaw Indians, 387 F. Supp. 2d 659 (W.D. La. 2005), 545–46(n184) Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007), 435(n68) Maison v Confederated Tribes of the Umatilla Reserv., 314 F.2d 169 (9th Cir. 1963), 406(n163) Maisy W. v. State ex rel. Dep’t of Health and Soc. Servs., 175 P.3d 1263 (Alaska 2008), 603(n113) Makah Indian Tribe v. McCauly, 39 F. Supp. 75, 78 (W.D. Wash. 1941), 403(n145) Makah Indian Tribe v. Schoettler, 192 F.2d 224 (9th Cir. 1951), 404(n150), 405(n157) Makah Indian Tribe v. United States, 7 Ind. Cl. Comm. 477 (1959), 416(n236) Malabed v. North Slope Borough, 42 F. Supp. 2d 927 (D. Alaska 1999), aff ’d on alternate state law grounds, 335 F.3d 864 (9th Cir. 2003), 57(n50) Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003), 56(n49) Malabed v. North Slope Borough, 335 F.3d 864 (9th Cir. 2003), 56(n49) Malaterre v. Amerind Risk Mgmt, 373 F. Supp. 2d 980 (D.N.D. 2005), 235(n60) Malaterre v. Malaterre, 293 N.W.2d 139 (N.D. 1980), 270(n241) Malone v. Bureau of Indian Affairs, 38 F.3d 433 (9th Cir. 1994), 54(n36) Mancari v. Morton, 417 U.S. 535 (1974), 19(n94) Mann v. North Dakota Tax Comm’r, 692 N.W.2d 490 (N.D. 2005), 494(n219) Mann v. Tacoma Land Co., 153 U.S. 273 (1894), 98–99(n134)

Table of Cases Manybeads v. United States, 209 F.3d 1164 (9th Cir. 2000), 295(n51) Manygoats v. Kleppe, 558 F.2d 556 (10th Cir. 1977), 114(n264) Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, (9th Cir. 2006), modified 519 F.3d 838 (9th Cir. 2008), 310(n115), 311–12(n118) Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367 (1842), 98(nn131, 133) Martinez v. Santa Clara Pueblo, 540 F.2d 1039 (10th Cir. 1976), rev’d, 436 U.S. 49 (1978), 7(nn28, 29), 322(n170) Martinez v. Southern Ute Tribe, 374 P.2d 691 (Colo. 1962), 309–10(n112) Marty Indian School Board, Inc. v. South Dakota, 824 F.2d 684 (8th Cir. 1987), 488–89 Maryboy v. Utah State Tax Comm’n, 904 P.2d 662 (Utah 1995), 505(n296) Maryland Cas. Co. v. Citizens Nat’l Bank, 361 F.2d 517 (5th Cir. 1966), 308–9(n111) Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024 (2d Cir. 1990), 550(n205), 564(n272) Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245 (D. Conn. 1986), 516(n35) Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979), 65–66(n104), 84–85(n42) Mashpee Tribe v. Sec’y, 820 F.2d 480 (1st Cir. 1987), 530(n115) Mashpee Wampanoag Tribal Council, Inc., v. Norton, 336 F3d 1094 (D.C. Cir. 2003), 63(n98) Matheson v. Gregoire, 161 P.3d 486 (Wash. Ct. App. 2007), 315–16(n136) Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925), 387(n27), 396(n95), 417(n241) Massiah v. United States, 377 U.S. 201 (1964), 146(n25) Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Kean-Argovitz Resorts, 249 F. Supp. 2d 901 (W.D. Mich. 2003), 302(n81) Matsch v. Prairie Island Cmty., 567 N.W.2d 276 (Minn. Ct. App. 1997), 272(n245) Mattz v. Arnett, 412 U.S. 481 (1973), 352(n147) Mattz v. Superior Court, 758 P.2d 606 (Cal. 1988), 388(nn35, 37) Maxa v. Yakima Petroleum, Inc., 924 P.2d 372 (Wash. Ct. App. 1996), 269(n239)

689 Maxam v. Lower Sioux Indian Cmty., 829 F. Supp. 277 (D. Minn. 1993), 543(n174) Maxey v. Wright, 54 S.W. 807 (Ct. App. Ind. Terr.), aff ’d, 105 F. 1003 (8th Cir. 1900), 466(n17) Mayes v. Cherokee Nation (In re Mayes), 294 B.R. 145 (B.A.P. 10th Cir. 2003), 297(n60), 308(n106) Maynard v. Narragansatt Indian Tribe, 984 F.2d 14 (1st Cir. 1993), 294(n48), 299(n70) McAllister v. Spirit Mountain Gaming, Inc., 33 Indian L. Rep. 6057 (Grand Ronde Cmty. Tr. Ct. Dec. 29, 2005), 327– 28(n193), 330(n196) McAlpine v. United States, 112 F.3d 1429 (10th Cir. 1997), 90(n81) McBride v. Shawnee County, 71 F. Supp. 2d 1098 (D. Kan. 1999), 56(n49) McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 (1973), 170(n7), 216, 340(n63), 386(n23), 472, 482, 483, 505–6 McClendon v. United States, 885 F.2d 627 (9th Cir. 1989), 308(n106) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), 464(n1) McDonald v. Means, 300 F.3d 1037 (9th Cir.), amended, 309 F.3d 530 (9th Cir. 2002), 263(n215) McDowell v. State, 785 P.2d 1 (Alaska 1989), 426(n322) McGrady v. Three Affiliated Tribes, 31 Indian L. Rep. 6058 (N. Plns. Intertr. Ct. App., May 19, 2004), 327(n193) McKenzie County Soc. Servs. Bd. v. C.G., 633 N.W.2d 157 (N.D. 2001), 269(n240) McLean v. Bailey, 15 Indian L. Rep. 6013 (Northern Chy. Tr. Ct. Apr. 22, 1988), 327(n192) McNally CPA’s & Consultants, S.C. v. DJ Hosts, Inc., 692 N.W.2d 247 (Wis. Ct. App. 2004), 311(n118) Means v. Navajo Nation, 432 F.3d 924 (10th Cir. 2005), 153(n69), 321(n165), 390(n47) Means v. Northern Cheyenne Tribal Court, 154 F.3d 941 (9th Cir. 1998), 152(n62) Menominee Indian Tribe v. Thompson, 922 F. Supp. 184 (W.D. Wis. 1996), aff ’d, 161 F.3d 449 (7th Cir. 1998), 457(n254) Menominee Indian Tribe v. Thompson, 161 F.3d 449 (7th Cir. 1998), 409(n188)

690 Menominee Indian Tribe v. United States, 539 F. Supp. 2d 152 (D.D.C. 2008), 46(n237) Menominee Tribe v. United States, 391 U.S. 404 (1968), 25(n116), 66(n111), 367(n244), 387(n25), 398(n114), 416(n238) Mentz v. United States, 359 F. Supp. 2d 856 (D.N.D. 2005), 264(n217) Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804 (1986), 228(n15) Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), 191–92, 199, 201, 251, 386(n20), 465, 466, 469, 480 Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973), 42(n208), 90(n79), 93(n99), 169(n2), 210(n278), 220, 222, 224, 294(n49), 380(n327), 392(n63), 472, 473(n59), 478(n93), 480(n113), 482, 483 Mescalero Apache Tribe v. Martinez, 519 F.2d 479 (10th Cir. 1975), 227(n13) Mescalero Apache Tribe v. New Mexico, 630 F.2d 724 (10th Cir. 1980), aff ’d, 462 U.S. 324 (1983), 386(n20), 389(n45), 435, 436(n73) Mescalero Apache Tribe v. O’Cheskey, 625 F.2d 967 (10th Cir. 1980), 355(n155) Mexican v. Circle Bear, 370 N.W.2d 737 (S.D. 1985), 282(n297) Meyer & Assocs., Inc. v. Coushatta Tribe, 965 So. 2d 930 (La. Ct. App. 2007), 272(n245) Miami Nation of Indians v. Babbitt, 887 F. Supp. 1158 (N.D. Ind. 1995), 66(n105) Miami Nation of Indians v. USDOI, 255 F.3d 342 (7th Cir. 2001), 63(nn93, 95), 65(n101) Miami Tribe v. United States, 927 F. Supp. 1419 (D. Kan. 1996), 522–24 Miami Tribe v. United States, 5 F. Supp. 2d 1213 (D. Kan. 1998), 522(n73) Miami Tribe v. United States, 374 F. Supp. 2d 934 (D. Kan. 2005), 123–24(n351) Miccosukee Tribe v. Florida State Athletic Comm’n, 226 F.3d 1226 (11th Cir. 2000), 229(n21) Miccosukee Tribe v. Napoleoni, 890 So. 2d 1152 (Fla. Dist. Ct. App. 2004), 304(n92), 306(n101) Miccosukee Tribe v. United States, 430 F. Supp. 2d 1328 (S.D. Fla. 2006), 21(n100)

Table of Cases Michael J., Jr. v. Michael J., Sr., 7 P.3d 960 (Ariz. Ct. App. 2000), 577(n27), 582(n42) Michigan Gambling Ass’n v. Kempthorne, 525 F.3d 23 (D.C. Cir. 2008), 75(n167) Michigan Gambling Opposition v. Norton, 477 F. Supp. 2d 1 (D.D.C. 2007), 91(n89), 521(n65) Michigan v. Doran, 439 U.S. 282 (1978), 166(n124) Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994 (9th Cir. 2004), 408(n180), 419(n262) Midwater Trawlers Coop. v. United States Dep’t of Commerce, 139 F. Supp. 2d 1136 (W.D. Wash. 2000) rev’d in part on other grounds, 282 F.3d 710 (9th Cir. 2002), 397(n102), 399(n124), 408(nn180, 182), 419(nn262, 263) 420(nn264, 268) Milbank Mut. Ins. Co. v. Eagleman, 705 P.2d 1117 (Mont. 1985), 270–71(n241) Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994), aff ’d, 124 F.3d 904 (8th Cir. 1997), aff ’d, 526 U.S. 172 (1999), 397(n104) Miller v. McClain, 249 U.S. 308 (1919), 110(n228) Mills v. Vilas County Bd. of Adjustment, 660 N.W.2d 705 (Wis. Ct. App. 2003), 282(n297) Milos v. Mashantucket Pequot Gaming Comm’n, 28 Indian L. Rep. 6174 (Mash. Peq. Ct. App. July 12, 2001), 329(n195) Miner Elec., Inc., v. Muscogee (Creek) Nation, 505 F.3d 1007 (10th Cir. 2007), 298(n63), 313(n128), 389(n45) Minnesota v. Hitchcock, 185 U.S. 373 (1902), 171(n142), 352 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), 11(n47), 24(nn111, 113), 385(n4), 394(n83), 397(n101), 404(n148) Minnesota v. United States, 305 U.S. 382 (1939), 120(n318) Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), 578–79, 582(n43), 587–88, 589(n64), 590(n67), 598–99(n95), 615 Missouri ex rel. Nixon v. Coeur d’Alene Tribe, 164 F.3d 1102 (8th Cir. 1999), 256(n171)

Table of Cases Missouri River Servs., Inc. v. Omaha Tribe, 267 F.3d 848 (8th Cir. 2001), 303(n89) Missouri v. Holland, 252 U.S. 416 (1920), 385(nn7, 9) Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835), 89(n74), 394(n81) Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976), 10(n43), 55(n48), 218(n323), 219(n326), 227(n12), 228, 230(n30), 291(n30), 471, 475(n78), 483, 497–98, 500, 501, 502 Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir. 1980), 84(n42), 85(n43) Monette v. Schlenvogt, 32 Indian L. Rep. 6074 (Turtle Mt. Ct. App. Mar. 31, 2005), 327(n193) Montana Catholic Missions v. Missoula County, 200 U.S. 118 (1906), 256(n171) Montana Dep’t of Transp. v. King, 191 F.3d 1108 (9th Cir. 1999), 104(n245), 237(n68), 256(n177), 263–64(n216) Montana v. Atlantic Richfield Co., No. CV83-317-H-PGH (D. Mont. Filed Oct. 17, 1994), 457(n254) Montana v. Blackfeet Tribe, 471 U.S. 759 (1985), 25(n117), 106(n197), 218(n323), 470(n44), 480(n109) Montana v. Clark, 749 F.2d 740 (D.C. Cir. 1984), 461(n296), 463(nn303, 305) Montana v. Crow Tribe, 484 U.S. 997 (1988), summarily aff’g 819 F.2d 895 (9th Cir. 1987), 475(n75), 481(n116) Montana v. Crow Tribe, 523 U.S. 696 (1998), 386(n21), 476(n79), 482 Montana v. Gilham, 133 F.3d 1133 (9th Cir. 1998), 265(n221) Montana v. United States, 450 U.S. 544 (1981), 39(n195), 93(n101), 98(n130), 100(n142), 102–3, 172(n25), 186, 190– 91, 218, 247(n126), 256, 380(nn325, 326), 389(n40), 390–91, 429, 432 Montana v. USEPA, 941 F. Supp. 945 (D. Mont. 1996), aff ’d, 137 F.3d 1135 (9th Cir. 1998), 175(nn44, 45, 46), 197(n195), 431, 441(n115), 444(nn133, 136), 445 Montgomery v. Flandreau Santee Sioux Tribe, 905 F. Supp. 740 (D.S.D. 1995), 543(n174) Montoya v. United States, 180 U.S. 261 (1901), 62(n87), 65(n103) Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir. 1998), 21(n100)

691 Morongo Band of Mission Indians v. Rose, 893 F.2d 1074 (9th Cir. 1990), 231(n37) Morris v. Hitchcock, 194 U.S. 384 (1904), 191(n163) Morris v. Tanner, 288 F. Supp. 2d 1133(D. Mont. 2003), 153(n69) aff’d, 160 Fed. Appx. 600 (9th Cir. 2005), 153(n69), 185(n123) Morrow v. Winslow, 94 F.3d 1386 (10th Cir. 1996), 615(nn156, 158) Morton v. Mancari, 417 U.S. 535 (1974), 10(n42), 50(n8), 54–55. 58, 59, 60(n71), 61, 385(n14), 586(n51) Morton v. Ruiz, 415 U.S. 199 (1974), 21(n99) Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745 (D.C. Cir. 2007), 140(n508) Mountain v. Fort Berthold Housing Authority, 31 Indian L. Rep. 6102 (N. Plns. Intertr. Ct. App. Sept. 24, 2003), 300(n196) Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988), 402(n143) Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir. 2000), 400 Muckleshoot Indian Tribe v. Trans-Canada Enters., Ltd., 713 F.2d 455 (1983) (per curiam), 103(n171) Muckleshoot Indian Tribe v. USFS, 177 F.3d 800 (9th Cir. 1999), 138(n496) Mullenberg v. United States, 857 F.2d 770 (Fed. Cir. 1988), 55–56(n48) Murphy v. Sirmons, 497 F. Supp. 2d 1257, 1289–92 (E.D. Okla. 2007), 148(n34) Murphy v. State, 124 P.3d 1198 (Okla. Crim App. 2005), 73(n161) Muscogee (Creek) Nation v. One Thousand Four Hundred Sixty Three & 14/100 Dollars ($1463.14), 32 Indian L. Rep. 6133 (Muscogee (Creek) S. Ct. Apr. 29, 2005), 257 Mustang Fuel v. Hatch, 890 F. Supp. 995 (W.D. Okla. 1995), aff ’d, 94 F.3d 1382 (10th Cir. 1996), 249(n134) Mustang Prod. Co. v. Harrison, 94 F.3d 1382 (10th Cir. 1996), 69(n128), 74(n163) Muwekma Ohlone Tribe v. Kempthorne, 452 F. Supp. 2d 105 (D.D.C. 2006), 65(n102) Myrick v. Devils Lake Sioux Mfg. Corp., 718 F. Supp. 753 (D.N.D. 1989), 245(n115)

692 N.A. v. State, 19 P.3d 597 (Alaska 2001), 602(n111) Na Iwi O Na Kupuna O Makopu v. Dalton, 894 F. Supp. 1397 (D. Hawaii 1995), 128(n391) Namekagn Development Co. v. Bois Forte Reservation Housing Authority, 395 F. Supp. 23, 27 (D. Minn. 1974), aff’d, 517 F.2d 508 (8th Cir. 1975), 310(n115) Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908 (1st Cir. 1996), 69(n128) Narragansett Indian Tribe v. Rhode Island, 667 A.2d 280 (R.I. 1995), 553(n222), 623(n12) Narragansett Indian Tribe v. Rhode Island, 296 F. Supp. 2d 153 (D.R.I. 2003), aff’d, 449 F.3d 16 (1st Cir. 2006)(en banc), 29(n136), 86(n55), 218(n323), 219(n327), 220(n332), 230–31(n34), 294(n50), 299(n70), 313–14(n132), 500(n263) Narragansett Tribe v. Southern R.I. Land Dev. Co., 418 F. Supp. 798 (D.R.I. 1976), 65–66(n104), 84–85(n42) Natewa v. Natewa, 499 P.2d 691 (N.M. 1972), 270(n241) National Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), 385(n13) National Audubon Soc’y v. Department of Water & Power, 496 F. Supp. 499 (E.D. Cal. 1980), 376(n299) National Farmers Union Ins. Cos. v. Crow Tribe, 560 F. Supp. 213 (D. Mont. 1983), rev’d, 736 F.2d 1320 (9th Cir. 1984), rev’d, 471 U.S. 845 (1985), 171(n9), 185(n124), 186(n126), 232(n40), 232–34, 236, 241, 243(n109), 244, 245, 246–47, 248, 249, 251–52, 261(n205) National Indian Youth Council v. Andrus, 501 F. Supp. 649 (D. N.M. 1980), 139(n498) Native Am. Church of Orth America v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959), 521(n63) Native American Distributing v. Seneca­Cayuga Tobacco Co., 491 F. Supp. 2d 1056 (N.D. Okla. 2007), 309(n112), 315(n136) Native American Mohegans v. United States, 184 F. Supp. 2d 198 (D. Conn. 2002), 65(n101), 295(n51)

Table of Cases Native Village of Eyak v. GC Contractors, 658 P.2d 756 (Alaska 1983), 303(n90), 625(n24) Native Village of Eyak v. Trawler Diane Marie, Inc., 154 F.3d 1090 (9th Cir. 1998), 84(n39), 394(n80) Native Village of Nenana v. State, 722 P.2d 219 (Alaska 1986), 591 Native Village of Noatak v. Hoffman, 896 F.2d 1157 (9th Cir. 1990), rev’d on other grounds, 501 U.S. 775 (1991), 226(n7), 229 Native Village of Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992), 62(n87), 228(n15) Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 1991), 226(n7), 283(n303), 589(n63), 591(n71), 617(n167), 618(nn170, 171) Native Village of Venetie I.R.A. Council v. Alaska, 155 F.3d 1150 (9th Cir. 1998), 618(n170) Natural Arch and Bridge Society v. Alston, 209 F. Supp. 2d 1207 (D. Utah 2002), 140(n508) Navajo Nation v. Confederated Tribes and Bands of Yakama Indian Nation, 331 F.3d 1041 (9th Cir. 2003), 587(n59) Navajo Nation v. DHHS, 325 F.3d 1133 (9th Cir. 2003), 26(n124) Navajo Nation v. District Court, 624 F. Supp. 130 (D. Utah 1985), aff ’d on mootness grounds, 831 F.2d 929 (10th Cir. 1987), 615(n159) Navajo Nation v. Intermountain Steel Bldgs., Inc., 42 F. Supp. 2d 1222 (D.N.M. 1999), 234(n56), 243(n110), 243(n110), 244(n114), 245(n117) Navajo Nation v. Superior Court, 47 F. Supp. 2d 1233, (E.D. Wash. 1999), aff ’d on other grounds, 331 F.3d 1041 (9th Cir. 2003), 590(n67), 614(n155), 615(n156) Navajo Nation v. United States, 68 Fed. Cl. 805 (2005), rec’d, 501 F.3d 1327 (Fed. Cir. 2007), 14(n71), 22(n102) Navajo Nation v. USFS, 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc), 136(n472, 475), 137(n481), 138(n486) Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455 (10th Cir. 1987), 87(n59) Nebraska Pub. Power Dist. v. 100.95 Acres of Land, 719 F.2d 956 (8th Cir. 1983), 119(n310), 120(n319)

Table of Cases Negonsott v. Samuels, 507 U.S. 99 (1993), 148(n34), 155(n76) Neighbors for Rational Dev. Inc., v. Norton, 379 F.3d 956 (10th Cir. 2004), 91(n90) Nelson v. Hunter, 888 P.2d 124 (Or. Ct. App. 1995), 580(n36) Nero v. Cherokee Nation, 892 F.2d 1457 (10th Cir. 1989), 326(n190) Nevada v. Hall, 440 U.S. 410 (1979), 288(n10) Nevada v. Hicks, 944 F. Supp. 1455 (D. Nev. 1996), aff ’d, 196 F.3d 1020 (9th Cir. 1999), rev’d, 533 U.S. 353 (2001), 93(n101), 164(n117), 165, 199, 213(n289), 217, 236–37, 241(n93), 247(n127), 250–51(n144), 257–61, 263–64(n216), 381(n333), 388(n35), 389(nn42, 43), 390(nn48, 53), 432–33, 634(n67), 638(n77) Nevada v. United States, 463 U.S. 110 (1983), 20(n98), 352(n152), 366(n240) Nevada v. United States, 221 F. Supp. 2d 1241 (D. Nev. 2002), 90(n80), 91(n89) Nevada ex rel. Shamburger v. United States, 165 F. Supp. 600 (D. Nev. 1958), aff ’d on other grounds, 279 F.2d 699 (9th Cir. 1960), 355(n172), 367(n244) New Mercer Ditch Co. v. Armstrong, 40 P. 989 (Colo. 1895), 366(n233) New Mexico ex rel. Energy and Minerals Dep’t v. USDOI, 820 F.2d 441 (D.C. Cir. 1987), 461(n296) New Mexico ex rel. Reynolds v. Aamodt, 618 F. Supp. 993 (D.N.M. 1985), 336(n36), 337(n37) New Mexico Taxation and Revenue Dep’t v. Greaves, 864 P.2d 324 (N.M. Ct. App. 1993), 470(n45) New Mexico v. Aamoldt, 537 F.2d 1102, 1108 (10th Cir. 1976), 336(n36) New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), 212(n287), 213(nn289, 290), 219(n325), 251, 353(n155), 386(nn16, 18, 22), 387(n28), 388(n34), 390, 391(nn57, 58), 392(n63), 474(n70) New York Ass’n of Convenience Stores v. Urbach, 699 N.E.2d 904 (N.Y. 1998), on remand, 712 N.Y.S.2d 220 (App. Div. 2000), 502(n276) New York City Dep’t of Soc. Servs. on Behalf of Oscar C., Jr. v. Oscar C., 600 N.Y.S.2d 957 (App. Div. 1993), 600–601(n106), 606(n124), 611(n140)

693 New York Dep’t of Taxation and Finance v. St. Regis Group (Mohawk Aswesasne Reserv.), 635 N.Y.S.2d 980 (App. Div. 1995), 496(n231) New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916), 404(n146) New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908), 384(n3) New York State Dep’t of Taxation and Fin. v. Tyler Distrib. Ctrs. Inc., 639 N.Y.S.2d 515 (App. Div. 1996), 496(n231) New York v. Shinnecock Tribe, 400 F. Supp. 2d 486 (E.D.N.Y 2005), 65(n101) New York v. Shinneckock Indian Nation, 274 F. Supp. 2d 268 (E.D.N.Y. 2003), 519(n54) New York v. Shinnecock Indian Nation, 523 F. Supp. 2d 185 (E.D.N.Y. 2007), 80(n4), 81(nn12, 14), 89(n76) New York v. Oneida Indian Nation, 90 F.3d 58 (2d Cir. 1996), 558(n240) New York v. Oneida Indian Nation, 78 F. Supp. 2d 49 (N.D.N.Y. 1999), 563(n267) New York v. United States, 505 U.S. 144 (1992), 183(n113), 567(n293) Nez Perce Tribe v. Idaho Power Company, 847 F. Supp. 791 (D. Idaho 1994), 414(n224) Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 862 F. Supp. 995 (W.D.N.Y. 1994), aff ’d, 94 F.3d 747 (2d Cir. 1996), 227(n13), 314–15(n134) Nicodemus v. Washington Water Power Co., 264 F.2d 614 (9th Cir. 1959), 120(n319) Nicole K. v. Superior Ct., 53 Cal. Rptr. 3d 251, 255–56 (Ct. App. 2007), 585(n49) Nielsen v. Brocksmith Land & Livestock, Inc., 88 P.3d 1269, 1273 (Mont. 2004), 272(n245) Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21 (1st Cir. 2000), 227(n13), 243(n110), 244(n113), 250(n141), 310(nn114, 116) Ninilchik Traditional Council v. United States, 227 F.3d 1186 (9th Cir. 2000), 426(n324) NLRB v. Chapa De Indian Health Program, 316 F.3d 995 (9th Cir. 2003), 27–28(n129), 288(n8) NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002) (en banc), 27– 28(nn129, 131)

694 No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981), 412(n212) Nord v. Kelly, 520 F.3d 846 (8th Cir. 2008), 255(n168), 256(n177) North Dakota v. Fredericks, 940 F.2d 333 (8th Cir. 1991), 233(n51) North Sea Prods., Ltd. v. Clipper Seafoods Co., 595 P.2d 938 (Wash. 1979), 294(n48) North Side Canal Co. v. Twin Falls Canal Co., 12 F.2d 311 (D. Idaho 1926), 361(n203) North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980), 17–18(n86), 419(n258) Northern Arapaho Tribe v. Wyoming, 389 F.3d 1308 (10th Cir. 2004), order granting reh’g en banc vacated, 429 F.3d 934 (10th Cir. 2005), 550(n205) Northern Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir. 1987), 417(n240) Northern Border Pipeline Co. v. State, 772 P.2d 829 (Mont. 1989), 487(n158) Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976), 38(n188) Northern Pac. Ry. v. Mitchell, 208 F. 469 (E.D. Wash. 1913), 100(n145) Northern Pac. Ry. Co. v. Wismer, 246 U.S. 283 (1918), 352 Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 781 F. Supp. 612 (D. Minn. 1991), aff ’d, 991 F.2d 458 (8th Cir. 1993), 297(n56), 313–14(n132), 460 Northwest Central Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493 (1989), 211(n279) Northwest Sea Farms v. United States Army Corps of Eng’rs, 931 F. Supp. 1515 (W.D. Wash. 1996), 416(n239) Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335 (1945), 3(n12), 10(n41), 80(n4) Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18 (1st Cir. 2007), 17–18(n86) Ogden v. Iowa Tribe, 250 S.W.3d 822 (Mo. Ct. App. 2008), 309(n112) Oglala Sioux Tribe v. C & W Eners. Inc., 487 F.3d 1129 (9th Cir. 2007), 230–31(n34), 308(n108) Oglala Sioux Tribe v. Hallett, 708 F2d 326 (8th Cir. 1983), 76(n175)

Table of Cases Oglala Sioux Tribe v. United States Army Corps of Eng’rs, 537 F. Supp. 2d 161 (D.D.C. 2008), 92(n93) Ohio v. USDOI, 880 F.2d 432 (D.C. Cir. 1989), 457(n253) Okanogan Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir. 2000), 21(n100) Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995), 69(n128), 70(n141), 217(n317), 218(n323), 219(n326), 470(n42), 471(n51), 473(n59), 488(n169), 506 Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991), 8(n30), 29(n136), 218(n322), 287(n6), 289(n17), 290, 291, 293–94, 469(n38), 500–1, 632(n63) Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114 (1993), 69(n128), 71(n142), 210(n278), 217(n317), 469(n38), 482(n131), 483(n136), 506 Oklahoma Tax Comm’n v. Texas Co. 336 U.S. 342 (1949), 480(n113) Olguin v. Lucero, 87 F.3d 401 (10th Cir. 1996), 326(n190) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), 1(n2), 26(n122), 146(n20), 151(n54), 152(n62), 176(n51), 179, 183, 186–87, 232, 254(n161), 261(n205), 325, 389(n45) O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987), 137(n478) Omaha Tribe v. Miller, 311 F. Supp. 2d 816 (S.D. Iowa 2004), 212(n286) Omaha Tribe v. Village of Walthill, 334 F. Supp. 823 (D. Neb. 1971), aff ’d, 460 F.2d 1327 (8th Cir. 1972) (per curiam), 279(n280) Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985), 1(n1), 19(n93), 30(n140), 81(n12), 85(n45), 89(n76), 340(n63) Oneida Indian Nation v. City of Sherrill, 145 F. Supp. 2d 226 (N.D.N.Y. 2001), aff ’d in relevant part, 337 F.3d 139 (2d Cir. 2003), 94(n106), 472(n56) Oneida Indian Nation v. County of Oneida, 432 F. Supp. 2d 285 (N.D.N.Y. 2006), 86(n53), 393(n75) Oneida Indian Nation v. Madison County, 401 F. Supp. 2d 219 (N.D.N.Y. 2005), 86(n53), 486(n154)

Table of Cases Oneida Indian Nation v. New York, 860 F.2d 1145 (2d Cir. 1988), 81(n14), 84(n42) Oneida Indian Nation v. New York, 500 F. Supp. 2d 128 (N.D.N.Y. 2007), 86(n54) Oneida Indian Nation v. Oneida County, 414 U.S. 661 (1974), 3(n12), 81(n12), 227(n10) Oneida Indian Nation v. Oneida County, 719 F.2d 525 (2d Cir. 1983), aff ’d in part & rev’d in part, 470 U.S. 226 (1985), 229(n22) Oneida Indian Nation v. Oneida County, 217 F. Supp. 2d 292 (N.D.N.Y. 2002), 85(n47) Oneida Tribe v. Village of Hobart, 542 F. Supp. 2d 908 (E.D. Wis. 2008), 120(n317), 218(n323), 485(n152), 486(n153) Oneida Tribe v. Wisconsin, 518 F. Supp. 712 (W.D. Wis. 1981), 516(n35) Oneida Tribe v. Wisconsin, 951 F.2d 757 (7th Cir. 1991), 533(n130) Ordinance 59 Ass’n v. Babbitt, 970 F. Supp. 914 (D. Wyo. 1997), aff ’d, 163 F.3d 1150 (10th Cir. 1998), 314(n133), 326(n190) Oregon v. Norton, 271 F. Supp. 2d 1270 (D. Or. 2003), 530(n114) Oregon Dep’t of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), 25(n118), 93(n99), 385(n5), 392(n63), 394(n83) Organized Village of Kake v. Egan, 369 U.S. 60 (1962), 202(n237), 380(n327), 385(n5), 392(n63), 417(n243) Orr v. Arapahoe Water and Sanitation Dist., 753 P.2d 1217 (Colo. 1988), 359(n195) Ortega v. Tunica-Biloxi Indians, 865 So. 2d 985 (La. Ct. App. 2004), 306(n100) Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 1975), 168(n132) Osage Tribal Council v. USDOL, 187 F.3d 1174 (10th Cir. 1999), 297(n55) Osage Tribe v. United States, 68 Fed. Cl. 322, 333 (2005), 16–17(n84) Osceola v. Florida Dep’t of Revenue, 893 F.2d 1231 (11th Cir. 1990), 228(n20) Ottawa Tribe v. Ohio Dep’t of Natural Resources, 541 F. Supp., 2d 971 (N.D. Ohio 2008), 394(n83), 395(n85) Oyler v. Allenbrand, 23 F.3d 292 (10th Cir. 1994), 155(n76)

695 Padilla v. Pueblo of Acoma, 754 P.2d 845 (N.M. 1988), 294(n48) Pai ‘Ohana v. United States, 875 F. Supp. 680 (D. Haw. 1995), aff ’d, 76 F.3d 280 (9th Cir. 1996), 88(n66) Paiute-Shoshone Tribe v. City of Fallon, 174 F. Supp. 2d 1088 (D. Nev. 2001), 90(n80) Pam R. v. State, 185 P.3d 67, 72 (Alaska 2008), 593(n79) Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir. 1989), 302–3 Panzer v. Doyle, 680 N.W.2d 666, 670 (Wis. 2004), 553(n222), 623(n13) Parisien v. Twin City Constr. Co., 16 Indian L. Rep. 6012 (Turtle Mt. Tr. Ct. App. June 6, 1986), 253(n156) Parisien v. Twin City Constr., 18 Indian L. Rep. 6142 (Turtle Mt. Tr. Ct. May 19, 1991), 253(n156) Park Place Entm’t Corp. v. Arquette, 113 F. Supp. 2d 322 (N.D.N.Y. 2000), 227–28(n14) Parker Drilling Co. v. Metlakatla Indian Cmty., 451 F. Supp. 1127 (D. Alaska 1978), 309(n112) Parravano v. Babbitt, 861 F. Supp. 914 (N.D. Cal. 1994), aff ’d, 70 F.3d 539 (9th Cir. 1995), 409(n187) Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995), 21–22(n101), 25(n117) Parravano v. Masten, 70 F.3d 539 (9th Cir. 1995), 408(n186), 416(n239), 419(n262) Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st Cir. 1996), 28(n130), 542 Passamaquoddy Tribe v. United States, 82 Fed. Cl. 256 (2008), 18(n88) Pawnee Tribe v. Fransen, 19 Indian L. Rep. 6007 (Pawnee Ct. Indian App. Sept. 17, 1991), 329(n195) Peabody Coal Co. v. Navajo Nation, 373 F.3d 945 (9th Cir. 2004), 227(n13) Peabody Coal Co. v. State, 761 P.2d 1094 (Ariz. Ct. App. 1988), 474(n69), 482(nn123, 127), 482(nn123, 127) Pearsall v. Tribal Council, 31 Indian L. Rep. 6129 (Grand Ronde Cmty. Tr. Ct. Feb. 18, 2003), 327–28(n193) Penobscot Nation v. Georgia-Pacific Corp., 106 F. Supp. 2d 81 (D. Me.), reconsideration denied, 116 F. Supp. 2d 201 (D. Me. 2000), 226(n9)

696 Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), 139(n498) Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), 560–61 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987), 246(n120) People ex rel. Interest of A.N.W., 976 P.2d 365 (Colo. Ct. App. 1999), 592(n74), 613(n151) People ex rel. J.O., 170 P.ed 840 (Colo. Ct. App. 2007), 595–96(n85) People ex rel. Ray v. Martin, 326 U.S. 496 (1946), 145(n17), 159(n95) People ex rel. S.G.V.E., 634 N.W.2d 88 (S.D. 2001), 587(n59) People ex rel. South Dakota Dep’t of Soc. Servs. In Interest of C.H., 510 N.W.2d 119 (S.D. 1993), 593–94(n80) People ex rel. T.I., 707 N.W.2d 826 (S.D. 2005), 600(n103) People in Interest of D.B., 670 N.W.2d 67 (S.D. 2003), 603(n113) People in Interest of D.G., 679 N.W.2d 497 (S.D. 2004)(per curiam), 592(n75), 602(n112), 605(n121) People in Interest of D.T., 667 N.W.2d 694 (S.D. 2003), 580–81(nn35, 36), 580(n35) People in Interest of J.A.S., 160 P.3d 257(Colo. Ct. App. 2007), 580(n36) People in Interest of J.S.B., 691 N.W.2d 611 (S.D. 2005), 603(n116) People in Interest of K.D., 155 P.3d 634 (Colo. Ct. App. 2007), 603(n113), 608(n129) People in Interest of S.R.M., 153 P.3d 438 (Colo. Ct. App. 2006), 574(n18), 576(n26), 584(n47) People in Interest of O.S., 701 N.W.2d 421 (S.D. 2005), 605(n121), 608(n130) People in Interest of T.I., 707 N.W.2d 826 (S.D. 2005), 581(n41), 609(n131) People in re M.H., 691 N.W.2d 622 (S.D. 2005), 608(n129) People v. Hodel, 869 F.2d 1273 (9th Cir. 1989), 394(n79) People v. LeBlanc, 248 N.W.2d 199 (Mich. 1976), 401(n129) People v. McCovey, 685 P.2d 687 (Cal. 1984), 388(n37), 391(n55) People v. Morgan, 785 P.2d 1294 (Colo. 1990), 149(n36)

Table of Cases People v. Patterson, 833 N.E.2d 223 (N.Y. 2005), 392(n63) People v. Ramirez, 56 Cal. Rptr. 3d 631 (Ct. App. 2007), 168(n132), 318(n145) Peterson v. Christensen, 455 F. Supp. 1095 (E.D. Wis. 1978), 397(n104) Petrogulf Corp. v. ARCO Oil & Gas Co., 92 F. Supp. 2d 1111 (D. Colo. 2000), 243(n110) Pezold, Richey, Caruso & Barker v. Cherokee Nation Indus., Inc., 18 P.3d 364 (Okla. Civ. App. 2000), 308(n106) Phillips v. Reynolds, 113 N.W. 234 (Neb. 1907), 112(n250) Phillips Petroleum Co. v. EPA, 803 F.2d 545 (8th Cir. 1986), 448 Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), 98–99(n134) Picuris Pueblo v. Oglebay Norton Co., 228 F.R.D. 665 (D.N.M. 2005), 87(n58) Pimalco, Inc. v. Maricopa County, 937 P.2d 1198 (Ariz. Ct. App. 1997), 487(n159) Pine River Logging & Imp. Co. v. United States 186 U.S. 279 (1902), 116(n283) Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir. 1998), 319(n147) Pioneer Packing Co. v. Winslow, 294 P. 557 (Wash. 1930), 388(n34) Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088 (9th Cir. 1994), 65(n103), 66(n105) Pit River Tribe v. USFS, 469 F.3d 768 (9th Cir. 2006), 21–22(nn100, 101), 138(n496), 139(nn503, 505) Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995), 69(n128), 74(n163), 92–93(n98), 94(n105), 235(n61), 242–44 Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir. 1990), 95(n109) Plains Commerce Bank v. Long Family Land and Cattle Company, 491, F.3d 878 (8th Cir. 2007), rev’d, 128 S. Ct. 2709 (2008), 205–10, 262–63, 381(n333), 389(nn43, 44), 390(n48), 433, 467(n24), 468(nn28, 33) Plamondon ex rel. Cowlitz Tribe v. United States, 467 F.2d 935 (Ct. Cl. 1972), 81(n17) Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968), 106(n190)

