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American Indian Law
Journal
Volume III, Issue I • Fall 2014
“The Spirit of Justice” by Artist Terrance Guardipee
Supported by the Center for Indian Law & Policy
Spirit of Justice
Terrance Guardipee and Catherine Black Horse donated this original work of art to the Center
for Indian Law and Policy in November 2012 in appreciation for the work the Center engages in
on behalf of Indian and Native peoples throughout the United States, including educating and
training a new generation of lawyers to carry on the struggle for justice. The piece was created
by Mr. Guardipee, who is from the Blackfeet Tribe in Montana and is known all over the country
and internationally for his amazing ledger map collage paintings and other works of art. He was
among the very first artists to revive the ledger art tradition and in the process has made it into
his own map collage concept. These works of art incorporate traditional Blackfeet images into
Mr. Guardipee’s contemporary form of ledger art. He attended the Institute of American Indian
Arts in Santa Fe. His work has won top awards at the Santa Fe Indian Market, the Heard
Museum Indian Market, and the Autrey Museum Intertribal Market Place. He also has been a
featured artist at the Smithsonian’s National Museum of the American Indian in Washington,
D.C., along with the Museum of Natural History in Hanover, Germany, and the Hood Museum at
Dartmouth College.
American Indian Law Journal
Editorial Board 2014 – 2015
Editor-in-Chief
Jocelyn McCurtain
Managing Editor
Callie Tift
Technical Editor
Content Editor
Executive Editor
Christopher Edwards
Jillian Held
Nancy Mendez
Articles Editors
Writing Competition Chair
Events Coordinator
Jessica Buckelew
Jonathan Litner
Nick Major
Leticia Hernandez
2L Staff Editors
Jessica Barry
J. Riley Benge
Caitlin Brown
Grace Chu
Hannah Nicholson
Javier Ortiz
Adam Rainone
Mayra Rangel
Faculty Advisors
Catherine O’Neill
Eric Eberhard
Research Advisor
Kelly Kunsch
Table of Contents
1. How the ESA Can Swallow Alaskan Tribal Sovereignty: The Story of
the Lake Iliamna Seals
Charisse Arce…….....................................................................................1
2. Sovereignty, Economic Development, and Human Security in
Native American Nations
W. Gregory Guedel. ………………………………………………….............17
3. Human Trafficking & Native Peoples in Oregon: A Human Rights Report
Hayley Weedn, Joseph Scovel, & Jason Juran..……….………………..40
4. Fundamentals of Contracting by and with Indian Tribes
Michael P. O’Connell………………………………………………………….159
5. Fresh Pursuit: A Survey of Law among States with Large Land Based
Tribes
Erin E. White ………….…………………………………..…………………..227
6. No Tribal court is an Island? Citation Practices of the Tribal Judiciary
Rose Carmen Goldberg……………………………………………………....247
7. Habitat and Harvest: The Modern Scope of Tribal Treaty
Rights to Hunt and Fish
Whitney Angell Leonard…….………………………………….……………..285
8. Beyond Blood Quantum: The Legal and Political Implications of
Expanding Tribal Enrollment
Tommy Miller…………….………………………………………………….....323
Volume II, Issue II – Spring 2014
AMERICAN INDIAN LAW JOURNAL
HOW THE ESA CAN SWALLOW ALASKAN TRIBAL SOVEREIGNTY: THE STORY OF
THE ILIAMNA LAKE SEALS
BY CHARISSE ARCE *
“Those involved in Native issues wrestle with the huge challenge of how to help lift the economic boats
of Alaska’s Native peoples while simultaneously protecting the cultures, lands, and waters of our
peoples.”
– Paul Ongtooguk 1
INTRODUCTION
Tucked away in the southwest part of Alaska lies Lake Iliamna, stretching 77 miles long and 22
miles wide. It is the largest and deepest body of fresh water in Alaska, and the seventh largest fresh
water lake in the United States. 2 Iliamna Lake is home to the Iliamna Lake freshwater seal, one of just
five different populations of freshwater seals found in the northern hemisphere. 3 The land in this region
is vast and sparsely populated, but Alaskan Natives have resided here for centuries; now there are a
handful of permanent communities around the lake. This paper examines the conflict between federal
conservation efforts of the seals in Lake Iliamna, how it threatens the economic vitality and tribal
sovereignty of the villages in southwest Alaska, and offers a solution that will preserve both interests.
On May 17, 2013, the Center for Biological Diversity submitted a petition to the Secretary of
Commerce and the National Oceanic and Atmospheric Administration (NOAA), through the National
Marine Fisheries Service (NMFS), to “list the Iliamna Lake seal as a threatened or endangered species
*
Charisse M. Arce graduated with her J.D. from Seattle University School of Law in May 2014, and she is an enrolled
member of the Iliamna Village Council. The author was born and raised in Iliamna, Alaska on the shores of Lake Iliamna.
The author would like to thank Professor Catherine O’Neill and Professor Eric Eberhard for their encouragement and
support of this piece as well as the laudable efforts of the AILJ staff.
1
LIBBY RODERICK, ALASKA NATIVE CULTURES AND ISSUES: RESPONSES TO FREQUENTLY RESPONSES TO FREQUENTLY ASKED
QUESTIONS, 41 (2010).
2
“About the Lake and Peninsula Borough,” http://www.lakeandpen.com/index.asp?Type=B_BASIC&SEC={E4E1AF70DAB9-4462-942A-C4B21F8A2D31 (last visited Oct 3, 2014) [hereafter “Lake & Pen Borough”]; Petition to List Iliamna Lake
Seal, Distinct Population Segment of Pacific Harbor Seal (Phoca Vitulina Richardsi) Under the Endangered Species Act.
Center for Biological Diversity (2012),
http://www.biologicaldiversity.org/species/mammals/Iliamna_Lake_seal/pdfs/Iliamna_Lake_Seal_Petition_11-19-12.pdf
[hereafter “Petition”].
3
Van Lanen, Iliamna Lake Seals Local and Scientific Understanding, ALASKA FISH & W ILDLIFE NEWS, May 2012,
http://www.adfg.alaska.gov/index.cfm?adfg=wildlifenews.view_article&articles_id=553 (last visited Oct. 4, 2014). (The four
other freshwater seal populations found in the northern hemisphere are: (1) Lake Baikal, Russia; (2) Lake Lagoda, Russia;
(3) Lake Saimaa, Finland; and (4) Lac de Loups, Canada.)
1
Volume III, Issue I – Fall 2014
and to designate critical habitat to ensure its survival and recovery.” 4 The Endangered Species Act
(ESA) is a powerful statute that seeks to conserve the ecosystem upon which endangered species and
threatened species depend, and provides a program for the conservation of such endangered species
and threatened species. 5 Across the nation’s political and cultural lines, today’s society would largely
agree that species that are threatened or endangered deserve protection. The effect of inclusion of the
Lake Iliamna seal on Alaska Natives is an area of concern because this particular ESA listing near
tribal lands infringes on tribal sovereignty and undermines Alaskan Native values based on holistic
management principles and subsistence values.
This paper will examine whether an ESA listing for the Iliamna Lake fresh water seal will be
burdensome or beneficial to the five predominantly Alaska Native communities that reside on the
shores of Lake Iliamna. Part I provides a brief background on Lake Iliamna and the Iliamna Lake seal.
Part II explains the various statutory schemes of the ESA, the Marine Mammal Protection Act (MMPA),
and the Alaska Native Claims Settlement Act (ANCSA). Part III offers an application and critique of the
various statutes and concludes with a recommendation that the Iliamna Lake seal not be listed as
threatened under the ESA because the listing would inhibit any future development around Lake
Iliamna. The Iliamna Lake seal should, however be listed as a distinct population stock under the
MMPA to allow for less intrusive protective measures.
PART I. LAKE ILIAMNA
“It flows into Qizhjeh Vena, which is known as Lake Clark…That same water from the head of Lake
Clark travels all the way into the salt water. That is why long ago they used to say water travels farther
than human beings.”
6
- Story from Nondalton – Antone Evan
A. The People of Lake Iliamna
Development around Lake Iliamna is very limited due to its low population numbers, remote
location and the fact that there are no roads leading in or out. 7 The only communities connected by
road are Newhalen and Iliamna. Numerous rivers and streams run into Lake Iliamna, including the
Newhalen River, but the lake has only one outlet to the sea via the Kvichak River. 8 Lake Iliamna and
4
Petition, supra note 3, at 47, 60.
See generally, Endangered Species Act, 16 U.S.C. § 1531 (2006).
6
History & Culture, Lake Clark National Park & Preserve, available at http://www.nps.gov/lacl/index.htm (last visited Oct.
19, 2014) [hereinafter “Lake Clark National Park”].
7
Lake & Pen Borough, supra note 3.
8
Id.
5
2
the Kvichak river system support the largest sockeye salmon run in the world. 9 The Lake Iliamna
region is home to a mixture of Yup’ik Eskimos, Alutiiq Aleuts, Athabascan Indians, and Inupiaq people,
and has been for the last 6,000 years. 10 The indigenous peoples in this area have depended on the
bounty of the land and lake for generations. There are five predominately Alaskan Native villages that
reside on the shores of Lake Iliamna: Igiugig, Iliamna, Kokhanok, Pedro Bay, and Newhalen. Each
community contains populations of less than 225 people; some villages have fewer than 50 people. 11
Iliamna Lake Map, available at http://www.mappery.com/map-of/Iliamna-lake-Map
9
About Bristol Bay, Environmental Protection Agency, available at http://www2.epa.gov/bristolbay/about-bristol-bay (last
visited Oct. 3, 2014).
10
Lake & Pen Borough, supra note 3.
11
Id.
3
B. The Animals and Vegetation of Lake Iliamna
On Lake Iliamna, many different animals and vegetation are harvested for subsistence purposes
during the various seasons. Subsistence is generally defined as an economy and a way of life involving
the acts of harvesting, processing, distributing, and consuming the wild animals, fish, and plants. 12
One of the resources harvested is the Iliamna Lake seal, which has been documented as
resident to the lake since at least the early nineteenth century. 13 Alaska Natives use virtually all of the
seal for food, clothing, and other products. For example, after the oil and meat are processed for
Seals at a haul-out site in Lake Iliamna, (Associated Press Photo/NOAA, Dave Winthrow).
consumption, the skin of the seal is used to make winter hats and mittens, which protect against the
harsh winter elements. 14
The Iliamna Lake seals are generally considered to be a population of the Pacific harbor seal
(Phoca vitulina richardsi), but are isolated from other seal populations through a combination of
12
Thomas F. Thornton, “Alaska Native Subsistence: A Matter of Cultural Survival,”, CRISIS ON THE LAST FRONTIER (Fall
1998), available at https://www.culturalsurvival.org/ourpublications/csq/article/alaska-native-subsistence-a-matter-culturalsurvival (last visited Oct. 3, 2014).
13
Petition, supra note 3, at 4.
14
Ronald H. Brower Sr., “Cultural Uses of Alaska Marine Mammals Part II,” ALASKOOL TRADITIONAL LIFE (Dec. 2001),
available at http://www.alaskool.org/projects/traditionalife/brower/brower-pt2.htm (last visited Oct. 3, 2014).
4
ecological, behavioral and geographical factors. 15 The Iliamna Lake seal is only known to occur in the
northeastern half of Lake Iliamna and approximately 125 miles of lake and river separates this
population of seals from the nearest population of saltwater seals in Bristol Bay. 16
The Center for Biological Diversity 17 seeks to have the Iliamna Lake seal listed as threatened
under the ESA. The first reason for listing relates to the effects of climate change and ocean
acidification from greenhouse gas emissions on the sockeye salmon, a key prey species for the
seals. 18 The Petition states that “[u]nless greenhouse gas emissions are cut dramatically in the
immediate future, wide-scale ecological changes including declines of Bristol Bay salmon are
essentially assured and threaten the Iliamna Lake seal with extinction.” 19 Additionally, the Petition cites
the threat of the Pebble Project development, 20 “[t]he Pebble Project would likely result in loss or
severe decline of salmon runs, decreased water quality, increased human noise and activity, and
degradation of both aquatic and terrestrial habitat.”21
PART II. PROTECTIVE STATUTORY SCHEMES
A. The Endangered Species Act
1.
Endangered or Threatened Listing
The Endangered Species Act authorizes the Secretaries of the Departments of the Interior and
Commerce, respectively, through the United States Fish and Wildlife Service (FWS), and the National
15
17
Programs, CENTER FOR BIOLOGICAL DIVERSITY, available at http://www.biologicaldiversity.org/programs/ (last visited Oct.
4, 2014, 8:05 AM). (The Center for Biological Diversity is a nonprofit membership organization based in Tucson, Arizona.
“The Center’s programs are devoted to protecting biodiversity in different arenas through science; legal action; policy
advocacy; negotiation with government and industry; and creative, strategic media and outreach.”).
18
Petition, supra note 3 at 2.
19
20
Preliminary Assessment of the Pebble Project, Southwest Alaska, NORTHERN DYNASTY MINERALS LTD. (Feb. 17, 2011),
available
athttp://www.northerndynastyminerals.com/i/pdf/ndm/Pebble_Project_Preliminary%20Assessment%20Technical%20Report
_February%2017%202011.pdf. (An examination of the Pebble Project is outside the scope of this article. The Pebble
Project is a copper-gold-molybdenum porphyry deposit in the advanced exploration stage. The mineral deposit sits about
17 miles northwest from the community of Iliamna. The development of the project would be extensive considering the lack
of existing infrastructure in the area. One aspect of the project would require the construction of a 77-mile access road from
the mine site to Cook Inlet. Another aspect would require the construction of two parallel pipelines along the proposed road.
A third aspect would require the construction of a deep-water port in Cook Inlet to ship the slurry from the mine site to
oversea smelters. The pipelines would carry slurry from the mine site to Cook Inlet; the water would be separated from the
slurry and then sent back in a return pipeline to the mine site to be reused. The road and pipelines will likely run parallel to
the north side of Lake Iliamna. “Preliminary Assessment of the Pebble Project, Southwest Alaska,” Northern Dynasty
Minerals Ltd.).
21
Id.
16
5
Fisheries Service to identify species in need of protection by placing them on the endangered or
threatened species lists. 22 Species eligible for listing as “endangered” are those that are in imminent
danger of extinction. While “threatened” species are those that are likely to become endangered within
the foreseeable future. 23 The ESA prohibits any person from taking a listed species or adversely
modifying occupied or essential habitat, and requires the FWS and the NMFS to designate “critical
habitat” 24 for listed species. 25
In designating critical habitat, the secretaries must first identify occupied or unoccupied land that
is suitable to meet the statutory criteria of the ESA, based on the best scientific data available. 26 The
following factors are used in identifying a critical habitat: (1) space for individual and population growth
and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological
requirements; (3) cover or shelter; (4) sites for breeding, reproduction, or rearing of offspring; and (5)
habitats that are protected from disturbance or are representative of the historical, geographical, and
ecological distributions of a species. 27
Additionally, the regulations further direct NMFS to, “focus on the principal biological or physical
constituent elements…that are essential to the conservation of the species,” and specify that the
“known primary constituent elements shall be listed with the critical habitat description.” 28 These
primary constituent elements (PCEs) include, but are not limited to: “roost sites, nesting grounds,
spawning sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator,
geological formation, vegetation type, tide, and specific soil types.” 29 When designating critical habitat,
the Secretary of Commerce must consider the impacts on the economy, national security, and any
other relevant impacts. 30
After considering those impacts, the agency determines what areas should be excluded from
the critical habitat designation, weighing the benefits for and against the designation. What is
22
16 U.S.C. §§ 1533-1544 (2013).
Id.
24
Critical habitat is defined as “the specific areas within the geographical area occupied by the species, at the time it is
listed...on which are found those physical or biological features essential to the conservation of the species and [] may
require special management considerations or protections.” Also, “specific areas outside the geographical area occupied by
the species at the time it is listed” may be designated as critical upon determination by the secretaries that such areas are
essential for conservation of the species. 16. U.S.C. §§1532(5)(A) (2013).
25
Id.
26
16. U.S.C. §§ 1533(b)(2) (2013).
27
50 C.F.R. § 424.12(b) (2012); Ringed, Ribbon, Spotted and Bearded Ice Seals, NOAA FISHERIES, NAT’L MARINE FISHERIES
SERVICE, available at http://alaskafisheries.noaa.gov/protectedresources/seals/ice.htm (last visited Oct. 11, 2014).
28
50 C.F.R. § 424.12(b) (2013).
29
Id.
30
16 U.S.C. §§1533(b)(2) (2013).
23
6
particularly considered is where “the failure to designate such area as critical habitat will result in the
extinction of the species.” 31
2. ESA Protections and Limitations
As soon as a species is listed as endangered or threatened, a number of safeguards and
protections immediately apply. The first protection comes under Section 7 of the ESA, which calls for
consultation by federal agencies to ensure that “any action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued existence of any endangered species . . . or result
in the destruction or adverse modification of [its] habitat.” 32 Examples of a “federal action” include, but
are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation
of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or
grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water or air. 33 Tribal
development projects can be subject to Section 7 requirements because they often require federal
authorization or funding approval. 34
The second protection that applies immediately upon listing is Section 9 of the ESA, which
prohibits the “taking” of an endangered species of fish or wildlife. 35 This section of the Act reaches far
beyond federal agency action because it applies to “any person or agency.” “Take” is defined to mean
“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any
such conduct.”36 The term “harm” has been interpreted here as an act which actually kills or injures
wildlife. 37 It may include “significant habitat modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or
sheltering.” 38
Section 10(e) provides an exemption for Alaskan Natives from the Section 9 prohibition applying
to “any person.” This is the only subsection in the ESA that provides an exemption from the takings
prohibition. Alaskans and non-Native permanent residents of Alaska Native villages are exempt if the
taking is primarily for subsistence purposes. 39 Aside from this subsistence exception, the ESA makes
no mention of any obligation on the part of the federal government to consult or work with tribes when
31
Id.
16 U.S.C. § 1536(a)(2) (2013).
33
50 C.F.R. § 402.02 (2013).
34
Marren Sanders, Implementing the Federal Endangered Species Act in Indian Country, JOINT OCCASIONAL PAPERS ON
NATIVE AFFAIRS, JOPNA No. 2007-01, 6 (2007) [hereinafter Sanders]. Sanders, supra, at 6.
35
16 U.S.C. § 1538(a)(1)(B) (2013).
36
16 U.S.C. § 1532(19) (2013).
37
50 C.F.R. § 17.3 (2013); See also Babbit v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 715
(1995).
38
Babbit, 515 U.S. at 708.
39
16 U.S.C. § 1539(e) (2013).
32
7
a threatened or endangered species resides on or near their lands. To fill the gap in the ESA,
Secretarial and Executive Orders were passed by different administrations in attempts to recognize
tribal sovereignty.
In 1997, the Secretary of the Interior and the Secretary of Commerce jointly released Secretarial
Order 3206 (SO 3206), entitled “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act.”40 SO 3206 states it was created to clarify the responsibilities of the
Departments of the Interior and Commerce and their component agencies, bureaus, and offices
(collectively “Departments”) when actions taken under authority of the ESA affect, or may affect, Indian
lands, tribal trust resources, or the exercise of American Indian tribal rights. 41 Under SO 3206, the
Departments shall, when appropriate and at the request of an Indian tribe, pursue intergovernmental
agreements to formalize arrangements involving sensitive species. 42 The Departments carry out their
responsibilities under the ESA in a manner that harmonizes the federal trust responsibility to tribes,
tribal sovereignty, and statutory missions of the Departments. 43 Additionally, the Departments should
strive to ensure that Indian tribes do not bear a disproportionate burden for the conservation of listed
species, so as to avoid or minimize the potential for conflict and confrontation. 44
One critique of SO 3206 is that it fails to recognize the sovereign tribal governments 45 of the
229 federally recognized tribes 46 in Alaska by not including Alaskan tribes in the SO. According to the
United States Fish and Wildlife Service (USFWS) website, Alaska Natives were not included in the
Order because there was a concern that their subsistence exemption under 10(e) of the ESA might be
otherwise impacted. 47 However, the Departments agreed to make an independent study of the Alaska
Native situation within one year of the signing of the 1997 Order. 48 On January 19, 2001, Secretarial
Order 3225, Endangered Species Act and Subsistence Uses in Alaska (Supplemental to SO 3225),
was signed in recognition that an ESA listed species may be important for Alaska Native subsistence. 49
The act establishes a consultation framework and reiterates the government-to-government
40
Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities and the Endangered Species
Act, available at http://www.fws.gov/nativeamerican/laws.html (last visited Oct. 11, 2014) [hereinafter “SO 3206”].
41
Id. supra at 1.
42
Id.
43
Id.
44
Id.
45
Sanders, supra note 35.
46
Alaska’s 229 Federally Recognized Tribes, ROOTS WEB ANCESTRY
http://www.rootsweb.ancestry.com/~akgenweb/AKTribes_August2005.pdf (last visited Oct. 11, 2014). Quick Facts for
Alaska, supra note 37.
47
Working With Tribes I Frequently Asked Questions, U.S. FISH & W ILDLIFE ENDANGERED SPECIES (July 15, 2013) available
at http://www.fws.gov/endangered/what-we-do/tribal-faq.html, (last visited Nov. 17, 2014).
48
Id.
49
SO 3206 (sup), Endangered Species Act and Subsistence Uses in Alaska, UNITED STATE DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY (Jan. 19, 2001), available at http://www.fws.gov/alaska/external/pdf/SO3225.pdf (last visited Oct.
12, 2014).
8
requirements for ESA implementation in Alaska. 50 Government-to-government consultation with NMFS
is guaranteed if hunting seasons or quotas are deemed necessary and, or proposed by NMFS. 51
In 2000, Executive Order 13,175 52 (EO 13,175) was signed, which set the framework for regular
and meaningful consultation and collaboration with Alaska Native representatives in the development
of policies, legislation, regulations, and programs. 53 EO 13,175 was meant to strengthen the United
States’ government-to-government relationships with tribes, and reduce the imposition of unfunded
mandates upon them. 54 EO 13,175 is clear that it is intended only to “improve the internal management
of the executive branch, and is not intended to create any right, benefit, or trust responsibility,
substantive or procedural.” 55 President Obama recommitted his Administration to the EO in 2009, and
the Department of Commerce issued a new Tribal Consultation and Coordination Policy for the
Department of Commerce (DOC Policy) in 2013. 56 The DOC Policy describes the manner in which the
Department works with Tribes on a government-to-government basis when formulating or
implementing policies that have Tribal implications. 57 The policy outlines consultation procedures for all
operating units within the Department of Commerce. 58 Like EO 13,175, this policy is intended only for
NOAA internal management purposes and does not create any right or benefit, substantive or
procedural, enforceable against the United States.”59
Take prohibitions, mandatory consultations, and critical habitat designations are not the only
requirements under the ESA. The ESA also requires the Secretary to develop and implement recovery
plans for the conservation and survival of endangered and threatened species. 60 The recovery plan
must describe site-specific management actions for the conservation and survival of the species, as
50
Id.
Id.
52
Exec. Order No. 13175, 65 FR 67249 (2000) (The new Executive Order expressly revoked E.O. 13,084).
53
Tribal Consultation in Alaska,” NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION’S NATIONAL MARINE FISHERIES
SERVICES, available at http://alaskafisheries.noaa.gov/tc/default.htm, (last visited Oct. 9, 2014).
54
Sanders, supra note 27, at 10.
55
Exec. Order No. 13175, 65 FR 67249 (2000).
56
Federal Register, “Final NOAA Procedures for Government-to-Government Consultation With Federally Recognized
Indian Tribes and Alaska Native Corporations,” available at http://alaskafisheries.noaa.gov/notice/78fr68819.pdf (last visited
Dec. 3, 2013). FEDERAL REGISTER, (2013).
57
Id.
58
Id.
59
“NOAA Procedures for Government-to-Government Consultation With Federally Recognized Indian Tribes and Alaska
Native Corporations,” NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE,
NOAA 13175 POLICY (Nov. 12, 2013) available at
http://www.legislative.noaa.gov/policybriefs/NOAA%20Tribal%20consultation%20handbook%20111213.pdf.
60
16 U.S.C. § 1533 (2014).
51
9
well as objective, measurable criteria to contribute to the recovery of the species, within a planned
time-frame. 61
B. The Marine Mammal Protection Act (MMPA)
1. Purpose and History of the MMPA
The Marine Mammal Protection Act (MMPA) was enacted in 1972 to protect all marine
mammals. 62 The MMPA prohibits, with certain exceptions, the “take” of marine mammals in United
States waters and by United States citizens on the high seas and the importation of marine mammals
and marine mammal products into the United States. 63 In 1994, the MMPA was amended substantially
in order to provide certain exceptions to the take prohibition. The 1994 amendments added Section
119 to enhance conservation and management of marine mammal population stocks that are taken by
Alaska Natives for subsistence purposes. 64 Section 119 is comparable to the 10(e) “take” exception in
the ESA. This section also allows the Secretaries of Commerce and the Interior to “enter into
cooperative agreements with Alaska Native organizations to conserve marine mammals and provide
co-management of subsistence use by Alaska Natives.” 65
2. Protections under the MMPA
One example of the protections afforded under the MMPA is the determination of the health of
each individual population stock. Under the MMPA, if the Secretary determines that a species or
population stock is below its optimum sustainable population, a stock is considered “depleted;”
consequently, measures will be taken to replenish these species or stocks. 66 Additionally, if the
Secretary determines “any species or stock of marine mammal subject to taking by Indians, Aleuts, or
Eskimos to be depleted, he may prescribe regulations upon the taking of such marine mammals by any
Indian, Aleut, or Eskimo.” 67 The Center for Biological Diversity seeks to list the Iliamna Lake seal as a
distinct population segment under the Endangered Species Act because Iliamna Lake seals are
separated from other species of seals and possess differing characteristics from the Pacific Harbor
61
Id., Phone Interview with Jon Kurland, Assistant Regional Administrator for Protector Resources, National Marine
Fisheries Service (Dec. 16, 2013).
62
16 U.S.C. § 1361 (2014).
63
Id.
64
16 U.S.C. § 1371 (2014).
65
Id.
66
Id.
67
16 U.S.C. § 1371 (b)(3) (2003).
10
seal. 68 Presently, the seals in Iliamna Lake are considered part of the Bristol Bay harbor seal stock,
and not a separate stock as defined by the Marine Mammal Protection Act. 69
C. The Alaska Native Claims Settlement Act
Landownership in Alaska is unique and deserves examination. While an in-depth analysis of
the different structures of land ownership in Alaska is outside the scope of this article, a brief overview
follows. Stated simply, in 1971 Congress passed the Alaska Native Claims Settlement Act (ANCSA),
which established business corporations, owned by Alaska Natives, to manage their land claims
settlements of nearly $1 billion and 44 million acres. 70 Subsequently, twelve 71 regional and more than
200 village corporations were organized. By 1973, about 75,000 Alaska Natives were enrolled as
shareholders with their respective regional and local village corporations. 72 The Act provided that the
village corporations would receive the surface estate and the regional Corporations would receive the
subsurface estate. 73 The Native Corporations were given the broad task of benefiting their
shareholders and future generations of shareholders, but the form the benefits ought to take, and how
to generate them were not clear. 74 Today, through trial and error, many of the Native Corporations
have become powerful economic forces by participating in various industries ranging from tourism,
mining, timbering, military contracting, to energy production. It seems only fitting that if any entity can
petition to list a species as threatened or endangered, where the land affects Native Corporationowned land, the shareholders and organizations should play a role in this assessment.
68
See generally, Petition, supra.
“Endangered and Threatened Wildlife; 90-day Finding on a Petition to List Iliamna Lake Seals as Threatened or
Endangered Species,” OFFICE OF THE FEDERAL REGISTRAR, available at https://federalregister.gov/a/2013-11869
(last visited Oct. 15, 2014).
70
43 U.S.C. § 1601 (2014); “Benefits from Alaska Native Corporations,” UNIVERSITY OF ALASKA ANCHORAGE
INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH, (2009), available at,
http://www.iser.uaa.alaska.edu/Publications/8(a)/C.pdf [hereinafter ISER Study].
71
th
A 13 regional corporation was later established to accommodate some of those Alaska Native People who had moved
outside the state.
72
Id.
73
See generally 43 U.S.C. § 1601 (1971).
74
ISER Study, supra note 71, at 1.
69
11
The twelve regional land-based Alaska Native Corporations.
1
The land surrounding Lake Iliamna was a part of the ANCSA land settlement. Three village
corporations 75 and one regional Native Corporation 76 collectively own the surface and subsurface land
surrounding Lake Iliamna, where the seals have been observed during aerial surveys.
The statutory schemes of the ESA and MMPA are different. Each scheme provides certain
protections, but each has its limitations. As a result, and because of the way land ownership is
structured under the ANCSA land settlement, whether the Iliamna Lake seal is protected under a
certain statute could have broad-sweeping effects on Native landowners.
PART III. THE ILIAMNA LAKE SEALS SHOULD NOT BE LISTED AS ENDANGERED
A. More Information on the Lake Seals Needs to be Collected
Regardless of whether the Iliamna Lake seal is listed as threatened or endangered under the
ESA, they are currently protected under the MMPA. As it stands, the seals in Iliamna Lake are
considered part of the Bristol Bay harbor seal stock, and not a distinct population. The current
designation could be due to the fact that little is known about the seal population. Since 2011, the
University of Alaska Anchorage, the Bristol Bay Native Association (BBNA), the Newhalen Tribe, and
the Alaska Department Fish and Game have been working in partnership to conduct quarterly aerial
75
76
Iliamna Village Council, Pedro Bay Corporation, and Alaska Peninsula Corporation.
Bristol Bay Native Corporation.
12
surveys to assess the population of the Iliamna Lake seal. 77 Funding for the surveys is a five-year
project that extends from 2009 until 2014.
For two cycles, the North Pacific Research Board (NPRB) funded BBNA, who took the lead in
gathering environmental baseline data through interviews and aerial surveys. In the second NPRB
funding cycle, the Alaska Department of Fish and Game chose to take the lead in gathering baseline
data. 78 Last year, the Bristol Bay Marine Mammal Council (BBMMC) wrote a letter to the NMFS
expressing its opposition to listing the Iliamna Lake seal as a threatened or endangered species
because studies show the population to be healthy and not in decline. 79 The letter noted that the Lake
serves as a main mode of transportation for everyday travel and also for traditional subsistence
harvesting of salmon, freshwater fish species, seals, waterfowl, large land animals, and wild edible
plants.”80 Additionally, the lake is used, “to transport wood for heat, for fuel barge services, and other
barge services for the Lake Iliamna residents.” 81 The BBMMC stated that not enough data was
available to determine whether the Iliamna Lake seal is a distinct population under the ESA. The
council also urged NMFS and the Center for Biological Diversity “to hold face-to-face Tribal
Consultation with the Iliamna Lake-area Tribal Councils and the BBMMC. 82
Allowing any citizen to petition to list a species is a concern for tribal governments because
these petitioners lack important tribal government input, and may have no expertise in determining
whether the listing is warranted at all. More research should be conducted to determine whether the
Iliamna Lake seal is genetically different from the harbor seals in Bristol Bay. If the Iliamna Lake seal
were determined to be a distinct population species, it would qualify as a separate stock under the
existing regulatory framework of the MMPA. If the seals were recognized as a separate stock, the
Secretary would have more discretion to protect the seals in Iliamna Lake from the threats unique to its
habitat and environment.
1. The SO and EO’s Do Not Sufficiently Protect Tribal Sovereignty
The existing Secretarial and Executive Orders are not sufficient to protect tribal sovereignty.
While EO 13,175 and SO 3225 have resulted in positive internal agency policies, they do not create
77
“Alaska Harbor Seal Research Plan,” NOAA National Marine Fisheries Service, (2011), available at,
https://alaskafisheries.noaa.gov/protectedresources/seals/harbor/researchplan12.pdf (study to estimate Harbor Seal
Distribution, Abundance, and Seasonal Timing in Lake Iliamna).
78
E-mail Interview with Helen Alderman (Chythlook), Marine Mammal Program Manager, Bristol Bay Marine Mammal
Council (Dec. 16, 2013).
79
Letter from the Bristol Bay Marine Mammal Council to the Alaska Region National Marine Fisheries Service from the
Bristol Bay Marine Mammal Council (Dec. 5, 2012) (on file with author).
80
Id.
81
Id.
82
Id.
13
rights for tribal governments or strengthen tribal sovereignty because tribal land may still be designated
as critical habitat. A sovereign government would possess the inherent authority to det
ermine
whether the ESA should apply to lands they owned at all. What EO 13,175 and SO 3225 have resulted
in, is a good faith effort on behalf of the current Administration to work with tribes on a government-togovernment basis in developing policy. If the Lake Iliamna seal were listed, the National Marine
Fisheries Service, a division of NOAA and the Department of Commerce, would continue to operate
under the guiding framework of EO 13,175, SO 3225, and the DOC Policy in dealing with tribal
governments and Alaska Native organizations. Assuming this EO and SO are supported by the
Administration in office. Unfortunately, this guiding framework can be expressly revoked if a newly
elected Administration does not believe in supporting tribal sovereignty.
Where the ESA and MMPA diverge is in the requirement to designate critical habitat for the
species. The ESA mandates that when NMFS lists a species as endangered or threatened, the agency
must also concurrently designate critical habitat for the species, “to the maximum extend prudent and
determinable.” 83 In its petition to list the Iliamna Lake seal, the Center for Biological Diversity (Center),
“expects that NMFS will comply with this unambiguous mandate and designate critical habitat
concurrently with the listing of the Iliamna Lake seal.” 84 The Center states that critical habitat must
include the islands and shoreline in the northeast half of Iliamna Lake that are known to be used by the
seals for hunting and resting. 85 What the petition fails to mention, is that critical habitat listing is not
limited to the islands and shoreline of Iliamna Lake; it extends to air and aquatic zones as well.
2. Potential Effects of an ESA Listing of the Lake Seal
If critical habitat were designated on Native corporation-owned land, these corporations would
be stifled in deciding how to manage their lands. Critical habitat designation in Alaska, on Native
corporation-owned lands, raises critical issues of concern. For example, a federal action that may
trigger Section 7 consultation under the ESA would be if a community sought to build a landing dock on
the side of the lake. The action would likely require a regulatory permit from the Army Corp of
Engineers, and several permits from the State of Alaska. The issuance of a permit is considered a
“federal action.” 86 Due to the fact there are no roads in or out, marine transportation is important
because it supports the movement of critical commodities such as food, fuel, and building supplies at a
significantly lower cost than flying it in by airplane. In early 2012, three communities on Lake Iliamna
received approval to construct vital barge landings. 87 If the Iliamna Lake seal were listed as threatened,
and critical habitat was designated, the approval for the three barge landings would likely have been
83
16 U.S.C. § 1533(b) (2014).
85
Id.
86
50 C.F.R. § 402.02 (2014).
87
E-mail Interview with Lamar Cotton, Borough Manager, Lake and Peninsula Borough (Dec. 16, 2013).
84
14
delayed due to the Section 7 consultation requirements. This delay would have been detrimental to the
projects because the Alaska construction season is a very limited due to the weather conditions and
the shortened summer season. Another example would be if any roads were built near the lake that
required a right-of-way. It would be necessary to assess whether the construction and traffic on a road
could potentially affect the seal’s habitat, or be classified as a “taking.” 88 The future of the region is
wide open, and development for some corporations may not mean the same thing. Ultimately, it should
be up to each corporation to decide what is best for its shareholders. Therefore, it is vital that tribes
and Native Corporations are included in ESA listing determinations.
If the Iliamna Lake seal were listed as threatened under the ESA, there could be positive
outcomes. The tribes around the lake would still be able to practice their subsistence activities of
harvesting the seal because tribal members would be granted an exemption. Additionally, there is
great potential for the local tribes and NMFS to work collectively towards more fully understanding the
Iliamna Lake seals. For example, in northwest Alaska (near the Chukchi Sea), the Native Village of
Kotzebue launched a three-year study to better understand the seasonal movement, habitat use, and
dive behavior for the ringed seals in Alaska, which are a listed threatened species. 89 The project
proposal recognized, “[t]here is a critical need to further marine mammal research in Alaska with Tribal
involvement and to develop management strategies for ice seals where none currently exist.” 90 The
project declaration arguably holds true for the future of management strategies for all species found in
Alaska waters, land, and air. It is critical for partnerships between local tribes and NMFS to form, not
only to validate traditional knowledge and acknowledge sovereignty, but also for the preservation and
growth of all species for future generations. The report for the Kotzebue Ringed Seal Study stated that,
“[e]ffective marine mammal management in Alaska requires [that] resource users trust the information
being used in management decisions. There is no better way to develop trust in management
decisions than by undertaking cooperative projects to acquire the needed information.”91
The Iliamna Lake seal is a welcome and respected neighbor to the tribes that call Lake Iliamna
home. It is important for the local tribes and the state and federal agencies to develop their
understanding of this unique population. If anything, more resources should be allocated to gathering
accurate population numbers and the genetic differences from the harbor seals species, so they can
be listed as a distinct population under the MMPA. If the Iliamna Lake seal were recognized as a
88
See generally 16 U.S.C. §§ 1532(5), (19) (2014); 16 U.S.C. 1533 § 1(e) (2014).
“Kotzebue Sound Ringed Seal Tagging Project,” THE NORTH SLOPE BOROUGH, available at, http://www.northslope.org/departments/wildlife-management/co-management-organizations/ice-seal-committee/isc-researchprojects/kotzebue-sound-ice-seal-research#KOTZRingedSealTaggingProject (last visited Oct. 15, 2014) [hereinafter
Kotzebue Project].
90
Id.
91
Kotzebue Sound Ringed Seals-what have we learned? KOTZEBUE MARINE MAMMAL NEWS, May 2012, at 15, available at
http://www.northslope.org/assets/images/uploads/Kotzebue%20Marine%20Mammal%20News%20May%2029%202012_55837.pdf
89
15
distinct population segment, the population levels would be monitored on an annual or tri-annual basis
to ensure the seals do not fall below their optimum sustainable population. 92
3. Alaska Native Organizations should be included in the Future Management of
the Lake Seal
At this time, it is premature to list the Iliamna Lake seals as threatened without devoting more
time and resources to research this distinct seal population. If the Secretary decides to list the Iliamna
Lake seal as threatened, it would inhibit the local and regional Native Corporations from developing
land around the lake that may require the issuance of a federal permit or right-of-way. At a minimum,
the Iliamna Lake seal should be listed as a distinct population stock under the MMPA, which would
provide protections to Alaska Native subsistence and management interests. Irrespective of whether
the Iliamna Lake seal is listed or not, local Alaska Native organizations should be included in the future
co-management of the species. The time is now for a more inclusive and holistic management of the
ESA on Alaska Native owned land.
92
See generally 16 U.S.C. § 1362 (2003).
16
SOVEREIGNTY, ECONOMIC DEVELOPMENT, AND HUMAN
SECURITY IN
NATIVE AMERICAN NATIONS
W. Gregory Guedel∗
I want to build on our true government-to-government relationship…As we made
clear in the Executive Order earlier this year that established the White House
Council on Native American Affairs, we have a unique legal and political
relationship, one that’s been affirmed many times in treaties, in statutes and in the
Constitution. That’s the unique relationship we honor today. That’s the
relationship we're called upon to sustain for the progress of all of our
peoples…let’s keep our covenant strong by strengthening justice and Tribal
sovereignty. 1
I.
INTRODUCTION
These powerful words from President Obama are encouraging for
advocates of enhancing the sovereignty of Native American nations, but the
President himself confirmed an equally important fact: “What matters far more than
words—what matters far more than any resolution or declaration—are actions to
match those words.” 2 This study explores elements of the sovereignty dynamic in
the government-to-government relationship between the United States and Native
American nations to assess 1) what benefits Tribal communities glean from this
unique relationship; and 2) whether enhanced Tribal sovereignty can enhance
overall quality of life for Native Americans. This study seeks to identify approaches
for understanding economic development and human security conditions unique to
*Mr. Guedel is Chair of Native American Legal Services for Foster Pepper PLLC in Seattle, a
researcher at the University of Washington Jackson School of International Studies, and serves as
Chair of the American Bar Association’s Committee on Native American Concerns. The author is
tremendously grateful to Dr. Christina Wygant of the University of Washington’s Program for the
Comparative History of Ideas for her contributions and editing of this paper.
1
President Barack Obama, White House, Remarks by the President at Tribal Nations
Conference, (Nov. 13, 2013) (transcript available at http://www.whitehouse.gov/photosand-video/video/2013/11/13/president-obama-speaks-2013-tribal-nationsconference#transcript).
2
Gregory Guedel, White House Tribal Nations Conference Progress Report Released, NATIVE
AMERICAN LEGAL UPDATE, (Dec. 6, 2011), http://www.nativelegalupdate.com/2011/12/articles/whitehouse-tribal-nations-conference-progress-report-released.
17
Tribal communities by examining empirical results from specific instances of Tribal
sovereignty assertions. This study focuses on “Sovereignty Events”— wherein
Tribal governments individually and/or collectively assert sovereignty through
definable actions commencing at an identifiable point in time—to show how these
events allow for growth, development, and increased security within the Tribes.
Three case studies centered on the sovereign resource of Tribal gaming revenues
are presented:
1. Increases and growth trends in Tribal gaming revenue following California
v. Cabazon;
2. Allocation of Tribal gaming revenue for political contributions to increase
Tribal influence in Washington, D.C.; and
3. Poverty outcomes in Tribal communities relative to Tribal gaming revenue.
There are presently 566 federally-recognized Tribes within the United
States, and the United States and Tribal nations share governmental control over
policies and programs affecting Native Americans in a unique legal arrangement
known as “domestic dependent sovereignty”. 3 It is a treaty-based, government-togovernment relationship in which federally recognized Tribes are treated as
separate nations whose sovereignty has in some areas been reduced from the
traditional nation-state. 4 This paradigm is the manifestation of several centuries of
evolution, wherein European colonial powers and the United States government
forcibly undermined (and at times abolished) the organic societies and political
organizations of the indigenous people of the Americas. Despite the fact that
Native American nations are geographically located within the territorial
boundaries of the United States, the United States and Tribal governments are
engaged in an international relationship, which calls for analysis utilizing the
methodologies and metrics of international development research.
Within the field of International Studies, human security is viewed as a
means of holistically “creating political, social, environmental, economic, military,
and cultural systems that together give people the building blocks of survival,
3
See, Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
Between 1776 and 1871, over 379 treaties were ratified between the United States government
and Tribal nations, and these treaties continue to form a fundamental element of the present
government-to-government relationship. See JEFF CORNTASSEL & RICHARD C. W ITMER, FORCED
FEDERALISM: CONTEMPORARY CHALLENGES TO INDIGENOUS NATIONHOOD 58 (2008).
4
18
livelihood, and dignity.” 5 For Native American nations, human security provides a
broad description of the conditions that impact the quality of life in a given Tribal
community: physical security, economic development, public health, cultural
freedom, and others. The statistics for Native American communities have
chronically registered unfavorably compared to the United States national average
in most measurable areas of human security including higher rates of preventable
disease, lower employment, increased poverty, and higher levels of violent crime.
Professor Kevin Bruyneel of Babson College has argued that the increased
assertion of Tribal [S]overeignty “can open up realms of political maneuverability
for indigenous people”, offering a new pathway for addressing human security
conditions. 6 For many Native American nations, sovereignty appears to hold the
potential to be a transformative political and socio-economic force to deploy in the
effort to ameliorate chronic poverty, preventable disease, and social justice issues.
Working from the institution of national Tribal casino gaming at the end of
the 1980s, the research described in this article analyzes Tribal policies and
implementation approaches intended to result in measurable improvements in
Native American human security indicators.
Combining information from
government and academic sources with new data and research analytics, this
study seeks to provide some evidence-based answers to the question: “How does
Tribal sovereignty impact human security in Native American nations, and does
enhanced Tribal sovereignty lead to enhanced quality of life?”
With Tribal gaming revenue and its specific uses as the manifestations of
Tribal assertion of sovereignty, this study presents three case studies with
empirical outcomes of Sovereignty Events related to Tribal economic resource
development, Tribal political influence on congressional funding for the U.S.
Bureau of Indian Affairs, and poverty levels within Native American nations located
in the northwestern United States.
5
JAMES K. W ELLMAN JR. & CLARK B. LOMBARDI, RELIGION AND HUMAN SECURITY: A GLOBAL
PERSPECTIVE 7 (2012).
6
KEVIN BRUYNEEL, THE THIRD SPACE OF SOVEREIGNTY: THE POSTCOLONIAL POLITICS OF U.S.INDIGENOUS RELATIONS 229 (2007).
19
A. Overview of Native American Human Security Issues
There are approximately 5.2 million Native American and Alaska Natives in
the United States. 7 49 percent self-identify their race as Native only, and 51
percent identify as Native in combination with one or more other races. 8 Empirical
data on human security measures for Native Americans has chronically indicated
sub-standard conditions compared with the population of the United States as a
whole, and certain fundamental metrics on economic development, law
enforcement, and public health indicate problems of crisis proportions. 9 For
example:
•
•
27 percent of Native Americans live in poverty, the highest rate for any
racial group in the United States, and nearly double the national average.
The median household income of Native Americans in 2012 was $35,310—
the national average was $51,371. 10
Tribal communities experience rates of violent crime and domestic violence
that substantially exceed national averages. Of all federal criminal cases
involving juveniles in 2008, nearly half involved Native American youth. The
percentage of successful prosecutions for on-reservation crime is
significantly lower. Of the 566 federally recognized Tribes in the U.S., only
178 have law enforcement agencies that employ at least one full-time
sworn officer with general arrest powers. 11
7
U.S. CENSUS BUREAU, U.S. CENSUS: THE AMERICAN INDIAN AND ALASKA NATIVE POPULATION, (Dep’t
of Commerce Jan. 2012), available at http://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf
(last visited Oct. 4, 2014).
8
U.S. CENSUS BUREAU, AMERICAN INDIAN AND ALASKA NATIVE HERITAGE MONTH: NOVEMBER 2013,
U.S. CENSUS BUREAU NEWS (Dep’t of Commerce Oct. 31, 2013), available at
http://www.census.gov/newsroom/releases/pdf/cb13ff-26_aian.pdf (last visited Oct. 4, 2014)
[hereinafter U.S. CENSUS].
9
As United States policy makers and international academics place increasing emphasis on global
wealth inequality, the disparity between Native American nations and the rest of the United States
provides a stark case study. For example, the state of South Dakota is the corporate headquarters
home to banks controlling assets in excess of $2.76 trillion - the highest amount of capital of any
state in the nation- while the state’s residents living on the Oglala Sioux Pine Ridge Reservation
have the lowest per-capita income in the country. The state currently has the third-lowest overall
unemployment rate in the United States at 3.7%, yet unemployment on Pine Ridge typically
exceeds 75%. See: South Dakota - Quietly Booming, The Economist, August 30, 2014, p.27.
10
American Indian and Alaska Native Poverty Rate about 50 Percent in Rapid City, S.D., and
about 30 Percent in Five Other Cities, Census, UNITED STATES CENSUS BUREAU, (Feb. 20, 2013),
http://www.census.gov/newsroom/press-releases/2013/cb13-29.html#.
11
Census of State and Local law Enforcement Agencies, 2008, BUREAU OF JUSTICE STATISTICS,
July 26, 2011, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=2216.
20
•
Native Americans have the highest rate of suicide in the U.S., and a
homicide rate three times higher than whites. 12
Given that these perilous human security conditions exist within the borders
of one of the most highly developed nations in the world, the extent and
persistence of negative indicators for Native Americans calls for the analysis of
root causes and viable modes of action toward improvement.
B. Research Hypothesis
For over 200 years, the United States government has held primary control
over economic development and human security resources and programs
impacting Native Americans. 13 The empirical results of this balance of sovereignty
for America’s indigenous people have been chronically poor. Identifying more
promising pathways for increasing Native American development indicators stands
today as a political and moral imperative for both the U.S. and Tribal governments.
The research discussed in this article examines the hypothesis that economic
development and human security indicators for Native Americans can be improved
by shifting more control over socio-economic programs and resources to Tribal
governments, i.e. enhancing Tribal sovereignty. The underlying assumptions are
that enhanced Tribal sovereignty allows economic and human security
development programs to be tailored to specific local needs and conditions, be
implemented more efficiently, and maintain consistency with indigenous culture
and traditions.
The research will test whether increased control by a Tribal government
over a specific resource or program results in a measurable increase in a related
human security condition for the Tribal community. Following a Sovereignty Event
as described below, the study expects to see measurable improvement in the
related human security condition (e.g. an increase in the annual revenue of an
economic activity that is taken over or created by Tribal governments).
12
CDC Health Disparities and Inequalities Report – United States, 2011.
VINE DELORIA & DAVID W ILKINS, TRIBES, TREATES, AND CONSTITUTIONAL TRIBULATIONS 71-78
(1999).
13
21
C. Assessing Native American Human Security – Independent and
Dependent Variables
The methodological approach in this research is to assess the impact of
Tribal Sovereignty Events on selected human security data. A Sovereignty Event
is a term I created to describe an act taken by a Tribe or Tribes that results in: 1)
the development of new resources for the Tribal community; 2) increased control
by Tribal government over programs and/or resources previously managed by the
U.S. government connected to human security; and/or 3) utilizing Tribal resources
to impact U.S. policy toward Native American human security. A Sovereignty
Event offers a clear point in time for comparing before-and-after performance of
measurable economic development and human security indicators. Examples of
Sovereignty Events include, but are not limited to, Tribes signing a treaty with the
United States or a compact with state government, winning a lawsuit to confirm
sovereignty rights, or creating a unique sovereign enterprise within Tribal lands.
For this study, three Sovereignty Events that serve as Independent
Variables are:
1) The institution of national Tribal casino gaming via the outcome of
the California v. Cabazon federal litigation in 1987 (Case Study
1);
2) The use by Tribes of gaming revenue dollars to make political
contributions to U.S. Senators, 1997-2006 (Case Study 2); and
3) The collective gaming revenue obtained by Tribes in the
Northwestern U.S. between 2001-2010 (Case Study 3).
This study will analyze the three Sovereignty Event case studies to assess
their relationship to the corresponding Dependent Variables: measurable
economic development and human security outcomes connected to the
Sovereignty Events. The analysis will focus specifically on economic performance
and related human security indicators. The three corresponding Dependent
Variables for the study are:
22
1) Tribal economic resource development, in the form of new
revenue realized from casino gaming operations between 19952005 (Case Study 1);
2) U.S. Congressional appropriations for the Bureau of Indian Affairs
between 1997-2006 (Case Study 2); and
3) Poverty statistics for members of NIGC Region 1 Tribes between
2000-2010 (Case Study 3).
The three case studies offer before-and-after comparisons of measurable
Native American economic development and human security indicators relative to
Sovereignty Events designed to impact them. The goal of the research is to
identify the extent to which the assertion of Tribal governments’ sovereignty is
associated with empirical increases in economic development and human security
indicators in Tribal communities, i.e. whether quality of life within a Tribe can be
measurably increased if Tribal governments take greater control over programs
and resources for the benefit of their members.
II.
STUDY
A. Case Study 1: Tribal Gaming and Economic Resource Development 14
A chronic problem that has hampered the advancement of Tribal
development and human security has been a lack of economic resources available
to Tribes. 15 The fundamental elements of every community—education, health
care, infrastructure, and public safety resources, to name a few—require
significant capital to implement and maintain a quality of life. Tribes have
perennially struggled to raise development capital due to factors such as
geographic isolation, lack of access to markets, and a lack of willingness of
traditional financing sources to invest in Tribal communities. 16 With the cost of
essential human security components subject to continual inflation, it is imperative
14
Gaming Revenue Reports, NATIONAL INDIAN GAMING COMMISSION,
http://www.nigc.gov/Gaming_Revenue_Reports.aspx, (last visited Nov. 19, 2014) (Data utilized for
assessment: National Indian Gaming Commission Tribal Gaming Revenues, 1995 – 2013).
15
W. GREGORY GUEDEL, STRATEGIES AND METHODS FOR TRIBAL ECONOMIC DEVELOPMENT 13 (2013).
16
See id. at 45.
23
for Tribal governments to cultivate sustainable sources of capital that can be used
to fund development programs.
One of the landmark Sovereignty Events for Native American nations in the
second half of the 20th Century was the outcome of California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987). In the mid-1980s, two Tribes in Southern
California were conducting small on-reservation card and bingo gaming operations
which catered to both Tribal members and non-Tribal visitors. The State of
California declared that such gaming operations were illegal under California law
and demanded the Tribes cease the activity completely. The Tribes refused, citing
Tribal sovereignty, and asserted that the state did not have regulatory jurisdiction
over the Tribe’s on-reservation economic activities. The State of California
subsequently sued the Tribes in federal court, and the case proceeded and was
ultimately heard by the U.S. Supreme Court.
In 1987, the Supreme Court ruled that state governments could not restrict
Tribal gaming when other forms of gaming (e.g. a state lottery) were allowed within
the state even if full casino gaming was not allowed. The practical result of the
decision was to open the way for Tribes to undertake Las Vegas-style casino
gaming within the boundaries of their reservations. The economic potential of the
legal victory was readily apparent to both Tribes and the U.S. government. As
Tribes began making plans for undertaking casino gaming, they conducted
government-to-government talks with the U.S. to assess and manage future
impacts. A new agency, the National Indian Gaming Commission (NIGC), was
formed in 1988 as the national regulatory body and data repository for Tribal
gaming.
The NIGC began collecting and publishing national and regional Tribal
gaming revenue data in 1995. Presently, about 250 Tribes in 28 states are
involved in Class III casino-style gaming. 17 Graph 1 illustrates the growth in the
collective revenue realized by gaming Tribes nationally from 1995 through the
current reporting year.
17
Dwanna L. Robertson, The Myth of Indian Casino Riches, INDIAN COUNTRY (June 23, 2012),
http://indiancountrytodaymedianetwork.com/2012/06/23/myth-indian-casino-riches.
24
GRAPH 1
The data indicates significant and continued growth in Tribal gaming
revenue over the first reported decade, with collective revenue growth each year.
Between 1995 and 2013, gaming Tribes nationally collected a total of over $293
billion in revenue from casino operations. These funds constitute a sovereign
resource under the exclusive control of Tribal governments that can be utilized for
economic and human security development programs in accordance with the
needs and priorities of the communities they represent.
Data-Based Associations – Case Study 1:
•
Tribal casino gaming, instituted by the Sovereignty Event of Tribes
prevailing in California v. Cabazon, is associated with gaming Tribes
collectively realizing tens of billions of dollars of additional annual revenue
25
that is presently available to support economic development and other
human security programs for Tribal communities.
•
Beginning in 2007, the collective revenue from Tribal casino operations has
plateaued. The nearly 400 percent growth in annual gaming revenue from
1996 to 2006 has been followed by less than 7 percent total growth for the
last seven years, including two consecutive years of negative or zero
growth.
The data revealed in this case study has significant implications for Tribal
governments in their strategic planning for using the sovereign economic resource
of gaming revenue. While the raw revenue statistics for the full reporting period
are impressive in terms of total dollars, the past seven years reflect a markedly
reduced rate of growth for Tribal gaming income. Market saturation, increased
competition, and a general reduction in U.S. household spending have created
significant challenges for the Tribal gaming industry. 18 The data suggests that
Tribal gaming revenue may have reached a peak level with limited future growth
potential, increasing the importance of effective resource management and
investment practices by Tribal governments.
B. Case Study 2: Tribal Gaming, Political Contributions, and United
States Policy Outcomes 19
As transformative as gaming revenue has been for the on-reservation
socio-economic conditions of Tribes, it has also led to increased Tribal influence
outside their borders. The Bureau of Indian Affairs (BIA) is an agency within the
U.S. Department of Interior, and is the primary federal agency with which all Tribes
18
In the past 10 years, numerous Tribes have closed gaming facilities and ceased operations,
including the Apache Nation of Oklahoma, the Paskenta and San Ysabel in California, and the
Spokane in Washington. The Foxwoods Casino operated by the Mashantucket Pequot Tribe, the
largest gaming facility in the United States defaulted on $2.3 billion in debt in 2009 and its year-onyear quarterly cash flow for Q2 2014 was down over 41%. See e.g., Journal Wire Services, Slow
Recovery More Competition Hurting Foxwoods, PROVIDENCE JOURNAL (Aug. 18, 2014), Available at
http://www.providencejournal.
com/business/content/20140818-slow-recovery-more-competitionhurting-foxwoods.ece (last visited, Nov. 9, 2014).
19
Frederick J. Boehmke and Richard Witmer, Indian Nations as Interest Groups Tribal Motivations
for Contributions to United States Senators, 65 POLITICAL RESEARCH QUARTERLY 179-191 (2012);
Indian Gaming, CENTER FOR RESPONSIVE POLITICS, Oct. 25, 2014,
http://www.opensecrets.org/industries/totals.php?cycle=2014&ind=G6550.
26
interact in their relationship with the federal government. The BIA is also the
agency with primary responsibility for administering and funding Native American
human security programs on behalf of the federal government. Tribal human
security programs administered by the BIA include:
•
•
•
•
•
•
Education
Social Services and Housing Improvement
Natural Resources Management and Disaster Relief
Economic Development
Law Enforcement
Infrastructure Development and Maintenance
The BIA’s 2014 Green Book report states the agency’s human security
mission: “Through Indian Affairs programs, Tribes improve the quality of life for
their members, their Tribal government infrastructure, community infrastructure,
education, job training, and employment opportunities along with other
components of long term, sustainable development.” 20
Despite the BIA’s stated mission of support for Tribal development, in 1996,
Tribes faced a major external human security crisis in their relationship with the
United States government. The U.S. Government Accountability Office and
Congressional Budget Committees had both been investigating BIA operations for
several years, and separately issued reports condemning program waste and
operational inefficiencies and recommending the agency’s budget be cut by up to
$250M beginning in FY 1998. 21 Recognizing the impact of the proposed cuts to
the BIA’s budget, in April 1996 Assistant U.S. Secretary of Indian Affairs Ada Deer
stated: “If the final decisions of Congress are in alignment with the Budget
Committees, Indian Tribes will suffer yet another major setback.”22
20
BUDGET JUSTIFICATIONS AND PERFORMANCE INFORMATION FISCAL YEAR (2014) available at
http://bia.gov/cs/groups/xocfo/documents/text/idc1-021730.pdf (last visited Nov. 9, 2014).
21
Bureau of Indian Affairs: Information on Potential Budgetary Reductions for Fiscal Year 1998,
U.S. GOVERNMENT ACCOUNTABILITY OFFICE (April 25, 1997), available at
http://www.gao.gov/products/RCED-97-136R.
22
Ada Deer, Assistant Secretary Deer Delivers Budget Cut Warning, UNITED STATES DEPARTMENT
OF INTERIOR NEWS (May 16, 1996), available at
http://www.bia.gov/cs/groups/public/documents/text/idc014542.pdf (last visited Nov. 19, 2014).
27
The U.S. Senate, by traditional and internal committee structure, is the
primary driver of federal policy and funding for Native American programs. 23 Key
members sit on the Senate Committee on Indian Affairs, and their
recommendations typically determine the level of annual BIA funding appropriation
that is ultimately incorporated in the federal budget. In response to the BIA budget
cut recommendations of the GAO and CBO, Tribal governments began increasing
the use of gaming revenue for political contributions to U.S. Senators. This
increase has led to more focus on native issues and legislation providing
increased federal funding and technical assistance to Tribes for their economic
and human security development programs. Graph 2 illustrates the level of Tribal
gaming revenue dedicated to U.S. Senate political contributions between 1988
and 2006: 24
Graph 2
23
The United States House of Representatives has a subcommittee for American Indian and
Alaska Native Affairs, but it is one of five subcommittees to the larger House Committee on Natural
Resources and does not appear to impact BIA funding appropriation levels to the extent of the
stand-alone Senate Committee on Indian Affairs.
24
Frederick J. Boehmke and Richard Witmer, Indian Nations as Interest Groups: Tribal Motivations
for Contributions to U.S. Senators, 65 POLITICAL RESEARCH QUARTERLY 179-191 (2012).
28
Graph 3 illustrates the ultimate BIA funding appropriation levels approved
by Congress and incorporated in the federal budget for the years 1997-2006. Of
particular note is the year 1998, the year the GAO and CBO had recommended
significant reductions to the BIA budget. Despite the auditors’ recommendations
for cuts up to $250 million, the BIA budget was actually increased by
approximately $90 million. This Congressional action followed two election cycles
(1995/96 and 1997/98) in which Tribes had significantly increased the amount of
Tribal gaming revenue used for making political contributions to U.S. Senators. 25
Graph 3 (dollar figures in billions)
25
See Graph 2 above.
29
To test the statistical association between Tribal political contributions and
subsequent Congressional funding appropriations for the BIA, the yearly data was
analyzed with a correlation matrix. Correlations run on a scale from -1 to +1. A
value near -1 indicates an inverse correlation, wherein the movement of one factor
is associated with an opposite movement of the correlating factor, whereas a value
near +1 indicates a positive correlation suggesting a connected causality in factor
movements. The statistical correlation between political contributions and the BIA
funding appropriation between 1997-2006 was 0.7849. This indicates a strong
association between Tribal political contribution amounts and the pattern of
increasing funding by Congress for BIA human security programs benefitting
Native Americans.
Having found a statistically significant association between Tribal political
contributions to U.S. Senators and the subsequent Congressional funding
appropriations for the BIA, new “control” variables were introduced into the
analytical model in an effort to detect if other factors might have been responsible
for the apparent connection. Two control variables were selected for this study:
1) The number of Senators during the period who were of Native
American ancestry, and who therefore might have possessed an
ethnic bias favorable to increasing BIA funding independent of any
political contributions by Tribes; and
2) The party majority status of the Senate was analyzed to determine
if and for how long the Democratic Party was “in control” of the
Senate by virtue of holding a majority of seats during the period. The
Democratic Party has traditionally been viewed as more “pro-Tribal”
than the Republican Party, which might influence its support for
increasing BIA funding independent of any political contributions by
Tribes.
Congressional membership data reveals that there was only one U.S.
Senator of self-identified Native American ancestry in office during the period,
Senator Ben Nighthorse Campbell of Colorado, which empirically rules out the
theory that an increasing number of Native American Senators might have been
working for BIA funding increases. Further, Sen. Campbell retired in 2004, leaving
the Senate without any Native American members for the final two years of the
30
AMERICANINDIANLAWJOURNAL
Volume III, IssueI–Fall2014
case study period – yet the pattern of BIA funding increases was unaffected.
Similarly, the Senate majority party for most of the period was actually the
Republican Party, and the “control party” changed three times during this period.
Regardless of which party held the majority of seats in the Senate, the pattern of
BIA funding increases was unaffected. Table 1 provides a regression analysis that
includes the multivariate controls for potential ethnic bias and Senate party
majority:
Table 1
Multivariate Controls for Senators’ Ethnic Bias and Senate Party Control
biafunding
Coef.
Std. Err.
contributions 985.2932 206.9152
t
P>|t|
4.78 0.003
[95% Conf. Interval]
481.4369
1489.149
num_natam 2.05e+08 1.02e+08
-2.01 0.091 -4.53e+08
4.40e+07
major_dem 1.09e+08 7.59e+07
1.43 0.201 -7.69e+07
2.95e+08
_cons 1.73e+09 1.09e+08 15.90 0.000
1.46e+09
1.99e+09
The P-values and Confidence Intervals for the three variables indicate that
neither potential ethnic bias of Native American Senators nor the party in control of
the Senate had a statistically significant impact on the association between Tribal
gaming political contributions and the subsequent Congressional funding
allocations for the BIA.
The median and total dollar figures for Tribal gaming political contributions
demonstrate a substantial rate of return for Tribes, measured by the BIA funding
increases during the case study period:
Total Tribal Gaming Political Contributions, 1997-2006:
$2,300,000
Total Increase in Annual Funding for BIA, 1997-2006:
$547,988,000
31
Median Annual Tribal Gaming Political Contributions, 1997-2006:
Median Annual Increase of BIA Funding, 1997-2006:
$255,555
$60,887,555
Subsequent to the time period for Case Study #2, it appears that Tribal
governments have recognized the value of this form of diplomatic advocacy for
their human security programs and have continued to utilize it in earnest. In the
state and federal election campaign cycles of 2007 and 2008, four of the top-10
largest political donors in the U.S. were Native American-controlled groups. 26
These four donor organizations spent a combined total of $129.8 million on state
and federal political campaigns; together they donated more than double that of
the top national donor (the National Education Association), which spent $56.3
million during the cycle. 27 The continuing funding pattern for Tribal human security
programs within the BIA by the United States government certainly validates this
approach:
•
•
•
FY 2012 Congressional Appropriation for Bureau of Indian Affairs:
$2,746,178,000
Total Increase in Annual BIA Appropriation Since FY 1997: $1,302,676,000
There has been a 90.2% increase in annual Congressional funding of BIA
Native American human security programs since the start of political
contributions financed by Tribal gaming. 28
Data-Based Associations – Case Study #2:
The availability of gaming revenue provided new resources for Tribal
political advocacy regarding United States policies affecting Native American
26
Rob Capriccioso, Tribes Among Biggest Campaign Donors, INDIAN COUNTRY TODAY MEDIA
NETWORK.COM (May 22, 2011), available at
http://indiancountrytodaymedianetwork.com/2011/03/22/tribes-among-biggest-campaigncontributors- 23876 (last visited Nov. 9 2014).
27
Id.
28
Budget Justifications and Performance Information of Year 2014, U.S. DEPT. OF THE INTERIOR
(2014), available at http://bia.gov/cs/groups/xocfo/documents/text/idc1-021730.pdf.
32
human security. The threat of significant reductions in United States government
funding for Tribal human security programs was followed closely in time by the
Sovereignty Event of Tribes’ markedly increased use of gaming funds for political
contributions to members of the United States Senate. The increased use of Tribal
gaming revenue for this form of diplomatic advocacy was followed by favorable
outcomes in United States congressional appropriations for Native American
human security development programs within the Bureau of Indian Affairs, which
provided a positive fiscal investment in Tribal programs by the United States that
significantly exceeded the total capital investment by Tribal governments. 29
C. Case Study 3: Tribal Gaming and Native American Poverty Level
Outcomes 30
This case study analyzes the internal human security condition of poverty
within Native American nations, and is designed to examine whether casino
revenue received by gaming Tribes has a measurable impact on the rate of
poverty for their members. As a threshold matter, it is important to note that not all
Native American nations are involved in gaming. Of the 566 federally recognized
Tribes within the U.S., less than half have IGRA Class III casino-style gaming
operations. 31 Due to geographic and economic factors, particularly travel
distances from reservations to major population centers, gaming is not a viable
economic activity for many Native American nations. 32
The National Indian Gaming Commission (NIGC) is the oversight agency
for all Tribal gaming that issues annual reports detailing Tribal gaming revenue
29
Green Book, BUREAU OF INDIAN AFFAIRS, (Nov. 19, 2014), http://www.bia.gov/WhoWeAre/ASIA/OCFO/TBAC/BDDoc/Greenbook/index.htm.
30
Gaming Revenue by Region 2001-2010, NATIONAL INDIAN GAMING COMMISSION
http://www.nigc.gov/Gaming_Revenue_Reports.aspx (last visited Oct. 13, 2014); U.S. CENSUS:
AMERICAN INDIAN AND ALASKA NATIVE SUMMARY FILES (2000) available at
http://www.census.gov/census2000/AIANSF.html (last visited Nov. 9, 2014); U.S. CENSUS:
American Community Survey American Indian and Alaska Native Tables (2010) available at
http://www.census.gov/aian/census_2010/ (last visited Nov. 9, 2014).
31
25 U.S.C. § 2710 (2014) (classifying bingo-style games as Class II; Class III including dice,
roulette, slot machine, and card table games).
32
Dispelling the Myths About Indian Gaming, NATIVE AMERICAN RIGHTS FUND,
http://www.narf.org/pubs/misc/gaming.html (last visited Oct. 13, 2014).
33
statistics. NIGC gaming revenue data is aggregated and reported on a national
and regional basis; the agency does not provide revenue statistics for the gaming
operations of individual Tribes, as that information is considered sovereign
property and confidential. For this case study, the selected sample data for
gaming revenue is for NIGC Region 1, which is comprised of the gaming Tribes
located in the state of Washington, Oregon, Idaho, and Alaska. The collective
gaming revenue for Region 1 Tribes for the ten-year period between 2001 and
2010 is reflected in Table 3:
TABLE 3
NIGC REGION 1 COMBINED ANNUAL
TRIBAL GAMING REVENUE, 2001-2010 33
YEAR
REVENUE
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
1,013,470,000
1,196,178,000
1,439,516,000
1,601,346,000
1,829,195,000
2,080,369,000
2,263,950,000
2,376,025,000
2,520,908,000
2,665,096,000
TOTAL – 2001-2010:
18,986,053,000
The NIGC data reflects a steady and significant growth in gaming revenue
for Region 1 Tribes during the period. At the start of the decade, the annual
collective revenue among the Tribes was approximately $1 billion. 34 By the end of
the decade, their collective annual revenue had increased over 2.5 times to $2.6
billion, and the revenue increased significantly each year during this period. In
total, Region 1 Tribes collected nearly $19 billion in revenue from their gaming
activities between 2001-2010.
33
Gaming Revenues by Region, NATIONAL INDIAN GAMING COMMISSION,
http://www.nigc.gov/Gaming_Revenue_Reports.aspx (last visited Oct. 13, 2014).
34
Id.
34
These particular years were selected for this case study to coincide with the
poverty data reported by the 2000 US Census and the 2010 US Census, allowing
for a before-and-after comparison of poverty levels within Region 1 Tribes relative
to the Tribal governments’ collective receipt of the $19 billion in gaming revenue
over the decade. Using NIGC reports, the specific gaming Tribes within Region 1
were identified. Then, the population and poverty statistics for each Region 1
gaming Tribe were gathered from US Census for the year 2000 and 2010. Mean
poverty rates were calculated for the Region 1 Tribes for 2000 and 2010, and
compared with the national average poverty rate for all Tribes in the U.S. for those
years as reported by the US Census. Using Tribal and state government
information resources, it was also possible to identify which of the Region 1
gaming Tribes issued per-capita payments to their members as a means of
providing direct personal income support from gaming revenue.
The results of the NIGC Region 1 gaming revenue and Tribal poverty
percentage case study are listed in the following table:
35
NIGC REGION I GAMING TRIBES: ON-RESERVATION POPULATION AND POVERTY STATISTICS, 2000 & 2010
Tribe
2000
Population
Coeur d'Alene
Colville
Coquille
Jamestown S'Klallam
Klamath
Lower Elwha
Muckleshoot
Nez Perce
Nisqually
Nooksack
Port Gamble
Puyallup
Quinault
Siletz
Skokomish
Spokane
Squaxin Island
Suquamish
Swinomish
Tulalip
Umatilla
Upper Skagit
Warm Springs
Yakama
1476
8212
362
24
2620
369
3586
3981
442
727
509
1510
2157
1718
681
2370
440
3482
581
2381
1562
362
3143
7887
TOTALS
50582
2000
<Poverty
2000
Poverty %
350
1944
59
0
729
98
573
926
158
248
82
398
618
362
207
722
138
297
196
604
279
115
1043
2520
2010
Population
23.7
23.7
16.3
0
27.8
26.6
16
23.3
35.7
34.1
16.1
26.4
28.7
21.1
30.4
30.5
31.4
8.5
33.7
25.4
17.9
31.8
33.2
32
12666
MEAN POVERTY RATE OF REGION I TRIBES
NATIONAL AVERAGE FOR ALL TRIBES IN U.S.
Number of Tribes with Increased Poverty Rate, 2000-2010: 12
Number of Tribes with Decreased Poverty Rate, 2000-2010: 12
2000:
25% SD=8.76 SE=1.78
25.7%
2010
<Poverty
1726
8324
475
19
2431
825
4204
3320
524
1159
788
2346
2005
2452
485
2261
461
4025
907
2645
1605
1030
3531
8882
425
2443
58
0
604
388
924
719
114
379
176
532
574
928
99
613
57
398
488
648
373
352
1918
3156
56430
16366
2010
Poverty %
24
29.3
12.2
0
24.8
47
22
21.6
21.7
32.7
22.3
22.6
28.6
37.8
20.4
27.1
12.4
9.8
53.8
24.5
23.2
34.1
54.3
35
2010:
36
Yes
Yes
No
No
Yes
Yes
Yes
Yes
Yes
No
No
Yes
No
Yes
No
Yes
Yes
Yes
No
Yes
Yes
Yes
Yes
Yes
29% SD=12.84 SE=2.62
27%
Number of Tribes Issuing Per Capita Payments to Members: 17
Number of Tribes with No Per Capita Payments to Members: 7
Per Capita Tribes with Increased Poverty 2000-2010: 58.8% (10 out of 17)
Non-Per Capita Tribes with Increased Poverty 2000-2010: 28.5% (2 out of 7)
Notes
2000 Data: 2000 Census, American Indian and Alaska Native Summary File
2010 Data: 2010 Census, American Community Survey, American Indian and Alaska Native Tables
2000 and/or 2010 Census data not available for the following NIGC Region I Gaming Tribes:
Coos, Chehalis, Grand Ronde, Cow Creek, Kalispel, Klawock, Kootenai, Lummi, Metlakatla, Shoalwater,
Shoshone-Bannock, Snoqualmie, and Stillaguamish.
Per Capita
Payments
The results from this case study were unexpectedly complex. From an
economic perspective, it would be reasonable to expect the infusion of new capital
provided by Tribal gaming to be a catalyst for poverty reduction, and likewise
expect to see the individual and collective poverty percentages for Tribes
decrease. On a collective basis, the actual results for Region 1 Tribes
demonstrated the opposite. In 2000, the median poverty rate for gaming Tribes in
NIGC Region 1 was 25 percent, slightly below the rate for all Tribes in the U.S.,
which stood at 25.7 percent. Ten years and 19 billion dollars later, the median
poverty rate for these same gaming Tribes in NIGC Region 1 increased to 29
percent - an increase of four percentage points from the beginning of the decade,
which also placed the Region 1 Tribes two percentage points higher than the 2010
national average for all Tribes of 27 percent. The combined total population of the
Region 1 Tribes in the case study increased by 5848 people during the decade.
The combined total population below the poverty level during the period increased
by 3700, nearly two-thirds of the total population increase.
Per capita payments are a controversial issue within Tribal nations. Every
Tribe has a sovereign right to determine whether, when, and in what amounts it
will issue per capita payments to its members. The institution, conditions, and
management of a per capita regime are matters of individual Tribal discretion. In
Tribes with high unemployment and poverty, per capita payments are often viewed
as a means of collective support by and for Tribal members, with each member
eligible for an equal share of Tribal wealth. However, questions have arisen
regarding the effectiveness of per capita payments for poverty reduction in Native
communities; some have likened them to a welfare-type system that provides a
disincentive for work and dissipates Tribal economic resources that could be better
used to finance strategic initiatives such as scholarships for higher education. 35
For the gaming Tribes in NIGC Region 1, the statistical results of Case Study 3
indicate an inverse correlation between per capita payments and poverty
reduction. Of the 24 Tribes studied, 17 issue per capita payments to members, 7
do not. Of the per capita Tribes, 58.8 percent (10 out of 17) experienced an
increased poverty rate from 2000-2010. In contrast, of the Tribes that do not issue
35
Leland McGee, Greed, Corruption, and Indian Country’s New Welfare States, INDIAN COUNTRY
TODAY (June 27, 2013), http://indiancountrytodaymedianetwork.com/2013/06/27/greed-corruptionand-indian-countrys-new-welfare-states.
37
per capita payments, only 28.8 percent (2 out of 7) experienced increased poverty
during the period.
Data-Based Associations- Case Study #3:
•
•
•
•
•
•
•
Tribal gaming activity is associated with sustained annual revenue
increases for NIGC Region 1 Gaming Tribes from 2000-2010.
Tribal gaming revenue is not associated with an overall reduction in poverty
for NIGC Region 1 Gaming Tribes during this period.
From 2000-2010, the mean poverty rate of NIGC Region 1 Gaming Tribes
increased from slightly below the national average for all Tribes in 2000 to
two percentage points higher than the national average in 2010.
Poverty outcomes varied widely among NIGC Region 1 Gaming Tribes
during this period, with some experiencing a 50 percent or more reduction
and others experiencing a 100 percent or more increase.
The standard deviation and standard error of individual Tribal poverty rates
from the mean increased by 32 percent, indicating that the differences in
poverty outcomes between Tribes grew notably during the period, with a
greater gap between Tribes experiencing increased poverty and those that
were successful in reducing poverty.
Certain Tribes with very similar population size, geography, and economic
resources experienced starkly different poverty outcomes over the decade.
For example, the Squaxin Island Tribe reduced its poverty rate from 31.4
percent to 12.4 percent during this period, while the Swinomish Tribe’s
poverty rate increased from 33.7 percent to 53.8 percent.
There was an inverse correlation between per capita payments and poverty
reduction, with per capita Tribes significantly less likely to have achieved
poverty reduction during this period than Tribes that did not issue per capita
payments to members.
III.
CONCLUSION: EMERGENT RESEARCH QUESTIONS AND NEXT STEPS
A macro-level analysis of the results of these case studies confirms some
fundamental facts that are crucial for the study of economic and human security
development in Native American nations. While Tribes have theoretical equality in
their level of sovereignty from a legal perspective, Tribes are very diverse in how
their sovereignty is actually exercised, and there is significant disparity in the
38
results that follow from their management of sovereign resources and policies.
While there are some clear correlations between Sovereignty Events and
improved human security outcomes, e.g. the increase in BIA program funding
following Tribal political contributions, the research also revealed some puzzling
results. The dramatic differences in poverty outcomes between the Region 1
gaming Tribes, despite these Tribes having similar structural conditions and
sharing in nearly $19 billion in gaming revenue over a decade, indicates that equal
sovereignty does not produce equal development results for Tribal communities.
From this research, key questions have emerged for further examination:
•
•
What explains the differences in economic and human security
development outcomes between similarly situated Tribes?
What policies and actions are most effective for improving Native
American economic and human security indicators?
To answer these questions, future research will include: (1) continued data
collection on key human security indicators such as economic development, public
health, social justice; (2) interviews with Tribal leaders regarding
effective/ineffective human security policies and programs; and (3) development of
data-supported theoretical approaches to assessing and implementing Tribal
human security initiatives.
The research will be facilitated by a public event to be hosted in Seattle in
the spring of 2015. With funding support from the Andrew W. Mellon Foundation,
a two-day program entitled Sovereignty, Development, and Human Security: A
Colloquium On U.S./Native American Relations will be held at the University of
Washington. The colloquium will bring together leaders from Native American
nations and U.S. government agencies for presentations and dialogue on effective
programs and practices for economic and human security development. The
presentations will be filmed for podcast downloading, and key information and
policy recommendations from Tribal leaders will be published in future articles.
39
HUMAN TRAFFICKING & NATIVE PEOPLES IN OREGON: A
HUMAN RIGHTS REPORT
HAYLEY WEEDN, JOSEPH SCOVEL, AND JASON JURAN ∗
I. INTRODUCTION
A. Purpose and Scope of Report
It is widely acknowledged that human trafficking in Oregon is a problem. In
2010, we (Willamette University College of Law’s International Human Rights
Clinic (“the Clinic”)) published a report measuring how well state and federal
government officials in Oregon were managing their obligations under
international, national, and state anti-trafficking laws to prevent human trafficking,
punish traffickers, and protect survivors of human trafficking. Entitled “Modern
Slavery in Our Midst: A Human Rights Report on Ending Human Trafficking in
Oregon” (“2010 Report”), the 2010 Report also identified gaps in the law and
outlined several recommendations that, in our view, would help such officials
comply with their obligations regarding human trafficking. 1
Following publication of the 2010 Report, it came to our attention, through
attendance at conferences and additional research, that Native Americans 2 are
∗
The authors prepared the Report as students of the Willamette University College of Law
International Human Rights Clinic under the guidance and supervision of Professor Gwynne
Skinner. Deepest gratitude to Professor Skinner for presenting this opportunity, sharing a wealth of
knowledge on trafficking and human rights reporting, and providing endless support along the way.
Your time, direction, wisdom, and continuous encouragement were essential to the success of this
project. Acknowledgements and thanks to other Clinic interns who worked on the fact-finding or
final report and contributed valuable time and effort: Emily Apel, Christine Baker, Laura Bloom,
Joseph Elwood, Andrea Flanagan, and Michael Hicks. Special thanks and acknowledgements to:
Dr. Alexandra (Sandi) Pierce for invaluable guidance in the early stages of our research and
generously agreeing to share portions of “Shattered Hearts”, the groundbreaking work that inspired
this report; Native American Youth and Family Center (NAYA) staff for assisting us with contacts in
Native communities in the early planning stages; and Desiree Coyote and Brent Leonhard, of the
Confederated Tribes of Umatilla Indian Reservation, for contributing hours to speaking with us and
reviewing sections of the Report. Thanks to all who participated in this fact-finding, allowed
themselves to be interviewed, or otherwise provided valuable information.
1
W ILLAMETTE UNIVERSITY COLLEGE OF LAW HUMAN RIGHTS CLINIC, MODERN SLAVERY IN OUR MIDST:
A HUMAN RIGHTS REPORT ON ENDING HUMAN TRAFFICKING IN OREGON (2010) [hereinafter 2010
REPORT], available at https://willamette.edu/wucl/pdf/clp/redacted.pdf.
2
Terms such as ‘Native’, ‘Native American’, ‘Indian’, ‘American Indian’, ‘tribe’, ‘tribal member’, and
‘First Nations’ are used interchangeably throughout the Report, and are intended to represent,
individually and collectively, the indigenous, original, first peoples of North America.
40
particularly vulnerable to human trafficking, both in Oregon and nationally, and that
the recommendations made in the 2010 Report did not sufficiently address these
vulnerabilities and other aspects of human trafficking unique to the Native
American community. Some of these considerations include: generational trauma;
higher levels of foster care, leading to higher rates of homelessness and thus
greater vulnerability to trafficking; lack of resources for services, particularly
traditional healing; lack of understanding about complex jurisdictional and cultural
issues amongst law enforcement; and complex community relationships that often
lead to underreporting and noncooperation with law enforcement and prosecutors.
It also came to our attention that little was being done in Oregon (or elsewhere) to
research, identify, or propose solutions to the aspects of human trafficking unique
to Native American communities; nor were those who work in the area of human
trafficking tracking incidences involving Native Americans as a particular category
of victims.
This report, entitled “Human Trafficking & Native Peoples in Oregon: A
Human Rights Report” (“the Report”), focuses specifically on Native populations
within Oregon. This Report, like the 2010 Report, is not a quantitative study that
attempts to measure the level of human trafficking involving Native Americans.
Rather, it is a human rights legal fact-finding report that sets out to assess whether
local, state, and federal government officials are meeting state, national, and
international obligations: to prosecute traffickers, protect survivors, and prevent
trafficking within the Native population in Oregon.
These “Three Ps” – punishment, protection, and prevention – are the
generally accepted paradigm used in fighting human trafficking and comprise the
philosophical backbone of most anti-human trafficking legislation. 3
The following subsections I.B and I.C are extensions of the introduction,
which outline the methodologies used in compiling information for the Report, as
well as highlight the overall conclusion and themes drawn from the findings of the
Report. Parts II and III provide background information on the federally recognized
tribes in Oregon and discuss some relevant history regarding colonial and U.S.
relations with Native Americans. Part IV then outlines the legal obligations of
Interchangeable use of these terms respectfully reflects the combination of common language
usage by interviewees and legal terminology.
3
United Nations Charter on Human Trafficking and Victims Smuggling, UNODC,
http://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html (last visited Oct.
11, 2014); see infra Part IV.C.1 for further discussion of the three Ps.
41
state, national, and international government officials to prevent trafficking,
prosecute traffickers, and protect trafficking victims: Part IV.A details Oregon’s
human trafficking legislation; Part IV.B briefly discusses the absence of tribal
trafficking laws in the state; Part IV.C lays out the relevant federal law, which is
highly reflective of the United States’ legal obligations outlined in the subsection
IV.D that follows; and Part IV.E concludes the section by analyzing the application
of state, federal, and tribal laws within the scope of criminal jurisdiction in Indian
Country. Following thorough discussion of the legal issues, the Report presents its
findings in Part V. Lastly, Part VI concludes the Report by providing
recommendations for stakeholders. Many of the recommendations, if
implemented, would operate to improve the relationships between tribes and state
and federal entities, as well as assist in the prosecution of traffickers, protection of
vulnerable persons, and prevention of human trafficking.
B. Methodology
In preparing the Report, clinic interns conducted interviews, distributed
surveys to county sheriffs, and conducted independent legal research. In order to
ensure consistent information gathering in surveys and interviews, the Clinic
established a simplified but broad definition of human trafficking in contemplation
of the state, federal, and international human trafficking laws discussed infra Part
IV. This definition was provided to participants as follows:
•
•
•
•
•
Human trafficking occurs whenever a person is recruited or forced into
prostitution, or other services or labor, by a third person;
In the case of a child under age 18, no coercion is required;
The key defining feature of human trafficking is that someone other
than the survivor is making him or her available for sex or other
services or labor (and receives something of value in return);
This activity does not need to occur across state lines or
internationally (it can happen within a unit as small as a family);
Sometimes trafficking can appear as prostitution. 4
4
The United Nations’ International Covenant on Civil and Political Rights includes within its
definition of human trafficking, the “giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of exploitation…[which]
shall include, at a minimum, the exploitation of the prostitution of others….” Protocol to Prevent,
Suppress, and Punish Trafficking in Persons, Especially Women and Children art. 3(a), Dec. 13,
2000, 2237 U.N.T.S. 319, available at http://www.unodc.org/unodc/en/treaties/CTOC/countrylist-
42
1. Interviews
The Clinic sought interviews with approximately 64 individuals and
ultimately completed 46. The individuals interviewed occupy a breadth of roles
within systems that prosecute, protect, and prevent. These include members of
law enforcement and the justice system in tribal, local, county, state, and federal
jurisdictions. The Clinic also conducted interviews with service providers,
specifically those tailored to serve Natives, as well as those generally involved in
serving survivors of sexual abuse and trafficking. We were also fortunate to speak
to Native human trafficking survivors. Furthermore, the Clinic reached out to the
tribes themselves, meeting with at least one victims’ services coordinator or family
services provider from each reservation in Oregon except for Warm Springs. Every
effort was made to contact representatives from Warm Springs. Regretfully, the
Clinic was unsuccessful. However, we did speak with service providers and law
enforcement working closely with each tribe.
In order to ensure accurate and consistent information, the interview
questions consisted of a set of established, open-ended queries tailored to each
category of interviewees—law enforcement and justice system personnel, service
providers, and survivors. 5 At least two Clinic interns conducted each interview, and
the Clinic supervising professor accompanied many. Ranging in length from fifteen
minutes to three hours, interviews were conducted in-person when possible and
included visits to most of the reservations in Oregon. When in-person interviews
were not possible, phone interviews were typically conducted. One interview was
conducted via email at the request of the interviewee. Notes from the interviews
were transcribed and filed both digitally and in hard copy with the Clinic.
2. Surveys
Additionally, the Clinic created and distributed an online survey to the sheriff
of each county adjacent to reservation lands located in Oregon—Clackamas,
Coos, Douglas, Harney, Jefferson, Klamath, Lincoln, Linn, Marion, Polk, Umatilla,
Union, Wasco, and Yamhill counties. These surveys, similar to the interviews,
consisted of questions primarily regarding: experience with human trafficking;
trafficking protocol.html. Thus, we boldly include “prostitution” as a form of human trafficking,
because prostitution generally manifests in the form of payment to a third party for sex with the
victim. Furthermore, we seek to include prostitution as a form of modern day human trafficking to
alert current and future stakeholders that accepted understandings of prostitution may be worth
reconsideration.
5
See Appendix B (interview questions for each group).
43
resources available for those involved in human trafficking; jurisdictional issues
regarding law enforcement on reservations; and barriers to prosecution,
protection, and prevention. 6 However, despite distribution by the Oregon State
Sheriff’s Association, the Clinic received only three completed surveys. 7
3. Research
In conducting this Report, the Clinic was fortunate to have available a large
body of legal research surrounding human trafficking that was compiled in
completing the 2010 Report. 8 However, the Clinic took note of new and updated
laws, reports, and statistics related to human trafficking. In addition, the Clinic also
conducted extensive research regarding the jurisdictional complexities unique to
crimes occurring in Indian country, as well as the Indian Child Welfare Act
(“ICWA”), a legislative attempt to help Native children remain with Native families.
Detailed memoranda regarding both jurisdictional complexities and the Indian
Child Welfare Act are included as addendums to the Report. 9
Additionally, in order to contemplate historical and socio-cultural factors
involved, the Clinic conducted research on the tribes in Oregon and also reviewed
published materials addressing the history of policy and relations between tribes,
states, and the federal government. A summary of background information on the
Oregon tribes is included in the Report, along with an excerpt from Shattered
Hearts by Alexandra “Sandi” Pierce, Ph. D., and the Minnesota Indian Women’s
Resource Center. Shattered Hearts concerns human trafficking of Native women
in Minnesota and is one of the few published pieces that address the vulnerability
of Native women to human trafficking. The included excerpt outlines the tragic
history of Native women and children, which has contributed to generational
trauma and vulnerability to sexual exploitation.
A NOTE CONCERNING THE AUTHORS’ INTENTIONS:
The Clinic wishes to acknowledge the long history and impact of oppressive
policies on Native people and other institutional forms of cultural destruction
wrought by colonization that continues today. Given the often sensitive and
painful nature of the subject matter involved, the authors did their best to approach
6
See id. (to view survey questions).
Responding counties included: Coos, Wasco, and one county electing to remain anonymous.
8
See 2010 REPORT, supra note 1, at 8-113 (Parts III and IV discussing legal obligations and
Oregon’s response to human trafficking).
9
See Appendix C (ICWA memo); see Appendix D (jurisdiction memo).
7
44
the topic of this Report with humility and at all times maintain the highest level of
respect and reverence for the tribes of Oregon.
C. Themes
Based on investigation into the overall question of whether human
trafficking obligations to prevent, prosecute, and protect are being adequately met,
we ultimately concluded that local, state, and federal government officials within
Oregon are not doing enough to meet these obligations under state, federal, and
international law.
The Native American population has unique attributes and needs with
regard to prevention, prosecution, and protection that remain largely unaddressed.
Additionally, no statistical information is kept with regard to the numbers of Native
American victims of human trafficking, even though statistics are kept with regard
to other races and ethnicities. This should change. In reaching our ultimate
conclusion, the reasons for which are further detailed in Part V (Findings and
Conclusions), the Clinic also identified several relevant recurring themes:
1. Generational Trauma
The most important of these themes is the existence and impact of
generational trauma. Generational trauma is at the core of a large portion of the
issues affecting Native communities in Oregon, as well as the United States as a
whole. The concept of generational trauma describes the deep internalized pain,
or “soul wound” 10 that Native Americans have carried since the horrors of
colonization and offers an explanation for the prevalence of substance abuse,
broken homes, high levels of domestic and sexual abuse, and criminal
delinquency that are disproportionately common amongst Native communities.
These issues make Native individuals vulnerable to trafficking and other violence
in ways that are unique to Native communities.
2. Potential Correlation between Foster Care and Vulnerability to
Human Trafficking
A second major theme is the interconnected relationship between the
incidence of foster care, generational trauma, homelessness, and vulnerability to
10
This is a term used by Eduardo Duran (among others). See EDUARDO DURAN, HEALING THE SOUL
W OUND: COUNSELING WITH NATIVE AMERICANS AND OTHER NATIVE PEOPLES (Teachers College Press)
(2006).
45
human trafficking. Many interviewees noted that of the trafficking survivors they
knew, almost all had spent time in the foster care system. This fact is particularly
relevant because Native children are overrepresented in the foster care system: in
Oregon, Native children are placed in foster care at a rate of five times that of
White children; in Multnomah County (Portland) in particular, placement of Native
children is at a rate of 24 times that of White children. 11
Many of the factors that lead to a child’s placement in foster care can be
linked with the presence of generational trauma, the effects of which can manifest
in the form of problems such as the normalization of abuse, substance abuse, and
neglect. While the presence of generational trauma can lead to vulnerability to
human trafficking in and of itself, such vulnerability is amplified for children in
foster care because they often lack emotional and economic support systems to
protect them from manipulation.
Furthermore, youth in foster care may also have an increased likelihood of
becoming homeless, 12 which also creates an increased vulnerability to trafficking.
Per one statistic, a homeless teen is typically recruited by a trafficking enterprise
within 72 hours of being on the street. 13 Given the overrepresentation of Native
children in the foster care system, it follows that Native children are generally
much more likely to become homeless, and therefore have increased vulnerability
for human trafficking.
3. Underreporting and Under-enforcement
A third theme is the interrelated nature of underreporting and underenforcement of sex trafficking and other crimes among Natives, which both tribal
representatives and non-tribal law enforcement identified as major vulnerabilities
for human trafficking in Native communities. Underreporting and underenforcement are the result of many factors, such as fear, isolation, manipulation,
distrust in law enforcement, and perceived discrimination or lack of recourse.
11
CURRY-STEVENS, A., CROSS-HEMMER, A., & COALITION OF COMMUNITIES OF COLOR, The Native
American Community in Multnomah County: An Unsettling Profile, 79 (2011) available at
http://www.coalitioncommunitiescolor.org/docs/native_american_report.pdf [hereinafter CURRYSTEVENS].
12
Many Kids Move from Foster Care to Homelessness as They Turn 18, COVENANT HOUSE,
http://www.covenanthouse.org/homeless-teen-issues/foster-care (last visited Oct. 11, 2014).
13
The Numbers, NATIONAL CLEARING HOUSE ON FAMILY AND YOUTH,
http://ncfy.acf.hhs.gov/features/trafficking-and-runaway-youth/numbers (last visited Oct. 11, 2014).
