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American Indian Law
Journal
Volume II, Issue I • Fall 2013
“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 2013 – 2014
Editor-in-Chief
Shannon “Shay” Story
Managing Editor
Jeanette “Jenny” Campbell
Technical Editor
Executive Editor
Darko Slugić
Erin White
Articles Editors
Staff Member
Liz Leemon
Charisse Arce
Events Coordinator
Nga Nguyen
Robin Sand
2L Staff Editors
Jessica Buckelew
Christopher Edwards
Jillian Held
Fabio Dworschak
Leticia Hernandez
Jonathan Litner
Nick Major
Kevin Margado
Jocelyn McCurtain
Nancy Mendez
Callie Tift
Faculty Advisors
Catherine O’Neill
Eric Eberhard
Research Advisor
Kelly Kunsch
Table of Contents
1. An American Indian Supreme Court
Eugene R. Fidell …...………………………………………………............1
2. The Utility of Amicus Briefs in the Supreme Court’s Indian Cases
Matthew L.M. Fletcher ……………………………………………………38
3. Native American Winters Doctrine and Stevens Treaty Water
Rights: Recognition, Quantification, Management
Rachael Paschal Osborn ….……………………...…………………......76
4. Tribal Advocacy and the Art of Dam Removal: The Lower Elwha
Klallam and the Elwha Dams
Julia Guarino …..……………………………..…………….…………....114
5. The Washington State Indian Child Welfare Act: Putting the Policy
Back Into the Law
William N. Smith and Richard T. Okrent ………….…………………..146
6. Asserting Treaty Rights to Harness the Wind on The Great Lakes
Gerald Carr ………………………………………………………………173
7. The Unextinguished Militia Power of Indian Tribes
Seth Fortin………………………………………………………………..210
8. Until Yesterday Deterring and Healing the Cyclical Gender Based
Violence in Indian Country
Samantha Ivette Morales……………………………………………….275
9. Political Cooperation and Procedural (In)Justice: A Study of the
Indian Reorganization Act
Sam Thypin-Bermeo……………………………………………………..300
AMERICAN INDIAN LAW JOURNAL
Volume II, Issue I – Fall 2013
AN AMERICAN INDIAN SUPREME COURT
Eugene R. Fidell*
INTRODUCTION
In 1978, a judge of the United States Court of Military Appeals 1
described military justice as the third system of American criminal law, and
noted that the Uniform Code of Military Justice governed more people
than live in eighteen states. 2 Actually, there is a fourth system of American
law: American Indian tribal courts. Unlike courts-martial, tribal courts also
have civil jurisdiction. Although these courts are better known than they
were in 1978, collectively they serve more people than several states, are
studied at a growing number of law schools, and recently obtained
important legislation expanding their criminal jurisdiction. 3 However, they
still do not cast the kind of shadow they should over the landscape of
American law. The current state of affairs presents an opportunity for
Indian tribes. As I will explain, the creation of an American Indian Supreme
Court would strongly serve sovereign tribal interests.
*
Senior Research Scholar in Law, and Florence Rogatz Visiting Lecturer in Law, Yale
Law School. I am indebted to the students in my Federal Indian Law and American Indian
Tribal Law classes and Sam Deloria, Richard Du Bey, Matthew L.M. Fletcher, Joshua A.
Geltzer, Linda Greenhouse, Peter Jaszi, BJ Jones, Ezra Rosser, Catherine T. Struve,
Gerald Torres, and Luther A. Wilgarten, Jr. for important insights and challenging
questions; to the staff of the Lillian Goldman Law Library for lightning-fast assistance; and
to the Federal Bar Association’s Indian Law Section for the opportunity to share my early
thoughts on this topic at Pojoaque. See Eugene R. Fidell, An American Indian Supreme
Court: Need, Benefits, Costs, in FED. B. ASS’N, 36TH ANN. INDIAN L. CONF., BEST
PRACTICES AND CONTINUING CHALLENGES IN FEDERAL INDIAN LAW, COURSE MATERIALS 381
(2011).
1
Created in 1950, the court has been known as the United States Court of Appeals for
the Armed Forces since 1994. See National Defense Authorization Act for Fiscal Year
1995, Pub. L. No. 103-337, § 924(a)(2), 108 Stat. 2663, 2831 (1994); Special Session for
Court Name Change, 42 M.J. 9 (1994).
2
William H. Cook, Courts-Martial: The Third System in American Criminal Law, 3 S. ILL.
U. L.J. 1 (1978).
3
Recent legislation has widened tribal jurisdiction to include non-Indians for certain
offences. Compare Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), with
Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014).
1
This article will begin with an overview of the place of tribal courts in
the American judicial landscape, particularly their relationship with federal
and state court systems. It will then describe a number of proposals for a
nationwide tribal court. Finally, it will set forth a proposal for a nationwide
American Indian Supreme Court, identifying a number of procedural and
structural issues—some large, some not so large—that would have to be
addressed in bringing such an entity into being.
I.
OVERVIEW AND HISTORY
A. The Tribal Judiciary and Its Relationship With Federal and
State Courts
Roughly 300 of the 566 federally acknowledged Indian tribes have
courts or dispute resolution systems. 4 They dispose of thousands of cases
every year. These courts are as varied as the tribes they serve: some
tribes have traditional courts, some have courts pursuant to constitutions
approved under the Indian Reorganization Act of 1934 (IRA), some rely on
pre-IRA Courts of Indian Offenses,5 some share trial courts with other
tribes, some participate in inter-tribal courts, and many have appellate
courts (either their own or inter-tribal ones).6 However, at present, there is
no nationwide appellate tribal court.
4
See Tribal Courts and the Administration of Justice in Indian Country: Hearing Before
the S. Comm. on Indian Affairs, 110th Cong. 9 (2008) (statement of Hon. Roman J.
Duran, First Vice Pres., Nat’l American Indian Court Judges Ass’n); STEVEN W. PERRY,
U.S. DEP’T OF JUSTICE, CENSUS OF TRIBAL JUSTICE AGENCIES IN INDIAN COUNTRY , 2002
(Tina Dorsey et. al eds., 2005), available at www.bjs.gov/content/pub/pdf/ctjaic02.pdf
(last visited Jan. 5, 2014). According to Sen. Byron L. Dorgan, there were, in 2008,
“about 290 tribal district courts and more than 150 tribal appellate courts.” S. Hrg., supra
note 4, at 1. It is astounding that, as Professor Fletcher notes, “no one really knows how
many tribal courts there are . . . .” Matthew L.M. Fletcher, Am. Indian Legal Scholarship
and the Courts: Heeding Frickey’s Call, 4 CALIF. L. REV. CIR. 1, 10 (2013).
5
See 25 C.F.R. § 11 (2013). These are colloquially known as “CFR courts.” For a
general description of the methods of establishment of tribal courts see COHEN’S
HANDBOOK OF FEDERAL INDIAN LAW § 4.04[3][c][iv][B], at 265-66 (2012) [hereinafter
COHEN’S HANDBOOK].
6
These include the Southwest Intertribal Court of Appeals, see Christine Zuni, The
Southwest Intertribal Court of Appeals, 24 N.M. L. REV. 309 (1994); NORTHWEST
INTERTRIBAL COURT SYSTEM, http://www.nics.ws/ (last visited Jan. 5, 2014); INTERTRIBAL
COURT OF NORTHERN CALIFORNIA; INTERTRIBAL COURT OF SOUTHERN CALIFORNIA,
http://icsc.us/ (last visited Jan. 5, 2014); NORTHERN PLAINS INTER-TRIBAL COURT OF
2
Current federal law requires litigants to exhaust tribal court
remedies,7 including appellate remedies,8 before seeking relief in the
Article III courts. It does not, however, provide for direct appellate review
of decisions of any tribal court, trial or appellate, in any Article III court. 9
Tribal court prison sentences are, however, subject to district court habeas
corpus review pursuant to the Indian Civil Rights Act (ICRA). 10 ICRA
imposed important minimal procedural safeguards on tribal courts, 11 which
are not subject to the United States Constitution. 12 The Article III courts
may also exercise collateral review of decisions of tribal courts where a
litigant claims that the tribal court has exceeded its jurisdiction. State
courts enjoy no direct appellate jurisdiction over tribal courts.
B.
A Survey of Previous and Recent Proposals
Proposals for nationwide courts of one kind or another to deal with
matters of Indian law have a long history and no discernible results. By
way of preface to my proposal, it may be helpful to survey the earlier
suggestions. The idea seems to be a hardy perennial, although it has
morphed over time.
One such proposal appeared in an early version of the IRA.
Commissioner of Indian Affairs, John Collier, proposed to establish a
Court of Indian Affairs.13 However, Professor Vine Deloria Jr. asserts that
APPEALS, http://www.npica.org/ (last visited Jan. 5, 2014); INTERTRIBAL COURT OF APPEALS
OF NEVADA, see Jill Greiner, Appellate Law in Nevada Indian Country: The Inter-Tribal
Court of Appeals, Nevada Lawyer, Aug. 2011, at 16.
7
National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 856-57 (1985)
(federal question cases); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16-19 (1987)
(diversity cases).
8
LaPlante, 480 U.S. at 17.
9
Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 ARIZ.
ST. L.J. 113, 240 & n.444 (2002) [hereinafter Clinton, No Federal Supremacy]; Laurie
Reynolds, “Jurisdiction” in Federal Indian Law: Confusion, Contraction, and Supreme
Court Precedent, 27 N.M. L. REV. 359, 383 & nn.165-66 (1997).
10
25 U.S.C. § 1303 (2006).
11
25 U.S.C. § 1302 (2006), amended by TRIBAL LAW AND ORDER ACT OF 2010, Pub. L.
No. 111–211, § 234(a), 124 Stat. 2258, 2279 (2010).
12
E.g., Talton v. Mayes, 163 U.S. 376 (1896) (tribal court not subject to Fifth Amendment
requirement for indictment by grand jury).
13
Collier proposed to establish a ‘Court of Indian Affairs’ consisting of a chief judge and
six associated. This court would accept all cases that presently go into federal district
3
“[t]he Collier proposal was virtually dead after the March [1934 tribal]
congresses because it was difficult for Indians to conceive of and their
response was generally to oppose change.”14 Senator Burton Wheeler
wrote in a memoir “when I began looking over the original draft, there were
many provisions I didn’t like. It set up a special judicial system for the
Indians, with a federal judge to try only Indian cases. I thought it was a
crazy idea and had it thrown out in committee.” 15
courts and handle all inheritance and competency issues. It could also order the removal
of any case involving Indians in a state of tribal court, to be heard by the Court of Indian
Affairs. And it would be the national appeals court for the newly authorized tribal courts. It
would even handle penalty cases and all crimes for which a term of five or more years in
prison would be the penalty. State law, except where it was superseded by federal and
tribal law, would prevail in civil cases.
Judges would serve for a period of ten years and would be subject to removal with the
consent of the Senate for any cause. Appeals from the Court of Indian Affairs would be to
circuit courts, apparently based on the residency of the parties or the geographical origin
of the case. Ten special federal attorneys were to be appointed to advise and represent
Indian tribes and communities. The court would also be empower to hold hearings and
conduct cases wherever the case might arise, suggesting that Collier had in mind a court
that would periodically travel through Indian country and create dockets from the activities
in each region. Considering the complete chaos that we presently see in the field of
Indian litigation, Collier’s idea sparkles with brilliance. Most essential in his idea is the
degree of homogeneity this court would bring to federal Indian law. . . .
VINE DELORIA, JR., THE INDIAN REORGANIZATION ACT: CONGRESSES AND BILLS xiv (2002)
[hereinafter DELORIA, REORGANIZATION ACT] (discussing H.R. Doc. No. 7902, Sess. tit. IV
at 17-19 (1934)).See also 1 H. Comm. on Indian Affairs, Hearings on Readjustment of
Indian Affairs, 73rd Cong. 12-14 (1934). The provision for jurisdiction over appeals from
courts of “any chartered Indian community” appeared in § 6. H.R. Doc. No. 7902. It
applied only to “cases in which said Court of Indian Affairs might have exercised original
jurisdiction.” Id.
14
DELORIA, REORGANIZATION ACT, supra note 13, at xv. See also FRANCIS PAUL PRUCHA,
THE GREAT FATHER: THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS 959-63
(1995). According to Collier’s annual report for 1934, “[t]he entire title creating a special
court of Indian affairs was omitted and consideration of this subject adjourned until the
next Congress. In view of the chaotic state of Indian law enforcement, it is important that
this subject be given adequate consideration and that early remedial action be had.”
FRANCIS PAUL PRUCHA, DOCUMENTS OF UNITED STATES INDIAN POLICY 228 (2000)
(statement of Comm’r of Indian Affs., Ann. Rep. for 1934).
15
ELMER R. RUSCO, A FATEFUL TIME: THE BACKGROUND AND LEGISLATIVE HISTORY OF THE
INDIAN REORGANIZATION ACT 234 & n.18 (2000), (quoting BURTON K. W HEELER & PAUL F.
HEALY, YANKEE FROM THE W EST 315 (1962)). Cohen and Melvin Siegel appear to have
originated the idea for the court. RUSCO, supra, at 193, 197-98, 201.
4
However, Felix Cohen described the proposed court at the tribal
congresses that were part of Collier’s road show “This court would be of
help not only to the Indian communities which ask for a charter under this
act and receive charters, but also to the tribes which do not want charters.
We hope that all the Indians will be given a voice in the selection of the
judges. . . .”16
In short, this Court of Indian Affairs would have had appellate
jurisdiction over tribal courts, criminal jurisdiction over major crimes, and
judicial review jurisdiction over acts of the Commissioner of Indian
Affairs.17 It “would have jurisdiction over conflicts between Indian
communities and the outside world, if they arose,” and could order a tribe
to comply with its charter,18 but would not have jurisdiction over Indian
claims against the federal government. Those were to remain within the
jurisdiction of the Court of Claims.19 Despite calls for revival of the idea,
Congress found Collier unsalable and expendable, 20 and once Wheeler
killed it in committee, it sank without a trace.
16
DELORIA, REORGANIZATION ACT, supra note 13, at 43. Cohen also expressed,
I hope I have made it clear why we need a special federal court in addition to the local
Indian court. It is because there are many cases which are too important for a local court
to want or to have the right to handle. It is because you want a court of the highest
authority before which each community and each individual can bring any grievances that
may arise in the administration of the new policies of the administration. I ask you to
remember when you discuss any provisions of this bill that wherever there is a provision
which seems as if it might work an injustice on an Indian, that Indian will have the right to
come before this court and insist, first, on his constitutional rights as a citizen of the
United States, and, second, on his special rights as are given him by the charter of his
community.
Id. at 44.
17
The Court of Indian Affairs would deal, among other things,
with any disputes between the community and one of its officers. If the community shuts
out one of its members and doesn’t live up to its constitution and its charter, why then
that member, or the Secretary or the Commissioner acting on his behalf, can go into the
Federal Court and compel the community to act in accordance with its charter. . . . And if
any member of a community has any rights in the community he could go into this court
and get protection.
Id. at 124. The court “would come to the reservation and do its work right here where you
are.” Id. at 150; see also id. at 339.
18
Id. at 309.
19
Id. at 383.
20
See VINE DELORIA, JR. & CLIFFORD M. LYTLE, THE NATIONS W ITHIN: THE PAST AND
FUTURE OF AMERICAN INDIAN SOVEREIGNTY 131, 152-53, 162-63 (1984).
5
Even so, since the 1930s, a variety of proposals have been
advanced, some of which include a court that looks beyond a single
reservation. For example, in 1978, the National American Indian Court
Judges Association’s Long Range Planning Project offered suggestions
for inter-tribal appellate systems. The Association’s report recommended
that “[i]nter-tribal appellate systems should be established to insure a body
of appeals judges who have no conflict of interest.” 21 To be sure, there is
no suggestion here of a nationwide tribal appellate court, but there is a
recognition of the inherent limits of trying to dispense justice solely within
the metes and bounds and political framework of a single tribe.
As noted, several inter-tribal appellate courts have come into being,
along either regional or cultural lines. One notable idea that has, so far,
proven to be stillborn was a proposal for a Great Sioux Nation Supreme
Court.22 Nonetheless, that effort, which built on a “long-held cultural ideal
and vision of the tribes of the Great Sioux Nation,” 23 remains both timely
and useful for its authors’ identification of numerous critical questions of
judicial organization and administration, and options for their resolution.
21
NAT’L AMERICAN INDIAN COURT JUDGES ASS’N, INDIAN COURTS AND THE FUTURE 123
(1978). In addition to “the traditional way of the tribe,” the report noted three alternative
approaches:
1. An appeals panel could be made up of judges from one cultural unit, such as all
Apache reservations, and judges from reservations other than the one where the trial was
held would hear appeals. This approach insures cultural integrity.
2. Judges from a different reservation could hear an appeal. The judges should be aware
of tribal traditions. This method avoids conflicts of interest.
3. A permanent appeals court made up of present or past Indian judges or tribal elders
who are familiar with tribal traditions could be established.
Id.
22
See generally Frank Pommersheim & John P. LaVelle, Toward a Great Sioux Nation
Judicial Support Center and Supreme Court: An Interim Planning and Recommendation
Report for the Wakpa Sica Historical Society’s Reconciliation Place Project (The Great
Sioux Supreme Court), 17 W ICAZO SA REV. 183, 216 (2002), available at
http://www.upress.umn.edu/journal-division/Journals/wicazo-sa-review (last visited Jan.
6, 2014) [hereinafter Pommersheim & LaVelle]. The eligible tribes would have been the
eleven Sioux tribes in the Dakotas and Nebraska, eight tribes that signed the 1851 and
1868 Treaties of Ft. Laramie, and four other Sioux tribes in Minnesota. Id. at 216-17. For
background on the proposed court, see Steven J. Gunn, Compacts, Confederacies, and
Comity: Intertribal Enforcement of Tribal Court Orders, 34 N.M. L. REV. 297, 327-29
(2004). See also Omnibus Indian Advancement Act of 2000, Pub. L. No. 106-568, § 412,
114 Stat. 2868, 2905.
23
Pommersheim & LaVelle, supra note 22, at 216; see also id. at 224.
6
These include who will decide which tribes would be invited to participate,
what the court’s relationship would be to existing tribal appellate courts, its
jurisdiction, judicial selection and terms of office, governing law, regulation
of the bar, and enforcement of judgments. 24 The proposal set forth below
repeatedly reflects points raised by the Great Sioux Nation proposal’s
authors, Professors Frank Pommersheim and John LaVelle.
In 1990, Professor Robert Clinton proposed a Court of Indian
Appeals in light of his concern about “how to accommodate such review
with the sovereignty and autonomy of the tribes and nevertheless provide
some assurance that the tribal governments discharge their legal
responsibilities as part of the federal union.” 25 One of two admittedly
imperfect solutions he offered26 was “for the tribes, by collective action and
with the cooperation of Congress, or less preferably for Congress
unilaterally, to create a standing specialized Court of Indian Appeals.” 27
Professor Clinton felt his plan would dispel much of the criticism
surrounding tribal court judgments. 28
24
Id. at 217-224. Without an enforcement mechanism, a new court would be toothless: all
symbol and no reality.
25
Robert N. Clinton, Tribal Courts and the Federal Union, 26 W ILLAMETTE L. REV. 841,
889 (1990) [hereinafter Clinton, Tribal Courts].
26
The other was to extend the Supreme Court’s certiorari jurisdiction to final judgments of
tribal courts. Id. at 893 n.126. Professor Reynolds would also extend the certiorari
jurisdiction to any tribal court ruling that involved a federal question. Laurie Reynolds,
Exhaustion of Tribal Remedies: Extolling Tribal Sovereignty While Expanding Federal
Jurisdiction, 73 N.C. L. REV. 1089, 1153-54 (1995).
27
Clinton, Tribal Courts, supra note 25, at 890 & n.123.
Furthermore, this court would be composed of independent judges formally appointed by
the President but selected from and by the tribes. This court would serve as an appeals
court of last resort to hear appeals from all tribal courts in matters raising questions under
ICRA or other federal laws in which the tribal decision was adverse to the federal claim.
Id.
28
The judicial independence of such a court and its supra-tribal nature should ameliorate
the concerns of critics of tribal enforcement of the Indian Civil Rights Act who argue that
tribal court enforcement of claims made under that Act cannot finally be committed to
non-independent judges who sometimes are members of the tribe in question, who have
no judicial independence, and who are sometimes pressured or removed from office for
enforcing the mandates of federal law. Furthermore, staffing such a specialized court with
Native American judges, who are familiar with reservation life and the special legal
problems posed by the interface of Indian customary and written federal, state, and tribal
law, would obviate the objections of tribal critics of federal court review who fear that
federal court review will ignore special tribal problems and conditions and undermine the
7
The following year Michael Pacheco, an attorney in Oregon
suggested an Article III Federal Indian Court of Appeals (FICA) “to avoid
the inconsistent rulings rendered by the various federal courts on Indian
matters” by removing “those matters from the current federal appellate
review scheme.”29 Although there is much of value in Pacheco’s plan,
important aspects are, as I will elaborate below, unwise and contrary to
the larger interests of Indian tribes. In any event, nothing of substance
came of either his or Professor Clinton’s proposals.
sovereignty of the various Indian tribes. While such a specialized national Indian Court of
Appeals may be an appealing solution to many of the problems raised by critics of
Martinez, this solution is not without difficulty. Indian sovereignty does not exist for Indian
people as a whole; rather, it exists for each tribe. A single Indian Court of Appeals would
not have the familiarity with the history, traditions, customary law, or conditions of each
tribe needed to balance and accommodate its interpretations of the Indian Civil Rights
Act or other federal laws with the actual interests or problems faced by the tribe whose
decisions are at issue. Nevertheless, it is far more likely that a pan-tribal court composed
of Native American judges could perform that delicate role better than a federal district
judge who may never have set foot on an Indian reservation and who may have no
familiarity with tribal traditions or governance.
Id. at 892 (In the United States Supreme Court case Santa Clara Pueblo v. Martinez, 436
U.S. 49 (1978), the Court held that no federal cause of action could be implied under the
Indian Civil Rights Act of 1968 (ICRA) that would permit federal district courts to entertain
civil claims brought under the Indian Civil Rights Act).
29
Michael M. Pacheco, Finality in Indian Tribunal Decisions: Respecting Our Brothers’
Vision, 16 AM. INDIAN L. REV. 119, 154 & n.197 (1991). Eschewing any suggestion “that
Indian tribunals should be under a separate judicial system,” Id. at 154. his plan had nine
elements:
(1) Congress should create and maintain the FICA.
(2) The FICA should hear all appeals from Indian tribunals.
(3) FICA decisions may only be reviewed by the United States Supreme Court by writ of
certiorari.
(4) The FICA should be comprised of panels with seven Native Americans on each panel.
(5) A simple majority of the appellate panel should originate from the litigant tribe’s
membership. If two tribes are involved, one neutral tribe panelist should preside.
(6) The governing law should be that of the litigant tribes, the United States Constitution,
and the relevant states, in that order of preference.
(7) The judges for the appellate panels should be elected for life by the tribes’ members
with no requisite amount of Anglo legal training.
(8) The judgments of the FICA should be respected, receiving full faith and credit from all
the states and other tribes.
(9) The guiding principle of the FICA should be to assure that tribal rights are upheld
even when adverse to a federal claim. Technical violations of federal law should not
suffice for Supreme Court review.
Id. at 155. For Mr. Pacheco’s discussion of these features, see id. at 155-64.
8
Within a few more years, Michael C. Blumm and Michael Cadigan
put forward yet another variant, a more radical plan, with a view, quite
simply, to “eliminat[e] the [United States] Supreme Court from Indian
law,”30 and vest “an Indian Court of Appeals…with the jurisdiction taken
from the Supreme Court.”31 This new court’s jurisdiction “would be limited
to questions of federal law in cases where (1) any party is a member of a
tribe; (2) the issue concerns an Indian reservation, an Indian’s or tribe’s
land, water or other property, or involves an Indian government; or (3) the
dispute originates in Indian country” as defined in 18 U.S.C. § 1151. 32 Its
decisions would be exempt from review by the Supreme Court. 33
The basis for the Blumm and Cadigan proposal was that the
Supreme Court had become “hostil[e] to the concept of Indian
sovereignty.”34 While I agree that the Court has in recent decades been
(and continues to be), on the whole, hostile to tribal sovereignty, this
particular proposal would simply rearrange the judicial deck chairs. 35 It has
gained no traction in the twenty years since it was advanced. Moreover, it
has nothing to do with the law developed by tribal courts, or the purposes
served by my own proposal.
There have been at least three additional proposals of note. One
would have created a two-tier Inter-Tribal Business Court to adjudicate
disputes under a proposed Inter-Tribal Economic and Trade Treaty. The
court would have relied on the Northwest Inter-Tribal Court System, but
participating tribes could opt out and use their own courts for trials,
appeals, or both.36 The idea seems not to have gained traction.
30
Michael C. Blumm & Michael Cadigan, The Indian Court of Appeals: A Modest
Proposal to Eliminate Supreme Court Jurisdiction over Indian Cases, 46 ARK. L. REV.
203, 232 (1993).
31
Id. at 232.
32
Id. at 233 & n.172.
33
Id. at 234.
34
Id. at 206.
35
See John J. Tutterow, Annotation, Federal Review of Tribal Court Decisions: In Search
of a Standard or a Solution for the Problem of Tribal Court Review by the Federal Courts,
23 OKLA. CITY U. L. REV. 459, 490 (1998).
36
See generally Robert J. Miller, Inter-Tribal and International Treaties for American
Indian Economic Development, 12 LEWIS & CLARK L. REV. 1103, 1113, 1133-34 (2008).
The proposal to rely on the Northwest Inter-Tribal Court System reflects the likelihood
9
Another proposal was floated in 2010, when, in the course of
analyzing membership disputes, Professor Suzianne Painter-Thorne
urged tribes to “more fully assert their right to determine tribal membership
by creating wholly independent judicial bodies such as an intertribal
appellate court that would provide independent review of tribal
membership decisions. Such a system would also provide redress for
those aggrieved by enrollment decisions, quieting critics’ cries for federal
oversight.”37
Professor Painter-Thorne has in mind something less than a
nationwide institution38 when she suggests the need for an inter-tribal
appellate court system “operated by the tribes rather than an outside
government,” and notes that such a forum “would strengthen the credibility
of tribal courts and render any claim for federal review unnecessary.” 39
This inter-tribal appellate court has many benefits, such as, “parties’ cases
could be heard before a neutral panel, leading to a greater perception of
fairness and due process, and, thus, legitimacy of tribal enrollment
that only a few cases would arise under the treaty, making the “creation (and funding) of
an entirely new court . . . unfeasible and duplicate.” Id. at 1113.
37
Suzianne D. Painter-Thorne, If You Build It, They Will Come: Preserving Tribal
Sovereignty in the Face of Indian Casinos and the New Premium on Tribal Membership,
14 LEWIS & CLARK L. REV. 311, 346-47 & nn.330-31 (2010). She went on to say:
Ideally, an intertribal appellate court would oversee appeals from the courts of multiple
tribes, in much the way the United States Courts of Appeal[s] review appeals from district
courts in their constituent states. Each tribe would have the option to become a member
of an intertribal appellate court as an addition to their current tribal court system. The
courts would be staffed and operated by the tribes themselves. In so doing, these
“intertribal courts of appeal” would provide a level of judicial independence in the review
of membership decisions that critics charge is currently lacking under the current
structure of tribal governments and court systems.
Id. at 346-347.
38
Perhaps, Painter-Thorne envisions a nationwide institution that would function on a
regional basis:
A court system designed by the tribes could account for [tribal] diversity by organizing it
so that tribes with similar histories or cultures are grouped together. Further, because one
court would not be charged with reviewing decisions from all tribal courts, each court
would have oversight over fewer tribes, reducing the complexity that would be a natural
consequence if federal courts were involved.
Id. at 352 (emphasis added).
39
Id. at 349 & nn.347-48.
10
decisions. Consequently, the main complaint against tribal sovereignty
over membership decisions would be silenced.” 40
Finally, Professor Wenona Singel has broadened the inquiry with a
creative program for an “intertribal human rights regime in Indian
country.”41 Her proposal, which candidly acknowledges the significant
impediments it would face,42 entails the negotiation of norms to be
included in a treaty, as well as, “an institutional framework for
enforcement” that would reflect “examples set by the human rights
instruments and institutions established by the United Nations and other
regional systems.”43 The details of the enforcement framework will be
critical to a full assessment of the proposal, but her article strongly implies
that norm interpretation would be local, even if the norms themselves are
pan-Indian.44 Her focus is on negotiated norms, whereas the proposal
outlined below presupposes norms from various sources, but provides
new enforcement machinery. Thus, the two concepts are not only
incompatible, but actually complementary.
II.
THE PROPOSAL
I propose the creation of an opt in nationwide American Indian
appellate court, building on the experience of existing inter-tribal appellate
courts and the insightful work of earlier commentators. Professors
Pommersheim and LaVelle may have been ahead of their time when they
40
Id. at 349-50 & nn.352-53. She also stated:
[T]he creation of an intertribal appellate court system would not require a change to any
existing tribal government or court structure. Instead, it would provide an external layer of
review in addition to whatever court system the tribe currently possessed. In fact, the
structure of the court would be in tribal hands, ensuring continued tribal autonomy and
sovereignty over its courts and membership decision making process. Further, decisions
would be based on tribal law, tribal culture, and traditions. This would be possible
because such a court system would be created, staffed, and operated by the tribes
themselves. Consequently, such a court system would have a level of cultural awareness
lacking in federal court adjudications of claims involving membership disputes.
Id. at 351 & nn.364-69.
41
Wenona T. Singel, Indian Tribes and Human Rights Accountability, 49 SAN DIEGO L.
REV. 567, 608 (2012).
42
E.g., id. at 619-20 (noting tribal tendency to isolationism and concerns over
sovereignty).
43
Id. at 612.
44
Id. at 616-17.
11
outlined a Great Sioux Nation Supreme Court, and Professor Clinton may
have been doing the same when he proposed certiorari review of tribal
decisions by the Supreme Court of the United States. I believe now is the
time to set our sights even higher, although I am under no illusions that
success will come easily. 45 As Professor Pommersheim observed in
connection with his own dramatic proposal for fundamental change in the
legal environment within which tribes function, “this is the time to seize the
initiative to advance the dialogue.”46
A.
Potential Benefits
The potential benefits of creating a nationwide inter-tribal supreme
court would be significant and would far outweigh the costs.
The potential benefits include (1) an Indian-built, -funded, and staffed institution on an equal footing with federal and state courts;
(2) increased accountability of tribal officials; 47 (3) greater deference by
Congress and the federal courts to tribal court decisions; (4) reduced
danger of aberrant tribal court decisions that invite federal court
interference; (5) a model for improved judicial independence throughout
45
In 2009, James BlueWolf identified as one alternative approach to the improvement of
tribal governance the “creat[ion of] an American Indian Supreme Court to mediate all
approved appeals to mediate internal tribal issues.” James BlueWolf, Native Government,
SPEAK W ITHOUT INTERRUPTION (Mar. 4, 2009),
www.speakwithoutinterruption.com/site/2009/03/native-government/ (last visited Jan 13,
2014). He was not optimistic:
Yeah right! Like the Tribal governments would ever agree to that! In the meantime many
natives continue to live without equal protection under the law, yet are subject to all the
penalties and transgressions of both the American government and their own. It will be
left to our children and grandchildren to figure out a solution.
Id.
46
FRANK POMMERSHEIM, BROKEN LANDSCAPE: INDIANS, INDIAN TRIBES, AND THE
CONSTITUTION 257 (2009). Professor Pommersheim’s suggestion, id. at 307, for a
constitutional amendment to better protect “[t]he inherent sovereignty of Indian tribes”
from the shifting sands of congressional “plenary power” whim and Supreme Court
jurisprudence is more far-reaching than the present proposal, but requires a kind of
action that the Framers intentionally made extremely difficult. By comparison, the current
proposal asks relatively little of Congress, and the central elements of it could move
forward without congressional action of any kind, much less a constitutional amendment.
For an insightful review of Broken Landscape see Angela R. Riley, Book Review, 60 J.
LEGAL EDUC. 569 (2011).
47
See Singel, supra note 41, at 608-11 (noting adverse internal and external effects).
12
Indian Country; (6) independent adjudication, by an Indian institution, of
politically sensitive intra-tribal governance disputes and inter-tribal
disputes such as access to culturally significant sites, natural resource
allocation, child custody and other family law matters, and dualmembership issues; (7) reduced litigant recourse to federal and state
courts; (8) economies of scale in the delivery of appellate justice;
(9) encouragement of commerce with off-reservation interests by providing
a reliable body of tribal law; (10) accelerated development of judicial
expertise; and (11) accelerated development of a nationwide American
Indian bar. Less directly related to the administration of justice, but still
highly salient, in my view, is a final potential benefit: (12) affording this and
succeeding generations of Indian leaders the opportunity to engage in
institution building on a larger canvas than hitherto.
Some of these potential benefits are more likely to come to fruition
than others. Some will be considered insubstantial, irrelevant, downright
undesirable, or perhaps even insulting, depending on the observer. For
instance, the third outcome—greater congressional and judicial deference
to tribal court decisions—would be of great value, but, quite plainly, its
realization would be a function of the unpredictable shifting political winds
in Washington, and in the case of judicial deference, might take decades
to achieve, assuming it were to come about. That kind of time frame, it
seems to me, is unacceptable.
B.
Potential Drawbacks
As with any new endeavor, there will be new costs, including
unanticipated consequences. A new court will require capital and
operating expenditures for facilities and salaries. Unless the new court
takes the place of some existing inter-tribal appellate courts, adding a
further tier to the appellate structure 48 will add to the time and expense of
litigation under existing exhaustion doctrine, 49 potentially dis-incentivizing
48
This is what Professor Painter-Thorne has in mind. Painter-Thorne, supra note 37, at
351 & n.365 (referring to “an external layer of review in addition to whatever court system
the tribe currently possessed”). Professors Pommersheim and LaVelle, considering a
Great Sioux Nation Supreme Court, argue strongly against replacing existing tribal
appellate structures. Pommersheim & LaVelle, supra note 22, at 217.
49
See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987).
13
litigants to resort to tribal court. Unfortunately, there is no way to handicap
how litigant behavior might be affected. Nor is it clear whether addition of
this tier would serve or disserve tribal interests. Thus, it could be argued
that the sheer difficulty of obtaining review by the Supreme Court of the
United States in routine cases challenging the exercise of jurisdiction by
tribal courts is in itself an advantage that tribal interests may be loath to
relinquish. On the other hand, there is no particular reason to believe that
the Supreme Court would be more likely to review jurisdictional decisions
by the proposed court than it is to review Article III courts of appeals
decisions on tribal jurisdiction under current federal jurisprudence. It would
be a hard sell, in any event, given the Court’s parsimonious exercise of its
power to grant certiorari. From this perspective, addition of the new court
to the tribal appellate layer-cake seems likely to be either imponderable, or
at worst, a wash.
Above all, tribal leaders and rank-and-file members will be alert to
the danger that establishing a new court would compromise the autonomy
of individual tribes. However, five features of this proposal minimize that
danger: (1) the entire system would be the result of negotiations in which
any tribe that wished to participate could do so or not at its sole discretion;
(2) participation would be strictly on an opt in basis; (3) participating tribes
could opt out; (4) the agreed-upon framework for the new court would be
subject to review at stated intervals; and particularly significantly, (5) a
participating tribe could legislatively overrule for the future any
misinterpretation of its law.
C.
Proposed Elements of the Court
Following are key elements of the proposal. The accompanying
notes refer to sources and models, and identify policy questions. Plainly,
these elements reflect the forms of judicial organization and administration
known to and employed in the dominant society as well as many existing
tribal and inter-tribal courts. To the extent there are alternatives that spring
from or reflect Indian customs and institutions, modes of legal reasoning,
and perspectives on the administration of justice, these should be given
careful consideration so that the new court would be tribal in fact, as well
as in name. What follows reflects my conviction that although the need for
14
a nationwide inter-tribal court can be debated “’til kingdom come,” the
concept cannot fully be evaluated until the discussion among stakeholders
gets granular.
1. The Court Would Be Called the American Indian
Supreme Court and Would Be a Court of Record.
A variety of names suggest themselves. I propose this one for the
basic reason that it advertises the fact that it is the highest court of a
jurisdiction. Since one of the purposes of the exercise is to place tribal law
on as equal a footing as possible with state and federal law, the name
settled on will have considerable significance.
An alternative that involves a few more keystrokes, but usefully
underscores the tribal, rather than the pan-Indian character of the court is
“American Indian Nations Supreme Court.” It has been used in connection
with the mock re-arguments of major Indian law cases at the University of
Kansas’ School of Law’s annual Tribal Law and Governance
Conferences.50
The proposal is not predicated on either the abolition or the
withering-away of intra- or inter-tribal appellate courts. Whether those
courts would endure in the new environment that would include an
American Indian Supreme Court will be a function of how events unfold
over time.
2. The Court Would Be Established By Multilateral InterTribal Agreement (MITA).
Since there is no existing nationwide inter-tribal political entity,51 an
ad hoc multilateral agreement seems to be called for. This is consistent
50
See Stacy L. Leeds, Foreword: 2003 Tribal Law and Governance Conference, 14 KAN.
J.L. & PUB. POL’Y 47 (2004). See also CAROLE E. GOLDBERG, REBECCA TSOSIE, KEVIN K.
W ASHBURN & ELIZABETH RODKE W ASHBURN, AMERICAN INDIAN LAW : NATIVE NATIONS AND
THE FEDERAL SYSTEM 424 (2010).
51
The National Congress of American Indians (NCAI) is of course inter-tribal, but some
federally recognized tribes are not members, and in any event, it lacks governmental
authority. NCAI would be one of the key institutional players in the consideration of any
proposal along the lines of the one set forth in this article.
15
with the view that each tribe is an independent sovereign. The effective
reality is that the MITA would be in the nature of a compact, for which
there is precedent.52 One premise of this exercise is to avoid
congressional involvement, even though that may mean the loss of a
potentially important funding source. Others may feel that the game is
worth the candle.53
Getting to the point of negotiating a MITA, and then actually
negotiating one, are beyond the scope of this essay. However, it is worth
mentioning that without a sound process that includes an array of
confidence- building strategies, the chances of success on the merits are
nil, given the kind of cultural and political impediments that Professor
Singel and others have identified. 54 Matters that would have to be
addressed include the selection of a balanced organizing committee,
distinguished conveners, rapporteurs and other experts; funding;
transparency policies with respect to public participation and media
access; and the identification and drafting of deliverables.
3. The Court Would Not Be Created By an Act of Congress
or Funded By the United States.
The overarching concept is that the court is to be a creature of
Indian America, not of the federal government. Consistent with this is the
provision below that calls for the court’s seat to be in Indian Country, and
not in Washington, D.C. Some collateral aspects of establishment of the
new court may require legislation. An example is the concept, noted
below,55 of extending the United States Supreme Court’s certiorari
jurisdiction to decisions of the new court that involve federal questions.
The core concept would remain that the new court would be an Indian
creation, not a congressional one.
52
See NAVAJO NATION & HOPI TRIBE, INTERGOVERNMENTAL COMPACT (Nov. 3, 2006),
available at http://www.bia.gov/cs/groups/public/documents/text/idc-001890.pdf (last
visited Nov. 25, 2013).
53
See Pacheco, supra note 29, at 155 (urging that “Congress should create and maintain
the FICA”).
54
E.g., Singel, supra note 41, at 617-21.
55
See infra text accompanying notes 91-100.
16
4. The Court Would Be Incorporated and Otherwise
Organized so as to Ensure the Deductibility of
Contributions for Federal Income Tax Purposes.
Practical considerations arising from the Internal Revenue Code
drive this part of the proposal. Deductibility will be critical if charitable
contributions are to play more than a trivial role in the business plan.
Despite the overall philosophical approach set forth above, one option is
to secure a federal charter from Congress. Selection of any particular
state in which to incorporate implies a posture of subservience that is to
be avoided if possible. A preferable solution might be to incorporate under
tribal law, but because the court would be inter-tribal, doing so might be
objected to as implying linkage to a particular tribe.
5. The MITA Would Be Subject to Review By the
Participating Tribes After Five Years and at Five-Year
Intervals, Thereafter.
Realism dictates some kind of scheduled review. Such a provision
would allow participating tribes a chance to take stock of how the court
and the MITA were holding up in real life. Additionally, it would likely allay
fears of the new entity in some quarters. Periodic review of international
agreements, especially those that were tough to negotiate in the first
instance, is not uncommon to afford States parties an opportunity to take
stock of actual experience in the early years of a new institution and to
make mid-course corrections.56
6. The MITA Would Establish Only an Institutional
Framework for the Adjudication of Cases, Although
Substantive Rules of Law Could Be Added By
Subsequent Agreement.
This is a very important provision. The concept is that the MITA
would be an empty vessel, merely creating a structure and a process,
rather than substantive norms. Professor Singel’s proposed Indian
56
E.g., Treaty on the Non-Proliferation of Nuclear Weapons, art. VIII(3), 729 U.N.T.S.
161 (1970), entered into force, Mar. 5, 1970; Rome Statute of the International Criminal
Court, art. 123, 2198 U.N.T.S. 3 (2002), entered into force, July 1, 2002.
17
Country human rights program could provide the substance (as could
Professor Pommersheim’s constitutional amendment), and the court
would be an appropriate framework for implementing those and other
norms. One can speculate that, over time, tribes would move in the
direction of enforceable inter-tribal norms on such subjects as adjudication
of tribal agency action, common enrollment standards, or electoral
matters. The court could play a role in that process.
7. Participation Would be Open On an Opt In Basis to All
Federally-Recognized Tribes and Any Other Indian
Tribe, Whether or Not State-Recognized, if the
Participating Tribes Unanimously Agree That the Tribe
Should Be Permitted to Participate.
The opt in concept is central to the proposal, but this feature
highlights some major Indian Country policy issues that would need to be
addressed in the MITA. If it is desired to downplay the federal role in
designing the new institution, federal recognition could be dispensed with
as a qualification for participation. Tribes that participate in the negotiation
of the MITA may feel that state recognition is sufficient, but there will be
differences of opinion on that.
Which tribes will be covered “is definitely a threshold question that
must be answered and will likely set the tone for the entire project.” 57
Tribes that have neither federal nor state recognition present a weak case
for eligibility. Moreover, the requirement for unanimity may effectively
exclude many, if not all, state-recognized or entirely unrecognized entities.
Left unresolved is whether that requirement would afford state-recognized
and unrecognized tribes (assuming they were permitted to participate) a
veto under the unanimity clause when other such tribes seek to become
participants.
Whether the door should be open to Canadian First Nations that
are culturally related to tribes within the United States is an issue that may
arise,58 and obviously would require close study.59 More pressing is
57
58
Pommersheim & LaVelle, supra note 22, at 217.
Id.
18
whether there is a place in the proposed institution for the many federally
recognized tribes that do not yet have court systems. The basic concept
for an American Indian Supreme Court is that it would be in essence an
appellate tribunal, but it is not hard to imagine that a court-less tribe might
still find it desirable to opt in. For example, such a tribe might use other
institutions, such as a tribal council, to perform adjudicatory functions that
lend themselves to appellate review, such as membership decisions.
Additionally, the court might develop in such a way that it could include a
trial-level division for tribes that were too small or impecunious to support
a trial court of their own.
8. Tribes Could Opt Out of the MITA Only at Stated
Intervals, and Any Opt Out Would Have No Effect on
Pending Cases or The Validity of Final Judgments.
Allowing unscheduled departures would materially harm the court
and the entire project. Experience with international tribunals teaches that
participating tribes may be tempted to bolt at the first sign of serious
trouble. Hence, these precautions discourage defections and preserve the
Rule of Law.
9. The Procedure Employed By Any Tribe For Deciding to
Opt In or Out Shall Be Determined By the Tribe in
Accordance With Its Own Law, But the Validity of Such a
Decision May Be Subject to Review by the Court.