Table of Cases Polk County v. Dep’t of Land Conservation and Devel. 176 P.3d 432 (Or. Ct. App. 2008), 218(n323) Pollard’s Lessee v. Hagen, 44 U.S. (3 How.) 212 (1845), 99(n136) Ponca Tribe v. Oklahoma, 37 F.3d 1422 (10th Cir. 1994), 553(n220), 560(n248) Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996), 324–25 Pourier v. South Dakota Dep’t of Revenue, 658 N.W.2d 395 (S.D. 2003), modified on reh’g, 674 N.W. 2d 314 (S.D. 2004), 494(n219), 495(n221) Powell v. Farris, 620 P.2d 525 (Wash. 1980), 270–71(n241) Prairie Band Potawatomi Nation v. Richards, 241 F. Supp. 2d 1295 (D. Kan. 2003), 490(nn182, 186), 495(nn221, 222, 224) rev’d on other grounds, 379 F.3d 979 (10th Cir. 2004), rev’d on other grounds 546 U.S. 95 (2005), 494(n219) Prairie Band Potawatomi Nation v. Wagnon, 402 F.3d 1015 (10th Cir. 2005), vacated and remanded, 546 U.S. 1072 (2005), on remand, 476 F.3d 818 (10th Cir. 2007), 221–22, 224(n358) Prairie Island Indian Cmty. v. Minnesota Dep’t of Pub. Safety, 658 N.W.2d 876 (Minn. Ct. App. 2003), 519(n54) Prescott v. Little Six, Inc., 897 F. Supp. 1217 (D. Minn. 1995), 144(n114), 249(n134) Prescott v. Little Six, Inc., 284 F. Supp. 2d 1224 (D. Minn. 2003), rev’d on other grounds, 387 F.3d 753 (9th Cir. 2004), 306(n101) Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985), 65(n101), 65(n103), 226(n3) Primeaux v. Leapley, 502 N.W.2d 265 (S.D. 1993), 165(n119), 166(n127) Printz v. United States, 521 U.S. 898 (1997), 384(n1) Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1852), 99(n135) Public Service Co. v. Shoshone-Bannock Tribes, 30 F.3d 1203 (9th Cir. 1994), 27(n129), 297(n56), 460 PUD No. 1 v. Washington Dep’t of Ecology, 511 U.S. 700 (1994), 445(n126) Pueblo of Isleta v. Universal Constructors, Inc., 570 F.2d 300 (10th Cir. 1978), 227(n11) Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936 (10th Cir. 1996), 128(n392)

697 Pueblo of Sandia v. Babbitt, 47 F. Supp. 2d 49 (D.D.C. 1999), 557(n236), 558(n241) Pueblo of Santa Ana v. Hodel, 663 F. Supp. 1300 (D.D.C. 1987), 143(n10), 144(n11) Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997), 554 Pueblo of Zuni v. United States, 407 F. Supp. 2d 1114 (D.N.M. 2006), 25(n118), 46(n237) Puerto Rico v. United States, 490 F.3d 50 (2st Cir. 2007), 18(n90) Puget Sound Gillnetters Ass’n v. Moos, 565 P.2d 1151 (Wash. 1977), cert. granted, 439 U.S. 909 (1978), 410(n195) Puget Sound Gillnetters Ass’n v. Moos, 603 P.2d 819 (Wash. 1979), 396(n92) Puget Sound Gillnetters Ass’n v. United States Dist. Court, 573 F.2d 1123 (9th Cir. 1978), vacated on other grounds, 443 U.S. 658 (1979), 385(n5), 392(n64), 395(n91) Purse Seine Vessel Owners Ass’n v. State, 966 P.2d 928 (Wash. Ct. App. 1998), 396(n92) Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251 (9th Cir. 1983), 103 Puyallup Tribe v. Department of Game, 391 U.S. 392 (1968), 380(n327), 404(nn147, 148, 151), 405(n157), 406(n164) Puyallup Tribe, Inc. v. Washington Department of Game, 433 U.S. 165 (1977), 8(30), 219(n328), 289–90, 313(n126), 381(n329), 388(nn35, 36), 404(nn148, 155), 408(n180), 411(n206) Pyramid Lake Paiute Tribe v. United States Dep’t of Navy, 898 F.2d 1410 (9th Cir. 1990), 416(n239) Quar v. Sisco, 359 F. Supp. 2d 948 (E.D. Cal. 2004), 322(n166) Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072 (S.D. Cal. 2008), 128(n393), 134(n455), 135(n459) Quechan Tribe of Indians v. Rowe, 531 F.2d 408 (9th Cir. 1976), 389(n45) Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir. 1994), 308(n107) Quinault Allottee Ass’n v. United States, 485 F.2d 1391 (Ct. Cl. 1973), 117(n294) Quinn v. Walters, 881 P.2d 795 (Or. 1994), 577(n27), 580–81(n36)

698 Quinnault Indian Nation v. Grays Harbor County, 310 F.3d 645 (9th Cir. 2002), 484(n141), 486(n154) Rachelle S. v. Arizona Dep’t of Econ. Sec., 958 P.2d 459 (Ariz. Ct. App. 1998), 607–8(n128) Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997), 26(n124) Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832 (1982), 212(n286), 214(n292), 474(n69), 475(nn74, 76, 77, 78), 488, 490(n183), 503–4 Ramah Navajo Sch. Bd., Inc. v. New Mexico Taxation and Revenue Department, 977 P.2d 1021 (N.M. Ct. App. 1999), 490(n183) Ramey Constr. Co. v. Apache Tribe, 673 F.2d 315 (10th Cir. 1982), 308(n106) Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996), 418(n253) Ramsey v. United States, 134 F. Supp. 2d 1203 (E.D. Wash. 2000), rev’d, 302 F.3d 1074 (9th Cir. 2002), 508 Ramsey v. United States, 302 F.3d 1074 (9th Cir. 2002), 473(n58) Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003), 385(n13) Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988), 324(n181) Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, Inc., 658 N.E.2d 989 (N.Y. 1995), 311(n118) Raymond v. Raymond, 83 F. 721 (8th Cir. 1897), 281(n294) Razore v. Tulalip Tribes, 66 F.3d 236 (9th Cir. 1995), 458–59(n268) Red Fox v. Hettich, 494 N.W.2d 638 (S.D. 1993), 282(n297) Red Fox v. Red Fox, 542 P.2d 918 (Or. Ct. App. 1975), 279(n283) Red Lake Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980) (per curiam), 394(n82) Red Lake Band of Chippewa Indians v. Swimmer, 740 F. Supp. 9 (D.D.C. 1990), 518(n51) Red Mountain Mach. Co. v. Grace Inv. Co., 29 F.3d 1408 (9th Cir. 1994), 212–13(n287) Redding Rancheria v. Superior Court, 105 Cal. Rptr. 2d 773 (Ct. App. 2001), 293(n47)

Table of Cases Regents v. Bakke, 438 U.S. 265 (1978), 55–56(n48) Reich v. Great Lakes Indian Fish and Wildlife Comm’n, 4 F.3d 490 (7th Cir. 1993), 27–28(n129), 393(n70) Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996), 27(n129) Republic of Philippines v. Pimentel, 128 S. Ct. 2180 (2008), 295–96(n51) Reservation Telephone Cooperative v. Henry, 278 F. Supp. 2d 1015 (D.N.D. 2003), 203(n241), 241(n93), 255–56(n169), 468(n34) Reservation Telephone Cooperative v. Three Affiliated Tribes, 76 F.3d 181 (8th Cir. 1996), 199(n209), 242(n98) Rettkowski v. Department of Ecology, 858 P.2d 232 (Wash. 1993), 364(n220) Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994), 62(n88), 78(n189), 542 Rice v. Cayetano, 528 U.S. 495 (2000), 51, 57–59, 60, 61, 127(n385) Rice v. Rehner, 463 U.S. 713 (1983), 25(n116), 32(n155), 161(n103), 169(n4), 173(n30), 189(n148), 212(n284), 213(n289), 219(n327), 386(n19), 436(n73), 586(n52) Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), 434(n55) Richards v. United States, 369 U.S. 1 (1962), 264(n217) Risse v. Meeks, 585 N.W.2d 875 (S.D. 1998), 270–71(n241) Robles v. Shoshone-Bannock Tribes, 876 P.2d 134 (Idaho 1994), 308–9(n111) Rodriguez v. Wong, 82 P.3d 263 (Wash. Ct. App. 2004), 256–57(n177), 270(n241) Roe v. Doe, 649 N.W.2d 566 (N.D. 2002), 269(n240) Roff v. Burney, 168 U.S. 218 (1897), 2(n8), 7(n29) Rolette County Soc. Serv. Bd. v. B.E., 697 N.W.2d 333 (N.D. 2005), 269(n240) Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), 372(n275) Rosales v. United States, 477 F. Supp. 2d 119 (D.D.C. 2007), 49(n7) Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), 92(n93), 95(nn111, 115), 96(nn117, 120), 340(n64) Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002), 114(n264)

Table of Cases Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir. 1990), 156(n83), 278(n277) Rosebud Sioux Tribe v. United States, 75 Fed. Cl. 15 (2007), 16(n83) Rosebud Sioux Tribe v. Val-U-Construction Co. of South Dakota, Inc., 50 F.3d 560 (8th Cir. 1995), 303–4 Rosebud Sioux Tribe v. Walsh, 19 Indian L. Rep. 6030 (Rbd. Sx. Tr. Ct. Oct. 22, 1991), 253(n156) Rumsey Indian Rancheria v. Wilson, 41 F.3d 421 (9th Cir. 1994), amended, 64 F.3d 1250 (9th Cir. 1994) and 99 F.3d 321 (9th Cir. 1996), 540(n161), 550–51 Rumsey Indian Rancheria v. Wilson, 64 F.3d 1250 (9th Cir. 1995), amended, 99 F.3d 321 (9th Cir. 1996), 25(n117), 552(n216) Runyon ex rel B.R. v. Ass’n of Vill. Presidents, 84 P.3d 437 (Alaska 2004), 311(n118), 312(n119) Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir. 1995), 307(n104) Rush Creek Solutions, Inc., v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. Ct. App. 2004), 302(n81) Russ v. Wilkins, 624 F.2d 914 (9th Cir. 1980), 95(n114), 96(n124) Russell v. fort McDowell Yavapai Nation (In re Russell), 293 B.R. 34 (Bankr. D. Ariz. 2003), 313–14(n132) S.A. v. E.J.P., 571 So. 2d 1187 (Ala. Civ. App. 1990), 576(n26) Sac and Fox Nation, 508 U.S. 114 (1993), 469(nn39, 40), 470(n41) Sac and Fox Nation v. Babbitt, 92 F. Supp. 2d 1124 (D. Kan. 2000), rev’d on other grounds, 240 F.3d 1250 (10th Cir. 2001), 307(n105) Sac and Fox Nation v. Hanson, 47 F.3d 1061 (10th Cir. 1995), 294(n48) Sac and Fox Nation v. LaFaver, 31 F. Supp. 2d 1298 (D. Kan. 1998), mot. for reconsideration denied, 45 F. Supp. 2d 859 (D. Kan. 1999), rev’d, 213 F.3d 566 (10th Cir. 2000), 489–90 Sac and Fox Nation v. Norton, 240 F.3d 1250 (10th Cir. 2001), 295(n51), 520–21 Sac and Fox Nation v. Pierce, 213 F.3d 566 (10th Cir. 2000), 230(n30), 471(n51), 489(n178)

699 Sac and Fox Nation v. Richards, 158 F. Supp. 2d 1274 (D. Kan. 2001), 490(n183) Sac and Fox Tribe v. Apex Constr. Co., Inc., 757 F.2d 221 (10th Cir. 1985), 625(n24) Sac and Fox Tribe v. BIA, 439 F.3d 832 (8th CIr. 2006), 227(n14) Sac and Fox Tribe v. Licklider, 576 F.2d 145 (8th Cir. 1978), 352(n147) Sac and Fox Tribe v. United States, 264 F. Supp. 2d 830 (N.D. Iowa 2003), 567–68(n295) Sage v. Sicangu Oyate Ho, Inc., 473 N.W.2d 480 (S.D. 1991), 270–71(n241) Saginaw Chippewa Indian Tribe v. Cunningham, 27 Indian L. Rep. 6052 (Saginaw Chippewa. Ind. Tr. App. Ct. Oct. 18, 1999), 256–57(n177) Saguaro Chevrolet, Inc., v. United States, 77 Fed. Cl. 572 (2007), 113(n253) Sahmaunt v. Horse, 593 F. Supp. 162 (W.D. Okla. 1984), 326(n190) Salt River Pima-Maricopa Indian Cmty. v. Arizona, 50 F.3d 734 (9th Cir. 1995), 212(n285) Salt River Pima-Maricopa Indian Community v. Hull, 945 P.2d 818 (Ariz. 1997), 554–55(n229) Salt River Pima-Maricopa Indian Cmty. v. Yavapai County, 50 F.3d 739 (9th Cir. 1995), 474(n72), 478(n90), 482(n131), 499(n254) Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005), 16(n83), 46(n237); aff’d in part and ref’d in part on other grounds, 419 F.3d 1355 (Fed. Cir. 2005), 4; on remand, 82 Fed. Cl. 54, 66 (2008), 16(n83) San Carlos Apache Tribe v. Arizona, 463 U.S. 545 (1983), 374(n284) San Carlos Apache Tribe v. Bolton, 977 P.2d 790 (Ariz. 1999), 371(n273) San Carlos Apache Tribe v. Superior Court, 972 P.2d 179 (Ariz. 1999), 371(n273), 372(n274) San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860 (D. Ariz. 2003), 21(n100); aff’d on other grounds, 417 F. 3d 1091 (9th Cir. 2005), 21(n100), 126(n379), 130(n410), 139(nn498, 503) San Xavier Dev. Auth. v. Charles, 237 F.3d 1149 (9th Cir. 2001), 65–66(n104)

700 Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548, 551–53 (N.M. Ct. App. 2004), 308–9(n111) Sanderlin v. Seminole Tribe, 243 F.3d 1282 (11th Cir. 2001), 297(n61), 304(n92), 624(n16) Sandman v. Dakota, 816 F. Supp. 448 (W.D. Mich. 1992), aff ’d, 7 F.3d 234 (6th Cir. 1993), 325(n182) San Manuel Indian Bingo and Casino v. NLRB, 475 F3d 1306 (D.C. Cir. 2007), 28(n134) Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), 7(nn28, 29), 8(n30), 9(n39), 44, 49(n7), 188–89, 218(n322), 289(n17), 290, 296–301, 316(n140), 317(n143), 318(n144), 322–24, 618(n169) Santee Sioux Nation v. Norton, No. 8:05CV147, 2006 WL 2792734 (D. Neb. Sept. 26, 2006), 562(n262) Santosky v. Kramer, 455 U.S. 745 (1982), 604(n119) Saratoga County Chamber of Commerce v. Pataki, 798 N.E. 2d 1047 (N. Y. 2003), 553(n222), 623(n12) Sault Ste. Marie Tribe of Chippewa Indians v. United States, 288 F.3d 910 (6th Cir. 2002), 90(n82) Sault Ste. Marie Tribe v. Grandholm, 475 F.3d 805 (6th Cir. 2007), 558(n240) Sault Ste. Marie Tribe v. United States, 78 F. Supp. 2d 699 (W.D. Mich. 1999), remanded on other grounds, 288 F.3d 910 (6th Cir. 2002), 524–25(n91), 531(n122) Sault Ste. Marie Tribe v. United States, No. 2:06-CV-276, 2007 WL 2479293 (W.D. Mich. Aug. 28, 2007), 521(n64) Sayers v. Beltrami County, 481 N.W.2d 547 (Minn. 1992), 588(n62) Schaghticoke Tribe v. Kent School Corp., 423 F. Supp. 780 (D. Conn. 1976), 84–85(n42) Schantz v. White Lightning, 231 N.W.2d 812 (N.D. 1975), 270–71(n241) Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), 288(n12) Schram v. Mashantucket Pequot Gaming Enter., 29 Indian L. Rep. 6113 (Mash. Ct. App. Jan. 23, 2002), 246(n123) Searle v. Searle, 38 P.3d 307 (Utah Ct. App. 2001), 617(n167) Sears v. Hull, 961 P.2d 1013 (Ariz. 1998), 553(n222), 623(n12)

Table of Cases Segundo v. City of Rancho Mirage, 813 F.2d 1387 (9th Cir. 1987), 215(n302) Selam v. Warm Springs Tribal Correctional Facility, 134 F.3d 948 (9th Cir. 1998), 325(n185) Seminole Tribe v. Butterworth, 658 F.2d 310 (5th Cir. 1981), 515–16 Seminole Tribe v. Dep’t of Children and Families, 959 So. 2d 761 (Fla. Distr. Ct. App. 2007), 612(n150), 614(n154) Seminole Tribe v. Florida, 11 F.3d 1016 (11th Cir. 1994), aff ’d in relevant part, 517 U.S. 44 (1996), 10–11, 230, 313(n128), 510, 560, 561–64 Seminole Tribe v. McCor, 903 So. 2d 353, 359 (Fla. Dist. Ct. App. 2005), 306(n101), 308–9(n111) Seneca-Cayuga Tribe v. NIGC, 327 F.3d 1019 (10th Cir. 2003), 534(n135), 537(nn146, 147) Seneca-Cayuga Tribe v. Town of Aurelius, 233 F.R.D. 278 (N.D.N.Y 2006), 86(n52) Seneca Nation v. New York, 26 F. Supp. 2d 555 (W.D.N.Y. 1998), aff ’d, 178 F.3d 95 (2d Cir. 1999) (per curiam), 85(n47) Seneca Nation v. New York, 206 F. Supp. 2d 448 (W.D.N.Y. 2002), 411(n205) Seneca Nation v. New York, 382 F.3d 245, 260 (2d Cir. 2004), 81(nn16, 17), 85(n47), 97–98(n129) Seneca v. Seneca, 741 N.Y.S.2d 375 (App. Div. 2002), 272(n247) Serian v. State, 588 So. 2d 251 (Fla. Dist. Ct. App. 1991), 158(n93) Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974), 386(n17), 393(n70), 396(n96), 457(n255) Seufert v. Olney, 193 F. 200 (E.D. Wash. 1911), 401(n125) Seufert Bros. Co. v. Hoptowit, 237 P.2d 949 (Or. 1951), 398(n110), 403(n142) Seufert Bros. Co. v. United States, 249 U.S. 194 (1919), 399(n117) Sevastian v. Sevastian, 808 A.2d 1180 (Conn. App. 2002), 293(n47) Seymour v. Superintendent, 368 U.S. 351 (1962), 92(n95) S.H. v. Calhoun County Dep’t of Human Res., 798 So. 2d 684 (Ala. Ct. App. 2001), 577(n27), 584(n47), 614–15(n155)

Table of Cases Shannon v. Houlton Band of Maliseet Indians, 54 F. Supp. 2d 35 (D. Me. 1999), 299(n70), 325–26(n189) Shawnee Tribe v. United States 423 F.3e 1204 (10th Cir. 2005), 92(n95), 94(n106) Shenandoah v. USDOI, 159 F.3d 708 (2d Cir. 1998), 324(n181) Sheppard v. Sheppard, 655 P.2d 895 (Idaho 1982), 275(n263), 281(n295) Sherbert v. Verner, 374 U.S. 398 (1963), 136(n472) Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992), 314(n133) Shippentower v. Confederated Tribes of Umatilla Indian Reserv., 20 Indian L. Rep. 6026 (Umatilla Tr. Ct. Jan. 27, 1993), 330(n196) Shively v. Bowlby, 152 U.S. 1 (1894), 99–100(n139) Shivwits Band of Paiute Indians v. Utah, 185 F. Supp. 2d 1245 (D. Utah 2002), 90(n81) Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966 (10th Cir. 2005), 75(n167), 76(n179), 91(nn89, 90), 220(n332) Shoshone Indian Tribe v. United States, 56 Fed. Cl. 639 (2003), 16(n83), 22(n102) Shoshone Tribe v. United States, 299 U.S. 476 (1937), 10(n41), 344(n91) Shoshone Tribe v. United States, 364 F.3d 1339 (Fed. Cir. 2004), 16(n83), 19(n93), 23(n109) Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995), 354(n166), 369(n256) Shourd v. Mashantucket Gaming Enter., 24 Indian L. Rep. 6011 (Mash. Peq. Tr. Ct. Apr. 20, 1995), 330(n196) Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), 434(n55) Silva v. Ysleta Del Sur Pueblo, 28 S.W.3d 122 (Tex. App. 2000), 299(n70) Simmons v. United States, 71 Fed. Cl. 188 (2006), 23(n109) Simms v. Napolitano, 73 P.3d 631 (Ariz. Ct. App. 2003), 519(n54) Sioux Tribe v. United States, 316 U.S. 317 (1942), 33(n164), 89(nn73, 75), 100(n145) Sitting Crow v. Widow, 20 Indian L. Rep. 6073 (Cheyenne R. Sx. Ct. App. July 6, 1993), 327–28(n193)

701 Skeem v. United States, 273 F. 93 (9th Cir. 1921), 345, 357(n185) Skiriotes v. Florida, 313 U.S. 69 (1941), 419(n260) Skokomish Indian Tribe v. United States, 410 F.3d 506 (9th Cir. 2005), 227(n10), 230–31(n34), 414(n222) Smart v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989), 27(n129) Smith v. Babbitt, 875 F. Supp. 1353 (D. Minn. 1995), aff ’d, 100 F.3d 556 (8th Cir. 1996), 543(n174) Smith v. Babbitt, 96 F. Supp. 2d 907 (D. Minn. 2000), 275(n263) Smith v. Hopland Band of Pomo Indians, 115 Cal. Rptr. 2d 455 (App. 2002), 304(n91) Smith v. Moffett, 947 F.2d 442 (10th Cir. 1991), 244(n114) Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006) (en banc), 251(n146), 263(n214) Smith v. Scott, 30 Indian L. Rep. 6105 (Mash. Peq. Tr. Ct. Apr. 23, 2003), 286(n317) Snooks v. Ninth Jud. Dist. Court, 919 P.2d 1064 (Nev. 1996), 270–71(n241) Snowbird Construction Co. v. United States, 666 F. Supp. 1437 (D. Idaho 1987), 310(n115) Snyder v. Navajo Nation, 382 F.3d 892 (9th Cir. 2004), 27–28(n129), 46(n236) Sohappy v. Hodel, 911 F.2d 1312 (9th Cir. 1990), 401(n126) Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969), 384–85(n3), 405(nn157, 160, 161), 406–7 Sokaogon Chippewa Cmty. v. Babbitt, 929 F. Supp. 1165 (W.D. Wis. 1996), 524(n91) Sokaogon Chippewa Cmty. v. Babbitt, 961 F. Supp. 1276 (W.D. Wis. 1997), 90(n84) Sokaogon Chippewa Cmty. v. Exxon Corp., 805 F. Supp. 680 (E.D. Wis. 1992), aff ’d, 2 F.3d 219 (7th Cir. 1993), 402(n134) Sokaogon Gaming Enter. Corp. v. TushieMontgomery Assocs., Inc., 86 F.3d 656 (7th Cir. 1996), 303(n90), 304(n92) Solem v. Bartlett, 465 U.S. 463 (1984), 75(n171), 93(nn99, 102), 94(n104), 94(n107), 95(nn110, 113), 96(nn117, 118, 119, 123), 145(n18), 159(n96) Solomon v. Interior Reg’l Hous. Auth., 313 F.3d 1194 (9th Cir. 2002), 26–27(n125)

702 South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986), 25(n118), 66– 67(nn108, 111), 84(n42), 89(n76) South Dakota v. Bourland, 949 F.2d 984 (8th Cir. 1991), rev’d, 508 U.S. 679 (1993), 66–67(n111), 93(n101), 173(n29), 194– 97, 344(n91), 381–82(n333), 389(n40), 390(n50), 391(n54), 416(n238), 430, 466(n15) South Dakota v. USDOI, 69 F.3d 878 (8th Cir. 1995), vacated and remanded on other grounds, 519 U.S. 919 (1996), mandate recalled and opinion vacated, 106 F.3d 247 (8th Cir. 1996), 75(n167) South Dakota v. USDOI, 423 F.3d 790, 799 (8th Cir. 2005), 75(n167), 91(n89) South Dakota v. USD0I, 475 F.3d 993 (8th Cir. 2007), 76(n179) South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998), 94(n108), 96(nn117, 120, 122), 97(n125) South Dakota ex rel. Meierhenry v. Rippling Water Ranch, Inc., 531 F. Supp. 449 (D.S.D. 1982), 376(n299) South Delta Water Agency v. United States, 767 F.2d 531 (9th Cir. 1985), 378 South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95(2004), 442(n119) South Fork Band of the Te-Moak Tribe v. Sixth Jud. Dist. Court, 7 P.3d 455 (Nev. 2000), 307(n105) Southern Ute Tribe v. State of Colorado, Dep’t of Natural Resources, Civil Action No. 3858 (D. Colo. 1972), 631(n59) Spaulding v. Chandler, 160 U.S. 394 (1896), 352(n147) Spirit Lake Tribe v. North Dakota, 262 F.3d 732 (8th Cir. 2001), 21(n100), 87(n57) Spokane Tribe v. Washington, 28 F.3d 991 (9th Cir. 1994), 560(n248) Spota ex rel. Unkechaug Indian Nation v. Jackson, 883 N.E.2d 344 (N.Y. 2008), 68(n124) Squaxin Island Tribe v. Johns, 15 Indian L. Rep. 6010 (Squaxin Is. Tr. Ct. June 30, 1987), 327(n192) Squaxin Island Tribe v. Stephens, 400 F. Supp. 2d 1250 (W.D. Wash. 2005), 471–72(n52) Squaxin Island Tribe v. Stephens, 2006 W. L. 521715 (W.D. Wash. Mar. 2, 2006), 471–72(n52)

Table of Cases Squaxin Island Tribe v. Washington, 781 F.2d 715 (9th Cir. 1986), 496–97 Squire v. Capoeman, 351 U.S. 1 (1956), 507(nn307, 308) Squirrel v. Bordertown Bingo, 125 P.3d 680 (Okla Civ. App. 2005), 311(n118) Srader v. Verant, 964 P.2d 82 (N.M. 1998), 519(n54) St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 1988), 51(n14), 52(n28), 159(n98) St. Croix Indians v. Kempthorne, 535 F. Supp. 2d 33 (D.D.C. 2008), 524(n91) St. Germaine v. Circuit Court, 938 F.2d 75 (7th Cir. 1991), 158(n91) Standard Oil Co. v. California, 291 U.S. 242 (1934), 495 Standing Rock Group for Accountability v. Defender, 29 Indian L. Rep. 6014 (Standing Rock Tr. Ct. June 13, 2001), 329(n195) Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135 (8th Cir. 1974), 229(n22) Standing Rock Sioux Tribe v. Janklow, 103 F. Supp. 2d 1146 (D.S.D. 2000), 484(n142) Standley v. Roberts, 59 F. 836 (8th Cir. 1894), 281(n294) Starr v. Campbell, 208 U.S. 527 (1908), 116(n283) Starr v. George, 175 P.3d 50, 55 (Alaska 2008), 617(n167) State Eng’r v. South Fork Band of Te-Moak Tribe, 66 F. Supp. 2d 1163 (D. Nev. 1999), opinion vacated in part on other grounds, 114 F. Supp. 2d 1046 (D. Nev. 2000), 307(n105) State Eng’r v. S. Fork Band of Te-Moak Tribe, 114 F. Supp. 2d 1046 (D. Nev. 2000), aff’d on other grounds, 339 F.3d 804 (9th Cir. 2003), 379(nn313, 314) State ex rel. Board of University and School Lands v. Alexander, 718 N.W.2d 2 (N.D. 2006), 288(n8) State ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995), 553(n222), 554, 623(n12) State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001), 126(n375), 129(n406) State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981), 363(n212)

Table of Cases State ex rel. Dep’t of Health and Soc. Servs. v. M.L.L., 61 P.3d 438 (Alaska 2002), 605(n121) State ex rel. Dep’t of Human Services v. Cain, 150 P.3d 439 (Or. Ct. App. 2006), 605(n121) State ex rel. Dep’t of Human Servs. v. Jojola, 660 P.2d 590 (N.M. 1983), 269(n240), 574–75(n20) State ex rel. Dep’t of Human Services v. Whitebreast, 409 N.W. 2d 460 (Iowa 1987), 269–70(n240), 275(n262) State ex rel. Flammond v. Flammond, 621 P.2d 471 (Mont. 1980), 270(n241) State ex rel. Graves v. United States, 86 F. Supp. 2d 1094 (D. Kan. 2000), 523(n76) State ex rel. Greeley v. Confederated Salish and Kootenai Tribes, 712 P.2d 754 (Mont. 1985), 339(n61), 340(n63), 342(n81), 350(n136) State ex rel. Jealous of Him v. Mills, 627 N.W.2d 790 (S.D. 2001), 269(n240) State ex rel. Juvenile Dep’t v. Charles, 688 P.2d 1354 (Or. Ct. App. 1984), 607(n127) State ex rel. Juvenile Dep’t. v. Charles, 810 P.2d 393 (Or. Ct. App. 1991), 611(n140) State ex rel. Juvenile Dep’t of Clakamas County v. Charles, 810 P.2d 393 (Or. Ct. App. 1991), 589(n65) State ex rel. Juvenile Dep’t v. England, 640 P.2d 608 (Or. 1982), 593(n79) State ex rel. Juvenile Dep’t v. Shuey, 850 P.2d 378 (Or. Ct. App. 1993), 598(n95) State ex rel. Juvenile Dep’t v. Tucker, 710 P.2d 793 (Or. Ct. App. 1985), 573(n13), 575(n23), 580(n36) State ex rel. Juvenile Dep’t v. Woodruff, 816 P.2d 623 (Or. Ct App. 1991), 615(n156) State ex rel. Lykins v. Steinhorst, 541 N.W.2d 234 (Wis. Ct. App. 1995), 158(n92) State ex rel. Martinez v. City of Las Vegas, 89 P.3d 47 (N.M. 2004), 337(n40) State ex rel. Martinez v. Lewis, 861 P.2d 235 (N.M. Ct. App. 1993), 348–50, 353 State ex rel. Nixon v. Coeur d’Alene Tribe, 164 F.3d 1102 (8th Cir. 1999), 519(n54) State ex rel. Old Elk v. District Court, 552 P.2d 1394 (Mont. 1976), 165(n119) State ex rel. Peterson v. District Court, 617 P.2d 1056 (Wyo. 1980), 270–71(n241) State ex rel. State Office for Servs. to Children and Families v. Klamath Tribe, 11 P.3d

703 701 (Or. Ct. App. 2000), 580–81(n36), 628 State ex rel. State Office for Servs. to Children and Families v. Lucas, 33 P.3d 1001, 1006 (Or. Ct. App. 2001), 608(n129) State ex rel. Stephan v. Finney, 836 P.2d 1169 (Kan. 1992), 553(n222), 623(n12) State ex rel. Vega v. Medina, 549 N.W.2d 507 (Iowa 1996), 267(n235), 269(n240) State ex rel. V.H., 154 P.3d 867 (Utah Ct. App. 2007), 603(n113) State Sec., Inc. v. Anderson, 506 P.2d 786 (N.M. 1973), 269(n239) State v. Acquavella, No. 77-2-01494-5 (Yakima Cnt. Wash. Super. Ct. Nov. 13, 1995), 416(n235) State v. Allen, 141 P. 292 (Wash. 1914), 405(n158) State v. Ambro, 123 P.3d 710 (Idaho Ct. App. 2005), 155(n77) State v. Arnariak, 941 P.2d 154 (Alaska 1997), 385(n11) State v. Arthur, 261 P.2d 135 (Idaho 1953), 401(n131), 402(n133) State v. Atkinson, 916 F. Supp. 959 (D.S.D. 1996), 164(n116) State v. Barros, 957 P.2d 1095 (Idaho 1998), 156(n83) State v. Berry, 753 P.2d 433 (Or. Ct. App. 1988), 392(n68) State v. Big John, 432 N.W.2d 576 (Wis. 1988), 405(n162) State v. Boyd, 34 P.3d 912 (Wash. Ct. App. 2001), 155–56(n77) State v. Branham, 102 P.3d 646 (N.M. Ct. App. 2004), 167(n129), 634–35(n69) State v. Bronson, 858 P.2d 467 (Or. Ct. App. 1993), 405(n156), 410(n201) State v. Buchanan, 978 P.2d 1070 (Wash. 1999), 398(n115), 401(nn128, 131), 410(n197) State v. Burrola, 669 P.2d 614 (Ariz. Ct. App. 1983), 145(n18) State v. Busse, 644 N.W.2d 79 (Minn. 2002), 158(nn91, 92) State v. Byrd, 628 P.2d 504 (Wash. Ct. App. 1981), 411(n205) State v. Cameron, 658 A.2d 939 (Vt. 1995), 81–82(n17) State v. Cayenne, 158 P.3d 623 (Wash. Ct. App. 2007), 389(n42) State v. Chambers, 506 P.2d 311 (Wash. 1973), 402(n133), 411(nn203, 205)

704 State v. Coffee, 556 P.2d 1185 (Idaho 1976), 402(n133) State v. Courville, 676 P.2d 1011 (Wash. Ct. App. 1983), 399(n122), 410(nn193, 196) State v. Couture, 587 N.W.2d 849 (Minn. Ct. App. 1999), 157(n90) State v. Cummings, 679 N.W. 484 (S.D. 2004), 166(n126), 389(n42) State v. Daly, 454 N.W.2d 342 (S.D. 1990), 148(n34) State v. Daniels, 16 P.3d 650 (Wash. Ct. App. 2001), 159(n97) State v. Davids, 534 N.W.2d 70 (Wis. 1995), 95(n112) State v. Dick, 981 P.2d 796 (N.M. Ct. App. 1999), 73(n161) State v. Dillon, 826 P.2d 1186 (Ariz. Ct. App. 1991), 470(n45) State v. Eagle Speaker, 4 P.3d 1 (Mont. 2000), 164(n115) State v. Elliott, 616 A.2d 210 (Vt. 1992), 81–82(n17) State v. Esquivel, 132 P.3d 751 (Wash. Ct. App. 2006), 284(n309) State v. Flint, 756 P.2d 324 (Ariz. Ct. App. 1988), 145(n19) State v. Frank, 52 P.3d 404 (N.M. 2002), 159(n101) State v. F/V Baranof, 677 P.2d 1245 (Alaska 1984), 419(n260) State v. George, 905 P.2d 626 (Idaho 1995), 157(n89) State v. Greenwalt, 663 P.2d 1178 (Mont. 1983), 145(n19) State v. Greger, 559 N.W.2d 854 (S.D. 1997), 94(n108) State v. Haskins, 887 P.2d 1189 (Mont. 1994), 145(n18), 168(n132) State v. Herber, 598 P.2d 1033 (Ariz. Ct. App. 1979), 145(n18) State v. Hero, 282 N.W.2d 70 (S.D. 1979), 394(n83) State v. Hook, 476 N.W.2d 565 (N.D. 1991), 155(n76) State v. Horseman, 866 P.2d 1110 (Mont. 1993), 167(n131) State v. Jacobs, 735 N.W. 2d 535 (Wis. Ct. App. 2007), 154(n74) State v. Johnson, 598 N.W.2d 680 (Minn. 1999), 158(n91) State v. James, 435 P.2d 521 (Wash. 1967), 399(n122), 401(n125), 410(n200)

Table of Cases State v. Jim, 725 P.2d 372 (Or. Ct. App. 1986), 154(n73), 398(n109) State v. Jones, 729 N.W. 2d 1 (Minn. 2007), 158(n92), 220(n332), 276–77(n270) State v. Kills on Top, 787 P.2d 336 (Mont. 1990), 164(n115) State v. LaPier, 790 P.2d 983 (Mont. 1990), 51(n14) State v. LaRose, 543 N.W.2d 426 (Minn. Ct. App. 1996), 158(n92), 389(n41) State v. LaRose, 673 N.W.2d 157 (Minn. Ct. App. 2003), 157(n89), 167(n129) State v. Larson, 455 N.W.2d 600 (S.D. 1990), 145(n19), 159(n100) State v. Lasley, 705 N.W.2d 481 (Iowa 2005), 155(n76), 158(n92) State v. Lemieux, 317 N.W.2d 166 (Wis. Ct. App. 1982), 275(n262), 405(n162) State v. Lohnes, 69 N.W.2d 508 (N.D. 1955), 155(n76) State v. Losh, 739 N.W.2d 730 (Minn. Ct. App. 2007), 157(n89) State v. Lupe, 889 P.2d 4 (Ariz. Ct. App. 1995), 166(n126) State v. Manypenny, 662 N.W.2d 183 (Minn. Ct. App. 2003), aff’d, 682 N.W.2d 143 (Minn. 2004), 633(n66), 167(n129) State v. Marek, 736 P.2d 1314 (Idaho Ct. App. 1987), 147(n30), 148(n34), 158(n92) State v. Martinez, 112 P.3d 293 (N.M. Ct. App. 2005), 167(n129), 634–35(n69) State v. Mathews, 986 P.2d 323 (Idaho 1999), 165(n119) State v. Matthews, 635 N.W.2d 601 (Wis. Ct. App. 2001), 405(n162) State v. McBride, 955 P.2d 133 (Kan. Ct. App. 1998), 56(n49) State v. McClure, 268 P.2d 629 (Mont. 1954), 387(n26) State v. McConville, 139 P.2d 485 (Idaho 1943), 388(n34) State v. McCormack, 812 P.2d 483 (Wash. 1991), 405(n156), 410(n201) State v. McCoy, 387 P.2d 942 (Wash. 1963), 403(n145), 405(n158) State v. Meninock, 197 P. 641 (Wash. 1921) (en banc), 404(n146) State v. Miller, 689 P.2d 81 (Wash. 1984), 404(n150) State v. Moses, 483 P.2d 832 (Wash. 1971), 410(nn193, 196)

Table of Cases State v. Moses, 15 P.3d 1058 (Wash. Ct. App. 2001), aff ’d on other grounds, 37 P.3d 1216 (Wash. 2002), 393(n70), 396(n100), 410(n193) State v. Nelson, 90 P.3d 206 (Ariz. Ct. App. 2004), 167–68(n131), 633(n66) State v. Native Village of Curyung, 151 P.3d 388 (Alaska 2006), 230–31(n34), 616 State v. Oakes, 89 P.3d 1274 (or. Ct. App. 2004), 167–68(n131), 633(n66) State v. Olney, 72 P.3d 235 (Wash. Ct. App. 2003), 154(n74), 405(n162) State v. Owen, 729 N.W.2d 356 (S.D. 2007), 73(n161) State v. Pamperien, 967 P.2d 503 (Or. Ct. App. 1998), 167(n131) State v. Peterson, 297 N.W.2d 52 (Wis. 1980), 411(n202) State v. Peterson, No. 356205 (Clallam Cnty. Wash. Dist Ct. Dec 11, 2006), 402(n136) State v. Petit, 558 P.2d 796 (Wash. 1977), 398(n115), 410(nn193, 196) State v. Pink, 186 P.3d 634 (Wash. Ct. App. 2008), 155(n77) State v. Posenjak, 111 P.3d 1206 (Wash. Ct. App. 2005), 392(n63), 395(n90), 396(n93), 410(nn193, 195) State v. Price, 942 P.2d 377 (Wash. Ct. App. 1997), 396(n98) State v. Quigley, 324 P.2d 827 (Wash. 1958), 392(n63), 410(n195) State v. Quintana, 178 P.3d 820 (N.M. 2008), 73(n161) State v. Reber, 171 P.3d 406 (Utah 2007), 51(n18), 145(n18), 391(n55) State v. Reed, 595 P.2d 916 (Wash. 1979), 410(n198) State v. R.M.H., 617 N.W.2d 55 (Minn. 2000), 157(n89) State v. Robinson, 572 N.W.2d 720 (Minn. 1997), 157(n89), 158(n92) State v. Robles, 901 P.2d 1200 (Ariz. Ct. App. 1995), 164(n115) State v. Romero, 142 P.3d 887 (N.M. 2008), 73–74(n161) State v. Ryder, 649 P.2d 756 (N.M. Ct. App. 1981), aff ’d, 648 P.2d 774 (N.M. 1982), 167(n131) State v. St. Clair, 560 N.W.2d 732 (Minn. Ct. App. 1997), 154(n74) State v. St. Cloud, 465 N.W.2d 177 (S.D. 1991), 148(n34)