46
On reservations, victims or community members may not report crime for
fear of shame, shunning, or retaliation by the offender or community. Distrust in
law enforcement—particularly non-tribal entities, which extends from the general
history of broken promises and discriminatory policies and practices directed at
Natives by state and federal governments—only further impedes reporting and
cooperation with law enforcement because many tribal members fear that they will
receive inconsistent or inadequate assistance from non-tribal criminal justice
entities. More generally, the likelihood that law enforcement intervention will lead
to the victims’ misidentification as a criminal, the loss of housing, or the loss of the
trafficker’s protection only further contributes to the failure to report. Additionally, in
circumstances where sex is used as a form of debt repayment, those involved may
not identify that they are engaging in human trafficking and thus, don’t report it.
Underreporting for any of these reasons invariably leads to underenforcement because the result is that crimes are not brought to the attention of
law enforcement. Furthermore, slow police response time, ineffective investigation,
high declination rates, and severe limitations on tribes’ prosecutorial authority are
not only direct causes of under-enforcement, but also contribute to distrust in law
enforcement and discourage tribal members from reporting crime, thus
perpetuating the overall under-enforcement of crime in Native communities.
4. Jurisdictional Complications
A fourth theme is significant complications with regard to enforcing criminal
laws in Indian country 14 due to jurisdictional issues. Part of the complication was
identified as one of confusion among law enforcement. Some interviewees stated
either that they were confused personally, or were aware of significant confusion in
this area. However, a few interviewees suggested that this ‘confusion’ may merely
be an excuse for state law enforcement to avoid responsibility for potentially huge
tracts of land. Regardless of the actual extent of confusion, the effect is perceived
discrimination and distrust in law enforcement, which ultimately results in
underreporting and under-enforcement. Furthermore, tribes’ reliance on state and
federal authorities to prosecute offenders and protect victims of crime is seemingly
inadequate, as evidenced by the under-enforcement of criminal laws in
prosecuting offenders who commit crimes on tribal lands. We address the issue of
14
“Indian country” is defined under federal law as “[a]ll land within the limits of any Indian
reservation under the jurisdiction of the United States Government….” 18 U.S.C. § 1151. Indian
country is thus a technical legal term used to describe reservations and other tribal trust lands and
holdings referred to throughout the Report.
47
jurisdiction in Part IV.E below. Additionally, Appendix D gives a more in-depth
discussion that includes its implication in other statutes that impact human
trafficking such as: the Trafficking Victims Protection Act, the Violence Against
Women Act, the Tribal Law and Order Act, and Oregon Senate Bill 412.
5. Need for Rural Services and Traditional or Cultural Healing
A fifth theme is the lack of treatment services available to Native
communities, especially funding for cultural and traditional healing methods for
Native Americans who have been victims of crime or who seek treatment for
issues associated with generational trauma. For those living in rural areas,
particularly on reservations, even the most basic assistance can be difficult to
access. Depending on the services or programs needed, persons may be required
to travel long distances to outside communities to receive necessary treatment
and services. Additionally, tribal members also experience difficulty receiving
necessary assistance in situations where traditional or cultural healing practices
are ideal. Although such traditional and cultural methods of treatment are in some
circumstances better suited to heal the ‘soul wound’ of generational trauma and
prevent re-victimization, these options are widely refused funding by a system that
favors medicine and services recognized in the mainstream. Service providers
receive state and federal funding that is often designed to provide for Westernized
treatment services, and health care coverage such as Medicaid does not include
coverage of traditional healing methods. However, tribes and service providers
could have better success in preventing victimization and protecting vulnerable
persons if provided better access to necessary resources in general and permitted
to offer treatment methods that honor tribal cultural practices.
48
II. GENERAL BACKGROUND ON OREGON’S FEDERALLY RECOGNIZED TRIBES
15
Though state and federal governments have often treated the tribes as a
homogenous group, each tribe is uniquely situated. Thus, this Part provides a brief
snapshot of the federally recognized tribes in Oregon and their respective
reservations, as well as provides some historical foundation and other interesting
facts through accompanying notes. There are nine federally-recognized Indian
reservations located within the State of Oregon: Umatilla; Grand Ronde; Siletz;
Warm Springs; Coos, Lower Umpqua, and Siuslaw; Burns Paiute; Coquille; Cow
Creek Umpqua; and Klamath. Six of these reservations are under state
jurisdiction 16 while three remain under federal jurisdiction. 17 The tribes also vastly
differ in terms of population and tribal land holdings. Tribal holdings that comprise
reservations may be as little as a few acres for administrative and tribal service
buildings, while other tribes hold massive land trusts for purposes of natural
15
Map used with permission by the Northwest Portland Area Indian Health Board, and is available
at http://www.npaihb.org/member_tribes/oregon_member_tribes (last visited Nov. 19, 2013).
Permission to use of this map does not imply their endorsement of this report.
16
Pursuant to Public Law 280, Pub. L. 83-280 (codified as 28 U.S.C. § 1360 (2001)), discussed
infra Part IV.E.1 (discussing jurisdiction and implementation of PL 280); see Appendix D, at 5.
17
Discussed infra Part IV.E.2 (discussing non-PL 280 jurisdiction); Appendix D, at 2.
49
resource preservation. A chart providing a brief overview of this information for
each tribe is included: 18
Tribes/
Reservations
Confederated
Tribes of
Umatilla 20
Burns Paiute 22
Warm
Springs 24
Criminal
Land
Tribal
Jurisdiction Holdings Membership
appx. 2,916
appx.
non-PL
members
172,000
21
(living on
280
acres
reservation)
appx. 400
appx.
members (total,
non-PL
11,944
but half live off
280 23
acres
reservation)
appx. 4,000
appx.
members (most
non-PL
348,000
living on or
25
280
acres
near
reservation)
18
Distance to
Portland 19
4 hours
5.5 hours
2 hours
The information in this Part of the Report is admittedly scant for the sake of brevity and flow. For
your own edification, please refer to sources cited in the footnotes below for further study.
19
Driving distances are calculated in this manner because the Portland Metro and Willamette
Valley corridor have been previously identified as areas where much human trafficking is
concentrated in the state. Although the distance from Portland is not dispositive of occurrences of
human trafficking, it may show that some reservations are potentially more vulnerable to
encroachment by non-Natives driving to the reservations from Portland. All distances quoted are
approximations and were calculated using http://maps.google.com/ (last visited May 6, 2013).
20
In 1855, during the treaty era, the Umatilla, Cayuse, and Walla Walla Tribes signed a treaty with
the United States to create “The Confederated Tribes of the Umatilla Indian Reservation”.
21
46 Fed. Reg. 2195 (1981) (non-PL 280 status achieved through retrocession in 1981).
22
In 1872, the federal government created the Malhuer Reservation, which overlaid traditional
lands of the Burns Paiute. However, the reservation was quickly revoked after skirmishes between
the Tribe and federal forces, pushing some tribal members to relocate. In 1887, the Dawes Act
returned the Tribe’s members to traditional lands, although it was through allotment of individual
parcels to tribal members, which make up the current Burns Paiute Reservation. See 25 U.S.C. §
331 (The Dawes Act).
23
44 FR 26, 129 (1979) (non-PL 280 status achieved through retrocession in 1979).
24
In 1855, a federal treaty created a 640,000-acre Warm Springs Reservation unifying the Wasco
and Tenino/Warm Springs Tribes, and in 1879 the federal government moved a Paiute band onto
the Reservation despite historical animosity between the Tribes. However, since 1937, Warm
Springs has considered itself unified. The Tribe has also gained notoriety for legal defense of
exclusive fishing rights on traditional tribal waters. Warm Springs Tribal Chronology, W ARM
SPRINGS, http://www.warmsprings.com/Warmsprings/Tribal_
Community/History__Culture/Chronology/ (last visited May 6, 2013); See W.S.T.C. § 340,
http://www.warmsprings.com/images/Warmsprings/Tribal_Community/Tribal_Government/Current_
Governing_Body/Tribal_Code_Book/Doc_Files/340_fishing.pdf (Tribal Fishing Code).
25
The only Oregon reservation originally excluded from PL 280 status.
50
PL 280
11,040
acres
appx. 3,300
Siletz27
PL 280
No
significant
holdings
appx. 4,500
members (total,
2.5 hours
but many live
off reservation)
Coos, Lower
Umpqua, and
Siuslaw 28
PL 280
6 acres
appx. 526
4 hours
appx. 1,500
4 hours
appx. 1,500
3 hours
Grand
Ronde 26
Coquille
29
Cow Creek
PL 280
PL 280
appx.
6,512
acres
appx.
1,840
26
1.5 hours
An 1855 treaty created the Grand Ronde Reservation to accommodate more than 20 disparate
tribes in the area, and many tribes were forcibly moved as a result. However, the federal
government subsequently appropriated much of the Reservation to non-Natives under the Dawes
Act. Although some tribal members were permitted to begin repurchasing Reservation lands as a
result of Indian Reorganization in 1936, the Termination Act of 1954 caused the Tribe to lose
federal recognition until 1983 when tribal lobbyists convinced the federal government to recognize
the Tribe again. Ntsayka Ikanum (Our Story), GRAND RONDE,
http://www.grandronde.org/ikanum/index (last visited Nov. 10, 2013); 25 U.S.C. §§ 476, 691; Grand
Ronde Restoration Act, Pub. L. No. 98-165, 97 Stat. 1064 (1983) (codified 25 U.S.C. § 713 et
seq.).
27
The “Coast Reservation” was established by the federal government in 1865, which was
intended to house 27 coast tribes in the area. The Siletz Reservation resulted from division of the
Coast Reservation in 1875. In 1956, the Tribe suffered termination and lost federal recognition until
1977 when Senator Hatfield successfully assisted the Tribe in passing a bill to restore federal
recognition. History of the Siletz Tribe, U-S-HISTORY.COM, http://www.u-shistory.com/pages/h1538.html (last visited May 6, 2013); Release, U.S. Dept. of Interior, Bureau of
Indian Affairs, Federal Supervision Over Western Oregon Indians Terminated (Aug. 14, 1956),
http://www.bia.gov/cs/groups/public/documents/text/idc016151.pdf; Pub. L. No. 95-195, 91 Stat.
1415 (1977) (codified 25 U.S.C. § 711(d)(6)).
28
Initially part of the Coast Reservation, the Coos Tribes were displaced in 1876 due to the United
States Army’s forcible division of the Coast Reservation. Though the BIA provided the Tribes a sixacre parcel in 1946, they were later subject to termination in 1954 and did not regain federal
recognition until 1984. About Us, CONFEDERATED TRIBES OF COOS, LOWER UMPQUA, & SIUSLAW
INDIANS, http://ctclusi.org/about-us (last visited Nov. 19, 2013); Pub. L. No. 98-481, 98 Stat. 225
(1984) (codified as 25 U.S.C. § 714e).
29
Initially included in the Coast Reservation, the Coquille people were included with the Siletz in its
division. Although the Siletz include the Coquille in their tribal federation, the Coquille Tribe
considers itself to be separate and autonomous. Though the Coquille Tribe obtained its own
reservation lands in 1940, it was terminated in 1954 losing federal recognition until 1989. Pub. L.
No. 101-42, 103 Stat. 91 (1989) (codified 25 U.S.C. § 715d).
51
Umpqua 30
Klamath 31
acres
PL 280
appx. 300
acres
appx. 350
4.5 hours
III. HISTORICAL OPPRESSION OF NATIVE WOMEN AND CHILDREN AND CONTEMPORARY
EFFECTS: AN EXCERPT FROM SHATTERED HEARTS
The following excerpt is from Shattered Hearts, a report published in 2009
by Dr. Sandi Pierce with the Minnesota Indian Women’s Resource Center that
discusses human trafficking of Native women in Minnesota. The excerpt
describes historical experiences of Native Americans, particularly Native women
and children, and facilitates knowledge and understanding of how such historical
experiences have made a lasting impact on generations of Natives and how these
effects are still felt today. Therefore, the authors have included this excerpt to
demonstrate how the history of treatment of Native Americans, especially women
and children, have made them vulnerable to sexual exploitation, including human
trafficking, in unique ways. The reader should note that the subject matter that
follows may be sensitive or upsetting.
Excerpt from Part I, “The Context” in Shattered Hearts: 32
An understanding of Native women’s and girls’ experiences in the
history of this nation is critical for understanding their unique
vulnerability to commercial sexual exploitation…. The traumatic
experiences of American Indian people during the colonial era and
their exposure to new losses and new trauma each consecutive
30
In 1854, the Tribe entered into a treaty with the United States that sold all traditional tribal lands
to the federal government. Though relegated to a landless status, many members still remained
located in its traditional area. The Tribe was also subject to termination in 1954 but in 1980, the
Tribe secured a $1.5 million settlement based on the unconscionability of the original treaty with the
United States. The Cow Creek Story, COW CREEK, http://www.cowcreek.com/government-history
(last visited Nov. 19, 2013).
31
In 1864, the Klamath combatted encroachment by cattle ranchers by ceding traditional lands to
the United States in exchange for a secured reservation of 1.8 million acres. However, the Tribe
later suffered termination in 1954 and was not federal recognized again until 1986. Pub. L. No. 99398, 100 Stat. 850 (1986) (codified as 25 U.S.C. § 556e). The Tribe recently won a landmark case
honoring their claim to water rights within the Klamath Basin. Klamath River Basin Adjudication,
STATE OF OREGON, http://www.oregon.gov/owrd/pages/adj/index.aspx (last visited Nov. 19, 2013).
32
A. PIERCE, MINNESOTA INDIAN W OMEN’S RESOURCE CENTER, SHATTERED HEARTS: THE COMMERCIAL
SEXUAL EXPLOITATION OF AMERICAN INDIAN WOMEN AND GIRLS IN MINNESOTA (2009), available at
http://www.miwrc.org/?wpdmact=process&did=Mi5ob3RsaW5r (Please note: the order of some of
the material has been changed; notes 67-95 are cited as they originally appear in Shattered
Hearts).
52
generation have had a devastating effect on Native people, families,
and communities, and on their ability to sustain…four [fundamental]
beliefs:
•
•
•
•
The world is a good and rewarding place,
the world is predictable, meaningful, and fair,
I am a worthy person, and
people are trustworthy. 33
***
Native women’s experiences during colonization
From the times of earliest exploration and colonization, Native
women have been viewed as legitimate and deserving targets for
sexual violence and sexual exploitation. In the mid-1500s, the
secretary of Spanish explorer Hernando de Soto wrote in his journal
that De Soto and his men had captured Appalachee women in
Florida “for their foul use and lewdness.” 34 Historian Kirsten Fischer
reported that during the earliest years of the Carolina Colony,
indigenous cultures in the area all viewed women as sacred beings.
Women held and managed the community’s resources, including
fields and the produce from them. They also had significant
autonomy in their choices regarding sexual relationships, including
short-term sexual alliances, marriage, divorce, and cohabitation.
Native women often played an active and high-status role in trade,
sometimes using sexual liaisons to smooth trade relations while also
acting as mediators providing outsiders with language skills and
lessons in local customs. 35
Fischer noted that Native cultures in what came to be the
Carolina Colony did not have the concept of private property or
inheritance of property, so European cultures’ emphasis on women’s
33
Roth S and Newman E, (1995). The process of coping with sexual trauma, in Everly G and
Lating J (Eds.), Psychotraumatology: Key papers and core concepts in post-traumatic stress. New
York: Plenum Press, pp. 321-339.
34
Gallay A, (2002). The Indian slave trade: The rise of the English empire in the American South,
1670-1717. New Haven: Yale University Press, pp. 34.
35
Fischer K, (2002). Suspect relations: Sex, race, and resistance in colonial North Carolina. Ithaca:
Cornell University Press.
53
virginity and chastity to ensure that property would be inherited
father-to-son was not present in the Native worldview. Fischer
quoted the writings of John Lawson, a surveyor for the Carolina
Colony, who published his impressions of the Native people he had
seen. Lawson’s writings reflected British male colonists’
interpretations of Native women’s high status and freedom, viewed
through their own patriarchal lens:
[They are] of that tender Composition, as if they were design’d
rather for the Bed than Bondag 36…[the] multiplicity of Gallants [was]
never a Stain to a Female’s Reputation…[the] more Whorish, the
more Honorable. 37
Indian men did not escape being stereotyped in this process. King’s
Botanist John Bartram wrote that the Indian men of South Carolina,
Georgia, and Florida:
…are courteous and polite to the women, gentle, tender, and
fondling even to an appearance of effeminacy, tender and
affectionate to their offspring. 38
Rather than understanding Native men’s behaviors as respect, selfpossession and restraint, colonial writers viewed them as
undersexed and passive, and either unwilling or unable to control
their women or to take proper advantage of the wilderness around
them. The colonists were “amazed at what seemed an unnatural
breach of patriarchal authority,” marveling that Indian husbands
submitted to a “petticoat government” and let themselves be
“cuckolded by” promiscuous wives. 39 These attitudes permitted
colonists to justify their use of Native women and Native lands
however they pleased, without obligation or limits.
Male colonists also recognized Indian women’s ability to control their
own fertility, which allowed them to believe that their sexual
36
Ibid., p. 62.
Ibid., p. 67.
38
Waselkov, Gregory A. and Braund, Kathryn E. Holland (1995). William Bartrand on the
Southeastern Indians. Lincoln: University of Nebraska Press, p. 114.
39
Cornell University Press, p. 37.
37
54
encounters with Native women, forced or consensual, had no
consequences. It was a short cognitive leap to view Native women
as shamelessly promiscuous and depraved, which freed male
colonists from their own social rules about extramarital sexual
relations.
The fact that Native women’s sexual relations with colonists were
often connected to trade allowed colonists to view those relations as
tainted and even mercenary. 40 As a result of these beliefs, English
surveying teams routinely harassed and raped Native women,
considering sexual restraint in such circumstance (sic) to be
foolish. 41
The conceptual framework to justify the sexual exploitation of
American Indian women was now in place, supported by two critical
stereotypes that emerged from this period in history: the sexually
loose, mercenary, and innately immoral American Indian woman and
the ineffective, profoundly lazy American Indian man, both of which
exhibited a savage disregard for the norms of decent society.
Native women’s experiences during national expansion
In 1769, an officer at York Factory on Hudson Bay described the
frequent trafficking of Native women in and around the fur trade
posts in his journal:
… the worst Brothel House in London is not common a [stew] as the
men’s House in this Factory was before I put a stop to it. 42
Similar sexual exploitation of Native women occurred in Oregon
Territory as the British sought to extend their fur trade south. At Fort
Langley, a Hudson’s Bay Company outpost on the Fraser River in
Oregon, Fort Commander James Yale (1776-1871) married three
Indian women within his first three years at the fort to smooth trade
40
Ibid., p. 56.
Cornell University Press, p. 68.
42
Bourgeault R, (1989). Race, class, and gender: Colonial domination of Indian women, in Forts J
et al., (Eds.), Race, class and gender: Bonds and barriers (2nd edition). Toronto: Jargoned Press.
41
55
relations with local tribes. 43 Native women such as these were
considered “secondary wives” with no legal rights, and as European
women began to arrive, these wives and their children were
frequently abandoned. 44
As immigrants moved westward, anti-Indian attitudes and
stereotypes born in the colonial era grew and expanded. Entire
villages were decimated by smallpox and measles epidemics, some
deliberately launched by military distribution of blankets carrying the
infection. The U.S. Army not only killed American Indian men in
battle, it also slaughtered entire encampments of women, elders, and
children. Troops sent to protect settlers referred to American Indian
women as “breeders,” justifying their rape, murder, and sexual
mutilation.
U.S. Army Lieutenant James Connor wrote the following account of
the attack launched by U.S. Army Colonel Chivington against Black
Kettle’s band of Cheyenne in 1864, despite their flag of truce:
I heard one man say that he had cut out a woman’s private parts and
had them for exhibition on a stick…I also heard of numerous
instances in which men had cut out the private parts of females and
stretched them over the saddle-bows and wore them over their hats
while riding in the ranks. 45
In 1871, an armed “citizens’ group” from Tucson attacked a group of
Apache camped at Camp Grant. In a sworn affidavit presented to the
Bureau of Indian Affairs, U.S. Calvary Lieutenant Royal E. Whitman,
commanding officer at the camp, reported on the aftermath:
The camp had been fired and the dead bodies of some twenty-two
women and children were lying scattered over the ground; those who
had been wounded in the first instance, had their brains beaten out
43
Garneau D, (January 30, 2007). Early years of the Canadian Northwest 1830-1849. Retrieved
February 2, 2009 from http://www.telusplanet.net/public/dgarneau/B.C.6.htm
44
Lynn J, (August 17, 1998). Colonialism and the sexual exploitation of Canada’s Aboriginal
women, paper presented at the American Psychological Association 106th Annual Convention,
San Francisco CA.
45
Brown D, (1970). Bury my heart at Wounded Knee: An Indian history of the American West. New
York: Holt, p. 90.
56
with stones. Two of the best-looking of the squaws were lying in such
a position, and from the appearance of the genital organs and of
their wounds, there can be no doubt that they were first ravished and
then shot dead. Nearly all the dead were mutilated. 46
The genocide of American Indian people during this period has been
likened to the Jewish Holocaust, because it was fueled by the
government’s formal policies calling for extermination and religious
persecution of Native people. Following the Wounded Knee
massacre, similar to treatment of Jewish victims at Auschwitz,
victims were stripped and thrown into a mass grave “like sardines in
a pit.” 47 Oral traditions for spiritual healing often died with the elders
carrying that knowledge, further impacting Native peoples’ ability to
grieve losses together in healing ceremonies.
Native [children’s] boarding school experiences
Mission schools were established as early as the late 1700s for the
“education of the Indian.” In 1879, the Bureau of Indian Affairs
opened Carlisle Industrial School in Pennsylvania, which became the
model for government-funded, Christian-oriented Indian boarding
schools. Approximately 12,000 American Indian children attended
Carlisle in its 39 years of operation. 48 At times, there were as many
as 100 government-operated Indian boarding schools nationwide. 49
The purpose of these schools was to destroy American Indian
children’s ties to their families, culture, religion, and language, and to
replace those with the values and behaviors of the dominant
Christian society. 50 This segment of a serialized story in Carlisle’s
weekly student newsletter written by a white school matron and
titled, “How an Indian girl might tell her own story if she had the
46
Board of Indian Commissioners, (1872). Third annual report of the Board of Indian
Commissioners to the President of the United States, 1871. Washington DC: Government Printing
Office. Retrieved March 2, 2009 from
http://www.archive.org/stream/annualreportofbo03unitrich/annualreportofbo03unitrich_djvu.txt
47
Mattes M, (1960). The enigma of Wounded Knee, Plains Anthropologist 5(9):1-11, p. 4.
48
Anderson S, (2000). On sacred ground: commemorating survival and loss at the Carlisle Indian
School, Central Pennsylvania Magazine (May edition).
49
National Public Radio, (May 12, 2008). American Indian boarding schools haunt many. Retrieved
December 22, 2008 from http://www.npr.org/templates/story/story.php?storyId=17645287
50
Hoxie F, (1989). A final promise: The campaign to assimilate the Indians, 1880-1920.
Cambridge: Cambridge University Press.
57
chance” illustrates the school’s goal for Native girls. In the story, an
Indian girl has graduated from Carlisle and returned home to her
Native community. When a white storekeeper asks if she will return
to wearing “Indian clothes,” she responds:
No! Do you think I can not appreciate what the great and good
Government of the United States has done for me? Do you think I
would be so ungrateful after the Government has spent so much
time and money to educate me as not to use the knowledge I have
obtained? I see I cannot do much here, but I believe I can keep
myself right if I try. I can keep from going back to Indian ways if I am
determined. I don’t believe the [tribal leader] could force me back into
the Indian dress. If he tried to I should run away. I believe the white
people would protect me if I should run to them. 51
Native researchers Maria Yellow Horse Brave Heart and Lemyra
DeBruyn, who have written extensively on historical trauma among
American Indians, summarized the impact of “Indian education” on
American Indian communities:
The destructive and shaming messages inherent in the boarding
school system…were that American Indian families are not capable
of raising their own children, and that American Indians are culturally
and racially inferior…abusive behaviors—physical, sexual,
emotional—were experienced and learned by American Indian
children raised in these settings. Spiritually and emotionally, the
children were bereft of culturally integrated behaviors that led to
positive self-esteem, a sense of belonging to family and community,
and a solid American Indian identity. 52
***
51
Burgess M, (October 18, 1889). Segment of a serialized story in The Indian Helper transcribed
and posted online by Barbara Landis. In 1891, the story was published as a book by Embe titled
Stiya, a Carlisle Indian Girl at Home. Transcribed serial segment retrieved June 2, 2009 from
http://home.epix.net/~landis/stiya.html.
52
Yellow Horse Brave Heart M and DeBruyn L, (1998). The American Indian holocaust: Healing
historical unresolved grief, American Indian and Alaska Native Mental Health Research 8(2):63.
58
The Indian Adoption Project
Before 1978 [when Congress enacted the Indian Child Welfare Act
(ICWA) 53 ], the wholesale removal of Native children from their
families and tribes by state social services agencies and courts was
commonplace…. Most often, the justification for removal was
“neglect,” claiming the parent had “inappropriately” left the child with
an extended family member for a prolonged period of time—ignoring
the fact that in many Native cultures, extended family members play
important parenting roles. 54
Building on that practice, the Bureau of Indian Affairs and the U.S.
Children’s Bureau entered into a contracted collaboration with the
Child Welfare League of America in 1958, to administer the Indian
Adoption Project. The project was a response to the number of
Native children in foster care or informal kinship care in povertystricken reservation settings, based on the idea that Native children
would have better health and brighter futures if they escaped the
conditions of reservation life. In 1962, the Director of the Indian
Adoption Project described the benefits that white families could also
realize by adopting an American Indian child:
As tribal members they have the right to share in all the assets of the
tribe which are distributed on a per capita basis. The actual as well
as anticipated benefits of an Indian child adopted through our Project
are furnished by the Secretary of the Interior. 55
From 1958 to 1967, the Indian Adoption Project removed 395 Native
children from 16 western states for adoption by white families in
Illinois, Indiana, New York, Massachusetts, Missouri, and other
states in the East and Midwest. The Adoption Resource Exchange of
North America (ARENA), a national organization, took over the work
of the Indian Adoption Project in 1966 and continued placing Native
53
25 U.S.C. § 1901.
Ibid.
55
Lyslo A, (December 1962). Suggested criteria to evaluate families to adopt American Indian
children through the Indian Adoption Project, Child Welfare League of America Papers, Box 17,
Folder 3, Social Welfare History Archives, University of Minnesota, pp. 3-5.
54
59
American children in white adoptive homes into the early 1970s. 56 A
1969 study by the Association on American Indian Affairs found that
roughly 25-35 percent of Native children had been separated from
their families, and the First Nations Orphan Association estimates
that between 1941 and 1978, 68 percent of all Indian children were
removed from their homes and placed in orphanages or white foster
homes, or adopted into white families. 57 This wholesale separation of
Native children from their families and communities had devastating
repercussions:
•
•
•
It shamed Native mothers, reinforcing the stereotype fostered
by the “Indian education” era that American Indian women are
not competent to raise their own children.
It left families and communities with disenfranchised grief that
could not be resolved.
It prevented the transmission of cultural values and practices
through social learning and oral story-telling traditions.
Removing Native girls from their families and tribes and adopting
them into white households severely curtailed these children’s ability
to foster any understanding of their roles in traditional Native
community life, and their ability to build relationships with other
Native people. 58 Their appearance marked them as American Indian,
exposing them to racial targeting for sexual violence, but they had
not been permitted to develop a culture-based identity as sacred
givers of life.
***
… Each time, past and current trauma were transferred to the next
generation along with the unresolved grief in what has been termed
56
Herman E, (July 11, 2007). The Adoption History Project. Department of History, University of
Oregon. Retrieved May 2, 2009 from http://darkwing.uoregon.edu/~adoption/topics/IAP.html.
57
Kreisher K, (March 2002). Coming home: The lingering effects of the Indian Adoption Project,
Children’s Voices. Child Welfare League of America. Retrieved May 2, 2009 from
http://www.cwla.org/articles/cv0203indianadopt.htm.
58
Jones B, The Indian Child Welfare Act handbook: A legal guide to the custody and adoption of
Native American children. Section of Family Law, American Bar Association. (1995).
60
generational trauma or historical trauma. 59 The long-term impacts
have been well-documented: widespread poverty, low educational
attainment, high rates of community and interpersonal violence, high
rates of alcohol-related deaths and suicide, poor physical health, and
corroded family and community relationships.
When a dominant society refuses to recognize a people’s grief and
losses as legitimate, the result is sadness, anger, and shame, feeling
helpless and powerless, struggles with feelings of inferiority, and
difficulty with self-identity. This negatively impacts interpersonal
relationships and Native peoples’ sense of themselves as sacred
beings. 60 Disenfranchised grief is in itself a significant barrier to the
healing of trauma, either generational or recent, and it, too, prevents
development of the four beliefs needed to develop a strong and
resilient sense of self.
In addition to these significant influences on American Indian
women’s well-being, ongoing experiences with racism lead to what
has been termed “colonial trauma response,” which results when a
Native woman experiences a current event that connects her to a
collective, historical sense of injustice and trauma. Just as people
with post-traumatic stress disorder are “triggered” to relive traumatic
events they have experienced, American Indian women, who have
endured massive trauma and injustice historically, are “triggered” to
connect current experiences with racism, abuse, and/or injustice with
those experienced by their female ancestors, in a very immediate
and emotional way. A Native woman’s response to the situation is
not only based on her own experience, but on the experiences of
generations of her female ancestors. 61
For this reason, Native women experience sexual assault,
prostitution, and sex trafficking as a continuation of the colonization
59
Yellow Horse Brave Heart M and DeBruyn L, (1998). American Indian holocaust: Healing
historical unresolved grief, American Indian and Alaska Native Mental Health Research 8(2): 60-82.
60
Kaufman G, (1996). The psychology of shame: Theory and treatment of shame-based
syndromes. New York: Springer.
61
Evans-Campbell T, (2008). Historical trauma in American Indian/Native Alaska communities: A
multilevel framework for exploring impacts on individuals, families, and communities, Journal of
Interpersonal Violence 23: 316-338.
61
process, in which Native women’s sacred selves were routinely
exploited for the gratification of a person who claimed the right to do
so while ignoring or invalidating the impact on the woman herself.
When the assailant, pimp, or john is a white male, the psychological
impact on a Native woman is even greater.
While the historical experiences of all Native people have intensified
Native women’s vulnerability to sex trafficking and other forms of
commercial sexual exploitation, generational trauma has also
reduced Native communities’ ability to respond positively to victims
of sexual crimes. Native victims of sexual assault often do not report
the assault because they do not believe that authorities will
investigate or charge the crime, and they fear being blamed or
criticized by people in their communities. Any admission of
involvement in prostitution carries an even greater stigma, so Native
women and girls trafficked into prostitution rarely seek help. If unable
to escape prostitution prior to reaching the age of 18, Native child
trafficking victims find themselves categorized as criminals rather
than victims, which only adds to the trauma they have already
experienced in prostitution. Most literally have nowhere to turn, as
there are very few culturally-based services to help them heal from
their experiences in safety. There are also very few culturally-based
“upstream” interventions in place that explicitly focus on preventing
the trafficking of American Indian girls into the sex trade.
***
(End of Shattered Hearts excerpt.)
IV. LEGAL OBLIGATIONS WITH REGARD TO HUMAN TRAFFICKING
The purpose of the Report is to examine how well Oregon officials are
managing their obligations to prevent human trafficking, prosecute traffickers, and
protect survivors of human trafficking with regard to the Native American
community. Therefore, this Part enumerates state, tribal, federal, and international
laws relevant to human trafficking and discusses how these laws apply to Native
Americans and reservation lands.
A. Oregon Law
62
1. Oregon’s Human Trafficking Statutes
a. Current statutory framework
All 50 states and Washington D.C. have passed some form of human
trafficking legislation beyond the existing federal Trafficking Victims Protection
Act. 62 In Oregon, the legislature recognized that the state is uniquely vulnerable to
trafficking because of its geographic position as a corridor state between Canada
and Mexico. 63 Accordingly, in 2007, the legislature passed Senate Bill 578, which
created nearly all of Oregon’s statutes related to human trafficking, including
crimes of trafficking in persons and involuntary servitude. 64
Oregon’s trafficking in persons statute reads as follows:
(1) A person commits the crime of trafficking in persons if the person
knowingly: (a) Recruits, entices, harbors, transports, provides or
obtains by any means, or attempts to recruit, entice, harbor,
transport, provide or obtain by any means, another person knowing
that the other person will be subjected to involuntary servitude as
described in ORS 163.263 or 163.264; or (b) Benefits financially or
receives something of value from participation in a venture that
involves an act prohibited by this section or ORS 163.263 or
163.264. (2) Trafficking in persons is a Class B felony. 65
Oregon defines involuntary servitude as a separate offense in both the first
and second degrees. Involuntary servitude in the first degree reads as follows:
(1) A person commits the crime of subjecting another person to
involuntary servitude in the first degree if the person knowingly and
without lawful authority forces or attempts to force the other person
to engage in services by: (a) Causing or threatening to cause the
death of or serious physical injury to a person; or (b) Physically
restraining or threatening to physically restrain a person. (2)
62
Megan Fowler, Wyoming Becomes 50th State to Outlaw Trafficking, POLARIS PROJECT (Feb. 27,
2013), http://www.polarisproject.org/media-center/press-releases/742-wyoming-becomes-50thstate-to-outlaw-human-trafficking.
63
Relating to Trafficking in Persons: Hearing on SB 578 before the Subcomm. on Public Safety
and the H. Comm. on Ways & Means, 74th Leg. (2007) (statement of Sen. Joanne Verger).
64
Senate Bill 578, 2007 Or. Sess. Law (originally codified as OR. REV. STAT. §§ 131.602, 137.103,
161.005).
65
OR. REV. STAT. § 163.266.
63
Subjecting another person to involuntary servitude in the first degree
is a Class B felony. 66
Involuntary servitude in the second degree is defined as:
(1) A person commits the crime of subjecting another person to
involuntary servitude in the second degree if the person knowingly
and without lawful authority forces or attempts to force the other
person to engage in services by: (a) Abusing or threatening to abuse
the law or legal process; (b) Destroying, concealing, removing,
confiscating or possessing an actual or purported passport or
immigration document or another actual or purported government
identification document of a person; (c) Threatening to report a
person to a government agency for the purpose of arrest or
deportation; (d) Threatening to collect an unlawful debt; or (e)
Instilling in the other person a fear that the actor will withhold from
the other person the necessities of life, including but not limited to
lodging, food and clothing. (2) Subjecting another person to
involuntary servitude in the second degree is a Class C felony. 67
With regard to the crimes of involuntary servitude in the first and second
degree, Oregon has defined “services” as “activities performed by one person
under the supervision or for the benefit of another person.” 68
In addition to creating the crimes of trafficking in persons and involuntary
servitude, Senate Bill 578 also creates a civil cause of action for a victim to bring a
claim for damages against a person conducting or involved in trafficking; 69 the
legislature attached a statute of limitations of six years for the victim to commence
a claim of this type. 70 Through these claims, victims can seek compensatory
damages, as well as restitution for economic damages suffered. 71
Despite the fact that Oregon established human trafficking crimes and a
civil cause of action through enactment of SB 578, there is evidence that these
statutes were initially intended to act primarily as tools for education and
66
OR. REV. STAT. § 163.264.
OR. REV. STAT. § 163.263.
68
OR. REV. STAT. § 163.261.
69
OR. REV. STAT. § 30.867.
70
Id.
71
OR. REV. STAT. §§ 137.103 & 137.109.
67
64
awareness rather than prosecution. This intent is expressly indicated in testimony
from proponents of Senate Bill 578, who proposed that enacting the bill would
raise public and law enforcement awareness of human trafficking, as well as
evidence the state’s increased commitment to the issue. 72 This intent was also
illustrated by legislative testimony that only a handful of trafficking cases would be
adjudicated in any given year, and that any fiscal impact as a result would be
minimal; 73 furthermore, it was contemplated that any large cases would
presumably be addressed at the federal level. 74
Additionally, the legislature intended for the anti-trafficking legislation to be
used in conjunction with related criminal statutes. 75 One such statute, ORS
167.017, codifies the crime of compelling prostitution. The statute is relevant
because many victims of trafficking are coerced or forced into prostitution. Unlike
trafficking, compelling prostitution is a Measure 11 offense, 76 and contains clearly
defined elements that make it a successful prosecutorial tool. Accordingly, many
trafficking cases are prosecuted under the title of “compelling prostitution,” which is
defined as follows:
(1) A person commits the crime of compelling prostitution if the
person knowingly: (a) Uses force or intimidation to compel another to
engage in prostitution; or (b) Induces or causes a person under 18
years of age to engage in prostitution; or (c) Induces or causes the
spouse, child or stepchild of the person to engage in prostitution. (2)
Compelling prostitution is a Class B felony. 77
However, despite the benefits making it prosecutorially successful, use of
this statute in place of human trafficking statutes greatly contributes to the difficulty
in keeping statistics on trafficking and may also have the adverse effect of
criminalizing victims as prostitutes along with their traffickers in some cases.
72
Relating to trafficking in persons, supra note 63 (statement from Sen. Kate Brown).
Relating to trafficking in persons, supra note 63 (statement from Sen. Roger Beyer, Vice-Chair,
Or. S. Comm. on Judiciary).
74
Id.
75
Id. (statement from Sen. Roger Beyer, Vice-Chair, Or. S. Comm. on Judiciary); OR. REV. STAT. §
166.720 (stating racketeering is an unlawful crime).
76
Measure 11 is a 1994 ballot measure approved by Oregon voters, which requires mandatory
minimum prison sentences with no possibility of reduction in sentence for conviction of certain
enumerated crimes. Codified at OR. REV. STAT. §§ 137.700, 137.707 & 137.712; see Measure 11
Mandatory Sentencing, OREGON.GOV, http://www.oregon.gov/doc/resrch/Pages/measure_11.aspx
(last visited Sept. 28, 2014).
77
OR. REV. STAT. § 167.017.
73
65
Furthermore, nothing in the legislative history or previous drafts of Senate Bill 578,
or any of the other relevant statutes, makes specific mention of Native Americans
b. Recent state legislation
In 2010, the legislature passed House Bill 3623 (codified ORS 131.602) in
response to Oregon’s growing human trafficking problem. 78 It aims to increase
public awareness of human trafficking in Oregon by allowing the Oregon Liquor
Control Commission to send informational stickers to establishments that sell and
serve alcohol. The sticker displays the National Human Trafficking Hotline phone
number established for victims, a description of human trafficking as a form of
slavery, and an appeal to the public to call the hotline if they have encountered a
trafficking victim. Although the stickers could help to raise awareness, ORS
131.602 falls short in that it does not mandate that the stickers be posted; instead,
the establishment receiving the stickers can decide whether or not to post them.
In 2011, the legislature passed House Bill 2714, creating the crime of
patronizing a prostitute. 79 The bill was designed to separate those paying for sex
from those offering sex because, as Senate Majority Leader Diane Rosenbaum
stated, “[s]ex trafficking victims are not criminals and should not be treated like
criminals[.]” 80 Additionally, HB 2714 greatly increased fines and mandatory jail
time for repeat offenders and for persons soliciting sex from underage
individuals. 81 If a person is charged with patronizing prostitution of a minor, HB
2714 eliminates the defense that the “john” was unaware the person was a
minor. 82 In passing the bill, the legislature acknowledged the seriousness of the
illegal sex trade in Oregon, stating that HB 2714 was designed to take “a crucial
step toward recognizing the problems our law enforcement and social services
have encountered in Oregon and … help us better provide services of sex
trafficking.” 83 However, despite well intentions, this bill also falls short of providing
adequate protection and prevention against human trafficking. Similar to the crime
of compelling prostitution, it contributes to the difficulty in keeping statistics on
78
House Bill 3623, 2010 Or. Sess. Law (codified OR. REV. STAT. 131.602).
House Bill 2714, 2011 Or. Sess. Law (codified OR. REV. STAT. 167.007 et seq.).
80
Press Release, Senate Majority Office, Bill Cracks Down on “Johns,” Will Help Young Sex
Trafficking Victims (May 10, 2011), available at
http://www.oregonlegislature.gov/senatedemocrats/Documents/sdo_051011.pdf.
81
Id.
82
Id.
83
Id.
79
66
trafficking, and regardless of legislative intent, it may also have the indirect effect
of perpetuating the punishment of victims as prostitutes along with johns.
Most recently, in 2013, Oregon also passed Senate Bill 673. The effect of
the bill is twofold: (1) it creates a separate crime for purchasing sex with a minor;
and (2) it further increases the penalty for traffickers where the victim is under the
age of 15 or where force is used. 84 In creating the crime of purchasing sex with a
minor, SB 673 amends ORS 163.355 and 163.427 with the effect of increasing
minimum and maximum penalties for crimes that might otherwise be classified as
patronizing a prostitute under ORS 167.008. The first offense for purchasing sex
with a minor is a Class C felony (carrying a maximum of five years' imprisonment,
a fine of $125,000, or both). 85 Courts have discretion to designate these offenses
as sex crimes under ORS 181.594, which implicates sex offender registration and
carries a minimum sentence of 30 days in jail, $10,000 fine, and completion of
“john school”. 86 Subsequent offenses of purchasing sex with a minor are classified
as B felonies (providing up to 10 years' imprisonment, a $250,000 fine, or both), 87
and carry a minimum penalty of $20,000 in fines and sex offender registration. 88
As previously mentioned, SB 673 also increases the classification of crimes of
trafficking in persons (ORS 163.266) where force or minors under the age of 15
are involved. Where ORS 163.266 is used in these kinds of cases, the crime
constitutes a Class A felony with a maximum penalty of 20 years' imprisonment, a
$375,000 fine, or both. 89
2. Relevant Provisions in Oregon’s Constitution
The Oregon Constitution also contains provisions that are relevant to
human trafficking. For example, it prohibits slavery and involuntary servitude
occurring within the state. 90 It also prohibits demanding the services of an
84
Senate Bill 673, 2013 Or. Sess. Law (amending OR. REV. STAT. §§ 40.210, 133.724, 137.106,
144.275, 147.005, 147.015, 147.025, 147.390, 161.005, 163.266, 166.715, 167.008, 181.594 &
419B.005), available at https://olis.leg.state.or.us/liz/2013R1/Measures/Text/SB673/Enrolled.
85
Senate Bill 673; OR. REV. STAT. §§ 161.605 (maximum prison terms for felonies) & 161.625
(fines for felonies).
86
Senate Bill 673.
87
Senate Bill 673; OR. REV. STAT. §§ 161.605 (maximum prison terms for felonies) & 161.625
(fines for felonies).
88
Senate Bill 673.
89
Id.; OR. REV. STAT. §§ 161.605 (maximum prison terms for felonies) & 161.625 (fines for
felonies).
90
“There shall be neither slavery, nor involuntary servitude in the State, otherwise than as a
punishment for crime, whereof the party shall have been duly convicted.” OR. CONST. art. I, § 34.
67
individual without just compensation. 91 Because of these provisions, many acts
that constitute human trafficking violate the obligations set forth in the Oregon
Constitution.
However, the Oregon Constitution simultaneously provides strong freedom
of speech protections that are much broader than the protections offered at the
federal level. 92 This expansive free speech clause allows the commercial sex
industry in Oregon significant liberty to develop and thrive. 93 Accordingly, Portland
has the highest number of sexually oriented businesses per capita of any city in
the nation. 94 One problem with this is that the legal sex industry sometimes is used
as a front for illegal commercial sex activities, including commercial sexual
exploitation of minors. 95 Despite regulation by BOLI, legal sex establishments can
attract parallel illicit businesses or serve to hide or obscure sex trafficking and
forced prostitution of adults and young girls, which may make it easier for
traffickers to carry out their enterprise. 96
91
“Private property shall not be taken for public use, nor the particular services of any man be
demanded, without just compensation[.]” OR. CONST. art. 1, § 18.
92
“No law shall be passed restraining the free expression of opinion … the right to speak, write, or
print freely on any subject whatever; but every person shall be responsible for the abuse of this
right.” OR. CONST. art. I, § 8.
93
State v. Henry, 732 P.2d 9 (1987); See Brad Smith, Strip Club Foes Seek Amendment, THE
OREGONIAN, Apr. 23, 2009, at C1, C3.
94
See, e.g., Susan Donaldson James, Strip Club Teases Small Oregon City, ABC NEWS, Oct. 22,
2008, available at http://abcnews.go.com/TheLaw/Story?id=6088041&page=1; See also Smith,
supra note 93, at C3 (“Oregon’s constitution and rulings by the Oregon Supreme Court have
protected nude dancing, adult bookstores—and even live sex shows—through the free-speech
clause. These protections have helped dub Portland the country’s per-capita strip-club capital.”).
95
RICHARD J. ESTES & NEIL ALAN W EINER, COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN IN THE
U.S., CANADA AND MEXICO, Executive Summary 7 (2001) (a study finding that commercial sexual
exploitation of children is linked to escort and massage services, private dancing, drinking and
photographic clubs, major sporting and recreational events, major cultural events, conventions, and
tourist destinations).
96
For example, two men pled guilty in Washington for involvement in a prostitution ring making
more than $25 million per year and operating out of a chain of strip clubs. Levi Pulkkinen, Three
plead guilty in strip-club case, SEATTLE POST-INTELLIGENCER, Apr. 28, 2010, available at
http://www.seattlepi.com/local/419168_ricks28.html. See generally, TRAFFICKING IN PERSONS
REPORT, U.S. DEPT. OF STATE 27 (2007), available at http://www.state.gov/g/tip/rls/tiprpt/2007/. For
information specific to Portland, see Ruben Rosario, After Prostitution and Addiction, a New
Beginning, PIONEER PRESS, May 5, 2010, available at
http://www.twincities.com/localnews/ci_15026537 (“She was introduced to a charismatic ‘record
producer’ who turned out to be a pimp. The dancing led to client ‘dating’ and escort-service work in
the Portland and San Francisco areas that involved prostitution.”).
68
B. Tribal Laws
At this point, there are no tribal laws in Oregon that are directly related to
human trafficking. 97 However, tribes in a few other states have enacted their own
human trafficking laws that could serve as an example for Oregon tribes who may
wish to enact similar laws. Examples include the Absentee Shawnee Tribe of
Oklahoma’s child trafficking law 98 and Snoqualmie Tribe’s sex trafficking law in
Washington. 99 The text of these statutes is provided in Appendix A.
C. Federal Law: Trafficking Victims’ Protection Act
On January 24, 2000, Congress enacted the Trafficking Victims Protection
Act (“TVPA”) 100 in order to “combat trafficking in persons, especially into the sex
trade, slavery, and involuntary servitude, to authorize certain federal programs to
prevent violence against women, and for other purposes.” 101 The TVPA is far
reaching in that it applies to citizens of the United States, as well as foreign
nationals, regardless of immigration status. 102 The United States Congress voted
with resounding support for the TVPA in its initial inception, 103 and Congressional
reauthorization of the Act is required every two years. 104 Although the TVPA
became the victim of shortsighted political posturing and did not even emerge from
committee for reauthorization in 2011, 105 on February 11, 2013, Congress passed
the latest TVPA and Violence Against Women Act (“VAWA”) reauthorizations as a
97
Tribal codes are notoriously difficult to access. Unlike federal or state law, where there exist
robust and accessible clearinghouses for laws (such as LexisNexis, Westlaw, Google Scholar),
there is nothing so comprehensive for tribal codes of which we are currently aware.
98
AST. CRIM. LAW CODE § 568.
99
SNOQ. TRIBAL CODE § 7.21.
100
Victims of Trafficking and Violence Protection Act of 2000, § 102(a) & (b), Pub. L. No. 106-386,
117 Stat. 2685 (codified as amended in scattered sections of 8 U.S.C., 18 U.S.C., 22 U.S.C., and
42 U.S.C.), available at http://www.state.gov/j/tip/laws/61124.htm [hereinafter TVPA].
101
Id. § 102(a).
102
Id. § 102(b).
103
See Senate Vote on TVPA 2000, GOVTRACK.US (Oct. 11, 2000), see House Vote (Oct. 6, 2007).
https://www.govtrack.us/congress/bills/106/hr3244; (last visited Oct. 12, 2014).
104
See House Vote on Trafficking Victims Protection Reauthorization Act of 2003, GOVTRACK.US
(Nov. 5, 2003), https://www.govtrack.us/congress/bills/108/hr2620; see House Vote on Trafficking
Victims Protection Reauthorization Act of 2005, GOVTRACK.US (Dec. 14, 2005),
https://www.govtrack.us/congress/bills/109/hr972. Senate votes are unavailable for both
reauthorization years.
105
Overview of Trafficking Victims Protection Reauthorization Act of 2011, GOVTRACK.US (Oct. 13,
2011), http://www.govtrack.us/congress/bills/112/s1301.
69
joint bill providing additional protections for Native women who are victims of
sexual or domestic violence. 106
1. Aims of the TVPA
The TVPA is similar to international anti-trafficking laws and treaties in that
it aims to combat trafficking by promoting the goals of the Three Ps—prevention,
protection and assistance for victims, and prosecution of traffickers. Further aims
of the TVPA are to promote interagency collaboration between the executive
branch and local, state, and federal law enforcement entities. 107
More specifically, the TVPA first attempts to prevent human trafficking by
providing funding for training law enforcement entities, encouraging similar and
consistent state statutes, and informing vulnerable populations about human
trafficking. 108 Initially, the TVPA was intended to prevent human trafficking among
migrant and immigrant populations, so some of the earliest action taken under the
TVPA was meant to arm immigration officials with the information necessary to
educate immigrants about the potential danger of human trafficking. However,
later TVPA reauthorizations recognized that United States citizens were also in
danger of domestic human trafficking, and awareness efforts were consequently
extended. 109
Second, the TVPA acts to protect and assist victims by allotting funds to
state and local governments for victim services. These state and local
governments work with social services and other victim assistance organizations
to provide tangible support to victims. 110 Furthermore, additional funding is given
to the Department of Health and Human Services to assist in the housing of
victims who are not U.S. citizens. For these non-citizens, the Department of
Homeland Security can also issue a T-visa under the TVPA, which gives lawful
status to a non-citizen trafficking victim for up to four years if the victim has
suffered a severe form of human trafficking. Appointment of a visa of this type
106
Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54 (2013),
available at http://www.gpo.gov/fdsys/pkg/BILLS-113s47enr/pdf/BILLS-113s47enr.pdf [hereinafter
VAWA 2013].
107
See TVPA §§ 105 & 109; TVPRA 2008, §§ 106, 108 & 110; 22 U.S.C. §§ 7103, 7106 & 7109; 8
U.S.C. § 1777.
108
TVPRA 2008 § 202(b)(1)-(5) (codified as 8 U.S.C. § 1375b(b)(1)-(5)).
109
See TVPRA 2008 § 202(e)(2) (codified as 8 U.S.C. § 1375b(e)(2)).
110
See TVPA § 107(b)(2) (codified as 22 U.S.C. § 7105(b)(2)).
70
however, is conditional upon the victim’s cooperation with the prosecutorial
investigation of the trafficker. 111
Third, the TVPA is designed to assist in the prosecution of suspected
traffickers and creates a strong deterrence value by imposing strict penalties. The
TVPA lists a number of aggravating circumstances such as kidnapping, assault,
and age of the victim, which have the potential to significantly compound the
sentences for traffickers. Further, the TVPA also incentivizes civil suits by victims
against their traffickers by authorizing attorney’s fees. 112
However, it is important to note that the TVPA’s criminal provisions, like all
federal crimes, only apply to situations where it can be shown that the acts have
an effect on interstate commerce (i.e., where the acts occur across state lines or
involve the mail, Internet, or telephone). 113
2. Inclusion of a Tribal Provision
As alluded to above, a striking feature of the joint VAWA/TVPA
reauthorization of 2013 is the inclusion of a tribal provision. Under the new VAWA
provision, tribal courts can now hear claims brought by tribal prosecutors against
non-Natives for domestic and sex abuse crimes if the crime occurred on a
reservation, and the victim is a member of an Indian tribe. 114 Although this
provision is intended to prevent domestic violence of Natives by non-Natives, in
some circumstances it might also allow tribes to prosecute some human trafficking
crimes where a domestic relationship exists between the trafficker and victim, and
a violent act occurs. If utilized in this way, this increased capacity of tribal courts
could deter non-Natives from engaging in some activities related to the trafficking
of tribal members while on the reservation. However, tribal jurisdiction is limited to
certain circumstances where a “dating” or “domestic” relationship already exists
111
Immigration Relief for Victims of Human Trafficking and Other Crimes, DEPARTMENT OF
HOMELAND SECURITY, http://www.dhs.gov/xlibrary/assets/blue-campaign/ht-information-for-lawenforcement-officials-immigration-relief-for-victims-of-human-trafficking.pdf.
112
However, civil actions cannot be filed until the criminal investigation and prosecution is
complete, but must commence within 10 years after the cause of action arose. Trafficking Victims
Protection Reauthorization Act of 2003, § 4(a)(4)(A), Pub. L. No. 108-193, 114 Stat. 1536 (codified
18 U.S.C. § 1595).
113
U.S. CONST. art. 1, §8, cl. 3.
114
VAWA 2013 §904.
71
between the offender and the victim. 115 Thus, the VAWA tribal provision should not
be viewed as sufficient to addressing the problem as a whole.
D. International Law
International law consists of rules and principles governing the conduct of
sovereignties, their relationships with one another, and their treatment of
individuals. 116 The two main sources of international law are treaties and
customary international law (“CIL”). 117 A treaty is an agreement between two or
more countries consenting to be legally bound by the agreement, 118 while CIL
“results from a general and consistent practice of [countries] followed by them from
a sense of legal obligation.” 119 The United States has entered into two treaties that
enumerate its obligations to outlaw human trafficking within the United States.
However, the tribes themselves do not have such international obligations under
the treaties due to their sovereign status. 120 Arguably though, tribes may be
required to prohibit human trafficking under CIL.
1. Treaties
Interestingly, the TVPA and other major federal legislation, such as VAWA
and the Torture Victim Protection Act, are ostensibly identical to their UN treaty
counterparts, but are tailored to comply with U.S. federal law. 121 The TVPA in
particular, was created to accomplish much of the same purpose as the Protocol
to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and
115
For tribal jurisdiction to apply to a non-Native offender, the offender must be in a “dating” or
“domestic” relationship with a Native, and the crime charged must be based on the presence of the
relationship. Additionally, the non-Indian offender must reside or be employed on the reservation,
or be the spouse, intimate partner, or dating partner of either a tribal member or a member of
another tribe who resides in the Tribes’ Indian country. Tribes must also allow non-Indian
defendants: an impartial jury of community members; effective assistance of counsel (at no cost if
indigent); a competent judge; and notice of right to file for writ of habeas corpus in federal court.
Tribes are further expected to uphold “all other rights whose protection is necessary under the
Constitution of the United States in order for Congress to recognize and affirm the [tribe’s] inherent
power…to exercise” its jurisdiction. VAWA 2013 § 904. In addition to these specific requirements
under VAWA, tribes are also expected to uphold all requirements laid out under the Indian Civil
Rights Act. 25 U.S.C. §1302.
116
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S. § 101 (1987) [hereinafter
RESTATEMENT].
117
Id. at § 102.
118
Id. at § 301(1)-(2).
119
Id. at § 102(2).
120
See Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831) (characterizing Native tribes as
“dependent domestic nations”).
121
TVPA § 102(b).
72
Children (“the Protocol”), an international anti-human trafficking treaty the United
States ratified in 2005. 122 The Protocol defines human trafficking as:
the recruitment, transportation, transfer, harboring or receipt of
persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation… [which
includes] prostitution… or other forms of sexual exploitation, forced
labor or services, slavery or practices similar to slavery, servitude or
the removal of organs [regardless of consent of the victim]. 123
If the victim is under the age of eighteen, The Protocol eliminates the
requirement in its language that “threat or use of force” must be used for the
accused act to qualify as trafficking, which provides additional protection for
children. 124
The obligations under the Protocol are divided according the three
categories on which the Report is based, the Three Ps: Prevent, Punish, Protect.
More specifically, the obligation to “prevent” human trafficking includes: (1)
educating the community and stakeholders; 125 (2) strengthening cooperation
among parties to the treaty; 126 and (3) strengthening national borders. 127 The
obligation to “punish” is reflected in the Protocol’s requirement that countries
criminalize human trafficking, 128 attempts at trafficking, 129 acting as an
accomplice, 130 and conspiring to traffic persons. 131 Finally, the specific obligations
to “protect” and assist victims of human trafficking set forth in the Protocol include:
122
Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and
Children, Dec. 13, 2000, 2237 U.N.T.S. 319, available at
http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_en
g.pdf (showing that the United States signed the Protocol on Dec. 13, 2000, and ratified it on Nov.
3, 2005).
123
Id. art. 3(a).
124
Id. at art. 3(c).
125
Id. at art. 9.
126
Id. at art. 10.
127
Id. at art. 11.
128
Id. at art. 5(1).
129
Id. at art. 5(2)(a).
130
Id. at art. 5(2)(b).
131
Id. at art. 5(2)(c).
73
(1) protecting their privacy and identities; 132 (2) providing them with information
about relevant court proceedings, 133 as well as assistance for their welfare 134 and
security; 135 and (3) creating legal mechanisms for compensation. 136
The United States has additional obligations to prohibit human trafficking
under the International Covenant on Civil and Political Rights (“ICCPR”), which it
ratified in 1992. 137 Though the ICCPR does not address human trafficking
specifically, it does prohibit “cruel, inhuman, and degrading treatment,” 138
slavery, 139 servitude, 140 and “forced or compulsory labor.” 141 Because human
trafficking is inherently cruel, inhuman, and degrading, and because slavery,
servitude, and forced labor are ways in which persons are exploited through
human trafficking, the ICCPR indirectly requires the United States to prohibit
human trafficking.
As international treaties, the ICCPR and the Protocol are incorporated into
United States federal and state law through the Supremacy Clause of the United
States Constitution. 142 However, given that the Supremacy Clause most likely
does not apply to American Indian tribes, the tribes are most likely not bound to
uphold international treaties signed by the U.S. (such as the Protocol and the
ICCPR). The Supreme Court has never ruled on the issue, but Indian Law scholar
Robert N. Clinton argues that the Supremacy Clause was never intended to apply
to the tribes. 143 Further, as Clara Boronow explains, “[W]hile Congress, under its
plenary power can enact legislation binding a tribe to the provisions of an
international treaty, human rights treaties do not by their own accord apply to
132
Id. at art. 6(1).
134
Id. at art. 6(3).
135
Id. at art. 6(5).
136
Id. at art. 6(6).
137
International Covenant on Civil and Political Rights, Oct. 5, 1977, 999 U.N.T.S. 171, available at
http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-4&chapter=4&lang=en (showing U.S.
ratification on Jun. 5, 1992).
138
Id. art. 7.
139
Id. at art. 8(1).
140
Id. at art. 8(2).
141
142
U.S. CONST. art. VI, cl. 2 (“[A]ll Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”).
143
Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 ARIZ. ST. L.J.
113, 159-162 (2002).
133
74
tribes under either international or domestic law.” 144 Therefore, although
international treaties regulating human trafficking exist, it seems that either tribes
would have to independently enter into these treaties, or federal legislation
specifically extending those treaties to the tribes would have to be enacted, in
order for their application to be mandated.
2. Customary International Law
The prohibition of slavery is one of the oldest and most well established
rules of CIL. In fact, it has risen to the level of jus cogens, meaning that
international law views it as a peremptory norm, or fundamental principle, from
which no derogation is permitted. 145 As human rights law scholar A. Yasmine
Rassam explains, “[E]very state has illegalized institutionalized slavery and the
slave trade and no state dares assert that it does not have an international legal
obligation to outlaw slavery and the slave trade.” 146 Given that sex and labor
trafficking are “deemed by the international community to be contemporary forms
of slavery,” 147 human trafficking is, therefore, arguably prohibited under CIL.
Traditionally, violations of CIL are only recognized “if practiced,
encouraged, or condoned by the government of a state as official policy.” 148 A
“state” is commonly defined as “an entity that has a defined territory and a
permanent population, under the control of its own government, and that engages
in, or has the capacity to engage in, formal relations with other such entities.” 149
While such a definition unquestionably includes the United States, it may be
interpreted to exclude American Indian tribes because the United States has
prohibited them from engaging in relations with foreign powers in the past. 150
144
Clare Boronow, Note, Closing the Accountability Gap for Indian Tribes: Balancing the Right to
Self-Determination With the Right to a Remedy, 98 VA. L. REV. 1372, 1412 (2012).
145
RESTATEMENT, supra note 116, at §102, reporter note 6.
146
A. Jasmine Rassam, Contemporary Forms of Slavery and the Evolution of the Prohibition of
Slavery and the Slave Trade Under Customary International Law, 39 VA. J. INT’L L. 303, 311
(1999).
147
Id. at 308 (internal citation and quotation marks omitted).
148
RESTATEMENT, supra note 116, at §702, cmt. b.
149
Id. at §201.
150
See Cherokee Nation, 30 U.S. at 17-18 (Native tribes are “so completely under the sovereignty
and dominion of the United States, that any attempt to acquire their lands, or to form a political
connexion [sic] with them, would be considered by all as an invasion of our territory, and an act of
hostility.”); United States v. Wheeler, 435 U.S. 313, 326 (1978) (Native tribes cannot enter into
direct commercial or government relations with foreign nations.).
75
However, as Boronow points out, the International Court of Justice (“ICJ”)
acknowledges “that [s]tates are not the only subjects of international law,” and
defines international legal personality “as the capacity to possess rights and duties
under international law and the capacity to bring international claims.” 151
Accordingly, Boronow argues that tribes are bound by CIL under the ICJ’s criteria
because they have rights and duties under the United Nations Declaration on the
Rights of Indigenous People (“UNDRIP”), such as the right to self-determination
and the duty implicit in that right to respect human rights. 152 Additionally, Boronow
notes that UNDRIP “suggests that indigenous people may have a right to bring
claims before international bodies when suitable domestic mechanisms are
unavailable.”153 Thus, even though tribes are not “states,” they nonetheless are
likely bound by CIL’s jus cogens norm prohibiting human trafficking. This means
that the United States, as well as the tribes, must do all they can to prevent human
trafficking under customary international law.
E. Jurisdiction Over Human Trafficking Crimes in Oregon Indian Country
Matters of criminal jurisdiction—who has jurisdiction over crimes in Indian
country (i.e., reservations)—is complex and to some degree, unsettled. The racial
identity (Indian or non-Indian status) of both the victim and the offender must be
considered in order to determine which government(s) will have jurisdiction, but
whether or not a reservation is subject to Public Law 280 (“PL 280”) is also
determinative. 154 An in-depth discussion regarding jurisdiction is attached as
Appendix D to this report. However, a simplification of jurisdictional issues
relevant to human trafficking in Indian country within Oregon follows below. Even
this “simplification” establishes just how complex jurisdictional issues can be.
1. Federal Jurisdiction
The question of whether crimes of human trafficking in Indian country fall
under federal jurisdiction is primarily determined by looking in three places: the
151
Boronow, supra note 144, at 1412-1413.
Id. at 1413.
153
Id. at 1414. Article 40 states that indigenous peoples “have the right to access to and prompt
decision through just and fair procedures for the resolution of conflicts and disputes with States or
other parties, as well as to effective remedies for all infringements of their individual and collective
rights.” Declaration on the Rights of Indigenous People, G.A. RES. 61/295, U.N. Doc. A/61/49, at 10
(Sept. 13, 2007).
154
See Part II (explaining which Oregon tribes are subject to PL 280 and which are not); see infra
note 184 and accompanying text (for a brief description of PL 280).
152
76
Major Crimes Act (“MCA”), 155 the General Crimes Act (“GCA”), 156 and federal
crimes of general applicability. 157 In “mandatory” 158 PL 280 states like Oregon, the
MCA and the GCA generally 159 only apply to grant federal jurisdiction over crimes
in non-PL 280 jurisdictions. 160 However, federal crimes of general applicability can
be applied anywhere.
Federal Jurisdiction Chart:
DEFENDANT/
VICTIM
Indian/Indian
Indian/
Non-Indian
NON-PL 280
PL 280
Concurrent jurisdiction if MCA
applies (18 U.S.C. § 1153).
No jurisdiction except federal crimes of
general applicability.
Concurrent jurisdiction if MCA
applies (18 U.S.C. § 1153).
Jurisdiction if GCA/ACA applies (18
U.S.C. §§ 1153, 13) and tribe did
not punish defendant.
Non-Indian/
Indian
Jurisdiction if GCA/ACA applies (18
U.S.C. §§ 1153, 13) and tribe did
not punish defendant.
Non-Indian/
Non-Indian
No jurisdiction except federal
crimes of general applicability.
155
Major Crimes Act, 18 U.S.C. § 1153 (originally enacted in 1885 to cover eight crimes and now
covers sixteen).
156
General Crimes Act, 18 U.S.C. § 1152 (originally enacted in 1817).
157
Note that crimes of general applicability (albeit confusingly) are different from the General
Crimes Act. The GCA is a statutory enactment granting federal jurisdiction over crimes on lands
owned by the U.S. (i.e., non-PL 280 reservations). Crimes of general applicability, on the other
hand, are the kinds of crimes implicating jurisdiction due to federal interests (and authority)
independent of geographical location.
158
One way in which “mandatory” PL 280 jurisdictions differ from “optional” PL 280 jurisdictions is
that those falling under the former category share concurrent jurisdiction between only the state
and the tribe, while in “optional” PL 280 criminal jurisdictions authority is shared between state,
tribal, and federal governments. 18 U.S.C. § 1162 (establishing “mandatory” states); 25 U.S.C §
1321 (for “optional” PL 280 states).
159
We use the term “generally” because while mandatory PL 280 jurisdictions traditionally follow
this rule, recent enactment of the Tribal Law and Order Act (“TLOA”) created an option by which
mandatory PL 280 tribes may instead share concurrent jurisdiction with both state and federal
governments (where the GCA or MCA applies). For the TLOA option to apply: (1) the tribe must
expressly request application of federal jurisdiction (implicating the GCA/MCA); and (2) the
Attorney General must consent. 18 U.S.C. 1162(d). No tribes have done this yet in Oregon.
160
In Oregon, this includes Warms Springs, Umatilla, and Burns Paiute Reservations.
77
a. When Does the TVPA Apply?
The TVPA’s child trafficking statute, 18 U.S.C. §1591, is the only of the
TVPA’s provisions that clearly applies in Indian country, because it is the only
portion of the TVPA to grant federal jurisdiction where the accused violates the law
“knowingly, in or affecting interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States.” 161 Such language
implicates federal jurisdiction to prosecute for this crime as a federal crime of
general applicability, and under the GCA.
The GCA provides that “the general laws of the United States as to the
punishment of crimes committed in any place within the sole and exclusive
jurisdiction of the United States… extend to the Indian country.” 162 The “general
laws” referred to in the GCA are those known as “federal enclave laws,” 163 which
are statutes that criminalize certain acts occurring on lands solely “within the
Special Maritime and Territorial jurisdiction of the United States”—the same
authorizing language found in § 1591. 164 However, § 1591’s application to crimes
in Indian country through the GCA has substantial restrictions. The GCA prohibits
its own application where: (1) the crime involves only Indians; (2) the Indian
offender was already punished by the tribe; or (3) a treaty exists, stipulating
exclusive jurisdiction over such offenses to the tribe. 165 In addition to its statutory
limitations, the courts also hold that the GCA does not apply to crimes occurring
on reservations that involve only non-Indians. 166 This means that although § 1591
applies to all of Indian country falling under federal jurisdiction (i.e., subject to the
GCA), 167 any application through the GCA will limit federal prosecution to crimes
involving both Indian and non-Indian parties where the offender (if Native) was not
already “punished” by the tribe. 168
161
TVPA, 18 U.S.C. § 1591(a)(1).
General Crimes Act, 18 U.S.C. § 1152.
163
18 U.S.C. § 7; See United States v. Strong, 778 F.2d 1393, 1396 (9th Cir.1985) (“law[s] in which
the situs of the offense is an element of the crime”).
164
Federal enclave laws (“within the special maritime and territorial jurisdiction”) (18 U.S.C. § 7)
apply to Indian country through the GCA (18 U.S.C. § 1152).
165
General Crimes Act, 18 U.S.C. § 1152.
166
United States v. McBratney, 104 U.S. 621 (1882) (holding that state law applies instead).
167
In Oregon, this means Warm Springs, Umatilla, and Burns Paiute.
168
See 18 U.S.C. § 1152 (It’s worth noting here that the GCA’s limitation on treaties is irrelevant
because no such treaty stipulations currently exist anywhere.); See McBratney, 104 U.S. 621.
162
78
Alternatively, § 1591 can also be applied to prosecute any offender on any
reservation as a federal crime of general applicability. 169 Much broader than the
GCA, “federal crimes of general applicability” cover certain acts that are
criminalized by Congress independent of the jurisdiction in which they are
committed. This means that federal crimes of general applicability apply
regardless of whether the crime was committed on PL 280 lands, non-PL 280
lands, or elsewhere. 170 Instead, jurisdiction is based on independent grounds by
which Congress may exercise its power (i.e., regulating interstate commerce as in
§ 1591).
The Supreme Court has yet to review the question of whether these laws
can be applied to crimes involving only Indians in Indian country, but almost half of
the federal circuits have. Most Circuit Courts reviewing this question have issued
holdings consistent with that of the Ninth, 171 which held in United States v.
Young 172 that “federal courts continue to retain jurisdiction over violations of
federal laws of general, non-territorial applicability,” even where the crime is one
between Natives on a reservation. 173 However, even though § 1591 is the only
part of the TVPA expressly creating a commerce hook that qualifies it as a federal
crime of general applicability, federal courts might nonetheless imply such a
jurisdictional basis in other provisions of the TVPA.
169
18 U.S.C. § 1591(a)(1) (crimes committed “knowingly, in or affecting interstate or foreign
commerce…”).
170
Meaning that such laws will apply on all reservations.
171
United States v. Blue, 722 F.2d 383 (8th Cir. 1983); United States v. Smith, 562 F.2d 453 (7th
Cir. 1977); United States v. Yannott, 42 F.3d 999 (6th Cir. 1994); contra United States v.
Markiewicz, 978 F.2d 786, 800 (2d Cir. 1992), cert. denied, sub nom., Beglen v. United States, 113
S. Ct. 1065 (1993) (The Second Circuit chose an alternative approach, holding that “federal
jurisdiction does not exist over Indian-against-Indian crimes that congress fails to enumerate,
except where such offenses constitute ‘peculiarly Federal’ crimes, and the prosecution of such
offenses would protect an independent federal interest.” However, the court found jurisdiction on
other grounds, obviating the need to ascertain on what grounds such “federal interest” is
implicated.).
172
United States v. Young, 936 F.2d 1050, 1055 (9th Cir. 1991) (offenses charged created
jurisdictional hooks on grounds independent of the offender’s identity or the location of the offense:
assaulting a federal officer (18 U.S.C. § 111), jurisdiction implicated by status of victim as federal
officer; possession of a firearm by a felon (18 U.S.C. § 922(g)), jurisdiction implicated by weapon’s
interstate transport; use of a firearm in a crime of violence (18 U.S.C. § 924(c)), jurisdiction
implicated by conviction of other federal offense).
173
Young, 936 F.2d at 1055; see also United States v. Begay, 42 F.3d 486 (9th Cir. 1994)
(expressly rejecting Markiewicz); United States v. Top Sky, 547 F.2d 483, 484 (9th Cir.1976);
United States v. Burns, 529 F.2d 114, 117 (9th Cir.1976); Walks On Top v. United States, 372 F.2d
422, 425 (9th Cir.), cert. denied, 389 U.S. 879 (1967).
79
b. When the TVPA Doesn’t Apply
Where the TVPA cannot be directly applied to human trafficking in Indian
country, the federal government may still exercise jurisdiction to prosecute such
crimes where other provisions of the GCA or MCA apply. 174
In cases where the TVPA cannot be applied to crimes of human trafficking
in Indian country, it is possible that the GCA might authorize federal prosecutors to
instead apply Oregon’s human trafficking statutes through one of the “federal
enclave laws” (discussed in the preceding subsection) known as the Assimilative
Crimes Act (“ACA”). 175 The ACA allows federal prosecutors to charge offenders for
violating state law where no equivalent federal crime exists under which to
prosecute. 176 However, it is somewhat unclear whether the ACA could apply in
Indian country where the TVPA cannot.
In the most analogous case to this point, Williams v. United States, the
Supreme Court denied extending the ACA in Indian country where an existing
federal statute mirrored state law, albeit less restrictively. 177 While a federal court
may find Williams to govern where the TVPA does not apply due to jurisdictional
restrictiveness, the case might also be construed more narrowly. A narrower
interpretation could conclude that the ACA did not apply in Williams because the
federal government sought to use the ACA to apply state law for its substantive
elements. 178 In this interpretation, the ACA might still be used to apply state
human trafficking law where the TVPA’s procedural elements (i.e., jurisdiction) are
lacking. Such narrow interpretation is unlikely though, given that thus far the ACA
has been interpreted to apply only where no parallel federal laws exist.
Even if federal jurisdiction cannot be obtained by any of the means
discussed above, it still might be obtained through the MCA. Like the GCA, the
174
Again, in Oregon this encompasses Warm Springs, Umatilla, and Burns Paiute.
18 U.S.C. § 13 (originally enacted in 1825). However, use of the ACA through the GCA would
also mean that all of the GCA restrictions still apply. See 18 U.S.C. 1152; supra Part IV.E.1.a.
176
18 U.S.C. § 13(a) (enables federal authorities to prosecute using state law in federal court).
177
In Williams v. U.S., a white man had sexual contact with a 16-17 year old Indian girl on
Colorado River Indian Reservation. Unable to prosecute for statutory rape under federal law
(limited to minors under 16), federal prosecutors attempted to substitute Arizona’s statutory rape
law (applying to minors under 18). The Court held that Arizona law was not applicable, because
“the offense known to Arizona as that of ‘statutory rape’ has been defined and prohibited by the
Federal Criminal Code, and is not redefined and enlarged by application to it of the [ACA]." 327
U.S. 711, 717 (1946); see also Lewis v. U.S., 523 U.S. 155 (1998) (for a similar example on a
military base).
178
See id. (accompanying text within the footnote).
175
80
MCA only pertains to non-PL 280 reservations in Oregon. 179 The MCA is also
broader than the GCA in two ways, because the MCA applies even if: (1) the crime
involves only Indians; and/or (2) the tribe also chooses to punish the Native
offender (instead, federal and tribal jurisdictions run concurrently). 180 However, the
MCA is not without major limitations. Specifically, the MCA can only be applied to
Native offenders who commit any of the following enumerated crimes:
murder, manslaughter, kidnapping, maiming, a felony under chapter
109A [(sexual abuse)], incest, a felony assault under section 113, an
assault against an individual who has not attained the age of 16
years, felony child abuse or neglect, arson, burglary, robbery, [or] a
felony under section 661 [(dealing with maritime jurisdiction)]. 181
Thus, any attempt to implicate federal jurisdiction over human trafficking
through the MCA is limited to Native offenders who can instead be charged for
related MCA crimes, like “kidnapping…felony…[sexual abuse]…incest…[or] felony
child abuse or neglect….” 182
2. State Jurisdiction
There are also a few situations in which the state can apply Oregon’s
human trafficking laws (discussed in detail in Part IV.A above) to prosecute
trafficking crimes committed in Indian country.
State Jurisdiction Chart:
DEFENDANT/
VICTIM
NON-PL 280
PL 280
Indian/Indian
None.
Indian/
Non-Indian
None.
Shares concurrent jurisdiction with tribe
over all crimes.
Shares concurrent jurisdiction with tribe
over all crimes.
179
However, remember that in addition to the MCA’s and GCA’s application to non-PL 280 (like
Warm Springs) and retroceded (non-)PL 280 (like Burns Paiute and Umatilla) jurisdictions in
Oregon, Indian country in other states falling under 25 U.S.C. § 1321 (as “optional” PL 280) or 18
U.S.C. 1162(d) (subject to the new TLOA provisions) can also be subject to federal jurisdiction
under the GCA and MCA. See supra notes 158-59 and accompanying text; infra Appendix D, at
Part II.B (for further detail on “optional” vs. “mandatory” PL 280 states and the TLOA).
180
The GCA does not apply where the crime is one between Indians in Indian country, or where an
offender was already punished by the laws of the tribe. 18 U.S.C. § 1152; see supra Part IV.E.1.a.
181
covers sixteen).
182
18 U.S.C. § 1153(a).
81
Non-Indian/
Indian
Non-Indian/
Non-Indian
None.
Jurisdiction over all crimes.
As a general rule with regard to crimes involving only non-Indians, states
maintain sole jurisdiction over such crimes when they occur anywhere in the state,
even in Indian country. 183 Thus, state human trafficking laws will always apply in
Indian country when only non-Indians are involved.
However, if a crime is committed in Indian country and an Indian is
involved, state law only applies if the reservation is under PL 280 jurisdiction. PL
280 is federal legislation that essentially vests jurisdiction in states to enforce state
laws over specific reservation lands. 184 This means that on the six PL 280
reservations in the state, 185 Oregon human trafficking laws apply in the same way
those laws are enforced elsewhere in the state. Furthermore, it is important to note
that in “mandatory” PL 280 states like Oregon, the MCA and GCA cannot be
applied to find federal jurisdiction on these lands. 186 Instead, the state simply
shares concurrent jurisdiction with the tribe if the offender is Indian (even if the
crime is one between Indians), and holds sole jurisdiction if the offender is nonIndian. 187
3. Tribal Jurisdiction
As briefly mentioned in Part IV.B, none of the tribes in Oregon have
enacted laws specifically criminalizing human trafficking at the time of this Report.
However, even absent human trafficking laws, tribes can still prosecute offenders
183
See McBratney, 104 U.S. 621 (except that federal laws of general applicability still apply here as
anywhere).
184
In 1953, PL 280 transferred criminal and civil jurisdiction of Indian trust lands from the federal
government to the states. At the time it was passed, PL 280 applied to all trust lands located in
Oregon except the Warm Springs Reservation. Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified
18 U.S.C. § 1162, 28 U.S.C. § 1360, 25 U.S.C. §§ 1321-1326); see STEPHEN DOW BECKHAM,
OREGON INDIANS VOICES FROM TWO CENTURIES 436 (2006); see JEFF ZUCKER ET AL., OREGON
INDIANS CULTURE, HISTORY & CURRENT AFFAIRS, AN ATLAS & INTRODUCTION 134 (1983).
185
In Oregon this includes: Cow Creek, Coquille, Coos/Lower Umpqua/Siuslaw, Grand Ronde,
Siletz, Klamath.
186
This is in contrast to “optional” PL 280 states, where state, federal, and tribal authorities are all
deemed to hold concurrent jurisdiction where applicable. 25 U.S.C. § 1321(a); see infra Appendix
D, at Part II.B (for further detail on jurisdiction in “optional” vs. “mandatory” PL 280 states).
187
18 U.S.C. § 1162(c); McBratney, 104 U.S. 621.
82
for similar or related crimes currently existing within their own criminal codes, such
as: kidnapping, pimping, sex abuse, or child abuse.
Tribal Jurisdiction Chart:
DEFENDANT/
VICTIM
Indian/Indian
Indian/
Non-Indian
Non-Indian/
Indian
Non-Indian/
Non-Indian
NON-PL 280
PL 280
Jurisdiction over all crimes
(concurrent when applicable).
Shares concurrent jurisdiction with
state.
Jurisdiction over all crimes
(concurrent when applicable).
Shares concurrent jurisdiction with
state.
No jurisdiction except in limited
circumstances under VAWA.
No jurisdiction except in limited
circumstances under VAWA.
No jurisdiction.
No jurisdiction.
As for the question of “when is tribal jurisdiction implicated?” Tribes
generally have jurisdiction over all Indians committing crimes in Indian country. 188
This authority runs concurrently with any applicable state and/or federal criminal
jurisdiction over the crime committed (as discussed in the previous subsections).
However, the Supreme Court has consistently upheld the notion that absent an
express grant of authority by Congress or treaty, tribes are barred from exercising
criminal jurisdiction over non-Indian offenders for crimes committed in Indian
country. 189 Until recently, this essentially meant that tribes were unequivocally
prohibited from prosecuting non-Indians.
188
Although the United States traditionally recognizes a tribe’s jurisdictional authority over its own
members (United States v. Johnson, 637 F.2d 1224, 1231 (9th Cir.1980)), the same has not
always been recognized with respect to non-member Indians or Indians of other tribes (Duro v.
Reina, 495 U.S. 676 (1990)). To plug the gap, Congress amended the Indian Civil Rights Act in
1991 to explicitly provide tribes with criminal jurisdictional authority over all Indians committing
crimes in Indian country, regardless of whether that Indian is a member of the prosecuting tribe. 25
U.S.C. § 1301 (also known as the Duro-fix); see United States v. Lara, 541 U.S. 193, 208-09
(2004) (validity upheld).
189
Oliphant v. Suquamish, 435 U.S. 191, 194-97 (1978) (In Oliphant, a non-Indian resident of Port
Madison Reservation was charged with “assaulting a tribal officer and resisting arrest” by the
Suquamish Tribe. Defendant claimed that because he was non-Indian, the tribe had no jurisdiction.
The Supreme Court agreed.).
83
However, recognizing the persistent and disproportionately high degree of
violence against Native women in Indian country, Congress recently acted to
provide a (very) small exception to the blanket rule. The 2013 reauthorization of
VAWA explained above 190 newly authorizes tribes to exercise jurisdictional
authority to prosecute non-Indian offenders for crimes of violence against any
Native American with whom the offender is in a “dating” or “domestic” relationship,
as long as the crime charged is based on the presence of the relationship. 191 It is
also required that the non-Indian offender must reside or be employed on the
reservation, or be the spouse, intimate partner, or dating partner of either a
member of the tribe or a non-member Indian who resides in the tribe’s Indian
country. 192 Tribes who wish to prosecute under this amendment must also meet
certain procedural requirements. 193 Most importantly, though, while some
instances of human trafficking may qualify for tribal prosecution under VAWA, it is
not effective in combatting the problem overall, because VAWA was neither
intended to act as a human trafficking law, nor is it effectively designed to do so.
Further, Oregon recently expanded the authority of tribal law enforcement
through passage of Senate Bill 412 (“SB 412”) in 2011. 194 The bill ensures that
190
VAWA 2013, Pub. L. No. 113-4, § 901-910, 127 Stat. 54 (2013) (effective as of 2015).
Id. at § 904.
192
Id.
193
In addition to the Indian Civil Rights Act’s general guidelines (discussed infra pp. 40-41), tribes
must also allow non-Indian defendants: an impartial jury of community members; effective
assistance of counsel (at no cost if indigent); a competent judge; and notice of right to file for writ of
habeas corpus in federal court. Id. Tribes are further expected to uphold “all other rights whose
protection is necessary under the Constitution of the United States in order for Congress to
recognize and affirm the [tribe’s] inherent power…to exercise” its jurisdiction. Id. At most, this
language implies that tribes must provide criminal defendants with all rights protected by the United
States Constitution. However, it is unclear because the issue has not yet been challenged.
194
Senate Bill 412, 2011 Or. Sess. Law (codified OR. REV. STAT. 40.275 et seq.); see State of
Oregon v. Kurtz, 233 Or.App. 573 (2010) (The impetus for SB 412 came from the Court of Appeals’
decision in Kurtz, which arose in January 2005 when a Warm Springs Tribal officer pursued a nonIndian outside of reservation boundaries for a traffic infraction committed while driving through the
reservation. Defendant failed to stop for the officer until both vehicles had crossed into Jefferson
County and then resisted the officer’s efforts to take him into custody. As a result, Defendant was
charged with attempting to elude a police officer and resisting arrest by a peace officer. After a
state trial court convicted him of both charges, the Court of Appeals reversed, holding that tribal
police do not fit either statutory definition of “police officer” or “peace officer” and therefore the
defendant could not be charged with a state crime.). Ironically, a unanimous Oregon Supreme
Court decision reversed the Court of Appeals while SB 412 was pending in State legislature. State
v. Kurtz, 350 Or. 65, 80 (2011) (concluding that “legislature has recognized that tribal police are an
integral part of the public safety system in this state and, because they are entrusted by
government with the enforcement of Oregon laws, they should be treated as police officers for
purposes training, certification, and discipline”).
191
84
certified 195 tribal officers are granted the same “peace-officer” status provided to
other Oregon law enforcement officers so long as specific conditions are met. 196
Such status allows tribal officers, in certain circumstances, to pursue and arrest
persons outside of a reservation who have committed a crime on a reservation. 197
During the first two years of its implementation, SB 412 was limited to cases
involving: investigation of crime committed in Indian country; hot pursuit of a
suspect; 198 commission of a crime in an officer’s presence; and approval of the law
enforcement agency with jurisdiction. Since July 2013, SB 412 has granted the full
scope of authority to tribal law enforcement officers, meaning they hold the same
powers, authority, and protections as any other officer in Oregon. However,
despite the expanded authority to arrest and detain, tribes nonetheless rely on the
state to prosecute non-Indians for crimes committed on reservations. If the state
declines to charge an offender, the offender must be released. 199 Furthermore, SB
412 is set to sunset on July 1, 2015.
In addition to the extreme limitations that tribes face in exercising
jurisdiction over non-Indians who commit crimes in Indian country, the Indian Civil
Rights Act (“ICRA”) 200 imposes further procedural limitations on the tribes even
when they do have authority to prosecute. Originally enacted because tribes are
not subject to the U.S. Constitution or Bill of Rights, the ICRA requires tribal courts
to observe due process and other rights analogous to those arising in criminal
prosecution under the Constitution (i.e., the First, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments). 201
195
As police officers according to OR. REV. STAT. 181.610-712.
The officer must be in compliance with all of the Department of Public Safety Standards and
Training set by the bill. Also, tribal governments must “comply with insurance requirements, adopt
policies regarding discovery in criminal cases in conformity with state law and neighboring
jurisdictions, and codify the following in tribal law: (1) waiver of sovereign immunity from tort
liability; (2) provisions governing records retention, public access to records, and preservation of
biological evidence; and (3) a deadly force plan.” Staff Measure Summary, House Committee on
Rules, Measure SB 412 C (June 27, 2011).
197
The United States Supreme Court has already affirmed the authority of tribal police to stop and
detain non-Indian offenders who violate state law on Indian land. See Strate v. A-1 Contractors,
520 U.S. 438, 456 n. 11 (1997).
198
As defined in OR. REV. STAT. 133.420.
199
See Oliphant, 435 U.S. 194-97 (holding that tribes lack criminal jurisdiction to prosecute nonIndians).
200
Indian Civil Rights Act, Pub. L. No. 90-284, 82 Stat. 77 (1968) (codified at 25 U.S.C. § 1301 et
seq.).
201
25 U.S.C. § 1302; see W ILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 29, 137
(2004).
196
85
Furthermore, the ICRA generally prohibits tribal courts from imposing
sentences greater than “a term of one year and a fine of $5,000, or both.”202 The
ICRA was recently further amended to expand the one year/$5,000 sentencing
limit and permit tribes to impose sentences of up to three years imprisonment (or
nine, if multiple convictions) and fines of up to $15,000. 203 However, the expansion
applies only where tribes meet certain specific requirements, 204 and CTUIR is the
only reservation in Oregon to qualify thus far. 205 All others are still restricted to the
one-year/$5,000 maximum. Therefore, regardless of which ICRA sentencing limits
are applied, tribes are nonetheless left unable to adequately address the most
serious crimes occurring in Indian country, such as human trafficking. Instead,
where such serious crimes are implicated, tribes must rely on state or federal
officials to act, depending on what crime(s) can be charged, who is involved, and
whether or not the reservation is PL 280 status.
V. FINDINGS AND CONCLUSIONS
This Part of the Report contains the findings of our research through a
synthesis of the interviews and survey conducted. 206 The findings are composed
of general observations and conclusions regarding the nature, causes, effects,
barriers, and potential solutions to human trafficking in Oregon’s Native
communities. In order to encourage thorough and candid cooperation on the part
of participants, we have elected to represent their responses primarily in the form
of consensus statements, although we offer some specific examples for
illustration. To further provide an accurate description of the full range of
responses, these findings also highlight major divergences in interviewees’
responses. In general, the findings seek to portray interviewees’ overall general
202
25 U.S.C. §1302(a)(7)(B).
Tribes may sentence up to three years imprisonment and/or $15,000, if: (1) the defendant was
previously convicted of the same or similar crime; or (2) the offense would be punishable for more
than one year in a U.S. or state court. 25 U.S.C. §1302(b). Collectively, sentences may add up to a
maximum of nine years imprisonment where multiple convictions apply. 25 U.S.C. §1302(a)(7)(D).
This ICRA amendment was made through passage of the Tribal Law and Order Act of 2010, Pub.
L. No. 111-211, 124 Stat. 2261.
204
To meet the requirements, tribes must provide: (1) indigent defendants with competent no-cost
representation on par with that “guaranteed by the United States Constitution”; (2) judges licensed
to practice law in the United States who have sufficient knowledge of criminal proceedings; (3)
public notice of criminal laws, procedure, and rules of evidence; and (4) record of criminal
proceedings. 25 U.S.C. § 1302(c).
205
Interview with Tom Woolworth, Special Agent in Charge, BIA Office of Justice Services,
Portland, in Portland, Or. (March 14, 2013) (on file at the Clinic).
206
Copies of all interviews and survey responses remain on file with the Clinic; See Appendix B (to
view copies of survey and interview questions).
203
86
observations of human trafficking, reactions to certain initiatives enacted to combat
the problem, knowledge of barriers to effective resolution, and recommendations
for addressing issues related to trafficking.
Based on the findings as a whole, we concluded that government officials
(local, state, and federal) within Oregon do not meet obligations under state,
federal, and international law to prevent trafficking among the Native American
community, prosecute offenders where Native Americans are victims, and provide
adequate services to protect Native survivors and others vulnerable to trafficking.
The details of these findings are organized in the subsections that follow.
1. Lack Of Focus On Native Americans
One of the problems in understanding the level of trafficking involving
Native Americans appears to be that neither law enforcement nor human services
organizations keep track of the percentage of Native Americans known or
suspected to be involved in human trafficking, even though information is kept on
other races and ethnicities. It is unclear why statistics are not kept on Native
American survivors. Although this question arose in several interviews, the only
potential reason given for this record-keeping downfall is that the Native population
is relatively small compared to other identifiable demographic groups. 207
Additionally, no government agency is organized to address or investigate
the problem of human trafficking with specific focus on the Native population. 208
Several interviewees pointed out that state and federal efforts are primarily
focused on combating urban and international trafficking, and that Native victims,
particularly those on reservations, could not be further from the main focus of
attention. 209
The Oregon Department of Justice recently conducted an 18-month Tribal
Nations Listening Tour to help facilitate intergovernmental communication and
address tribes’ needs. The specific goals of the Tour were to foster and continue
government-to-government collaboration between Tribal Nations, Crime Victims’
207
Interviewees referenced represent both service providers and law enforcement.
Keith Bickford, Director of the Oregon Human Trafficking Task Force, reported that he began
recent efforts to look into human trafficking as it involves Natives in the state about three months
before the Clinic contacted him, but had thus far been unable to gather much specific information.
Phone interview with Keith Bickford, Director, Oregon Human Trafficking Task Force (Sept. 13,
2012) (on file with the Clinic).
209
Interviewees referred to include service providers.
208
87
Services Division grant funded programs, and community partners, with the
ultimate goal of enhancing services to all survivors of domestic and sexual
violence throughout the state. 210 Over the course of conducting interviews for the
Report, one tribal service provider reported that county district attorney’s offices in
Oregon are required to organize Sexual Assault Response Teams to meet and
develop procedures for dealing with sexual violence, but that the interviewee’s
tribe had been excluded from the process despite expressing an interest in
involvement. 211 Interestingly, several tribes voiced similar complaints during the
Listening Tour, and as a result the Oregon Department of Justice is taking action
to increase collaboration in this respect. 212 However, interviewees reported that
the topic of trafficking or prosecution was never raised once during the Listening
Tour.
Although there are no social service or legal programs tasked with assisting
Native victims of trafficking, interviewees did identify some generalized efforts that
could benefit some. In addition to general benefits derived as a result of the
Listening Tour, there have recently been improved efforts to combat trafficking
through expansion of the U.S. Attorney General’s Task Force and reorganization
of the Oregon State Department of Justice’s trafficking units. One interviewee
explained that this means a change of focus from prosecution, which can revictimize those who come forward, to understanding, which explores the context of
each case separately. 213 This approach is designed to better serve the needs of
each individual victim and build trust between victims and law enforcement.
Additionally, the FBI and other programs in the state provide ongoing support for
victims through the use of victim specialists available to offer assistance in the
criminal justice process by: supporting victims during the prosecution of their
traffickers; ensuring that victims’ rights are protected; and assisting victims with
access to available social and health services as needed. 214
210
OREGON DEPARTMENT OF JUSTICE CRIME VICTIMS’ SERVICES DIVISION TRIBAL NATION LISTENING
TOUR 1 (May 2013) [hereinafter LISTENING TOUR], available at
http://www.doj.state.or.us/victims/pdf/oregon_tribal_nation_listening_tour.pdf.
211
Interviewee referred to is a tribal service provider and long-time victim advocate.
212
LISTENING TOUR, supra note 210, at 5 & 7.
213
Interviewee referenced works in the justice system.
214
This information was provided in a law enforcement interview.
88
2. Specific Knowledge
Americans
of
Human
Trafficking
Involving
Native
Of the groups interviewed, service providers who focus their work within
Native communities or serve a significant number of persons who identify as
Native American appeared to have the most direct knowledge of human trafficking
amongst Native Americans in Oregon. These individuals were often able to identify
and recall specific instances of its occurrence. On the other hand, service
providers who assist a proportionately low number of Native Americans possessed
much more limited knowledge of the issue. This limited knowledge was generally
shared by law enforcement.
Many interviewees reported the concern that law enforcement, in particular,
remains largely unaware of human trafficking due to underreporting and
misidentification of trafficking victims. 215 As one interviewee noted:
Officers may not recognize trafficking victims because they do not
know what trafficking looks like and because it is not talked about
within Native communities.