In a perfect universe, the court would not be placed in the position
of deciding whether a tribe has validly opted in or out, but there may be no
59
Thus, it was observed in Cherokee Nation v. Georgia, 30 U.S. 1, 17-18 (1831), that the
Cherokees “and their country are considered by foreign nations, as well as by ourselves,
as being so completely under the sovereignty and dominion of the United States, that any
attempt to acquire their lands, or to form a political connexion [sic] with them would be
considered by all as an invasion of our territory, and an act of hostility.” See also United
States v. Pink, 315 U.S. 203, 233 (1942) (“power over external affairs . . . is vested in the
national government exclusively”). Thus, the Department of State does not recognize
passports issued by tribes. U.S. DEP’T OF STATE, TRAVEL DOCUMENTS ISSUED BY NATIVE
AMERICAN TRIBES OR NATIONS OR PRIVATE ORGANIZATIONS, 7 FOREIGN AFFAIRS MANUAL §
1300, APP. O. On the other hand, many American cities, which, as mere municipal
corporations, lack any claim to sovereignty, have made sister-city agreements with cities
in other countries.
19
alternative. The issue would be in the nature of a political question for
which tribal organs of government must be responsible in the first
instance. Questions will inevitably arise as to whether a group purporting
to speak for a tribe in fact does so.60
10. Participating Tribes Would Waive Their Sovereign
Immunity to Whatever Extent They Have Waived It In
Proceedings In Their Own or Other Courts and for Such
Other Categories of Cases, as the MITA Provides.
One would hope that tribes would broadly waive their immunity in
cases before the court. Professor Painter-Thorne says this is necessary
“so that the appeals court would have authority to review membership
decisions.”61 This will be a challenge in the MITA negotiations, and the
end-result may be waiver only as to certain causes of action. This matter
would likely be revisited in the periodic review process.
Unlike, for example, the arrangements applicable to the Southwest
Intertribal Court of Appeals, 62 participating tribes would not be permitted to
exclude certain kinds of cases.
11. The Court Would Be Funded Exclusively By Tribes, and
From Private Charitable Contributions Under an
Equitable Formula that Reflects Tribes’ Varying
Demographic and Economic Circumstances.
Filing fees may generate a small income stream for the court,
although any fee schedule should make allowance for in forma pauperis
filings. Even mentioning charitable contributions may have the wrong
connotation, since the whole idea behind the proposal is to erect an
emphatically Indian institution, reliant on no one else. Nonetheless,
financial support from philanthropic organizations could play an important
part in negotiating the MITA and launching the court. Nor should such
support for operating funds be rejected out of hand, especially before the
60
E.g., Picayune Rancheria of Chukchansi v. Rabobank, Civil No. 13-609 (E.D. Cal.
2013); Shenandoah v. U.S. Dep’t of Interior, 159 F.3d 708 (2d Cir. 1998).
61
Painter-Thorne, supra note 37, at 351 & n.362.
62
See Christine Zuni, supra note 6.
20
willingness and ability of tribes to negotiate and contribute their fair share
has become clear. Negotiation of an equitable formula will inevitably be a
challenge. Regrettably, the Indian Gaming Regulatory Act as currently
written does not permit tribes to allow other, less well-off tribes to benefit
from Revenue Allocation Plans.63 Inter-tribal wealth transfers may be
worthy of further exploration.
12. The Court Would Have Jurisdiction (1) Over Decisions
of the Highest Court of a Tribe in Which Judgment Could
Be Had; and (2) Subject to the Exhaustion of Any
Applicable Tribal Court Remedies, Over Tribal
Administrative Agencies, and Other Adjudicatory
Bodies.
This language seeks to capture all tribal adjudication, whether the
deciding body is a court, an agency, or the tribal council. 64 The issuance of
tribal regulations could also be subject to review by the court. The “highest
court” concept is drawn from 28 U.S.C. § 1257(a), since there may be
instances in which an existing tribal appellate court’s jurisdiction is
discretionary. Where that court denied discretionary review, the American
Indian Supreme Court’s review would run to the next lower tribal court. 65
The proposal takes no position on whether a final judgment below
is required.66 It does contemplate appellate review as of right rather than
as a matter of discretion; although, this could be revisited if the court’s
caseload were to expand dramatically. Cases that present issues that are
either less complicated or less important might be disposed of summarily
(i.e., without plenary briefing and argument, and typically without
precedential effect), in keeping with the practice of the Article III courts of
appeals. More important cases, or ones that involve an inter-tribal split on
a point of law, could be heard en banc. Nothing would prevent the court
63
25 U.S.C. § 2710 (2006).
See COHEN’S HANDBOOK, supra note 5, § 4.04[3][c], 264 & n.78 (citing 25 U.S.C.
§1903(12) (2006)).
65
Professor Clinton included a comparable provision in his alternative proposal. Clinton,
Tribal Courts, supra note 25, at 893 n.126 (analogizing to 28 U.S.C. § 1257 (2006)).
66
The Southwest Intertribal Court of Appeals permits appeals from non-final orders by
permission. S.W. Intertribal R. App. P. 3(f).
64
21
from engaging in mere error correction, but it would not have general
“supervisory authority” over lower tribal courts.67
An alternative approach would be to confine the court’s appellate
jurisdiction to the resolution of inter-tribal disputes and cases presenting
issues of generic interest and importance within Indian Country. Limiting
the jurisdiction to cases that meet some threshold of importance would
imply that the court was a kind of constitutional court. In the absence of a
governing document or agreed body of jurisprudence that functioned as a
constitution for all tribes, such a limitation would represent a mismatch
between the institution and the political environment.
Finally, a confidence-building strategy could be adopted. The tribal
negotiators could agree to a gradual approach to jurisdiction, starting with
those categories of cases that are most in need of independent extra-tribal
appellate review, such as electoral, membership and other governancerelated issues. Alternatively, they could start at precisely the other end of
the spectrum, with those categories of cases that least trench on tribal
autonomy, and that are therefore presumably less likely to be divisive.
Garden-variety tort or contract cases would meet this description. The
choice is one of strategy, in gauging the nature and depth of political
support and opposition. Depending on experience under the initial
approach to jurisdiction, a more expansive approach could later be
developed.
67
Professors Pommersheim and LaVelle would limit their proposed Great Sioux Nation
Supreme Court to “cases that have sufficient import across the Sioux Nation as a whole.”
Pommersheim & LaVelle, supra note 22, at 218; see also id. at 222 (suggesting
appealability as of right only for “cases involving challenges to tribal jurisdiction, civil
rights (e.g., due process/equal protection claims), election disputes, and commercial
issues”). The proposal presented here is more aggressive. Any concern over “floodgates”
can be met through the judicious use of summary disposition. At the same time, the
present proposal would present far less of a floodgates challenge than Professor
Clinton’s alternative suggestion for Supreme Court review of tribal court decisions on
federal questions by writ of certiorari, Clinton, Tribal Courts, supra note 25, at 893-97,
simply because tribes outnumber states by a ratio of more than 11:1.
22
13. The Court Would Have Original Jurisdiction Over Cases
Arising Between or Among Participating Tribes.
One can easily imagine inter-tribal cases involving dualmembership issues; family law matters, such as adoption, child custody,
and child welfare; burial controversies; and water and other natural
resources issues.68 Given the federal role in maintaining cadastral
information for reservations, it is unlikely that the court’s original
jurisdiction would reach inter-tribal boundary issues like the interstate
boundary issues occasionally adjudicated by the Supreme Court of the
United States.69
14. The Court Would Have Power to Issue Writs of Habeas
Corpus and to Release Persons on Reasonable Bail or
Personal Recognizance and to Issue All Other Writs
Necessary or Appropriate In Aid of Its Jurisdiction and
Agreeable to the Usages and Principles of Law.
The last clause is lifted from the All Writs Act.70 In a proper case,
the court could entertain a petition for an extraordinary writ based on its
potential appellate jurisdiction,71 although that power would be exercised
sparingly. While federal courts may issue writs of habeas corpus at the
request of persons held in custody in violation of ICRA, 72 giving express
recognition to the new court’s power to do so may reduce the number of
habeas cases that wind up in the federal courts.
68
For types of cases that might qualify see United States v. State of Washington, Civil
No. 9213, Subproceeding 09-1 (W.D. Wash. July 8, 2013) (inter-tribal dispute over “usual
and accustomed fishing grounds”); Hopi Tribe v. Navajo Nation, Civil No. 13-8172 (D.
Ariz. filed July 5, 2013) (pending) (access of one tribe to designated areas of another
tribe’s reservation for religious purposes); Thlopthlocco Tribal Town v. Stidham, WL
65234 (N.D. Okla. 2013), appeal pending, No. 13-5006 (10th Cir. filed Jan. 11, 2013)
(relationship between federally-recognized tribal town and Muscogee (Creek) Nation);
see also Hopi Tribe v. Navajo Nation, Civil No. 13-8172 (D. Ariz. Nov. 8, 2013) (dispute
over inter-tribal compact remanded for arbitration).
69
E.g., New Jersey v. New York, 523 U.S. 767 (1998).
70
28 U.S.C. § 1651(a) (2006).
71
See La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 254-55 (1957).
72
See 25 U.S.C. § 1303 (2006); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).
23
15. The Court Would Have Authority to Issue Advisory
Opinions.
This is a judgment call. The federal ban on advisory opinions is
rooted in Article III’s case or controversy requirement, 73 which is
inapplicable to tribal courts. Some tribal courts issue advisory opinions, 74
as do some state courts. 75
16. The Court Would Have Authority to Certify Questions of
State Law to the Highest Court of a State, and to
Respond to Questions of Tribal Law Certified By a
Federal or State Court, But Only if the Courts of the
Tribe Whose Law is in Issue Have No Provision for
Responding to Certified Questions.
Some tribal codes already make provision for responding to
requests for rulings on questions of tribal law. 76 Because the proposal
contemplates that tribal courts will in general be the authoritative judges of
tribal law, the court would only respond to certified questions of tribal law
where the tribe’s own courts make no provision for such responses.
17. The Court’s Decisions Would Not Be Subject to Direct
Appellate Review By Any Other Court, With the Sole
Exception That Congress Could Authorize the Supreme
Court of the United States to Review Its Decisions On
Federal Questions.
A major policy issue lurks here. On the one hand, the overarching
principle is to create a free-standing Indian appellate court, liberated from
73
U.S. CONST. art. III, § 2, cl. 1.
E.g., S.W. Intertribal R. App. P. 3(c), 4(b); In re Termination and Settlement Agreement
Between Mashpee Wampanoag Tribe, the Mashpee Wampanoag Indian Tribal Council,
Inc., TCAM L.L.C., KSW Mass, L.L.C., At Mashpee, L.L.C., and Detroitma, L.L.C., Case
No. CV-10-005 (Mashpee Wampanoag 2010) (finding jurisdiction to render advisory
opinions); In re Certified Question re Village Authority to Remove Tribal Council
Representatives, No. 2008-AP-0001 (Hopi App. 2010); In re Certified Question from the
U.S. District Court for the Dist. of Arizona, 8 NAV. R. 134 (2001); MATTHEW L.M.
FLETCHER, AMERICAN INDIAN TRIBAL LAW 648-58 (2012) (collecting cases).
75
E.g., Opinion of the Justices to the Senate, 430 Mass. 1205 (2000).
76
E.g., Hopi Ord. 21, § 1.2.1.8(a).
74
24
direct federal review or control. On the other hand, it would make little
sense for tribal court decisions on questions of federal law77 to be
impervious to review by the Supreme Court of the United States. 78 At
present, unless a case meets the detention requirement for ICRA habeas
corpus,79 the only federal question a federal court can consider on
collateral review of a tribal court ruling is whether the tribal court had
jurisdiction. If the federal court finds that the tribal court lacked jurisdiction,
it will address any other federal question that was presented de novo; if
the federal court finds that the tribal court had jurisdiction, it is functus
officio and cannot properly examine the correctness of any ruling the tribal
court made on a federal question. Such rulings would thus, under present
law, be impervious to review by any Article III court. 80
Direct review by the Supreme Court, rather than through collateral
proceedings begun afresh in the district courts (much less an “appeal” to
those courts),81 would treat the Indian forum as possessing the same
dignity as the highest court of a state.82 Sovereignty, however, is a tribeby-tribe matter, rather than a concept applicable in gross to tribal America
as a super-tribal entity in its own right.83
77
E.g., Tulalip Tribes v. 2008 White Ford Econoline Van, No. TUL-CV-AP-2012-0404
(Tulalip App. 2013) (ICRA excessive fines clause applicable to civil forfeiture proceedings
under tribal code).
78
Mr. Pacheco proposed that “FICA decisions may only be reviewed by the United States
Supreme Court by writ of certiorari.” Pacheco, supra note 29, at 155, 157. As noted
above, he also argued that “[t]echnical violations of federal law should not suffice for
Supreme Court review.” Id. at 155, 163. What he meant by this is unclear.
79
E.g., Mitchell v. Seneca Nation of Indians, 2013 U.S. Dist. LEXIS 46579 (W.D.N.Y.
Mar. 29, 2013), citing, e.g., Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874
(2d Cir. 1996).
80
It strains the imagination to envision a system for certification of federal questions to
the Supreme Court of the United States by the American Indian Supreme Court, which in
theory would be an alternative.
81
See Gregory Schultz, The Federal Due Process and Equal Protection Rights of NonIndian Civil Litigants in Tribal Courts After Santa Clara Pueblo v. Martinez, 62 DENVER
U.L. REV. 761, 783-84 (1985).
82
See Clinton, Tribal Courts, supra note 25, at 885 & n.113, 893-94.
83
Id. at 892 (“Indian sovereignty does not exist for Indian people as a whole; rather, it
exists for each tribe.”).
25
There may be controversy over whether Congress could confer this
jurisdiction on the Supreme Court,84 but it is hard to see why it could not
do so since the Supreme Court undoubtedly has constitutional appellate
jurisdiction over decisions of other non-Article III courts such as the
territorial and military courts, not to mention state courts, which are
themselves not Article III entities. To the extent that the American Indian
Supreme Court might construe or apply a tribal treaty or an Act of
Congress such as ICRA, the Violence Against Women Reauthorization
Act, Indian Child Welfare Act, or Indian Gaming Regulatory Act, one would
think its decisions would be within the judicial power of the United States
under the “extend” clause of Article III, § 2, and therefore, within Congress’
authority over the Supreme Court’s appellate jurisdiction under the
Exceptions and Regulations Clause. 85
Even if federal questions were reviewable by the Supreme Court of
the United States, tribal grounds of decision would not be so reviewable,
just as is the case with state grounds of decision. 86 The Supreme Court
could apply the same kind of test in determining whether a decision of the
American Indian Supreme Court rested on an adequate and independent
tribal ground, as it does in determining whether a state court decision rests
on an adequate and independent state ground. 87 Tribes, however, might
84
See Clinton, No Federal Supremacy, supra note 9, at 240. A decade ago, Professor
Struve saw no constitutional impediment to legislation “providing for Supreme Court
review of the judgment of a tribe’s highest court.” Catherine T. Struve, How Bad Law
Made a Hard Case Easy: Nevada v. Hicks and the Subject Matter Jurisdiction of Tribal
Courts, 5 U. PA. J. CONST. L. 288, 314 & n.117 (2003) (citing, inter alia, THE FEDERALIST
NO. 82).
85
But see COHEN’S, supra note 5, § 4.04[3][c] at 260-269. The foregoing discussion is not
intended to suggest that Congress could not confer appellate jurisdiction over the new
court on the Article III courts of appeals (or one of them). I agree with Professor Struve
regarding Congress’s power. Struve, supra note 84, at 314 & n.117. I do not offer that
approach because I believe review by a federal court below the level of the Supreme
Court would not be in keeping with the dignity of an American Indian Supreme Court.
86
Hortonville Joint School Dist. No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 488
(1976); see also Clinton, Tribal Courts, supra note 25, at 886.
87
Michigan v. Long, 463 U.S. 1032 (1983). See Tutterow, supra note 35, at 500 (arguing
that “such a non-review doctrine is both logically and politically appropriate to apply in the
tribal court context”). Professor Clinton would exempt from review by the Supreme Court
of the United States tribal court decisions that “over-vindicate” federal rights. Clinton,
supra note 25, at 893 n.126. The difficulty with this, as he recognizes, is that it would
“create nonuniformity.”
26
find it wise to argue that the presumption ought to be, on the contrary, that
an ambiguous decision of the new court rested on tribal, rather than
federal law grounds, the better to recognize the autonomy of tribal law and
cabin external review.
18. The Rules of Decision in Cases Before the Court Would
Be the Constitutional, Statutory, Customary, or Common
Law of the Tribe From Whose Court or Agency an
Appeal Has Been Taken; Inter-Tribal Agreements; Indian
Common Law; Federal Constitutional, Treaty or
Statutory Law; State Law; and the Common Law.
This is inspired primarily by the practice of the Southwest Intertribal
Court of Appeals. 88 Primacy should be afforded to tribal law, although
tribes have taken a variety of positions as to the sequence in which
various sources of law will be turned to as rules of decision. 89 Whether the
court should deem itself bound by federal law that the relevant
participating tribe has not affirmatively adopted would likely be a matter of
dispute.90
Thinking deeply a decade ago, about the governing law that would
apply in a Great Sioux Nation Supreme Court, Professors Pommersheim
and LaVelle asked, “Is the objective uniformity, diversity, or a principled
blend of both?” They correctly concluded that “there is no right or wrong
way.”91 An American Indian Supreme Court would have to feel its way,
ever mindful of the fact of tribe-by-tribe autonomy. The outcome will turn
on the court’s ability to navigate what could be a series of political
minefields. It will be a function of many factors, chief among them its
willingness and ability to explain itself in terms that will resonate for and
gain the support of tribal leaders.
88
See Zuni, supra note 6 (court “applies the law of the tribe which the tribe itself has
adopted and recognizes”).
89
The Rules of Decision Act for federal courts is 28 U.S.C. § 1652 (2006).
90
See generally Robert Odawi Porter, The Inapplicability of American Law to the Indian
Nations, 89 IOWA L. REV. 1595 (2004).
91
Pommersheim & LaVelle, supra note 22, at 223.
27
19. Judgments of the Court Would Be Binding on The
Parties and Enforceable By Writ Directed to Any Officer
of Any Participating Tribe and, to the Extent Provided By
Federal or State Law, Any Federal or State Officer.
Enforceability of tribal court judgments is currently recognized in the
Indian Child Welfare Act.92 This part of the proposal adopts a pan-Indian
approach to the extent that it requires officers of any participating tribe to
enforce the court’s judgments,93 even though the proposal as a whole
does not have a pan-Indian tilt as to jurisprudence. 94 The MITA could not
confer enforcement authority on federal and state officials. Although the
current proposal emphatically does not look to Congress to create the new
court, Congress and the states would have to make provision for
enforcement of judgments.
20. A Tribe Would Be Entitled to Present Its Views as an
Amicus Curiae in Any Case in Which It Is Not a Party.
This is broadly inspired by Supreme Court Rule 34.4 and the
practice of the Supreme Court of the United States in inviting the views of
the Solicitor General. If a case were to turn on a question of federal law,
92
25 U.S.C. § 1911(d) (2006).
See Pommersheim & LaVelle, supra note 22, at 224 (identifying alternative
approaches).
94
Pan-Indianism is in tension with the concept of tribe-by-tribe autonomy. See Ezra
Rosser, Ambiguity and the Academic: The Dangerous Attraction of Pan-Indian Legal
Analysis, 119 HARV. L. REV. 141 (2006). Professor Fletcher has pointed out the “peril” of
“careless invocation of inter-tribal common law or, worse, the invocation of pan-Indian
customs.” FLETCHER, supra note 74, at 117. With 566 federally-recognized tribes, antipan-Indianism could lead to chaos and reduce the esteem which tribal law might
otherwise enjoy. No hard-and-fast position needs to be taken with respect to the
centrifugal forces generated by a tribe-by-tribe approach when designing the proposed
court, but it should be borne in mind that even without a nationwide appellate court the
law of each individual tribe hardly exists in perfect isolation from the law of other tribes as
matters now stand, given the increasing ease with which decisions can be accessed as
well as the fact that some tribal court judges serve or have served on more than one
court. To some this will be objectionable, but it does seem inevitable that over time a
nationwide court would tend, at least around the edges, to harmonize tribes’ separate
bodies of jurisprudence, although positive law, such as constitutions and ordinances,
would remain entirely within each tribe’s discretion and could serve as a powerful check
on such a tendency.
93
28
the views of the Solicitor General of the United States could also be
requested.
21. The Court Would Maintain a List of Public Interest
Organizations That Would Be Invited or Permitted When
Appropriate to File Briefs as Amici Curiae.
Some United States Courts of Appeals maintain “public interest
lists” of nongovernmental organizations that are from time to time invited
to file briefs as amici curiae
22. A Tribe Could Overrule the Court’s Interpretation of
Tribal Law By Amending Its Constitution or Laws or
Codifying Its Customary or Decision Law, But No Such
Amendment or Codification Would Affect the Rights of
Parties Under a Final Judgment.
This is a key provision. The concept behind the court’s role is that it
would be acting as if it were the highest court of a tribe, much as the Privy
Council purports to be an integral part of the court structure of the
particular British jurisdiction from which a case arises. 95 If the competent
tribal body concluded that the court had misinterpreted some point of tribal
law, that entity could set matters straight by modifying the underlying
ordinance or declaring the point of customary law. Such an overruling
would bind the court, albeit only in futuro, and only if the restated version
did not offend some principle of law with higher standing, such as
(presumably) an Act of Congress. Final money judgments would be
sacrosanct.96
23. The Court Would Have a Chief Justice and Fourteen
Associate Justices, of Whom Nine Would Be a Quorum.
The size of the court will be a function of its anticipated caseload,
cost, and the need to accommodate competing regional and tribal
95
Ibralebbe v. R., A.C. 900, 921-22.
See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Previously entered
injunctions could be affected by subsequent tribal legislation. See Miller v. French, 530
U.S. 327, 344 (2000).
96
29
expectations for representation on the bench. The larger the court, the
more unwieldy it becomes 97 and the less judging any particular Justice will
do, but the easier to achieve tribal balance and diversity.
24. The Court Would Sit En Banc in Inter-Tribal Cases and
Other Cases of Unusual Importance or to Reconcile
Conflicting Panel Decisions.
This is broadly based on the practice of the United States Courts of
Appeals.98
25. Justices Would Be Selected or Elected By the
Participating Tribes Under Agreed-Upon Rules
Regarding Geographical, Cultural, Land-Mass,
Population, Gender, and Economic Balance.
Few aspects of the proposal are as likely to engender controversy
as the manner of selecting the court’s members. A tribe that does not feel
that it will have a fair chance to participate in that process is highly unlikely
to opt in or, having opted in, to remain in when the court’s decisions may
have dramatic effects on issues of great symbolic and practical
importance to the tribe and its members. Whether because of concern
over inter-tribal disputes or internal governance issues with serious
political implications, tribes are going to look for real guarantees of
fairness before breathing life into the new entity. Should there be a onetribe, one-judge standard or should tribal membership data be taken into
account—and if the latter, who should be counted? Should a tribe have a
right to have one of its own, or a judge of its own selection, sit on any case
in which it has an interest? As is obvious, there are many variables, and
the diversity of recognized tribes in terms of population and other factors
will make resolution of this threshold challenge fiendishly difficult. The
importance of broad agreement on this score cannot be overstated.
The manner of selecting the Chief Justice and Associate Justices
would have to be settled in the MITA negotiations. Negotiators could draw
97
98
See Pommersheim & LaVelle, supra note 22, at 219.
See FED. R. APP. P. 35.
30
on such models as the International Court of Justice, the International
Criminal Court, and the European Court of Human Rights. The
participating tribes might usefully consider some arrangement analogous
to the UN Security Council, whereby the largest tribes would be
guaranteed permanent representation on the court. This part of MITA
negotiations will be among the most challenging.
26. No More Than One Justice May Be a Member of Any
Particular Tribe. A Person Who, for the Purposes of
Membership of the Court, Could Be Regarded as a
Member of More Than One Tribe Shall Be Deemed to Be
a Member of the Tribe in Which That Person Ordinarily
Exercises Civil and Political Rights.
This is drawn from Article 7 of the Rome Statute of the International
Criminal Court. It is desirable to have a judge from the tribe whose law is
being applied sitting on the panel that hears a case, since that judge will
be more familiar with the pertinent tribal jurisprudence. Having a mix of
tribes represented can serve as a useful check on the rigor of the
decision.
27. At the Time of Selection or Election, Every Justice
Would Have to (1) Be a Member of a Participating Tribe;
(2) Hold a Law Degree; (3) Have Been Admitted to
Practice in a Federal or State Court for at Least Five
Years; and (4) Have Been a Member of the Bar of a Tribal
Court for at Least Five Years.
There are numerous policy judgments to be made with respect to
eligibility for election to the court. A major issue is whether only members
of participating tribes would be eligible to serve on the court. Potential
compromise options would be to permit some number—presumably a
minority—of non-Indians to serve or to permit members of nonparticipating
tribes to serve.
A major structural issue is whether non-lawyers should be entirely
excluded, even if they possess special knowledge of customary law. The
proposal contemplates lawyer-judges. An alternative would be to permit
31
the election of some number—presumably a minority—of non-lawyers
who have specialized knowledge of customary law. Inclusion of these
individuals might reduce the court’s standing vis-à-vis other American
legal institutions. This concern could be alleviated by permitting no more
than one lay judge on a panel.
28. Only Persons Who Have Served as a Tribal Judge or a
Judge of a Federal or State Court of Record for at Least
Five Years Would Be Eligible to Serve On the Court.
MITA negotiators might wish to consider whether the prior judicial
service requirement would be unduly restrictive, as it would exclude law
professors and practitioners who may be highly knowledgeable in Indian
law but had never served as judges or had not served for the requisite
period. It would also exclude some number of present or former tribal
chiefs, presidents, or chairs.
29. Justices Would Be Paid Out of a Central Fund For Time
Actually Spent On the Court’s Business.
It is likely that the Chief Justice would have to spend full time on the
business of the court. Associate Justices might need to serve only part
time, depending on how the caseload develops over time.
30. Justices Would Serve for Five Years, Renewable Once.
Terms of office should be of sufficient duration to provide both the
substance and appearance of judicial independence.99 Given the number
of tribes that might participate, there will be considerable tension between
99
Professors Pommersheim and LaVelle correctly argue that “[t]wo-year or even threeyear terms appear too short to allow the [Great Sioux Nation Supreme] Court to establish
roots, consistency, and the necessary rules that face any court in its initial steps of
development.” Pommersheim & LaVelle, supra note 22, at 219. The point would seem to
apply even more strongly to a nationwide court. Given the number of tribes eligible to
participate and the desire to involve as many of them as reasonably possible in the
interest of achieving both broad knowledge and tribal “buy-in,” life tenure, which one
author proposed, see Pacheco, supra note 29, at 151, 161, would be a dreadful idea.
Much of what Professors Pommersheim and LaVelle outline for the Great Sioux Nation
Supreme Court is very sound, but their view that lifetime appointments are possible and
worthy of consideration, Pommersheim & LaVelle, supra note 22, at 219, seems
misplaced, particularly if – not that they suggested this – applied to a nationwide court.
32
the need for stability and the need for turnover. In any event, judicial terms
should be staggered.100
31. Justices Would Be Removable Only for Disability,
Misconduct, or Neglect of Duty.
The MITA would have to include procedural and substantive
provisions for removal of Justices for cause. 101 One approach would be to
require a supermajority—two-thirds or three-quarters—of participating
tribes to agree to a removal.
32. Associate Justices Would Be Allowed to Serve
Concurrently On the Court and On One or More Tribal
Courts, But Would Not Be Permitted to Sit On Cases
Arising In Any Tribal Court of Which They Are a Judge.
Permitting concurrent service on tribal courts would make good use
of the talent and learning of tribal judges. Justices of the court should not
be permitted to work for any agency of the federal government, to avoid
any possible institutional conflict of interest. Otherwise qualified former
federal officials, however, could be an excellent source of disinterested
judicial talent and should not be viewed as ineligible.
33. The Court Would Have a Dedicated Courtroom, Clerk’s
Office, Marshal, and Judicial Center at Some Fixed
Location in Indian Country, But Could Sit Anywhere In
Indian Country or, for the Purpose of Improving Public
Understanding of the Court, at Any Place In the United
States.
The seat of the court will be important both symbolically and
practically. Given the distribution of reservations across the United States,
the court’s work will require it at times to “ride circuit.” 102 This may impose
some inconvenience and expense on litigants. The court’s facilities and
ceremonials should be in keeping with the dignity of a court of last resort.
100
See Pommersheim & LaVelle, supra note 22, at 219.
Id.
102
See Pacheco, supra note 29, at 157.
101
33
Co-location of the court at a law school in or near Indian Country may be a
way of reducing library and other operating expenses. The court should
not be prevented from hearing cases, on an exceptional basis, at law
schools and other suitably dignified venues that will contribute to public
understanding of the court and tribal law. Consideration could also be
given to hearing argument telephonically or by video-teleconference in the
interest of economy.103
34. The Court Would Issue Its Own Rules of Practice and
Procedure, and Would Have a Rules Advisory
Committee.
Judicial independence requires not only security of tenure and
compensation, but also institutional independence. The court must be in a
position to prescribe its own rules, and to adjust them in light of
experience.
35. The Court Would Regulate Admission to Its Bar and
Maintain Disciplinary Machinery to Ensure Professional
Responsibility.
Control over its bar is also critical to the court’s independence.
Large policy issues lurk with respect to admission to practice. Should an
examination be required or should admission be reciprocal with state,
federal, and tribal courts? Should a law degree be required? Should
persons knowledgeable in customary law be permitted to appear (with or
without attorney co-counsel)?104 A bar association can be a “critical
partner of the judicial infrastructure in the effort to advance judicial
legitimacy and also to provide a set of significant services that otherwise
would overburden courts or go undone altogether.” 105
103
See Appellate, THE NORTHWEST INTERTRIBAL COURT SYSTEM, (Sept. 1, 2010)
http://www.nics.ws/appellate/appellate.htm (last visited Nov. 25, 2013). The Northwest
Intertribal Court System at times hears appeals by telephone.
104
See generally Pommersheim & LaVelle, supra note 22, at 220-21.
105
Id. at 221.
34
36. Indigent Parties Would Be Permitted to Appear Pro Se
or, at the Court’s Discretion, the Court Could Appoint a
Member of Its Bar to Represent Them Pro Bono Publico.
The new court may find its docket crowded with pro se cases.
These cases may not be well presented and the court may have to take a
more active role in the development of issues than would otherwise be the
case. Appointment of pro bono counsel may alleviate this problem.
37. The Court Would Conduct an Annual Judicial
Conference.
A Judicial Conference would be of unusual value given the court’s
geographical sweep and the sheer number of potential and actual
participating tribes. A conference also serves the interest in connecting the
court to the bar, the legal academy, and federal and state opposite
numbers. A Judicial Conference may also be a useful occasion for
Continuing Legal Education programs. There already is a Tribal Judicial
Conference under the auspices of the National American Indian Court
Judges Association (NICJA). Rather than have competing conferences,
one would hope the court and NICJA would pool their resources and
collaborate on a single one.106
38. Justices Would Participate in Federal and State Judicial
Conferences at the Court’s Expense.
Justices can be ambassadors for the court. Their presence at
federal and state judicial functions will help to foster improved public
understanding of the court’s work.
39. Decisions Would Be Made Available Online and
Through Commercial and Noncommercial Outlets.
At present, tribal decisions are available through a welter of
different systems. Some decisions are available online, either through free
106
For a discussion of some of the politics around a Tribal Judicial Conference, see Nell
Jessup Newton, Let a Thousand Policy-Flowers Bloom: Making Indian Policy in the
Twenty-First Century, 46 ARK. L. REV. 25, 38-47 (1993).
35
tribal or organizational websites or via commercial fee-based providers.
Other decisions are available only haphazardly or through informal
personal networks. This Tower of Babel is a serious obstacle to the
development of tribal law. Harmonization of the current patchwork system
for publication of tribal jurisprudence is one area in which the court could
play a leadership role. It could, for example, seek to work with Thomson
Reuters to generate an “Analysis of Indian Law” that would supplant the
“Indians” Digest Topic.107 Adoption of a PACER-type system108 for the
court’s dockets, briefs, and decisions should be a priority. Additionally, oral
argument records should be posted on the Internet promptly after any
hearing.
40. Justices Would Have Permanent or Temporary Law
Clerks That Hold Law Degrees and, in the Case of
Permanent Law Clerks, are Members of the Bar of a
State, Federal, or Tribal Court.
A combination of permanent and temporary law clerks may be
desirable given the relatively short judicial terms of office contemplated.
Serious personnel turbulence among both the Justices and the clerks
would have an unsettling effect on its jurisprudence and institutional
memory. There is no reason to rule out all reliance on law clerks who lack
conventional legal training but are, for example, knowledgeable in
customary law. There is, however, a danger in looking to internal court
resources for customary law matters that ought to be a matter of proof if,
as will likely be the case, they do not lend themselves to judicial notice.
107
See W EST’S ANALYSIS OF AMERICAN LAW 885-91 (2012) (listing key numbers for use in
headnotes).
108 United States government legal documentation system standing for Public Access to
Court Electronic Records.
36
41. The Court Would Apply Principles of Indian Preference
In Hiring109.
CONCLUSION
Opinions differ widely as to what lies in store for American Indian
tribes. Some observers, whose views I respect, see events proceeding in
a generally positive direction. Others, whose views I also respect, see
bright spots on an otherwise gloomy horizon. Yet others may be filled with
despair. I am in the second category. But, whichever of these perspectives
proves the most accurate prediction of where the path leads, I suggest
that there can be general agreement on the core principle that anything
that tends to preserve and strengthen tribal autonomy and help place
American Indian legal institutions on something more nearly approaching
an equal footing with those of the dominant society is to the good. In that
spirit, and with appreciation for those who have considered these issues in
the past, I lay the foregoing proposal on the table for debate.
109
Section 703(i) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e-2(i)(1982), provides an exception to Title VII’s general nondiscrimination
principals allowing certain employers under certain circumstances to exercise an
employment preference in favor of American Indians.
37
THE UTILITY OF A MICUS BRIEFS IN THE S UPREME
COURT’S INDIAN C ASES
Matthew L.M. Fletcher
In the last days of the 2012 Term, the Supreme Court decided
Adoptive Couple v. Baby Girl,1 possibly the highest profile Indian law case
in decades.2 Given the stakes, it is not surprising that groups and
individuals filed 32 amicus briefs in support of the parties. 3 And yet the
Supreme Court’s 5-4 decision, which included Justice Alito’s majority
opinion, concurrences from Justices Thomas and Breyer, and dissents
from Justices Scalia and Sotomayor, cited to exactly one amicus brief—

Professor of Law, Michigan State University College of Law. Director, Indigenous Law
and Policy Center. Reporter, R ESTATEMENT, THIRD, THE LAW OF AMERICAN INDIANS. I owe
significant inspiration for the article to Frank Pommersheim, Amicus Briefs in Indian Law:
The Case of Plains Commerce Bank v. Long Family Land and Cattle Co., 56 S.D. L. R EV .
86 (2011), and Douglas Laycock, Persuasion in Hot-B utton Cases, in PERSUASION AND
IDEOLOGY : POLITICALLY DIVISIV E CASES IN A PPELLATE COURTS, 7TH A NNUAL MSU
INDIGENOUS LAW CONFERENCE MATERIALS (2010). Miigwetch to the Stanford Native
American Law Students Association—especially to the ever-patient Tom Pack—for
allowing me to present this paper. And thanks to Dan Rey-Bear, Wenona Singel, and
Kaighn Smith for comments.
1
133 S. Ct. 2552 (2013).
National news commentat ors wrote repeatedly about the case, before and after the
decision. E.g., Emily Bazelon, Send Veronica Back : A truly terrible ruling in the Baby Girl
custody case, SLATE (July 18, 2013),
http://www.slate.com/articles/double_x/doublex/2013/07/baby_veronica_case_the_south
_carolina_court_got _it_wrong.html (last visited Nov. 24, 2013); Happy Ruling for Adoptive
Couple, Uncertainty for Bab y Girl, NATIONAL PUBLIC RADIO (June 26, 2013),
http://www.npr.org/player/ v2/mediaPlayer.html?action=1&t=1&islist=false&id=195787510
&m=195787473 (last visited Nov. 10, 2013); Adam Liptak, Justices Hear Case of Indian
Child Caught in Custody Fight, N.Y. TIMES (April 16, 2013),
http://www.nytimes.com/2013/04/17/us/justices-hear-case-of-adopted-indianchild.html?ref= us&_r=0 (last visited Nov. 24, 2013).
3
The Native American Rights Fund complied each of the 32 amic us briefs filed in support
of the respondents and the petitioners. See Native American Rights Fund, Tribal
Supreme Court Project, Adoptive Couple v. Baby Girl (No. 12 -399), Amici in Support of
the Petitioners, available at http://sct.narf.org/caseindexes/adoptivecouplevbabygirlamici_briefs _in_support.html (last visited Nov. 10, 2013); and id., Amici in Support of
Respondents, available at http://sct.narf.org/caseindex es/adoptivecouplevbabygirlamici_briefs _in_support_respondents.html (last visited Nov. 24, 2013).
2
38
that of the United States. 4 Did the other 31 amicus briefs make no
impression on any of the Justices? What’s the point of filing an amicus
brief in a hot-button Supreme Court case if there’s no evidence that the
briefs have any impact?
Still, four times in the past 16 years, arguments or information
raised by amici in Indian law cases before the Supreme Court have had
dramatic impacts on the Court’s decision-making process i n cases
involving federal Indian law. In two cases involving government
contracting, amicus briefs filed by the United States Chamber of
Commerce supporting tribal interests played important roles in pointing out
the impact the Court’s decision would have on defense and other
government contractors. 5 In another case, an amicus railroad company
alleged that the procedures in one tribal court were stacked against
nonmembers; apparently causing the Court to reconsider its views on
tribal civil jurisdiction. 6 In a fourth case, an amicus resuscitated a line of
argument long thought to be retired from the field (in fact, none of the
parties briefed the argument) and persuaded the Court to decide a case
on that basis. 7
What about these briefs, as opposed to the dozens upon dozens of
other Supreme Court amicus briefs filed in the Court’s Indian cases,
served to influence the Court so heavily? This short paper hopes to sort
out a few general guidelines for amicus brief writers in federal Indian law
cases by reviewing a series of amicus briefs and what we know about how
the Court deals with them. In general, amicus briefs that provide the Court
with factual and legal information not provided by the parties tend to be
the most important amicus briefs, but there is no hard and fast rule.
The paper begins with a description of the subject area of federal
Indian law; most particularly, the types of Indian law cases that reach the
Court. Indian law is an unusual area, and has several non-legal
4
See Adoptive Couple v. Baby Girl, 133 S. Ct. at 2564 n. 9; and id. at 2577 n. 5
(Sotomay or, J., dissenting).
5
See Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181 (2012); Cherokee Nation of
Oklahoma v. Leavitt, 543 U.S. 631 (2005).
6
See Strate v. A-1 Cont ractors, 520 U.S. 438 (1997).
7
See City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).
39
characteristics that affect how the Court decides these cases. Part I offers
several reasons why an amicus strategy is usually important in the Indian
cases. Part II parses through the array of amicus briefs in selected Indian
law cases from the last few decades. Part III reviews more ge nerally the
goals of amicus brief strategies in Supreme Court litigation. Part IV
analyzes the impact the amicus briefs actually had on the outcome of
selected cases by reviewing citations to and quotations of, amicus briefs
within the selected cases. Part V offers conclusions.
I.
THE IMPORTANCE OF AMICUS IN THE SUPREME COURT’S INDIAN CASES
There are several non-legal ways to describe American Indian law
cases before the Supreme Court. First, the cases are very unpopular,
unsexy cases for the Court. Jeffrey Toobin’s book notes that the clerks
consider these cases “dogs.” 8 Justice Brennan supposedly once referred
to an assignment to write the opinion in an Indian law case as a
“chickenshit” assignment. 9 Senior Justices often assign the Indian law
opinions to junior Justices. 10 It is probably unlikely that a Supreme Court
Justice will ascend to the High Court with an expertise in Indian law,
although one sitting Justice (Sotomayor) has demonstrated that Indian law
is a special area of her concern. 11 Similarly, it seems unlikely that a sitting
Justice would hire a clerk for their expertise in Indian law. And since few, if
any, clerks come from law schools where Indian law is emphasized
(mostly non-elite law schools in the west), it cannot be expected that
Supreme Court clerks will have any experience with Indian law questions.
That said, Supreme Court clerks are better than anyone in the world at
getting up to speed in short order.
8
J EFFREY TOOBIN, THE OATH: THE OBAMA W HITE H OUSE AND THE S UPREME C OURT 54
(2012).
9
BOB W OODWARD & SCOTT ARMSTRONG, THE B RETHREN 359 (1979).
10
Junior Justices authored the last three Indian law decisions. See Match-E-B e-NashShe-Wish Band of Pottawat omi Indians v. Patchak, 132 S. Ct. 2199 (2012) (Kagan);
Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181 (2012) (Sotomayor); United States v.
Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) (Alito).
11
See U.S. Supreme Court Justice Sonia Sotomayor Visits Law School, U NIV . N EW
MEXICO, http://lawschool.unm.edu/news/archives/2011/september/sotomayor.php (last
40
Second, tribal interests 12 are similarly disfavored by the Supreme
Court. The outcomes in the Indian cases since the 1986 Term, when Chief
Justice Rehnquist ascended, are stark—tribal interests have lost more
than 75 percent of their cases before the Court, a figure the late Dean
David Getches noted was worse than the failure rate of convicted
criminals before the Court. 13 It is also apparent from the Court’s certiorari
decisions that the only Indian law cases that attract the Court’s attention
are cases where the tribal interest has won below, or in the limited cases
where the United States acquiesces to Supreme Court review. 14 This is
not to accuse the Justices or the Court as an institution of overt
discrimination against tribal interests, but to note the extreme
disadvantage tribal interests face before the Supreme Court. After all,
tribal interests differ in fundamental ways than federal, state, business,
foreign, and even individual interests in that tribal governance activities
often are not sanctioned or constrained by the Constitution. Further, these
fundamentally different tribal interests enter into a Court that gives weight
based on the units of government most likely to represent consensus en
mass, rather than the divergent views of a particular locality. Consider, for
example, that the Supreme Court’s clerks decide the importance of a
particular amicus brief by employing a hierarchy of sovereignties. Briefs of
the United States government are highest on the list, followed by the state
briefs (regardless of the quality of the brief), local units of government, and
everyone else. 15
Third, tribal interests are incredibly diffuse. More often in recent
decades, tribal interests are on opposite sides, although this is rarely the
12
I use “tribal interests” to define the parties to which I am focusing. I include Indian
tribes, individual Indians backed by or siding with a tribe, government al and economic
entities siding with a tribe, and individuals siding with a tribe. Occasionally, individual
Indians are in opposition to this notion of “trib al interests,” most notably in criminal cases.
E.g., United States v. Lara, 541 U.S. 193 (2004) (nonmember Indian challenge to “Duro
fix”).
13
See David H. Getches, Beyond Indian Law: The Rehnquist Court ’s Pursuit of States’
Rights, Color-Blind Justice and Main-stream Values, 86 M INN. L. R EV . 267, 280-81
(2001).
14
See Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as a
Barrier to Justice for Indian Tribes, 51 ARIZ. L. R EV . 933, 937 (2009).
15
See Kelly J. Lynch, Best Friends?: Supreme Court Law Clerk s on Effective Amicus
Curiae Briefs, 20 J. L. & POL. 33, 46-49 (2004).