705 State v. St. Francis, 563 A.2d 249 (Vt. 1989), 164(n116) State v. Sanders, Nos. PA CR 94-2403/2044/-2405/-2597/-2596 (Cowlitz Cnty. Wash. Dist. Ct. Dec. 7, 2001), 402(n136) State v. Satiacum, 314 P. 2d 400 (Wash. 1957), 403(n145) State v. Schaefer, 781 P.2d 264 (Mont. 1989), 144(n12), 145(n19) State v. Schmuck, 850 P.2d 1332 (Wash. 1993), 167–68(n131) State v. Sebastian, 701 A.2d 13 (Conn. 1997), 51(n14) State v. Shabaiash, 485 N.W.2d 724 (Minn. App. 1992), 395(n91) State v. Simpson, 54 P.3d 456 (Idaho Ct. App. 2002), 402(n134) State v. Smith, 906 P.2d 141 (Idaho Ct. App. 1995), 156(n83) State v. Snyder, 807 P.2d 55 (Idaho 1991), 145(n18) State v. Sorkhabi, 46 P.3d 1071 (Ariz. Ct. App. 2002), 145(n18), 159(n100) State v. Spotted Blanket, 955 P.2d 1347 (Mont. 1998), 156(n83) State v. Spotted Eagle, 71 P.3d 1239 (Mont. 2003), 146–47(n25), 317(n143), 318(n144) State v. Spotted Horse, 462 N.W.2d 463 (S.D. 1990), 159–60(n101), 166(nn126, 127) State v. Squally, 937 P.2d 1069 (Wash. 1997), 156(n81) State v. Stasso, 563 P.2d 562 (Mont. 1977), 398(n116), 402(n133), 410(n193), 411(n204) State v. Stone, 572 N.W.2d 725 (Minn. 1997), 157(n89) State v. Stritmatter, 688 P.2d 499 (Wash. 1984), 387(nn25, 27) State v. Superior Court (Lyon), 625 P.2d 239 (Cal. 1981), 99(n135) State v. Thomas, 760 P.2d 96 (Mont. 1988), 145(n18) State v. Tinno, 497 P.2d 1386 (Idaho 1972), 398(n112), 401(nn129, 131) State v. Towessnute, 154 P.805 (Wash. 1916), 403(n145), 404(n146) State v. Vandermay, 478 N.W.2d 289 (S.D. 1991), 159(n96) State v. Velky, 821 A.2d 752 (Conn. 2003), 159(n98), 313–14(n132)

706 State v. Verdugo, 901 P.2d 1165 (Ariz. Ct. App. 1995), 164(n116) State v. Wabashaw, 740 N.W.2d 583 (Neb. 2007), 157(n86) State v. Wakole, 959 P.2d 882 (Kan. 1998), 224(n365) State v. Walker, 153 P.3d 614 (Mont. 2007), 159–60(n101), 317(n143), 324(n178) State v. Warden, 906 P.2d 133 (Idaho 1995), 156(n83) State v. Warner, 379 P.2d 66 (N.M. 1963), 145(n18) State v. Waters, 971 P.2d 538 (Wash. Ct. App. 1999), 166(n126) State v. Watters, 156 P.3d 145 (Or. Ct. App. 2007), 392(n63), 398(n115), 402(n136), 410(n193) State v. Winckler, 260 N.W.2d 356 (S.D. 1977), 164(n115) State v. Yazzie, 777 P.2d 916 (N.M. Ct. App. 1989), 165(n119) State v. Zaman, 984 P.2d 528 (Ariz. 1999), 268(n237) State v. McBride, 955 P.2d 133 (Kan Ct. App. 1998), 56(n49) Steven H. v. Arizona Dep’t of Econ. Sec., 173 P.3d 479 (Ariz. Ct. App. 2008), 604(n120) Stevens v. Comm’r, 452 F.2d 741 (9th Cir. 1971), 91(n86) Stock West Corp. v. Taylor, 964 F.2d 912 (9th Cir. 1992) (en banc), 241, 242 Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221 (9th Cir. 1989), 252(n155) Strate v. A-1 Contractors, 520 U.S. 438 (1997), 93(n101), 167–68(n131), 186(n127), 203, 204(n245), 236, 241(n93), 249(n137), 254–56, 260, 270–71(n241), 381(n333), 431, 441, 466(n15), 468 Strawberry Valley Cattle Co. v. Chipman, 45 P. 348 (Utah 1896), 111(n242) Strickland v. DeCoteau, 31 Indian L. Rep. 6021 (Turtle Mt. Tr. Ct. Nov. 25, 2003), 327–28(n193), 329(n195) Stringer v. Chrysler (In re Stringer), 252 B.R. 900 (Bankr. W.D. pa. 2000), 315(n135) Sully v. United States, 195 F.113 (8th Cir. 1912), 51(n15) Superior Oil Co. v. United States, 798 F.2d 1324 (10th Cir. 1986), 235–36(n61)

Table of Cases Swalef v. Anderson, 646 S.E.2d 458 (Va. Ct. App. 2007), 270(n241) Sycuan Band of Mission Indians v. Roach, 54 F.3d 535 (9th Cir. 1994), 536(n142), 551, 569 Sycuan Band of Mission Indians v. Roache, 38 F.3d 402 (9th Cir. 1994), 246(n122) Synowski v. Confederated Tribes of Grand Ronde, 31 Indian L. Rep. 6117 (Grand Ronde Cmty. Ct. App. Jan. 22, 2003), 327(n193) Table Bluff Reserv. (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879 (9th Cir. 2001), 215(n306), 229(n21) Talton v. Mayes, 163 U.S. 376 (1896), 7(n28), 316 Tamiami Partners, Ltd. v. Miccosukee Tribe, 63 F.3d 1030 (11th Cir. 1995), 303(n90), 313–14(nn132, 134), 547(n190) Tamiami Partners, Ltd. v. Miccosukee Tribe, 177 F.3d 1212 (11th Cir. 1999), 303(n90), 547(n190) Tarbell v. DOI, 307 F. Supp. 2d 409 (N.D.N.Y. 2004), 40(n200) Taxpayers of Michigan Against Casinos v. State, 732 N.W. 2d 487 (Mich. 2007), 553(n222), 554–55(n229) Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032 (11th Cir. 2001) (per curiam), 27–28(n129), 29(n137) 56(n49), 62(n90) Taylor v. BIA, 325 F. Supp. 2d 1117 (S.D. Cal. 2004), 295(n51) Teague v. Bad River Band of Lake Superior Tribe, 665 N.W. 2d 899 (Wis. 2003), 284–85(n310) Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955), 80(n6), 82(n21), 393(n75) Tempest Recovery Servs., Inc. v. Belone, 74 P.3d 67 (N.M. 2003), 268(n238), 269(n239) Tenneco Oil Co. v. Sac and Fox Tribes, 725 F.2d 572 (10th Cir. 1984) (per curiam), 313–14(n132) Teo v. Steffenson, No. CY-93-3050-AAM (E.D. Wash. 1994), 654(n99) Terry S. v. State, 168 P.3d 489 (Alaska 2007), 574(n17) Terry-Carpenter v. Las Vegas Paiute Tribal Council, 29 Indian L. Rep. 6041 (Las

Table of Cases Vegas Paiute Ct. App. Feb. 25, 2002), 329(n195) Terry-Carpenter v. Las Vegas Paiute Tribal Council, 30 Indian L. Rep. 6150 (Las Vegas Paiute Ct. App. June 9, 2003), 329(n195) Texaco, Inc. v. Hale, 81 F.3d 934 (10th Cir. 1996), 243(n109) Texaco, Inc. v. Zah, 5 F.3d 1374 (10th Cir. 1993), 243(n109) Texas v. United States, 497 F.3d 491 (5th Cir. 2007), 553(n220), 562 Texas v. Ysleta del Sur Pueblo, 79 F. Supp. 2d 708 (W.D. Tex. 1999), aff ’d, 237 F.3d 631 (5th Cir. 2000), 299(n70), 563(n267) T.F. v. State Dep’t of Health and Soc. Servs., 26 P.3d 1089 (Alaska 2001), 602(n112) The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870), 98(n130) The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913), 247(n128) The Kansas Indians, 72 U.S. 737 (1866), 482(n128) The New York Indians, 72 U.S. 761 (1866), 482(n128) Thomas H. v. State, 184 P.3d 9 (Alaska 2008), 607(n128) Thomas v. Coquille Indian Tribe, 31 Indian L. Rep. 6083 (Coquille Indian Tr. Ct. Mar. 9, 2004), 327(n193), 329(n195) Thomas v. Gay, 169 U.S. 264 (1898), 475(n78), 487 Thomas v. United States, 189 F.3d 662 (7th Cir. 1999), 295(n51) Thompson v. Cherokee Nation, 334 F.3d 1075 (Fed. Cir. 2003), aff’d, 543 U.S. 631 (2005), 46(n237), 46(n237) Thompson v. County of Franklin, 180 F.R.D. 216 (N.D.N.Y. 1998), 53(n30) Thompson v. County of Franklin, 127 F. Supp. 2d 145 (N.D.N.Y. 2000), aff ’d, 314 F.3d 79 (2d Cir. 2002), 73(n161), 486(n153) Thompson v. Crow Tribe, 962 P.2d 577 (Mont. 1998), 294(n48), 315(n135) Thorstenson v. Norton, 440 F.3d 1059 (8th Cir. 2006), 263(n214) Three Affiliated Tribes v. Wold Eng’g, 467 U.S. 138 (1984), 10(n42), 267(n232) Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877 (1986), 212(n286), 214(n292), 217(n315), 268(n237), 298(n64)

707 Tiger v. Western Inv. Co., 221 U.S. 286 (1911), 38–39(n193) Tillett v. Lujan, 931 F.2d 636 (10th Cir. 1991), 233(n46) Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th Cir. 2002), 65(n103), 230(n30) Tohono O’odham Nation v. Schwartz, 837 F. Supp. 1024 (D. Ariz. 1993), 246(n122) TOMAC v. Norton, 193 F. Supp. 2d 182 (D.D.C. 2002), aff’d on other grounds, 433 F.3d 852 (D.C. Cir. 2006), 75(n167), 89–90(n78), 91(n89), 524–25(n91), 530(n114) Tom’s Amusement Co., Inc. v. Cuthbertson, 816 F. Supp. 403 (W.D.N.C. 1993), 244(n114) Tonkawa Tribe v. Richards, 75 F.3d 1039 (5th Cir. 1996), 65(n104) Toomer v. Witsell, 334 U.S. 385 (1948), 384–85(n3) Totemoff v. State, 905 P.2d 954 (Alaska 1995), 426(n324) Tracy v. Superior Court, 810 P.2d 1030 (Ariz. 1991), 281(n295), 318(n145), 325(n182) Tribal Smokeshop, Inc. v. Alabama-Coushatta Tribes, 72 F. Supp. 2d 717 (E.D. Tex. 1999), 304(n92) Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), 19(n92) Trudgeon v. Fantasy Springs Casino, 84 Cal. Rptr. 2d 65 (Ct. App. 1999), 311(n118), 315–16(n136) Tsosie v. United States, 452 F.3d 1161 (10th Cir. 2006), 21(n100) TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676 (5th Cir. 1999), 227(n13), 235(n60), 274(n258), 313–14(nn132, 134) Tulee v. Washington, 315 U.S. 681 (1942), 404(nn146, 147), 405(n159) Tunica-Biloxi Indians v. Pecot, 248 F. Supp. 2d 576 (W.D. La. 2003), 234(n56), 235(nn60, 61) Tunica-Biloxi Indians v. Pecot, 351 F. Supp. 2d 519 (W.D. La. 2004), 255(n168) Tunica-Biloxi Tribe v. Bridges, 437 F. 2upp. 2d 599(M.D. La. 2006), 472(n56) Tunica-Biloxi Tribe v. Louisiana, 964 F.2d 1536 (5th Cir. 1992), 484(n141) Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1092 (8th Cir. 1999), 547(n190) Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 313 F.3d 1087 (8th Cir. 2002), 303(n90)

708 Turner v. Martire, 99 Cal. Rptr. 2d 587 (Ct. App. 2000), 315–16(n136) Turner v. United States, 248 U.S. 354 (1919), 289, 292 Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d 935 (Ct. Cl. 1974), 81(n15) Tweedy v. Texas Co., 286 F. Supp. 383 (D. Mont. 1968), 356(n177) Twin City Constr. Co. v. Turtle Mountain Band of Chippewa Indians, 866 F.2d 971 (8th Cir. 1989) (en banc), 250(n141) Tyndall v. Gunter, 840 F.2d 617 (8th Cir. 1988), 279(n282) Unalachtigo Band of Nanticoke-Lenni Lenape Nation v. State, 867 A.2d 1222, 1229 (N.J. Super. Ct. App. Div. 2005), 268(n237), 273(n256) Underwriters Nat’l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Ass’n, 455 U.S. 691 (1982), 280(n285) United Keetoowah Band of Cherokee Indians v. Oklahoma, 927 F.2d 1170 (10th Cir. 1991), 144(n11), 514–15(n27) United Nuclear Corp. v. Clark, 584 F. Supp. 107 (D.D.C. 1984), 325–26(n189) United States ex rel. Bernard v. Casino Magic Corp., 293 F.3d 419 (8th Cir. 2002), 545(n184) United States ex rel. Chase v. Wald, 557 F2d 157 (8th Cir. 1977), 112(n251) United States ex rel. Cheyenne River Sioux Tribe v. South Dakota, 105 F.3d 1552 (8th Cir. 1997), 469(n40), 483–84 United States ex rel. Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986), 89(n74) United States ex rel. Kishell v. Turtle Mountain Housing authority, 816 F.2d 1273 (8th Cir. 1987), 244(n114) United States ex rel. Mackey v. Coxe, 59 U.S. (18 How.) 100 (1855), 281(n293) United States ex rel. Morongo Band of Mission Indians v. Rose, 34 F.3d 901 (9th Cir. 1994), 228(n15) United States ex rel. Ray v. Hibner, 27 F.2d 909 (D. Idaho 1928), 357(n185) United States ex rel. Saginaw-Chippewa Tribe v. Michigan, 882 F. SUpp. 659 (E.D. Mich. 1995), 624–25(n17) United States ex rel. Saint Regis Mohawk Tribe v. President R.C.-St. Regis

Table of Cases Mgmt C., 451 F.3d 44 (2d Cir. 2006), 545(n183) United States ex rel. Standing Bear v. Crook, 5 Dill 453, 25 Fed. Cas. 695 (D. Neb. 1879), 53(n30) United States ex rel. Shakopee Mdewakanton Sioux Cmty. v. Pan Am. Mgmt. Co., 616 F. Supp. 1200 (D. Minn. 1985), 624–25(n17) United States ex rel. Southern Ute Tribe v. Hess, 348 F.3d 1237 (10th Cir. 2003), 89(n76) United States ex rel. Steele v. Turn Key Gaming, Inc., 260 F.3d 971 (8th Cir. 2001), 625(n24) United States ex rel. Zuni Tribe v. Platt, 730 F. Supp. 318 (D. Ariz. 1990), 139(n506) United States v. 0.95 Acres of Land, 994 F.2d 696 (9th CIr. 1993), 139(n503) United States v. 10.69 Acres of Land, 425 F.2d 317 (9th Cir. 1970), 118(n307) United States v. 29 Acres of Land, 809 F.2d 544 (8th Cir. 1987), 90(n85) United States v. 103 Electronic Gambling Devices, 223 F.3d 1091 (9th Cir. 2000), 533–34(nn133, 135), 537(n146) United States v. 162 MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000), 534(n135), 537(n146) United States v. 1020 Electronic Gambling Machines, 38 F. Supp. 2d 1213 (E.D. Wash. 1998), 514(nn23, 24), 562(n265) United States v. Aam, 670 F. Supp. 306 (W.D. Wash. 1986), 340(n67) United States v. Aam, 887 F.2d 190 (9th Cir. 1989), 103–4 United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), 336(n32), 339(nn57, 60), 341–42, 350(n136), 351, 353(n159), 356(n184), 357(n188), 374 United States v. Adair, 187 F. Supp. 2d 1273 (D. Or. 2002), vacated, 338 F.3d 971 (9th Cir. 2003), 351(n140) United States v. Ahtanum Irr. Dist., 236 F.2d 321 (9th Cir. 1956), 344(n96) United States v. Alaska, 521 U.S. 1 (1997), 100(nn143, 147) United States v. Algoma Lumber Co., 305 U.S. 415 (1939), 117(n288) United States v. Allen, 574 F.2d 435 (8th Cir. 1978), 149(n42), 150(nn47, 51)

Table of Cases United States v. Alpine Land & Reservoir Co., 878 F.2d 1217 (9th Cir. 1989), 381(n330) United States v. American Horse, 352 F. Supp. 2d 984 (D.N.D. 2005), 244–45(n114) United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984), 356(n184), 357(n187), 362(n210), 382 United States v. Anderson, 857 F. Supp. 52 (D.S.D. 1994), 168(n133) United States v. Antelope, 430 U.S. 641 (1977), 50(nn9, 13), 52–53(n29), 55(n47), 66(nn106, 107), 145(n17), 148(n32), 586(n51) United States v. Antoine, 318 F.3d 919 (9th Cir. 2003), 423(n297) United States v. Aranson, 696 F.2d 654 (9th Cir. 1983), 104(n175) United States v. Arrieta, 436 F.3d 1246 (10th Cir. 2006), 73(n159) United States v. Ashley, 255 F.3d 907 (8th Cir. 2001), 143(n10), 147(n30) United States v. Atlantic Richfield Co., 612 F.2d 1132 (9th Cir. 1980), 84(n41) United States v. Baker, 63 F.3d 1478 (9th Cir. 1995), 27(n129) United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996), 136(n474) United States v. Becerra-Garcia, 397 F.3d 1167 (9th Cir. 2005), 168(n132), 318(n145), 634–35(n69) United States v. Begay, 42 F.3d 486 (9th Cir. 1994), 142(n6) United States v. Belgarde, 300 F.3d 1177 (9th Cir. 2002), 147(n30) United States v. Bell, 724 P.2d 631 (Colo. 1986), 329(n321) United States v. Big Eagle, 881 F.2d 539 (8th Cir. 1989), 387(n32) United States v. Billadeau, 275 F.3d 692 (8th Cir. 2001), 145(n18), 167–68(n131) United States v. Billie, 667 F. Supp. 1485 (S.D. Fla. 1987), 417(n248) United States v. Bird, 359 F.3d 1185 (9th Cir. 2004), 148(n31) United States v. Blue, 722 F.2d 383 (8th Cir. 1983), 142(n7), 146(n24) United States v. Bluewater-Toltec Irr. Dist., 580 F. Supp. 1434 (D.N.M. 1984), 376(nn299, 300) United States v. Boggs, 493 F. Supp. 1050 (D. Mont. 1980), 301(n78)

709 United States v. Boots, 80 F.3d 580 (1st Cir. 1996), 143(n8) United States v. Boyd, 378 U.S. 39 (1964), 471(n47) United States v. Braren, 338 F.3d 971 (9th Cir. 2003), 351(n143), 372(n275) United States v. Bresette, 761 F. Supp. 658 (D. Minn. 1991), 424(n306) United States v. Brisk, 171 F.3d 514 (7th Cir. 1999), 143(n8) United States v. Broncheau, 597 F.2d 1260 (9th Cir. 1979), 52(n24), 149(n36), 159(n97) United States v. Brookfield Fisheries, 24 F. Supp. 712 (D. Or. 1938), 401(n125) United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), 51(nn14, 16), 52(nn24, 28), 54(n36) United States v. Bruisehead, 248 F. Supp. 999 (D. Mont. 1966), 105(n185) United States v. Burch, 169 F.3d 666 (10th Cir. 1999), 155(n76) United States v. California State Bd. of Equalization, 650 F.2d 1127 (9th Cir. 1981), aff ’d mem., 456 U.S. 901 (1982), 471(nn49, 51) United States v. Candelaria, 271 U.S. 432 (1926), 65(n104) United States v. Cappaert, 508 F.2d 313 (9th Cir. 1974), aff’d, 426 U.S. 128 (1976), 356(n177) United States v. Celestine, 215 U.S. 278 (1909), 37(n182), 92(n92), 495(n226) United States v. Cherokee Nation, 480 U.S. 700 (1987), 10(n41), 98(n132), 101(n149) United States v. City and County of Denver, 656 P.2d 1 (Colo. 1982), 334(nn15, 18), 354(nn162, 163), 363(n215) United States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003), 120(n318) United States v. Clarke, 445 U.S. 253 (1980), 120(n319) United States v. Cook, 86 U.S. (19 Wall.) 591 (1873), 116, 513(n16) United States v. Cook, 922 F.2d 1026 (2d Cir. 1991), 144(n11), 155(n76), 514, 538(n151) United States v. Cowboy, 694 F.2d 1228 (10th Cir. 1982), 142(n6) United States v. Curnew, 788 F.2d 1335 (8th Cir. 1986), 54(n36)

710 United States v. Cutler, 37 F. Supp. 724 (D. Idaho 1941), 414(n306) United States v. Dakota, 796 F.2d 186 (6th Cir. 1986), 144(n11), 512–13 United States v. Dann, 470 U.S. 39 (1985), 83(nn28, 31) United States v. Dann, 873 F.2d 1189 (9th Cir. 1989), 81(n15), 88(n66), 394(n82) United States v. Demarrias, 876 F.2d 674 (8th Cir. 1989), 149(n38) United States v. Dion, 752 F.2d 1261 (8th Cir. 1985) (en banc), rev’d on other grounds, 476 U.S. 734 (1986), 25(n115), 344(n91), 387(n25), 416(nn237, 238), 417(n248), 422(n292), 424(n306) United States v. District Court, 238 P.2d 1132 (Utah 1951), 364(n223) United States v. District Court, 242 P.2d 774 (Utah 1952), 364 United States v. District Court for Eagle County, 401 U.S. 520 (1971), 333(n11), 338(n45), 368, 370(n262), 377(n302), 368(n250), 370(N263), 377(n302) United States v. District Court for Water Div. No. 5, 401 U.S. 527 (1971), 368(n250), 370(n263), 377(n302) United States v. Doe, 155 F.3d 1070 (9th Cir. 1998) (en banc), 146(n25) United States v. Doherty, 126 F.3d 769 (6th Cir. 1997), 317(n143) United States v. Drapeau, 414 F.3d 869 (8th Cir. 2005), 143(n8) United States v. Drewry, 365 F.3d 957 (10th Cir. 2004), 52(n28); vacated on other grounds, 543 U.S. 1103 (2005), 52(n28), 145(n19) United States v. Eagleboy, 200 F.3d 1137 (8th Cir. 1999), 424(n305) United States v. Eberhardt, 789 F.2d 1354 (9th Cir. 1986), 416(n236), 417(nn240, 241, 242), 417–18(n249), 424(n312) United States v. E.C. Investments, Inc., 77 F.3d 327 (9th Cir. 1996), 513, 514, 550(n205), 569(n309) United States v. Enas, 255 F.3d 662 (9th Cir. 2001) (en banc), 152(n62), 176, 177, 319(n153) United States v. Errol D., 292 F.3d 1159 (9th Cir. 2002), 147(n30) United States v. Farris, 624 F.2d 890 (9th Cir. 1980), 144(n11), 512 United States v. Ferny County, 511 F. Supp. 546 (E.D. Wash. 1981), 89(n77)

Table of Cases United States v. FMC Corp., 531 F.3d 813 (9th Cir. 2008), 453(n218) United States v. Friday, 525 F.3d 936 (10th Cir. 2008), 422(n293) United States v. Fryberg, 622 F.2d 1010 (9th Cir. 1980), 422(n292) United States v. Funmaker, 10 F.3d 1327 (7th Cir. 1993), 27(n129), 143(n8) United States v. Gachot, 512 F.3d 1252 (10th Cir. 2008), 143(n10) United States v. Gardner, 244 F.3d 784 (10th Cir. 2001), 142(n7), 387(n30) United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976), 83(n31), 392(n82) United States v. Gila Valley Irr. Dist., 31 F.3d 1428 (9th Cir. 1994), 340(n63) United States v. Gotchnik, 222 F.3d 506 (8th Cir. 2000), 397(n108) United States v. Grey Bear, 828 F.2d 1286 (8th Cir. 1987), vacated in part, 836 F.2d 1088 (8th Cir. 1987), 94(n106) United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) (en banc), 423(n298) United States v. Hennen, 300 F. Supp. 256 (D. Nev. 1968), 367(n244), 377–78 United States v. Hess, 194 F.3d 1164 (10th Cir. 1999), 97–98(n129) United States v. Hicks, 587 F. Supp. 1162 (W.D. Wash. 1984), 401(n130), 402(n132) United States v. High Elk, 902 F.2d 660 (8th Cir. 1990) (per curiam), 156(n79) United States v. Holliday, 70 U.S. (3 Wall.) 407 (1865), 63(n95) United States v. Holt State Bank, 270 U.S. 49 (1926), 100(n141), 103(n167) United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997) (per curiam), 422(n293) United States v. Humboldt County, 615 F.2d 1260 (9th Cir. 1980), 275(n262) United States v. Idaho ex rel. Dir., 508 U.S. 1 (1993), 367–68, 372(n276) United States v. Jackson, 600 F.2d 1283 (9th Cir. 1979), 390(n52) United States v. James, 980 F.2d 1314 (9th Cir. 1992), 300–301 United States v. Jarvison, 409 F.3d 1221 (10th Cir. 2005), 188(n143) United States v. Jesse, 744 P.2d 491 (Colo. 1987), 354(n162) United States v. John, 437 U.S. 634 (1978), 54(n35), 70–71, 387(n24)

Table of Cases United States v. Johnson, 637 F.2d 1224 (9th Cir. 1980), 145(n19) United States v. Jones, 440 F. 3d 927 (8th Cir. 2006), (per curiam), 148(n34) United States v. Juvenile, 228 F.3d 987 (9th Cir. 2000), 150–51(n51) United States v. Juvenile Male, 118 F.3d 1344 (9th Cir. 1997), 143(n8), 301(n77) United States v. Kagama, 118 U.S. 375 (1886), 2(n8), 7(n27) United States v. Kent, 945 F.2d 1441 (9th Cir. 1991), 88(n66) United States v. Keys, 103 F.3d 758 (9th Cir. 1996), 51(n14), 55–56(n48), 159(n99) United States v. Lara, 324 F.3d 635 (8th Cir. 2003), 9(n40), 33(n160), 152(n63), 153, 170(n7), 171(n8), 177–85 passim, 187(n138), 320–21 United States v. Lara, 541 U.S. 193 (2004), 63(n95), 177–85, 319(n153), 385(n14), 396(n100) United States v. Lawrence, 51 F.3d 150 (8th Cir. 1995), 51(n14), 52(n28) United States v. Leon D.M., 953 F. Supp. 346 (D.N.M. 1996), aff ’d, 132 F.3d 583 (10th Cir. 1997), 150–51(n51) United States v. Lomayaoma, 86 F.3d 142 (9th Cir. 1996), 147(n26), 148(n34) United States v. Long, 324 F.3d 475 (7th Cir. 2003), 152(n64), 175(n49), 320(n158) United States v. Lopez, 514 U.S. 549 (1995), 384(n2) United States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir. 1981), 397(n103) United States v. Lowery, 512 F.3d 1194 (9th Cir. 2008), 88(n66) United States v. Lummi Indian Tribe, 235 F.3d 443 (9th Cir. 2000), 400 United States v. Male Juvenile, 280 F.3d 1008 (9th Cir. 2002), 150(n49) United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977), 144(n11), 146(n24) United States v. Mason, 412 U.S. 391 (1973), 22(n102) United States v. Mazurie, 419 U.S. 544 (1975), 92(n96), 162, 163, 172(n26), 173, 174, 386(n19) United States v. M.C., 311 F. Supp. 2d 1281 (D.N.M. 2004), 73(nn159, 161) United States v. McBratney, 104 U.S. 621 (1881), 145(n17), 159(n95), 391(n55)

711 United States v. McGowan, 2 F. Supp. 426 (W.D. Wash. 1931), 352(n147), 399(n117) United States v. McGowan, 62 F.2d 955 (9th Cir. 1933), 400 United States v. McGowan, 302 U.S. 535 (1938), 69(n131), 71, 72 United States v. Medearis, 380 F.3d 1049 (8th Cir. 2004), 51(n14), 184–85(n118) United States v. Michigan, 505 F. Supp. 467 (W.D. Mich. 1980), 407(n170), 408(n184) United States v. Michigan, 623 F.2d 448 (6th Cir. 1980), 417(n240) United States v. Michigan, 653 F.2d 277 (6th Cir. 1981), 410(n200) United States v. Midwest Oil Co., 236 U.S. 459 (1915), 89(n73), 336(n34) United States v. Miller, 26 F. Supp. 2d 415 (N.D.N.Y. 1998), 143(n8), 164(n115) United States v. Minnesota, 270 U.S. 181 (1926), 97–98(n129) United States v. Mitchell, 445 U.S. 535 (1980), 11–14, 116(n278) United States v. Mitchell, 463 U.S. 206 (1983), 11–14 United States v. Mitchell, 502 F.3d 931 (9th Cir 2007), 142(n7), 148(n33) United States v. Montana, 604 F.2d 1162 (9th Cir. 1979), rev’d on other grounds, 450 U.S. 544 (1981), 236, 237, 386(n22), 391(nn55, 60) United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000), 400 United States v. Murdock, 132 F.3d 534 (10th Cir. 1997), 390(n51) United States v. Narcia, 776 F. Supp. 491 (D. Ariz. 1991), 149(n38) United States v. Navajo Nation, 537 U.S. 488 (2003), 106(n198) United States v. New Mexico, 438 U.S. 696 (1978), 331(n6), 332(n9), 338–39, 341, 342(n81), 354(nn161, 165), 359(n196) United States v. New Mexico, 455 U.S. 720 (1982), 471(n47) United States v. Newmont USA Ltd., 504 F. Supp., 2d 1050 (E.D. Wash. 2007), 81(n15) United States v. New York, 505 U.S. 44 (1992), 11(n47) United States v. Nice, 241 U.S. 591 (1916), 38 United States v. Nordic Village, Inc., 503 U.S. 30 (1992), 368(n249)

712 United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) (per curiam), 422(n293) United States v. One Hundred Thirty-Seven (137) Draw Poker-Type Machines, 606 F. Supp. 747 (N.D. Ohio 1984), 514(n22) United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981), 290(n20), 304(n91), 307(n105), 388(n35), 404(n155) United States v. Oregon, 718 F.2d 299 (9th Cir. 1983), 404(n153), 406 United States v. Oregon, 29 F.3d 481 (9th Cir. 1994), amended, 43 F.3d 1284 (1994), 67(n114), 395(n90) United States v. Oregon, 44 F.3d 758 (9th Cir. 1994), 363(n214), 370(n268), 381(n330), 396(n93) United States v. Orr Water Ditch Co., 914 F.2d 1302 (9th Cir. 1990), 358– 59(nn193, 194, 197) United States v. Orr Water Ditch Co., 309 F. Supp. 2d 1245 (D. Nev. 2004), 358– 59(n194), 360, 370(n276) United States v. Paine Lumber Co., 206 U.S. 467 (1907), 116(n284) United States v. Papakee, 485 F. Supp. 2d 1032 (N.D. Iowa 2007), 71(n142) United States v. Patch, 114 F.3d 131 (9th Cir. 1997), 168(n133) United States v. Pelican, 232 U.S. 442 (1914), 69(n131), 74 United States v. Peltier, 344 F. Supp. 2d 539 (E.D. Mich. 2004), 167(n129), 634–35(n69) United States v. Pemberton, 121 F.3d 1157 (8th Cir. 1997), 155(n75) United States v. Pemberton, 405 F.3d 656 (8th Cir. 2005), 51(n14), 184–85(n118) United States v. Pend Oreille County Pub. Util. Dist., 585 F. Supp. 606 (E.D. Wash. 1984), 82(n19) United States v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502 (9th Cir. 1991), 83(n31), 104(n176) United States v. Percy, 250 F.3d 720 (9th Cir. 2001), 166(n125) United States v. Peterson, 121 F. Supp. 2d 1309 (D. Mont. 2000), 402(n132) United States v. Phelps, 168 F.3d 1048 (8th Cir. 1999), 151(n54 United States v. Pinto, 755 F.2d 150 (10th Cir. 1985), 143(n10) United States v. Plainbull, 957 F.2d 724 (9th Cir. 1992), 244(n114)

Table of Cases United States v. Powers, 305 U.S. 527 (1939), 356(n184) United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001), 51(n14), 145(n17) United States v. Pueblo of San Idelfonso, 513 F.2d 1383 (Ct. Cl. 1975), 82(n18) United States v. Quiver, 241 U.S. 602 (1916), 146(n24) United States v. Ramsey, 271 U.S. 467 (1926), 74(n165) United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (8th Cir. 1987), 288(n8) United States v. Rickert, 188 U.S. 432 (1903), 478(n94), 482(n128) United States v. Rio Grande Dam & Irr. Co., 174 U.S. 690 (1899), 334, 354(n161) United States v. Roberts, 904 F. Supp. 1262 (E.D. Okla. 1995), aff ’d, 185 F.3d 1125 (10th Cir. 1999), 75(n167), 76(n179), 90(n81), 91(n89) United States v. Rogers, 45 U.S. (4 How.) 567 (1846), 48(n1), 50 United States v. Romero, 136 F.3d 1268 (10th Cir. 1998), 146(n23) United States v. Roy, 408 F.3d 484 (8th Cir. 2005), 167(n128) United States v. Sandoval, 231 U.S. 28 (1913), 66(n106), 69(n131), 71, 72, 336(n35) United States v. Santa Ynez Band of Chumash Indians, 983 F. Supp. 1317 (C.D. Cal. 1997), 562(n265), 570(n311) United States v. Santee Sioux Tribe, 135 F.3d 558 (8th Cir. 1998), 567–68(nn295, 304), 569–70 United States v. Santee Sioux Tribe, 254 F.3d 728 (8th Cir. 2001), 567–68(n295) United States v. Santee Sioux Tribe, 324 F.3d 607 (8th Cir. 2003), 537(n146) United States v. Santa Fe Pac. R.R., 314 U.S. 339 (1941), 81–82(nn15, 16, 18, 20), 89(n73), 393(n73), 394(n76) United States v. Schmidt, 403 F.3d 1009 (8th Cir. 2005), 318(n145) United States v. Seminole Tribe, 45 F. Supp. 2d 1330 (M.D. Fla. 1999), 570(n311) United States v. Shoshone Tribe, 304 U.S. 111 (1938), 105(n183), 116(n287), 340(n63) United States v. Sioux Nation, 448 U.S. 371 (1980), 10(n41), 82(n21), 83(n27) United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358 (8th Cir. 1990), 538(n150), 540–41

Table of Cases United States v. Sixteen Electronic Gambling Devices, 603 F. Supp. 32 (D. Haw. 1984), 514(n22) United States v. Skokomish Indian Tribe, 764 F.2d 670 (9th Cir. 1985), 397(n103) United States v. Smiskin, 477 F.3d 1260 (9th Cir. 2007), 27(n129), 143(n8) United States v. Smith, 387 F.3d 826 (9th Cir. 2004), 143(n8) United States v. Snowden, 879 F. Supp. 1054 (D. Or. 1995), 301(n77) United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985), 387(n30), 388(n33), 405(n156), 424(n310), 425(n314) United States v. Sosseur, 181 F.2d 873 (7th Cir. 1950), 146(n24) United States v. Southern Pac. Transp. Co., 543 F.2d 676 (9th Cir. 1976), 94(n103), 115(n268) United States v. Spokane Tribe, 139 F.3d 1297 (9th Cir. 1998), 562(n264) United States v. Stands, 105 F.3d 1565 (8th Cir. 1997), 74(nn163, 165, 166), 76(n179) United States v. Stone, 112 F.3d 971 (8th Cir. 1997), 155(n75) United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990), 67(n112), 395(n90), 396(n93), 400 United States v. Swift Hawk, 125 F. Supp. 2d 384 (D.S.D. 2000), 146(n25) United States v. Tawahongva, 456 F. Supp. 2d 1120 (D. Ariz. 2006), 136(n469), 424(n307) United States v. Taylor, 13 P. 333 (Wash. Terr. 1887), enf ’d, 44 F. 2 (C.C.D. Wash. 1890), 399(n117), 402(n137) United States v. Terry, 400 F.3d 575 (9th Cir. 2005), 168(n132), 634–35(n69) United States v. Thunder Hawk, 127 F.3d 705 (8th Cir. 1997), 146(n24) United States v. Toledo, 70 F.3d 988 (8th Cir. 1995) (per curiam), 143(n8), 187(n138) United States v. Top Sky, 547 F.2d 486 (9th Cir. 1976) (per curiam), 422(n293) United States v. Torlaw Realty, Inc., 483 F. Supp. 2d 967 (C.D. Cal. 2007), 113(n253) United States v. Torres, 733 F.2d 449 (7th Cir. 1984), 164(n115) United States v. Tsosie, 92 F.3d 1037 (10th Cir. 1996), 244(n114)

713 United States v. United States Fidelity & Guar. Corp., 309 U.S. 506 (1940), 8(n30), 289–91, 295, 306–8 United States v. Utah, 283 U.S. 64 (1931), 98(n130) United States v. Van Chase, 137 F.3d 579 (8th Cir. 1998), 164(n115) United States v. Vasquez-Ramso, 531 F.3d 987 (9th Cir. 2008) (per curiam), 423(n297) United States v. Velarde, 40 F. Supp. 2d 1314 (D.N.M. 1999), 148(n32), 288(n8), 301(nn77, 78) United States v. Von Murdock, 132 F.3d 534 (10th Cir. 1997), 67(n112), 171(n15) United States v. Vulles, 282 F. Supp. 829 (D. Mont. 1968) rev’d in part, 437 F.2d 177 (9th Cir. 1971), 403(n140) United States v. Walker River Irr. Dist., 104 F.2d 334 (9th Cir. 1939), 336(n33), 341(n69), 344, 352 United States v. Waller, 243 U.S. 452 (1917), 38(n193) United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff ’d, 520 F.2d 676 (9th Cir. 1975), 385(n5), 387(n27), 393(n71), 396(nn98, 99), 397(n104), 398(n109), 399(nn117, 121), 400, 404(nn152, 155), 405(nn157, 160, 161), 406(n168), 407(nn170, 174), 410(n194), 412(n209), 652 United States v. Washington, 520 F.2d 676 (9th Cir. 1975), 67(n113), 385(n7), 386(nn17, 21, 22), 392(nn62–64), 397(n101), 398(n115), 399(n122), 400, 404(n149), 407(nn169, 171), 417–18(n249) United States v. Washington, 459 F. Supp. 1020 (W.D. Wash. 1978), 400 United States v. Washington, 506 F. Supp. 187 (W.D. Wash. 1980), 412(n210) United States v. Washington, 641 F.2d 1368 (9th Cir. 1981), 67(nn112, 113, 114), 395(n90), 396(nn93, 94), 400 United States v. Washington, 694 F.2d 188 (9th Cir. 1982), 103(n169), 400, 412–13(nn213, 214) United States v. Washington, 730 F.2d 1314 (9th Cir. 1984), 399(nn117, 123), 400, 419(n263) United States v. Washington, 626 F. Supp. 1405 (W.D. Wash. 1985), aff ’d in part, 841 F.2d 317 (9th Cir. 1988), 392(n64), 395(n86), 397(n105), 399(n123), 400