One tribal service provider further described the problem as “a revolving
door.” When law enforcement becomes involved victims are reluctant to confide in
police for a variety of reasons yet to be discussed, and the underlying problem of
sexual exploitation often goes unrealized. As a result, victims are often punished
for prostitution or other crimes correlating with exploitation, such as use or
possession of illicit substances. They are then released back into the hands of
traffickers after serving the punishment for these charges, and the underlying
trafficking element continues to go undetected. Typically, these victims are
arrested repeatedly, and law enforcement continues to perceive substance
abusers and prostitutes rather than trafficking victims. Others echoed a similar
sentiment, stating the concern that:
When officers make arrests, they may not recognize the underlying
problem when trafficking exists, instead only seeing a prostitute or
drug addict. 216
215
Interviewees referred to here span all groups (survivor, service provider, and law enforcement)
and included both tribal and non-tribal representatives.
216
Interviewees reflecting this sentiment included primarily service providers and a small number of
law enforcement officers.
89
It is important to note that a portion of persons interviewed claimed to have
no knowledge of human trafficking in general, let alone the concerns specific to
Native communities. However, many of those who initially claimed a lack of
knowledge later went on to list instances where elements of trafficking did in fact
exist (per our definition of human trafficking), 217 though these elements were never
formally identified as such at the time they occurred.
Furthermore, it is also important to note that while several interviewees did
have extensive direct knowledge of human trafficking involving Oregon Natives
that led them to believe it was particularly serious issue in their communities, two
interviewees made a point to say they did not believe the problem to be worse
among Natives (although, as discussed herein, nearly all agreed that Natives were
vulnerable to trafficking and lack protection in unique ways). 218
3. Trafficking Demographics
a. Who is being trafficked?
While the scope of research for this Report was intended to identify any and
all forms of human trafficking involving Natives in Oregon, all interviewees who
had personal or peripheral knowledge concerning the issue identified the problem
as primarily one of sex trafficking. Furthermore, interviewees from all groups who
had knowledge of human trafficking identified that:
Victims and persons most vulnerable to human trafficking are teen
girls and young women (approximately ages 14-24) who have spent
time in foster care and been previously sexually abused.
Reports of other persons vulnerable to sex trafficking were more varied, but
we did receive some reports of sex trafficking involving women both younger and
older than the general range, as well as a few reports involving instances of young
men being trafficked by older women. The Clinic also received one report of
potential labor trafficking involving Natives, however this report was unable to be
217
See supra Part I.B (explaining the definition used for the purposes of this report).
As an aside, interviewees representing tribes in rural parts of the state also voiced serious and
specific concerns for both labor and sex trafficking of non-Native migrant laborers in areas nearby
reservation lands.
218
90
confirmed. 219 Reports of child trafficking were also rare, but tribal service providers
did recount a handful of these cases as having family involvement.
Interviewees recounted a few similar situations in which children had
been prostituted or traded for drugs or even basic material goods. 220
Characteristics that clearly identify where human trafficking occurs and who
the traffickers are were much less consistent among interviewees, and appear to
be somewhat dependent on varying factors in different parts of the state. However,
despite these differences, there were also some consistent themes.
b. Where does trafficking occur?
Interviewees with knowledge of human trafficking in metropolitan areas
such as Multnomah County indicated that traffickers most often pick up young
women on public transit (TriMet), at shopping malls (such as Lloyd Center), and
online. In addition, there were reports of recruiting taking place at shelters. These
reports indicated that a trafficker would work with a woman (or girl) to get her into
the shelter so that she could recruit more girls for the trafficker. Other
interviewees reported accounts of trafficking recruitment through stripping and
modeling work, and even through attendance at a community college in Baker
City, Oregon.
Interviewees working on or in close proximity to reservations most often
reported instances of prostitution and human trafficking as occurring at locations
near (but not on) the reservation, such as highway truck stops or neighboring
towns. For example, some interviewees mentioned previous occurrences of
prostitution and potential trafficking from a tent set up near a highway truck stop
just north of Klamath Falls. Furthermore, interviewees report that there is a
significant amount of trafficking and prostitution of Native, Hispanic, and White
women in Madras (just outside of Warm Springs), where pimps pick up young
women to take back to Portland.
Although concern was occasionally voiced over the possibility of human
trafficking through casinos on reservation lands, the majority of interviewees did
219
Keith Bickford, Director of the Oregon Human Trafficking Trask Force, also report hearing of
potential labor trafficking at fisheries on the coast, but we were unable to confirm this statement.
Phone interview with Keith Bickford, Director, Oregon Human Trafficking Task Force (Sept. 13,
2012) (on file with the Clinic).
220
Interviewees referenced included a few tribal law enforcement officers and tribal service
providers.
91
not report it as a major problem. Interviewees of only one reservation knew of
prostitution and trafficking in hotels and parking lots near their casino, and
interviewees of another reservation were aware of prostitution occurring in areas
near their casino but had no knowledge of human trafficking.
c. Who recruits for trafficking and how?
Beyond the question of where human trafficking is occurring, there are also
several patterns evidenced in terms of who recruits women for trafficking and how
such trafficking occurs.
Traffickers were most frequently identified as non-Native “intimate
partners”, or men with whom young women are engaged in a sexual
relationship, who initially gain the victim’s trust and dependence by
providing emotional and economic security, only to pimp them out to
friends and other acquaintances.
In many cases, trafficking victims reported being brutalized or raped by
multiple men who had been permitted to do so by the intimate partner. 221 Certain
service providers reported encountering a handful of such cases involving Native
women every year. One particular interviewee recalled two similar cases in the
recent past; one occurred only two days prior to the interview where the victim
confided that her “baby’s daddy allowed many men to beat and rape her” in
exchange for money. Service provider interviewees further reported that:
Other dynamics present in these types of relationships, such as
manipulation, drug or alcohol addiction, or basic needs such as
housing, often perpetuate victims’ feelings of dependence or a
perceived inability to leave their traffickers.
Although this type of human trafficking was most prevalently discussed as a
problem in the state’s most densely populated areas, all interviewees with a
knowledge of human trafficking reported the existence of this kind of trafficking in
their respective geographic locations, demonstrating that it should be a relevant
concern in all parts of the state.
221
Part of what masks human trafficking is that the third party is often a friend or even intimate
partner and often involves a degree of manipulation, so the victim does not identify as having been
prostituted or trafficked. Any third party benefit from sexual exploitation either from an intimate
partner or a traditional ‘pimp’ falls under the umbrella of human trafficking according to the ICCPR.
ICCPR, supra note 4, at art. 3(a) (and accompanying note text).
92
In other cases, interviewees reported knowledge of victims being held
captive against their will or subjected to gorilla pimping in order to coerce women
into submission for prostitution. 222
Sometimes traffickers will drug, hold hostage, and rape women when
bringing them into human trafficking. Traffickers may also hold prized
possessions, threaten victims, family members, or loved ones, and
may use other dehumanizing tactics to elicit sex or other desired
activities.
For example, a few months prior to interviewing, one service provider had
encountered a Native woman who told them that she had been held hostage,
drugged, and repeatedly raped. The woman said that she also knew three other
women who had experienced the same thing. In a few cases, interviewees have
also heard of and encountered Native women whose hair has been cut short or
shaved off by traffickers in order to break their spirits into submission for the
purposes of sex trafficking.
Although not widely reported as a primary concern, a number of
interviewees specifically discussed gang activity as a related problem. These
reports of gang-related trafficking could generally be divided under the above two
categories: intimate partner or gorilla pimping. However, some interviewees were
careful to distinguish “intimate partner” trafficking from a similar kind of gang
trafficking, in that the latter more frequently involved a need or desire on the part of
the victim to belong to a group or experience a family dynamic. “Intimate partner”
trafficking, on the other hand, was more likely linked to basic needs of the victim
such as shelter, money, or love.
Little information was gathered regarding gang-related human trafficking off
reservations. However, interviewees reporting gang-related human trafficking on
reservations (primarily Klamath, but also possibly Warm Springs) identified gang
members as primarily Hispanic men, some Native men, and other locals.
Customers of these gang-related traffickers were typically identified as truckers
traveling nearby highways, other gang members, and men from the community or
neighboring towns.
222
Gorilla pimping is a method of abuse in which the abuser maintains control through physical
violence or threats of violence.
93
As previously noted, although accounts of child trafficking through family
involvement in human trafficking were rare:
Interviewees tended to correlate family involvement with problems in
the home such as poverty, drug dependency, domestic violence, and
normalization of sex abuse.
For example, one interviewee had recently investigated an allegation of sex
trafficking at CTUIR where a mother was accused of prostituting herself and her
children for drugs. Some interviewees further suggested that family involvement in
human trafficking is a learned behavior passed to the tribes by socialization with
outsiders. It was also identified as a form of lateral oppression resulting from
generational trauma. 223
4. Foster Care as a Correlating Factor in Human Trafficking224
As stated in the preceding finding, some service providers identified that
virtually every victim of sex trafficking they knew of had been in the foster care
system and most had been sexually abused as children. Service providers further
indicated that a general lack of security and emotional support for children in foster
care contributed to their increased vulnerability, especially for teens being aged
out of the system.
Girls in their mid to late teens, who are being aged out of foster care, are at
increased risk for trafficking because they may be vulnerable to emotional
manipulation and often lack basic life skills that will be necessary to support
themselves.
These at-risk youth can fall prey to human trafficking at the hands of an
intimate partner or pimp for fear of otherwise facing life on the streets with no
economic or emotional support system. Service providers voiced experiencing
extraordinary difficulty in reaching youth in these high-risk situations because as
they become semi-independent in their mid-late teens, they can easily avoid
authority and outsiders’ attempts to help.
The vulnerability of teens in foster care is particularly relevant to Native
American children because they are significantly overrepresented. The high
223
See infra V.5 (Finding 5).
All interviewees referred to in this subsection include service providers; only service providers
were specifically asked about the role of ICWA and foster care.
224
94
number of Native American children placed in the care of non-Native foster
families has been a significant ongoing problem, especially before 1978. In 1978,
Congress passed the Indian Child Welfare Act in response to the “alarmingly high
percentage” of Indian children taken from their homes and “placed in non-Indian
foster and adoptive homes and institutions” by non-Indian child welfare workers. 225
ICWA requires that: (1) tribes be notified and given an opportunity to intervene
when the state places a child subject to ICWA in foster care or seeks to terminate
parental rights on behalf of such a child; and (2) children be placed, if possible,
with relatives or tribal families. A more in-depth description of ICWA can be found
in Appendix C.
Several interviewees who work with foster children felt that the
overrepresentation of Native children in foster care is in part due to the
disproportionately high rate of poverty among Natives in the state, particularly on
reservations. While neglect, substance abuse, and sex abuse were among the
most commonly named legitimate reasons for removing children from their
homes, 226 service providers reported that extreme poverty among Native families,
particularly those living on reservations, are also often misidentified as neglect or
abuse. 227
Despite the disproportionately high number of Native children in foster care,
interviewees’ feelings toward ICWA seemed generally positive. Interviewees had
specific appreciation for ICWA’s efforts to keep Native children within Native
communities as a remedy for previously oppressive policies, such as placement in
boarding schools and adoption to white families, that breakdown generational
transmission of tribal cultures.
However, interviewees also made clear that ICWA is not without
drawbacks, listing difficulties with implementation, such as:
•
•
Underfunding or misappropriation of funding by counties;
A lack of understanding of ICWA provisions by both families and the
State;
225
25 U.S.C. § 1901.
Primary reasons for removal from the home varied slightly depending on the tribe and child
welfare system interviewed—some reporting sex abuse as less common a reason for removal as
neglect or substance abuse, and others reporting that up to half of child welfare cases involving sex
abuse.
227
Although the ‘Report’ in this section focuses on Native children, this is not to say that non-Native
families may not, in some circumstances, suffer the same problem.
226
95
•
•
•
Cultural disconnect between tribal communities and the State;
Excessive red tape; and
Misidentification of children as other races.
Beyond the issues directly associated with effective implementation and the
law itself, adhering to ICWA can present problems in practice as well. Several
interviewees addressed the issue that:
ICWA’s aim to keep Native foster care children as closely connected
with their tribes as possible (often by keeping them on the
reservation) can often result in harassment of caregivers who reside
in small communities.
Interviewees explained that because reservation environments are typically
small and relatively geographically isolated, they are often close knit communities
where families know each other well. Therefore, when children are placed with
another family in the same small community, parents, other family members, or
even other community members may retaliate against the placement family.
Placement of Native children on their reservation also allows for greater
accessibility to families who may attempt to retrieve their children from the new
home or may otherwise make the placement difficult for everyone involved.
Some tribes are beginning to implement their own progressive child welfare
programs. Not subject to ICWA, the tribes can cater these programs to more
adequately address the specific needs of their own individual communities. Most
importantly, these programs lend tribes the freedom to decide when to remove and
where to place their own children. Interviewees from reservations that employ
such programs suggested that their programs aim to keep families together, work
more closely with parents to develop parenting skills, and elicit participation of
other family or community members for a more community based approach. For
example:
CTUIR works more diligently now to make sure all child welfare
cases are quickly investigated because in the past some families felt
they were treated unfairly. CTUIR has moved to a “best practices”
model and away from a punitive one, only removing a child where
there is “no possibility for safety” within the home.
96
Another specific example of this can be seen in Grande Ronde’s Child &
Family Services model, which determines its own placement preferences and
involves intensive review by the Tribe’s court:
Child & Family Services focuses on prevention rather than
placement, and looks for whatever living situation will be in the best
interest of the child whenever placement is necessary, regardless of
ICWA placement requirements. The tribal court also plays an
important role in thoroughly reviewing details of each case and
maintaining close ties to the community.
5. Cyclical Nature of Generational Trauma and Lateral Oppression as
Contributing Factors 228
Recurring themes of generational trauma, as well as internalized and lateral
oppression amongst Natives, play multiple roles in human trafficking. Generally,
interviewees identified the overall effects of the cycle of oppression as a major
contributing cause of many of the societal issues within Native communities,
particularly on reservations. These included:
•
•
•
•
High levels of alcohol and substance abuse;
Poverty;
Early sexualization; and
Normalization of abuse or violence within the family or community.
The long history of oppression that Natives have suffered as a result of the
policies and practices of colonizers has become a source of deep internal strife for
many. 229 Internalized oppression leads those affected to feel disempowerment or
a low sense of self-worth in connection to their identity as Native. In many
situations, this can also lead to other social problems such as substance abuse,
domestic abuse, and vulnerability to victimization. Internalized oppression often
results in generational trauma, a cycle in which internalized oppression (and all of
its related problems) is perpetually passed on to future generations of young
people who inherit the cycle of oppression from their families and their
surroundings. Past federal policies of Assimilation, Termination, and Relocation
have also had socio-economic consequences such as disparate poverty amongst
228
All interviewees referred to in this subsection include service providers; only service providers
were specifically asked about the role of generational trauma.
229
See generally, DURAN, supra note 10.
97
Natives, especially where such policies have left tribes with a lack of resources
and economic opportunities on reservations. 230 This has in turn led to lateral
oppression in some circumstances, which was concisely illustrated through one
interviewee’s sentiment in stating: “[J]ust as they have been oppressed, they
oppress each other.” 231 Lateral oppression, which often manifests where
opportunity is scarce and abuse is normalized, can also act as a barrier to change
by pitting community members against one another for competition and causing
others to turn a blind eye to abuse.
GENERAT,ONAL
TRAUMA
LATERAL
OPPRESSION
INTERNALIZED
OPPRESSION
Several interviewees addressed the cyclical nature of these problems
specifically in relation to the unfortunate criminalization of victims as prostitutes for
whom abuse has been normalized to the point that they do not understand they
have been exploited. These interviewees pointed out that:
If you are being sexually exploited from a young age, sometimes it is
all you really know; the moment these girls turn 18, they go from
being seen as sexually exploited children to prostitutes. The only real
difference is in the eyes of the law because the girls themselves
never saw it as a choice.
230
For detailed examination of these policies, the reader might find the following sources helpful: A.
CURRY-STEVENS ET AL., THE NATIVE AMERICAN COMMUNITY IN MULTNOMAH COUNTY: AN UNSETTLING
PROFILE (2011); JEFF ZUCKER ET AL., OREGON INDIANS CULTURE, HISTORY & CURRENT AFFAIRS, AN
ATLAS & (1983); STEPHEN DOW BECKHAM, THE INDIANS OF W ESTERN OREGON, THIS LAND W AS THEIRS
(1977); STEPHEN DOW BECKHAM, OREGON INDIANS VOICES FROM TWO CENTURIES (2006).
231
Interview with Marvin Garcia, Director of Social Services, Klamath Tribes, in Chiloquin, Or. (Feb.
15, 2013) (on file with the Clinic).
98
Furthermore, the effects of internalized and lateral oppression are often
underlying and contributing causes when Native children are taken into foster
care. Internal oppression commonly manifests in the form of parental
psychological or substance abuse issues, the result of which can be lateral
oppression towards children in the form of neglect or abuse. Some service
providers pointed out that the normalization of abuse among children in these
situations, combined with other vulnerabilities discussed with reference to children
in foster care above, leave children in these situations highly vulnerable to
recruitment for human trafficking. These life experiences perpetuate generational
trauma in the lives of affected children, leading to internalized oppression and
increased vulnerability to human trafficking at the hands of an intimate partner or
pimp, as many are easily manipulated or desperate for stability in their teens.
Many young women in these situations become pregnant and, not knowing how to
care for the child or themselves, the cycle continues. 232
6. Underreporting and its Causes
The problem of underreporting is a significant barrier to successfully
fulfilling the obligations under the Three Ps of human trafficking. Interviewees’
responses with regard to the reasons for underreporting amongst Native
Americans reflected a variety of reasons for underreporting that are common to
the general population, but also reflected some issues unique to Natives,
particularly those on reservations.
When speaking about underreporting on reservations, interviewees who
worked in or closely with Native communities indicated that human trafficking and
related issues are seldom discussed openly among tribal members. These
interviewees frequently mentioned that:
Due to the unique nature of reservations as typically small, tight-knit,
and isolated communities, speaking out is likely to cause the victim
shame or embarrassment, and might result in shunning or retaliation
by the offender, the offender’s family, or other community members.
Interviewees who frequently interact with victims living on reservations
commented further that sometimes victims on reservations fail to report trafficking
crimes committed against them because they feel that they have nowhere else to
232
Interview with representatives of Native American Youth and Family Center, in Portland, Or.
(Nov. 10, 2012) (on file with the Clinic).
99
go. This is because reservations are geographically small, and leaving would
mean leaving family, culture, and everything they have ever known, behind.
Social structure or politics can also play a role in reporting crime on some
reservations.
Political influence chills reporting where tribal hierarchy is unwilling to
listen, turns a blind eye, or gives certain families preferential
treatment, refusing to punish or investigate certain offenders.
Several interviewees reported knowledge of incidences where a crime had
been ignored because the offender or the offender’s family held a position of
power or leadership within the tribe. 233 In relation to these issues, one interviewee
noted that another reason tribal leadership and reservation communities might turn
a blind eye to abuse is because they are “in survival mode” as a result of the illeffects of generational trauma and instinctually protect themselves from exposure
to further trauma. 234
The “survival mode” mentality extends itself further when one considers that
tribal members, particularly those living on reservations, often maintain long held
and deep-seated feelings of mistrust toward outsiders due to past discrimination
and underrepresentation under state and federal laws. Although the United States
currently aims to end oppressive practices, and tribes now live in the purported era
of self-determination, interviewees reported that negative feelings toward state and
federal entities still perpetuate and manifest most notably in a distrust of law
enforcement. 235
Many fail to report crime due to a past lack of responsiveness and
under enforcement of crime by law enforcement; many tribal
members think that law enforcement will fail to assist them now
because it is hard to forget the past.
Essentially, Natives living on reservations often fail to report crime because
they do not want to be discriminated against by law enforcement, or because they
233
Interviewees referenced include tribal service providers.
Interviewee referenced is a tribal service provider.
235
Interviewees referred to here spanned all groups (survivor, service provider, and law
enforcement) and included both tribal and non-tribal representatives.
234
100
feel the effort would be futile, which further inhibits unified efforts to address
human trafficking. 236
In addition to the distrust felt by Native communities resulting from law
enforcement’s historical lack of responsiveness, interviewees also report that
persons who have been recruited for human trafficking may also fail to report due
to a fear of punishment by law enforcement. 237
Women often fear being identified as prostitutes and prosecuted or
placed in State care (if the victim is a juvenile).
Likewise, as alluded to above, where a victim sees the trafficker as a
protector or intimate partner, this fear of retaliation may extend to a fear of
retaliation against the trafficker as well:
She may not want the trafficker to be punished due to a fear of losing
a place to live, financial or other support, or due to the belief that the
trafficker loves or cares for her. 238
Similarly, because many victims come from a history of environments
where healthy, trusting relationships with loved ones and authority figures are
absent, they are particularly vulnerable to manipulation. For example, service
provider interviewees commented that:
Where victims are manipulated to believe the trafficker truly cares
about them, it often leads to an “us versus them” mentality; victims
feel they cannot trust law enforcement or anyone else who might
compromise the relationship, and the more the relationship is
threatened, the more tightly some victims cling to the trafficker
thinking that it will provide them the safest and easiest path.
In these kinds of situations, victims may also fail to report due to the
normalization of abuse. Knowledgeable service providers commented that:
236
See infra V.7-8 (Finding 7 – 8) for more findings related to reporting crime and law enforcement
responsiveness.
237
Interviewees referenced here primarily include service providers, but also include a handful of
law enforcement.
238
Interviewees referenced include service providers.
101
For some, sexual abuse is a social norm to such an extent that many
victims do not report abuse because they do not realize that what is
happening to them is wrong.
7. Causes and Effects of Under-Enforcement
Interviewees discussed several issues connected to under-enforcement of
criminal laws on and around reservations in general. It is important to note that
many of the reasons stated for under-enforcement were particularly dependent on
whether or not the interviewee worked on or close to a reservation, and whether
the interviewee was a law enforcement agent or a service provider.
The majority of service providers working closely with Native
communities were concerned about discriminatory underenforcement as a result of slow response times, ineffective
investigation, and high rates of declination to prosecute crimes
committed in Indian country on the part of county, state, and federal
law enforcement.
Several interviewees working on or closely with reservations reported
further that Native communities’ vulnerability to human trafficking might be
perpetuated by the refusal of outside governments to acknowledge patterns of
past and present discrimination (especially with regard to local or county law
enforcement) coupled with a refusal to enforce the crimes in these communities.
For example, one service provider interviewee recalled a case in which she
attempted to assist a 14-year-old girl who had been sexually abused starting at
age 12, stating that her agency experienced great difficulty finding a law
enforcement officer to believe the allegations or to investigate the case.
To the contrary, interviewees working in county, state, and federal
law enforcement generally reported that although discrimination or
neglect in pursuing crimes in Indian country may have been
problematic in the past, these issues are largely no longer problems.
Several of these law enforcement interviewees went on to clarify that they
feel Natives’ perceptions of current law enforcement practices are “outdated” and
“dead wrong,” maintaining that actions perceived as discrimination are more often
the result of a scarcity of resources to enforce crime in rural areas in general. 239
239
Interviewees referenced work in law enforcement and the justice system.
102
Interestingly, while law enforcement interviewees generally expressed that
discrimination and under-enforcement directed at Native communities were often
misperceptions, many simultaneously felt the sentiment held by many tribal
members is justified due to the past history oppressive treatment and policies on
the part of state and federal governments. In illustrating the point, one interviewee
commented that perceived discrimination on the part of tribal members continues
because there have been many “promises made, promises broken—and rightfully
so.” 240 As a result, state and federal governments are reportedly attempting to
mend the lines of communication by creating open dialogue with tribes. 241
The aggregate divergence in responses regarding whether underenforcement is intentionally discriminatory or coincidental might indicate a general
lack of communication, cooperation, and collaboration between tribal, state, and
federal entities due to cultural differences and a history of broken promises,
discrimination, and oppression. 242 The most salient example of this lack of
communication and cooperation can be seen in interviewees’ opinions of police
response times to crime on reservations. All interviewees were aware of the
complaints and concerns regarding response to crime on reservations by law
enforcement (especially county law enforcement). However, they were somewhat
divided on the question of how much of a problem it is today.
Tribal law enforcement and service providers working closely with
reservations generally reported feeling that slow response times by law
enforcement is an issue of legitimate concern—non-Natives get better and more
prompt police response than Natives who report crime on reservations. They
explained that:
Slow response times for tribal members leads to perceived
discrimination, which in turn makes them reluctant to report crime. It
also leads offenders to believe they will not be punished for
committing crimes on reservations, resulting in higher crime rates
overall.
240
Interviewee referenced here is employed in the justice system.
Interviewees referenced work in law enforcement and the justice system.
242
For specific information on the history of broken promises, discrimination, and oppression: See
supra Part III (the Shattered Hearts excerpt provides examples within this report); see supra note
230 (for a general list of sources discussing the history of state, federal, and tribal relations).
241
103
One interviewee indicated that when Congress gave the states jurisdiction
over large swaths of reservation lands pursuant to PL 280 without any additional,
corresponding resources, sheriffs were both angered and overwhelmed by both
the additional responsibility and lack of resources. 243 Given this resentment, it is
possible that, slow response times might be intentional in some cases.
However, law enforcement interviewees reported that response times in
rural areas are all around lagging and not specific to tribal members. These
interviewees explained that response times are generally slow in sparsely
populated areas because law enforcement officers have larger areas to patrol due
to limitations in funding and resources.
Many interviewees in law enforcement reported feeling that myths
and misperceptions about law enforcement in Indian country
perpetuate feelings of discrimination and oppression amongst
Natives, making cooperation difficult, and further inhibiting the
effectiveness of law enforcement in Native communities.
The issues related to underreporting discussed in the preceding subsection
were also identified as major contributing factors in under-enforcement of human
trafficking.
County, state, and federal law enforcement pointed out that arrest
and prosecution of offenders is often made much more difficult due
to an absence of victim testimony and unwillingness to cooperate
with law enforcement.
Though retraction of witness testimony is not uncommon in sexual abuse
cases generally, interviewees did note a connection between the lack of victim
cooperation and the general lack of faith in law enforcement on reservations. As
noted in Finding 6 above, victims may be reluctant to cooperate in cases where
abuse is normalized, where victims feel that reporting would be futile, or where
victims fear: punishment by law enforcement; loss of the trafficker; or shame,
embarrassment, harassment, or retaliation within the community.
243
Interviewee referenced is a tribal member and long-time service provider. For general reference
on this issue: See SARAH DEER ET AL., TRIBAL LAW AND POLICY INST., FOCUS GROUP ON PUBLIC LAW
280 AND THE SEXUAL ASSAULT OF NATIVE W OMEN 2 (2007); see also Amanda M.K. Pacheco, Broken
Traditions: Overcoming the Jurisdictional Maze to Protect Native American Women from Sexual
Violence, 11 J.L. & SOC. CHALLENGES 1, 14 (2009).
104
8. Jurisdictional Complications and Confusions as Contributing
Factors
Jurisdictional issues are in many ways interrelated with the issues of underenforcement and underreporting discussed in the preceding findings. In general,
many interviewees agreed that jurisdictional issues cause complications with
enforcing crime on reservations due to the complexity and a lack of understanding
on the part of law enforcement officers. 244
Several interviewees said that confusion arises as to which law
enforcement entities have the responsibility to patrol certain areas
and investigate crime, as well as which laws can be enforced.
Certain interviewees stated that sometimes, tribal members even add to the
problem by insisting that the county does not have jurisdiction with the intent of
confusing police in order to prevent law enforcement intervention. 245 Furthermore,
traffickers, like other offenders, may easily take advantage of this confusion.
Almost all interviewees noted the problem that:
Offenders are more likely to commit crime where word of
jurisdictional complications is widespread, believing they are less
likely to be prosecuted on reservations than elsewhere.
There is indication that in other states, gangs actively take advantage of
jurisdictional gaps and confusion by engaging in trafficking behavior or recruiting
on reservations. While there are no official reports of this yet in Oregon, there is
indication that gang activity involving trafficking has occurred on the Klamath
Reservation and possibly the Warm Springs Reservation. 246
Contrary to the oft-voiced perception that there is much confusion with
regard to jurisdiction, law enforcement officers generally believed that they
personally had a good grasp of jurisdictional issues. However, during interviews it
became apparent that many did not and that there was still some confusion, which
is in part attributed to the fact that some jurisdictional issues are still unsettled
legally.
244
Interviewees referenced include law enforcement, the justice system, and service providers.
Interviewees referenced include tribal service providers.
246
Service provider interviewees working closely with both tribes had heard of a handful of victims
being trafficked by gangs.
245
105
Furthermore, notwithstanding any confusion, the majority of law
enforcement interviewees felt that coordination between tribal, state, and federal
law enforcement is overall successful, and that law enforcement does an effective
job of investigating and prosecuting the cases that come to their attention.
However, other interviewees felt that jurisdictional confusion is often used as an
excuse for problems such as lax law enforcement and a general lack of
resources. 247 These interviewees suggested that:
Perhaps there really is not that much confusion, and the jurisdiction
problem is a misleading notion—jurisdictional concepts are not
complicated. The issue is simply used as a scapegoat for ineffective
enforcement.
This problem was most directly discussed with reference to reservations
under PL 280 jurisdiction. As mentioned above, when jurisdiction over certain
reservations was transferred to the state, this resulted in resentment by some
state and county officials who were suddenly tasked with policing thousands of
additional acres with no additional assistance, funds, or resources to ensure
effective law enforcement.
The result of PL 280 has been resources spread too thin in sparsely
populated areas (like reservations), and in some cases, animosity
between local law enforcement and tribes.
However, federal policing policies on non-PL 280 reservations also add to
the jurisdictional problems associated with ineffective enforcement. In particular,
interviewees working for the federal government reported that:
Federal law enforcement is more concerned with the quality of cases
than with quantity.
These interviewees explained that case files are typically reviewed for an
hour or so. If there does not appear to be much of a case, prosecution is usually
declined. The most commonly cited reasons for declination were a lack of
cooperation by the victim or other tribal members and errors in investigation or
collection of evidence. These interviewees further emphasized the importance of
federal involvement in the initial arrest and investigation (typically within the first 15
247
Interviewees referenced here represent all groups interviewed, although service providers
tended to attribute additional jurisdictional problems to lax law enforcement, whereas law
enforcement interviewees most often voiced a general lack of resources as attributable.
106
minutes of the case), noting again how early errors in investigation often preclude
prosecution. However, as reflected in Finding 7, interviewees across all groups
note that a problem with eliciting immediate involvement in investigations on
reservations is that law enforcement officers are often several hours from reach.
For tribal members and others working on reservations or closely with tribes, high
declination rates often translate to the perception that law enforcement will not get
involved in a crime unless death or serious injury is involved.
Whether or not all of the cited problems with jurisdiction exist to the extent
that some interviewees perceive them to, the public perception of their existence
contributes directly to under-enforcement and underreporting of crime on
reservations for several reasons. As discussed above, where members of Native
communities feel that county, state, or federal law enforcement will ineffectively
handle the crime, victims often fail to report because they feel that to do so would
be futile.
Many tribal members and others working closely with tribal members
or living on reservations feel a deep sense of frustration in the fact
that tribes hold little power to arrest, investigate, and prosecute nonIndian offenders on tribal lands.
One interviewee, illustrating an example from personal experience,
explained that although sex offenders are not allowed to live in a home with
children, tribes’ child welfare services are prohibited from investigating many
situations where this is suspected due to their inability to investigate potential nonIndian offenders who live on reservations with Native women and their children. 248
Likewise, an interviewee working on a non-PL 280 reservation commented that
most of the time federal law enforcement declines to investigate domestic violence
complaints, and the inability of tribal law enforcement to respond makes nonNative offenders a particular problem on reservations because it essentially sends
a message that their offenses will go unpunished. 249
Amongst those interviewees who expressed that law enforcement
jurisdiction is an issue the most frequently suggested solution was to give tribes
general prosecutorial jurisdiction over all non-Indian offenders who commit crimes
in Indian country.
248
249
Interviewee referenced represents tribal law enforcement.
Interviewee referenced is a tribal service provider.
107
9. Success of Oregon Senate Bill 412
Notwithstanding the previously stated concerns regarding problems with
jurisdiction, as well as communication and cooperation between the federal, state,
and tribal governments, interviewees from all groups seemed to feel that Oregon
Senate Bill 412 is making a positive impact on law enforcement overall. The new
bill was hailed by several interviewees for its attempt to improve the relationship
between tribal, county, and state law enforcement, and has been largely
interpreted as a sign that attitudes are changing. All interviewees with knowledge
of SB 412 communicated that:
The increased training requirements and expanded arresting
authority granted to tribal law enforcement under SB 412 has led
county law enforcement to view tribal police as more legitimate, and
has resulted in better policing of Indian country in general. 250
For example, one law enforcement interviewee noted that SB 412 helps put
tribal law enforcement on “equal footing” with state and local counterparts,
whereas tribal law enforcement officers were previously often treated as lesser by
other law enforcement agencies. 251 The act works to accomplish the result of
increased cooperation and better policing by specifying standards that require
tribal law enforcement to meet the same requirements as other state law
enforcement officers and by expanding tribal law enforcements’ arresting authority
in areas immediately surrounding reservations. 252
10. Lack of Training to Identify and Assist Vulnerable and Trafficked
Persons
Responses from law enforcement officers also indicate that there may be a
gap in training for officers to recognize and properly interact with those who are
vulnerable or exposed to sex trafficking.
250
Interviewees referenced here included some service providers with knowledge of SB 412, but
primarily included law enforcement officers.
251
Interviewee referenced represents tribal law enforcement.
252
See Part IV.E.3 and accompanying footnotes (for a more detailed discussion of tribal policing
authority under SB 412).
108
Although many law enforcement officers did report receiving training
on investigation of human trafficking, this training was reported to
focus more often on labor, rather than sex trafficking. 253
Furthermore, of the law enforcement officers interviewed, all had received
sex abuse and domestic violence training and indicated that a high percentage (if
not all) other officers within their agency had received the same or similar training.
Most law enforcement interviewees felt their sex abuse and domestic
violence trainings could also be translated in dealing with some sex
trafficking cases.
However, responses from other interviewees indicated that specific training
on the intersection of domestic and sexual violence and sex trafficking is severely
lacking. 254 As a result, the fact that law enforcement officers are not specifically
trained to recognize and assist victims of sex trafficking was noted to contribute to
the problem exemplified as one of a “revolving door” in Finding 2 above.
Failure to train law enforcement specifically on identification of sex
trafficking victims may result in misidentification of victims as
prostitutes, criminals, and deviants themselves.
Service providers explained that sex trafficking victims are often in
situations that involve—or at first glance appear to be—other criminal matters such
as domestic violence, prostitution, or substance abuse. Once law enforcement
becomes involved, victims often fear to speak out for the variety of reasons
already considered. That fact, combined with law enforcement’s failure to
appropriately identify cases as sex trafficking, often leave the underlying crime of
human trafficking unnoticed and unpunished. Instead, the misidentification victims
as mere criminals can perpetuate victimization within the justice system by
legitimizing their fear of punishment and failing to provide appropriate support
services. In turn, such factors leave victims in these types of situations vulnerable
to re-victimization.
253
254
This information was self-reported by law enforcement interviewees.
Interviewees referenced include both service providers and law enforcement.
109
11. Lack of Resources for Social Service Programs
a. A general need for resources
Although many programs offer assistance to victims of domestic abuse and
sexual violence that might be helpful for trafficking victims in some circumstances,
all programs identified as specifically dedicated to victims of human trafficking
appear to be geared toward assisting international victims. In fact, interviewees did
not identify any social service programs specifically directed at assisting domestic
trafficking victims, Native or non-Native.
Even in terms of general services that are available—like those geared
toward assisting victims of domestic and sexual abuse, or treatment for issues
related to addiction and substance abuse—access to these services are severely
limited in rural areas, particularly on reservations.
Service providers stated that while tribes can provide some services,
victims of trafficking may be required to travel long distances for
certain types of assistance, depending on what the tribe offers.
When asked about what services tribes can provide, one tribal service
provider responded: “We pass out Band-Aids,” explaining that the tribe simply
does not have the resources to offer effective assistance or design a collaborative,
cohesive approach to help Native victims. 255 In order to remedy these sorts of
deficiencies, interviewees working on reservations in multiple locations around the
state reported the need for:
•
•
•
•
•
•
255
Services through Indian Health Service (“IHS”) to help women with
substance abuse problems stay clean;
Sexual Assault Nurse Examiners available at IHS locations;
Counselors, therapists, and victim advocates who are trained to
assist victims of domestic violence and sexual abuse;
General funding to promote advocacy and community building
efforts;
Shelters for women, particularly those who have been exposed to
prostitution or sex trafficking; and
Greater access to tribal healing methods and services.
Similar sentiment was also reflected by service providers affiliated with other tribes.
110
Despite the lack of resources, interviewees associated with some of
Oregon’s reservations indicated that they have recently implemented their own
community building efforts.
Tribes discussed recent implementation of programs such as early
sex-education, elementary-aged education on sex abuse,
progressive tribal child welfare policies, and traditional healing
methods in the hope that these programs will have positive effects
on the affected communities overall in combating various social
problems, including vulnerability to human trafficking.
However, despite these commendable efforts, programs designed to
specifically assist persons who are most vulnerable or who have already been
exposed to trafficking or other forms of sexual abuse are not always successful.
A common observation by service provider interviewees was that the
longer victims or vulnerable persons stayed with a given program,
the greater chance they had of getting out of abusive situations, or
avoiding them in the future.
Several interviewees reported that they receive limited funding (one
specified that this covers approximately 30 days) for treatment of survivors of
abuse and persons seeking treatment for substance abuse. However, all of these
interviewees also commented that this is almost always an insufficient amount of
time to truly help, and is therefore a contributing factor to inconsistent success.
Although service providers encounter many victims for only a few
hours or weeks at most, many have observed that working with
individuals over a period of several months significantly increased
the chances of success.
Several of these interviewees noted that within the first month of receiving
assistance, many people are still in the very early phases of recovering from
victimization or substance abuse and felt that they would see a much higher rate
of success if provided the ability to offer assistance over the course of about three
months. However, besides a lack of funding to extend treatment services over
longer periods of time, service providers also identified other significant barriers to
treating survivors in programs for several months. These barriers include difficulty
eliciting victims’ involvement for prolonged periods of time, as well as the lack of
111
resources to supply or refer victims to a full range of services (as discussed
immediately above).
It is also worth noting that those working on or closely with reservations
sometimes also suffer secondary trauma as a result of the nature of the work.
Some tribal service providers expressed that their communities are so small that
they are deeply invested in the well being of the community as a whole and often
know the persons involved in their cases personally. Furthermore, as service
providers maintain heavy case loads and often have difficulty finding time to focus
on their own well being in general, many could benefit from services that support
issues arising as a result of workload stress and secondary trauma.
b. A need for shelters
Besides the general need for resources, service providers spoke at length
about their concern that shelters equipped to assist victims of crimes such as
trafficking are few and far between, especially outside of the Portland metro area,
which presents a problem for tribal members who would be required to travel long
distances to unfamiliar areas to seek refuge at these shelters.
Of the shelters available, most may not serve as a very good option
for persons at risk of or subject to trafficking.
In addition to requiring extensive travel and disconnection from tribal culture
and community, many shelters provide poor living conditions for trafficking
survivors that can trigger memories of past trauma and may also help perpetuate
the risk of re-victimization for survivors, as trafficking recruitment has been known
to occur in some shelters.
Furthermore, despite the previously established connection that often exists
between domestic abuse and human trafficking, many shelters for domestic
violence survivors exclude victims of trafficking if they have not also been victims
of domestic violence. Although other shelters besides those for domestic violence
exist, most of those shelters are intended to serve the homeless, and primarily
serve men. As a result, women subject to trafficking often do not feel safe in these
shelters. Interviewees also expressed the sentiment that victims may be otherwise
reluctant to stay in shelters because they tend to believe that it represents
failure—“it’s where you go when no one else wants you.” 256
256
Interviewees referenced here are service providers.
112
c. A need for culturally-appropriate healing methods and services
Another major concern amongst service providers who work with many
tribal members is the lack of funding for culturally appropriate healing methods.
Although nearly all of the service providers discussed the importance and
effectiveness of such healing methods, the reality is that medical insurance and
sources of program funding rarely cover such cultural methods.
Tribal service providers feel that the inability to use program funding
for certain cultural and traditional healing methods is a problem,
because sometimes those methods help more than the recognized
techniques that are covered.
Recognizing the effectiveness of cultural and traditional treatments, some
service providers attempt to work these kinds of healing methods into the
parameters of what their funding covers, but other times they cannot. For example,
one group of service providers discussed paying the costs of victims in need of a
“sweat” or a “smudge” 257 out of their own pockets when they can afford to because
program funding and health coverage do not include such services.
Interviewees who wish to implement cultural and traditional Native
treatment resources further underlined its importance in pointing out that there is
sometimes a disconnect with tribal communities and mainstream services. For
example, one interviewee reported that the tribe refers victims to talk therapy, but
that mainstream counseling is not always affective for tribal members. Another
interviewee articulated this disconnect as “a feeling that white people do not
understand [Native] problems.”
VI. RECOMMENDATIONS
Because this Report concludes that local, state, and federal government
officials in Oregon are not meeting their legal obligations to the Native community
to prevent trafficking, prosecute offenders, and protect victims, the authors offer
the following recommendations that, if implemented, would better allow
government officials to fulfill their obligations under the Three Ps. These
257
A “sweat” refers to a sweat lodge, which provides a warm sauna-like environment for
participants who seek spiritual cleansing, introspection, wisdom, or physical healing. A “smudge”
ceremony involves the burning of certain herbs where the smoke is brushed it over the body to
accomplish mental and spiritual cleansing.
113
recommendations should be taken in addition to the general recommendations
regarding trafficking presented in the 2010 Report: 258
1. All entities and organizations currently tracking incidences of
human trafficking should include specific categories for incidences
involving Native Americans.
Unlike other ethnic and racial groups, no one appears to be keeping
statistics on whether or not traffickers and trafficking survivors identify as Native
American. Thus, there are no hard statistics documenting the occurrence of
trafficking amongst Native populations. Given the deleterious effects associated
with the disproportionate representation of Native youth in foster care and
generational trauma within Native communities, it is likely that Natives are
exposed to trafficking at a rate that is disproportionately high. Because data
collection and analysis are the keys to understanding and fighting human
trafficking among Native populations, all stakeholders, including law enforcement
and survivor services, are strongly encouraged to add Native Americans to the list
of races/ethnicities contemplated in tracking and reporting on the composition of
human trafficking demographics. Additionally, stakeholders are encouraged to
share their findings and cooperate with other agencies in order to create a more
complete picture of trafficking among Native Americans in Oregon.
2. Require training on the identification of trafficking victims for all
local, tribal, county, state, and federal law enforcement officers.
Throughout our interviews, it became abundantly clear that many service
providers, law enforcement personnel, tribal members, and affected communities
often lacked the skill to recognize potential incidences of human trafficking as they
occurred. In addition, many persons encountering trafficking also lack the skill to
differentiate it from the existence of other attendant crimes such as prostitution,
domestic violence, and substance abuse. Accordingly, it is apparent that more
training in the identification of trafficking victims for both tribal and non-tribal law
enforcement is necessary.
Law enforcement must be encouraged to dig deeper when encountering
situations of prostitution, domestic abuse, and substance abuse by making
additional efforts to appropriately label trafficking victims as such, instead of as
criminals. Ideally, knowledgeable persons could conduct trainings in affected
258
2010 REPORT, supra note 1, at 116-120 (Part V).
114
communities and among service providers and law enforcement. Trained
members of those communities would also be able to reciprocate by alerting
service providers or law enforcement when they see signs of trafficking.
Furthermore, this recommendation would operate symbiotically with the above
recommendation of an increase in reporting and statistics. For example, more data
could give a clearer picture of exactly where, when, and with whom trafficking is
occurring, which in turn, will make it easier for service providers and law
enforcement to identify cases of trafficking and know where and how resources
should be focused.
3. Focus efforts to reduce Native overrepresentation in Foster Care
by ensuring adequate education and funding for tribal programs
aimed to reduce incidences of family intervention.
It is well documented that youth in the foster care system are more
vulnerable to a host of issues, and the Report shows that this includes an
increased vulnerability to human trafficking. Due to the overrepresentation of
Native children within the foster care system—a true crisis—there must be a
heightened focus on both preventing disruption of Native families and ensuring
adequate placement in foster care. As is apparent from our findings, resources are
needed to aid tribes’ programs to effectively reduce incidences leading to family
disruption. Furthermore, an honest conversation regarding the causes of
overrepresentation and a focus on programs that directly address them is
necessary.
This, like most of the recommendations, requires efforts both on and off the
reservation. ICWA has attempted to address the problem, but its procedural
barriers can increase time spent in foster care. Further, it also does little to
address specific instances of abuse on reservations. Our proposed solution would
be to better inform service providers, state juvenile dependency workers, and
families who are subject to ICWA of its requirements. Tribes can contribute to this
proliferation of information through continued efforts to increase awareness of
ICWA parameters, as well as to support outreach programs that decrease custody
cases. Any steps taken to address this issue must also address the cycle of
generational trauma perpetuated, at least in part, by the foster care system, as
well as provide adequate resources for traditional healing methods. These issues
are addressed next.
4. Tribes, state and federal officials, and service providers must work
to recognize and address generational trauma and heal its effects.
115
Generational trauma is a root cause of many factors contributing to Native
peoples’ vulnerability to sexual abuse and trafficking. Therefore, tribal leadership
and service providers should work collaboratively to create an open dialogue to
raise awareness of the effects of generational trauma, as well as internalized and
lateral oppression within Native communities. Accordingly, service providers and
other community educators are encouraged to discuss generational trauma in
conjunction with services and programs directed at assisting vulnerable
populations. This includes development and implementation of cultural programs
that encourage a strong sense of self-esteem and cultural identity in Native youth
and vulnerable community members alike. State and federal governments should
work with tribes to recognize and validate the effects of generational trauma and
commit to not only ending, but also remedying policies and practices that oppress
and exploit Natives and Native communities.
In addition, all stakeholders, especially non-tribal stakeholders, must
continuously and publicly acknowledge the horrors that were wrought upon Native
populations as a cause of this trauma and understand that building a better
relationship between tribes and outsiders will take time, extensive energy, and
trust.
5. Engage in active efforts to reduce underreporting of human
trafficking crimes through building of trust between stakeholders,
communities, and victims of trafficking.
Victims of human trafficking must be encouraged directly and indirectly to
come forward and report crime. In order to make this possible, all parties must
engage in active efforts to discourage shaming and harassing of victims. More
importantly, tribal officials and law enforcement in particular must engage in these
efforts to protect victims and insulate them from the risk of re-victimization that
often accompanies coming forward. In order to raise awareness of the existence of
human trafficking and its different forms, as well as to discourage manipulation
and normalization of sexual exploitation and abuse among vulnerable persons,
stakeholders should also enlist survivors of human trafficking to communicate their
experiences with law enforcement, teens, and other vulnerable populations. In
addition, there should be an increase in funding and availability for shelters,
substance abuse programs, and other resources in order to encourage, protect
and assist trafficking victims who do report.
116
6. Address jurisdictional complexities through training and by
improving collaboration and cooperation between tribal, county,
state, and federal law enforcement entities.
This Report demonstrates that there is, at least, a perception of significant
misunderstanding surrounding jurisdictional issues, which leads to underreporting,
under-enforcement, and even the targeting of reservations as places to commit
crime. Therefore, there must be increased cooperative efforts to reduce
jurisdictional complications within Native communities in order to cultivate positive
relationships with law enforcement, encourage reporting of crime, and discourage
opportunistic offenders. Specifically, stakeholders should take the following
recommendations into consideration with regard to jurisdiction issues:
•
•
•
•
•
•
Law enforcement authorities should collaborate to improve response times,
investigation efforts, and declination of criminal cases on tribal lands.
Government entities should conduct annual trainings for their law
enforcement agents and prosecutors who work with cases on tribal lands.
Oregon State Legislature should reauthorize Oregon Senate Bill 412
(currently scheduled to sunset in 2015).
Tribes should consider criminalizing human trafficking in tribal codes to
assist in efforts to measure rates of human trafficking and reduce
misidentification of trafficking victims.
Applicable tribes should consider bringing court systems into compliance
with VAWA requirements that permit prosecution of non-Indians committing
intimate partner crimes.
Federal authorities should reconsider current policy dictating criminal
jurisdiction in Indian country to permit tribes to arrest and punish any and all
non-Indians committing offenses on tribal lands.
7. Provide greater access to resources for survivors and persons
vulnerable to trafficking, including culturally appropriate tribal
healing methods.
In general, there must be more resources and funding given to Native
communities and rural IHS locations to provide services to Native survivors of
human trafficking and sexual exploitation. In addition, county, state, and federal
agencies, must make funding consideration for the use of traditional tribal healing
methods as appropriate and efficacious for some Natives. Health care providers,
particularly state or federally funded assistance programs must recognize
generational trauma and traditional tribal healing methods as legitimate and
117
include them under coverage. Additionally, non-tribal service providers must also
recognize tribal healing methods as a viable option for the healing of Native
survivors of human trafficking and suggest referrals where appropriate.
In brief conclusion, the recommendations provided above should be
seriously considered by all stakeholders involved. Inclusion of Native Americans
as an identifiable group in data-tracking and statistical reporting is perhaps the
biggest step necessary to adequate prosecution, prevention, and protection
against human trafficking because it will raise awareness and allow stakeholders
to more accurately grasp the extent of trafficking among Natives. Law enforcement
and community training that encourages better identification of victims and
prosecution under existing human trafficking laws would further aid in the overall
understanding of how Natives are involved in human trafficking, encourage victims
to report crimes against them, and increase effective enforcement of the law.
Native victims and others aware of crime in tribal communities will be further
encouraged to report where collaborative efforts are continually made to build trust
with state and federal governments and remedy the residual effects of
generational trauma and oppressive historic policies. Furthermore, collaboration to
provide greater access to necessary victim services, family support programs,
substance abuse treatment, and especially culturally appropriate treatment
services, is also necessary to effectively combat human trafficking among Native
Americans. Increased access to such necessary services can have both a direct
and indirect impact on prevention and protection by reducing the overall effects of
generational trauma and assisting victims and vulnerable persons develop the
knowledge, self-assurance, community, and healthy relationships necessary in
prevention and protection from human trafficking.
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APPENDIX A:
Selected Texts of Tribal Human Trafficking Statutes
SNOQUALMIE TRIBE
SNOQ. TRIBAL CODE § 7.21. Sex Trafficking
(a) A person is guilty of sex trafficking when they are knowingly involved in the
recruitment, harboring, transportation, provision, or obtaining of a person for
the purposes of a commercial sex act, in which the commercial sex act is
induced by force, fraud, or coercion, or in which the person induced to perform
such an act has not attained 18 years of age.
(b) The buying of selling of children for any reason.
(c) Sex trafficking is a Class A offense.
[Class A Offenses
Maximum Penalty: One (1) year in jail and/or $5,000 fine and/or community
service.
Minimum Penalty: Six (6) months in jail and/or $2,500 fine and/or community
service.
SNOQ. TRIBAL CODE § 17.2 (Sentencing Guidelines)]
ABSENTEE SHAWNEE TRIBE OF OKLAHOMA
AST. CRIM. LAW CODE § 568. Trafficking In Children
(a) It shall be unlawful to:
(1) Accept any compensation, in money, property or other thing of value, at any
time, from the person or persons adopting a child, for services of any kind
performed or rendered, or purported to be performed or rendered, in
connection with such adoption; or
(2) Accept any compensation, in money, property or other thing of value, from
any other person, in return for placing, assisting to place, or attempting to
place a child for adoption or for permanent care in a foster home; or
(3) Offer to place, or advertise to place, a child for adoption or for care in a
foster home, as an inducement to any woman to enter an institution or
home or other place for maternity care or for the delivery of a child.
(b) "Child" means an unmarried or unemancipated person under the age of 18
years.
(c) This section does not apply to attorneys or advocates licensed by the Tribal
Courts receiving reasonable fees for legal services actually rendered in the
course of lawful adoption proceedings, nor shall subparagraphs (a) (1) or (a)
119
(2) apply to any bonafide social worker or government employee receiving their
normal salary and making such placements as a part of their official duties.
(d) Trafficking in children shall be punishable by a fine not to exceed Two Hundred
fifty Dollars ($250.00), or by a term of imprisonment in the Tribal jail not to
exceed three months, or both.
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APPENDIX B:
Copies of Survey & Interview Questions
QUESTIONS FOR LAW ENFORCEMENT INTERVIEWS
I. Introductions & Report Background:
In 2010 the International Human and Refugee Rights Clinic completed a human
rights report assessing Oregon’s efforts to combat human trafficking. We are
currently building on that report to address human trafficking as it relates to Native
Americans in Oregon. We have been conducting interviews to gain insight into the
scope of the problem, efforts to prevent it, and services available to protect or
assist survivors or those vulnerable to human trafficking.
[Discuss interviewee’s job/position/role]
The term “human trafficking” evokes different definitions and ideas, so we find it
helpful to begin by explaining how our report defines human trafficking:
•
•
•
•
•
Human trafficking occurs whenever a person is recruited or forced
into prostitution, or other services or labor, by a third person.
In the case of a child under age 18, no coercion is required.
services or labor.
internationally. It can happen within a unit as small as a family.
Sometimes trafficking can appear as prostitution, so we will ask you
about prostitution as well.
II. Areas of Inquiry:
A. Sex Trafficking Demographics
1. Have you heard of Native Americans who have been forced or coerced
into prostitution?
a. What have you heard?
b. Who told you?
c. How old were the survivors?
d. Who coerced the survivor into prostitution?
e. Where did the coercion or recruitment take place?
f. Where did the actual sex acts occur?
g. Who were the customers?
2. Have you ever encountered any person who was subjected to forced
prostitution?
a. How did you know they were subjected to forced prostitution?
121
b.
c.
d.
e.
f.
g.
How many times has someone told you this happened to him or her?
How old were those involved?
Who coerced the survivor into prostitution?
Where did the coercion or recruitment take place?
Where did sex acts occur? With whom?
What, if anything, did you do to assist the survivor?
3. How often do you believe that Native Americans are coerced into
prostitution?
a. Why do you believe that?
4. Have you heard about or been involved in prostitution arrests:
a. occurring on a reservation?
b. involving Native Americans?
5. Have you heard about or been involved in child sexual abuse arrests:
a. occurring on the reservation?
c. involving family members?
6. Would you be willing to share any second-hand or personal knowledge
of specific instances of trafficking, prostitution, or child sexual abuse?
B. Labor or Service Trafficking Demographics
1. Have you heard of Native Americans being forced to provide labor or
services?
b. Who told you?
c. Age of survivors?
d. Who coerced the survivor into labor or services?
f. Where was the actual labor or services performed?
g. Who is using trafficked persons for labor or services?
2. Have you ever encountered anyone who was subjected to forced labor
or services?
a. How did you know that person was subjected to forced labor or
services?
b. What did they tell you?
c. How old were they?
g. Who is hiring the survivors for labor or services?
h. How many times has someone told you this happened to him or her?
122
i.
3. How often do you believe that Native Americans are coerced into labor?
of specific instances?
C. Gangs
1. Have you heard about gang activity on the reservation?
b. Are gangs involved in forced prostitution or other services or labor?
Why do you think that?
D. Jurisdiction
1. Do you ever have jurisdiction over crimes committed on a reservation?
If so, when?
2. How often do you deal with crimes committed on reservations?
3. Who do you understand has jurisdiction when a crime is committed on a
PL 280/non-PL 280 reservation:
a. If both the offender and victim are Native American?
b. If the offender is Native American and the victim is non-Native?
c. If the offender is non-Native and the victim is Native American?
d. If the both the offender and victim are non-Native?
4. How does jurisdiction change in each of these situations when the crime
is a:
a. Federally listed Major Crime?
b. Crime of general applicability?
c. State crime?
5. Does jurisdiction work differently on PL 280/non-PL 280 reservations?
How?
6. Who has jurisdiction when the offender and victim are both Native
American but the crime is committed off of a reservation?
7. Who has jurisdiction to investigate and prosecute reports of human
trafficking on tribal land? If it depends, what does it depend upon?
8. Are you aware of the federal Trafficking Victim Protection Act? If so, how
does this federal statute apply on the reservation?
123
9. Are you aware of Oregon’s statutes criminalizing involuntary servitude
and human trafficking?
10. Are you aware of any specific tribal statute/ordinance addressing human
trafficking?
a. Aware of other tribes’ statutes?
11. Do you feel that jurisdictional issues ever impede the investigation or
prosecution of crimes committed on reservations? If so how / why?
a. Have you personally encountered any situation when jurisdiction was
an issue?
b. Have you heard that others have had similar problems? If so, what
did you hear?
12. Are you aware of Senate Bill 412?
a. What are your feelings about SB 412? Why?
E. Prevention
1. Do you receive any kind of training regarding human trafficking in your
line of work? Is it required?
2. Other kinds of training that might be relevant in dealing with human
trafficking? How? Is it required?
3. Do you feel that anything is being done, either directly or indirectly, to
prevent people from being trafficked?
4. What do you think would help to prevent trafficking?
5. What barriers do you think exist in preventive efforts?
a. Why do you think that?
b. Solutions?
6. What group of people do you believe is most vulnerable to trafficking?
Why?
7. Is human trafficking a growing problem or is it just getting more
attention?
8. What factors do you think prevent survivors from reporting crimes
committed against them?
F. Remedial Protective Measures
1. Are you aware of any services (social, health, community, law
enforcement, etc.) available to victims of trafficking? Services specific to
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trafficking? Services generally available that trafficking victims could
benefit from?
2. Do you ever refer trafficking victims to services for assistance? If so:
a. Where/What services?
b. How often do you refer?
c. How often do they take advantage of services?
3. What gaps or barriers can you identify in services? Ideas as to bridging
these gaps?
III. Closing:
1. Are there other people you would recommend that we contact about this
issue? Who?
2. Discuss confidentiality and use of interview information in Report.
3. Are you willing to speak with us again if we have questions,
clarifications, etc.?
IV. If Interview Subject Discloses Personal Story of Trafficking:
[Thank them for sharing]
After I finish asking you questions regarding your role in law enforcement / the
justice system, would you be comfortable speaking with me about your personal
experience?
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ADVOCATE/SERVICE PROVIDER INTERVIEW QUESTIONS
In 2010 the International Human and Refugee Rights Clinic completed a human
rights report assessing Oregon’s efforts to combat human trafficking. We are
currently building on that report to address human trafficking as it relates to Native
Americans in Oregon. We have been conducting interviews to gain insight into the
scope of the problem, efforts to prevent it, and services available to protect or
assist survivors or those vulnerable to human trafficking.
[Discuss interviewee’s job/position/role]
The term “human trafficking” evokes different definitions and ideas, so we find it
helpful to begin by explaining how our report defines human trafficking:
•
•
•
•
•
Human trafficking occurs whenever a person is recruited or forced
into prostitution, or other services or labor, by a third person.
In the case of a child under age 18, no coercion is required.
services or labor.
internationally. It can happen within a unit as small as a family.
Sometimes trafficking can appear as prostitution, so we will ask you
about prostitution as well.
II. Areas of Inquiry:
A. Sex Trafficking Demographics
1. Have you heard of Native Americans who have been forced or coerced
into prostitution?
b. Who told you?
c. How old were the survivors?
d. Who coerced the survivor into prostitution?
f. Where did the actual sex acts occur?
g. Who were the customers?
2. Have you ever encountered any person who was subjected to forced
prostitution?
a. How did you know they were subjected to forced prostitution?
b. How many times has someone told you this happened to him or her?
c. How old were those involved?
126
d.
e.
f.
g.
Who coerced the survivor into prostitution?
Where did the coercion or recruitment take place?
Where did sex acts occur? With whom?
3. How often do you believe that Native Americans are coerced into
prostitution?
4. Have you heard about or been involved in prostitution arrests:
a. occurring on a reservation?
5. Have you heard about or been involved in child sexual abuse arrests:
a. occurring on the reservation?
c. involving family members?
of specific instances of trafficking, prostitution, or child sexual abuse?
B. Labor or Service Trafficking Demographics
1. Have you heard of Native Americans being forced to provide labor or
services?
b. Who told you?
c. Age of survivors?
g. Who is using trafficked persons for labor or services?
2. Have you ever encountered anyone who was subjected to forced labor
or services?
a. How did you know that person was subjected to forced labor or
services?
b. What did they tell you?
c. How old were they?
g. Who is hiring the survivors for labor or services?
h. How many times has someone told you this happened to him or her?
i. What, if anything, did you do to assist the survivor?
127
3. How often do you believe that Native Americans are coerced into labor?
of specific instances?
C. Particular Factors for Vulnerability
1. Does placement of Native Children in foster care contribute to the
problem?
a. If so, How? Why do you think that?
b. What effect does the Indian Child Welfare Act have on protecting
Native Americans from exploitation? Why?
2. Do you think that generational trauma and internalized oppression have
affected the rate of sexual abuse on the reservation and/or the Native
population generally? How?
D. Gangs
1. Have you heard about gang activity on the reservation?
b. Are gangs involved in forced prostitution or other services or labor?
Why do you think that?
E. Remedial Protective Measures
1. What services do you offer to survivors of these situations?
2. How often do people use your services? For how long do they need
your help?
3. How are your services funded?
a. Is your funding adequate?
b. Do you ever have to turn people away?
c. Are there other services you would like to be able to offer? Or are
there existing services you would like to improve?
4. Are you aware of other services (social, health, community, law
enforcement, etc.) available to survivors of these types of situations?
Services specific to trafficking? Services generally available that
trafficking survivors could benefit from?
5. How often do you refer people to these services?
a. How often do people take advantage of the services?
128
b. Do you ever collaborate with other service providers? If so, in what
way?
6. What gaps or barriers can you identify in services:
a. Generally?
b. You/your organization, specifically?
c. Do you have ideas about how to bridge these gaps?
7. Are there specific barriers to survivors reporting? If so, what?
8. Are survivors comfortable using services on the reservation? In
surrounding counties? Why or why not?
F. Prevention
1. Do you feel that anything is being done, either directly or indirectly, to
prevent people from being placed in trafficking situations?
2. What do you think would help to prevent?
3. What barriers do you think exist in prevention efforts?
a. Why do you think that?
b. Solutions?
4. Do you hear reports of arrests for:
a. Trafficking, specifically? If so: What kind? How often?
b. Pimping? (other related areas)? If so: What kind? How often?
c. Prostitution? (or related offense?) If so: What kind? How often?
i. Are they ever referred to services for help/assistance?
ii. Do you think any of these might be trafficking victims?
5. Do you have concerns about working with law enforcement (Tribal,
Federal, State)? If so, what are your concerns?
6. Does confusion about jurisdiction hinder prevention or survivor
assistance efforts?
a. Are survivors aware of jurisdictional issues?
b. Does it matter to survivors who (tribe, federal, state) has jurisdiction
over their case?
7. Are there barriers preventing survivors from seeking help or reporting? If
so, what?
III. Closing:
1. Are there other people you would recommend that we contact about this
issue?
129
2. Discuss confidentiality and use of interview information in Report.
3. Are you willing to speak with us again if we have questions,
clarifications, etc.?
IV. If Interview Subject Discloses Personal Story of Trafficking:
[Thank them for sharing]
After I finish asking you questions regarding your role in law enforcement / the
justice system, would you be comfortable speaking with me about your personal
experience?
130
SURVIVOR INTERVIEW QUESTIONS
[Thank the person for agreeing to meet with us]
We are speaking to survivors to listen to their stories and experiences. The stories
of survivors are important to understanding human trafficking, and by helping with
this report survivors have power to validate their status as a survivor and make a
change with their stories.
II. Questions:
A. Would you be comfortable telling me about your experience as a survivor?
[Let interviewee know we are not police and are not reporting to any law
enforcement agency]
[Let interviewee know that if they feel uncomfortable that they do not need to
answer a question]
[Let interviewee know that they can take a break at any time or cut short the
interview]
B. Can you tell me about where you grew up?
C. What was your home life like growing up?
1. At any time before you reached age 18 did you live with another family
or were you part of the foster system? If so, can you tell me about that
experience?
a. Did you ever suffer abuse (sexual, physical, emotional) while living
with someone else or in the foster system?
D. Do you remember if you told anyone about your situation(s)? Did you seek
help from anyone?
1. If no: What are some of the reasons you could not seek help?
2. If yes: Who did you speak with? When?
a. How did they help you? How long?
b. Would
you
be
comfortable
if
we
contacted
those
organizations/groups and spoke with them?
[Let interviewee know that we would like to learn of additional resources and that
we do not have to use their information if they are uncomfortable]
E. Do you feel that there are other people who are or were in your situation?
F. Would you feel comfortable introducing us to other survivors or other people
you believe might have similar experiences to share with us?
131
****Survivor interviews were conducted in a more informal manner when
compared with the other interviews. We allowed survivors to talk as much as they
wished about a particular question, and we attempted to use our best judgment
with regard to backfilling for more detailed information without causing distress or
discomfort to the interviewee****
SURVEY FOR COUNTY SHERIFFS
The Willamette University College of Law, International Human Rights Clinic, is
researching how human trafficking affects Native Americans in Oregon. We are
gathering information on the extent of human trafficking involving Natives both on
and off reservations, as well as the procedures, policies and practices of state,
federal, and tribal agencies in combatting human trafficking. The results and
recommendations will be published in a comprehensive report.
Your feedback on the past experiences, current efforts, and needs of law
enforcement in Oregon is important. Our hope is that this assessment will shed
light on the strengths and obstacles affecting local anti-human trafficking efforts.
If you have any questions or concerns, please contact the W.U. Clinic at (503)
370-6140. Please complete the survey by April 12, 2013. Thank you!
Which law enforcement agency do you work for?
Please list any law enforcement agencies with which you are cross-deputized:
Please list any law enforcement agencies with which other officers in your
department are cross-deputized:
How many allegations of human trafficking involving Native Americans have you
(or your agency) investigated in the last five years?
k. 11-15
f. 6
a. 1
l. 16-20
g. 7
b. 2
m. More than
h. 8
c. 3
20
d. 4
i. 9
e. 5
j. 10
If you answered 1 or more to the previous question, how many of these
investigations resulted in arrests, prosecutions, or convictions? Please specify how
many of each.
132
How many allegations of prostitution involving Native Americans have you (or your
agency) investigated the last five years?
a. 1-3
e. 31-40
b. 4-10
f. 41-50
c. 11-20
g. 50+
d. 21-30
During investigation of prostitution, were there any attempts to determine if a third
person was involved? Please explain.
How many "Johns" have been arrested or prosecuted in investigations of human
trafficking or prostitution? Please specify how many of each.
If there were investigations of prostitution or human trafficking, but no arrests,
prosecutions, or convictions, can you explain what any barriers were?
On which Indian reservation(s) do you have jurisdiction to investigate cases of
human trafficking?
i. Warm
d. Cow Creek
a. Burns
Springs
e. Grand
Paiute
j. All
Ronde
b. Coos, Lower
k. None
f. Klamath
Umpqua,
l. Don’t Know
g. Siletz
and Siuslaw
h. Umatilla
c. Coquille
My agency has jurisdiction to investigate allegations of human trafficking ON the
above-noted Indian reservation(s) __.
a. Only if both the offender and the victim are non-Indian.
b. As long as the offender is non-Indian.
c. As long as the victim in non-Indian.
d. If EITHER the offender OR the victim are non-Indian.
e. In all cases, regardless of the offender’s or victim’s Indian/non-Indian
status.
f. Don’t Know
g. None/Not Applicable
If human trafficking occurs OFF of the reservation, and both the trafficker and the
victim are Native, do you have jurisdiction to investigate?
a. Yes
c. Don’t Know
b. No
d. Other
What other agencies have jurisdiction to investigate when there are reports of
human trafficking involving tribal members ON the reservation?
133
Have you ever received training regarding human trafficking, or other training you
feel would be relevant in human trafficking cases? Please specify what training
and when the training occurred.
What percentage of your office has received training on human trafficking?
Is anything missing from your training to adequately address the needs of your
office/county? If yes, please explain.
Does your agency have any procedure in place to screen detained prostitutes or
migrant laborers, to determine if they may be trafficked victims? If yes, please
explain.
Does your agency have any procedure in place to screen children after child
welfare calls, to determine if they may be trafficked victims? If yes, please explain.
Please explain what steps your office takes (or would take) after identifying a
human trafficking case.
Do you forward case details to any agencies for statistics and intelligence
gathering? If yes, please list those agencies.
Does your office have a separate process for dealing with human trafficking cases
involving a Native American victim or offender? If yes, please explain.
Please list any agencies or organizations you (would) forward human trafficking
case details for statistics and intelligence gathering.
Please identify any obstacles your office faces in investigating human trafficking
and what is done to overcome them.
Are any of the above listed obstacles unique to cases involving Native Americans?
If yes, please explain.
Please identify any other measures that need to be taken to address human
trafficking in Oregon.
134
APPENDIX C:
Indian Child Welfare Act Memorandum
INDIAN CHILD WELFARE ACT OF 1978
In 1978, Congress passed the Indian Child Welfare Act (“ICWA”) in response to
the “alarmingly high percentage” of Indian children taken from their homes and
“placed in non-Indian foster and adoptive homes and institutions” by non-Indian
child welfare workers. 1 ICWA requires that (1) tribes be notified and given an
opportunity to intervene when the state places a child subject to ICWA in foster
care or seeks to terminate parental rights on behalf of such a child and (2) children
be placed, if possible, with relatives or tribal families.
I. ICWA Overview
A. Requirements
ICWA applies to cases in state courts that are (1) child custody proceedings (2)
involving an Indian child. 2 Where a Native child resides or is domiciled on a
reservation or is the ward of the tribal court, the tribal court may exercise
jurisdiction. For all other children, the state court may exercise jurisdiction but must
transfer the case to the tribal court when a request is made unless there is “good
cause” not to transfer the case. 3 Where there is a conflict between state law and
ICWA’s requirements regarding termination of parental rights to Indian children,
state law will be displaced. 4
Tribal intervention in a child custody case occurs when a tribe acts on its right to
participate in a child custody proceeding. ICWA states that “in any State court
proceeding for the foster care placement of, or termination of parental rights to, an
Indian child, the Indian custodian of the child and the Indian child’s tribe shall have
a right to intervene at any point in the proceeding.” 5 The tribe may request to
transfer the case to tribal court or the tribe may choose to only monitor the case
through court records. Either the parent or the tribe may request a transfer of
jurisdiction to a tribal court. Additionally, the tribe may intervene at any point in an
Indian child custody proceeding.
1
25 U.S.C. § 1901.
25 U.S.C. § 1903(1) and (4).
3
25 U.S.C. § 1911(a); see also 25 U.S.C. § 1918.
4
See State ex rel. SOSCF v. Amador, 176 Or. App. 237, 243, 30 P.3d 1223, rev. den., 333 Or. 73,
36 P.3d 974 (2001).
5
25 U.S.C. § 1911.
2
135
ICWA has both procedural and substantive safeguards. For example, under
ICWA, a court must determine “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” before it can terminate parental rights. 6 The court’s decision
must be “supported by evidence beyond a reasonable doubt, including testimony
of qualified witnesses.” 7
B. Existing Family Exception
Some have argued, however, that state courts have acted in direct defiance of
ICWA’s plain language and congressional intent by judicial creation of the existing
Indian family exception. 8 Some courts have refused to apply ICWA in situations
where the court deems the child is not part of a sufficiently Indian family. For
example, in In re Baby Boy L, the Kansas Supreme Court found “that an
illegitimate infant who ha[d] never been a member of an Indian home or culture,
and probably would never be, should [not] be removed from its primary cultural
heritage and placed in an Indian environment over the express objections of its
non-Indian mother.”9 In the Court’s opinion, if it was found that a child’s family was
not an “existing Indian family,” ICWA did not apply. 10 This interpretation of the Act
seems to be based on the theory that Congress sought to protect only families that
exhibited a certain amount of connectedness to their Native culture. Oregon, along
with a majority of states, has rejected the Indian family exception. 11
C. ‘Active Efforts’ Findings
Proponents of ICWA believe that the law protects Indian children’s connections to
their families, tribes, and cultural heritage. However some argue that ICWA’s
procedural requirements could result in Indian children spending a longer time in
foster care, working against more recent child welfare policies. In 1997, Congress
enacted the Adoption and Safe Families Act (“ASFA”) to help states move children
more quickly through foster care and into safe and permanent homes. ASFA
requires that when “determining reasonable efforts to be made with respect to a
6
25 U.S.C. § 1912(f); see also OR. REV. STAT. § 419B.521(4).
25 U.S.C. § 1912(f).
8
See Suzianne D. Painter-Thorne, One Step Forward, Two Giant Steps Back: How the “Existing
Indian Family” Exception (Re)imposes Anglo American Legal Values on American Indian Tribes to
the Detriment of Cultural Autonomy, 33 AM. INDIAN L. REV. 329, 330 (2008-2009).
9
In re Baby Boy L, 643 P.2d 168, 175 (Kan. 1982).
10
Id.
11
See Quinn v. Walters, 845 P.2d 206, 209 n. 2 (Or. App. 1993).
7
136
child … the child’s health and safety shall be the paramount concern.” 12 ASFA,
however, excuses the reasonable efforts test in “aggravated circumstances (as
defined in state law, which definition may include but need not be limited to
abandonment, torture, chronic abuse, and sexual abuse).”13
In contrast, ICWA requires the state to make active efforts findings in all cases
involving an Indian child, even in aggravated circumstances.
While ICWA requires active efforts findings in all cases, it does not directly define
“active efforts,” instead leaving it to the states to define. This has led, in some
cases, to state-defined exceptions to the active efforts that could severely limit the
strength of ICWA’s protections. 14
II. ICWA in Oregon
Oregon has incorporated ICWA’s active efforts requirement. ORS
419b.498(2)(B)(c) requires DHS to “satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.” 15 The Oregon Court of Appeals has held that “‘[a]ctive efforts’
entails more than ‘reasonable efforts’ and ‘imposes on the agency an obligation
greater than simply creating a reunification plan and requiring the client to execute
it independently.” 16 The active efforts standard is intended to serve as a
procedural safeguard to ensure that appropriate services are provided to Native
families. There is nothing in ICWA that requires courts to reunite children with
dangerous parents. In fact, courts have an obligation to keep dangerous parents
apart from their children in any event. Oregon’s definition of “active efforts” allows
for a variety of services to be offered across a variety of situations.
However, there will be situations in which services to a parent will do little to
maintain the family. It is in those cases that state courts may be tempted to
construct ways around applying ICWA, but rather than circumventing the Act’s
purpose, active efforts can be shifted to other Indian family members to
12
42 U.S.C. § 671(a)(15)(A).
42 U.S.C. § 671(a)(15)(D)(i)(2003).
14
See C. Eric Davis, In Defense of the Indian Child Welfare Act in Aggravated Circumstances, 13
MICH. J. RACE & L. 433, 438 (2008) (quoting H.R. Rep. No. 104-808 (1996)).
15
See also 25 U.S.C. §1912(d).
16
Dept. of Human Services v. K.C.J., 228 Or. App. 70 (2009) (quoting State ex rel. Juv. Dept. v.
T.N., 226
Or. App. 121, 124, 203 P.3d 262 (2009)).
13
137
reasonably maintain the family. As many Native cultures define family more
broadly than immediate, or ‘nuclear family’, preservation of an Indian child’s family
is not necessarily the same as preservation of parental rights. ICWA “would not
require active efforts to parents who are incapable of safely caring for the child, but
may require that those efforts be targeted at other family members who may be
more appropriate.” 17 Many of the problems that led to the enactment of ICWA are
of continuing relevance, notably the high rate of Indian children in the child welfare
system. Today, American Indian children represent two percent of the children in
foster care overall, but only one percent of the United States child population. 18
Evidence indicates that cultural bias and court hostility continues to exist. Some
argue that state courts and social workers are not properly educated with regards
to ICWA requirements. 19
Statistics and anecdotal evidence demonstrate the need for adequate resources
available to front line tribal programs to effectively reduce the incidences leading to
child custody cases, as well as the need for state courts to properly apply ICWA in
accordance with congressional intent to protect Indian families.
III. ICWA and Human Trafficking
ICWA plays an important role in analyzing how Native populations are impacted by
human trafficking. The likelihood of children ending up in foster care can greatly
increase their vulnerability to recruitment for human trafficking, particularly for
Native children. Many interviewees felt that the number of Native children in foster
care is in some ways representative of the level of generational trauma within
Native communities. 20 In general, children in foster care often grow up lacking the
emotional support and stability required to teach them the life skills necessary to
help them make it on their own when aged out of the system, which can lead them
to repeat the cycle of trauma with their own children. This also often means that
children being aged out of foster care are at an increased vulnerability to
17
Reconciling ASFA and ICWA, 21 A.B.A. CHILD LAW PRACTICE 91 (2002).
See Casey Family Programs, Child Welfare Fact Sheets (Sept. 2011),
http://www.casey.org/Newsroom/MediaKit
/pdf/CWFactSheet.pdf.
19
See Ruth Steinberger, Victims of South Dakota Injustice Speak Out, THE LAKOTA TIMES, Jan. 26,
2005, at A2 (quoting Sandy White Hawk),
http://www.lakotacountrytimes.com/sites/www.lakotacountrytimes.com/files/
pastarchives/pdf/V1iss17_Jan26_2005.pdf.
20
It is worth noting here that interviewees also voiced concern for over-representation of Native
children in foster care due to misidentification of poverty as abuse or neglect.
18
138
normalization of deviant behavior and manipulation by persons trying to take
advantage of them (such as traffickers). 21
21
See infra (the Report) Part VI.3 – 4 on Findings pertaining to ICWA and generational trauma.
139
APPENDIX D:
Jurisdiction Memorandum and Matrix
JURISDICTION: WHAT LAW APPLIES IN INDIAN COUNTRY? 1
I. Foundations in Federal Indian Law
To understand the complexities of jurisdiction as it exists today, it is useful to begin
by looking to the foundations of federal Indian law in three United States Supreme
Court decisions of the early nineteenth century, often referred to as the “Marshall
Trilogy”. 2 Most notably, it was in these cases that Chief Justice Marshall termed
the tribes “domestic dependent nations.” 3 As such, these cases collectively
established that while tribes merely maintain possession (rather than ownership)
of their lands, 4 they are also “distinct political communities, having territorial
boundaries, within which their authority is exclusive” from the states, except as
limited by Congress. 5 These cases can, therefore, be seen as laying the
framework for criminal jurisdiction because they established that tribes may govern
their own lands, and while not subject to the laws of the states, they are subject to
the United States where Congress intends to exert such authority.
Approximately fifty years after the last of the Trilogy cases, the Supreme Court had
its first chance to examine criminal jurisdiction where the crime involved only
Indians in Indian country. In Ex Parte Crow Dog, 6 the Court affirmed the idea that
the tribes govern their own lands, holding that federal courts retain no subject
matter jurisdiction over such cases. 7 This holding was based primarily on the
language of the General Crimes Act (“GCA”), which provides that:
the “general laws of the United States as to the punishment of crimes
committed in any place within the sole and exclusive jurisdiction of the
United States… extend to the Indian country,” except where: (1) both
parties are Indian, (2) an Indian offender is punished under the laws of the
1
“Indian country” is defined under federal law as “[a]ll land within the limits of any Indian
reservation under the jurisdiction of the United States Government….” 18 U.S.C. § 1151.
2
These three cases are: Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30
U.S. 1 (1831); Worchester v. Georgia, 31 U.S. 515 (1832).
3
Cherokee Nation, 30 U.S. at 17.
4
See generally, M’Intosh, 21 U.S. 543.
5
Worchester, 31 U.S. at 557.
6
The crime involved the murder of Spotted Tail on Rosebud Sioux Indian Reservation. The tribe
ordered Crow Dog to pay restitution (in the form of horses and blankets) and care for the victim’s
family or face banishment. Federal prosecutors, dissatisfied with the sentence, charged him with
murder in district court, which sentenced him to hanging. Ex Parte Crow Dog, 109 U.S. 556 (1883).
7
Crow Dog, 109 U.S. at 607-608.
140
tribe, or (3) a treaty exists, stipulating exclusive jurisdiction over such
offenses by the tribe. 8
Essentially, because both Crow Dog and his victim were Indian, and because
Crow Dog was already punished under tribal law, federal courts held no
jurisdiction under the GCA.
In turn, Crow Dog is importantly recognized as a basis for Congress’ enactment of
the Major Crimes Act (“MCA”) just two years later, which granted the federal
government concurrent jurisdiction (with tribes) over certain crimes committed in
Indian country by a Native American. Today, the MCA encompasses the following
crimes: 9
“murder, manslaughter, kidnapping, maiming, a felony under chapter 109A
[(sexual abuse)], 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 individual who has not
attained the age of 16 years, felony child abuse or neglect, arson, burglary,
robbery, and a felony under section 661 [(dealing with maritime
jurisdiction)].”
The MCA effectively worked to circumvent the Crow Dog holding, thus providing
federal jurisdiction to prosecute for those enumerated crimes occurring on
reservation lands, regardless of who is involved. 10
II. Who May Prosecute Whom?
Determining which laws apply and which government entities have jurisdiction to
prosecute crimes occurring on reservations has only become more complicated
since Crow Dog. Not only is the race (Indian or non-Indian status) of the victim and
the offender relevant to determining which government(s) will have jurisdiction, but
whether or not a reservation is subject to PL 280 is also determinative. This Part
therefore seeks to set the background for understanding jurisdiction and generally
explain its parameters, which are in turn analyzed specifically with reference to
human trafficking laws in the following Part (III).
8
General Crimes Act, 18 U.S.C. § 1152 (originally enacted in 1817).
covers sixteen).
10
The Supreme Court first upheld the MCA’s validity in United States v. Kagama, 118 U.S. 375
(1886).
9
141
A. Federal Jurisdiction Over Crimes Committed in Indian Country
1. Crimes between Indians
The above Part (I) illustrates that tribes traditionally hold exclusive jurisdiction over
disputes between their own members on their own lands. 11 However, the federal
government has created a few important exceptions to this presumption. First, as
discussed above, the MCA grants federal jurisdiction over any of its enumerated
crimes. 12 Additionally, the federal government has also been recognized to hold
jurisdiction over all federal crimes of general applicability, which are acts
criminalized by Congress independent of the jurisdiction in which they are
committed. 13
Although the Supreme Court has never reviewed the question of whether federal
courts maintain jurisdiction over crimes of general applicability among Indians in
Indian country, almost half of the federal circuits have. The Ninth Circuit, in Young,
determined that the offenses charged created jurisdictional hooks on grounds
independent of the offender’s identity or the location of the offense, 14 holding that
“federal courts continue to retain jurisdiction over violations of federal laws of
general, non-territorial applicability,” even where the crime is one between Natives
on the reservation. 15 While most Circuit Courts reviewing this question have
issued holdings consistent with that of the Ninth, 16 the Second Circuit has chosen
an alternative approach. In Markiewicz, it held that “federal jurisdiction does not
exist over Indian-against-Indian crimes that congress fails to enumerate, except
where such offenses constitute ‘peculiarly Federal’ crimes, and the prosecution of
11
See United States v. Johnson, 637 F.2d 1224, 1231 (9th Cir.1980).
18 U.S.C. § 1153(a).
13
It is important to distinguish crimes of general applicability (albeit confusingly) from those
implicated under the GCA. The GCA grants federal jurisdiction for crimes on lands owned by the
United States (i.e., non-PL 280 reservations) and is further restricted by the statutory limitations of
18 U.S.C. § 1152, but crimes of general applicability are not so limited, granting jurisdiction
independent of geographical location and who is involved.
14
United States v. Young, 936 F.2d 1050, 1055 (9th Cir. 1991) (charges were: assaulting a federal
officer (18 U.S.C. § 111), jurisdiction implicated by status of victim as federal officer; possession of
a firearm by a felon (18 U.S.C. § 922(g)), jurisdiction implicated by weapon’s interstate transport;
use of a firearm in a crime of violence (18 U.S.C. § 924(c)), jurisdiction implicated by conviction of
other federal offense).
15
Young, 936 F.2d at 1055; See also United States v. Begay, 42 F.3d 486 (9th Cir. 1994)
(expressly rejecting the Second Circuit’s approach in Markiewicz); United States.v. Top Sky, 547
F.2d 483, 484 (9th Cir.1976); United States v. Burns, 529 F.2d 114, 117 (9th Cir.1976); Walks On
Top v. United States, 372 F.2d 422, 425 (9th Cir.), cert. denied, 389 U.S. 879 (1967).
16
See United States v. Blue, 722 F.2d 383 (8th Cir. 1983); United States v. Smith, 562 F.2d 453
(7th Cir. 1977); United States v. Yannott, 42 F.3d 999 (6th Cir. 1994).
12
142
such offenses would protect an independent federal interest.”17
2. Crimes Involving non-Indians
Involvement of non-Native offenders and victims can further complicate the
determination of which law applies. While states generally maintain jurisdiction
over crimes between non-Indians in Indian country, 18 the federal government still
maintains prosecutorial authority over distinctly federal crimes, such as those of
Interracial crimes involving both Native and non-Native parties require even further
analysis, potentially implicating federal criminal jurisdiction in one of three ways.
Once again, the federal government may prosecute if the crime is one of general
applicability, or is enumerated under the MCA 19 (although the MCA applies only
where the offender is Indian). Additionally, the GCA also specifically extends to
such interracial crimes occurring in Indian country. 20
More specifically, the “general laws” encompassed by the GCA are those known
as “federal enclave laws.” 21 These are statutes criminalizing certain acts occurring
on lands solely within the Special Maritime and Territorial jurisdiction of the United
States—“law[s] in which the situs of the offense is an element of the crime.” 22
However, remember that the GCA has major restrictions. In addition to its three
statutorily placed limits (discussed above with reference to Crow Dog), 23 the courts
have traditionally held that the GCA does not apply to crimes occurring on
reservations between non-Indians. 24 Thus, the GCA effectively only applies to
17
United States v. Markiewicz, 978 F.2d 786, 800 (2d Cir. 1992), cert. denied, sub nom., Beglen v.
United States, 113 S. Ct. 1065 (1993) (However, the court found federal jurisdiction on other
grounds, obviating the need to ascertain on what grounds such “federal interest” is implicated.).
18
See United States v. McBratney, 104 U.S. 621 (1882) (holding that state law applied, rather than
the GCA).
19
18 U.S.C. § 1153.
20
However, it does not cover crimes involving only Natives (18 U.S.C. § 1152) or crimes involving
only non-Natives (McBratney, 104 U.S. 621).
21
18 U.S.C. § 7.
22
United States v. Strong, 778 F.2d 1393, 1396 (9th Cir.1985).
23
The GCA does not extend to: (1) offenses between Indians, (2) Indian offenders already
punished by the tribe, and (3) treaties granting the tribe(s) exclusive jurisdiction. 18 U.S.C.
§ 1152.
24
McBratney, 104 U.S. 621 (holding that state law applies instead).
143
crimes involving both Indian and non-Indian parties, where the offender (if Indian)
was not prosecuted in tribal court. 25
Beyond its general limitations, one particularly noteworthy aspect of the GCA is
the Assimilative Crimes Act (“ACA”), 26 which is one of those “federal enclave” laws
applied to Indian country through the GCA. The ACA allows federal prosecutors to
charge offenders of violating state law for acts committed in Indian country where
no equivalent federal crime exists under which to prosecute. 27 However, the
Supreme Court places an equally notable limitation on use of the ACA, interpreting
it to prohibit the federal government from substituting state law to obtain conviction
where the Federal Code does criminalize the act, albeit less restrictively. 28
B. State Jurisdiction (PL 280)
While the complex collection of federal laws described above applies with regard
to some tribal lands, state law is the default for reservations affected by the
enactment of Public Law 280 (“PL 280”). 29 As a general rule, the jurisdictional shift
in areas affected by PL 280 means that the MCA and GCA no longer apply.
Instead, these states fully enforce their own criminal laws for crimes committed on
reservation lands within their borders, sharing concurrent jurisdiction with tribes
where the offender is Indian, and maintaining sole jurisdiction where the offender
is not. Although PL 280 basically works as a jurisdictional “hand-off” from the
federal government to the states, there are three circumstances worth noting in
which federal law may still apply.
First, regardless of any jurisdictional divestitures as a result of PL 280, the federal
government nonetheless retains jurisdiction over crimes of general applicability. As
explained in detail above, federal crimes of general applicability are within the
purview of the federal courts to decide, regardless of the status of the offender or
25
The GCA’s limitation on treaties is irrelevant because no such treaty stipulations currently exist.
18 U.S.C. § 13 (originally enacted in 1825).
27
18 U.S.C. § 13(a) (enables federal authorities to prosecute using state law in federal court).
28
In Williams v. United States, a white man living near Colorado River Indian Reservation had
sexual contact with a 16-17 year old Indian girl on the Reservation. Unable to prosecute for
statutory rape under federal law (limited to minors under 16), federal prosecutors attempted
substitute it for Arizona’s statutory rape law (requiring the girl to be under 18). The Court held that
Arizona law was not applicable, because “the offense known to Arizona as that of ‘statutory rape’
has been defined and prohibited by the Federal Criminal Code, and is not redefined and enlarged
by application to it of the [ACA]." 327 U.S. 711, 717 (1946) (For a similar example on a military
base, see generally, Lewis v. U.S., 523 U.S. 155 (1998)).
29
Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified 18 U.S.C. § 1162, 28 U.S.C. § 1360, 25 U.S.C.
§§ 1321-1326).
26
144
where the crime is committed, because their jurisdiction is based on the
independent grounds by which Congress exercised its power to enact these laws
in the first place.
The other two circumstances in which federal law may still apply are dependent on
whether the reservation is located in an “optional” or “mandatory” PL 280 state. 30
In mandatory PL 280 states like Oregon, reservation lands originally subject to PL
280 31 were automatically and completely divested from federal jurisdiction upon
PL 280’s enactment. Those tribes have been permitted to retrocede to federal
criminal jurisdiction since the ICRA was amended to allow it in 1968. 32 However,
an act of retrocession has the effect of divesting any state jurisdictional authority in
exchange for that of the MCA and GCA under federal government. More recently
however, the Tribal Law and Order Act (“TLOA”) 33 added another jurisdictional
option for these mandatory PL 280 reservations, which permits concurrent
jurisdiction between all three governing bodies (state, federal, and tribal) where
applicable. For this kind of concurrent (or “tricurrent”) 34 jurisdiction to apply, two
requirements must be met: (1) the tribe must expressly request application of
federal jurisdiction (implicating the GCA and MCA); and (2) the Attorney General
must consent. 35 Where these requirements are met, concurrent jurisdiction over
Indian offenders exists between three governments—state, federal, and tribal. 36
Concurrent jurisdiction between state, federal, and tribal authorities can also exist
in what are considered “optional” PL 280 states. All states with Indian country not
mandatorily subject to PL 280 have the option to adopt PL 280 jurisdiction in whole
30
18 U.S.C. § 1162 (establishes the following “mandatory” states: Oregon (except for Warm
Springs), Alaska (with limited exception), California, Minnesota (except for Red Lake), Nebraska,
and Wisconsin); 25 U.S.C § 1321 (for “optional” PL 280 states).
31
In Oregon, all but Warm Springs.
32
25 U.S.C. § 1323. In 1979 and 1981, Burns Paiute and Umatilla Reservations (respectively)
became the first and only in Oregon to retrocede PL 280 jurisdiction under this amendment. 44 FR
26,129 (1979) (Burns Paiute); 46 Fed. Reg. 2195 (1981) (Umatilla).
33
Tribal Law and Order Act of 2010, Pub. L. No. 111-211, 124 Stat. 2261 [hereinafter T.L.O.A.].
34
I have to credit this term. B.J. Jones, Director, Tribal Judicial Institute, Lecture on an Overview of
the Tribal Law and Order Act and Tribal Implementation Issues (Feb. 27, 2012) (slides available at
http://law.und.edu/tji/_files/docs/tloa-bjones.pdf).
35
T.L.O.A., § 221 (codified 18 U.S.C. § 1162(d)).
36
No tribes have done this yet in Oregon.
145
or in part (with consent of the tribe), 37 and such optional PL 280 jurisdiction results
in shared jurisdictional authority between all three governments where applicable.
C. Tribal Jurisdiction
1. Crimes Involving Indian Defendants
Generally speaking, tribes may exercise their sovereign authority to prosecute
Native Americans for crimes committed in Indian country, and are interpreted to
maintain jurisdiction concurrently with state or federal governments in the
circumstances discussed in the preceding sections. However, an unfortunate
consequence of this policy is that the Supreme Court finds no double jeopardy
where a Native offender is tried for the same crime by both United States courts
and tribal courts. 38
Furthermore, although the United States traditionally recognizes a tribe’s
jurisdictional authority over its own members, the same has not always been
recognized with respect to non-member Indians or Indians of other tribes. 39 In
order to plug this gap, Congress amended the Indian Civil Rights Act (“ICRA”) 40 in
1991 to explicitly provide tribes with criminal jurisdictional authority over all Indians
committing crimes in Indian country, regardless of whether that Indian is a member
of the prosecuting tribe. 41
However, despite good intentions, the ICRA has simultaneously acted to limit tribal
justice systems since its inception. Originally enacted because tribes (as
sovereigns not part of the federal government or the states) are not subject to the
United States Constitution or Bill of Rights, the ICRA requires tribal courts to
37
25 U.S.C. § 1321(a). It is also worth noting here that consent of the tribe to PL 280 jurisdiction
was not required before 1968, and since the statute was amended to require such tribal consent no
tribe has ever consented.
38
The most notable case in point, United States v. Wheeler, involved a Navajo defendant who was
first convicted in Navajo Nation's tribal court, and later tried in federal court for the same crime. The
Supreme Court held that “the source of the power to punish offenders is an inherent part of tribal
sovereignty and not a grant of federal power. Thus, because the two prosecutions were by
separate sovereigns… the subsequent federal prosecution did not violate the defendant's right
against double jeopardy.” 435 U.S. 313, 313 (1978); see United States v. Lara, 541 U.S. 193, 20809 (2004) (upholding Wheeler and the ICRA’s Duro-fix).