41
case in Supreme Court litigation, largely because the Court rarely finds
inter-tribal disputes important enough to be worthy of the Court’s
attention. 16 This is important because of the reality that the Supreme
Court’s decisions, absent some sort of check, apply universally to all of
Indian country. The most obvious example is Oliphant v. Suquamish
Indian Tribe,17 a decision barring tribal criminal jurisdiction over nonIndians involving an Indian tribe that had a tiny population, a nascent tribal
judicial system, and limited resources. That decision applies to all Indian
tribes, even those tribes with centuries-old criminal justice systems,
control over massive territorial bases, and sufficient economic and legal
resources to exercise prosecutorial authority, such as the Navajo Nation. 18
While it makes sense for some decisions to apply universally, it makes
less sense in other cases.
Fourth, information about Indian country is relatively scarce. 19
There are few methodologically sound social science studies on tribal
judicial systems, tribal economies, tribal legal infrastructure, and federal
and state relations with Indian tribes; although, that is beginning to
change. 20 Legal scholarship on American Indian law is nascent and often
skewed by political (and perhaps racial) biases. Representations made by
16
The last such case appears to be Nort hern Cheyenne Tribe v. Hollowbreast, 425 U.S.
649 (1976).
17
435 U.S. 191 (1978).
18
See generally Sarah Krakoff, A Narrative of Sovereignt y: Illuminating the Paradox of
the Domestic Dependent Nation, 83 O R. L. R EV . 1109, 1185 (2004) (“In 1980, two years
after Oliphant, an editorial in the Navajo Tim es complained: ‘The New Mexico State
government appears to be totally unconcerned about the problems it has created in the
checkerboard area with its decision to prohibit Navajo police from citing non-Indians into
tribal courts.’”) (footnote omitted).
19
See Philip P. Frickey, Address at University of Kans as Conference on Tribal Law and
Institutions, Feb. 2, 2008, Tribal Law, Tribal Context, and the Federal Courts, 18 KAN. J.L.
& PUB.POL’Y 24, 32 (2008) (“The larger, non-Indian community simply does not know very
much about tribal institutions and law. And what they don’t know tends not to hurt the
larger community, but instead, to hurt tribes.”).
20
E.g., MARY E. GUSS, M IRIAM JORGENSEN, M ELISSA L. TATUM, & SARAH D EER,
STRUCTURING S OVEREIGNTY : CONSTITUTIONS OF NATIVE NATIONS (forthc oming 2014)
(manuscript on file with author) (surveying tribal constitutional law).
42
tribal advocates and their adversaries often cannot be independently
verified by the Court and the clerks. 21
Finally, federal Indian law primarily is federal common law. Like
admiralty law, federal Indian law is the province of the Supreme Court.
While Congress can and does preempt many areas within federal Indian
law, large swaths of the field remain common law. In such circumstances,
the Court’s uncomfortable role as policymaker and legislative judiciary
arises. In one document—a private memorandum from Justice Scalia to
Justice Brennan—discovered by the late Dean David Getches in Justice
Marshall’s papers, 22 Justice Scalia wrote that:
[O]pinions in this field have not posited an original state of
affairs that can subsequently be altered only by explicit
legislation, but have rather sought to discern what the
current state of affairs ought to be by taking into account all
legislation, and the congressional “expectations” that it
reflects, down to the present day. 23
21
A paradigmatic example is the amicus brief in Strate v A -1 Cont ractors, Brief for the
American Trucking Ass'ns., Inc. et al. as Amici Curiae in Support of Respondents, Strate
v. A-1 Contractors, 520 U.S. 438 (1997) (No. 95 -1872), 1996 WL 711202, where the
Court’s amici alleged damning procedural facts about a tribal court case at the Crow
Nation’s reservation. See id. at 3. The amici alleged in the brief, which was a filed while
the tribal court case was pending, that a tribal judge addressed the all -Indian jury in the
language of the Absalooke people and suggested the case was a chance for them to
punish the railroad for historic transgressions. If true, the allegations are particularly
troubling, but it is, and would be impossible, for the Court to verify the truth of these
allegations.
22
See David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the
Supreme Court in Indian Law, 84 CAL. L. R EV . 1573, 1575 (1996).
23
See id. (quoting Memorandum from Justice Antonin Scalia to Justice William J.
Brennan, Jr. (Apr. 4, 1990) (Duro v. Reina, No. 88 -6546) (hereinafter Scalia
Memorandum), in PAPERS OF JUSTICE THURGOOD MARSHALL (reproduced from the
Collections of the Manuscript Division, Library of Congress). Thanks to the David H.
Getches Collection at the William A. Wise Law Library at the University of Colorado Law
School, the memorandum is now available at Turtle Talk. See Matthew L.M. Fletcher,
Scalia Memorandum to Brennan in Duro v. Reina, TURTLE TALK BLOG POST,
http://turtletalk.wordpress.com/2012/11/13/scalia -memorandum-t o-brennan-in-duro-vreina/ (last visited Nov. 24, 2013).
43
This unusually “frank admission” 24 by a sitting Supreme Court
Justice may overstate the case, but the fac t remains that public policy is
very much in play in the Court’s decision-making in Indian cases.
All of these factors make the role of amicus briefs very important in
the Supreme Court’s Indian cases. Information about Indian tribes and
Indian country is at a premium, and amicus briefs are critical sources for
information. As the next two sections show, however, to a large extent the
provision of critical information about Indian country is either, often not the
goal of the Indian law amici, or is simply unsuccessful.
II. SELECTIVE SURVEY OF AMICUS BRIEFS IN INDIAN LAW C ASES
Below, I outline four categories of amicus briefs for later review in
the Court’s Indian cases. 25 First, I identify “policy briefs” that provide new
information useful to helping the Court predict the outcomes of its
decision. I believe these briefs are likely to be the most influential on the
Court (“influential” being relative, of course). Second, I identify “alternative
merits argument briefs” that simply provide an alternative theor y upon
which the Court could rely in its ruling. The United States as amicus curiae
is probably the party most likely to file this kind of brief, although other
amici do on occasion. These briefs may be influential if the amicus is the
United States; less so if it is anyone else. Third, I identify “support briefs”
that merely support or reiterate the parties’ merits arguments. It is likely
that the vast majority of amicus briefs fit inside this third category. I do not
believe these amicus briefs are influe ntial, but they may be very useful to
the Court in focusing the Court’s attention on relevant precedents in cases
where the parties do not, for whatever reason. Finally, historical briefs are
useful in underscoring the origins of modern Indian policy, although their
influence is far from clear. I include history briefs as support briefs, and set
them aside for later discussion.
24
Frank Pommersheim, “New” Directions in Indian Law Scholarship: An Afterword, 32
AM. INDIAN L. R EV . 157, 159 (2007-2008).
25
My categories differ, but not much, from other commentators’. E.g., Paul M. Smith, The
Sometimes Troubled Relationship Bet ween Courts and Their “Friends”, exc erpt ed in
R ICHARD S EAMON, ANDREW S IEGEL, JOSEPH THAI, & KATHRYN W ATTS, THE S UPREME C OURT
SOURCEBOOK 362, 366 (2013).
44
An additional factor to consider is the organization and
development of the Tribal Supreme Court Project, operated by the
National Congress of American Indians and the Native American Rights
Fund. 26 The Project started actively participating and organizing the tribal
interest briefing in the Supreme Court in 2002. 27 The critical aspects of
that Project for the purposes of this paper are the focusing of amicus
briefs supporting tribal interests and the reduction in the number of
repetitive amicus briefs. Four of the cases studied here are affected.
I will first highlight, in numbers, the amicus briefs filed in these 13
Indian law cases, and then categorize them. The first chart merely shows
the number of briefs filed in these cases, and how many support tribal
interests and how many oppose.28
About two-thirds of the amicus briefs filed before the Supreme
Court in the 13 Indian cases I study are supportive of tribal interests, but
the outcomes in those cases were almost exactly the opposite—tribal
interests lost two-thirds of the cases. This fact alone lends support to the
initial, but weak, hypothesis that amicus briefs are not all that influential.
Certainly, other factors can account for this array. Weaker positions may
require additional amici support, for example.
Another fact that will require some consideratio n is that tribal
interests are now very well represented in the high stakes and expensive
arena of Supreme Court litigation. This is a relatively new development,
especially considering that tribal economies bolstered by Indian gaming
26
See generally Tracy Labin, We Stand Unit ed Before the Court:The Tribal Supreme
Court Project, 37 N EW ENG. L. R EV . 695 (2003).
27
Id.
28
A few notes about the chart. I generally do not include certiorari stage briefs (those
amicus briefs either supporting or opposing a petition for certiorari), but I included one
such brief in the City of Sherrill case because it was the only brief before the Supreme
Court in that case that argued in favor of the argument upon whic h the Court actually
decided the matter. Also, there was a third amicus brief that purported to partially support
the tribal interests, perhaps bec ause of a missed filing deadline, but was strongly in
opposition to tribal interests. I included that brief as an opposing brief.
45
floundered until the Supreme Court’s Cabazon Band decision in 1987,29
and the resulting enactment of the Indian Gaming Regulatory Act in
1988.30 Moreover, it wasn’t until 2000 that Congress finally removed the
requirement under federal law that all contracts between attorneys and
Indian tribes were invalid unless approved by the Secretary of Interior. 31
Tribal interests, more than ever before, have the resources and the legal
capacity to represent themselves in high stakes Supreme Court litigation.
A.
Policy Briefs
As noted above, I counted a brief as a policy brief where the brief
dedicates a significant portion (usually a whole part or section) to making
public policy arguments about the importance of the potential outcomes.
For example, in the California v. Cabazon Band32 and Seminole Tribe v.
Florida33 cases, both of which involved some aspect of Indian gaming, a
policy brief might include information about the economic impact of a
decision limiting tribal gaming opportunities.
29
California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Indian gaming is
now a $27.9 Billion per year concern nationally. See 2012 Indian gaming revenues
increase 2.7 percent, NATIONAL INDIAN GAMING COMMISSION, July 23, 2013,
http://www.nigc.gov/P ortals/0/NIGC%20Uploads/readingroom/pressreleases/2012Indiang
amingrevenuesincreasegraphics.pdf (last visited Nov. 24, 2013).
30
25 U.S.C. §§ 2701 (2012).
31
See S. REP. 106-150, at 1 (1999) (“S. 613 also amends the Indian Reorganization Act
of 1934 and § 81 to eliminate any statutory requirement for federal review of tribal
contracts with attorneys.”).
32
480 U.S. 202 (1987).
33
517 U.S. 44 (1996).
46
This chart details the number of cases in which a policy brief
appeared, and how many policy briefs appeared overall. 34
Policy Briefs
Number of
Total Policy
Briefs
Cases in
Which
Policy…
0
20
40
Cases in Number of
Which
Total
Policy Brief
Policy
Appears
Briefs
Policy Briefs Opposing Tribal
Interests
5
7
Policy Briefs Supporting Tribal
Interests
11
28
Total
11
35
B.
Policy Briefs Opposing Tribal
Interests
Policy Briefs Supporting
Tribal Interests
Total
Alternative Merits Arguments Briefs
In relatively few instances, amici filed briefs making arguments on
the merits not raised by the parties. Once again, I counted these briefs if
the amici dedicated a substantial portion of the brief (a part or section) to
an alternate argument not initially addressed by the parties (the argument
might be addressed in reply briefs, of course). One example is the amicus
brief filed (at the cert stage) by local units of government in the City of
Sherrill v. Oneida Indian Nation.35 A case arguing that the Oneida’s claim
34
A few notes. In every case where an amicus filed a policy brief, amici supporting tribal
interests filed a brief. In half of the cases where an amicus filed a policy brief, amici
opposing tribal interests filed a brief.
35
544 U.S. 197 (2005).
47
to tax immunity in their on-reservation fee lands was foreclosed by
equitable defenses such as laches. This chart details the number of cases
in which an alternative merits argument brief appeared, and how many of
these briefs appeared overall.
Alternative Merits Arguments Briefs
Number of
Total
Alternative
Argument…
Cases in
Which
Alternative
Argument…
0
20
40
Cases in
Number of
Which
Total
Alternativ
Alternativ
e
e
Argument
Argument
s Brief
s Briefs
Appears
Alternative Arguments Briefs
Supporting Neither Party
1
2
Opposing Tribal Interests
7
11
Supporting Tribal Interests
11
16
Total
12
29
Alternative Arguments
Briefs Supporting Neither
Party
Alternative Arguments
Briefs Opposing Tribal
Interests
48
C.
Support Briefs
By far the largest category includes amicus briefs that supported,
enhanced, or reiterated the merits arguments of the parties. Again, I
counted amicus briefs that devoted a substantial portion of the brief, a part
or section, to arguing the merits. Support briefs in Indian law cases that
enhanced the parties’ merits arguments often included additional
information about the history of a particular tribe or group of similar tribes,
or information about a class of treaties or federal statutes dealing with
similar questions. I include these history briefs as support briefs, but set
them aside for further discussion as well. Examples of support briefs
include the briefs filed by law professors or historians specializing in
American Indian law in Carcieri v. Salazar. 36 These briefs delved into the
history of the Indian Reorganization Act. Of note, there is a stark divide
here, more so than in the other categories, of the sheer number of support
briefs supporting tribal interests—there are two-and-a-half times more
support briefs in favor of tribal interests than opposed.
Support Briefs
Total …
Cases in …
0
36
100
Cases in
Which
Support
Briefs
Appear
Total
Number of
Support
Briefs
Total Support Briefs
11
22
13
55
Total
13
77
555 U.S. 379 (2009).
49
III.
GOALS OF SUPREME COURT AMICUS BRIEFS
The goals of a Supreme Court amicus brief vary widely. “At one
extreme is the brief, filed . . . for a particular outcome, that contains no
legal analysis and a scanty, one -sided policy argument. At the other
extreme is the brief, filed by an expert that is far superior to anything filed
by either of the parties.” 37 Within this spectrum are amicus briefs that are
more effective in persuading the Court than others. For example, an
amicus can “demonstrate and emphasize areas of importance or conflict
that are outside the expertise of the parties.” 38 Robert Stern and Eugene
Gressman argue that important national organizations have a better view
of the big picture: “For example, an international union or the AFL-CIO
may be able to visualize and stress the importance of a particular labor
law question to the national labor movement far better than the local union
and the small company that are parties to the controversy.” 39 The best
amicus briefs have critical impacts on the decisions reached by the Court,
as veteran Supreme Court litigator Bruce Ennis once wrote:
Occasionally, a case will be decided on a ground suggested
only by an amicus, not by the parties. Frequently, judicial
rulings, and thus their precedential value, will be narrower or
broader than the parties had urged, because of a persuasive
amicus brief. Courts often rely on factual information, cases
or analytical approaches provided only by an amicus. A good
idea is a good idea, whether it is contained in an amicus
brief or in the brief of a party. 40
37
SUSAN LOW BLOCH, VICKI C. JACKSON & THOMAS G. KRATTENMAKER, INSIDE THE S UPREME
COURT: THE INSTITUTION AND I TS P ROCEDURES 931-32 (2008).
38
ROBERT L. STERN & E UGENE G RESSMAN, SUPREME COURT P RACTICE 497 (1978)
(footnote omitted).
39
Id. at 497 n. 103.
40
Bruce J. Ennis, Effective Amicus Briefs, 33 CATH. U. L. R EV . 603, 603 (1984).
50
One could easily analogize this purpose to how modern tribal
organizations and their sometimes-adversaries (such as, state and local
governments) utilize amicus briefs in Supreme Court litigation. 41
Occasionally, amicus briefs can be harmful by wasting the Court’s
time, by being duplicative, or by undermining the strategy of the party the
amicus is trying to support; as veteran Supreme Court litigator Doug
Laycock wrote:
Alternatively amicus briefs can be a waste of time; they can
even do affirmative harm to the cause they are trying to
support. If there are too many amicus briefs, the important
ones that the party needs the Court to read may get lost in
the clutter. Worse, unrestrained amicus briefs may
aggressively argue for applications and extensions of the
party’s argument that the party is trying to avoid or disclaim.
Occasionally, an amicus brief may disclose bad facts that
are not in the record. 42
In my view, the best amicus briefs in Indian law cases offer some
specialized and useful bits of information to the Supreme Court,
information not otherwise available. Some social science researchers
agree that non-parties file amicus briefs as a means of providing the
Supreme Court with information important to the Court’s decision-making
process: “Since litigants are more likely to be narrowly focused on the
case outcome, the broader policy implications of the decision may not be
discussed in their briefs. In contrast, amicus briefs may provide this
information and help the Court’s members understand the policy
41
For example, in Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S.
316 (2008), the Cheyenne River Sioux Tribe as amicus provided the Supreme Court with
detailed descriptions and explanations of the inner workings of the Cheyenne River Sioux
Tribal Court. See Brief for Amicus Curiae Cheyenne River Sioux Tribe in Support of
Respondents, Plains Commerce Bank, 554 U.S. 316 (2008) (No. 07 -411), 2008 WL
782553.
42
Douglas Laycock, Persuasion in Hot-B utton Cases, in PERSUASION AND IDEOLOGY :
POLITICALLY DIVISIVE CASES IN A PPELLATE COURTS, 7TH ANNUAL MSU INDIGENOUS LAW
CONFERENCE MATERIALS 19, 42 (2010) (available through the author).
51
implications of their rulings.” 43 In Indian law, an area of federal common
law, where the Supreme Court’s policymaking and legislative functions are
in play, policy-oriented amicus briefs are very relevant. One survey of
former Supreme Court clerks strongly suggests that amicus briefs offering
information expanding upon the positions of the parties are very helpful. 44
A note about historical information and Indian law—as Bruce Ennis
wrote: “[T]he amicus can support points the party is making by providing a
detailed legislative or constitutional history [or] a scholarly exposition of
the common law. . . ” 45 There should be no question that the Supreme
Court benefits from amicus briefs in this vein, given that federal Indian law
is replete with nigh-ancient common law doctrines and labyrinthine
statutory schemes. Several amici offered detailed expositions of historical
information in these cases; and, unlike the other subcategories here,
these briefs likely had influence on the Supreme Court by providing clear
and cogent historical support, even if the Court did not cite these briefs
directly.
IV.
IMPACT OF AMICUS BRIEFS IN INDIAN LAW CASES
Here, I selectively review amicus briefs in several cases, providing
prototypical examples of each of the categories of amicus briefs I have
identified. I will focus on a small sampling of cases whose issues tended
to be based in federal common law and therefore had policy questions for
the Court to decide; or had broader policy implications beyond Indian law;
or otherwise were more likely to have included amicus briefs that likely
had some influence on the Court’s decision. Those cases are (in reverse
chronological order): Adoptive Couple v. Baby Girl (2013),46 United States
43
James F. Spriggs & Paul J. Wahlbeck, Amicus Curiae and the Role of Information at
the Supreme Court, 50 POL. R ES. Q. 365, 367 (1997) (citations omitted).
44
See Lynch, supra note 15, at 41; Kelly J. Lynch, Best Friends?: Supreme Court Law
Clerk s on Effective Amicus Curiae Briefs, 20 J. L. & POL. 33, 41 (2004) (“The majority of
clerks (56 percent) explained that amicus briefs were most helpful in cases involving
highly technical and specialized areas of law, as well as complex statutory and regulat ory
cases … [N]oteworthy areas of law included: railroad preemption, water rights, marine
labor, immigration and Native American law.”) (emphasis added).
45
Ennis, supra not e 40, at 606.
46
133 S. Ct. 2552 (2013).
52
v. Jicarilla Apache Nation (2012),47 Carcieri v. Salazar (2009), 48 City of
Sherrill v. Oneida Indian Nation (2005),49 Cherokee Nation v. Leavitt
(2005), 50 United States v. Lara (2004), 51 Kiowa Tribe v. Manufacturing
Technologies (1998),52 South Dakota v. Yankton Sioux Tribe (1998),53
Strate v. A-1 Contractors (1997), 54 Seminole Tribe v. Florida (1996),55
Duro v. Reina (1990),56 Cotton Petroleum v. New Mexico (1989), 57 and
California v. Cabazon Band of Mission Indians (1987).58 Tribal interests
prevailed in four of these 13 cases, 59 a figure consistent with the 20-25
percent win rate for tribal interests during this period.
It is not easy to measure in any meaningful way the impact or
influence that an amicus brief might have on the Supreme Court’s
decision-making. A Supreme Court decision relying heavily on an amicus
brief might cite or quote from the amicus brief. Or an amicus brief might
have influence by being part of the Court’s decision, even where the Court
rejects the thrust of the amici’s argument. The Court simply might not even
cite to an amicus brief, leaving amici to wonder if, or at all, their brief had
any impact. In this Part, the article addresses instances where the Court
cites to amicus briefs, and categorizes the citations by significance.
47
131 S. Ct. 2313 (2011).
555 U.S. 379 (2009).
49
544 U.S. 197 (2005).
50
543 U.S. 631 (2005).
51
541 U.S. 193 (2004).
52
523 U.S. 751 (1998).
53
522 U.S. 329 (1998).
54
520 U.S. 438 (1997).
55
517 U.S. 44 (1996).
56
495 U.S. 676 (1990).
57
490 U.S. 163 (1989).
58
480 U.S. 202 (1987).
59
See Cherok ee Nation v. Leavitt, 543 U.S. 631(2005); United States v. Lara, 541 U.S.
193 (2004); Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 751(1998); and
California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).
48
53
A. Significant Discussion of Arguments or Information Raised
in Amicus Briefs
I cherry-picked these 13 cases because in many of these opinions
the Court has reviewed amicus briefs and made conclusions based on
those briefs. I will start with opinions in which the Court actually discussed
arguments or information raised in amicus briefs, as the Court did in eight
of the 13 cases. I will categorize each discussion as (1) adoption or (2)
rejection.
1. Adoption
In a small number of cases (I count two), the Supreme Court cited
amicus briefs favorably. I put these cases in the category of “adoption,” in
that the Court may have adopted an argument presented by the amicus,
or at least utilized the argument presented by the amicus to develop its
holding or shape its reasoning.
a.
Cherokee Nation v. Leavitt
In Cherokee Nation v. Leavitt,60 the Supreme Court agreed with the
tribal interests and their amici, most notably the United States Chamber of
Commerce, that the federal government owed contract support costs to
government contracts even where Congress had not expressly
appropriated funds for that purpose. The Court’s opinion cited tribal
interest amici favorably here, although it referenced the parties’ merits
arguments first. 61 Regardless, here the Supreme Court adopted the
60
61
543 U.S. 631 (2005).
The Court wrote:
The Tribes (and their amici) add, first, that this Court has said that “a
fundamental principle of appropriations law is that where Congress
merely appropriates lump-sum amounts without statutorily restricting
what can be done with those funds, a clear inference arises that it does
not intend to impose legally binding restrictions, and indicia in committee
reports and other legislative history as to how t he funds should or are
expected to be spent do not establish any legal requirements on the
agency.”
54
reasoning of the amici that federal statutes authorizing government
contracting generally require government payment for services, even
where Congress’ appropriations are insufficient to pay all costs.
b.
United States v. Lara
In United States v. Lara, 62 the Supreme Court held that Congress
has authority to recognize tribal inherent authority to prosecute
nonmember Indians. In two instances (one more important than the other),
the Court cited to amici supporting tribal interests. First, the Court cited to
an amici in relation to particular facts of the case. 63 In the second instance,
Justice Thomas in his concurrence, cited to an amici supporting tribal
interests that offered supporting authorities on a point he wished to raise
in opposition to tribal interests. 64
The Tribes and their amici add, second, that as long as Congress has
appropriated sufficient legally unrestricted funds to pay the contracts at
issue, the Government normally cannot back out of a promise to pay on
grounds of “insufficient appropriations,” even if the contract uses
language such as “subject to the availability of appropriations,” and even
if an agency’s total lump-sum appropriation is insufficient to pay all the
contracts the agency has made.
As we have said, the Government denies none of this. Thus, if it is nonethel ess to
demonstrate that its promises were not legally binding, it must show something special
about the promises here at issue. That is precisely what the Government here tries, but
fails, to do.
Id. at 637-38 (emphasis added) [citations omitted].
62
541 U.S. 193 (2004).
63
The Court wrote:
Respondent Billy Jo Lara is an enrolled member of the Turtle Mountain
Band of Chippewa Indians in north-central North Dakota. He married a
member of a different tribe, the Spirit Lak e Tribe, and lived with his wife
and children on the Spirit Lak e Reservation, also located in North
Dak ota. See Brief for Spirit Lak e Sioux Tribe of North Dak ota et al. as
Amici Curiae 4-5. After several incidents of serious misconduct, the Spirit
Lake Tribe issued an order excluding him from th e reservation. Lara
ignored the order; federal officers stopped him; and he struck one of the
arresting officers.
Id. at 196 (emphasis added) [citation omitted].
64
Justice Thomas wrote:
It does not appear that the President has any cont rol over tribal off icials,
let alone a substantial measure of the appointment and removal power.
Cf. Brief for National Congress of American Indians as Amicus Curiae
55
These citations are less important than the citations in Cherokee
Nation. The first citation is to the facts, otherwise not noteworthy, but it still
shows that the Court digested the brief of the Spirit Lake Sioux Tribe to
some extent. The second citation, coming as it does in a concurring
opinion, is less important still, but the fact that Justice Thomas relied upon
the amicus brief of the National Congress of American Indians to
demonstrate his agreement with the amicus is very important, even if he
would use the arguments in the brief to potentially undercut the amici’s
position.
2. Rejection
In another sampling of cases, which I place in a category called
“rejection,” the Supreme Court addresses but ultimately rejects the
arguments raised by amici. Rejected amicus arguments remain influential,
as some of the following discussions demonstrate, because the Court
believed they were important enough to address. Moreover, these rejected
arguments of amici can be helpful in limiting the damage to the amici’s
interests.
In Adoptive Couple v. Baby Girl,65 the Supreme Court held that the
Indian Child Welfare Act did not apply to the adoption of an Indian child
where the Indian parent objecting to the adoption did not have custody.
The majority opinion briefly touched upon—and disapproved of—a
representation by the United States as amicus curiae,66 and the dissent
directly rejected an aspect of the United States’ legal position.
27-29. Thus, at least until we are prepared to recognize absolutely
independent agencies entirely outside of the Executive Branc h with the
power to bind the Executive Branch (for a tribal prosecution would then
bar a subsequent federal prosecution), the tribes cannot be analogized
to administrative agencies, as the dissent suggests. That is, reading the
“Duro fix” as a delegation of federal power (without also divining some
adequate method of Presidential control) would creat e grave
constitutional difficulties. Accordingly, the Court has only two options:
Either the “Duro fix” changed the result in Duro or it did n othing at all.
Id. at 216 (Thomas, J., concurring in judgment ) (emphasis added) [citations omitted].
65
133 S. Ct. 2552 (2013).
66
The Court wrote:
56
a.
United States v. Jicarilla
In United States v. Jicarilla Apache Nation,67 the Supreme Court
ruled that the federal government’s trust obligations to Indians and Indian
tribes differ from a standard common law trust on the question of whether
the government as trustee must turn over attorney-client privileged
material to the tribal beneficiary. The Court held the government’s trust
obligations do not require that action. The Court directly addressed and
rejected the arguments made by the amici supporting the tribe. 68
b.
Carcieri v. Salazar
In Carcieri v. Salazar, 69 the Court held that the Secretary of
Interior’s authority to acquire land in trust for Indian tribes did not extend to
trust acquisitions for tribes not “under federal jurisdiction” in 1934, when
Biological Father and the Solicitor General argue that a tribe or state
agency could provide the requisite remedial services under § 1912(d).
Brief for Res pondent Birth Father 43; Brief for United States as Amicus
Curiae 22. But what if they don't? And if they don't, would the adoptive
parents have to undertak e the task ?
Id. at 2564 n. 9 (emphasis added).
67
131 S. Ct. 2313 (2011).
68
The Court wrote:
We cannot agree with the Tribe and its amici that “[t]he government and
its officials who obtained the advice have no stak e in [the] substance of
the advice, beyond their trustee role,” Brief for Respondent 9, or that “the
United States’ interests in trust administration were identical to the
interests of the tribal trust fund beneficiaries,” Brief for National Congress
of American Indians et al. as Amici Curiae 5. The United States has a
sovereign interest in the administration of Indian trusts distinct from the
private interests of those who may benefit from its administration. Courts
apply the fiduciary exception on the ground that “management does not
manage for itself.” [citations omitted] But the Government is ne ver in that
position. While one purpose of the Indian trust relationship is to benefit
the tribes, the Government has its own independent interest in the
implementation of federal Indian policy. For that reason, when the
Government seeks legal advice related to the administration of tribal
trusts, it establishes an attorney-client relationship related to its
sovereign interest in the execution of federal law. In other words, the
Government seeks legal advice in a “personal” rather than a fiduciary
capacity.
69
555 U.S. 379 (2009).
57
Congress enacted the Indian Reorganization Act. 70 The Court thus
invalidated the Secretary’s trust acquisition of land for the benefit of the
Narragansett Indian Tribe of Rhode Island, which the Court appeared to
hold was under state jurisdiction in 1934. 71 The Court expressly rejected
numerous arguments by the amici favoring tribal interests (also, here, the
interests of the United States). 72
70
71
72
See id. at 395-96 (interpreting 25 U.S.C. § 479 (2012)).
See id. at 395.
The Court wrote:
The Secretary and his amici also go beyond the statutory text to argue
that Congress had no policy justification for limiting the Secretary’s trust
authority to those tribes under federal jurisdiction in 1934, because the
IRA was intended to strengthen Indian communities as a whole,
regardless of their status in 1934. Petitioners counter that the main
purpose of § 465 was to revers e the loss of lands that Indians sustained
under the General Allotment Act. . . so the statute was limited to tribes
under federal jurisdiction at that time because they were the tribes who
lost their lands. We need not consider thes e competing policy views,
because Congress’ use of the word “now” in § 479 speaks for itself and
“courts must presume that a legislature says in a statute what it means
and means in a statute what it says there.”
***
The Secretary and his supporting amici also offer t wo alternative
arguments that rely on statutory provisions other than the definition of
“Indian” in § 479 to support the Secretary’s decision to tak e this parcel
into trust for the Narragansett Tribe. We reject both arguments.
First, the Secretary and several amici argue that the definition of “Indian”
in § 479 is rendered irrelevant by the broader definition of “tribe” in § 479
and by the fact that the statute authorizes the Secretary to tak e title to
lands “in the nam e of the United States in trust for the Indian tribe or
individual Indian for which the land is acquired.” § 465 (emphasis added);
Brief for Res pondents 12–14. But the definition of “tribe” in § 479 itself
refers to “any Indian tribe” (emphasis added), and therefore is limited by
the temporal restrictions that apply to § 479’s definition of “Indian.” See §
479 (“The term ‘tribe’ wherever us ed in this Act shall be construed to
refer to any Indian tribe, organized band, pueblo, or the Indians residing
on one reservation” (emphasis added)). And, although § 465 authorizes
the United States to take land in trust for an Indian tribe, § 465 limits the
Secretary’s exercise of that aut hority “for the purpose of providing land
for Indians.” There simply is no legitimate way to circumvent the
definition of “Indian” in delineating the Secretary’s authority under §§ 465
and 479.
58
The vote tally in Carcieri was 8-1 against the interests of the amici, but the
real action in the majority, concurring, and dissenting opinions involved the
scope of the decision. Justice Thomas, it appears, was forced to address
arguments advanced by amici in his majority opinion, demonstrating (if
Second, amicus National Congress of American Indians (NCAI) argues
that 25 U.S.C.
§ 2202, which was enacted as part of the Indian Land
Cons olidation Act (ILCA), Title II, 96 Stat. 2517, overcomes the
limitations set forth in § 479 and, in turn, authorizes the Secretary’s
action. Section 2202 provides:
“The provisions of section 465 of this title shall apply to all tribes
notwithstanding the provisions of section 478 of this title: Provided, That
nothing in this section is intended to supers ede any other provision of
Federal law which authorizes, prohibits, or restricts the acquisition of
land for Indians with respect to any specific tribe, reservation, or
state(s).” (alteration in original. )
NCAI argues that the “ILCA independently grants authorit y under Section
465 for the Secretary to execute the challenged trust acquisition.” NCAI
Brief 8. We do not agree.
The plain language of § 2202 does not expand the power set forth in §
465, which requires that the Secret ary take land into trust only “for the
purpose of providing land for Indians.” Nor does § 2202 alt er the
definition of “Indian” in § 479, which is limited to members of tribes that
were under federal jurisdiction in 1934. [citations omitted] Rat her, § 2202
by its terms simply ensures that tribes may benefit from § 465 even if
they opted out of the IRA pursuant to § 478, which allowed tribal
members to reject the application of the IRA to their tribe. § 478 (“This
Act shall not apply to any reservation wherein a majority of the adult
Indians. . . shall vote against its application”). As a result, there is no
conflict between § 2202 and the limitation on the Secretary’s authority to
take lands contained in § 465. Rather, § 2202 provides addit ional
protections to those who satisfied the definition of “Indian” in § 479 at the
time of the statute’s enactment, but opted out of the IRA shortly
thereafter.
NCAI ’s reading of § 2202 also would nullif y the plain meaning of the
definition of “Indian” set forth in § 479 and incorporated into § 465.
Consistent with our obligation to give effect to every provision of the
statute. . .we will not assume that Congress repealed the plain and
unambiguous restrictions on the Secretary’s exercise of trust authority in
§§ 465 and 479 when it enacted § 2202. “We have repeatedly stated. . .
that absent ‘a clearly expressed congressional intention,’. . . [a]n implied
repeal will only be found where provisions in two statutes are in
‘irreconcilable conflict,’ or where the latter Act covers the whole subject
of the earlier one and ‘is clearly intended as a substitute.’”
Carcieri v. Salaz ar, 555 U.S. at 392-95 (emphasis added) [citations omitted].
59
nothing else) that perhaps the case was closer than the 8-1 vote tally
showed. Notably, Justice Breyer’s concurrence and Justice Stevens’
dissent both cited to amici as means of limiting the reach of the Court’s
opinion. 73 Similarly, but in dissent, Justice Stevens, relying on an amicus
brief filed by one of the amici below, wrote to limit the breadth of the
majority opinion. 74
We now know that it is clear the opinions of Justices Breyer and
Stevens portend the future of litigation in this area. There are numerous
post-Carcieri cases pending, almost all of them involving heavy litigation
73
Justice Breyer noted:
Third, an interpretation that reads “now” as meaning “in 1934” may prove
somewhat less restrictive than it at first appears. That is becaus e a tribe
may have been “under Federal jurisdiction” in 1934 even though the
Federal Government did not believe so at the time. We k now, for
example, that following the Indian Reorganization Act’s enactment, the
Department compiled a list of 258 tribes covered by the Act; and we also
k now that it wrongly left certain tribes off the list. See Brief for Law
Professors Specializing in Federal Indian Law as Amicus Curiae 22–24;
Quinn, Federal Acknowledgment of American Indian Tribes: The
Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331,
356–359 (1990). The Department later recognized some of those tribes
on grounds that showed that it should have recognized them in 1934
even though it did not. And the Department has sometimes considered
that circumstance sufficient to show that a tribe was “under Federal
jurisdiction” in 1934—even though the Department did not know it at the
time.
Id. at 397-98 (Breyer, J., concurring) (emphasis added).
74
He wrote:
Although Congress has passed specific statutes granting the Secretary
authority to take land into trust for certain tribes, it would be a mistake to
conclude that the Secretary lacks residual aut hority to take land into trust
under § 5 of the IRA, 25 U.S.C. § 465. Some of these statutes place
explicit limits on the Secretary’s trust authority and can be properly read
as establishing the outer limit of the Secretary’s trust authority with
respect to the specified tribes. [citations omitted] Other statutes, while
identifying certain parcels the Secretary will take into trust for a tribe, do
not purport to diminish the Secretary’s residual authority under § 465.
Indeed, the Secretary has invok ed his § 465 authority to tak e additional
land into trust for the Miccosuk ee Tribe despit e the existence of a statute
authorizing and directing him to acquire certain land for the Tribe. See
Post–Argument En Banc Brief for National Congress of American Indians
et al. as Amici Curiae 7 and App. 9 in No. 03 –2647(CA1).
Id. at 407 n. 7 (Stevens, J., dissenting) (emphasis added) [citations omitted].
60
over the extent of the Carcieri holding and focusing on these opinions. 75
The amici may have, if the post-Carcieri cases ultimately favor tribal
interests, staved off disastrous outcomes for tribal interests by providing a
guiding light to the concurring and dissenting Justices.
Although the Carcieri amicus briefs supporting tribal interests did
not persuade a majority of the Court, in overall terms the briefs may have
been as successful as any in that they offered sufficient support to the
concurrence and dissent to limit the import of the decision. Ultimately, as a
result of this effort, it may be that the only tribe foreclosed from eligibility to
utilize Section 5 by Carcieri is the Narragansett Tribe.
c.
Strate v. A-1 Contractors
In Strate v. A-1 Contractors, 76 the Supreme Court held that tribal
courts did not have civil adjudicatory jurisdiction over a tort claim brought
by a nonmember against a nonmember involving an accident arising on a
state-controlled highway on the reservation. The Court rejected an effort
by amici to persuade it to read one of its precedents in a manner
supportive of tribal interests. 77
75
E.g., Stand Up for California! v. Dept. of the Interior, 919 F. Supp.2d 51 (D. D. C. 2013);
First Amended Complaint for Declarat ory & Injunctive Relief, County of Amador v. Dept.
of Interior, No. 2:12-c v-01710-JAM, 2012 WL 4364462 (E.D. Cal., Sept. 20, 2012);
Defendants' Opposition to the Motion for Temporary Res training Order by Citizens for a
Better Way, United Auburn Indian Community of the Auburn Rancheria v. Dept. of
Interior, No. 2:13-CV -00064 JAM -AC, 2013 WL 373417 (E. D. Cal., Jan. 23, 2013); Wilton
Miwok Rancheria v. Salazar, Nos. C 07-05706 JF (PV T) & C 07-2681 JF (PV T), 2010 WL
1397185 (N.D. Cal., Feb 2, 2010); Complaint for Declaratory and Injunctive Relief, No
Casino in Plymouth v. Salaz ar, No. 2:12CV 01748, 2012 WL 5127077 (E.D. Cal., June 29,
2012); Cherokee Nation v. Salazar, No. 12CV-493 GKF TLW, 2012 WL 3964965 (N.D.
Okla., Aug. 29, 2012).
76
520 U.S. 438 (1997).
77
The Court wrote:
Petitioners and the United States as amicus curiae urge that Montana
does not cont rol this case. They maintain that the guiding precedents are
National Farmers and Iowa Mut ual, and that those decisions establish a
rule converse to Montana’s. Whatever Montana may instruct regarding
regulatory authority, they insist, tribal courts retain adjudicatory authority
in disputes over occurrences inside a reservation, even when the
episode-in-suit involves nonmembers, unless a treaty or federal statute
directs otherwise. Petitioners, further supported by the United States,
61
The amici favoring tribal interests here provided an alternate
argument on the question—that the precedent which the parties believed
to be controlling was not the correct precedent, which at the time was at
least partially an open question. The Court, it appears, used the
arguments advanced by the amici as an opportunity to shut down that line
of argument as an avenue for future litigation. In this respect, the amici’s
arguments backfired (although it can only be said to be true in hindsight,
and amici could not possibly be criticized for raising the argument).
As noted in the introduction, Strate was the case in which a railroad
asserted, in an amicus brief, that tribal courts in general were unfair to
nonmember litigants, an assertion based on its experiences in litigating
before the Crow Tribal Court. While the Court did not cite to this amicus,
Justice O’Connor’s questioning of the attorney for the United States
strongly suggested that the Court took very seriously the allegations
contained in the brief, and even may have believed that the structural
basis for the allegation (the racial basis of tribal membership) may be
endemic to tribal justice systems beyond the Crow Reservation.
The amici favoring tribal interests had no opportunity to respond to
the allegations made in the railroad brief, as the tribal party was the
petitioner, meaning the merits and amici briefs supporting the tribal
interests came first. Amici do not file reply briefs and the parties usually do
argue, alternately, that Mont ana does not cover lands owned by, or held
in trust for, a tribe or its members. Montana holds sway, petitioners say,
only with res pect to alienat ed reservation land owned in fee simple by
non-Indians. We address these arguments in turn.
***
We consider next the argument that Montana does not govern this case
because the land underlying the scene of the accident is held in trust for
the Three Affiliated Tribes and their members. Petitioners and the United
States point out that in Mont ana, as in later cases following Mont ana’s
instruction. . .the challenged tribal authorit y related to nonmember
activity on alienated, non-Indian reservation land. We “can readily
agree,” in accord wit h Montana, [citation] that tribes retain considerable
control over nonmember conduct on tribal land. On the particular matter
before us, however, we agree with respondents: The right-of-way North
Dakota acquired for the state’s highway renders the 6.59–mile stretch
equivalent, for nonmember governance purposes, to alienated, nonIndian land.
Id. at 447-48, 454 (emphasis added) [citations omitted].
62
not want to highlight bad facts in opposing amicus briefs by responding to
them. In fact, responses to the due process concerns expressed in the
railroad brief didn’t appear until more than a decade later in the United
States’ and other tribal amici’s briefs in Plains Commerce Bank v. Long
Family Land and Cattle Co.78
d.
Duro v. Reina
In Duro v. Reina,79 the Supreme Court held that Indian tribes have
no inherent criminal jurisdiction authority over nonmember Indians, an
outcome later reversed by Congress in the “Duro fix” legislation affirmed
by the Court in Lara. In a passage concerning the merits of extending prior
precedents, the Court rejected efforts by amici to distinguish an earlier
case.80 In a second passage, the Court rejected a claim by amici that the
78
554 U.S. 316 (2008). See generally Frank Pommersheim, Amicus Briefs in Indian Law:
The Case of Plains Commerce Bank v. Long Family Land and Cattle Co., 56 S.D. L. R EV .
86 (2011).
79
495 U.S. 676 (1990).
80
The Court wrote:
We think the rationale of our decisions in Oliphant and Wheeler, as well
as subsequent cases, compels the conclusion that Indian tribes lack
jurisdiction over persons who are not tribe members. Our discussion of
tribal sovereignty in Wheeler bears most directly on this case. We were
consistent in describing retained tribal sovereignty over the defendant in
terms of a tribe’s power over its members. Indeed, our opinion in
Wheeler stated that the tribes ‘cannot try nonmembers in tribal courts.’
435 U.S., at 326, 98 S. Ct., at 1087-88. Literal application of that
statement to these facts would bring this case to an end. Yet
respondents and amici, including the United States, argue forcefully that
this statement in Wheeler cannot be tak en as a statement of the law, for
the party before the Court in Wheeler was a member of the Tribe.
It is true that Wheeler presented no occasion for a holding on the present
facts. But the double jeopardy question in Wheeler demanded an
examination of the nature of retained tribal power. We held that
jurisdiction over a Navajo defendant by a Navajo court was part of
retained tribal sovereignty, not a delegation of aut hority from the Federal
Government. It followed that a federal pros ecution of the same offense
after a tribal conviction did not involve two prosecutions by the same
sovereign, and therefore did not violate the Double Jeopardy Clause.
Our analysis of tribal power was directed to the tribes’ status as limited
sovereigns, necessarily subject to the overriding authority of the United
States, yet retaining nec essary powers of internal self-governance. We
63
history of tribal government compelled a different result. 81 In a third
passage, the Court rejected a claim by amici that the nonmember Indian
had consented to tribal jurisdiction in accordance with tribal cultural
understandings. 82 In a final passage, the Court recognized a policy
argument by amici supporting tribal interests which alleged that eliminating
the tribal authority would create adverse policy implications on Indian
recognized that the ‘sovereignty that the Indian tribes retain is of a
unique and limited character.’
Id. at 685 (emphasis added) [citations omitted].
81
The Court wrote:
Respondents and amici argue that a review of history requires the
assertion of juris diction here. We disagree. The historical record in this
case is somewhat less illuminating than in Oliphant, but tends to support
the conclusion we reach. Early evidence concerning tribal jurisdiction
over nonmembers is lacking because ‘[u]ntil the middle of this cent ury,
few Indian tribes maintained any semblanc e of a formal court system.