714 United States v. Washington, 759 F.2d 1353 (9th Cir. 1985) (en banc), 399(n119), 408(n181), 413(n217) United States v. Washington, 873 F. Supp 1422 (W.D. Wash. 1994), aff ’d, 157 F.3d 630 (9th Cir. 1998), 99–100(n139), 399(n120), 400 United States v. Washington, Civil Action No. 9213, subproceeding 89-3 (W.D. Wash. 1994), 631–32(n59), 654(n98) United States v. Washington, 898 F. Supp. 1453 (W.D. Wash. 1995), amended, 909 F. Supp. 787 (1995), aff ’d, 157 F.3d 630 (9th Cir. 1998), 397(n106), 399(n118), 402(nn137, 138), 403(n139), 408(nn180, 182) United States v. Washington, 235 F.3d 438 (9th Cir. 2000), 409(n189) United States v. Washington, 393 F. Supp. 2d 1089 (W.D. Wash. 2005), 409(n192) Untied States v. Washington, Civil No. 709213, subproceeding 05-2, 2006, WL 3386868 (W.D. Wash. Nov. 21, 2006), recons. denied, 2007 WL 171904 (W.D. Wash. Jan. 18, 2007), 409(n192), 411(n207), 413(n218), 414(n219), 420(n267) United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050 (W.D. Wash. 2005), 339–40(n62), 342(n80), 348(n118), 351(n138), 356(n179), 358– 59(nn192, 194), 362(n209), 396(n93), 397(n103) United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998), vacated by equally divided court, 165 F.3d 1209 (8th Cir. 1999) (en banc), 152(n63), 320(n158) United States v. Webb, 219 F.3d 1127 (9th Cir. 2000), 94(n106) United States v. Weddell, 12 F. Supp. 2d 999 (D.S.D. 1998), aff ’d per curiam, 187 F.3d 645 (8th Cir. 1999), 297(n57) United States v. Wheeler, 435 U.S. 313 (1978), 7(n29), 8, 145(n17), 146(n25), 148(n32), 149(n35), 151(n52), 152(n62), 176(n52), 180–81, 182, 186(n134), 188, 380(n325), 386(n16), 396(n100) United States v. White, 237 F.3d 170 (2d Cir. 2001), 143(n8) United States v. White Mountain Apache Tribe, 537 U.S. 465 (2008), 14–17

Table of Cases United States v. White Mountain Apache Tribe, 784 F.2d 917 (9th Cir. 1986), 14–17, 264(n217), 265(n221), 288(n8) United States v. Williams, 898 F.2d 727 (9th Cir. 1990), 405(n156), 410(n201), 424(nn310, 311) United States v. Winans, 198 U.S. 371 (1905), 103(n166), 335, 385(n9), 395(n87), 399(n117), 402(nn137, 138), 416(n233) United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006), 423(n297), 424(n305) United States v. Winstar Corp., 518 U.S. 839 (1996), 469(n36) United States v. Wood, 386 F. 3d 961 (10th Cir. 2004), 149(n40) United States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986), 238(n71), 265(n221), 288(n8), 315(n136) United States v. Yankton, 168 F.3d 1096 (8th Cir. 1999), 142(n7) United States v. Yannott, 42 F.3d 999 (6th Cir. 1994), 142(n6) United States v. Young, 936 F.2d 1050 (9th Cir. 1991), 142(n6) United Tribe of Shawnee Indians v. United States, 253 F.3d 543 (10th Cir. 2001), 64(n99) U.S. Bancorp v. Ike, 171 F. Supp. 2d 1122 (D. Nev. 2001), 239–40(n86) USDOE v. Ohio, 503 U.S. 607 (1992), 440(n106) USDOI v. South Dakota, No. 95-1956, 75(nn169, 172) USDOL v. Occupational Safety and Health Comm’n, 935 F.2d 182 (9th Cir. 1991), 27(n129) Utah & Northern Ry. v. Fisher, 116 U.S. 28 (1885), 202(n237), 487 Utah Dep’t of Soc. Servs. v. Vijil, 784 P.2d 1130 (Utah 1989), 269–70(n240) Utah Div. of State Lands v. United States, 482 U.S. 193 (1987), 100(n143), 101(n149 Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260 (10th Cir. 1998), 300(n71), 309(n112) Ute Indian Tribe v. State Tax Comm’n, 574 F.2d 1007 (10th Cir. 1978), 229(n21) Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc), 95(n110) Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997), 95(n110), 97(n128)

Table of Cases Ute Tribe v. Leavitt, 497 F. Supp. 2d 1245 (D.N.M. 2007), 45(n232) Val/Del, Inc. v. Superior Court, 703 P.2d 502 (Ariz. Ct. App. 1985), 277(n278), 303(n90) Valencia Energy Co., 109 I.L.B.A. 40 (1989), 461(n296) Valerie M. v. Arizona Dep’t of Econ. Sec., 2008 WL 2426807 (Ariz. Ct. App. 2008), 606(n124) Val-U Constr. Co. v. Rosebud Sioux Tribe, 146 F.3d 573 (8th Cir. 1998), 303(n86) Vance v. Boyd Mississippi, Inc., 923 F. Supp. 905 (S.D. Miss. 1996), 245(n115) Van Kruiningen v. Plan B, LLC, 485 F. Supp. 2d 92 (D. Conn. 2007), 215–16(n306) Vann v. Kempthorne, 467 F. Supp. 2d 56, 69 (D.D.C. 2006), 298(n62) Vialpando v. State, 640 P.2d 77 (Wyo. 1982), 51(n17) Vieth v. Jubelirer, 541 U.S. 267 (2004), 60(n73) Village of Gambell v. Hodel, 869 F.2d 1273 (9th Cir. 1989), 84(n39) Vision Church v. Village of Long Grove, 468 F.3e 975 (7th Cir. 2006), 138(n488) V.S.B. v. State Dep’t of Health and Soc. Servs., 45 P.3d 1198 (Alaska 2002), 603(n113), 606(n124) Wacondo v. Concha, 873 P.2d 276 (N.M. Ct. App. 1994), 268(n237) Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005), 210(n278), 223, 224, 469(n40), 471(n51), 472(n56), 490–94 Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176 (9th Cir. 1981), 395(n84) Wakefield v. Little Light, 347 A.2d 228 (Md. 1975), 587(n54) Walker v. Reynolds, 912 P.2d 899 (Okla. Civ. App. 1996), 270–71(n241) Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990), 156(n80) Walksalong v. Mackey, 549 N.W.2d 384 (Neb. 1996), 574–75(n20) Wallett v. Anderson, 198 F.R.D. 20 (D. Conn. 2000), 315(n135) Walton v. Tesuque Pueblo, 443 F.3d 1274 (10th Cir. 2006), 300(n71)

715 Wampanoag Tribe v. Massachusetts Comm’n Against Discrimination, 63 F. Supp. 2d 119 (D. Mass. 1999), 299(n70) Warburton/Buttner v. Superior Court, 127 Cal. Rptr. 2d 706 (Ct. App. 2002), 304(n91) Warfield v. Navajo Nation (In re Davis Chevrolet, Inc.), 282 B.R. 674 (Bankr. D. Ariz. 2002), 307(n103) Warren Trading Post v. Arizona Tax Comm’n, 380 U.S. 685 (1965), 31(n152), 391(n56), 473, 477, 503 Washington Department of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985), 434–35, 631(n56) Washington Game Dep’t v. FPC, 207 F.2d 391 (9th Cir. 1953), 385(n11) Washington Game Dep’t v. Puyallup Tribe, 414 U.S. 44 (1973), 388(n36), 417(n249) Washington State Charterboat Ass’n v. Baldrige, 702 F.2d 820 (9th Cir. 1983), 419(n262) Washington v. Confederated Bands and Tribes of the Yakima Nation, 439 U.S. 463 (1979), 9(n40), 60(nn68, 72) 156(n83), 277–78, 279(n279), 367(n244) Washington v. Confederated Tribes of Colville Indian Reserv., 447 U.S. 134 (1980), 10(n43), 189–90, 202(n237), 212(n283), 213(n288), 215(n301), 217(n314), 218(n323), 219(n326), 251, 266–67, 268(n236), 291(n30), 386(n21), 433, 464–65, 470(n45), 471(n48), 475(n76), 489–90, 496(n233), 497–500, 501, 502, 586(n52), 632(n62) Washington v. Crawford, 541 U.S. 36 (2004), 327–28(n193) Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969), 314(n133) Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979), 55(n48), 337(n43), 340(n63), 395(nn88, 90), 407(nn172, 175, 177), 417(n240), 419(n256) Washoe Tribe v. Brooks, 175 F. Supp. 2d 1255 (D. Nev. 2001), 307(n104) Weatherwax ex rel. Carlson v. Fairbanks, 619 F. Supp. 294, 296–97 (D. Mont. 1985), 325(n182) Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 1980), 166(n127)

716 Welch Contracting, Inc., v. North Carolina Dep’t of Transportation, 622 S.E.2d 691 (N.C. Ct. App. 2005), 294(n48), 311(n118) Wellman v. Chevron U.S.A., Inc., 815 F.2d 577 (9th Cir. 1987), 244(n114), 252(n155) Wells Fargo Bank, N.A. v. Gila River Indian Community (In re Schugg), 384 B. R. 263, 275 (Bankr. D. Ariz. 2008), 120(n318) Wells v. Philbrick, 486 F. Supp. 807 (D.S.D. 1980), 325(n182) Wells v. Wells, 451 N.W.2d 402 (S.D. 1990), 282(n297) Wendell C. v. State, 118 P.3d 1 (Alaska 2005), 603(n113) Western Mohegan Tribe v. New York, 100 F. Supp. 2d 122 (N.D.N.Y. 2000), vacated in part on other grounds, 246 F.3d 230 (2d Cir. 2001), 129(n403) Western Shoshone Bus. Council v. Babbitt, 1 F.3d 1052 (10th Cir. 1993), 530(n115) Western Shoshone Nat’l Council v. Molini, 951 F.2d 200 (9th Cir. 1991), 83(n31), 394(n82), 395(n84) Western Shoshone Nat’l Council v. United States, 408 F. Supp. 2d 1040 (D. Nev. 2005), 226–27(n9) Western Shoshone Nat’l Council v. United States, 73 Fed. Cl. 59 (2006), 87(n59) Western Telcon, Inc. v. California State Lottery, 43 Cal. Rptr. 2d 747 (Ct. App. 1995), rev’d, 917 P.2d 651 (Cal. 1996), 552 Weston v. Jones, 603 N.W.2d 706 (S.D. 1999), 270(n241) Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995), 149(n36) Wheeler v. Swimmer, 835 F.2d 259 (10th Cir. 1987), 326(n190) White v. Pueblo of San Juan, 728 F.2d 1307 (10th Cir. 1984), 326(n190) White Earth Band of Chippewa Indians v. Alexander, 518 F. Supp. 527 (D. Minn. 1981), aff ’d, 683 F.2d 1129 (8th Cir. 1982), 389(n45), 391(n59) White Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654 (Ariz. 1971), 311(n118) White Mountain Apache Tribe v. Arizona Dep’t of Fish & Game, 649 F.2d 1274 (9th Cir. 1981), 391(n57)

Table of Cases White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), 93(n100), 116(nn278, 287), 202(n237), 210(n278), 211–16, 217(n314), 222, 223, 266, 267(n233), 365, 381(n329), 434(n57), 435–36, 472(n56), 473(nn61, 64), 474(nn67, 69), 475(nn76, 78), 487–88, 490–94, 495(n221), 517(n45), 519(n54) White Mountain Apache Tribe v. Hodel, 784 F.2d 921 (9th Cir. 1986), 373(n282) White Mountain Apache Tribe v. Industrial Comm’n, 696 P.2d 223 (Ariz. Ct. App. 1985), 304(n92) White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301 (9th Cir. 1988), 246(n122), 252(n155) White Mountain Apache Tribe v. Williams, 810 F.2d 844 (9th Cir. 1985), 229(n21) Whitebird v. Kickapoo Housing Authority, 751 F. Supp. 928 (D. Kan. 1990), 310(n115) Whiteco Metrocom Div. v. Yankton Sioux Tribe, 902 F. Supp. 199 (D.S.D. 1995), 325–26(n189), 570(n314) Whiteagle v. Cloud, 32 Indian L. Rep. 6024 (Ho-Chunk Sup. Ct. Oct. 3, 2005), 329(n195) Whitefoot v. United States, 293 F.2d 658 (Ct. Cl. 1961), 386(n17), 395(n89), 396(N97) Whiterock v. State, 918 P.2d 1309 (Nev. 1996), 395(n91) Wilbur v. Locke, 423 F.3d 1101 (9th Cir. 2005), 295(n51) Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2008), 40(n197) Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997), 26(n124), 57(n50) Williams v. Clark, 742 F.2d 549 (9th Cir. 1994), 521(n63) Williams v. Gover, 490 F.3d 785 (9th Cir. 2007), 49(n7), 316(n140) Williams v. Lee, 358 U.S. 217 (1959), 202(n237), 203(n240), 211(n281), 216–18, 256(n174), 265–67, 382(n334), 431(n38) Williams v. Pyramid Lake Paiute Tribe, 625 F. Supp. 1457 (D. Nev. 1986), 325–26(n189) Williams v. Steinmetz, 82 P. 986 (Okla. 1905), overuled in part on other grounds, Holden v. Lynn, 120 P. 246 (Okla. 1911), 112(n250)

Table of Cases Williams v. United States, 327 U.S. 711 (1946), 143(n10) Willis v. Fordice, 850 F. Supp. 523 (S.D. Miss. 1994), aff ’d, 55 F.3d 633 (11th Cir. 1995), 553(n222) Willman v. Washington Utilities & Transportation Commission, 93 P.3d 909 (Wash. Ct. App. 2004), 468(n34) Wilson v. Block, 708 F2d 735 (D.C. Cir. 1983), 135(n458), 139(n505), 140(n508) Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997), 255(n168), 256–57(n177), 281(n296), 284–85(n310) Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979), 20(n95), 89(n76), 97–98(n129) Wilson v. State, 185 P.3d 94 (Alaska 2008), 602(n110) Winer v. Penny Enters., Inc., 674 N.W. 2d 9 (N.D. 2004), 270–71(n241) Winifred B. French Corp. v. Pleasant Point Passamaquoddy Reservation, 896 A.2d 950 (Me. 2006), 86(n55) Winnebago Tribe v. Kline, 297 F. Supp. 2d 1291 (D. Kan. 2004), 228(n20), 230– 31(nn30, 34), 471(n50), 494(n219) Winters v. United States, 207 U.S. 564 (1908), 25(n114), 103(n166), 331, 333(nn10, 13, 14), 335–37, 338–39, 342(n81), 352(nn144, 145), 355, 361, 362(n210), 415–16, 635(n72) Winton v. Amos, 255 U.S. 373 (1921), 38(n193) Wippert v. Blackfeet Tribe, 654 P.2d 512 (Mont. 1982), 282(n297) Wippert v. Blackfeet Tribe, 859 P.2d 420 (Mont. 1993), 309–10(n112) Wisconsin Potawatomies v. Houston, 393 F. Supp. 719 (W.D. Mich. 1973), 587(n54) Wisconsin v. Baker, 698 F.2d 1323 (7th Cir. 1983) (per curiam), 313–14(n132) Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001), 175(nn44, 47), 431, 441(n116), 445 Wisconsin v. Ho-Chunk Nation, 463 F.3d 655, 658–62 (7th Cir. 2006), aff’d in part, vacated in part, 512 F.3d 921 (7th Cir. 2008), 558(n240) Wisconsin v. Stockbridge-Munsee Cmty., 67 F. Supp. 2d 990 (E.D. Wis. 1999), 96(n124) Wisconsin v. Stockbridge-Munsee Cmty, 366 F. Supp. 2d 698 (E.D. Wis. 2004), 95(n112), 96(n121)

717 Wisconsin v. Yoder, 406 U.S. 205 (1972), 136(n472) Wisconsin Winnebago Nation v. Thompson, 22 F.3d 719 (7th Cir. 1994), 564(n271) Witt v. United States, 681 F.2d 1144 (9th Cir. 1982), 54(n36) Wolfchild v. United States, 62 Fed. Cl. 521 (2004), 11(n51), 16(n83), 17(n85), 22(n102), 23(n109); granting in part motion to certify interlocutory appeal, 78 Fed. Cl. 472 (2007), 22(n102); recons. denied, 68 Fed. Cl. 779 (2005), 16(n83), 22(n102), 23(n109) Wolfchild v. United States, 77Fed Cl. 22 (2007), 23(n108) Wolf Point Cmty. Org. v. Investment Ctrs. of Am., Inc., 28 Indian L. Rep. 6088 (Ft. Peck Tr. Ct. App. Feb. 6, 2001), 256–57(n177) Woodbury County Att’y v. Iowa Att’y Gen. (in the interest of AW), 741 N.W.2d 793 (Iowa 2007), 60(n74) Woods Petroleum Corp. v. DOI, 18 F.3d 854 (10th Cir. 1994), 21–22(n101) Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), 4–5, 10, 159(n94), 169, 186(n129), 216(n312), 469(n37) Wordehoff v. Nepper, 170 N.W. 657 (S.D. 1919), 112(n249) Work v. Fallon Paiute-Shoshone Tribe, 24 Indian L. Rep. 6078 (Intertr. Ct. App., Feb. 25, 1997), 329(n195) World Touch Gaming, Inc. v. Massena Mgmt., LLC, 117 F. Supp. 2d 271 (N.D.N.Y. 2000), 304(n92) Worrall v. Mashantucket Pequot Gaming Enter., 131 F. Supp. 2d 328 (D. Conn. 2001), 293(n47) Worthington v. City Council, 31 Cal. Rptr. 3d 59 (Ct. App. 2005), 554–55(n229) Wright v. Colville Indian Enter. Corp., 147 P.3d 1275 (Wash. 2006), 311(n118), 313–14(n132) Wright v. Prairie Chicken, 579 N.W.2d 7 (S.D. 1998), 315(n135) Wyandottte Nation v. City of Kansas City, 200 F. Supp. 2d 1279 (D. Kan. 2002), 87(n57), 307(n104) Wyandotte Nation v. NIGC, 437 F. Supp. 2d 1193 (D. Kan. 2006), 524(n87), 526, 531(n119) Wyandotte Nation v. Sebelius, 337 F. Supp. 2 1253 (D. Kan. 2004), aff’d in part

718 and rev’d in part on other grounds, 443 F.3d 1247 (10th Cir. 2006), 519(n54), 523(n83), 524(n85) Wyandotte Nation v. Unified Gov’t of Wyandotte County/Kansas City, 222 F.R.D. 490 (D. Kan. 2004), 87(n57) Wyoming v. United States, 488 U.S. 1040 (1989), 346(n108), 347(n109) Wyoming v. United States, 492 U.S. 406 (1989) (per curiam), 347(n110) Yankton Sioux Tribe v. EPA, 950 F. Supp. 1471 (D.S.D. 1996), 454 Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999), 93(n102), 94(n108), 97(n126) Yankton Sioux Tribe v. Podhrasksy, 529 F. Supp. 2d 1040 (D.S.D. 2007), 97(n126) Yankton Sioux Tribe v. South Dakota, 796 F.2d 241 (8th Cir. 1986), 81(n16) Yankton Sioux Tribe v. Southern Missouri Waste Management District, 890 F. Supp. 878 (D.S.D. 1995), aff ’d on other grounds, 99 F.3d 1439 (8th Cir. 1996), rev’d on other grounds, 522 U.S. 329 (1998), 431, 452(n205), 453–54 Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047 (D.S.D. 2000), 130(n410)

Table of Cases Yankton Sioux Tribe v. United States Army Corps of Engineers, 209 F. Supp. 2d 1008 (D.S.D. 2002), 129(n404) Yashenko v. Harrah’s NC Casino Co., 446 3d 541 (4th Cir. 2006), 295(n51) Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. App. 1995), 599(n97) Yavapai-Prescott Indian Tribe v. Scott, 117 F.3d 1107 (9th Cir. 1997), 504(n288) Yellowfish v. City of Stillwater, 691 F.2d 926 (10th Cir. 1982), 120(n319) Yellowstone County v. Pease, 96 F.3d 1169 (9th Cir. 1996), 252–53(n155), 263–64(n216) Young v. Neth, 637 N.W.2d 884 (Neb. 2002), 164(n115), 167–68(n131) Younger v. Harris, 401 U.S. 37 (1971), 231(n36), 245–46, 375 Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994), 540(n161) Zander v. Zander, 720 N.W.2d 360 (Minn. Ct. App. 2006), 274(n257) Zempel v. Liberty, 143 P.3d 123 (Mont. 2006), 267(n233) Zeth v. Johnson, 765 N.Y.S.2d 403 (App. Div. 2003), 315–16(n136)

Table of Statutes and Codes

719

Table of Statutes and Codes

Public Law 2006, Pub. L. No. 109-248, 120 Stat. 587, 144(n13) 2005, Pub. L. No. 109-58, 119 Stat. 594, 108(n212), 119(n315) 2005, Pub. L. No. 109-47, 119 Stat. 451, 87(n57) 2004, Pub. L. No. 108-447, 118 Stat. 2809, 3431, 635–36(n73) 2004, Pub. L. No. 108-374, 118 Stat. 1773, 124(n362) 2004, Pub. L. No. 108-278, 118 Stat. 868, 118(n304) 2004, Pub. L. No. 108-204, 40(n200) 2004, Pub. L. No. 108-108, 17(n85), 23(n109) 2002, Pub. L. No. 107-110, 115 Stat. 1425, 54(n39) 2001, Pub. L. No. 107-63, 115 Stat. 414, 442–43, 521(n64) 2000, Pub. L. No. 106-462, 114 Stat. 1991, 123(n350), 125(n372) 2000, Pub. L. No. 106-423, 114 Stat. 1875, 86(n56) 2000, Pub. L. No. 106-274, 114, Stat. 803, 137(n479) 2000, Pub. L. No. 106-179, 114 Stat. 46, 312(n120) 1999, Pub. L. No. 106-67, 113 Stat. 979, 106(n190), 125(n372) 1998, Pub. L. No. 105-188, 112 Stat. 620, 106(n190), 125(n372) 1996, Pub. L. No. 104-208, 110 Stat. 3309, 542(n170) 1994, Pub. L. No. 103-454, 108 Stat. 4791, 61(n80), 64(n99), 530(n116) 1994, Pub. L. No. 103-413, 108 Stat. 4270, 46(n234)

1994, Pub. L. No. 103-383, 108 Stat. 4063, 283(n307) 1994, Pub. L. No. 103-272, 108 Stat. 759, 427(n7) 1994, Pub. L. No. 103-263, 108 Stat. 707, 171(n10) 1993, Pub. L. 103-177, 107 Stat. 211, 111(n239) 1992, Pub. L. No. 102-572, 106 Stat. 4506, 83(n32) 1992, Pub. L. No. 102-486, 106 Stat. 2776, 108(n212) 1992, Pub. L. No. 102-497, 106 Stat. 3255, 538(n152) 1992, Pub. L. No. 102-374, 106 Stat. 1186, 171(n10), 655(n103) 1991, Pub. L. No. 102-238, 105 Stat. 1908, 538(n152) 1991, Pub. L. No. 102-171, 105 Stat. 1143, 85(n46) 1991, Pub. L. No. 102-137, 105 Stat. 646, 151(n59), 175(n48), 319(n149) 1990, Pub. L. No. 101-630, 104 Stat. 4532, 117(n297) 1990, Pub. L. No. 101-549, 104 Stat. 2467, 428(n9) 1990, Pub. L. No. 101-512, 104 Stat. 1915, 46(n235) 1990, Pub. L. No. 101-511, 104 Stat. 1856, 151(nn59, 60), 175(n48), 319(n148) 1990, Pub. L. No. 101-379, 104 Stat. 473, 634(n68) 1990, Pub. L. No. 101-301, 104 Stat. 206, 538(n152) 1989, Pub. L. No. 101-121, 103 Stat. 701, 538(n152) 1988, Pub. L. No. 100-713, 102 Stat. 4784, 54(n38)

719

720 1988, Pub. L. No. 100-585, 102 Stat. 2973, 645(n88) 1988, Pub. L. No. 100-581, 102 Stat. 2938, 40(n200), 401(n126) 1988, Pub. L. No. 100-497, 102 Stat. 2467, 47(n240), 90(n83), 300(n72), 510(n2), 518(n51), 621(n3) 1988, Pub. L. No. 100-472, 102 Stat. 2285, 44(n227) 1987, Pub. L. No. 100-95, 101 Stat. 704, 541–42(n166) 1987, Pub. L. No. 100-4, 101 Stat. 76, 428(n9) 1986, Pub. L. No. 99-499, 100 Stat. 1706, 428(n9) 1986, Pub. L. No. 99-499, 100 Stat. 1613, 455(n231) 1986, Pub. L. No. 99-339, 100 Stat. 665, 428(n9), 448(n171) 1985, Pub. L. No. 99-88, 99 Stat. 293, 644(n87) 1984, Pub. L. No. 98-608, 98 Stat. 3171, 122(n341) 1984, Pub. L. No. 98-513, 98 Stat. 2411, 125(n372) 1984, Pub. L. No. 98-290, 98 Stat. 201, 155(n76) 1983, Pub. L. No. 97-473, 96 Stat. 2608, 47(n239) 1983, Pub. L. No. 97-459, 96 Stat. 2515, 2515-17, 89–90(n78), 122(n335), 125(n373) 1983, Pub. L. No. 97-451, 98 Stat. 2447, 109(n221) 1982, Pub. L. No. 97-399, 96 Stat. 2012, 541(n166) 1982, Pub. L. No. 97-382, 96 Stat. 1938, 107(n205) 1980, Pub. L. No. 96-510, 94 Stat. 2767, 427(n6), 428(n9), 455(n231) 1980, Pub. L. No. 96-487, 94 Stat. 2371, 394(n77), 425(n319) 1980, Pub. L. No. 96-420, 94 Stat. 1785, 541(n166) 1980, Pub. L. No. 96-274, 94 Stat. 537, 125(nn371, 373) 1978, Pub. L. No. 95-608, 92 Stat. 3069, 47(n241), 266(n230), 571, 621(n4) 1978, Pub. L. No. 95-264, 92 Stat. 202, 125(n371) 1978, Pub. L. No. 95-395, 92 Stat. 813, 541(n166)

Table of Statutes and Codes 1977, Pub. L. No. 95-95, 91 Stat. 685, 629(n43) 1977, Pub. L. No. 95-87, 91 Stat. 445, 427(n8), 460(n287), 629(n47) 1976, Pub. L. No. 94-580, 90 Stat. 2796, 427(n4), 629(n45), 631(n55) 1976, Pub. L. No. 94-574, 90 Stat. 2721, 226–27(n9) 1976, Pub. L. No. 94-465, 90 Stat. 1990, 83(n32) 1975, Pub. L. No. 93-638, 88 Stat. 2203, 44(n226) 1975, Pub. L. No. 93-633, 88 Stat. 2156, 297(n56) 1974, Pub. L. No. 93-523, 88 Stat. 1660, 297(n55), 427(n3), 629(n44) 1974, Pub. L. No. 93-262, 88 Stat. 77, 46(n238) 1973, Pub. L. No. 93-197, 87 Stat. 770, 44(n217) 1972, Pub. L. No. 92-516, 86 Stat. 973, 427(n5), 629(n46) 1972, Pub. L. No. 92-500, 86 Stat. 896, 629(n44) 1972, Pub. L. No. 92-500, 86 Stat. 816, 427(n2) 1972, Pub. L. No. 92-443, 86 Stat. 744, 125(n373) 1972, Pub. L. No. 92-377, 86 Stat. 530, 125(n373) 1971, Pub. L. No. 92-203, 85 Stat. 688, 83(n36), 394(n77), 425(n316) 1970, Pub. L. No. 91-627, 84 Stat. 1874, 125(n373) 1970, Pub. L. No. 91-274, 84 Stat. 301, 302, 112(n252), 113(n258), 114(n261) 1970, Pub. L. No. 91-190, 83 Stat. 852, 114(n263) 1968, Pub. L. No. 90-537, 82 Stat. 885, 644(n85) 1968, Pub. L. No. 90-285, 82 Stat. 73, 78–79, 388–89(n39) 1968, Pub. L. No. 90-284, 82 Stat. 73, 77–81, 44(nn218, 219, 221, 222, 223), 151(n58), 156(n81), 186(n133), 274(n259), 288(n7), 316(n137) 1966, Pub. L. No. 89-715, 80 Stat. 1112, 110(n232) 1963, Pub. L. No. 88-206, 77 Stat. 392, 427(n1) 1958, Pub. L. No. 85-615, 72 Stat. 545, 154(n72)

Table of Statutes and Codes 1958, Pub. L. No. 85-554, 72 Stat. 415, 226(n9) 1958, Pub. L. No. 85-420, 72 Stat. 121, 169(n3) 1956, Pub. L. No. 84-485, 70 Stat. 105, 644(n84) 1955, Pub. L. No. 84-255, 69 Stat. 539, 107(n208) 1955, Pub. L. No. 84-34, 69 Stat 539, 110(n233), 112(nn246, 252), 114(n262) 1954, Pub. L. No. 83-776, 68 Stat. 1191, 194(n181) 1953, Pub. L. No. 83-281, 67 Stat. 590, 43(n214) 1953, Pub. L. No. 83-280, 67 Stat. 588, 43(n212), 141(n3), 153(n70), 155– 56(n77), 156(n78), 266(n226), 273(n251), 273–79, 296(n54), 388–89(nn38, 39), 483(n135), 511(n8) 1953, Pub. L. No. 83-277, 67 Stat. 586, 43(n213) 1950, Pub. L. No. 81-474, 64 Stat. 46, 112(n252) 1948, Pub. L. No. 80-846, 62 Stat 1161, 155(n76) 1948, 62 Stat. 1716, 1717, 1718–19 421(nn281, 282) 1948, 62 Stat. 1224, 155(n76) 1948, 62 Stat. 757, 515(n28) 1948, Pub. L. No. 80-407, 62 Stat. 17, 119(n311) 1946, Pub. L. No. 79-726, 60 Stat. 1049, 82(n22), 83(n29) 1946, Pub L. No. 79-702, 60 Stat. 962, 112(n252) 1944, Pub. L. No. 78-534, 58 Stat. 887, 194(n182) 1941, Pub. L. No. 77-80, 55 Stat. 207, 89–90(n78) 1940, Pub. L. No. 76-813, 54 Stat. 1057, 112(n252) 1938, Pub. L. No. 75-754, 52 Stat. 1209, 82(n25) 1938, Pub. L. No. 75-506, 52 Stat. 347, 106(n194), 107(n203), 214(n294), 480(n109) 1936, 49 Stat. 1967, 41(n204) 1936, 49 Stat. 1519, 487(n161), 494(n218) 1936, 49 Stat. 1250, 41(n204) 1936, Pub. L. No. 74-441, 49 Stat. 1135, 110(n232)

721 1935, Pub. L. No. 74-141, 49 Stat. 388, 82(n25) 1934, Pub. L. No. 73-383, 48 Stat. 984, 985, 39(n196), 40(nn198, 199), 41(nn201, 202, 204), 114(n266)89(n77), 110(nn234, 235), 112(n247), 117(n295), 120(n320), 121(n333), 214(n298), 226(n6) 1934, 48 Stat. 986, 40(n199), 41(n204) 1934, 48 Stat. 987, 40(n200), 41(n204) 1934, 48 Stat. 988, 41(n202) 1928, 45 Stat. 495, 498, 479(n101) 1926, Pub. L. No. 69-503, 44 Stat. 894, 110(n232) 1926, Pub. L. No. 69-133, 44 Stat. 300, 106(n191) 1924, Pub. L. No. 68-158, 43 Stat. 244, 105(n189), 479(n101), 480(n109) 1921, Pub. L. No. 66-359, 41 Stat. 1225, 1232, 110(n229), 111(n244) 1921, 41 Stat. 1249, 1250, 479(n101) 1919, Pub. L. 66-3, 41 Stat. 3, 88(n73), 106(n191) 1917, Pub L. No. 64-969, 39 Stat. 969, 973, 119(n309) 1916, Pub. L. 64-80, 39 Stat. 123, 128, 110(n231) 1910, Pub. L. No. 61-313, 36 Stat. 855, 856, 109(n227), 111(n243), 114(n266), 116–17 1910, Pub. L. No. 61-194, 36 Stat. 448, 92(n93) 1910, Pub. L. No. 61-161, 36 Stat. 349, 118(n306) 1909, Pub. L. No. 60-781, 35 Stat. 783, 106(n190) 1909, Pub. L. No. 60-316, 35 Stat. 781, 106(n195), 118(n306) 1908, Pub. L. No. 60-74, 35 Stat. 51, 116(n285) 1907, Pub. L. No. 59-195, 34 Stat. 1230, 92(n93) 1906, Pub. L. No. 59-149, 34 Stat. 182, 91–92(n91) 1906, Pub. L. No. 59-71, 34 Stat. 91, 116(n285) 1906, Pub. L. No. 59-60, 34 Stat. 80, 92(n94) 1904, Pub. L. No. 58-148, 33 Stat. 254, 92(n93) 1904, Pub. L. No. 58-45, 33 Stat. 65, 119(n309)

722 1901, 31 Stat. 1084, 118(n307), 119(n316) 1901, 31 Stat. 1083, 119(n308) 1899, 30 Stat. 990, 118(n305) 1897, 30 Stat. 34, 35, 338(n48) 1894, 28 Stat. 326, 92(n94) 1891, 26 Stat. 1035, 92(nn93, 94), 169(n3) 1891, 26 Stat. 795, 105(n188) 1891, 26 Stat. 794, 111(n242) 1889, 25 Stat. 676, 369(n253) 1889, 25 Stat. 673, 116(n282) 1887, 24 Stat. 389, 91(n91) 1887, 24 Stat. 388, 484(n144) 1885, 23 Stat. 362, 385, 147(n26) 1882, 22 Stat. 36, 116(n285) 1877, 19 Stat. 377, 334(n18) 1871, 16 Stat. 566, 171(n8) 1871, 16 Stat. 544, 88(n71) 1870, 16 Stat. 218, 334(n18) 1869, 15 Stat. 673, 398(n112) 1868, 15 Stat. 649, 398(n112) 1866, 14 Stat. 253, 334(n18) 1859, 12 Stat. 975, 398(n111) 1859, 12 Stat. 971, 398(n111), 406(n165) 1859, 12 Stat. 963, 398(n111), 406(n165) 1859, 12 Stat. 957, 398(n111), 406(n165) 1859, 12 Stat. 951, 406(nn165, 167) 1859, 12 Stat. 945, 398(n111), 406(n165) 1859, 12 Stat. 939, 398(n111), 406(n167), 421(n280) 1859, 12 Stat. 933, 398(n111), 406(n167) 1859, 12 Stat. 927, 398(n111), 406(n167) 1855, 10 Stat. 1132, 398(n111) 1855, 10 Stat. 1109, 398(n113) 1836, 7 Stat. 503, 398(n113) 1834, 4 Stat. 735, 159(n94) 1830, 4 Stat. 411, 159(n94) 1817, 3 Stat. 383, 159(n94) 1816, 3 Stat. 332, 159(n94) 1802, 2 Stat. 139, 159(n94) 1799, 1 Stat. 743, 159(n94) 1796, 1 Stat. 469, 159(n94) 1793, 1 Stat. 329, 159(n94) 1790, 1 Stat. 137, 85(n44)

Table of Statutes and Codes United States Constitution Article I, 385(n13) Article I, § 2, 287(n5) Article I, § 8, 1, 385(n8) Article II, § 2, 1, 9(n40), 385(n8) Article III, § 2, 1, 2(n5) Article IV, § 1, 279(n283), 617–18 Article IV, § 3, 99-100(n139), 331(n1), 385(n12) United States Code 4 U.S.C.— Flag and Seal, Seat of Government, and the States 4 U.S.C. § 104, 487(n161), 494(n218) United States Code 5 U.S.C.— Government Organization and Employees 5. U.S.C. § 501(13), 18(n88) 5 U.S.C. §§ 701–706, 18, 19(n92), 439(n98), 524(n90), 568(n301) United States Code 7 U.S.C.— Agriculture 7 U.S.C. § 136, 454(nn225–29), 629(n46) United States Code 11 U.S.C.— Bankruptcy 11 U.S.C. § 101(27), 297(nn58, 60) 11 U.S.C. § 106, 29(n137), 297 United States Code 15 U.S.C.— Commerce and Trade 15 U.S.C. § 375–378, 503(n278) 15 U.S.C. § 1171, 514(n22), 535–36 15 U.S.C. § 1175, 513–14, 538(n151), 541, 550 15 U.S.C. §§ 2601–2692, 453(n217) United States Code 16 U.S.C.— Conservation 16 U.S.C. § 170, 385(n10) 16 U.S.C. § 410, 86(n56), 139(n505) 16 U.S.C. §§ 431–433, 126(n376) 16 U.S.C. §§ 469–469l-2, 139(n498) 16 U.S.C. §§ 470, 126(nn377–79), 138(nn495, 499) 16 U.S.C. § 475, 338(n48) 16 U.S.C. § 668, 423(n294) 16 U.S.C. § 703, 423(n301)

Table of Statutes and Codes 16 U.S.C. §§ 703–712, 423(n300) 16 U.S.C. § 704, 424(n304) 16 U.S.C. § 712, 423(n302) 16 U.S.C. §§ 773, 420(n266) 16 U.S.C. § 835, 392(n65) 16 U.S.C. §§ 1531–1544, 417(n244) 16 U.S.C. § 1533, 418(n254), 419(nn257, 258) 16 U.S.C. § 1536, 418(n252) 16 U.S.C. §§ 1801–1883, 419(n260) 16 U.S.C. § 1853, 419(n261) 16 U.S.C. § 2281, 139(n505) 16 U.S.C. §§ 3101–3233, 394(n77), 425(nn319, 320) 16 U.S.C. § 3120, 84(n37) 16 U.S.C. § 3371–3378, 387(n30), 424(n308), 425(n313) 16 U.S.C. § 3372, 142(n7), 387(nn30, 31 ) 16 U.S.C. § 3378, 388(n33), 425(n315) 16 U.S.C. §§ 3631–3644, 420(n270) United States Code 18 U.S.C.— Crimes and Criminal Procedure 18 U.S.C. § 13, 143(nn9, 10), 515(n29), 541 18 U.S.C. § 81, 145(n17) 18 U.S.C. § 437, 142(n4) 18 U.S.C. § 1084, 519(n54), 541 18 U.S.C. §§ 1151–1165, 92(n98), 469(n38) 18 U.S.C. § 1151, 68–70, 41, 74, 77–78, 92, 92–93(n98), 210(n278), 243–44, 283, 387(n24), 425, 482, 506 18 U.S.C. § 1152, 7(n29), 32(n156), 55–56(n48), 141(n1), 142(nn5, 6), 144, 145(n17), 150(n43), 155(n75) 187(n136), 387(n30), 514–15 18 U.S.C. § 1153, 51(nn14, 17), 55(n46), 141(n2), 142(n6), 147(nn29, 30), 149(nn35, 38), 150(n44), 153–54, 155(nn75, 76), 176, 187(n136), 188(n140) 18 U.S.C. § 1154, 162, 163, 172(n26) 18 U.S.C. §§ 1154–1156, 32(n155) 18 U.S.C. § 1156, 162, 163 18 U.S.C. § 1158, 142(n4) 18 U.S.C. § 1159, 142(n4) 18 U.S.C. § 1161, 43(n213), 162, 163(n109), 169(n4), 172, 173(n31), 218(n323), 300, 496, 497(n237) 18 U.S.C. § 1162, 43(n212), 141(n3), 153(n70), 154–55, 157, 266(n226), 273(n251), 296(n54), 299(n67), 388– 89(n39), 511(n8), 540(n161), 589(n63) 18 U.S.C. § 1163, 142(n4)