39
See Duro v. Reina, 495 U.S. 676 (1990).
40
Indian Civil Rights Act, Pub. L. No. 90-284, 82 Stat. 77 (1968) (codified at 25 U.S.C. § 1301 et
seq.).
41
25 U.S.C. § 1301 (also known as the Duro-fix, recognizes tribes’ “inherent power…to exercise
criminal jurisdiction over all Indians”). The amendment was subsequently upheld in Lara, 541 U.S.
at 208-09.
146
observe due process and other rights analogous to those arising in criminal
prosecution under the Constitution (i.e., the First, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments). 42 In addition to its constitutional limitations, the ICRA
also generally prohibits tribal courts from imposing sentences greater than “a term
of one year [imprisonment] and a fine of $5,000, or both.” 43
The TLOA recently amended the ICRA to expand sentencing limits. However, this
amendment applies only to tribes who meet certain specific requirements, 44 and
Umatilla is the only reservation in Oregon to qualify thus far. All other Oregon tribal
justice systems are still restricted to the one-year/$5,000 maximum. 45 Even
beyond the potential difficulties associated with qualifying, tribes meeting the
requirements are still limited to imposing sentences of no more than three years
imprisonment (or nine, if multiple convictions) and a fine of up to $15,000. 46 Thus,
even where the TLOA provides some relief, tribes are nonetheless left without
power to adequately prosecute serious crimes, such as human trafficking.
2. Crimes Involving non-Indian Defendants
The preceding subsections (II.A & B) establish that state and federal governments
often have jurisdiction over crimes committed by Indians. Conversely however, the
Supreme Court has consistently upheld the notion that absent an express grant of
authority by Congress or treaty, tribes are barred from any attempt to exercise
criminal jurisdiction over non-Indian offenders for any crime committed in Indian
42
25 U.S.C. § 1302; see W ILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 29, 137
(2004).
43
25 U.S.C. §1302(a)(7)(B).
44
In addition to meeting the ICRA’s general requirements, tribes must also provide: (1) indigent
defendants with competent no-cost representation on par with that “guaranteed by the United
States Constitution”; (2) judges licensed to practice law in the United States with sufficient
knowledge of criminal proceedings; (3) public notice of criminal laws, procedure, and rules of
evidence; and (4) record of criminal proceedings. 25 U.S.C. § 1302(c).
45
Interview with Tom Woolworth, Special Agent in Charge, BIA Office of Justice Services, Portland,
in Portland, Or. (March 14, 2013) (on file at the Clinic).
46
The TLOA provides that tribes may sentence up to three years imprisonment and/or $15,000,
only if: (1) the defendant was previously convicted of the same or similar crime; or (2) the offense
would be punishable for more than one year in a United States or state court. 25 U.S.C. §1302(b).
Collectively, sentences may add up to a maximum of nine years imprisonment where multiple
convictions apply. 25 U.S.C. §1302(a)(7)(D).
147
country. 47 In other words, tribes are generally prohibited from prosecuting nonIndians—period.
However, recognizing the persistent and disproportionately high degree of
violence against Indian women in Indian country, Congress recently acted to
create a (very) small exception to this general rule through its 2013 reauthorization
of the Violence Against Women Act (“VAWA”). 48 Specifically, VAWA amends the
ICRA to allow tribes to prosecute any non-Indian offender for crimes of violence
against any Indian American with whom the offender is in a “dating” or “domestic”
relationship, as long as the crime charged is based on the presence of the
relationship. 49 More specifically, the non-Indian offender must reside or be
employed on the reservation, or be the spouse, intimate partner, or dating partner
of either a member of the tribe or a non-member Indian who resides in the tribe’s
Indian country. 50
Tribes who wish to prosecute under this amendment must also meet certain
procedural requirements. In addition to following the ICRA’s general guidelines,
tribes must allow non-Indian defendants: an impartial jury of community members;
effective assistance of counsel (at no cost if indigent); a competent judge; and
notice of right to file for writ of habeas corpus in federal court. 51 Tribes are further
expected to uphold “all other rights whose protection is necessary under the
Constitution of the United States in order for Congress to recognize and affirm the
[tribe’s] inherent power…to exercise” its jurisdiction. 52 A problem is that while
some instances of human trafficking might qualify for tribal prosecution here, it is
neither effective nor intended to combat the problem overall.
III. APPLYING THE JURISDICTIONAL MAZE TO CRIMES OF HUMAN
TRAFFICKING
47
In Oliphant v. Suquamish, a non-Indian resident of Port Madison Reservation was charged with
“assaulting a tribal officer and resisting arrest” by the Suquamish Tribe. Defendant claimed that
because he was non-Indian, the tribe had no jurisdiction. The Supreme Court agreed. 435 U.S.
191, 194-97 (1978).
48
Violence Against Women Act 2013 Reauthorization, Pub. L. No. 113-4, § 901-910, 127 Stat. 54
(2013) (effective as of 2015) [hereinafter VAWA 2013].
49
Id. at § 904.
50
Id.
51
Id.
52
Id. At most, this language implies that tribes must provide criminal defendants with all rights
protected by the Constitution. However, it is unclear because the issue has not yet been
challenged.
148
A. Federal Jurisdiction Over Human Trafficking in Indian Country
1. The Trafficking Victims’ Protection Act
The only provision of the Trafficking Victims’ Protection Act (“TVPA”) providing
explicit guidance as to whether the Act applies in Indian country is under its child
trafficking statute, 18 U.S.C. § 1591. 18 U.S.C. § 1591 grants federal jurisdiction
where the accused violates the law “knowingly, in or affecting interstate or foreign
commerce, or within the special maritime and territorial jurisdiction of the United
States.” 53 Such language implicates the crime both under the GCA 54 and as one of
With regard to the GCA, this means that § 1591 applies to Indian lands which the
federal government never divested criminal jurisdictional authority to the state
(Warm Springs), those falling under “optional” PL 280 jurisdiction, and those
“mandatory” PL 280 jurisdictions that have returned to federal jurisdiction through
retrocession (Umatilla and Burns Paiute) or the TLOA. It also means that any
application of § 1591 through the GCA will be limited to interracial crimes involving
both Indian and non-Indian parties, where the offender (if Indian) has not already
been “punished” by the tribe. 55
Alternatively, where § 1591 is violated “in or affecting interstate or foreign
commerce,” 56 the statute can be applied regardless of who is involved and the
location of the crime. This means that anyone violating § 1591, Indian or not, off or
on reservation (PL 280 or non-PL 280), is subject to jurisdiction of the federal
courts as long as the crime meets the commerce hook. Although § 1591 is the
only part of the TVPA expressly naming commerce as a jurisdictional basis
(qualifying it as a federal crime of general applicability), federal courts might
nonetheless imply such a jurisdictional basis in other of the TVPA’s provisions.
However, because no part of the Act has yet been applied in Indian country, the
answer is unclear. Furthermore, in so far as any TVPA provision qualifies as a
crime of general applicability by using “commerce” as a jurisdictional hook, the
federal government might still theoretically be prohibited from exercising
53
18 U.S.C. § 1591(a)(1) .
The authorizing language—within special maritime and territorial jurisdiction—identifies it as a
federal enclave law (18 U.S.C. § 7), applying to Indian country through the GCA (18 U.S.C. §
1152).
55
18 U.S.C. § 1152; McBratney, 104 U.S. 621 (state law applies to crime between non-Indians in
Indian country).
56
18 U.S.C. § 1591(a)(1).
54
149
jurisdiction if the crime occurs solely on a reservation, or within the bounds of a
state, and has no effect on interstate commerce.
If human trafficking occurred on a reservation under circumstances not implicating
federal jurisdiction under the TVPA (neither through the GCA nor as a crime of
general applicability), the tribe could still prosecute if the offender is Indian and the
tribe maintains its own court system. However, even those tribes with both the
authority and ability to prosecute would nonetheless be severely limited by the
restrictive sentencing provisions discussed above with reference to the ICRA. This
kind of situation also highlights the problem that tribes are presumed to have no
jurisdictional authority over non-Indians. Thus, where federal jurisdiction does not
attach and tribes lack their own court systems, or are barred from prosecution due
to the offender’s status as non-Indian, the offender may be lost from prosecution in
a proverbial jurisdictional black-hole.
2. Finding Federal Jurisdiction Where the TVPA Does Not Apply
Even where the TVPA does not apply, the federal government may still exercise
jurisdiction over crimes of human trafficking in Indian country where the MCA or
GCA is implicated (in Oregon, this is Burns Paiute, Umatilla, and Warm Springs).
However, without the TVPA, the federal government is restricted to prosecuting
offenders for related crimes other than human trafficking. For example, a Native
American suspected of human trafficking in Indian country where the crime does
not meet TVPA requirements might instead be charged with an alternative crime
under the MCA, such as “kidnapping…a felony under chapter 109A [(sexual
abuse)]…incest…[and] felony child abuse or neglect…” 57
Alternatively, remember that the ACA can apply state law through the GCA
(subject to its limitations as discussed above). It seems that any federal effort to
apply state human trafficking law under the ACA could go one of two ways. One
possibility is that a federal court may find the rule in Williams to govern—
prohibiting application of the ACA—because federal human trafficking crime exists
(under the TVPA) and does not apply on the basis that the federal crime is defined
differently than state law. 58 On the other hand, a federal court may construe
Williams more narrowly, finding that application of the ACA is prohibited if the
57
18 U.S.C. § 1153(a).
The Supreme Court, in Williams, denied extension of the ACA because an existing federal
statute mirrored the state law, except that the federal statute was more narrow. 327 U.S. at 717;
see also Lewis, 523 U.S. 155.
58
150
TVPA does not apply because the substantive elements of the crime differ from
state law, but that the ACA does still apply where the TVPA is inapplicable purely
by its failure to apply due to a procedural element, such as jurisdiction. Thus, while
the ACA might conceivably be interpreted to allow federal prosecutors to substitute
Oregon’s (or any other state’s) human trafficking laws where the TVPA does not
apply, such application would likely be considered prohibitive because the ACA
has so far only been interpreted to apply in cases where no parallel federal law
exists.
B. State Jurisdiction Over Human Trafficking in Indian Country
Today, all fifty states including the District of Columbia have enacted legislation to
combat human trafficking. 59 Oregon has three statutes making it a crime to subject
a person to involuntary servitude or human trafficking. 60
In addition to their general application to human trafficking crimes committed within
the state of Oregon, these state laws also apply to human trafficking crimes
committed within Indian country involving only non-Indians. 61
As explained above however, where a crime of human trafficking involves either
an Indian offender or victim in Indian country, a state will only have criminal
jurisdiction to prosecute if PL 280 jurisdiction applies. For states that have
designated PL 280 Indian country within their borders (mandatory or optional),
states can apply their human trafficking laws in the same way those laws apply
elsewhere in the state. 62 For Oregon, this means the state has jurisdiction over all
crimes of human trafficking occurring on Cow Creek, Coquille, Coos/Lower
Umpqua, Grand Ronde, Siletz, Klamath Indian Reservations. Thus, Indian
defendants in these jurisdictions are subject to concurrent jurisdiction between the
state and the tribe (and in certain circumstances, the federal government). 63
59
Megan Fowler, Wyoming Becomes 50th State to Outlaw Trafficking, POLARIS PROJECT (Feb. 27,
2013), http://www.polarisproject.org/media-center/press-releases/742-wyoming-becomes-50thstate-to-outlaw-human-trafficking.
60
OR. REV. STAT. §163.263; OR. REV. STAT. §163.264; OR. REV. STAT. §163.266.
61
See McBratney, 104 U.S. 621.
62
That is, assuming that a given “optional” PL 280 jurisdiction has opted for state criminal
jurisdiction (rather than just civil). Remember that any state opting in to PL 280 could choose to
assume only partial jurisdiction.
63
See Part II.B (explaining the potential for concurrent (“tricurrent”) criminal jurisdiction between all
three governments for Indian country that is “optional” PL 280 or “mandatory” but falling under the
TLOA exception).
151
Remember from the preceding subsection that in certain circumstances federal
courts might still allow federal application of state trafficking laws on reservations
through the ACA where the crime involves Indian and non-Indian parties
(depending on how narrowly Williams is construed). However, although this kind of
situation would implicate state law, it would nonetheless fall under federal
jurisdiction.
C. Tribal Jurisdiction Over Human Trafficking in Indian Country
Not all tribes in Oregon have criminal justice systems. Tribes that do generally only
have jurisdiction to prosecute Indians for crimes committed in Indian country, and
that authority runs concurrent with any applicable state or federal criminal
jurisdiction over the crime committed. As a general rule, remember that tribes
cannot prosecute non-Indians for crimes committed in Indian country. Thus they
are greatly inhibited in their ability to protect those living on their lands from crimes
of human trafficking by non-Indians. Although in some cases tribes might assume
jurisdictional authority over non-Indians for crimes arising out of certain “dating” or
“domestic” relationships implicated under the VAWA provisions discussed above,
such restrictions on prosecution of non-Indian offenders severely limits tribes’
abilities to punish and protect against human trafficking.
None of the tribes in Oregon have enacted laws specifically criminalizing human
trafficking yet. However, even absent such laws, tribes (with criminal justice
systems) can still prosecute offenders for similar or related crimes currently
existing within their own criminal codes, such as: kidnapping, pimping, sex abuse,
or child abuse. In the future, these tribes might also consider enacting tribal human
trafficking laws. Tribes in a few other states have already enacted their own
human trafficking laws, which may serve as a model for other tribes who wish to
do the same in the future. 64
64
Examples include: Absentee Shawnee Tribe of Oklahoma’s child trafficking law (AST. CRIM. LAW
CODE § 568) and Snoqualmie Tribe’s sex trafficking law (SNOQ. TRIBAL CODE § 7.21).
152
INDIAN COUNTRY JURISDICTION MATRIX
FOR INDIAN COUNTRY NOT SUBJECT TO PL 280:
Who’s involved?
Indian * Offender/
Indian Victim
Jurisdiction
Federal
State
Tribal
Indian Offender/
non-Indian Victim
Federal
State
Tribal
Applicable Law
Yes, concurrent jurisdiction if crime is an MCA listed
felony (18 U.S.C. § 1153).
None.
Yes, for all crimes (concurrent when applicable).
Yes. Concurrent jurisdiction if crime is an MCA
listed felony (18 U.S.C. § 1153). Concurrent
jurisdiction for crimes punishable under GCA/ACA
(18 U.S.C. §§ 1153, 13) only if tribe has not
punished defendant.
None.
Yes, for all crimes (concurrent when applicable).
non-Indian
Offender/
Indian Victim
Federal
State
Tribal
Yes, sole jurisdiction for crimes punishable under
GCA/ACA (18 U.S.C. §§ 1153, 13).
None.
No jurisdiction.
non-Indian
Offender/
non-Indian Victim
Federal
State
Tribal
No jurisdiction.
Yes, for all crimes.
No jurisdiction.
Victimless Crime
w/ Indian Offender
Federal
State
Tribal
Yes, jurisdiction for crimes punishable under
GCA/ACA (18 U.S.C. §§ 1153, 13) if tribe has not
punished defendant.
None.
Yes, for all crimes.
Federal
State
Tribal
No jurisdiction.
Yes, state has sole jurisdiction.
No jurisdiction.
Victimless Crime
w/ non-Indian
Offender
*
A person enrolled in any federally recognized Indian tribe or otherwise recognized as ‘Indian’ by a
government, who has some degree of Indian blood.
153
FOR INDIAN COUNTRY SUBJECT TO PL 280:
Who’s involved?
Indian Offender/
Indian Victim
Jurisdiction
State
Federal
Tribal
Indian Offender/
non-Indian Victim
State
Federal
Tribal
non-Indian
Offender/
Indian Victim
non-Indian
Offender/
non-Indian Victim
State
Federal
Yes, shares concurrent jurisdiction with tribe.
No, unless optional PL 280 or TLOA applies
(even then, only if MCA applies)
Yes, share concurrent jurisdiction with state.
(even then, only if MCA or GCA applies).
Yes, shares concurrent jurisdiction with state.
Tribal
Yes, sole jurisdiction.
(even then, only if GCA applies)
No jurisdiction unless VAWA 2013 implemented.
State
Federal
Tribal
No.
No jurisdiction.
Victimless Crime
State
w/ Indian Offender Federal
Victimless Crime
w/ non-Indian
Offender
Applicable Law
Tribal
(even then, only if GCA applies)
Yes, shares concurrent jurisdiction with state.
State
Federal
Tribal
No.
No jurisdiction.
**FEDERAL CRIMES OF GENERAL APPLICABILITY: Apply on both PL 280 and nonPL 280 reservations, by authorizing federal prosecution on grounds other than territorial
jurisdiction.
154
APPENDIX E:
Listed Interviewees
Nita Belles, Central Oregon Regional Director, Oregonians Against Trafficking
Humans (OATH)
Keith Bickford, Director, Oregon Human Trafficking Task Force (OHTTF)
Shelley Clift, ICWA Intake Specialist, Children and Family Services, Confederated
Tribes of Grand Ronde
Desiree Coyote, Program Manager, Family Violence Services, Confederated
Tribes of Umatilla Indian Reservation
Mark Creighton, Chief of Tribal Police, Burns Paiute Tribe
Candi Crume, Child Protection Service Specialist, Klamath Tribes
Camille DeLorme, Domestic & Sexual
Manager/Healing Winds, Klamath Tribes
Violence
Prevention
Program
Shirley Didier, Director of Crime Victims’ Rights Program, Oregon Department of
Justice
Pam Elton, Program Manager, Office of Victim Assistance, Federal Bureau of
Investigation
Cassandra Ferder, Commission Assistant, Legislative Commission on Indian
Services, Oregon State Legislature
Diana Fleming, Violence Against Women Act (VAWA) & Sexual Assault Service
Program (SASP) Fund Coordinator, Oregon Department of Justice
Craig Gabriel, Assistant U.S. Attorney, Indian country Crime, District of Oregon,
U.S. Attorney’s Office
Marvin Garcia, Director of Social Services, Klamath Tribes
Abby Gassama, Healing Circle Manager, Native American Youth & Family Center
(NAYA)
David Glerup, Sheriff, Harney County Sheriff’s Office
Mazie Goggles, Indian Child Welfare Act Coordinator, Burns Paiute Tribe
155
Norma Gonzalez, Bilingual Sexual Assault Services Advocate, Mid-Valley
Women’s Crisis Service
Benjamin Thomas Greer, Special Duty Attorney General, California Department of
Justice, Office of the Attorney General
Lt. Gregg Hastings, Public Information Officer, Oregon State Police
Hannah Horsley, Assistant U.S. Attorney, Chair of Oregon Foreign-born Human
Trafficking Task Force, District of Oregon, U.S. Attorney’s Office
Julie Johnson, Substance Abuse Prevention Coordinator, Burns Paiute Tribe
Scott Kerin, Assistant U.S. Attorney, Chief of Drug Unit/Fmr. Head of Gang and
Sex Trafficking Prosecution Team, District of Oregon, U.S. Attorney’s Office
Erin Kevin, Victim Support Specialist, Federal Bureau of Investigation
Chris Killmer, Program Manager, Anti-Trafficking Division, Immigration Counseling
Service
Brad Kneaper, Chief of Police, Confederated Tribes of Coos, Lower Umpqua and
Siuslaw Indians
Brent Leonhard, Attorney, Office of Legal Counsel, Confederated Tribes of
Umatilla Indian Reservation Department of Justice
Nicomi Levine, Foster Care Support Specialist/Domestic Violence Advocate,
Native American Youth & Family Center (NAYA)
Jim Littlefield, Undersheriff, Umatilla County Sheriff’s Office
Karen McGowan, Indian Child Welfare Director, Confederated Tribes of Siletz
Indians
Amanda Mercier, Tribal Foster Care Recruitment Specialist, Children and Family
Services, Confederated Tribes of Grand Ronde
Robert Miller, Professor, Lewis & Clark Law School
Robert Miller, Child Welfare Investigator, Confederated Tribes of Umatilla Indian
Reservation
156
Terrence O’Brien, Supervisory Senior Resident Agent, Federal Bureau of
Investigation
Dr. Sandi Pierce, Author of Shattered Hearts
Dan Primus, District Attorney, Umatilla County
Terry Rowan, Sheriff, Umatilla County Sheriff’s Office
Alise Sanchez, Foster Care Service Manager, Native American Youth & Family
Center (NAYA)
Tawna Sanchez, Director of Family Services, Native American Youth & Family
Center (NAYA)
Diane Schwartz-Sykes, Senior Assistant Attorney General, Oregon Department of
Justice, Civil Rights Unit
Stephanie Striffler, Senior Assistant Attorney General & Native American Affairs
Coordinator, Oregon Department of Justice
Angela Temple, Child Welfare Supervisor, Malheur County, Oregon Department of
Human Services
Bill Williams, Assistant U.S. Attorney, Chief of Criminal Division, District of Oregon,
U.S. Attorney’s Office
David Williams, Senior Police Officer, Confederated Tribes of Umatilla Indian
Reservation
Eva Williams, Domestic Violence Advocate, Native American Youth & Family
Center (NAYA)
Jeri Williams, Northwest Coalition Against Trafficking (NWCAT), Survivor Network
Coordinator Neighborhood Program Coordinator, City of Portland
Thomas Woolworth, Special Agent in Charge, Office of Justice Services, District 8,
Bureau of Indian Affairs
∗
The authors prepared the Report as students of the Willamette University College of Law
International Human Rights Clinic under the guidance and supervision of Professor Gwynne
157
Skinner. Deepest gratitude to Professor Skinner for presenting this opportunity, sharing a wealth of
knowledge in trafficking and human rights reporting, and providing endless support along the way.
Your time, direction, wisdom, and continuous encouragement were essential to the success of this
project. Acknowledgements and thanks to other Clinic interns who worked on the fact-finding or
final report and contributed valuable time and effort: Emily Apel, Christine Baker, Laura Bloom,
Joseph Elwood, Andrea Flanagan, and Michael Hicks. Special thanks and acknowledgements to:
Dr. Alexandra (Sandi) Pierce for invaluable guidance in the early stages of our research and
generously agreeing to share portions of “Shattered Hearts”, the groundbreaking work that inspired
this report; Native American Youth and Family Center (NAYA) staff for assisting us with contacts in
Native communities in the early planning stages; and Desiree Coyote and Brent Leonhard, of the
Confederated Tribes of Umatilla Indian Reservation, for contributing hours to speaking with us and
reviewing sections of the Report. Thanks to all who participated in this fact-finding, allowed
O
OO
U themselves to be interviewed, or otherwise provided valuable information.
O
158
FUNDAMENTALS OF CONTRACTING BY AND WITH
INDIAN TRIBES
Michael P. O’Connell *
I. INTRODUCTION
Indian tribes are governments whose status as distinct, self-governing
political entities predates the United States Constitution. Indian tribes do not derive
their existence or, in most respects, their authority to govern or do business from
the United States. Indian tribes, no two identical, have their own forms of
government. Most Indian tribes have laws, ordinances and regulations governing
business transactions by and with tribal entities. Commerce among Indian tribes
predated European contact.
After European contact, commerce by and with Indian tribes expanded in
many different modes according to needs and opportunities of the times. On
behalf of the Union, Article I, Section 8 of the United States Constitution delegated
to Congress the Nation’s authority, purposefully preempting state authority, to
regulate commerce with Indian tribes Laws enacted by Congress in the 1790s
regulating sales, leases and other conveyances of tribal land and trade with Indian
tribes remain substantially in effect. 1 Many treaties between the United States and
Indian tribes 2 secured and regulated trade by and with Indian tribes. 3 Federal
*
Partner, Stoel Rives LLP, Seattle, Washington; J.D., University of Denver, 1977; B.A., Brockport
State College, State University of New York, 1969. The views in this article are those of the author
and not necessarily those of Stoel Rives LLP or any of its clients. Prior to Stoel Rives, the author
served as General Counsel for the Hopi Tribe and in the Offices of Reservation Attorney for the
Confederated Tribes of the Colville Indian Reservation and for the Quinault Indian Nation. An
earlier version of this article was prepared for and included in materials for the Rocky Mountain
Mineral Law Foundation, Special Institute on Natural Resources Development on Indian Lands,
Rocky Mt. Min L. Fdn. (2011).
1
25 U.S.C. § 177; 25 U.S.C. §§ 261 – 264. See generally Thomas H. Shipps, The NonIntercourse Act and Statutory Restrictions on Tribal Resource Development and Contracting, Paper
No. 2, Rocky Mt. Min. L. Fdn. (2005).
2
Treaties ratified by the United States Senate together with the Constitution and laws enacted by
Congress are the “supreme law of the land.” U.S. CONST. art VI, § 2, cl. 2.
3
The several Stevens Treaties with Indian tribes in Washington secured to tribes continuation of
their aboriginal right to take fish at usual and accustomed fishing places, a right which included the
right to continue to engage in commerce in fishery resources. E.g., Treaty of Point Elliott, art 5,
Apr. 11, 1859; United States v. Washington, 384 F. Supp. 312, 351-252, 355, 357-358, 407-407
(W.D. Wash. 1974). The Treaty of Point Elliott also included a provision, Article 12, that tribes
159
laws, regulations, executive orders, and policies too numerous to list promote and
regulate commerce by and with Indian tribes. As recently as 2012, and twice in
2010, Congress enacted and the President signed into law amendments to the
Indian Long Term Leasing Act, a statute that authorizes and regulates surface
leases of tribal and individual Indian land. 4
While the Constitution vests national power in Congress to regulate
commerce with Indian tribes, when Indian tribes engage in business transactions
outside Indian country, Indian tribes and tribal entities are subject to state and
local laws in such matters, except to the extent that Treaties and other federal
laws limit the scope of state and local laws. 5 Non-Indians entering business
transactions with Indian tribes and Indians on Indian reservations are exposed to a
mix of federal, tribal, state and local laws. 6
Against this background, this article provides an overview of key
considerations in negotiating and drafting a contract by or with an Indian tribe,
including: tribal entity issues; federal law; tribal law; sovereign immunity,
enforceability and dispute resolution; federal and tribal approvals; land status and
agreed not to trade at Vancouver Island, then under British rule, now British Columbia, Canada.
Similar treaties were entered
with Nez Perce Tribe and Confederated Tribes of the Flathead Indian Reservation by Washington
Governor Stevens in areas then part of the Territory of Washington, now Idaho and part of
Montana respectively.
4
Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012, Pub. L. No.
112-151, 126 Stat. 1150; An Act to Amend the Act of August 9, 1955, Pub. L. No 111-334, 124
Stat. 3582; Act of August 9, 1955 to Modify a Provision Relating to Lease Involving Certain Indian
Tribes, Pub. L. No. 111-336, 124 Stat. 3587. See Michael O’Connell, HEARTH Act: Indian Tribes
Can Lease Tribal Land Without BIA Approval, 39 ENVTL. L. 20 (September 2012). Substantial
revisions to comprehensive regulations governing the leasing of tribal and individual Indian trust
lands under section 415 were adopted by the Bureau of Indian Affairs on behalf of the Secretary of
the Interior became effective in 2013. 77 C.F.R. § 72440 (2012).
5
As an example, tribal sovereign immunity secured by federal law applies to Indian tribes outside
as well as within Indian reservations. Michigan v. Bay Mills Indian Community, 134 S. Ct. 2014
(2014) (reaffirming Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998)).
6
The Federal Indian Law preemption doctrine described in White Mountain Apache Tribe v.
Bracker, 448 U.S. 136 (1980), determines when non-members on a reservation are subject to state
or local law. Montana v. United States, 450 U.S. 544 (1981), and its progeny determine when nonmembers are subject to tribal jurisdiction. Both cases were applied in Plains Commerce Bank v.
Long Family Land and Cattle Co., 554 U.S. 319 (2008).
160
title; taxation; form and duration of the transaction, including rights-of-way; water
rights; and employment issues. 7
II. TRIBAL ENTITY ISSUES
Virtually every Indian tribe does business as a governmental entity, buying
and selling goods and services and developing government-owned property and
resources. Indian tribes also engage in a variety of commercial business activities
on and outside Indian reservations. As discussed below, Indian tribes have used,
and increasingly are using, a wide range of tribal entities to engage in business
activity. Transactions may occur between tribes, between a tribe and one or more
tribal business entities, between a tribe or tribal business entity and tribal
members, and between a tribe or tribal entity and non-members, including Indians
not members of the tribe engaging in a business activity. 8 Regardless of the
permutation, it is important early in the business transaction planning stage to
determine which tribal entity, if any, will engage in the transaction. The choice of
tribal entity and the legal basis of its existence and organization under applicable
tribal, federal or state law affect a wide range of issues, including: federal and
tribal approvals;, the validity, enforceability, form and duration of the transaction
and transaction documents;, sovereign immunity and its preservation or waiver;,
courts with jurisdiction;, alternative dispute resolution;, governing law;, authority to
7
Other papers and articles providing perspectives on business transactions with Indian tribes
include: Lynn H. Slade, Indian Tribes – Business Partners and Market Participants: Strategies for
Effective Tribal / Industry Partnership, Paper No. 3B, Rocky Mt. Min (2011); Karen Atkinson,
Kathleen Nilles, Tribal Business Structure Handbook, OFFICE OF INDIAN ENERGY AND ECONOMIC
DEVELOPMENT (2008), available at http://www.irs.gov/pub/irstege/tribal_business_structure_handbook.pdf (last visited Nov. 19, 2014); EM Jensen, Taxation
and Doing Business in Indian Country, 60 ME. L. REV. 3 (2008); Gabriel S. Galanda, Anthony S.
Broadman, Deal or No Deal? Understanding Indian Country Transactions, 18 BUS. L. TODAY 11
(2008); Michael P. O’Connell, Indian Tribes and Project Development Outside Indian Reservations,
21 NAT. RESOURCES AND ENV’T 54, 58 – 59 (Winter 2007); Michael P. O’Connell, Basics of
Successful Natural Resource Development Projects in Indian Country, Paper No. 1, Rocky Mt. L.
Fdn. (2005); Vollmann, Exploration and Development Agreements on Indian Lands, 50 Rocky Mt.
Min. L. Inst. Ch. 12 (2004); Michael P. O’Connell, Business Transactions with Indian Tribes, 34
ARIZ. ATTNY. 27 (1998). While Indian gaming has significantly affected Indian reservation
economies and business structures, this articles focuses on contracting in other tribal business
venues.
8
In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1979), the
Supreme Court treated Indians not members of the governing tribe where a transaction occurred
the same as non-Indians for state-tribal jurisdictional purposes.
161
exercise, condition or waive the exercise of tribal governmental power;, 9 and
environmental reviews.
The range of tribal business entities includes:
•
The Tribe itself, a governmental entity, 10 acting through its General Council,
Tribal Council or other tribal entities exercising, as applicable, tribal
legislative and executive authority:
• Navajo Nation – Navajo Nation Council and President 11
• Hopi Tribe – Tribal Council 12
• Yakama Indian Nation – General Council of all adult tribal members
delegates certain powers to the Yakama Tribal Council
• Tulalip Tribes of Washington – Tulalip Board of Directors 13
• Confederated Tribes of the Colville Indian Reservation – Colville
Business Council14
9
Generally, the powers of Indian tribes derive from their original existence as sovereign entities.
Thus, the authority of an Indian tribe to exercise sovereign powers, such as the power to tax,
derives from the tribe’s original sovereignty, not any grant of authority from the federal government.
Absent an express federal law or treaty provision, the Supreme Court firmly rejected claims that the
exercise of tribal sovereign powers requires federal review or approval. Kerr-McGee Corp. v.
Navajo Tribe of Indians, 471 U.S. 195, 201 (1985). While some Indian tribes adopted tribal
constitutions requiring federal review of certain tribal actions as a matter or tribal law, generally at
the instance of federal officials during the early years after enactment of the Indian Reorganization
Act (IRA), 25 U.S.C. §§ 460 – 479 (1934), “such tribes are free, with the backing of the Interior
Department, to remove the requirement of Secretarial approval.” Kerr-McGee, 471 U.S. at 199.
10
As required by 25 U.S.C. § 479a-1 (1994), the Bureau of Indian Affairs (BIA) publishes a list of
federally recognized Indian tribes in the Federal Register on a more or less annual basis. See
Department of the Interior, Bureau of Indian Affairs, Indian Entities Recognized and Eligible to
Receive Services from the Bureau of Indian Affairs, 77 C.F.R. § 47868 (2012).
11
NAVAJO NATION CODE § 3; NAVAJO NATION CODE Ch. 3; NAVAJO NATION CODE Ch. 5. “The Navajo
Government has been called ‘probably the most elaborate’ among tribes. The legitimacy of the
Navajo Tribal Council, the freely elected governing body of the Navajos is beyond question“ KerrMcGee, 471 U.S. at 201 (citation omitted). References in Kerr-McGee to Navajo Tribal Council and
Navajo Tribe predate major reforms and reorganization of the Navajo Nation beginning in 1989.
The Navajo Nation did not accept the IRA, and does not have a tribal constitution
12
CONSTITUTION AND BYLAWS OF THE HOPI TRIBE (1936), available at
http://thorpe.ou.edu/IRA/hopicons.html (last visited Nov. 19, 2014). The Hopi Tribe adopted its
Constitution and Bylaws under § 16 of the IRA, 25 U.S.C. § 476. Although the original Hopi
Constitution required BIA approval of a number of Tribal Council actions, members of the Tribe
voted to approved amendments to the Constitution removing such requirements unless required by
federal law.
13
TULALIP CONSTITUTION, (Oct. 4, 2014) available at http://www.codepublishing.com/wa/tulalip/ (last
162
Quinault Indian Nation – Business Committee 15
Confederated Tribes of the Umatilla Reservation – Board of
Trustees 16
• Santa Clara Pueblo – traditional leadership 17
The Tribe acting through a department, office, agency, or commission of
the tribe:
• Navajo Nation Tax Commission 18
• Navajo Nation Environmental Protection Agency, 2 NNC § 1921.
• Tulalip Tribes Tribal Employment Rights Office 19
• Coeur D’Alene Natural Resources Department
• Osage Minerals Council 20
Unincorporated tribal enterprises, authorities and economic subdivisions
which are arms and instrumentalities of a tribe:
• Santa Ysabel Resort and Casino 21
•
•
•
•
14
CONSTITUTION AND BYLAWS OF THE COLVILLE TRIBES OF THE COLVILLE RESERVATION, available at
http://www.colvilletribes.com/media/files/P-Constitutionandbylaws.pdf (last visited Nov. 19, 2014).
15
CONSTITUTION OF THE QUINAULT INDIAN NATION (March 22, 1975), available at
http://www.quinaultindiannation.com/Quinault%20constitution.htm (last visited Nov. 19, 2014). The
BIA determined that Indians of the Quinault Reservation accepted the IRA in an election conducted
pursuant to IRA § 18, 25 U.S.C. § 478, but the Quinault Indian Nation, in the exercise of its rights to
self-determination and self-government, adopted its Constitution under tribal law, not pursuant to §
16 of the IRA. Thus, the Quinault tribal election on adoption of the Quinault Constitution and any
election on proposed amendments are not called by the Secretary of the Interior or the Secretary’s
delegates and neither the Constitution nor any amendments thereto are subject to federal approval
as is the case for tribal constitutions adopted under IRA section 16.
16
CONSTITUTION OF THE CONFEDERATED TRIBES OF THE UMATILLA RESERVATION, ART VI. (Dec. 7,
1949) available at http://thorpe.ou.edu/constitution/umatilla.html (last visited Nov. 20, 2014).
17
Santa Clara Pueblo v. Martinez, 438 U.S. 49 (1978).
18
24 NNC §§ 104(C)-(E).
19
Tulalip Tribal Code, (Oct. 4, 2014) available at http://www.codepublishing.com/wa/tulalip/ (last
20
Osage Nation v. Wind Capital Group, LLC, 2011 WL 6371384 (N.D. Okla. 2011) (stating that the
Osage Minerals Council was established as an independent agency within the Osage Nation by
Article XV of the Osage Nation Constitution).
21
The Bankruptcy Court for the Southern District of California dismissed a petition for Chapter 11
bankruptcy protection filed by the Santa Ysabel Resort and Casino based on motions filed by the
United States Trustee and Yavapai Apache Nation, the Casino’s largest creditor. Under the
Bankruptcy Code, a “person” eligible for protection does not include a “governmental unit” defined
as a “foreign or domestic government.” The Casino claimed it was an unincorporated company.
The United States Trustee and Apache Nation contended that the Casino was an unincorporated
“arm” of the Iipay Nation of the Santa Ysabel and therefore a governmental unit. In dismissing the
petition, the Bankruptcy Court agreed with the U.S. Trustee and Yavapai Apache Nation. In re
163
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Ski Apache 22
Coeur D’Alene Tribal Farm 23
Gila River Farms 24
Salt River Farming Enterprise 25
Chukchansi Economic Development Authority 26
Snow Mountain Recreational Facilities Authority 27
Warm Springs Power and Water Enterprises
Warm Springs Composite Products
Lummi Indian Seafoods Company28
The Economic Development Authority of the Tohono O’odham
Nation 29
Kalispel Economic Development Authority
Southern Ute Indian Tribe Growth Fund 30
Fort Apache Timber Company31
Navajo Tribal Utility Authority 32
Dine Power Authority 33
Navajo Engineering & Construction Authority34
Santa Ysabel Resort and Casino, No. 12-9415 (S.D. Cal. Sept. 11, 2012). Many but not all tribal
casinos operate through tribal government corporations chartered under tribal law.
22
Gaines v. Ski Apache, 8 F.3d 726 (10th Cir. 1993).
23
Donovan v. Coeur D’Alene Tribal Farm, 751 F.2d 113 (9th Cir. 1985).
24
Unique v. Gila River Pima-Maricopa, 674 P.2d 1376 (Ariz. App. 1983).
25
Discussed in Opinion of the Solicitor, M-36119 (February 12, 1952).
26
Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort, 629 F.3d 1173
(10th Cir. 2010).
27
Landmark Golf Limited Partnership v. The Las Vegas Paiute Tribe, 49 F. Supp. 2d 1169 (D. Nev.
1999).
28
North Sea Products, Ltd. v. Clipper Seafoods Company, 595 P.2d 938 (Wash. 1979) (Lummi
Indian Seafoods Company is an operating division of Lummi Indian Tribal Enterprise (LITE), an
enterprise chartered by the Lummi Indian Business Committee pursuant to Article VI of the Lummi
Constitution; LITE has sovereign immunity from a garnishment proceedings).
29
Tohono O’odham Code, Title 10, Chapter 1.
30
Floyd v. Panther Energy Co., LLC, No 10-95 (N.D. Tex. Jan. 3, 2012) (tribal council resolution
and other organizing documents established that Southern Ute Indian Tribe Growth Fund is an arm
of and indistinguishable from the Tribe).
31
White Mountain Apache Tribe v. Shelly, 480 P.2d 654 (Ariz. 1971) (Fort Apache Timber
Company is a subordinate economic organization of the White Mountain Apache Tribe, not a de
facto corporation, and enjoys the Tribe’s sovereign immunity).
32
21 NNC §§ 1 – 60(1959); Navajo Tribal Utility Authority v. Arizona Department of Revenue, 608
F.2d 1228 (9th Cir. 1979).
33
21 NNC § 201 (1959).
164
•
•
• Navajo Housing and Development Enterprise 35
• Snoqualmie Entertainment Authority
• Mt. Adams Furniture 36
• Menominee Tribal Enterprise 37
• Inn of the Mountain Gods 38
Political subdivisions of a tribe, such as villages, chapters, and districts:
• Hopi villages 39
• Kayenta Township Commission (Navajo) 40
• Navajo self-governing chapters 41
• Quil Ceda Village (Tulalip Tribes)
• Tohono O’odham Nation Districts 42
Tribal-owned entities chartered, incorporated or organized under tribal law
include:
• Tribal government corporations 43
34
Begay v. Navajo Engineering & Construction Authority, No. SC-CV-44-08 (Nav. Sup. Ct. 2011)
(ordering dismissal based on failure to comply with Navajo tribal statutory conditions on waiver of
sovereign immunity requiring notice of intent to file suit and naming Navajo Nation as a party in the
complaint).
35
Navajo Tribe v. Bank of New Mexico, 700 F.2d 1285 (10th Cir. 1983).
36
In re Greene, 980 F.2d 590 (9th Cir. 1992) (Mt. Adams Furniture is a wholly owned and managed
enterprise of the Confederated Tribes and Band of the Yakama Indian Nation), cert. denied, 510
U.S. 1039 (1994).
37
Local IV-32 International Woodworkers Union of America v. Menominee Tribal Enterprise, 595 F.
Supp. 859 (D. Minn. 1984) (holding the Menominee Indian Tribe had not waived its sovereign
immunity, the court lacked jurisdiction over the enterprise).
38
Ramey Construction Company, Inc. v. Apache Tribe of the Mescalero Reservation, 673 F.2d
315, 320 (10th Cir. 1982)
39
CONSTITUTION AND BYLAWS OF THE HOPI TRIBE (1936), available at
http://thorpe.ou.edu/IRA/hopicons.html (last visited Nov. 19, 2014); First Mesa Consolidated
Villages v. Phoenix Area Director, Bureau of Indian Affairs, 26 IBIA 18 (1994).
40
1 NNC § 552.O (1959); Kayenta Township Commission v. Ward, No. SC-CV-29-07 (Nav. Sup.
Ct. 2011).
41
Navajo Nation Local Governance Act, 26 NNC § 101 (1959).
42
CONSTITUTION OF THE TOHONO O’ODHAM NATION (March 6, 1986), available at,
http://www.narf.org/nill/Constitutions/tohono/Constitution.pdf (last visited Nov. 19, 2014).
43
Many Indian tribes have enacted tribal codes authorizing the creation and regulation of tribal
government corporations. See, for example, May 27, 2009, COLVILLE TRIBAL CODE, Tribal
Governmental Corporations Chapter, Title 7, Ch. 7-1. Since the earliest days of the United States,
and likely much earlier, corporations created by governments for governmental purposes have
been recognized as arms and instrumentalities of the government, in accordance with the
applicable laws, corporate charters, and articles of incorporation. Thus, in M’Culloch v.Maryland, 17
U.S. 316 (1819), Chief Justice Marshall, on behalf of a unanimous Supreme Court, held that
Congress, within its power through the “necessary and proper” clause “for the carrying into
165
•
•
•
Colville Tribal Enterprise Corporation 44
Colville Tribal Services Corporation 45
Coquille Economic Development Corporation 46
execution” the enumerated powers granted to Congress in the Constitution, incorporated the
Second Bank of the United States as an “instrument, as a means to effect the legitimate objects of
government.” Maryland, 17 U.S. at 423. The bank so created, served “a useful, and essential
instrument in the prosecution of [the] fiscal operations” of the government of the United States. Id.
at 422.
The law of government corporations is well established, though not as well known as the law
applicable to private sector corporations. As to federal government corporations, See the
Government Corporations Control Act, 31 U.S.C. § 9101 (2007). Sometimes known as “public
corporations,” Alaska Survival v. Surface Transportation Board, 705 F.3d 1073 (9th Cir. 2013) (the
Alaska Railroad Corporation is a “public corporation partially owned by the State of Alaska”),
government corporations are to be distinguished from “publicly-held corporations” and “public
service corporations.” 1 W ILLIAM MEADE FLETCHER ET. AL., FLETCHER CYCLOPEDIA OF THE LAW OF
CORPORATIONS §§ 57 – 62 (2006). “Federal or government corporations are a type of public
corporation that refers to corporations incorporated by or under an act of Congress, such as banks,
railroads, and various insurance or relief corporations. These corporations are created to address
the needs of the public, usually while remaining financially independent.” 1 W ILLIAM MEADE
FLETCHER ET. AL., FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS 69.10 at 2-3 (2006). A
recent example is the Presido Trust established by section 103 of the Presido Trust Act, 16 U.S.C.
§ 460bb (1996), to manage the Presido within Golden Gate National Recreation Area, discussed in
Presido Historical Association v Presido Trust, 2013 U.S. Dist. Lexis 78523 (N.D. Cal. 2013).
“There is no comprehensive descriptive definition of or criteria for government corporations.
However, President Truman, in his 1948 budget address, outlined some characteristics of
governmental corporations . . . . According to this formulation, government corporations: (1) are
predominantly of a business nature; (2) produce revenue and are potentially self-sustaining; (3)
involve a large number of business-type transactions with the public; and (4) require a greater
flexibility than the customary type of appropriations budget ordinarily permits.” Id. at 3. See also
United States General Accounting Office, Government Corporations, Profiles of Existing
Government Corporations, United States General Accounting Office (Dec. 1995) available at
http://www.gao.gov/assets/230/222015.pdf (last visited Nov. 20, 2014). Government corporations,
like the Second Bank of the United States and the Alaska Railroad Corporation, have mixed private
and government ownership. Government corporations that are wholly-owned by the government
“experience greater government control since they are viewed more as agencies within the
executive branch, while mixed-ownership are closer to the status of private entities and thus
experience less governmental control.” Id. Tribal government corporations carrying out tribal
government programs or activities are to be distinguished from business corporations and other
private business entities owned by tribes and others simply as business investments.
44
CONSTITUTION AND BYLAWS OF THE COLVILLE TRIBES OF THE COLVILLE RESERVATION,
http://www.colvilletribes.com/media/files/P-Constitutionandbylaws.pdf (last visited Nov. 19, 2014);
Stock West v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir. 1989);
Wright v. Colville Tribal Enterprise Corporation, 147 P.3d 1275 (Wash. 2006).
45
The opinion in Wright, supra, describes the Colville Tribal Services Corporation as a whollyowned tribal government corporation subsidiary of Colville Tribal Enterprise Corporation.
46
Chance v. Coquille Indian Tribe, 963 P.2d 638 (Or. 1998) (Coquille Economic Development
Corporation).
166
•
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•
•
•
•
•
•
•
•
Cabazon Bingo, Inc. 47
Nooksack Business Corporation 48
Kewa Gas Limited (Santo Domingo Pueblo) 49
Seneca Gaming Corporation
Sun Valley Marina Corporation (Gila River Indian
Community) 50
Marine View Ventures, Inc. (Puyallup Tribe of Indians)
‘Sa’ Nyu Wa (Hualapai Indian Tribe)51
Lake of Torches Economic Development Corporation 52
Cherokee Nation Business, Inc. 53
Oneida Seven Generations Corp. 54
47
Trudgeon v. Fantasy Springs Casino, 71 Cal. App. 4th 632, 84 Cal. Rptr. 2d 65, (1999). The
California Court of Appeals held that whether tribal immunity extends to a tribal business depends
on the degree to which the tribe and the entity are related in terms of factors such as purpose and
organizational structure. Noting that courts have applied different factors in deciding whether tribal
sovereign immunity applies to tribal business, the Trudgeon court cited factors applied in Galve v.
Little Six, Inc., 555 N.W.2d 284 (Minn. 1996): whether the business entity is organized for a
purpose that is governmental in nature rather than commercial; whether the tribe and the business
entity are closely linked in governing structure and other characteristics; and whether federal
policies intended to promote Indian tribal autonomy are furthered by extension of the immunity to
the tribal business entity. Applying these factors, the Trudgeon court noted that Cabazon Bingo,
Inc. was created for the specific purpose of improving the financial and general welfare of the tribe,
and that Indian gaming encouraged by the Indian Gaming Regulatory Act, 25 U.S.C. § 2701
(1988), governing Indian gaming on Indian reservations, establishes gaming conducted by and
through Cabazon Bingo, Inc. as fundamentally governmental in nature, thereby satisfying the first
criteria. The court found the second and third factors also supported its conclusion that Cabazon
Bingo, Inc. has the Cabazon Band’s sovereign immunity.
48
Outsource Services Management LLC v. Nooksack Business Corporation, 333 P.3d 380, 2014
WL 4108073 (Wash. 2014).
49
Quantum Entertainment Limited v. U.S. Department of the Interior, 714 F.3d 1338 (D.C. Cir.
2013), cert. denied, 134 S. Ct. 1787 (20140.
50
Gila River Indian Community v. Waddell, 91 F.3d 1232 (9th Cir. 1996).
51
Discussed in Grand Canyon Sky Walk Development LLC v. ‘Sa’ Nyu Wa, Inc., 715 F.3d 1196
(9th Cir. 2013) (requiring exhaustion of tribal remedies before consideration of a challenge to the
Hualapai Indian Tribe’s authority to condemn property), cert. denied, 134 S. C.t. 825 (Dec. 16,
2013), and Grand Canyon Sky Walk Development LLC v. ‘Sa’ Nyu Wa, Inc., 923 F. Supp. 2d 1186
(D. Ariz. 2013) (enforcing arbitrators award against tribal government corporation ‘Sa’ Nyu Wa,
Inc.; tribal entity subsequently filed for bankruptcy protection). Other Hualapai tribally-owned
corporations include Grand Canyon West and Grand Canyon Resort Corporation.
52
Wells Fargo Bank v. Lake of the Torches Economic Development Corporation, 667 F. Supp. 2d
1056, 1061 (W.D. Wis. 2010), aff’d, 658 F.3d 684 (7th Cir. 2011); Saybrook Tax Exempt Investors,
LLC v. Lake of Torches Economic Development Corporation, 2013 U.S. Dist. 32909 (W.D. Wis.
2013).
53
Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144 (10th Cir. 2012) (Cherokee
Nation Business, Inc., wholly owned and regulated by the Cherokee Nation was incorporated under
Cherokee Nation Legislative Act 37-05)
167
Dine Development Corporation 55
Sioux Manufacturing Corporation 56
Lone Butte Development Corporation (Gila River Indian
Community) 57
For Profit Business corporations:
• Colville Tribal Law & Order Code, Title 7, Chapter 7-3 Tribal
[Business] Corporations, Colville Tribal Corporations Chapter
(ordinance is not limited to tribally-owned for-profit business
corporations) 58
• Navajo Nation Corporation Code, 5 NNC Chapter 19;
“’Corporation’ or ‘domestic corporation’ means a for profit or
non-profit corporation subject to the provisions of this Chapter,
except foreign corporations.” 5 NNC § 3102.E.
• BJK Solutions, Inc. 59
Nonprofit corporations, including tribal housing authorities, health
agencies, schools and colleges:
• Oglala Sioux Housing Authority 60
• Blackfeet Housing Authority 61
• Modoc Indian Health Project 62
• Tuba City Regional Healthcare Corporation 63
•
•
•
•
•
54
Kroner v. Oneida Seven Generations Corp, 819 NW.2d 264 (Wis. 2012).
Navajo Nation Council Resolution, CJY 34-04 (2004).
56
Altheimer & Gray v. Sioux Manufacturing Corp., 983 F.2d 803, 810 (7th Cir. 1993).
57
Other examples include Stillaguamish Tribal Enterprise Corporation; See Stillaguamish Tribal
Enterprise Corporation v. Pilchuck Group II, L.L.C., C-2-11-00387 (W.D. Wash. 2011).
58
An example of a business corporation chartered under tribal law not owned by an Indian tribe is
First American Petroleum, owned by Robert Ramsey, a member of the Confederated Tribes and
Bands of the Yakama Nation, formed and licensed under the laws of the Yakama Nation. Salton
Sea Venture, Inc. v. Ramsey, 2011 U.S. Dist Lexis 120145 (S.D. Cal. 2011). See also Phillip
Morris USA, Inc. v. King Mt. Tobacco Company, 569 F.3d 932, 935 (9th Cir. 2009) (King Mountain
Tobacco Company, owned by Yakama Tribal Members Delbert Wheeler and Richard “Kip”
Ramsey, was formed and licensed under the laws of the Yakama Nation).
59
Iowa Tribe of Oklahoma acting through its Business Committee, the political governing body of
the Tribe, established this entity under the Tribe’s Constitution and Corporation Act. The entity
formerly was a division of the Tribe. United States for the Use of Morgan Buildings & Spa, Inc. v.
Iowa Tribe of Oklahoma, 2011 U.S. Dist. LEXIS 7840 (WD. Okla. 2011).
60
Weeks Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1996).
61
Marceau v. Blackfeet Housing Authority, 455 F.3d 974 (9th Cir. 2006).
62
Pink v. Modoc Indian Health Project, 157 F.3d 1185 (9th Cir. 1998).
63
Vulgamore v. Tuba City Regional Healthcare Corporation, 2011 U.S. Dist. Lexis 89647 (D. Ariz.
2011) (organized under 5 NNC §§ 3301 – 3332 (2005) board of directors composed of
55
168
Lummi Tribal Schools (K-12) 64
Dine College 65
Navajo Technical University (also known as Crownpoint
Institute of Technology) 66
• Tohono O’odham Community College 67
• Northwest Indian College (originally chartered as the Lummi
Indian Community College by the Lummi Indian Business
Council)
• Sisseton-Wahpteon Community College 68
• Salish Kootenai College 69
• College of Menominee Nation
• Navajo Nation Non-Profit Corporation Act, 5 NNC Subchapter
3, §§ 3301 – 3332
• Navajo Agricultural Cooperative Act, 5 NNC Subchapter 4, §§
3401 - 3425
• Colville Tribal Law & Order Code, Title 7, Chapter 7-2
Nonprofit Corporations, Colville Tribal Nonprofit Corporations
Chapter
Limited liability companies:
• Navajo Transitional Energy Company LLC, established by the
Navajo Nation to assume control of the Navajo Mine from
BHP to supply coal to the Four Corners Power Plant operated
•
•
•
•
representatives of 8 Navajo Nation political subdivisions, representatives of Hopi village of
Moenkopi, and the San Juan Southern Paiute Tribe).
64
Office of Native Education, OFFICE OF SUPERINTENDENT OF PUBLIC INSTRUCTION,
www.k12.wa.us/IndianEd/TribalSchools.aspx. (last visited Nov. 19, 2014). (For a list of tribal
schools in Washington, See Washington State, Office of Superintendent of Instruction)
65
About Dine College, Dine College (2014), http://www.dinecollege.edu/about/about.php (last
visited Nov. 20, 2014).
66
History, NAVAJO TECHNICAL UNIVERSITY (2014),
http://www.navajotech.edu/index.php?option=com_content&view=article&id=311&Itemid=292 (last
67
Tohono O’odham Nation Code, TOHONO O’ODHAM LEGISLATIVE BRANCH, available at
http://www.tolc-nsn.org/tocode.htm (last visited Nov. 19, 2014).
68
Hagen v. Sisseton-Wahpteon Community College, 205 F.3d 1040 (8th Cir. 2000).
69
Smith v. Salish and Kootenai College, 434 F.3d 1127 (9th Cir.), cert. denied, 547 U.S. 1207
(2006) (incorporated under tribal law in 1977 and state law a year later); Tribal Colleges and
Universities, U.S. DEPARTMENT OF EDUCATION, available at
http://www.ed.gov/edblogs/whiaiane/tribes-tcus/tribal-colleges-and-universities/ (last visited Nov.
19, 2014).
169
•
•
by Arizona Public Service Company, following announcement
of plans to retire Units 1 - 3 out of 5 units at the power plant
• Navajo Nation Limited Liability Company Act, 21 NNC § 3600,
amended by Navajo Nation Council Resolution CAP-21-10
(2010) to provide that any limited liability company organized
under that Act and wholly owned by the Navajo Nation
“continues to be protected by sovereign immunity”
• Apsaalooke Tribal Leasing Company, LLC, established by the
Crow Tribal Legislature in 2007 to manage tribal leased land
• Apsaalooke Limited Liability Company Act, Crow Law and
Order Code, Title 18 (2007), including in Part 11 provisions for
limited liability companies controlled by the Crow Tribe,
amended in 2009 to authorize limited liability companies
established for charitable and educational purposes
• Warm Springs Tribal Code, Chapter 701, Limited Liability
Companies
• Ho-Chunk Nation Code, Title 5 – Business and Finance Code,
Section 3, Limited Liability Company Act, Article I, Section
8(e) provides that if the Ho-Chunk Nation is the sole member
of an LLC established under the Act that the LLC shall have
the sovereign immunity of the Ho-Chunk Nation
• Delaware Nation Economic Development Authority LLC,
Delaware Nation Limited Liability Company Act (enacted
2009)
Partnerships:
• Navajo Nation Uniform Partnership Act, 23 NNC § 3800
• Navajo Nation Limited Liability Partnerships, 25 NNC § 4100
• Gila River Cellular General Partnership (25% owned by Gila
River Telecommunications, Inc.)
Tribal utilities:
• Yakama Power 70
• Aha Macav Power Service (Fort Mojave)
• Navajo Tribal Utility Authority 71
70
About Us, YAKAMA POWER, available at http://www.yakamapower.com/about.php (last visited
Nov. 19, 2014).
71
About Us, NAVAJO TRIBAL UTILITY AUTHORITY (2010), available at
http://www.ntua.com/aboutus.html (last visited Nov. 20).
170
Dine Power Authority 72
San Carlos Apache Telecommunications Utility, Inc.
Chickasaw Tribal Utility Authority
Tohono O’odham Utility Authority (formerly Papago Tribal
Utility Authority) 73
• Gila River Indian Community Utility Authority
• Gila River Telecommunications, Inc.
Tribal-owned, federally chartered section 17 corporations 74 and Oklahoma
Indian Welfare Act corporations: 75
• Colville Tribal Federal Corporation 76
• Navajo Nation Oil and Gas Company77
•
•
•
•
•
72
Tribal Enterprises on the Navajo Nation, NAVAJO NATION (2004), available at
http://www.navajobusiness.com/tribalDevelopment/TribalEnterprises.htm (last visited Nov. 20,
2014).
73
Tohono O’odham Nation Code, Title 24, Chapter 1.
74
25 U.S.C. § 477 (1934). Tribal corporations chartered under section 17 of the IRA quite often
have names similar to the federally recognized Indian, which owns the corporation. Due diligence is
necessary to determine whether action in any such case is by the section 17 corporation or the
federally recognized Indian tribe which owns the corporation. See Parker Drilling Company v.
Metlakatla Indian Community, 451 F. Supp. 1127, 1131 (D. Alaska 1978) (distinguishing between
Metlakatla Indian Community of the Annette Island Reserve, a tribal government entity with a
constitution adopted under section 16 of the IRA, and Metlakatla Indian Community, a corporation
owned by the tribal government and chartered by the Secretary of the interior under section 17 of
the IRA); Atkinson v. Haldane, 569 P.2d 151, 170 - 175 (Alaska 1977) (same entities); Kenai Oil
and Gas, Inc. v. Department of the Interior, 522 F. Supp. 521 (D. Utah 1981) (noting difficulty in
determining whether oil and gas mining leases had been entered by Ute Indian Tribe of the Uintah
and Ouray Indian Reservation organized under section 16 of the IRA or The Ute Indian Tribe, a
section 17 corporation formed to further the economic development of the Ute Indian Tribe).
Although a number of section 17 corporations have been inactive due in part to the initial 10 year
limit on leases such corporations could approve, IRA section 17 provides that the charters of such
corporations cannot be revoked or surrendered except by an Act of Congress. Thus, such
corporations could be revitalized to play an active role in a wide range of business matters.
Moreover, while the original version of section 17 limited the term leases that could be issued by
such corporations to 10 years, Congress amended section 17 in 1990 to increase the term up to 25
years, and removed the restriction limiting such corporations to those Indian tribes, which accepted
the IRA. Charters containing 10 year lease term restrictions and other restrictions not now required
by federal law can be amended by appropriate tribal action and approval by the Secretary. A
number of IRA section 17 corporation charters and IRA tribal constitutions issued or adopted
between the mid-1930s and 1960. As useful as it is, many of the section 17 corporation charters
and IRA tribal constitutions posted at this site have been amended in ways not shown in these
documents, are in process of being amended or may be amended in the future in significant ways.
In addition, the Secretary issued many section 17 corporation charters after 1960 and many Indian
tribes adopted tribal constitutions and other fundamental organic documents after 1960.
75
25 U.S.C. § 503 (1936).
76
Grondal v. United States, 2012 U.S. Dist. Lexis 19398 at *18 (E.D. Wash. 2012).
171
Amerind Risk Management Corporation 78
Seminole Tribe of Florida, Inc. 79
Mescalero Apache Tribe, Inc. 80
Energy Keepers, Inc. (Confederated Tribes of the Salish and
Kootenai Tribes of the Flathead Indian Reservation)
• Tulalip Tribal Federal Corporation
• Metlakatla Indian Community81
• Santa Ana Golf Club, Inc. (Santa Ana Pueblo) 82
• Leaning Rock Water Corporation (Cuypaipe Band of Diegueno
Mission Indians)
• Chickasaw Nation Industries 83
• Blue Lake Rancheria Economic Development Corporation 84
• Twenty-Nine Palms Enterprise Corporation 85
Tribal-owned entities chartered, incorporated or organized under state law:
• For profit business corporations
• Tribal Farms, Inc. (Arizona corporation, owned by Fort Mojave
Tribe)86
•
•
•
•
•
77
Nav. Nat. Oil and Gas Company Board of Directors Resolution, No. 159 (2011) (describing
Navajo Nation Oil and Gas Company as a wholly owned corporation of the Navajo Nation
organized under section 17 of the IRA, as amended).
78
Amerind Risk Management Corporation v. Malaterre, 633 F.3d 680 (8th Cir. 2011), cert. denied,
132 S. Ct. 1094 (2012).
79
Maryland Casualty Co. v. Citizens Bank of West Hollywood, 361 F.2d 517 (5th Cir. 1966).
80
315, 320 (10th Cir. 1982).
81
Parker Drilling Company v. Metlakatla Indian Community, 451 F. Supp. 1127, 1131 (D. Alaska
1978); Atkinson v. Haldane, 569 P.2d 151, 170 - 175 (Alaska 1977).
82
Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548 (N.M. App. 2004).
83
Memphis Biofuels v. Chickasaw Nation Industries, 585 F.3d 917 (10th Cir. 2009); Bales v.
Chickasaw Nation Industries, 606 F. Supp. 2d 1299 (D.N.M. 2010). Other tribal corporations
established pursuant to the Oklahoma Welfare Act include Seneca-Cayuga Tribal Corporation,
Breakthrough Management Corporation v. Chukchansi Gold Casino and Resort, 629 F.3d 1173
(10th Cir. 2010).
84
Admiral Insurance Company v. Blue Lake Rancheria Tribal Court, 2012 U.S. Dist. Lexis 48595
(N.D. Cal. 2012) (Mainstay Business Solutions operated as a division of the section 17
corporation).
85
Twenty-Nine Palms Enterprise Corporation v. Bardos, 210 Cal. App. 4th 1435, 149 Cal. Rptr. 3d
52, 2012 Cal. App. Lexis 1173 (2012).
86
Inecon Agricorporation, Inc. v. Tribal Farms Inc., 656 F.2d 498 (9th Cir. 1981) (determined Tribal
Farms, Inc. is not the Fort Mojave Tribe for purposes of 25 U.S.C. § 81).
172
Eagle Bank, S & K Bankcorp (chartered by Montana, owned
by the Confederated Salish and Kootenai Tribes)
• Uniband, Inc. (chartered under Delaware law, owned by Turtle
Mountain Band of Chippewa Indians) 87
Non-profit corporations:
• Council for Energy Resource Tribes88
• Modoc Indian Health Project 89
• Great Plains Chairmen’s Health Board 90
• Salish Kootenai College 91
• Ramah Navajo School Board, Inc. 92
• Marty Indian School, Inc. 93
• Little Wound School Board, Inc. 94
• Sicangu Oyote, Inc. 95
• St. Regis Mohawk Education and Community Fund, Inc. 96
•
•
87
Uniband, Inc. v. Commissioner of Internal Revenue, 140 Tax Ct. No. 13, 2013 WL 2247986 (U.S.
Tax Court 2013).
88
Dille v. Council for Energy Resource Tribes, 801 F.2d 373 (10th Cir. 1986) (consortium of energy
resource tribes treated as Indian tribe exempt from regulation as an employer under Title VII of the
1964 Civil Rights Act).
89
Pink v. Modoc Indian Health Project, 157 F.3d 1185 (9th Cir. 1998) (nonprofit corporation
established by and serving “as an arm of sovereign tribes” for charitable, educational, and scientific
purposes, specifically delivery of services pursuant to the Indian Self-Determination Act to provide
health services to tribal members, treated as a tribe).
90
J.L. Ward Assocs. v. Great Plains Chairmen’s Health Board, 842 F. Supp. 2d 1163 (D.S.D.
2012).
91
(2006) (incorporated under tribal law in 1977 and state law a year later).
92
Ramah Navajo School Board, Inc. v. Bureau of Revenue, 625 P.2d 1225, 1226 (NM 1980), rev’d
on other grounds, 458 U.S. 832 (1982).
93
Marty Indian School, Inc. v. South Dakota, 592 F. Supp. 1236 (D.S.D. 1984) (nonprofit
corporation formed by Yankton Sioux Tribe, operated exclusively by tribal members for Indian
students exempt from South Dakota fuel tax for fuel purchased by and stored on school premises),
aff’d, 824 F.2d 684 (8th Cir. 1987).
94
Giedosh v. Little Wound School Board, Inc., 995 F. Supp. 1052 (D.S.D. 1997) (Indian school
board organized as a nonprofit corporation under South Dakota law treated as an Indian tribe
employer exempt from regulation under Title VII of the 1964 Civil Rights Act and Americans with
Disabilities Act).
95
Sage v. Sicangu Oyote, Inc., 473 N.W.2d 480 (S.D. 1991).
96
Ransom v. St. Regis Mohawk Education and Community Fund, Inc., 658 NE 2d 989 (NY 1995)
(nonprofit corporation established by St. Regis Mohawk Tribe to carry out tribal education programs
under District of Columbia nonprofit corporation act which provides that corporations held to have
tribal sovereign immunity despite provision act’s provision that nonprofit corporations so organized
have the power to sue and be sued because corporation’ did not expressly waive tribal sovereign
173
•
•
Limited liability companies:
• First Nation LLC (Delaware LLC, 51% owned by Tunica-Biloxi
Tribe of Louisiana) 97
• Ute Energy LLC (Delaware LLC)
• CTGW LLC (Delaware LLC, 51% owned by Confederated
Tribes of the Chehalis Indian Reservation)98
• Panther Energy Co., LLC (Southern Ute Indian Tribe Growth
Fund, an arm of the Southern Ute Indian Tribe, was
controlling member of the company) 99
• U.S. Grant Hotel Ventures, LLC100
• CND, LLC 101
Limited liability partnerships:
immunity and corporation’s qualifications to do business in New York likewise did not expressly
waive the corporation’s sovereign immunity).
97
Warburton/Buttner v. Superior Court, 103 Cal. App.4th 1170, 1174-1175, 127 Cal. Rptr.2d 706
(Cal. App. 2002).
98
Confederated Tribes of the Chehalis Indian Reservation v. Thurston County Board of
Equalization, 2010 U.S. Dist. Lexis 33129 (W.D. Wash. 2010), reversed, 724 F.3d 1153 (9th Cir.
2013), and CTGW, LLC v. GSBS, PC, 2010 U.S. Dist. Lexis 69298 (W.D. Wis. 2010) (same limited
liability company).
99
Floyd v. Panther Energy Co., LLC, No. 10-95 (N.D. Tex. Jan. 3, 2012).
100
U.S. Grant Hotel Ventures, LLC, a California limited liability company, is wholly-owned by its
sole member, Sycuan Investors-U.S. Grant, LLC, a California limited liability company, whollyowned by its sole member American Property Investors-U.S. Grant, LLC, a California limited
liability company, wholly-owned by its sole member Sycuan Tribal Development Corporation
(STDC), a corporation chartered under tribal law of the Sycuan Band of the Kumeyaay Nation, a
federally recognized Indian tribe, whose shareholders are members of enrolled members of the
Nation. The articles of incorporation of STDC state that its overall purpose is to “enhancement of
the welfare of the [Sycuan] through the acquisition and development of real and personal property,
investment of funds and all other lawful activities appropriate to such purposes.” In American
Property Management Corporation v. The Superior Court of San Diego County, Respondent, U.S.
Grant Hotel Ventures, LLC, Real Party in Interest, 141 Cal. Reptr.3d 802, 2012 (Cal App. 4 Dist
2012), the California Court of Appeal rejected claims that U.S. Grant Hotel Ventures, LLC is an arm
of the Sycuan Nation protected by the Nation’s sovereign immunity against cross-claims asserted
against U.S. Grant Hotel Ventures, LLC in a suit initiated in California Superior Court by U.S. Grant
Hotel Ventures, LLC regarding a hotel management agreement for a hotel acquired by the Sycuan
Nation in downtown San Diego, California, outside the Sycuan Nation’ s Reservation or any land
held in trust for the Sycuan Nation. In reaching this conclusion, the California Court of Appeals
applied a multi-factor analysis, relying extensively on Breakthrough Management Group, Inc. v.
Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010).
101
Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144 (10th Cir. 2012) (CND, LLC,
formed under Oklahoma Limited Liability Act, does not have tribal sovereign immunity though
wholly owned by and Cherokee Nation Distributors, Inc.).
174
Schiavi Homes (Penobscot Tribe and Palmer Management
Corporation formed “Schiavi Homes,” a Maine limited
partnership) 102
• Banks:
• Native American Bank, NA (chartered by the Comptroller of
the Currency, U.S. Department of the Treasury, owned by The
Native American Bancorpation, Co, subject to regulation by
the Federal Reserve Bank) 103
• Eagle Bank (chartered by the State of Montana, owned by the
Confederated Tribes of the Salish and Kootenai through S & K
Bancorp)
• Peoples Bank of Seneca, Missouri (owned by the Eastern
Shawnee of Oklahoma)
• Bank2 (owned by the Chickasaw Banc Holding Company,
wholly owned by the Chickasaw Nation)
Special purpose entities:
• Formed for a specific transaction
• Navajo Transitional Energy Company, LLC 104
• Formed by or serving two or more Indian tribes:
• Council for Energy Resource Tribes105
• Modoc Indian Health Project, Inc. 106
•
•
102
Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d 538 (1st Cir. 1997).
The Native American Bank, NA was established in 2001 by 20 Indian tribes and Alaska Native
Corporations. As of 2011, the bank was made up of 26 Indian tribes, tribal enterprises and Alaska
Native Corporations, according to its web site. The Native American Community Development
Corporation is an affiliate of the Native American Bank, NA. See A Guide to Tribal Ownership of a
National Bank, Comptroller’s Licensing Manual, Office of the Comptroller of the Currency (2002),
available at http://www.occ.gov/topics/community-affairs/resource-directories/nativeamerican/tribalp.pdf (last visited Nov. 19, 2014).
104
The Navajo Transitional Energy Company, LLC is a wholly owned limited liability company of
the Navajo Nation authorized to purchase and operate the BHP Navajo Mine. See NAVAJO
TRANSITIONAL ENERGY COMPANY LLC, available at http://www.navajo-tec.com (last visited October
12, 2014).
105
Dille v. Council for Energy Resource Tribes, 801 F.2d 373 (10th Cir. 1986) (council of energy
resource tribes treated a tribe; definition of an employer subject to Title VII of the 1964 Civil Rights
Act excludes Indian tribes, 42 U.S.C. § 2000e(b)(1)).
106
Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir. 1998) (nonprofit corporation
established by and serving “as an arm of sovereign tribes” for charitable, educational, and scientific
purposes, specifically delivery of services pursuant to the Indian Self-Determination Act to provide
health services to tribal members, treated as a tribe; definition of an employer subject to Title VII of
the 1964 Civil Rights Act excludes Indian tribes, 42 U.S.C. § 2000e(b)(1)).
103
175
•
•
•
•
•
•
•
•
Intertribal Council of Nevada, Inc. 107
Columbia River Intertribal Fish Commission
Northwest Indian Fisheries Commission
National Tribal Environmental Council (incorporated in the
District of Columbia)
Great Lakes Intertribal Fish and Wildlife Commission 108
Alabama Intertribal Council Title IV 109
Great Plains Tribal Chairmen’s Health Board 110
Tuba City Regional Healthcare Corporation 111
107
Carsten v. Inter-Tribal Counsel of Nevada, 2013 WL 4736709 (D. Nev. 2013).
Reich v. Great Lakes Indian Fish Commission, 4 F.3d. 490 (7th Cir. 1993).
109
Taylor v. Ala. Intertribal Council Title IV, 261 F.3d 1032 (11th Cir. 2001) (suit against entity
barred by sovereign immunity of the intertribal consortium organized to promote business
opportunities for and between tribes).
110
J.L. Ward Assocs. v. Great Plains Chairmen’s Health Board, 842 F. Supp. 2d 1163 (D.S.D.
2012). The Great Plains Chairmen’s Health Board was incorporated as a non-profit corporation by
16 federally recognized tribes under South Dakota law to provide the Indian people of the Great
Plains area with a single entity to communicate and participate with the Indian Health Service and
other federal agencies on health matters. After reviewing a number of cases, the court concluded
that there was no specific test or list of factors for courts to consider in determining whether an
organization is entitled to tribal sovereign immunity. Nevertheless, the court concluded that courts
have applied “variations” of a “subordinate economic entity” analysis. Like the Tenth Circuit in
Breakthrough Management v. Chuckchansi Gold Casino Resort, 629 F.3d (2010), the South
Dakota District Court rejected the Alaska Supreme Court’s single factor test which asked whether
the financial impact of a judgment against an entity created by more than one tribe would reach the
assets of any of the tribes as a real party in interest. See Runyon ex rel. B.R. v. AVCP, 84 P.3d
437 (Alaska 2004). Breakthrough applied a six-factor test. These include: the entity’s method of
creation; the entity’s purpose; the entity’s structure, ownership, and management, including level of
control the tribes exercise over the entity; whether the tribes intended to extend sovereign immunity
to the entity; the financial relationship between the entity and the tribe; and whether the purposes of
tribal sovereign immunity are served by granting immunity to the entity. This list, the Tenth Circuit
cautioned, is not exhaustive listing and may not be sufficient in every case “for addressing the
tribal-immunity question related to subordinate economic entities.” 629 F.3d at 1187 n. 10, quoted
in Ward at page 11 n. 10. Although the first two factors weighed against Great Plains Chairmen’s
Health Board, incorporation under state law and a judgment against the Board likely would not
directly affect any tribe’s financial resources, the South Dakota district court concluded the
remaining factors established that Great Plains Tribal Chairmen’s Health Board is the sort of entity
entitled to tribal sovereign immunity. In Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d
1144, 1149 n.3 (10th Cir. 2012), the Tenth Circuit noted its disagreement with an out-of-Circuit
South Dakota District Court’s holding, but did not discuss the tribal government focus of the health
board at issue in J.L. Ward Assocs.
111
Vulgamore v. Tuba City Regional Healthcare Corporation, 2011 U.S. Dist. Lexis 89647 (D. Ariz.
2011) (organized under NNC §§ 3301 – 3332, corporation had tribal sovereign immunity, board of
directors composed of representatives of 8 Navajo Nation political subdivisions, representatives of
Hopi village of Moenkopi, and the San Juan Southern Paiute Tribe).
108
176
•
Kumeyaay Cultural Repatriation Committee (consortium of 12
Kumeyaay tribal governments) 112
Due care should be taken, appropriate to the transaction scale and risk
tolerance of all concerned parties, to determine which tribal entity is proposing to
enter a transaction, including whether another tribal entity is available and
preferable, given its legal characteristics and the transactional goals of the parties,
who has authority to take action on behalf of the tribal entity, and any limitations on
transactions the tribal entity may take Tribal law, including a tribe’s constitution,
typically provides who may take actions and how those actions may be taken so
that they are binding upon and enforceable against a tribe or tribal entity. By way
of examples, a tribe’s constitution may provide that agreements and leases of
tribal land must be authorized by a specific body of a tribe, such as its General
Council or Tribal Council, limit the number of years or purposes for which tribal
land may be developed or leased, or provide that tribal land cannot be leased until
tribal members first are given an opportunity to use it. 113
Organizational documents of a tribal entity, such as a tribal council
resolution, articles of incorporation, plan of operations and tribal law for entities
established pursuant to tribal law, state law for tribal entities established pursuant
to state law, and a charter issued by the Secretary of the Interior for tribal
corporations established pursuant to section 17 of the IRA also typically provide
who and how actions may be taken that are binding upon and enforceable against
a tribal entity. Like the tribe itself, a tribal entity’s organizational documents or law
governing the establishment of a tribal entity may restrict the terms and types of
transactions the entity is authorized to take. As a matter of federal law, for
example, a section 17 corporation may not lease tribal land for more than 25
years, but some section 17 corporate charters limit the number of years such
entities are authorized to lease the land to 10 years or less and impose other
restrictions on the authority of such corporations. 114
112
White v. The University of California, Order Granting Kumeyaay Cultural Repatriation
Committee Motion to Dismiss and the University of California Motion to Dismiss, C12-1978 (N.D.
Cal. Oct. 10, 2012), appeal pending.
113
E.g., CONST. AND BYLAWS OF THE UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Art
VI, Sec. 1(c) restricts most surface leases of tribal land to a period not exceeding five years.
114
E.g., CORP. CHARTER OF THE PYRAMID LAKE PAIUTE TRIBE OF THE PYRAMID LAKE INDIAN
RESERVATION, Sec. 5(a)(2) limits leases to 5 years. An amendment to the charter to expand the
corporation’s leasing authority to the limit authorized by 25 U.S.C. § 477 (1935), currently 25 years,
177
III. FEDERAL LAW
Federal law should always be considered in determining what and how
actions may be taken and who may take actions that are binding upon and
enforceable against a tribe or a tribal entity or the United States in its capacity as
fiduciary on behalf of Indian tribes or as owner of the fee to tribal trust land.
Sources of federal law affecting Indian tribes and those engaged in transactions
with Indian tribes and tribal entities derive from the United States Constitution,
including the Indian Commerce Clause, the Treaty Clause, the Property Clause,
and the War Power Clause. Under the Supremacy Clause of the United States
Constitution, laws enacted by Congress and treaties made pursuant to these
authorities are the “supreme law of the land.” 115
Possibly the most significant law enacted by Congress determining what
and how actions may be taken and who may take actions that are binding upon
and enforceable against a tribe or a tribal entity or the United States is 25 U.S.C. §
177. Enacted by the First Congress in 1790, 116 section 177 now provides in part:
“No 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.” Even transactions approved by a tribe in full compliance with
tribal law, but running afoul of this provision are not valid in law or equity as a
matter of federal law.
Congress has enacted a number of laws authorizing leases, rights of way,
and encumbrances of tribal trust land, and pursuant to these laws many
regulations have been adopted. Some but not all of these laws and regulations are
listed below:
•
Indian Long-Term [Surface] Leasing Act, 25 U.S.C. § 415; 25 C.F.R. Part
162
has been proposed. Action on that proposed amendment was not determined in time for this
article.
115
U.S. CONST. ART. VI, CL. 2.
116
1 STAT. 137 (1790).
178
Authorizing all tribes to lease land for up to 25 years, with a right of
one renewal for up to an additional 25 years, subject to BIA review
and approval
• Tribal and individual Indian land in for reservations listed in section
415(a) can lease land for up to 99 years
• Under section 415(b), (e) and (h), Indian tribes can lease tribal and
for 25 years with two options, for a maximum up to 25 years, for
business and agricultural purposes without federal approval, once
tribes adopt and the Secretary of the Interior approves tribal leasing
regulations 117
General Rights of Way Act, 25 U.S.C. 323-328; 25 C.F.R. Part 169
25 U.S.C. § 477 (section 17 corporation leases for a term up to 25 years);
no general regulations implement these leases
Indian Mineral Development Act of 1982, 25 U.S.C. § 2101; 25 C.F.R. §
Part 225
Encumbrances, 25 U.S.C. § 81; 25 C.F.R. Part 84
Navajo Nation lands, 25 U.S.C. § 635 (disposition of Navajo Nation land,
including fee land)
Leases, business agreements and rights-of-way for energy projects issued
by tribes pursuant to Tribal Energy Resource Agreements (TERAs)
authorized by the Energy Policy Act of 2005, 25 U.S.C. § 3504; 25 C.F.R.
Part 224; as of May 2013, no TERAs have been approved and
consequently no tribal energy leases, business agreements or rights-of-way
have been granted by Indian tribes
•
•
•
•
•
•
•
Whether tribal fee land, other than fee land of Pueblo Indians, is subject to
section 177 is a matter of some uncertainty. A 2009 Memorandum of the Solicitor
of the Department of the Interior opines that fee land outside Indian country is not
subject to section 177, but that fee land within Indian country is. M-37023 (January
18, 2009). That opinion cites as authority portions of a brief filed by the Solicitor
General as amicus curiae in the United States Supreme Court in Cass County v.
Leech Lake Band of Chippewa Indians. 118 The Solicitor General’s brief asserted
“Congress has continued to recognized that [section 177] restricts the alienability
of tribally owned lands, including recently acquired lands held in fee.” The Interior
Solicitor’s 2009 opinion omits reference to that part of the Solicitor General’s brief
117
118
Section 415 does not apply to mineral interests.
Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998).
179
which adds: “In recent times, Congress and the Executive Branch have assumed
that the INA requires congressional approval of sales of all tribally owned lands,
whether or not those lands are within a reservation. See, e.g., Pub. L. No. 101630, §§ 101(3) and (5), 104 Stat. 4531 (congressional finding that INA required
approval of sale of tribally owned fee lands ‘located approximately one hundred
twenty-five miles from the [tribal] land base’).”119 Recent instances of
congressional enactments requested by tribes, out of an abundance of caution to
resolve this uncertainty, expressly authorizing sales and leases of tribal fee land
include Public Law 110-75 (2007) (Coquille Tribe) and Public Law 110-76 (2007)
(Saginaw Chippewa Indian Tribe of Michigan).120 A Ninth Circuit opinion holds that
once Congress authorizes disposition of reservation land, reacquisition by a tribe
does not re-impose the restriction of section 177.121 A recent law review article
suggests that curative federal legislation would resolve uncertainties created by
section 177 for tribal fee land.122
Equal to section 177 in historical pedigree are the Indian Traders License
Act statutes. 25 U.S.C. §§ 261 et seq. Under these laws, the Commissioner of
Indian Affairs, whose authority is delegated through the Secretary of the Interior –
Indian Affairs to the Bureau of Indian Affairs (BIA), is granted “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 quality of
goods and the prices at which goods shall be sold to the Indians.” 25 U.S.C. §
261. Pursuant to that authority, BIA regulations require covered traders to obtain
BIA issued licenses. See 25 C.F.R. Parts 140 and 141 (Part 141 applies on the
Navajo, Hopi and Zuni Reservations).
The term “trading” is defined in 25 C.F.R. § 140.5 to mean “buying, selling,
bartering, renting, leasing, permitting, and any other transaction involving the
119
Brief for Petitioner, Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998)
(No. 97-174) 1998 WL 25517.
120
Several similar statutes are collected in COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 15.06[4]
at 1034-1036 n. 63 (2012); Brief for Petitioner, Cass County v. Leech Lake Band of Chippewa
Indians, 524 U.S. 103 (1998) (No. 97-174) 1998 WL 25517. See also Jarboe and Watts, Can
Indian Tribes Sell or Encumber Their Fee Lands Without Federal Approval, 2 AM. INDIAN L.J. 211
(2012).
121
Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993) (arguably contrary to the
2009 Solicitor’s opinion).
122
Mark A. Jarboe & Daniel B. Watts, Can Indian Tribes Sell or Encumber Their Fee Lands Without
Federal Approval, 2 AM. INDIAN L.J. 10, 25 -28 (2012).
180
acquisition of property or services.” No equivalent term is in the Part 141
regulations applicable to the Navajo, Hopi and Zuni Reservations. While many BIA
agency offices are reluctant to issue Indian Traders Act licenses, viewing them as
anachronisms, the statute and regulations mandating such licenses remain on the
books. Most BIA offices will issue such licenses if pressed. One very practical
effect of the Indian traders license statutes is that they preempt state gross
receipts taxes on non-Indian traders doing business with Indian tribes, tribal
entities, and tribal members on their respective reservations, regardless of
whether the “trader” has an Indian traders license. 123
IV. TRIBAL LAW
As sovereigns on their respective reservations, Indian tribes may and many
do regulate transactions by and with the tribe, tribal entities, and tribal members.
Many tribes have enacted laws confirming that the tribe itself and tribal entities and
in some cases various tribal officials have sovereign immunity and the manner in
which that immunity may be waived. 124 Many tribes have enacted tribal taxes, 125
tribal employment laws, 126 tribal environmental laws and regulations, 127 tribal
business license and qualifications to do business laws, 128 and other laws
affecting on-reservation business transactions. These laws vary from one
reservation to the next and from time to time on a reservation. Due diligence
123
Central Machinery Co. v. Arizona State Tax Commission, 448 U.S. 160 (1980). See also United
States ex rel. the [Tulalip] Tribes v. First Choice Business Machines, 28 Indian Law Reporter 60386041 (2000) (Tulalip Tribal Court and Court of Appeals) (held contracts with Tulalip Tribes unlawful
and unenforceable absent an Indian traders license).
124
Begay v. Navajo Engineering & Construction Authority, (Nav. Sup. Ct. 2011) (ordering dismissal
based on failure to comply with tribal statutory conditions on waiver of sovereign immunity requiring
notice of intent to file suit and naming Navajo Nation as a party in the complaint).
125
Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985); Merrion v. Jicarilla Apache Tribe, 455
U.S. 130 (1982).
126
Arizona Public Service Co. v. Aspaas, 77 F.3d 11128 (9th Cir. 1995); FMC v. ShoshoneBannock Tribes, 905 F.2d 1311 (9th Cir. 1990).
127
City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965
(1997); Middlemist v. Department of the Interior, 824 F. Supp. 940 (D. Mont. 1993), aff’d, 19 F.3d
1318 (9th Cir.), cert. denied, 513 U.S. 961 (1994)
128
The Navajo Nation Corporation Code provides that “no foreign corporation shall have the right
to transact business within Navajo Nation Country until it shall have been authorized to do so as
provided in [the Corporation Code] . . . .” 5 NNC § 3166. Relying on this statute and 5 NNC §
3174(A), the Navajo Nation Supreme Court noted in Graven v. Morgan, SC-CV-32-10 (November
2012) at 6: “A business must follow Navajo Nation laws and be duly authorized to conduct business
on the Nation before it can initiate proceedings in our courts.”
181
appropriate to individual transactions should be conducted to determine which
tribal laws and regulations may affect a given transaction.
V. SOVEREIGN IMMUNITY, ENFORCEABILITY AND DISPUTE RESOLUTION
A. Sovereign Immunity
1. Tribes and Subordinate Tribal Entities
Like sovereign immunity of the United States, tribal sovereign immunity is
derived from federal law 129 and tribal law and may be waived by Congress 130 or
the applicable tribe, but not states or state courts as a matter of state law. 131 An
Indian tribe does not waive sovereign immunity merely by entering a contract. A
waiver of tribal sovereign immunity must be clear, express, and conform to
requirements of tribal law. Tribal sovereign immunity goes to subject matter
jurisdiction and may be raised by a court on its own, 132 by the sovereign at any
time in a proceeding, 133 or to set aside a judgment for lack of subject matter
jurisdiction, as where a judgment was entered by default. 134 Like the United
States, waivers of sovereign immunity by Indian tribes will not be implied. 135 Like
129
Congressional waivers of tribal sovereign immunity are rare but a few exist. E.g., waiver of
Navajo and Hopi tribal sovereign immunity in suit to resolve title to the 1934 Act Reservation, 25
U.S.C. § 640d-7, where the United States could not adequately represent one Tribe against the
other because of a conflict of interest in its capacity as a fiduciary for both.
131
The McCarran Amendment waived federal sovereign immunity to suit in federal or state courts
for general adjudications of water rights. 43 U.S.C. § 666 (1952). While that statute did not waive
the immunity of tribes to suit in state courts for adjudication of tribal water rights, the Supreme
Court held that state courts may adjudicate tribal and individual Indian water rights which the
United States holds in its capacity as trustee. Colorado River Water Conservation District v. United
States, 424 U.S. 800 (1976).
132
Amerind Risk Management Corporation v. Malaterre, 633 F.3d 680 (8th Cir. 2011), cert. denied,
132 S. Ct. 1094 (2012).
133
Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort, 169 F.3d 1173
(10th Cir. 2010) (subject matter jurisdiction); Hagen v. Sisseton-Wahpeton Community College,
205 F.3d 1040 (8th Cir. 2000) (because sovereign immunity is jurisdictional, and not an affirmative
defense, it may be raised at any time in a proceeding, including after entry of default judgment);
Ramey Construction Company, Inc. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315
(10th Cir. 1982); Bales v. Chickasaw Nation Industries, 606 F. Supp.2d 1299 (D.N.M. 2010)
(subject matter jurisdiction).
134
Merit Management Group v. Ponca Tribe of Oklahoma, 787 F. Supp. 2d 916 (N.D. Ill. 2011).
135
Thus, a tribe’s agreement to comply with provisions of Title VII of the 1964 Civil Rights Act does
not waive the tribe’s sovereign immunity. Nanomatube v. Kickapoo Tribe of Kansas, 2011 U.S.
App. Lexis (10th Cir. 2011).
130
182
the United States, conditions on a tribal waiver of sovereign immunity will be
strictly construed, such as waivers establishing notice of intent to sue and other
conditions on initiating actions against a sovereign 136 and statutes of limitations
and courts which may hear suits against a sovereign. The authority of a
subordinate tribal enterprise or entity to waive its sovereign immunity is
determined by tribal law. 137 A tribal official acting without or in excess of a valid
delegation of authority cannot waive tribal sovereign immunity by unauthorized
consent, action or inaction. 138 Like suits against officers of the United States in
their official capacities, suits against tribal officials in their official capacities are but
suits against the sovereign and cannot be maintained absent an appropriately
authorized, clear and express sovereign immunity waiver. 139 Suits against Indian
tribes seeking determination of title to trust land are barred by the sovereign
immunity of the United States as owner of the fee in trust because the Quiet Title
Act does not consent to suits against the United States to determine title to trust
land. 140
Because waivers of sovereign immunity must be clear and unequivocally
expressed, 141 a waiver of immunity as to one tribal entity will not be construed as
waiving immunity of another tribal entity. 142 For the same reason, a sovereign
immunity waiver as to one thing does not waive immunity as to another. 143 Thus, a
tribe’s commencement of suit on one claim waives sovereign immunity as to that
claim, allowing full adjudication of that claim, 144 but does not waive immunity as to
136
Begay v. Navajo Engineering & Construction Authority, (Navajo Supreme Court 2011) (ordering
dismissal based on failure to comply with tribal statutory conditions on waiver of sovereign
immunity requiring notice of intent to file suit and naming Navajo Nation as a party in the
complaint).
137
Navajo Tribe v. Bank of New Mexico, 700 F.2d 1285, 1288 (10th Cir. 1983).
138
United States v. United States Fidelity and Guaranty Co., 309 U.S. 506 (1940); Hydrothermal
Energy v. Fort Bidwell Indian Community, 170 Cal. App.3d 489, 216 Cal. Rptr. 1 (Cal. App. 1985).
139
Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997).
140
28 U.S.C. § 2409a (1972); See Carlson v. Tulalip Tribes, 510 F.2d 1337 (9th Cir. 1975).
141
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).
142
315, 320 (10th Cir. 1982) (citing cases).
143
315, 320 (10th Cir. 1982) (“the Tribe consented to only to entry of judgment in the amount of the
contract; it did not thereby agree to be sued on any other claims”).
144
United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981); United Planners’ Financial Services of
America, a limited partnership v. Sac and Fox Nation, Sac and Fox Housing Authority, ALP-12-01
(Sac and Fox Nation Sup. Ct. Sept. 26, 2013) (“the [Sac and Fox] Nation in this case is the party
seeking affirmative relief against Broker. The tribe in C&L Enterprises, Inc. v. Citizen Band of
Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001) attempted to use sovereign immunity
183
counterclaims. 145 Further, a tribe’s participation in an administrative proceeding
does not waive the tribe’s immunity to judicial review of agency action, particularly
where a tribe is a necessary and indispensable party in whose absence a case
should not proceed. 146
Except to the extent sovereign immunity is clearly and expressly waived by
Congress or in applicable documents or other tribal action, tribal sovereign
immunity applies to the tribe as tribe, 147 to tribal departments and agencies, 148 to
unincorporated tribal enterprises 149 and authorities operating as arms and
instrumentalities of tribes, 150 to tribal government corporations chartered under
tribal law, 151 to section 17 tribal corporations chartered by the Secretary of the
Interior, 152 and to other tribal entities serving as political subdivisions or arms and
instrumentalities of tribes, including in some cases subordinate tribal entities
performing governmental functions, 153 and in at least one case, notwithstanding
as a defense to the claims asserted against it, but, here, the [Sac and Fox] Nation is not facing
claims against it by the Broker to which it the defense of sovereign immunity might be applicable in
certain contexts. The Nation’s sovereign immunity is not really an issue insofar as it is the party
seeking affirmative relief against Broker.”).
145
Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe, 498 U.S. 505, 509
(1998); Pit River Home and Agricultural Cooperative Association v. United States, 30 F.3d 1088,
1100-1101 (9th Cir. 1994).
146
Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir.
1991).
147
148
Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997) (suit against Tribal Council); North
Sea Products v. Clipper Seafoods, 595 P.2d 938 (Wash. 1979).
149
Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino and Resort, 169 F.3d 1173 (10th Cir.
2010); American Vantage Companies, Inc. v. Table Mountain Rancheria, 292 F.3d 1091 (9th Cir.
2002); Gaines v. Ski Apache, 8 F.3d 726 (10th Cir. 1993).
150
Chukchansi Gold Casino and Resort, 169 F.3d 1173 (10th Cir. 2010); Ninigret Development
Corporation v. Narragansset Indian Wetuomuck Housing Authority, 207 F.3d 21 (1st Cir. 2000).
151
Wright v. Colville Tribal Enter. Corp., 147 P.3d 1275 (Wash. 2006); Chance v. Coquille Indian
Tribe, 963 P.2d 638 (Or. 1998); North Sea Products v. Clipper Seafoods, 595 P.2d 938 (Wash.