Offenses by one Indian against another were usually handled by social
and religious pressure and not by formal judicial processes; emphasis
was on restitution rather than punishment.’ Cases challenging the
jurisdiction of modern tribal courts are few, perhaps because ‘most
parties acquiesce to tribal jurisdiction’ where it is asserted. We have no
occasion in this case to address the effect of a formal acquiescence to
tribal jurisdiction that might be made, for example, in return for a tribe’s
agreement not to exercise its power to exclude an offender from tribal
lands. . .
82
The Court wrote:
The United States suggests that Pima-Maricopa tribal jurisdiction is
appropriate because petitioner’s enrollment in the Torres -Martinez Band
of Cahuilla Mission Indians “is a sufficient indication of his self identification as an Indian, with traditional Indian cultural values, to mak e
it reasonable to subject him to the tribal court system, which. . .
implements traditional Indian values and customs.” Brief for United
States as Amicus Curiae 27. But the tribes are not mere fungible groups
of homogenous persons among whom any Indian would feel at home.
On the contrary, wide variations in customs, art, language, and physical
characteristics separate the tribes, and their history has been marked by
both intertribal alliances and animosities. Petitioner’s general status as
an Indian says little about his consent to the exercise of authority over
him by a particular tribe.
Id. at 695 (emphasis added) [citations omitted].
64
country law enforcement. The Court declined to address this question,
later suggesting Congress was the proper venue. 83
The amicus briefs in Duro, filed by amici supporting the tribal
interests, were heavily policy-oriented. One key argument from amici that
Justice Kennedy largely declined to address, although he acknowledged,
involved the jurisdictional gray area that the outcome in Duro could
create—if tribes didn’t have jurisdiction over the nonmember Indians within
their territories, then it was unclear whether state or federal authorities
would or could replace the tribal first responders. After the Duro Court told
the tribal interests to take their policy concerns to Congress, they did and
a short while later Congress enacted what became known as the “Duro
fix.” 84
83
The Court wrote:
Respondents and amici contend that without tribal jurisdiction over minor
offenses committed by nonmember Indians, no authority will have
jurisdiction over such offenders. They assert that unless we affirm
jurisdiction in this case, the tribes will lack important power to preserve
order on the reservation, and nonmember Indians will be able to violate
the law with impunity. Although the jurisdiction at stake here is over
relatively minor crimes, we recognize that protection of the community
from disturbances of the peace and other misdemeanors is a most
serious matter. But this same interest in tribal law enforcement is
applicable to non-Indian reservation residents, whose numbers are often
greater. It was argued in Oliphant that the absence of tribal jurisdiction
over non-Indians would leave a practical, if not legal, void in reservation
law enforcement. The argument that only tribal jurisdiction could meet
the need for effective law enforc ement did not provide a basis for finding
jurisdiction in Oliphant; neither is it sufficient here.
***
If the present jurisdictional scheme proves insufficient to meet the
practical needs of reservation law enforcement, then the proper body to
address the problem is Congress, which has the ultimate authority over
Indian affairs. We cannot, however, accept these arguments of policy as
a basis for finding tribal jurisdiction that is inconsistent with precedent,
history, and the equal treatment of Native American citizens.
Id., at 696, 698 (emphasis added) [citations omitted].
84
See Means v. District Court of the Chinle Judicial District, 2 Am. Tribal L. 439, 442
(Navajo Nation Supreme Court 1999) (discussing and describing the “Duro fix,” codified
at 25 U.S.C. § 1301(2)(2102)); United States v. Lara, 541 U.S. 193, 215-16 (2004)
(same). See also Alex Tallchief Skibine, United States v. Lara, Indian Tribes, and the
Dialectic of Incorporation, 40 TULSA L. R EV . 47, 51-53 (2004) (discussing Lara and the
Duro fix).
65
e.
United States v. New Mexico
In Cotton Petroleum v. New Mexico,85 the Supreme Court revised
its federal Indian law preemption doctrine and recognized an actionable
state interest in taxing on-reservation business activities by nonmembers.
Importantly, the parties to the case—a non-Indian-owned corporate
resource extraction company and a state—were entirely non-Indian. The
tribe in interest, the Jicarilla Apache Nation, did not participate as a party,
but instead as an amicus. The tribal interests prior to Cotton Petroleum
were important to the preemptio n analysis (although not as important as
the federal interest), but since the tribe was not a party, there was no
evidence presented to show the impact on the tribal interests by the state
taxation scheme.
The Court did address, and agree with, the arguments raised by
tribal amici that tribes should be treated as states under the Commerce
Clause for tax apportionment purposes. 86 Many of the non-tribal amici
(mostly the oil and gas companies) argued that the taxes should be
apportioned. The tribal amici apparently pursued an all-or-nothing strategy
when it came to whether or not the taxes should be apportioned, and
therefore received nothing.
85
490 U.S. 163 (1989).
The Court wrote:
In our order noting probable jurisdiction we invited the parties to address
the question whether the Tribe should be treat ed as a state for the
purpose of determining whether New Mexico’s taxes must be
apportioned. All of the Indian tribes that have filed amicus curiae briefs
addressing this question, including the Jicarilla Apache Tribe, have
uniformly tak en the position that Indian tribes are not states within the
meaning of the Commerce Clause. This position is supported by the text
of the Clause itself. Article I, § 8, cl. 3, provides that the ‘Congress shall
have Power. . . To regulate Commerce with foreign Nations, and among
the several states, and with the Indian Tribes.’ Thus, the Commerce
Claus e draws a clear distinction between “States” and “Indian Tribes.” As
Chief Justice Marshall observed in Cherokee Nation v. Georgia …: ‘The
objects to which the power of regulating commerce might be directed,
are divided into three distinct classes-foreign nations, the several states,
and Indian Tribes. When forming this article, the convention considered
them as entirely distinct.’ In fact, the language of the Clause no more
admits of treating Indian tribes as states than of treating foreign nations
as states.
86
66
The Jicarilla Apache Nation, as the tribe in interest, did not brief the
merits of the preemption claim, which would have allowed the Nation to
articulate to the Court its sovereign interests in the state taxation scheme.
But the Court ruled on the tribe’s sovereign interests anyway, noting that
the Nation had briefed the merits below. 87 The Court also noted that the
sheer number of amicus briefs filed by the non-Indian-owned oil and gas
companies was evidence, in its view, that the major impact of the state’s
taxation scheme was on them, not the tribe. 88
While the Court rejected the Jicarilla Apache Nation’s claims that
the State of New Mexico’s taxation expenditures inside the Jicarilla
reservation did not justify the state’s taxation, Justice Blackmun in dissent
relied heavily on the Nation’s amicus brief on this point. 89
87
The Court wrote:
Although Cotton did not press the pre-emption argument as an
independent claim before the New Mexico Court of Appeals, we
conclude that the issue is properly before us. Cotton did rely on our preemption cases at least as a “back drop” for its multiple taxation claim. In
addition, the pre-emption claim was fully briefed before the Court of
Appeals by the Tribe in its status as an amicus curiae. And finally, the
pre-emption claim was carefully considered and passed upon by the
Court of Appeals.
88
The Court wrote:
It is important to k eep in mind that the primary burden of the state
taxation falls on the non-Indian taxpayers. Amicus curiae briefs
supporting the position of Cotton in this case have been filed by New
Mexico Oil & Gas Association, Texaco Inc., Chevron U.S.A. Inc., Union
Oil Company of California, Phillips Petroleum Company, Wilshire Oil
Company of Texas, Exxon Corporation, Mobil Exploration and Producing
Nort h America Inc., Anadark o Petroleum Corporation, Southland Royalt y
Company, and Marathon Oil Company.
89
Justice Blackmun wrote:
The distribution of responsibility is even clearly reflected in the relevant
oil-and-gas-related expenditures during the 5-year period at issue in this
case: federal expenditures were $1,206,800; tribal expenditures were
$736,358; the State spent, at most, $89,384. Brief for Jicarilla Apache
Tribe as Amicus Curiae 10-11, n. 8. In any event, it is clear from this
Court's rejection of the Montana severance tax at issue in Montana v.
Crow Tribe [citation], that the mere fact that the State has made some
expenditures that benefit the taxed activities is not sufficient to avoid a
67
The Cotton Petroleum Court used the amicus briefs filed by the
Jicarilla Apache Nation and other tribal amici in the light least supportive of
the tribal position. The Court made constitutional findings of fact on the
preemption question without the benefit of hearing from the tribe affected,
except in an amicus brief filed below.
B.
What the Court Did Not Discuss
While the discussion in the previous subpart suggests that the
Supreme Court frequently takes into account the arguments of amici in
Indian law cases(and they do, given that one study suggested that the
Court cites to amicus briefs in fewer than one in five decisions 90), overall
the Court does not. This subpart reviews many of the important examples
where the Court fails to take into account amici.
1. “One-Sided Policy Arguments”
Several amici on both sides filed briefs that likely would fit under the
category of “one-sided policy argument,” to borrow a phrase from Inside
the Supreme Court.91 Many of these briefs invited the Supreme Court to
revisit foundational principles of federal Indian law, and perhaps even to
reverse precedents unappealing to the amici. With one unusual exception,
these briefs appear to have fallen on deaf ears.
The one exception appears to be the amicus brief filed in the cert
stage of City of Sherrill v. Oneida Indian Nation by the Towns of Lenox,
Stockbridge, and Southampton, New York. 92 That brief presented the
equitable defense of laches to the assertion of tribal sovereignty over
finding of pre-emption. Mont ana spent $500,000 to pay 25 percent of the
cost of a road used by employees and suppliers of a mine.
Id. at 207 n. 11 (Blackmun, J., dissenting) [citations omitted].
90
See Gregory A. Caldeira & John H. Wright, Amici Curiae before the Supreme Court:
Who Participates, When, and How Much?, 52 J. POL. 782, 788 (1990).
91
BLOCH, JACKSON & KRATTENMAKER, supra note 37.
92
See Brief of Amici Curiae Town of Lenox, New York; Town of Stockbridge, New York;
and Town of Southampton, New York in Support of Petitioner City of Sherrill, New York,
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) (No. 03 -855), 2004 WL
1835370.
68
newly-acquired lands by the Oneida Indian Nation. 93 No other party, likely
relying on the Court’s 1985 rejection of equitable defenses in dictum in a
related case, 94 briefed the issue. 95
2.
Duplicative Argument
A survey of former Supreme Court clerks by Kelly Lynch found that
the clerks emphatically refused to consider amicus briefs that offered “me
too”-style substance, where the brief reiterates ground already covered by
the parties’ merits briefs without offering anything “novel.” 96 Couple this
with a large number of amicus briefs, and the likelihood that any of the
briefs receive attention from the Court declines dramatically. 97
Tribal interest amici in the Cabazon Band, Cotton Petroleum,
Seminole Tribe, Kiowa Tribe cases filed a total of 31 amicus briefs—about
7.8 briefs per case. Most of these briefs included very repetitive
arguments -repetitive as to the parties’ briefs and repetitive as to each
other. Note that the Court decided these cases before 2002, when the
Tribal Supreme Court Project began to effectively organize tribal amici. 98
93
See id. at 6-12 (arguing that Congressional acquiescence to state purchases of tribal
lands and the passage of time between tribal land sale and ownership should be
addressed by the Supreme Court).
94
See Oneida County, N.Y. v. Oneida Indian Nation of N.Y., 470 U.S. 226, 244 n. 16
(1985).
95
The City of Sherrill decision did work a radical reinterpret ation of federal Indian law.
See generally Kathryn E. Fort, The New Laches: Creating Title Where None Existed, 16
GEO. MASON L. R EV . 357 (2009); Kathryn Fort, Disruption and Impossibility: The New
Laches and the Unfortunate Resolution of the Modern Iroquois Land Claims , 11 W YO. L.
R EV . 375 (2011).
96
Lynch, supra note 15, at 45. See also Fort, supra not e 91. (“Clerks repeatedly
emphasized that most amicus briefs filed with the Court are not helpful and tend to be
duplicative, poorly written, or merely lobbying documents not grounded in sound
argument.”). See also Ennis, supra note 40, at 608 (“[ T]he amicus should avoid
duplicating the work of the parties. It is an improper use of the amicus role, and an
imposition on the Court, to file a ‘me too’ amicus brief.”).
97
See Lynch, supra note 15, at 45 (“A few clerks noted that, in cases where fewer amicus
briefs are filed, there is a great er probability that each will be given more attention. ”).
98
Amici supporting tribal interests filed 23 amicus briefs in Adoptive Couple v. Baby Girl,
133 S. Ct. 2552 (2013), even with the guidance of the Tribal Supreme Court Project.
69
The opposite of duplication is collaboration, a tactic approved of by
the Supreme Court clerks in Kelly Lynch’s study. 99 In contrast to the tribal
amici, the amici most often opposing tribal interests—state governments—
collaborated extensively. Multiple states—and sometimes dozens of
them—combined to sign on to a single amicus brief in several cases—
Adoptive Couple, City of Sherrill, Carcieri, Yankton Sioux, Kiowa Tribe,
Strate, Seminole Tribe, and Cotton Petroleum. The interests supported by
the states won six of eight cases. Notably, in United States v. Lara, 100 the
state amici split into two briefs, one supporting tribal interests and another
marginally supporting tribal interests. Even more notably, the only other
time the state amici split up, in California v. Cabazon Band of Indians,101
the state interests lost. Adoptive Couple v. Baby Girl,102 where 18 states
signed on to an unsuccessful brief in support of tribal interests with no
opposing state brief, is a true anomaly.
V.
LOOKING FORWARD: THE SUPREME COURT AS LEGISLATIVE JUDICIARY
IN THE INDIAN C ASES
Federal Indian law, as federal common law uniquely subject to
interpretation and modification by the Supreme Court, could be fertile
ground for policy arguments on the merits of important Indian law
questions. I have argued elsewhere that the Supreme Court’s overarching
theory of federal Indian law is “pragmatic utilitarianism.” 103 I say pragmatic
(borrowing from Judge Posner’s assumption of “institutional and material
constraints on decision-making by officials in a democracy”) 104 because of
the Court’s temptation to rely upon on “what the current state of affairs
ought to be.” 105 And I say utilitarianism because of the Court’s obligation to
99
See Lynch, supra note 15, at 57 (“Almost 90 percent of clerks expressed a preference
for collaboration, at least in certain circumstances. Most clerks explained that they would
prefer to see more collaboration because there would be fewer total amicus briefs to
read.”).
100
541 U.S. 193 (2004).
101
480 U.S. 202 (1987).
102
133 S. Ct. 2552 (2013).
103
Matthew L.M. Fletcher, “National Implications of Sherrill,” Address, Syracuse
University College of Law, Eighth Annual Haudenosaunee Conference, Syracuse, NY
(November 19, 2011) (on file with author).
104
R ICHARD POSNER, LAW, PRAGMATISM, AND D EMOCRACY ix (2003).
105
Scalia Memorandum, supra note 23.
70
all Americans and American governmental institutions requires it to
consider the interests of all, and because the Court’s easiest routes are to
issue judgments favoring majorities absent clear constitutional rules to the
opposite. In order to win, amici supporting tribes must persuade the Court
that ruling in favor of tribal interests substantially benefits non-Indians. 106
It’s a hard road for tribal interests to walk, to be sure.
How does one find the convergence of Indian and non-Indian
interests?
I posit that finding those convergences and highlighting them is
absolutely critical to effective advocacy by amici. Interest convergence in
American Indian law tends to be economic or jurisdictional. These can be
extremely helpful to tribal interests where there are direct convergences of
interests that can involve traditional adversaries.
A.
Economic Interest Convergence
The tribal interests in the recent tribal government contracting
cases, Cherokee Nation v. Leavitt 107 and Salazar v. Ramah Navajo
Chapter,108 found common cause with the United States Chamber of
Commerce, an unusual ally, which expressed concerns to the Supreme
Court about government contracting in general. 109
As tribal business interests develop, more and more business
partners (perhaps even state governments) may be helpful as amici in
future cases. The recent convergence of the interests of the State of
106
Cf. Derrick A Bell, Jr., Brown v. Board of Education and the Interest-Convergence
Dilemma, 93 HARV . L. R EV . 518 (1980); see also ROBERT A. W ILLIAMS, J R., L IKE A LOADED
W EAPON xxxv (2005) (drawing upon Professor Bell’s interest-convergenc e theory to
articulate a “singularity thesis” for Indian affairs).
107
543 U.S. 631 (2005).
108
132 S. Ct. 2181 (2012).
109
See Brief of the Chamber of Commerce of the United States of America and the
National Defense Industrial Association as Amici Support of Respondents, Salazar v.
Ramah Navajo Chapter, 132 S. Ct. 2181 (2012) (No. 11 -551), 2012 WL 1132333; Brief of
Amici Curiae the Chamber of Commerce of the United States of Americ a, The National
Defense Industrial Association, and The Aerospace Industries Association in Support of
the Cherokee Nation and Shoshone -Paiute Tribes, Cherokee Nation v. Leavitt, 543 U.S.
631 (2005) (Nos. 02-1472, 03-853), 2004 WL 1386408.
71
Massachusetts and the Mashpee Wampanoag Tribe, 110 and the City of
Lansing, Michigan and the Sault Ste. Marie Tribe of Chippewa Indians 111
over the tribes’ gaming compact appro vals and trust acquisitions are
exemplary (even if they fail, as might occur).
B.
Jurisdictional Interest Convergence
The tribal interests in recent criminal jurisdiction cases have found
common cause with some state governments in recent years, most
notably in United States v. Lara.112 The state amici split in this case, with
one amicus brief led by Washington’s Attorney General supporting the
federal government and tribal positions in upholding the so -called “Duro
fix,” and another partially supporting the tribal position. 113
These convergences of interests are helpful, but unless the
substance of the amicus brief is valuable, the convergences might not
mean anything. The short survey of cases and amicus briefs above
suggests that briefs providing useful information to the Supreme Court are
good (not great) bets for influencing the Court. This information includes
historical and public policy information. 114 Conversely, briefs arguing for
doctrinal changes in the law are the least helpful.
110
See KG Urban Ent erprises, LLC v. Patrick, 693 F.3d 1 (1st Cir. 2012).
See State of Michigan v. Sault Ste. Marie Tribe of Chippewa Indians, No. 1:12 -CV-962
(W.D. Mich., March 5, 2013), available at
http://turtletalk.files.wordpress.com/2013/03/dct-order-granting-injunction.pdf (last visited
Nov. 24, 2013), appeal pending, No. 13-1438 (6th Cir. ).
112
541 U.S. 193 (2004).
113
See Brief for the States of Washington, Arizona, California, Colorado, Michigan,
Montana, New Mexico, and Oregon as Amici Curiae Supporting Petitioner, United States
v. Lara, 541 U.S. 193 (2004) (No. 03-107), 2003 WL 22766742; Brief Amicus Curiae of
the States of Idaho, Alabama, Louisiana, Nebraska, South Dakota, and Utah Supporting
Petitioner in Part, United States v. Lara, 541 U.S. 193 (2004) (No. 03-107), 2003 WL
22766744.
114
However, at least one social science study suggests that the Supreme Court barely
pays attention to information offered by amici that is different from what the parties
present. See James F. Spriggs & Paul J. Wahlbeck, Amicus Curiae and the Role of
Information at the Supreme Court, 50 POL. R ES. Q. 365 (1997). I suspect that the study
might be partially inapplicable in cases involving federal common law subjects like Indian
law, but these findings suggest temperanc e on the role of information regardless.
111
72
C.
Historical Information
The tribal amici in Carcieri v. Salazar, 115 for example, offered a
wealth of historical information. The historians’ brief developed the history
of the Indian Reorganization Act (IRA). 116 The Indian law professors’ brief
included more information about the history of the IRA, but also developed
the historical record on the Department of Interior’s interpretation of the
relevant provisions of the Act. 117 The Carcieri majority paid little heed to
these briefs (and instead drew more from a separate amicus brief by the
National Congress of American Indians that supported its view of the
legislative history of the Act 118). However, as noted above, Justice
Breyer’s concurrence and Justice Stevens’ dissent drew heavily from the
law professors’ brief in a manner suggesting that the reach of the decision
was limited to a small number of tribes (and perhaps only one).
Historical information, as the Carcieri decision shows, works for and
against the parties. The state amici drew upon history to great effect in the
reservation diminishment case South Dakota v. Yankton Sioux Tribe,119
and also in City of Sherrill v. Oneida Indian Nation. 120
D.
Public Policy Information
There is a dearth of useful public policy information in Supreme
Court amicus briefs. While I would hope that policy information providing
needed background on Indian country is useful, I have doubts about
whether this information alone will be enough to change minds on the
Court. One need only look at Justice Kennedy’s outright rejection of the
policy points in Duro v. Reina.121 I suspect good policy details will appear
115
555 U.S. 379 (2009).
See Brief of Historians Frederick E. Hoxie, Paul C. Rosier, a nd Christian W. McMillen
As Amici Curiae Supporting Respondents, Carcieri v. Salazar, 555 U.S. 379 (2009) (No.
07-526), 2008 WL 3991410.
117
See Brief of Law Professors Specializing in Federal Indian Law as Amicus Curiae
Supporting Respondents, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07 -526), 2008
WL 3991411.
118
See Brief of the National Congress of American Indians as Amicus Curiae Supporting
Respondents, Carcieri v. Salaz ar, 555 U.S. 379 (2009) (No. 07-526), 2008 WL 3976868.
119
522 U.S. 329 (1998).
120
544 U.S. 197 (2005).
121
495 U.S. 676 (1990).
116
73
in opinions by the Justices already leaning toward a particular position.
Policy information, somewhat like historical information, in amicus briefs is
less important than economic and jurisdictional convergences with parties
the Court considers important, such as state governments and big
business.
In sum, tribal interests cannot go at it alone in the Supreme Court.
This small case study demonstrates that a good amicus strategy can be
helpful. It requires coordination (fewer briefs), persuasive policy
arguments, and convergence of interests with actors the Supreme Court
cares about (states and big business, for a start). 122 This is not easy, and
in many cases it is virtually impossible.
A coda—in the recent decision, Adoptive Couple v. Baby Girl,123 the
tribal interests did all of these things right, with one possible exception. 124
The Cherokee Nation and Dusten Brown, the Birth Father seeking
vindication of his rights under the Indian Child Welfare Act, 125 enlisted the
assistance of the United States, 126 more than a dozen state attorney
generals, 127 child welfare groups, 128 religious organizations, 129 and
122
It also requires Supreme Court specialization from the couns el of record for the
amicus. See Richard J. Lazarus, Advocac y Matters Before and Within the Supreme
Court: Transforming the Court by Transforming the Bar, 96 G EO. L. J. 1487 (2008). And
help from the federal government. See Patricia A. Millett, “We’re Your Government and
We’re Here to Help”: Obtaining Amicus Support from the Federal Government in
Supreme Court Cases, 10 J. APP. P RACT. & PROC. 209 (2009).
123
133 S. Ct. 2552 (2013).
124
There were 23 amicus briefs in support of the tribal interests, probably far too many.
See Matthew L.M. Fletcher, Turtle Talk Guide to the Amici Supporting Respondents in
Baby Veronica Case (Adoptive Couple v. Baby Girl), TURTLE TALK BLOG POST (March 29,
2013), available at http://turtletalk.wordpress.com/2013/03/29/turtle -talk-guide-to-theamici-supporting-respondents-in-baby-veronica-case-adoptive-couple-v-baby-girl/ (last
125
25 U.S.C. §§ 1901 (2006).
126
Brief of the United States as Amicus Curiae, Adoptive Couple v. Baby Girl, 133 S. Ct.
2552 (2013) (No. 12-399), 2013 WL 1099169.
127
Brief of the States of Arizona, et al., Adoptive Couple v. Baby Girl, 133 S. Ct. 2552
(2013) (No. 12-399), 2013 WL 1308816.
128
Brief of Casey Family Programs, et al., Adopti ve Couple v. Baby Girl, 133 S. Ct. 2552
(2013) (No. 12-399), 2013 WL 1279468.
129
Brief of Religious Organization Amici Curiae Friends Committee on National
Legislation, et al., Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399),
2013 WL 1279465.
74
psychologists. 130 In one way, the amicus effort failed, both in persuading a
majority of the Supreme Court and, less important, in terms of the amount
of citations from the Court.
But in a more important way, the effort may have succeeded in
helping to drive the Court into treating the Baby Veronica case as a
dispute over statutory interpretation rather than a vehicle to address the
ultimate constitutionality of the Indian Child Welfare Act, as Justice
Thomas may have wanted to do. 131 In that way, at least, perhaps the
strategy succeeded.
Amici focused on the multiple interpretations of the statute
potentially drew attention away from the constitutional questions raised by
counsel for the Guardian ad Litem. 132 The amici supporting the tribal
interests largely did not respond to the constitutional objections, and
focused on the statutory text, legislative history, and public policy.
Adoptive Couple may be an example of how a strong amicus
strategy can shape the terms of the debate at the Supreme Court. The
amici supporting tribal interests collectively carved a path (or lit a path) for
the Court to avoid the constitutional questions. In the end, perhaps that is
the best any amicus strategy can do.
130
Brief of Amici Curiae National Latina/o Psychological Association, et al., Adoptive
Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399), 2013 WL 1279460.
131
See Adoptive Couple v. Baby Girl, 133 S. Ct. at 2565 (Thomas, J., concurring) (“I join
the Court's opinion in full but write separately to explain why constitutional avoidance
compels this outcome. Each party in this case has put forward a plausible interpretation
of the relevant sections of the Indian Child Welfare Act (ICWA). However, the
interpretations offered by respondent Birth Fat her and the United States raise significant
constitutional problems as applied to this case. Because the Court’s decision avoids
those problems, I concur in its interpretation.”).
132
See Brief for Guardian ad Litem, as Representative of Respondent Baby Girl,
Supporting Reversal at 48-58, Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No.
12-399), 2013 WL 633603.
75
NATIVE AMERICAN WINTERS DOCTRINE AND STEVENS
TREATY WATER RIGHTS: RECOGNITION, QUANTIFICATION,
MANAGEMENT
Rachael Paschal Osborn*
INTRODUCTION
Tribes of the Pacific Northwest hold two types of water rights. First
are the traditional on-reservation water rights recognized in Winters v.
United States.1 Second, certain tribes hold unique habitat-based water
rights that derive from reserved fishing rights contained in treaties
negotiated by Washington Territorial Governor Isaac Stevens (and thus
known as Stevens Treaty water rights), and that exist both on and off
reservation at traditional fishing areas reserved in the treaties. This article
examines the content and scope of these two types of Native American
water rights. Part I discusses the basis of tribal rights in terms of the value
of water to tribes. Part II(A) describes the Winters doctrine, the legal
framework by which all tribes in the United States own and enjoy water
rights associated with their reservations. Part II(A) concludes with three
examples of the treatment of Winters rights in state and federal courts,
involving the Wind River, Klamath and Flathead Reservations. Part II(B)
introduces the habitat-based water rights unique to Pacific Northwest
Tribes and concludes with two examples of implementation of those rights
involving the Yakama Nation and Muckleshoot Indian Tribe. Part III
describes two examples of tribal management of water rights, on the
Colville and Lummi Indian Reservations.
I. THE IMPORTANCE OF WATER TO INDIAN TRIBES
“In the Circle of Life, Water is the Giver of Life.” 2
*Director, Columbia Institute for Water Policy, Spokane, Washington, Adjunct Faculty
Member, Gonzaga University School of Law. An early version of this article was
published in the Journal of Water Law, v. 20, p. 224 (Lawtext Publishing Ltd., 2010).
1
2
Winters v. United States, 207 U.S. 564 (1908).
YAKAMA NATION REV. CODE ch. 60.01, § 60.01.01 (2005)(on file with author).
76
In the Pacific Northwest region of the United States of America,
water is a deeply respected component of the ecosystem for the
indigenous people who have occupied these lands for millennia. In this
arid region, water is also an invaluable resource for the descendants of
the Euro-American settlers who arrived in the 1800s and who now
dominate in terms of population and resource use. Not surprisingly,
substantial differences mark the values placed on water by Indian Tribes
and non-Indian settlers and their descendants. These differences are wellillustrated in the context of legal claims to water rights and water resource
management norms and processes.
In the western United States, water is critical to the lifeways of
Indian Tribes, particularly because water in situ is a physical precept to the
health and abundance of salmon fisheries. 3 Tribal reliance on salmon
cannot be overstated, and is reflected in philosophical and economic
relationships between the indigenous Salish inhabitants of the Pacific
Northwest and the natural ecosystems that sustain them. 4
The natural history of salmon illuminates the significance of water
and the basis for tribal claims. The history of salmon also highlights the
judicial and political recognition of tribal rights to water in the United
States. Salmon are anadromous; they hatch and rear in fresh water
streams, out-migrate to the Pacific Ocean for one to four years, and finally
return to their natal streams to spawn a new generation and then die. 5
Historically, many millions of salmon, comprising hundreds of species and
sub-species, returned to Pacific Northwest rivers each year.6 The
migration was (and is) impressive not only in terms of sheer numbers, but
also the extraordinary distances—up to 900 miles in the Columbia River
drainage—that certain sub-species travel to return to their streams of
origin.7
3
See generally JOSEPH C. DUPRIS, KATHLEEN HILL, & W ILLIAM H. RODGERS, JR., THE
SI’LAILO W AY: INDIANS, SALMON AND LAW ON THE COLUMBIA RIVER (2006).
4
See generally EUGENE S. HUNN, NCH'I-W ÁNA, "THE BIG RIVER": MID-COLUMBIA INDIANS
AND THEIR LAND (1990).
5
See generally JAMES A. LICHATOWICH, SALMON W ITHOUT RIVERS (2001).
6
Id.
7
Id.
77
Due to their broad geographic range, ecological perturbations affect
salmon at many levels. Water is, of course, a universal need. Clean, cool,
flowing waters are essential to virtually every aspect of the salmon life
history. Conversely, the degradation of rivers brought about through postcontact human activities has caused major adverse impacts on salmon
abundance and, consequently, on the health and well-being of salmondependent tribes.
Indian Tribes claim, and have been awarded, water rights based on
two legal theories, both arising out of treaties with the United States
government. First, tribes hold rights arising from their cession of millions of
acres of aboriginal territories—virtually the entire estate of the Pacific
Northwestern region—and agreements to settle on homeland
reservations, which serve as the loci of various, evolving economic
pursuits.8 Second, unique to the Pacific Northwest Tribes, their treaties
with the United States reserved indigenous rights to continue to take fish
at historic fishing sites, including locations outside of the tribal
reservations. This fishing right includes a right to habitat sufficient to
support fish. Sufficient habitat for fish includes cold, abundant water;
hence, recognition of the Stevens Treaty water rights is intimately
associated with tribal treaty fishing rights for salmon and other aquatic
species.9
The definition and quantification of water rights for specific tribes is
nearly always a product of legal proceedings, some of which have been
the largest and longest-running lawsuits in the United States. The water
courts that hear such cases and the claims of opponents—typically nonIndian water users—often manifest hostility to tribal claims. Yet,
substantial tribal water rights have been recognized in court proceedings
or negotiated through litigation-driven settlements.10
8
See infra Section II(A-1).
See infra Section IIB(1),(2).
10
See infra Sections II(A)(4), II(B)(3)(ii) and (iii). The Yakima River adjudication in
Washington was filed in 1977, involves 40,000 claimants, and is not yet complete. Sidney
P. Ottem, The General Adjudication of the Yakima River: Tributaries for the Twenty-First
Century and a Changing Climate, 23 J. ENVTL. L. & LITIG. 275, 286-90 (2008). The Snake
River Basin Adjudication in Idaho was filed in 1987, involves 150,000 claimants, and is
9
78
Once rights are awarded, water must be managed for protection
and proper allocation. Historic assimilation policies of the U.S.
government, dating from the late 1800s, allotted already-diminished tribal
reservations to non-Indians.11 The patchwork ownership of reservation
lands has created modern-day jurisdictional quagmires for all types of
regulatory systems, including water resources management. This article
concludes with two examples of successful and creative exercise of tribal
sovereign powers of self-government to bridge the gap and effectively
manage tribal water resources.
II. LEGAL FOUNDATIONS
A.
Winters Doctrine Water Rights
1. Concept of Federal Implied Reserved Water Rights
Indigenous water rights in the United States trace back to a 1908
decision of the United States Supreme Court, Winters v. United States.12
The locus of the Winters controversy, northeastern Montana, is a semiarid, sparsely populated landscape dominated by vast tracts of grassland.
Before Euro-American contact, the area was inhabited by multiple
indigenous tribes and bands who relied on the buffalo as a major
economic and food resource.13 Through a series of engagements and
agreements with the United States, two such tribes, the Assiniboine (also
known as the Nakoda) and the Gros Ventre, settled on lands near the Fort
Belknap Indian Agency.14 The 1888 Fort Belknap Treaty established a
not yet complete. See IDAHO DEPARTMENT OF W ATER RESOURCES, available at
http://www.idwr.idaho.gov/WaterManagement/AdjudicationBureau/ (last visited Nov. 24,
2013). The Klamath Basin adjudication in Oregon was filed in 1975, involved about 730
claimants and over 5,500 contests to those claims, and was just completed at the trial
level in March 2013. In the Matter of the Determination of the Relative Rights to the Use
of the Waters of Klamath River and its Tributaries, Findings of Fact and Order of
Determination at 1, 4 (Mar. 7, 2013).
11
General Allotment Act of 1887, 25 U.S.C. § 331 (repealed 1934).
12
See Winters v. United States, 207 U.S. 564 (1908).
13
See generally JOHN SHURTS, INDIAN RESERVED W ATER RIGHTS: THE W INTERS DOCTRINE
IN ITS SOCIAL AND LEGAL CONTEXT, 1880S-1930S (2000).
14
Winters, 207 U.S at 565.
79
640,000-acre reservation for the two Tribes, bounded by the Milk River on
the north.15
The Winters case arose out of conflict between non-Indian settlers
and the Tribes over diversions from the Milk River, a source insufficient to
meet all water demands. 16 It was impossible to pursue agricultural
activities in this region of Montana without active irrigation, but the 1888
Treaty—which expressed clear intent that the Tribes would take up
agricultural pursuits—made no mention of water rights nor did it even
reference the word “water.” 17 In deciding the Winters case, the Supreme
Court held that the 1888 Treaty reserved water rights to the Tribes by
implication.18 The Court found it inconceivable that the two Tribes would
have ceded millions of acres of lands to take up agriculture as the primary
means of sustenance, without also intending to reserve sufficient water to
survive in such an extreme arid environment.19 The Court, therefore, found
it appropriate and necessary to infer a tribal water right from the language
of the Fort Belknap Treaty.20
Key to the Winters decision were three canons, or rules of
construction, that United States courts utilize to interpret treaties between
the United States and Indian Tribes. First, the Tribes owned all land and
resources prior to treaty-making and were in “command of the lands and
the waters—command of all their beneficial use.” 21 The United States
government recognized tribal title and engaged in treaty-making in order
to obtain ownership of those lands.22 Because the Tribes owned all
15
SHURTS, supra note 13 at 73.
Winters, 207 U.S at 577.
17
Id. at 564.
18
Id. at 576.
19
Id.
20
Id.
21
Id.
22
The United States policy to enter into treaties with the indigenous peoples of North
America does not reflect the entire history. Violence, war, coercion, and fraud are among
the problems that plagued relationships between Tribes and the United States. The
United States government became “trustee” of tribal property and interests after treaties
were established, creating a “double edged sword” of duties and power. See Ralph W.
Johnson, Fragile Gains: Two Centuries of Canadian and United States Policy Toward
Indians, 66 W ASH. L. REV. 643 (1991). Nonetheless, the United States’ original
16
80
resources pre-contact, any rights not explicitly granted to the United
States by the treaties were presumed retained by the Tribes. 23
Second, treaties are construed as the Tribes would have
understood them at the time of treaty-making. “[T]he treaty must . . . be
construed, not according to the technical meaning of its words to learned
lawyers, but in the sense in which they would naturally be understood by
the Indians.”24 And third, because the treaties were written in English, a
non-native language to the Tribes, ambiguities are resolved “from the
standpoint of the Indians.”25
The significance of the Winters decision is profound. Little attention
was paid at the time of the Court’s ruling and for several decades
thereafter, as the United States actively sought to open tribal lands to
settlement and develop water resources for the benefit of non-Indians.
But, in a 1963 decision involving allocation of the Colorado River between
the states of Arizona and California, the Court relied on the Winters
precedent to find that the Colorado River Indian Tribes possessed
substantial water rights for their desert reservations.26 The Court further
held that such rights were to be quantified under an objective standard,
termed “practicably irrigable acreage” or PIA, which evaluated the
economic and technical feasibility of converting arid lands to irrigated
agriculture.27 The Arizona v. California Court also clarified that the
reserved water rights held by the Tribes enjoyed a “priority date” based on
the date the tribal reservation was established, often pre-dating existing
state-law based water rights.28 Further, these rights could not be lost for
non-use.29
These interpretive rules created an inherent conflict between the
treaty-based implied water rights held by Indian Tribes and state-based
recognition of tribal ownership of lands and resources, including water, has led to
important legal interpretations that are critical to understanding tribal water rights today.
23
See Winters, 207 U.S at 576-77.
24
Jones v. Meehan, 175 U.S. 1, 11 (1899).
25
Winters, 207 U.S at 576-77.
26
Arizona v. California, 373 U.S. 546, 599-601 (1963).
27
Id. at 600.
28
Id. at 608-09.
29
Id. at 600.
81
water permits held by non-Indians, which are ordered according to date of
first use and beneficial (actual) use standards. The inchoate, un-quantified
water rights of Indian Tribes, which are often senior to state-based rights,
threaten non-Indian water usage that has developed over the past
century. Non-Indians are therefore often motivated to oppose tribal rights
in legal and political proceedings.
2. Duality: Winters Water Rights and Western Water Law
Virtually all Winters doctrine cases have emerged from the western
continental United States, which encompasses seventeen states and
approximately 230 federally recognized Indian Tribes.30 The states have
primacy with respect to control of water resources within their boundaries,
and thus promulgate water codes, maintain water resource administrative
agencies, and issue and regulate permits for use. The Winters and
Stevens Treaty water rights held by the Tribes serve as major exceptions
to comprehensive state control of water resources, and are creatures of
federal common law. Under Federal Indian jurisprudence, tribal water
rights are held “in trust” for tribes by the United States government. 31
In the western United States, the 100th meridian serves as the
informal boundary between the well-watered east and the arid interior
west, where precipitation averages between 5 and 15 inches per year. 32
Scarcity has animated epic conflicts, tribal and non-tribal, over water
allocation. The western United States are dominated by mountain ranges,
including the Rockies, Great Basin, Sierra Nevada and Cascades, that
capture precipitation on their western slopes, store it as winter snowpack,
and release it to the many rivers that flow throughout the region. 33 A
30
U.S. Dept. of the Interior, Federally Recognized Indian Tribes, 73 Fed. Reg. No. 66,
18553-18557 (April 4, 2008).
31
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 1905 at 1241 (2012). Not discussed in
this article, Winters doctrine implied water rights also extend to all types of federal
reservations (e.g., military bases, national parks). Arizona v. California, 373 U.S. at 597.
32
Brad Udall & Gary Bates, “Climatic and Hydrologic Trends in the Western U.S.: A
Review of Recent Peer-Reviewed Research,” INTERMOUNTAIN W EST CLIMATE SUMMARY
(2007), http://wwa.colorado.edu/climate/iwcs/archive/IWCS_2007_Jan_feature.pdf (last
visited Jan. 3, 2014).
33
See generally EL-ASHRY, MOHAMED T. & DIANA C. GIBBONS, W ATER AND ARID LANDS OF
THE W ESTERN UNITED STATES (2009).
82
typical hydrograph for a western river depicts substantial snowmelt-driven
runoff during spring months (March through June), followed by summer
low flows (June through September).34 Irrigation is a necessity for most
agricultural endeavors in this region, and high water demand during the
summer season competes with the river flows needed to protect fisheries,
water quality, and other in-stream uses.
The western states allocate water to individual users pursuant to
the doctrine of prior appropriation, as articulated through the principles of
beneficial use and priority. 35 A water right is created by actual and
continuous use of water according to standards of reasonable efficiency.36
A water right that is not consistently utilized over time may be deemed
forfeited or abandoned and returns to the state for re-allocation.37 Water is
allocated according to seniority, i.e., the first person to utilize water from a
given source is entitled to their full measure of water as against all
subsequent claimants.38 If the water source is insufficient to serve all
claims, the most recent users will be curtailed. 39 This system is efficient,
but inequitable, and has historically favored out-of-stream utilization of
water resources.
Winters water rights are not governed by principles of prior
appropriation. Rather, these rights contemplate that tribes may use water
over time as needed to fulfill the purposes of their tribal reservations.40
Unlike prior appropriation rights, Winters rights are not based on actual
use, but future needs.41 Further, Winters rights cannot be lost for nonuse.42
34
Id.
DAN A. TARLOCK, THE LAW OF W ATER RIGHTS AND RESOURCES, §§ 5:30, 5:66, 5:86
(2010).
36
Id. at § 5:30.
37
Id. at § 5:86.
38
Id. at § 5:30.
39
Id. at § 5:86.
40
Arizona v. California, 373 U.S. 546, 600-601 (1963).
41
Id.
42
United States v. Adair, 723 F.2d 1394, 1416 (9th Cir. 1983), cert. denied, 467 U.S.
1252 (1983).
35
83
The chief point of intersection between Winters and prior
appropriation water rights is the priority date. Winters rights date at least to
the time of establishment of tribal reservations, which often pre-dates the
development of state-permitted water use in western watersheds. 43
Winters rights for in situ water use, i.e., in-stream flows to support
fisheries, date back even further, to “time immemorial.”44 Indian Tribes
may rely on this priority, at least in theory, to require non-tribal junior
appropriators to curtail their water use in favor of tribal rights.
The treaties between Indian Tribes and the United States
extinguished Indian title to vast tracts of lands that then became available
for Euro-American homesteading and development. 45 Access to and use
of water was critical to successful agriculture and new settlers claimed and
developed water rights at will, without regard to the proprietary rights of
tribes. In 1902, Congress established the United States Bureau of
Reclamation, a federal agency that developed hundreds of water projects
(dams, reservoirs, canals), again without regard to, and often in
derogation of, tribal Winters water rights.46 Water development was the
foundation for settlement of the American West.47
As a result of headlong development, many rivers and groundwater
systems of the western United States are over-appropriated, i.e., claims to
use exceed supply. The inevitable byproduct of the resulting scarcity has
been conflict. As Indian Tribes have grown in population and economic
might, they have sought to exercise their previously unused Winters
rights.48 In basins where non-Indian water uses have fully or overappropriated available supply, Winters rights represent a substantial threat
to the status quo. Legal battles over the recognition, quantification, and
43
Id. at 1414.
Id.
45
See generally PATRICIA NELSON LIMERICK, THE LEGACY OF CONQUEST: THE UNBROKEN
PAST OF THE AMERICAN W EST (1987).
46
Reclamation Act of 1902, 43 U.S.C. § 391 (2006); see also DONALD W ORSTER, RIVERS
OF EMPIRE: W ATER, ARIDITY AND THE GROWTH OF THE AMERICAN W EST (1992).
47
W ORSTER, supra note 46.
48
See SLY, PETER, RESERVED W ATER RIGHTS SETTLEMENT MANUAL at 71-74 (1989).
44
84
management of Winters rights have been epic, dominating development of
water law.49
3.
Adjudicating Winters Rights
Winters rights, though recognized at law, are not self-executing. A
forum is necessary where the scope of Winters water rights for individual
tribes may be evaluated and quantified, and that forum is typically the
courts. Numerous lawsuits over tribal water rights have ensued since
1963, when the Arizona v. California court expanded on the Winters
doctrine, finding that water is “essential to the life of the Indian people.” 50
Treaty making and interpretation is a matter of federal law, and
Indian Tribes normally bring treaty-based disputes before the federal
courts.51 However, a 1952 federal law, the McCarran Amendment, 52
interpreted in the 1970s, waived both United States and tribal sovereign
immunity. Hence, states may compel federal agencies and tribal
governments to be joined as parties and defend their water rights in
general stream adjudications, a special proceeding initiated in state courts
that joins all water claimants within a watershed to determine the validity,
priority and quantity of water rights.53 General stream adjudications are
now the most common venue for quantification of all types of water rights,
including Winters doctrine rights. In the early cases, federal court
jurisdiction could be invoked to resolve Winters disputes, but the
McCarran Amendment gave rise to a court-developed abstention doctrine
for federal water right cases. 54
General stream adjudications can involve thousands of claimants,
and are often filed in watersheds where water conflicts are already
occurring, even without tribal exercise of the full measure of Winters
rights.55 To ameliorate the placement of federal law-based water claims in
49
See infra Part I (A)(3).