723 18 U.S.C. § 1164, 142(n4) 18 U.S.C. § 1165, 142(n4), 390, 570(n311) 18 U.S.C. § 1166, 47(n240), 513, 518(n51), 556(n233), 559, 568–69, 570, 621(n3) 18 U.S.C. §§ 1166–1168, 90(n83), 300(n72) 18 U.S.C. § 1168, 569(n305) 18 U.S.C. § 1170, 127(n387) 18 U.S.C. §§ 1301–1304, 568(n304) 18 U.S.C. §§ 1303–1307, 541 18 U.S.C. §§ 1343, 1346, 143(n8) 18 U.S.C. § 1952, 513(n18) 18 U.S.C. §§ 1952–1955, 541 18 U.S.C. § 1955, 144(n11), 512–13, 514, 516, 517 18 U.S.C. §§ 1961–1968, 541 18 U.S.C. § 2250, 144(n14) 18 U.S.C. § 2265, 284 18 U.S.C. § 3182, 166(n124) 18 U.S.C. § 3243, 155(n76) 18 U.S.C. §§ 5031, 150(nn46, 48) 18 U.S.C. § 5031–5037, 150(n45) 18 U.S.C. § 5032, 150(n51) 18 U.S.C. § 5033, 146(n25) United States Code 20 U.S.C.— Education 20 U.S.C. § 80, 126(nn381, 382), 127(n383) 20 U.S.C. § 1401, 53(n31) United States Code 25 U.S.C.— Indians 25 U.S.C. § 2, 9, 63(n97), 416–17, 252(n263) 25 U.S.C. § 13, 54(n36) 25 U.S.C. § 71, 33(n160), 62(n92), 88(n71), 171(n8) 25 U.S.C. § 81, 55–56(n48), 115(nn269, 271, 272), 312–13, 545(n183), 624(n17), 625(n18) 25 U.S.C. § 84.002, 115(n270) 25 U.S.C. § 85, 171(n11) 25 U.S.C. § 177, 65(n104), 104(n177), 486(n153), 624–25(n17) 25 U.S.C. § 179, 244(n114) 25 U.S.C. § 194, 89(n176) 25 U.S.C. § 196, 116(n282) 25 U.S.C. § 231, 155(n76) 25 U.S.C. § 232, 155(n76) 25 U.S.C. § 233, 275(n263) 25 U.S.C. § 261, 171(n12), 200 25 U.S.C. §§ 261–264, 171(n12), 477(n87), 489(n180)

724 25 U.S.C. §§ 271–304b, 171(n17) 25 U.S.C. § 305, 59(n64) 25 U.S.C. § 311, 118(n307) 25 U.S.C. §§ 311–328, 171(n13) 25 U.S.C. §§ 312–318, 118(n305) 25 U.S.C. § 319, 119(n308), 241(n93) 25 U.S.C. § 320, 118(n306) 25 U.S.C. § 321, 119(n309) 25 U.S.C. §§ 323–328, 119(n311) 25 U.S.C. § 324, 119(n312) 25 U.S.C. §§ 331–352, 190(n156) 25 U.S.C. §§ 331–358, 171(n14) 25 U.S.C. § 345, 300(n71) 25 U.S.C. § 348, 91(n91), 104(n179), 484(n144) 25 U.S.C. § 349, 37(n182), 91–92(n91), 483(n133), 484(nn141, 144) 25 U.S.C. § 353, 109(n227) 25 U.S.C. § 357, 119(n316) 25 U.S.C. §§ 371–380, 171(n18) 25 U.S.C. § 381, 380(n328) 25 U.S.C. §§ 391–416, 171(n16) 25 U.S.C. § 393, 110(nn229, 232), 111(n244) 25 U.S.C. § 394, 110(n231) 25 U.S.C. § 395, 109(n225) 25 U.S.C. § 396, 12, 13–14, 106(nn190, 194, 195, 199), 214(n294) 25 U.S.C. § 397, 105(n188), 111(n242) 25 U.S.C. §§ 397–398, 480(n109) 25 U.S.C. § 398, 105(n189) 25 U.S.C. § 399, 106(n191) 25 U.S.C. § 402, 109(n226) 25 U.S.C. § 403, 109(n227), 112(n252), 114(n265) 25 U.S.C. § 406, 117(nn289, 291, 292) 25 U.S.C. § 407, 117(n290) 25 U.S.C. § 415, 110(n233), 112(n252), 113(nn257, 259, 260), 114, 115, 212– 13(n287), 361, 472 25 U.S.C. § 416, 110(n232) 25 U.S.C. § 450, 44(n226), 45, 46(nn234, 236, 237), 53(n31), 55–56(n48), 172(n20) 25 U.S.C. § 458, 46(n234) 25 U.S.C. § 461, 78(nn185, 186, 187, 188) 25 U.S.C. §§ 461–479, 39(n196), 89(n77), 110(n234), 117(n295), 120(n320), 214(n298), 381(n331), 498, 624(n15) 25 U.S.C. § 462, 40(n197) 25 U.S.C. § 463, 40(n199), 125(n371) 25 U.S.C. § 465, 75, 76(n179), 77, 78(n188), 89–90(nn78, 80), 486 25 U.S.C. § 466, 112(n247), 117(n296) 25 U.S.C. § 467, 70, 75, 76(n179), 77, 528

Table of Statutes and Codes 25 U.S.C. § 472, 55(n41) 25 U.S.C. § 473, 41(n204) 25 U.S.C. § 476, 40(n200), 116(n285), 308(n109), 625(n23) 25 U.S.C. §§ 476–478b, 171(n19) 25 U.S.C. § 477, 41(n201), 220(n235), 114(n266), 115, 225(n1), 308(n109), 625(n23) 25 U.S.C. § 478, 41(n202) 25 U.S.C. § 479, 53(nn32, 33), 54(n35), 55(n45), 61(n80), 64(n99) 25 U.S.C. § 483, 40(nn197, 198), 76 25 U.S.C. § 503, 41(n204) 25 U.S.C. § 635, 112(n252) 25 U.S.C. § 640, 139(n505) 25 U.S.C. § 677, 171(n15) 25 U.S.C. § 703, 66(n107) 25 U.S.C. § 711, 155(n76) 25 U.S.C. § 713, 66(n109), 155(n76) 25 U.S.C. § 714, 66(n109), 155(n76) 25 U.S.C. § 733, 66(n109) 25 U.S.C. §§ 903–903f, 44(n217) 25 U.S.C. § 1153, 7(n28), 44(n218), 186(n133) 25 U.S.C. § 1221, 1222, 273(n256) 25 U.S.C. § 1300, 63(n96), 66(n109), 90(n79), 299(nn69, 70) 25 U.S.C. § 1301, 7(n28), 44(n221), 151(n59), 175(n48), 319(nn146, 147), 387(n32), 390(n46) 25 U.S.C. §§ 1301–1303, 44(n218), 151(n54), 186(n133) 25 U.S.C. §§ 1301–1341, 288(n7), 316(n137) 25 U.S.C. § 1302, 44(n222), 151(n53), 176(n50), 317(n142), 319(n152), 322(n168) 25 U.S.C. § 1303, 44(n223), 185, 322(n166), 329(n195) 25 U.S.C. § 1307, 387(n30) 25 U.S.C. § 1321, 156(n84), 266(n226), 273(n251), 388–89(n39) 25 U.S.C. §§ 1321–1325, 43(n212), 141(n3), 153(n70), 296(n54), 511(n8), 589(n63) 25 U.S.C. §§ 1321–1326, 44(n218) 25 U.S.C. § 1322, 156(n84), 273(n256), 274(n259) 25 U.S.C. § 1323, 44(n219), 157(n86), 278 25 U.S.C. § 1325, 279 25 U.S.C. § 1326, 44(n219), 156(n81) 25 U.S.C. § 1331, 44(n218), 62(n85) 25 U.S.C. § 1341, 44(n218) 25 U.S.C. § 1360, 275(n263), 589(n63) 25 U.S.C. §§ 1451–1544, 46(n238)

Table of Statutes and Codes 25 U.S.C. § 1500, 18(n88) 25 U.S.C. § 1603, 60(n66) 25 U.S.C. §§ 1701–1716, 85(n46), 299(n68) 25 U.S.C. § 1708, 78(n189), 299(n69), 541(n166), 542(n170) 25 U.S.C. § 1715, 78(n190) 25 U.S.C. §§ 1721–1735, 85(n46), 171(n10) 25 U.S.C. § 1725, 541(n166) 25 U.S.C. §§ 1741–1749, 85(n46) 25 U.S.C. § 1745, 78(n190) 25 U.S.C. § 1746, 78(n189), 299(n69) 25 U.S.C. § 1747, 78(n189) 25 U.S.C. § 1750, 85(n46) 25 U.S.C. § 1753, 542(n169) 25 U.S.C. § 1754, 75(n168) 25 U.S.C. § 1755, 78(n189) 25 U.S.C. § 1758, 63(n96) 25 U.S.C. § 1771, 59, 78(nn189, 190), 85(n46), 541–42(n166) 25 U.S.C. § 1772, 85(n46), 299(n69) 25 U.S.C. § 1773, 86(n56), 646(n90) 25 U.S.C. § 1774, 85(n46) 25 U.S.C. § 1775, 75(n168), 78(n189), 85(n46) 25 U.S.C. § 1776, 86–87(n56) 25 U.S.C. § 1777, 86–87(n56), 299(n69) 25 U.S.C. § 1778, 86–87(n56) 25 U.S.C. § 1801, 53(n31) 25 U.S.C. §§ 1901–1963, 47(n241), 172(n21), 266(n230), 276(n265), 283(n302), 621(n4) 25 U.S.C. § 1901, 571(n1) 25 U.S.C. § 1903, 69(n129), 573(n13), 574(n19), 580(n34), 581(n39), 582(n42), 593(n79), 611(n140) 25 U.S.C. §§ 1911–1913, 614–15 25 U.S.C. § 1911, 235(n61), 276(n266), 571(n6), 585–92, 598–99(n95), 600, 617–18 25 U.S.C. § 1912, 572(nn7, 8), 576(n26), 581(n37), 582–83, 590, 592, 593(n80), 594(n82). 595(n83), 596, 601–6, 607(n127), 609–10(n134) 25 U.S.C. § 1913, 610(nn136, 138, 139), 615–16 25 U.S.C. § 1914, 595(n85), 614, 615, 616 25 U.S.C. § 1915, 610–12 25 U.S.C. § 1916, 616–17 25 U.S.C. § 1917, 618–19 25 U.S.C. § 1918, 618 25 U.S.C. § 1919, 588(n62), 657(n104) 25 U.S.C. § 1921, 600–1(n106) 25 U.S.C. § 1922, 589(n65)

725 25 U.S.C. § 1951, 619 25 U.S.C. §§ 2101–2108, 107(n205), 171(n16) 25 U.S.C. § 2102, 107(nn207–10) 25 U.S.C. §§ 2201–2219, 122(n335), 123(n350) 25 U.S.C. § 2203, 124(n363) 25 U.S.C. § 2204, 122(n336), 124(n363), 125(n366) 25 U.S.C. § 2205, 125(n369) 25 U.S.C. § 2205, 124(n353) 25 U.S.C. § 2206, 122(n337), 123(nn343– 45), 124(nn353–56), 125(n368) 25 U.S.C. § 2212, 123(n351), 124(n352) 25 U.S.C. § 2219, 123(n350) 25 U.S.C. §§ 2501–2511, 171(n17) 25 U.S.C. § 2510, 544 25 U.S.C. §§ 2701–2721, 62(n86), 90(n83), 172(n22), 300(n72), 518(n51), 621(n3) 25 U.S.C. § 2703, 69(n129), 520(n56), 523(n75), 525, 531(n123), 535, 537, 538(n153), 540(n162), 541 25 U.S.C. § 2704, 518(n53), 540 25 U.S.C. § 2706, 544, 548–49(n197) 25 U.S.C. § 2710, 273–74(n256), 300(n72), 514, 539(n154), 540, 541, 543(nn172, 174), 544(nn175, 178), 545(nn179, 180), 547–48, 547(n191), 548–49(nn196, 197, 199–203), 550–51, 556(nn232, 234), 557(nn235–37), 558–59, 561–62, 563, 567, 569(n305), 570 25 U.S.C. § 2711, 545(nn183, 184), 546(nn185, 186, 187), 547(nn188–90) 25 U.S.C. § 2712, 542–43(n171) 25 U.S.C. § 2713, 567(n295), 568(n296–98) 25 U.S.C. § 2715, 567(n295), 568(nn299–300) 25 U.S.C. § 2717, 543(n172) 25 U.S.C. § 2719, 90(n84), 518(nn51, 52), 521, 523, 524, 525, 526, 527(n100), 529(n110) 25 U.S.C. § 2720, 568(n304) 25 U.S.C. §§ 2801–2809, 45(n231), 634(n68) 25 U.S.C. § 2801(4), 69(n129) 25 U.S.C. § 2804, 167(n128), 634(n69), 635(n71) 25 U.S.C. §§ 3001–3013, 127(n384) 25 U.S.C. § 3001(9), 131(n428) 25 U.S.C. § 3001(13), 127(n389) 25 U.S.C. § 3002, 128(nn393–98, 400–402) 25 U.S.C. §§ 3003–3005, 127(n388) 25 U.S.C. § 3005, 127(n389), 128(n390) 25 U.S.C. §§ 3101–3120, 117(n297)

726

Table of Statutes and Codes

25 U.S.C. § 3101, 115(n275), 118(n298) 25 U.S.C. § 3104, 118(n299) 25 U.S.C. § 3106, 118(n300) 25 U.S.C. § 3108, 118(n301) 25 U.S.C. § 3115a, 118(n304) 25 U.S.C. § 3202(8), 69(n129) 25 U.S.C. § 3210, 588(n62) 25 U.S.C. § 3502, 108(n216) 25 U.S.C. § 3504, 119(n315) 25 U.S.C. § 3505, 108(n217) 25 U.S.C. § 3715, 111(n241) 25 U.S.C. § 4103, 60(n65) United States Code 26 U.S.C.— Internal Revenue Code 26 U.S.C. § 4041, 473(n58), 508(n314) 26 U.S.C. § 4481, 473(n58) 26 U.S.C. § 6050I, 142(n7), 143(n8) 26 U.S.C. § 7871, 47(n239) United States Code 28 U.S.C.— Judiciary and Judicial Procedure 28 U.S.C. §§ 171–178, 83(n32) 28 U.S.C. § 516, 567–68(n295) 28 U.S.C. § 1331, 225, 226(n9), 227(n13), 230–31(n34), 231–49, 232 28 U.S.C. § 1332, 231–49, 286 28 U.S.C. § 1341, 225–26, 228 28 U.S.C. § 1345, 373(n280) 28 U.S.C. § 1360, 43(n212), 69(n128), 141(n3), 153(n70), 266(n226), 273(nn251, 252, 254, 255, 256), 273–74(n256), 277, 283(n301), 296(n54), 298(n65), 511(n8) 28 U.S.C. § 1362, 65(n103), 225, 226–30, 230–31(n34), 270–71(n241) 28 U.S.C. § 1441, 376 28 U.S.C. § 1505, 11(n51) 28 U.S.C. § 1652, 568(n304) 28 U.S.C. § 1738, 279–82, 283(nn299, 300, 306), 285–86, 617–18 28 U.S.C. § 2241, 245(n118) 28 U.S.C. § 2245, 245(n118) 28 U.S.C. § 2254, 276–77(n270) 28 U.S.C. § 2283, 231(n36) 28 U.S.C. § 2401, 23(n109) 28 U.S.C. § 2409, 91(n90), 523(n79) 28 U.S.C. § 2415, 484(n142) 28 U.S.C. § 2501, 23(n109) 28 U.S.C. §§ 3001–3008, 297(n57)

United States Code 29 U.S.C.— Labor Managment Act 29 U.S.C. § 158, 27–28(nn129, 132) United States Code 30 U.S.C.— Mineral Lands and Mining 30 U.S.C. § 189, 479(n101) 30 U.S.C. §§ 1201–1328, 460(n287), 629(n47) 30 U.S.C. § 1201, 427(n8) 30 U.S.C. § 1202, 427(n8) 30 U.S.C. § 1211, 427(n8), 461(n289) 30 U.S.C. §§ 1221–1230a, (427(n8) 30 U.S.C. §§ 1231–1243, 427(n8) 30 U.S.C. § 1232, 462(n299) 30 U.S.C. § 1235, 462(n297), 463(n304) 30 U.S.C. § 1256, 462(n298) 30 U.S.C. § 1273, 462(n300) 30 U.S.C. § 1281, 427(n8) 30 U.S.C. §§ 1291–1309, 427(n8) 30 U.S.C. § 1292, 461(n296) 30 U.S.C. § 1300, 462(n301) 30 U.S.C. §§ 1311–1316, 427(n8) 30 U.S.C. §§ 1321–1328, 427(n8) 30 U.S.C. §§ 1701–1757, 109(n221) 30 U.S.C. §§ 1712–1715, 109(n222) 30 U.S.C. § 1732, 109(n223) United States Code 33 U.S.C.— Navigation and Navigable Waters 33 U.S.C. § 1177, 174(n40) 33 U.S.C. §§ 1251–1387, 427(n2), 629(n44) 33 U.S.C. § 1313, 442(n121) 33 U.S.C. § 1341, 445(n126) 33 U.S.C. § 1342, 437(n80), 440(n106), 442(nn123, 124) 33 U.S.C. § 1369(b)(1)(D), 437(n81), 439(n97) 33 U.S.C. § 1370, 434(n56), 442(n122) 33 U.S.C. § 1377, 69(n129), 173(n32), 428(n9), 442(n120), 443(n130), 629(nn48, 50) 33 U.S.C. §§ 2701–2761, 455(n232) United States Code 39 U.S.C.— Postal Service 39 U.S.C. § 3005, 541

Table of Statutes and Codes United States Code 42 U.S.C.— Public Health and Welfare 42 U.S.C. § 300, 173(n32), 297(n55), 427(n3), 428(n9), 434(n56), 437(nn80, 81), 439(n97), 447(nn154–68), 448(nn169, 170, 172, 176, 177), 449(n178), 458(n266), 629(nn44, 48) 42 U.S.C. § 1603, 394(n78) 42 U.S.C. § 1744, 108(n215) 42 U.S.C. § 1981, 27–28(n129), 29(n137), 58(n57), 261–62(n205), 294(n50), 295(n51), 315(n135) 42 U.S.C. § 1983, 230, 244(n114), 256–57(n177), 257–58, 261–62(n205), 309(n112), 311(n118), 616 42 U.S.C. § 1988, 618(n170) 42 U.S.C. § 1996, 586(n51) 42 U.S.C. § 2000, 135(n467), 136(nn469, 474, 477), 137(nn479, 485, 490, 493), 138(nn486, 488, 489) 42 U.S.C. § 2014, 238(n75) 42 U.S.C. § 2210, 238(n77), 260(n196) 42 U.S.C. § 3002, 53(n31) 42 U.S.C. §§ 4321–4335, 138(n494) 42 U.S.C. §§ 4321–4370, 114(n263) 42 U.S.C. § 4331, 138(n497) 42 U.S.C. § 4332, 138(n497) 42 U.S.C. §§ 6901–6979b, 427(n4) 42 U.S.C. §§ 6901–6992, 629(n45), 631(n55) 42 U.S.C. § 6903, 452(n206), 631(n57) 42 U.S.C. § 6972, 631(n57) 42 U.S.C. §§ 7401–7642, 629(n43) 42 U.S.C. §§ 7401–7671(q), 427(n1) 42 U.S.C. § 7409, 449(nn182, 183) 42 U.S.C. § 7410, 449(nn184, 185), 451(n194) 42 U.S.C. § 7416, 434(n56) 42 U.S.C. § 7474, 451(n198) 42 U.S.C. § 7475, 449(n185) 42 U.S.C. § 7601, 428(n9), 450(n190), 451(n196), 629(n48)

727 42 U.S.C. § 7602, 458(n267) 42 U.S.C. §§ 9601–9675, 427(n6), 455(n231), 629(n48) 42 U.S.C. § 9603, 455(n237) 42 U.S.C. § 9604, 455(nn238, 239, 244), 456(n246), 631(n58) 42 U.S.C. § 9605, 455(n240) 42 U.S.C. § 9607, 455(nn233–35, 241), 456(nn248–50), 457(nn252, 253, 257) 42 U.S.C. § 9611, 455(n236) 42 U.S.C. § 9613, 457(n253) 42 U.S.C. § 9614, 434(n56) 42 U.S.C. § 9626, 428(n9) 42 U.S.C. §§ 11001–11050, 455(nn242, 243) 42 U.S.C. §§ 16901–16962, 144(n13) 42 U.S.C. § 16927, 144(n15) 42 U.S.C. § 16941, 144(n16) United States Code 43 U.S.C.— Public Lands 43 U.S.C. § 150, 89(n73) 43 U.S.C. § 666, 366(n237), 367(n242), 373(n279), 377–80 43 U.S.C. §§ 1501–1556, 644(n85) 43 U.S.C. §§ 1601–1629, 83(n36), 394(n77), 425(n316) 43 U.S.C. § 1603, 425(n317) 43 U.S.C. § 1606, 84(n38) 43 U.S.C. § 1616, 425(n318) 43 U.S.C. § 1618, 84(n37) United States Code 47 U.S.C.— 47 U.S.C. § 207, 239(n83) United States Code 49 U.S.C.— Transportation 49 U.S.C. §§ 5101–5127, 297(n56), 427(n7), 459(n269) 49 U.S.C. § 5112, 459(nn274–77) 49 U.S.C. § 5125, 459(nn270, 271, 273)

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Index

755

Index

Abandonment, Property, 62(n13) Aboriginal rights, Land use, 79–80 Aboriginal Title, 79 Extinguishment of, 78(n188), 393–95 Occupancy rights and, 80–88 Abstention, Younger v. Harris, 231(n36), 245–46 ACA. See Assimilative Crimes Act Access, Across private lands for hunting and fishing, 402–3 Accidents, Motor-vehicle, 147(n30), 197–99, 233–34, 242 Accounting, Historical, 23 ADA. See Americans with Disabilities Act Adam Walsh Child Protection and Safety Act, 144 Administrative Procedure Act (APA), 18– 19, 22–23, 65, 175(n46), 439, 524, 568 Adoption, 7(n29), 580(n35). See also Adoption Proceedings Adoption and Safe Families Act, 603 Adoption Proceedings See also Child Custody Proceedings for Adult adoptees, 618–19 Collateral challenge to state court decrees, 614–17 Full faith and credit requirements, 617–18 ICWA, 573, 578–79, 580(n35) Placement, 573–74, 610–14 Pre-Indian Child Welfare, 266 Voluntary, 610 Adultery, as Non-criminal act, 146(n24) Advertising, Restrictions on, 90(n81) AFDC regulations, State court jurisdiction over, 269(n240), 275(n262) Age Discrimination in Employment Act, 27–28(n129) Agents, under Trade and Intercourses Act, 30, 31 Agents of Tribe, Sovereign immunity, 148(n32), 313–15 Agriculture Land leases for, 108–13 Water rights and, 333, 338, 342–43, 344(n91)

AIPRA. See American Indian Probate Reform Act AIRFA. See American Indian Religious Freedom Act Air Quality, CAA and, 646–47 Alabama, Recognition of tribes by, 67 Alaska, 618(n172) Appropriation doctrine and, 334(n17) Hunting and fishing regulations in, 417(n240), 425–26 Millennium Agreement, 622 Preferential employment in, 56(n49) Public Law 280 and, 154, 156(n80), 591 Alaska National Interest Lands Conservation Act (ANILCA), 27(n126), 84(n37), 394(n77), 425–26 Alaska Natives Allotment Act, 84(n40) Alaska Native Claims Settlement Act (ANCSA), 56–57(n49), 83–84 Aboriginal hunting and fishing rights, 394, 425, 426 Dependent Indian communities and, 71–72 Federal fiduciary obligation and, 21(n100) Alaska Native Corporations, Sovereign immunity of, 294–95(n50) Alaska Natives Alaska National Interest Lands Conservation Act, 27(n126) ANCSA, 83–84 Child welfare, 580(n34), 616 Definition as, 48–49 as Dependent Indian communities, 71–73 Employment preferences for, 56(n49) Hunting and fishing rights, 394, 419(n258) Indian Reorganization Act, 41(n204), 53 Marine Mammal Protection Act, 421 Migratory Bird Treaty Act, 423–24 Reindeer herding, 57(n50) Whaling rights, 421–22 Villages outside Indian Country, 270(n241) Alaskan Native Villages, 226 Alaska Native Claims Settlement Act (ANCSA),56–57(n49), 83–84 Dependent, 71–72

755

756 Albuquerque, Water quality standards, 446 Alcohol. See Liquor Alienation and Taxation of land, 485–86 under Trade and Intercourses act, 32 Allotments. 42(n207) See also General Allotment Act; General Allotment Act Period Alienation of, 91–92 Citizenship and, 36, 37, 38 Farm leases and, 109–10 Fee land sales and, 207–8 Fishing and hunting rights, 389 Gaming issues, 525–26 Grazing leases, 111–12 Indian Reorganization Act and, 120–25 Leasing of, 104 Liquor sales on, 162(n105) Mineral leases and, 105–9 Non-Indian purchase of, 190(n156) Reservation status of, 96–97 Reserved water rights and, 356–57 State taxation of, 483(n133) Surplus land opened after full assignment of, 93–94, 97 Tribal regulations and, 195(n187) Trust, 74, 77–78 Water rights, 345(n99) Ambiguities. See Construction and Interpretation American Arbitration Association, 256– 57(n177), 302, 303(nn87, 90) American Indian Agricultural Resource Management Act (1993), 111, 347(n112) American Indian Probate Reform Act (AIPRA) (2004), 124–25 American Indian Religious Freedom Act (AIRFA), 134–35 Americans with Disabilities Act (ADA), 29(n137) Sovereign immunity from, 313–14(n132) Title III, 297–98(n61) ANCSA. See Alaska Native Claims Settlement Act ANILCA. See Alaska National Interest Lands Conservation Act Animas–La Plata Project, 643, 644, 645 Annette Island Reserve, 71, 84(n38), 103(n166), 154, 409(n187) Anti-Injunction Act, Gaming and, 519(n54) Antiquities Act (1906), 126 APA. See Administrative Procedure Act Appointments Clause, 527 Appurtenant Waters. See Water and Water Rights Arbitration, of Commercial contracts, 302–5, 330(n196) Archaeological Resources Protection Act (ARPA), 126, 128

Index Archaeology, Human remains and, 126–33 Arctic Slope, Oil reserves on, 83 Arizona Cooperative agreements, 622(n10) Gaming in, 554(n229) Groundwater rights, 355 Probate statues in, 281(n295) State taxation in, 473, 487–88 State v. tribal civil adjudicatory authority in, 284(n310) Water rights in, 20(n98), 334(n17), 338, 339–40(n62), 343(n88), 349, 352(n144), 370(n267), 371 Arkansas River, Choctaw claim to title of bed of, 101 Arms and Ammunition Sales, House Concurrent Resolution 108, 43 Army Corps of Engineers, NAGPRA application, 129 Aroostook Band of Micmacs (Maine) Settlement Act (1991), 85(n46) ARPA. See Archaeological Resources Protection Act Arrests, in Indian country, 164–68 Arson, 145(n17) Articles of Confederation State jurisdiction over Indian land, 5 Title to Indian lands under, 81(n12) Arts and crafts, counterfeiting laws, 142(n4) Assimilative Crimes Act (ACA), 143–44, 167–68(n131) Assiniboine and Gros Ventre Tribes, 658 Assiniboine and Sioux Tribes Cooperative agreements, 647–48, 656, 658 Water rights compact, 381(n331) Atlantic States Legal Foundation, 458 Attachment and Garnishment Orders, and ICRA, 327(n193) Augustine Reservation, Agricultural leases, 110(n232) Bald and Golden Eagle Protection Act (BGEPA), 422–23 Banishment, from Tribal membership, 322(n166) Bankruptcy, Sovereign immunity from, 297 Bankruptcy Code, 29(n137), 297, 313– 14(n132) BGEPA. See Bald and Golden Eagle Protection Act Big Horn River, Water rights in, 102–3, 338, 346–47, 360, 361–62 Billboards, Restrictions on, 90(n81), 230(n332) Bill of Rights, 287, 288, 318 and Criminal prosecution, 153 Bingo by Charitable organizations, 540 as Class II gaming, 532–34 Federal approval of, 624(n17)

Index Blackfeet Tribe, 25(n117) Cooperative agreements of, 635(n73), 657, 658 Reserved water rights of, 344 Boldt Decision, and Salmon fisheries, 406–8 Bonds and Undertakings, Common-law sovereign immunity in coal lands royalty dispute, 289 Bonners Ferry, City of, 656 Bonneville Dam, and Tribal fishing rights, 401 Bonneville Power Administration, 108 Border Patrol, Law enforcement assistance to, 168(n132) Boulder (Colo.), Open space use, 133(n440), 636(n75) Breach of Contracts Federal adjudicatory role in, 227(n13) Nonmembers, 244(n114) Outside Indian Country, 269(n239) Sovereign immunity, 303(n90) State response to, 294(n48) Breach of Fiduciary Relationship, Secretary of the Interior’s actions under IMLA and, 13–14 Breach of Trust, Federal obligations in regard to, 11–23 Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 201 231(n37), 253, 430, 466(n15) EPA program implementation and, 432, 433 Land-use and zoning ordinances, 253 Regulation over nonmembers in, 192–94, 199(n208) Tribal civil-adjudicatory authority in, 197(n195), 440–41 Water rights, 340(n67) Zoning regulations in, 192–94 Bryan v. Itasca County, 153(n71), 218(n323) Public Law 280 and, 274–75, 516–17 Taxation of personal property in, 483 Bureau of Alcohol, Tobacco and Firearms, 503(n278) Bureau of Indian Affairs (BIA) Agricultural leases and, 111 Child custody proceedings, 573(n13), 582, 587(n55), 593–94(nn80, 81), 595–96, 600 Contracting, 46(nn234, 235) Cooperative agreements and, 625, 634– 35(n69), 656 Criminal jurisdiction of, 159(n99) Employment preferences in, 19(n94), 54–55, 58, 59(n60), 60(n71) Farm leases, 110 Federally recognized tribes, 62 Government-to-government relations, 227– 28(n14) Grazing leases, 111 Hunting and fishing regulations, 416–17 Indian Child Welfare Act Guidelines, 575–76, 582–83, 600, 607–9, 611(nn140, 141)

757 Indian Health Service and, 16(n83) Indian identity and, 49(nn6, 7) Indian Self-Determination and Education Assistance Act and, 46(n234) Indian tribal status and, 65(n101) Law enforcement operations of, 221 Mining regulations, 463(n303) Regulatory authority of, 214(n292) School ownership and administration, 73(n159) Sovereign immunity issues, 300(n71) Termination process, 64(n99) Tribal membership, 227(n14), 580, 581 Tribal recognition, 530(n115) Trust lands under, 76 Reservation lands, 70(n137) Bureau of Land Management (BLM), Sacred sites and, 140(n508) Bureau of Reclamation Dam operation and water allocation, 375–76 Trust land exception and 155–56(n77) Burial sites Cooperative agreements regarding, 660 Legislation regarding Indian, 126–33 Business opportunities, tribal, 62(n90) CAA. See Clean Air Act Cabazon Reservation, Agricultural leases, 110(n232) California Child welfare in, 572(n12), 577, 577–78(nn28, 30), 581(n41), 582(n44), 595–96, 599, 600 Class III gaming in, 551–52 Contract execution, 304(n91) Cooperative agreements, 626 Environmental cleanup in, 435–36 Gaming in, 513, 516, 517–18, 551–52, 554(n229), 569 Indian Reorganization Act, 42 Law enforcement on reservations in, 220–21 Public Law 280 in, 154, 516 Recognition of tribes by, 67 Sovereign immunity in, 28(n10) State authority over Indians in, 220–21 Timber resources, 118 Water rights in, 20(n98), 334(n17) Wildfires in, 118 California Environmental Quality Act, 625(n25) California v. Celtor Chemical Corp., 435–36, 457–58 Campaign contributions, Tenth Amendment, 298(n62) Canada Off-reservation enterprises in, 210(n278) Pacific Salmon Treaty Act, 420–21 Card Games by Charitable organizations, 540 as Class II gaming, 534–35, 537–38

758 Casinos Class III gaming, 538 Construction contracts, 256–57(n177) state taxes on, 504–5 Development contracts, 115(n271) IGRA and, 47 Labor relations and, 29(n135) Law enforcement issues, 633(n66) Pre-IGRA, 513 Sovereign immunity issues, 298(n64), 312(n119) State liquor regulations, 215–16(n306) Tribal government and, 311(n118) Trust lands and, 76(n179) CCTA. See Contraband Cigarette Trafficking Act Centennial Accord, 622 CERCLA. See Comprehensive Environmental Response, Compensation, and Liability Act Cession Agreements, Surplus lands acts, 93–94 Chaco Culture National Historic Park, 139(n505) Chamokane Creek, Water rights to, 382 Charter of Incorporation, Sue and be sued provisions, 308–13 Chehalis River, Salmon fisheries on, 409 Cherokee Nation, 25(n117) Abolition of slavery in, 298(n62) Child custody proceedings, 593–94(n80) Jurisdiction and status of, 1–5 Sovereignty of, 7 Tribal status in, 50, 64(n99), 65(n101), 584(n47) Cheyenne River Act, 194 Cheyenne River Sioux Tribe Hunting and fishing regulations, 194–97 Sales of fee lands, 205–10 Child Custody Proceedings Adoptive placement, 573–74 Adult adoptees and, 618–19 Commerce Clause and, 172 Exclusions from, 574–75 Indian Child Welfare Act, 230–31(n34), 571–76 collateral attack upon state court decrees, 614–17 exclusive tribal jurisdiction over, 585–89 existing Indian family doctrine, 576–79 full faith and Credit requirements, 281(n296), 283, 617–18 Indian child status, 579–85 preferred tribal jurisdiction in, 589–600 State adjudicatory jurisdiction, 276 State adjudicatory power over, 272(n247), 276, 285(n312), 600–17 involuntary, 601–9 placement preferences and, 610–14 Tribal court jurisdiction, 235(n61), 283

Index Child Support Cooperative agreements on, 659 Full faith and credit principle, 283–84, 617–18 State court jurisdiction in, 269–70(n240), 282(n297) Child Welfare Programs, State-tribal agreements, 657–58 Children See also Adoption Proceedings; Child Custody Proceedings; Child Support; Foster Care Proceedings; Parental Rights Care and custody of, 172, 573–76 Crimes against, 147(n30), 220(n332) Tribal membership of, 60–61, 322–24, 579–85 Welfare of, 571–72, 657–58 Chinook Indians, 410(n195) Chippewa Cree Tribe, 163(n111), 635(n73), 658, 659–60 Chippewa Tribe, 24(n111), 43, 402(n136) Choctaw and Chickasaw Nation, Coal resources, 289 Choctaw Tribe, 24(n112), 25(n118), 101, 281(n294) Choice of Law See also Jurisdiction in Cooperative agreement negotiation, 642 in Exhaustion and diversity deferral requirements, 233–34 Cigarettes, transporting, 143(n8) Cigarette Sales Contraband, 313–14(n132) Nonmember purchasers, 251, 475 on-Reservation, 219 Taxation, 27(n129), 213(n288), 227, 266, 295(n51), 477, 497–503, 655 Tribes’ power to impose taxes on, 189(n150) Citizenship, 8(34), 225 Elk v. Wilkins, 53(n30) General Allotment Act Period granting of, 36, 37, 38 1924 Act granting, 39 City government, water services, 75–76 Civil-Regulatory Authority Double Jeopardy Clause and dual sovereignty rule, 151(n54), 152, 319–20 Habeas corpus petitions by nonmembers facing charges in tribal court, 276(n270) State authority in Indian country, 158(nn92, 93) Traffic laws and, 157–58 Tribal jurisdiction and, 201–4 Zoning, 90(n80), 192–94, 253, 429–30 Civil Rights, 304(n92) See also Habeas Corpus; Indian Civil Rights Act, various Civil Rights Acts State violation of, 165 Civil Rights Act (1866), 298(n62) Civil Rights Act (1871), 230

Index Civil Rights Act, Title VII of, 27–28(n129), 62(n90), 299(n70), 302(n80) Civil Service Regulations, 21(n100) Class I Gaming Defined, 531–32, 569 IGRA standards for, 539 Class II Gaming Defined, 532–38 IGRA standards, 539–48 Miami Tribe, 522–24 Class III Gaming, 510, 538 Federal law and, 227(n13), 569–70 Good-faith litigation of compacts, 559–67 Ordinance requirements, 548–49 State law and, 540(n161), 549–52 State-tribal compacts, 552–67 Tribal ordinances for, 525 Clean Air Act (CAA), 427, 629(nn43, 48) Cooperative agreements, 646–47 Tribal implementation of, 437, 438 Clean Air Act Amendments, Title V, 449–50 Clean Water Act (CWA), 427 Treatment-as-a-state provision in, 174, 175(n42) Tribal implementation of, 437, 438, 440 Tribal jurisdiction over, 441–47, 629–30 Clinton, Bill, “Indian Sacred Sites” Executive Order, 137(n484) Coal Resources, 105 Royalties for, 289 SMCRA and, 460–63 Cocopah Reservation, 354(n161) Coeur d’Alene Tribe, murder convictions and, 55 Colonialism, 42(n209) Colorado Air quality control, 647 Appropriation doctrine and, 334(n17) Cooperative agreements, 626(n26), 643–46 Criminal jurisdiction in Ignacio, 155(n76) Criminal jurisdiction outside of Public Law 280 in, 159(n95) Hunting and fishing agreements, 631(n59), 651 Sacred sties in, 636(n75) Water rights, 354, 363, 368 Colorado Environmental Control Commission, 647 Colorado River, Water rights to, 354(n161) Colorado River Basin Act, 644 Colorado River Basin Project Act, 644 Colorado River Indian Reservation Boundary Correction Act, 87(n57) Colorado River Tribes, Water rights, 345(n100) Colorado Ute Indian Water Rights Settlement Act, 645–46 Columbia River Basin Fishing rights in, 341, 400, 401 Salmon fisheries in, 406–9