1979).
152
Amerind Risk Mgmt Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011), cert. denied, 132 S. Ct.
1094 (2012); Ramey Constr. Comp., Inc. v. Apache Tribe of the Mescalero Reservation, 673 F.2d
315, 320 (10th Cir. 1982) (citing cases); Parker Drilling Co. v. Metlakatla Indian Community, 451 F.
Supp. 1127 (D. Alaska 1978).
153
E.g., J.L. Ward Assocs. v. Great Plains Chairmen’s Health Board, 842 F. Supp. 2d 1163
(D.S.D. 2012)
184
state laws enabling corporations to sue and be sued where there was no evident
intent to waive tribal sovereign immunity. 154
With respect to certain tribal business corporations and subordinate tribal
economic entities, the precise boundary where tribal sovereign immunity leaves off
is not always clear. Several courts have developed different tests and have
reached results based on specific facts, not all of which can be fully reconciled
with the Supreme Court’s broad application of tribal sovereign immunity. 155
Nonetheless, there are circumstances where tribes intend for financing, project
development, real property ownership and conveyance, and other reasons to
create corporate entities under state and tribal laws owned by tribes, including
limited liability companies, but which are separate from and independent of tribes
and not vested with tribal sovereign immunity. 156
Where it otherwise is applicable, tribal sovereign immunity applies both to
governmental matters and commercial business transactions. 157 Because federal
law establishes tribal sovereign immunity, it applies to tribes as a matter of federal
law outside as well as within Indian reservations. 158 Sovereign immunity waivers in
agreements with tribes requiring but lacking federal approval have been found
unenforceable in a number of cases. 159
Although the rule is firmly established that tribal sovereign immunity will not
be implied and must be clear and express, the United States Supreme Court held
154
Ransom v. St. Regis Mohawk Education & Community Fund, 658 N.E.2d 989, 994-995 (N.Y.
1995).
155
E.g., Warburton/Buttner v. Superior Court, 103 Cal App.4th 1170, 127 Cal Rptr. 2d 706 (Cal.
App. 2002); Dixon v. Picopa Const. Co., 772 P.2d 1104, 1109 (Ariz. 1989).
156
Rather than waive tribal sovereign immunity in connection with project financing and
development, a tribe may prefer to create a special purpose business corporation or limited liability
company with sufficient resources to carry out a specific project.
157
Michigan v. Bay Mills Indian Community, 134 S. Ct. 2014 (2014) (reaffirming Kiowa Tribe v.
Manufacturing Technologies, Inc., 523 U.S. 751 (1998)).
158
Id.
159
A.K. Mgmt. Agreement Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir.
1986); Wells Fargo Bank v. Lake of the Torches Econ. Dev. Corp., 677 F. Supp. 2d 1056, 1061
(W.D. Wis. 2010), aff’d, 658 F.3d 684 (7th Cir. 2011). But See Match-E-Be-Nash-She-Wish Band v.
Kean-Argovitz, 383 F.3d 512 (6th Cir. 2004), enforcing an arbitration clause in an agreement which
the court conceded was not approved as required by law. Compare, however, Wells Fargo Bank,
N.A. v. Sokagon Chippewa Community, 787 F. Supp.2d 867 (E.D. Wis. 2011), finding tribe
effectively waived sovereign immunity in indenture that was not void under federal law.
185
in C & L Enterprises v. Citizen Band of Potawatomi Indian Tribe 160 that a tribe’s
waiver need not mention sovereign immunity as such. The Court held that a tribe
clearly waived tribal immunity to jurisdiction in Oklahoma courts when it proposed
and agreed to a contractual arbitration clause providing that arbitral awards would
be reduced to judgment in accordance with applicable proceedings in any court
having jurisdiction thereof for a transaction outside Indian reservation land in
Oklahoma; the contract also specified that the American Arbitration Association’s
construction industry rules applied and had a choice of law clause selecting
Oklahoma law as applicable law. 161
2. Section 17 Corporations and Sue and Be Sued Clauses
Until relatively recently, section 17 corporate charters issued by the
Secretary of the Interior included clauses granting these corporations the power,
among others, “to sue and be sued.” Where the “sue and be sued” clause is not
further conditioned in a corporate charter, some courts have construed that clause
to be a waiver of the corporation’s sovereign immunity; 162 other courts have
viewed the question as an open issue. 163 Where a section 17 corporation has
waived its immunity, the corporation’s waiver does not extend to the Indian tribe
owner of the corporation. 164
More recent section 17 corporate charter “sue and be sued” clauses
condition that consent. 165 In Sanchez v. Santa Ana Golf Club, Inc., 166 the section
160
C & L Enterprises v. Citizen Band of Potawatomi Indian Tribe, 532 U.S. 411 (2001).
Several cases have followed C & L Enterprises in concluding that an arbitration clause in a tribal
contract is a waiver of tribal sovereign immunity. E.g., Smith v. Hopland Band of Pomo Indians,
115 Cal. Rprt.2d 455 (Cal. App. 2002). In Grand Canyon Skywalk Development, LLC v. ‘Sa’ Nyu
Wa, Inc., 923 F. Supp. 2d 1186 (D. Ariz. 2013), the federal district court for Arizona confirmed an
arbitration award against ‘Sa’ Nyu Wa, Inc., a tribally chartered tribal government corporation of the
Hualapai Tribe. The Development and Management Agreement between the parties provided that
any “controversy, claim or dispute arising out of or related to this Agreement shall be resolved by
binding arbitration” pursuant to the rules of the American Arbitration Association.
162
Rosebud Sioux Tribe v. A&P Steel, Inc., 874 F2d 550 (8th Cir. 1989).
163
Cook v. Avi Casino Enterprises, Inc., 548 F.3d 718, 726 n. 6 (9th Cir. 2008), cert. denied, 556
U.S. 1221 (2009) (“issue of whether a ‘sue and be sued’ clause in a tribe’s enabling ordinance
effectuates a waiver of tribal sovereign immunity remains a live issue for determination in this
circuit”).
164
Native American Distributing v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008);
Linneen v. Gila River Indian Community, 276 F.3d 489, 492-493 (9th Cir. 2002); Maryland Casualty
Co. v. Citizens National Bank of Hollywood, 361 F. Supp. 517 (5th Cir. 1966).
165
Many recent section 17 corporate charters are based on a Model BIA Section 17 Corporate
Charter which provides that a waiver must be in the form of a board of directors’ resolution and
161
186
17 charter provided the corporation authority to “sue or be sued in its corporate
name to the extent provided in Article XVI of this Charter.” Section D of Article XVI
mandated that all waivers be set forth in the form of a resolution, duly adopted by
the corporation’s board of directors. The charter required the board of directors
resolution to identify the parties for whose benefit the waiver was granted, the
transaction or transactions and the claims or classes of claims for which the waiver
is granted, the property of the corporation which may be subject to execution to
satisfy any judgment which may be entered on the claim, and the identity of the
court or courts in which suits against the corporation may be brought. The New
Mexico Court of Appeals refused to allow the case to proceed against the section
17 corporation as the plaintiff failed to present evidence of a board of directors’
resolution complying with these requirements.
Some section 17 corporation charters do not include “sue and be sued”
clauses at all. These charters authorize the corporation to waive sovereign
immunity on certain conditions, such as where authorized by a board of directors
resolution or where consent to suit is included as a specific term of a contract.
Many tribal housing authorities have “sue and be sued” clauses, presenting
substantially the same issues as “sue and be sued” clauses in section 17
corporate charters. 167 These and other tribal entities with “sue and be sued”
clauses in their organizational documents may condition the consent to suit on
contract-by-contract authorization by a board of directors resolution or as specified
in the terms of a specific contract. 168
Section 17 of the IRA is not available to Indian tribes In Oklahoma.
However, tribal corporations chartered under the Oklahoma Indian Welfare Act are
satisfy other requirements. See BIA Model Section 17 Corporate Charter, Article XVI, copy on file
with the author.
166
Sanchez v. Santa Ana Golf Club, Inc., 104 P.3d 548 (N.M. App. 2005), cert. denied, 106 P.3d
578 (N.M. 2005).
167
Namakegon Dev. Co. v. Bois Forte Reservation Housing Authority, 517 F.2d 508 (8th Cir. 1975)
(finding a “sue and be sued” clause to be a waiver of tribal sovereign immunity); Marceau v.
Blackfeet Housing Authority, 540 F.3d 916 (9th Cir. 2008) (deferring to tribal court of appeals
interpretation of such clause), cert. denied, 556 U.S. 1235 (2009).
168
Ameriloan v. Superior Court, 169 Cal. App.4th 81, 86 Cal. Rprt.3d 572 (Cal. App. 2008)
(modified January 14, 2009) (tribal resolution establishing Miami Nation Enterprises included a “sue
and be sued” clause which provided that the immunity would be waived only to the extent of the
specific terms of the applicable contract).
187
subject to the same treatment for sovereign immunity purposes as section 17
corporations. 169
3. Tribally-Owned Corporations Chartered Under State Law
Since the mid-1980s, many Indian tribes have chartered corporations by
tribal legislative enactments and by enacting tribal business codes creating or
authorizing a variety of corporate forms. Before and to some extent after this
relatively recent development, Indian tribes seeking to organize for various
purposes would establish corporations, limited liability companies, and
partnerships under state law. While these state chartered entities are not treated
the same as a tribe for federal income tax170 and certain other purposes, there are
some circumstances where such entities have been, and should be, treated the
same as tribes when carrying out uniquely tribal governmental functions. 171
169
Memphis Biofuels v. Chickasaw Nation Industries, 585 F.3d 917 (10th Cir. 2009); Bales v.
Chickasaw Nation Industries, 606 F. Supp.2d 1299 (D.N.M. 2010).
170
Relying in part on Revenue Ruling 94-16, the U.S. Tax Court held, in Uniband, Inc. v.
Commissioner of Internal Revenue, 140 Tax Court No. 13, 2013 WL 22477986 (U.S. Tax Court
2013), that Uniband, Inc., a Delaware chartered corporation whose sole shareholder was the Turtle
Mountain Band of Chippewa Indians (TMBCI), a federally recognized Indian tribe, was subject to
the federal income tax. Revenue Ruling 94-16 provides that Indian tribes and IRA section 17
corporations are not taxable entities for federal income tax purposes but that state chartered
corporations owned by Indian tribes are taxable entities. The Tax Court rejected Uniband, Inc.’s
claims that it shared the same tax status as TMBCI, reasoning that the Delaware corporation was
distinct from its shareholder-owner as a matter of corporate law and was not an integral part of
TMBCI as a factual matter. The Tax Court decision states that TMBCI had obtained a section 17
charter for another corporation also named Uniband, Inc. and that the section 17 corporation
charter anticipated that the section 17 corporation would acquire all the assets and liabilities of the
Delaware corporation and another corporation Uniband, Inc. incorporated under tribal law and
wholly owned by TMBCI but that, as of the time of the filing of the Tax Court petition, the merger
had not taken place.
171
(2006) (incorporated under tribal law in 1977 and state law a year later, articles of incorporation of
the College allowed suit in tribal court only; the Ninth Circuit reasoned that the College is a tribal
entity because, as it was a nonprofit corporation created as a “tribal corporation,” its directors are
members of the Confederated Salish and Kootenai Tribes, selected and subject to removal by the
Tribal Council, and, though open to nonmembers, is located on tribal lands within the Flathead
Reservation, serves the Confederated Salish and Kootenai Tribes, and thus is a tribal entity); White
v. The University of California, Order Granting Kumeyaay Cultural Repatriation Committee Motion
to Dismiss and the University of California Motion to Dismiss, C12-1978 (N.D. Cal. Oct. 10, 2012)
(holding that Kumeyaay Cultural Repatriation Committee established by tribal council resolutions of
12 Kumeyaay tribes in southern California, and also incorporated under California law as a
nonprofit corporation, had sovereign immunity, applying in part the six factor analysis of the Tenth
Circuit in Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort, 629 F.3d
1173 (10th Cir. 2010)
188
4. Tribal Officials
Suits against tribal officials in their official capacity are suits against the
Indian tribe itself and are subject to dismissal unless the tribe itself has waived
sovereign immunity. 172 A tribal official lacks independent authority to waive the
tribe’s immunity and does not do so by signing a contract that includes an
arbitration clause when the tribe’s governing body has not authorized such
waiver, 173 or by voluntary receipt of service in a law suit. 174 A suit against a tribal
official in his or her individual capacity for prospective injunctive relief, where it is
alleged that the officer acted without or in excess of legal authority, is not a suit
against the tribe and may be tried to determine whether the officer acted within the
scope of lawful tribal authority under the fiction of Ex parte Young. 175 This rule is
qualified by cases holding that a suit nominally against a tribal official in his or her
unofficial capacity will be dismissed absent tribal consent where the relief sought
would in fact require affirmative action by the sovereign or disposition of
unquestionably sovereign property. 176
5. Authorization of Sovereign Immunity Waiver
A waiver of sovereign immunity must be authorized by the appropriate
entity under tribal law or the organization document under which a tribal entity
operates. 177 Such waivers should be viewed as legislative in nature and should be
authorized by the tribal body exercising legislative authority for the tribe or in the
172
Cook v. Avi Casino Enterprises, Inc., 548 F.3d 718, 727 (9th Cir. 2008), cert. denied, 129 S. Ct.
2159 (2009); Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997); Imperial Granite Co. v.
Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991).
173
Hydrothermal Energy v. Fort Bidwell Indian Community, 170 Cal. App.3d 489, 216 Cal. Rptr. 1
(Cal. App. 1985).
174
Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983).
175
Ex parte Young, 209 U.S. 123 (1908), cited in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59
(1978). See also Salt River Project Agric. & Improvement District v. Lee, 672 F.3d 1176 (9th Cir.
2012); Crowe & Dunlevy, PC v. Stidham, 640 F.3d 1140 (10th Cir. 2011); Burlington Northern &
Santa Fe Rwy. Co. v. Vaughn, 509 F.2d 1085, 1092 (9th Cir. 2007); Arizona Public Service Co. v.
Aspaas, 77 F.3d 128, 1132-1134 (9th Cir. 1996); BNSF Ry. Co. v. Flies Away, 2006 WL 3257544
(D. Ariz. 2006), aff’d, sub nom, BNSF Ry. Co. v. Ray, 297 Fed Appx. 675 (9th Cir. 2008).
176
Dawavendewa v. Salt River Project Agricultural Improvement and Power District, 276 F.3d
1150, 1160 (9th Cir. 2002).
177
(Cal. App. 1985).
189
case of a corporate entity by the board of directors or similar corporate body, 178 or
both where the corporate entity’s authority to waive immunity must be confirmed
by the tribal governing body in accordance with the entity’s charter, articles of
incorporation or applicable tribal law. A waiver of sovereign immunity perfectly
good in form but lacking requisite tribal approval would be found in most instances
not to be valid, binding or enforceable upon a tribe or tribal entity. 179
B. Enforceability
A contract with a tribe or tribal entity which has sovereign immunity but
which has not waived its sovereign immunity is legal, binding, and valid in
accordance with its terms. It may be enforced by a tribe in an appropriate action in
any court with jurisdiction. A tribe or tribal entity filing such an action waives its
immunity to the extent of the claim made, allowing the court to enter judgment for
as well as against the tribe on the claim made. 180 Thus, in an action by a tribe on a
contract where the tribe has not waived its immunity, the counterparty may assert
matters arising under the contract by way of defense for recoupment and to offset
liability up to the level of the tribe’s claim but may not assert counterclaims or
obtain an affirmative judgment against the tribe. 181
Sovereign immunity waivers enable the counterparty to a tribe or a tribal
entity vested with sovereign immunity to enforce the agreement in courts with
jurisdiction in accordance with the terms and conditions of the sovereign immunity
waiver. In many transactions, Indian tribes and tribal entities possessing sovereign
immunity will grant a “limited” waiver of sovereign immunity. The limited waiver
may specify remedies, courts, administrative agencies or times in which an action
or claim may be brought, pre-conditions to filing suit, such as giving notice before
commencing suit in order to afford parties an opportunity to resolve the dispute
without litigation, and other matters. These conditions generally will be strictly
construed in favor of the tribe.
178
Amerind Risk Mgmt Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011) (charter required board
resolution approving a waiver sovereign immunity; absent such a resolution, the court held the
corporation’s immunity had not been waived), cert. denied, 132 S. Ct. 1094 (2012).
179
Memphis Biofuels v. Chickasaw Nation Industries, 585 F.3d at 922; Colombe v. Rosebud Sioux
Tribe, 2011 U.S. Dist. Lexis 92546 (D.S.D. 2011) (collecting cases).
180
United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981).
181
Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe, 498 U.S. 505, 509-510
(1998); United States v. United States Fidelity & Gauranty Co., 309 U.S. 506 (1940).
190
A contract perfectly good in form but lacking requisite authorization may not
to be valid, binding or enforceable upon a tribe or tribal entity. Many tribal
constitutions and corporate articles of incorporation grant the power to enter
contracts on behalf of the entity to a tribal council, board of directors or similar
body but require that body must act by resolution or otherwise to authorize specific
contracts or contracts of certain types or classes. With respect to actions by a
tribal government officer, the concept of apparent authority has little or no
application. For all of these reasons, an opinion of tribal legal counsel may be
requested in a transaction favorably opining that a contract and actions
contemplated therein by a tribal entity are valid, legal, binding and enforceable and
have been duly approved.
C. Dispute Resolution
1. Mediation
A number of disputes involving tribes have been resolved by mediation.
One key distinction between mediation and arbitration is that in mediation no
agreement is binding except one agreed to by the parties. Some courts have
mediation programs, requiring or encouraging parties to make an effort to resolve
their dispute by mediation before proceeding to litigation. 182
2. Arbitration
Arbitration increasingly is favored as an alternative to judicial litigation for
resolution of disputes with tribes and tribal entities. Preliminary to arbitration, an
arbitration clause may specify that the parties will make an effort to resolve a
dispute by requiring designated representatives to meet informally or with the
assistance of a neutral mediator in an effort to resolve a dispute. Where the parties
agree that disputes should be resolved by arbitration, better practice is to specify
that binding arbitration is the exclusive means of resolving disputes, to avoid
claims that arbitration is not the sole means of dispute resolution.
A dispute is subject to arbitration only if the parties agree to arbitration. The
terms of the arbitration agreement govern those matters subject to arbitration. The
182
E.g, 9TH CIR. R. 3-4; 9TH CIR. R. 3-415-2.
191
American Arbitration Association has various rules, such as construction and
commercial arbitration rules, to govern arbitration proceedings.
What if a party refuses to participate in an arbitration proceeding or refuses
to abide by the arbitration award or decision? An arbitration agreement may
provide that an action may be brought in a court with jurisdiction to compel a party
to participate or it may simply allow the arbitration to proceed so long as due
notice has been given that the arbitration proceeding has been initiated. Either
way, a party who declines to participate in an arbitration proceeding, planning to
modify, set aside or vacate any adverse award in a judicial action on jurisdictional
grounds that the subject of the arbitration is outside the scope of the arbitration
agreement or that the arbitration agreement is not valid or otherwise nonenforceable, forfeits any opportunity to address the merits of the dispute.
The Federal Arbitration Act, state arbitration acts, and tribal arbitration acts
or ordinances generally allow an action to be brought in a court with jurisdiction to
confirm, enter judgment on and enforce an arbitration award or to modify, correct
or set aside an arbitration award. Grounds for relief from an arbitration award are
narrow and do not anticipate retrial before the reviewing court of the merits of the
dispute resolved in an arbitration award or decision. Relief may be granted,
however, if the arbitrators exceed their authority by arbitrating a matter outside the
scope of a valid arbitration agreement or by granting relief precluded by the
agreement. 183
3. Courts with Jurisdiction
Whether or not arbitration is provided, a contract with an Indian tribe
preferably addresses which court the parties agree has and should exercise
jurisdiction if a dispute over the terms of the contract arise. In an on-reservation
transaction, state courts may not have subject matter jurisdiction in an action
brought against a tribe in state court, 184 at least where a tribe has not agreed to
183
E.g., Confederated Tribes of the Grand Ronde Community of Oregon v. Strategic Wealth
Management, Inc., Case C-04-08-003 (August 5, 2005 Grand Ronde Tribal Court)
184
Williams v. Lee, 358 U.S. 217 (1959). See Bethany R. Berger, Williams v. Lee and the Debate
over Indian Equality, 109 MICH. L. REV. 1463, 1465-1466 (2011) (“based on interviews with stillliving participants in the case and examination of congressional records, Navajo council minutes,
and Supreme Court transcripts, records and notes” “the history of Williams shows the ways in
which the decision and the self-determination movement that followed it were the product of a
192
state court jurisdiction in advance. Where a tribe brings an action in state court
over an on-reservation or off-reservation matter, the state court would have
jurisdiction, other requirements of jurisdiction being met. 185 Where a tribe agrees in
advance and in writing to state court jurisdiction in respect to an on-reservation
matter, there are strong arguments that the tribe’s agreement should be binding on
it as a matter of freedom of contract, as long as other requirements sufficient for
the exercise of state court jurisdiction are met and there is no question as to the
validity of the agreement so providing. 186 When tribes engage in transactions
outside their reservations, they are subject to jurisdiction of the courts otherwise
capable of exercising jurisdiction over such disputes, provided the tribe has waived
its sovereign immunity. 187
Whether a tribe is willing to agree to state court jurisdiction as to onreservation matter depends on a number of considerations, including past
experience with states and state courts. 188 In turn, the non-tribal party may be
reluctant to agree to tribal court jurisdiction on the assumption that tribal courts will
favor the governing Indian tribe and its tribal entities over all adversaries. One or
the other party may be inspired to propose federal court as a solution to this
apparent deadlock.
deliberate choice to insist that respect for tribal status was necessary to ensure equal treatment
and dignity in the modern era”).
185
Three Affiliated Tribes v. Wold Engineering, P.C., 476 U.S. 877 (1986). See also Navajo Nation
v. MacDonald, 485 P.2d 1104 (Ariz. App. 1994), finding state court had jurisdiction of an action by
the Navajo Nation against former chairman in respect to fraudulent transactions occurring partially
on the Navajo Reservation but where there were substantial off-reservation contacts.
186
See Outsource Services Management LLC v. Nooksack Business Corporation, 333 P.3d 380
(Wash. 2014).
187
C & L Enterprises, Inc. v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411
(2001).
188
As an example, in the cases involving treaty fishing rights in Washington, there was active
resistance by state officials to implementation of federal court orders. This led one court of appeals
judge to note that federal courts were forced to take an active role because “recalcitrance of
Washington State officials (and their vocal non-Indian commercial and sports fishing allies) . . .
produced the denial of Indian rights requiring intervention of federal courts.” United States v.
Washington, 520 F.2d 676, 693 (9th Cir. 1975) (Burns, District Court Judge, concurring). Fourteen
years later, the Supreme Court was forced to address the state’s continued resistance to court
orders implementing treaty terms, quoting a court of appeals decision as follows: “The state’s
extraordinary machinations in resisting the [1974] decree have forced the district court to take over
a large share of the management of the state’s fishery in order to enforce its decrees. Except for
some desegregation cases . . ., the district court has faced the most concerted official and private
efforts to frustrate a decree of a federal court witnessed in this century.” Washington v. Washington
State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 696 (1979).
193
Federal courts have limited jurisdiction. The two most common forms of civil
jurisdiction exercised by federal courts are “federal question” jurisdiction 189 and
“diversity” jurisdiction. 190 Most contract disputes do not raise a substantial federal
question over which a federal court may exercise federal question jurisdiction. 191
Diversity jurisdiction requires, among other matters, “complete diversity of
citizenship,” which requires that the parties on opposite sides of a case be citizens
of different states or nations. All courts of consequence to consider the citizenship
of Indian tribes have concluded that Indian tribes are not citizens of any state or
nation. Since an Indian tribe is not a citizen of any state or nation, it cannot have
diversity from its opposing party, which destroys federal court diversity jurisdiction
in a case to which a tribe is a party or a necessary and indispensable party. 192
However, corporations created under federal, tribal and state law owned by Indian
tribes are citizens of the state of their principal place of business and federal court
diversity jurisdiction may be exercised over such corporations. 193 Where there is
no federal question and no diversity of citizenship, a federal court cannot exercise
jurisdiction over an action to which an Indian tribe or other tribal entity is a party.
This is so even if a contract provides that the parties agree a federal court has
jurisdiction and agree to submit themselves and the subject matter of a dispute to
federal court.
This dilemma provides incentive to both sides in many cases to agree to
binding arbitration. Since the Federal Arbitration Act 194 does not bestow federal
189
28 U.S.C. § 1331 (1980).
28 U.S.C. § 1332 (2011).
191
Peabody Coal Co. v. Navajo Nation, 373 F.3d 945 (9th Cir. 2004), cert. denied, 543 U.S. 1054
(2005) (an agreement waiving sovereign immunity to confirm an arbitration award by an action in
federal court does not grant federal court federal question jurisdiction); Gila River Indian
Community v. Henningson, Durham & Richardson, 626 F.2d 708 (9th Cir. 1980). Under the wellpleaded complaint rule, a substantial federal question must be determined from what necessarily
appears in a plaintiff’s statement of his own claim, unaided by anything alleged in anticipating of
avoidance of defenses based on federal law. Thus, a party anticipating that a tribe will raise a
defense of tribal sovereign immunity, based on federal law, cannot raise a matter in avoidance of
that federal law defense in order to establish federal question jurisdiction. Oklahoma Tax
Commission v. Graham, 489 U.S. 838 (1989).
192
American Vantage Companies, Inc. v. Table Mountain Rancheria, 292 F.3d 1091 (9th Cir. 2002)
(citing decisions reaching the same conclusion from the First, Second, Eighth and Tenth Circuits).
193
Cook v. Avi Casino Enterprises, Inc., 548 F.3d 718 (9th Cir. 2008), cert. denied, 129 S. Ct. 2159
(2009).
194
9 U.S.C. § 1 (1925).
190
194
question jurisdiction over controversies touching arbitrations, 195 federal question
jurisdiction does not exist merely because the parties have agreed to resolve
disputes by binding arbitration. Uncertainty will exist in some cases as to which
court can enforce an arbitration agreement or an arbitration award or to grant relief
in an appropriate case to modify, set aside, vacate or correct an arbitration award.
Punting on this issue, many agreements provide that parties will seek jurisdiction
in any court with jurisdiction, hoping they never have to deal with it. Other
agreements may specify that the parties agree to seek jurisdiction first in federal
court, then in state court if a federal court is without or declines to exercise
jurisdiction. Some but not all agreements go on to provide that the parties will seek
jurisdiction in tribal court only after federal and state courts determine they do not
have or decline to exercise jurisdiction. Other agreements provide that the parties
agree to tribal court jurisdiction in matters relating to enforcement of the promise to
arbitrate and matters relating to enforcement of arbitration awards.
Few cases deal with limited liability companies in which an Indian tribe is a
member. One case squarely focusing on diversity jurisdiction held that the limited
liability company would be treated the same as its Indian tribe owner. Because, as
noted above, an Indian tribe does not have citizenship in any state or nation, the
court held that it lacked diversity jurisdiction over the limited liability company. 196
195
Hall Street Associates, LLC v. Mattel, Inc., 128 S. Ct. 1396 (2008); Moses H. Cone Memorial
Hospital v. Mercury Constr. Corp., 460 U. S. 1, 25, n.32 (1983). Exceptions are found in 25 U.S.C.
§ 415(f) (1968); 25 U.S.C. § 416a(c) which provides, respectively, that any contract, including a
lease or a construction contract, affecting land within the Gila River Indian Reservation or any
contract, including a lease, affecting land within the Salt River Pima-Maricopa Indian Reservation
“may contain a provision for the binding arbitration of disputes arising out of such contract. Such
contracts shall be considered within the meaning of ‘commerce’ as defined and subject to the
provisions of sec. 1 of tit. 9. Any refusal to submit to arbitration pursuant to a binding agreement for
arbitration or the exercise of any right conferred by title 9 to abide by the outcome of arbitration
pursuant to the provisions of ch. 1 of tit. 9, sec’s 1 through 14, shall be deemed to be a civil action
arising under the Constitution, laws or treaties of the United States within the meaning of section
1331 of title 28.”
196
CTGW, LLC v. GSBS, PC, 2010 U.S. Dist. Lexis 69298 (W.D. Wis. 2010). See also
Floyd v. Panther Energy Co., LLC, No. 10-95 (N.D. Tex. Jan. 3, 2012), dismissing for lack of
diversity an action against Panther Energy Co., LLC of which the Southern Ute Indian Tribe Growth
Management Fund was a controlling member because the Fund was an arm of the Tribe and an
Indian tribe cannot be a citizen of any state for diversity purposes.
195
4. Governing Substantive Law and Forum Selection
As with any other contract, parties to a contract with a tribe or tribal entity
may and typically do designate “governing law” that applies to and governs that
agreement. In any contract where the law of more than one jurisdiction may apply,
a “governing law” clause, also known as a “choice of law” or “applicable law”
clause, determines which law governs the contract. Courts ordinarily will honor the
parties’ choice of law clause so long as it does not violate public policy of the
jurisdiction in which an enforcement proceeding is unconscionable or
unreasonable. 197
One important reason for designating “governing law” in any business
transaction is predictability and certainty. The greater the sums involved, the
greater the need for predictability and certainty. The law of a jurisdiction so
designated may be so well developed that it provides predictable substantive and
procedural rules governing business transactions. In turn, business parties may
have adapted their business practices, customs, and usages, their goods and
services, and even their contractual documents with knowledge of and in reliance
upon that developed body of law.
Where there is concern that specifying “governing law” in a contract may be
construed as an agreement to litigation in the courts of the jurisdiction so
designated 198 and the parties do not intend that result, or the parties otherwise
choose to designate the forum in which any litigation may be brought, they may
provide in their contract that any litigation or disputes be brought in designated
court(s) or that dispute be resolved by binding arbitration with arbitration
enforcement in a specified court or courts. Justice Ginsburg’s partial concurrence
and partial dissent in Plains Commerce Bank v. Long Family Land and Cattle
197
Regulations adopted by the BIA which became effective in January 2013 for surface leases
subject to BIA approval under 25 U.S.C. § 415(a) provide that the parties may subject a lease to
state or local law in the absence of federal or tribal law if the lease includes a provision to this effect
and the “Indian landowners expressly agree to the application of State or local law.” 25 C.F.R. §
162.014(c) (2012). In Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014), the court of
appeals refused to give effect to an arbitration forum selection clause which the court found it was
unreasonable under the circumstances and procedurally and substantively unconscionable,
concluding that the arbitration procedure described in the contracts was a sham and an illusion.
198
Such was the result in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, 532
U.S. 411 (2001).
196
Co. 199 noted the bank seeking to avoid tribal court jurisdiction could have achieved
that result by including forum selection, choice of law or arbitration clauses in the
contracts in dispute. 200
Neptune Leasing, Inc. v. Mountain States Petroleum Corp., a 2013 decision
by the Navajo Supreme Court, 201 creates some uncertainty regarding application
of these well-developed rules, at least in Navajo courts. The complex and unusual
facts contributing to the outcome of this case are noteworthy in determining
whether the governing law, forum selection and jurisdictional holdings of the case
would control a contract by and with the Navajo Nation or a Navajo tribal entity, or
would inform decisions involving contracts with Indian tribes and tribal entities
elsewhere. 202 Neptune Leasing involved a 2006 contract between non-Indian
entities. Neptune claimed to have sold a helium plant on Navajo land under a
multi-year installment contract to Mountain States, which resold the plant in 2007
to a third party, Nacogdoches Oil and Gas, Inc. Neptune claimed that the resale to
Nacogdoches was without its consent and breached the Neptune-Mountain States
contract. Neptune commenced a repossession action against Mountain States in
Navajo Shiprock District Court seeking repossession and damages against
Mountain States. The Shiprock District Court recognized that it had exclusive
subject matter jurisdiction over the repossession claim but “yielded” jurisdiction to
a Texas court, pending domestication and recognition in Navajo courts of an order
of repossession from the Texas court. The helium plant itself is an improvement
under a 1974 business site leasehold between the Navajo Nation and an
unidentified entity not a party to the case. Neptune’s sale to Mountain States was
without the knowledge or involvement of the Navajo Nation.
Neptune conceded to the Navajo Supreme Court it was unable to produce
any lease or written document as the basis for its possession of the site or
ownership of site improvements. Nacogdoches in turn conceded to the Navajo
Supreme Court that it had never entered a written lease or operating agreement
199
Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008)
Long Family Land and Cattle Co., 554 U.S. at 344.
201
Neptune Leasing, Inc. v. Mountain States Petroleum Corp, SC-CV-24-10 (Nav. Sup. Ct. 2013).
202
For example, in United Planners’ Financial Services of America, a limited partnership v. Sac and
Fox Nation, Sac and Fox Housing Authority, APL-12-01 (Sac and Fox Nation Sup. Ct. Sept. 26,
2013), the Sac and Fox Supreme Court noted that a forum selection clause “may be agreed upon
by an party to an agreement, including an Indian tribe or tribal entity,” provided the tribe or tribal
entity approves that clause in accordance with applicable tribal law. The Sac and Fox Nation
Supreme Court decision did not discuss Neptune Leasing.
200
197
specific to the helium plant with the Navajo Nation. However, Nacogdoches
asserted that its purchase from Mountain States was with the knowledge and
consent of the Navajo Nation, that it operates the plant with the verbal approval of
the Navajo Nation, and pays Navajo royalties and rents pursuant to regional oil
and gas operating agreements with the Nation under which Nacogdoches has the
right to develop and produce helium, hydrocarbon and other gas resources within
specified areas of the Navajo Nation. Further, Nacogdoches claimed to have
entered operating agreements specific to the plant with Neptune and Mountain
States, but those agreements were not in the record.
Mountain States claimed that the matter should be tried in Texas courts due
to forum selection and choice of law clauses in the Neptune-Mountain States
contract and that Navajo courts lacked subject matter jurisdiction over it. On an
appeal by Neptune, the Navajo Supreme Court framed two issues: First, Whether
the district court properly dismissed the case for lack of personal jurisdiction over
Mountain States. Second, whether the district court properly “yielded” subject
matter jurisdiction to an unnamed Texas court conducting unspecified proceedings
involving some or all of the parties. On the issue of personal jurisdiction over
Mountain States, the Navajo Supreme Court found under the Navajo Nation’s
Long Arm statute, 203 grounding jurisdiction on business conduct within the Navajo
Nation, as well as federal common law of tribal jurisdiction over non-members, i.e.,
Montana v. United States, 204 based on Mountain States’ 2006 purchase and 2007
re-sale of the helium plant located on a Navajo leasehold, the subject of Neptune’s
repossession claim, each of which were sufficient the Navajo Supreme Court held
for finding subject matter jurisdiction. Questions of Navajo tribal court jurisdiction
over non-members ultimately may be determined in a federal court under federal
law. 205
The truly interesting and challenging part of this case deals with the Navajo
Supreme Court’s treatment of the Neptune-Mountain States security agreement in
which the parties agreed to address disputes arising from their agreement in a
Texas court under Texas law. The Navajo Supreme Court rejected Mountain
States’ claim that this clause took jurisdiction away from Navajo courts, stating:
203
7 NNC § 253a (2001).
Montana v. United States, 450 U.S. 544 (1981).
205
Salt River Project v. Lee, 672 F.3d 1176 (9th Cir. 2012).
204
198
[N]o private agreement can ever avoid Navajo Nation jurisdiction over
transactions on Navajo trust land. Under Navajo law, an agreement
between individuals or entities to avoid Navajo jurisdiction may certainly
never be enforced when the transaction concerns “physical and intangible
assets” that may include improvements to a Navajo Nation business site
leasehold on trust land. . . . In this case, no one in the present action has
been able to produce any lease involving the parties, under whose terms
the [Navajo] Nation’s reversionary interests may properly be examined, and
pursuant to which any transfers of improvements may be monitored and
regulated.
In order to transfer improvements, a business entity must have the
consent of the Nation and must have proper color of title, i.e, must be a
leaseholder, in order to do so. . . . Under the Navajo Nation Business
Leasing Regulations of 2005, a lease must be periodically reviewed every
five (5) years in the best interests of the people, and any improvements
revert to the Navajo Nation unless otherwise provided in a lease. . . .
Nacogdoches has asked us to apply on them the terms of a 1974 lease
involving a non-party entity. Essentially, they would have us find an
equitable lease with fixed terms inferred from a forty-six year old document
not signed by any party, and without being able to track how any of the
parties came to “own” the site, and subsequently to properly transfer
improvements on that site in conformance with Navajo law. 206
Having found jurisdiction over the subject matter and the parties, the Court
then found that the Shiprock District Court erred when it “yielded” to the Texas
court. Under the Navajo Nation’s Long Arm statute, a court may “stay or dismiss
an action due to inconvenient forum ‘in whole or in part on any condition that may
be just.’”207 For several reasons, the Navajo Supreme Court found the transaction
involving Navajo land “over which our courts have exclusive jurisdiction” “must be
tried before a Navajo Nation court for reasons of sovereignty and application of
Navajo law.” 208 The Court also was concerned that “the legality of transfers of
Navajo land from one private party to another . . . without consultation with the
Nation and without proper leases since 1974 can only be addressed by a Navajo
206
Neptune Leasing, Inc., SC-CV-24-10 (Nav. Sup. Ct 2013).
Id. at 14.
208
Id.
207
199
Nation court under Navajo Law.” 209 “Thirdly, the extent of the Nation’s reversionary
interest in improvements on business site leaseholds cannot be addressed in any
other forum because that interest is based on Navajo law, and ‘any attempt by a
state court to adjudicate property interests of the Nation on trust land within its
territory would most certainly infringe on the right of the Nation to make its own
laws and be ruled by them.’” 210
The extraordinary facts in Neptune Leasing solely involving private parties
and a stale lease of Navajo land that no one could produce involving a lessee not
before the Court drove the Navajo Supreme Court to these findings and
conclusions. It is an open question whether the Court’s conclusions regarding
forum selection, choice of law and jurisdiction would apply in an agreement with
and approved by the Navajo Nation or Navajo tribal entities in accordance with
Navajo law, thus presenting very different considerations from those considered in
Neptune Leasing. The Navajo Nation and other Indian tribes and tribal entities
have been and undoubtedly will want to be parties to future transactions involving
substantial investments and commercial transactions. On facts quite different from
Neptune Leasing, the Sac and Fox Supreme Court noted that a forum selection
clause “may be agreed upon by an party to an agreement, including an Indian tribe
or tribal entity,” provided the tribe or tribal entity approves that clause in
accordance with applicable tribal law. 211 In Outsource Services Management, LLC
v. Nooksack Business Corporation, 212 the Washington Supreme Court enforced
terms of an agreement entered by the Nooksack Business Corporation, a business
corporation wholly owned by the Nooksack Tribe, which included a loan
agreement forum selection clause designating state courts as the forum for
disputes arising under the loan agreement. The Washington Supreme Court noted
that a waiver of sovereign immunity included in the agreement would not have
been sufficient standing alone to enable the state court to exercise jurisdiction.
In some cases, parties may desire definitive determinations on questions of
tribal law in advance of and as a condition of closing a transaction. Although an
opinion of tribal legal counsel may provide some comfort as to application of tribal
209
Id.
Id.
211
United Planners’ Financial Services of America, a limited partnership v. Sac and Fox Nation,
Sac and Fox Housing Authority, slip opinion at 10, APL-12-01 (Sac and Fox Nation Sup. Ct. Sept.
26, 2013).
212
Outsource Services Mngt, LLC v. Nooksack Business Corp., 333 P.3d 380 (Wash. 2014).
210
200
law in a transaction, an opinion of counsel remains just that, an opinion. It is not
binding on tribal courts. To obtain certainty on the validity, binding effect and
enforceability of a contract under tribal law, a tribe could enact a tribal law
authorizing submission of those and other issues regarding a specific transaction
for a binding determination by the highest court of the tribe. Known as a validation
action, the determination of questions so presented and determined would be
binding on the tribe and its courts, thereby provide certainty before a transaction
becomes final and binding. If one or more of the parties is not satisfied with the
tribal court’s determination, they could seek alternatives that would comply with
applicable tribal law or terminate the transaction before it becomes final and
binding.
5. Exhaustion of Tribal Remedies
Even when federal courts have jurisdiction over an on-reservation matter,
the court may be required as a matter of comity to abstain from the exercise of
jurisdiction or dismiss the case until the parties have exhausted available tribal
remedies, administrative and judicial, on whether all or part of the matter in dispute
is a matter within the jurisdiction of the tribe. 213 There are limited but important
exceptions to the exhaustion requirement. 214 When parties have exhausted their
tribal remedies, they may return to federal court. There, a tribal court’s
determination of tribal law is binding on the federal court. Questions of tribal court
jurisdiction, a question of federal law, are reviewed by federal courts on a de novo
basis. 215 There are other issues raised by the exhaustion of remedies rule of
comity. Suffice it to say, parties should seek legal advice specific to their
transaction to understand how it affects the transaction and dispute resolution.
213
National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 485 (1985);
Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 1987); Grand Canyon Skywalk Development,
LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196 (9th Cir. 2013), cert. denied, 134 S. Ct. 825 (2013).
214
El Paso Natural Gas Company v. Neztsosie, 526 U.S. 473 (1999); Strate v. A-1 Contractors,
520 U.S. 438 (1997); Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014) (holding that
agreement to a tribal court forum in a payday loan contract did not create tribal court subject matter
jurisdiction over a non-member or require exhaustion of tribal remedies where federal law
requirements for the exercise of tribal jurisdiction over a non-member were not met).
215
Arizona Public Service Company v. Aspaas, 77 F.3d 1128, 1132 (9th Cir. 1995).
201
6. Foreign Corporations
Corporations and other entities organized under the laws of a jurisdiction
other than that of the state where they seek to do business generally are
considered “foreign corporations” and typically need to take affirmative steps to
qualify to do business in states other than their place of incorporation or
organization. Similarly, corporations and other entities incorporated or organized
under the law of a jurisdiction other than of an Indian tribe governing a reservation
where they seek to do business may need to qualify to do business within the
reservation in accordance with applicable tribal law 216 as a condition of having
access to the courts of that tribe. 217
VI. FEDERAL AND TRIBAL APPROVALS
A. Federal Approvals
As noted in section III above, 25 U.S.C. § 177 provides in part: “No
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.” Set forth below are statutes authorizing leases and other
conveyances of interests in tribal lands.
1. Surface Leases
Before 1955, Congress enacted a number of laws authorizing relatively
short leases of the surface of tribal land, often for limited purposes or named
reservations. 218 Until 1990, only tribes which voted to accept the Indian
Reorganization Act of 1934 (IRA) 219 were authorized to obtain charters for section
17 corporations granting authority to lease tribal land for a maximum of 10 years.
The 1990 amendments to section 17 expanded authority to obtain leases to all
216
5 NNC § 3166; 5 NNC § 3170.
5 NNC § 3174(A). See Graven v. Morgan, Navajo Supreme Court, No. SC-CV-32-10
(November 2012) at 10.
218
E.g., 25 U.S.C. § 402a (1927) (farming for 10 years); 25 U.S.C. § 403a (1927) (Port Madison,
Swinomish and Tulalip Reservations not to exceed 25 years).
219
25 U.S.C. §§ 460 (1948).
217
202
federally recognized tribes, and expanded the term of such leases and mortgages
by such corporations to 25 years.
In 1955, Congress enacted the Indian Long-Term Leasing Act, 25 U.S.C. §
415, authorizing surface leases of “[a]ny restricted Indian lands, whether tribal or
individually owned,” by the trust owners with BIA approval “for public, religious,
educational, recreational, residential or business purposes, including the
development or utilization of natural resources in connection with operations under
such leases, for grazing purposes, and for those farming purposes which require
the making of substantial investment in improvement of the land for the production
of specialized crops.” Surface leases under section 415 may not authorize
exploration, development or extraction of any mineral resources. Section 415, as
amended in 2012, authorizes, among other things, the following regarding tribal
land:
•
•
•
Leases of the surface of tribal land for business and other purposes for a
term up to 25 years (except for grazing purposes restricted to 10 year
terms), which leases may authorize renewal for one additional term, not to
exceed 25 years, all such leases requiring approval of the tribal landowner
and BIA;
Leases of the surface of named reservations and certain other lands for up
to 99 years, all such leases requiring approval of the tribal landowner and
BIA, provided that such leases may authorize renewal of one additional
term not to exceed 25 year term if the base lease is for a term of not more
than 74 years;
Subject to and in accordance with tribal leasing regulations approved by the
Secretary of the Interior, all Indian tribes may lease tribal lands for
agricultural and business purposes without BIA approval for up to 25 years,
with two options, each for up to 25 years. 220
Before approving a lease or any extension of an existing lease, where BIA
approval is required, section 415 requires the BIA to satisfy itself that adequate
consideration has been given to the use of the leased land and the use of
neighboring land; the height, quality, and safety of any structures or other facilities
to be constructed on such lands; the availability of police and fire protection and
220
25 U.S.C. § 415(b), (e)-(h) (1959); Helping Expedite and Advance Responsible Tribal Home
Ownership Act of 2012, Pub. Law No. 112-151, 126 Stat. 1150.
203
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 land will be subject. Under this authority, the BIA may condition its
approval of a lease.
As authorized by section 415(a) for leases requiring BIA approval, the BIA
has adopted regulations regarding surface leases. 221 These regulations were
substantially revised in 2012. As revised, Part 162, Subpart A includes general
provisions, 222 Subpart B applies to agricultural leases, Subpart C applies to
residential leases, Subpart D governs business leases, Subpart E applies wind
energy evaluation and wind and solar resource leases, and Subpart F governs
leases on certain named reservations. 223 Where BIA approval is required of
leases, the Part 162 regulations govern, among other matters, amendments,
subleases, assignments, encumbrances of leases, and foreclosure of
encumbrances.
2. Mineral Leases and Mineral Agreements
After enactment in 1938 of the Indian Mineral Leasing Act, 25 U.S.C. §§
396a – 396g, and subsequently the Indian Mineral Development Act of 1982, 25
U.S.C. §§ 2101 – 2108, these laws and their respective implementing regulations
became the primary authorities for developing minerals on most tribal land. 224
Regulations implementing these statutes are found at 25 C.F.R. Parts 211 and
216 (Indian Mineral Leasing Act) and 225 (Indian Mineral Development Act of
1982). Both laws require tribal and BIA approval of tribal mineral leases and
mineral development agreements, as applicable. 225
221
25 C.F.R. Ch. 1 Pt. 162 (2012).
Among the general provisions are new sections addressing laws applicable to leases approved
under Part 162 and federal, tribal, and state taxes applicable to leases approved under Pt 162. 25
C.F.R. §§ 162.014 and 162.017 (2012), respectively. A recent federal court decision relying in part
on 25 C.F.R. § 162.017 (2012) holds that Florida’s rental tax on non-member tenants leasing
property from the Seminole Tribe of Florida is preempted by federal law. Seminole Tribe of Florida
v. Florida, Department of Revenue, 2014 WL 4388143 (S.D. Fla. 2014).
223
77 C.F.R. § 72440 (December 5, 2012).
224
Exceptions apply to Navajo Nation oil and gas in Utah, See Utah v. Babbitt, 57 F.3d 1145 (10th
Cir. 1995), and tribal minerals in Oklahoma. See also 30 U.S.C. § 1300(c) regarding coal leases.
225
25 U.S.C. § 396a; 25 U.S.C. § 2102(a). For more on tribal mineral development, See COHEN’S
HANDBOOK § 17.03[2] (2012); Lynn Slade, Mineral and Energy Development on Native American
Lands: Strategies for Addressing Sovereignty, Regulation, Rights, and Culture, 56TH ANNUAL
ROCKY MOUNTAIN MINERAL LAW INSTITUTE (2010). See also Michael Webster, Negotiating and
222
204
3. Tribal Energy Resource Agreements
The Energy Policy Act of 2005 authorized tribal parties to Tribal Energy
Resource Agreements (TERAs) to issue leases, business agreements and rights
of way for mineral energy development without BIA. 226 This authority has not
gained substantial traction to date, due significantly to the complex regulatory
requirements for BIA approval of TERAs.
4. Rights of Way
Before 1948, Congress had enacted a number of statutes authorizing rights
of way across tribal land for various uses. 227 Though these earlier authorities were
not amended or repealed by enactment of the General Right of Way Act in 1948,
25 U.S.C. §§ 323-328, rights of ways over tribal land are now granted under the
implementing regulations adopted by the BIA. 228 For all rights of way governed by
the 1948 Act, the BIA is the grantor; the BIA in turn must comply with applicable
federal environmental laws before granting such rights of way. However, the BIA
will grant a right of way over tribal land only with the prior written consent of the
tribe. 229 For hydroelectric projects licensed under the Federal Power Act, 230 the
Federal Energy Regulatory Commission may authorize use of tribal lands,
including rights of way over tribal land. 231
In response to the Supreme Court’s decision in Strate v. A-1 Contractors, 232
narrowly construing tribal authority over certain rights of way and non-members on
such rights of way, some tribes impose stringent conditions on their consents to
Drafting Indian Mineral Development Agreements, Natural Resources Development and
Environmental Regulation in Indian Country, ROCKY MOUNTAIN MINERAL LAW INSTITUTE (1999); Tim
Vollmann, Federal Approval of Mineral Development on Indian Lands Natural Resources
Development and Environmental Regulation in Indian Country, ROCKY MOUNTAIN MINERAL LAW
FOUNDATION (1999).
226
25 U.S.C. § 3504 (2014); 25 C.F.R. Pt. 224.
227
E.g., 25 U.S.C. §§ 311-322 (2012).
228
25 C.F.R. Pt. 169 (2012).
229
25 C.F.R. § 169.3(a) (2012).
230
25 U.S.C. § 326 (2012).
231
16 U.S.C. § 797(e) (2012). See Escondido Mutual Water Co. v. LaJolla Band of Mission Indians,
466 U.S. 765 (1983).
232
Strate v. A-1 Contractors, 520 U.S. 438 (1997).
205
new rights of way, which consent the BIA must receive before granting a right of
way over tribal land. 233 Still other tribes refuse to consent to rights of way under 25
U.S.C. §§ 323-324. Instead, some tribes may issue rights of way in the form of
linear leases pursuant to a leasing authority, such as 25 U.S.C. § 415, subject to
BIA approval where applicable, because tribes have greater regulatory authority
over leased land and persons thereon. 234
On June 17, 2014, the BIA published proposed regulations that would
substantially revise the Part 169 right-of-way regulations. 235 The proposed
regulations include provisions regarding applicable law and federal, tribal and state
taxes applicable to ROWs approved under Part 169 substantially similar to those
adopted by the BIA for leases approved under 25 C.F.R. Part 162. Compare
proposed ROW regulations 25 C.F.R. §§ 169.008 (applicable law) and 169.009
(taxes) with 25 C.F.R. §§ 162.014 (applicable law) and 162.017 (taxes). 236 Other
important provisions, that are either new or substantially revised in the proposed
regulations, address ROW term limits, compensation, assignments and
mortgages, compliance, enforcement and remedies.
5. Encumbrances
Before enactment of the Indian Tribal Economic Development and Contract
Encouragement Act of 2000, 237 25 U.S.C. § 81 governed a broad but uncertain
category of agreements with Indian tribes for “services . . . relative to their lands.”
The vagueness of section 81 and the draconian effect of non-compliance with
section 81 played out in litigation whether agreements approved by tribes but not
the BIA should be set aside, 238 including contracts where the BIA had opined that
233
25 C.F.R. § 169.3(a) (2012).
Under a TERA are approved under 25 U.S.C. § 3504 and 25 C.F.R. Pt 224 (2014), a tribe may
grant certain energy related rights of way without BIA approval. To date, however, no TERA have
been approved by the BIA.
235
Rights-of-Way on Indian Lands, Proposed Rule, 79 C.F.R. 34455 (June 17, 2014).
236
The federal district court for the southern district of Florida recently relied in part on the BIA’s
leasing regulation 25 C.F.R. § 162.017 (2012) to hold that Florida’s rental tax on non-member
tenants leasing property from the Seminole Tribe of Florida is preempted by federal law. Seminole
Tribe of Florida v. Florida, Department of Revenue, 2014 WL 4388143 (S.D. Fla. 2014).
237
To Encourage Indian Economic Development, Pub. Law No. 106-179 (2000), 114 Stat. 46.
238
Quantum Entertainment Limited v. U.S. Department of the Interior, 714 F.3d 1338, (D.C. Cir.
2013), cert. denied, 134 S. Ct. 1787 (2014); Penobscot Indian Nation v. Key Bank of Maine, 112
F.3d 538 (1st Cir. 1997); Altheimer & Gray v. Sioux Manufacturing Corp., 983 F.2d 803, 810 (7th
234
206
its approval was not required based on its assessment that the agreement was not
subject to section 81. 239
As revised in 2000, section 81 is a substantial improvement. Section 81(b)
provides that “No agreement or contract with an Indian tribe that encumbers Indian
lands for a period of 7 years or more shall be valid unless that agreement or
contract bears the approval of the Secretary of the Interior or a designee of the
Secretary.” The term “encumber” is not defined in section 81. Regulations adopted
by the BIA to implement revised section 81 provides that “’Encumber’ means to
attach a claim, lien, charge, right of entry or liability to real property (referred to
generally as encumbrances). Encumbrances covered by this part may include
leasehold mortgages, easements, and other contracts or agreements that by their
terms could give to a third party exclusive or nearly exclusive proprietary control of
tribal land.” 25 C.F.R. § 84.002. Helpfully, the regulations also list types of
contracts and agreements that do not require BIA approval under section 81. 240
As a threshold matter, section 81 excludes from its scope, but not the scope
of any other applicable law, the need for BIA approval of any contract or
agreement that encumbers tribal land for a term of less than 7 years. Unlike its
prior incarnation where courts afforded no meaningful deference to BIA
determinations regarding inapplicability of section 81 to certain contracts, 241
section 81(c) now provides that section 81(b) “shall not apply to any agreement or
contract that the [BIA] determines is not covered under that subsection.” 242
6. Indian Gaming
The Indian Gaming Regulatory Act makes management contracts for
operation of class II and class III Indian gaming activities subject to approval by
Cir. 1993); Gasplus, L.L.C. v. United States Dep’t of Interior, 510 F. Supp. 2d 18 (D.D.C. 2007);
Pueblo of Santa Ana v. Hodel, 663 F. Supp. 1300 (D.D.C. 1987).
239
Barona Group of Capitan Grande Band of Mission Indians v. American Management &
Amusement, Inc., 840 F.2d 1394 (9th Cir. 1987), cert. denied, 487 U.S. 1274 (1989); Winnebago
Business Committee v. Koberstein, 762 F.2d 613 (7th Cir. 1985).
240
25 C.F.R. § 84.004 (2014).
241
E.g., A.K. Management Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir.
1986).
242
25 U.S.C. § 81(c) (2014).
207
the chairman of the National Indian Gaming Commission. 243 Management
agreements lacking such approval are not enforceable. 244
7. Consequences of Federal Approvals
A. Tribal Actions Involving Federal Approvals
Actions by federal agencies on proposals to approve tribal contracts,
leases, mineral agreements, and encumbrances, and granting rights of way are
federal actions. Generally, such actions must be consistent with applicable federal
law, including the Administrative Procedure Act. Where a specific federal action is
subject to administrative appeal, administrative remedies must be exhausted in
most cases before review may be had in federal court, if the action is of a type
subject to judicial review. The BIA has rules governing administrative appeals of
BIA actions. 245 The Department of the Interior has rules governing appeal of BIA
actions to the Interior Board of Indian Appeals. 246
With limited exceptions, the BIA must comply with procedural requirements
of applicable federal environmental laws and regulations before taking action on
proposal, such as requests to approve tribal leases or mineral agreements, grant
rights of way over tribal and individual Indian land, provide funds for projects, and
authorize direct BIA actions. Key federal environmental laws and regulations and
an executive order triggered by proposals for BIA and other federal actions are:
•
•
•
•
National Environmental Policy Act (NEPA), 42 U.S.C. § 4321; 40 C.F.R.
Parts 1500-1508
Endangered Species Act (ESA), section 7, 16 U.S.C. § 1536; 50 C.F.R.
Part 402
National Historic Preservation Act (NHPA), sections 106 and 110, 16 U.S.C.
§§ 470f and 470h-2; 36 C.F.R. Part 800
Coastal Zone Management Act (CZMA), 16 U.S.C. § 1456(c); 15 C.F.R.
Part 930
243
25 U.S.C. §§ 2710(d)(9) (2014); 25 C.F.R. § Pt, 553 (2014).
Wells Fargo Bank v. Lake of the Torches Economic Development Corporation, 677 F. Supp. 2d
1056, 1061 (W.D. Wis. 2010), aff’d, 658 F.3d 684 (7th Cir. 2011).
245
25 C.F.R. Pt. 2 (2014).
246
43 C.F.R. Pt. 4 (2014).
244
208
•
•
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §
1855 (consultation regarding actions that may adversely affect “essential
fish habitat”)
Executive Order 11988 (floodplain management)
The Department of the Interior has adopted agency-wide NEPA
regulations. 247 These regulations are supplemental by NEPA provisions of the
Departmental Manual (DM), 516 DM 1-15, which provides agency and bureauspecific guidance on NEPA implementation. Of special importance for BIA actions
is 516 DM 10, Managing the NEPA Process - Bureau of Indian Affairs. In addition
to agency-wide categorical exclusions included in 43 C.F.R. Part 46, this chapter
lists categorical exclusions specific to BIA actions. Where a categorical exclusion
is applicable and extraordinary circumstances do not require otherwise, the BIA
need not prepare either an environmental impact statement or an environmental
assessment for its proposed actions. 248
The President has issued a number of executive orders and memoranda
giving policy direction to federal executive agencies. Among these is Executive
Order 13175, issued by President Clinton, directing federal agencies to consult
with Indian tribes on certain matters. On November 5, 2009, President Obama
issued a Memorandum directing all federal executive agencies to develop policies
on implementation of Executive Order 13175. On December 1, 2011, after
consultation with Indian tribes, Secretary of the Interior, Salazar, issued Secretarial
Order 3317 updating, expanding and clarifying the Department of the Interior
Policy on Consultation with Indian Tribes.
Section 10 of Executive Order 13175 provides: “Judicial Review. This order
is intended only to improve the internal management of the executive branch, and
is not intended to create any right, benefit, or trust responsibility, substantive or
procedural, enforceable at law by a party against the United States, its agencies,
or any person.” Although compliance with executive orders containing such a
clause may not be subject to judicial review, Executive Orders are intended to and
do have real world consequences. It is clear that the Department of the Interior
and other federal agencies are taking Executive Order 13175 seriously during the
Obama Administration.
247
248
43 C.F.R. Pt. 46 (2014).
National Environmental Policy Act of 1969, 516 DM 10.
209
Regardless of whether federal approval is required, activities under a
contract with an Indian tribe on or outside an Indian reservation must comply with
applicable federal environmental laws, including applicable permit requirements.
This includes, as applicable, the Clean Water Act, Rivers and Harbors Act, Clean
Air Act, Resource Conservation and Recovery Act, Endangered Species Act,
Native American Graves Protection and Repatriation Act, and Archaeological
Resources Protection Act.
B. Tribal Actions Not Requiring Federal Approvals
Federal approvals or grants are not required for the following tribal actions:
•
•
•
•
•
Leases and mortgages of tribal land for 25 years or less by tribal
corporations chartered under 25 U.S.C. § 477, subject to the restrictions on
tribal corporation powers set forth in corporate charters (some older section
17 charters require BIA approval of leases)
Leases up to 75 years granted by tribes designated in 25 U.S.C. § 415(b),
(e) and (h), once the BIA approves tribal leasing regulations 249
TERA authorized leases, business agreements and rights of way involving
energy development up to 30 years, with a renewal term up to another 30
years (and leases up to 10 years for production of oil resources, gas
resources, or both, and for so long thereafter as oil or gas is produced in
paying quantities)
Agreements and contracts encumbering tribal land for less than 7 years, 25
U.S.C. § 81(b), 25 C.F.R Part 84
Other actions Indian tribes may take independent of the need for any
federal action or approval, such as developing tribal facilities, including
tribal business facilities, on tribal land.
Where tribal action may be taken without BIA action or approval, federal
environmental laws triggered by federal agency action do not apply. However,
tribal actions may require action by other federal agencies. For example, a tribal
project may require a permit issued by the United States Army Corps of Engineers
(Corps) for the discharge of dredged or fill material into waters of the United States
249
HEARTH Act of 2012, Pub. Law No. 112-151, 126 Stat. 1150. E.g., Navajo Nation Council
Resolution CO-53-13 (2013).
210
pursuant to section 404 of the federal Clean Water Act 250 or a permit from the
Environmental Protection Agency (EPA) for the discharge of a pollutant from a
point source to waters of the United States, including discharges of stormwater
associated with construction activities, under section 402 of the Clean Water
Act. 251 Where a federal agency is proposing to take action in issuing a permit, it
must comply with all applicable laws and regulations for its proposed action.
When federal agency action is not required for a project, or the scope of
agency discretion and control over a project is substantially limited, this can
reduce the costs and the time it takes to develop a project as well as the risks of
administrative appeals and federal judicial review triggered by federal agency
action. However, many tribes have their own land use and environmental laws,
regulations and procedures. The absence of a federal approval or permit does not
mean that tribal land use and environmental reviews, permits and approvals are
not required.
C. Tribal and Tribal Entity Approvals
As with any entity, validly authorized, executed and delivered approvals are
essential to contracts with Indian tribes and tribal entities. Tribal officers and
agents of Indian tribes, tribal political subdivisions, unincorporated tribal entities
and enterprises, tribal government corporations, section 17 corporations and tribal
entities acting as arms and instrumentalities of Indian tribes do not have inherent
or implied authority to bind their respective governmental principals. 252
The authority of tribal officers and agents depends in the first instance on
the tribal constitution, if a tribe has one (not all tribes have a written constitution),
other tribal laws (including applicable tribal court decisions), ordinances and
resolutions of the tribal government, plan of operation or other documents for an
unincorporated tribal entity, and the charter or articles of incorporation of an
incorporated tribal entity. Since tribal constitutions, laws, ordinances, plans of
operation, and charters or articles of incorporation frequently do not grant direct
authority to act to such officers or agents, a resolution or other authorizing action
of the governing body of tribe or other tribal entity generally must be adopted or
250
33 U.S.C. § 1344 (1948).
33 U.S.C. § 1342 (1948).
252
(Cal. App. 1985).
251
211
issued granting a tribal officer, agent or other designated person authority to
execute and deliver contract documents. In any significant transaction, most Indian
tribes and tribal business entities will provide such resolutions.
In a significant decision elaborating these concepts, the Sac and Fox
Supreme Court held in United Planners’ Financial Services of America, a limited
partnership v. Sac and Fox Nation, Sac and Fox Housing Authority that the
general and valid authorization by the Sac and Fox Business Committee granting
designated tribal officers authority to enter a variety of contracts was valid, but did
not clearly and expressly authorize those officers to waive tribal sovereign
immunity. 253 In consequence, the Court found that the general provisions of
agreements executed by tribal officials in accordance with tribal authorizations
were binding on the Sac and Fox Nation, including the Nation’s promise to resolve
disputes by arbitration, but that the waivers of sovereign immunity included in
those same agreements were not authorized or valid. Thus, affirmative relief
against the Nation to compel it to submit to arbitration was barred by the Nation’s
sovereign immunity. At the same time, the Nation was bound by its promise to
resolve disputes by arbitration rather than by filing an action in any court, including
the Nation’s courts, to resolve a dispute.
VII. LAND STATUS AND TITLE ISSUES
A. Tribal Trust Land
For tribal and individual Indian trust land, including fee land taken into trust
by the United States under 25 U.S.C. § 465 or otherwise, the United States is the
owner of the fee in trust for the respective tribe or individual Indian owner. Trust
land is not subject to state and local taxes or land use laws or environmental
regulations unless Congress has expressly provided otherwise, or the BIA’s
discretionary process for taking fee land into trust imposes the equivalent of such
requirements as a condition of taking land into trust. 254 While there are some
253
United Planners’ Financial Services of America, a limited partnership v. Sac and Fox Nation,
Sac and Fox Housing Authority, APL-12-01 (Sac and Fox Nation Sup. Ct. Sept. 26, 2013).
254
25 C.F.R. § 1.4 (1965). Compare Santa Rosa Band of Indian v. Kings County, 532 F.2d 655
(9th Cir. 1975), cert. denied, 429 U.S. 1038 (1977) and Snohomish County v. Seattle Disposal
Company, 425 P.2d 22 (Wash.), cert. denied, 389 U.S. 1016 (1967), both concluding tribal trust
land is not subject to local land use laws, with Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007)
(Maine has permitting authority under section 402 of the Clean Water Act on the Penobscot and
Passamaquoddy Reservations based on the Maine Indian Claims Settlement Act).
212
exemptions, non-members doing business on a reservation are not automatically
exempt from generally applicable state and local taxes for activities occurring on or
property used on reservation land. Tax issues are discussed in Section X below.
B. Fee Land
As a result of allotment and other actions, lands within a reservation may be
owned in fee by tribes, Indians, non-Indians and non-Indian entities. It is relatively
common for allotted land to be owned in undivided interests among a tribe, tribal
members, Indians from other reservations, non-members, and even state and
local governments. In approving a lease of trust land, the BIA will not lease any fee
interest in Indian land. 255
Fee land is subject to applicable state and local taxes, notwithstanding
ownership by a tribe or Indian on the reservation of the tribe or where the Indian is
a tribal member. 256 Pursuant to 25 U.S.C. § 465, the BIA may acquire fee land in
trust for Indian tribes and Indians or any interest in land, water rights or surface
rights. Once land is held in trust, BIA regulations provide that none of the laws,
ordinances codes, resolutions, rules, or other regulations of any state or political
subdivision of any state limiting, zoning or otherwise governing, regulating, or
controlling the use or development of real property shall be applicable to any such
property leased or used under any agreement with any Indian tribe that is held in
trust by the United States for such tribe. 257
Regulations governing the “fee-to-trust” process are found at 25 C.F.R. Part
151. The time to complete such transactions can be quite long. Unless Congress
mandates acquisition of land into trust, such that the BIA exercises no discretion
whether to take such land into trust, the BIA must comply with procedural
requirements of applicable federal environmental laws before making a
discretionary decision and action on a “fee-to-trust” request.
255
25 C.F.R. § 162.004(a)(1)(2011).
County of Yakama v. Confederated Tribes and Bands of Yakama Indian Nation, 502 U.S. 251
(1992).
257
25 C.F.R. § 1.4 (1965).
256
213
C. Title Records
The BIA’s land records and title document regulations are found at 25
C.F.R. Part 150. "The purpose of recording is to provide evidence of a transaction,
events or happening that affects land titles; to preserve a record of the title
documents; and to give constructive notice of the ownership and change of
ownership and the existence of encumbrances of the land.” 258 The phrase “title
document” is defined as “any document that affects the title or encumbers Indian
land and is required to be recorded by regulation or Bureau policy.” 259
The BIA maintains regional “Land Titles and Records Offices” and other
offices with title services responsibilities. 260 Responsibility for recording title
documents is on the BIA official who approves title documents or accepts title. 261
The BIA’s Land Titles and Records Offices will prepare upon request a title
status report (TSR). 262 Certified TSRs take more time to prepare and obtain than
informal TSRs. Certified copies of BIA title documents are admissible in evidence
the same as originals. 263
“The usefulness of a Lands Titles and Records Office depends in large
measure on the ability of the public to consult the records contained therein.” 264
The BIA regulation so stating adds that it is BIA policy “to allow access to land
records and title documents unless such access would violate the Privacy Act, 5
U.S.C. 552a or other law restricting access to such records, or there are strong
policy grounds for denying access where such access is not required by the
Freedom of Information Act [FOIA], 5 U.S.C. 552.” As a matter of BIA policy,
“unless specifically authorized, monetary considerations will not be disclosed
insofar as leases of tribal land are concerned.” 265
258
25 C.F.R. § 150.2(m) (2012).
25 C.F.R. § 150.2(l) (2012).
260
25 C.F.R. §§ 150.4 and 150.5 (2012).
261
25 C.F.R. § 150.6 (2012).
262
25 C.F.R. § 150.8 (2012) (the phrase “Title status report” is defined in 25 C.F.R. § 150.2(o)).
263
25 C.F.R. § 150.10 (2012). See Michael Webster, Examination of Title to Indian Lands, Natural
Resources Development and Environmental Regulation in Indian Country, Rocky Mountain Mineral
Law Foundation (1999).
264
25 C.F.R. § 150.11(a) (2012).
265
25 C.F.R. § 150.11(a) (2012). See Philip Lear and Christopher Jones, Access to Indian Land
and Title Records: Freedom of Information, Privacy and Related Issues, Natural Resources
259
214
Because BIA Land Titles and Records Office documents are agency
records, they are subject to FOIA and countervailing mandates of the Privacy Act.
In some cases, BIA Land Titles and Records Offices require requesters to submit
written FOIA requests before providing copies of documents or making documents
available for inspection and copying. Where it is clear that a request does not seek
information exempt from disclosure under law or policy and the request is not
burdensome, BIA staff may provide uncertified documents upon request without
requiring a FOIA request.
Title records to reservation fee land are maintained by the applicable state
and local agencies. Because it is not always clear from the BIA’s land records and
title document regulations, or other law, where the appropriate place of recording
is located, out of an abundance of caution, parties occasionally record documents
with the state or local place of recording, in addition to recording through the BIA.
Under the Indian Self-Determination and Education Assistance Act 266 and
similar laws, 267 Indian tribes may contract with the BIA to take over certain BIA
programs. Under this authority, several tribes have assumed responsibility for
managing land title records on their reservations. Where this is so, access to land
title records may be obtained through the applicable tribe or if that proves
impractical through the BIA at its applicable agency or region office.
VIII. FORM OF THE TRANSACTION
Sophisticated parties design business transactions, consistent with the
business purpose and need of the transaction, to minimize government regulatory
burdens and taxes. In so designing business transactions, parties evaluate options
on how to organize the transaction, including the form of the transaction, to these
ends.
The same can be done in contracts with Indian tribes. An entire paper, and
more, could be written on the subject of the form of the transaction with an Indian
Development and Environmental Regulation in Indian Country, Rocky Mountain Mineral Law
Foundation (1999).
266
25 U.S.C. § 450 (2012).
267
E.g, Tribal Self-Governance Act, 25 U.S.C. §§ 458aa - 458aaa-18 (2012).
215
tribe and its practical consequences for all parties (and some non-parties as well).
To illustrate the point, listed below are comments on certain transactions forms
which can have significant consequences for the parties (and, as noted, others as
well). As is true in the general business world, due diligence should be conducted
before selecting a particular form in assessing its benefits and risks compared to
other alternatives.
•
•
•
•
•
Lease versus Management Agreement – a state may impose a business
activity tax on a tribe’s lessee measured by sale of natural resources
produced under the lease, 268 while the state could not impose a tax on a
tribe’s production and sale of the same natural resource with the assistance
of a non-member under a management, service or operating agreement; a
state’s tax on compensation paid to a non-member for services under the
management, service or operating agreement likely would be substantially
less than a state business activity tax imposed on a non-member lessee.
A state may tax the leasehold interest of a non-member lessee of tribal land
but not the tribal land itself 269
A tribal lease requiring BIA approval cannot be approved until the BIA
complies with applicable federal procedural environmental laws while a
section 17 corporation may grant a lease without BIA approval
Financing secured by leasehold mortgage of a lease granted under 25
U.S.C. § 415 versus financing secured by a letter of credit or otherwise not
encumbering tribal land
An encumbrance less than 7 years does not require BIA approval while an
encumbrance of 7 years or more does and cannot be approved until the
BIA complies with applicable federal procedural environmental laws
268
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989). See also Ute Mountain Ute Tribe
v. Rodriguez, 660 F.3d 1177(10th Cir. 2011) (2-1 decision in favor or state, despite Tribe’s proof
that state tax imposed a substantial economic burden on Tribe and of near zero on-reservation
state services or interests other than revenue collection), cert. denied, 132 S. Ct. 1557 (2012).
269
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) (same); Ute Mountain Indian Tribe
v. Rodriguez, 660 F.3d 1777 (10th Cir. 2011) (same), cert. denied, 132 S. Ct. 1557 (2012); Fort
Mohave Tribe v. San Bernardino County, 533 U.S. 1253 (9th Cir. 1976); Agua Caliente Band of
Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971), cert. denied, 405 U.S. 933
(1972); Pimalco, Inc. v. Maricopa County, 937 P.2d 1198 (Ariz. App. 1997). But See Seminole
Tribe of Florida v. Florida, Department of Revenue, 2014 WL 4388143 (S.D. Fla. 2014), relying in
part on 25 C.F.R. § 162.017 (2012), to hold that holds that Florida’s rental tax on non-member
tenants leasing property from the Seminole Tribe of Florida is preempted by federal law.
216
•
Rights of way granted by BIA, with tribal consent, may restrict tribal
authority more than a linear lease granted by a tribe with BIA approval
This is not to suggest that form can be elevated over substance, particularly
when doing so would frustrate congressional policy. In Utah v. Babbitt 270 the Tenth
Circuit held that an operating agreement between the Navajo Nation and Chuska
Energy Company was subject to requirements of a 1933 act mandating that 37½%
of net royalties accruing from production of oil and gas derived from “tribal leases”
on the Aneth Extension of the Navajo Nation in Utah should be paid to the State of
Utah, which was statutorily bound to use such “tribal lease” revenue “for the
health, education, and general welfare” of Navajo Indians living in San Juan
County, Utah. 271 Although the 1933 act, as amended, did not and no regulations
implementing that act defined “tribal leases,” the court of appeals held that the
agreement “bears many of the most significant characteristics of a typical lease.”
Moreover, not applying the royalty sharing requirements of the 1933 act, as
amended, to the agreement “would contravene Congress’ intent to provide aid to
Navajos residing on the added lands . . . simply because such royalties were
derived from an instrument basically similar to a tribal lease but bearing a different
title.” 272 As a result, the court of appeals held the district court did not err in
ordering the BIA to administer royalties under the Navajo-Chuska operating
agreement and require payment to Utah consistent with the 1933 act.
Form of the agreement issues should be evaluated by and among relevant
parties, some of whom may not be parties to the main transaction agreement
(such as state tax authorities), as early as possible in the transaction process.
Once parties commit to negotiation of a particular transaction form, internal
approvals and investments of time and other resources, as well as changes in
federal, tribal and state laws and governmental officials, may limit the ability or
willingness of relevant parties to change direction.
270
Babbit, 53 F.3d 1145 (10th Cir. 1995).
Act of March 1, 1933, 47 Stat. 1418, as amended, 82 Stat. 121 (1968). See Pelt v. Utah, 539
F.3d 1277 (10th Cir. 2008).
272
Roy Al Boat Mngt Corp., 57 F.3d at 1149-1150.
271
217
IX. WATER RIGHTS
When a reservation is established, water rights sufficient for the purposes of
the reservation are impliedly reserved. 273 Tribal water rights often are the most
senior water rights in a stream or groundwater area. 274 As a result, tribal water
rights would be among the last to be interrupted during periods of drought or
shortage based on over-use of a water resource. These qualities can make tribal
water rights quite valuable.
Tribal water rights are generally considered to be appurtenant to trust land.
In consequence, transactions involving use of tribal water rights must be made
with consideration for restraints on alienation of tribal land imposed by 25 U.S.C. §
177. That said, the most common way in which rights to use tribal water may be
secured is through those agreements relating to use of tribal land enacted by
Congress, such as 25 U.S.C. §§ 81, 477, and 415. 275
The water rights of some tribes and reservations have been determined
through general stream adjudications 276 or other litigation 277 and water right
settlement agreements278 or other legislation approved by Congress. Where this is
273
Winters v. United States, 207 U.S. 564 (1908).
Arizona v. California, 547 U.S. 150 (2006) (consolidated decree identifies priority based on
dates certain Indian reservations were established and expanded); United States v. Adair, 723 F.2d
1394 (9th Cir. 1983) (establishing priority of “time immemorial for certain aboriginal uses and as of
the date the Klamath Reservation reserved by treaty for other uses).
275
Section 415 provides that restricted tribal land may be leased for various purposes, “including
development or utilization of natural resources in connection with operations under such leases.”
Water is a classic natural resource. Regulations issued by the BIA in 2012 under 25 U.S.C. §
415(a) (2012) acknowledge that the right to use of water may be incorporated into a surface lease.
25 C.F.R. § 162.006(b)(2) (2012).
276
Department of Ecology v. Yakima Reservation Irrigation District, 850 P.2d 1306 (Wash. 1993)
(Treaty rights, including but not limited to fishing rights).
277
U.S. ex rel. Lummi Nation v. Washington, 2007 WL 4190400 (W.D. Wash. 2007), aff’d, 328 Fed.
Appx. 462 (9th Cir. 2009).
278
Congressionally approved settlement agreements include White Mountain Apache Tribe Water
Rights Quantification Act of 2010, Pub. Law No. 111-291, 124 Stat. 3064 (2010); San Juan Navajo
Water Rights Settlement, Omnibus Public Lands Management Act, Title X, Part IV, Omnibus Public
Land Management Act of 2009, Pub. Law No. 111-11 123 Stat. 991 (2009); Gila River Indian
Community Water Rights Settlement, Title II, Arizona Water Rights Settlement Act, Pub. Law. No.
108-451, 118 Stat. 3478 (2004). Other Indian water rights settlement agreements entered without
congressional action include the Settlement Agreement Regarding Uses of Groundwater on the
Lummi Peninsula, Order and Judgment, United States and Lummi Nation v. State of Washington,
CV. 01-00147 (W.D.Wash. 2007), Moapa Paiute Water Settlement (2006) and the Warm Springs
Reservation Water Rights Settlement Agreement (1997).
274
218
so, tribal water rights available for commitment to a particular transaction should
be evaluated in light of rights secured by litigation or legislation, including
legislation that may authorize tribes to lease water for off-reservation uses. Where
tribal water rights have not been quantified by litigation, legislation or other
agreements, the priority, nature and extent of tribal water rights available for
commitment to a particular transaction should be carefully evaluated.
X. TAXATION
Tax considerations play an important and
significant business transactions. Those who do
Indians in Indian country may be subject to
subdivision taxes, 280 some but not all state and
sometimes determining role in
business with Indian tribes or
tribal taxes, 279 tribal political
local taxes, 281 and, of course,
279
Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195 (1985).
Quil Ceda Village (Tulalip Tribes) Municipal Tax Code, Resolution 02-0015; Navajo Nation Local
Governance Act authorizes Navajo Chapters to adopt ordinances establishing local taxes, 26 NNC
§ 103(E)(8).
281
States may not impose gross receipts or similar taxes on non-member sales to Indian tribes and
tribal members on their respective reservations. Central Machinery Co. v. Arizona State Tax
Commission, 448 U.S. 160 (1980) (based on the Indian Traders Act, 25 U.S.C. §§ 261 – 264
(2012), preemptively regulating non-member sales to Indian tribes and tribal members). States also
may not enforce state taxes against non-members for on-reservation activities where a
particularized inquiry into federal, tribal and state interests leads a court to determine in a casespecific context that the exercise of state law would violate federal law. Ramah Navajo School
Board, Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832 ((1982); White Mountain Apache
Tribe v. Bracker, 448 U.S. 136 (1980) (preempting state fuel tax on entity harvesting tribal timber
under comprehensive federal regulations, where vehicles consuming fuel never used state
highways and state conceded its only interest was in raising revenue). In Ramah Navajo as in
Bracker, the state taxing entity conceded that the state’s only interests in the transactions at issue,
taxation of a contractor building a school serving Navajo students, was state revenue collection.
280
Cases holding that specific state and local taxes on non-members are not preempted include:
Wagnon v. Prairie Band of Potawatomi Nation, 546 U.S. 95 (2005) (applying legal incidence of the
tax test, finding the tax was on a non-member, and rejecting a preemption challenge to that tax due
to the economic burden of state tax on the Nation, which relied on Bracker); Cotton Petroleum
Corp. v. New Mexico, 490 U.S. 163 (1989) (rejecting Bracker as basis for preemption);
Mashentuket Pequot Tribe v. Town of Ledyard, 722 F.3d 457 (2d Cir. 2013); Ute Mountain Indian
Tribe v. Rodriguez, 660 F.3d 1777 (10th Cir. 2011) (same), cert. denied, 132 S. Ct. 1557 (2012);
Barona Band of Mission Indians v. Yee, 528 F.3d 1184 (9th Cir. 2008) (same); Yavapai-Prescott
Indian Community v. Scott, 117 F.3d 117 (9th Cir. 1997) (same); Gila River Indian Community v.
th
Waddell, 91 F.3d 1232 (9 Cir. 1996); Salt River – Pima Maricopa Indian Community v. Arizona, 50
F.3d 734 (9th Cir.). cert. denied, 516 U .S. 868 (1995); Fort Mohave Tribe v. San Bernardino
County, 533 U.S. 1253 (9th Cir. 1976) (pre-Bracker), cert. denied, 430 U.S. 983 (1977); Agua
Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971) (preBracker), cert. denied, 405 U.S. 933 (1972); Calpine Construction Finance Company v. Arizona
219
applicable federal taxes. Whether and to what extent these taxes or tax credits or
abatements apply can vary significantly with the nature, form, and location (within
or outside Indian country, state-to-state and from Indian reservation-to-Indian
reservation) and specific parties involved in transactions with tribal entities and
Indians. 282 Indian tribes like other sovereigns have the power both to impose taxes
Department of Revenue, 211 P.3d 1228 (Ariz. App. 2009) (holding a state may tax a non-member’s
interest in improvements it owned under a lease of tribal land); Pimalco, Inc. v. Maricopa County,
937 P.2d 1198 (Ariz. App. 1997).
In Confederated Tribes of the Chehalis Indian Reservation v. Thurston County, 724 F.3d 1153 (9th
Cir. 2013), the Ninth Circuit held that a county tax on permanent improvements owned by a
Delaware limited liability company of which the Chehalis Tribe was a 51 percent owner with the
balance owned by a non-Indian entity could not be applied under a BIA-approved lease. The Ninth
Circuit cited United States v. Rickert, 188 U.S. 432 (1903), which held that a county tax on
permanent improvements on land owned by the United States in trust for Indian allottees was
preempted by the same logic preempting a state tax on the land owned by the United States. The
Ninth Circuit also relied on Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). There the
Supreme Court held that a state compensating use tax on permanent improvements to ski resort
land held in trust by the United States for the Mescalero Apache Tribe or its section 17 corporation
under a lease authorized by 25 U.S. § 465 (exempting land or interests in land from state taxes),
where the Court observed that it was “unclear from the record whether the [Mescalero Apache]
Tribe has actually incorporated itself as an Indian chartered corporation pursuant to” 25 U.S.C. §
477(Section 17 of the IRA) as “the two entities have apparently merged in important respects.” 411
U.S. at 157 n. 13. Following the Ninth Circuit’s decision, the Washington Department of Revenue
issued Tax Advisory, Taxation of Permanent Improvements on Tribal Trust Land, No. PTA
1.1.2014 (March 31, 2014, stating that state and local governments may not tax permanent
improvements on trust lands regardless of ownership of the improvements; noting the advisory
does not address applicability of state and local excise taxes to activities or transactions occurring
on trust land, including but not limited to the leasehold excise tax or taxes on possessory interests).
A regulation issued by the BIA that became effective in January 2012 states that “Subject only to
applicable Federal law,” les Sees of tribal and will not be liable for state and local taxes on activities
conducted by the les See in Indian country on the leasehold or for state and local taxes on the les
See’s leasehold interest in trust property. 25 C.F.R. § 162.017 (2012). The “applicable Federal law”
primarily relied upon in the preamble to the BIA’s rule is White Mountain Apache Tribe v. Bracker.
77 Fed. Reg. §§ 72440, 72447 - 72449 (December 5, 2012). The practical economic effect of this
rule in negotiations of lease terms dealing with cumulative burdens of tribal, state and local taxes
on non-member les Sees as well as legal actions that may be brought to challenge state and local
taxes on non-member les See of leases approved by the BIA under its new regulation, given the
record of Bracker-based challenges, remains to be determined. See Seminole Tribe of Florida v.
Florida, Department of Revenue, 2014 WL 4388143 (S.D. Fla. 2014), relying in part on 25 C.F.R. §
162.017 (2012), to hold that holds that Florida’s rental tax on non-member tenants leasing property
from the Seminole Tribe of Florida is preempted by federal law.
282
Federal tax provisions of interest to those engaged in business transactions on Indian
reservations include the Accelerated Depreciation Investment Tax Credit, 26 U.S.C. § 168(j)
(extended through December 31, 2013) and Credits for Employment of Indians on Indian
220
and grant credits, abatements, waivers, 283 and limitations on tribal and tribal
political subdivision taxes. Several states afford limited tax abatements and credits
for certain on-reservation business transactions. 284 Indian tribes and states also
have entered tax compacts or agreements addressing tax burdens for certain
business activities on Indian reservations. All parties involved in significant tribal
transactions should assess the full range and cumulative possible tax burden on
their transactions and evaluate options that may exist for sharing, limiting or
allocating those tax burdens and risks in order to improve their respective
contractual objectives.
XI. EMPLOYMENT ISSUES
In general, private employers are subject to generally applicable federal
employment and labor laws on Indian reservations.
In any significant contract with an Indian tribe for the use or development of
reservation natural resources, a term or condition of the contract will likely require
the non-tribal party to grant preferences in employment to Indians. Most Indian
tribes also have enacted Tribal Employment Rights Ordinances (TEROs)285 or
similar laws 286 requiring employers on Indian reservations to grant preferences in
employment to Indians. The Indian Self-Determination and Education Assistance
Act 287 requires contracts and subcontracts let under the Act and any other act
“authorizing Federal contracts with or grants to Indian organizations of for the
benefit of Indians, shall require that to the greatest extent feasible – (1)
preferences and opportunities for training and employment in connection with the
administration of contracts or grants shall be given to Indians.”
reservations, 26 U.S.C. § 45A (extended through December 31, 2013). Whether and if so how
these provisions will be extended depends congressional action.
283
E.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).
284
See California Rule 1616; RCW 82.29A.130(7) (establishing an exemption from Washington’s
leasehold tax for lease of trust land for which rent is at least (90% of “fair market rental” as
determined by Washington Department of Revenue) and WAC 458-20-192 (generally describing
state and local taxes which apply or do not apply in Indian country in Washington); NRS
361.157(2)(e) (establishing an exemption from Nevada’s leasehold tax for lease of trust land);
NMSA 7-9-88.1; Taxation Compact between the Southern Ute Indian Tribe, LaPlata County, and
the State of Colorado, CRS 24-61.
285
FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990).
286
E.g., Navajo Preference in Employment Act (NPEA), 15 NNC §§ 601-619 (2007).
287
25 U.S.C. § 450e(b) (2012).
221
Title VII of the 1964 Civil Rights Act prohibits employment discrimination by
covered employers. Indian tribes are excluded from Title VII’s definition of covered
employers. 288 The specific provision describing unlawful employment practices by
covered employers provides:
(a) Employer practices
It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race, color, religion,
sex, or national origin. 289
Subsection (i) of the same section provides covered employers an
exemption from liability for certain Indian preference practices. That subsection
provides:
(i) Businesses or enterprises extending preferential treatment to Indians
Nothing contained in this subchapter shall apply to any business or
enterprise on or near an Indian reservation with respect to any publicly
announced employment practice of such business or enterprise under
which a preferential treatment is given to any individual because he is an
Indian living on or near a reservation. 290
Many TEROS or similar tribal laws require preferences in employment for
members of the tribe enacting such laws, and in some cases non-member
spouses, before preferences in employment are afforded to other Indians. 291 Many
288
42 U.S.C. § 2000e(b)(1) (2012).
42 U.S.C. § 2000e-2(a) (1964).
290
42 U.S.C. § 2000e-2(i) (1964).
291
Where a tribal specific preference may be prohibited by an applicable federal law, some TEROs
require preferences first for Indians who are local residents and second for other Indians. Tulalip
Tribes TERO, Ordinance 60 and 89, §§ 4.1 and 4.2.
289
222
leases, some approved by the BIA, and contracts with Indian tribes and tribal
entities include tribal member preference requirements.
A United States Equal Employment Opportunity Commission (EEOC) Policy
Statement on Indian Preference Under Title VII provides that tribal member
employment preferences are not the equivalent of Indian preference. 292 Relying in
part on EEOC’s policy statement, the Ninth Circuit held in Dawavendewa v. Salt
River Project Agricultural Improvement and Power District that a tribal members’
specific employment preference is national origin discrimination under section
2000e-2(a) and not Indian preference under section 2000e-2(i). 293 Subsequent
litigation in the Ninth Circuit held that where an employment preference is required
under a tribal lease, tribal sovereign immunity bars a direct action by an aggrieved
employee against the employer but that EEOC is not barred by a tribe’s immunity
from suing the employer and joining the tribe in order to ensure complete relief
between the parties. 294 In still further litigation, the Ninth Circuit held that where a
tribal member employment preference is included in a lease approved by the BIA,
and where duties of the lessee run to and can be enforced by the Secretary of the
Interior on behalf of the United States as owner of the fee, the Secretary of the
Interior may be impleaded under Federal Rule of Civil Procedure 14 for injunctive
relief, but not damages. The court remanded the case to the district court for
consideration of arguments by the Secretary of the Interior on the legality of a
tribal specific preference included in a lease approved by the Secretary. 295
Drawing on the Morton v. Mancari holding that the BIA’s granting of Indian
preference in initial employment appointments and promotions pursuant to 25
U.S.C. § 472 is a political classification rather than racial classification, 296 the
District Court held on remand that the Navajo employment preference
implemented by Peabody under its BIA and Navajo Nation-approved leases is a
political classification rather than national origin discrimination prohibited by Title
VII. 297 In October 2014, the Ninth Circuit affirmed. 298 Recognizing that Morton v.
292
EEOC, Policy Statement on Indian Preference Under Title VII (May 16, 1988).
154 F.3d 1117 (9th Cir. 1998), cert. denied, 528 U.S. 1098 (2000).
294
EEOC v. Peabody Western Coal Company, 400 F.3d 774 (9th Cir.), cert. denied, 546 U.S. 1150
(2006).
295
EEOC v. Peabody Western Coal Company, 610 F.3d 1070 (9th Cir. 2010), cert. denied, 132 S.
Ct. 91 (2011).
296
417 U.S. 535 (1974).
297
Equal Employment Opportunity Commission v. Peabody Western Coal Company, No. 01-1050
(D. Ariz. October 18, 2012).
293
223
Mancari addressed general Indian preference by the federal government
authorized by federal law rather than tribal member specific employment
preference by a private employer, the Ninth Circuit held that “Mancari’s logic
applies with equal force where a classification addresses differential treatment
between or among particular tribes or groups of Indians.”299 The court added that
Title VII, as a “general antidiscrimination statute,” should not be read as
disapproving the Department of the Interior’s “longstanding and settled practice of
approving tribal hiring preferences in mineral leases.” 300 In December 2012, the
BIA issued a new regulation, 25 C.F.R. § 162.015, stating that a surface lease
approved by the BIA under 25 U.S.C. § 415 may include a provision, consistent
with tribal law, requiring a lessee to give a preference in employment to qualified
tribal members.
The Ninth Circuit’s most recent decision did not overturn its earlier holding
that a tribal-specific employment preference is actionable national origin
discrimination under Title VII. Thus, a tribal membership employment preference
granted by a covered employer outside an Indian reservation may be actionable
under Title VII. In addition, federal government contractors should be aware that
Office of Federal Contract Compliance Program regulations and Federal
Acquisition Regulations provide that federal contractors extending Indian
preference on or near an Indian reservation “shall not, however, discriminate
among Indians on the basis of . . . tribal affiliation.” 301 Thus, employment issues
continue to require careful attention.
XII. CORPORATIONS AND OTHER ENTITIES ESTABLISHED UNDER TRIBAL AND STATE
LAW BUT NOT TRIBALLY OWNED
Many Indian tribes have corporation codes allowing any person to
incorporate a private business corporation, nonprofit business corporation, or
limited liability company under tribal law. 302 An Indian tribe in the exercise of its
governmental authority also may issue a corporate charter to one or more persons
298
E.E.O.C. v. Peabody Western Coal Co., 768 F.3d 962 (9th Cir. 2014).
Id. at 972.
300
Id. at 971.
301
41 C.F.R. § 60.15(a)(7) (1975); 48 C.F.R. § 22.807(b)(4) (1983).
302
See discussion of tribal entities in Section II above. E.g., Colville Nonprofit Corporations
Chapter, Title 7, Chapter 7-2, Colville Tribal [Business] Corporation Chapter, Title 7, Chapter 7-3,
Colville Limited Liability Company Act, Title 7, Chapter 7-4.
299
224
or otherwise authorize incorporation of private business entities owned by
individuals, tribal members or not, under tribal law. 303 These business entities are
not Indian tribes or arms and instrumentalities of Indian tribes.
Any person, Indian or non-Indian, may incorporate or otherwise organize a
business under state law to transact business in whole or in part on an Indian
reservation. These business entities are not Indian tribes or arms and
instrumentalities of Indian tribes.
XIII. ALASKA NATIVE CORPORATIONS AND ALASKA INDIAN TRIBES
The Alaska Native Claims Settlement Act of 1971 (“ANCSA”) 304 directed the
incorporation under Alaska law of Alaska Native regional and village corporations
(ANCs) whose shares were issued to Alaska Natives. 305 ANCs are not Indian
tribes. As Alaska law corporations, ANCs do not have sovereign immunity. With
the exception of the Metlakatla Indian Reservation established by 25 U.S.C. § 495,
ANSCA extinguished Indian reservations previously established in Alaska 306 and
aboriginal Indian title in Alaska. 307 ANCSA authorized transfer of land to ANCs.