Arizona v. California, 373 U.S. 546, 599 (1963).
51
U.S. CONST. art. II, § 2, cl. 2.
52
43 U.S.C. § 666 (2006).
53
Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983); Colo. River Conservation
Dist. v. United States, 424 U.S. 800 (1976).
54
Colo. River Conservation Dist., 424 U.S. at 821.
55
See Ottem, supra note 10 (re Yakima, Idaho and Oregon adjudications).
50
85
state courts, such courts are admonished to rigorously and properly apply
federal law to treaty-based claims to water. As explained below, this rule is
not always as effective as federal courts may have hoped.
Winters water rights are based on the purposes of the reservation
for which they are claimed. While tribes frequently argue that reservations
were intended as “homelands,” and thus, the reservation purpose should
be broadly construed, few courts have accepted such a general basis for
the award of rights.56 The point should be moot, because tribes are
empowered to transfer or change the purpose of use of their Winters
rights.57 However, some state courts (most notably Wyoming), 58 have
refused to acknowledge tribal decisions to change the purpose of their
rights, for example applying diversionary rights to in-stream uses.
Quantification and distribution of tribal water rights are further
complicated by the misguided federal policy that allowed non-Indian
settlement within the boundaries of Indian reservations. Pursuant to the
1887 Dawes Act, Congress required that tribal lands be allotted to tribal
members (typically 80 or 160 acres per person) and that “surplus” lands
sold to non-Indians.59 This disastrous policy was halted in 1934, but not
before millions of acres of tribal land was transferred into non-Indian
ownership. The Indian Reorganization Act of 1934 reinstated the
boundaries of tribal reservations, but did not restore to the tribes the lands
that had been transferred into non-Indian ownership.60 As a result, many
tribal reservations are partially occupied by non-Indians, in some places
creating significant conflicts regarding jurisdiction over, and control of,
resources. As discussed in Section III(B) below, non-Indian property
owners on Indian reservations may claim a portion of the tribe’s Winters
water rights.
56
San Carlos Apache Tribe v. Arizona, 668 F.2d 1093, 1097 (9th Cir. 1982) (accepting
the concept of a “homeland” purpose of tribal reservations); cf. In re Gen. Adjudication of
All Rights to Use Water in the Big Horn River, 835 P.2d 273, 278-79 (Wyo. 1992);
Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1357 (9th Cir. 2000).
57
United States v. Anderson, 736 F.2d 1358, 1362-1365 (9th. Cir. 1984), cert. denied,
467 U.S. 1252 (1983).
58
See infra, Section II(A)(4)(i)
59
General Allotment Act of 1887, 25 U.S.C. § 331 (repealed 1934).
60
Indian Reorganization Act (Wheeler-Howard Act), 25 U.S.C. § 478 (2006).
86
Finally, it is noteworthy that the myriad of uncertainties surrounding
Winters rights, including the amount of water to which tribes are entitled,
the potential for adverse state court decisions, and scientific questions
relating to hydrology, biology and other disciplines, have led to the
development of major programs dedicated to settlement of tribal water
rights. As discussed in the next section, Montana created a commission to
negotiate tribal water claims that has met with substantial success. The
recent Nez Perce water settlement, discussed in Section (B)(3)(ii) infra,
has brought significant resources to that Tribe’s reservation. Although
inherently involving compromise, settlement agreements have become a
well-trodden road to resolution of Winters rights.
4. Winters Rights Exemplified
Hundreds of court decisions have applied the Winters doctrine to
tribal water claims, and decades of litigation and settlements have led to
mixed results. While comprehensive review is not possible here, three
examples illustrate important principles and developments in Winters
doctrine jurisprudence.
a.
Wyoming’s Big Horn Adjudication
In north-central Wyoming, the 2.2 million acre Wind River
Reservation, near Yellowstone National Park, is home to two tribes, the
Northern Arapahoe and Eastern Shoshone. 61 The Wind River Reservation
exemplifies the scope and consequences of nineteenth century federal
policies of assimilation imposed upon Indians. The Shoshone Tribes
originally occupied 45 million acres in areas now known as the states of
Colorado, Utah, and Wyoming that, through a series of cessions and
purchases, shrank to the current 2.2 million acre reservation at Wind
River.62 Historic allotment policies also affected the Wind River
Reservation, where only 30 percent of the population is Indian, and land
ownership among the Tribes, Tribal members, and non-Indians is
61
Wind River Agency, INDIAN AFFAIRS,
http://www.bia.gov/WhoWeAre/RegionalOffices/RockyMountain/WeAre/WindRiver/ (last
62
In re the General Adjudication of All Rights to Use Water in the Big Horn River, 753
P.2d 76 (Wyo. 1988).
87
fragmented.63 Conflicts over water from the Big Horn River and its
tributaries led Wyoming to commence general stream adjudication in
1977. The Wind River Tribes filed claims for groundwater, in-stream, and
out-of-stream water rights for a variety of purposes, including fisheries and
wildlife protection, aesthetics, homeland needs, and irrigation. 64 The
Wyoming Supreme Court affirmed only those rights claimed for irrigation
purposes.65
The Wind River Tribes are determined to restore in-stream flows
and aquatic habitat on the rivers within the reservation. Based on federal
case law authorizing Tribes to use their Winters rights for any purpose, 66
the Tribes established a tribal water code and water management agency,
and transferred a portion of their adjudicated irrigation right to nonconsumptive in-stream flows.67 These flows would conflict with non-Indian
out-of-stream uses; however, in contravention of federal precedent,
Wyoming courts ruled that the tribal transfer was void. 68 Although the
Wind River Reservation’s Winters right is a substantial 500,000 acre-feet
with a priority date of 1868, water management in Wyoming is vested in
the Wyoming State Engineer’s Office, severely limiting the ability of the
Tribes to protect and use on-reservation water resources according to
their own priorities. 69 In recent years the Wind River Tribes have
developed sophisticated water quality monitoring, enforcement, and
source water protection programs, but issues surrounding use of Winters
water rights have not been satisfactorily resolved.70 A “Tribal Futures”
63
Id. at 84.
P.2d 76 (Wyo. 1988).
65
Id. (the court found that domestic and commercial water uses were subsumed by the
irrigation right, id. at 99).
66
United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984).
67
P.2d 273, 275-76 (Wyo. 1992).
68
Id. at 278-80.
69
Wyoming v. United States, 492 U.S. 406, 406-07 (1989)(the Tribes’ attempt to appeal
adverse state court decisions to the U.S. Supreme Court met with no success).
70
E.g., Wind River Environmental Quality Commission Power Point [on file with author];
JON P. MASON, SONJA K SEBREE & THOMAS L. QUINN, MONITORING-WELL NETWORK AND
SAMPLING DESIGN FOR GROUND-WATER QUALITY, W IND RIVER INDIAN RESERVATION,
W YOMING 1 (2005) available at http://pubs.usgs.gov/sir/2005/5027/pdf/sir20055027.pdf
(last visited Jan. 9, 2014).
64
88
irrigation project was proposed several years ago, but development has
not progressed.71
The Big Horn cases present a cautionary example. The “practicably
irrigable acreage” standard resulted in an award of substantial quantities
of water to the Wind River Tribes.72 However, conflict with non-Indian
water use, even though junior in priority, has prevented full tribal utilization
of the resource. Forced into court against their wishes, the Wind River
Tribes encountered hostility and a refusal to apply federal law in state
court proceedings. 73 Most important, the inability of the Tribes to manage
their own water resources according to their own priorities, values, and
interests has prevented exercise of sovereign rights of self-governance.
b.
Oregon’s Klamath Adjudication
In south-central Oregon, the Klamath Tribes “hunted, fished, and
foraged in the area of the Klamath Marsh and upper Williamson River for
over a thousand years.”74 In the 1864 Treaty between the United States
and the Klamath and Modoc Tribes, the Tribes ceded 12 million acres in
return for an 800,000-acre reservation.75 The Treaty identified two
purposes of the reservation: to convert the Tribes to agriculture pursuits
and to allow the Tribes to continue their hunting and gathering ways of
life.76 In 1983, as state court adjudication was getting underway, a parallel
proceeding in federal court decided initial questions of law pertaining to
Tribal water rights. 77 Specifically, the court held that both agricultural and
fishing-hunting purposes were valid and recognized under the Winters
doctrine, and that the Klamath Tribes held water rights to support game
71
Wind/Bighorn River Basin Plan, W YOMING W ATER DEVELOPMENT COMM. (2003),
http://waterplan.state.wy.us/plan/bighorn/finalrept/chap4.html (last visited Jan 9, 2013).
72
P.2d 76, 100-101 (Wyo. 1988).
73
Berrie Martinis, From Quantification to Qualification: A State Court’s Distortion of the
Law in In Re the General Adjudication of All Rights to Use Water in the Big Horn River
System, 68 W ASH. L. REV. 435 (1993).
74
United States v. Adair, 723 F.2d 1394, 1397 (9th Cir. 1983), cert. denied, 467 U.S.
1252 (1983).
75
Treaty with the Klamath, etc., art 6, Oct. 14, 1864, 16 Stat. 707.
76
Adair, 723 F.2d 1394.
77
Id.
89
and fish adequate to the needs of Indian hunters and fishers. 78 This right
was described as a non-consumptive entitlement that prevents other users
from depleting stream waters below protected levels. 79 In keeping with
treaty interpretation rules, the court held that the Tribes’ non-consumptive
water rights were not created, but were instead reserved and confirmed by
the Treaty.80 These rights were established when the Klamath Tribes first
began hunting and fishing in the region, dating back a thousand years or
more. The priority of the Tribal rights was therefore held to date from “time
immemorial.”81
The state court adjudication of water rights in the Klamath Basin
was filed in 1976, and in 2013 the trial court issued a final order. 82 The instream flow water rights of the Klamath Tribes, legally recognized in the
1983 Adair83 decision, were quantified and awarded a “time immemorial”
priority date, and certain off-reservation rights were denied. 84 In the
interim, the over-appropriated Klamath Basin has been the site of
tremendous conflict over water allocation between tribal and non-tribal
users.85 In 2000, water management agencies curtailed all agricultural
diversions in the Basin to protect endangered fisheries. 86 The following
year, water agencies limited the release of water to streams, cutting off
river flows and causing a die-off of 30,000 migrating salmon at the mouth
78
See Id. at 1394.
Id. at 1418.
80
Id. at 1415.
81
Id. at 1414.
82
Findings of Fact and Order of Determination at 1, In the Matter of the Determination of
the Relative Rights to the Use of the Waters of Klamath River and its Tributaries, (March
7, 2013), available at
www.oregon.gov/owrd/ADJ/docs/7_Findings_of_Fact_and_Order_of_Determination.pdf
(last visited Nov. 24, 2013).
83
Adair, 723 F.2d at 1397
84
Partial Orders of Determination re Klamath Lake, Klamath Marsh, Seeps and Springs,
Williamson River and tributaries, Sprague River and tributaries, Sycan River and
tributaries, Wood River and tributaries, and Klamath River and tributaries, In the Matter of
the Claim of the Klamath Tribes and the United States Department of Interior, Bureau of
Indian Affairs as Trustee on Behalf of the Klamath Tribes, (March 7, 2013), available at
www.oregon.gov/owrd/ADJ/docs/orders/Claims_612_673_Klamath_Tribes_USBIA.pdf
(last visited, Nov. 3, 2013).
85
See generally HOLLY DOREMUS & DAN A. TARLOCK, W ATER W AR IN THE KLAMATH BASIN:
MACHO LAW, COMBAT BIOLOGY, AND DIRTY POLITICS (2008).
86
Id.
79
90
of the Klamath River.87 In 2013, judicial recognition and quantification of
Klamath Treaty water rights caused the tribes to call for curtailment of
junior rights to preserve ecological water flows.88
Litigation involving endangered species recovery and hydroelectric
facilities licensing has also dominated annual water management in the
Klamath Basin.89 In 2009, a multi-party agreement was signed to demolish
four Klamath River dams—the largest dam removal ever contemplated—
to allow for fish passage and ecologically appropriate water flows. 90
Whether water peace in the Klamath will be achieved is not yet known.
In the realm of Winters jurisprudence, the Klamath adjudication is
best-known for the Adair holding, i.e., that reservations may be
established for fisheries purposes, that in-stream water rights may be
reserved to protect those purposes, and further, that the priority date of
such rights is time immemorial.91 While the lengthy delay in
implementation of the tribal right is discouraging, the resilience of the
Tribal right has driven the Klamath water conflicts toward creative and
dramatic solutions, including dry-year voluntary curtailments, dam
removal, water markets, and more. 92
c. Montana’s Reserved Water Rights Compact
Commission
Montana is a large landlocked state, 145,552 square miles bisected
by the Northern Rockies mountain range. 93 Vast prairies dominate the
eastern half of the state, once home to millions of bison that supported
87
Id.
See generally JEFF BARNARD, KLAMATH TRIBES, FEDS EXERCISE W ATER RIGHTS (2013).
89
Klamath Water Users Ass’n v. Patterson, 15 F. Supp. 2d 990, 997 (D. Or. 1998).
90
Klamath Basin Restoration Agreement for the Sustainability of Public and Trust
Resources and Affected Communities (Klamath Basin Restoration Agreement), January
8, 2010.
91
United States v. Adair, 723 F.2d 1394, 1414-1415 (9th Cir. 1983).
92
CONGRESSIONAL RESEARCH SERVICE, KLAMATH BASIN SETTLEMENT AGREEMENTS: ISSUES
IN BRIEF (2013) available at http://www.fas.org/sgp/crs/misc/R42158.pdf (last visited Jan.
9, 2014).
93
MONTANA OFFICE OF PUBLIC INSTRUCTION, MONTANA INDIANS: THEIR HISTORY AND
LOCATION (2009) http://opi.mt.gov/pdf/indianed/resources/MTIndiansHistoryLocation.pdf
88
91
tribal subsistence and prosperity until extirpation by Euro-Americans. 94
Western Montana is mountainous, and known for Glacier and Yellowstone
National Parks, wild mountains populated by ursina horribilis (grizzly
bear), and blue-ribbon trout streams.95 Seven Indian reservations are
scattered across the state, home to twelve linguistically distinct tribes.96
As discussed above, Montana is the locus of the 1908 Winters
decision, which emerged from water conflicts at the Fort Belknap
Reservation.97 It took another seven decades, however, to commence a
process to evaluate the scope and extent of the Winters right for the Fort
Belknap Tribes. In 1979, the Montana Water Use Act was amended to
establish a statewide adjudication of all water rights, state, federal and
Tribal.98 Five Tribes challenged the statute, disputing that Montana courts
were empowered to exercise any authority over them, based on the state
constitutional proviso that “Indian lands shall remain under the absolute
jurisdiction and control of the Congress of the United States.” 99 All
proceedings were stayed as federal courts grappled with the question of
state court jurisdiction over treaty-based water claims in Montana and
other states with similar constitutional disclaimers. In 1983, the United
States Supreme Court held that the McCarran Amendment, the 1952 law
that waived United States sovereign immunity for water right
adjudications, did open the door for state court adjudication of Winters
water rights.100
The potential was high for long-haul litigation, but the Montana
Water Use Act included an innovative alternative dispute resolution
approach, creating the Reserved Water Rights Compact Commission. 101
The Act called for voluntary government-to-government negotiations
among the state, Tribal and federal governments, to resolve Winters water
94
Id.
Id.
96
Id.
97
Winters v. United States, 207 U.S. 564, 565 (1908).
98
MONT. CODE ANN. § 85-2 (West 2013).
99
Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 556 (1983) (citing Draper v. United
States, 164 U.S. 240 (1896)).
100
Id.
101
MONT. CODE ANN. § 2-15-212 (West 2013).
95
92
right claims through settlement agreements.102 The Montana Compact
Commission is a unique entity, and has had substantial success in
achieving water right settlements with most of the Indian Tribes in
Montana.103 Success is attributed to the political composition of the
Compact Commission (empowering the Commission to make
commitments that will be adopted through the state legislative process),
effective mechanisms for public education and input, interdisciplinary
approaches to problem solving, and flexibility in settlement terms. 104
Even so, substantial conflict has arisen over water rights reserved
for the western-most tribal reserve in Montana, the Flathead Reservation,
home to the Confederated Salish and Kootenai Tribes (CSKT). CSKT’s
efforts to limit on-reservation state-based water allocations reveal a flaw in
the Montana settlement approach: even before compact negotiations are
completed, the state water resources agency was issuing “provisional”
water rights to non-Indians.
A trilogy of Montana Supreme Court decisions established that the
state water resources agency may not issue water permits on the
Flathead Reservation for surface or ground waters until CSKT’s Winters
rights are adjudicated or resolved by compact.105 These cases contrast
with the more common state court disregard for tribal water rights, and
also illustrate the sophisticated legal capabilities that tribes now marshal to
defend their rights. In its rulings on Flathead Reservation water
management, the Montana Court recognized fundamental distinctions
between Winters rights—inchoate rights with early priority that
contemplate future development—and prior appropriation rights, based on
actual use that may be interrupted when senior rights are exercised. A key
problem that the Montana compacts have had to address is the historic
over-allocation of water resources prior to negotiation and settlement of
102
MONT. CODE ANN. § 85-2-702 (West 2013).
MONT. CODE ANN. § 85-20 (West 2013).
104
BARBARA COSENS, FILLING THE GAP IN W ESTERN AND FEDERAL W ATER LAW, IN TRIBAL
W ATER RIGHTS: ESSAYS IN CONTEMPORARY LAW, POLITICS, AND ECONOMICS (2006).
105
Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Stults, 2002 MT
280, 312 Mont. 420, 59 P.3d (Mont. 2002); In re Benefit Water Use Permit, 287 Mont. 50,
923 P.2d 1073 (Mont. 1996); Confederated Salish and Kootenai Tribes v. Clinch, 1999
MT 342, 297 Mont. 448, 992 P.2d 244 (Mont. 1999).
103
93
Winters rights. The compacts have made tribal rights whole through
expensive exchange, purchase, and mitigation strategies. 106
Protection of as-yet unallocated water supply has been a pragmatic
and critical concern for the CSKT as it approaches the compacting
process. A draft compact with substantial implementation measures,
submitted for Montana state legislative approval in April 2013, was
tabled.107 Controversy continues over on-reservation water management
and protection of irrigation rights. 108
Tri-partite settlements among states, Tribes and the federal
government have become an increasingly common mechanism for
resolution of Winters water claims.109 In the arid American West of the
twenty-first century, where virtually every drop is spoken for, neither the
scenario of Winters rights unfulfilled nor radical disruption of non-Indian
water use is acceptable to most parties. The Montana Reserved Water
Rights Compact Commission is one approach in which a state has utilized
diplomatic engagement to address historic water conflicts. Outcomes
obviously require compromise, but the process does serve as an exit ramp
from lengthy, expensive litigation. Because the Confederated Salish and
Kootenai Tribes are the sole Stevens Treaty Tribe in Montana, their claims
to water on and off the Flathead Reservation present the most challenging
scenario to date for the Montana compacting process.
106
COSENS, supra note 103, at 164-67.
HB 629, 2013 Leg., 63rd Sess. (Mont. 2013); see Implement negotiated water
compacts with Montana Tribal government, OPEN: STATES,
http://openstates.org/mt/bills/2013/HB629 (last visited Nov. 24, 2013).
108
See CONFEDERATED SALISH KOOTENAI TRIBES TRIBAL RESERVED W ATER RIGHTS
NEGOTIATION, http://www.cskt.org/tr/nrd_waternegotiations.htm (last visited Nov. 24,
2013), and MONTANA RESERVED W ATER RIGHTS COMPACT COMMISSION,
www.dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp (last visited Nov. 24, 2013).
109
Robert T. Anderson, Indian Water Rights: Litigation and Settlements, 42 TULSA L. REV.
43 (2006); see Criteria and Procedures for the Participation of the Federal Government in
Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed.Reg. 9223-25
(Mar. 12, 1990).
107
94
B.
Stevens Treaty Water Rights
1. Antecedents: U.S. v. Washington (the “Boldt Decision”)
Indian tribes of the Pacific Northwest possess a second type of
reserved water right derived from treaties with the United States, but
linked specifically with aquatic habitat protection. These rights, referred to
as Stevens Treaty water rights, arise out of language found in ten treaties
negotiated by Isaac Stevens, governor of the Washington Territory in
1853.110 Stevens was a controversial figure because of the military powers
and political expedience he exercised in coercing tribes to sign treaties
that transferred virtually all of the lands and resources of the Pacific
Northwest region to the United States.111 Surprisingly, his legacy
represents the most powerful codification of tribal rights and interests in
water resources that exists in United States jurisprudence.
In each of the Stevens Treaty negotiations, Pacific Northwest
Tribes bargained to retain rights to traditional foods and harvest practices.
A key provision of the Treaty with the Confederated Tribes and Bands of
the Yakama Nation exemplifies tribal reservation of the all-important
fishing right:
The exclusive right of taking fish in all the streams, where
running through or bordering said reservation, is further
secured to said confederated tribes and bands of Indians, as
also the right of taking fish at all usual and accustomed
places, in common with citizens of the Territory . . .112
Similar language is found in nine other treaties with tribes throughout the
Pacific Northwest.113
110
See infra note 113 (listing Stevens Treaties).
See Charles Wilkinson, “Peoples Distinct from Others”: The Making of Modern Indian
Law, 2006 UTAH L. REV. 379, 385-86 (2006).
112
Treaty with the Yakima, U.S.-Yakama Nation, art. III, ¶ 2, June 9, 1855, 12 Stat. 951,
953.
113
See Treaty with Nisqualli, Puyallup, Etc. (Treaty of Medicine Creek), U.S.- NisqualliPuyallup, art. III, Dec. 26, 1854, 10 Stat. 1132, 1133; Treaty with the Dwámish Indians
(Treaty of Point Elliott), U.S.-Dwámish Tribe, art. V, Jan. 22, 1855, 12 Stat. 927, 928;
Treaty with the S'Klallams (Treaty of Point No Point), U.S.-S’Kilallam Tribe, art. IV, Jan.
111
95
For many decades, the tribal fishing right was ignored or denied,
and in the mid-twentieth century, Indian exercise of traditional fishing
rights were met with arrests and convictions, confiscation of equipment,
and abuse of civil rights.114 Tribes prosecuted several lawsuits to defend
and define the treaty fishing right, culminating in the landmark 1974
decision in which federal Judge George Boldt famously interpreted the
Treaty provision “taking fish at all usual and accustomed places, in
common with the citizens of the territory,” to mean that the annual salmon
harvest must be shared equally between Stevens Treaty Tribes and nonIndians.115 Judge Boldt further held that the Tribes could harvest their 50
percent portion at traditional fishing grounds outside the boundaries of
their reservations that Washington state agencies could not regulate
Indian fishing, and that Tribes and states would serve as co-managers of
the fisheries resources.116 Controversy and violence ensued, as nonIndian recreational and commercial fishers, state fisheries management
agencies, and even the Washington State Supreme Court resisted the
federal Treaty interpretation. 117
Over time, conflict abated as the states and Tribes adopted a
cooperative approach to fisheries management.118 The Boldt Decision,
26, 1855, 12 Stat. 933, 934; Treaty with the Makah Tribe (Treaty of Neah Bay), U.S.Makah Tribe, art. IV, Jan. 31, 1855, 12 Stat. 939, 940; Treaty with the Walla-Wallas,
U.S.-Walla Walla Tribe, art. I, June 9, 1855,12 Stat. 945, 946; Treaty with the Nez
Percés, U.S.-Nez Percé Tribe, art. III, ¶ 2, June 11, 1855, 12 Stat. 957, 958; Treaty with
the Tribes of Middle Oregon, art. I, ¶ 3, June 25, 1855, 12 Stat. 963, 964; Treaty with the
Qui-Nai-Elts (Treaty of Olympia), U.S.-Qui-Nai-Fis, art. III, July 1, 1855, 12 Stat. 971,
972; Treaty with the Flatheads (Treaty of Hell Gate), U.S.-Flathead Tribe, art. III, ¶ 2, July
16, 1855, 12 Stat. 975, 976.
114
AMERICAN FRIENDS SERVICE COMMITTEE, UNCOMMON CONTROVERSY: FISHING RIGHTS OF
THE MUCKLESHOOT, PUYALLUP, AND NISQUALLY INDIANS 110-12 (1970); see also CHARLES
W. W ILKINSON, MESSAGES FROM FRANK’S LANDING: A STORY OF SALMON, TREATIES AND THE
INDIAN W AY (2000).
115
See Treaty with the Yakima, U.S.-Yakama Nation, art. III, ¶ 2, June 9, 1855, 12 Stat.
951, 953.
116
United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) aff’d and
remanded, 520 F.2d 676 (9th Cir. 1975); see CHARLES W. W ILKINSON, BLOOD STRUGGLE:
THE RISE OF MODERN INDIAN NATIONS (2005).
117
Washington v. Washington State Commercial Fishing Vessel Ass’n, 443 U.S. 658,
rev’d sub no. Washington v. United States, 444 U.S. 816 (1979); see also W ILKINSON,
supra note 114.
118
Fronda Woods, Who’s In Charge of Fishing?, 106 OR. HIST. Q. 412 (2005).
96
however, gave rise to a number of new legal questions, including whether
the treaty right to fish encompassed a right to habitat. Habitat for fish is
water and, by virtue of this need, the Stevens Treaty fishing right swam
upstream and asserted itself into the domain of freshwater
management.119
2. Birth of the Habitat Right
Does the Stevens Treaty fishing right include a habitat right to
water for in-stream flows outside reservations? The first time the habitat
question was put to the courts, the case was rejected as not yet ripe for
review.120 Shortly thereafter, a water allocation question arose out of the
Yakima River Basin in central Washington where (as quoted above) the
Yakama Nation reserved its aboriginal fishing rights via treaty.121 Salmon
species were once abundant in the Basin, but water management was
dominated by the United States Bureau of Reclamation’s irrigation project.
The Bureau routinely manipulated water flows with devastating effects on
fisheries. To reach spawning grounds, salmon must migrate several
hundred miles from the Pacific Ocean, up the Columbia and Yakima
Rivers into upper Basin tributaries. Historically, returning Yakima Basin
salmon numbered from 500,000-900,000 per year.122 However, the Basin
fisheries were largely eliminated in the early 1900s. This occurred when
the Bureau of Reclamation developed the Yakima Project. Due to the
construction of dams and reservoirs without fish passage and the
diversion of virtually the entire flow of the River into an extensive network
of irrigation canals, stream flows were severely depleted for much of the
119
O. Yale Lewis III, Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights
Implied by the Fishing Clause of the Stevens Treaties, 27 AM. INDIAN L. REV. 281 (2003).
120
United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc); in U.S.
jurisprudence, courts may not issue advisory opinions but instead may only decide actual
cases and controversies; U.S. CONST. art. III, § 2, cl. 1; Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992).
121
Treaty with the Yakamas, U.S.-Yakama Nation, art. III, ¶ 2, June 9, 1855, 12 Stat.
951, 953.
122
Yakima River, NORTHWEST POWER & CONSERVATION COUNCIL (Oct. 31, 2008),
http://www.nwcouncil.org/history/YakimaRiver (last visited Nov. 3, 2013).
97
year.123 Agriculture was king, with apple, cherry and other crops producing
an annual $1 billion in export products.124 In the 1990s, salmon numbers
declined to less than 25,000 per year. 125
In 1982, a low-water year, a tribal biologist discovered several
Chinook salmon redds (nests of salmon eggs) directly below the gates of
one of the Bureau reservoirs.126 These redds contained significant genetic
and biological value – wild spring-run Chinook were nearly extinct in the
Basin – but were at risk of stranding as reservoir gates were closed to
collect water for the following year’s irrigation demand. The Tribe sought
an emergency injunction in federal court. The court held that the Bureau
had authority to release project water to protect the Yakama Nation’s
interest in basin fisheries. 127
The Yakama Nation’s Chinook-water case was the first test, albeit
implicitly, of the existence and scope of the habitat right associated with
the “to fish in common” treaty right. The judicial mandate to revise the
Bureau’s operating procedures for Yakima Basin dams was a crucial first
step in the jurisprudential development of Stevens Treaty water rights.
3. Stevens Treaty Rights Exemplified
Three case studies reveal the scope and substance of Stevens
Treaty water rights, including cases and settlements involving the Yakama
Nation, the Nez Perce Tribe, and the Muckleshoot Tribe.
123
Christopher A. Kent, Water Resource Planning in the Yakima River Basin:
Development vs. Sustainability, in YEARBOOK OF THE ASSN. OF PACIFIC COAST
GEOGRAPHERS 27 (2004).
124
David Lester, Agriculture is ‘pillar’ of Yakima Valley economy, YAKIMA HERALDREPUBLIC (April 21, 2013),
http://www.yakimaherald.com/news/business/industriousvalley/883395-17/agriculture-ispillar-of-yakima-valley-economy (last visited Jan. 3, 2014).
125
See Yakima River, supra note 122.
126
Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032 (9th Cir.
1985).
127
Id. at 1035 n. 5. The appellate court noted cryptically that it was not deciding the
scope of the treaty fishing right. For more detail regarding the Ninth Circuit opinions on
this matter, see Michael C. Blumm and Brett M. Swift, The Indian Treaty Piscary Profit
and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO.
L. REV. 407, 465-67 (1998).
98
a.
The Yakama
Adjudication
Nation
and
the
Acquavella
In 1977, a severe drought year, Washington filed a general stream
adjudication, titled “State v. Acquavella,” involving 40,000 water
claimants.128 Preliminary procedural questions consumed several years. 129
In 1989, the court took up the first substantive claims: the Yakama
Nation’s claims for on-reservation Winters water rights for agriculture and
other purposes, and Stevens Treaty claims to off-reservation in-stream
flows to protect treaty fishing rights. 130
The Yakima Basin is an unlikely venue for a court decision
recognizing tribal treaty fishing rights. The presiding judge, himself a
former irrigation district attorney, could not ignore the admonition of
Colorado River Conservation District: state courts may exercise
jurisdiction over tribal water claims, but in so doing they must apply federal
law.131 In 1993, the Washington State Supreme Court affirmed the trial
court, finding that the Yakama Nation holds off-reservation in-stream flow
water rights for “the absolute minimum amount of water necessary to
maintain anadromous fish life in the Yakima River,” that the quantity of the
right is to be determined annually according to weather conditions, that the
Bureau is to administer the right in consultation with an advisory panel of
biologists, and that the tribal in-stream water right dates to “time
immemorial.”132
128
See Ottem, supra note 10.
State Dep’t of Ecology v. Acquavella, 100 Wash.2d 651 (1983).
130
State, Dep’t of Ecology v. Yakima Reservation Irr. Dist., 121 Wash.2d 257 (1993)
(“Acquavella II”).
131
Colo. River Conservation Dist. v. United States, 424 U.S. 800, 817-18 (1976).
132
Memorandum Opinion re: Motions for Partial Summary Judgment, State Dep’t of
Ecology v. Acquavella, 100 Wash.2d 651 (1983) aff’d, State Dep’t of Ecology v. Yakima
Reservation Irr. Dist.,121 Wn.2d 257 (1993)(No. 77-2-01484-5); see also Final Order Re:
Treaty Reserved Water Rights at Usual and Accustomed Fishing Places, State Dep’t of
Reservation Irr. Dist.,121 Wn.2d 257 (1993)(No. 77-2-01484-5).
129
99
The award of the “absolute minimum amount of water” 133 necessary
to keep fish alive seems parsimonious, but implementation of the Tribe’s
in-stream water rights has met with decided success. In 1994, another
low-water year, the biologist panel advised the Bureau that release of a
pulse of water, termed a “flushing flow,” was needed to assist downstream
migration of juvenile salmon smolts.134 Irrigation districts challenged the
water releases, but were rebuffed when the court deferred to scientific
expertise.135 The court further expanded on its original ruling to find that,
given the endangered status of the Basin’s fisheries, biology-based
recommendations regarding the flows needed to support salmon life
stages would receive favorable consideration.136 Thus, the “absolute
minimum” has evolved into a standard for conservation and recovery of
endangered fish populations in the Yakima Basin.
Water supply conditions in the Yakima Basin are perennially
difficult. Drought occurs every few years, requiring curtailment of junior
irrigation rights. In-stream flows are depleted in certain reaches of the
River at certain times. Climate change exacerbates water scarcity. But the
Yakama Nation has parlayed its treaty right into formal and informal comanagement partnerships with Washington and the United States Bureau
of Reclamation.137 Through these processes, the Tribe has successfully
asserted its Stevens Treaty water rights to protect fish and habitat, and
institutionalized processes to perpetuate protections. Water conservation
improvements, trust water rights (dedicated in-stream flow rights), fish
passage at Basin reservoirs, and other activities hold promise for fisheries
133
Memorandum Opinion re: Motions for Partial Summary Judgment, State Dep’t of
Reservation Irr. Dist.,121 Wn.2d 257 (1993)(No. 77-2-01484-5).
134
Memorandum Opinion re: “Flushing Flows,” State Dep’t of Ecology v. Acquavella, 100
Wash.2d 651 (1983) aff’d, State Dep’t of Ecology v. Yakima Reservation Irr. Dist.,121
Wn.2d 257 (1993)(No. 77-2-01484-5).
135
Id.
136
Id.
137
E.g., Memorandum of Agreement Among the Yakama Nation and U.S Bureau of
Reclamation and Wash. State Dep’t of Ecology Related to Ground Water Management in
Yakima River Basin (Aug. 12, 1999), available at
http://www.ecy.wa.gov/programs/wr/cro/images/pdfs/moa_yn_br_ecy1999.pdf (last
visited Nov. 24, 2013); W ASH. DEP’T OF ECOLOGY W ATER TRANSFER W ORKING GROUP,
http://www.ecy.wa.gov/programs/wr/ywtwg/ywtwg_qanda.html (last visited Nov. 23,
2013).
100
restoration. Progress is slow, but steady, and reveals the contemporary
power of the Stevens Treaty legal right, reserved in 1855, to counter the
force of prior appropriation.
b. The Nez Perce Tribe and the Snake River Basin
Adjudication
The Nez Perce Tribe (known also as Nimi’ipu), is an Inland
Northwest Tribe historically dependent on the extraordinary 900-mile
migration of salmon into the Clearwater River region now known as
Idaho.138 The Nez Perce ceded fourteen million acres of aboriginal lands
to the United States via two treaties in 1855 and 1863, and agreed to
settle and reside on the present-day reservation.139 The Nez Perce
peoples are well known for welcoming the Lewis & Clark expedition of
1805 when the near-starved “Corps of Discovery” stumbled out of the
Bitterroot Mountains, and were revived with salmon and other traditional
foods.140
The Nez Perce Treaties reserved rights to fish at usual and
accustomed sites. 141 As explained by the Nez Perce Tribal chairman in a
hearing before the United States Congress, “fish and water are materially
and symbolically essential to Nez Perce people both in the present and
the past; and declines in fish and water availability, primarily due to human
environmental alteration and restrictions on access, have had devastating
effects on our people and their culture.”142
Unique among the Stevens Treaties, the 1863 Nez Perce Treaty
also preserved tribal access and use rights to approximately 600 “springs
or fountains . . . and, further, to preserve a perpetual right of way to and
from the same, as watering places, for the use in common of both whites
138
DAN LANDEEN AND ALLEN PINKHAM, SALMON AND HIS PEOPLE: FISH AND FISHING IN NEZ
PERCE CULTURE (1999).
139
Treaty with the Nez Percés, U.S.-Nez Percé Indians, art 3, June 11, 1855, 12 Stat.
957; Treaty with the Nez Percés, U.S.-Nez Percé Indians, 16 Stat. 647 (1868).
140
THE JOURNALS OF LEWIS AND CLARK, 240-41 (1981).
141
See Treaty with the Nez Percés, supra note 139.
142
Snake River Basin Adjudication Settlement, Hearing on S. 108-636 Before the S.
Comm. on Indian Affairs, 108 Cong. (2004) (statement of Anthony Johnson, Nez Perce
Tribal Executive Committee Chairman).
101
and Indians.”143 The abundant springs of Nez Perce aboriginal lands
supply water for human and livestock needs, and also support traditional
foods and cultural practices.
In 1987, Idaho commenced a general stream adjudication of the
Snake River Basin, and approximately 150,000 claims to water were
filed.144 The Nez Perce Tribe filed multiple claims for on-reservation
Winters water rights, Stevens Treaty off-reservation in-stream flows, and
use of springs and fountains. 145 Tribal water claims drew substantial
opposition from non-Indian agricultural and timber interests, and in 1999,
the adjudication court ruled that there was a lack of intent by United States
and Tribal treaty negotiators to reserve in-stream flows because they did
not contemplate future fisheries problems. 146
Rather than risk further losses in the state court system, the Nez
Perce Tribe elected to negotiate. The resulting settlement was substantial
but involved “significant and difficult compromises for the Tribe.” 147
Stevens Treaty in-stream flow rights were not recognized in the
agreement. The Tribe’s on-reservation Winters water right was quantified
at 50,000 acre-feet, dating from 1855. 148 In-stream flow rights were
recognized for 205 streams off the reservation, but are managed by the
state and subordinated to state water permits that pre-date the 2004
agreement.149 Both on-and off-reservation in-stream flow rights are
subordinated to future water uses. The Tribe’s “springs and fountains”
143
Treaty with the Nez Percés, U.S.-Nez Percé Indians, art 8, June 9, 1863, 14 Stat. 647.
See Ottem, supra, note 10 (re Yakima, Idaho and Oregon adjudications).
145
In re Snake River Basin Adjudication, Case No. 39576, Consolidated Subcase No. 0310022 at 12-15 (Idaho 5th Dist. Ct., Twin Falls County, Nov. 10, 1999) (copy on file with
author).
146
Id. at 27-39, 47.
147
See Heidi K. Gudgell, et al., The Nez Perce Tribe’s Perspective on the Settlement of
Its Water Right Claims in the Snake River Basin Adjudication, 42 IDAHO L. REV. 563
(2006).
148
Nez Perce Tribe, and State of Idaho, Snake River Water Rights Agreement,
Mediator’s Term Sheet and Agreement Summary, U.S. DEP’T OF INTERIOR, (May 2004),
available at www.idwr.idaho.gov/waterboard/WaterPlanning/nezperce/default.htm (last
149
Id.
144
102
rights, explicitly reserved in the Treaty, fared better with a priority date of
“time immemorial,” and are shared equally with non-Indian users.150
The failure of the Nez Perce settlement to recognize off-reservation
in-stream flow rights of the Tribe represents a disappointing turn in the
development of Stevens Treaty water right jurisprudence. Idaho has
proven a particularly difficult venue to protect environmental values in
rivers from both tribal and non-tribal perspectives.151 The Nez Perce
settlement is hard to assail given the context for its negotiation. Moreover,
the settlement brought significant resources to the Tribe that would be
unobtainable through the Snake River general stream adjudication. Tribal
benefits include the return of 11,000 acres of federal lands within the
boundaries of the Nez Perce Reservation, the right to control water
releases from a major reservoir on the Columbia-Snake River system to
enhance salmon migration, and payment of $90 million in federal funds to
restore fisheries habitats and establish on-reservation water and sewer
management infrastructure. 152
c. The Muckleshoot Tribe and the Cedar River Habitat
Conservation Plan
The Muckleshoot Indian Reservation is located at the foot of Mount
Rainier in western Washington; the Tribe is signatory to the Treaties of
Point Elliott and Medicine Creek, which established the Tribe’s 6-square
mile reservation and rights to “fish in common” with Euro-American
settlers.153 Descendants of the Coast Salish peoples of the Northwest, the
Muckleshoot are salmon and shell fishers and possess access and use
rights to aboriginal fishing sites along hundreds of miles of shorelines of
the Puget Sound estuary and tributary rivers.154
150
Id.
See, e.g., Michael C. Blumm, Reversing the Winters Doctrine?: Denying Reserved
Water Rights for Idaho Wilderness and Its Implications, 73 UNIV. COLO. L. REV. 173
(2002).
152
See, Gudgell, et al., supra note 146.
153
Treaty of Medicine Creek, US-Nisqually, Dec. 26, 1854, 10 Stat. 1132; Treaty of Point
Elliott, Jan. 22, 1855, 12 Stat. 927.
154
About Us - Overview, MUCKLESHOOT INDIAN TRIBE,
http://www.muckleshoot.nsn.us/about-us/overview.aspx (last visited. Nov. 24, 2013).
151
103
The Cedar River, an important tributary located near the
Muckleshoot Reservation, is home to several salmon and trout species,
including three that are threatened with extinction and have been listed
pursuant to the federal Endangered Species Act (ESA). 155 The Cedar
River is also a major source of water supply for the City of Seattle, which
delivers water to 1.3 million customers.156 As Seattle’s population
skyrocketed in the 1990s, the City prepared to double its water diversions
from the Cedar, an action that would have caused substantial harm to the
Tribe’s fishery interests. 157
Rather than broach the risks inherent in litigating treaty water rights,
the Muckleshoot Tribe leveraged the ESA as legal authority for
establishing in-stream flows. Because Seattle’s water system threatened
harm to ESA-listed salmon species, the City was required to prepare a
habitat conservation plan (HCP) to meet overarching habitat and species
recovery goals.158
Even without treaty litigation, the going was difficult. In 2000,
Seattle negotiated an HCP in-stream flow agreement, signed off by all
interested parties except the Muckleshoot Tribe and one federal
agency.159 The Tribe’s first legal challenge to the HCP was dismissed on
procedural grounds,160 but a second challenge was met with proposals for
a new round of negotiations. The resulting settlement, signed in 2006,
limits Seattle’s diversions in perpetuity.161 The agreement also establishes
a fish-friendly in-stream flow regime that protects a range of flows—
155
Endangered Species Act, § 4, 7 U.S.C. § 1533 (2006); see also Pacific Salmon and
Anadromous Trout: Management Under the Endangered Species Act (Oct. 27, 1999)
http://www.cnie.org/nle/crsreports/biodiversity/biodv-22.cfm (last visited Jan. 9, 2014).
156
SEATTLE PUBLIC UTILITIES, SAVING W ATER PARTNERSHIP 2010 ANNUAL REPORT AND 10YEAR REVIEW (2011), available at http://www.savingwater.org/index.htm (last visited Nov.
24, 2013).
157
Muckleshoot Tribe Settles with Seattle on Cedar River Water, EARTHJUSTICE (March
28, 2006), http://earthjustice.org/news/press/2006/muckleshoot-tribe-settle-with-seattleon-cedar-river-water (last visited Nov. 24, 2013); Muckleshoot Indian Tribe v. Washington
Dep’t. of Ecology, 112 Wash. App. 712, 717-18 (2002).
158
Endangered Species Act, § 10, 7 U.S.C. § 1539 (2006).
159
Muckleshoot Indian Tribe v. Washington Dep’t of Ecology, 112 Wash. App.at 712.
160
Id.
161
Cedar River Settlement Agreement between Muckleshoot Indian Tribe and City of
Seattle (2006) (on file with author).
104
including both minimum flows during the summer season and peak flows
needed for channel maintenance functions—and creates an In-stream
Flow Commission comprised of agency and tribal representatives to
provide oversight for Cedar River water management. 162 The Muckleshoot
Tribe heralded the agreement as one that would allow the Tribe to rely on
the Cedar River watershed "to sustain its society and culture and to
provide sustenance for its people."163 The Tribe’s use of robust federal
environmental laws illustrates a successful mechanism to leverage treatybased rights.
III.
A.