759 Columbia River Treaty Tribes, Fisheries agreements, 650 Colville Confederated Tribes/Reservation, 382 Cooperative agreements, 649–50, 651, 654–55 Hunting and fishing, 385(n10), 392(n61), 649–50, 651 Motor vehicle fuel agreements, 654–55 Colville Water Quality Management Plan, 649 Comity Federal-tribal court, 280–82 State-tribal courts and, 286 Commerce See also Commerce Clause; Indian Commerce Clause Congressional power over, 1, 170–72 Navigable waters and, 98 Commerce Clause, 9, 170–72 See also Constitutional Law; Indian Commerce Clause Federal powers under, 320 Fish and wildlife regulations and, 385 Navigable waters, 98(n132), 101(n149) Oil and gas lease taxes and, 465, 480(n110), 382 Sovereignty and, 321(n163) Water rights and, 334(n20) Commercial development, 104 Commissioner of Indian Affairs See also Bureau of Indian Affairs Annual Reports describing opened reservation lands, 96 Tribal sovereign immunity, 316(n137) Common Law Indian status in federal, 50–53, 62, 176 Marshall trilogy judicial foundations of, 1–6 principles applied to, 6–29 Retained inherent authority through, 185–86 Sovereign immunity and, 25(n116), 288–96 Tribal authority and, 230–31(n34), 284– 85(n310) Compacts, state-tribal gaming, 552–67, 569. See also Gaming Compacts Companies, Tribally owned and operated, 309–10(n112) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 427 Cooperative agreements on, 631 EPA administration of, 455–58 State authority in, 435–36 Condemnation, Acquisition of land by, 119–20 Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, 155(n76) Confederated Tribes of Grand Ronde Community, 155(n76)

760 Confederated Tribes of Siletz Indians, 155(n76) Confederated Tribes of the Umatilla Indian Reservation, 660 Confidentiality, Cooperative agreement development, 640–41 Conduct, of Nonmembers in relation to tribal government, 208–9 Connecticut Deferral rule in, 272 Criminal jurisdiction in, 155(n76) Public Law 280(n61) Recognition of tribes by, 67, 68(n126) State civil adjudicatory jurisdiction, 270– 71(n241) Connecticut Indian Land Claims Settlement Act (1982), 78(n186), 85(n46), 299(n68) Consent of Nonmembers to regulation under tribal government, 191–92 to Suit, 304(n91) Conservation See also Environmental Regulation and Protection State regulation of off-reservation hunting and fishing rights, 403–5 Conservatorship, 574(n20) Consideration. See Compensation Constitutional Law See also various amendments; clauses; Indian Commerce Clause; Public Law 280; U.S. Constitution Double Jeopardy Clause and dual sovereignty rule, 188 Equal protection, 56(n49), 90(n80), 222 Extradition Clause, 166(n124) ICRA provisions and, 177–85, 316–18 Indian Commerce Clause of, 9 Constitutions, Tribal, 40–41, 174, 250(n141) Construction and Interpretation See also Words and Phrases Canons of, 473(n58) Cherokee Nation v. Georgia, 1–2, 3, 4, 5(n21), 7 Dependent Indian communities, 71–73 Elk v. Wilkins, Fourteenth Amendment voting rights denied, 34–35, 53(n30) Fee patents, 91–92 Habeas corpus provisions of Indian Civil Rights Act of 1968, 7(n28), 44 Hunting and fishing rights, 399–401 Indian Commerce Clause, 66(n106) Mitchell I and Mitchell II, basis and scope of trust obligation, 11–14, 21(n99) Sections 1331 and 1332 of title 28 Surplus lands acts, 93–94 Termination of tribes, 64, 66 Construction Industry Arbitration Rules, 303(n89)

Index Construction projects, Waiver of soveregn immunity and, 304–6 Continental Shelf, Aboriginal rights to, 394(n80) Contraband Cigarette Trafficking Act (CCTA), 27(n129), 143(n8), 500(n263) Contract Disputes Act, 46(n237) Contracts, 171 See also Leases Arbitration of commercial, 302–4, 330(n196) Choice of law provisions, 642 Construction, 227(n13) Department of Defense, 55–56(n48) Federal civil adjudicatory power over, 227(n13) Federal government, 44–46, 55–56(n48) Gaming management, 302–3 Housing, 303 Outside Indian Country, 269(n239) State civil adjudicatory power over, 270– 71(n241), 294(n48) Tribal regulation of, 312–13 Controlled substances Possession of, 145(n18), 155(n77) State laws concerning, 157(n89) Use in religious practice, 56(n49), 136(n477) Controlled Substances Act, and RFRA, 136(n477) Cooperative Agreements Colorado-Ute water rights (case study), 643–46 Cultural resources, 660 Environmental regulation and protection, 629–31, 646–49 Law enforcement, 633–35, 656–57 Natural resources, 631–32, 649–53 Negotiating, 636–43 Protection of Indian graves, sacred sites, cultural items, 636 Reserved Indian water rights, 635 Social services, 657–60 State-tribal, 620–21 governmental authority for, 623–28 government-to-government relations and, 621–22 Taxation, 632–33, 653–55 Cooperative Federalism, 427 Copyright Act, 297–98(n61) Corporations Alaskan Native, 294–95(n50) Non-tribal, 199(n209) Owned by tribal members, 205–10 Tribally owned, 311(n118) Tribes as, 308–13 Cotton Petroleum Corp. v. New Mexico, 106(n196), 213(n290), 214–15, 385(n14), 386(n20) State taxation issues in, 474(n68), 476, 477– 78, 480–82, 489, 632(n62)

Index Counterfeiting, Indian arts and crafts, 142(n4) Cree Nation, Treaty rights of, 473(n58) Creek Nation, Sovereign immunity of, 289(n15) Crime(s) Hunting and fishing, 388–89 Lacey Act and, 424–25 in Indian Country, 74(n166), 141–61 Indian against Indian, 50, 147, 160 Indian against non-Indian, 160 Indian status and, 50, 55 Jurisdiction over prosecution of, 10(n42), 160–61 State, 153–59, 276(n270) Juvenile, 149–50 Non-Indian against Indian, 160–61 Tribal, 151–53 Tribal jurisdiction, 52(n28), 151–53 Victimless, 161 Violent, 145(n19) Criminal Investigations, disinterments as part of, 129–30 Criminal Proceedings See also General Crimes Act; Public Law 280 Bald and Golden Eagle Protection Act, 422–23 Conduct in and outside of Indian country, 163–64 Federal Juvenile Delinquency Act, 150 Gaming, 520, 540(n161), 567–70 ICRA provisions and, 324–30 IGRA and, 268(n238), 273–74(n256) in Indian country, 74(n166) Lacey Act, 424–25 Magnuson Act, 419–20 Major Crimes Act, 55 Sentencing, 149 Crook Commission, 92(n93) Cross-deputization agreements, 256– 57(n177), 630, 633, 634, 652, 656–57 Cross-issue Development, 638 Crow Boundary Settlement Act, 76(n186), 86–87(n56) Crow Tribe/Reservation, 587(n54) Cooperative agreements, 635(n73), 658 Farm leases, 110(n232) Grazing leases, 112(n248) Hunting and fishing jurisdiction, 190–91, 390–91 Jurisdiction in regard to regulating common carriers, 241 Title to bed and banks of Big Horn River, 102–3 Cultural Items, protection of, 126–33, 636, 660 Cultural Properties/Resources, Protection of and access to, 133–40 CWA. See Clean Water Act

761 Dams, Construction of, 341(n76) Deferral Doctrine State court jurisdiction and, 272 Tribal court jurisdiction and, 233–34, 239, 240, 243(n110), 247–48 Definitions. See Words and Phrases Delaware (state of), recognition of tribes by, 67 Delaware Indians/Nation, 19(n94), 64(n99) Dependent Indian Communities, Construction and interpretation of, 71–73 Depredation Act, 65(n103) Decedents, Fractionated land ownership and, 120–25 Devil’s Hole National Monument, 337–38 Devils Lake Indian Reservation, 155(n76) Devils Lake Sioux Reservation, 89–90(n78), 125(n373) Devil’s Tower, 140(n508) Diminishment, of reservations, 91–97 Discovery, Doctrine of Conveyance of land, 3–4 Land rights and, 4–5 Discrimination Ancestry-based, 57–59 Employment, 145(n115) Motor vehicle licensing, 224 Race, 27–28(n129), 58(n57) Sex, 244(n114), 245(n115) Tribal court jurisdiction over, 205 Disenrollment, 322(n166) Dispute Resolution, in Cooperative agreement, 641–42 District of Columbia, Section 1738 decision and, 281 Diversity Deferral Requirements, under 28 U.S.C. § 1332, 231–49 Divorce Child custody and, 574(n20), 575 State court jurisdiction, 270(n241) Doctrine of Discovery. See Discovery, Doctrine of Dolores Project, 644, 645 Domestic relations State civil-adjudicatory jurisdiction over, 270(n241) Tribal authority in, 188(n143) Domestic violence, Tribal court authority over, 284 Double Jeopardy Clause Criminal jurisdiction and, 152(n64), 319–20 and Dual sovereignty rule in Wheeler case, 188 Tribal jurisdiction and, 151(n54), 152 Driving-under-the-influence; Drunken Driving, Prosecution of, 145(n18), 146– 47(nn24, 25), 157–58 Drug Violations, Criminal jurisdiction over, 143(n8), 145(n18), 256–57(n177) Duchesne County, and Ute Tribe, 626, 653

762 Due Process Clause (Fifth Amendment), 10 Challenges to, 321 in Criminal jurisdiction, 153(n69), 319 Due Process Clause, 599 Foster care placement and, 599 Gubenatorial power, 527 ICRA standard, 327–28(n193) Personal jurisdiction in, 318(n145) Racial preferences and, 55 Tribal authority in, 178, 183, 324(n178) Due Process Clause (Fourteenth Amendment), 280, 604(n119) Duro v. Reina, 149(n35), 151–52, 153, 163, 173(n31), 186(n134), 187(n138), 212(n284), 586(n52) Federal prosecutorial power in, 321 Habeas corpus relief in, 325 Tribal criminal jurisdiction in, 319–20 Tribal sovereignty in, 175–76, 177–85 passim, 196(n189), 316(n140), 317(n143) Eagles, Religious taking of, 136(n469), 422–23 Easements, Hunting and fishing access through, 402–3. See also Rights-of-way Economics, of land aquisition, 90–91 Education General Allotment Act and, 38(n188) Indian Reorganization Act, 41(n205) ISDEAA mandate and, 45 No Child Left Behind Act, 54(n39) Preferential admission policies, 58(n57) Elections in Regard to Indian Reorganization Act, 41 Rice v. Cayetano and, 57–59 state vs. tribal, 57–59 Electronic and Electromechanical Facsimiles, as Class II gaming, 535–37 Elephant Butte Reservoir, 370(n266) Eleventh Amendment Immunity and litigation of good faith of state’s negotiating, 560 State immunity under, 229–30 State vs. tribal authority under, 11 Waivers of sovereign immunity under, 310–11 Emergency Planning and Community Right-to-Know Act, 455 Eminent domain over Off-reservation tribal land, 85(n44) Religious land use, 138(n488) Employee Retirment Income Security Act, 27(n129), 244(n114), 249(n139) Employment Civil Rights Act Title VII, 27–28(n129) Preferential treatment of Alaska Native sin, 56–57(n49), 57(n50) Preferential treatment of Indians in, 19, 54–55, 58, 60(n71), 330(n196) Tribal, 204(n245), 256(n177), 256–57(n177) Enclaves Clause, 524–25(n91)

Index Endangered Species Act (ESA), 20(n96), 139 Reserved water rights and, 337–38, 347(n113) Tribal hunting and fishing rights under, 417–19 Energy Policy Act (2005), Title V, 108 Enrollment, tribal, 49(n7) Enterprises, Off-reservation, 210(n278) Environment, Land use and leases, 114 Environmental Protection Agency (EPA), 427 CAA implementation, 449–51 CERCLA, 455–58 Cooperative agreements and, 629–31 CWA implementation, 174 Federal authority of, 20(n96), 173(n32) Federal regulatory programs of, 436–58 FIFRA regulations, 454 Hazardous waste disposal and, 630–31 Indian Policy of, 439–41 Release of pollutants, 204(n245) SDWA, 447–49 State regulatory authority and, 435 State governments and, 434–35 Treatment-as-a-state provisions, 174–75 Tribal Authority Rule, 450 Tribal implementation of programs, 629–30 Water quality standards and, 197(n195), 204(n245) Environmental Regulation and Protection, 427–28 See also Conservation; Hazardous Wastes; various programs by name CERCLA, 455–58 Commerce Clause and, 172 Cooperative agreements and, 629–31, 646–49 CWA, 449–51 Delegation of federal authority in, 173–74 EPA programs, 436–58 HMTA, 459–60 SMCRA, 460–63 State or tribal program assumption of, 441–54 State regulatory authority in Indian country, 434–36 Tribal authority over, 428–33 Tribal violations of, 458 Water quality issues and, 447–51 EPA. See Environmental Protection Agency Equal Employment Opportunity Act, 245(n115) Equal Footing Doctrine, 11 Beds and banks of navigable waters, 97–104 Indian Reservations, 100–104 Principles of, 98–100 Equal Protection See also Constitutional Law Challenges to, 19(n94), 56(n49), 153(n69), 321 Equal Protection Clause, 57(n50), 90(n80), 153(n69), 222 Tribal authority in, 178

Index ESA. See Endangered Species Act Establishment Clause, 139(n505), 317 Estates, Full faith and credit requirements, 283 Ethnicity, Defining, 49(n6) Excise Taxes Cigarette sales, 27(n129), 497–503 on Liquor sales, 496–97 on Motor fuels, 490–95 on Tribal real property, 484–86 Exclusive Economic Zone, Fisheries regulation in, 419–20 Executive Branch Actions during Trade and Intercourse Acts period, 33–35 on Capital crimes committed by military personnel, 173(n28) and Federal Indian policy, 29–47, 63(n95), 65(n101) Land and occupancy rights, 79, 81 Reservation creation by, 25(n117), 69–70, 88–89 Reservation boundaries and, 87 Restriction and alienation by, 91–92(n91) Submerged land disposal, 100 Treaty-making powers of, 1, 33–34, 62, 171 Tribal civil-adjudicatory jurisdiction and, 189 Tribal sovereignty, 179 Trust obligation of, 24–25 Executive Orders No. 11435, 278–79 No. 13, 175, 20, 630(n52) No. 9,272, 91(n91) No. 10,191, 91(n91) No. 10,250, 91(n91) Reservation creation under, 70(n136) Exhaustion Doctrine Exceptions to, 235–36 Jurisdiction of state courts, 272(n245) Jurisdiction of tribal courts and government and, 231–49, 255(n168) Existing Indian Family Doctrine, Child custody and, 577–80 Ex parte Young Doctrine, 11, 29(n137), 99, 561 sovereign immunity in, 313–15 Extradition, 7(n27) of Tribal members, 165–66 Extradition Clause (U.S. Constitution), 166(n124) FAA. See Federal Arbitration Act Fair Labor Standards Act, 46(n236) “Fair Share” Provisions, in Fisheries, 406–9 Fallon-Paiute Shoshone Indian Water Rights Settlement Act, 91(n89) Family and Medical Leave Act, 304(n92), 308–9(n111) violation of, 315(n135) Farm Leases, 109–11, 113

763 Federal Arbitration Act (FAA), 239(n83) Federal Communications Act, 239(n83) Federal Courts Abstention in water rights cases, 373–76 Full faith and credit recognition of tribal courts, 279–86 ICRA enforcement by, 324–26 Interference with tribal courts, 233–35, 239–40 Jurisdiction of, 231(n36), 245(n116) Removal of water rights cases to, 376 Tribal court relationships with, 252–53 Federal Death Penalty Act, 148(n33) Federal Debt Collection Act, 297 Federal Extradition Act, 166(n124) Federal Government See also various acts and laws CERCLA, 455–58 Civil adjudicatory jurisdiction of, 225–49 Comity with tribal courts and, 280–82 Commerce, 98 Consultation with tribes, 20(n96) Cooperative agreements, 46, 620–21, 624–25 Criminal jurisdiction, 142–50, 160 and Dependent Indian communities, 71–73 Farm leases, 109–11 Gaming civil and criminal enforcement, 567–70 HMTA, 459–60 Hunting and fishing regulation, 416–26 Inherent powers of, 320–21 Liquor-related offenses and, 161–63 McCarran Amendment adjudication, 370 Mineral leasing, 105–9 Natural resource leases, 104–25 Purpose of reservations and, 339–43 Role of in Indian country, 69–71 SMCRA, 460–63 Sovereign immunity and, 18–19, 25(n116) State law and, 19(n94), 20(n95) Taxation by, 26(n122), 507–9 Trade, 31(n152) Trusts, 11(n48) Water rights, 332 Federal Highway Beautification Act, 220(n332) Federal Indian Law Policy Origins Congress and Executive Branch roles in, 29–47 Indian Reorganization Act, 19–20 Marshall trilogy principles and, 1–6 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 173(n32), 427, 454, 629(nn46, 48), 647–48 Federal Juvenile Delinquency Act, 150 Federal Land Policy and Management Act (FLPMA), 139 Federally Recognized Indian Tribe Act (1994), 64(n99)

764 Federal Oil and Gas Royalty Management Act (FOGRMA), 14(n71), 109 Federal Power Act, 385(n11) Federal Rules of Criminal Procedures, Sovereign immunity and, 301 Federal Tort Claims Act (FTCA), 46(n235), 167(n128), 245(n115), 264(n217), 635, 656 Federal Water Pollution Control Act. See Clean Water Act Fee Lands Forcible entry and detainer action, 267 Hunting and fishing regulations on, 190–91 Land use and zoning ordinances on, 429–30 Liquor sales on, 162, 163(n114) Non-Indian sale of, 205–10 Nonmember, 92–93 Nontribal corporations on, 199(n209) Partitioning of, 270–71(n241) Sales of, 262–63 State condemnation of, 218(n323) State taxation of, 484–85 Water quality, 197(n195) Water rights, 356–57 Fee Patents, 171 Conveyance of land through, 91–92 Fiduciary Relationship See also Trust Responsibility Federal trust obligation in, 11–23 FIFRA. See Federal Insecticide, Fungicide, and Rodenticide Act Fifth Amendment Aboriginal occupancy in, 80 Double Jeopardy Clause of, 151(n54), 152, 188 Due Process Clause of, 55, 527, 599 Just Compensation and Due Process Clauses of, 10 Tribal jurisdiction and, 146(n25) Fifteenth Amendment, Preferential election for Hawaiians, 57 Firearms Violations, 155(n77) Fireworks possession, 143(n8), 154(n74) First Amendment and Bald and Golden Eagle Protection Act, 422–23 Free Exercise Clause, 134, 135, 422(n293), 424(n307) and Migratory Bird Act, 424 First-to-Judgment Rule, 284–85(n310) Fish and Game Offices/Officers, Authority in Indian Country, 213(n289) Fish and Wildlife Resources See also Fishing and Fisheries; Hunting and Fishing Authority to regulate, 384–87, 416–17, 634(n67) Hunting and fishing regulations, 430–31 State-tribal cooperative agreements on, 631– 32, 649–50

Index Tribal development of, 212(n287) Tribal self-government and, 215(n289) Fishing, Fisheries See also Hunting and Fishing Allocation of using “fair share” standards, 405–9 Constitutional framework of regulation under, 385(n9) Cooperative agreements, 649–50, 651 Federally secured rights, 395–416 Federal regulation of, 20(n98), 416–19, 421–26 Magnuson-Stevens Fishery Conservation and Management Act, 419–20 Pacific Salmon Treaty Act, 420–21 Habitat preservation, 411–16 Held in trust, 154(n73) Irrigation and, 358(n193) Klamath River Basin, 375–76 Navigable waterways and, 103–4 Off-reservation rights, 393(n71), 395–411 Preemption and conservation necessity in, 403–5 Reserved water rights and, 341, 343, 375 Restoration of, 45(n229) Sovereign immunity from state court actions, 289 State regulation of, 202(n237) under Stevens/Palmer treaties, 403–5 Title to beds of navigable rivers and, 103–4 Treaty rights and, 55(n48), 343 Trust properties and, 154(n73) Usual and accustomed water rights, 350–51 Winters doctrine and, 415–16 Fishing rights, 21–22(n101) On- and Off-Reservation, 219(n328) Preserved by Treaty, 230–31(n34), 335 Five Civilized Tribes Farm leases, 110(n232) Mineral leases, 106(n190) Oil and gas leases, 479(n101) Tribal court of, 281(n294) Flathead Lake, 429 Flathead Tribe/Reservation Freedom from federal government role and, 43 Hunting and fishing agreements, 652 Water rights, 356, 375 Flood Control Act (1944), 194, 195 Florida Criminal jurisdiction in, 155(n76) Indian Reorganization Act, 42 Florida Indian (Seminole) Land Claims Settlement Act (1987), 78(n186), 85(n46), 299(n68) Florida Indian (Miccosukee) Land Claims Settlement Act (1982), 78(n186), 85(n46), 299(n68), 541(n166) FLPMA. See Federal Land Policy and Management Act

Index FOGRMA. See Federal Oil and Gas Royalty Management Act FOIA, 21(n100) Foreign Judgments Full faith and credit or comity in, 279–86 Section 1738 and, 279–82 Foreign State Defined in Cherokee Nation v. Georgia, 1–2 See also Sovereignty Forests and Timber General Allotment Act and, 11–12 Leases, 115–18 Motor vehicle licensing and fuel taxes, 211, 487–88 Ownership of, 311(n118) Sawmills, 27(n129) State civil authority over, 212–13(n287) Fort Belknap Reservation Farm leases, 110(n232) Social services, 658 Water rights, 335, 635(n73) Fort Berthold Reservation Fractionated land interests, 125(n372) Mineral leasing on, 106(n190) Oil and gas agreements, 652–53 Fort Bridger Treaty, 345(n99) Fort Hall Reservation Nuclear fuel shipments and, 460 Water rights on, 345 Fort Mojave Indian Tribe, 345(n100) Fort Peck Reservation, 26(n124), 381(n331), 635(n73) Cooperative agreements on, 647–48, 656, 658 Fort St. Vrain Nuclear Power Plant, 460 Foster Care Proceedings See also Child Custody Proceedings Due Process Clause, 599 ICWA, 573, 574(n17), 575 Involuntary placement, 601–9 Preferred tribal jurisdiction over, 589–600 Fourteenth Amendment Citizenship in, 38–39(n193), 53(n30) Due Process Clause, 280, 599, 604(n119) Equal Protection Clause, 10(n42), 222 Indian Commerce Clause and, 560–61 RFRA, 137 Taxation in, 287(n5) States rights in, 137 Voting rights denied Indian after tribal relations severed, 34–35 Fourth Amendment, 318(n145) Fractional Property Interests, 10(n41), 120–25 Free Exercise Clause (First Amendment), 134, 422(n293), 424(n307) Free Speech Rights, Tribal, 327(n193) FTCA. See Federal Tort Claims Act Full Faith and Credit for Child Support Act, 283–84

765 Full Faith and Credit Principle Child custody proceedings and, 283–84 Foreign judgments and, 279–86 Funerary Objects, Treatment of under NAGPRA, 127–33 Gambling and Gaming, 76(n179), 212(n287) Assimilative Crimes Act and, 144(n11) Ceremonial, 532 Commerce Clause and, 172 Contracts to conduct, 302–3 Federal civil and criminal enforcement authority, 567–70 IGRA, 28(n130), 47, 510–11, 518–70 Class I, 531–32 Class II 532–38, 539–48 Class III, 538, 548–67 geographical scope of, 519–31 Land acquisition for, 90–91, 527–31 Land claims settlements, 541–44 Management contracts, 545–47 Pre-IGRA regulation of, 511–18 Sovereign immunity issues and, 293(n47), 304(n92), 305–6 Self-government and, 319(n147) State adjudicatory authority, 270–71(n241) State regulatory authority, 219–20 Trust lands and, 524–31 Gaming Compacts Authority to enter into, 553–54 Enforcement, 557–59 Good faith of state’s bargaining, 559–67 Prescribed procedures requirements, 552–53 Provisions and approval, 555–57 Gas Rights. See Oil and Gas Rights Gatekeeping, on Public rights-of-way, 255 Gay Head (Mass.), gaming in, 541–42(n166) General Allotment Act, 209(n276) as Federal Indian policy, 35–39 Government management of natural resources under, 11–13 Irrigation water distribution and, 380(n328) Land patents under, 35–36 Purpose of, 35–37 State taxation on fee-patented land, 484–85 Tribal authority and, 197(n195) Trust relationship under, 36(n176) Water rights, 340(n67), 356–57 General Allotment Act Period, 35–39 Grant of citizenship to allottees, 36 Leasing of allotted lands under, 36 Sales of surplus land during, 94(n106) Trust, fee, and forced-fee patents during, 37(n183) General Crimes Act, 141, 142–47, 160, 161 Assimilative Crimes Act, 143–44 Federal Juvenile Delinquency Act and, 150 Gaming and, 515 General laws in, 142–43

766 Indian against Indian crimes and, 146–47, 160 and Major Crimes Act, 147–48 Non-Indian crimes and, 145–46 Public Law 280 and, 154–55, 156 General laws, in General Crimes Act, 142 Georgia Criminal jurisdiction in, 159(n94) Jurisdiction over Cherokee lands, 1–2, 3(n13) Recognition of tribes by, 67 Gila National Forest, Instream water flow in, 338 Gila River Irrigation on, 349 Water rights adjudication, 338(n53), 340(n66), 342, 343(n84), 355(n273), 356), 371 Glacier National Park, Hunting in 385(n10) Good Faith, in Gaming tribal-state compacts, 559–67 Grand Canyon National Park, 139(n505) Grand Coulee Dam Reservoir, Hunting and fishing at, 385(n10), 391(n65) Grant to Land. See Land Grants Grants under ISDEAA, 46 Social services, 627–28 Graton Rancheria, federal recognition of, 63(n96) Graton Rancheria Restoration Act, 90(n79) Graves, Protection of, 126–33, 636 Grazing Leases, 111–12 Great Lakes Charter, 630(n53) Green Bay Agency, Timber harvesting, 116(n285) Gross Receipts, State taxation of, 503–5 Gros Ventre Tribe, fiduciary trust obligations of, 17(n86), 18(n91), 21(n100) Groundwater Rights, 354–56 UIC and, 447–49 Guardianship See also Adoption Proceedings; Child Custody Proceedings; Foster Care Proceedings Federal government, 38–39(n193) Veterans Administration, 270–71(n241) Habeas Corpus, 56(n49) Indian Civil Rights Act (1968), 7(n28), 44, 151–52, 156(n81), 288 relief under, 324–25, 326 retained tribal authority under, 323 Tribal court jurisdiction under, 286(n316) Indian country crimes and, 44 Indian status and, 53(n30) Sovereignty and, 245(n118) State jurisdiction, 148(n34), 276(n270) Habitat Protection See also Environmental Regulation and Protection Off-reservation fishing rights, 411–16

Index HADPA. See Historic and Archeological Data Preservation Act Hatch Tract, 525(n93) Hawaiians, Hawaii Aboriginal title, 88(n66) Recognition of tribes by, 67 Sovereignty, 178 Special status of, 57–58 Status of, 51 Hayden-Cartwright Act, Motor fuel taxes, 487–88, 494–95 Hazardous Materials Transportation Act (HMTA), 27(n129), 297, 427, 459–60 Hazardous Wastes See also Environmental Regulation CERCLA, 455–59 Cooperative agreements, 630–31, 648–49 RCRA program, 435, 451–54 Health and Safety, 27(n129) Child support and, 269(n240) Cooperative agreements, 659–60 Indian status and, 54 ISDEAA mandate and, 45 Medical malpractice, 204(n245), 256– 57(n177) Nontribal corporations and, 199(n209) State statutes, 60 Tribal businesses and, 311(n118) Highways Free travel on, 473(n58) HMTA regulations and, 459–60 Indian Commerce Clause and, 210(n278) Livestock regulations and, 256–57(n177) Jurisdiction on state roads within reservations, 197–99, 254–55, 255–56(n177) Historic and Archeological Data Preservation Act (HADPA), 139(n498) Historic preservation Sacred site protection, 138–39 White Mountain Apache reservation 14 HMTA. See Hazardous Materials Transportation Act Ho-Chunk Nation, Kingsley Bend Effigy Mound Site, 666 Homestead Act, Nonmember acquisition of land through, 362 Homesteading General Allotment Act period, 38 and Hunting rights, 402 Land sales, 92 Hoonah Indians, 27(n126) Hoopa Valley Reservation Ore processing plant cleanup in, 435–36, 457–58 Salmon fisheries and, 20(n98), 45(n229), 408–9 Hopi Reservation/Tribe Grazing leases, 112(n248) Leases, 112(n252)

Index Navajo land claims, 295(n51) Sacred sites, 139(n505) Hotels Jurisdiction of courts in regard to extraterritorial, 293(n47), 294 Occupancy tax, 199–200 Trading companies and, 200–201 House Committee on Natural Resources, Federal recognition of tribes, 61 House Concurrent Resolution 108, 42–43 Housing Contracts, 303 Federal criminal laws regarding, 142(n4) Off-reservation development of tribal, 243(n110) State civil adjudicatory jurisdiction, 270– 71(n241) State statues, 60 Housing authorities Land issues, 73(n161) State court authority over, 270–71(n241) Tribal, 62(n90), 244(n114), 310(nn114, 115), 311–12(n118), 327(n192) Human Remains Ancient, 130–31 Disinterment of for law enforcement purposes, 129–30 Treatment under NAGPRA of, 127–33 Human rights protection of, 218(n323) Sex discrimination, 244(n114) Humboldt Decree, 379 Hunting and Fishing See also Fish and Wildlife Service; Fishing and Fisheries Alienation of land, 88(n68) Allocation of resources using “fair share” standard, 405–9 Canons of statutory construction in regard to treaty making, 25 on Ceded lands, 93(n99) Cooperative agreements, 649–52, 660 Federal regulation of, 43, 66(n111), 385(n10), 416–26 Bald and Golden Eagle Protection Act, 422–23 Bureau of Indian Affairs management authority, 416–17 Endangered Species Act, 417–19 Lacey Act, 424–25 Magnuson-Stevens Fishery Conservation and Management Act, 419–20 Marine Mammal Protection Act, 421 Migratory Bird Treaty Act, 423–24 Pacific Salmon Treaty Act, 420–21 Whaling Convention Act, 421–22 in Indian country, 386–92 in National parks, 385(n10) Navigable waters and, 102–3

767 Non-Indians on Indian reservations, 145(n18) Nonmembers, 389–91, 430–31 Nonmembers on reservation, 213(n289) Off-reservation, 392–416 aboriginal rightes, 393–95 federally secured rights, 395–416 violations of regulations in regard to, 257–58 on Open and unclaimed lands, 401–2 State regulation of in Indian country, 201–4 prosecution of, 263–64(n216) Treaty rights and, 66–67, 403–5 Tribal regulation of, 190–91, 194–97, 389–91, 430–31 Tribal rights to regulate on taken land, 194–97 Hydroelectric Projects, Fisheries habitats and, 414 ICC. See Indian Claims Commission ICRW. See International Convention for the Regulation of Whaling ICWA. See Indian Child Welfare Act Idaho Appropriation doctrine and, 334(n17) Clean Air Act, 451(n197) Cooperative agreements, 626(n26) Criminal jurisdiction in, 155(n77) Fisheries habitat in, 415 Gaming in, 554(n229) Hunting rights in, 401 Law enforcement, 656 Open and unclaimed lands in, 402 Submerged lands in, 101–2 Idaho National Engineering Laboratory, 460 Identity of Descendants, 11(n51), 19(n94) Indian, 49–61 Ignacio (Colorado), Criminal jurisdiction in, 155(n76) IGRA. See Indian Gaming Regulatory Act Illegal aliens marriage of Indians to, 143(n8) Transporting of, 168(n132) Illinois, Consent to suit in, 304(n91) IMLA. See Indian Mineral Leasing Act Immunity See also Sovereign Immunity Common-law immunity from suit defined by tribal status, 7–8 Income taxes, State imposition of, 505–6 Incorporated Tribes. See Tribal Government; Tribes Indemnification, 642–43 Indian(s) Crimes in Indian Country by, 142(n6), 146–47 Definition of, 48–50, 89(n76)

768 Federal common law-based status as, 50–53 Identity as, 48–49 Membership in state-recognized tribes, 59–61 Nonreservation, 87 Preferential treatment of, 54–59 Statute-based status as, 53–54 Violent, 145(n19) Indian Arts and Crafts Act (1990), 59 Indian Arts and Crafts Board, trademark, 142(n4) Indian Child Status, Child custody proceedings and, 579–85 Indian Child Welfare Act (ICWA), 571–72, 621 Adult adoptees and, 618–19 Child custody proceedings, 573–76 preferred tribal jurisdiction over, 589–600 state court adjudication of, 60–61, 276 Collateral attack on state court decrees, 614–17 Existing Indian family doctrine and, 576–79 Full faith and credit requirements, 281(n296), 283, 617–18 Indian child status, 579–85 Jurisdiction under, 585–600 State court adjudication and, 600–17 State-tribal cooperative agreements, 657–68 Indian Civil Rights Act (ICRA), 7(n28), 239–40(n86) Civil and criminal jurisdiction under, 44 Exclusionary Rule to, 168(n132) Fishing and hunting regulations, 387 Habeas corpus applications in, 186–87 Post-Martinez federal court enforcement, 324–26 Provisions of, 316–22 Restoration of tribal sovereignty under, 175–85 Retained tribal authority in, 188–89 Santa Clara Pueblo v. Martinez, 322–24, 618(n169) Tribal court application of, 327–30 Tribal membership, 322–24 Tribal sovereignty and authority under, 177– 85, 239–40(n86), 316(n137) Indian Claims Commission (ICC) Alaska Natives, 83–84 Land acquisition and, 526, 528(n107) Purpose of, 82–83 Suits by eastern tribes, 84–88 Water rights, 346(n105) Indian Claims Commission Act, 82, 83 Alaska Natives and, 83–84 Eastern seaboard land claims, 84–88 Land acquired under, 526 Indian Commerce Clause, 1, 9(n40), 63, 81(n12), 287(n5), 288 Congressional exercise of, 9–11 Delegation of federal power under, 174 Eleventh Amendment and, 230(n30)

Index IGRA and, 560 Restoration of inherent tribal authority under, 176(n56) State regulatory authority and, 210(n278), 211–12 State and local taxation and, 210(n278), 211–12, 499 Indian Country See also Allotments; Fee Lands; Reservations; Trust Lands Child support issues in, 283–84 Civil adjudicatory authority in, 197–99 Civil regulatory authority in, 169–70, 172–85 Criminal conduct within and without, 163–64 Criminal jurisdiction in, 151–53, 160–61, 164–68 juveniles, 149–50 under Public Law 280, 43, 44, 153–58 state, outside of Public Law 280, 158–59 Crime in, 141–61 Indian-against-Indian, 146–47 Juvenile, 149–50 Defined, 68–69 Dependent communities in, 71–73 Fee land in, 92–93(n98) Fishing and hunting in, 386–92 Full faith and credit requirements, 283–84 Gaming in, 510–11 IGRA requirements, 539–67 Pre-IGRA regulations, 511–18 Hunting and fishing in, 201–4 Incidental law enforcement activities, 164–68 Indian Reorganization Act and, 42–43 Land claims settlement lands, 78 Liquor control laws and, 32(n155), 161–63, 172–73, 219(n327) Mineral leases in, 105–9 Mining in, 242–44 Non-Indian businesses on, 244–45(n114) Public Law 280 jurisdiction in, 153–58 Reservation lands allotted in, 69–71 Reservations as, 69–71 Reservation status in, 33–34 Search and seizure laws on, 257–58 State adjudicatory jurisdiction over, 265–79 State authority in, 10(n43), 170(n6), 210–24 environmental regulation, 434–36 motor vehicle taxation and regulation, 211–16 State power in, 261(n204) Surplus land acts, 93–94 Trade and Intercourse Acts Period, 31–32 Trust allotments in, 74, 75 Trust lands in, 74–78 U.S. Congress and, 42–43 Water boundaries, 97–98(n129) Indian Energy Resources Act (1992), 107–8 Indian Energy Resources Development Program, 108

Index Indian Family Doctrine, Child custody and, 576–79 Indian Financing Act (1974), 46 Indian Gaming Regulatory Act (IGRA), 25(n117), 28(n130), 47, 67, 91(n89), 144(n11), 172(n22), 306, 510–11, 518, 621 Acquisition of trust land and, 90–91 Civil and criminal enforcement authority, 567–70 Class I gaming, 531–32 Class II gaming under, 532–38, 539–48 NIGC responsibilities, 544–48 ordinances, 542–44 Class III gaming under, 227(n13), 510, 514, 538, 540(n161), 548–67 good-faith litigation under, 559–67 Contracts, 302(n81) Cooperative agreements and, 641(n81) Federally recognized tribes and, 67 Geographical scope, 519–31 Indian lands under, 523–24, 526–28 NIGC responsibilities under, 544–47 Personal injury suits and, 293(n47) Preemption based on, 505(n295) Sovereign immunity in, 300, 313–14(n132) State court jurisdiction, 268(n238), 273– 74(n256) State government and, 230 State-law conditions for, 539 State liability under, 230 State taxations, 506–7(n306) Tribal-state compacts, 552–67 Indian Health Service Breach of trust, 16(n83) Contracts with, 46(n235) Medical malpractice and, 264(n217) Indian Land Consolidation Act, 77, 89(n77) Amendments to 122–24 Indian Lands, IGRA and, 523–24, 526, 539–67 Indian Law Enforcement Reform Act, 623(n14), 634–35, 656 Indian Law Enforcement Reform Assistance Act, 45(n231) Indian Mineral Development Act (1982), 13–14, 107 Indian Mineral Leasing Act (IMLA) Secretary of the Interior’s breach of fiduciary relationship under, 13–14 State regulation and, 480 State taxation of, 480–81 Tribal severance tax, 465 Indian Nonintercourse Act, 104–5, 229(n22), 486(n153) Indian Oil Leasing Act, 479 Indian Preemption Doctrine, 216(n310), 217(n317), 247 Indian Preference Act, 19(n94) Indian Reorganization Act (IRA), 39–47, 121(n333), 318(n144)

769 Charters of incorporation and, 308–13 Employment preference for Indians established in, 19–20, 55 Farm leases under, 110 Fractional property interests under, 120–25 Gaming issues and, 521(n65) Grazing leases and, 112 Indian status defined in, 53–54 Indian tribes or bands defined under, 226 Land acquisition and, 89–90 Mineral leasing and, 106 Miscellaneous leases under, 114 Oil and gas leasing and, 465 Property rules, 97–98(n129) Purpose of, 39–40 Reservation lands under, 70, 77 Secretary of the Interior and, 43, 381(n331) State regulatory authority and, 214 State sales taxes and, 498 Timber resources, 116(n285), 117 Tribal authority under, 624 Tribal autonomy under, 44–45 Tribal self-government and, 39–42 Tribal status under, 43–44 Trust lands and, 76, 77, 78 U.S. Congress and, 42–43 Indian Right-of-Way Act, 119, 120 Indian Self-Determination Act, 300(n71) Indian Self-Determination and Education Assistance Act (ISDEAA) (1975), 16(n83), 20(n98) Contracting and services under, 44–46 Law enforcement services under, 167(n128), 635(n71) Preemption of sales taxes, 490(n183), 498 Sovereign immunity and, 300(n71) Indian Self Financing Act, 498 Indian title, 79, 80(n3) Indian Tribal Economic Development and Contract Encouragement Act (2000), 312, 313(n125) Indian Tribal Energy Development and Self-Determination Act (2005), 108 Indian Tribal Government Tax Act, 47 Indian Trust Doctrine, 11–23 Indian Trust Accounting Statute, 23(n109) Indian Tucker Act, Breach-of-trust damages under, 11–23 Inferences. See Presumptions and Inferences Infringement, test of in Williams, 265–66, 267–68(n235) Inheritance, Fractionated property ownership and, 120–25 Insurance Coverage, Tribal, 642–43 Insurance companies Bad faith settlements, 256–57(n177) Enforcement of tribal court default judgments, 233–34