Land transferred to ANCs under ANCSA is not “Indian country” and is subject to
statutory restrains on leasing, sale, or transfer of tribal land held in trust and under
federal supervision. 308
ANCSA did not terminate the political relationship between Alaska Indian
tribes and the United States. Pursuant to 25 U.S.C. § 479a-1, the BIA periodically
publishes in the Federal Register a list of federally recognized Indian tribes. This
list includes over 200 Alaska Indian tribes as federally recognized tribal
governments. 309 Alaska Indian tribes are vested with tribal sovereign immunity. 310
303
King Mountain Tobacco Company, owned by Yakama Tribal Members Delbert Wheeler and
Richard “Kip” Ramsey, was formed and licensed under the laws of the Yakama Indian Nation.
Phillip Morris USA, Inc. v. King Mt. Tobacco Company, 569 F.3d 932, 935 (9th Cir. 2009). First
American Petroleum, owned by Robert Ramsey, a member of the Confederated Tribes and Bands
of the Yakama Nation, formed and licensed under the laws of the Yakama Nation. Salton Sea
Venture, Inc. v. Ramsey, 2011 U.S. Dist. Lexis 120145 (S.D. Cal. 2011).
304
43 U.S.C. §§ 1601 – 1629h, as amended (2007).
305
43 U.S.C. §§ 1606 (regional ANCs) and 1607 (village ANCs) (2007).
306
43 U.S.C. § 1618(a) (2007).
307
43 U.S.C. § 1603 (2007).
308
Alaska v. Native Village of Venetie, 522 U.S. 520 (1998).
309
Department of the Interior, Bureau of Indian Affairs, Indian Entities Recognized and Eligible to
Receive Services from the Bureau of Indian Affairs, 79 Fed. Reg. § 4748 (January 29, 2014).
225
XIV. CONCLUSION
Contracts by and with Indian tribes and tribal entities invoke a broad range
of tribal, federal and state laws, regulations and policies. This is in addition to the
usual business and legal considerations that drive contracting decisions,
agreements, and actions by Indian tribes and others. The aphorism that
knowledge is power has added meaning for all involved parties when it comes to
understanding and applying applicable laws, regulations and policies governing
business transactions by and with Indian tribes.
310
McCreary v. Ivanof Bay Village, 265 P.3d 337 (Alaska 2011), cert. denied, 132 S. Ct. 1977
(2012).
226
FRESH PURSUIT: A SURVEY OF LAW AMONG STATES WITH
LARGE LAND BASED TRIBES
Erin E. White *
INTRODUCTION
Generally, an officer may not make a valid arrest outside the territorial
jurisdiction of his or her arresting authority. 1 Fresh pursuit is an exception to this
rule. Fresh pursuit refers generally to those pursuits of fleeing suspects who cross
jurisdictional boundaries. 2
Fresh pursuit laws are numerous and differ
substantially in language and effect throughout states, tribes, and the world.
However, their overarching goal is to extend the authority of an officer when
necessary in order to achieve safety and avoid lawlessness. 3 At best, the
patchwork of jurisdictional authority between the state, tribal, and federal
sovereigns is confusing. Furthermore, any exceptions to this jurisdictional
patchwork, such as the doctrine of fresh pursuit, can leave even the best of legal
scholars baffled. 4 The determination of which sovereign has jurisdiction depends
on a variety of context-dependent circumstances such as: where the offense was
committed, who is suspected of committing the offense, the gravity of the offense,
and who the potential victim is. 5 This article looks at how states with large land
based tribes have developed the fresh pursuit law for state and tribal officers, in
*
Erin E. White, J.D. Seattle University School of Law. B.A Gonzaga University. Special thanks to
my family, friends, professors, and the AILJ staff, both past and present, for all the continued
support and guidance on this article.
1
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 9.07 (2012).
2
Fennessy & Joscelyn, A National Study of Hot Pursuit, 48 DEN. L.J. 389, 390 (1972). ‘Hot
pursuit’ is the more famous term associated with this police activity; however, ‘hot pursuit’ generally
refers to the immediate and continuous pursuit of a fleeing violator, without the issue of crossing
jurisdictional lines. Id. This activity has also been called ‘close pursuit.’ However, ‘fresh pursuit’ is
the term associated with this police activity that crosses jurisdictional lines. Id. As this paper is
concerned with the authority of officers as they cross from state to tribal land, and vice-versa, the
author will use the term ‘fresh pursuit’ throughout.
3
See Judith V. Royster, Fresh Pursuit Onto Native American Reservations: State Rights ‘To
Pursue Savage Hostile Indian Marauders Across the Border' an Analysis of the Limits of State
Intrusion into Tribal Sovereignty, 59 U. COLO. L. REV. 191 (1988).
4
State courts have split on how to treat the actions of tribal police officers who proceed off the
reservation. Courts have also split on the authority of state officers to pursue Indian offenders from
state jurisdiction into Indian country. COHEN’S HANDBOOK § 9.07 (2012).
5
Royster, supra note 3, at 196.
227
order to showcase the complexity and chaos created and suggest a uniform
federal law of fresh pursuit.
In part I, this article will provide a brief and basic overview of the patchwork
of criminal jurisdiction necessary to understand the doctrine of fresh pursuit as
related to state, tribal, and federal jurisdiction. Part II will examine how states and
tribes have dealt with the narrow issue of an arresting officer’s authority to pursue
a suspect from within their territorial jurisdiction into another when the officer has
reason to believe the suspect has committed a victimless crime. 6 The focus will
be specifically on how this doctrine works in states with large land-based tribes, 7
looking at both state officers’ 8 and tribal officers’’ 9 authority to engage in fresh
pursuit. 10 Finally, part III urges Congress to enact a uniform fresh pursuit law
applicable to both tribes and states to alleviate the problems that arise from
varying fresh pursuit exceptions.
I.
A BRIEF HISTORY: HOW DID WE GET INTO THIS MESS?
This section provides a brief history of the complex patchwork of criminal
jurisdiction and lays out general jurisdictional principles necessary to understand
the situations discussed in the subsequent section.
Indian Tribes retain inherent sovereign authority over their territory and
members as sovereign entities that pre-existed the formation of the United
6
A “victimless crime” applies to “a crime which generally involves only the criminal, and which has
no direct victim.” BLACK'S LAW DICTIONARY 1567–68 (1990). For a complete discussion of
“victimless crimes” see COHEN’S HANDBOOK § 9.02[1][C][III] (2012).
7
Large, land-based tribes include tribes residing within states that have a significant Indian
population and a large Indian Country. The author’s discretion in choosing these states was based
on the 2005 United States Department of Interior Bureau of Indian Affairs’ American Indian
Population and Labor Force Report, available at
http://www.bia.gov/cs/groups/public/documents/text/idc-001719.pdf (last visited October 5, 2014),
and excluded, outright, as beyond the narrow of scope this article tribes within the states of Alaska
and Oklahoma.
8
For ease of reference, the author hereinafter will refer collectively to state, county, and local
peace officers as “state officers.”
9
For ease of reference, the author will not distinguish out different Tribes within states, but refer
generally to “tribal officers.”
10
This article will focus on fresh pursuit after the passage of Public Law 280 and will not address
those jurisdictions that use cross-deputization agreements, where the fresh pursuit doctrine
generally will no longer be at issue. See generally, Walking on Common Ground: Cooperation
Agreements http://www.walkingoncommonground.org/state.cfm?topic=12&state=MI (last visited
October 5, 2014).
228
States. 11
However, the Constitution also vests authority in the Federal
government, which generally results in concurrent jurisdiction over Indians in
Indian Country for crimes that are not included in the Major Crimes Act. 12 States
also do not have authority unless or until Congress vests power to them. 13
Congress, perceiving a particular lawlessness in Indian Country, enacted
Public Law 83-280 (Public Law 280) in 1953. 14 Public Law 280 transferred
jurisdiction from the federal government to six specific states that had a significant
number of federally recognized tribes—called “mandatory states.” 15 The law also
transferred criminal and limited civil jurisdiction over Indians and non-Indians on
reservations to the mandatory states. 16 In non-Public Law 280 states, the Federal
government still retains criminal jurisdiction over crimes committed by or against
Indians under the Major Crimes Act and Indian General Crimes Act; however, the
non-Public Law 280 states do not hold such authority. 17 As originally adopted,
Public Law 280 also contained a provision for other states to assume the same
jurisdiction conferred on the mandatory states mentioned—called “option states.” 18
In 1968, Congress enacted provisions to limit the scope of Public Law 280,
requiring tribal consent before states assumed jurisdiction over Indian Country and
authorizing states that already had Public Law 280 jurisdiction to retrocede such
11
“‘[A]n Indian tribe's power to punish tribal offenders is part of its own retained sovereignty. . . .”
United State v. Wheeler, 435 U.S. 313, 328 (1978).
12
Id. For a more complete discussion of how this concurrent jurisdiction has been limited in territory
and as to type of crime, see Royster, supra note 3, at 204-209.
13
Wheeler, 435 U.S. 313; COHEN’S HANDBOOK § 9.03[1] (2012).
14
Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (1953); Carole Goldberg and Duane
Champagne, Law Enforcement and Criminal Justice Under Public Law 280. FINAL REPORT FOR
NATIONAL INSTITUTE OF JUSTICE. Nov 1, 2007.
15
18 U.S.C. §1162 (1958) transferred federal jurisdiction to Alaska (added when it became a
state), California, Minnesota, Nebraska, Oregon, and Wisconsin. Act of Aug. 8, 1958, Pub.L. 85615, § 1, 72 Stat. 545
16
18 U.S.C. §1162 (2012) also suspended the enforcement of the Major Crimes Act, 18 U.S.C.
§1153 (2012), and the General Crimes Act, 18 U.S.C. §1152 (2012), in those areas. The General
Crimes Act extended federal criminal jurisdiction to crimes between Indians and non-Indians. Id.
Under the General Crimes Act, tribes still retained preemptive jurisdiction over crimes by Indians.
Id. The Major Crimes Act enumerated certain serious felonies committed by Indians that are
subject to federal jurisdiction. 18 U.S.C. §1153. However, the maximum penalty a tribe may
enforce is a fine of $5,000 or six months imprisonment, or both. 25 U.S.C. §1302(7) (2012).
17
25 U.S.C. §1152 (2012); 25 U.S.C. §1153 (2012).
18
See generally Washington v. Yakima Indian Nation, 439 U.S. 463 (1979). In these states, the
federal government retains concurrent jurisdiction to prosecute under the Major and General
Crimes Act. See United States v. High Elk, 902 F.2d 660 (8th Cir. 1990); cf United States v. Burch,
169 F.3d 666 (10th Cir. 1999).
229
jurisdiction to the Federal government. 19 Today, states with Public Law 280
jurisdiction presumably have authority not only within the courts, but also hold law
enforcement authority on reservations within that Indian country. 20
Below is a table of jurisdiction principles: 21
Suspect
Victim
Jurisdictional Principle
Non-Indian
Non-Indian
State jurisdiction is exclusive of federal and tribal
jurisdiction.
Non-Indian
Indian
“Mandatory” states have exclusive jurisdiction from
federal and tribal sovereigns. “Option” states share
jurisdiction with the federal government. No tribal
jurisdiction exists
Indian
Non-Indian
“Mandatory” states have exclusive jurisdiction of the
Federal government, but not necessarily exclusive of
the tribe. “Option” states have concurrent jurisdiction
with the Federal government.
Indian
Indian
“Mandatory” states have exclusive jurisdiction of the
Federal government, but not necessarily exclusive of
the tribe. “Option” states have concurrent jurisdiction
with the Federal government for those crimes listed in
18 U.S.C. §1153 (2014).
Non-Indian
Victimless
State jurisdiction is exclusive. Federal jurisdiction may
attach in an “option” state if there is a clear impact on
an individual Indian or tribal interest.
19
25 U.S.C. §1323 (1982); 25 U.S.C. §1326 (1982). Tribal consent required a majority vote by the
adult members. Id.
20
See Royster, supra note 3, at 218; Clinton, Criminal Jurisdiction Over Indian Lands: A Journey
Through a Jurisdictional Maze, 18 ARIZ. L. REV. 503, 557 n.281 (1976) (citing 4 NAT'L AM. INDIAN
COURT JUDGES ASS’N, JUSTICE AND THE AMERICAN INDIAN 4, 40 (1974)); COHEN’S HANDBOOK § 9.07
(2012).
21
U.S. DEP’T OF JUSTICE, UNITED STATES ATTORNEYS’ MANUAL, 9-689, available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00689.htm (last visited
October 5, 2014).
230
Indian
Victimless
II.
There may be concurrent state, tribal, and, in an option
state, federal jurisdiction; 22 however, there is no state
regulatory jurisdiction.
THE DOCTRINE OF FRESH PURSUIT IN STATES WITH LARGE LAND-BASED
TRIBES
This section surveys the law of fresh pursuit in states with large land-based
tribes, looking at both state and tribal officers’ authority to engage in fresh pursuit.
It focuses generally on common law and statutory authority, but will not discuss
the specific cross-deputization agreements or extradition agreements between
each municipal authority and tribal sovereign.
A. Arizona
1. Can State Officers Engage In Fresh Pursuit Onto Tribal Land?
Arizona gave its state officers authority to engage in fresh pursuit onto tribal
land in 1994 when the Arizona Court of Appeals upheld an arrest of a tribal
member on a reservation after a fresh pursuit began on state land. 23 The court
looked almost exclusively at the effects of its decision on the Tribe’s sovereignty. 24
Furthermore, the court found no tribal laws regarding the state’s authority or lack
thereof to arrest a tribal member in such a situation. 25 Based on the lack of an
extradition agreement and lack of tribal law on the relevant matter, the court
22
Most courts considering the question have applied the McBratney principle to determine that the
state government, not the federal government, possesses jurisdiction over non-Indians who commit
crimes within Indian country are truly victimless, in which neither an Indian nor Indian property is
involved, such as a traffic offense. COHEN’S HANDBOOK § 9.03[1] (2012). A number of state courts
have concluded that they possess jurisdiction over victimless crimes committed by non-Indians on
Indian country. Id.
23
State v. Lupe, 889 P.2d 4 (1994). Previously, the Court of Appeals held that absent any potential
conflict of jurisdiction, state law enforcement officers have right to arrest a non-Indian whom they
have pursued onto an Indian reservation. State v. Herber, 598 P.2d 1033 (1979).
24
Lupe, 889 P.2d at 7.
25
Id.
231
concluded that granting state officers this authority would not interfere with the
Tribe’s self-governing powers. 26
Furthermore, in United States v. Patch, the Ninth Circuit upheld the
authority of a county Sheriff’s deputy who pursued an Indian from an Arizona State
Highway located within Indian Country to his residence in Indian Country. 27 After
defendant Patch had been “tailgating” the deputy’s marked patrol car, the deputy
activated his sirens. 28 After Patch refused to stop, the deputy followed him to his
home on the reservation. 29 Patch pushed the deputy, who subsequently arrested
Patch on his front porch. 30 Regardless of whether the state highway was within
Indian Country, the court found that that the deputy had authority to engage in
fresh pursuit and pursue an offender from the state’s jurisdiction of the Highway
into Indian Country to make an arrest. 31
2. Can Tribal Officers Engage In Fresh Pursuit Onto State Land?
While it does not appear that Arizona courts have dealt with the issue of
whether a tribal officer can engage in fresh pursuit, there is reason to believe the
Arizona courts would find that tribal officers also have the authority to engage in
fresh pursuit. 32 In State v. Nelson, the court considered whether a tribal officer,
certified by the Arizona Peace Officer Standards and Training Board (AZ POST),
could stop and detain a suspect off reservation when the officer was neither crossdeputized or engaged in fresh pursuit. 33 While the court held that the certified
officer had authority, it limited its ruling to AZ POST certified officers, stating
“[b]ecause the officer involved in this case was AZ POST certified, we express no
26
Id. at 7-8.
United States v. Patch, 114 F.3d 131,132-134, (9th Cir. 1997), cert. denied, 522 U.S. 983 (1997).
28
Id. at 133.
29
Id.
30
Id.
31
Id. at 134. The court recognized that the deputy’s pursuit did not start outside of Indian country,
but the court believes that this does “not diminish the officer’s right to continue his otherwise valid
attempt to question Patch.” Patch, 114 F.3d at 134, n.4.
32
See generally State v. Nelson, 90 P.3d 206 (2004); Patch, 114 F.3d at 132-134.
33
Nelson, 90 P.3d 206. The court found that the tribal officer had authority primarily because the
officer has been appointed by the Bureau of Indian Affairs, relying on ARS Section 13–3874(A),
which provides: “[w]hile engaged in the conduct of his employment any Indian police officer who is
appointed by the bureau of Indian affairs or the governing body of an Indian tribe as a law
enforcement officer and who meets the qualifications and training standards adopted pursuant to
§41–1822 shall possess and exercise all law enforcement powers of peace officers in this state.”
27
232
opinion as to whether a non-certified tribal officer could make a valid stop off the
reservation.” 34 Despite this limitation, the court reiterated Patch to hold that
“[u]nder the doctrine of hot pursuit, a police officer who observes a traffic violation
within his jurisdiction to arrest may pursue the offender into [or off] Indian country
to make the arrest.” 35 The officer in Patch was a state officer engaged in fresh
pursuit onto a reservation. 36 Significantly, the Nelson court added the words “or
off” to its recitation, 37 thereby construing Patch as authority for either a state or
tribal officer to engage in fresh pursuit.
B. California
Pursuant to Public Law 280, Congress granted California general
concurrent criminal jurisdiction over Indian Country. 38 Therefore, with regard to
state law enforcement officers, there is no fresh pursuit issue. State officers
are free to enforce criminal, prohibitory laws throughout the state, even in
Indian Country. 39
It does not appear that California has dealt with this specific issue by
legislation or judicial precedent.
C. Minnesota
Minnesota is a Public Law 280 state. Congress authorized Minnesota to
exercise criminal jurisdiction over “[a]ll Indian country within the state, except
the Red Lake Reservation.” 40 The state still does not have jurisdiction over the
Red Lake Reservation and does not engage in fresh pursuit onto the
34
Nelson, 90 P.3d at 210, n.2.
Id. at 209-210 (emphasis added) (quoting, Patch, 114 F.3d at 134).
36
Patch, 114 F.3d at 134.
37
Nelson, 90 P.3d. at 209-210.
38
See 18 U.S.C. §1162 (2012).
39
See 18 U.S.C. §1162 (2012); California v. Cabazon Band of Mission Indians, 480 U.S. 202
(1987).
40
See 18 U.S.C. §1162 (2012).
35
233
Reservation. 41 In 1973, the state retroceded all criminal jurisdiction for the Bois
Forte Indian Reservation at Net Lake back to the Federal Government. 42 Thus,
with the exception of the Red Lake Reservation and the Bois Forte Indian
Reservation at Net Lake, there is no fresh pursuit issue with regard to state law
enforcement officers.
Minnesota, by state statute, gives the option for tribes to engage in crossdeputization agreements that would create concurrent jurisdiction eliminating any
fresh pursuit issue. 43 However the state has yet to deal with the specific issue of
fresh pursuit when no agreement exists.
D. Montana
In 1963, Montana assumed criminal jurisdiction over the Flathead
Reservation under the authority delegated by Public Law 280. 44 Therefore,
41
While it does not appear that any courts have issued opinions on the issue of fresh pursuit on
the Red Lake Reservation, it has been suggested that no fresh pursuit exists onto the reservation.
See generally Brad Swenson, Beltrami County Commissioners Adopt Policy to end Sheriff’s
Pursuits at Red Lake Reservation Border, INFORUM, (July 10, 2009),
https://secure.forumcomm.com/?publisher_ID=1&article_id=246324 (“pursuits onto the reservation
are no longer allowed. . . .“You must terminate the pursuit at the reservation line. If you are
pursuing toward Red Lake, notify [the tribe’s] dispatcher as soon as is possible and they will send
officers, if available.").
42
State v. Stone, 572 N.W.2d 725, 728, n.3 (Minn. 1997). Under the authority of 25 U.S.C. §1323
(1970) Minnesota retroceded its criminal jurisdiction of this reservation. Act of May 23, 1973, ch.
625, 1973 Minn. Laws 1500.
43
Minn. Stat. §626.93 (2014).
44
MONT. CODE. ANN. (MCA) § 2-1-301 (1963) states:
The state of Montana hereby obligates and binds itself to assume, as herein
provided, criminal jurisdiction over Indians and Indian territory of the Flathead
Indian reservation and country within the state in accordance with the consent of
the United States given by the act of August 15, 1953 (Public Law 280, 83rd
congress, 1st session).
The Supreme Court of Montana held that this statute (formerly R.C.M. 83-801(1947)) relating to
criminal offenses by Indians on the Flathead Indian Reservation constituted a valid and binding
consent of the people of the state to assumption of criminal jurisdiction by state courts over Indians
committing criminal offenses on such reservation, and that no Constitutional amendment was
required to validly obtain jurisdiction. State ex rel. McDonald v. District Court of Fourth Judicial Dist.
In and For Missoula County, 496 P.2d 78 (1972). The court further held that under the version of
234
Montana has general concurrent criminal jurisdiction over Flathead Indian County
and no issue of fresh pursuit exists within the Flathead Reservation.
While Montana does not maintain criminal jurisdiction over any other
reservation within the state, 45 the Montana Supreme Court alleviated any fresh
pursuit issue involving the remaining reservations in City of Cut Bank v. Bird. In
City of Cut Bank v. Bird, the court recognized the authority of state officers to
arrest a suspect on Indian Reservations under the doctrine of fresh pursuit. 46 The
court found that the initial traffic offense was committed within the state officer’s
jurisdiction, and relying exclusively on the authority set out by the Ninth Circuit in
Patch, 47 found that the officer had authority to engage in fresh pursuit when the
defendant drove erratically and sped across the jurisdictional border. 48 Thus,
Montana officers may use the doctrine of fresh pursuit to make arrests on
reservations within Montana, but may make arrests on the Flathead Reservations
regardless of fresh pursuit because they have general jurisdiction.
It does not appear that Montana has dealt with this specific issue by
E. New Mexico
In New Mexico, state officers may engage in fresh pursuit to determine
whether they have authority; however, they may not make an arrest if it interferes
Public Law 280 that this statute was passed under, no consent was required but was granted out of
courtesy, and that Tribal Resolution 1973 of June 22, 1966 and Tribal Resolution 2318 on
September 15, 1967 were ineffective and invalid withdrawals of consent. Id. However, under MCA
2-1-306 (1963) (the Confederated Salish and Kootenai tribes, which are located on the Flathead
Reservations, may, by tribal resolution and after consulting with local government officials
concerning its implementation, may withdraw consent to be subject to the criminal misdemeanor
jurisdiction of the state). They have not done so.
45
MCA §2-1-102(2014)(“The sovereignty and jurisdiction of this state extend to all places within its
boundaries as established by the constitution, excepting such places as are under the exclusive
jurisdiction of the United States.”).
46
City of Cut Bank v. Bird, 38 P.3d 804 (2001).
47
See Patch, 114 F.3d at 133.
48
Bird, 38 P.3d 804.
235
with tribal sovereignty. 49 In Benally v. Marcum (Benally I), the Supreme Court of
New Mexico found that a state officer who pursued an Indian from state jurisdiction
into Indian Country and arrested him after suspecting the driver was driving under
the influence 50 violated the tribal sovereignty of the Navajo Nation “because it
circumvented and was contrary to” the Nation’s extradition procedures in its Tribal
Code. 51 The court recognized the state’s statutory fresh pursuit doctrine, but
noted that the Legislature codified it from the common law fresh pursuit doctrine,
which only applied to felonies, making it inapplicable in this case. 52
In City of Farmington v. Benally (Benally II), under similar facts as Benally I,
the Supreme Court of New Mexico again found that regardless of whether or not a
state officer is in fresh pursuit, an arrest cannot be valid on Indian Country when
valid extradition procedures exist. 53 In Benally II, New Mexico had altered its fresh
pursuit statutes to include the lawful fresh pursuit of suspects engaged in
misdemeanors. 54 Still, the court invalidated the arrest, finding that the tribal
extradition procedures, which were substantially the same as in Benally I,
outweighed any state interest. 55
The New Mexico Supreme Court again addressed the issue of fresh pursuit
in State v. Harrison. In Harrison, the court found that state officers engaging in
fresh pursuit can lawfully pursue a suspect into Indian Country to stop the suspect
and determine whether they have authority. 56 If the suspect is an Indian, the
officer can detain them until tribal police can assume jurisdiction. 57 Additionally,
the Harrison court held that when tribal police are unable to assist, the state officer
can engage in search procedures and that a defendant’s voluntary compliance
49
See State v. Harrison, 238 P.3d 869 (2010); Benally v. Marcum, 553 P.2d 1270 (1976) (Benally
I); City of Farmington v. Benally, 892 P.2d 629, 631 (1995) (Benally II).
50
The state police officers attempted to stop the defendant for violating city ordinances which
prohibited driving under the influence, driving recklessly, and causing an accident involving
damage to property, none of which, importantly, are felonies. Benally I, 553 P.2d at 1271.
51
Id. at 1271-1273.
52
Id. at 1273.
53
Id. at 630-631.
54
Id. at 631.
55
Id.
56
Harrison, 238 P.3d 869. If the suspect is a non-Indian then the officer may assume jurisdiction
over the suspect. Id.
57
Id.
236
with the officer’s administration of field sobriety tests will not violate the tribal
sovereignty of the Indian Nation. 58
Importantly, the Harrison court took into account the United States Supreme
Court’s decision in Nevada v. Hicks59 and asked whether fresh pursuit would
inhibit a tribal sovereign’s inherent right to self-govern. 60 The court ruled that
because the tribe did not have a specific tribal procedure on field sobriety tests,
“the exercise of state authority to conduct criminal investigation in Indian Country
[did] not infringe on tribal sovereignty because it [did] not affect the right of Indians
to make their own laws and be governed by them.”61 Holding that field sobriety
tests fall within the Hicks court’s definition of “process,” the Harrison court gave the
state authority to implement field sobriety tests according to its practices and
procedures. 62
It does not appear that New Mexico has dealt with this specific issue by
F. North Dakota
Prior to Public Law 280, Congress relinquished criminal jurisdiction over
Devil’s Lake Reservation (now, Spirit Lake Reservation) to North Dakota. 63 In
State v. Hook, the Supreme Court of North Dakota held that the “federal statute
gives North Dakota criminal jurisdiction over the non-major offenses committed by
58
Id. at 875-878.
533 U.S. 353 (2001).
60
Harrison, 238 P.3d 869 at 878. But cf. State v. Cummings, 679 N.W.2d 484, 486(2004)(refusing
to read Hicks as authority for the doctrine of fresh pursuit, finding that Hicks involved a Tribe
attempting to assert civil jurisdiction over state officials by subjecting them to tribal courts).
61
Harrison, 238 P.3d 869 at 878-879. But cf. Cummings, 679 N.W.2d 484 (expressly rejecting
reading Hicks to allow the use of the doctrine of fresh pursuit onto tribal land).
62
Harrison, 238 P.3d 869 at 878-879. But cf. Cummings, 679 N.W.2d 484.
63
Act of May 31, 1946, ch. 279, 60 Stat. 229. This created concurrent federal and state
jurisdiction. Id. North Dakota is not a Public Law 280 state. 18 U.S.C. §1162 (2012).
59
237
or against Indians on Devil Lake Indian Reservation.” 64 The court refused to
express an opinion on the state’s jurisdiction of more serious crimes. 65 Thus,
while there is no issue of fresh pursuit on the Devil’s Lake Reservation for
misdemeanor offenses, it does not appear that North Dakota has dealt with the
issue of fresh pursuit through legislation or judicial precedent for felonies on Indian
Country other than the Devil’s Lake Reservation.
The only consideration by North Dakota courts on the authority of tribal
officers to engage in fresh pursuit was when the North Dakota Supreme Court
considered the legality of an arrest by a BIA officer. 66 While a BIA officer is a
federal officer, not a tribal officer, the rationale the court relies on is helpful. The
court found that a BIA Officer “was in fresh pursuit” from a reservation into the
state. 67 Interestingly, the court did not use the doctrine of fresh pursuit to hold the
arrest valid; in fact, the court found that in spite of the fresh pursuit, the officer
engaged in a valid citizen’s arrest. 68 It remains unclear whether a tribal officer
could validly make a fresh pursuit arrest; but it does seem that tribal officers can
make a valid citizen’s arrest. Legislation has not addressed this question either.
G. Oregon
Oregon is one of the mandatory states under Public Law 280. 69 Under
Public Law 280, “all Indian country within the state, except the Warm Springs
Reservation” falls under the state jurisdiction. 70 Therefore, the issues associated
with fresh pursuit arise only on the Warm Springs Reservation. In 2011, as a
matter of first impression, the Oregon State Court of Appeals held that a state
officer could arrest a person for a traffic offense on the Warm Springs Reservation,
State v. Hook, 476 N.W.2d 565, 571 (1991); But cf. Fournier v. Roed, 161 N.W.2d 458 (1968).
(upholding a felony arrest by a state officer, not engaged in fresh pursuit, of an enrolled member of
the Devil’s Lake Sioux Tribe on an Indian reservation that was not Devil’s Lake Reservation).
65
Hook, 476 N.W.2d at 570, n.6 (1991).
66
State v. Littlewind, 417 N.W.2d 361 (N.D. 1987).
67
Id. at 363.
68
Id.
69
18 U.S.C. §1162 (2012).
70
Id.
64
238
“if the traffic offense was committed in the officer’s presence at a place within the
officer’s jurisdictional authority, the officer immediately pursued the person who
committed the offense, and the officer cited the person immediately upon the
conclusion of the continuous pursuit.” 71 In its analysis, the court interpreted
provisions and legislative history of the Warm Springs Tribal Code (WSTC). 72 The
WSTC had an explicit provision that granted authority to nontribal officers to make
an arrest in fresh pursuit on the reservation and the court mirrored this provision in
its holding. 73 Therefore, Oregon police may arrest a suspect anywhere within the
state, including the Warm Springs Reservation, when the officer is engaged in
fresh pursuit. 74
In State v. Smith, the court held that tribal officers may also engage in fresh
pursuit. 75 The court, in analyzing the WSTC, stated that “the drafters intended the
section to apply to both tribal police acting outside of their jurisdictional authority
and nontribal police acting outside of their jurisdictional authority.” 76 The court
cited to State v. Kurtz for the proposition that tribal officers may also engage in
fresh pursuit. 77
In Kurtz, the Oregon Supreme Court decided that a Warm Springs tribal
officer was authorized to arrest a person who committed a traffic violation on the
reservation, but failed to stop until he was pursued off the reservation. 78 Rather
than using the WSTC or Oregon’s fresh pursuit statute, the court decided that
tribal officers fall within Oregon’s statutory definition of “police officer” and “peace
officer.” 79 The Kurtz court recognized that tribal officers share a common
functional characteristic with the examples of law enforcement listed in the statute
71
State v. Smith, 268 P.3d 644 (2011).
Id.
73
WSTC §310.120 (2011).
74
Smith, 268 P.3d 644.
75
Id.
76
Id. at 648.
77
State v. Kurtz, 249 P.3d 1271 (2011). While the Kurtz court does not explicitly state that they are
deciding the issue as a result of the doctrine of fresh pursuit, the facts of the case would fall under
the doctrine.
78
Id.
79
OR. REV. STAT. §133.430(1); Smith, 268 P.3d 644; Kurtz, 249 P.3d 1271.
72
239
and qualified as a “police officer” under the state statutes. 80 As a result of this
categorization, the court granted tribal officers the authority to engage in fresh
pursuit onto state lands.
H. South Dakota
South Dakota is not a Public Law 280 state. 81 In fact, South Dakota’s
constitution contains a jurisdictional disclaimer to state jurisdiction over any Native
American lands. 82
The South Dakota Supreme Court, in State v. Spotted Horse, held that the
arrest of an Indian on a reservation by a state officer who pursued the suspect
from state jurisdiction was unlawful. 83 The court found that the authority of the
state’s fresh pursuit statutes could not reach into the reservation because the state
had not validly assumed jurisdiction pursuant to Public Law 280; 84 therefore, the
state officer’s arrest was illegal. 85 However, the court asserted that the trial court
properly exercised jurisdiction over the defendant, relying on the Ker-Frisbie rule:
80
Id. at 1278.
State v. Hero, 282 N.W.2d 70, 72 (1979).
82
S.D. Const. art. XXII, § 2.
That we, the people inhabiting the state of South Dakota, do agree and declare
that we forever disclaim all right and title to the unappropriated public lands lying
within the boundary of South Dakota, and to all lands lying within said limits owned
or held by any Indian or Indian tribes; and 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.
83
State v. Spotted Horse, 462 N.W.2d 463 (1990), cert. denied, 500 U.S. 928 (1991).
84
Public Law 280 was originally passed in 1953, which allowed states to assume criminal and
limited civil jurisdiction over reservations. Act of Aug. 15, 1953, ch. 505, § 4, 67 Stat. 589. South
Dakota failed to pass passed legislation until 1961. SDCL1-1-18, 21 (1961). However, the 1961
legislation attempted to assume partial jurisdiction over criminal offenses and civil causes of action
on the highways. Id. After a series of cases, the Supreme Court of South Dakota finally concluded
that South Dakota does not have jurisdiction over Indian Country and may not exercise partial
jurisdiction over highways running through the reservation. State v. Spotted Horse, 462 N.W.2d
463, 467 (1990). See also In re Hankins, 125 N.W.2d 839 (1964); Washington v. Confederated
Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979); State v. Onihan, 427 N.W.2d
365, 367 (1988); Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir.1990).
85
Spotted Horse, 462 N.W.2d at 467.
81
240
When a person accused of a crime is found within the territorial
jurisdiction wherein he is so charged and is held under process
legally issued from a court of that jurisdiction, neither the jurisdiction
of the court nor the right to put him on trial for the offense charged is
impaired by the manner in which he was brought from another
jurisdiction, whether by kidnapping, illegal arrest, abduction, or
irregular extradition proceedings. 86
Therefore, despite finding the arrest illegal, the trial court could still
maintain jurisdiction over the defendant, subject to limits on the admission
of evidence. 87 The court allowed the trial court to admit independent
evidence obtained through the officer's observations before the illegal
arrest. 88 Interestingly, the South Dakota Supreme Court felt compelled to
comment
[…] on the need for a solution to this gap in criminal jurisdiction.
When a crime is committed off the reservation and criminals can flee
unimpeded onto the reservation, both Indians and non-Indians alike
are harmed. We would hope that in this year [sic] which the
Governor has proclaimed “The Year of Reconciliation,” that both
tribal leaders and governmental officials will sit down and work out
treaties that will remedy this situation. 89
The South Dakota Supreme Court again addressed the issue of
fresh pursuit in State v. Cummings. In Cummings, the court considered
“whether a state officer in fresh pursuit for a traffic violation may pursue a
tribal member onto his reservation and gather evidence from the driver
when the alleged crimes were committed off the reservation.”90 Relying on
Spotted Horse, the court stated that “[i]n the absence of a compact between
the Tribe and the state, the state officer was without authority to pursue
Cummings onto the reservation and gather evidence without a warrant or
86
Id (quoting, State v. Winckler, 260 N.W.2d 356 (1977)). The Ker–Frisbie rule, is an adaptation of
the rules of Ker v. Illinois, 119 U.S. 436 (1886) and Frisbie v. Collins, 342 U.S. 519 (1952). Spotted
Horse, 462 N.W.2d at 467-468.
87
Id. at 469.
88
Id.
89
Id.
90
Cummings, 679 N.W.2d at 486.
241
tribal consent.”91 While the state asked the court to overrule Spotted Horse,
based on the United States Supreme Court decision in Nevada v. Hicks, the
court refused to read Hicks as an authority for state officers to engage in
fresh pursuit of a tribal member onto reservations. 92 The court found that
Hicks was factually distinguishable, particularly because the tribe in Hicks
was trying to extend its jurisdiction over state officials by subjecting them to
civil actions in tribal court. 93 However, in Cummings, the opposite was
occurring: “the state was attempting to extend its jurisdiction into the
boundaries of the Tribe’s Reservation without consent…or a tribal-state
compact.”94 The court reaffirmed Spotted Horse, rejecting the use of the
doctrine of fresh pursuit onto reservations in South Dakota. 95
South Dakota’s courts have yet to examine the issue of tribal officers’
authority to engage in fresh pursuit onto state land. However, a United
States District Court for the Central Division of South Dakota discussed the
issue. 96 The court concluded that the officers did not have jurisdictional
authority to arrest the defendant, “[a]bsent hot pursuit or some kind of
exigent circumstance, an extra-jurisdictional arrest is presumptively
unreasonable.”97 While likely not controlling authority, the District Court
does imply that tribal officers have the authority to engage in fresh pursuit. 98
The court did not find any exigent circumstances to warrant the application
of a fresh pursuit exception to justify the arresting officers exceeding their
territorial jurisdiction. 99 The court also relied on the Tribal Code, which
“codified the authority of [tribal] officers to arrest a ‘person’ if they are in
‘fresh pursuit’ for conduct that occurred on the Reservation even if the
arrest is made outside of the boundaries of the Reservation and its
91
Id. at 489.
Id. at 488-490. Cf. Harrison, 238 P.3d 869 (where the court read Hicks to extend the doctrine of
fresh pursuit for state officers).
93
Cummings, 679 N.W.2d at 488.
94
Id. at 487.
95
Id. at 489.
96
U.S. v. Medearis, 236 F.Supp.2d 977 (S.D. 2002).
97
Id. at 982.
98
Id.
99
Id. at 983.
92
242
dependent Indian communities.” 100 The court also noted, without denying
such facts, that officers involved admitted that,
Rosebud police officers can only arrest a person off of the Rosebud
Reservation when they are in fresh pursuit of the person from the
Reservation itself; and tribal police have no authority to search,
impound or seize a vehicle being driven by a non-member Indian on
deeded land without fresh pursuit. 101
Thus, tribal officers likely have the authority to engage in fresh pursuit.
I. Washington
1. Can State Officers Engage In Fresh Pursuit Onto State Land?
Under the Revised Code of Washington (RCW) §37.12.010, Washington
State, with the consent of Congress under Public Law 280, 102 assumed criminal
and limited civil jurisdiction over Indians and Indian Territory, reservations, country,
and lands within the state. This jurisdiction does not apply to Indians when they
are on their tribal lands or allotted lands within an established Indian reservation
and held in trust by the United States. 103 It is within this law that the question of
fresh pursuit arises.
According to the Washington State Court of Appeals, state officers may
engage in fresh pursuit into tribal jurisdiction. 104 In State v. Waters, the court held
that the state officers had authority under the fresh pursuit doctrine to arrest a
tribal member on a reservation. 105 The court rejected Waters’ claim that the state
police lacked jurisdiction to stop him, and held that the officer had authority to stop
him initially, engage in fresh pursuit onto the reservation, and arrest him on the
reservation. 106 Thus, Washington state officers may make arrests using the fresh
pursuit doctrine.
100
Id. at 981 n.7.
Id. at 981 (emphasis added).
102
Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588; 18 U.S.C. §1162.
103
W ASH. REV. CODE (RCW) §37.12.010 (2014).
104
State v. Waters, 971 P.2d 538, 542-543 (1999).
105
Id.
106
Id. at 543.
101
243
The Washington State Supreme Court decided in 2011 that tribal officers do
not have inherent authority to engage in fresh pursuit to stop and detain a
defendant on state land outside of the Indian reservation. 107 However, this
decision came after the State Supreme Court, in an unprecedented procedural
posture, issued two prior opinions on this case. 108
This first opinion of State v. Eriksen in 2009, a unanimous court held that
the tribal officer had both inherent authority and statutory authority to continue
fresh pursuit of a driver who broke traffic laws on the reservation. 109 The court
relied on state statutes, state, tribal, and federal precedent, The Treaty of Point
Elliot, and inherent tribal authority. 110 Both the State and Defendant Eriksen filed
motions requesting reconsideration and the court granted their motions. 111
In the second opinion, the court again, this time with three dissenting
justices, held that the tribal officer had authority to engage in fresh pursuit. 112 The
court reviewed its statutory analysis, finding an absence of statutory authority in
this particular situation. 113 The court also did not find the tribal officer’s authority in
its inherent tribal authority, but rather extended precedent from both Washington
State and the United States Supreme Court. 114 After yet another motion to
reconsider, the court heard oral arguments and issued its third and final opinion.
This 2011 decision is now the law of the land in Washington: tribal officers do not
have inherent authority to engage in fresh pursuit outside of a reservation. 115
However, Tribes may obtain the more general power of having the authority
to make off-reservation arrests, which would include the authority to engage in
fresh pursuit, by becoming a general authority Washington state peace officer. 116
107
State v. Eriksen, 259 P.3d 1079 (2011).
State v. Eriksen, 216 P.3d 382 (2009), opinion superseded on reconsideration, 241 P.3d 399
(2010), opinion superseded on reconsideration, 259 P.3d 1079 (2011).
109
Eriksen, 216 P.3d 382.
110
Id.
111
Eriksen, 259 P.3d at 1080.
112
Eriksen, 241 P.3d 399.
113
Id. at 402-407.
114
Id. at 402.
115
Eriksen, 72 Wash. 2d 506.
116
RCW §10.93.020(1) (2014); RCW §10.93.070(6) (2014).
108
244
A tribal police officer may become recognized as a general authority Washington
peace officer if they meet the requirements set out by the Washington State
Legislature in RCW 10.92.020(2). 117 These requirements include insurance and
liability standards, training requirements, procedures for conformity with state law
enforcement agencies, and interlocutory agreements with surrounding police
departments. 118
Washington State, by common law, generally does not allow tribal officers
to engage in fresh pursuit, even to stop and detain a suspect. 119 However, a tribal
officer, commissioned as a general authority Washington peace officer may
engage in fresh pursuit, as they hold the same power as any other Washington
peace officer and can make arrests for violations of state laws. 120
J. Wisconsin
Wisconsin is a Public Law 280 state. 121 The state has general concurrent
criminal jurisdiction over Indian Country, and thus there are no fresh pursuit issues
for state officers. 122
The state of Wisconsin, by statute, essentially abolished territorial and
subject matter jurisdiction when an officer is in fresh pursuit. 123 Wisconsin law,
“General authority Washington law enforcement agency" means any agency,
department, or division of a municipal corporation, political subdivision, or other
unit of local government of this state, and any agency, department, or division of
state government, having as its primary function the detection and apprehension of
persons committing infractions or violating the traffic or criminal laws in general, as
distinguished from a limited authority Washington law enforcement agency, and
any other unit of government expressly designated by statute as a general
authority Washington law enforcement agency.
RCW §10.93.020(1) (2014).
117
RCW §10.92.020 (2014).
118
Id.
119
Eriksen, 259 P.3d 1079.
120
RCW §10.92.020 (2014).
121
18 U.S.C. §1162 (2012).
122
18 U.S.C. §1162 (2012).
245
unlike most states, includes tribal officers in its definition of a peace officer. 124 The
peace officers may follow a suspect anywhere in the state and arrest any person
for any violation of law or ordinance that that officer is authorized to enforce, when
they are engaged in fresh pursuit. 125
Specifically, the statute’s definition of peace officer includes any tribal law
enforcement officer who is authorized to act under Wisconsin Statutes
§165.92(2)(a). 126 Wisconsin Statutes §165.92(2)(a) states that the tribal officer
must meet the requirements of Wisconsin Statutes §165.85(4)(a)1.,2., and 7.,
which consistently refers to “law enforcement or tribal law enforcement”
throughout. 127 Thus, tribal officers may engage in fresh pursuit, as long as they
comply with the statutory requirements.
III.
CONCLUSION: WHERE CAN WE GO FROM HERE?
To break the limitations of territorial jurisdiction between tribes and states
and enable sovereigns to effectively enforce criminal law within the context of
fresh pursuit, Congress should enact a uniform fresh pursuit law applicable to both
tribes and states. By constantly adding to the multitude of fresh pursuit
exceptions, states have created an even more tangled patchwork of criminal
jurisdiction. When analyzing a sovereign’s authority, not only must one consider
the traditional factors, such as where the offense was committed, who is
suspected of committing the offense, the gravity of the offense, and who is the
potential victim, but now one must also consider the state and tribe involved, and
refer to state and tribal common law and statutory authority.
Congress alone has the power to enact a uniform law governing fresh
pursuit. However, by failing to legislate on this issue, Congress has allowed states
to define tribal authority. Generally, states do not have authority unless or until
Congress vests power to the states; 128 however, through these state statutes and
123
W IS. STAT. §175.40(2) (2014)(“…any peace officer may, when in fresh pursuit, follow anywhere
in the state and arrest any person for a violation of any law or ordinance the officer is authorized to
enforced.”).
124
Id.
125
Id.
126
W IS. STAT. §175.40(c) (2014)("'Peace Officer' includes any tribal law enforcement officer who
is empowered to act under s. 165.92(2)(a).”).
127
W IS. STAT. §§165.85(4)(a)1.,2.,7., and (c) (2014).
128
U.S. CONST. art. I, § 8, cl. 3.
246
NO TRIBAL COURT IS AN ISLAND?
CITATION PRACTICES OF THE TRIBAL JUDICIARY
Rose Carmen Goldberg *
“Modern tribal courts have the unenviable task of doing justice
in two worlds. They must be familiar with and incorporate
traditional practices in order to maintain internal credibility with
the very tribal members that they are appointed to serve, and
simultaneously appease the non-Indian judicial world.”
- Tribal Court Judge BJ Jones1
INTRODUCTION
Tribal courts’ position at the intersection of two worlds is indeed unenviable.
And it might be even more complex than tribal court Judge BJ Jones’ statement
suggests. One of the worlds in which tribal courts do justice, the world of tribal law
and custom, might not respect tribal boundaries. Instead of restricting their gaze to
their own jurisprudence, tribal courts might look to other tribes for guidance. 2 Tribal
court judges might cite other tribes’ opinions 3 for several reasons. For one, issues
that arise under tribal law may not be common subjects of adjudication in United
*
J.D. Candidate at Yale Law School (expected 2015). The author is grateful to Professor Eugene
Fidell at Yale Law School for invaluable guidance and to David Selden at the Native American
Rights Fund for research support.
1
B.J. Jones, Tribal Courts: Protectors of the Native Paradigm of Justice, 10 ST. THOMAS L. REV. 87,
87 (1997).
2
Frank Pommersheim, Liberation, Dreams, and Hard Work: An Essay on Tribal Court
Jurisprudence, 1992 W IS. L. REV. 411, 453 (1992) (“Tribal precedents from other reservations,
however, may also be relevant.”); according to WestlawNext’s tribal government product sales
website “[r]ecent decisions now evidence tribal courts citing other tribes when crafting opinions.
This has created a demand for a systematic, professional compilation of cases from tribal law
courts.” W ESTLAWNEXT, http://legalsolutions.thomsonreuters.com/lawproducts/practice/government/tribal-government (last visited Nov. 18, 2014).
3
Throughout this article, this practice is referred to as “intertribal citation.”
247
States courts. 4 For instance, tribal membership does not have a full equivalent in
the United States legal system. 5 Other tribal courts, however, might have
extensive rulings on such matters. In addition, some tribal courts are young 6 and
do not have many previous decisions of their own to draw upon. With similar
effect, some tribes might not have the resources to maintain records of prior
adjudications in accessible formats, or at all. 7 To the extent that such tribes want
to ground their rulings in legal precedent, they must look outward. Looking to other
tribes’ courts, as opposed to United States courts, might help them maintain
internal legitimacy insofar as other tribes’ opinions might be more consistent with
their traditions than United States courts’. 8
Yet there are barriers to intertribal citation that might reduce its incidence.
Some tribal courts’ opinions may not be available to other tribes because resource
limitations preclude dissemination. 9 Alternatively, some tribes might not want their
jurisprudence to be publicly available, irrespective of resource requirements. This
insularity could be motivated by privacy concerns, fear of ridicule, or a tribal
tradition of non-public mediation. Moreover, citing tribal courts themselves might
be unable or hesitant to look to other tribes’ opinions, for similar reasons. Other
tribal courts’ opinions might only be available through databases with subscription
4
Throughout this article, “U.S. courts” refers to all courts within the U.S. (e.g., the Supreme Court,
Federal courts, state courts) except for tribal courts.
5
Tribal membership disputes often turn on blood quantum determinations, for which there is no
close analogy in U.S. state or national citizenship adjudications. For more information about tribal
membership and blood quantum criteria, see Carole Goldberg, Members Only? Designing
Citizenship Requirements for Indian Nations, 50 U. KAN. L. REV. 437 (2002).
6
See, e.g., Pommersheim, supra note 2, at 454 (“In light of many tribal courts' relative youth, much
tribal court litigation involves cases in which there is no controlling authority.”); see also Sandra
Day O'Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 TULSA L.J. 1, 2 (1997).
7
See, e.g., Maria Odum, Money Shortage Seen as Hindering Indian Justice, N.Y. TIMES, Oct. 4,
1991, at B9 (“legal research on precedents is difficult because, due to lack of money, the volume
reporting the past three years of judgments in the Indian tribal court system never went to press”);
Elizabeth E. Joh, Custom, Tribal Court Practice, and Popular Justice, 25 AM. INDIAN L. REV. 117,
124 (2001) (characterizing tribal courts as “dismally underfunded”); Gloria Valencia-Weber, Tribal
Courts: Custom and Innovative Law; Indian Law Symposium, 24 N.M. L. REV. 225, 263 n.40 (1994)
(“The scarcity of resources is a constant barrier.”).
8
Valencia-Weber, supra note 7, at 254 (“Sometimes customary tribal law will produce results
different from an Anglo-American court's determination because the substantive law arises from a
fundamentally different view on the matter at issue. In the use of tribal trust lands and in probate
distribution of property there is an important difference. The Anglo-American concept of property as
individualized ownership and exploitation is not germane.”).
9
Pommersheim, supra note 2, at 450, 456 n.161 (“[P]ractitioners often exhibit a lack of familiarity
with the precedent of the very court they are practicing before. This problem is often exacerbated
by irregular publication of opinions in the Indian Law Reporter.”).
248
fees that some tribes find prohibitive. 10 And even if the citing tribal court has
access, the research and process of applying the other tribe’s opinion to the case
at hand might be too time-intensive. Additionally, some tribes may have historical
or current conflicts that make intertribal citation politically unsavory. 11 Finally, some
tribal judges might stand with Justice Scalia in staunch opposition to citation of
“foreign” courts, 12 and may consider other tribes foreign for citation purposes.
According to this view, judicial opinions are based on laws that uphold
particularized cultural norms, and as such, are not applicable beyond the deciding
court’s jurisdiction. 13
This article examines how tribal courts manage their “unenviable task” 14 of
doing justice in multiple worlds through the lens of citation practices. In so doing, it
sheds light on the current state of tribal court jurisprudence and provides a
preliminary empirical basis to guide needed reforms. It also enriches the body of
scholarship on judicial citations—while much of the literature engages in
theoretical debate about the functions and effects of citations, this article
documents and dissects actual practices. By contributing to a fuller picture of how
citations are used, this article brings this line of inquiry closer to answering the
underlying question of why.
The article begins with a background section that consists of three
subparts. The first provides a brief overview of tribal courts, to situate the article’s
tribal court citation research findings. The second two subparts survey the existing
literature on judicial citations generally, and on tribal court judge citation practices
in particular. Part I begins the article in earnest by detailing the citation review
methodology and also provides an overview of the availability of tribal court
opinions. Part II presents the research findings, starting with a summary of results,
moving to a more detailed analysis of intertribal citations, and concluding with brief
discussions of the article’s findings on citation of United States and foreign courts.
10
See, e.g., WestlawNext’s fee-based “Tribal Cases” database at
http://info.legalsolutions.thomsonreuters.com/westlawnext/ (last visited Nov. 18, 2014).
11
See, e.g., Robert A. Williams, Jr., Linking Arms Together: Multicultural Constitutionalism in A
North American Indigenous Vision of Law and Peace, 82 CAL. L. REV. 981, 992 (1994) (discussing
the “Beaver Wars” fought between the Iroquois and Algonquians in the 1700s).
12
See, Roper v. Simmons, 543 U.S. 541, 608 (2005) (Scalia, J., dissenting).
13
See, e.g., Steven G. Calabresi, “A Shining City on a Hill”: American Exceptionalism and the
Supreme Court’s Practice of Relying on Foreign Law, 86 B.U. L. REV. 1335, 1337 (2006).
14
Jones, supra note 1.
249
Part III concludes the article by discussing the implications of the study’s
research findings. The findings suggest that tribal courts have responded to their
unenviable position at the intersection of two worlds by retreating to one—
intertribal citation is exceedingly rare. In conclusion the article argues that these
low citation rates are likely a function of tribal courts’ limited access to court
opinions and highlights the importance of removing barriers to access. A short
addendum recommends several avenues for future research that could contribute
to concrete improvement in tribal courts’ access to “justice.”
I. BACKGROUND
A. Tribal Courts
Today, more than 250 tribes operate their own court systems, 15
adjudicating on behalf of an estimated one 16 to two 17 million people. These tribal
courts 18 resemble their United States court counterparts to varying degrees. The
majority of tribal courts operate in near full conformity with prevailing formal
adversarial processes. 19 Professional and sometimes United States law school
trained 20 judges preside, and adjudication usually results in clear winners and
losers. 21 In addition, some tribes’ court systems contain hierarchical levels of
appellate review that more or less mirror the United States court system’s tiered
model. 22 A lesser number of tribal courts still practice traditional forms of dispute
resolution, such as “Elder Council” 23 mediation or “peacemaking.” 24 Elder Councils
15
Matthew L. M. Fletcher, Toward a Theory or Intertribal and Intratribal Common Law, 43 HOUS. L.
REV. 701, 718 (2006).
16
O’Connor, supra note 6, at 1.
17
Odum, supra note 7.
18
Throughout this article, courts operated by tribes are referred to as “tribal courts.”
19
Robert B. Porter, Strengthening Tribal Sovereignty Through Peacemaking: How the AngloAmerican Legal Tradition Destroys Indigenous Societies, 28 COLUM. HUM. RTS. L. REV. 235, 237
(1997).
20
Valencia-Weber, supra note 7, at 240.
21
Valencia-Weber, supra note 7, at 250.
22
For instance, the Navajo Nation court system is two-tiered, THE NAVAJO NATION JUDICIAL BRANCH,
http://www.navajocourts.org/ (last visited Nov. 18, 2014) (“The Navajo Nation operates a two-level
court system: the trial courts and the Navajo Nation Supreme Court, which is the appellate court.”),
and the Confederated Tribes of the Colville Reservation also have a two-tiered system, COLVILLE
TRIBES TRIBAL COURTS, http://www.colvilletribes.com/tribal_courts.php (last visited Nov. 18 2014)
(“The Tribal Court consists of a trial court and the Colville Tribal Court of appeals.”).
23
See, e.g., Stacy L. Leeds, Cross-Jurisdictional Recognition and Enforcement of Judgments: A
Tribal Court Perspective, 76 N.D. L. REV. 311, 363 n.278 (2000); Matthew L.M. Fletcher, Rethinking
Customary Law in Tribal Court Jurisprudence, 13 MICH. J. RACE & L. 57, 66 (2007).
24
Christine Zuni, Strengthening What Remains, 7 KAN. J.L. & PUB. POL'Y 17, 19 (1997).
250
and peacemaking courts are characterized as using community mediators instead
of judges and basing resolution on unwritten customary law. 25 They are also
commonly viewed as focusing on restoring harmony to the tribe as a community, 26
as opposed to United States courts’ emphasis on delivering justice in accord with
individual rights and obligations. 27 Mainly because of lack of resources, parties in
tribal court proceedings are frequently not represented by counsel. 28
Enactment of the Indian Reorganization Act (IRA) in 1934 29 marked the
birth of the tribal court systems that operate on reservations across the country
today. 30 The IRA empowered tribes to adopt their own constitutions, and many
tribes adopted constitutional provisions creating tribal courts. 31 These courts
replaced almost all of the federal government-run “Courts of Indian Offenses” that
had previously been the principal legal forums for reservations. 32 The Courts of
Indian Offenses, which still serve a limited number of tribes, 33 operate according to
the United States court-style adversarial model. The continued existence of some
of these courts has been the subject of much criticism. 34
Tribal courts’ jurisdiction is limited. They do not have inherent jurisdiction
over non-Indians in criminal cases. 35 Rather, this authority requires explicit
congressional authorization. 36 Congress recently provided just such a grant in the
context of domestic violence. The Violence Against Women Reauthorization Act of
2013 gives tribal courts the power to convict non-Indians who assault Indian
25
See, e.g., Joh, supra note 7, at 124-125.
Id. at 123.
27
Porter, supra note 19, at 251.
28
Odum, supra note 7.
29
25 U.S.C. §§ 461-79 (2006); Valencia-Weber, supra note 7, at 236.
30
Pommersheim, supra note 2 at 417.
31
Zuni, supra note 24, at 20-21.
32
Nell Jessup Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22
AM. INDIAN L. REV. 285, 291 (1998).
33
BJ Jones, Role of Indian Tribal Courts in the Justice System, INDIAN CHILD TREATMENT TRAUMA
CENTER (Mar. 2000) at 1, http://www.icctc.org/Tribal%20Courts.pdf.
34
See, e.g., Gavin Clarkson, Reclaiming Jurisprudential Sovereignty: A Tribal Judiciary Analysis,
50 U. KAN. L. REV. 473, 477 (2002) (“From the beginning, many recognized that “there was, at best,
a shaky legal foundation for these tribunals. There was no statutory authorization for the
establishment of such courts....”); Aaron F. Arnold et al., State and Tribal Courts: Strategies for
Bridging the Divide, 47 GONZ. L. REV. 801, 808 (2011).
35
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
36
Id. at 208 (“Indians do not have criminal jurisdiction over non-Indians absent affirmative
delegation of such power by Congress.”).
26
251
partners or spouses or who violate a protection order. 37 However, tribal courts are
still subject to limitations in the criminal sentences and fines they can adjudge.
Until recently, the Indian Civil Rights Act (ICRA) restricted tribal imprisonment
orders to one year and fines to $5,000 per offense. 38 These limits were increased
by the Tribal Law and Order Act of 2010. 39
Tribal courts’ central mandate is to apply tribal law. 40 Tribal law includes
codes, 41 constitutions, 42 tribal common law, 43 and customary law. 44 While tribal
courts are not directly bound to uphold the United States Constitution, ICRA
provides parties in tribal court proceedings with protections similar to those in the
Bill of Rights. 45 For instance, ICRA requires tribal courts to provide a jury trial to
anyone charged with a criminal offense for which incarceration is a possible
penalty and to consider the accused as having a right to remain silent. 46 However,
federal court review of tribal court decisions is only available after tribal court
remedies have been exhausted or through habeas corpus claims. 47
37
Violence Against Women Reauthorization Act of 2013, S. 47, 113th Cong. § 904 (2013)
(enacted).
38
Indian Civil Rights Act, 25 U.S.C. § 1302 (2006).
39
Tribal Law and Order Act of 2010, 25 U.S.C. § 2801 (Supp. IV 2010).
40
Judith V. Royster, Stature and Scrutiny: Post-Exhaustion Review of Tribal Court Decisions, 46 U.
KAN. L. REV. 241, 279 (1998).
41
See, e.g., Yurok Tribal Code, Yurok Tribal Council Ordinance,
http://www.yuroktribe.org/documents/YurokTribalCouncilOrdinance_v13.pdf (last visited Nov. 18,
2014); Swinomish Tribe Criminal Code, http://www.swinomish-nsn.gov/government/tribal-code/title4-criminal-code.aspx (last visited Nov. 18, 2014).
42
See, e.g., Constitution of the Cherokee Nation,
http://www.cherokee.org/Portals/0/Documents/2011/4/308011999-2003-CN-CONSTITUTION.pdf
(last visited Nov. 18, 2014); Minnesota Chippewa Tribe Constitution
http://www.llojibwe.org/government/mctDocs/constitution_revised.pdf (last visited Nov. 18, 2014).
43
See, e.g., Valencia-Weber, supra note 7, at 245.
44
Fletcher, supra note 23, at 57 (“[T]he importance of customary law in American Indian tribal
courts cannot be understated.”).
45
Talton v. Mayes, 163 U.S. 376 (1896); 25 U.S.C. §§ 301-1341 (2006); B.J. Jones, Welcoming
Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court
Relations, 24 W M. MITCHELL L. REV. 457 (1998) (“Before the enactment of the Indian Civil Rights
Act, it was generally recognized that the United States Constitution did not regulate an Indian
tribe's treatment of its members or non-members.”).
46
Jones, supra note 45, at 474.
47
Clarkson, supra note 34, at 481.
252
B. Judicial Citations
Judicial citation 48 has received a healthy dose of scholarly attention, 49 but is
generally not regarded as a top field of study. 50 The corpus of writing that does
exist is at war with itself over the functions and effects of citation. A survey of this
conflicted body of research suggests three predominant theories of judicial
citation. The first considers citations as reflecting the legally prescribed basis for a
judge’s decision. Under this theory, citations are dictated by stare decisis and
judges have little to no room for creative adjudicative maneuvers. 51 The second
and more cynical theory views citations as “mere masks” 52 for the non-legal
determinants behind a decision, such as ideology or politics. 53 The third, middleof-the-road theory characterizes citations as an essential component of a court’s
legitimacy insofar as they promote judicial constraint. Judges cannot let their
personal ideology or politics alone decide the case; they must at least find some
basis for their decision in pre-existing law. According to this last view, citations
operate as gentle guideposts that keep judges from becoming activists, but they
are not straightjackets. 54
Assessing the accuracy or normative desirability of these three citation
theories is beyond the scope of this article. Instead, this article takes the less
traveled road of empirical analysis of citation practices. By painting a concrete
picture of the current state of judicial citation, empirical research is an important
step in understanding the functions and effects of citations. Namely, understanding
how citations are used can be revealing of why they are, or are not, used. So while
this article does not directly engage in the theoretical debate, it does contribute to
48
This reference to judicial citation refers to all judges, not just tribal court judges.
See, e.g., William H. Manz, Citations in Supreme Court Opinions and Briefs: A Comparative
Study, 94 LAW LIBR. J. 267 (2002) (“there have been numerous empirical studies of appellate court
citation practices”).
50
See, e.g., Frederick Schauer, Authority and Authorities, 94 VA. L. REV. 1931, 1932 (2008)
(“Legal sophisticates these days worry little about the ins and outs of citation.”).
51
See, e.g., Lawrence M. Friedman ET AL., State Supreme Courts: A Century of Style and Citation,
33 STAN. L. REV. 773, 793 (1981) (“According to our legal theory, judges decide “according to law.”
They are not free to decide cases as they please. They are expected to invoke appropriate legal
authority for their decisions.”); Chad Flanders, Toward A Theory of Persuasive Authority, 62 OKLA.
L. REV. 55, 60 (2009).
52
Frank B. Cross et al., Citations in the U.S. Supreme Court: An Empirical Study of Their Use and
Significance, 2010 U. ILL. L. REV. 489, 493 (2010).
53
See, e.g., Schauer, supra note 50 (“[T]he citation of legal authorities in briefs, arguments, and
opinions is scarcely more than a decoration.”).
54
Cross, supra note 52.
49
253
it. Moreover, statistical documentation of citation practices is lacking. 55 The limited
research that does exist focuses primarily on the citation practices of the United
States Supreme Court 56 and state appellate courts. 57 And empirical research on
tribal court citation is nearly non-existent. The following subsection focuses on the
one exception.
C. Tribal Court Citations
An extensive review of tribal law and citation literature only uncovered one
study on the citation practices of tribal courts. 58 Barsh reviewed a sample of 359
tribal court opinions published in the Indian Law Reporter 59 between 1992 and
1998. The sample included opinions issued by fifty-six tribal courts at the trial and
appellate levels. Particular attention was paid to whether judges based their
decisions on “indigenous jurisprudence”60 as the central aim of the study was to
determine the extent to which tribal courts rely on “traditional law,” as opposed to
“Western law.”
Barsh hypothesized, and the findings ultimately confirmed, that tribes tend
to lean heavily on their own internal law. Of the 359 opinions in the sample, 284
(eighty percent) relied to some extent on tribal authority. The majority of these
internal law opinions relied on tribal court precedent (fifty-six percent), while the
55
See, e.g., id. at 491 (“[T]he use and practical effect of citations has received little rigorous
analysis, however.”).
56
See, e.g., Louis J. Sirico, Jr., The Citing of Law Reviews by the Supreme Court: 1971-1999, 75
IND. L.J. 1009 (2000); William H. Manz, Citations in Supreme Court Opinions and Briefs: A
Comparative Study, 94 LAW LIBR. J. 267 (2002); Corey Rayburn Yung, Supreme Court Opinions
and the Justices Who Cite Them: A Response to Cross, 97 IOWA L. REV. BULL. 41 (2012); John
Hasko, Making Law with Nonlegal Materials, 46 ADVOC. 22 (2003).
57
See, e.g., James N.G. Cauthen, Horizontal Federalism in the New Judicial Federalism: A
Preliminary Look at Citations, 66 ALB. L. REV. 783 (2003); Tina S. Ching, The Next Generation of
Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court
and Washington Appellate Courts, 1999-2005, 9 J. APP. PRAC. & PROCESS 387 (2007); Paul
Hellyer, Assessing the Influence of Computer-Assisted Legal Research: A Study of California
Supreme Court Opinions, 97 LAW LIBR. J. 285 (2005).
58
Russel Lawrence Barsh, Putting the Tribe in Tribal Courts: Possible? Desirable?, KAN. J.L. &
PUB. POL'Y, (1999) at 74 [hereinafter Barsh]. While an earlier article (Nell Jessup Newton, Tribal
Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 AM. INDIAN L. REV. 285
(1997)) focuses on tribal court citation practices, its findings do not have an empirical basis; See
also, Bonnie Shucha, ‘Whatever Tribal Precedent There May Be’: The (UN)availability of Tribal
Law, 106 LAW. LIBR. J. 199, (2014) (also discusses tribal court citations, but does not have a
statistical grounding).
59
The Indian Law Reporter is a print collection of tribal court opinions available for purchase; See
INDIAN LAW REPORTER, http://www.indianlawreporter.org/ (last visited Nov. 18, 2014).
60
Barsh, supra note 58, at 77.
254
rest referred to tribal legislation. Barsh also found that reliance on internal rulings
or laws was most prevalent in cases focused on “internal social, cultural or political
relationships.” 61
In contrast, tribes in the sample tended to look to United States courts for
guidance on matters of a “jurisdictional or procedural nature.” 62 Federal law was a
more popular citation source (forty-six percent of cases contained at least one
reference) than state law (only twenty-eight percent). Overall, twenty-six percent of
cases relied solely on United States law, not citing any tribal authority. Half of
these cases were procedural or jurisdictional.
Citation to other tribes’ cases or laws was relatively rare. Ten percent of the
cases in the sample (36 out of 359) included an intertribal citation. In contrast,
tribes cited their own jurisprudence or legislation in seventy-nine percent of cases.
Despite the stark difference between inter- and intra-tribal citation rates, the study
did not develop its intertribal citation finding. Instead, it focused on a perceived
need for tribal courts to rely more heavily on traditional law, whether inter- or intratribal. 63
Barsh claims that tribes shy away from relying more strongly on traditional
law because of a desire to appear legitimate in front of non-tribal audiences. The
study calls for a reeducation of tribal judges to better acquaint them with traditional
legal reasoning and for judges to in turn educate their communities about these
practices. 64 While such an initiative may be of value to tribes, the study does not
provide strong grounding for its underlying assertion that the lack of citation to
tribal law is motivated by tribal judges’ “fear of non-Indian professionals’
opinions.” 65 Moreover, Barsh does not entertain other explanations, such as a lack
of access to opinions or inferior quality of previous rulings.
This article uses Barsh’s work as a springboard to contribute to a field that
has received close to no attention. First, this article provides a needed update by
analyzing contemporary tribal court opinions (issued in 2013); Barsh reviewed
61
See Barsh, supra note 58, at 79.
Id.
63
Id. at 93.
64
Id. at 89 (“To indigenize their own thinking, tribal judges must be prepared to re-learn legal
reasoning from a local indigenous perspective; they must risk some of the status they have earned
in the non-Indian legal profession; and they must embark on the long-term challenge of educating
litigants and their community as a whole.”).
65
Id. at 89.
62
255
opinions issued between 1992 and 1998 and tribal courts have changed in the
past fifteen years. Indeed, some were not yet in existence when Barsh undertook
his study. 66 Notably, this article will also provide a more nuanced discussion of
intertribal citation. It will analyze instances of intertribal citation according to cited
tribe, the nature of the citation, and the type of dispute at bar. As such, it will
contribute to ongoing debates about the existence of an intertribal “common
law.” 67
In addition, in an era of increasing reliance on the internet this article’s
utilization of an internet-based tribal court opinion database, as opposed to
Barsh’s use of a print compilation, might be more reflective of current or future
tribal practices. Even if tribal courts do not currently rely heavily on internet-based
sources of tribal law, they will likely do so more in the future. This article’s review
of the currently available online tribal court opinion data sources reveals serious
gaps, particularly in the number of tribes whose opinions are available online. This
deficiency may hinder tribes from building coherent inter- or intra-tribal bodies of
law. By bringing attention to this problem, this article hopes to contribute to a
growing movement for improved availability. 68
II. METHODOLOGY
A. Data Source
This article’s analysis of tribal court citation practices is based on a threeyear sample (May 18, 2010 to May 18, 2013)69 of tribal court opinions. The sample
was extracted from WestlawNext’s online fee-based Native American law
database. 70 While WestlawNext has opinions issued as far back as 1997 for some
tribes, 71 the time-intensiveness of manual review and this study’s limited research
resources made a more expanded timeframe infeasible. The most recent threeyears were selected so that findings would speak most directly to current
66
See, e.g., Greg Skinner, Council Establishes Tribal Court, JUNEAU EMPIRE (Sept. 5, 2007),
http://juneauempire.com/stories/090507/loc_20070905026.shtml.
67
See, e.g., Valencia-Weber, supra note 7, at 226 (“The focus of this paper is the development of
American Indian law derived from custom, especially common law, among the indigenous
nations.”).
68
See infra note 87 (discussing a partnership the Native American Rights Fund and Westlaw have
developed to increase the availability of tribal court opinions).
69
These dates refer to the date each opinion was issued.
70
While WestlawNext’s Native American law database also includes Federal Indian law case
opinions issued by U.S. courts, this article’s review was limited to opinions issued by tribal courts.
71
See infra Table1 (WestlawNext coverage dates for each reporting tribe).
256
practices. Opinions from all court levels were included. This ranged from trial,
intermediate appellate, to supreme courts. It also included one court whose
jurisdiction is limited to gaming disputes. 72
Print compilations of tribal court opinions, such as the Indian Law
Reporter 73 (utilized by Barsh), were ruled out as sources. Online databases
present numerous advantages, including advanced search (by terms, dates, or
courts), cataloguing, and opinion extraction tools. Some also include linking
functionalities that open cited cases at the click of a mouse on the citing opinion.
WestlawNext’s tools are particularly advanced and were one of the principal bases
for its selection as this article’s data source.
WestlawNext
was
also
attractive
because
of
its
relative
comprehensiveness. While it contains opinions for twenty-three tribes, 74
LexisNexis only has opinions for five. 75 WestlawNext also narrowly beat out
several lesser-known competitors. For instance, Versuslaw, an online fee-based
opinion database, contains opinions for one less tribe than WestlawNext (twentytwo compared to twenty-three). 76 Similarly, the Tribal Court Clearinghouse, 77 while
accessible for free online, also only contains opinions for twenty-two tribes. While
these latter two sources’ tribal court counts do not differ greatly from
WestlawNext’s, their online functionalities pale in comparison.
72
Mohegan Gaming Disputes Court, THE MOHEGAN TRIBE,
http://www.mohegan.nsn.us/Government/gc_main.aspx (last visited Nov. 18, 2014).
73
The Indian Law Reporter has also been criticized as a source of tribal court jurisprudence on
non-technological grounds. See, e.g., Jones, supra note 45, at 514 n.78 (“Although there is an
Indian Law Reporter which compiles tribal court decisions, as well as federal and state law
decisions involving Indian law issues, the decisions contained therein are voluntarily submitted by
tribal courts and there is no regulated method of gathering tribal court decisions.”).
74
Two of these twenty-three are actually tribal court reporters, one is an intertribal court, and a few
are courts for confederated tribes. Each of these nominal “tribes” includes opinions for more than
one tribe. (Information about the actual number was not available.) As a result, WestlawNext likely
contains opinions for more than twenty-three tribes. For ease of expression, these reporters, multitribal courts, and confederacies are grouped with other WestlawNext tribal opinion sources, and
are included in references to “twenty-three tribes” throughout this article. Such oversimplification is
not unprecedented. See, e.g., American Tribal Law Reporter Now on Westlaw, Paul L. Boley Law
Library, LEWIS & CLARK LAW SCHOOL, http://lawlib.lclark.edu/spotlights/TribalLawReporter (last
visited Nov. 18, 2014) (“The Tribal Law Reporter provides tribal, appeals and supreme court
opinions from 21 American tribal courts...”).
75
The tribe count was obtained in an interview with a Lexis representative on May 26, 2013.
76
Versuslaw.com, http://www.versuslaw.com/help/library/LibCatProfessional.aspx#tribal (last
77
Tribal Court Clearinghouse, http://www.tribal-institute.org/lists/decision.htm (last visited Nov. 18,
2014).
257
Some tribes make their opinions available on their own websites. 78 In
addition, some tribes participate in joint court systems, sharing judges and
prosecutors. Some of these multi-tribe systems make their members’ opinions
available on a single website, such as the Northwest Intertribal Court System’s
website. 79 However, compiling opinions from separate websites would introduce
the risk of manual error (e.g., failing to include opinions within the sample
timeframe or miscategorizing opinions). In addition, constructing a multi-tribe
sample within a single timeframe would be challenging, as these separate sources
contain opinions issued over different spans of time. In contrast, WestlawNext
does not require manual compilation or categorization, and the website contains a
search functionality that selects cases issued within specified timeframes.
While WestlawNext is the most analytically advanced and comprehensive
source available, it is not without limitations. Crucially, its supply of tribal court
opinions is severely limited relative to the number of tribes with tribal courts.
Currently, there are 566 federally recognized tribes, 80 and according to one
estimate, 400 unrecognized tribes. 81 Roughly half of recognized tribes (283) have
tribal courts. 82 WestlawNext’s database only contains opinions for approximately
one-tenth 83 of these tribes.
As of four years ago, tribes had added incentive to report their opinions to
WestlawNext. In 2009, the Native American Rights Fund (NARF) formed a
“strategic alliance” with West whereby they work together to increase access to
78
See, e.g., Navajo Nation Supreme Court decisions,
http://www.navajocourts.org/suctopinions.htm (last visited Nov. 18, 2014); Cherokee Nation
Supreme Court,
http://www.cherokeecourts.org/SupremeCourt/SupremeCourtCaseOpinionsandInformation.aspx
79
Northwest Intertribal Court System, http://www.nics.ws/opinions/opinions.htm (last visited Nov.
18, 2014).
80
Bureau of Indian Affairs Notice, 78 Fed. Reg. 26384 (May 6, 2013).
81
GAO, Federal Funding for Non-Federally Recognized Tribes. GAO-12-348. Apr. 2012.
82
David Selden, Basic Indian Law Research Tips—Tribal Law, National Indian Law Library at the
Native American Rights Fund, http://www.narf.org/nill/resources/tribal_law_research_2012.pdf (last
83
This percent may actually be a bit higher. As previously mentioned, the twenty-three “tribes” in
WestlawNext include an intertribal reporter and court, as well as confederated tribes. Each of these
was only counted once, since accurate figures were not available. This percent should be read as
an estimate.
258
tribal law. 84 Under the alliance, materials submitted to one entity are shared with
the other. NARF posts materials to its online library; 85 WestlawNext includes them
in its fee-based database. 86 Tribes are encouraged to submit materials by being
offered free access to WestlawNext. 87 However, the success of this initiative so far
appears to be limited. As just discussed, WestlawNext only has opinions for
twenty-three tribes. Moreover, the number and recentness of opinions for some
tribes are limited as well. 88 Nevertheless, WestlawNext was the best option
available. Table 1 provides a summary of the tribal court opinions in WestlawNext.
TABLE 1. Summary of Tribal Opinions on WestlawNext (May 2013)
1
Native American
Indian
Tribe/Court
With Opinions
Available on
Westlaw
Cherokee Nation
of Oklahoma
2
Cheyenne River
Sioux
Number
Opinions
on
Westlaw
First Year
Westlaw
Coverage
Date Most
Recent
Opinion on
Westlaw
Principal Federally
Locations Recognized
120
1997
June, 2012
OK
Yes
2001
October,
2007
SD
Yes
22
84
NILL & Westlaw Work with Tribes to Improve Access to Tribal Law, NATIONAL INDIAN LAW LIBRARY
BLOG (Aug. 27, 2009, 12:58 PM), http://nilllibrary.blogspot.com/2009/08/nill-westlaw-work-withtribes-to.html.
85
National Indian Law Library, http://nill.softlinkliberty.net/liberty/libraryHome.do (last visited Nov.
18, 2014).
86
Westlaw tribal law database directory,
http://directory.westlaw.com/default.asp?GUID=WDIR00000000000000000000000001872&RS=W
&VR=2.0 (last visited Nov. 18, 2014).
87
NARF Announces New Alliance with Westlaw to Improve Access to Tribal Law, NARF,
http://narf.convio.net/site/DocServer/westlaw0809.pdf?docID=1521 (last visited Nov. 18, 2014).
88
For instance, there were only nine opinions on WestlawNext for the Fort McDowell Yavapai
Nation, the most recent of which is seven years old. See Table 1 for the number and recentness of
opinions on WestlawNext by tribe.
259
3
Confederated
Salish & Kootenai
Tribes
4
Confederated
Tribes Colville
Reservation
5
Confederated
Tribes Grand
Ronde
Community
6
Eastern Band of
Cherokee Indians
7
Fort McDowell
Yavapai Nation
35
1997
May, 2007
MT
Yes
1997
December,
2012
WA
Yes
1999
December,
2005
OR
Yes
117
2000
August,
2010
NC
Yes
9
2001
July, 2006
AZ
Yes
MT
Yes
126
103
8
Fort Peck Tribes
149
1997
January,
2008
9
Grand Traverse
Band
96
1997
June, 2009
MI
Yes
10
Ho-Chunk Nation
157
1997
July, 2011
WI
Yes
11
Hopi
115
1997
June, 2012
AZ
Yes
12
Inter-Tribal Court
of Appeals of
Nevada
1997
December,
2006
NV
Membership
Varies
13
Leech Lake Band
of Ojibwe
26
2002
February,
2010
MN
Yes
14
Little River Band
of Ottawa Indians
93
1998
May, 2009
MI
Yes
46
1998
June, 2009
MI
Yes
15
Little Traverse
Bay Bands of
185
260
Odawa Indians
16
Mille Lacs Band
of Chippewa
Indians
10
17
Mohegan
203
18
Navajo Nation
19
Oklahoma Tribal
Courts
20
Oneida Tribe of
Indians of
Wisconsin
246
1,017
755
1998
November,
2008
MN
Yes
1997
April, 2013
CT
Yes
1997
February,
2013
AZ, NM,
UT
Yes
1979
February,
2007
OK
Membership
Varies
1997
September,
2011
WI
Yes
OK
Yes
21
Sac & Fox Nation
18
1998
March,
2007
22
Tulalip Tribes
72
1997
April, 2013
WA
Yes
23
West's
Mashantucket
Pequot
556
1992
May, 2013
CT
Yes
Total Number
Tribal Opinions
on Westlaw
4,276
T
O
T
A
L
Despite being the optimal choice, using WestlawNext data may have
resulted in a biased sample. Tribes that share their opinions with WestlawNext
have the resources for publication and distribution. 89 As a result, wealthier tribes
are likely overrepresented. Moreover, tribes that report their opinions do so
89
The author contacted WestlawNext for more information about its tribal law solicitation and
publication processes and policies. However, WestlawNext has a policy of not publicly discussing
its methods of obtaining legal materials.
261
voluntarily. This willingness may be associated with practices that are more
consistent with United States courts’ and less vulnerable to external criticism. Thus
the sample might contain a disproportionate number of United States-style courts.
Moreover, WestlawNext does not necessarily contain all opinions issued by
reporting courts. Since reporting is at the courts’ discretion, tribes may only report
a portion of their caseload. 90 And tribes’ bases for selection may bring in other
dimensions of bias.
In addition, several tribes may be overrepresented in WestlawNext. Nearly
one-quarter (1,017 out of 4,276)91 of all opinions in WestlawNext’s tribal database
are from a single reporter, namely, the Oklahoma Tribal Courts Reports. While
precise information about which courts’ opinions are in this reporter was not
available, it is unlikely that the number of opinions actually issued by these courts
accounts for one-quarter of all opinions issued by tribal courts. 92 The Oneida Tribe
of Wisconsin reported the second greatest number of opinions, accounting for
nearly one-fifth (755 out of 4,276) of the tribal opinions in WestlawNext. To put this
in context, the Oneida Tribal Courts had jurisdiction over 16,567 members in
2010, 93 whereas Navajo courts adjudicated on behalf of roughly 332,129 people
that year. 94 , 95 Only six percent, compared to Oneida’s eighteen percent, of
WestlawNext’s tribal opinions were issued by the Navajo Nation.
90
Barsh, supra note 58, at 80 (“It must be borne carefully in mind that the sample consists of
published decisions, rather than total caseload. It could be argued that unpublished decisions
involve more “traditional,” or at least more informal, approaches to dispute settlement.”).
91
These figures may contain a limited number of double counted opinions. While several duplicate
opinions were identified and removed from the article’s three-year sample (see this paper’s
Methodology section for more detail about this process), conducting the same data cleaning
procedure for WestlawNext’s entire tribal court opinion database was beyond this study’s scope.
92
The study author was unable to obtain reliable information about the precise number of tribes
and/or tribal courts covered by the Oklahoma Tribal Courts Reports. A rough estimate suggests
that approximately twenty tribal courts are included. See Oklahoma Legal Services Inc., Seeking
Native Justice, http://thorpe.ou.edu/OILS/court.html (last visited Nov. 18, 2014). While these
reports also contain opinions issued by Courts of Indian Offenses (administered by the U.S.
government), the study’s three-year sample did not contain any and WestlawNext’s overall tribal
court database did not appear to either.
93
Oneida Nation of Wisconsin, Tribal Statistics,
http://witribes.wi.gov/docview.asp?docid=5637&locid=57 (last visited Nov. 18, 2014).
94
United States Census Bureau, The American Indian and Alaska Native Population: 2010. In
discussing tribal population size, this article alternates between Census data, based on “tribal
groupings,” and membership counts publicized by tribes themselves. While these figures are not
strictly comparable, population size data was not available for all tribes based on a single metric.
95
Admittedly, tribe size is not necessarily proportionate to tribal court caseload. (For instance,
some tribes might be more litigious than others, some might resort frequently to extra-judicial
262
WestlawNext also suffers from underrepresentation. The largest tribal
affiliation according to the most recent United States Census is the Cherokee
Nation, and their opinions only account for a fraction of WestlawNext’s inventory. 96
The two Cherokee Nation courts in WestlawNext (the Cherokee Nation of
Oklahoma and the Eastern Band of Cherokee Indians) together only account for
five percent of the total opinions. Several other tribes ranked as among the largest
were completely missing from WestlawNext. For instance, the Choctaw is the third
most numerous tribe 97 but did not have any opinions. 98 Several more of the top ten
most numerous tribes, including the Chippewa, Sioux, Apache, Blackfeet, and
Creek also were not represented in WestlawNext’s database. 99
B. Study Sample
The three-year sample extracted from WestlawNext totaled 231 opinions.
An opinion title and number comparison revealed that twenty-three were included
in duplicate. 100 These duplicates were dropped. This resulted in the removal of
one-tenth of the initial sample, leaving a final sample of 208 opinions. These
opinions were issued by seventeen tribal courts. See Table 2 on the next page for
a summary of the final sample.
Two tribal courts together accounted for almost half of the sample. The
Navajo Supreme Court had the most, accounting for nearly one quarter. The two
Mashantucket Pequot courts (trial plus appellate) were a close second, with
twenty-one percent of the sample’s opinions. Barsh’s sample was also dominated
by these two tribes’ courts. Barsh noted that the numerosity of Navajo opinions
makes sense, in light of that tribe’s size. 101 However, Barsh viewed the high
mediation, and some might lean heavily on U.S. courts.) This study uses tribe size as a rough
estimate of expected opinion issuance figures, since tribal court caseload data is not available.
96
Census, supra note 94 (“The Cherokee tribal grouping had the largest alone-or-in-anycombination population, with 819,000.”).
97
Id.
98
However, Choctaw rulings were the subject of two of the intertribal citations identified within the
study’s three-year WestlawNext sample. See Table 6 for more information.
99
Census, supra note 94. It should be noted that while some of these tribes are included in the
Oklahoma Tribal Courts Reports, none of their opinions were in WestlawNext.
100
Discussions with WestlawNext representatives (on May 23, 2013) revealed that WestlawNext
was not aware that it was publishing some tribal opinions more than once. The study author’s
inquiry initiated an investigation that revealed a pattern of double postings within WestlawNext’s
tribal court database. WestlawNext was of the opinion that the double postings were not the result
of duplicate submissions by tribes. Rather, the duplication was due to WestlawNext error.
WestlawNext subsequently notified the study author that the errors had been corrected.
101
Barsh, supra note 58, at 77-78 (“It should not be surprising that Navajo is heavily represented
263
number of Pequot opinions as misrepresentative because many were casinorelated, and excluded Pequot opinions for this reason. 102 Presumably, this
decision was motivated by the study’s focus on traditional law and an assumption
that gaming is beyond this scope. This article aims to shed light on citation
practices more generally, and thus did not follow Barsh in disregarding Pequot
opinions.103
TABLE 2. 3-Year Sample Tribal Opinions (May 18, 2010- 2013)
Tribal Court Name
Number of
Opinions
Level in Tribal Court
System
1
Appellate Court of the Hopi
Tribe
13
Appellate Court
2
Cherokee Court Eastern
Band of Cherokee Indians
1
Trial Court
3
Cherokee Nation Supreme
Court
9
Supreme Court
4
Colville Tribal Court of
Appeals
18
Appellate Court
5
Coquille Indian Tribal Court
1
Trial and Appellate Court
6
Ho-Chunk Nation Supreme
Court
2
Supreme Court
7
Ho-Chunk Nation Trial Court
18
Trial Court
8
Mashantucket Pequot Court
of Appeals
6
Appellate Court
since it has the largest population and caseload.”).
102
Id. at 78 (“The Pequot court is clearly overrepresented in relation to the size of that tribe,
however—an artifact of the high volume of disputes involving the Pequots' casino, which accounted
for 12 percent of all the reported cases. For this reason, the Pequot decisions have been deleted
from some of the analyses presented below.”).
103
Barsh reported two sets of findings, each based on a different sample. One sample included
and the other excluded Pequot opinions. Since this study included Pequot opinions, the Barsh
findings it discusses are based on the Pequot-inclusive sample.
264
9
Mashantucket Pequot Tribal
Court
37
Trial Court
10
Mohegan Gaming Disputes
Court of Appeals
2
Appellate Court
11
Mohegan Gaming Disputes
Trial Court
16
Trial Court
12
Mohegan Tribal Trial Court
5
Trial Court
13
Oneida Tribal Judicial
System Trial Court
17
Trial Court
14
Shoshone and Arapaho
Tribal Court
1
Trial and Appellate Court
15
Supreme Court Eastern Band 2
Cherokee Indians
Supreme Court
16
Supreme Court Navajo
Nation
46
Supreme Court
17
Tulalip Tribal Court of
Appeals
14
Appellate Court
TOTAL Total Number of Opinions in
Sample
208
In contrast, several courts in the sample only had one or two opinions. For
instance, the Coquille Tribe and Shoshone-Arapaho Tribes’ joint court each only
had one opinion. As one might expect based on this small turnout, all three of
these tribes are small. Coquille’s membership is estimated at 695 people, 104 in
stark contrast to the Navajo Nation’s 332,129. 105 The Shoshone and Arapaho
104
Coquille Tribe, NORTHWEST PORTLAND AREA INDIAN HEALTH BOARD,
http://www.npaihb.org/member_tribes/tribe/coquille_tribe/ (last visited Nov. 18, 2014).
105
Census, supra note 94.
265
Tribes are larger than Coquille, at 7,400 and 4,200 respectively, 106 but still small
compared to some of the other tribes in the sample. As such, these three tribes’
limited representation in the sample may actually be proportionate to their realworld judicial presence. However, the small number of opinions limited the
inferences that could be made. Clearly, one opinion (or even quite a few more) for
a single tribe or court is not revealing of an overall citation “practice.”
The courts with opinions in the sample were well-balanced numerically in
terms of court level. Of the sample’s issuing courts, six were at the trial level, five
were appellate (excluding supreme courts), and four were supreme. (Two of the
courts, not included in the foregoing, operate on both the trial and appellate
levels.) However, this numerical balance is surprising since not all tribes have
appellate courts and not all cases are appealed. Thus, one would expect a greater
proportion of trial-level courts, as well as opinions. Forty-five percent of the
sample’s opinions were issued by trial courts, whereas reason suggests that trial
opinions should account for the vast majority.
One possible explanation is that appellate courts are more able or eager to
report their opinions, perhaps because of greater access to resources or more
confidence and willingness to expose their adjudication. Alternatively, cases that
reach appellate levels may be high-profile or particularly far-reaching, and tribal
communities may demand decisional details. Regardless, this study’s findings
might be more reflective of appellate than overall citation practices, which likely
have a wider basis in trial court adjudication.
C. Data Analysis
Each of the 208 opinions in the sample was reviewed using a standardized
review instrument. The instrument was developed based on the results of a review
of a sub-sample (totaling thirteen opinions), consisting of the tribal court opinions
issued within the last six months available on WestlawNext. This preliminary
review suggested ten citation categories to guide citation tracking: (1) cite to same
court (self-referential); (2) cite to lower court (same tribe); (3) cite to higher court
(same tribe; excluding tribal supreme court opinions); (4) cite to supreme court
(same tribe); (5) cite to other tribal court; (6) cite to state court in tribe’s primary
106
Frequently Asked Questions, THE ARAPAHO PROJECT,
http://www.colorado.edu/csilw/arapahoproject/contemporary/faq.htm (last visited Nov. 18, 2014).
266
state; (7) cite to other state court; (8) cite to Circuit court; (9) cite to United States
Supreme Court; and (10) cite to foreign court.
While the preliminary sub-sample review also revealed citations to legal
materials other than opinions (for instance, Black’s Law Dictionary 107 made
several appearances) as well as a variety of non-legal sources (ranging from
Goethe 108 to Forrest Gump 109 ), only citations to court opinions were routinely
tracked.
For each opinion, citations were identified and logged according to the ten
categorizes. These findings were recorded in a master database. This analysis did
not account for the nature of the citation. For instance, negative treatment was not
differentiated from positive. Such nuanced assessment was prohibitively timeintensive, and raw citation counts are quite meaningful in their own right. Even if a
case is cited as not dispositive, such reference still functions as an
acknowledgement that the cited court’s rulings are potentially relevant. Moreover,
references to other courts’ opinions are revealing of courts’ access to external law,
regardless of the level of deference shown.
Citations in opinion footnotes, in addition to those in the body of the opinion,
were recorded. The analysis did not differentiate citations based on their location.
In addition, when a citation itself explicitly referred to another opinion, 110 each cited
opinion was recorded separately. However, cited opinions were only counted once
per citing case, not each time they appeared if they were referenced multiple
times. While analyzing the number of times individual cases are cited in a given
opinion might speak to the weight given to the cited material, assessing depth of
treatment was beyond this study’s scope. Finally, cited opinions were not
107
See, e.g., K.F. v. Quil Ceda Village Liquor Store, 2013 WL 1812229 (Tulalip C.A.), 5 (“Black's
Law Dictionary, Centennial Edition (1991), defines “pro se” as “For one's own behalf.”).
108
Walton v. Mashantucket Pequot Gaming Enter., MPTC CV-AA-2011-174, 2012 WL 4513385
(Mash. Pequot Tribal Ct. Oct. 1, 2012) (“Thus, unlike Goethe's Dr. Faust...who made [his] own
deals with the devil and got at least temporary benefits, here the plaintiff received very little (only a
few sips of beer) in return.”).
109
EXC, Inc. v. Kayenta Dist. Court, SC-CV-07-10, 2010 WL 3701050 (Sept. 15, 2010) (“The
buttes are featured in ...recent movies such as Forrest Gump...”).
110
E.g., Sandoval v. Navajo Election Admin., SC-CV-62-12, 2013 WL 775403 (Feb. 26, 2013); In
re Appeal of Vern R. Lee, 6 Am. Tribal Law 788, 789–90 (Nav.Sup.Ct.2006) (citing Begay
v. Navajo Nation Election Admin. (NEA), 8 Nav. R. 241, 250, 4 Am. Tribal Law 604
(Nav.Sup.Ct.2002).
267
examined to determine if the cited text itself contained another citation. While this
was likely the case in a few instances, this study was only concerned with tribal
courts’ explicit reliance on other opinions.
III. FINDINGS
A. Results Overview
According to a detailed review of the three-year sample, tribal courts look
predominantly to tribal law in their citations. Seventy percent of all citations to
other opinions (1,197 out of a total 1,706 citations in the sample) were to tribal
court decisions. In comparison, tribal courts only turned to United States court
jurisprudence for thirty percent of their citations (508 out of the total 1,706
citations). Strikingly, tribal courts barely acknowledged foreign courts’ existence,
with a mere one citation in the entire sample. See Table 3 below for a summary of
these findings.
TABLE 3. Summary of Citation Findings
Total
Number
of
Citations
in Sample
Average
Number
of
Citations
per
Opinion
Number
of
Citations
to Tribal
Courts
Average
Number of
Citations
to Tribal
Courts per
Opinion
1,706
8
1,197
6
Number
of
Citations
to
United
States
Courts
508
Average
Number
of
Citations
to
United
States
Courts
2
Number of
Citations
to Foreign
Courts
1
On average, opinions in the sample cited eight cases. This rate does not
differ greatly from rates reported for some United States courts. For instance, one
study found that the United States Supreme Court cites an average of seven Court
268
decisions in each opinion, and cites elsewhere infrequently. 111 State supreme
courts, however, appear to cite more heavily. According to one study, state
supreme court opinions include an average of fourteen citations. 112 Similarly, a
study of the New York Court of Appeals (the state’s highest court) found an
average of eleven citations per opinion. 113 Relative to these United States courts,
tribal courts appear to be on the lower end of the citation spectrum.