MANAGEMENT OF WINTERS WATER
Introduction
Water must be managed after tribal rights are established at law.
Identifying which governments are empowered to manage water
resources within or adjacent to tribal reservations is a key question
emerging from the Winters doctrine. This question has engendered yet
more litigation, a developing jurisprudence, and some creative and
practical responses to the need for effective water management.
Regulatory jurisdiction over tribal water resources raises several issues,
founded in large part on the fact of substantial non-Indian ownership of fee
lands within reservation boundaries. As described above, the Dawes Act
of 1887 authorized the allotment of reservation lands to tribal members
and subsequent sale of “surplus lands” to non-Indians, leading to the loss
of a large amount of the tribal estate.164 Many individual tribal members
sold their allotments or lost them in tax foreclosure proceedings, allowing
non-Indians to move onto reservations. Despite repudiation of the
allotment policy in 1934, the United States Congress did not require the
removal of non-Indians from tribal lands.165
162
Id.
Muckleshoot Tribe Settles with Seattle on Cedar River Water, EARTHJUSTICE (March
28, 2006), http://earthjustice.org/news/press/2006/muckleshoot-tribe-settle-with-seattleon-cedar-river-water (last visited Nov. 24, 2013).
164
General Allotment Act of 1887, supra note 11.
165
Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479 (2006).
163
105
The resulting patchwork of non-Indian fee properties on tribal
reservations created lingering questions about non-Indian entitlement to
Winters water rights. It also raised the question of the scope of tribal
governmental authority to regulate water use by all reservation residents.
United States courts have increasingly diminished the exercise of tribal
governmental authority over non-Indians. As a result, the ability of tribes to
fully control reservation water resources has resulted in a confusing set of
precedents.
Rivers and aquifers are unitary in nature, and jurisdictional
fragmentation undermines protection of water resources and traditional
tribal uses. Lack of clear authority over non-Indian water usage has led to
illegal self-help, over-appropriation, and widespread contamination of tribal
water resources.
Prior to the decision in Confederated Colville Tribes v. Walton,
described below, non-Indians would secure water right permits from state
water agencies for diversion and use of tribal waters. 166 In 1981, the
Walton court ruled that states lack authority to issue such permits, but
made a point of noting the unique geographic circumstances in that
case.167 Three years later, the same court ruled that states could issue
permits for use of waters by non-Indians on non-tribal lands within an
Indian reservation when those waters are “excess” to Winters doctrine
needs.168 However, “excess” waters determinations have not been made
for most Indian reservations.
Despite the confusion, Tribes are pro-active in their exercise of
sovereign governmental powers to protect reservation waters and promote
orderly development. Many tribal governments have promulgated water
codes to govern on-reservation water use.169 One early challenge to such
a code extended the Anderson170 rule to hold that the tribe could not
166
Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981).
Id.
168
169
National Congress of American Indians, Tribal Water Codes: what are they and why
are they important?, YOUTUBE (Dec. 17, 2012),
www.youtube.com/watch?v=m20tFgVEOpE (last visited Nov. 24, 2013).
170
Anderson, 736 F.2d 1358.
167
106
regulate non-Indian use of “excess” waters—although that term was itself
not defined or quantified. 171 As discussed above, the Arapahoe and
Shoshone Tribes of the Wind River Reservation were unsuccessful in
using their water code to transfer irrigation rights to in-stream flows.172 The
volatility of the issue has caused the United States Bureau of Indian
Affairs, which reviews and approves adoption of tribal law and order codes
for tribal governments constituted under the Indian Reorganization Act of
1934, to impose a 40-year moratorium on approval of tribal water
codes.173
Notwithstanding the controversies over tribal regulatory authority,
many Indian tribes have moved forward to ensure protection of reservation
resources. What follows are two examples of Tribes that have carved their
own path to protect their Winters rights and ensure protection of
reservation waters.
B.
“Walton” Rights on the Colville Indian Reservation
The Colville Reservation comprises 1.4 million acres in
northeastern Washington, bounded partly by the Columbia and Okanogan
Rivers.174 In determining the scope of the Tribe’s Winters rights, a federal
court held the purposes of the Reservation to include both agriculture and
fishing, the latter being of “economic and religious importance” to the
Tribes.175
171
Holly v. Totus, 655 F. Supp. 546 (E.D. Wash. 1983) aff’d in part, rev’d in part sub nom.
Holly v. Watson Totus, 749 F.2d 37 (9th Cir. 1984). (Undeterred, the Tribe amended the
water code to remove offending language, and has effectively regulated on-reservation
waters since 1992.) See YAKAMA NATION REV. CODE ch. 60.01 (2005) (on file with author).
172
In re Gen. Adjudication of All Rights to Use Water in the Big Horn River, 835 P.2d 273;
see also supra Section II(A)(4)(i).
173
JOHN E. THORSON, SARAH BRITTON, & BONNIE G. COLBY, TRIBAL WATER CODES, IN
TRIBAL WATER RIGHTS: ESSAYS IN CONTEMPORARY LAW, POLICY, AND ECONOMICS 199, 206
(2006); SLY, supra note 48 (1989).
174
History of the Colvilles, CONFEDERATED TRIBES OF THE COLVILLE RESERVATION,
http://www.colvilletribes.com/history_of_the_colvilles.php (last visited Nov. 25, 2013)
(citing President William McKinley, Proclamation 445, Withdrawal of Certain Lands from
the Colville Reservation (April 10, 1900)).
175
Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981).
107
The tribes and bands comprising the Confederated Colville Tribes
(CCT) were salmon fishers, but traditional tribal fishing grounds on the
Columbia River were destroyed by the Grand Coulee Dam. To mitigate for
this loss, CCT created a replacement fishery in the Omak Lake watershed,
a hydrologic system completely encompassed within the Colville
Reservation.176 The Tribe stocked Omak Lake with a trout species that
thrives in saline lake waters, but requires freshwater to spawn. 177 After the
Colville Reservation was opened to allotment, non-Indians acquired
ownership of lands within the Omak Lake drainage and commenced
irrigation diversions from the Lake’s tributary stream. 178 Conflict arose
between the Tribe’s need to maintain water in the creek system for trout
spawning and the non-Indian irrigation diversions.
The resulting litigation established a landmark holding in the
development of Winters jurisprudence: non-Indian successors to Indian
allotments are entitled to share in the Winters rights held by the Tribes. 179
This so-called “Walton” right (named for the Omak Lake non-Indian
defendant), implicates on-reservation water management on every
reservation where non-Indians have acquired lands—virtually every Indian
reservation in the western United States.
Several rules apply to Walton rights, including that the non-Indian
right (1) is based on a pro rata share of irrigable tribal lands; (2) must be
put to use within a reasonable time (typically 15 years) from the date that
the land is transferred from Indian to non-Indian ownership; and (3) may
be lost for non-use.180 If the non-Indian right is lost, it reverts to the state in
which the tribal reservation is located, not the tribe. 181
Because water in the Omak Lake watershed is inadequate to
supply all needs, usage must be carefully managed. Who regulates the
Walton right? The court found that state water law was pre-empted by the
176
Id. at 45.
Id.
178
Id.
179
Id.at 48.
180
Id. at 51.
181
177
108
federal actions creating the Colville Reservation. 182 The Omak Lake
system is non-navigable and lies entirely within the Reservation, factors
that were important but not determinative.183 Instead, the court looked to
historic precedent to reject the claim that state laws, particularly water
laws, may apply.184
The court did not decide, however, whether federal or tribal
authority applied to manage on-reservation water resources. CCT,
therefore, set about taking control of water management, signing groundbreaking cross-jurisdictional agreements with the State of Washington and
federal agencies. 185 CCT marshaled available law and procedures to
create an impressive natural resources management program, including a
water code. Sources of authority supporting tribal regulation of the natural
resources and the reservation environment include tribal sovereignty, 186
federal self-determination policy and law, 187 assumption of delegated
powers pursuant to federal environmental statutes such as the Clean
Water, Clean Air, and Resource Conservation and Recovery Acts, 188
cross-jurisdictional agreements, and federal common law that creates an
exception to the general prohibition on tribal jurisdiction over non-Indians
under circumstances involving “the political integrity, the economic
security, or the health and welfare of the Tribe.” 189
The Colville Tribal Water Use & Permitting Code exemplifies a
successful tribal program that asserts jurisdiction over all reservation
waters and, through modern management techniques such as integrated
resource management planning, hydrogeologic investigations, geographic
182
Colville Confederated Tribes v. Walton, 647 F.2d 42, 51-53 (9th Cir. 1981).
Id.
184
Id. (citing Fed. Power Comm’n v. Oregon, 349 U.S. 435, 448 (1955)); United States v.
McIntire, 101 F.2d 650, 654 (9th Cir. 1934).
185
See RALPH W. JOHNSON & RACHAEL PASCHAL, REPORT OF FINDINGS AND
RECOMMENDATIONS, COMPENDIUM OF AGREEMENTS BETWEEN THE 26 FEDERALLY
RECOGNIZED INDIAN TRIBES IN W ASHINGTON STATE AND STATE AND LOCAL GOVERNMENTS
(1991).
186
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980).
187
Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450 (2006).
188
Clean Water Act, 33 U.S.C. § 104(b)(3) (2006); Clean Air Act, 42 U.S.C. § 301 (2006);
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6908(a) (2006); see
Washington v. EPA, 752 F.2d 1465 (9th Cir. 1985).
189
Montana v. United States, 450 U.S. 544, 566 (1981).
183
109
information systems, vigilant regulatory control, and hands-on
interpersonal skills, effectively manages the entire reservation
environment.190
C.
Lummi Nation Groundwater Management
The Lummi Indian Nation is located on the island of Cha-Cho-Sen,
now known as Lummi Peninsula, which juts into Puget Sound a few miles
south of the Canada-United States border.191 The Lummi Reservation was
established by the Treaty of Point Elliott.192 Historically, the Lummi people
occupied the San Juan Islands and Bellingham Bay areas of Puget Sound
and, like all Northwest Tribes, depend on salmon and shellfish as major
food and cultural resources.193
As with many tribal reservations, lands were allotted to individual
Indian households, some of which found their way into non-Indian
ownership. On the 6,254-acre Lummi Peninsula, the Tribe and its
members comprise about two-thirds of the population and own about
three-quarters of the land base. 194 Population growth has increased
demand for the Peninsula’s sole freshwater resource, a groundwater
system recharged by precipitation and hydraulically connected to the
saltwater Puget Sound. Over-pumping of groundwater has become a
major concern, inducing saltwater intrusion and chloride contamination of
wells and rendering them unsafe for human consumption. The Lummi
Nation’s Water Resources Program determined that the safe yield of the
Lummi Aquifer was 910 acre-feet per year, and that pumping was
190
COLVILLE TRIBAL LAW & ORDER CODE, ch. 4-10 (amended June 2006) (Water Use and
Permitting), available at www.narf.org/nill/Codes/colvillecode/cctoc.htm (last visited Nov.
3, 2013).
191
United States v. Washington, 375 F. Supp. 2d 1050 (W.D. Wash. 2005) vacated
pursuant to settlement sub nom. United States ex rel Lummi Indian Nation v.
Washington, C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007) aff’d sub nom.
United States ex rel. Lummi Nation v. Dawson, 328 F. App’x 463 (9th Cir. 2009).
192
Treaty with the Dwamish, Suquamish, etc., U.S.- Dwamish, art 2, April 11, 1859, 12
Stat. 927.
193
United States v. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974) aff’d and
remanded, 520 F. 2d 676 (9th Cir. 1975).
194
United States v. Washington, 375 F. Supp. 2d 1050, 1057-58 (W.D Wash. 2005).
110
exceeding the natural rate of recharge and putting the Peninsula aquifer at
risk.195
While the Lummi Nation was in a position to control its own water
usage, non-Indians would not cooperate in tribal water management. In
2001, the United States joined the Lummi Nation to bring suit in federal
court to adjudicate and quantify the rights of the Nation vis-à-vis nonIndian water users and Washington.196 The litigation and settlement of the
lawsuit offer two instructive developments regarding Winters water rights
and tribal water resource management.
First, in its initial review of legal questions, the court interpreted the
scope of the Nation’s Lummi Peninsula water rights pursuant to the Treaty
of Point Elliott. The court held that Winters doctrine water rights may
encompass rights to groundwater, even if the groundwater is not
connected to surface waters. 197 Second, the court held that under the
Treaty of Point Elliott, the Lummi Nation reserved rights to utilize
groundwater, even though it was not using such waters in 1855 at the time
the Treaty was signed.198
Ultimately, the parties opted for settlement, and the resulting
agreement is notable for its comprehensive scope. Lummi Peninsula
water usage by non-Indians is capped at a fixed annual rate and regulated
to prevent over-pumping.199 All wells are metered to determine pumpage
rates, and monitored for water quality degradation due to saltwater
195
Order Conditionally Approving Settlement Agreement at 3, United States ex rel Lummi
Indian Nation v. Washington, C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007)
aff’d sub nom. United States ex rel. Lummi Nation v. Dawson, 328 F. App’x 463 (9th Cir.
2009), (No. C01-0047Z).
196
Complaint, United States ex rel Lummi Indian Nation v. Washington, C01-0047Z, 2007
WL 4190400 (W.D. Wash. Nov. 20, 2007) aff’d sub nom. United States ex rel. Lummi
Nation v. Dawson, 328 F. App’x 463 (9th Cir. 2009), (No. C01-0047Z).
197
Order at 9-12, United States ex rel Lummi Indian Nation v. Washington, C01-0047Z,
2007 WL 4190400 (W.D. Wash. Nov. 20, 2007) aff’d sub nom. United States ex rel.
Lummi Nation v. Dawson, 328 F. App’x 463 (9th Cir. 2009), (No. C01-0047Z).
198
Id.
199
Settlement Agreement Regarding Uses of Groundwater on Lummi Peninsula (Nov.
13, 2007), available at
http://www.ecy.wa.gov/programs/wr/rights/Images/pdf/luimmi/SettlementAgreement1113
07.pdf (last visited Nov. 24, 2013).
111
intrusion.200 A federal water master oversees disputes among all
parties,201 while the Washington Department of Ecology retains authority
to control direct, non-tribal water usage.202 The Lummi Nation water code,
promulgated in 2004, regulates existing and new water use by tribal
members and non-Indians who are served by tribal water systems. 203
The Lummi Nation settlement and water management program
arose out of a scientifically rigorous approach to determining aquifer yield
and controlling water quality degradation, combined with a creative crossjurisdictional approach to water management duties. Tribal Winters and
non-Indian Walton rights are recognized and given effect, but within the
constraints of existing supply.
CONCLUSION
History reveals the importance of tribal water rights and the
significance of contemporary efforts to define and quantify those rights.
Tribal interests and values in water emerge from traditions dating back
millennia; the treaties that codified tribal water rights are 150 years old.
Judicial emphasis on evaluating treaties from perspectives of times past
gives history more relevance in tribal water right proceedings than virtually
any other area of law. History is known to the tribes too, as oral tradition
keeps alive the meaning of the treaties. Professor Charles Wilkinson
writes of the elders who testified in Judge Boldt’s courtroom in 1974,
explaining in detail why their parents and grandparents reserved fishing
rights and access stations in the Stevens Treaty negotiations.204
200
Id. at 7-8, 40-45.
Id. at 31-39; e.g., United States v. Washington, No. C-01-0047Z; FEDERAL W ATER
MASTER’S ANNUAL REPORT FOR FISCAL YEAR 2012-2013, available at
http://www.ecy.wa.gov/programs/wr/rights/Images/pdf/luimmi/LummiAnnualReport06281
3FINAL.pdf (last visited Nov. 24, 2013).
202
Settlement Agreement Regarding Uses of Groundwater on Lummi Peninsula at 10-24
(Nov. 13, 2007) available at
http://www.ecy.wa.gov/programs/wr/rights/Images/pdf/luimmi/SettlementAgreement1113
07.pdf (last visited Nov. 24, 2013).
203
W ATER RESOURCES PROTECTION CODE, tit. 17, LUMMI NATION CODE OF LAWS (2004),
available at http://lnnr.lummi-nsn.gov/LummiWebsite/userfiles/119_20102020LummiNationUnexpiredFMP_FINAL9-2-2010.pdf (last visited Nov. 24, 2013).
204
Wilkinson, supra note 110.
201
112
Equally critical is the emergence of the modern tribal governmental
estate. Tribes are capable not only of self-governance, but operate
sophisticated, natural resource management programs. Professor Bill
Rodgers identifies three unique attributes that put tribes in a position to
protect and defend the waters of the American west: tribal sovereignty, the
special trust relationship between the United States and Indian Tribes, and
tribal proprietary interests in land, water and wildlife resources.205 Tribal
resource agencies now participate as co-managers with state and federal
governments to protect and restore the waters and fisheries in which they
hold an ownership interest. The successes are palpable and will continue
to improve and grow.
The antipathy of state courts toward Indian water rights cannot be
averted, and the historic allotment policies that allow non-Indians to own
lands within tribal reservations are a significant obstacle to full use and
management of tribal water rights. However, the movement toward
settlement of Indian water claims is gaining ground due to the need by all
parties for greater control over outcomes and the broad and productive
terms that may be achieved through settlement, rather than litigation.
Finally, in the United States, an evolution is underway with respect
to cultural and political thinking about human relationships with water. 206
This change, long in coming, is a force for justice and the recognition of
tribal water claims—claims that, in turn, illuminate a path forward for all
people, and all rivers.
205
William H. Rodgers, Tribal Government Roles in Environmental Federalism, 21 NAT.
RESOURCES AND ENV’T 3 (2007).
206
The Columbia River Watershed: Caring for Creation and the Common Good, The
CATHOLIC BISHOPS OF THE COLUMBIA W ATERSHED REGION (2000), available at
http://www.youtube.com/watch?v=6Kc1F2-EvJw (last visited Nov. 24, 2013).
113
TRIBAL ADVOCACY AND THE ART OF DAM REMOVAL: THE
LOWER ELWHA KLALLAM AND THE ELWHA DAMS
Julia Guarino*
United States Dep’t. of Commerce & Nat’l Marine Fisheries Serv., Elwha
River Fish Restoration Plan, Developed Pursuant to the Elwha River,
Ecosystem and Fisheries Restoration Act, Pub. L. No. 102-495, NOAA
Technical Memorandum NMFSNWFSC-90, fig. 1 at 2 (2008).
114
INTRODUCTION: THE TREND TOWARD DAM REMOVAL AND THE ROLE OF
TRIBAL ADVOCACY
The lower dam immediately blocked the spawning
migrations of salmon and steelhead. As one wades the
riffles, fishes the pools, and explores the Elwha and its
tributaries above the dam, it becomes clear that the salmon
and steelhead are absent. Biologically speaking, the river is
a shadow of its former self. Before the Elwha Dam was built,
the river produced approximately 400,000 salmon and
steelhead a year, with some chinook weighing over 100
pounds. It is an odd experience to be deep in the Elwha
River valley, surrounded by healthy forest, viewing a clean
and healthy river ecosystem, and comprehend the
diminished river. While magnificent, beautiful, and even
transcendent, the river exudes a fundamental emptiness that
is the legacy of settlement and development—a legacy
specifically due to the two aging dams and the historical and
economic processes that culminated in their construction. 1
The big dam-building era is over, and though it will be a long
journey, we have begun to move toward dam removal for ecological,
economic, and social reasons. The Lower Elwha Klallam Tribe has
demonstrated, through its role in the removal of the Elwha Dams, that
tribal advocacy can be a major force in freeing the rivers of Tribes’ historic
homelands.
The twentieth century saw an unprecedented frenzy of dam
construction in the United States and worldwide. There are now more than
* Getches Fellow, Getches-Wilkinson Center for Natural Resources, Energy, and the
Environment; J.D., University of Colorado Law School (2013); B.A., Bard College (2007).
With many thanks to Charles Wilkinson for his direction and mentorship, and to Steve
Suagee, Robert Elofson, Doug Morrill, and Larry Ward with the Lower Elwha Klallam
Tribe for their time, advice, and comments.
1
JEFF CRANE, FINDING THE RIVER: AN ENVIRONMENTAL HISTORY OF THE ELWHA 3 (2011).
115
87,000 medium to large-sized dams on America’s rivers. 2 “[I]n the words
of former Secretary of Interior Bruce Babbit, ‘we overdid it . . . building, on
average, one dam a day, including weekends, since the Declaration of
Independence.’”3 These structures were built for flood control, diversion,
water storage, and recreational purposes, with little thought to their
destructive environmental and social impacts.4
The negative impacts of dams on American rivers are numerous.
By altering river temperature, water level, oxygen and sedimentation
loads, the timing, volume, and velocity of flows and by blocking migration
of species, dams completely change the environment in which native flora
and fauna developed. 5 This alteration threatens fisheries, prevents certain
types of recreation, and often has a particularly devastating impact on
traditional indigenous uses of the water body and the various species that
reside in it.6
The majority of American dams constructed during the twentieth
century were designed with a 50-year life expectancy, and 85 percent of
these dams will be 50 or more years old by the year 2020. 7 As American
dams age, the public and the federal government have begun to
acknowledge the environmental and social harms that dams cause, and
2
ARMY CORPS OF ENGINEERS, NATIONAL INVENTORY OF DAMS,
http://geo.usace.army.mil/pgis/f?p=397:12: (last visited Nov. 24, 2013). The National
Inventory of Dams only includes dams meeting at least one of the following criteria: 1)
High hazard classification - loss of one human life is likely if the dam fails, 2) Significant
hazard classification - possible loss of human life and likely significant property or
environmental destruction, 3) Equal or exceed 25 feet in height and exceed 15 acre-feet
in storage, 4) Equal or exceed 50 acre-feet storage and exceed 6 feet in height, in 49
states (excluding Alabama), and Puerto Rico; CorpsMap: National Inventory of Dams,
ARMY CORPS OF ENGINEERS, http://geo.usace.army.mil/pgis/f?p=397:1:0 (last visited Nov.
24, 2013).
3
Christine A. Klein, On Dams and Democracy, 78 OR. L. REV. 641 (1999) (quoting Bruce
Babbitt, Dams Must Be Looked at Critically, With an Eye Toward Environment, W IS.
STATE J. (Nov. 29, 1998)).
4
See generally MARC REISNER, CADILLAC DESERT: THE AMERICAN W EST AND ITS
DISAPPEARING W ATER (1986); See generally STEPHEN GRACE, DAM NATION (2012).
5
See Why We Remove Dams, AM. RIVERS,
http://www.americanrivers.org/initiatives/dams/why-remove/ (last visited Nov. 24, 2013).
6
See THE JOHN HEINZ III CTR. FOR SCI., ECON. & ENV’T, DAM REMOVAL: SCIENCE AND
DECISION MAKING 74-78 (2002) [hereinafter HEINZ REPORT].
7
See Id. at 34.
116
federal dam building has essentially ceased. 8 Furthermore, private parties
and the federal government have begun to consider removing dams
instead of repairing and relicensing them as they age. On July 1, 1999,
Edwards Dam in Maine, the first dam to be removed over the protestations
of its owner by order of the federal government, was demolished. 9 Since
1999, 593 dams have been removed from American rivers, 63 of which
came out in 2012. 10
8
Beginning in the 1960s, an international environmental and social movement concerned
about the effects of dams began to grow, and large dam construction faced new political
and legal opposition. DAVID P. BILLINGTON, DONALD C. JACKSON, & MARTIN V. MELOSI, U.S.
DEPT. OF THE INTERIOR & BUREAU OF RECLAMATION, THE HISTORY OF LARGE FEDERAL DAMS:
PLANNING, DESIGN, AND CONSTRUCTION IN THE ERA OF BIG DAMS 383 (2005). Since the
1990s, the federal government has acknowledged that “[t]he dam building era in the
United States is now over.” Marc Reisner, The Fight for Reclamation, HIGH COUNTRY
NEWS at 8 (Mar. 20, 1995), http://www.hcn.org/issues/31/874/print_view (last visited Nov.
24, 2013). “The big dam era left a powerful structural and economic legacy, but it was a
legacy that presents challenges to society in terms of making the best use of America’s
water resources.” BILLINGTON ET AL., supra, at 412. Although large dam construction is no
longer politically feasible in the United States, a similar story is unfolding in the debate
over pipeline construction. As with large dams, pipelines can threaten ecosystems,
communities, and cultural resources. See, e.g., Dr. Janet Swan, Assessing the
Environmental Impacts of Pipelines, PIPELINES INTERNATIONAL (Sept. 2009),
http://pipelinesinternational.com/news/assessing_the_environmental_impacts_of_pipeline
s/008361/ (last visited Nov. 24, 2013); TIM W ILLIAMS, PARLIAMENT OF CANADA INDUSTRY,
INFRASTRUCTURE AND RESOURCES DIVISION, PIPELINES: ENVIRONMENTAL CONSIDERATIONS
(2012). The Keystone XL pipeline, which is proposed to extend from Alberta, Canada to
the Gulf Coast of Texas, has been a major source of environmental controversy in recent
years. See, e.g., Keystone XL Pipeline, FRIENDS OF THE EARTH,
http://www.foe.org/projects/climate-and-energy/tar-sands/keystone-xl-pipeline (last visited
Nov. 24, 2013). The Department of State is currently finalizing an Environmental Impact
Statement for the project, New Keystone XL Pipeline Application, U.S. DEPT. OF STATE,
http://keystonepipeline-xl.state.gov/ (last visited Nov. 24, 2013), and construction is
anticipated to begin in 2015. Keystone XL Pipeline: About the Project, TRANSCANADA,
http://keystone-xl.com/about/the-project/ (last visited Nov. 24, 2013). Meanwhile,
environmental groups, tribes, and others remain vocally opposed to the project and the
federal government has been inconsistent in its support. See, e.g., Ben Brumfield, Oil,
Money and Politics; EPA Snags Keystone XL Pipeline, CNN (Apr. 23, 2013); Steve
Mufson, Keystone XL Pipeline Raises Tribal Concerns, W ASHINGTON POST (Sept. 17,
2012).
9
Edwards Dam and Kennebec Restoration: A Brief History of Edwards Dam, NATURAL
RESOURCES COUNCIL OF MAINE, http://www.nrcm.org/historyedwards.asp (last visited Nov.
24, 2013).
10
63 Dams removed to restore rivers in 2012, AM. RIVERS (2012)
http://www.americanrivers.org/assets/pdfs/dam-removal-docs/2012-dams-removed.pdf
117
As with the Edwards Dam, the removal of the Elwha and Glines
Canyon Dams on the Elwha River in Washington began with a dam
relicensing procedure by the Federal Energy Regulatory Commission
(FERC).11 As with many dams being considered for removal, the health
and preservation of the salmon runs has been a central issue for all
parties.12 The salmon have certainly been a driving force for the intensive
advocacy undertaken by the Lower Elwha Klallam Tribe, which first filed a
motion to intervene in the FERC proceedings for both dams in 1986. 13
Eventually the Tribe was able to engage federal agencies and local
stakeholders in the removal process, which officially began with a dam
removal ceremony on September 17, 2011. 14
This article will explore the role played by the Lower Elwha Klallam
Tribe in the removal of the Elwha Dams, discussing Elwha life and
livelihood before the dams, the motivations and forces behind the building
of the dams and their effect on the Tribe, the decision to remove the
dams, and finally the dam removal process that is now underway on the
Elwha River. This article emphasizes the unique role of the Lower Elwha
Klallam Tribe in the removal process, which has stretched over more than
thirty years. The Tribe’s success in achieving the removal of a dam that
has interfered with its traditions and way of life for a century, should serve
as a model for other tribal nations in advocating for dam removal in their
traditional homelands.
I. LOWER ELWHA KLALLAM LIFE BEFORE THE DAMS
On the northwest edge of the continental United States, in
some of the quietest and most rain-drenched lands in all of
North America, runs the glacier-blue Elwha River. It arises
11
See Peter Lavinge, Dam(n) How Times Have Changed, 29 W M. & MARY ENVTL. L.
&POL’Y REV. 451, 464-65 (2005).
12
See generally Peter J. Carney, Dam Removal: Evolving Federal Policy Opens a New
Avenue of Fisheries and Ecosystem Management, 5 OCEAN & COASTAL L.J. 309 (2000).
13
Motion of Lower Elwha Indian Tribe for intervention, consolidation etc. re Crown
Zellerbach Corp., F.E.R.C. Docket No. P-2683, P-588 (Federal Energy Regulatory
Commission, Jan. 27, 1986), available at http://elibrary.ferc.gov/idmws/doc_info.asp (last
14
See Ted Warren, Ceremony Marks the Start of Elwha Dam Removal, ASSOCIATED
PRESS (Sept. 17, 2011).
118
from the Elwha Snowfinger, a perennial snowfield in
Washington’s Olympic National Park, and flows 45 miles
northward through basalt canyons and old-growth forest
before spilling into the Strait of Juan de Fuca. The river
traverses the reservation of the Lower Elwha Klallam Tribe,
a people who have relied on the river’s salmon for physical,
spiritual, and cultural sustenance for millennia.15
A large flat rock pocketed with two hollows stood beside the Elwha
River before it was inundated by the Glines Canyon and Elwha Dams. 16
Lower Elwha Klallam ancestors explain that this was the place where the
creator scooped dirt from the earth to form the people, and then bathed
and blessed them in the river.17 The earliest archeological evidence of
human activity on the Peninsula, dating to 12,000 years ago, was
discovered near Sequim, Washington in 1977. 18 In August of 2003, the (at
least) 2,700-year-old Klallam village of Tse-whit-zen was unearthed by a
construction project adjacent to Port Angeles Harbor. 19
The Klallam, whose name means “strong people,”20 historically
lived along much of the northern Olympic Peninsula’s coast. 21 The Klallam
people, like many tribes in the Pacific Northwest, historically relied heavily
15
Wendee Nicole, Lessons of the Elwha River: Managing Health Hazards During Dam
Removal, ENVIRONMENTAL HEALTH PERSPECTIVES (2012), http://ehp.niehs.nih.gov/120a430/ (last visited on Nov. 24, 2013).
16
Jamie Valadez, Elwha Klallam, in NATIVE PEOPLES OF THE OLYMPIC PENINSULA: W HO W E
ARE 21 (2002).
17
Id.
18
NATIVE PEOPLES OF THE OLYMPIC PENINSULA: W HO W E ARE 7 (2002) [hereinafter W HO
W E ARE].
19
The dating of this site is based on the oldest of a random sampling of artifacts
uncovered at the site. Jamie Valadez & Carmen Watson-Charles,
ən, LOWER
ELWHA KLALLAM TRIBE, http://elwha.org/tsewhitzen.html (last visited Nov. 24, 2013);
Russell W. Busch, Tr bal Advo a y for Elwha R ver Dams Removal on Wash ngton’s
Olympic Peninsula, 2 GOLDEN GATE UNIV. ENVTL. L.J. 5, 6 (2008).
20
ROBERT H. RUBY, JOHN A. BROWN. & CARY C. COLLINS, A GUIDE TO THE INDIAN TRIBES OF
THE PACIFIC NORTHWEST 35 (1986).
21
The S’Klallam: Elwha, Jamestown and Port Gamble, in NATIVE PEOPLES OF THE
OLYMPIC PENINSULA: W HO W E ARE 18 (2002); Villages and Government, LOWER ELWHA
KLALLAM TRIBE, http://elwha.org/cultureandhistory/villagesandgovernment.html (last
visited Nov. 24, 2013); RUBY, ET AL., supra note 20, at 35-36.
119
on salmon fisheries, 22 as well as hunting and gathering for their
subsistence, developing an extensive trade network.23 All five species of
pacific salmon found in the Northwest were caught by the Klallam in the
Elwha River: chinook, coho, pink, chum, and sockeye salmon. 24 Especially
prized were the tyee, or the chinook salmon, which could reach 100
pounds each.25 “Because of salmon, the Pacific Northwest Indians
developed one of the few hunter/gatherer societies in the world that
consistently produced more food and material wealth than it needed for
subsistence.”26
European exploration of the Pacific Northwest Coast began in the
late 1500s,27 but the first recorded contact between Klallam peoples and
Europeans occurred on July 21, 1790, when Spanish explorer Manuel
Quimper anchored near the mouth of the Elwha River. 28 With the
Europeans, came disease against which the Klallams and other American
22
The right to resort to the fishing places in controversy was a part of larger rights
possessed by the Indians, upon the exercise of which there was not a shadow of
impediment, and which were not much less necessary to the existence of the Indians
than the atmosphere they breathed.
United States v. Winans, 198 U.S. 371, 381 (1905).
23
In pre-treaty times Indian settlements were widely dispersed throughout Western
Washington. There was considerable local diversity in the availability and importance of
specific animal, plant and mineral resources used for food and artifacts. (FPTO § 3-32)
But one common cultural characteristic among all of these Indians was the almost
universal and generally paramount dependence upon the products of an aquatic
economy, especially anadromous fish, to sustain the Indian way of life. (Ex. G-17o, pp.
286-287; Exs. USA-20 to 30 and 53; Exs.G-21 to 26). These fish were vital to the Indian
diet, played an important role in their religious life, and constituted a major element of
their trade and economy.
United States v. State of Washington, 384 F. Supp. 312, 350 (W.D. Wash. 1974) aff'd
and remanded, 520 F.2d 676 (9th Cir. 1975).
24
GRACE, supra note 4, at 155; Historic Anadromous Fish Runs in the Elwha, NAT’L PARK
SERV., http://www.nps.gov/olym/naturescience/historic-anadromous-fish-runs-in-theelwha.htm (last visited Nov. 24, 2013).
25
Phillip M. Bender, Restoring the Elwha, White Salmon, and Rogue Rivers: A
Comparison of Dam Removal Proposals in the Pacific Northwest, 17 J. LAND RESOURCES
& ENVTL. L. 219 (1997).
26
O. Yale Lewis III, Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights
Implied By the Fishing Clause of the Stevens Treaties, 27 AM. INDIAN L. REV. 281, 286
(2002-03) (citing AM. FRIENDS SERV. COMM., UNCOMMON CONTROVERSY: FISHING RIGHTS
OF THE MUCKLESHOOT, PUYALLUP, AND NISQUALLY INDIANS 3 (1970)).
27
W HO W E ARE, supra note 18, at 11.
28
The S’Klallam, supra note 21, at 18.
120
Indian populations had no immunity, 29 and the Native population of the
Northwest declined approximately 80 percent from an estimated 180,000
pre-European contact to between 35,000 and 40,000 by the late 1800s. 30
This decline in population had a devastating effect on the peoples and
cultures of the Olympic Peninsula.31 In 1855, the Klallam, Chemakum, and
Skokomish signed the Treaty of Point No Point with the United States
government,32 which importantly guaranteed the tribes “[t]he right of taking
fish at usual and accustomed grounds and stations . . . in common with all
citizens of the United States.”33 The Klallam “understood that a reservation
was to be established for them between Sequim and Dungeness Bay,” but
instead were ordered to remove to the Skokomish Reservation on Hood
Canal.34 Most refused and remained in their traditional territory, some
acquiring land by purchase or homesteading, 35 but many lived as
squatters or exiles in their own homeland. As settlers encroached on their
traditional territory, some Klallam villages were consistently and forcibly
relocated.36 In the 1930s, the United States Secretary of Interior began
taking land into trust for certain groups of Klallam peoples under the
authority of the newly enacted Indian Reorganization Act of 1934. 37 During
this period, Klallam Indians from the various aboriginal villages eventually
became three separate federally recognized Klallam Tribes: the Lower
Elwha Klallam, the Jamestown S’Klallam, and the Port Gamble
S’Klallam.38 A little over 300 acres of land were taken in trust for the Lower
Elwha Klallam in1936-37, which was later formally proclaimed as the
Lower Elwha Klallam Reservation in 1968. 39 Together, with a few hundred
29
ROBERT BOYD, THE COMING OF THE SPIRIT OF PESTILENCE 4 (1999).
Id. at 3.
31
CRANE, supra note 1, at 34-35.
32
The S’Klallam, supra note 21, at 19; see also BRUCE BROWN, MOUNTAIN IN THE CLOUDS:
A SEARCH FOR THE W ILD SALMON 81-82 (1982).
33
Treaty of Point No Point, U.S.- S'Klallams Indians, art 4, Jan. 26, 1855, 12 Stat. 933
available at http://digital.library.okstate.edu/kappler/vol2/treaties/skl0674.htm (last visited
Nov. 24, 2013).
34
The S’Klallam, supra note 21, at 19; RUBY, ET AL., supra note 20, at 36-37.
35
Id.
36
LOWER ELWHA KLALLAM TRIBE, supra note 16, at Villages and Government; Busch,
supra note 19 at 7-8.
37
25 U.S.C. § 461 (2006); RUBY, ET AL., supra note 20, at 37.
38
The S’Klallam, supra note 21, at 18.
39
Valadez, supra note 16, at 26; Villages and Government, supra note 21.
30
121
additional contiguous acres of tribal trust land, this small reservation sits at
the mouth of the Elwha River.40
Map of Wash ngton’s Tr bes, W ASHINGTON TRIBES,
http://www.washingtontribes.org/default.aspx?ID=48 (last visited Nov. 24,
2013).
As with their reservation, the Lower Elwha Klallam waited more
than a century to see the federal government take action to protect the
Tribe’s treaty right to continue to take fish in their traditional territory. In
1974, Federal District Court Judge George Boldt “issued one of the most
sweeping and significant judicial rulings in the history of the Pacific
Northwest,”41 affirming the Tribes’ rights to take fish under the treaties and
guaranteeing them 50 percent of the harvestable fish available in
traditional tribal fishing grounds.42 The Supreme Court affirmed Judge
40
Culture and History, LOWER ELWHA KLALLAM TRIBE,
http://www.elwha.org/cultureandhistory.html (last visited Nov. 24, 2013).
41
CHARLES W ILKINSON, MESSAGES FROM FRANK’S LANDING: A STORY OF SALMON, TREATIES,
AND THE INDIAN W AY 55-56 (2000).
42
See United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).
122
Boldt’s decision in a related case in 1979, 43 but that did nothing to redress
the continued denial of the Lower Elwha Klallam Tribe’s treaty fishing
rights by the destructive force of the Elwha and Glines Canyon Dams on
the Elwha River.44 Reservation life and the loss of the salmon completely
disrupted the Klallam people’s thriving culture. Adeline Smith, a tribal
elder, recalled life before the dams:
The Klallams were a huge tribe. This stamp-sized place [now
occupied by a few tribal members near Port Angeles] was
not the tribe. There was a big village at the Hoko, a great big
village at Psyht, at Clallam Bay, at Deep Creek. Everyone
had a village and they were all Klallams. People who lived
up the river hunted, then came down the river and
exchanged. That way everybody tasted everything. 45
II. BUILDING THE ELWHA DAMS
In 1862, eight years after the Lower Elwha Klallam signed the
Treaty of Point No Point, President Lincoln established Port Angeles as a
townsite, though most of the land was officially held as a military reserve
until 1894.46 Thomas Aldwell, who moved to Port Angeles in 1890, began
to plan for a hydropower dam on the Elwha River to serve the growing city
43
Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443
U.S. 658 (1979).
44
The “Boldt decision” has had a tremendous impact on the lives and livelihood of
Washington State tribes, but the right to environmental protection of fish habitat for the
preservation of the species has not been guaranteed as part of a tribe’s right to harvest.
See Lewis, supra note 26, at 281-82 (“The fishing rights guaranteed by the fishing clause
of the Stevens Treaties between the United States and the Indians of Western
Washington should be considered a trinity of rights: a right of access, a right of equitable
apportionment, and a habitat right . . . Without judicial recognition of a habitat right,
anadromous fish populations will continue to perish and the treaty fishing right will
become even emptier than it already is.”). Western Washington Treaty Tribes and the
State of Washington are currently in the Ninth Circuit litigating aspects of the habitat right
in the “culverts” subproceeding of United States v. Washington, Ninth Circuit Nos. 1335474 and 13-35519, a topic beyond the scope of this article.
45
Charles Wilkinson, The Olymp Pen nsula’s Elwha R ver: Pr soner of H story,
Harbinger of Hope, in AWAY OUT OVER EVERYTHING: THE OLYMPIC PENINSULA AND THE
ELWHA RIVER 71 (2004).
46
PORT ANGELES: THE AUTHENTIC NORTHWEST, PORT ANGELES REGIONAL CHAMBER OF
COMMERCE 17 (2013), available at http://www.portangeles.org/files/821.pdf. (last visited
Nov. 24, 2013).
123
in the early 1900s.47 In 1908, Aldwell formed the Olympic Power and
Development Company to assemble the land and funding necessary to
build the Elwha Dam.48 Olympic Power began construction on the dam at
a site 4.9 miles above the mouth of the 45-mile-long river in 1910, hoping
to attract pulp mills to Port Angeles. 49
A Washington state law was in place in 1910 requiring fish passage
facilities in all new dams, but when construction was completed in 1912
the one hundred and five-foot Elwha Dam had none. 50 Game warden
James Pike wrote to Fisheries Commissioner Riseland with despair in the
fall of 1911:
I have personally searched the Elwha River & Tributaries
above the Dam, and have been unable to find a single
Salmon. . . . I have visited the Dam several times lately . . .
and there appear to be [t]housands of [s]almon at the foot of
the Dam, where they are continually trying to get up the
flume. I have watched them very close, and I am satisfied
now that they cannot get above the Dam. 51
A tribal member, Mel Elofson, recalled a similar scene recounted by his
grandmother:
When the lower dam first went in, our homestead site was
only about half a mile away from it, so she was able to walk
down there. When the salmon returned in the summer and
47
Biographical Note, Guide to Thomas T. Aldwell Papers, 1980-1951, UNIVERSITY
LIBRARIES,
http://digital.lib.washington.edu/findingaids/view?docId=AldwellThomasT4082.xml (last
48
Id.
49
Tearing Down The Elwha River Dam, POPULAR MECHANICS (Feb. 10, 2006),
http://www.popularmechanics.com/science/environment/water/2294301 (last visited Nov.
24, 2013).
50
Bender, supra note 25, at 220.
51
BROWN, supra note 32, at 65. In a 2006 interview for Popular Mechanics, Brian Winter,
fisheries biologist and project manager for the National Park Service, made an eerily
similar observation: “When the light is right . . . you can see them down there - adult
salmon, waiting to swim upriver, waiting for the dam to be gone.” See also Tearing Down
The Elwha River Dam, supra note 49.
124
the fall they came back in huge hoards, and they were
jumping, jumping, jumping, trying to get past this structure. A
lot of them died and didn’t even spawn. Thousands and
thousands of fish died that first year because they had no
passage.52
As Bruce Brown asserts, in Mountain in the Clouds: A Search for
the Wild Salmon, there is little mystery about why Fisheries Commissioner
Riseland took no action against Olympic Power given the economic
interests at play in the Pacific Northwest at the turn of the 20th century.53
The financial interests of the mineral, timber, water, and fishing industries
held heavy sway in Washington state politics, so it is perhaps unsurprising
that Washington’s fish passage laws were not enforced during the
construction of the Elwha Dam.54
From the beginning, members of the Lower Elwha Klallam Tribe
were opposed to the Elwha Dam, which inundated a traditional village site
and the Tribe’s Creation Site. 55 Feelings of resentment were heightened
amongst tribal members when in 1912 the base of the dam, which was
built on a gravel deposit and had not been tied into bedrock, blew out. 56
“The only warning the Klallam families who were sitting down to dinner
had was the barking of their dogs at the roar of water and breaking tree
trunks.”57 This event is remembered as “the time when there were salmon
in the trees.”58 There were no deaths or injuries, but the Tribe was left with
extensive property damage and a lasting fear of the dam, which never was
52
Wilkinson, supra note 45, at 70.
BROWN, supra note 32, at 66.
54
Id.
55
See LOWER ELWHA KLALLAM TRIBE, supra, note 16 at Dam Timeline, Effect on the
People.
56
See Roger Oaks, American Field Guide: Historical Background on the Elwha River
Dams, PBS, available at
http://www.pbs.org/americanfieldguide/teachers/salmon/history.pdf (last visited Nov. 24,
2013).
57
Valadez, supra note 16, at 28.