770 Intent Clean Water Act, scope of tribal jurisdiction under section 518, 443–44 Surplus land acts, 93–94 Interest-Balancing Test, as Defined in Bracker, 223 Intermarriage, 49(n6) International Regulation for the Convention of Whailing (ICRW), 421–22 Internal Revenue Service, 142(n7) Internal Revenue Technical Advice Memorandum, 47(n239) Internet, Agency records and, 23(n108) Interpretation of Cases and Statutes. See Construction and Interpretation Interstate Commerce Clause, 7(n27), 183(n113) Interstate Compact for Placement of Children, 594–95(n82) Iowa Child welfare in, 572(n12), 580(n34), 600– 601(n106) Gaming compacts, 554(n229) Iowa Mutual Insurance Co. v. LaPlante, 243(n110), 265(n220) Deferral doctrine in, 233–34, 239, 240, 242, 244, 245, 247–48 State court jurisdiction issues in, 272–73 Tribal jurisdiction issues in, 242, 246, 250, 252 Iowa Supreme Court, Child identity and custody, 60–61 IRA. See Indian Reorganization Act Iroquois Confederacy, 295(n51) Irrigation, 333 See also Water and Water Rights Farm leases and, 110 Fisheries and, 358(n193) General Allotment Act, 380(n328) Reservation, 333, 643–44 Reserved water rights and, 348–49, 359(n195), 360, 374–75 ISDEAA. See Indian Self-Determination and Education Assistance Act Isleta Pueblo, Water quality standards, 445–46 Jenkins Act, 503(n278) Jicarilla Apache Tribe/Reservation Oil and gas leases, 465, 480–81 Timber harvesting on, 116(n285) Johnson Act, 513–14 Class II gaming and, 535–37 Joint State/Tribal Agreements. See Cooperative Agreements Judges, Selection of tribal, 227–28(n14) Jurisdiction See also Choice of Law Breach of trust obligations and, 11–23 over Child custody proceedings, 585–600

Index Civil-adjudicatory federal, 225–49 Public Law 280 jurisdiction, 273–79 state, 265–79 tribal, 197–99, 249–65 Civil regulatory, 158(n92), 169–70 exhaustion and deferral doctrines and, 231–49 traffic laws and, 157–58 tribal adjudicatory, 201–4 Cooperative agreements and, 638 Criminal, 160–61, 319 Double Jeopardy Clause and dual sovereignty rule, 319–20 over nonmember Indians, 10(n42) state jurisdiction outside of Public Law 280, 158–59 state jurisdiction under Public Law 280, 153–58, 278–79 tribal, 52(n28), 212(n284) Federal civil adjudicatory, exhaustion and deferral requirements in, 231–49 Federal courts, 145(n116) Indian Civil Rights Act (1968) and, 44 Indian Reorganization Act, inclusion of tribes in state jurisdictional systems, 43 Public Law 280 transferring jurisdiction to state, 43, 44 State adjudicatory, 265–79 State government, 539–44 Jury Trials, Right to, 317 Just Compensation Clause (Fifth Amendment), 10 Juveniles, Criminal jurisdiction over, 149–50, 156(n83) Kanosh Band of the Paiute Indian Tribe, Hunting and fishing agreement, 650 Kansas Burials and human remains in, 129(n405) Cooperative agreements, 622(n10) Criminal jurisdiction in, 155(n76) Indian gaming in, 522–24, 526 Motor fuel taxes in, 223–24, 489–94 Motor vehicle licensing, 222 Taxation in, 471(n50) Water rights, 334(n17) Kennewick Man, and NAGPRA, 128(n391), 130–32 Kidnaping/predatory behavior, 220(n332) Kingsley Bend Effigy Mound Site, 660 Klamath River Basin, Fisheries, 375–76, 408–9 Klamath Tribe/Indian Reservation Freedom from federal government role and, 43 Water rights, 21(n100), 374, 375–76 Kootenai Indian Tribe, 656

Index Labor Management Relations Act (LMRA), 27–28(n129), 28–29 Labor practices, 28–29 Labor Relations Provisions in gaming compacts, 565 in tribal enterprises, 29(n135) Lac Courte Oreilles Band of Lake Superior Chippewa Indians, breach of trust claims, 17(n85) Lacey Act, 387–88, 424–25 Lacy Act, 142(n7) Lake Mead National Recreation Area, 337(n42) Lake Traverse Indian Reservation, Disestablishment of, 92(n93), 169(n3) Land See also Allotments; Fee Lands; Land Claims; Land Ownership; Trust Lands Aboriginal title to, 80–81 Acquisition of, 90 Acquisition for gaming, 90–91, 527–31 Alienation of, 32, 88(n68), 209 Claims for, 82–88 Condemnation of, 119–20 Conveyance of, 3–4 Conveyance of leased, 205–10 Creation of trust, 76 Farming leases, 109–11 Federal, 461(n295) Federal management of, 11–23 Fractional property interests and, 10(n41), 120–25 Grazing leases, 111–12 Hunting and fishing rights, 401–2 Indian-owned outside of Indian country, 255(n168) Indian Reorganization Act and, 41(n205), 89–90 Jurisdiction over tribal, 1–3 Leases, 89(n76), 104–25, 209 Licenses for entry and use of, 114–15 Mineral rights and patents, 87(n58) Mineral leasing on unallotted, 106–7 Natural resource management on, 11–14, 104–25 Nonmember acquisition of, 362 Occupancy rights on, 1–5, 79–91 Public, 401–2 Purchase of former reservation, 485–86 Removed from reservations, 93–94 Rights of access, 402–3 Rights-of-Way, 118–20 Sales of, 37–38, 262–63 School, 81(n13) Secretary of the Interior and, 75(n167), 361 Settlement on reservation, 68(n124) State enabling acts, 277–78(n274) State taxes on real property, 484–86 Surplus land of, 92

771 Surplus reservation, 37–38, 93–94 Timber resources on, 115–18 Transfer of, 360–61 Tribal, 466 Tribal court jurisdiction over, 205–8 Tribal zoning authority over nonmember, 192–94 U.S. authority over, 3 Water rights, 368–69(n251) Land claims Alaska Natives, 83–84 Eastern seaboard, 84–88 Gaming and, 527–28, 541–42 by Individuals, 87–88 Treaty-associated, 227 Land Claims Settlement Act, 299(n68) Land Claims Settlement Lands, 78 Landfills, Tribal regulation of, 452–54. See also Solid Waste Disposal Land Grants, 89. See also Land; Trust Lands Land Ownership See also Aboriginal Rights; Allotments; Fee Lands; Land; Trust Lands Dependent Indian communities, 71–73 Fee patents and, 91–92 General Allotment impacts on, 38 Hunting and fishing and, 401–2 Jurisdiction over, 6–7 Navajo-Hopi claims, 295(n51) Right to occupy, 1–2 State vs. tribal jurisdiction and, 1–2 Title, 81 Tribally owned, 482–83 Trust lands, 14–17 Land Use Aboriginal rights, 79–88 Hunting and fishing, 401–2 Leases and, 114, 191–92 for Religious activities, 133–40 Tribal authority over, 195–96 Tribal ordinances, 231(n37), 429–30 Water quality issues, 440(n110) Zoning powers, 192–94, 253 Law Enforcement Incidental, 164–68 ISDEAA mandate, 45 State-tribal cooperative agreements, 167(n128), 633–35, 656–57 Tribal, 27–28(n129) Lead Mining, Leases, 106(n190) Leases, 89(n76) Farm, 109–11 Fractional property interests and, 120–25 Grazing, 111–12 Indian Nonintercourse Act and, 104–5 Land, 205–10, 361 Long-term, 113 Mineral, 105–9 taxes on, 478–82

772 for Miscellaneous uses, 112–15 Oil and gas, 21–22(n101), 191–92, 476 Rights-of-Way, 118–20 Termination and, 89(n76) Timber harvesting, 115–18 Utilities, 227(n13) Water rights and, 361 Liability Insurance, gaming, 306(n100) Licenses and Permits, 171 for Allotment use, 114–15 Liquor, 162–63 Motor fuel taxes and, 495 Motor vehicle, 223–24 Traders, 162–64 Liquor Delegation of congressional authority to control, 172–73 under General Allotment Act, 37 House Concurrent Resolution 43, 108 On-reservation, 219 Prohibition of introduction of in Trade and Intercourse Acts, 32(n155) Regulatory authority over, 95, 215–16(n306) State and federal authority in Indian country in regard to, 161–63, 213(n289), 219(n327) State regulation of, 300(n73) Taxation of, 496–97, 653 Livestock Grazing leases, 111–12 Highway rights-of-way, 256–57(n177) Loans, Funds and programs, 46(n238) Logging. See Forests and Timber Louisiana Gaming in, 545–46(n184) Tribes recognized by, 67 Lumbee Tribe, 148(n34) Lummi Indian Nation/Reservation Cultural sites, 660 Fishing rights, 416(n239) Motor vehicle fuel taxes, 654–55 Water rights, 342(n80), 351 McCarran Amendment State adjudication of reserved rights and, 366, 367–76 State administration of water rights, 363(n214), 376–80 Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act), 419–20 Maine, Child support issues in, 283 Maine Indian Claims Settlement Act (1980), 78(nn186, 189), 85(n46), 171(n10), 218(n323), 299(n70), 435(n68), 541, 542 Major Crimes Act, 141, 147–49, 164(n115) Double Jeopardy Clause and, 188 Exception to sovereign immunity in, 288(n8) Federal Juvenile Delinquency Act and, 150 Jurisdiction under, 160 Public Law 280 and, 148–49, 155, 156

Index Makah Tribe Fisheries regulation and, 419–20 Marine Mammal Protection Act, 393(n72), 421 Whaling regulations, 393(n72), 416(n236), 421–22 Marijuana Possession of, 145(n18) State laws concerning, 157(n89) Marine Mammal Protection Act (MMPA), 385(n11), 393(n72), 416(n236), 421 Marriage Illegal aliens, 143(n8) State court jurisdiction over, 270(n241) Tribal authority regarding, 188(n143) Tribal membership and, 322–24, 399 Marshall, John in Cherokee Nation v. Georgia, 1–2 discovery doctrine and, 4(n14) in Johnson v. McIntosh, 3 on Tribal autonomy, 33–34 Marshall Trilogy Principles and Development of modern Indian law, 1–6 Federal common law application of, 6–29 Indian canons of construction, 24–29 Indian trust doctrine (fiduciary responsibility), 11–12 breach of, 12–23 Mashantucket Pequot Indian Claims Settlement Act, 73(n161), 75(n168) Mashantucket Pequot Indian Reservation/ Tribe, 55(n76), 63(n96) Massachusetts Sovereign immunity, 304(n91) Tribes recognized by, 67 Massachusetts Indian Land Claims Settlement Act (1989), 78(n186), 85(n46), 299(nn68, 70), 541–42(n166) MBTA. See Migratory Bird Treaty Act Mediation, of Cooperative agreements, 639–40 Medicaid, 659–70 Medical Malpractice Government employee negligence and, 204(n245) Indian Health Service and, 264(n217) Tribal jurisdiction over, 256–57(n177) Medicine Creek Treaty, 401(n128) MegaMania Machines, 533–34 Memoranda of Understanding County-tribal, 628 State-tribal, 660 Menominee Tribe/Reservation, 25(n116), 66(n111) Freedom from federal government role of, 43 Hazardous waste agreement, 648–49 Hunting and fishing rights, 66(n111) Murder and kidnapping, 164(n115) Restoration of status, 44 Timber harvesting, 116(n285)

Index Mescalero Apache Indian Reservation/ Tribe, Hunting and fishing regulation in, 390, 434 Metlakatla Indian Community, 84(n38), 154, 156(n89), 409(n187) Miami Tribe, Gaming, 522–24 Michigan, Cooperative agreements, 622– 23(n10) Miccosukee Land Settlement Act (1997), 85(n46) Miccosukee Tribe, 21(n100) ADA, 29, 313–14(n132) Criminal jurisdiction in, 155(n76) Michigan, Gaming, 537, 554–55(n229) Micmac Tribe, Land claims, 299(n70) Migratory Bird Treaty Act (MBTA), 385(nn7, 9), 423–24 Military, and Reservation establishments, 352–53(n154) Military posts, Restoration of, 14 Military Reservations, Motor fuel taxation on, 495 Milk River, Water rights, 335 Millennium Agreement, 622 Mineral Lands Leasing Act, 479(n101) Minerals and Mining Federal adjudicatory authority, 227(n13) Federal government trust responsibilities in regard to leases for, 13–14, 16(n83) Fractionated property interests and, 125 Habitat protection and, 415 Indian Mineral Leasing Act, 13–14, 480 Land status and, 87(n58) Leases, 16–17(n84), 105–9, 325–26(n189) Nontribal corporations, 199(n209) Omnibus Indian Mineral Leasing Act, 106–7, 214 Royalties for, 108–9, 289 Sacred sites and, 140(n508) SMCRA, 460–63 State taxing authority, 478–82 Tribal taxation of, 242–44 Water rights and, 334 Minerals Management Service, 108 Minimum Internal Control Standards (MICS), 545, 548–49(n197) Minnesota Child welfare, 571(n3), 657–68 Domestic relations, 270(n241) Gaming compacts, 554(n229) Public Law 280 in, 154 State agreements with tribes, 55–56(n48) State criminal jurisdiction, 157(n89), 276– 77(n270) Minnesota Human Rights Act, 244(n114) Minors. See Adoption Proceedings; Child Custody Proceedings; Foster Care Proceedings; Parental Rights

773 Mississippi Tidelands ownership in, 98–99(n134) Water rights in, 334(n17) Mississippi Choctaw Indians, trust lands, 70–71 MMPA. See Marine Mammal Protection Act Mohegan Nation (Connecticut) Land Claims Settlement Act, 78(n186), 85(n46) Mohegan Nation Land Claim Settlement Act, 75(n168) Money laundering, 143(n8) Montana, 369(n253) Appropriation doctrine, 334(n17) Child welfare, 571 Cooperative agreements, 626, 647–48, 655, 656, 658, 659–60 State-Tribal Cooperative Agreements Act, 626 Criminal jurisdiction in, 159(n95) Department of Public Health and Human Services, 657 Environmental regulations, 430 Fish and wildlife agreements, 652 Food program, 658 Groundwater in, 356 Health programs, 659–60 Hunting and fishing rights, 411 Liquor regulations, 161(n111) Social services, 658 State civil adjudicatory jurisdiction in, 267(n235) State taxes on nontribal property, 487 State taxes on personal property, 483 Tribes recognized by, 67 Water rights in, 332(n7), 335, 342(n81), 356, 364–65, 375, 381(n331), 635(n73), 655 Montana v. United States, 39(n195), 93(n101), 100(n142), 172(n25), 256 Environmental regulations in, 429 Hunting and fishing regulations, 190–91, 389(nn40, 43, 44), 390–91 Ownership of waterways in, 102–3 Standards and cases derived from, 191–210 Taxation authority in, 465–66, 468 Tribal government authority in, 186, 190–91, 218, 254, 258–59, 261(n204), 262, 265, 381– 82, 429, 440–41, 465–66 Motor Vehicles Fuel taxes, 210(n278), 219(n326), 223–24, 230–31(n34), 654–55 Jurisdiction over accidents, 147(n30), 197–99, 233–34, 242 Jurisdiction over violations involving, 145(n18), 146–47(nn24, 25), 155(n77), 157(n89), 158(n91), 159–60(nn96, 101), 167–68(n131), 254–55, 256–57(n177) Law enforcement and, 220–21 Licensing, 223–24 Registration laws, 484

774 State taxes on, 483–84 Tribally issued registration and titles, 221–22 Murder cases, 55, 147, 158(n33), 159 in Indian country, 164(n115) and Indian identity, 50 Muwekma Ohlone Tribe, Tribal recognition procedures, 65(n102) NAGPRA. See Native American Graves Protection and Repatriation Act Narragansett Tribe, 53(n33), 78(n188), 85(n46) National Environmental Policy Act (NEPA), 524–25(n91) See also Environmental Protection Agency Land use for religious purposes, 138–39 Miscellaneous leases, 114 Reserved water rights in, 347(n113) Treaty rights and, 21(n100), 91(n90) National Farmers Union Insurance Cos. v. Crow Tribe, 186 Exhaustion doctrine of, 232–34, 236, 237, 238–39, 239–40, 241, 244, 245, 248 Tribal civil adjudicatory jurisdiction in, 251– 52, 261(n205) Tribal jurisdiction in, 242, 243(n109), 246–47, 249 National Forest Management Act (NFMA), 139 National Historic Preservation Act (NHPA) 21(n100) Protection of religious sites, 138–39, 140(n508) National Indian Forest Resources Management Act (NIFRMA), 117–18 National Indian Gaming Commission (NIGC), 302(n81), 518 Civil and criminal enforcement authority, 267–70 Land claims settlements and, 541 Ordinance requirements, 542–44, 548–49 Responsibilities of, 524, 544–47 National Labor Relations Board (NLRB), 27–28(nn129, 131), 29(n135) National Marine Fisheries Service, 419 National Parks, Hunting and fishing rights, 402 National Park Service, Sacred sites, 140(n508) Tribal standards more stringent than EPA, 439(nn95, 97, 103) Water quality standards, 442–43, 446 Native Alaskans. See Alaska Natives Native American Church (NAC), Use of peyote in, 56(n49) Native American Graves Protection and Repatriation Act (NAGPRA), Treatment of human remains and funerary objects under, 127–33 Native Technical Corrections Act, 40(n200)

Index Natural Resources See also Fishing, Fisheries; Hunting and Fishing; Fish and Wildlife; Oil and Gas Development; Oil and Gas Leases; Water and Water Rights Allocation of using “fair share” standards, 405–9 Coal resources, 13–14, 460–63 Cooperative agreements regarding, 631–32, 649–53 Fisheries, 20(n98) Indian Nonintercourse Act and, 104–5 Leases regarding, 104–25 Management of under General Allotment Act, 11–12 State taxes on, 478–82 Navajo-Hopi Rehabilitation Act, 14(n71) Navajo-Hopi Settlement Act, 300(n71) Navajo Nation Child Support Enforcement Program, 659 Navajo Tribe/Nation/Reservation, 26(n124) Bad-faith settlements, 256–57(n177) Child welfare agreements, 657, 659 Coal leases, 13–14 Comity with tribal courts, 281(n296) Fractionated land interests, 125(n372) Grazing leases, 112(n248) Gross receipts taxes, 503–4 Hopi land claims, 295(n51) Hunting and fishing righs, 650 Indian Reorganization Act and, 41 Leases, 112(n252) Memorandum of understanding with San Juan County, 628 Mining leases, 325–26(n189) Retained tribal authority, 188 Sacred sites, 139(n505) Taxation by, 236(n67), 467 Trading companies on, 200–201 Navigable Waters See also Water and Water Rights Clean Water Act and, 442–43 Equal footing doctrine principles and, 98–100 Ownership of, 97–104 Reservations, conveyance of beds and banks of watercourse, 100–104 Nebraska Child welfare, 606–7(n125), 616(n161) Cross-deputization agreement, 656–57 Human remains laws in, 129(n405) Public Law 280 in, 154 Tribal taxation in, 471(n50) Water rights in, 334(n17) Nebraska Indian Child Welfare Act, 606– 7(n125), 16(n161) Negotiation Cooperative agreements between tribes and states, 636–43 Tribal-state gaming compacts, 549–67

Index Nelson Act, 485 Nevada Appropriation doctrine, 334(n17) Cooperative agreements, 626(n26) Dependent Indian communities in, 71(n142) Law enforcement in, 221 Water rights in, 377–78, 379 Nevada v. Hicks, 164(n117), 199, 213(n289), 241(n93), 389(nn42, 43), 390(n53), 634(n67), 638(n77) Tribal court jurisdiction in, 201–4, 236, 237, 238, 245–46(n118), 250–51(n144), 257–61, 263–64(n216), 432–33 and Williams self-governance standard, 217–18 New Jersey, Tribes recognized by, 67 New Mexico Appropriation doctrine, 334(n17) Breach of written contract actions, 294(n48) Child support agreements, 659 Cooperative agreements, 622(n10), 626(n26), 659 Environmental regulations in, 434 Gaming in, 554 Gross receipts taxes in, 503–4 Law enforcement in, 167(n129) Oil and gas taxes in, 476 Sacred sites and repatriation in, 636(n75) Tribal self-government and, 267–68 Water quality standards, 446 Water rights, 336–37, 348–49, 353, 370(n266), 643, 644 Wildlife resources in, 213(n290) New Mexico Interstate Stream Commission, 644 New Mexico v. Mescalero Apache Tribe, 213(n289) Hunting and fishing rights and, 386(n18), 388(n34), 390, 391(n57), 392(n63) State regulation of environmental matters in, 434, 435 State and federal jurisdiction in, 219(n325), 222, 517 Water rights, 353(n155) New Mexico Indian pueblos, Winters doctrine and, 336–37 New Millennium Agreement, 622 New York Criminal jurisdiction in, 153(n76) Governance and tribal sovereignty, 86 Indian Reorganization Act, 42 Liquor taxes in, 496(n231) Taxation in, 496(n231) Tribes recognized by, 67, 68(n124) Nez Perce Indian Water Rights Settlement, 635–36(n73) Nez Perce Tribe/Reservation, 125(n373) Water rights, 332(n7), 635–36(n73) NFMA. See National Forest Management Act

775 NIFRMA. See National Indian Forest Resources Management Act NIGC. See National Indian Gaming Commission NOAA Fisheries. See National Marine Fisheries Service No Child Left Behind Act, 54(n39) No Name Creek, 382 Nondelegation doctrine, 91(n89) Non-enclave laws, 142–43 Non-Indians Adjudicatory authority over, 247(n126) Business relations on Indian lands, 244– 45(n114) Defined, 212 and Fisheries, 407 Hunting and fishing on reservations, 434 Jurisdiction over, 253 on Indian land, 215 Reserved water rights, 337–39 Sale of fee land, 205–10 State court jurisdiction over, 268–72 Tribal court authority over, 238, 247(n126), 252–53(n155), 254, 284(n309) Nonintercourse Act, 62(n90), 65, 65–66(n104), 85(n44) Transfer of water rights, 360–61, 645 Nonmembers Alienability of land, 209 Cigarette sales to, 475 Civil regulatory authority over, 170, 203–4 Congressional and tribal regulation of, 172–85 Criminal jurisdicitonover, 319 Domestic relations, 270(n241) Drug violations by, 256–57(n177) Hunting and fishing regulations, 190–91, 389–91, 430–31, 651 Land acquisition, 362 Motor fueal taxes and, 487–88 Rights under ICRA, 325–26 and Sovereign immunity doctrine, 292(n41) State regulation of, 211–18 State taxation of, 473–78, 479 Taxation of, 229(n21), 487–88 Taxation of property of, 487 Tribal civil adjudicatory jurisdiction over, 251–52, 256–57(n177), 267–73, 286 and Tribal adjudicatory proceedings, 244 Tribal authority over, 206–10, 217(n316), 321(n164) Tribal regulatory authority over, 189–94, 236–37, 253, 465–66 Tribal services for, 197(n195) Tribal sovereignty over, 195–96 North Carolina, Tribes recognized by, 67 North Dakota, 369(n253) Cooperative agreements, 627, 652–53 Criminal jurisdiction in, 155(n76), 166(n127)

776 Gaming in, 537 Tribal self-government in, 204(n245) Water rights in, 334(n17) Northern Arapahoe, Water rights, 342 Northern Band of the Shoshone Nation, 650 Northern Cheyenne Indian Reserved Water Rights Settlement Act, 171(n10) Northern Cheyenne Tribe, Cooperative agreements, 635(n73), 655, 658 Northern Mariana Islands, Sovereignty, 178 Northern Pacific Halibut Act, 420 NPDES. See National Pollutant Discharge Elimination System Nuclear fuel rods, shipment of, 27(n129), 460 Oahe Dam and Reservoir, 194 OCCA. See Organized Crime Control Act Occupancy Rights Aboriginal title-based, 78(n188), 80–88 Nonaboriginal title-based, 88–91 Occupational Safety and Health Act, 27(n128) Office of Hawaiian Affairs, Election of trustees to, 57–58 Office of Indian Energy Policy and Programs, 108 Office of Surface Mining (OSM) and Reclamation and Enforcement, 427 SMCRA regulations and, 427, 461–63 Officers and Agents of Tribe, Sovereign immunity, 148(n32), 313–15 Ohio, Tribes recognized by, 67 Oil and Gas Development Alaska Native Claims Settlement Act, 83–84 Arctic Slope, 83 Cooperative agreements, 652–53 Environmental protection, 439(n103) Habitat protection, 412(n212) Pipelines, 412(n212) State services provided in, 213(n290) Oil and Gas Leases, 106(n190), 109 Breach of trust in, 16(n83) Income from, 507(n309) State taxes on, 476, 478–82 Tribal jurisdiction over, 235–36(n61) Tribal authority to impose severance taxes on, 465 Tribal taxation of, 191–92 U.S. government trust responsibility in, 21–22(n101) Oil and Gas Reserves, 105 Oil and Gas Rights, 465. See also Minerals and Mining Okanogan Highlands Alliance, 21(n100) Oklahoma Agricultural leases in, 111 Child welfare in, 372(n11), 577(n27), 593– 94(n80), 597(n89) Cigarette sales taxes in, 501

Index Construction contracts, 305 Cooperative agreements, 622(n10), 626(n26) EPA programs in, 438(n89) Gaming in, 214(n24), 531(n119) General Allotment Act, 35–36(n175) Indian lands in, 526 Mineral leases in, 106(n190) Motor vehicle registration in, 224(n365) Taxation in, 69(n128), 479(n101) Tribal courts in, 281, 308–9(n111) Water rights in, 334(n17), 635–36(n73) Oklahoma Uniform Arbitration Act, 305 Oliphant v. Suquamish Indian Tribe, 151(n54), 152(n62) Habeas relief in, 186–87, 261(n205), 325 Inherent sovereign powers of, 176(n51), 179, 183, 187 Jurisdiction over non-Indians, 254(n161) Tribal court jurisdiction, 251, 254(n161), 284(n309) Olympic National Park, Hunting in, 385(n10), 402(n132) Omnibus Indian Mineral Leasing Act (1938), 106–7, 214 Oneida Indian Nation, Tribal land and sovereignty, 85–86 OPA. See Oil Pollution Act Oregon Cigarette taxes, 655 Class III gaming in, 550(n205) Clean Air Act, 451(n197) Cooperative agreements, 660 Criminal jurisdiction in, 155(n76) Government-to-government relations, 621–22 Off-reservation hunting and fishing rights, 392–93, 402 Private land in, 402 Public Law 280 in, 154 Water rights in, 334(n17), 363, 370, 371–72 Youth programs, 659 Oregon Parks and Recreation Department, 660 Oregon Youth Authority (OYA), 659 Ore Processing Plants, cleanup of, 435, 457–58 Organized Crime Control Act (OCCA), Gaming, 517 Origins of Federal Indian Law Policy. See Historical Background Orr Water Ditch litigation, 358–59(n194), 360 Osage Indian Mineral Reserve, UIC standards and, 448 Osage Tribe, Mineral leases, 16–17(n84), 105(n188), 106(n190), 479(n101) OSM. See Office of Surface Mining and Reclamation and Enforcement Outer Continental Shelf, Native claims to, 84, 394(n80)

Index Pacific Salmon Treaty Act, 420–21 Pahranget Lake, Water rights to, 377–78 Paiute Tribe, 344(n96), 650 Parental Kidnapping Prevention Act, 283 Parental Rights under Indian Child Welfare Act, 572, 573 Termination of, 580(n35), 583(n46), 589–600, 601–9 Voluntary proceedings, 610 Passamaquoddy Tribe, 18(n88) Patents, under General Allotment Act period, 35–36, 37(n 183) Patents-in-Fee. See Fee Interests Paternity, State court authority in, 269– 70(n240) Pawn Broker Statutes, 145(n19) Permits. See Licenses and Permits Personal Injury Suits, 293(n47) Gaming, 306(n100) Sovereign immunity and, 300(n73) Pesticides Cooperative agreements regarding, 647–48 EPA regulations for, 454 Peterman Tract, 525(n93) Peyote, Religious use of, 56(n49), 135 Philippines, Sovereignty and independence of, 178, 183 PIA. See Practicably Irrigable Acreage Standard Pitt River Indians, 21(n100) Plenary Power Doctrine of, 8–11, 17(n85) Supreme Court assertion of, 24(n111) Point No Point Treaty, 414 Pokagon Restoration Act, 75(n167), 89– 90(n78), 91(n89) Police. See Law Enforcement Political rights, Collective, 2–3(n9) Pollution See also Environmental Regulation and Protection Tribal liability for violating federal control statutes, 458 Water, 442–43 Poplar (Montana), 656 Port Madison Reservation, Leases on, 112(n252) Potawatomi Tribe, Freedom from federal government role of, 43 Potentially responsible parties (PRPs), in CERCLA, 455–57 Practicably Irrigable Acreage (PIA) Standard, 343, 359(n197) Establishment of, 345–47 Future of, 347–50 Preadoptive Placement, 573 Preemption of Fisheries rights, 403–5 IGRA-based, 505(n295), 519(n54)

777 of Oil and gas lease taxes, 476 of State taxes, 477–78 Tribal regulatory authority, 432–33, 434 Preemption Provision, 247 Price-Anderson Act, 238–39 Preferences in Hiring. See Employees and Employers Prescott (Ariz.), long-term lease from YavapaiPrescott Community Reservation, 113 Presidential powers. See Executive Branch Prevention of Significant Deterioration (PSD), Clean Air Act, 451 Price-Anderson Act, 260(n196) Preemption provision, 238–39 Tribal court authority and, 238–39 Property Disputes over, 89(n76) State taxes on nontribal, 487 on personal, 482–84 on real, 484–86 Property Clause Fish and wildlife regulations and, 385 Water rights and, 331(n1), 338(n47) Property Ownership. See Land Ownership; Property Rights Property Rights, 255(n168) Hunting and fishing rights, access as, 402–3 Navajo and Hopi, 295(n51) Reservations and, 89 Reserved water as, 336–37 Trust lands, 10(n41) Property Taxes, and Trust lands, 75–76 Prosecutorial powers, Tribal inherent, 320–21 PSACP. See Puget Sound Air Pollution Control Agency Public Law 280, 141, 148–49 Alaska tribes, 156(n80) Child custody jurisdiction and, 589, 591 Criminal jurisdiction under, 160, 161, 388–89, 516, 569(n307) Drunken driving laws and, 157–58 Gaming and, 511, 512–13, 516–18, 520, 540(n161) Hunting and fishing regulations and, 388–89 and Indian Civil Rights Act, 44 Indian identity and, 49(n7) Passage of, 43 Public policy test, 550(n205) Sovereign immunity issues, 298–99 State adjudicatory jurisdiction under, 218(n323), 266(n228), 273–79 State criminal jurisdiction under, 153–58, 167(n129), 255(n168), 515–17, 633 Taxation under, 483 Tribal laws and customs and, 283 Public Records, Cooperative agreement, 640–41 Public Safety, 114. See also Health and Safety

778 Public Utilities, 197(n195), 243(n93) Public Water Systems (PWS), SDWA standards and, 447–49 Pueblo Indians land ownership, 72, 73–74(n161) Winters doctrine and, 337–39 Puerto Rico, Sovereignty in, 178 Puget Sound Air Pollution Control Agency (PSAPC), 646–47, 652 Pursuit. See Hot Pursuit Puyallup Indian Tribe/Reservation Clean Air Act cooperative agreement, 646–47 Fishing rights, 219(n328) PWS. See Public Water Systems Qualified Expert Witnesses, in Child custody proceedings, 607–9 Quapaw Agency, Mineral resources, 105(n188), 106(n190) Quechan Tribe, 346(n105) Quiet Title, waterways, 101–2 Quiet Title Act, 21(n100), 91, 523 Radioactive Materials, Transporting, 460 Railroads, Tribal jurisdiction to regulate, 241–42 Rainbow Bridge, Protection of, 140(n508) Rastafarians, Non-Indian, Religious practices of, 56(n49) RCRA. See Resource Conservation and Recovery Act Red Lake Reservation, 154, 417 Regulatory Functions, under ISDEAA, 45–46 Regulatory Power. See Administrative Regulations; Cooperative Agreements of State and Tribe; Environmental Regulation; Hazardous Wastes; Hunting and Fishing; Jurisdiction Regulatory Standards, Negotiating, 639 Reindeer herding, 57(n50) Religion Bald and Golden Eagle Protection Act, 422–23 Free practice of, 133–40 Use of controlled substances in, 56(n49), 136(n477) Religious Freedom Restoration Act (RFRA), 135–37 Eagle hunting and, 423 Migratory Bird Treaty Act and, 424 Religious Land Use and Institutional Persons Act (RLUIPA) (2000), 137–38 Removal of Tribes, to West of Mississippi River, 32–33 Reno Indian Colony, 72 Rents and Royalties, Mineral leases. See Leases Repatriation, of Human remains, 127–33 Reservation Air Program (Southern Ute Reservation), 647

Index Reservations See also Indian Country; Surplus Reservation Lands; Trust Lands Assimilative Crimes Act and, 143–44 Boundaries, 87 Cigarette sales on, 27(n129), 219, 497–503, 655 Civil adjudicatory authority on, 197–99, 252–53 Civil jurisdiction of, 588–89 Congressional authority over, 174 Creation of, 25(n117), 40(n199), 352 Diminishment of, 91–97 Equal footing doctrine and, 100–104 Establishment of, 88–89, 333–34, 352–53(n154) Fee patented land on, 484 Fractional property interests, 120–25 General Allotment Act period, 35–39 Hayden-Cartwright Act, 494–95 Hunting and fishing by nonmembers on, 145(n18) Indian country definition, 69–71 Indian Gaming Regulatory Act and, 519–21 Investigation and prosecution of state law violations on, 259 Jurisdiction over non-Indians, 215 Land ownership on, 38 Law enforcement, 220–21 Liquor sales on, 219 for Nontreaty tribes, 81(n17) Purpose of, 339–43 Rights-of-way across, 198 Sales of land on, 92–96 State civil-regulatory authority on, 213(nn289, 290) State taxation of off-reservation real property, 483–84 of reservation or Indian Country land, 482–83, 484–86 Surplus land, 37–38 Timber harvesting, 11–12, 115–18 Trade and Intercourse Acts period, 30–35 Tribal and federal court jurisdiction, 240–41 Tribal regulatory authority on, 466 Trust allotments and, 74 Trust lands and, 74, 77 gaming on, 524–31 Water rights and, 333–34, 337–39, 351 Reserved Rights Doctrine, 333–337. See also Water and Water Rights Reserved Water Rights Compact Commission (Montana), 635(n73) Resource Conservation, State-tribal cooperative agreements on, 631–32. See also Natural Resources Resource Conservation and Recovery Act (RCRA), 27(n129), 427, 629(n45) Hazardous and solid waste disposal programs under, 435, 631 State authority and, 435

Index State government, solid waste management, 451–52 Tribal authority, 452–54 Tribal liability for violation of, 458 Retrocession, under Executive Order No. 11435, 278–79 RFRA. See Religious Freedom Restoration Act Rhode Island Indian Claims Settlement Act (1998), 53(n33), 62(n88), 78(nn186, 188), 78(n189), 85(n46), 219(n327), 294(n48), 299(nn68, 70), 500(n263), 541, 542 Rights-of-way See also Streets, Roads, and Highways Granting and regulating, 118–20 Jurisdiction over motor vehicle accidents and, 197–99, 254–55 Livestock and, 256–57(n177) Treaty provisions, 508 Tribal authority to regulate, 235(n61), 241(n93), 256–57(n177), 325 Utilities, 241(n93) Rio Grande, Water quality standards, 445–46 Rio Grande Compact, 370(n266) RLUIPA. See Religious Land Use and Institutionalized Persons Act Roads See also Highways Rights-of-way, 73(n161) Rocky Boy’s Reservation Food programs, 658 Health programs, 659–70 Liquor laws, 163(n111) Roosevelt County (Montana), 656 Rosebud Reservation, diminishment of, 92(n93) Rosebud Sioux, 16(n83) Royalties Mineral leases, 16–17(n84), 108–9, 289 Oil and gas leases, 16(n83), 480(n109) State taxation of, 480(n109) Rufus Woods, Lake, 651 Rules of Decision Act, 568(n304) Sac and Fox Indian Reservation, 155(n76) Sacred Sites Graves and cultural goods, 126–33 Protection of, 133–40, 636 Safe Drinking Water Act (SDWA), 173(n32), 427, 629(nn44, 48) Sovereign immunity and, 297 Tribal implementation of, 437, 438, 447–49 Safety Concerns. See Health and Safety Sales Taxes, 503–5 on Cigarettes, 27(n129), 497–503, 655 on Liquor, 496–97, 653 on Personal property, 483–84 Salmon Fisheries Cooperative agreement, 649–50, 652

779 “Fair share” allocation, 405–9 Hoopa Valley Indian Tribe, 20(n98), 45(n229), 408–9 Pacific Salmon Treaty Act, 420–21 Salt River Pima-Maricopa Indian Community, Farm leases, 110(n232) Samish Indian Nation, 16(n83) San Carlos Apache Tribe, 21(n100) McCarran Amendment, 368 San Juan County (Utah), Memorandum of understanding with Navajo Nation, 628 Santa Clara Pueblo v. Martinez, 7(nn28, 29), 44, 289(n17) Habeas corpus remedy in, 44 ICRA and, 318(n144), 322–24, 618(n169) Retained tribal authority in, 188–89 Sovereign immunity from suit under, 290, 296–301, 316(n140) Tribal membership under, 7(n29), 322–24 Santo Domingo Pueblo Claims Settlement Act (2000), 86–87(n56) San Xavier Reservation, Farm leases, 110(n232) School Districts Land, 81(n13) State civil authority over, 213(n288) Tribal court jurisdiction over state, 232–33, 237–38 Schools, federal ownership and administration of, 73(n159) SDWA. See Safe Drinking Water Act Search and Seizure, Jurisdiction regarding offreservation actions, 257–58 Search warrants, sovereign immunity and, 10(n42), 299(n70) Secretarial Order on American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (Departments of Commerce and Interior), 418 Secretary of Agriculture ANILCA, 425–26 Timber resources, 118 Secretary of Commerce Endangered Species Act, 417, 418 Fisheries regulation, 419–20 Secretary of Health and Human Services Definition of Indian and, 54 Indian Self-Determination and Education Assistance Act and, 44–45 Secretary of the Interior ANILCA, 425–26 Breach of fiduciary obligations under IMLA, 13–14 Child custody proceedings and, 589, 619 Cooperative agreements and, 167(n128), 624–25 Endangered Species Act and, 417–18 Fee patents, 91–92(n91)