However, there are many United States courts that may be more
comparable to tribal courts for which citations rates were not available. These
similarities, such as lack of legal resources, judges’ with limited training, and
geographic remoteness, could affect citation rates. And if rates for these United
States courts are indeed low, the overall rate for United States courts may actually
be closer to tribal courts’ than the studies suggest.
B. Citations to Tribal Courts
The vast majority of citations to tribal precedent was self-referential. 114 Just
over eighty percent of all citations to tribal opinions (967 out of a total of 1,197
citations to tribal courts) were to opinions previously issued by the citing court
itself. In some instances this insularity is likely largely due to the fact that some
tribal court systems only consist of one court, which functions on both the trial and
appellate levels. Two tribal courts included in the sample, the Coquille Indian
Tribal Court and the Shoshone and Arapaho Tribal Court, each play this dual role.
These courts cannot cite tribal court opinions other than their own without looking
outside their own tribes.
These two courts each only accounted for one opinion out of the sample’s
208. So the fact that some tribal court systems are single-tiered likely does not
fully account for the finding that tribal courts cite their own decisions so much more
frequently than they cite other courts in their tribe’s judicial system. Alternatively,
tribal courts’ insularity could be an indication that even access to opinions issued
111
Cross, supra note 52, at 530.
Lawrence M. Friedman ET AL., State Supreme Courts: A Century of Style and Citation, 33 STAN.
L. REV. 773, 795 (1981).
113
New York Appellate Decisions Show Preference for Recent Cases, Commentaries and Bill
Memos, N.Y. St. B.J., May 2002, at 8.
114
A “self-referential” citation is when the citing tribal court refers to one of its own opinions.
112
269
within the same tribal court system, but at different levels, is limited. See Table 4
below for a summary of the findings on citations to tribal courts. 115
TABLE 4. Citations to Tribal Courts: Findings Summary
Total
Number
of
Citations
to Tribal
Courts
Number of
SelfReferential
Citations
Number of
Citations to
Lower Courts
(Same Tribe)
1,197
967
55
Number of
Citations to
Higher Courts
(Same Tribe)
Number of
Citations to
Tribal
Supreme
Court (Same
Tribe)
Number
of
Citations
to Other
Tribes 116
103
62
10
While the foregoing suggests that tribal courts are strongly focused on their
own jurisprudence, they are not blind to the other courts that adjudicate on behalf
of their tribes. Almost one-tenth of citations to tribal courts (103 of the 1,197 total)
were to higher courts within the same tribal court system. Courts looked to their
tribe’s supreme court to a lesser extent, only citing supreme courts in five percent
of their citations to tribal courts. However, this finding should be read in light of the
fact that a number of tribes do not have supreme courts. Thus this low citation rate
may largely be the result of necessity and not choice. Citation to lower courts
within the same tribe was only slightly less frequent than citation to supreme
courts, accounting for just under five percent.
In contrast, the number of citations to other tribes’ courts was strikingly
small. A mere one percent of citations to tribal courts (10 out of 1,197) were
intertribal. These ten intertribal citations appeared in six opinions. (See Table 5 on
the following page for a detailed description of each of the ten instances of
115
The categories in Table 4 are mutually exclusive. For instance, even though a citation to a tribal
supreme court may technically be a citation to a higher court, citations to mere appellate courts
were disaggregated from courts identified as “supreme.” Similarly, if a tribal supreme court cited
itself, this citation only counted towards the “self-referential” citation tally.
116
As noted in this article’s Introduction, the practice of citing to other tribes is generally referred to
as “intertribal citation” throughout this article.
270
intertribal citation.) This low rate of intertribal citation may be the result of a lack of
access to other tribal courts’ decisions. 117 It could also be due to inter-tribal
animosity, or a general distaste for citing “external” tribal jurisprudence because of
perceived differences in tribal custom.
Barsh’s findings on intertribal citation are not directly comparable to this
article’s, but not for the reason discussed previously (i.e., a difference in the unit of
analysis, namely, percentage of opinions versus citations). The Barsh study
included citations of tribal legislation within its intertribal citation category, and this
study only recorded citations to other tribes’ decisions. Barsh found that ten
percent of opinions included at least one citation to another tribe’s law or legal
decision. In contrast, this study found that only three percent of opinions (6 out of
208) included at least one intertribal citation. That Barsh found a greater
prevalence of intertribal citation than this study is not unexpected since Barsh’s
definition of intertribal citation was broader.
TABLE 5. Citations to Tribal Courts: Detailed Findings
Citing
Opinion
Title
1
Bradley
v. Tulalip
Tribes,
10 Am.
Tribal
Law 283
Citing
Citing
Citing
Opinion
Opinion
Tribal
Type
of
Date
Court
Case
May,
2012
Tort Law
Tulalip
Tribal
Court of
Appeals
(WA)
117
Tribal
Court
Cited
Description
Of
Availability of
Intertribal
Cited Opinion
Citation
Hoopa
Valley
Tribal
Court of
Appeals
(CA)
Other tribe's
opinion
cited in
reference to
"the
common
law of
sovereign
immunity."
Unable to locate
online in publicly
accessible tribal
court opinion
databases.
(Not on Westlaw)
Aaron F. Arnold ET AL., State and Tribal Courts: Bridging the Divide, CENTER FOR COURT
INNOVATION (2011) at 12 ([T]ribal courts often lack the technological capacity to store and retrieve
information from court cases, and they do not have reliable access to compilations of tribal court
decisions from other jurisdictions.”).
271
Cited
portion of
other tribe's
opinion is in
turn a
citation to a
Federal
Circuit court
opinion.
2
Bradley
v. Tulalip
Tribes,
10 Am.
Tribal
Law 283
May,
2012
Tort Law
Tulalip
Tribal
Court of
Appeals
(WA)
3
Bradley
v. Tulalip
Tribes,
10 Am.
Tribal
Law 283
May,
2012
Tort Law
Tulalip
Tribal
Court of
Appeals
(WA)
4
Zavala v.
Milstead,
10 Am.
Tribal
Sept.,
2011
Family Law
(child
custody)
Colville
Tribal
Court of
Appeals
118
Hoopa
Valley
Tribal
Court of
Appeals
(CA)
Other tribe's
opinion
cited in
reference to
"the
common
law of
sovereign
immunity."
Publicly available
online at
Northwest
Intertribal Court
System
website 118 (as
noted by the
citing opinion).
(Not on Westlaw)
Puyallup
Tribal
Court
(WA)
Other tribe's
opinion
cited in
reference to
"the
common
law of
sovereign
immunity."
Publicly available
online at
Versuslaw.com 119
(Not on Westlaw)
Navajo
Nation
Supreme
Court
Citing court
cites other
tribe's
opinion in
Publicly available
online at Navajo
Supreme Court
website 120
Northwest Intertribal Court System, http://www.nics.ws/opinions/opinions.htm (last visited Nov.
18, 2014).
119
VersusLaw, http://www.versuslaw.com/ (last visited Nov. 18, 2014).
120
Navajo Supreme Court, http://www.navajocourts.org/suctopinions.htm (last visited Nov. 18,
2014).
272
Law 195
(WA)
(AZ)
5
C.S. v.
Tulalip
Tribes
Housing
Dept.,
9 Am.
Tribal
Law 407
6
C.S. v.
Tulalip
Tribes
Housing
Dept.,
9 Am.
Tribal
Law 407
Feb.,
2011
Tulalip
Tribal
Employment
Court of
Law
Appeals
(WA)
7
Desautel
v. Dupris,
10 Am.
Jan.,
2011
Tribal
Enrollment
and Judicial
121
Feb.,
2011
Tulalip
Tribal
Employment
Court of
Law
Appeals
(WA)
273
(Available on
Westlaw)
Hoopa
Valley
Tribal
Court of
Appeals
(CA)
Other tribe's
opinion
cited in
reference to
courts' duty
to
proactively
establish
jurisdiction.
Unable to locate
online in publicly
accessible tribal
court opinion
databases.
(Not on Westlaw)
Squaxin
Island
Tribal
Court of
Appeals
(WA)
Other tribe's
opinion
cited in
reference to
courts' duty
to
proactively
establish
jurisdiction.
Unable to locate
online in publicly
accessible tribal
court opinion
databases.
(Not on Westlaw)
Colville Navajo
Tribal
Nation
Court of Supreme
VersusLaw, supra note 119.
reference to
the fact that
it is the only
case
mentioned
by
appellant.
Citing court
notes that
they do not
find Navajo
law
persuasive.
Other tribe's Publicly available
opinion
online at
cited in
Versuslaw.com 121
Tribal
Law 188
8
Nissen v.
Coquille
Economic
Dev.
Dec.,
Corp.,
2010
Am.
Tribal
Law
Misconduct
Tort Law
Appeals Court
(WA)
(AZ)
reference to
courts'
"inherent
powers."
Citation is
indirect; it
refers to
another of
the citing
court's own
opinions,
which
contains the
other tribe's
citation.
Other tribe's
opinion
cited to
support
assertion
that
principles of
Cherokee
estoppel do
Court of
Coquille
not apply to
the
Indian
subject
Eastern
Tribal
matter
Band of
Court
jurisdiction.
Cherokee
(OR)
Citation
Indians
introduced
(NC)
with
statement
that "at
least one
tribal court
is in
accord."
274
(Not on Westlaw)
Unable to locate
online in publicly
accessible tribal
court opinion
databases.
(Available on
Westlaw)
9
Billie v.
Collins,
Am.
Tribal
Law
Billie v.
Collins,
10 Am.
Tribal
Law
Sept.,
2010
Sept.,
2010
Family Law
(divorce)
Family Law
(divorce)
HoChunk
Nation
Trial
Court
(WI)
HoChunk
Nation
Trial
Court
(WI)
Choctaw
Tribal
Court
(OK)
Other tribe's
opinion
cited in
reference to
divorce
and custody
ruling.
Unable to locate
online in publicly
accessible tribal
court opinion
databases.
(Not on Westlaw)
Choctaw
Tribal
Court
(OK)
Other tribe's
opinion
cited in
reference to
modification
of
divorce and
custody
ruling.
Unable to locate
online in publicly
accessible tribal
court opinion
databases.
(Not on Westlaw)
One tribal court, the Tulalip Tribal Court of Appeals of Washington State,
was responsible for half of the instances of intertribal citation. This finding is not
surprising in light of the fact that the Tulalip Tribal Court of Appeals is administered
by the Northwest Intertribal Court System (NICS). 122 NICS is a “consortium of
Indian tribes” that provides legal services to its tribal members. 123 The NICS
judges who sit on the Tulalip Tribal Court of Appeals bench and write the court’s
opinions also adjudicate for other tribes. Some of these judges are members of
other tribes. 124
Moreover, all of the Tulalip Appeals Court’s intertribal citations were to
decisions issued by other NICS member tribes—the Hoopa, Puyallup, and
Squaxin Island tribes are all members. 125 It is also notable that all of the Tulalip’s
122
Tulalip Appellate Justices, TULALIP TRIBAL COURT, http://www.tulaliptribesnsn.gov/Home/Government/Departments/TribalCourt/AppellateJudgeBio.aspx (last visited Nov. 18,
2014).
123
About NICS, NORTHWESTERN INTERTRIBAL COURT SYSTEM, http://www.nics.ws/ (last visited Nov.
18, 2014).
124
Tulalip Appellate Justices, supra note 122.
125
Tribal Court Contacts, NORTHWESTERN INTERTRIBAL COURT SYSTEM,
http://www.nics.ws/tribes/tribes.htm (last visited Nov. 18, 2014).
275
intertribal citations involved positive treatment. The other courts’ decisions were
referred to as applicable authority, and not for the sake of distinguishing.
Moreover, three of these five citations were in reference to the existence and
persuasiveness of an intertribal common law. Taken together, these facts suggest
that the Tulalip court’s propensity for intertribal citation is a function of the
intertribal nature of the Tulalip court itself.
Two other tribes were each responsible for two instances of intertribal
citation. One of these courts, the Colville Tribal Court of Appeals, cited the Navajo
Supreme Court on both occasions. Interestingly, the Colville court’s treatment of
Navajo jurisprudence was contradictory. In one instance, the Colville court only
noted the Navajo case because it was cited in a party’s submissions, and explicitly
stated that it does not find Navajo law persuasive. 126 (However, the citing court did
take the Navajo decision seriously enough to bother distinguishing it.) In the other
instance, the Colville court cited a Navajo decision positively, albeit indirectly, to
establish a court’s duties. 127 The citation supported an assertion that all courts
have “inherent powers” of review. It was indirect insofar as the citation referred to
an opinion issued by the citing court itself that cited the other tribe (Navajo).
This apparent inconsistent treatment could be the result of the small sample
size (a review of a larger number of decisions may actually reveal a more
consistent trend) or perhaps no fixed view on the persuasiveness of other tribal
courts’ decisions. The fact that the negative instance of intertribal citation was in a
family law matter (conceivably related to tribe-specific custom) and the positive
treatment appeared in an enrollment/judicial misconduct case (more procedural in
nature, and perhaps more generalizable across tribes) invites speculation about
whether the nature of the case affects a court’s willingness to apply other tribes’
decisions. However, the significance of such an inference is negated by the small
sample size.
The second tribal court that was responsible for two instances of intertribal
citation, the Ho-Chunk Nation Trial Court, also cited the same court on both
occasions. However, these two citations (to the Choctaw Tribal Court) were more
procedural and neutral than the instances of intertribal citation just discussed. Both
citations referred to the Choctaw court rulings for factual purposes, to establish the
126
Zavala v. Milstead, AP09-008, 2011 WL 5172905 (Sept. 12, 2011) (“Even if we were persuaded
to follow Navajo case law, which we aren't at this time, Miles is not apposite to the holdings
herein.”).
127
Desautel v. Dupris, AP10-012, 2011 WL 7867369 (Jan. 21, 2011).
276
outcome of previous adjudication. 128 Thus these two instances of intertribal citation
did not reveal a strong disposition one way or the other towards other tribal courts’
jurisprudence.
The remaining instance of intertribal citation, by the Coquille Indian Tribal
Court, was notable for its demonstration of broad receptivity to other tribal courts’
jurisprudence. It introduced the other courts’ opinion by stating that “[a]t least one
tribal court is in accord.” 129 This statement could be read to suggest that the
Coquille court generally considers other tribal courts’ jurisprudence as persuasive,
and may not distinguish the degree of authority according to the precise identity of
the other court.
C. Citations to United States Courts
In citing United States courts, tribes frequently turned to state courts. Half of
the citations to United States courts were to state courts (247 out of the 508
citations to United States courts). The Barsh study also found what it characterized
as a high level of citation to state courts, reporting that nearly thirty percent of
opinions in its sample relied to some extent on state law. Barsh found this
dependence disturbing in light of tribal courts’ need to distinguish themselves from
state courts to legitimize their separate existence. 130 To the extent that tribal courts
compete with state courts, they are most directly in competition with those in their
own states. As a result, tribal courts’ rates of citation to their own states might
speak most directly to their chances of survival as independent entities. In
particular, high rates of citation to their own states could be a harbinger of
reduction, or even demise, of tribal court jurisdiction.
This strong tendency could be the result of a number of conditions. Tribal
court judges might be particularly well-versed in the laws of their own states. In
addition, tribes might have better access to decisions issued by courts in their
states than to the opinions of other United States courts. This superior access
could be the result of geographic proximity or state-tribal court partnerships. 131
128
Billie v. Collins, CV 10-51, 2010 WL 4076348 (Sept. 13, 2010).
Nissen v. Coquille Econ. Dev. Corp., C10-03, 2010 WL 4939527 (Dec. 3, 2010).
130
Barsh, supra note 58, at 80 (“The frequency with which tribal courts rely on state law is
troublesome, however, in the context of tribal courts' historical efforts to distinguish themselves
from state courts, and justify their continued existence as separate judicial institutions.”).
131
Arnold, supra note 117. (“Just as important as the written agreements and new court
procedures, tribal-state court forums have helped to open new lines of communication and
improved relationships between tribal and state court judges, administrators, and practitioners.”).
129
277
Tribal courts’ overwhelming reliance on their own states could also be due to the
fact that tribal and state courts have overlapping jurisdiction over a range of
matters, from family law to criminal law. 132 As a result, the legal questions that
arise in their adjudications, as well as the specific disputes themselves, may be
the same. See Table 6 below for a summary of the findings on citations to United
States courts.
TABLE 6. Citations to United States Courts: Findings Summary
Total Number
of Citations
to
United States
Courts
Number of
Citations to
Courts in Citing
Tribe's
State(s) 133
Number of
Citations to
Courts in
Other States
Number of
Citations to
Federal Circuit
Courts
Number of
Citations to
the
United States
Supreme
Court
508
194
53
98
163
Tribal courts devoted the other half of their United States citations to federal
circuit courts and the United States Supreme Court. The Supreme Court was
almost twice as popular as all circuit courts combined. While thirty-three percent of
United States court citations were to Supreme Court decisions, only twenty
percent were to circuit courts. This disparity may be due in some part to a greater
number of tribes’ viewing Supreme Court precedent as relevant, whereas circuit
courts may only be considered persuasive by tribes in their jurisdictions. Tribal
court judges may also be more aware of Supreme Court decisions because of
greater publicity or emphasis in legal training.
132
Id. at 2 (“[T]hese courts share overlapping legal jurisdiction—including shared authority to
adjudicate matters and issue binding orders—in areas like domestic relations, criminal prosecution,
and contracts.”).
133
A tribe was generally considered to be associated with state(s) where their central government
offices (courts, etc.) are located.
278
D. Citations to Foreign Courts
The three-year sample only included one citation to a foreign court. 134
Moreover, the foreign court is not in a distant land. It was neighboring Canada.
Somewhat surprisingly, the citing court was the Navajo Supreme Court, which did
not frequently cite beyond its own chambers. Indeed, almost all of the Navajo
Supreme Court’s citations (eighty-four percent) 135 were to opinions it issued itself.
Even its one foreign court citation was somewhat self-referential. Its reference to
the Canadian court was based on a lower Navajo court opinion 136 that discussed
the Canadian opinion “at length.” 137
However, the Navajo Supreme Court opinion itself includes a detailed
discussion of Canadian law and its relevance to the tribal customs involved in the
child custody dispute at bar. The Navajo Supreme Court even faults the lower
Navajo court for not sufficiently considering Canadian law. Its basis for this
chastisement is that Canadian law should be used as a lodestar because its
underlying principles mirror Navajo custom. 138 Specifically, the Navajo Supreme
Court looked to Canada to establish that “tribal judges will look to the welfare of
the child before the rights of a natural parent.’” 139
That the one citation to a foreign court involved a matter of custom may
initially seem counterintuitive. Arguably, custom is unique to each society.
According to this view, foreign nations’ cultural beliefs may be too alien to be relied
upon. However, tribal courts might actually be particularly willing to cite further
afield on customary matters because of a lack of legal precedent closer to home.
In addition, decisions based on custom may be harder to explain because of weak
134
In re A.M.K., SC-CV-38-10, 194, 201, 2010 WL 4159270 (“See Deer v. Okpik, 4 Canadian
Native L. Rep. 93 (Cour Supérieure de Quebec 1980) (explaining that tribal judges “will look to the
welfare of the child before the rights of a natural parent”).”).
135
The Navajo Supreme Court opinions in the study’s three-year sample contained a total of 581
citations to legal precedent. Of these citations, 486 were self-referential.
136
Goldtooth v. Goldtooth, 3 Nav. R. 223 (W.R.Dist.Ct.1982).
137
In re A.M.K., supra note 134.
138
Id. at 200 (“The [lower Navajo] court further failed to consider the family law of Canada which
closely tracks our own fundamental principles in its subordination of the right of parents to the best
interest of the child and emphasis on extended family.”).
139
Id. at 201.
279
foundations in traditional legal logic. In these cases, wide-ranging citations might
actually help establish legitimacy. 140
According to the Navajo Supreme Court, not all external court citations are
created equal. In particular, the Navajo Court emphasized Canadian law’s
superiority relative to United States law for family law matters: “The emphasis on
extended family in both Navajo and Canadian law diverges markedly from the
traditional Anglo-American nuclear vision.” 141 However, this preference does not
appear to apply to all Navajo Supreme Court adjudication. In the sample, the
Navajo Supreme Court’s citations relied far more heavily on United States
precedent than Canadian (or other foreign) precedent. Its one citation to a
Canadian court pales in comparison to its eighty-two citations to United States
courts.
The Navajo Supreme Court, and tribal courts generally, are not unique in
their limited reliance on foreign courts. For instance, the United States Supreme
Court is often characterized as having an “aversion” to citing foreign courts. 142
Although they may have company, tribal courts’ insular citation practices might be
to their detriment. By overlooking external law, they may be “fail[ing] to make use
of an important source of inspiration, one that enriches legal thinking, makes law
more creative, and strengthens the democratic ties and foundations of different
legal systems.” 143
CONCLUSION
Taken together, this study’s findings suggest that tribal courts have
responded to their unenviable position at the intersection of two worlds by
retreating to one. Essentially, they are islands in a jurisprudential archipelago.
They rarely cited beyond tribal chambers—seventy percent of all citations were to
tribal courts. And nearly all of these citations were self-referential, suggesting that
each tribal court is secluded on its own island. Intertribal citation was almost non140
In the Navajo case under discussion, one party (the father) was a Canadian citizen. This fact
likely accounts in part for the Navajo court’s deference to Canadian custom, although the opinion
supports this citation by characterizing Canadian custom as similar to Navajo tradition.
141
In re A.M.K., supra note 134, at 200.
142
Adam Liptak, U.S. Court is Now Guiding Fewer Nations, N.Y. TIMES, Sept. 17, 2008, at A1; see,
e.g., Atkins v. Virginia, 536 U.S. 304, 342-325 (2002) (Rehnquist, C.J., dissenting); Lawrence v.
Texas, 539 U.S. 558, 598 (Scalia, J., dissenting).
143
Aharon Barak, Foreword: A Judge on Judging: The Role of A Supreme Court in A Democracy,
116 HARV. L. REV. 16, 114 (2002).
280
existent, only surpassed in its infrequency by citation to foreign courts. In the
limited circumstances when tribal courts did look beyond their own rulings, they
tended to stick close to home. Their citation practices suggest a preference for
decisions issued by courts in their own states, over United States courts further
afield.
These findings raise the question of whether tribal courts’ insularity is the
result of circumstances that may to some extent be beyond their control, such as
limited access to opinions. This study’s review of sources of tribal court opinions
suggests that lack of access may indeed be a significant factor. The optimal
source in terms of usability and comprehensiveness (WestlawNext) only contained
opinions for a few dozen tribes, whereas 566 tribes are federally recognized and
hundreds more are not.
The article’s intertribal citation findings further support the theory that low
citation rates are a function of poor access. The court responsible for the most
instances of intertribal citation is a member of an intertribal court system. The
judges that adjudicate for this tribe have extensive access to other member tribes’
opinions—indeed, they write them. All of this tribe’s intertribal citations were to
tribes that also belong to the intertribal court system. In addition, according to a
judge who sits on several tribal courts, 144 most tribal judges prefer citing other
tribes to United States courts. This preference is based on the fact that tribes
share cultural practices and some disputes common to tribes do not frequent
United States courts. The judge claimed that the main reason tribal court judges
do not rely more heavily on other tribes’ opinions is lack of access.
If access is indeed the primary cause of tribes’ low citation rates and tribes
actually desire to cite more widely, then the pressing question becomes what can
be done to help tribal courts escape their islands to become “a part of the main.”145
Answering this question could have serious implications for tribes, and for the
growing number of non-tribal parties who fall within their courts’ jurisdiction. 146
Crucially, the power to cite other courts extensively could help preserve tribal
144
Interview with Judge BJ Jones, Chief Justice of the Turtle Mountain Tribal Court of Appeals,
Special Magistrate of the Non-Removable Mille Lacs Band of Ojibwe Tribal Court, and alternate
judge of the Three Affiliated Tribes Tribal Court (Mar. 8, 2013).
145
JOHN DONNE, No Man is an Island, Meditation XVII, in DEVOTIONS UPON EMERGENT OCCASIONS
(1624).
146
E.g., Violence Against Women Reauthorization Act of 2013, S. 47, 113th Cong. § 904 (2013)
(enacted) (creating special domestic violence jurisdiction).
281
courts’ severely limited resources. 147, 148 Citations to prior decisions can replace
time-consuming step-by-step legal analysis and can substitute for re-explanation
of frequently adjudicated rules of law.
Moreover, access to legal materials can shape the law itself. The ability to
draw upon a broader supply of jurisprudence could help tribes respond to each
dispute’s unique circumstances with more nuance, and could create a richer tribal
common law. Tribal courts might also be able to lean more heavily on their own
customary law and tradition if they could more easily look to other tribal courts that
have done so for support. And each tribe’s body of customary law, in turn, could
be strengthened over time through considered analysis and application. So
ultimately, much is at stake in whether tribes resolve their current access
limitations. With greater access, tribal courts could venture forth from their islands,
better equipped to mete out tribal justice.
147
See, e.g., Sophie Harnay & Alain Marciano, Judicial Conformity Versus Dissidence: An
Economic Analysis of Judicial Precedent, 23 INT'L REV. L. & ECON. 405, 408 (2003) (“A precedent
thus serves to economize on the costs of decision-making.”).
148
See, e.g., Douglas B.L. Endreson, The Challenges Facing Tribal Courts Today, 79 JUDICATURE
142, 145 (1995) (“[T]hese systems have historically been underfunded.”).
282
ADDENDUM—FUTURE RESEARCH
While this article will help bring greater visibility to the need for greater
availability of tribal court opinions, its limited sample size and methodology leave
room for additional, and more generalizable, analysis. For instance, an expanded
timeframe (beyond this study’s three-year scope) would facilitate longitudinal
assessment of citation practices. Changes over time could reveal the impact of
changes in the accessibility of opinions. The strength of the sample could also be
improved by increasing the number of tribal courts included therein. Moreover,
including tribes that have not chosen to publish their opinions on WestlawNext
would help eliminate any bias associated with the willingness or wherewithal to
make opinions available.
Increasing the breadth of materials analyzed could help contextualize this
study’s findings. A review of tribal legislation is particularly promising. At least one
tribe has adopted a code that explicitly permits its tribal court to refer to other
courts 149 and another has enacted legislation requiring the application of state
law. 150 In addition, future research could review the portions of tribal constitutions
creating tribal courts for directions as to how courts should treat external law.
Some countries’ constitutions contain such provisions: “The openness of some
legal systems to foreign law is reflected in their constitutions. The South African
Constitution ... says that courts interpreting its bill of rights “must consider
international law” and “may consider foreign law.”” 151
The methodology could also be expanded beyond numerical review. For
instance, the treatment of cited opinions could be assessed along a negative to
positive continuum. Understanding whether external law is primarily cited as
authority or as inapplicable would help reveal how tribal courts view themselves
within larger legal communities. A high rate of positive treatment for citations to
other tribes’ opinions would support the view that there is in fact a “tribal common
law.” High rates of negative treatment would not necessarily counter this theory.
The fact that judges mention another tribe’s law at all suggests a commonality that
149
Valencia-Weber, supra note 7, at 253 (according to the Sitka Tribe of Alaska Community
Association Code and court rules, the Sitka Tribal Court “may refer to other sources of law for
guidance, including the law of other tribes, federal, state or international.”).
150
Cross, supra note 52, at 80 (“Pequot tribal legislation directs the tribal courts to apply
Connecticut law in private civil actions.”).
151
Liptak, supra note 142; Constitution of the Republic of South Africa Act 108 of 1996, Ch. 2, § 39.
283
invites cross-application. Arguably, the legal issues most frequently subject to
positive treatment might form the core of any tribal common law.
Finally, future research should focus on determining what drives or hinders
citation in practice. A large-scale standardized interview of tribal judges is the most
promising approach. Tribal judges likely have informed opinions about what tribal
courts and communities might stand to gain or lose from increased external
citation. If it seems likely that the result would be a net gain, then judges could also
be consulted for practical suggestions about how the most serious barriers to
citation might be overcome.
284
HABITAT AND HARVEST:
THE MODERN SCOPE OF TRIBAL TREATY RIGHTS TO HUNT AND
FISH
Whitney Angell Leonard *
INTRODUCTION
For the first century of its existence, the United States government dealt
with Indian nations 1 the way it would deal with any other sovereign nation: through
treaty. And a century of Uncle Sam’s highly active treaty-making yielded a lot of
promises: between 1778 and 1871, the United States ratified 370 treaties with
Indian nations and negotiated at least 45 more that were not ultimately considered
for ratification. 2 These treaties were the instrument by which Native tribes were
convinced to sign away the overwhelming majority of their lands, retaining only
relatively small “reservations” on which they were told to live. 3 In exchange for
these vast land cessions, the United States provided promises that the United
States government would protect the tribes, provide certain basic services, and, in
many cases, recognize the tribes’ continued right to hunt, fish, and gather in their
traditional territories outside the boundaries of their newly created reservations.
Tribes’ struggle for full recognition of the rights guaranteed by these treaties
has persisted ever since. Treaty-guaranteed rights to hunt and fish have been—
*
Yale Law School, J.D. expected 2015; Williams College, B.A., 2008. I am grateful to those in
Montana who pushed me to think deeply about these ideas, to Carol Rose for her guidance
and insightful comments throughout the evolution of this project, and to Nancy Mendez and
Jocelyn McCurtain for their thoughtful editing of this article.
1
Notwithstanding Christopher Columbus’s original mistake in calling Native Americans “Indians,”
today the term is generally accepted and is widely used in federal Indian law and other contexts. In
this article I use the term “Indian,” as well as “Native nation,” and “tribe” to describe the Native
peoples who inhabited North America before the arrival of Europeans, and who continue to inhabit
it today, making up approximately one percent of the U.S. population. See State & County
QuickFacts: USA, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/00000.html (last
2
An Introduction to Indian Nations in the United States, NAT’L CONGRESS AM. INDIANS 10 (date
unavailable), http://www.ncai.org/about-tribes/Indians_101.pdf.
3
By the end of treaty-making and the later land “allotment” period, Native tribes in the contiguous
48 states would eventually retain just 56 million acres out of the 1.9-billion-acre land mass they had
once controlled. A BRIEF INTRODUCTION TO TRIBAL NATIONS IN THE UNITED STATES, NAT’L CONGRESS
AM. INDIANS 5 (2013).
285
and remain—a hotly contested element of this struggle. Fishing rights, in
particular, have generated decades of litigation over the scope of the reserved
right, including the important question of whether it includes an implied right to an
abundant fishery, necessitating habitat protection measures and restrictions on
non-tribal fishing activity.
This article focuses on the less frequently analyzed treaty hunting rights,
which were typically guaranteed through the same treaty language as fishing
rights. By comparing hunting rights to fishing rights, the article argues that courts
can and should find an implied right of habitat protection in the hunting context, as
in the fishing context. It suggests that the realization of an implied right to habitat
protection has been limited in the hunting context because these rights have been
typically—but incorrectly—perceived as negative rights (i.e., the right to prevent
further habitat destruction rather than the affirmative right to restore or expand
available habitat). The article then considers both consultative processes and
affirmative litigation as ways to realize the as-yet-underdeveloped right to habitat
protection. Stronger recognition of this right will help tribes vindicate their treatyguaranteed rights and restore access to culturally and nutritionally important
hunting opportunities, and will also help protect the viability of wildlife populations
that have shrunk dramatically in the face of settlement and development
pressures.
* * *
Thanks to the Supremacy Clause of the United States Constitution, the
hundreds of treaties signed by tribal leaders in the late nineteenth century
became—and remain—“the supreme Law of the Land.”4 The United States
government is therefore still bound by the promises reflected in these treaties. But,
as many commentators have noted, broken promises have proven all too
frequent. 5 John Collier, the Commissioner of Indian Affairs in the 1930s, said in
4
This includes the 370 treaties that were ratified by Congress as well as some that were not
ratified but were determined by the U.S. Court of Claims to have taken legal effect. NAT’L
CONGRESS AM. INDIANS, supra note 2, at 10.
5
See, e.g., Byron L. Dorgan, Broken Promises, N.Y. TIMES, July 10, 2013,
http://www.nytimes.com/2013/07/11/opinion/broken-promises.html (former Senator and
Congressman noting that “our country has left a trail of broken promises to American Indians”);
Daniel Garza, Under the Reservation Sky, INDIAN COUNTRY TODAY, Oct. 12, 2012,
http://indiancountrytodaymedianetwork.com/2012/10/12/under-reservation-sky (describing tribes
that have “endured years of broken promises and failed policies resulting from their treaty
agreements with the United States government); Tracie White, Broken promises: The state of
health care on Native American reservations, SCOPE (Nov. 4, 2013),
http://scopeblog.stanford.edu/2013/11/04/broken-promises-the-state-of-health-care-on-native-
286
1938: “We took away their best lands; broke treaties, promises; tossed them the
most nearly worthless scraps of a continent that had once been wholly theirs.” 6
Begun in the nineteenth century, the struggle to hold the United States
accountable for those broken promises has continued into the twenty-first. Tribes’
battle for full recognition of their reserved rights to hunting and fishing is one
evolving chapter of that struggle.
While specific language varied by treaty, many tribes reserved usufructuary
rights to their aboriginal territories—that is, they retained the right to continue using
those lands for hunting, fishing, and gathering, though they no longer retained the
right of ownership or occupancy. Many treaties with tribes in the Northwest region
of the United States, often known as the “Stevens Treaties” after Governor Isaac
Stevens who negotiated them, have clear language guaranteeing these rights in
perpetuity to the respective tribes. 7 As this article will explore further, treaty rights
to hunting and fishing are understood as a property right requiring just
compensation if taken from the tribes. 8
Nonetheless, after tribes were forced onto reservations in the second half of
the nineteenth century, their usufructuary rights to the lands they had just ceded
were honored only sporadically, if at all. But in the second half of the twentieth
century, as early as the 1950s and gaining force in the 1960s and 1970s, tribes
began asserting their hunting and fishing rights more strongly, conducting “fish-ins”
in Washington state 9 and demanding recognition of their rights in the courts. 10 This
american-reservations (detailing the failure of the U.S. government to provide adequate health care
services to Native communities).
6
U.S. DEP’T OF THE INTERIOR, ANNUAL REPORT OF THE SECRETARY OF THE INTERIOR FOR THE FISCAL
YEAR ENDING JUNE 30, 1938, at 209 (1938), available at
https://archive.org/stream/annualreportofse8231unit#page/n1/mode/2up (last visited Oct. 27,
2014).
7
See, e.g., Treaty between the United States and the Flathead, Kootenay, and Upper Pend
d’Oreilles Indians [Treaty of Hellgate], July 16, 1855, art. 3, 12 Stat. 975, 976; Treaty between the
United States of America and the Nez Percé Indians [Nez Perce Treaty], June 11, 1855, art. 3, 12
Stat. 957, 958; Treaty between the United States and the Walla-Walla, Cayuses, and Umatilla
tribes and bands of Indians in Washington and Oregon Territories [Umatilla Treaty], June 9, 1855,
art. 1, 12 Stat. 945, 946; Treaty between the United States and the Yakama Nation of Indians
[Yakama Treaty], June 9, 1855, art. 3, 12 Stat. 951, 953.
8
See infra Section II.B.
9
Angelique EagleWoman (Wambdi A. WasteWin), Tribal Hunting and Fishing Lifeways & TribalState Relations in Idaho, 46 IDAHO L. REV. 81, 102 (2009).
10
See, e.g., Puyallup Tribe v. Dep’t of Game of Wash. (Puyallup I), 391 U.S. 392 (1968) (tribe
asserting rights to fish at the “usual and accustomed places” under the Stevens Treaties); State v.
Arthur, 261 P.2d 135 (Idaho 1953) (tribe arguing that tribal members had a right to hunt on U.S.
Forest Service land as “open and unclaimed” lands under the Nez Perce Treaty).
287
approach, and opposition from non-Native fishermen, hunters, and state fish and
game agencies, has led to decades of court battles, particularly around fishing
rights. The Puyallup tribe, for instance, took its fishing rights to the Supreme Court
three times between 1968 and 1977. 11 These court battles ultimately led to
relatively strong affirmation of tribal treaty rights as a continuing right to hunt and
fish off-reservation, which must be recognized and upheld by federal and state
governments. 12
Moreover, the successive waves of litigation also led to a general
consensus, if not a clear Supreme Court holding, that the treaty right to fish in “the
usual and accustomed places” contains some component of protection for
harvestable fish populations and for the habitat needed to sustain those
populations. 13 As Justice Stevens famously held, the tribal treaty right to fish must
consist of something more than a right for tribal members “occasionally to dip their
nets into the territorial waters.” 14
Through this recognition of an implied right to protection of habitat and fish
populations, Native tribes in the Pacific Northwest have been able to wield their
treaty rights to guarantee access to a certain portion of harvestable salmon runs15
and halt dams and other projects that would harm river habitat and endanger
salmon populations. 16 Because of the nature of the proposed projects threatening
salmon habitat, the implied right of habitat protection has generally been applied
as a negative right—the right to enjoin further destruction of habitat—though the
right is not inherently limited in this way. Scholars examining treaty fishing rights
have argued that the implied right to habitat protection is an essential piece of the
treaty right. 17 Under the “bundle of sticks” view of property rights, in which property
11
Puyallup I, 391 U.S. 392 (1968); Dep’t of Game of Wash. v. Puyallup Tribe (Puyallup II), 414
U.S. 44 (1973); Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. (Puyallup III), 433 U.S. 165
(1977).
12
See Puyallup I, 391 U.S. 392 (1968) (affirming tribe’s assertion of rights to fish at the “usual and
accustomed” sites along the Columbia River).
13
Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n (Fishing Vessel),
443 U.S. 658, modified sub nom. Washington v. United States, 444 U.S. 816 (1979) (recognizing
that the tribal fishing right included something more than just the right to attempt to harvest fish).
14
Fishing Vessel, 443 U.S. at 679.
15
See id. (holding that the Stevens Treaties entitled the relevant tribes to an opportunity to take up
to fifty percent of the annual salmon harvest).
16
E.g., Confederated Tribes of the Umatilla Indian Reservation v. Alexander (the “Catherine Creek
Dam” case), 440 F. Supp. 553 (D. Or. 1977); Confederated Tribes of the Umatilla Indian
Reservation v. Callaway (the “Peaking Power” case), Civ. No. 72-211 (D. Or. Aug. 17, 1973).
17
See Michael C. Blumm & 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) (arguing that
288
rights are understood as a combined bundle of component rights, habitat
protection and the guaranteed existence of a fishable population may be seen as
“sticks” in the sub-bundle of usufructuary rights.
Hunting rights, however, have evolved quite differently. With the exception
of scattered cases litigated on an individual basis, there has been much less
litigation of treaty hunting rights as compared to fishing rights. 18 As such, there has
been somewhat less active assertion of the implied right of habitat protection for
hunted species. Yet treaty rights to hunt and to fish are understood to be of the
same nature. 19 That the assertion and recognition of hunting rights has proceeded
differently from the recognition of fishing rights is, therefore, somewhat of a
paradox.
In areas where big-game species like deer and elk are still available in
relatively abundant populations, it makes intuitive sense that tribal hunting rights
would be less contentious than rights to harvest endangered salmon. Where the
resource is not particularly scarce, there is less reason to fight over it. But surely
there are projects that would harm big-game habitat and threaten ungulate
populations—such as large-scale logging on National Forest lands, to take one
simple example—and yet these projects do not face the same litigation in the
name of tribal treaty rights that new dam projects face. Even more strikingly, there
are some big-game populations that are indeed scarce—such as bighorn sheep
and wild bison—and these species, too, have largely escaped the type of litigation
that surrounds wild salmon.
the property interest in treaty fishing rights includes a right to access historic tribal fishing sites and
a right to have sufficient fish to provide the tribes with a moderate living); Allen H. Sanders,
Damaging Indian Treaty Fisheries: A Violation of Tribal Property Rights?, 17 PUB. LAND &
RESOURCES L. REV. 153, 167 (1996) (“The Stevens treaties may have created an implied right to
protection of fish habitat conditions essential to the preservation of the tribes’ fisheries.”); 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, 359 (2001) (arguing that
treaties created a “native conservation servitude that encumbers ceded lands,” imposing habitat
protection requirements).
18
Cf. State v. Buchanan, 978 P.2d 1070 (Wash. 1999) (holding that tribal members had a right to
hunt on “open and unclaimed” lands, and that state-owned wildlife area may be considered part of
tribe’s aboriginal hunting grounds); State v. Cutler, 708 P.2d 853 (Idaho 1985) (holding that treaty
hunting rights do not extend to state-owned land); State v. Stasso, 563 P.2d 562 (Mont. 1977)
(holding that tribal members had a right to hunt free from state regulation on open and unclaimed
federal lands).
19
See Bradley I. Nye, Comment, Where Do the Buffalo Roam? Determining the Scope of American
Indian Off-Reservation Hunting Rights in the Pacific Northwest, 67 W ASH. L. REV. 175, 187 (1992)
(explaining that the reserved rights doctrine supports the idea that tribes were reserving their equal
right to fish and hunt on ceded lands).
289
Importantly, this lack of litigation helps avoid the erosion of goodwill that has
plagued fisheries management. But it also means that there has been less of an
opportunity for tribes to assert—and courts to consider—the implied right of habitat
and population protection for species hunted under treaty rights. Bison hunting in
the Greater Yellowstone Area (GYA) presents an interesting illustration of the
paradox in which hunting rights are trapped. Wild bison have lost more than
ninety-nine percent of the habitat they once roamed, with the only continuously
wild herd now occupying Yellowstone National Park and small patches of habitat
outside the Park. This habitat is not threatened by any new development
proposals, which would lend themselves to the kind of negative-right application of
treaty rights that have succeeded in stopping habitat destruction in the fishing
context. What Yellowstone bison need in order to thrive is affirmative expansion of
habitat. This means that tribes need the affirmative right to compel bison habitat
and population gains, which would bring bison harvests closer to the historical
numbers contemplated at the time of treaty negotiations. If the right to habitat
protection were conceived exclusively as a negative right, it would be useless for a
species like the bison that has already lost almost all its habitat, paradoxically
making the right least useful in cases where it is most necessary. But it need not
be so.
This article uses the case study of Yellowstone bison to argue that the
implied right of habitat protection applies to treaty hunting rights as well as fishing
rights, and that it must be interpreted to include an affirmative right as well as a
negative right. The article begins, in Part I, by providing an overview of Native
treaty rights in general, followed by a more detailed discussion of the Native
property interest in hunting and fishing rights. Part II then traces the evolution of
modern treaty fishing rights and explores how these rights have been leveraged to
enjoin activities that would harm fish habitat. Part III details the somewhat distinct
evolution of treaty hunting rights, using the example of Yellowstone bison to argue
that hunting rights similarly include an implied right to habitat protection, and that
they must also be interpreted to include an affirmative right to protect big-game
habitat. The article proposes that this affirmative right could be applied through
consultative processes, but that if these processes fail, affirmative litigation may be
a viable strategy for tribes seeking to vindicate their treaty hunting rights.
290
I.
PROMISES AND PROPERTY INTERESTS: AN OVERVIEW OF NATIVE TREATY
RIGHTS
A. Uncle Sam’s Promises
In the 370 treaties that the United States executed with hundreds of Native
Tribes between 1778 and 1871, the federal government guaranteed specific sets
of rights, benefits and conditions. 20 The language differed across treaties, but the
United States generally agreed to protect the treaty-making tribe and provide basic
services, like health care and education, in exchange for the tribes’ cession of
millions of acres of land. 21 Except for tribes in Oklahoma and Alaska, 22 these
treaties also generally reserved a relatively small homeland “reservation” for each
tribe—or confederations of tribes grouped together somewhat haphazardly by the
United States government 23—and sometimes also guaranteed tribes the continued
right to hunt and fish in their aboriginal territories.
Negotiated under circumstances that can at best be called imbalanced (and
have more often been called coercive or even fraudulent 24), treaties with tribal
nations have been subject to centuries of dispute regarding their proper
interpretation. Through successive rounds of litigation and shifting government
policies, canons of Indian treaty construction have developed. Cohen’s Handbook
of Federal Indian Law, a widely accepted and respected source, summarizes the
canons of construction:
The basic Indian law canons of construction require that treaties,
agreements, statutes, and executive orders be liberally construed in
20
NCAI, supra note 2, at 10.
Frequently Asked Questions, BUREAU INDIAN AFF., U.S. DEP’T INTERIOR, http://www.bia.gov/FAQs
22
Tribes in Oklahoma and Alaska (with one exception) do not have reservations. Because this
article focuses on tribal reserved treaty rights to hunt and fish, it focuses on tribes that ceded land
by treaty while reserving homeland reservations and off-reservation usufructuary rights.
23
These include the Confederated Salish and Kootenai Tribes of the Flathead Reservation of
Montana, the Confederated Tribes of the Umatilla Indian Reservation, the Mandan, Hidatsa, and
Arikari Nation (Three Affiliated Tribes of Fort Berthold Reservation), the Shoshone-Bannock Tribes
(Fort Hall Reservation), to name just a few. In some cases, such as the Northern Arapaho and
Eastern Shoshone Tribes of the Wind River Indian Reservation, historically antagonistic tribes were
forced to share a reservation.
24
See, e.g., COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 32, § 1.03[1] (2005); EagleWoman
(Wambdi A. WasteWin), supra note 9, at 87, 91. In many ways, the wildly lopsided bargaining
power and standardized treaty terms resemble contracts of adhesion more than treaties negotiated
by two equal sovereigns.
21
291
favor of the Indians; and all ambiguities are to be resolved in favor of
the Indians. In addition, treaties and agreements are to be construed
as the Indians would have understood them, and tribal property
rights and sovereignty are preserved unless Congress’s intent to the
contrary is clear and unambiguous. 25
These canons of construction essentially represent an ex-post effort to
reduce the effects of lopsided bargaining power and possible misunderstandings
at the time of treaty negotiation. Another important interpretive tool working in
favor of Indian nations is the “reserved rights doctrine” that first emerged in the
1905 case United States v. Winans. 26 In Winans, the Supreme Court held that the
treaty between the United States and the Yakama Indians “was not a grant of
rights to the Indians, but a grant of rights from them,—a reservation of those not
granted.” 27 The court went on to add that although the treaty “negotiations were
with the tribe[,] . . . [t]hey reserved rights . . . to every individual Indian, as though
named therein.” 28 This landmark decision has been followed and reaffirmed in
more modern times, 29 and it forms the basis for the understanding that any rights
not explicitly ceded by treaty are still held by the signatory Native nation or nations,
and may be exercised by individual members of those nations.
Apart from land cessions and reserved rights, the federal government’s
guarantees that it would protect the tribes and provide essential services have
formed the basis of the enduring (though not always fulfilled) “trust relationship”
between the United States government and Native nations. 30 Since Chief Justice
Marshall’s initial characterization of Indian nations as “domestic dependent
nations,” 31 the Supreme Court has concretized the idea of the trust responsibility
to Native tribes as an exacting fiduciary relationship:
[T]his Court has recognized the distinctive obligation of trust
incumbent upon the Government in its dealings with these
dependent and sometimes exploited people. In carrying out its treaty
obligations with the Indian tribes the Government is something more
25
COHEN’S HANDBOOK, supra note 24, at 119-20, § 2.02[1] (internal footnotes omitted).
United States v. Winans, 198 U.S. 371 (1905).
27
Winans, 198 U.S. at 381. Contrary to the Court’s spelling, “Yakama” is the spelling used by the
modern Yakama Nation and was also used in the Yakama Treaty of 1855.
28
Id.
29
United States v. Adair, 723 F.2d 1394 (9th Cir. 1983).
30
BUREAU INDIAN AFF., supra note 21.
31
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).
26
292
than a mere contracting party. Under a humane and self imposed
policy which has found expression in many acts of Congress and
numerous decisions of this Court, it has charged itself with moral
obligations of the highest responsibility and trust. Its conduct, as
disclosed in the acts of those who represent it in dealings with the
Indians, should therefore be judged by the most exacting fiduciary
standards. 32
This means that the United States government has an affirmative duty to
protect Native nations, and there is “no doubt . . . that the government’s trust
responsibility extends to the protection of treaty rights.” 33 In addition to honoring
tribes’ treaty rights, therefore, the United States government also has an
affirmative duty to protect these rights and uphold them against attack or
diminishment by state governments.
Treaties signed between the United States and Native tribes were
understood as treaties between sovereign nations, and they remain so today. As
the canons of construction indicate, treaties ratified by the United States retain
their force as the “supreme Law of the Land” 34 (unless they have been explicitly
abrogated by Congress 35) and federally recognized Indian nations retain their
status as sovereign governments. Most Indian nations will be quick to point this
out. 36 Sherman Alexie’s characters in Smoke Signals wittily highlighted the twosovereign issue from the perspective of tribal members leaving their reservation:
Velma: You guys got your passports?
Thomas Builds-the-Fire: Passports?
Velma: Yeah, you’re leavin’ the rez and goin’ into a whole different
country, cousin.
Thomas Builds-the-Fire: But... but, it’s the United States.
Lucy: Damn right it is! That’s as foreign as it gets. Hope you two got
your vaccinations! 37
32
Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).
Klamath Tribes v. U.S. Forest Service, 1996 WL 924509, at *20, Civil No. 96-381-HA (D. Or.
1996).
34
U.S. CONST. art. VI.
35
Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
36
See IN THE NAME OF THE SALISH AND KOOTENAI NATION 2 (Robert Bigart & Clarence Woodcock
eds., 1996) (“As most Indian people on the reservation are careful to point out, the treaty
represents an agreement entered into by two sovereign parties.”).
37
SMOKE SIGNALS (Miramax Films 1998).
33
293
Yet despite the enduring importance of tribal sovereignty for Indian peoples, others
do not always fully understand the nature of tribal sovereignty, let alone tribal
treaty rights—perhaps sowing the seeds of conflict over tribal reserved rights to
hunt and fish.
B. The Native Property Interest in Usufructuary Rights
Properly understood, treaty provisions guaranteeing tribes the right to hunt,
fish, and gather off-reservation in perpetuity reserved to those tribes a property
interest in their continued right to carry out these activities. This right has been
most aptly described as a profit à prendre, the property law right to enter another
person or entity’s property and remove or extract a resource. 38 Examining the
specific language from treaties reserving usufructuary rights is instructive in
understanding this analysis.
Although each treaty was unique, the general terms for commonly
guaranteed rights tend to take similar forms and use similar language, and thus
the language in different treaties can sometimes be analyzed under the same
rubric. In particular, many of the treaties negotiated by Governor Isaac I. Stevens
with Native tribes in the Pacific Northwest contain fairly similar language
guaranteeing off-reservation hunting rights, and courts have tended to analyze
these “Stevens Treaties” similarly. 39 This article therefore focuses on the Stevens
Treaties, and the tribes that signed them, in analyzing the nature of the property
interest in usufructuary rights.
Isaac I. Stevens was Governor of the Washington Territory—which then
included part of Idaho and Western Montana—from 1853 to 1857, during which
time he negotiated numerous treaties with tribes in the region. The treaty that
Stevens signed with the Nez Perce Tribe of Idaho in June, 1855, contains fairly
38
See, e.g., Blumm & Swift, supra note 17, at 445-46; Michael R. Newhouse, Note, Recognizing
and Preserving Native American Treaty Usufructs in the Supreme Court: The Mille Lacs Case, 21
PUB. LAND & RESOURCES L. REV. 169, 193 (2000); Brian J. Perron, Note, 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 W M. & MARY
ENVTL. L. & POL’Y REV. 783, 814 (2001).
39
E.g., Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S.
658, 674 n.21, modified sub nom. Washington v. United States, 444 U.S. 816 (1979) (analyzing
together the treaties of multiple tribes in Washington state, and noting that “[i]dentical, or almost
identical, language is included in each of the . . . treaties”).
294
typical Stevens Treaty language guaranteeing the tribes the right to exercise
usufructuary rights on the lands they were ceding:
The exclusive right of taking fish in all the streams where running
through or bordering said reservation is further secured to said
Indians; as also the right of taking fish at all usual and accustomed
places in common with citizens of the Territory; and of erecting
temporary buildings for curing, together with the privilege of hunting,
gathering roots and berries, and pasturing their horses and cattle
upon open and unclaimed land. 40
The Yakama Treaty negotiated and signed between Governor Isaac Stevens and
the Yakama Nation, also in June, 1855, contains identical language, 41 and the
Treaty of Hellgate negotiated and signed between Stevens and the Flathead,
Kootenay, and Upper Pend d’Oreilles tribes (now the Confederated Salish and
Kootenai Tribes) just one month later, in July, 1855, also contains nearly identical
language guaranteeing the same hunting and fishing rights. 42 The treaty that
Governor Stevens negotiated and signed with the Umatilla, Walla Walla, & Cayuse
tribes (now the Confederated Tribes of the Umatilla Reservation) in June, 1855,
shows how other Stevens Treaties provided an essentially identical guarantee of
rights despite slightly differing language:
Provided, also, That the exclusive right of taking fish in the streams
running through and bordering said reservation is hereby secured to
said Indians, and at all other usual and accustomed stations in
common with citizens of the United States, and of erecting suitable
buildings for curing the same; the privilege of hunting, gathering
roots and berries and pasturing their stock on unclaimed lands in
common with citizens, is also secured to them. 43
Moreover, evidence regarding the negotiation of these treaties shows that
the retention of usufrutuary rights was a key element of the tribes’ willingness to
agree to the treaties. As scholars have noted, tribes like the Nez Perce insisted on
maintaining access to their traditional hunting and fishing grounds, and Governor
40
Nez Perce Treaty, supra note 7, art. 3.
Yakama Treaty, supra note 7, art. 3.
42
Treaty of Hellgate, supra note 7, art. 3.
43
Umatilla Treaty, supra note 7, art. 1.
41
295
Stevens repeatedly assured them that they would retain this right. 44 As recorded in
the official proceedings of the Hell Gate Treaty Council with leaders of the Salish,
Kootenai, and Upper Pend d’Oreilles, Governor Stevens assured the tribes four
separate times that the treaty guaranteed them the right to hunt, fish, gather, and
pasture animals on any ceded lands not occupied by white settlers. 45 Governor
Stevens also tried to convince those tribes to accept a particular location for their
reservation by telling them that it was “more convenient for buffalo,” indicating that
access to off-reservation hunting grounds was a key piece of the land cession
deal. 46
By some accounts, the tribes’ primary motivation for entering into
negotiations with Stevens was securing access to hunting grounds: Robert Bigart,
director of the Salish Kootenai College Press, has said that the Salish, Kootenai,
and Upper Pend d’Oreilles “thought they would talk about arranging peaceful
access to the buffalo herds” and obtaining protection from the United States
Government against the Blackfeet Tribe. “But Stevens was there to get the Indians
onto a reservation and open up a transportation route to the West.” 47
Finally, the price paid to tribes for cession of their lands was nearly always
wildly below market value. The Confederated Salish and Kootenai Tribes, for
instance, were compensated for just eleven percent of the market value of their
lands, receiving $593,377.82 for the lands that the Indian Claims Commission later
determined had been worth $5,300,000 in 1859. 48 This glaring price discrepancy
indicates, of course, that the United States may not have been negotiating in good
faith. But the fact that the Tribes were willing to accept such a low price for their
land could potentially also indicate—in addition to the fact that they were not in a
good position to assess the market value of their lands—that they believed they
were retaining significant rights in the lands they were ceding. The retention of
44
Charles F. Wilkinson, Indian Tribal Rights and the National Forests: The Case of the Aboriginal
Lands of the Nez Perce Tribe, 34 IDAHO L. REV. 435, 440-41 (1998).
45
OFFICIAL PROCEEDINGS AT THE COUNCIL HELD BY GOVERNOR ISAAC I. STEVENS, SUPT. INDIAN
AFFAIRS, W.T., WITH THE FLATHEAD, PEND OREILLES AND KOOTENAY TRIBES OF INDIANS AT HELL GATE
IN THE BITTER ROOT VALLEY, W ASHINGTON TERRITORY, COMMENCING ON THE SEVENT DAY OF JULY,
1855, reprinted in IN THE NAME OF THE SALISH AND KOOTENAI NATION 21, 24, 25, 47, 50 (Robert
Bigart & Clarence Woodcock eds., 1996).
46
Id. at 42.
47
Daryl Gadbow, The Treaty Lives On: Council Grove State Park commemorates “the place of tall
trees with no limbs,” where Indian tribes reluctantly gave up most of their homeland 150 years ago,
MONTANA OUTDOORS, Nov.-Dec. 2005, available at
http://fwp.mt.gov/mtoutdoors/HTML/articles/2005/CouncilGrove.htm (last visited Oct. 27, 2014).
48
IN THE NAME OF THE SALISH AND KOOTENAI NATION, supra note 36, at 149-50.
296
usufructuary hunting and fishing rights, therefore, was more than just a standard
provision inserted into treaties of adhesion. Rather, it was a key piece of the deal
that may have helped convinced tribes to cede their ownership and occupancy
rights to the lands they had inhabited for millennia.
As noted earlier, the usufructuary rights retained by tribes represent a profit
à prendre in property law terms, often known simply as a profit. The Third
Restatement of Property defines a profit à prendre as “an easement that confers
the right to enter and remove timber, minerals, oil, gas, game, or other substances
from land in the possession of another.” 49 Like easements in general, a profit à
prendre is considered a concrete property interest: “[t]he benefit of an easement or
profit is considered a nonpossessory interest in land because it generally
authorizes limited uses of the burdened property for a particular purpose.” 50 Native
tribes holding usufructuary rights therefore have the right to enter ceded lands
within their aboriginal territories, engage in hunting and fishing activities, and take
the spoils of their harvest. As the Supreme Court recognized as early as Winans,
the tribal property interest in hunting and fishing rights creates a servitude on the
ceded lands. 51
Indian law scholars, advocates, and courts have all recognized this property
interest in usufructuary hunting and fishing rights. Noted Indian law scholars
Michael Blumm and Brett Swift, for instance, have characterized Northwest tribes’
fishing rights as a piscary profit, one of the oldest forms of profits à prendre. 52
Another scholar has noted that recent case law shows “[N]ative treaty usufructs
are by their nature property rights—profits à prendre—which are not inherently
inconsistent with subsequent title transfers.”53 One scholar points out that some
courts have even likened the usufructuary right to the rights of a co-tenant in
land. 54
Other scholars and courts have focused on the fact that a taking of
usufructuary rights requires compensation, indicating that it is a cognizable
49
RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 1.2 (2000).
Id. at cmt. d.
51
Winans, 198 U.S. 371, 381 (1905).
52
Blumm & Swift, supra note 38, at 445.
53
Newhouse, supra note 38, at 190.
54
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, 6 n.18 (2000) (citing
Puget Sound Gillnetters Ass’n v. W. Dist. Ct. of Wash., 573 F.2d 1123, 1126-29 (9th Cir. 1978);
United States v. Wash., 520 F.2d 676, 685 (9th Cir. 1975)).
50
297
property interest. Menominee Tribe of Indians v. United States, 55 an early seminal
case on tribal treaty rights, held that curtailing or abrogating hunting and fishing
rights granted under the Wolf River Treaty of 1854 would mean “destroying
property rights” and would constitute a taking of the Tribe’s property, requiring just
compensation. 56 Scholars have similarly explained that “a treaty fishing right is a
property interest for which money damages may be sought.” 57
The property nature of hunting and fishing rights was most recently affirmed
by the Supreme Court in Minnesota v. Mille Lacs Band of Chippewa Indians. 58
That case held that an Indian tribe’s hunting and fishing rights on off-reservation
lands were durable and were not extinguished by a territory’s transition to
statehood. 59 Even the dissent acknowledged the property nature of usufructuary
rights, explaining that “the only real property interest in the land remaining to the
Indians was the privilege to come onto it and hunt during the pleasure of the
President.” 60 Though it does not use the term “profit à prendre, the Mille Lacs
Court nonetheless recognizes a concrete and durable property interest in treaty
rights to hunt and fish, which survives transfer in fee simple of the burdened lands,
subject only to limitations within the treaty language and a narrow exception for
state regulation in the case of conservation necessity. 61
Moreover, because the Mille Lacs case dealt with a treaty guaranteeing
“hunting, fishing, and gathering rights,” and because the Court analyzed those
rights together, it reaffirmed the equal nature of these different types of
usufructuary rights. 62 Even in treaties that nominally distinguish between the “right
of taking fish” and the “privilege of hunting,” 63 the technical distinction does not
factor into most courts’ analysis of these rights, and the reserved rights doctrine
would indicate that the tribes reserved equal usufructuary rights to hunt and fish on
the lands they had previously occupied. 64 In the proceedings of the treaty council
leading to the signing of the Nez Perce Treaty, Governor Stevens himself
55
Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968).
Id. at 413.
57
58
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).
59
Id. at 204.
60
Id. at 213 (Rehnquist, J., dissenting).
61
Id. at 204-05 (majority opinion).
62
Id. at 188-89.
63
E.g., Hellgate Treaty, supra note 7, art. 3; Nez Perce Treaty, supra note 7, art. 3; Umatilla Treaty,
supra note 7, art. 1; Yakama Treaty, supra note 7, art. 3.
64
See United States v. Winans, 198 U.S. 371 (1905); see also supra note 26 and accompanying
text.
56
298
characterized the “privilege of hunting” guaranteed by the treaty as a “right” that
the Tribe would retain. 65 Moreover, as at least one commentator has noted, it is
extremely unlikely that the Indian tribes understood the legal distinction between a
right and a privilege. 66 Because the canons of Indian treaty construction require
treaties to be interpreted according to the way the tribes would have understood
them at the time, 67 this factor, too, points toward interpreting the right to fish and
the right to hunt as analogous rights.
At this point in the evolution of the doctrine, therefore, it is well established
that treaty rights to hunt and fish off-reservation constitute a concrete property
interest vested in the signatory tribe or tribes. But the exact contours of that
property interest—in particular whether it contains an implied right of habitat and
population protection—have proven much trickier to ascertain. Courts and
commentators have developed a rich and nuanced picture of the scope of fishing
rights without developing these theories as deeply in the hunting context, despite
the fact that these rights are analogous. The following Parts attempt to bridge this
gap.
II.
THE EXERCISE OF TREAT FISHING RIGHTS
A. Modern Treaty Fishing
In the century since the landmark Winans case established the reserved
rights doctrine, courts and commentators have struggled to define exactly what it
means for a tribe to reserve a right to hunt and fish “in common with the citizens of
the Territory,” as standard Stevens Treaty language guaranteed. As the case law
has evolved, courts have generally accepted the idea that a fishing right includes
an implied right of actual harvest, 68 but the extent of the implied requirement of
habitat and population protection has not been fully settled.
The Yakama Treaty at issue in Winans was a Stevens Treaty and contains
the standard language guaranteeing the “right of taking fish” and the “privilege of
hunting” “in common with the citizens of the Territory,” 69 so it has formed a strong
65
Nye, supra note 19, at 187.
Id. at 186.
67
COHEN’S HANDBOOK, supra note 24, at 119-20, § 2.02[1].
68
Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658,
679, modified sub nom. Washington v. United States, 444 U.S. 816 (1979).
69
Yakama Treaty, June 9, 1855, art. 3, 12 Stat. 951, 953.
66
299
foundation for subsequent analysis of claims to fishing and hunting rights by
Northwest tribes. Tribes started asserting and exercising these rights more actively
in the 1950s and 1960s, with tribal citizens organizing “fish-ins” at off-reservation
fishing sites, 70 eventually generating protests, counter-protests, and litigation.
The first major post-Winans cases on usufructuary treaty rights to reach the
Supreme Court were a set of three cases involving the Puyallup Tribe of
Washington State. 71 This set of cases, which came before the Supreme Court
three times between 1968 and 1977, dealt with the question of whether the State
of Washington could regulate tribal members’ treaty fishing activities. The Court
ultimately held that tribal fishing activities undertaken under treaty rights were
mostly free from state regulation, with an exception permitting state regulation in
the case of necessity “to conserve an important natural resource.”72 It also held
that the right to take fish “in common with the citizens of the Territory” means that
the Puyallup Tribe did not have an exclusive right to take fish, but, at the same
time, “the State may not deny the Indians their right to fish ‘at all usual and
accustomed’ places.” 73 The right to take fish, in short, must somehow be allocated
between the Tribe and the State. In this case, the Court upheld the Washington
State court’s allocation of 45 percent of the fishery to tribal treaty fishermen, but
did not prescribe a general formula that would be applicable to other cases. 74 The
Court could not dodge that question forever, though.
The question of how to divide fish harvests between tribal members and
non-tribal members came squarely before the Supreme Court in Washington v.
Washington State Commercial Passenger Fishing Vessel Association. 75 In that
case, the Court rejected the State of Washington’s argument that treaties
reserving usufructuary rights guaranteed merely access to traditional fishing
grounds. 76 Rather, the Court held:
70
EagleWoman (Wambdi A. WasteWin), supra note 9, at 102.
Puyallup Tribe v. Dep’t of Game of Wash. (Puyallup I), 391 U.S. 392 (1968); Dep’t of Game of
Wash. v. Puyallup Tribe (Puyallup II), 414 U.S. 44 (1973); Puyallup Tribe, Inc. v. Dep’t of Game of
State of Wash. (Puyallup III), 433 U.S. 165 (1977).
72
Puyallup III, 433 U.S. at 175; see also Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974) (holding
that tribes have authority to regulate off-reservation hunting and fishing activities of their members
under tribal law).
73
Id.
74
Id. at 177.
75
443 U.S. 658, modified sub nom. Washington v. United States, 444 U.S. 816 (1979).
76
Id. at 675.
71
300
It is equally plausible to conclude . . . that the specific provision for
access was intended to secure a greater right—a right to harvest a
share of the runs of anadromous fish that at the time the treaties
were signed were so plentiful that no one could question the Indians’
capacity to take whatever quantity they needed. Indeed, a fair
appraisal of the purpose of the treaty negotiations, the language of
the treaties, and this Court’s prior construction of the treaties,
mandates that conclusion. 77
As Justice Stevens went on to explain, under the reserved rights doctrine and the
canons of Indian treaty construction it would make no sense for the Indians to
believe they were reserving “merely the chance, shared with millions of other
citizens, occasionally to dip their nets into the territorial waters.” 78
After deciding the treaty right guaranteed a share of the actual fish harvest,
the Court then decided that an equitable measure of the right to take fish “in
common with the citizens of the Territory” would divide the harvestable fishery into
“approximately equal treaty and nontreaty shares,” with the possibility of reducing
the treaty share “if tribal needs may be satisfied by a lesser amount.” 79 This
important decision, therefore, not only affirmed that a treaty right to hunt or fish
means there must actually be something to harvest, but also established the
landmark fifty-fifty harvest allocation that would set the baseline for future
decisions.
Most of the gains in treaty fishing rights have been made through litigation
that has often been complicated and protracted. Though sometimes perpetuating
animosity and antagonism, the legacy of this litigation has been the establishment
and growth of relatively strong case law supporting off-reservation usufructuary
rights. Despite the fact that most of the litigation has surrounded fishing activities
specifically, this case law generally encompasses both hunting and fishing rights, 80
paving the way for strong and equal recognition of these rights. Moreover, once it
was established in Puyallup III and Fishing Vessel that treaty rights mean a right to
77
Id.
Id. at 679.
79
Id. at 685.
80
See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188-89 (1999)
(analyzing the Mille Lacs Band’s “hunting, fishing, and gathering rights” as a single set of rights).
78
301
actual harvest, 81 this development strengthened the case for establishing an
implied right of habitat and population protection.
B. Leveraging fishing rights for habitat and fish population
protection
Analytically and logically, there is a strong argument for an implied right to
habitat protection incorporated in the usufructuary treaty right. Tribes have been
relatively successful at convincing courts to recognize this right in many situations,
leveraging their treaty rights to block dams and other projects that would damage
fish habitat.
1. Evolution the habitat right
Tribes first asserted a right to habitat protection for fish populations in
United States v. Washington (Phase I), 82 which initially found a right to habitat
protection. In that case, the district court held that the intent behind Indian treaty
fishing rights was clear: “there can be no doubt that one of the paramount
purposes of the treaties in question was to reserve to the tribes the right to
continue fishing as an economic and cultural way of life.” 83 But the court also went
further to recognize that the sustainability of those fisheries is implied in the right:
“It is equally beyond doubt that the existence of an environmentally-acceptable
habitat is essential to the survival of the fish, without which the expressly-reserved
right to take fish would be meaningless and valueless.”84 On appeal, the Ninth
Circuit affirmed this decision, 85 but on rehearing it found that the habitat question
was not ripe, 86 effectively leaving the question to lower courts to decide on a caseby-case basis.
Since the decision in Phase I of United States v. Washington, the idea of an
implied right to habitat protection has been taken up by many Indian law scholars,
who likewise argue that a habitat protection component is necessary for the
usufructuary right to have any meaning. The basic idea is that, in order to have
fish available for treaty-guaranteed harvest, there must be habitat to sustain those
81
Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash., 433 U.S. 165, 177 (1977); Fishing
Vessel, 443 U.S. at 675.
82
United States v. State of Wash., 506 F. Supp. 187 (W.D. Wash. 1980), aff’d in part, rev’d in part,
694 F.2d 1374 (9th Cir. 1982), on reh’g, 759 F.2d 1353 (9th Cir. 1985) (en banc).
83
Id. at 205.
84
Id.
85
694 F.2d 1374 (9th Cir. 1982).
86
United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc).
302
fish, as well as some sort of ongoing protection for the habitat and the fish
population itself. If the courts’ allocations of harvest or “yield” are to have any
meaning, then the necessary conditions to sustain that yield must also exist—so
the right to habitat protection flows from the Supreme Court’s holding that tribes
have a right to an actual harvest. Mary Christina Wood uses a “natural capital”
model to explain this idea, characterizing the property right in treaty harvests as a
“natural capital asset.”87 To sustain that asset, she argues, the right must be
conceptualized as “including those components of the resource, such as habitat
and robust populations, which combined bring about sustained harvestable yields
over time.” 88 “Wildlife capital,” she says, “is generally comprised of two
components: replenishing populations and supporting habitat,” both of which are
essential for the asset—the fishing right—to have meaning. 89
Along the same lines, other scholars have argued that the fishing profit à
prendre created by treaty should be recognized as “a property right which includes
two components: a right to access historic tribal fishing sites and a right to have
sufficient fish to provide the tribes with a moderate living.” 90 Another points out that
“treaty fishing tribes have a legally protected expectancy that they will be able to
continue to draw an advantage from the fish resource.”91
As applied to treaty fishing rights, an implied right to habitat protection
generally means the right to stop or alter dams and other proposed projects that
would harm stream habitat for fish (mainly salmon, in the case of the Pacific
Northwest tribes). By the time tribes started actively exercising and litigating their
treaty rights—and courts started recognizing them—anadromous fish habitat had
already been significantly degraded by the construction of numerous dams on the
rivers where these fish migrate and spawn. From Columbia River salmon runs that
had historically numbered ten to sixteen million salmon per year, 92 fewer than
three-quarters of a million fish made it past the Bonneville Dam and up the
Columbia river in 1938, the year the dam was completed. 93
87
Wood, supra note 54, at 5.
Id. at 5-6.
89
Id. at 6.
90
91
92
Columbia River Salmon, COLUM. RIVER INTER-TRIBAL FISH COMMISSION,
http://www.critfc.org/salmon-culture/columbia-river-salmon (last visited Nov. 17, 2014).
93
Adult Salmon Annual Totals, FISH PASSAGE CENTER,
http://www.fpc.org/adultsalmon/adultqueries/Adult_Annual_Totals_Query_form.html (last visited
Nov. 17, 2014).
88
303
This number had risen to roughly one million to two million per year—still
just a fraction of historical fish runs—in the 1950s, 1960s, and 1970s, when
Northwest tribes were beginning to litigate their treaty fishing rights. 94 Having seen
how quickly the salmon population could decline, tribes were understandably
anxious to prevent numbers from plummeting back down to the levels of the 1930s
and 1940s. Apart from using litigation simply to establish judicial recognition of
their treaty fishing rights, therefore, tribes also began using litigation to protect
those rights by opposing dams and other projects that would further harm salmon
populations.
These lawsuits leveraging treaty fishing rights to protect salmon habitat and
fish populations have achieved significant successes. While the Supreme Court
has not explicitly ruled that a right to habitat protection exists within the broader
treaty fishing right, lower courts have often impliedly recognized a right to habitat
protection on a case-by-case basis. As Blumm and Swift note, the lower courts
have “almost invariably provided the tribes with relief: requiring changed dam
operations, halting dam construction and other damaging aquatic developments,
and awarding the tribes ‘prior and paramount’ water rights to protect the fish that
are the subject of the piscary profit.” 95
In several cases in the 1970s, for instance, the Confederated Tribes of the
Umatilla Reservation (a Stevens Treaty tribe) successfully litigated dam operations
that would threaten their treaty fishing rights. In the first case, Confederated Tribes
of the Umatilla Indian Reservation v. Callaway (the “Peaking Power” case), 96 the
district court judge approved a settlement that did not permit federal agencies to
move forward with peaking power operations that would harm salmon runs until
they had taken measures to protect alternate fishing sites. 97 Though the case did
not enjoin the peaking power operations entirely, it was significant in recognizing
that treaty fishing rights could be used to protect habitat for salmon. 98 Several
years later, the Umatilla succeeded in using their rights to halt construction of a
94
Id.
96
Civ. No. 72-211 (D. Or. Aug. 17, 1973).
97
Id.; see also Blumm & Swift, supra note 17, at 463-64.
98
95
304
dam altogether, in Confederated Tribes of the Umatilla Indian Reservation v.
Alexander (the “Catherine Creek Dam” case). 99
Other cases have successfully leveraged treaty fishing rights to maintain instream water flows necessary for adequate salmon habitat. In Kittitas Reclamation
District v. Sunnyside Valley Irrigation District, 100 for instance, the Yakama Tribe
litigated and successfully obtained a court order mandating the continued release
of sufficient water to sustain salmon redds (spawning nests) and other measures
that would ensure the viability of the redds. 101 In Joint Board of Control of the
Flathead, Mission and Jocko Irrigation Districts v. United States, 102 similarly, the
Ninth Circuit held that the Confederated Salish and Kootenai Tribes possessed
“prior and paramount fishing water rights” with respect to the water rights held by
the irrigation districts in the area. 103 The Bureau of Indian Affairs (BIA) therefore
had authority to establish “stream flow and pool levels necessary to protect tribal
fisheries,” and “[o]nly after fishery waters are protected does the BIA, acting as
Officer–in–Charge of the irrigation project, have a duty to distribute fairly and
equitably the remaining waters among irrigators of equal priority.” 104
Still other cases have used tribal treaty fishing rights, and the right of
access to fishing sites, to protect against streamside development. No Oilport! v.
Carter, 105 for example, held that the Secretary of the Interior, in considering a
permit for a proposed oil pipeline, was required to assess “whether the habitat of
the Tribes’ treaty fishery has been adequately protected.”106 Likewise,
Muckleshoot Indian Tribe v. Hall 107 held that a preliminary injunction enjoining the
construction of a marina was warranted where it potentially impaired access to the
“usual and accustomed fishing places” where the Muckleshoot and Suquamish
tribes were entitled to fish under the terms of their treaties. 108
99
Confederated Tribes of the Umatilla Indian Reservation v. Alexander, 440 F. Supp. 553 (D. Or.
1977).
100
Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 763 F.2d 1032 (9th Cir.
1985).
101
Id. at 1035. The other measures identified for preserving salmon redds included transplant,
construction of berms, and the opening of certain channels. Id.
102
Joint Board of Control of the Flathead, Mission and Jocko Irrigation Districts v. United States,
832 F.2d 1127 (9th Cir. 1987).
103
Id. at 1132.
104
Id.
105
No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981).
106
Carter, 520 F. Supp. at 362.
107
Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988).
108
Hall, 698 F. Supp at 1511.
305
2. Understanding the evolution of habitat rights
All these battles were fought through the courts, often in protracted litigation
battles. Interestingly, most of the cases leveraging tribal treaty fishing rights have
wielded those treaty rights as a negative right. A negative right, generally
speaking, is the right to prevent another party from doing something that would
interfere with the underlying right. 109 In the case of fishing rights litigation, wielding
treaty fishing rights as a negative right has meant that tribes have primarily sued to
stop projects from further degrading salmon habitat, rather than bringing
affirmative litigation that would expand or improve salmon habitat from its current
state. This approach fits with the Supreme Court’s conception of the usufructuary
treaty rights: in a case interpreting Northwest tribes’ treaty rights, the Court
explained that “a court possessed of the res in a proceeding in rem, such as one
to apportion a fishery, may enjoin those who would interfere with that custody.” 110
As one scholar concurred, “[t]he right to protect the fish . . . is a negative right,
authorizing courts to enjoin those who would interfere with the fish that were the
central bargain of the treaties.” 111
Suing to halt further habitat degradation makes sense given the current
state of salmon habitat in the Northwest. Sharp declines in habitat occurred since
historical days—much of it through relatively unsophisticated (and fish-unfriendly)
dams built in the early and mid-twentieth century, 112 before treaty rights were
asserted or recognized to the extent they are today—but there still exists enough
contiguous habitat to support viable salmon runs. Any further degradation from this
baseline level of habitat would threaten salmon runs further and would therefore
be a more obvious violation of treaty rights, while it would be more difficult to sue
affirmatively for proactive habitat restoration measures. Indeed, in one of the early
affirmative cases in which tribes sought to compel the State of Washington to
repair culverts that were impeding salmon migration, the district court ruled in favor
of the tribes but specifically said that the ruling did not create “a broad
‘environmental servitude’ or the imposition of an affirmative duty to take all
possible steps to protect fish runs as the State protests, but rather a narrow
109
,BLACK’S LAW DICTIONARY (2009).
Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658,
693 n.32, modified sub nom. Washington v. United States, 444 U.S. 816 (1979).
111
112
Dams of the Columbia Basin & Their Effects on the Native Fishery, CENTER FOR COLUMBIA RIVER
HISTORY, http://www.ccrh.org/comm/river/dintro.php (last visited Nov. 17, 2014).
110
306
directive to refrain from impeding fish runs in one specific manner.”113 This judge’s
explanation almost perfectly reflects the view of usufructuary rights as a negative
right.
As always, there are some exceptions to the rule, and there have been
some successful attempts to restore salmon habitat. As one recent example, the
Environmental Protection Agency referred to treaty fishing rights and consulted the
Confederated Salish and Kootenai Tribes in the removal of the Milltown Dam in
Montana. 114 But in many of these cases, treaty rights are not the only or even the
primary impetus for the change. Cleanup of the superfund site at the Milltown dam,
for instance, was a primary driver of that dam removal project. In Washington and
Oregon, the Northwest Power Act and the Endangered Species Act have been
primary drivers of affirmative habitat restoration, albeit with limited success. 115 In
contrast to these examples of proactive restoration, the weight of litigation has
been tribes using their treaty rights to stop new dam construction projects that
would further harm salmon habitat, rather than to mandate affirmative actions that
would improve current habitat.
This does not mean the treaty right inherently fails to encompass an
affirmative right to habitat restoration and higher harvestable population numbers.
Indeed, ongoing litigation in Washington is continuing to test the waters in this
respect, as a number of tribes continue to seek a determination that the State of
Washington has a duty to protect fish runs and to repair or replace old culverts that
hamper salmon migration. 116 Such an affirmative right to habitat protection is
ultimately necessary in order to ensure full recognition of tribes’ treaty-guaranteed
rights. But the traditional conception—and the application, thus far—of the treaty
fishing right mainly as a right to halt further habitat destruction shows that it may
be easier under the current framework to enjoin further harm than to proactively
restore habitat.
Though it has mainly been used in this limited way, litigation over fishing
rights has nonetheless had the benefit of giving tribes their day in court, in turn
113
United States v. Washington, CV 9213RSM, 2007 WL 2437166 (W.D. Wash. Aug. 22, 2007).
Milltown Reservoir Sediments Operable Unit of the Milltown Reservoir/Clark Fork River
Superfund Site, Record of Decision, Part I: Declaration, ENVTL. PROTECTION AGENCY (2004),
http://www2.epa.gov/sites/production/files/documents/mrsRODpt1.pdf.
115
JUDITH ROYSTER ET AL., NATIVE AMERICAN NATURAL RESOURCES LAW: CASES AND MATERIALS 516
(2013).
116
E.g., United States v. Washington, CV 70-9213, 2013 WL 1334391 (W.D. Wash. Mar. 29,
2013).
114
307
achieving judicial recognition of treaty fishing rights, including some recognition of
the implied right to habitat protection. This is a key difference between treaty
fishing rights and treaty hunting rights, which have not been litigated to the same
extent, and thus have not yet been leveraged to achieve habitat protection.
III.
THE EXERCISE OF TREATY HUNTING RIGHTS
A. Unleveraged Rights: Modern Treaty Hunting
Although the treaty-guaranteed right to hunt off-reservation under Stevens
Treaties is of the same nature as the right to fish off-reservation, treaty hunting
rights have evolved differently. Treaty hunting rights been surrounded by
significantly less litigation than fishing rights, and they have not, for the most part,
been wielded as a tool to address habitat protection either on a large scale or on a
case-by-case basis.
The case law around treaty hunting rights is sparser, at least on the federal
level, but there is nonetheless a solid line of cases recognizing that treaty hunting
rights must be upheld under the Supremacy Clause and the canons of Indian
treaty construction. One case on hunting rights that did make it to the Supreme
Court, Antoine v. Washington, 117 held that off-reservation hunting rights
guaranteed to the Colville Confederated Tribes could not be abrogated through
state legislation, nor could off-reservation hunting activities of tribal members be
regulated by the State of Washington. 118 Moreover, the Court held that the
Supremacy Clause and the canon of construction mandating interpretation
favorable to the Indians applied despite the fact that the agreement in question
was made after the United States had ended its official treaty-making with Indian
tribes. 119 Hunting rights guaranteed through actual treaty would therefore
presumably be even more secure and durable.
In addition, many of the major federal cases decided in the context of
fishing rights also apply to hunting rights because the Court analyzed hunting and
fishing as one set of rights. From Fishing Vessel 120 and the Puyallup Cases 121 to
117
Antoine v. Washington, 420 U.S. 194 (1975).
Id. at 205.
119
Id. at 204.
120
Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658,
684, modified sub nom. Washington v. United States, 444 U.S. 816 (1979).
121
E.g., Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S. 392, 400 (1968).
118
308
Mille Lacs most recently, 122 the Supreme Court has repeatedly reaffirmed that
hunting and fishing rights (and the much less often contested gathering rights),
together, make up the usufructuary rights guaranteed by treaty. This is true
notwithstanding Stevens Treaty language describing “the right of taking fish” and
“the privilege of hunting.” 123 Indeed, when the Antoine Court cited a portion of
Puyallup I that specifically discussed fishing rights, the Antoine Court interpreted
that passage to impliedly include hunting rights, such that the Antoine opinion
added the parenthetical phrase “and hunting” twice in its reproduction of the
quotation. 124 That is not the work of a Court that draws legal distinctions between
hunting and fishing rights.
Finally, a number of state court decisions in the Northwest have established
and upheld strong judicial recognition of treaty hunting rights. In Montana, for
instance, State v. McClure 125 in 1954 established that the Treaty of Hellgate (a
Stevens Treaty, as noted above) with the Confederated Salish and Kootenai
Tribes (CSKT) was the supreme law of the land under the Supremacy Clause, and
that CSKT tribal law was proper for regulating hunting by tribal members. In 1977,
State v. Stasso 126 went further and established that CSKT members were free
from state laws when conducting treaty hunts on “open and unclaimed” lands in
Montana. In Idaho, State v. Arthur127 used the canons of Indian treaty construction
to establish that the right to hunt on “open and unclaimed” lands encompassed
lands that are currently federally owned, including National Forest lands. State
court decisions in Washington and Oregon tended to focus on fishing rights but
also recognized treaty hunting rights as equal and valid. 128
122
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188-89 (1999).
See supra notes 63-66 and accompanying text.
124
Antoine, 420 U.S. at 207. With the “hunting” insertions, the Antoine Court’s citation of Puyallup I
reads as follows:
In Puyallup I, . . . we held that although, these rights ‘may . . . not be qualified by the State,
. . . the manner of fishing (and hunting), the size of the take, the restriction of commercial
fishing (and hunting), and the like may be regulated by the State in the interest of
conservation, provided the regulation meets appropriate standards and does not
discriminate against the Indians.’
125
State v. McClure, 268 P.2d 629 (Mont. 1954).
126
State v. Stasso, 563 P.2d 562 (Mont. 1977).
127
State v. Arthur, 261 P.2d 135 (Idaho 1953).
128
E.g., State v. Jim, 725 P.2d 365, 369 (Or. App. 1986) (“Many Indian tribes have reserved
hunting and fishing rights which are protected in treaties . . . .”); State v. Miller, 689 P.2d 81, 85
(Wash. 1984) (“For treaty purposes, there is no operative distinction between the terms “right” [to
fish] and “privilege” [of hunting].).
123
309
Treaty rights to hunt on open and unclaimed lands, thus, are well
established at both the state and federal levels. Yet none of these cases have
focused on the legal scope of treaty hunting rights in the way that cases on treaty
fishing rights have aimed to establish that the scope of fishing rights includes a
right to habitat protection. As explored further below, the conception of
usufructuary treaty rights as a negative right, when viewed alongside the differing
rates of habitat destruction for fish and game species, may be a key reason why
treaty fishing rights have evolved differently from treaty hunting rights.
A second important difference between fishing and hunting is that fish
inhabit streams and rivers, which are inherently geographically limited, whereas
game animals roam across terrestrial habitat that is potentially much more vast.
Moreover, no one can claim exclusive property rights in the waterways that fish
inhabit, whereas lands are subject to more complete divisions of property rights.
This difference, however, may be somewhat less important than it first seems. For
one thing, settled case law around the treaty right to hunt on “open and unclaimed”
lands has established that treaty hunting rights do not apply on private land,
because it is not “unclaimed.”129 The majority of off-reservation treaty hunting
takes place on National Forest lands, which are generally considered “open and
unclaimed” for treaty hunting purposes. 130 Thus, just as fishing rights are
exercised in publicly accessible (and inherently not privately owned) waters, treaty
hunting rights, too, are exercised only on publicly accessible lands. Furthermore,
while fishing rights are actually exercised within relatively limited waterways, the
implied right of habitat protection implicates entire rivers and sometimes even
entire watersheds. So although there is an important geographically based
distinction between treaty rights to fish in rivers and to hunt on land, the scope of
these differences may be smaller than it appears.
A third relevant factor is that the battle over fishing rights is a very highstakes game, with millions of dollars’ worth of salmon harvest on the line every
year. It makes sense that the contentious atmosphere around this limited but
129
See, e.g., State v. Watters, 156 P.3d 145, 154-55 (Or. App. 2007) (holding that the land on
which Nez Perce members took elk was not “open and unclaimed” within meaning of the Nez
Perce treaty, and therefore tribal members did not have a right to hunt there); United States v.
Hicks, 587 F.Supp. 1162 (D.Wash.1984) (order reinstating action) (a national park was not “open
and unclaimed” within the meaning of the treaty).
130
See, e.g., State v. Miller, 689 P.2d 81, 82 (Wash. 1984) (“The parties stipulated that petitioners
killed the elk on national forest land. Several courts have determined that such land is “open and
unclaimed” within the meaning of the treaty.”); see also infra notes 126-127 and accompanying
text.
310
valuable resource tends to produce litigation. By contrast, it is illegal to sell wildcaught game meat in most states, so big-game hunting has not been
commercialized in the way that the fishing industry has. This means there is
generally less opposition to tribes’ exercise of their treaty rights to hunt deer and
elk. While sport hunters could see Native hunters as competing with them for a
scarce resource, the relative abundance of most game animals minimizes this
potential conflict. Even in the case of scarcer species like bison, a competitive
dynamic plays only a limited role. The lack of industry-backed opposition to Native
hunters could therefore be another major reason for the lack of litigation
surrounding hunting rights, in stark contrast to the industry opposition to Native
fishermen.
The reasons for the underdevelopment of hunting rights, therefore, largely
relate to these circumstantial differences between hunting and fishing—not to any
difference in the legal substance of the right. Now, as tribes are increasingly
asserting their treaty hunting rights, the legal doctrine surrounding fishing rights
will likely guide courts’ and scholars’ interpretation of hunting rights. Treaty hunting
of wild bison in the Greater Yellowstone Area provides a useful illustration of how
the implied right of habitat protection from the fishing context could be applied to
give tribes an affirmative right in the hunting context. In a context where wild bison
sorely need more habitat in order to thrive, tribes may have an opportunity to work
toward this goal by asserting an affirmative right to habitat protection
encompassed within their treaty hunting right.
B. No Room to Roam: Bison and Treaty Rights in Greater
Yellowstone
In the area surrounding Yellowstone National Park, known as the Greater
Yellowstone Area (GYA), Native tribes, ranchers, conservationists, homeowners,
and state and federal agencies often clash and sometimes collaborate on
management of the country’s only continuously wild bison population. Tribes’
exercise of their treaty rights to hunt bison outside the park, without significant
gains in habitat for the area’s bison population, illustrates that it may be easier to
use treaty rights to halt further habitat degradation—as in the fishing rights
cases—than to make affirmative habitat gains. But as explored further below, a
negative right is essentially useless if a species’ habitat has already been largely
destroyed, as in the case of wild bison. Therefore, treaty rights should not be
interpreted to exclude the possibility of an affirmative right to habitat protection and
expansion. Indeed, the bison paradox highlights the fact that tribal usufructuary
311
rights can only be fully vindicated if they are interpreted to encompass an
affirmative right to habitat protection and restoration, allowing huntable wildlife
populations to rebound and ultimately thrive.
1. Background on Yellowstone bison
Wild bison, also known as American buffalo, once numbered approximately
forty million and ranged from Mexico to Canada and from California to New
York. 131 For many of the Native tribes that hunted bison, the animal was not only
important as a source of food and materials for tools, clothes, and shelter, but was
also culturally and spiritually important. As one Oglala Sioux holy man explained:
“[t]he buffalo represents the people and the universe and should
always be treated with respect. For was he not here before the twolegged peoples, and is he not generous in that he gives us our
homes and our food? The buffalo is wise in many things, and thus
we should always be as a relative with him.”132
Massive slaughter of these once-magnificent buffalo herds took place in the
late 1800s, spurred by the westward expansion of railroads, the price of buffalo
hides (or “buffalo robes”), and United States government policy aiming to
subjugate Native tribes by destroying their source of sustenance. 133 It is estimated
that more than thirty-one million bison were killed between 1868 and 1881, with
only five hundred bison left by 1885. 134 At its nadir, the entire United States bison
population was reduced to less than fifty animals remaining in the wild, in a remote
region of the newly established Yellowstone National Park. 135 Today’s wild bison
herds in Yellowstone are descended from those few dozen animals.
Through a century of conservation efforts, begun just as bison teetered on
the brink of extinction, the Yellowstone bison population has now increased to
131
Keith Aune, Kent Redford & Kelly Aylward, Ecological Restoration of Bison, AM. BISON SOC’Y,
W ILDLIFE CONSERVATION SOC’Y 2 (date unavailable),
http://www.americanbisonsocietyonline.org/Portals/7/ABS_EcologicalRestorationofBison_factsheet.
pdf.
132
Buffalo Are Sacred, INTER-TRIBAL BUFFALO COUNCIL, http://itbcbuffalo.com/node/19 (last updated
2011) (quoting Oglala Sioux holy man Black Elk).
133
Slaughter of the Buffalo, INTER-TRIBAL BUFFALO COUNCIL, http://itbcbuffalo.com/node/22 (last
updated 2011).
134
Id.
135
Bison Basics: Biology, Behavior, and a Brief History, CITIZENS W ORKING GROUP ON BISON
EDUCATION (2013), http://ibmp.info/Library/BisonEducation/BisonBrochure1.pdf.
312
between 3,000 and 4,500 animals. 136 Other conservation herds (wild bison herds
or confined herds primarily managed for conservation of the species, rather than
for meat) have also been established elsewhere in the country. But the gains are
meager compared to historical times; best estimates indicate that bison still
occupy less than one percent of their historical (circa 1500) range. 137 Plains bison
are therefore considered ecologically extinct throughout their original range. 138
As the bison population within Yellowstone National Park gradually
expanded, in the 1980s the herds began migrating out of the park and into the
State of Montana in the winter months, in search of better winter habitat. 139 These
annual migrations spawned concerns that the bison would transmit the non-fatal
disease brucellosis to cattle in Montana, leading to intense conflicts between local
ranchers and bison conservation advocates. Livestock producers wanted bison
confined to Yellowstone National Park, while bison advocates wanted the herds to
have access to winter habitat outside the park. Similar battles played out between
state livestock and wildlife agencies and federal land management and disease
control agencies, as they struggled to decide how to manage the roaming bison
population. Protracted litigation finally culminated in a consent decree and Record
of Decision signed by five state and federal agencies in 2000, creating the
Interagency Bison Management Plan (IBMP). 140
The IBMP Partners include the National Park Service, the United States
Forest Service, the Animal and Plant Health Inspection Service (a federal agency
within the United States Department of Agriculture), the Montana Department of
Livestock, and the Montana Department of Fish, Wildlife, and Parks. Each of these
agencies is bound by the terms of the Record of Decision, but each also has its
own distinct statutory mandate. The twin goals of the IBMP are to maintain a
136
Chris Geremia et al., Managing the Abundance of Yellowstone Bison, Winter 2014,
INTERAGENCY BISON MGMT. PLAN 1 (2013),
http://ibmp.info/Library/20130731/BisonHarvestPlan_Winter2014_Final.pdf (citing population
estimates and describing population fluctuations at different times of year).
137
Aune, Redford & Aylward, supra note 131, at 2.
138
Curtis H. Freese, et al., Second Chance for the Plains Bison, 136 BIOLOGICAL CONSERVATION
175, 178 (2007), available at http://www.gprc.org/Freese.pdf.