58
BROWN, supra note 32, at 108.
53
125
tied to bedrock, even after being rebuilt. 59 As former Tribal Chairperson
Frank Bennett said, “I guess they don’t care if a few Indians drown.” 60
In 1912, as Olympic Power began to reconstruct the Elwha Dam,
the newly elected governor appointed Leslie Darwin to replace Riseland
as Fisheries Commissioner. 61 Unlike his predecessor, Darwin began to
enforce fisheries laws, cracking down on widespread tax fraud and
wasteful cannery processes.62 However, Darwin was still not prepared to
fully enforce the laws against Olympic Power, and proposed that the
company build a hatchery in lieu of fish passage facilities.63 The law
provided for no such work-around, but Darwin’s solution soon became the
norm in Washington State. 64 The hatchery on the Elwha River was shortlived, closing in 1922,65 while salmon runs on the river continued to
decline.66 In 1925, construction began on the Glines Canyon Dam at river
mile 13.6, which was completed without fish passage facilities under a
Federal Power Commission license in 1927. 67 Before removal began in
September, 2011, the Elwha and Glines Canyon Dams collectively
prevented salmon runs from reaching seventy miles of spawning habitat. 68
III. THE DECISION TO REMOVE THE ELWHA DAMS
We cherished it, and we respected it. . . We didn't waste it,
we used every bit of it. . . I may not see the abundance of
fish come back in my lifetime, but I would like to see it come
back for my grandchildren, my great grandchildren, and the
CRANE, supra note 1, at 62.
Brian D. Winter & Patrick Crain, Making the Case for Ecosystem Restoration by Dam
Removal in the Elwha River, Washington, 82 NORTHWEST SCIENCE 13 (2008), available at
http://www.bioone.org/doi/pdf/10.3955/0029-344X-82.S.I.13 (last visited Nov. 24, 2013)
[hereinafter Winter, Ecosystem Restoration].
61
BROWN, supra note 32, at 66-69.
62
CRANE, supra note 1, at 70-71.
63
Bender, supra note 25, at 221-22.
64
Bender, supra note 25, at 221-22.
65
Quotes from Tribal Members regarding Dam Removal, LOWER ELWHA KLALLAM TRIBE,
http://www.elwha.org/effectsontheelwhaklallampeople.html (last visited Nov. 24, 2013).
66
67
See LOWER ELWHA KLALLAM TRIBE, supra note 16, at Dam Timeline, supra note 55;
Bender, supra note 25, at 219-20, 228.
68
Carney, supra note 12, at 322.
59
60
126
rest of my people, the following generations to come. It was
a gift from our Creator; it was our culture and heritage.69
Our elders – nobody would listen to them, their voices
weren’t heard – until the late 1960s or 70s and there was a
lot of opposition immediately. It was unheard of to remove
the dams. It took a lot of educating. . . . We are protectors of
the salmon. Salmon and us are like family to each other. We
need each other. A lot of the people who opposed are now in
agreement that they need to come out. That is how we won
the battle, just by educating. 70
The Lower Elwha Klallam Tribe has been advocating for the
removal of the Elwha and Glines Canyon dams since the dams’
construction in the early 20th century.71 The Federal Energy Regulatory
Commission (FERC) process by which private hydropower dams are
licensed provided the Tribe with an opportunity to intervene in an effort to
restore the river and its salmon fisheries.72 This occurred in 1986 when the
tribe filed a motion to intervene. 73 This intervention soon gained the
support of several environmental groups. 74 In 1992, after a protracted
administrative process, Congress passed the Elwha River Ecosystems
and Fisheries Restoration Act, which directed the United States
Department of the Interior to study the feasibility of the river and fisheries
restoration.75 In the 1995 “Elwha Report,” the Secretary of Interior
recommended removal of both dams, 76 and in 2000, the federal
69
Quotes from Tribal Members regarding Dam Removal, supra note 65 (quote from
Tribal elder Beatrice Charles).
70
Wilkinson, supra note 45, at 76 (quote from former Lower Elwha Klallam Tribal
Chairperson Dennis Sullivan).
71
72
See generally 18 C.F.R. §§ 5.1-5.31 (2013).
73 See supra note 13.
74
Adam Burke, River of Dreams, HIGH COUNTRY NEWS, Sept. 24, 2001.
75
Elwha River Ecosystem and Fisheries Restoration Act Pub. L. No. 102-495, 106 Stat.
3173 (1992).
76
PHILLIP A. MEYER & RICHARD LICHTKOPPLER, U.S. BUREAU OF RECLAMATION, NATIONAL
PARK SERVICE, AND LOWER ELWHA KLALLAM TRIBE, ELWHA RIVER RESTORATION PROJECT:
ECONOMIC ANALYSIS F INAL TECHNICAL REPORT, at iii (1995) [hereinafter PHILLIP A.
MEYER,ET AL., ELWHA REPORT].
127
government purchased both dams from then-owner Daishowa America
Co., Ltd.77 The primary source of funding for the Elwha River Restoration
Act came from the National Park Service Construction Budget. In 2009,
the American Recovery and Reinvestment Act 78 provided the remaining
funding necessary to accomplish removal of both dams, which began in
September of 2011. 79
A.
The Federal Energy Regulatory Commission Process for
Dam Removal
Under the Federal Power Act (FPA), most privately owned
hydropower projects must be licensed by FERC. 80 When the Elwha Dam
was completed in 1913, the FPA was not yet in existence and the dam
was not initially licensed.81 The Glines Canyon Dam, however, was
granted a 50-year operating license during its construction in 1926 by
FERC’s predecessor the Federal Power Commission.82 Crown Zellerbach
Corporation, which purchased the Elwha Dam from Olympic Power in
1919 and subsequently constructed the Glines Canyon Dam, 83 filed a
license application for the Elwha Dam in 1968, and an application to
relicense Glines Canyon Dam in 1973. 84 FERC consolidated the
applications into a single process in 1979. 85
77
Adam Burke, River of dreams, HIGH COUNTRY NEWS, Sept. 24, 2001,
http://www.hcn.org/issues/211/10739/ (last visited Nov. 24, 2013).
78
American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 115, 516
(2009).
79
Olympic National Park, Washington: Elwha Frequently Asked Questions, NAT’L PARK
SERV.,http://www.nps.gov/olym/naturescience/elwha-faq.htm (last visited Nov. 24, 2013).
80
See generally 16 U.S.C. § 791-828(c) (2006) as amended; 18 C.F.R. §§ 5.1-5.31
(2013). See also FEDERAL ENERGY REGULATORY COMMISSION, DIVISION OF HYDROPOWER
ADMINISTRATION AND COMPLIANCE: COMPLIANCE HANDBOOK (2004).
81
S. 2527, Elwha River Ecosystem and Fisheries Restoration Act, 102nd Congress S.
Rep.102-447 (1992) (Report by Mr. Johnston, from the Committee on Energy and Natural
Resources).
82
Id.
83
84
Winter, Ecosystem Restoration, supra note 60, at 14.
85
Id. (FERC concluded that “the two hydroelectric projects were hydraulically, electrically,
and operationally interconnected” and the two proceedings should be considered
together so that “the combined impacts could be assessed.” This is not the only instance
in which FERC has consolidated a licensing process, but the practice is not discussed in
FERC’s relicensing regulations).
128
When issuing a license under the FPA, FERC is required by both
the FPA and the Electric Consumers Protection Act (ECPA)86 to consider
impacts to fish and wildlife. 87 The ECPA further requires FERC to include
recommendations by “National Marine Fisheries Service, the United
States Fish and Wildlife Service, and State fish and wildlife agencies” 88 in
licensing decisions. FERC must also consider the recommendations of
“Federal and State agencies exercising administration over flood control,
navigation, irrigation, recreation, cultural and other relevant resources of
the State in which the project is located, and the recommendations
(including fish and wildlife recommendations) of Indian tribes affected by
the project.”89 Although FERC was slow to take up its responsibility to
prioritize ecosystem preservation, the agency has begun to respond to the
policy shift that has made environmental preservation a national priority. 90
The Elwha River “battle,” as one of the seminal cases of federally ordered
86
Electric Consumers Protection Act of 1986 16 U.S.C. § 791a (2006).
See generally 16 U.S.C. § 797(e)(2006); 16 U.S.C. § 803(a)(2006). These provisions
have had profound effects on hydropower development and relicensing nationwide.
Federal agencies now often require hydropower facilities to install ‘fish ladders’ or other
fish passage devices to enable fish migration to preserve these species. These
requirements, however, are extremely controversial, both because environmental
advocates argue they are often ineffective, and hydropower developers and operators
argue they are unnecessarily costly. Recently, hydropower operations have challenged
the fish passage requirements as constituting a taking of private property without just
compensation under the Fifth Amendment because of the financial impact on the facility,
thus putting additional pressures on federal and state efforts to protect wildlife from
hydropower impacts. Moreover, the Energy Policy Act of 2005 reduced leverage for
environmental interests in the FERC licensing process by allowing project owners a trialtype procedure to challenge licensing conditions and authorizing FERC to select
alternative licensing conditions to those conditions proposed by resource agencies, if the
alternatives are ‘adequate’ but less costly. There has been significant litigation, in some
cases spanning decades, regarding the conflict between hydropower development and
aquatic species.
Alexandra B. Klass, Energy and Animals: A History of Conflict, 3 SAN DIEGO J. CLIMATE &
ENERGY L. 159, 177 (2012) (citations omitted).
88
16 U.S.C. § 803(j)(1)(2006).
89
16 U.S.C. § 803(a)(2)(B)(2006).
90
Once responsible for promoting the increased utilization of hydropower for an
industrializing nation, the Federal Energy Regulatory Commission now finds itself in the
position of protectorate of the environment. This policy shift is making it possible for
governmental agencies to consider dam removal as a viable alternative to long-standing
practices of automatically issuing new permits when existing projects come up for
relicensing.
Carney, supra note 12, at 310.
87
129
dam removal labeled it, was likely a driving force in this policy shift by
FERC.91 The Lower Elwha Klallam Tribe played a vital role in challenging
Crown Zellerbach Corporation’s license applications by intervening in the
FERC process when Crown Zellerbach first applied in 1986. 92
When the Lower Elwha Klallam intervened in the FERC relicensing
process on the Elwha River, the ECPA had not yet been passed, and
FERC was not yet required to give special consideration to the Tribe’s
position. Furthermore, FERC did not believe that it had the power to order
dam removal under the FPA.93 When the dams initially came up for
relicensing, the Fish and Wildlife Service, the National Marine Fisheries
Service, the National Park Service (NPS), and the Washington State
Department of Natural Resources also approached the habitat
management aspect of relicensing by proposing mitigation alternatives,
without considering removal as an option.94 When the ECPA was passed
in 1986, however, FERC solicited comments to consider its options if a
project did not meet the ECPA’s new, more stringent environmental
standards, and in 1994 FERC declared that it had the authority to order
removal at a dam owner’s expense. 95
The Lower Elwha Klallam Tribe was the first intervener in the FERC
licensing process to officially call for dam removal on the Elwha River in
January, 1986, followed by a coalition of environmental groups made up of
91
[In the 1980s], the idea of removing an operating hydroelectric dam for the purpose of
ecosystem restoration (rather than for safety reasons) was considered a heretical idea by
FERC, Congress, federal resource agencies, and most main-stream environmental
groups. In a few short years, a precedent setting battle formed over dam removal for
ecosystem restoration. Today, dam removal is a high profile, main-stream environmental
issue . . . The Elwha case also foreshadowed many new pressures to reform the hydro
relicensing process in the US.
Charles Gowan, Kurt Stephenson, & Leonard Shabman, The Role of Ecosystem
Valuation in Environmental Decision Making: Hydropower relicensing and Dam Removal
on the Elwha River, 56 ECOLOGICAL ECONOMICS 508, 512 (2006).
92
Id.; See generally 18 C.F.R. § 385.214 (2006).
93
Gowan et al., supra note 91, at 512.
94
Elwha River Ecosystem and Fisheries Restoration Act, Pub. L. No. 102-495, 106 Stat.
3173 (1992) (Statement of Nicholas Ladanza, Chief, Habitat Conservation Branch,
Northwest Region, National Marine Fisheries Serv., National Oceanic and Atmospheric
Administration, Dept. of Commerce).
95
Project Decommissioning at Relicensing; Policy Statement, 60 Fed. Reg. 339-01 (Jan.
4, 1994).
130
the Seattle Audubon Society, Friends of the Earth, Olympic Park
Associates, and the Sierra Club. 96 That same year, the Tribe received
water resource funds through the Bureau of Indian affairs, with which it
was able to fund studies of the Elwha River and its fisheries. 97 Those
studies clearly demonstrated that dam removal was not only a viable
option, but was in fact more economically feasible than adding fish
passage facilities to the dams.98 During the 1980s, the Tribe worked to
bring together a diverse coalition of stakeholders in the region around dam
removal, which resulted in a settlement agreement. 99 In 1991, FERC
distributed its Draft Environmental Impact Statement (EIS) regarding the
relicensing of the Glines Canyon and Elwha Dams for public comment. 100
However, in 1992, before FERC’s EIS could be finalized, Congress stayed
the FERC process by adopting the stakeholders’ settlement agreement in
the form of the Elwha River Ecosystem and Fisheries Restoration Act
96
Motion of Lower Elwha Indian Tribe for intervention, consolidation etc re Crown
Zellerbach Corp., F.E.R.C. Docket No. P-2683, P-588 (Federal Energy Regulatory
Commission, Jan. 20, 1986), available at http://elibrary.ferc.gov/idmws/doc_info.asp (last
visited Nov. 24, 2013); Elwha River Ecosystem and Fisheries Restoration Joint Hearing
Before the Subcommittee on Energy and Power of the Committee on Energy and
Commerce and the Subcommittee on Fisheries and Wildlife Conservation and the
Environment of the Committee on Merchant Marine and Fisheries and the Subcommittee
on Interior and Insular Affairs on H.R. 2527, S. Hrg. 102-739 at 150 (1992). (Testimony of
Shawn Cantrell, Assistant Northwest Representative, Friends of the Earth).
97
Telephone interview with Robert Elofson, Lower Elwha Klallam Tribal Fisheries
Manager 1976-78, and Elwha River Restoration Director 1991-93, and 2001-present,
(Sept. 17, 2013) [hereinafter, Elofson, Interview].
98
Id.
99
After years of negotiation, a unanimous agreement was reached regarding a process
to restore Elwha River fisheries and to make the ultimate decision regarding whether
removal of the dams would be necessary to achieve restoration. The parties to this
settlement, which became the Elwha Act, included numerous Federal Departments and
Agencies (including FERC, the National Park Service, the United States Fish and Wildlife
Service, the Bureau of Indian Affairs, and NOAA); the Tribe; the State, Clallam County,
and the City of Port Angeles; private hydropower, industrial, and economic development
interests; commercial and sport fishermen; and the environmental community.
Lower Elwha Tribal Defendants’ Motion to Dismiss, or, in the Alternative, Motion for a
More Definite Statement at 6, Wild Fish Conservancy v. Nat’l Park Serv., No. 3:12-CV05109-BHS (W.D. Wash. 2012) (Doc. 26).
100
See Final Environmental Impact Statement on Elwha River Ecosystem Restoration,
NAT’L PARK SERV. (June 1995),
http://www.nps.gov/olym/naturescience/loader.cfm?csModule=security/getfile&PageID=1
36255 (last visited Nov. 24, 2013) [hereinafter 1995 EIS].
131
(Elwha Act).101 The Elwha Act required the Secretary of Interior to perform
a study of the Elwha River and to release a report to identify the actions
that would be necessary to achieve “full restoration” of the river’s
ecosystem and anadromous fish population. 102
B.
Environmental Impact Statements
The final Elwha Report, prepared by the Secretary of Interior with
collaboration from the Department of Commerce and the Lower Elwha
Klallam Tribe, was submitted to Congress in 1994. 103 The Elwha Act
removed FERC’s authority to issue a final licensing decision, but FERC
nonetheless released its Final EIS to the public in 1995. 104 Both
documents recommended removal as the preferred alternative.
Although the Elwha Report made extensive use of FERC’s
analyses, the distinct power granted to the Secretary of Interior by the
Elwha Act to accomplish “full restoration of the Elwha River ecosystem
and the native anadromous fisheries,” required a new set of technical
reports, and three new EISs. 105 These would consist of: (1) a
Programmatic EIS to recommend the best action for full restoration of the
ecosystem; (2) an Implementation EIS to recommend the best means to
achieve the action recommended in the Programmatic EIS; and (3) an
optional third supplemental EIS in the case of “significant new
circumstances or information relevant to environmental concerns and
bearing on the selected action or its impacts.”106
When the Final Programmatic EIS was released in 1995, the
preferred alternative was the removal of both the Glines Canyon and
Elwha dams.107 Although a Final Implementation EIS was released in
101
Elwha River Ecosystem and Fisheries Restoration Act Pub. L. No. 102-495, §5(a),
106 Stat. 3173 (1992).
102
Id. at § 3.
103
PHILLIP, A. MEYER ET AL., ELWHA REPORT, supra note 76.
104
Elwha River Ecosystem and Fisheries Restoration Act Pub. L. No. 102-495, §5, 106
Stat. 3173 (1992); See 1995 EIS, supra note 99.
105
Id. at §3.
106
Elwha River Ecosystem Restoration Implementation, Final Supplement to the Final
Environmental Impact Statement, NAT’L PARK SERV. (July 2005) (hereafter 2005 EIS).
107
1995 EIS, supra note 99.
132
1996,108 a Final Supplemental EIS was released by the NPS in 2005 in
order to address “changes to water supply, water quality, and flood control
mitigation.”109 All three EISs center around the return of the salmon and
the resulting benefits to the river and the surrounding ecosystem as the
justification for dam removal. 110
C.
Funding the Removal
Although the proposal to remove the dams gained widespread
support by the early 1990s, United States Senator for Washington State
Slade Gorton consistently remained one of the few vocal opponents of
removal.111 Senator Gorton feared that removal of the dams would be “an
unmitigated disaster and an economic nightmare.” 112 Although he was
originally a co-sponsor of the Elwha Act, Senator Gorton withdrew his
support when it became clear that dam removal was the preferred
alternative.113 It appears that Senator Gorton’s opposition was based in
large part on his concern that removal of the Elwha dams would become
precedent for breaching the Snake River dams as well. 114 Throughout the
administrative process, the Tribe also found allies in Senator Bill
Bradley,115 Representative Norm Dicks,116 and others in Congress. 117
108
Final Environmental Impact Statement on Elwha River Ecosystem Restoration, NAT’L
PARK SERV. (Nov. 1996),
http://www.nps.gov/olym/naturescience/loader.cfm?csModule=security/getfile&PageID=1
36253 (last visited Nov. 24, 2013).
109
2005 EIS, supra note 106, at iv.
110
Carney, supra note 12, at 330-31.
111
112
Klein, supra note 3, at 708 (quoting Sam A. Verhovek, Returning River to Salmon,
and Man to the Drawing Board, N.Y. TIMES (Sep. 26, 1999)).
113
114
W ILLIAM R. LOWRY, DAM POLITICS: RESTORING AMERICA’S RIVERS 146-47 (2003).
115
Senator Bradley was involved in the dam removal process on the Elwha River
beginning when he served as Chair of the Water and Power Subcommittee of the Senate
Committee on Energy and Natural Resources, which had jurisdiction over the Elwha Act.
He continued to be an advocate for the Elwha River dam removal project even after
leaving office in 1997. See Sen. Bill Bradley, Keynote Address, Dinner hosted by the
Lower Elwha Klallam Tribe, Port Angeles, WA (Sept. 16, 2011) available at
http://turtletalk.files.wordpress.com/2011/09/sen-bradley-elwha-remarks.pdf (last visited
Jan. 8, 2014).
116
Long-time supporter of the dam removal effort and co-sponsor of the Elwha Act. See
Sen. Bradley, supra note 114 (“Norm Dicks is the Elwha settlement’s hero. He made the
133
Finally, the Elwha and Glines Canyon Dams were purchased by the
federal government in 2000 for $29.5 million, as authorized by the Elwha
Act,118 and Senator Gorton lost reelection the same year. 119
Despite purchase of the dams, funding for removal and ecosystem
recovery of the dams continued to stall, even after Senator Gorton left
office in 2001. Deconstruction was originally scheduled for 2009, but rising
costs delayed the project’s start date to 2012.120 The final $54 million
needed was provided by the American Recovery and Reinvestment Act of
2009, commonly referred to as the “Stimulus,” which allowed
deconstruction to begin a year ahead of schedule. 121 Steve Suagee,
General Counsel to the Tribe, recalls the collaborative effort of the Tribe,
environmental groups, and their allies in Washington to secure the final
funding needed for dam removal—an “example of the Tribe’s ability to call
on relationships that had been in development for 20 years or more.” 122
law work. I know it is a small thing, and it is far less than he deserves, but please, God,
please grant Norm Dicks the first 100 pound salmon caught on the Elwha”).
117
Elofson, Interview, supra note 97; Telephone interview with Steve Suagee, Lower
Elwha Klallam Tribal Counsel, phone interview (Sept. 20, 2013) [hereinafter Suagee,
Interview]; See also Sen. Bradley, supra note 115.
118
PHILLIP, ELWHA REPORT, supra note 76.
119
See GORTON, THOMAS SLADE, BIOGRAPHICAL DIRECTORY OF THE UNITED STATES
CONGRESS, available at
http://bioguide.congress.gov/scripts/biodisplay.pl?index=G000333 (last visited Nov. 24,
2013).
120
Warren Cornwall, Stimulus Money Will Speed Elwha Dam Removal, SEATTLE TIMES,
(April 22, 2009),
http://seattletimes.nwsource.com/html/localnews/2009105595_webelwah22m.html (last
121
See generally American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat.
115, 516 (2009).
We just didn't have the money before,’ said [U.S. Representative Norm] Dicks, whose 6th
Congressional District includes Clallam and Jefferson counties, Wednesday morning.
‘We've been doing $20 million a year, and now we'll have the money to go forward. This
is a big deal because we are able to accelerate the project,’ he said.
Paul Gottlieb, Federal Stimulus Funds Jumps Elwha Dams Removal Date Ahead a Year,
PENINSULA DAILY NEWS (April 22. 2009),
http://www.peninsuladailynews.com/article/20090423/news/304239995 (last visited Nov.
24, 2013).
122
Suagee, Interview, supra note 117.
134
IV.
THE ART OF DAM REMOVAL
The Elwha’s beauty could serve as a model, an icon, of
Pacific Northwest Rivers. The deep green pools; the wide
gravel beds with rich, aerated riffles; the variety of cobble
and larger rocks in the riverbed—all suggest a perfect Pacific
Northwest River, one that should roil with bright red and
green-hued spawning salmon. 123
As detailed in the Introduction to this article, America was lured in
the name of “progress” into a frenzy of dam-building that has devastated
ecosystems and indigenous cultures. Nonetheless, it must be
acknowledged that dams have “played a critical role in the settling of the
United States,”124 particularly in the American West, by supporting
agriculture, delivering domestic water supplies, facilitating transportation,
allowing for industrial development, and providing emissions-free
hydropower.125 At times, dams have, in fact, been important means of
providing water for settlement agreements with Indian Tribes. 126 However,
many dams, such as the Elwha and Glines Canyon dams, have outlived
their purpose.127
Once past the half-century mark, dams begin to degenerate:
Concrete walls degrade, earthworks erode and seep,
RIVER ALLIANCE OF W ISCONSIN & TROUT UNLIMITED, DAM REMOVAL: A CITIZEN’S GUIDE TO
RESTORING RIVERS 18 (2000).
125
HEINZ REPORT, supra note 6, at x, 4 (2002); GRACE, supra note 4, at 154.
126
For example, Lake Nighthorse, which was filled in 2011, was an important component
of a water settlement between the Ute Mountain Ute Tribe, the state of Colorado, and the
Federal Government. See, e.g. Bruce Finley, Federal settlements give Colorado tribes a
share of water rights, THE DENVER POST, Nov. 10, 2011.
127
While dams serve a number of human needs, society has developed ways to address
many of these needs without dams. For instance, flood control can often be
accomplished more effectively and for less money by restoring wetlands, maintaining
riparian buffers, or moving people out of the floodplain. Updating antiquated irrigation
systems and replacing inappropriate crops can dramatically reduce the need for dams
and reservoirs in the arid West. Rather than plugging rivers with multiple hydropower
dams, a cheaper and less environmentally harmful solution is to use existing energy
efficiency technologies.
Dam Removal: Frequently Asked Questions, AM. RIVERS,
http://www.americanrivers.org/initiatives/dams/faqs/ (last visited Nov. 24, 2013).
123
124
135
spillway gates rust and lose tensile strength, and sediment
clogs reservoirs, reducing their capacity. In the worst-case
scenario, an aging dam could fail, causing catastrophic
flooding. As maintenance and liability costs rise, economic
returns drop. Many older dams are obsolete. Many others,
including the Elwha and Glines Canyon dams, need
upgrades such as fish passage structures that would cause
the power they produce to soar above market prices. 128
As dams become increasingly inefficient, and ecosystem costs
become a greater part of the economic calculation, dam removal is now
being seen as a reasonable option.129 “The principal removal efforts to
date involve dams that fragment streams and block salmon spawning
runs.”130 A host of state and federal agencies will continue to play a role in
dam removal as a solution to the increasing ecological, safety, and
economic concerns posed by aging American dams.131
128
Tearing Down The Elwha River Dam, supra note 49.
Id.
130
HEINZ REPORT, supra note 6, at 47.
131
Several federal agencies can create or enforce policies to control and remove public
and private dams, including FERC, Interior, the Environmental Protection Agency, the
Army Corps of Engineers, and the Department of Agriculture. Relevant statutes include:
the [Clean Water Act] CWA, [Endangered Species Act] ESA, and National Environmental
Policy Act (NEPA) . . . as well as the Federal Power Act of 1920 (Pub.L.16 USC 791a),
Electric Consumers Protection Act (ECPA) of 1986 (P.L. 99-495), National Historic
Preservation Act (NHPA) of 1966 (P.L. 89-665), western water rights law, Small
Watershed Rehabilitation Amendments of 2000 (Pub .L. 106-472), Indian Dam Safety Act
of 1994 (Pub. L. 103-302), National Dam Safety Program, and FERC Dam Safety
Program.
Id. at 61. State agencies and water law also play a role in the regulation of dam safety.
Dam Removal: Frequently Asked Questions (FAQs), AM. RIVERS,
http://www.americanrivers.org/our-work/restoring-rivers/dams/background/faqs.html (last
129
136
A.
The Mechanics of Removing the Elwha and Glines
Canyon Dams
The art of dam removal is complicated, and is highly dependent on
the river, the dam, and the goals of removal. 132 With “removals like the
Elwha Dam . . . the construction is undertaken in careful steps, almost
surgically, to not only avoid stream damage but also to keep dam removal
contractors, their equipment, and people downstream out of harm’s
way.”133 For both dams, this process began by lowering the reservoirs
behind the dams to the level of the existing spillways. 134 For the Elwha
Dam, engineers then built a temporary spillway and cofferdams designed
to divert the river’s flow into the spillway.135 Once the base of the Elwha
Dam was dry, the dam was removed, and the original channel restored. 136
The Glines Canyon dam, on the other hand, is being disassembled
through a “notching process.” 137 This process involves removing the
concrete of the dam to the level of the water and creating temporary
spillways on alternating sides of the dam. 138 The three major
considerations in removing large dams such as those on the Elwha River
are: (1) recognizing and resolving the equities of current water users (in
the case of the Elwha, this involved the paper mill and other water users);
(2) draining the reservoir; and (3) removing the dam structures. Once
these steps are completed, ecosystem restoration can begin.
132
See How Are Dams Removed?,AM. RIVERS, http://www.americanrivers.org/ourwork/restoring-rivers/dams/background/how-are-dams-removed-show.html (last visited
Nov. 24, 2013).
133
Id.; See also Tearing Down The Elwha River Dam, supra note 49.
134
See Dam Removal - Overview, NAT’L PARK SERVICE,
http://www.nps.gov/olym/naturescience/dam-removal-overview.htm (last visited Nov. 24,
2013); Mark Knowlin, Special Report: How the Elwha Dams Will be Removed, SEATTLE
TIMES (Sept. 17, 2011),
http://seattletimes.com/flatpages/specialreports/elwha/elwhadamremovalgraphic.html
(last visited Nov. 24, 2013); How to Tear Down a Dam, POPULAR MECHANICS (Feb. 10,
2006),http://www.nps.gov/olym/naturescie nce/upload/Elwha-Dam-in-Popular-Mechanics2.pdf (last visited Nov. 24, 2013).
135
See Dam Removal - Overview, NAT’L PARK SERVICE,
http://www.nps.gov/olym/naturescience/dam-removal-overview.htm (last visited Nov. 24,
2013).
136
Id.
137
Id.
138
Id.
137
B.
Lower Elwha Klallam Tribal Leadership in the Planned
Ecosystem Restoration on the Elwha River
Salmon have been the major driving force behind the advocacy for
dam removal on the Elwha River.139 For Lower Elwha Klallam Tribal
members, survival and restoration of the salmon runs are critically
important for cultural, historical, and dietary reasons. 140
‘This story is about the fish,’ said Frances Charles,
[Chairperson] of the Lower Elwha Klallam Tribe. ‘The tribe
looks forward to the return of the chinook, and the
abundance of fish from the stories our ancestors have been
telling us about since the dams went up. We used to have
salmon and other species out there, and we want them back
and revived for our children, and our children's children.’ 141
When the Elwha Dam was constructed at river mile 4.9 in 1913, it
blocked anadromous fish from more than 70 miles of river habitat in which
they had historically spawned and reared. 142 This beautiful reach of
pristine river, much of which is permanently protected within the Olympic
National Park, is still prime salmon habitat—“salmon heaven.”143 With the
dams now in place, remaining spawning habitat in the lower reaches of
the river has been damaged by higher water temperatures and trapped
sediment, which in the naturally flowing river had provided nutrients and
material for spawning beds.144 “The river went from producing more than
390,000 salmon and sea-run trout in 1910 (based on habitat available to
139
“The concept that dam removal of this magnitude might be a viable option in the
FERC licensing/relicensing process only gained momentum when a growing body of
evidence showed that significant gains in salmon abundance would only be possible by
removing the dams.” Winter, Ecosystem Restoration, supra note 60, at 16.
140
See discussion in section II supra of Lower Elwha Klallam fishing rights and tribal use
of historic fish runs.
141
$27 Million Awarded To Remove Elwha Dams; Salmon Numbers Expected To Go
From 3,000 to 300,000, THE COLUMBIA BASIN FISH & W ILDLIFE NEWS BULLETIN (Aug. 27,
2010), http://www.cbbulletin.com/396072.aspx (last visited Nov. 24, 2013).
142
2005 EIS, supra note 106, at 135.
143
CRANE, supra note 1, at 7; See also GRACE, supra note 4, at 155.
144
2005 EIS, supra note 106, at 136.
138
the fish and fish-production modeling) to fewer than 3,000 wild native
anadromous fish today.”145
In 2008, pursuant to the Elwha Act, the Lower Elwha Klallam Tribe,
Olympic National Park, the Washington Department of Fish and Wildlife,
the United States Fish and Wildlife Service, and the Northwest Fisheries
Science Center of the National Marine Fisheries Service published the
Elwha River Fish Restoration Plan, which presents a scientific framework
for restoring the ecosystem and fisheries on the Elwha River as part of
dam removal efforts.146
Prior to that, in 2005, the Natural Resources Division at Olympic
National Park formed the Elwha Research Consortium in order to study
the scientific impacts of dam removal on the Elwha River ecosystem. 147
The core participants in the Consortium were the Olympic National Park,
the Lower Elwha Klallam Tribe, United States Geological Survey
Biological Resources Discipline, National Oceanographic and Atmospheric
Administration Fisheries, Olympic Park Institute, Western Washington
University, and Peninsula College in Port Angeles.148
The Elwha is a perfect test of whether removing dams can
help restore a river. The lessons learned from restoring the
Elwha will be in every ecology book for the next 50 years.
The Elwha Research Consortium—based on teamwork,
strategic partnerships, and scientific collaboration—will tell
the tale. 149
145
Id. at 135.
LARRY W ARD, ET AL., U.S. DEPT OF COMMERCE, ELWHA RIVER FISH RESTORATION PLAN–
DEVELOPED PURSUANT TO THE ELWHA RIVER ECOSYSTEM AND FISHERIES RESTORATION ACT,
PUBLIC LAW 102-492,NOAA TECHNICAL MEMORANDUM NMFS-NWFS-90 (2008).
147
Jerry Freilich, The Science of Large Dam Removal: Removing Dams on the Elwha
River, Olympic National Park, 2007 GEORGE W RIGHT SOCIETY CONFERENCE PROCEEDINGS
186.
148
Id.
149
Freilich, supra note 146, at 188.
146
139
As of March 16, 2012, the Olympic National Park announced that
the Elwha River is again flowing through its natural channel, 150 and in the
summer of 2012, fish were again spawning above the site of the former
Elwha Dam.151 The complete success of the ecosystem restoration efforts
and salmon recovery, however, will only be evident in time.
CONCLUSION: LESSONS LEARNED FROM THE ELWHA RIVER
We know what the River wanted because it always had a
voice. [The Lower Elwha Klallam Tribal people] have listened
to the Elwha and listened to the life in the Elwha for more
generations than can be counted. They spoke for the Elwha
with a voice that never wavered, never left any doubt about
what the river was calling for. The Lower Elwha Klallam
[T]ribe, its leaders and members, cared for the River, lived
from the river, and brought the River’s voice to every
audience that could be found.152
The removal of the Elwha dams is historic, and will serve as an
inspiration and a model for many large-scale watershed and ecosystem
restoration projects to come. 153 By the late spring of 2012, the Elwha Dam
had been completely dismantled.154 During the summer of 2012, scientists
150
Welcome Home, Elwha!,NAT’L PARK SERV. OLYMPIC NAT’L PARK DAM REMOVAL BLOG
(Mar. 16, 2012), http://www.nps.gov/olym/naturescience/dam-removal-blog.htm (last
151
Fish Already Returning To Elwha River After Dam Removal, NAT’L OCEANIC &
ATMOSPHERIC AGENCY FISHERIES SERV.,
http://www.nmfs.noaa.gov/stories/2012/07/07_20_2012_elwha_restoration_video.html
(last visited Nov 24, 2013).
152
Bradley, supra note 115.
153
Dam removal advocates will be watching the restoration of the Elwha River closely. Its
success may provide the impetus to breach other aging dams, including the four massive
structures that block the lower Snake River in eastern Washington, and the 168-ft.-tall
Matilija Dam on a tributary of Southern California's Ventura River. Elofson will be keeping
an even closer watch on the free-flowing waters. Like Winter, he got involved in the
Elwha project right out of college. Now 53, he hopes to hike upriver and catch a coho
before he retires.
Tearing Down The Elwha River Dam, supra note 49.
154
Jeremy Schwartz and Paul Gottlieb, Updated—More Repairs Needed at Water Plant,
Will Likely Hold up Elwha River Dam Removal Work, PENINSULA DAILY NEWS (May 5,
2013); Removal of Last Dam on Olympic Peninsula's Elwha River on Hold, ASSOCIATED
PRESS (Apr. 23, 2013)
140
were amazed to find that wild steelhead had already made their way well
above the site of the former Elwha Dam.155 These wild fish joined
approximately 60 released native steelhead and 600 released native
salmon, some of which successfully spawned in the newly opened
riverbed.156 In August 2012, the Lower Elwha Klallam Tribe performed the
first salmon ceremony and blessing to welcome the salmon home above
the dam for the first time in over a century. 157 The Glines Canyon Dam
removal was temporarily stalled due to water quality issues downriver, 158
but deconstruction has resumed and the Park Service expects that the
removal will be completed on schedule in 2014. 159
http://www.oregonlive.com/environment/index.ssf/2013/04/removal_of_last_dam_on_oly
mpic.html (last visited Nov. 24, 2013) (federal officials had hoped to complete removal of
the Glines Canyon Dam ahead of schedule, by summer 2013, but the heavy sediment
discharge from behind the dam clogged the water treatment intake on the lower river,
requiring an upgrade to prevent long-term sedimentation problems for the Port Angeles
water supply. NPS officials put the dam removal on hold while the treatment plant was
upgraded).
155
Fish Already Returning To Elwha River after Dam Removal, supra note 151.
156
Id. The Lower Elwha Klallam Tribe’s new fish hatchery, which was completed in 2011,
is a state-of-the art facility designed to support river restoration efforts. This role is
particularly vital in light of water quality issues as sediment load from the former reservoir
sites makes its way down stream over the next five years or so. There is a five-year
moratorium on the salmon and steelhead fishery in the Elwha, which will end in 2017,
and the Tribe’s Natural Resources staff expect that some subsistence fishing may
resume as early as 2018, while commercial fisheries may be possible by 2020. Currently
the Tribe is involved in litigation over potential negative effects of the hatchery stock on
wild fish genetics, but the Tribe firmly believes that the hatchery serves a vital role in the
process of river restoration and the prevention of the extirpation of species during the
process of dam removal. Interview with Larry Ward, Lower Elwha Kallam Tribe Fish
Hatchery Manager (Nov. 14, 2013); Interview with Doug Morrill, Director of Natural
Resources for the Lower Elwha Kallam Tribe, (Nov. 14, 2013); Elofson, Interview, supra
note 97; see also Suagee, Interview, supra note 117.
157
Arwyn Rice, Lower Elwha Klallam Tribe Ceremoniously Welcomes Salmon Back Into
Upstream River, PENINSULA DAILY NEWS (Aug. 16, 2012),
http://www.peninsuladailynews.com/article/20120817/news/308179982 (last visited Nov.
24, 2013).
158
Sediment loads in Lake Mills behind Glines Canyon Dam were as expected, but the
water treatment plant near the mouth of the Elwha’s water intake filtration system failed.
Although dam removal has resumed, the water treatment plant is not yet back in
operation as of November, 2013. Interview with Doug Morrill, Director of Natural
Resources for the Lower Elwha Kallam Tribe (Nov. 14, 2013).
159
Paul Gottlieb, Elwha Water Plant Clog Fixed, So Work Begins Again on Tearing Down
Glines Canyon Dam, PENINSULA DAILY NEWS (Oct. 3, 2013).
141
The Lower Elwha Klallam Tribe provides one of several examples
of the power of tribal advocacy in natural resource management of lands,
waters, and wildlife that are of cultural importance to the tribes. 160
Competing priorities of tribes, non-Indian citizens, state, local, and federal
governments, and environmental organizations do not always align, and
there is a long way to go before tribes are consistently and meaningfully
involved in decisions affecting their lands and the resources on which they
have always depended. But tribes like the Lower Elwha Klallam have
already successfully asserted their traditional understandings of and
dependence on the land and its resources, and invoked their unique
160
Like the Lower Elwha Klallam Tribe, the Nisqually Indian Tribe’s treaty reserved
fishing right has been damaged by overfishing and development on the Nisqually River
and in the Puget Sound. In 1912, Tacoma Power built the first diversion dam on the
Nisqually River, which was replaced by the Alder and LaGrande dams in 1945. United
States v. Washington, 384 F. Supp. at 368-69. FERC renewed the license for both dams
in 1997, and the Nisqually Indian Tribe was involved in the development of that license.
Id. at 369. Even before U.S. v. Washington, as Judge Boldt described, the Nisqually were
involved in developing fisheries management schemes, in order to protect their resource.
Id. The tribe currently participates in the Nisqually River Task Force, and runs a
sophisticated Natural Resources Department, which manages several programs,
including a Salmon Recovery Program, a Salmon Enhancement project, an
Environmental Management project, and a Harvest Management Program. Natural
Resources, NISQUALLY INDIAN TRIBE, http://www.nisqually-nsn.gov/content/naturalresources (last visited Nov. 24, 2013). The Nisqually Tribe Natural Resources
Department additionally serves as the Nisqually River Salmon Recovery Lead Entity
under the authority of Washington’s Salmon Recovery Act. RCW §77.85 (2009); Habitat
Recovery Work Schedule: Nisqually River Salmon Recovery, W ASH. STATE RECREATION &
CONSERVATION OFFICE, http://www.hws.ekosystem.us/prun.aspx?p=Page_89901fef-078a47c8-9c7b-f3c0c259700a&sid=220 (last visited Nov. 24, 2013). The Nisqually Tribe has
and will continue to serve as a leader in the battle to protect the salmon on the Nisqually
River.Similarly, the Klamath, Hoopa Valley, Karuk, and Yurok Tribes, who have inhabited
the Klamath River basin since time immemorial, are actively involved in an effort to
remove four hydropower dams from the Klamath River Basin in Southern Oregon /
Northern California. See generally JIM DOWNING, LAYPERSON’S GUIDE TO THE KLAMATH
RIVER, W ATER EDUCATION FOUNDATION (2011). It is hazardous to predict the course of
future political events in the Klamath Basin given the great number of stakeholders, the
long history of conflict, and the hydrological realities in the basin. But there are enormous
political and legal forces that are pushing for the removal of dams and the improved
water quality, increased water flows, and protection of endangered species that will
result. The tribes in the Basin will undoubtedly continue to play a prominent role in this
debate; their existence depends on a return of the fish species that, for thousands of
years, gave them their identity and their sustenance.
Daniel McCool, Rivers of the Homeland: River Restoration on Indian Reservations, 16
CORNELL J.L. & PUB. POL’Y 539, 553-54 (2007).
142
status as sovereign nations and beneficiaries of the special trust
relationship with the federal government.161 As one scholar puts it,
[t]he impoverishment of nature affects every American
citizen, but it poses particularly severe threats to Native
America because tribal populations today are not mobile.
Sovereignty and culture are tied to a fixed, remnant land
base. Environmental damage originating outside of
reservations jeopardizes traditional economies, cultural ways
of life, and the health of tribal citizens. 162
Tribes are thus well situated to become the foremost experts on protecting
the natural resources in their traditional territories, and to take the leading
role in the political process, which many like the Lower Elwha Klallam
have chosen to do.
In some ways, the Lower Elwha Klallam Tribe was in an ideal
position to develop the strong coalition that eventually achieved the
removal of the Elwha Dams.163 After all, the Elwha Dams produced little
power and served no irrigation purposes, and the majority of the River’s
watershed lay within the boundaries of a National Park.164 As Lower Elwha
Klallam Tribal leaders point out, their opportunity to unite the interests of
the larger community were unique, although much of the strength of those
collaborations simply came with relationship-building over time and the
161
Given the enormous impact that water development has had on Indian people, it is not
surprising that they would play a major role in efforts to restore rivers. Today there are
hundreds of river restoration projects taking place across the nation. Many, but not all, of
these involve dam removal. Since 1912 about 465 dams were removed in the United
States. Since 1999, another 145 dams have been removed. However, dam removal is
just one aspect of river restoration; many rivers are partially restored while dams on the
same river are maintained. Indian tribes are the primary leaders of some of these
restoration efforts, but the more typical modus operandi is for tribes to participate in a
broad coalition of stakeholder groups that work together to restore rivers.
Id. at 543.
162
Mary Christina Wood & Zachary Welcker, Tribes As Trustees Again (Part I): The
Emerging Tribal Role in the Conservation Trust Movement, 32 HARVARD ENVTL. L. REV.
373, 375 (2008).
163
Elfoson, Interview, supra note 97; Suagee, Interview, supra note 117.
164
Id.
143
accompanying development of political strategy. 165 The Tribe, which has
always emphasized the importance of natural resource management
within the Tribal government, additionally had the benefit of a Natural
Resources Department comparable to any state or federal agency. 166
However, as more tribes reach cooperative agreements, take advantage
of statutory schemes that encourage tribal management, and assert treaty
or similar reserved rights under federal law, the future of culturally and
ecologically sound management of tribal resources appears ever
brighter.167 As Senator Bradley remarked during a dinner celebrating the
Elwha Dam removal on September 16, 2011:
Each of us owes the Lower Elwha Klallam Tribe the greatest
possible gratitude for their unceasing efforts over decades to
bring back the River’s life. To tell us all what the River
needed. And we owe the Tribe the greatest deference and
respect for the burdens its people and society have borne
because of what was done to the River 100 years ago. 168
The Elwha River must still achieve full recovery, but the return of
the fish is a promising sign for the revival of the ecosystem and the
cultural heritage of the Lower Elwha Klallam Tribe.169 The Tribe will
165
Id.