780 Full faith and credit requirements, 283 General Allotment Act period, 35–39 Indian Reorganization Act, 43 Indian Self-Determination and Education Assistance Act and, 44–46 and Kennewick Man, 130–32 Land leases, 361 Land sales, 16(n83) Migratory Bird Treaty Act and, 423–24 Mineral lease approval, 105–6, 125 Mineral resources, 105–6, 108 Miscellaneous use leases, 112–15 Reservation creation, 70 Rights-of-way, 118–19 Timber harvest and forest management, 116–18 Tribal taxing authority, 465 Tribal codes and ordinances, 381(n331) Tribal proprietary interests in water, 380–81 Tribal recognition, 63–65 Tribal self-government and, 40–41 Tribal status and, 65(n101) Trust lands and, 75(n167), 77 Secretary of Transportation, and Hazardous Materials Transportation Act, 459 Self-determination, 248(n133) Congressional authority and, 321(n162), 340 Contract disputes, 46(n237) Cooperative agreements, 622 Tribal, 46 Water rights and, 338–39 Self-governance; Self-government, 27 Ceremonial gaming, 532 Civil adjudicatory authority and, 197–99 Civil nonstatutory adjudicatory jurisdiction, 266–73 Cooperative agreements and, 622 Criminal jurisdiction under, 176, 319–20 Exhaustion and deferral requirements applied to, 232–34 Federal interference with, 233–34 Federal regulations and, 143(n8) Fostering, 248(n133) ICRA and, 316–22 Indian Reorganization Act, 39–40, 41–42 Interference with, 233–34 Proprietary interests in water, 380–81 Protection of, 260–61 Regulatory authority and, 381–82 Residual tribal authority in, 209 Rights to, 176 State adjudicatory jurisdiction and, 267–72 State taxes and, 498–99 Support of, 246(n121) Taxation and, 201 Taxation on nonmembers, 229(n21) Tribal, 39–42, 202–4, 216–18, 233–34 Tribal charters of incorporation, 308–13 Tribal courts and, 256 Williams standard of, 216–18

Index Seminole Tribe, 83(n30) Seneca Nation/Tribe, Mineral resources, 105(n188) Seneca Nation (New York) Land Claims Settlement Act (1987), 78(n186), 85(n46) Separation-of-powers principles, Federal common law and, 176 Services See also Social Services Federal government provision of, 44–45, 172 Sewer Services, 90(n80) Sex Offender Registration and Notification Act, 144(n13) Sexual offenders Registration and residence of, 144, 158(n92) State adjudicatory jurisdiction over, 276–77 Shellfishing, 408(n180), 631(n59) Shoshone-Bannock Tribes, Reserved water rights, 345 Shoshone Indian Tribe, 16(n83), 342, 650 Sisseton Sioux Tribe, 83(n30) Sisseton-Wahpeton Sioux Act, 125(n372) SMCRA. See Surface Mining Control and Reclamation Act, 427 Smithsonian Institution, Human and cultural remains, 126–27 Snake River, Fishing rights in, 401 Snake River Water Rights Act, 635–36(n73) Snohomish Reservation, 112(n252) Snoqualmoo Indians, 410(n195) Snyder Act, 16(n83), 54(n36) Social Services Dependent Indian communities and, 71–72 State-tribe cooperative agreements for, 627– 28, 657–60 Soldiers’ and Sailors’ Relief Act, 505(n296) Solid Waste Disposal, 197(n195) Cooperative agreements, 630–31 Environmental regulations and, 451–54 Leases for, 115(n253) South Carolina, Tribes recognized by, 67 South Dakota, 369(n253) Child welfare, 571(n3) Child custody issues, 270(n241) Conveyance of land to, 129(404 Cooperative agreements, 622(n10) Criminal jurisdiction in, 164(n115) Gaming, 537 Human remains issues in, 129(nn404, 405) Hunting and fishing regulations, 194–97, 392(n63) ICRA application in, 327–28(n193) Sales of leased land, 205–10 State motor vehicle taxes in, 483–84 State personal property taxes in, 483–84 and Tribal courts, 282(n297) Waste management in, 454(n224) Water rights in, 334(n17)

Index Southern Ute Tribe/Reservation Air quality control, 647 Hunting and fishing agreements, 651 Oil and gas regulation on, 439(n103) Water rights agreements, 643–46 South Fork Band of the Te-Moak Tribe of Western Shoshones, Reserved water rights and, 307(n105) Sovereign Immunity, 29(n136) Compulsory process, 300–301 Cooperative agreements and, 641–42 Current application, 296–315 Doctrinal foundation of, 288–315 Extraterritoriality of, 293(n47), 294 Federal immunity from, 18–19 HMTA regulations and, 459–60 Hunting and fishing rights, 25(n116) Indian tribe-specific statutes, 298–300 Search warrants and, 10(n42) State taxes and, 501 Tribal, 235(n61), 256–57(n177), 287–88 Tribal officers and, 148(n32), 313–15 Tribal waivers of, 301–13 Waiver of, 304–15 Water rights and, 367–68 Sovereignty See also Sovereign Immunity; SelfGovernance, Self-Government Congressional plenary powers and, 8–11, 63(n95), 171(n9) Cooperative agreement negotiation, 638 Criminal jurisdiction and, 165(n119) Extraconstitutional status and, 7–8, 287–88 Labor relations and, 28–29 Land and, 93(n100) under Marshall Trilogy principles, 5–6 Navigable waters, state’s interest under equal footing doctrine, 100 Nonmember conduct and, 195–96 Off-reservation, 258–59 Property taxes and, 85–86 Residual, 206 Restoration of tribal, 175–85 Scope of inherent tribal, 188–89 Section 1331 and 1332 of title 28, 231–49 State and tribal, 11(n47) State income taxes and, 505–6 and State civil regulatory authority, 217 Taxes imposed by tribes and, 464–65, 474–75 Tribal, 217(n317), 287–88, 321(n162) Tribal courts and, 246–47, 251–52, 259–60 Tribal vs. U.S., 2(n7), 3, 40(n200) U.S. Congress’s plenary power over, 6(n25) Spanish law, Land grants, 89(n74) Special Distribution Funds, gaming, 565 Special Supplement Food Program for Women, Infants, and Children, 658 Special Trust Relationship, under General Allotment Act, 11–13

781 Spokane Indian Reservation/Tribe, 382, 385(n10), 390(n47) Spirit Cave Man, 132(n437) Spirit Lake Nation/Tribe, 21(n100), 320(n158) Spirtual Practice, Protection of, 133–40 Standing Bear, Indian status of, 53(n30) Standing Rock Sioux Reservation, 125(nn371, 373) Criminal jurisdiction in, 159–60(n101) State Courts See also State Government abstention principles, 245–46 adjudicatory authority of, 248(n132) Child custody proceedings, 592–96, 600–17 Civil adjudicatory jurisdiction of, 265–79 Criminal jurisdiction, 409–11 Jurisdiction of, 233–34 Tribal court comity, 282(n297) State Government See also State Courts Adjudicatory jurisdiction of, 265–79 Assimilative Crimes Act and, 143–44 Authority in Indian country, 170(n6), 210–24, 261(n204) Civil jurisdiction and, 170, 233–34, 265–79 Price-Anderson preemption provision, 238–39 Class II gaming and, 539–44, 547–48 Class III gaming and, 549–67 Congressional authority over, 179–80(n83) Cooperative agreements and, 620–23, 643–46 environmental regulations and programs, 629–31, 646–49 law enforcement, 633–35, 656–57 natural resources, 631–32, 649–53 negotiation of, 636–43 protection of Indian graves, sacred sites, cultural items, 636 reserved water rights, 635 social services, 657–60 state authority and, 625–28 taxation, 632–33, 653–55 tribal authorityand, 624–25 water rights, 655 Criminal jurisdiction of, 10(n42), 145–46, 148(n34), 150, 152(n64), 155(n76), 161, 164–68 outside of Public Law 280, 158–59 under Public Law 280, 153–58, 516–17 Direct civil regulatory authority of, 218–24 Eleventh Amendment immunity of, 229–30 Eminent domain, 85(n44) and Federal common law, 19–20, 284(n310) Federal programs and, 59–60 Fish and wildlife regulations and, 201–4, 385–87, 388–89 Full faith and credit recognition, 279–86 Gaming compacts, 552–67 prohibition of, 526–27

782 regulations, 515–18, 539–44, 547–52, 568–69 Government-to-government relations, 621–28 Hunting and fishing preemption and conservation, 403–5 regulation of, 391–92 regulatory powers of search and seizure and, 201–4 Indian Commerce Clause and, 10(n43) Indian lands, 277–78(n274), 523 Jurisdiction, 10(n43) over foster care placement and termination of parental rights, 589–600 over land, 85(n44) over water rights, 363–67 Juvenile courts and, 150 McCarran Amendment and, 376–80 NAGPRA administration, 129(nn404, 405) Pre-IGRA regulations, 515–18 Prosecution of state violations, 259 Public Law 280 jurisdiction and, 273–79, 388–89 RCRA, 451–52 Regulation of environmental matters in Indian Country, 434–36 Religious use laws, 137, 139–40 Sales of leased land, 205–10 Sovereignty, 259 Taxation, 26(n122), 78 authority over, 25(n117), 171(n12), 213–14, 469–506 gross receipts, 503–5 income, 505–6 on motor fuels, 487–95 of natural resources, 478–82 nonfuel sales and excise, 496–505 of nonmembers, 211–16, 473–76 of personal and real property, 482–87 of Trust Lands, 75 of tribal real property, 484–86 of tribes and tribal members, 470–73 Tidelands ownership, 98–99(n134) and Tribal jurisdiction, 263–64 and Tribal self-governance, 202–3 Tribal sovereignty and, 11(n47) Tribes recognized by, 59–61, 67–68 Water rights and, 332, 363–67 State-Tribal Cooperative Agreements Act (Montana), 626 Statehood Clause, 524–25(n91) Statutes at Large, 169(n3) Statutory Construction. See Construction and Interpretation Steelhead Fisheries, Cooperative agreements, 649–50 Stevens/Palmer Treaties Hunting and fishing rights under, 398, 399, 403–5, 406, 410–411, 414, 415, 649 Usual and accustomed fishing places in, 399–401

Index Strate v. A-1 Contractors, 197–99, 218, 241(n93), 440(n110), 441, 466(n15), 468 Adjudicatory jurisdiction and, 197–99, 202, 236–37, 254–56, 260 Self-government issues in, 198–99 State civil adjudicatory jurisdiction over, 270–71(n241), 431–32 Sue and Be Sued Provisions, in Corporate charters, 308–13 Sunshine Laws, and Cooperative agreement negotiation, 640–41 Superfund Amendments and Reauthorization Act, 455 Supremacy Clause State law and, 210–11, 404 Surface Mining Control and Reclamation Act (SMCRA), 14(n71), 427, 629(n47) Regulations under, 460–63 Surplus Land Acts, 93–94 Surplus Lands, Opening of, 93–95 Tacoma, Hydroelectric project, 414 TAS. See Treatment-as-a-state Tax Anti-Injunction Act, 228, 231(n36) Taxation, Taxes, 26(n122) of Cigarette sales, 27(n129), 189(n150), 227, 266, 475, 497–503 Congressional authorization for, 170(n5) Cooperative agreements, 632–33, 653–55 Federal, 27(n129), 228, 507–9 Gaming, 559(n242) Gross receipts, 503–5 Hotel occupancy, 93(n101), 199–201 Immunity from state, 25(n117), 170(n5) Indian Commerce Clause, 287(n5) of Indian traders, 171(n12) Land claims settlements, 78 Mining revenue, 242–44 Motor vehicle, 483–84 Motor vehicle fuel, 210(n278), 223–24, 230– 31(n34) of Non-Indians, 191(n162) of Nonmember activities on reservation land, 211–16, 236(n67) Oil and gas leases, 191–92, 653 Property, 85–86, 202(n237), 482–87 State, 69(n128), 213–14, 215(n302), 229 gross receipts, 503–5 income, 505–6 motor fuel, 487–95 natural resources, 478–82 nonfuel sales and excise, 496–505 personal and real property, 482–87 sales, 212(n285), 496–505 State services, 214 of Ticket sales, 212(n285) Tribal authority, 199–201, 241(n93), 246, 432, 464–69 Tribal governments, 240–41, 315(n135)

Index Tribally imposed, 69(n128), 189–90 and Tribal membership, 219(n326) Tribal officers and, 315(n135) Trust lands and, 75–76 Telecommunications Act (1996), 212(n286), 623–24(n14) Telephone and Telegraph Lines, rights-ofway for, 118–19 Tenth Amendment, 11, 265, 567(n293) Campaign contributions, 298(n62) Limitations on congressional authority, 183(n113) Termination of Individual tribal membership, 53 Land leases and, 89(n76) of Parental rights, 573, 580(n35), 583(n46), 589–600, 601–9 Restoration after, 175(n49) of tribal and band status, 43–44, 64(n99), 66–67, 171(n15) Termination Act, 66–67(n111) Termination Clauses, in Cooperative agreements, 641 Texas Human remains disinterred for law enforcement purposes in, 129–30 Indian Reorganization Act, 42 Jurisdiction over Ysleta Indian Reservation, 274(n258), 299(n70) Water rights in, 334(n17), 370(n266) Three Affiliated Tribes, Oil and gas agreement, 652–53 Ticket sales, State taxation of, 212(n285) Tidelands Shellfishing rights on, 402(n137) State ownership of, 98–99(n134) Timber Resources. See Forests and Timber Timbisha Shoshone Homestead Act (2000), 86(n56) Title Aboriginal occupancy rights and, 80–88 Nonaboriginal occupancy rights based on, 88–91 Tobacco Companies, Tribal enterprise, 309(n112) Tobacco Laws. Violations of, 231(n36) Tobacco Litigation Settlement, 229(n21) Elimination of outdoor advertising, 215(n306) Tobacco Products See also Cigarette Sales Programs against, 657 Sales of, 503(n278) Torres-Martinez Reservation, Agricultural leases, 110(n232) Torres-Martinez Desert Cahuilla Indians Claims Settlement Act (2000), 86–87(n56) Torts Commencement of claims, 23(n109) Contract performance and, 46(n235), 305(n99)

783 Gaming authorities, 306(n100) State civil adjudicatory authority over, 270– 71(n241) Tribal, 262(n209) Toxic Substances Control Act, 453(n217) Toxic Wastes. See Hazardous Wastes Trade Federal employees and, 30 Licensure of, 495 Taxation and, 498–99 Trade and Intercourse Acts, 30–32, 79 Alienation of land, 79, 81(n12), 88(n67) Indian country in, 31(n151) Violations of, 85 Trade and Intercourse Acts Period, 30–35 Indian country policies under, 31–32 Removal during, 32–33 States and criminal jurisdiction, 159 Trading houses/companies, traders Federal regulation of, 212(n286) under Trade and Intercourse Acts, 31(n152) Tribal taxation of, 200–201 Traffic Codes, State decriminalization of, 157–58 Prosecution of, 145(n18), 146–47(nn24, 25) Treatment-as-a-state (TAS) Provision, Environmental Protection Agency, 174–75, 437 Treaty Clause Congressional authority and, 177, 385(n8) Federal powers under, 320 Treaty of Fort Bridger, 398(n112), 401 Treaty of Fort Laramie (1851), 102–3 Treaty of Fort Laramie (1868), 102–3, 143(n8) Hunting and fishing regulation in, 194–95 Treaty of Guadalupe Hidalgo, 2–3(n9), 89(n74) New Mexico Indian pueblos and, 336–37 Treaty of Medicine Creek, 219(n328) Treaty Rights, Treaties Canons of construction n, 24–29 Congressional power over sovereignty of tribes in, 8–11, 177–78 Congressional role, 62–63, 170–71 Endangered Species Act and, 418–19 Executive Branch role in making, 1 and Federal regulation compliance, 21(n100) Fish and wildlife regulations and, 387(n26) Fishing rights and, 230–31(n34), 419–20, 649–50, 653–54 Highway transportation regulations, 210(n278) Highway travel, 473(n58) Hunting and fishing rights and, 55(n48), 66–67(n111), 194–95, 394–95, 398(n111), 403–5, 650 Bald and Golden Eagle Protection Act, 422–23

784 Magnuson-Stevens Fishery Conservation and Management Act and, 419–20 Migratory Bird Treaty Act, 423–24 off-reservation, 395–411 off-reservation habitat protection and, 411–16 Pacific Salmon Treaty Act, 420–21 and reservation establishment, 88–89 rights of access and, 402–3 whaling rights, 393(n72) Land claims, 87, 227 Natural resources allocation, 405–9 Preeemption of, 403–5 Protection under, 5–6(n23) Public Law 280, 154(n74) Reservation establishment and, 339–40 State government and, 11(n47) State income tax and, 506 Taxation and, 26(n122), 508 Termination and, 66–67 Trade and Intercourses Acts period, 33–34 Tribal authority under, 188 Water rights and, 335, 337(n43), 342–43 Treaty with the Chippewa (1836), 398(n113) Treaty with the Chippewa (1855), 398(n113) Treaty with the Crows, 398(n112) Treaty with the Dwamish Indians, 398(n111), 40(n167) Treaty with the Eastern Band Shoshoni and Bannock, 398(n112) Treaty with the Flatheads, 387(n26), 398(n111) Treaty with the Indian Tribes of Middle Oregon, 398(n111), 406(n165) Treaty with the Makah Tribe, 398(n111), 406(n167), 416(n236), 421(n280) Treaty with the Nez Perces, 387(n26), 398(n111), 406(n165) Treaty with the Nisquallya, 398(n111), 406(n167) Treaty with the Qui-Nai-Elts, 398(n111), 406(n167) Treaty with the S’Klallams, 398(n111), 406(n167) Treaty with the Walla-Wallas, 387(n26), 398(n111), 406(n165) Treaty with the Yakamas, 387(n26), 398(n111), 406(nn165, 167) Tribal Authority Rule (EPA), 450 Tribal Courts, 227–28(n14) Adjudicatory jurisdiction of, 186–89, 236–39 Application of ICRA relief by, 327–30 Authority of, 261–62(n205), 263–64 Child welfare, 571–72 Civil-adjudicatory jurisdiction of, 197–99, 201–4, 249–65 Comity for, 280–82 Deferral doctrine in, 233–34 Double Jeopardy Clause in, 188

Index Exhaustion and deferral doctrines applied to, 231–49 Federal court interference in, 233–35 Federal court relationships with, 252–53 Full faith and credit requirements and, 279–86 Section 1738, 279–82 Indian Reorganization Act, 41(n205) Inherent prosecutorial power, 320–21 Interference with existing proceedings in, 245–48 Jurisdiction of, 232–34, 245–47, 259–60, 261–62(n205) Jurisdiction over eviction, 205–10 Jurisdiction over nonmembers, 236–37 Jurisdiction over child custody proceedings, 585–89 Non-Indians in, 187 Reservation affairs and federal jurisdiction, 240–41, 247–48 Sovereignty and, 246–47 State immunity from, 263–64 Subject matter v. personal jurisdiction, 239– 40(n86) Tribal Energy Resource Agreements, 108(n218) Tribal Enrollment, Standards of. See Tribal Membership Tribal Forest Protection Act (2004), 118 Tribal Government See also Tribal Self-Government Rights Adjudicatory jurisdiction of, 197–99, 249–65 Assertion of power, 521–24 Authority civil-regulatory, 172–85 congressional delegation to, 172–74 to conduct criminal proceedings, 238 to impose taxes, 191–92 law-enforcement, 27–28(n129) litigation by, 20(n98) over nonmembers, 203–10 residual, 209–10 restoration of inherent, 175–85 Autonomy of, 44–45 Business opportunities, 62(n90) Ceremonial gaming, 532 Civil regulatory authority of, 93, 172–85 Civil rights, 327(n193) Class II gaming ordinances, 542–44 Class III gaming compacts, 549–67 Class III gaming ordinances, 548–49 Clean Water Act implementation, 441–46 Commerce Clause and, 9, 171–72 Conduct of nonmembera actions, 208–9 Constitutional restrictions on jurisdiction, 250(n141) Consultation with federal government, 20(n96) Cooperative agreements, 620–23, 643–46

Index environmental regulations and programs, 629–31, 646–49 law enforcement, 633–35, 656–57 natural resources, 631–32, 649–53 negotiation of, 636–43 protection of graves, sacred sites, cultural items, 636 reserved water rights, 635 social services, 657–60 state authority and, 625–28 taxation issues, 632–33, 653–55 tribal authority and, 624–26 water rights, 655 Civil regulatory jurisdiction of, 170, 174–85 Clean Water Act, 441–46 Criminal jurisdiction in, 146–47, 151–53, 160 Delegation of federal power to, 386 Environmental regulations, 428–33, 434 development of tribal EPA programs, 441–54 violation of pollution control statutes, 458 EPA procedures, 436–41 Extradition of members, 165–66 Federal government services and, 44 Federal law and, 227–28 Fee lands, 93 Fractional property interests, 125 Gaming compacts, 552–67 Government-to-government relations, 621–28 Housing authorities, 62(n90) Hunting and fishing regulation, 190–91, 387–89 Indian Child Welfare Act preferred jurisdiction over foster care placement and parental rights termination, 589–600 Inherent authority over rights, 380–83 ISDEAA contracts and grants, 44–46 Jurisdiction Federal Juvenile Delinquency Act, 150(n51) over Nonmembers, 152(nn61, 62) Public Law 280, 273–79, 283 Labor relations, 29(n135) Mineral leases/development, 106–8 Nonmember consent to regulation under, 191–92 Organization of, 40(n200) Protection of self-government, 260–61 Recognition of descendants, 11(n51), 19(n94) Regulatory authority of, 246–47, 248–49 Repatriation of human remains by, 127–33 Retained inherent authority of, 185–210 Self-government, 39–40, 42(n206) standards of, 216–18 Sovereignty, 251–52 and State authority, 202–3 State criminal jurisdiction and, 156–57 Structures of, 40(n200)

785 Taxation authority for, 199–201, 464–69 Water codes in, 381–82 Tribal Membership, 7(n29) BIA services and, 227(n14) Children and, 60–61, 322–24, 573(n13), 579–85 Civil adjudicatory jurisdiction and, 268–72 Criminal jurisdiction and, 159, 409–11 Enrollment, 49(n7) Extradition, 165–66 Hunting and fishing rights, 55(n48), 387–89, 399, 409–11 Indian identity and, 49–51, 52–53 Jurisdiction over child custody proceedings and, 589–600 in State-recognized tribes, 59–61 and Taxation, 219(n326) Tribal government action and, 228–29 Tribal Officers and Agents, Sovereign immunity, 148(n32), 313–15 Tribal Ordinances, Sue and be sued provisions in, 308–13 Tribal Self-Government Rights. See Self-Governance; Self-Government; Sovereignty; Tribal Government Tribal/State Indian Child Welfare Agreement as Amended, 658(n105) Tribal Status of Alaskan Native villages, 226(n7) of Children, 580–81 Civil adjudicatory jurisdiction over, 268–72 Determining, 226(n7) Federal district court jurisdiction and, 226 under Indian Reorganization Act, 36 Judicial determination of, 65–66 Termination of, 43–44, 64(n99), 66–67, 171(n15) Tribes See also Tribal Government; Tribal Selfgovernment Rights; Tribal Status Adoption of constitutions, 40–41 Affiliation under NAGPRA, 126–33 Civil adjudicatory jurisdiction of, 249–65 Civil regulatory authority of, 172–85 Congressional delegation of authority to, 172–74 Congressional authority over, 177–78 Deferral of federal authority to, 174–75 Delegation of federal authority to, 172–74 Direct state regulation of, 218–24 as Domestic dependent nations, 287 Economic self-sufficiency of, 46–47 Federal recognition of, 61–67 Governmental powers of, 521–24 Immunity from suit, 219(n327) Internal matters of, 7–8 Land rights and, 79–91 Legal status of, 27–28

786 Off-reservation hunting and fishing, 392–416 habitat protection, 411–16 treaty rights, 395–411 as Political entities, 42(n209) Personal property taxation, 483–84 Real property taxation, 482, 484–86 Recognition of, 530(n115) Restoration of sovereignty of, 175–85 Retained inherent authority of, 185–210 Self-government, 216–18 as Semi-autonomous entities, 33–34 Sovereign immunity of, 288–315 Sovereignty of, 40(n200), 251–52, 287–88 Special jurisdictional authorization for, 226–30 State recognition of, 67–68 State taxation of, 470–73 Termination of, 43–44 Title VII definitions of, 62(n90) Trust Allotments, 74, 75, 77–78 Trust Funds Beneficiaries of, 121(n332) Federal control of, 11(n48) Trust Lands, 17(n86), 171 Acquisition for gaming, 90–91 Compensation for, 10(n41) Contracts, 312 Control of, 171 Criminal jurisdiction on, 155(n76) Fiduciary responsibility, 17(n86) Fractionated ownership of, 120–25 Gaming and, 524–31 Hazardous waste programs on, 435 Indian country status and, 74–78 Off-reservation, 91(n89) Oil and gas development on, 653 Property rights and, 14–17 Purchases of, 263(n214) Reservations and, 70–71 Residences on, 227 Timber resources, 11–12 Waiver of sovereign immunity on, 367(n244) Water rights, 356 Trust Responsibility/Relationship Canons of construction in treaty making, 24–29 Federal obligation of, 11–23 under General Allotment Act, 36(n176), 37 Marshall Trilogy origins of, 11–23 Secretary of the Interior and, 37–38 Special trust relationship under General Allotment Act, 11–13 Tulalip Tribes/Reservation, 112(n252) Turtle Mountain Reservation, 43, 89–90(n78) UIC. See Underground Injection Control Uintah and Ouray Reservation Cooperative agreements, 650, 653 Mineral leasing, 106(n190) Uintah Basin Revitalization Fund, 653

Index Uintah County (Utah), Memorandum of understanding with Ute Tribe, 628 Oil and gas agreements, 653 Uintah Valley Reservation, diminishment of, 97 Umatilla Reservation, 125(n371), 660 Underground Injection Control (UIC), SDWA and, 447–49 Underground Storage Tanks, 648 Unemployment, Tribal levels, 204(n245) Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 281(n295) Uniform Child Custody Jurisdiction Enforcement Act, 270(n241) Uniform Enforcement of Foreign Judgments Act, 284–85 Uniform Foreign Money-Judgments Recognition Act, 285 Uniform Money-Judgments Recognition Act, 270–71(n241) Uniform Reciprocal Enforcement of Support Act, 270(n241) Unions, Unionization, in Casino enterprises, 29(n135) United States Claims Court (United States Court of Federal Claims), 83 U.S. Congress Abrogation of sovereign immunity, 296, 297 Civil regulatory authority, 169, 170–72, 177–85 Condemnation statutes and, 119–20 Deferral of authority by, 174–75 Delegation of authority by, 172–74 Farm leases, 110 and Federal Indian policy 29–47 Guardianship role, 38(n193) Indian Civil Rights Act, 44 Indian Claims Commission, 82–83 Indian Commerce Clause powers, 1, 9–11, 170–72 Indian Reorganization Act, 42–43 Indian status and, 54 Indian title, 81(n15) Land rights, 87 Mineral leases, 106(n190) Occupancy rights, 87 Plenary power over Indian affairs, 6(n25), 8–11, 17(n85), 321(n162) Regulating commerce with Indian tribes, 170–72 Reservation boundaries and, 87 submerged land in, 100 Reservation designation, 69–70 Reservation diminishment, 93–96 Rights-of-way legislation and, 118–10 Sales of reservation lands, 37–38, 93–95 Sovereign immunity and, 367(n244) Timber leases, 116

Index Trade and Intercourses Acts period, 30–35 Treaty-making powers of, 62–63 Tribal criminal jurisdiction, 152(n62) Tribal status recognition of, 177 U.S. Constitution Aboriginal occupancy and title, 81 Authority granted by, 381–87 Due Process Clause, 599 Eleventh Amendment, 560 Equal footing doctrine, 98 Establishment Clause, 139(n505) 317 Extradition Clause, 166(n124) Federal authority over Indians in, 1, 63(n95), 183 Federal powers, 320 Fifth Amendment, 10, 184, 188, 599 First Amendment, 424 Fourteenth Amendment, 287(n5), 599 Full faith and credit requirements, 279(n283), 617–18 ICRA provisions and, 177–85 Indian Commerce Clause of, 1, 9, 63(n95), 81(n12), 170–72, 174, 177, 287(n5) Property Clause, 331(n1) Sixteenth Amendment, 287(n5) State status under, 264 Tenth Amendment, 567(n293) Territory/Property Clause, 9(n40), 99– 100(n139) Treaty Clause, 9(n40), 177 Tribes under, 287 U.S. Corps of Engineers, Kennewick Man and, 130 U.S. Department of Agriculture, ANILCA, 425–26 U.S. Department of Defense, Contracting with, 55–56(n48) U.S. Department of Energy, Office of Indian Energy Policy and Programs, 108 U.S. Department of Health and Human Services, Contracting with, 46(n235) U.S. Department of Justice Child custody, 586(n51) Contracting, 46(n235) Water rights agreements, 643, 644 U.S. Department of the Interior See also Bureau of Indian Affairs; Secretary of the Interior Allotments, 120(n321) ANILCA, 425–26 Environmental regulations, 427 Federally recognized tribes, 61–67 Fiduciary responsibilities, 23 Gaming and, 544(n177), 556(n231) Fishing regulations, 416–17 Hunting and fishing rights, 66–67 IGRA, 518 Indian Self-Determination and Education Assistance Act and, 44–46

787 Migratory Bird Treaty Act, 424 Mineral leases, 105(n181), 108–9 Oil and gas agreements, 652–53 State-recognized tribes, 68(n126) Termination and, 66(n107) Tribal enrollment and, 52 Trust status of lands under, 76–78 Water agreements, 644 Water rights, 358 U.S. Department of Transportation, HMTA and, 427 U.S. Fish and Wildlife Service, Endangered Species Act and, 419 U.S. Forest Service Road rights-of-way, 73(n161) Sacred sites, 140(n508) Water rights issues, 338 U.S. Geological Survey, Abolition of Conservation Division in, 108–9 U.S. Marshal Service, Sex offender registration, 144 United States Postal Service, Tobacco products, 503(n278) United States Sentencing Guidelines, 149 United States v. Lara, 9(n40), 33(n160), 63(n95), 152(n63), 153, 170(n7), 171(n8), 385(n14) Federal delegation of authority to tribes in, 177–85 passim, 321(n162) on Sovereignty, 187(n138), 321 Tribal prosecutorial power in, 320–21 Unmarked Burial Sites Preservation Act (1997), 129(n405) Unmarked Human Burial Sites and Skeletal Remains Protection Act, 129(n405) Unwed fathers, multiple tribal membership and, 581–82 Uranium Reserves, 105 Utah Appropriation doctrine, 334(n17) Child welfare services agreement, 657 Cooperative agreements, 628, 650, 653, 657 Hunting and fishing rights, 650 Water rights, 364 Ute Business Committee, 326(n190) Ute Indian Tribe, Cooperative agreements with, 326(n190), 628, 650, 653 Ute Mountain Ute Tribe, Water rights agreements, 643–46 Ute Partition and Termination Act, 300(n71) Ute Termination Act, 67(n112), 171(n15) VAWA. See Violence Against Women Act Vermont, Tribes recognized by, 67 Violence Against Women Act (VAWA), 284 Virginia, Tribes recognized by, 67 Visitation Rights, 574(n17) Vocational Rehabilitation Act, 297(n61), 304(n92)

788 Voting Rights Elk v. Wilkins and, 34–35 Office of Hawaiian Affairs, 57 Wahpeton Sioux Tribe, 83(n30) Wanapum Indians, 393(n69) Wardship Status, 2 Warm Springs Reservation, 154 Fractionated property interests, 125(n373) Washington (state), 369(n253) Authority ot arrest in, 167–68 Child welfare, 571(n3), 604(n120) Clean Air Act in, 451(n197), 646–47 Cooperative agreements, 622, 626(n26), 651 Criminal jurisdiction in, 155(n77) Enabling act, 277–78(n274) Environmental regulations, 434–35, 451(n197) Fishing agreements, 649–50 Fishing rights in, 399, 400(table), 401, 415–16, 631–32(n59) Gaming, 537, 554–55(n229) Hunting and fishing agreements in, 651 ICWA, 604(n120) Leasing authorities in, 112(n252) Motor vehicle fuel agreements, 654–55 Sales and excise taxes in, 496–90 Salmon fisheries in, 406–9, 649–50 State civil and criminal jurisdiction in, 277(n273), 410 Taxation agreements, 653–55 Water quality agreement, 649 Water rights in, 334(n17), 342–43, 344(n91), 415–16 Washington Indian (Puyallup) Land Claims Settlement Act (1989), 78(n186), 86(n56) Washington v. Confederated Tribes of Colville Indian Reservation, 215(n301), 291(n30), 433, 586(n52) and Public Law 280, 501 State adjudicatory authority in, 10(n43), 202(n237), 268(n236) State sales and excise taxes in, 213(n288), 266, 470(n45), 475(n76), 489, 497–500, 632(n62) Tribal authority in, 189–90, 464–65 Tribal self-government in, 217(n314), 266–67 Water and Water Rights, 20(n98), 21(n100), 331–32 See also Fishing and Fisheries; Irrigation; Navigable Waters; Water Quality Appropriation doctrine, 334–35 Appurtenant, 354 Canons of statutory construction in treaties, 25 Change of use, 357–60 Cooperative agreements, 620, 630(n53), 643–46, 655 Domestic use, 351 Effect on fishing rights and fisheries, 415–16

Index Federal administration, 21(n100) Fisheries, 350–51 Groundwater, 354–56 Inherent tribal authority over, 380–83 McCarran Amendment state adjudication of, 367–76 state administration of, 376–80 New Mexico pueblos, 336–37 Non-Indian reserved, 337–39 Practicably irrigable acreage standard, 345–50 Prior appropriation system, 334 Purpose of reservations and, 339–43 Quantification of, 343–45 Reserved appurtenant to federal reservations, 354 change of use and transfer of, 357–60 historical background of, 333–37 non-Indian, 337–39 priority of, 352–53 purposes of reservation, 339–43 quantity of, 343–51 transfer of tribal, 360–62 Services, 90(n80) Safe Drinking Water Act, 297 State adjudication of, 365–67 State regulation of, 363–65 Tribal water codes, 381–82 Winters doctrine and, 335–37, 338–39, 415–16 Water Quality Cooperative agreement, 649 EPA standards and, 197(n195), 204(n245) Land use and, 440(n110) SDWA and, 447–49 Tribal implementation of standards, 441–46, 442–43, 444–46 Tribal sovereignty over, 321(n162) Water Quality Standards Final Rule, 440, 441(n111), 444(n132) Water Services, Trust lands, 76 Waterways as Boundaries, 97–98(n129) Ownership of, 101–4, 175(n47) Reservation lands and, 100–104 Weapons Possession, 145(n18), 155(n77) Weatherization, Cooperative agreements, 658 Western Area Power Administration, 108 Whaling Rights, 393(n72), 416(n236), 421–22 Whaling Convention Act, 421–22 Whistleblowers, protection of, 218(n323) White Mountain Apache Tribe v. Bracker, 7(n27), 116(n278), 202(n237), 210(n278), 217(n314), 267(n233), 434(n57), 472(n56), 517(n45) Interest-balancing standard of, 223, 265–66 Motor fuel taxes and, 487–88, 490–94 passim State authority to tax nonmember activity, 211–16, 475(n76), 487 State authority in, 222, 435–36, 474(nn67, 69), 475(n78)

Index Tribal self-government, 216–17, 473(nn61, 64) Water rights, 365 White River National Forest, Water claims on, 368 Wilderness Act, 139 Wildfires, and Timber resources, 118 Wildlife Regulation See also Fish and Wildlife Resources; Hunting and Fishing Cooperative agreements, 631–32 Williams v. Lee, 202(n237), 203(n240), 211(n281), 265 Infringement standard in, 265–66, 267– 68(n235) Self-governance standard of, 216–18, 261, 266–67 State civil adjudicatory authority and, 474(n66) Wind River Reservation Mineral resources on, 105, 106(n190) Water rights in, 338, 346–47, 360, 361–62, 380 Winters v. United States, 25(n115), 103(n166), 331, 333(nn10, 13, 14), 635(n72) Fisheries litigations, 415–16 Groundwater rights and, 355 Reserved water rights and, 331, 335–37, 338–39, 342(n81), 343–44, 352(nn144, 145), 362(n210) Transfer of water rights, 361 Wire fraud, 143(n8) Wisconsin Child welfare, 571(n3) Cooperative agreements, 622(n10), 648–49, 660 Criminal jurisdiction in, 158(n92), 276–77, 569(n307) Cultural resources, 660 Full faith and credit principles in, 284– 85(n310) Gaming in, 516(n35), 554–55(n229) Ownership of waterways in, 175(n47) Public Law 280 in, 154 State income tax, 506(n304) Wisconsin Department of Transportation, 660 Witnesses, Protection of federal, 143(n8) Wolf Point (Montana), 656 Worcester v. Georgia, 6(n26), 159(n94), 169, 186(n129) Civil regulatory authority in Indian country and, 4–5, 169, 216(n312) Indian Commerce Clause and, 10 Supremacy Clause and, 10 Words and Phrases See also Construction and Interpretation Child custody proceedings, 573 Class I gaming, 531–32 Class II gaming, 532–38 Class III gaming, 510, 538

789 Dependent Indian communities, 71 Economic incidence, 470–71 Federal land, 461(n295) Foreign state, 1–2 Fractional property interests, 120 Gambling, 512 Indian, 159, 176, 184(n118) Indian band, 236 Indian child status, 573, 580(n36) Indian country, 68–69 Indian lands, 461(n296), 519–20, 526 Indian tribe, 236, 539(n154) Legal incidence, 470–71 Native American, defined in NAGPRA, 131(n428) Non-Indians, 212 Nonmembers, 212 Potentially responsible parties (PRPs), 455–57 Practicably irrigable acreage (PIA) standard, 345 Preadoptive placement, 573 Process, 165(n121) Qualified expert witness, 607–9 State, 283, 463(n304) Termination of parental rights, 573 Wyoming Land use and zoning ordinances, 430 Water rights in, 334(n17), 342, 346–47, 355, 360, 361–62, 377, 379–80 Yakama Tribe/Nation See also Yakima Nation/Reservation/Tribe Fisheries, 385(n9), 399(n120) Hunting and fishing rights, 401(n125), 404(n155), 405(n159), 416 Motor fuel taxation, 654–55 Water rights, 383, 416 Yakima Nation/Reservation/Tribe Fractionated property interests, 125(n373) Treaty rights, 335 Water rights, 335, 342 Zoning regulations on, 192–94, 430 Yankton Sioux Reservation/Tribe, 431 Solid waste landfill, 453–54 Surplus lands 97 Yavapai-Prescott Community Reservation, Long-term lease of, 113 Youth Programs, 659 Ysleta del Sur Pueblo, Restoration to federal supervision, 299(n68) Ysleta Restoration Act, 274(n258) Zoning Local, 90(n80) Tribal authority over, 429–30 Tribal regulatory jurisdiction over nonmembers, 192–94, 253 Zuni Pueblo, 25(n118)