139
Mary Meagher, Range Expansion by Bison of Yellowstone National Park, 70 J. MAMMOLOGY
670, 673 (1989).
140
See MONT. DEP’T OF LIVESTOCK & MONT. DEP’T OF FISH, W ILDLIFE & PARKS, INTERAGENCY BISON
MANAGEMENT PLAN FOR THE STATE OF MONTANA AND YELLOWSTONE NATIONAL PARK (2000) [STATE
ROD]; U.S. DEP’T OF THE INTERIOR & U.S. DEP’T OF AGRICULTURE, RECORD OF DECISION FOR FINAL
ENVIRONMENTAL IMPACT STATEMENT AND BISON MANAGEMENT PLAN FOR THE STATE OF MONTANA AND
YELLOWSTONE NATIONAL PARK (2000) [FEDERAL ROD].
313
viable, free-ranging bison herd while also preventing brucellosis transmission from
bison to cattle. 141 Together the agencies tightly manage the Yellowstone bison
herd and its access to potential habitat outside the park.
In practice, for the most part, this has meant that Yellowstone bison have
extremely limited access to habitat outside the park. The current implementation
protocols for the IBMP require bison to be removed from their winter habitat in
Montana each year in mid-spring, before they would naturally migrate back into
the park. 142 This removal is accomplished by hazing the bison herds with
helicopters, ATVs, riders on horseback, and sometimes snowmobiles. 143 The
result is that bison have no year-round habitat, or even habitat that they can use
on a cycle consistent with their natural migration patterns, outside Yellowstone
National Park. And in years when the numbers of bison that leave the park are too
great to manage, state and federal agencies routinely capture bison and often ship
them to slaughter facilities, sending the meat to Native tribes and food banks. Not
only does this management scheme deprive the Yellowstone bison herd of access
to habitat; keeping the herd geographically and numerically confined also limits
tribes’ access to culturally important and treaty-guaranteed hunting opportunities.
It also costs taxpayers $2 million annually in bison capture, hazing, and other
management costs. 144
2. Treaty hunting of bison
Despite the lack of consistent habitat, often enough bison leave the park
during the fall and winter that a fair-chase hunt can be held. 145 Within the past
decade, four tribes have asserted and begun to exercise their treaty rights to hunt
these bison. 146 Three of those tribes—the Confederated Salish and Kootenai
141
FEDERAL ROD, supra note 140, at 6.
Operating Procedures for the Interagency Bison Management Plan, INTERAGENCY BISON
MANAGEMENT PLAN 6-7 (2013),
http://ibmp.info/Library/OpsPlans/2014_IBMP_%20WinterOperationsPlan_final.pdf.
143
Stephany Seay, Update from the Field: Buffalo Nightmare, Helicopter Returns, UPDATES FROM
THE FIELD (Buffalo Field Campaign), May 16, 2013, available at
http://www.buffalofieldcampaign.org/media/update1213/051613.html.
144
U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-291, YELLOWSTONE BISON: INTERAGENCY PLAN AND
AGENCIES' MANAGEMENT NEED IMPROVEMENT TO BETTER ADDRESS BISON-CATTLE BRUCELLOSIS
CONTROVERSY (2008), http://www.gao.gov/assets/280/273472.pdf
145
See Montana Bison Frequently Asked Questions, MONT. FISH, W ILDLIFE & PARKS,
http://fwp.mt.gov/hunting/planahunt/huntingGuides/bison/bisonFaq.html#question6 (last visited
Nov. 9, 2014).
146
Tribal Treaty Rights, MONT. FISH, W ILDLIFE & PARKS (undated), available at
http://fwp.mt.gov/fwpDoc.html?id=55671 (last accessed Nov. 9, 2014).
142
314
Tribes (CSKT), the Nez Perce Tribe, and the Confederated Tribes of the Umatilla
Indian Reservation—are Stevens Treaty tribes, while the fourth—the ShoshoneBannock Tribe—is not. All of these tribes, among others, traditionally hunted bison
in the region that is now the Greater Yellowstone Area. Compared to the process
surrounding fishing rights, the process of tribes asserting their treaty hunting rights
and the state recognizing those rights has been relatively less contentious.
The Nez Perce Tribe was the first to assert its treaty right to hunt bison in
Greater Yellowstone, beginning in the 2005-2006 fall and winter hunting season.
Rebecca Miles, Chairman of the Nez Perce Executive Committee (the Tribe’s
governing body) at that time, explains that the tribe had long hoped to have an
opportunity to begin exercising their bison hunting rights again. “Ever since we
were denied the right to hunt buffalo,” Miles says, “we’ve been wanting to go back
and hunt buffalo.” 147 From its involvement in salmon fishing, the tribe had
longstanding experience asserting and exercising treaty rights to fish in offreservation waters, which it could bring to the hunting context. So in 2005, the
Tribal Executive Committee and the tribe’s Fish and Wildlife Commission prepared
to reestablish a tribally run buffalo hunt.
The Nez Perce Tribal Executive Committee sent the Governor of Montana a
copy of the Nez Perce Treaty of 1855 and other historical documentation both
establishing their treaty hunting right and showing that the GYA fell within their
aboriginal hunting territory. Brian Schweitzer, the Governor at the time, was
generally supportive of tribal rights. So with relatively little conflict, the Nez Perce
Executive Committee member says, “the Governor welcomed us back to our
historical hunting grounds.” 148 The official letter from Governor Schweitzer
recognizing the Tribe’s treaty right to hunt bison shows a strong, nuanced, and
favorable understanding of tribal treaty rights:
The State of Montana respectfully acknowledges that the Tribe will
be exercising its treaty-reserved rights on open and unclaimed land
in Montana by harvesting up to five (5) buffalo/bison on the Gallatin
National Forest for ceremonial and subsistence purposes. Montana
147
Telephone Interview with Rebecca Miles, former Chairman of the Tribal Executive Committee,
Nez Perce Tribe (Nov. 22, 2013).
148
Id.
315
is relying on the information you provided that documents the historic
hunting of buffalo/bison in Montana. 149
That first year the tribe conducted a small-scale youth hunt—to send a message to
young tribal members: “this is your right” 150—followed by larger hunts open to all
tribal members in subsequent years.
The process of asserting their rights and receiving state recognition, Miles
says, did not require the same effort it had taken to establish fishing rights. Both
the Nez Perce and the State of Montana wanted to avoid courtroom battles, so
they were able to agree on an initial recognition of rights that has evolved in the
years since. Miles believes, however, that this process would not have happened
thirty or forty years earlier, when tribes were still just beginning to assert their
treaty rights actively. 151 The strong case law that had been developed surrounding
treaty fishing rights had laid the groundwork for a relatively smoother process of
asserting treaty hunting rights.
Other tribes’ subsequent processes of asserting and exercising their treaty
rights to hunt Yellowstone bison unfolded similarly. The CSKT, which also had
past experience with off-reservation treaty rights, including some off-reservation
hunting of other big-game species, initially sought to exercise their right to hunt
bison in response to a new Montana statute authorizing a public bison hunt
outside Yellowstone. As the Tribes’ attorney John Harrison explains, once the
state authorized a bison hunt, the CSKT responded by saying, in essence, “we’ll
go ahead and add that to the list of species that we can hunt ‘in common with’ the
people of the State” (who have by now, of course, replaced the “citizens of the
Territory” originally referred to in the Treaty of Hellgate). 152 The CSKT leadership
then provided the state with documentation that demonstrated their treaty rights to
hunt bison in the GYA, including the Hellgate Treaty and another treaty that
established a common hunting grounds for a number of tribes, which the CSKT
used to show that the GYA fell within their traditional hunting territory. 153 As with
the Nez Perce, the State of Montana accepted the CSKT’s documentation and
149
Letter from Brian Schweitzer, Governor of Mont., to Rebecca Miles, Chairman, Nez Perce Tribal
Executive Committee (Jan. 27, 2006) (on file with author).
150
Telephone interview with Rebecca Miles, supra note 147.
151
Id.
152
Telephone interview with John Harrison, Tribal Attorney, Confederated Salish and Kootenai
Tribes (Nov. 19, 2013).
153
Treaty with the Blackfoot and Other Tribes of Indians, Oct. 17, 1855, 11 Stat. 657.
316
officially recognized the CSKT’s treaty rights to hunt bison in a similar letter dated
July, 2006. 154
This time, the State of Montana also went on to say to the CSKT: “You
suggest in your letter that FWP [Montana Fish, Wildlife & Parks] might wish to
discuss a state-tribal cooperative agreement to allow tribal members to hunt on all
lands within the district, and FWP would be willing to entertain further discussion
with the [T]ribe along those lines.” 155 Indeed, starting in the summer of 2007, the
three sovereigns managing the hunt at that point—the State of Montana, the Nez
Perce, and the CSKT—met together to discuss how to co-manage the annual
bison hunt. A good idea at the outset, this consultation would soon become even
more necessary.
Despite the relatively smooth process, as in the fishing cases, conflict
inevitably arose over who could harvest how much. An official who helps manage
the bison hunt for Montana Fish, Wildlife and Parks (FWP) describes the problem
simply as “the sharing of a limited resource.” 156 Under the line of fishing rights
cases guaranteeing tribes fifty percent of the fish harvest, the State believed that
the Nez Perce and the CSKT were collectively entitled to fifty percent of the bison
harvest, and believed a court would be likely to uphold that division of the harvest,
with some possible variation. 157 While the tribes never agreed to limit their harvest
to this fifty-fifty split, the larger sticking point was that, as long as the state was
capturing bison and shipping them to slaughter, the tribes believed the slaughtered
bison should count toward the state’s share of the total harvest. 158 The State,
meanwhile, believed its hands were tied by the IBMP regarding ship-and-slaughter
as a necessary tool, and FWP wanted to preserve fifty percent of the actual hunt
for state-licensed hunters.
Interestingly, rather than leading to litigation, this conflict led to further
consultations between the state and tribal governments. These consultations
ultimately led to the inclusion of the Nez Perce, the CSKT, and also the InterTribal
Buffalo Council as Partners in the IBMP. This meant that the tribes gained a say in
154
Letter from Jeff Hagener, Dir., Mont. Fish, Wildlife & Parks to James Steele, Jr., Chairman,
Confederated Salish and Kootenai Tribes of the Flathead Nation (July 21, 2006) (on file with
author).
155
Id.
156
Telephone Interview with two state officials (anonymous), Mont. Fish, Wildlife & Parks (Nov. 15,
2013).
157
Telephone interview with John Harrison, supra note 152.
158
Id.
317
managing bison and habitat in Greater Yellowstone. For the tribes, this step
seemed fitting and perhaps overdue. “We consider ourselves co-managers,” John
Harrison said of the CSKT. 159 The Nez Perce, for their part, brought significant comanagement experience from the fisheries context, as a party to the Columbia
River Fisheries Management Plan.
However, the state and federal partners are still bound by explicit statutory
mandates, as well as the initial consent decree and Record of Decision; as a
result, their voices tend to be heard more strongly than the tribal voices at IBMP
meetings. The two other Native nations that have succeeded in getting their treaty
hunting rights recognized in the past several years, the Confederated Tribes of the
Umatilla Indian Reservation and the Shoshone-Bannock Tribes, have not been
made IBMP Partners. Thus these tribes have even less of a voice in the process.
The result has been minimal progress on bison habitat. Why is this so?
3. The Paradox of a Negative Right
Paradoxically, the almost complete lack of bison habitat may be part of the
reason why it is so hard to leverage treaty hunting rights to protect that same
habitat. As shown earlier, usufructuary treaty rights have thus far been applied
primarily as a negative right. 160 The bison case study further illustrates the fact that
it is easier to bring a suit to stop a harmful project than to sue for affirmative gains.
As CSKT attorney John Harrison explained, if the state and federal IBMP
partners said they were going to fence the border of Yellowstone National Park
and not allow any bison to migrate onto their winter habitat in Montana, the tribes
would probably have few qualms about suing them. “The Tribes would seriously
consider filing a suit and I expect we would end up in federal court,” Harrison
says. 161 The tribes, this means, would sue to stop further habitat diminishment—
wielding their treaty right in the form of a negative right—but they are willing to try
to use consultative processes to make affirmative progress on habitat. The CSKT
and Nez Perce know they are holding an “implicit threat of litigation” if the state
and federal agencies implement policies that leave no bison for hunting, but short
of that, they want to stay out of court. 162 And indeed there has been no litigation
regarding tribal treaty hunting of Yellowstone bison, at any stage of the process.
159
Id.
See supra notes 110-115 and accompanying text.
161
Telephone interview with John Harrison, supra note 152.
162
Id.
160
318
Risk aversion also plays a role in the decision not to wield treaty rights as
an affirmative right in court. If the tribes sue for affirmative gains, there exists the
possibility that they could end up worse off than when they began. As former Nez
Perce Chairman Rebecca Miles explains:
Any smart sovereign will strategize on litigation. Courtrooms are the
modern-day battlefield. In any courtroom battle, there are risks. As a
former leader of a sovereign nation that has worked to protect and
enhance our citizens’ tribal treaty rights, and with Montana looking at
their future, we have both been good stewards and smart sovereigns
to agree on this particular issue. 163
The consultative method has undoubtedly resulted in more goodwill
between the tribes and the State, potentially laying the groundwork for progress.
Due in part to pressure from the treaty hunting tribes as well as bison
conservationists, the State of Montana is currently considering a plan that would
allow bison to remain on their seasonal habitat for longer in the spring. 164 But while
waiting for this slow progress, the consultative process has also meant that the
tribes have not had their day in court to assert a right to habitat protection as part
of their treaty right.
Unlike rivers—which, as noted above, cannot be claimed—extensive
portions of once-wild lands had already been divided up by private property
owners prior to the modern assertion of treaty hunting rights. Under a negative
rights framework, this puts bison habitat, and bison hunters, in a tough spot.
Essentially, bison habitat and population numbers are in such bad shape
compared to their historical numbers that there are few active threats that would
actually worsen the situation (in contrast to new proposed dams, or other projects
that would harm salmon habitat). So there are now fewer opportunities to wield
treaty rights as a negative right. And because tribes are reluctant to wield their
treaty right as an affirmative right in the courts, this means that there has been
less litigation. This is the paradox of a negative right to harvest fish or bison: the
worse the starting point, the less helpful the right. The baseline level of habitat
163
Telephone interview with Rebecca Miles, supra note 147.
Draft Joint Environmental Assessment: Year-round Habitat for Yellowstone Bison, MONT.
DEPARTMENT OF LIVESTOCK & MONT. FISH, W ILDLIFE & PARKS (July 2013),
fwp.mt.gov/fwpDoc.html?id=60011.
164
319
effectively defines what is considered a threat to that baseline. Because bison
habitat and bison numbers were decimated so dramatically before tribes began
exercising their modern treaty rights to hunt bison, the right to enjoin further harm
cannot bring much progress.
But as seen in the fishing cases, most courts, when pressed, will recognize
an implied right of habitat protection. Scholars likewise agree that treaty hunting
rights encompass this implied right. 165 Furthermore, as previously noted, the
implied right of habitat protection is not necessarily always a negative right, 166 and
tribes are beginning to test courts’ willingness to recognize an affirmative right to
habitat protection. 167 These efforts toward court recognition of affirmative habitat
rights for salmon came as a result of tribal leaders’ “increasing impatience with the
lack of restoration progress.” 168 Therefore, if the current lack of bison habitat
persists, it may be only a matter of time before the bison-hunting tribes start more
actively demanding expanded bison habitat and better bison protection. If this is
the case, the state and federal agencies have a strong interest in making the
consultative process meaningful, and allowing it to achieve actual progress.
Yellowstone National Park and the State of Montana recently announced that they
will soon begin working to develop a new bison management plan, 169 which would
be an excellent opportunity to incorporate stronger habitat protections into an
official management plan. Because if the IBMP or its successor fails to make
meaningful progress on habitat, at some point tribes will take their rights to court
and will insist on habitat expansion that way. And all the interested parties would
like to avoid that outcome.
IV.
CONCLUSION
Treaty hunting of bison in Greater Yellowstone illustrates the fact that it is
easier to wield a negative right in court, but it also poignantly highlights the
problem with negative rights: the worse the situation, the less helpful the right. The
bison paradox thus demonstrates the need for a more expansive and affirmative
165
Wood, supra note 54, at 6.
See supra note 116 and accompanying text.
167
See, e.g., United States v. Washington, CV 70-9213, 2013 WL 1334391 (W.D. Wash. Mar. 29,
2013).
168
169
Interagency News Release, Yellowstone National Park, Montana Department of Livestock &
Montana Fish, Wildlife & Parks, State of Montana and National Park Service to jointly develop new
Bison Management Plan (Mar. 28, 2014), http://www.nps.gov/yell/parknews/032814.htm.
166
320
conception of usufructuary treaty rights. As this article has shown, treaty hunting
rights are no different from treaty fishing rights. Treaty hunting rights should thus
be interpreted to include the implied right of habitat protection that has developed
in the fishing-rights context. Moreover, the implied right of habitat protection must
be interpreted to include an affirmative right to improve and expand habitat where
it has already been eliminated, not just a right to enjoin further habitat destruction.
Such a conception is consistent with the jurisprudence and legal commentary on
usufructuary rights, and it is also necessary for guaranteeing that tribes have a
way to escape the paradox of a negative right to habitat protection—to fully
vindicate the rights guaranteed to them more than a century ago and maintain
adequate access to culturally and nutritionally important fish and game harvests.
The lack of litigation over hunting rights may have preserved goodwill in that
context, but it also means that tribes have less of a chance to wield their right and
develop case law recognizing their treaty rights and an implied right of habitat
protection. Yet it is clear that the substance of hunting rights is no different from
the substance of fishing rights, so, if litigated, courts would be required to find a
right to habitat protection in the hunting context as well. Going forward, creating a
consultative process that would actually reduce the need for habitat-protection
litigation would require active, meaningful collaboration and a willingness on both
sides to make progress. Scholars have proposed various collaborative processes
by which tribes and federal or state governments could work together to create
affirmative solutions, 170 and at least one has even characterized tribal
comanagement as a reserved right. 171 There are also several existing consultative
models, including the IBMP and the Columbia River Fisheries Management Plan,
but neither of these processes have achieved as much progress as hoped, and
the IBMP has even fallen short of the level of progress mandated and agreed to in
the Record of Decision that created the plan.
Thus, regardless of the model chosen for government-to-government
consultation and comanagement processes, it is in everybody’s interest to find a
way to make progress on protecting fish and wildlife populations and the habitat on
which they depend. Failing that, tribes will have no choice but to continue litigating
their treaty rights, including an affirmative right to habitat and population
170
See, e.g., Kari Krogseng, Minnesota v. Mille Lacs Band of Chippewa Indians, 27 ECOLOGY L.Q.
771 (2000); Wilkinson, supra note 44.
171
Ed Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal
Comanagement As A Reserved Right, 30 ENVTL. L. 279 (2000).
321
protection. Allowing tribes to affirmatively assert their rights—rather than forcing
them to sue state and federal governments when they violate those rights—seems
like the least Uncle Sam can do to uphold his past promises.
322
BEYOND BLOOD QUANTUM
THE LEGAL AND POLITICAL IMPLICATIONS OF EXPANDING TRIBAL
ENROLLMENT
Tommy Miller
∗
INTRODUCTION
Tribal nations take many different approaches to citizenship. Many tribes
require their members to have a certain blood percentage, or blood quantum.
Some require that blood quantum match the specific tribe, 1 while others simply
require a blood quantum of Indian descent. 2 Membership determinations in other
tribes is based on lineal descent, 3 or matrilineal or patrilineal descent. 4 However,
membership in a tribe does not by itself ensure full and equal rights. In the
Choctaw Nation of Oklahoma, for example, there are no blood quantum
requirements for membership, but the Chief, Assistant Chief, and Members of the
Tribal Council must be at least one-quarter Choctaw. 5 History provides a unique
lens through which to view the rise and current use of blood quantum
requirements for tribal membership.
Blood quantum laws were first used in the United States to prevent mixed
race people from holding public office or intermarrying with Europeans. 6 In 1817,
the federal government began using blood quantum in treaties to separate “half∗
* Tommy Miller is a 2015 J.D. Candidate at Harvard Law School and a member of the Colville
Confederated Tribes. He would like to thank his family for their constant support and inspiration,
Professor Joe Singer for his guidance, and the staff of the American Indian Law Journal for their
hard work.
1
See, e.g., HOOPA VALLEY TRIBE CONST. ART. IV (2012)
2
See, e.g., CONSTITUTION AND BY-LAWS OF THE COLORADO RIVER INDIAN TRIBES, ART. II; See also
Carole Goldberg-Ambrose, Of Native Americans and Tribal Members: The Impact of Law on Indian
Group Life, 28 LAW & SOC'Y REV. 1123, 1139-45 (1994).
3
See, e.g., CHOCTAW NATION CONST., ART. VI, § 2 (1838) available at
http://s3.amazonaws.com/choctaw-msldigital/assets/325/1838constitution_original.pdf.
4
See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 54 (1978).
5
See, e.g., CHOCTAW NATION CONST., ART. VI, VII.
6
Paul Spruhan, A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 S.D. L. REV.
1, 5.
323
breeds” from those with a lower blood quantum, conferring benefits only on the
former. 7 These early treaties did not speak of blood quantum in terms of tribal
membership, but rather as a criterion to determine eligibility for specific benefits. 8
At least as early as 1847, however, treaties reflected that people of mixed blood
were members of the Indian tribes the government was dealing with. 9 Through
much of its history, however, the United States used a rule of patrilineal descent to
describe who it would recognize as Indian, 10 with a gradual shift to deference to
tribal definitions of membership. 11
Blood quantum started to become more relevant during the Allotment Era.
During that era the federal government’s goal was to dissolve reservations and
apportion the reservation lands among tribal members in the form of
“allotments”. 12 As part of the guardian-ward responsibilities the United States
believed it had with Indians, it placed restrictions on alienation of the allotments it
created from reservation lands. 13 The restriction was originally to last for 25 years
from the granting of the allotment. When that failed to free up the land quickly
enough, Congress passed a statute allowing Indians that were deemed
“competent” by federal officials to sell their parcels immediately. 14 To expedite the
allotment and division process, Congress began to use blood quantum and race
as proxies for competency, particularly for the Five Civilized Tribes in Oklahoma. 15
At one end of the spectrum were whites and freedmen who had been incorporated
into the tribe, referred to as “Indians who are not of Indian blood,”16 and at the
other were full blood Indians. 17 The less Indian blood an individual possessed, the
sooner he could alienate his interests in the land, and the fewer restrictions he was
under generally. 18
As tribes gained autonomy, many included blood quantum as a prerequisite
for membership. Under the Indian Reorganization Act of 1934, many tribes
7
Id. at 10.
Id. at 11.
9
Id. at 12; TREATY WITH THE CHIPPEWA ART. 4, Aug. 2, 1847, 9 Stat. 904, 905.
10
See generally Spruhan, supra, note 6.
11
Id. at 29-30.
12
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 1.04 (2012).
13
See General Allotment Act (Dawes Act) of 1887, 24 Stat. 388, 389, ch. 119, 25 USCA 331
(1887) [hereinafter Dawes Act]; See also, Spruhan, supra note 6, at 40.
14
Act of May 8, 1906, 34 Stat. 182, 183, ch. 2348 (1906); Spruhan, supra note 6, at 40.
15
Spruhan, supra note 6, at 40-41.
16
See Act of Apr. 21, 1904, 33 Stat. 189, 204, ch. 1402 (1904); Spruhan, supra note 6, at 41.
17
Spruhan, supra note 6, at 41.
18
Id.
8
324
adopted constitutions that included blood quantum at the urging of the Department
of the Interior. 19 Elimination of these blood quantum requirements would require
approval by the Secretary of the Interior. 20 However, the Department itself has
advocated for the removal of this review requirement, on the grounds that it
violates tribal self determination. 21 Additionally, many tribal constitutions also
contain express provisions that require federal approval before they can change
membership criteria. 22 Despite the formal support of the Department for selfdetermination, the Bureau of Indian Affairs (BIA) seems to remain hostile to the
idea of opening up membership. 23 Accordingly, some of the potential changes to
membership requirements presented by this article may be difficult to implement,
even with strong tribal support. Since 1975, tribes have moved towards selfdetermination. Part of this movement has been the revision of constitutions drafted
by the federal government, to bring them in line with the values, traditions, and
goals of the tribe. 24 One of the major stumbling blocks in this process of
constitutional reform is how the tribe will define its membership. 25 Above all, tribes
must design membership, and other institutions to reflect their unique tribal culture.
This paper seeks to facilitate the reform process by laying out some of the legal
and policy implications of various kinds of citizenship criteria, to add to legal and
tribal conversations about reform. Section I explores the legality of tribes
incorporating non-Indians as members; Section II examines the legal effects of
non-Indian enrollment in various areas of Federal Indian Law; and Section III looks
at the policy implications of adopting different kinds of membership criteria.
II. THE LEGALITY OF TRIBES ENROLLING NON-INDIANS AS TRIBAL MEMBERS
19
Carole Goldberg, Members Only? Designing Citizenship Requirements for Indian Nations, 50 U.
KAN. L. REV. 437, 446-447 (2002).
20
Kirsty Gover, Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent
Rules in Membership Governance in the United States, 33 AM. INDIAN L. REV. 243, 255-57 (2009).
21
S. Rep. No. 100-577 (1988), reprinted in 1988 U.S.C.C.A.N. 3925 (comments of Ross Swimmer,
Assistant Secretary of the Department of the Interior).
22
See, e.g., CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION CONST.,
art. II, § 3 (“Future membership may be regulated from time to time by ordinance of the
Confederated Tribes subject to review by the Secretary of the Interior.”) available at
http://www.cskt.org/gov/docs/cskt_constitutionbylaws.pdf, (last visited Oct. 12, 2014).
23
See Goldberg, supra, note 19, at 448-449 (citing Thomas v. United States, 141 F. Supp. 2d
1185, 1192 (W.D. Wis. 2001)).
24
See AMERICAN INDIAN CONSTITUTIONAL REFORM AND THE REBUILDING OF NATIVE NATIONS, 2 (Eric
Lamont ed., 2006).
25
See Goldberg, supra, note 19 at 437.
325
In order for tribes to create membership criteria that are independent of blood
quantum it must be constitutional for tribes to include non-Indians as members,
and it must be within tribal inherent authority to recognize the non-Indians as such.
While there seem to be no cases directly testing either proposition, it seems from
the weight of the authority that it would be both constitutional and within the
inherent powers of tribes to adopt non-Indians as members.
A. The Constitutionality of Non-Members Being Tribal Members
It is likely constitutional for tribes to enroll non-Indians as tribal members.
Although some old Supreme Court cases suggest that there is an Indian lineage
requirement for tribal enrollment, the principles of Indian law and historical practice
indicate the opposite. Constitutional federal authority over Indian affairs derives
from the commerce clause, the treaty clause, and the necessary and proper
clause. 26 These clauses have been interpreted broadly to give the federal
government “plenary” authority over Indian affairs. 27 Historically, Congress and the
Executive branch have had primary authority in recognizing Indians and Indian
Tribes, with the Supreme Court giving deference to the decisions of the other
branches. 28 After the Civil War, the political branches forced some tribes that
previously held slaves to adopt the former slaves as tribal members. 29 Although
there have not been any Supreme Court challenges to this scheme of non-Indian
tribal membership, the longstanding historical practice and broad deference given
to the political branches mean that this scheme is likely constitutional. 30 The
following cases suggest the opposite, but only in unpersuasive dicta.
In United States v. Rogers, the Supreme Court decided that a White man
who had been adopted by the Cherokee Tribe was not subject to an exemption to
26
COHEN, supra note 12, at § 5.01.
United States v. Lara, 541 U.S. 193, 200 (2004).
28
See, e.g., United States v. Sandoval, 231 U.S. 28, 47 (1913) (quoting United States v. Holliday,
70 U.S. 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 Indians are recognized as a tribe, this court must do
the same.”).
29
See, e.g., Treaty with the Seminole Nation, 1866, art. 2, 14 Stat. 756; Treaty with the Cherokee,
1866, art. 9, 14 Stat. 799.
30
Several Supreme Court cases rely on historical practice to determine the validity of federal
action. See, e.g., Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823). Thus, the longstanding
recognition of these non-Indian “freedmen” as tribal members would likely influence a decision
about the validity of that enrollment scheme.
27
326
federal criminal jurisdiction that applied only to “Indian[s].”31 Rogers was a White
man who had been moved to Cherokee country, made his home there, married a
Cherokee woman, had several children, and had no “intention of returning to the
United States.” 32 Furthermore, the Cherokee Tribe had adopted Rogers, and
treated him as a Cherokee, with the full privileges of membership. 33 In order to
combat lawlessness, Congress had extended federal criminal jurisdiction over
Indian Country, but left an exemption for “crimes committed by one Indian against
the person or property of another Indian,” over which tribes retained exclusive
jurisdiction. 34 The Court in Rogers wrote that “a white man who at mature age is
adopted in an Indian tribe does not thereby become an Indian, and was not
intended to be embraced in the exception above mentioned.”35Although this
language appears strong, the holding itself is simply that Rogers remains subject
to federal jurisdiction; his adoption was not enough to sever his ties and
responsibilities to the United States. 36 Additionally, the Court, interpreting
Congress’ intent, wrote that the exception “does not speak of members of a tribe,
but of the race generally,-of the family of Indians,” in an effort to preserve intraand inter-tribal autonomy over Indians. 37 The Court read the racial requirement
into the statute based on presumptive congressional intent regarding crime in
Indian Country. 38 There is no indication that tribes lack the general ability to
naturalize non-Indians, or make them members of tribes, just that tribes lack the
specific power to bring non-Indians under the exception to criminal jurisdiction,
because “Indian” in that statute is a purely racial term.
In Montoya v. United States, the court held that Victoria’s Band, which had
attacked settlers, constituted a distinct band that was not in amity with the United
States, and therefore the settlers were not entitled to remuneration under a federal
statute. 39 The Court defined an Indian tribe as “a body of Indians of the same or a
similar race, united in a community under one leadership or government, and
31
United States v. Rogers, 45 U.S. 567 (1846).
Id. at 568.
33
Id. at 568.
34
Id. at 572.
35
Id. at 572-73.
36
Id. at 573-74.
37
Rogers, 45 U.S. at 573 (“[the exception] intended to leave them both, as regarded their own
tribe, and other tribes also, to be governed by Indian usages and customs.”)
38
Id. at 573 (The court’s reasoning also relies on the fact that it would be against congressional
intent to extend the exception to Rogers, as that would invite the criminally inclined to settle among
the Indians, and would frustrate Congress’ goal of preserving peace.)
39
Montoya v. United States, 180 U.S. 261 (1901).
32
327
inhabiting a particular though sometimes ill-defined territory” and a “band” as “a
company of Indians not necessarily, though often, of the same race or tribe, but
united under the same leadership in a common design.”40 It also says that “tribe”
implies a separate racial origin. 41 The Court’s purpose in creating this definition,
however, was not to limit the definition of a tribe to members of the same race, but
to distinguish a band from a tribe for the purposes of designating a specific band
as distinct from the tribes to which its members were racially linked. Any
requirement that tribes be composed of members of the same race was dicta. The
court offers absolutely no reasoning to support including ancestry as a prerequisite
to tribal membership. The only reasoning that could be inferred to support the
inclusion of the racial requirement is that the court believes Indians are too inferior
to organize on a permanent basis unless connected by race, 42 which is both racist
and inaccurate. As the racial requirement for tribal membership was not relevant to
the holding of the case, and unsupported by reasoning, it should not be
considered evidence that tribes lack the ability to adopt non-Indians.
Like Montoya, there is language in United States v. Sandoval to suggest
that race is a requirement for tribal membership. Sandoval involved the trafficking
of alcohol in Indian country, which was a federal crime. 43 The question was
whether Congress validly designated the Pueblo land as Indian Country, that is,
whether the Congress could validly consider the Pueblos to be Indians and govern
them with special laws. 44 The court held that as long as a community was distinctly
Indian, Congress could deal with them as a tribe for as long as it wanted, which
included the Pueblo. 45 Although Congress could not arbitrarily assert that a group
of people were “Indians” for the purpose of governing them separately, the
designation was not arbitrary for the Pueblo, considering their “Indian lineage,
isolated and communal life, primitive customs and limited civilization.” 46 Although
this list was sufficient to justify congressional action in that case, there is no
indication that all, or even any, of the factors on the list are necessary to recognize
a group as a tribe. In other words, the court does not hold that Indian lineage is a
40
Id. at 266.
Id. at 266.
42
See Id. at 265 (discussing the aspects of Indians’ characters that make it impossible for them to
form a true “nation”). See also Sarah Krakoff, Inextricably Political: Race, Membership, and tribal
Sovereignty, 87 W ASH. L. REV. 1041, 1072-1073 (2012) (providing a historical context for the
court’s rhetoric).
43
United States v. Sandoval, 231 U.S. 28, 36 (1913).
44
See Id. at 38.
45
See Id. at 46-49.
46
See Id. at 46-47.
41
328
constitutional requirement for federal recognition of a tribe, or those tribes would
be unable to enroll non-Indians.
A central theme in the dicta of these cases is the association of “Indian”
status with race. These cases were the products of a different era in United States
history, however, and conceptions of race and the appropriate role it should play in
legal decisions has changed dramatically. In the area of Federal Indian Law in
particular, the Supreme Court has determined that “Indian” is a political term,
rather than a racial one. 47 Accordingly, the race-based reasoning of these cases is
no longer valid. Although there remains a descent component, 48 current federal
recognition requirements emphasize political existence of tribes. 49 Additionally, the
descent aspect is not explicitly racial, but requires members of a tribe seeking
recognition to “descend from a historical Indian tribe or from historical Indian tribes
which combined and functioned as a single autonomous political entity.” 50 To the
extent that this regulation attempts to place a limitation based on race rather than
political affiliation on tribal membership, it would likely trigger equal protection
concerns explored in Section II of this paper.
Overall, the enrollment of non-Indians in tribes is likely constitutional, and is
supported by historical actions of both tribes and the political branches of the
federal government.
B. The Inherent Ability of Tribes to Adopt Non-Indians as Members
It is an established principle of Indian law that Indian tribes possess
“inherent powers of a limited sovereignty which has never been extinguished.” 51 A
corollary of this principle is that tribes retain all of their sovereign powers except
those “withdrawn by treaty or statute, or by implication as a necessary result of
their dependent status.” 52 Indian tribes likely possess the ability to recognize
someone as a tribal member for the purposes of granting them rights and
47
Morton v. Mancari, 417 U.S. 535 (1974).
25 C.F.R. § 83.7 (f) (2014).
49
See, e.g., Id at (b) (the group must comprise a distinct community that traces its roots to
historical times); Id at (c) (The group has maintained political control over its members since
historical times).
50
25 C.F.R. § 83.7 (e) (2014).
51
United States v. Wheeler, 435 U.S. 313, 322-323 (1978). See also COHEN, supra note 12, at §
4.01[1][a].
52
Wheeler, 435 U.S. 313, 323 (1978). See also COHEN, supra note 12, at § 4.01[1][a].
48
329
privileges of citizenship, 53 but whether or not they may be recognized for more
general purposes, such as receiving federal benefits, is less clear. 54 The ability of
tribes to control their membership has been recognized as an important element of
tribal sovereignty. 55 Therefore, tribes likely still retain the ability to recognize nonIndians as tribal members.
It is unlikely that tribes have been implicitly divested of the power to enroll
non-Indians. The Supreme Court first articulated the principle of implicit divestiture
in Oliphant v. Suquamish Indian Tribe. 56 There, the Court noted that tribes had
already lost the ability to freely alienate their lands and form political connections
with foreign powers. 57 Post-Oliphant, the implicit divestiture doctrine has been
applied to other forms of jurisdiction as well, 58 although the rationale behind the
theory is unclear. 59 Oliphant itself seems to suggest that tribal powers are only
implicitly divested when they come into conflict with the interests of the United
States, which has “overriding sovereignty.” 60 In Montana v. United States,
however, the Court held that tribes lost the power to regulate non-member hunting
and fishing activity on reservations not because it conflicted with federal authority
or interests, but because tribes had lost that power as a result of their “dependent”
status. 61 The Supreme Court has not yet directly decided whether tribes can enroll
non-Indians as members for general purposes such as receiving federal benefits,
although the principles of implicit divestiture and federal Indian law generally
suggest that tribes have not been divested of this power. 62
Tribal enrollment of non-Indians does not seem overly in conflict with the
interests of the United States. Unlike in Oliphant, where the federal government
53
See Roff v. Burney, 168 U.S. 218 (1897).
See infra Section II. (a discussion of potential treatment of non-Indian tribal members under
various areas of law.)
55
See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
56
57
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978) (citing Johnson v. M’Intosh, 21
U.S. 543 (1823) and Cherokee Nation v. Georgia, 30 U.S. 1 (1831)).
58
See, e.g., Montana v. United States, 450 U.S. 544, 564 (1981).
59
COHEN, supra note 12, at § 4.02[3][a].
60
Oliphant, 435 U.S. 191 at 209.
61
See Montana, 450 U.S. 544 at 564; See also COHEN, supra note 12, at § 4.02[3][a].
62
See infra Section III. (Status as a tribal member or an Indian is used in different ways in different
areas of federal statutory and common law, and the inability to adopt non-Indians for one purpose
does not foreclose adoption for another purpose). United States v. Rogers, 45 U.S. 567 (1846).
(Tribes cannot exempt non-Indians from federal jurisdiction by enrolling them as members under a
particular statute, but that does not mean that Indian tribes are similarly limited in other areas).
54
330
had legislated in the area of criminal jurisdiction and therefore expressed its
interests clearly, 63 Congress has made no indication that tribes should not be
enrolling non-Indians. Indeed, to the contrary, Congress and the President have
demanded that certain tribes enroll non-Indian former slaves as members. 64 On
the other hand, massive increases in tribal membership would increase the burden
on the federal government to provide certain services, like healthcare, to Indians.
Since these programs are generally underfunded, it is not clear that the addition of
more tribal members would by itself result in any actual increased financial or
other burden for the federal government. If the “overriding interests” version of the
implicit divestiture test is applied to determine the scope of the tribal power, it
seems like the tribe will be held to have the power. Later sections of this paper
address some of these concerns.
It is also unlikely that this power to expand membership has been lost as a
result of the status of tribes as a result of their dependent status. In Roff v. Burney,
the Supreme Court recognized the broad power of tribes to control their
membership decisions, including with regards to non-Indians. 65 Indeed, in
Montana the court recognized a difference between powers necessary to selfgovernment and internal relations and decisions affecting outside groups, and
specifically reaffirmed tribal control over membership determinations. 66 Once
again, the ability to enroll tribal members who would then receive federal benefits
is unclear, but the enrollment of non-Indians would only directly increase the
number of people vying for a piece of the existing pie, and would not force the
federal government to increase appropriations. Accordingly, because there is no
conflict between tribal and federal interests, tribes likely have not lost the power to
expand membership as a result of their dependent status.
II. LEGAL IMPACTS OF ENROLLING NON-INDIANS
Non-Indians enrolling as tribal members would have implications for many
areas of federal Indian law, and would change the constitutional legal analysis for
some established legal doctrines. In the following examination, I will assume that
the adoption law that is followed would allow non-Indians to become full tribal
63
Oliphant, 435 U.S. 191 at 203.
See supra Section I.A.
65
Roff v. Burney, 168 U.S. 218 (1897). (The disenrollment of a White man was acceptable, but did
not rule directly on the acceptability of his original adoption.)
66
Montana v. United States, 450 U.S. 544, 564 (1981), (citing United States v. Wheeler, 435 U.S.
313, 322 n. 18 (1978)).
64
331
members, as opposed to tiered membership as discussed in Section III. The court
in Morton v. Mancari held that distinctions based on status as an Indian were
“political” rather than “racial” distinctions, 67 so anything less than full tribal
citizenship might be considered another level of political classification, and may
not trigger the equal protection analysis that I describe for certain laws. Parts A, B,
and C will examine the impact of non-Indian enrollment on federal, tribal, and state
criminal jurisdiction, respectively. Parts D and E will examine the minor effect on
tribal and state civil jurisdiction, while Part F will explore the impact on federal
statutory benefits.
A. Federal Criminal Jurisdiction
Federal Criminal Jurisdiction in Indian Country is governed by the General
Crimes Act and the Major Crimes Act. 68 The General Crimes Act applies only to
interracial crimes between Indians and non-Indians within Indian Country, 69 while
the Major Crimes Act applies to any “major” crimes committed by Indians in Indian
Country. 70
In order to count as “Indian” for the purposes of federal criminal jurisdiction,
a defendant must be shown to have some degree of Indian blood, and be
recognized as Indian by a federally recognized tribe, although this does not always
require membership in the tribe. 71 The requirement of “some Indian blood” 72
comes from the case United States v. Rogers, in which a White man adopted by
the Cherokee was held to not be an Indian for the purposes of federal criminal
jurisdiction. 73 That case involved the Indian-against-Indian exception to the
General Crimes Act, and held that Rogers was not subject to the exemption
67
Morton v. Mancari, 417 U.S. 535 (1974).
COHEN’S HANDBOOK, supra note 12, § 9.02.
69
18 U.S.C. § 1152 (2014). Cohen, supra note 12, at § 9.02[1]. (Indian-on-Indian crime is
exempted from the General Crimes Act by the statute itself, and the Supreme Court has held that
non-Indian-on-non-Indian crime within Indian Country is subject to state jurisdiction). United States
v. McBratney, 104 U.S. 621 (1882).
70
18 U.S.C. § 1153 (2014).
71
COHEN’S HANDBOOK, supra note 12, § 9.02[1][d].
72
See Sarah Krakoff, Inextricably Political: Race, Membership, and Tribal Sovereignty, 87 W ASH. L.
REV. 1041, 1086-87 (2012). The Supreme Court has never stated how much Indian blood is
required, and lower courts have come to various conclusions. Id. Courts have adopted amorphous
requirements ranging from “some” to “substantial.” Id. Because the amount of Indian blood required
does not affect the equal protection analysis, this paper will use the “some” standard when referring
to the requirement.
73
United States v. Rogers, 45 U.S. 567 (1846).
68
332
because he was White. 74 This case, however, was decided before the ratification
of the 14th Amendment and the Supreme Court’s equal protection jurisprudence,
and this rule may no longer be good law. Now, the requirement of “some Indian
blood” could be an impermissible racial classification foreclosed by Morton v.
Mancari. 75
After Morton, federal laws targeting Indians are generally understood as
being political, rather than racial classifications, and are therefore not subject to
the strict scrutiny applied to classifications based on race. 76 However, tribal
members are still subject to the protections of the 14th Amendment, such as
protections from racial discrimination. 77 Therefore, if non-Indians could be enrolled
as members, the blood requirements for both the General Crimes Act and the
Major Crimes Act would be suspect, because they would create different
outcomes based solely on race. For instance, under the General Crimes Act, a
non-Indian tribal member defendant who committed a crime against an Indian in
Indian Country (e.g. Rogers) could argue that he should be subject to the
exemption for Indian-on-Indian crime, and not be subject to federal prosecution.
Since a similarly situated person of Indian descent would be exempt, and the only
difference is his ancestry, this is a compelling claim.
Additionally, the requirement of Indian blood in the Major Crimes Act could
be challenged by an Indian prosecuted in federal court under the act. In United
States v. Antelope, the Supreme Court rejected a similar challenge brought by a
Coeur D’Alene tribal member who argued that his federal prosecution violated
equal protection because it subjected him to the federal felony murder rule, while a
non-Indian would have been subject to Idaho law, which had rejected the felony
murder rule. 78 The court held that the distinction was based on the tribal
member’s political affiliation with a federally recognized tribe, rather than a racial
distinction, and was therefore constitutional. 79 The court did not address the fact
that a similarly situated non-Indian tribal member would presumably have been
74
Id.
Mancari, 417 U.S. 535.
76
Id. But see COHEN, supra note 12, at § 14.03[2][b] (arguing that Morton is about fulfilling the
“unique obligations toward the Indians,” rather than a political/racial distinction).
77
See, e.g., Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty AbuseWisconsin, Inc., 781 F. Supp. 1385 (W.D. Wis. 1992); COHEN, supra note 12, at § 14.
78
United States v. Antelope, 430 U.S. 641 (1977).
79
430 U.S. at 645.
75
333
exempt from federal prosecution, simply by virtue of his ancestry. Had this issue
been considered, the court might have found an equal protection violation.
An equal protection challenge framed in either of these ways would likely
result in the end of the “some Indian blood” requirement. The requirement does
not appear on the face of either statute, and was added as a gloss on the General
Crimes Act by the court in Rogers, based on presumed congressional intent. 80
Since Rogers was before the equal protection clause of the 14th Amendment, the
court did not have to deal with the equal protection clause in construing
congressional intent. Under the modern constitutional avoidance canon, this
requirement would raise a constitutional question; a reasonable interpretation that
avoids the question should be adopted before the constitutionality question is even
reached. 81 The Major Crimes Act was first passed in 1885, 82 after the ratification of
the 14th Amendment, so it should be easy for the court to say that the blood
requirement does not apply to that Act, unless there is overwhelming evidence of
congressional intent to the contrary. The General Crimes Act, however, is
somewhat more complicated. The current statute was passed in 1948, 83 but the
law itself has not been substantively changed since 1854, 84 before the passage of
the 14th Amendment in 1868. Additionally, the relevant parts of the law (the
exceptions to federal jurisdiction) are the same as they were in Rogers, when the
gloss was added. The Court could therefore presume that congress intended the
subsequent versions of the act to incorporate the requirement that the Court
added in Rogers. This presumption, however, likely does not rise to the level of
clear congressional intent required to overcome the constitutional avoidance
canon, and the word “Indian” in the statute would likely be interpreted to require
only tribal affiliation. As a result, it is likely that any non-Indians enrolled as tribal
members would be treated as “Indians” for the purpose of federal criminal
jurisdiction.
B. Tribal Criminal Jurisdiction
80
Rogers, 45 U.S. at 573.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568,
575, 108 S. Ct. 1392, 1397, 99 L. Ed. 2d 645 (1988) (“[W]here an otherwise acceptable
construction of a statute would raise serious constitutional problems, the Court will construe the
statute to avoid such problems unless such construction is plainly contrary to the intent of
Congress.”).
82
82 Act of Mar. 3, 1885, § 9, Stat. 362 (1885).
83
83 Act of June 25, 1948, ch. 6, 62 Stat. 683, 757 (1948).
84
COHEN’S HANDBOOK, supra note 12, at § 9.02[1][a].
81
334
Tribes retain the inherent authority to prosecute tribal members in their
tribal courts. 85 Accordingly, non-Indians who become tribal members would be
automatically subject to tribal jurisdiction. Additionally, opening up tribal
membership to non-Indians would make it more likely that the Supreme Court
would uphold expansions of tribal jurisdiction over non-Indians and non-member
Indians, such as the Violence Against Women Act amendment, or the Duro fix.
The ability of non-member Indians to enroll in a tribe would increase the
likelihood that the Duro fix, subjecting non-member-Indians to tribal jurisdiction,
would survive judicial scrutiny. In Oliphant v. Suquamish, the Supreme Court held
that tribes lacked inherent jurisdiction over non-Indians. 86 In Duro v. Reina, the
Court extended this holding to say that tribes could not exercise jurisdiction over
non-member Indians. 87 In response, congress passed “Duro-fix” legislation, which
recognized the “inherent power” of tribes to prosecute non-member Indians. 88 This
recognition of tribal authority was upheld in Lara, a double jeopardy case where
the defendant was being tried in federal court for a crime that he had already been
convicted of in tribal court. 89 However, Lara’s challenge was narrowly constrained
to the issue of whether tribal prosecution was a delegation of federal power or
recognition of inherent tribal power, and whether the recognition of tribal power is
valid. 90 Importantly, Lara did not address the due process or equal protection
problems that might arise from prosecuting a non-member in tribal court. 91
Because the Court determined that those challenges related to the original tribal
conviction, and not this subsequent federal prosecution, those challenges were left
for another day. These are not frivolous challenges, as the court may not be
inclined to uphold a tribal prosecution of a non-member. Justice Kennedy, in
particular, who concurred with the result in Lara, was very concerned with
subjecting non-members to tribal jurisdiction. 92 Of the justices who remain on the
court, only Justice Breyer and Justice Ginsburg signed the majority opinion that
said congress could and did recognize the tribe’s inherent authority. Justice Scalia
and Justice Thomas both expressed concerns about the power of congress even
85
United States v. Wheeler, 435 U.S. 313, 326 (1978).
87
Duro v. Reina, 495 U.S. 676 (1990).
88
25 U.S.C. § 1301(2) (2014).
89
United States v. Lara, 541 U.S. 193 (2004).
90
Id.
91
Id. at 207-09.
92
Id. at 211-14.(Kennedy, J., concurring).
86
335
to delegate this authority, 93 and seem inclined to vote against further expansion of
tribal authority.
The constitutional basis for invalidating the Duro fix is unclear. In terms of
equal protection, the Duro fix is based on membership in a federally recognized
tribe, which seems to place Duro-esque prosecutions clearly on the political side of
the political, racial Mancari divide. As a result, equal protection claims are unlikely
to succeed. 94 For due process, Indian tribal courts are required to comply with the
Indian Civil Rights Act (ICRA), but ICRA does not encompass the same range of
protections as the Bill of Rights. Notably, the right to counsel for indigent
defendants is not present in ICRA. 95 This could lead to a successful due process
claim being brought against a tribal prosecution, although, since the tribe would be
prosecuting as a separate sovereign not subject to the Constitution, the real issue
might lie with Congress’ decision to recognize this tribal sovereign power at all.
The Violence Against Women Act amendment, which subjects non-Indians to
prosecution in tribal court in limited circumstances, does require tribes to provide
full constitutional protections to defendants, which should alleviate any due
process concerns, especially since those protections can be enforced in federal
court through a habeas petition. 96
Justice Kennedy suggests it is unconstitutional to subject non-members to
tribal prosecution; as such prosecutions violate the principle of consent of the
governed. 97 Professor Fletcher frames the unease that Justice Kennedy and some
scholars have with tribal court jurisdiction as a problem with “democratic deficit.”98
Under this theory, nonmembers should not be subject to tribal jurisdiction because
93
Id. at 216-17, 231 fn. 3 (2004) (Thomas, J., concurring, and Souter, J. dissenting, which Scalia
joined.)
94
See Means v. Navajo Nation 432 F.3d 924 (9th Cir. 2005) (holding that tribal prosecution of nonmember did not violate equal protection).
95
25 U.S.C. § 1301 20130.
96
VIOLENCE AGAINST W OMEN REAUTHORIZATION ACT OF 2013 (2013), available at
http://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0.
97
Lara, 541 U.S. at 213-14 (Kennedy, J., concurring) However, he also answers this contention
with regard to Lara and similarly situated Indians, because they could avoid tribal prosecutions by
simply renouncing their tribal citizenship; Id. at 214 (Kennedy, J., concurring). Because this does
mostly answer Kennedy’s concern with regard to non-member Indians, it seems like Kennedy’s real
concern might be with expansions of tribal criminal jurisdiction to non-Indians, who would have no
such means of escape. But see Duro v. Reina, 495 U.S. 676, 693 (1990) (Kennedy writing that
tribal membership was not consent to criminal jurisdiction by other tribes).
98
Matthew L.M. Fletcher, Race and American Indian Tribal Nationhood, 11 Wyo. L. Rev. 295 ,319
(2011).
336
they “cannot and could not ever have participated in the political processes that
created the tribal laws and regulations at issue.” 99 Regardless of the questionable
merit of this argument, 100 by expanding tribal membership and removing or
changing the blood quantum requirement, non-members and non-Indians would
find themselves able to eventually become tribal members and even if they did not
take advantage of that opportunity, the potential for participation would remove this
“democratic deficit.” The impact of opening up membership, then, would seem to
go beyond expanding jurisdiction to those that join the tribe, and make
constitutional the exercise of criminal jurisdiction over a much larger portion of the
populace.
C. State Criminal Jurisdiction
Like its federal counterpart, state jurisdiction in Indian country usually
depends on the Indian status of the defendant. If both the defendant and the victim
are non-Indians then the state has jurisdiction. 101 Otherwise, in most cases, the
General Crimes Act and the Major Crimes Act preclude state prosecutions. 102
Because the same statutes apply, the same equal protection analysis from that
section also applies, and non-Indian tribal members would likely be treated the
same as Indian tribal members for the purposes of state criminal jurisdiction. 103 In
cases where the state has jurisdiction over Indians in Indian Country by virtue of
Public Law 280, 104 or some other statute, the state would logically have the same
amount of jurisdiction over new tribal members as it had over tribal members
before, whatever that jurisdiction may be. 105
D. Tribal Civil Jurisdiction
99
Id.
This kind of argument is not given much force in other contexts. For instance, travelling to
another state subjects a citizen to the laws of that state, regardless of the lack of meaningful
opportunity to vote in the elections of that state unless the citizen changes residency. The real
motivation for this argument may then be a discomfort with Tribal justice systems generally, which
would still be somewhat alleviated by allowing non-members to potentially join.
101
United States v. McBratney, 104 U.S. 621 (1882).
102
COHEN’S HANDBOOK, supra note 12, at § 9.03[1] (citing United States v. John, 437 U.S. 634
(1978) (for preclusion by Major Crimes Act) and Williams v. United States, 327 U.D. 711, 714
(1946) (for preclusion of interracial crimes)).
103
See Section II.A, supra.
104
Act of Aug. 15, 1953, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§
1321-1326, 28 U.S.C. §§ 1360, 1360 note).
105
For a discussion of the various implications of Public Law 280 in different jurisdictions, see
COHEN, supra, note 12 at § 6.04[3].
100
337
Like tribal criminal jurisdiction, allowing non-Indians to become members
would have a number of benefits for tribal communities. Tribes generally have
broad civil regulatory and adjudicatory jurisdiction over members, 106 so new
members would be subject to that same authority. Additionally, there are two ways
allowing non-Indians to become members could potentially expand jurisdiction
even to non-Indians who do not become members.
First, Brendale v. Confederated Tribes and Bands of the Yakima Indian
Nation suggests that by consolidating the ownership of land the tribe could regain
the ability to exclude from a majority of the land and therefore also exercise
greater jurisdiction over the whole area, particularly for zoning purposes. 107
However, Atkinson Trading Co., Inc. v. Shirley dramatically limited Brendale, such
that it only applies when the non-Indian fee land is “closed,” and development
would place the entire area in jeopardy. 108 As a result, this approach would be
unlikely to expand tribal jurisdiction greatly.
The second approach deals with the same “democratic deficit” problem that
exists for tribal criminal jurisdiction, 109 that is, the idea that non-members should
not be subject to tribal laws that they can never play a role in creating. For the
same reasons identified in Section II.B, by making it possible for non-Indians to
enroll in tribes, jurisdiction might theoretically extend to all those that could
potentially join the tribe, because they would no longer be necessarily excluded
from tribal decision-making. However, tribal civil jurisdiction over non-members is
currently governed by the Montana test and its exceptions. 110 Montana says that
tribes generally lack jurisdiction over non-member on non-member owned fee
lands within the reservation, except for those non-members who enter consensual
business relationships with the tribe or its members, or where such jurisdiction
would be necessary to protect “the political integrity, the economic security, or the
health or welfare of the tribe.” 111 Accordingly, merely opening up membership
would not be enough to expand jurisdiction to all non-member activities on a
reservation, although including more members would increase the sweep of the
106
Id. at § 4.01.
See Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408,
433-443 (1989).
108
Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645, 658 (2001).
109
Section II.B, supra.
110
See Montana v. U. S., 450 U.S. 544, 565-66 (1981).
111
See Id. at 565-66; See also, Shirley, 532 U.S. at 657 (applying the Montana test).
107
338
first Montana exception, as any activity that involves tribal members satisfies the
exception.
E. State Civil Jurisdiction
States generally have limited civil jurisdiction over Indians in Indian
Country, 112 and by enrolling in tribes, non-Indians would be able to avoid some
forms of state jurisdiction. In particular, some forms of taxation would likely be
barred by on-reservation non-Indians enrolling in a tribe. 113 Non-Indians who
enrolled would still have to pay ad valorem taxes on fee land they owned on the
reservation, 114 but they would likely be free from paying personal property
taxes. 115 Additionally, these new tribal members would not have to pay taxes for
activities or income earned on the reservation. 116 This would provide an incentive
for non-members to enroll in a tribe if they lived on the reservation.
F. Statutory Benefits
Most statutory benefits and services are based on membership in a
federally recognized tribe, instead of Indian ancestry. 117 Fletcher attributes this
deference to Indian membership determinations partially to the Supreme Court’s
race jurisprudence. 118 Some programs, like the Bureau of Indian Affairs
employment preference, used to require a certain blood quantum in addition to
112
COHEN’S HANDBOOK, supra note 12, at § 6.03[1][a].
Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458 (1995) (“But when a State attempts
to levy a tax directly on an Indian tribe or its members inside Indian country, rather than on nonIndians, we have employed, instead of a balancing inquiry, “a more categorical approach: ‘[A]bsent
cession of jurisdiction or other federal statutes permitting it,’ we have held, a State is without power
to tax reservation lands and reservation Indians.””) (quoting County of Yakima v. Confederated
Tribes and Bands of Yakima Nation, 502 U.S. 251(1992)).
114
See Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998) (holding that
by making the land alienable Congress intended to allow state taxation of the land regardless of
ownership by the Tribe).
115
See Bryan v. Itasca County, 426 U.S. 373 (1976).
116
COHEN’S HANDBOOK, supra note 25, at § 8.03[1][b].
117
Fletcher, supra note 101, at 302. See also Krakoff, supra note 42, at 1084-1085. Some
programs, however, extend to Indians who are not members of federally recognized tribes.
Cohen’s handbook on Federal Indian Law suggests that these can be reconciled with Supreme
Court jurisprudence by understanding Morton v. Mancari as requiring that Indian-specific programs
fulfill Congress’ “unique obligations towards the Indians.” See also, COHEN’S HANDBOOK, supra
note 12, at § 14.03[2][b] (citing Mancari, 417 U.S. at 555). It has also been argued that the
racial/political distinction that Mancari has been held to stand for is a false dichotomy, and that
apparently “racial” classifications involving Indians are also political. See Krakoff, supra note 42.
118
Fletcher, supra note 101, at 303.
113
339
membership in a federally recognized tribe, but in the wake of Morton v. Mancari
those requirements have been dropped. 119 As a result, it appears that non-Indian
tribal members would be eligible for the full range of services that Indian tribal
members are eligible for, and they would be treated as Indian for other purposes
such as Indian Child Welfare Act protections. As discussed in Section III, however,
if tribes begin separating membership from rights, and creating tiered citizenship,
the federal government may rework its benefits criteria.
III. EVALUATING MEMBERSHIP CRITERIA
There are many alternatives available for expanding tribal enrollment, each
with its own costs and benefits. The ideal membership requirements will depend
on the tribe and tribal values at issue, but Professor Carole Goldberg presents a
useful framework for thinking about the advantages and disadvantages of various
alternative criteria for membership. 120 This paper emulates that approach by
beginning with the goals and considerations for tribal membership, and then
examining how various criteria and approaches meet those goals.
A. Goals and Considerations of Tribal Membership
In designing membership criteria, there are many factors that a tribe might
consider, based on the unique goals and circumstances of the tribe, to ensure its
long-term strength and survival.
1. Community Belonging
Creating a strong sense of community is clearly an important element of
tribal survival. Relying on blood quantum to determine membership can help
facilitate the natural community that comes with kinship. Additionally, Professor
Goldberg argues that enrollment criteria based on descent or blood are in-line with
119
VERIFICATION OF INDIAN PREFERENCE FOR EMPLOYMENT IN THE BUREAU OF INDIAN AFFAIRS AND THE
INDIAN HEALTH SERVICE, FORM BIA-4432 (expires Nov. 30, 2014), available at
http://www.bia.gov/cs/groups/public/documents/text/idc015598.pdf.http://www.bia.gov/cs/groups/pu
blic/documents/text/idc015598.pdf. Strangely, the change seems to make the preference less
defensible from an equal protection challenge by a non-Indian, as it now extends to applicants who
possess one-half degree Indian blood but have no tribal membership. Id. It did drop the blood
quantum requirement for applicants who are members of federally recognized tribes, however. Id.
120
Goldberg, supra note 19 at 437.
340
traditional means of determining membership in a tribe, since tribes have always
used kinship as a primary marker of who belongs to the group. 121. As a historical
matter, this seems accurate, and is an interesting counterpoint to the common
arguments that blood quantum should be discarded because of its “untraditional”
origins. 122 However, it seems like this was less the result of any conscious
decision to use blood quantum to determine membership, and more a
consequence of historical context. When people were less mobile and more
isolated generally, their genealogical roots were less diverse. Community
belonging, in the sense of mutual connection between an individual and the
community, is generally considered to be less about distant genetic roots and
more a sense of being born and raised in the same place, or otherwise having
close ties and relationships. Blood quantum, conversely, focuses on the most
distant genealogical roots possible, and ties membership to those roots. Different
tribes have different conceptions of descent and for some bloodlines may be
paramount in determining membership and role in society. For those tribes that do
not have longstanding traditions of this sort, it may be useful to examine the role of
blood quantum in shaping contemporary understandings of community belonging,
and question whether blood quantum and the related values are the most useful to
ensuring the strength and survival of the tribe.
2. Maintaining Cultural Cohesion
Cultural survival is one of the fundamental motivations of tribal
governments. Without the attributes that make a tribe unique, it is essentially just a
municipal government. In order to continue to exist as separate sovereigns, native
nations must preserve their cultural sovereignty. 123 A membership criterion that
takes cultural affinity into account will help support tribal survival by causing the
tribe to reflect on its cultural values, and by screening out those with weaker
cultural ties. Professor Goldberg notes that one of the issues with loosening
enrollment restrictions is the loss of cultural cohesion, and less of an emphasis on
cultural strength as a political goal for tribal leaders. 124 This framework assumes
that individuals with less blood quantum will have weaker cultural ties. As a
121
Id. at 459-61.
Id. at 459 fn. 114 (2002) (citing authors that argue that blood quantum should be discarded for
being a departure from pre-contact modes of determining membership).
123
For a discussion of the importance of a focus on internal cultural sovereignty, see Coffey and
Tsosie, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future
of Indian Nations, 12 STAN. L. & POL'Y REV. 191 (2001).
124
Goldberg, supra note 101, at 462-63.
122
341
general matter this is probably true, since lower blood quantum will mean more
generations of marriage with people outside of the tribe, and logically, more
influence from outside culture. On an individual basis, however, this is less true,
and there are frequently cases where members with lower blood quantum or nonmembers will be more engaged in the tribal community and culture than those with
a higher blood quantum. Thus, it might seem intuitively appealing to base tribal
enrollment on individual cultural connection, or proxies for that connection, such as
residency. There are several problems with cultural connection to determine
membership discussed below. 125
3. Maintaining Numbers
Blood quantum requirements combined with intermarriage rates suggests
that some tribes will see drastic reductions in tribal membership, and potentially
extinguishment of the tribe. 126 Loss of tribal identity is a serious problem,
particularly for smaller tribes. As a result, in order to maintain tribal populations or
existence, it may be necessary to adopt less stringent forms of enrollment criteria.
4. Ensuring that future generations can remain tribal members
It is likely painful for many tribal members to think that their children or
grandchildren might not be able to be members of their tribe. Rates of
intermarriage are high, and members might want to ensure that their descendants
are allowed to keep their tribal identity. 127 This is related to the issue of tribal
survival just discussed. 128 Balancing personal desires to continue Indian heritage
with the goals of the tribe and the goal of creating objective, universal rules for
membership will be a difficult but necessary task for tribal members. Some tribal
members might favor loose restrictions that would allow their children to become
members of the tribe, even if that level of restriction would not be good for the tribe
as a whole. These individual preferences could determine the success of a
constitutional reform effort, and should be carefully considered in designing
membership criteria.
125
Id. at 462-465; Section III.B.v, supra;
Goldberg, supra, note 101 at 461(citing Russell Thornton, Tribal Membership Requirements and
the Demography of ‘Old’ and ‘New’ Native Americans, in Changing Numbers, Changing Needs:
American Indian Demography and Public Health 103, 108-11 (Gary Sandefur et al. eds., 1996)).
127
See Goldberg, supra note 101, at 466-67.
128
Section III.A.iii, supra.
126
342
5. Increasing Political Power
By increasing tribal enrollment, tribes could theoretically increase their
political power at the state and federal levels by representing a larger voting bloc
and being able to mobilize more people for certain political goals. The Cherokee
are an example of this strategy in action. 129 There are some problems with this
plan, however. First, since Indians make up such a small percentage of the overall
population, for many tribes, even expanding membership to include all lineal
descendants would still not result in a very large voting bloc, relatively speaking.
Second, the Department of the Interior has demonstrated hostility to expanding
tribal membership, 130 and expanding tribal membership may alienate the
Department and make it harder to accomplish the tribe’s political goals. Third,
tribes have become much more effective politically in recent years, regardless of
their small numbers, by banding together in intertribal organizations. One tribe
greatly expanding its own membership may be seen as more of a political threat
by the other tribes, and would at least put more of a strain on the already
overburdened federal benefits system, which could lead to less intertribal cohesion
and less effective advocacy. Fourth, the federal government, with encouragement
from state governments, might see this as a transparently political move, rather
than a move based on tribal self-determination. Accordingly, the government may
begin to see tribes less as independent sovereign entities and more as political
clubs, not entitled to special recognition. This could invite another round of
termination. 131
Opening up membership could have other political benefits beyond purely
raising population numbers, however. As discussed earlier, tribes currently suffer
from a “democratic deficit” in the sense that non-Indians can never have political
voice in the tribe. 132 In addition to the legal benefits discussed earlier, a thoughtful
program of opening up enrollment could lead to an increase in perceived
democratic accountability, and the federal government might be more open to
increasing tribal jurisdiction as it did in the Violence Against Women Act
amendments of 2013. Further expansions of tribal civil and criminal jurisdiction
129
Goldberg, supra note 101, at 461.
See Id. at 449.
131
Cf. Id. at 449 (2002) (citing Thomas v. United States, 141 F. Supp. 2d 1185, 1192-93 (W.D. Wis.
2001) (citing a 1992 letter from then Deputy Commissioner of the Bureau of Indian Affairs David
Matheson which threatened termination by Congress or the courts if the tribe defined membership
in such a way as to “‘self-determin[e]’ its sovereignty away.”)).
132
See Section II.B, supra.
130
343
and increased sovereignty over reservations would be more politically palatable.
The tribe would still have to be wary of several of the problems described above,
but focusing on internal political participation rather than external political influence
could alleviate some of the federal government’s potential concerns.
6. Distributing benefits
An important concern in designing membership rules is how membership
changes will affect the distribution of tribal benefits like social services and per
capita payments. In particular, Professor Goldberg notes that one hesitancy
current tribal members might have with extending membership is that many of the
current members or their ancestors endured hardships to remain with the tribe and
keep the tribe alive. 133 They may feel that whatever benefits they are receiving
now are their reward for staying with the tribe, while others left to seek
opportunities elsewhere or assimilate, and are now trying to return and claim the
benefits for themselves. 134 These are valid concerns, and there are no easy
answers. However, relying solely on blood quantum might miss the point and
include new arrivals with higher blood quantum while excluding some of those that
have always been there, or their children. Additionally, trying to block newcomers
from enrolling could lead to media or political problems. 135 This is an important
consideration, and one that will play an important role in the discussions of any
tribe that seeks to change its membership requirements.
7. Extending tribal jurisdiction
A common goal for tribes is to consolidate control over their reservations
and the people that live there, in order to better govern and ensure peace and
safety. Tribes should consider their goal when designing membership criteria, as
well-designed rules for enrollment can directly and indirectly increase tribal
jurisdiction. 136
8. Internal and external perception
Like other kinds of constitutional reform, changing or reevaluating existing
membership requirements can change the way tribal members think about the
133
Goldberg, supra note 101, at 465-66.
Id. at 465-66.
135
Id.
136
Section II.B, supra.
134
344
purpose of the tribe and their relationship to it. A fair process of reform that reflects
cultural values has the intrinsic value of increasing the legitimacy of the tribal
government in the eyes of its members. Undertaking the reforms to bring
membership criteria in line with traditional understandings could also give
members a sense that the tribe is more in control of its own destiny.
External perception is indirectly tied to the political influence discussion
above, but applies even more broadly. Perception of a tribe as being more or less
inclusive or more or less culturally cohesive can impact the way state and federal
governments, as well as non-Indians behave with regards to the tribe. There are
many misconceptions about tribes, and if tribes can seem like more legitimate
governments that deserve sovereignty, they will be more likely to make political
gains. Additionally, a greater respect for tribal sovereignty in a community might
encourage individual non-members to respect tribal laws and decisions, even
when the tribe lacks formal legal jurisdiction.
B. Alternative requirements for tribal enrollment
There are several common features in tribal citizenship rules, but they are
not the exclusive possibilities. Tribes can go beyond these or use various forms
and combinations of requirements in order to craft membership criteria that is
appropriate to the specific tribe. The common requirements this paper will analyze
include blood quantum, lineage requirements, and adoption procedures, as well as
birthplace requirements as part of a broader residency analysis. Another common
requirement is no dual citizenship, 137 which seems like a secondary factor that will
depend on the nature of the tribe and the tribe’s decision with regards to the other
criteria and its relationships with other tribes. In addition to these common
requirements, this section will look at cultural connection criteria. The next section
will look at potential solutions to some of the tensions that emerge in designing
membership criteria.
1. Blood Quantum
The advantages of a blood quantum requirement include the ease of
application and the rough approximation of tribal cultural connection. However, as
discussed above, blood quantum requirements emerged from unsettling federal
137
Goldberg, supra note 101, at 467.
345
policies. They might also lead to dangerously exclusionary ways of thinking about
membership, and risk extinguishing the tribe.
There are two common forms of blood quantum requirements: those based
on tribal ancestry and those based on Indian ancestry generally. 138 Blood quantum
is one of the simplest requirements to apply and does approximate the way
membership worked pre-contact (when everyone was 100% Indian). It also limits
membership to kin, and encourages people to marry and reproduce within the
tribe, both of which may in turn encourage greater cultural participation.
Additionally, people who have a higher percentage of Indian blood are more likely
to look Indian, which could lead to greater affinity with their tribe and Indians
generally. 139 These requirements are also well-established for many tribes, having
existed since at least 1934. There are a number of problems with using blood
quantum criteria, however. The historical use of blood quantum, and the way it
was incorporated by the federal government into tribal constitutions, makes its
application suspect. As Professor Goldberg notes, “tradition” is not static, so
discarding blood quantum solely for being “nontraditional” is somewhat antithetical
to the idea that tribes are living cultures. 140 However, the historical roots of blood
quantum are dangerous, and taint their contemporary application. 141 Just as blood
quantum was used to divide up resources for tribal members, the continued use of
blood quantum encourages tribal members to think of membership as a limited
resource, like money, rather than as a cultural and governmental entity. 142 Blood
quantum rules encourage selfish exclusion instead of forward thinking inclusion.
This is not true for all tribes, and those with a long historical tradition of defining
membership this way should not feel compelled to change. Those tribes that only
adopted these rules in 1934, however, should examine their culture and traditions
and see if blood quantum is consistent and necessary to their perception of tribal
138
Id. at 467.
Cf. Bruce Ackerman, Beyond Carolene Products, 98 HARVARD L. REV. 713 (1985) (arguing that
being a member of a recognizable and insular group could create solidarity and improve political
power).
140
See Goldberg, supra note 19, at 459.
141
See Russel Lawrence Barsh, The Challenge of Indigenous Self-Determination, 26 U. MICH. J.L.
REFORM 277, 301-02 (1993).
142
Id at 305. Disenrollments are some of the most salient examples of this perspective on tribal
membership. While a tribe may have legitimate reasons to disenroll members, many of the
disenrollment decisions seem to be linked to cutting membership numbers to increase benefits for
the remaining members. This version of events has also been picked up by the media and
contributes to negative external perceptions of tribes. See, e.g., James Dao, In California Indian
Tribes With Casino Money Cast Off Members, N.Y. TIMES, December 13, 2011, at A20.
139
346
belonging. This is not to say that race can have no legitimate role in determining
membership, just that using it as the sole criterion often fails to capture elements
that are likely more important to long term tribal survival. Additionally, as
mentioned above, a strict blood quantum combined with high rates of
intermarriage between Indians and non-Indians could lead to the extinction of the
tribe.
2. Lineal Descent
Lineal descent rules also capture many of the benefits of blood quantum
requirements, such as kinship and ease of application, but risk weaker cultural
connections and the perception of the tribe solely as a financial resource. Like
blood quantum, there are multiple forms of lineal descent rules that tribes use
today. 143 Some tribes require enrollment of a single parent, some require a
specific parent to be enrolled, some require both parents to be enrolled, and some
just require the enrollment of an ancestor on a particular roll compiled by the
federal government. The latter category in particular is a very loose requirement
and employed by some of the largest tribes today. 144 As mentioned above, these
looser rules have led to greater external political clout for these tribes by
increasing membership. There will also be a lesser chance of the tribe eventually
running out of members through intermarriage, unless the rule is that both parents
must be members. A disadvantage of lineal descent is that it could lead to a
greater percentage of the population having weak ties to the reservation and the
tribe. Logically, the greater the geographic dispersion of tribal members, the
greater the likelihood that tribal laws and expenditures will reflect individual
interests rather than tribal interests. People living off the reservation will be more
inclined to vote for per capita distribution of funds than investment in tribal
infrastructure, for instance. Once again, this leads to a view of the tribe as a piggy
bank, which is almost certainly not conducive to the long term survival of the tribe.
Another problem is that descent rules alone fail to create any kind of necessary tie
to the tribe other than applying for and receiving membership. Under blood
quantum rules, members are encouraged to marry other members, and therefore
spend time near the reservation interacting with other tribal members. This
investment can encourage members to be more tribally minded. Under loose lineal
descent rules, however, there is no such incentive.
143
See supra note 19, at 467.
CONSTITUTION OF THE CHOCTAW NATION OF OKLAHOMA, July 9, 1983, art. II; CONSTITUTION OF THE
CHEROKEE NATION, 1999, art. IV.
144
347
A problem shared by blood quantum and lineal descent rules are the
negative reaction various outsiders have to race based rules for membership. The
Supreme Court’s race-blind equal protection jurisprudence, for instance,
demonstrates a level of hostility to differential treatment of groups based on
race. 145 Additionally, many people are concerned with special treatment of Indians,
and do not like that they receive special rights. 146 These considerations counsel
against the use of race as the sole criteria for tribal membership.
3. Residency
Using residency on or near the tribal land as a membership requirement
helps ensure a cultural connection, as well as encouraging members to think
about the reservation as a whole rather than focusing on their separate individual
desires. Even if members are voting entirely in self-interest, if they live on the
reservation it is more likely to be in their interest to choose investment in
infrastructure over per capita distribution of funds. There are shortcomings to a
strict residency requirement, however. As Professor Goldberg notes, residency
requirements could prevent people from leaving for legitimate tribal reasons,
especially if they would lose membership or rights while absent from the
reservation. 147 In addition, tribal governments as landowners have the power to
control who resides on the reservation, 148 which could lead to exclusions of certain
people based on illegitimate political reasons. Additionally, people who live just
outside of the reservation might be just as interested in cultural affairs as those on
the reservation, but would be excluded by a rule that requires residency within the
reservation boundaries. These concerns could be dealt with by carefully
constructed rules based on the individual circumstances of each tribe, but the linedrawing issues they present may make strict residency requirements untenable,
as people might be unable to agree on how to implement them.
Birthplace requirements are a subset of residency requirements. Like other
residency requirements, they attempt to capture the value of having people remain
145
See, e.g., Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2418, 186 L. Ed. 2d 474 (2013).
See, e.g., Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty AbuseWisconsin, Inc., 781 F. Supp. 1385 (W.D. Wis. 1992). See also, Terri Hanson, Anti-Indian CERA
Doesn’t Like the Law of the Land in United States, or Us, Apparently, INDIAN COUNTRY TODAY MEDIA
NETWORK, March 28, 2011, available at,
http://indiancountrytodaymedianetwork.com/2014/03/28/anti-indian-group-works-underminesovereignty-least-15-states-154225 (last visited Oct. 10, 2014).
147
148
Id.
146
348
near the reservation. Instead of being aimed at the individual member, however,
they are aimed at the parents, who will be incentivized to live near the reservation,
or at least go to the reservation for the child’s birth. If the requirement is that the
parents be domiciled on the reservation, there is the potential advantage that the
child will be more likely to be raised on the reservation and with the tribal culture,
but there is also no guarantee that the child will maintain that connection later in
life.
4. Adoption
Several tribes have adoption or naturalization procedures for non-members
to become members of the tribe, but the requirements for adoption vary from tribe
to tribe. Professor Goldberg lists several varieties of requirements. 149 Some tribes
seem to have no Indian blood requirement, at least in the constitution, 150 while
others do. 151 Some tribes also have additional requirements in order to be
adopted, such as residency 152 or spousal connection. 153 Adoption procedures
have the advantage of being flexible and taking the most information into account,
but a reliance solely on adoption proceedings to fix other errors in the system is
unwise. These proceedings will likely have a great deal of discretion built in, 154
which could be abused to exclude personal or political enemies of the person or
persons in charge of deciding adoptions. If appeals of adoption decisions are used
to combat these potential errors, it could greatly increase the burden on tribal
courts or administrative bodies.
5. Cultural connection
Complications in measuring and evaluating “cultural connection” could
make it difficult to agree on a standard for determining membership. Residency,
discussed above, is often used as a kind of proxy for cultural connection, but there
are other ways of testing an individual’s ties to the community. Other factors
149
See supra note 19, at 463 n.132.
CONSTITUTION OF THE NEZ PERCE TRIBE, Art. IV, § 2.
151
CONSTITUTION OF THE YAVAPAI-APACHE NATION, 1947, Art. II, § 2.
152
CONSTITUTION OF THE LOWER BRULE SIOUX TRIBE, 1986, Art. II, § 2.
153
CONSTITUTION OF THE FORT MCDERMITT PAIUTE AND SHOSHONE TRIBE, 1936, Art. II, § 2(b).
154
The Constitution of the Yavapai-Apache Nation, for instance, says that the Tribal Council will
have sole discretion in adopting new members, except for spouses and adopted children of tribal
members, in which case the decision can be overturned if it is arbitrary and
capricious. CONSTITUTION OF THE YAVAPAI-APACHE NATION, 1947, Art. II, §2(b)-(c). Additionally,
tribes might be reluctant to remove discretion from these decisions, because it would allow nonmembers to basically force the tribe to accept them, which might not sit well with tribal members.
150
349
include: language fluency, community service, elders’ certification, and ceremonial
participation. 155 There could also be a civics test, ala the United States
naturalization process, 156 which could test familiarity with tribal culture, history, and
laws. Any combination of these factors could be used, based on the circumstances
of the tribe, and it could take the form of a test or cultural knowledge, or a checklist
of requirements, or both. Using cultural criteria has the benefits of ensuring the
tribal members are knowledgeable about the tribe, and the investment of learning
about the tribe could inspire them to be more civic minded. Additionally, it has the
obvious advantage of helping to preserve tribal culture and language against
external influences. However, there are a number of potential issues with using
cultural affiliation as the test for citizenship.
Like adoption, the question of who will administer a cultural test and the
possible appeals process for that test are difficult to resolve, and a tribe wishing to
implement a test will have to consider administrative costs against the costs of
wrongfully excluding people from the tribe. Furthermore, designing these tests
could be controversial, as culture and tradition are not static, and different tribal
members might have different ideas about what it means to be a member of a
given tribe. These are not insurmountable obstacles, but they may delay or disrupt
the process of membership reform.
One issue that Professor Goldberg notes is that the criteria that could be
used as proxies for cultural connection, e.g. residency, language fluency, are
“unnervingly” similar to the criteria set forth in the controversial “existing Indian
family” test some courts have used in applying the Indian Child Welfare Act. 157
Courts applying the “existing Indian family” test look at various factors to determine
whether a child is “Indian enough” to trigger ICWA provisions, contrary to the
language of the statute and congressional intent. 158 The test is applied in a
substantial minority of states, and the Supreme Court avoided ruling on the
doctrine in its recent ICWA case. 159 “Existing Indian family” doctrine devalues the
155
Civics (History and Government) Questions for the Naturalization Test, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, (2011),
http://www.uscis.gov/sites/default/files/USCIS/Office%20of%20Citizenship/Citizenship%20Resourc
e%20Center%20Site/Publications/100q.pdf.
156
157
COHEN’S HANDBOOK, supra note 12, at § 11.07.
159
Id. (Listing Alabama, Indiana, Louisiana, Missouri, and Tennessee, as states that apply the test;
and Alaska, Arizona, Idaho, Illinois, Kansas, Michigan, Minnesota, Montana, New Jersey, New
158
350
opinion of the tribe as to the Indian status of the child, and usurps tribal and
federal authority for state authority. Hesitancy to employ a test that resembles the
“existing Indian family” test is therefore understandable. However, as Professor
Goldberg notes, “what seems presumptuous when undertaken by state courts may
be less troubling when the deciding authority is a tribal enrollment board.” 160
Additionally, developing their own culturally tailored requirements would allow
tribes to set authoritative criteria for their own tribes, rather than leaving it to state
courts to decide. Lack of federal action 161 means that many states will continue to
employ the doctrine and tribes having clearly developed their own criteria may
encourage state courts to defer to tribal judgments based on those criteria.
Perhaps more importantly, even if the requirements are not ultimately used for
enrollment purposes, the development of culturally-based criteria could help in
these cases, and could help a tribe define its cultural goals.
Deciding who would be allowed to prove their cultural connection is another
potential difficulty, as some tribes might be inundated with potential members
trying to get a share of the gaming revenues. 162 Professor Goldberg also notes
that applying an expedited version of the test to those with family ties, or giving
them special treatment on the test, would bring race back into the equation, which
some scholars oppose. 163 These challenges seem to counsel more for adopting
thoughtful, nuanced rules, rather than for rejecting cultural connection criteria
completely. Requiring recommendations from elders, or residency, for instance,
would prevent a large number of false applicants, as would a system that delays or
denies per capita payments to members who join this way, which will be discussed
more later in this paper. Additionally, while some critics might oppose the use of
race at all in determining tribal membership, giving preferential treatment to
biological Indians would make sense, as they would be presumptively more likely
to have cultural affiliation that might not be captured by whatever cultural
connection test is employed. Giving preference to those with tribal blood while
keeping some form of membership open to a broader population would seem to
capture many of the legal benefits discussed in Section II.
York, North Dakota, Oklahoma, South Dakota, Utah, and Washington as states that have rejected
the test). See also Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013).
160
See Goldberg, supra note 19 at 463.
161
COHEN’S HANDBOOK, supra note 12, at § 11.07 (citing accounts of failed legislation to either
affirm or reject the doctrine). See also Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013).
162
163
Id. at 463-634.
351
Another problem discussed by Professor Goldberg is the possibility of
disenrollments based on lack of cultural connection, or lack of such connection for
a period of time, or a generational gap. 164 Furthermore, some tribes believe that
one cannot lose connection to their tribe, because they are born with it and that
connection stays with them even after death. 165 Both of these concerns are better
left to the tribes on an individual basis, and do not counsel against tribes adopting
cultural criteria based on their own traditions. To reiterate, the paramount concern
in defining membership criteria for tribes is the tradition and culture of the
individual tribe. Each tribe must arrive at its own decisions about what it means to
be a member. Ultimately, incorporating some sort of cultural connection test is a
good strategy for tribes to help maintain cultural survival, and encourage more
participation in cultural activities.
C. Solutions to Design Problems
In order to resolve some of the tensions that were discussed above, tribes
can combine existing requirements, or create new criteria that balances traditional
goals with modern circumstances. There are several potential solutions including:
separate voting districts for off-reservation and on-reservation members, a “rightof-return” for off-reservation individuals, and severing benefits from tribal
enrollment. 166 Professor Goldberg mentions that some of the criteria might have
the effect of creating “multiple categories of citizenship,” 167 which as a general
principle merits further discussion. Professor Goldberg also mentions expanding
adoption procedures, 168 which is discussed above.
1. Separate voting rights for off-reservation and on-reservation
members
Separate voting districts can allow non-residents of the reservation to
maintain their connection with the tribe, while keeping most of the tribal control in
the hands of reservation residents. An example is a recent Cherokee constitutional
convention, where the draft constitution has now been adopted as the Cherokee
164
See Goldberg, supra note 19, at 464. (Disenrollments are already a problem for some tribes
under existing blood quantum requirements, as discussed above).
165
Id.
166
See Id. at 467-471.
167
See Id. at 467.
168
352
Constitution. 169 Under the Cherokee Constitution, 15 of the 17 legislative seats are
apportioned for Cherokees residing in Oklahoma, while the remaining two seats
are elected by non-residents, 170 who comprise about 40% of the Cherokee
population. 171 This measure helps ensure that the legislature is focused internally
on developing the tribe and its infrastructure, while giving a voice to the nonresident Cherokee and helping maintain their connection to the tribe. This is an
elegant solution for the Cherokee, but it may not work for all tribes. For some, nonresident members may feel that their voices are just as important as those on the
reservation, and they should not be allocated such a small proportion of the votes.
At the same time, residents may feel that only those who are willing to maintain
close ties to the tribe should be allowed to participate in tribal government.
Additionally, this approach fails to capture the benefits of residency requirements
that strongly incentivize interaction with the tribe and the potential that has for
investment in tribal culture and development. However, it is probably better than
no residency requirement in terms of cultural preservation, and provides a degree
of flexibility for tribal members who might leave for legitimate reasons. Tribes that
are interested in this kind of tier voting system should also consider how much
weight to give non-resident voters for referendums, or constitutional amendments
that require popular vote.
2. “Right-of-return”
Under a reactivation system, it seems like those living off the reservation
would lose their normal citizenship in the tribe, but retain the right to reactive it
easily when they returned, and if they met certain criteria. 172 Like off-reservation
voting, this might help maintain ties to the tribe, although it could lead to confusion
and alienate people who leave the reservation for college. It seems like a better
solution might be to consider them members in most regards but remove or restrict
their ability to vote.
3. Severing benefits from tribal enrollment
Separating tribal enrollment from the automatic receipt of benefits can help
ensure that members choose to identify with the tribe for more legitimate purposes
than monetary reward, and encourage a focus on tribal development and
169
See Id. at 468; CONSTITUTION OF THE CHEROKEE NATION, 1999, art. VI § 3.
CONSTITUTION OF THE CHEROKEE NATION, 1999, art. VI § 3.
171
172
See id. at 469.
170
353
investment. Professor Goldberg discusses a system where tribal enrollment is not
necessary to receive tribal benefits. Core tribal decisions can be made by those
with the strongest cultural connection, while a broader class can receive benefits,
i.e. the children of tribal members who do not qualify for membership. 173 Goldberg
notes however, that this might only extend to tribal benefits, and that the federal
government might not provide services to those who are not members of the
tribe. 174 One solution Goldberg suggests is to call everyone tribal members, but
only allow some to vote. 175 This could have a negative effect, however, if the
federal government decides it only wants to provide services to traditional tribal
members, it might stop deferring to tribal definitions of membership and adopt
criteria to decide who is Indian enough to receive benefits. Government
intervention is a potential threat with any system that divides up rights based on
tiered citizenship, but it is particularly acute when benefits are being provided
without the right to vote, as it might be seen as an attempt to game the federal
system.
Another possibility is the inverse system, where certain members are
allowed to vote but not partake in certain benefits. Some tribes already have a
form of this, such as the Colville Confederated Tribes, which allows only
descendants of certain constituent tribes to hunt or fish in certain areas. 176 It could
be hard to maintain an inverse system, since the voters might just vote to include
themselves as beneficiaries, but incorporating the requirement into the
constitution, or requiring a 2/3 vote or some similar provision, could possibly
alleviate this problem, depending on tribal demographics. Expanding voting rights
has several potential advantages. If voting was universal but per capita payments
were conditioned on tribal residency, for example, non-reservation voters would
have no personal incentive to vote for per capita payments, and on reservation
votes would have to choose between two options that both benefit them. This
would make tribes more likely to invest in important infrastructure, while keeping
the decision somewhat democratic and legitimate. Another possibility would be to
limit per capita payments to members with sufficient blood quantum, while
extending voting rights to others who joined through a cultural test. This would
discourage people from attempting to join a tribe just to receive monetary
173
Id. at 469-70.
Id. at 470.
175
Id. at 470.
176
Icicle Creek Fishery Opening, resolution 2014-250, 2014 Colville Ps’quosa Spring Chinook
Fishing Regulations (2014),
174
354
payments, which is a concern when loosening membership requirements. 177 Since
voting membership would still be open to non-Indians, however, this scheme
would solve the “democratic deficit” problem and allow tribes to exercise greater
jurisdiction, even over those who choose not to become members. Finally, this
type of system would attract non-members with an actual interest in the tribal
cultural and governance, and allow those who have maintained certain ties but
insufficient blood quantum to maintain their tribal identity.
4. Tier levels of citizenship
The examples discussed above each involve giving different membership
rights to different individuals, based on a variety of factors. Thinking about
membership and tribal enrollment in terms of degrees of rights, as opposed to an
on/off switch where an individual is either in or out, can lead to much more
nuanced citizenship laws that capture many of the benefits with fewer of the costs.
The two main disadvantages of a tiered system are the possibility that the federal
government might decide to limit federal benefits to members that fit certain
criteria, and that the system might end up being overly complex. If the membership
system is too complicated it could seem overly legalistic and lose its cultural
character, and members might start to think of themselves as belonging to a
category of beneficiaries, rather than as members of a tribe. As long as tribes are
conscious of this potential problem, however, they should be able to avoid it, by
tying and framing the requirements to the traditions and goals of the tribe.
Some tribes already have different levels of membership rights that vary
according to different membership criteria. The Choctaw Tribe of Oklahoma, for
instance, allows voting by all lineal descendants of people who were on the Dawes
Rolls, but only allows members with at least ¼ blood quantum to hold the positions
of Chief, Assistant Chief, or Tribal Council Member. 178 Residency is also a
common requirement for holding office, although this is more often thought of in
terms of geographic representation rather than as an indication that the candidate
will be more culturally connected. 179
These establish precedent for tiered levels of membership rights, according
to proxies for cultural affiliation. The same theory could be extended to benefits,
177
CONSTITUTION OF THE CHOCTAW NATION OF OKLAHOMA, July 9, 1983, art. II.
179
See, e.g., COLVILLE TRIBAL CODE, 8-3-60 (1979).
178
355
such as per capita payments, which should ease some of the concerns with
expanding tribal membership. Federal Regulations require that tribes seeking to
distribute per capita payments to a subset of the population must justify their
decision and show that it is “reasonable and not arbitrary” and that it does not
violate the Indian Civil Rights Act. 180 The Indian Civil Rights Act contains a
guarantee of equal protection, like the 14th Amendment, 181 which means that the
tribe might have to justify its action according to a similar standard, i.e. the strict
scrutiny standard that is normally applied to race-based classifications. 182
However, there are several answers to the protection concern. First, the Bureau of
Indian Affairs (BIA) has generally left enforcement of ICRA provisions to tribal
courts, rather than getting directly involved, 183 which is in-line with congressional
policy as explained in Santa Clara Pueblo v. Martinez. 184 Accordingly, the BIA
might be willing to defer to tribal judgments regarding the validity of such a plan,
particularly since it is tied to tribal membership determinations which are firmly in
the realm of the tribe’s sovereignty. 185 Second, blood quantum has been used to
draw lines in federal and tribal law for a long time, and might be treated as a
special case that does not trigger strict scrutiny analysis. 186 Third, even if the
determination is subject to strict scrutiny, it does serve a compelling government
interest, as discussed above, and the potential infeasibility of finding other ways to
deter newcomers who are only interested in per capita payments might mean that
the classification is sufficiently narrowly tailored to survive strict scrutiny.
Essentially, if full strict scrutiny is applied, the burden would be on the tribe to
demonstrate that “available, workable race-neutral alternatives do not suffice,” 187
which is generally a very high bar, but not necessarily insurmountable.
CONCLUSION
This paper had three goals. The first was to explore what legal road-blocks,
if any, would prevent tribes from enrolling non-Indians as members. It appears that
tribes would have the power to begin enrolling non-Indians, without any further
action needed from Congress. The second was to highlight and begin a
180
25 C.F.R. § 290.14 (2001).
25 U.S.C. § 1302(a)(8) (2010) (ICRA).
182
See, e.g., McLaughlin v. Florida, 379 U.S. 184 (1964); Fisher v. Univ. of Texas at Austin, 133 S.
Ct. 2411, 2420 (2013).
183
COHEN’S HANDBOOK, supra note 12, at § 14.04[2].
184
185
Id.
186
Krakoff, supra note 75. (Arguing that all use of Indian race has some political aspect).
187
Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2420 (2013).
181
356
conversation about some of the legal implications of expanding tribal membership
criteria. In particular, the potential that expanded criteria would have for bringing
tribes closer to a pre-Oliphant level of tribal criminal jurisdiction. The final goal was
to expand on the discussion of the policy implications that tribal membership
decisions would have for tribes, and look at ways to reconcile competing
objectives. By combining different membership requirements, and tying certain
benefits and rights to certain criteria, tribes can achieve a more flexible, nuanced
approach to tribal membership that more closely reflects the goals of the specific
tribe. As discussed above, tribes that seek to redefine their membership rules
must focus on their own culture and traditions. However, there are many legal and
political consequences that would emerge from changing enrollment criteria,
thoughtful constitutional reform should take those implications into account.
357
American Indian Law
Journal
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Seattle University School of Law
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URL:
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academics/journals/ailj
The American Indian Law Journal is published by Seattle University Law School
students. The Journal publishes two issues each year. Previous issues are
available online at the above URL link.
The Journal welcomes the submission of articles and comments addressing Native
American law. Please email us at [email protected] for more submission
information.
Supported by the Center for Indian Law & Policy

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