Id.
167
Wood & Welcker, supra note 162 at 393-95 (discussing the failure of statutory
conservation schemes currently in place to protect tribal interests, and the importance of
tribal use of “new ways to extend their environmental prerogatives outside reservation
boundaries” as part of the “growing Native environmental sovereignty movement”).
168
Bradley, supra note 115.
169
It defies experience-hardened cynicism whenever any big public works project is
under budget and ahead of schedule. But the Elwha has served up something even
better: life itself, in the form of ocean-going fish answering to the imperatives of love and
death. Not long ago, scientists were stunned to find wild steelhead trout scouting habitat
well past the site where the Elwha Dam had stood for nearly a century. They didn’t
expect fish to return this soon . . . The dams choked off one of the greatest salmon
bounties in the United States. They were built to service a pulp mill, and once the mill
outlived its purpose, the Indians of the Lower Elwha Klallam Tribe began to dream of big
Chinook, some up to 80 pounds, coming back to a river wild once again—a ghost dance,
in its way. After an initial act of Congress authorized dam removal in 1992, it took two
decades of persistence by the tribe, the National Park Service and lovers of wild land and
feisty fish to guide the $325 million project through much turbulence . . . The investment
here will not only return a river to its natural state, but lays the foundation for a wild
166
144
continue to shape the future course the Elwha River takes by playing a
vital role in the restoration efforts. 170 “We were told it was insurmountable,”
Robert Elofson, long-time Elwha River Restoration Director for the Lower
Elwha Klallam said, “but as a tribal people working to make change in your
ancestral homeland, you are not going anywhere, and you have a long
time to get things done.” 171
Julia Guarino, Regeneration begins at the former site of the Elwha Dam
(Nov. 14, 2013)
salmon fishery like no other in the 48 states. Imagine having a place, two hours and
change from the 3 million people of the Seattle metro area, that looks like Alaska’s Kenai
Peninsula—and has the fish to bring in visitors to expand what is already a thriving tourist
industry.
Timothy Egan, Biological Boomerang, N.Y. TIMES, July 26, 2012.
170
River Restoration, LOWER ELWHA KLALLAM TRIBE,
http://www.elwha.org/tribalprograms/riverrestoration.html (last visited Nov. 24, 2013).
171
Elofson, Interview, supra note 97.
145
THE WASHINGTON STATE INDIAN CHILD WELFARE ACT:
PUTTING THE POLICY BACK INTO THE LAW
William N. Smith and Richard T. Okrent
INTRODUCTION
One of the fundamental tenets of Indian tribal sovereignty is the
preservation of Indian tribal courts’ exclusive jurisdiction over their land
and people.1 Prior to the enactment of the Indian Child Welfare Act 2
(ICWA), the policy of the federal and state governments was the
assimilation and elimination of Indian tribes through the breakup of Indian
families and the placement of Indian children in non-Indian homes. Since
the 1970s, federal policy now supports Indian tribes in retention of their
children through the ICWA. Washington State has recently enacted its
own version3 of the ICWA, entitled the Washington State Indian Child
Welfare Act4 (WSICWA), which mirrors the current federal policy. The

William N. Smith, J.D. George Mason University School of Law; B.A. Hampden-Sydney
College. Special thanks to the AILJ staff for all their professionalism and diligent work.
Special thanks to Judge Okrent for his invaluable mentorship and his vision and work on
the article. Special thanks to Nina DeJong for her polish on the article. And finally, special
thanks for the love and support of my parents, sister, Emily, and my cousin John Berry
whom I look up to every day. Richard T. Okrent, Superior Court Judge, Snohomish
County Washington. J.D. Seattle University School of Law; M.A. University of California
Los Angeles; B.A. University of Washington. Judge Okrent has worked as a
commissioner pro tem, arbitrator, and mediator in Snohomish County courts. He has
worked for the Island County and Snohomish County Prosecutor’s Offices, was an
Associate of the Law Offices of David Kastle, and a partner in the Law Office of Okrent
and Wogsland, where he specialized in representing parents and children in dependency
cases and in the representation of Native Americans. Judge Okrent is also a former
president of the Snohomish County Bar Association.
1
Worcester v. Georgia, 6 Pet. 515, 559 (1832)(the concept of tribal sovereignty
recognizes that Indian tribes are "distinct, independent political communities, retaining
their original natural rights" in matters of local self-government).; see United States v.
Mazurie, 419 U.S. 544, 557 (1975); United States v. Kagama, 118 U.S. 375, 381-382
(1886)( although no longer "possessed of the full attributes of sovereignty," they remain a
"separate people, with the power of regulating their internal and social relations.").
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.01 [1] [a] at 207(2012)
2
25 U.S.C. § 1901 (2006).
3
W ASH. REV. CODE § 13.38 (2013).
4
W ASH. REV. CODE § 13.38.010 (2013).
146
policy of Washington State is that it is in the per se best interest of Indian
children to be placed in the homes of Indian families, and that at every
stage of child custody cases involving Indian children Washington State
courts must respect the jurisdictional rights of Indian tribes.
This article has four main purposes: (1) to examine the major
litigated issues of the ICWA in Washington State courts; (2) to compare
the WSICWA and its departure from Washington State courts’
jurisprudence interpreting the ICWA; (3) to demonstrate that the WSICWA
is rightfully more protective of Indian tribes and Indian children’s interests
than Washington State courts’ jurisprudence; and (4) to analyze the merits
of the recent United States Supreme Court decision on the ICWA, and
demonstrate that the WSICWA also offers better protections for Indian
tribes than the Supreme Court’s jurisprudence.
I.
BACKGROUND
In the late 1970s, Congress made findings, inter alia, “that an
alarmingly high percentage of Indian families are broken up by the
removal…of their children from them by nontribal public and private
agencies” and “that an alarmingly high percentage of such children are
placed in non-Indian foster and adoptive homes and institutions.”5 Studies
presented by the Association on American Indian Affairs in 1969 and 1974
“showed that 25 to 35 percent of all Indian children had been separated
from their families and placed in adoptive families, foster care, or
institutions.”6 In an effort to protect Indian tribal culture, Congress enacted
the ICWA.7 The law was passed in 1978 with the purpose “to protect the
best interests of Indian tribes and families . . . by the establishment of
minimum Federal standards for . . . the placement of [Indian] children in
foster or adoptive homes which will reflect the unique values of Indian
5
25 U.S.C. § 1901 (2006).
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989) (citing:
Senate, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on
Interior and Insular Affairs, 93rd Cong. 15 (1974) ; H.R. Rep. No. 95-1386, 9 (1978)).
7
25 U.S.C. § 1901 (2006).
6
147
culture, and by providing for assistance to Indian tribes in the operation of
child and family service programs.”8
The ICWA has two main functions: (1) to give federally recognized
Indian tribes9 exclusive jurisdiction over Indian children residing or
domiciled on the reservation;10 and (2) to allow federally recognized Indian
tribes to intervene in any state court “foster care placement” or
“termination of parental rights” proceeding where the child subject to that
proceeding is an Indian child residing or domiciled off the reservation.11 To
invoke the protections of the ICWA, one of the parties to the child custody
proceeding must establish upon petition that the child subject to such
proceeding is an Indian child as defined by the ICWA.12 If any party to the
child custody proceeding, usually a parent, Indian custodian, or
intervening Indian tribe, establishes that the child does qualify as an Indian
child, then the state court must transfer jurisdiction of the proceeding to
the appropriate Indian tribal court.13 There are, however, exceptions to the
transfer from state court to Indian tribal court. 14 And these exceptions
make up the body of state and federal jurisprudence for the ICWA.
The ICWA not only limits state court jurisdiction over Indian
children, but also provides stringent procedural hurdles for state courts
when terminating parental rights of Indian parents over their Indian
children and placing children with non-Indian foster or adoptive parents.
Unlike most federal legislation, however, the ICWA is enforced almost
exclusively in state court. In response to the Washington State courts’
8
25 U.S.C. § 1902 (2006).
A list of federally recognized Indians tribes is found in “Indian Entities Recognized and
Eligible To Receive Services From the United States Bureau of Indian Affairs,” 74 Fed.
Reg. 40218 (Aug. 11, 2009).
10
25 U.S.C. § 1911(a) (2006).
11
25 U.S.C. § 1911(b) (2006). For a definition of “foster care placement” or “termination
of parental rights” see 25 U.S.C. §1903(1)(i-ii) (2006).
12
25 U.S.C. § 1911(b)(2006); 25 U.S.C. § 1903(4)(2006)(defining an Indian child as “any
unmarried person who is under age eighteen and is either (a) a member of an Indian tribe
or (b) is eligible for membership in an Indian tribe and is the biological child of a member
of an Indian tribe.”).
13
25 U.S.C. § 1911(b) (2006).
14
Id. A state court must refuse to transfer jurisdiction if either parent of the Indian child
objects to the transfer, the appropriate Indian tribe does not have a tribal court, or there is
“good cause” to refuse the transfer.
9
148
decisions interpreting various provisions of the ICWA to the chagrin of
local Indian tribes, the Washington State Legislature has developed the
WSICWA with a stated goal of “clarifying existing laws and codifying
existing policies and practices” for Indian child custody cases, and
“promoting practices designed to prevent out-of-home placement of Indian
children that is inconsistent with the rights of the parents, the health,
safety, or welfare of the children, or the interests of their tribe.”15
II.
WASHINGTON STATE COURTS AND ICWA LITIGATION
The ICWA is not without ambiguities and vague language. The
Indian tribes and the Washington State Department of Social and Health
Services (DSHS) have routinely litigated two issues. What is the role, if
any, of state family law in relation to the ICWA? And, what is a “qualified
expert witness” under § 1912 of the ICWA? In the case In re Mahaney,16
the Supreme Court of Washington answered both questions.
In Mahaney, a non-Indian grandmother appealed termination of her
non-parental custody over her Indian grandchildren17 pursuant to the
Nonparent Custody Act, under the Revised Code of Washington (RCW)
26.10.18 The petitioning grandmother had been awarded foster care
custody by the Superior Court, but subsequently had her custody
terminated by the Court of Appeals.19 The Washington Supreme Court
reversed the Court of Appeals decision and reinstated the petitioning
grandmother’s custody of the Indian children. 20
The Supreme Court found that the “…fact that [the] ICWA applies
should not signal to state courts that state law is replaced by the act's
mandate,” and held that Washington State’s “best interest of the child”
15
W ASH. REV. CODE § 13.38.030 (2013).
In re Mahaney,146 Wash.2d 878 (2002).
17
25 U.S.C. §1903(4) (2006) (defines Indian child as an “unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe.”).
18
In re Mahaney,146 Wash.2d at 881. W ASH. REV. CODE § 26.10.030 (2013)(the Non
Parent Custody Act allows a person “other than a parent to petition a court for custody of
a child”). W ASH. REV. CODE § 26.10.100 (2013)(the court shall determine custody “in
accordance with the best interest of the child”).
19
In re Mahaney,146 Wash.2d at 885-86.
20
Id. at 898.
16
149
test21 still applied to dependency cases for Indian children. 22 The Supreme
Court reasoned that its holding was consistent both with other state court
opinions, which also applied state laws in Indian children child custody
cases,23 and with the legislative history of the ICWA that “Congress did not
intend [for the ICWA] ‘to oust the States of their traditional jurisdiction over
Indian children falling within their geographic limits'.” 24
Furthermore, the Supreme Court found that the trial court complied
with 25 U.S.C § 1912(e). Section 1912 (e) reads in its pertinent part:
Foster care placement orders; evidence; determination of
damage to child. No foster care placement may be ordered
in such proceeding in the absence of a determination,
supported by clear and convincing evidence, including
testimony of qualified expert witnesses 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. . . . 25
21
W ASH. REV. CODE § 26.09.002 (2013)(the “best interest of the child” test is applied to all
Washington State child custody cases and is defined as a parenting arrangement that
“best maintains a child's emotional growth, health and stability, and physical care”); In re
Marriage of Allen, 28 Wash. App 637, 648 (1981)(there is no bright line rule of what is in
the best interest of children. Each situation regarding children is decided on the
circumstances of the case. Generally the court has to balance the competing interests of
the parents, the child custodian, and sometimes the State in order to maximize the
optimal placement for the child).
22
See In re Mahaney,146 Wash.2d at 893.
23
In re Maricopa County Juvenile Action No. A–25525, 136 Ariz. 528 (1983) (applying
“best interests of the child” test to an Indian child dependency case); In re Santos Y., 112
Cal.Rptr.2d 692 (2001) (applying “existing Indian family doctrine” to award custody of an
Indian child to non-Indian de facto parents); In re TM, 245 Mich. Ct. App. 181 (2001)
(applying Michigan state law in the termination of parental rights of an Indian parent over
his Indian child).
24
In re Mahaney,146 Wash.2d at 893-94 (quoting Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30 at 58 (1989) (quoting H.R. Rep. No. 95–1386, at 19 (citing 1978
U.S.C.C.A.N. 7541, 7530)).
25
25 U.S.C. § 1912(e)(2006)(emphasis added); 1 U.S.C. § 1 (2102)(emphasis
added)(while the ICWA calls for a plural number of “qualified expert witnesses,” federal
statutory rules of construction provide that “unless the context indicates
otherwise…words importing the plural include the singular”).
150
At the trial level, the “qualified expert witness” that the Superior
Court relied on when making its decision had only specialized training in
medical, psychological, and special needs of children. 26 The expert
witness lacked special knowledge of, and sensitivity to, Indian culture. 27
The issue was whether witnesses who had specialized knowledge of
medical, psychological, and special needs of children, but no
understanding of Indian culture, were in fact “qualified expert witnesses.” 28
The Washington Supreme Court partially adopted the Bureau of
Indian Affairs (BIA) guidelines by holding that a “qualified expert witness”
should normally be an individual with specialized “knowledge of tribal
culture and childrearing practices.” 29 Nevertheless, the Supreme Court
made an exception that a “qualified expert witness” need not necessarily
have “special knowledge of and sensitivity to Indian culture” so long as the
expert testimony offered does not “inject cultural bias or subjectivity.” 30
The Supreme Court, however, did not specify what sort of testimony would
or would not “inject cultural bias or subjectivity.” Nevertheless, in
examining the facts of Mahaney and other state court decisions which
share the same interpretive rule, “a qualified expert witness” need not
have “special knowledge of and sensitivity to Indian culture” for foster care
placement cases involving alleged substance abuse by the Indian
parents.31
The dissent in Mahaney criticized the majority’s decision for resting
on emotion rather than a straightforward application of the law. The
dissent writes, “I sympathize with my colleagues' desire to keep the
26
In re Mahaney,146 Wash.2d at 897.
Id. at 897.
28
Id.
29
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584,
67,593 (Nov. 26, 1979).
30
In re Mahaney,146 Wash.2d at 897, (quoting State ex rel. Juvenile Dep't of Lane Cnty.
v. Tucker, 76 Or. App. 673 (1985)).
31
Id. at 884-85; see also Thea G. v. State, Dep’t. of Health & Soc. Services, Office of
Children's Services 291 P.3d 957, 964 (Alaska 2013) (holding that foster care or
termination of parental rights cases involving issues of parental substance abuse do not
implicate cultural mores); Dep't of Human Services v. K.C.J., 228 Or. App. 70, 84 (2009)
(“Because this case implicates no cultural bias, the tribal representative is not the only
‘qualified expert witness’ whose testimony can be considered to support the court's
finding….”).
27
151
Mahaney children with their paternal grandmother who has nurtured and
protected them and provided them with a stable environment since 1993.
It is, however, incumbent on this Court to enforce the laws of the United
States.”32 The dissent questioned the majority’s interpretation of a
“qualified expert witness” and the Supreme Court’s affirmation of the trial
court’s application of the “best interest of the child” test.
The dissent found the “best interest of the child” test used in
Washington State family law to be inapposite to § 1912(e) because the
§ 1912(e) standard is centered on the parent(s) rather than the child. 33
The text of the statute reads that a court must find “clear and convincing
evidence . . . that the continued custody of the child by the parent . . . is
likely to result in serious emotional or physical damage to the child. . .”
before there can be any foster care placement. 34
“The majority is wrong in concluding that the best interests of the
child must be found by clear and convincing evidence,” the dissent writes,
“[c]lear and convincing evidence must support a finding of parental
unfitness to care for the child.”35 The dissent concluded that the majority’s
application of the “best interest of the child” test, while “laudable,” results
in the court “doing precisely what the ICWA was designed to prevent: it
applies non-Native American values with little appreciation for the value of
Native American tribes, their culture, and their influence.” 36
The dissent, however, did not dismiss the majority’s exception that
a “qualified expert witness” need not always have a “special knowledge of
and sensitivity to Indian culture.” 37 Instead, the dissent interpreted a
narrower exception allowing a “qualified expert witness” to lack special
knowledge of Indian culture for cases “when cultural bias is clearly not
implicated and when there is no dispute about the parental inadequacy at
32
Id. at 902-03.
34
25 U.S.C. § 1912(e) (2006) (emphasis added).
35
36
Id. at 902.
37
Id. at 903.
33
152
the time of the hearing.” 38 Examples cited by the dissent were cases
where the Indian parents suffered from mental illness 39 or paranoia.40
In re Mahaney was wrongly decided mainly for the reasons stated
by the dissent. The majority’s application of the “best interest of the child”
test inappropriately undermines both the statutory scheme of the ICWA
and Congress’ explicit goal of “…the placement of [Indian] children in
foster or adoptive homes which will reflect the unique values of Indian
culture….”41 Additionally, the Mahaney majority opinion erroneously relied
on the United States Supreme Court case Holyfield42 to support its
holding.
The Mahaney majority cites the legislative history of the ICWA
found in Holyfield to justify the application of Washington State family law
in conjunction with the ICWA.43 The reliance on that particular excerpt of
legislative history by the Mahaney majority is problematic because it is
found in the dissent of Holyfield and stands in complete contravention to
Holyfield’s holding and supporting dicta.
Holyfield is one of two44 United States Supreme Court decisions
interpreting the ICWA. The case, as is normal of any child custody
proceeding, was highly emotional. In fact, when Justice Scalia was asked
what was the most personally wrenching decision that he ever had to
38
Id. (emphasis added).
State ex rel. Juvenile Dep't of Lane Cnty. v. Tucker, 76 Or. App. 673, 683–84 (1985)
(holding that the Indian parent’s undisputed mental illness precluded the need for
“qualified expert witnesses” to possess special knowledge of Indian life).
40
See In re Oscar C., Jr., 147 Misc.2d 761, 763–64 (1990) (finding that the Indian parent
suffered from paranoia that was a chronic, lifelong disorder absent psychological
intervention).
41
25 U.S.C. § 1902 (2006).
42
See generally Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 30
(1989).
43
In re Mahaney,146 Wash.2d at 893-94 (congress did not intend [for the ICWA] ‘to oust
the States of their traditional jurisdiction over Indian children falling within their
geographic limits'”).
44
The second case, Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552 (2013)
was decided on June 25, 2013. Adoptive Couple v. Baby Girl, 398 S.C. 625, 631 (2012),
reh'g denied (Aug. 22, 2012), cert. granted, 133 S. Ct. 831, 184 (2013).
39
153
make as a Supreme Court Justice he answered that it was Holyfield.45 The
breakdown of the votes also reveals the controversy surrounding the case.
The majority was authored by Justice Brennan with Justices Scalia, White,
Marshall, Blackmun, and O’Conner joining, while the dissent was authored
by Justice Stevens with Chief Justice Rehnquist and Justice Kennedy
joining.46 Both the majority and the dissent include Justices across the
spectrum of liberal, moderate, and conservative jurisprudence.
In Holyfield, two Indian parents of the Mississippi Band of Choctaw
Indians (Choctaw Nation) residing on the Choctaw Nation’s reservation
gave birth to a set of Indian twins at an off-reservation hospital, and less
than a month later, signed their consent to an adoption decree with the
Mississippi State Chancery Court. 47 Six days later the Holyfields, a nonIndian couple, filed a petition for adoption for the children, which the
Chancery Court granted, giving the Holyfields custody of the Indian
twins.48 Two months later, the Choctaw Nation moved the Chancery Court
to vacate its adoption decree on the ground that, under the ICWA,
exclusive jurisdiction was vested in the tribal court. 49 After the Chancery
Court refused to vacate the order, the Choctaw Nation appealed to the
Supreme Court of Mississippi.50 The Mississippi Supreme Court found that
under State law the Indian children were domiciled off the reservation,
thus distinguishing any of the Choctaw Nation’s claims of exclusive
jurisdiction.51 The Choctaw Nation then appealed to the United States
Supreme Court, who reversed the Supreme Court of Mississippi. 52
The United States Supreme Court held that that states could not
apply state laws of domicility that would undermine Indian tribal jurisdiction
over Indian child custody proceedings.53 The Holyfield majority writes, “We
45
Adam Liptak, Case Pits Adoptive Parents Against Tribal Rights, N.Y. TIMES (Dec. 24,
2012), http://www.nytimes.com/2012/12/25/us/american-indian-adoption-case-comes-tosupreme-court.html?_r=1& (last visited Dec. 29, 2013).
46
See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 30.
47
Id. at 37-38.
48
Id. at 38.
49
See 25 U.S.C. § 1911(a) (2006).
50
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 39.
51
Id. at 40.
52
Id. at 41.
53
Id. at 53.
154
start, however, with the general assumption that ‘in the absence of a plain
indication to the contrary. . . .Congress when it enacts a statute is not
making the application of the federal act dependent on state law.’”54 The
reasons for this general presumption are (1) that “federal statutes are
generally intended to have uniform nationwide application;” and (2) with
application of state law there is a danger that “the federal program would
be impaired if state law were to control.”55 Thus, in analyzing the statutory
scheme of the ICWA, the United States Supreme Court found “beyond
dispute” that Congress intended to establish a uniform federal law of
domicility under the ICWA.”56
Applying that logic to Mahaney, if Congress intended uniform
application of the domicility requirement of the ICWA, then it would
necessarily follow that Congress intended uniform application of all
provisions of the ICWA by the states unless the context of the particular
statute clearly indicates otherwise. In Mahaney, however, the application
of Washington State’s’ “best interest of the child” test exemplifies the very
problem cited in Holyfield of states impairing federal programs by
establishing completely different standards for state courts to examine
child custody proceedings involving Indian children.
The Mahaney majority interpretation of a “qualified expert witness”
falls short of a comprehensive definition of the term. Admittedly, Congress
failed to define what exactly the qualifications for a “qualified expert
witness” are. Even in context, the term is still unclear and is susceptible to
more than one reasonable interpretation. Given that the term “qualified
expert witness” is susceptible to more than one reasonable interpretation,
the term is ambiguous as a matter of Washington State law. 57 Accordingly,
the Mahaney majority should have “resort[ed] to principles of statutory
construction, legislative history, and relevant case law to assist in
interpreting [the term].”58
54
Id. at 43 (citing Jerome v. United States, 318 U.S. 101, 104 (1943)).
Id. at 44 (citing Jerome, 318 U.S. at 104).
56
Id. at 47.
57
See Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 808 (2001).
58
State v. Watson, 146 Wash.2d 947, 955 (2002).
55
155
The majority, however, made no citation to any of the legislative
history in hopes of finding the meaning of a “qualified expert witness.” It is
true that the Mahaney majority cited relevant case law from the Oregon
Court of Appeals59 that defines a “qualified expert witnesses” as someone
generally qualified through their “special knowledge of and sensitivity to
Indian culture.”60 But the Mahaney majority fails to analyze how the Court
of Appeals came to that conclusion. In fact, the Court of Appeals of
Oregon relied heavily on the House Reports and the BIA guidelines in
reaching its conclusion that a “qualified expert witness” should have an
understanding of Indian culture. 61
The Court of Appeals of Oregon specifically relied on the House
Report for the ICWA:
The courts tend to rely on the testimony of social workers
who often lack the training and the insights necessary to
measure the emotional risk the child is running at home. In a
number of cases, the AAIA [Association on American Indian
Affairs] has obtained evidence from competent psychiatrists
who, after examining the defendants, have been able to
contradict the allegations offered by the social worker. . .
The abusive actions of social workers would largely be
nullified if more judges were themselves knowledgeable
about Indian life and require a sharper definition of standards
of child abuse and neglect.62
Furthermore, the Court of Appeals of Oregon relied on the BIA guidelines
which give three definitions of a “qualified expert witness,” two of which
59
State ex rel. Juvenile Dept. of Multnomah Cnty. v. Cooke, 88 Or. App. 176 (1987).
In re Mahaney, 146 Wash.2d 878, 897 (2002).
61
See State ex rel. Juvenile Dept. of Multnomah Cnty. v. Cooke, 88 Or. App. at 178
(citing State ex rel. Juvenile Dept. of Multnomah Cnty. v. Charles, 70 Or. App. 10, 16
(1984)
(quoting H.R.1386, 95th Cong.,10 (1978) in U.S. CODE CONG. & ADMIN. NEWS 7532–7533
(1978))).
62
State ex rel. Juvenile Dept. of Multnomah Cnty. v. Charles, 70 Or. App. at 16, (quoting
H.R. 1386, 95th Cong. 10 (1978), in U.S. CODE CONG. & ADMIN.NEWS 7532–7533 (1978)).
60
156
require that the “qualified expert witness” be either a member of the child’s
tribe or a lay expert in Indian culture. 63
The Mahaney majority omits any discussion of the BIA guidelines
and this portion of the House Report in its interpretation of a “qualified
expert witness.” Instead, the only legislative history that the majority cites
is the portion from the House Report that “Congress did not intend [for the
ICWA] ‘to oust the States of their traditional jurisdiction over Indian
children falling within their geographic limits.’”64 Yet, relying on this piece
of legislative history is problematic in two ways. The first problem is that
the majority has fallen, as justice Scalia has described, into the trap of
using legislative history “as the equivalent of entering a crowded cocktail
party and looking over the heads of the guests for one's friends.” 65 In
interpreting its broad exception for allowing a “qualified expert witnesses”
to have no knowledge of Indian culture or child rearing practices when
testifying in Indian child custody cases involving substance abuse, the
majority ignores what amounts to be very probative legislative history cited
by the Court of Appeals of Oregon indicating to the contrary. Secondly, the
majority’s failure to cite legislative history when interpreting the term
“qualified expert witness,” and its citation of legislative history as
justification for application of Washington State law’s “best interest of the
child” test, is the reverse approach to Washington State jurisprudence
regarding statutory interpretation. When confronted with the ambiguous
“qualified expert witness” term, the majority fails to cite legislative history.
But when applying the state law “best interest of the child” test, a standard
unambiguously precluded by the statutory scheme of the ICWA, the
majority chooses to cite and rely on legislative history.
III.
THE WASHINGTON STATE INDIAN CHILD WELFARE ACT
The WSICWA was passed on April 21, 2011, almost nine years
after the Mahaney decision. The Act is a codification into Washington
State law of the federal ICWA and certain provisions of the BIA
63
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584,
67,593 (Nov. 26, 1979).
64
In re Mahaney,146 Wash.2d at 893-94.
65
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993).
157
guidelines.66 The WSICWA creates uniform procedures for all child
custody cases involving Indian children in Washington State, and gives
state courts better direction on the vague language contained in the
ICWA.
A. The WSICWA’s Response to Mahaney
In one of its very first sections, the WSICWA abridges Mahaney’s
holding that the state law “best interest of the child” test still applied to
child custody cases for Indian children in Washington State courts. The
WSICWA reads in pertinent part “[t]his chapter shall apply in all child
custody proceedings as that term is defined in this chapter. Whenever
there is a conflict between chapter 13.32A, 13.34, 13.36, 26.10, or 26.33
RCW, the provisions of this chapter shall apply.” 67 The enumerated
chapters in RCW 13.38.020 are Washington State’s dependency, juvenile,
and family law provisions. Particularly, RCW 26.10’s “best interest of the
child” test was the very standard that the Mahaney court applied under the
Nonparent Custody Act.68 Thus, RCW 13.38.020 precludes any other
application of state family law in a child custody proceeding involving an
Indian child.
As written, the language of RCW 13.38.020 was not strong enough
to protect the “best interest of the Indian child” in a child custody case.
Therefore, the Washington State Legislature included in the WSICWA, a
separate and distinct definition for the “best interest of the Indian child.”69
In doing so, the Washington State Legislature essentially took a
flamethrower to the Mahaney majority opinion. The WSICWA defines the
“best interest of the Indian child” as:
66
25 U.S.C. § 1921 (2006) provides:
In any case where State or Federal law applicable to a child custody proceeding under
State or Federal law provides a higher standard of protection to the rights of the parent or
Indian custodian of an Indian child than the rights provided under this subchapter, the
State or Federal court shall apply the State or Federal standard.
Accordingly, the WSCIWA should not be preempted by the ICWA.
67
W ASH. REV. CODE § 13.38.020 (2013).
68
See In re Mahaney,146 Wash.2d at 887.
69
W ASH. REV. CODE §13.38.040(2) (2013) (emphasis added).
158
the use of practices in accordance with the federal Indian
child welfare act, this chapter, and other applicable law, that
are designed to accomplish the following: (a) Protect the
safety, well-being, development, and stability of the Indian
child; (b) prevent the unnecessary out-of-home placement of
the Indian child; (c) acknowledge the right of Indian tribes to
maintain their existence and integrity which will promote the
stability and security of their children and families; (d)
recognize the value to the Indian child of establishing,
developing, or maintaining a political, cultural, social, and
spiritual relationship with the Indian child's tribe and tribal
community; and (e) in a proceeding under this chapter where
out-of-home placement is necessary, to prioritize placement
of the Indian child in accordance with the placement
preferences of this chapter. 70
RCW 13.38.020’s mandate that only the WSICWA be applied in Indian
child custody cases, coupled with RCW 13.38.040(2)’s definition of the
“best interest of the Indian child,” leaves no room for doubt that
Washington State courts may not apply the Washington State’s traditional
family law “best interest of the child” test in Indian child custody
proceedings.
The WSICWA also statutorily overturns the Mahaney court’s
interpretation of a “qualified expert witness” whose testimony is necessary
in any foster care placement or termination of parental rights case. The
WSICWA established two procedures based on two different factual
scenarios:
Scenario 1: If the Indian child’s tribe has intervened or, in the case
that DSHS is the petitioner and the Indian child’s tribe had entered into an
agreement with DSHS, the petitioner must “notify the child's Indian tribe of
the need to provide a ‘qualified expert witness’ at least twenty days prior to
70
Id.
159
any evidentiary hearing in which the testimony of the witness will be
required;” 71
Scenario 2: If the child’s Indian tribe has not intervened, the child’s
Indian tribe has not entered into a local agreement with DSHS,72 or the
child’s Indian tribe has not responded to a request to identify a “qualified
expert witness” for the proceeding on a timely basis, the petitioner shall
provide a “qualified expert witness” who meets one or more of the
statutory requirements in a prescribed descending order of preferences.73
As a result, the WSICWA gives intervening Indian tribes an
opportunity to choose who exactly is a “qualified expert witness,” that is,
“knowledgeable regarding tribal customs as they pertain to family
organization or child rearing practices.”74 In addition, in a case where a
child’s Indian tribe fails to intervene, or has not timely responded to a
petitioner’s request, the WSICWA codifies, almost verbatim, the BIA
Guidelines’ definition of a “qualified expert witness.” The BIA Guidelines
define a “qualified expert witness” as someone who is either a recognized
member of the child’s Indian tribe knowledgeable in tribal customs and
childrearing; a lay expert who has substantial experience in the delivery of
child and family services to Indians, and has extensive knowledge of
customs and childrearing practices within the Indian child's tribe; or a
professional person having substantial education and experience in the
area of his or her specialty. 75 The WSICWA thus ensures that a
Washington State court hears testimony from someone who understands
Indian tribal customs and culture before there can be any breakup of an
Indian family or placement of an Indian child in foster care.
71
W ASH. REV. CODE §13.38.130(4)(a)(2013).
Provided DSHS is the petitioner.
73
W ASH. REV. CODE §13.38.130(4)(b)(2013)(the descending order of preferences are
found in (4)(b)(i-iv)).
74
W ASH. REV. CODE §13.38.130(2013).
75
See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
67,584, 67,593 (Nov. 26, 1979).
72
160
B.
The WSICWA’s Response to the ICWA
The WSICWA also seeks to cure other vague language found
throughout the ICWA. Both the WSICWA and the ICWA require “active
efforts” on the part of the petitioner to provide “remedial services and
rehabilitative programs” to Indian parents before there can be any breakup
of an Indian family. 76 The ICWA, however, fails to give any guidance on
what exactly are “active efforts,” and what exactly are “remedial and
rehabilitative programs” that must be provided to Indian parents.
The WSICWA defines “active efforts” for DSHS and other
petitioners.77 The WSICWA defines “active efforts” for DSHS as a duty to
work “with the parent, parents, or Indian custodian to engage them in
remedial services and rehabilitation programs to prevent the breakup of
the family beyond simply providing referrals to such services.” 78 For
petitioners other than DSHS, or those without statutory or contractual duty
to the Indian child, “active efforts” means a “documented, concerted, and
good faith effort” to facilitate “remedial and rehabilitative services.”79
Additionally, the WSICWA requires DSHS and other petitioners to
provide or facilitate “reasonably available and culturally appropriate
preventive, remedial, or rehabilitative services” for Indian parents,
including “services offered by tribes and Indian organizations whenever
possible.”80 Accordingly, the WSICWA differs significantly from the ICWA
by requiring petitioners to provide or facilitate “remedial or rehabilitative
services” for Indian parents that are geared towards Indian families and, if
possible, to involve Indian tribes in the provision of these services. 81
However, the WSICWA fails to enumerate what these “remedial and
rehabilitative services” are exactly. But given that each child custody case
is highly factual, specific enumeration of remedial services might have
been too constraining.
76
W ASH. REV. CODE §13.38.130(1)(2013); 25 U.S.C. § 1912(d)(2006).
W ASH. REV. CODE §13.38.40(1)(a)(2013).
78
W ASH. REV. CODE §13.38.40(1)(a)(2013)(the “active efforts” requirement for all other
petitioners is found in subsection (b)).
79
W ASH. REV. CODE §13.38.040(b)(2013).
80
Id.
81
Id.
77
161
The Court of Appeals of Washington has given some guidance on
this matter when it found that DSHS had complied with the “active efforts”
requirement in the ICWA82 by providing an Indian family “psychological,
parenting and substance abuse evaluations, parenting classes, mental
health counseling, skills training, financial assistance, a public health
nurse, and transportation.” Additionally, DSHS referred the parents to
culturally appropriate mental health services at the parents' request.” 83
Admittedly, the Court of Appeals was interpreting the “active efforts”
requirement of ICWA rather than the new requirement in the WSICWA,
but given the similarities of the statutes, the Court of Appeals decision is
still instructive.
The “active efforts” requirement clearly imposes upon DSHS
affirmative duties and the burden of showing to the Court that there was a
good faith effort on DSHS’s part to provide and engage Indian parents in
appropriate rehabilitative services, including services geared towards
Indian families, before there can be any breakup of an Indian family. More
simply put, petitioners have complied with the “active efforts” requirement
by showing the court that they have done everything they reasonably
could have done to prevent the breakup of the Indian family. Likewise,
petitioners other than DSHS must also show the court they that have
made a good faith and documented effort to facilitate Indian parents’
engagement in appropriate rehabilitative services before there can be any
breakup. By its language, the WSICWA mandates strict compliance with
the “active efforts” requirement.
The WSICWA reinforces the ICWA by ensuring state and federal
laws are the same in Indian child custody cases. WSICWA’s elimination of
the traditional “best interest of the child” test strongly limits Washington
State courts from placing Indian children with non-Indian foster or adoptive
parents. Furthermore, by defining a “qualified expert witness” the
Washington legislature has created bright-line standards which not only
conform to the BIA guidelines but also give Washington State courts
direction on the vague language found in the ICWA in a way that is in
82
25 U.S.C. § 1912(d)(2006)(the “active efforts” requirement in this section of the ICWA
is almost identical to W ASH. REV. CODE § 13.38.130(1)(2013)).
83
In re Welfare of L.N.B.L., 157 Wash. App. 215, 248 (2010).
162
better keeping with Congress’ explicitly stated goals. Moreover, the new
requirement for “qualified expert witnesses” not only places a burden on
the state to create a list of “qualified expert witnesses” but also requires
better coordination between DSHS and the Indian tribes in training and
selecting “qualified expert witnesses” among non-Indians.
Nevertheless, the WSICWA could have gone a bit further to cure
other vague language in the ICWA. Particularly, the WSICWA could have
defined when a court has “good cause” to refuse transfer of foster care
placement or termination of parental rights cases to an Indian tribe’s
jurisdiction,84 and when a court has “good cause” to deviate from the
foster and adoptive care placement preferences. 85
The Mahaney majority referenced the trial court’s refusal to transfer
the child custody proceeding to Indian tribal court for “good cause.” 86 The
trial court found that “good cause warranted that the matter remain in the
trial court” because of “concern for the safety of the children . . . [the]
special needs of the children, an . . . disruption of [the] children's lives” 87 In
addition, the trial court ordered a guardian ad litem to appear. 88 Neither
the majority nor the dissent weighed the merits of the trial court’s decision
since, “no assignment of error was made to the court's denial of the
motion to transfer.”89 A likely explanation for the appellants’ failure to
assign error to the refusal of the transfer is that they could not make a
good faith argument that the refusal was an abuse of discretion. Like the
“active efforts” requirement to provide remedial services, the “good cause”
requirement is highly fact intensive, and the Washington State Legislature
wanted to give broad discretion to trial courts. Still, it would have been
helpful to have some statutory guidance on the matter.
The Washington State Legislature, however, should have better
addressed the placement preferences for Indian children removed in
84
W ASH. REV. CODE §13.38.080(2013); 25 U.S.C. § 1911(b)(2006).
W ASH. REV. CODE §13.38.180(2013); 25 U.S.C. § 1915(2006).
86
See In re Mahaney,146 Wash.2d 878, 888 (2002).
87
Id.
88
Id.
89
Id.
85
163
emergency settings. 90 What happens often in a child custody proceeding
is that the Indian child is temporarily placed with a non-Indian foster family,
especially if the Indian child is domiciled off the reservation. Child custody
proceedings, like most legal proceedings, are protracted. Therefore, time
is a factor that potentially leads to the Indian child bonding to a non-Indian
foster family and assimilating, contrary to the policy of the ICWA.
The Supreme Court of Alaska has found that such attachment can
create “good cause” to deviate from the placement preferences. In Roy S.
v. State Department of Health & Social Services,91 the Alaska Supreme
Court relied on the expert testimony from the trial record of a child
psychologist that the Indian child “was very fully bonded with and
‘embedded’ in her foster family, and losing contact with them would be ‘a
very significant loss’ for her.”92 The Supreme Court of Alaska has also
previously affirmed decisions to deviate from the ICWA placement
preferences based on findings that “another separation is certain to cause
serious emotional harm and would create a significant likelihood that [the
child's] ability to attach would be irrevocably destroyed.” 93
It is of course not appropriate, in this article, to question an expert
of child psychology about the effects of separation anxiety. But in the case
of an emergency removal of an Indian child living off the reservation, it is
likely that the child will be placed with non-Indian foster care, with whom
the child may become attached. To avoid placing Indians with non-Indian
foster care or adoptive parents, the WSICWA, to better meet the stated
goals of the ICWA, should require that Indian children, even in an
emergency removal situation, be placed with Indian families, Indian
approved foster care families, or with non-Indian families sympathetic to
Indian culture.
90
W ASH. REV. CODE §13.38.180(2013).
In Roy S. v. State, Dept. of Health & Soc. Services, 278 P.3d 886 (Alaska 2012).
92
Id. at 892.
93
Id.
91
164
IV.
THE RECENT SUPREME COURT JURISPRUDENCE AND THE IMPORTANCE
OF THE WSICWA
The Supreme Court of the United States recently decided the case
Adoptive Couple v. Baby Girl94 in a 5-4 decision. The decision was very
unpopular with Indian tribes who saw the decision as undermining the
ICWA.95 The Supreme Court decision, however, is important because it
underscores the advantages of Washington State’s enactment of the
WSICWA. In addition to creating state legislation that is insulated from
unfavorable federal precedent, the WSICWA also dispels constitutional
concerns that Justice Thomas believed plagued the ICWA.
A.
Adoptive Couple v. Baby Girl
In Adoptive Couple, the majority held that the language of the
ICWA prevents unwed fathers who have never had custody of their
children from asserting custody rights normally guaranteed to them under
the ICWA.96 Furthermore, the majority held that in order for Indian tribes to
be given placement preferences under § 1915(a) of the ICWA they have
to actually file a petition for adoption rather than just intervening in the
child custody case. 97 The majority’s holding, however, seizes on a latent
ambiguity in the text of the ICWA, and in so doing undermines the intent of
the ICWA to keep Indian children with their biological parents and Indian
tribes. Additionally, the majority’s holding that an Indian tribe must actually
file a petition for adoption rather than just intervene in a child custody case
to be given placement preference under § 1915(a) of the ICWA is patently
absurd.
The United States Supreme Court granted certiorari to Adoptive
Couple from the Supreme Court of South Carolina.98 In Adoptive Couple,
94
Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552 (2013).
Rob Capriccioso, “Supreme Court Thwarts ICWA Intent in Baby Veronica Case,”
INDIAN COUNTRY TODAY (June 25, 2013),
http://indiancountrytodaymedianetwork.com/2013/06/25/supreme-court-thwarts-icwaintent-baby-veronica-case-150103 (last visited Nov. 24, 2013).
96
Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2562.
97
Id. at 2564-65.
98
See Adoptive Couple v. Baby Girl, 398 S.C. 625 (2012), reh'g denied (Aug. 22, 2012),
cert. granted, 568 U.S. _, 133 S. Ct. 831 (2013).
95
165
the biological father (the Father), who is a member of the Cherokee
Nation, had a child (Baby Girl) with his fiancée (the Mother), who was a
non-Indian.99 After the birth of Baby Girl, the Father and the Mother’s
relationship deteriorated and the two broke up. 100 After ending his
relationship with the Mother, the Father did not provide Baby Girl or the
Mother with any financial support, either during pregnancy or after Baby
Girl’s birth.101 When the Mother asked the Father whether he would rather
provide financial support or terminate his parental rights, the Father said
that he would rather terminate his parental rights. 102 Following this
communication the Mother put Baby Girl up for adoption through a private
adoption agency and chose Adoptive Couple (a couple from South
Carolina) to be the parents of Baby Girl.103 Upon receiving notice of the
adoption from Adoptive Couple and the private adoption agency, the
Father initially agreed but later revoked his waiver of parental rights and
sought custody of Baby Girl in South Carolina State Family Court. 104
Additionally, the Cherokee Nation intervened in the South Carolina State
Family Court adoption proceeding for Baby Girl.105
The South Carolina State Family Court held that under the ICWA
the Father, as Baby Girl’s Indian parent, was entitled to custody of Baby
Girl because Adoptive Couple could not prove, per § 1912(f) of the ICWA,
that custody by the Father would result in Baby Girl suffering serious
emotional or physical damage. 106 The South Carolina Supreme Court
affirmed.107 The United States Supreme Court granted certiorari and
reversed and remanded the South Carolina Supreme Court decision. 108
99
Id.
101
Id.
102
Id.
103
Id.
104
Id. at 2558-59.
105
Id. at 2564-65.
106
Id. at 2559.
107
Id.
108
Id. at 2559-65.
100
166
The majority109 held that the text of § 1912(f) of the ICWA only
prevents termination of parental rights when the termination would disturb
“continued custody” of the child.110 Simply put, an Indian parent must have
had physical or legal custody under state law of the Indian child since
birth, or since before the child custody proceeding, in order to qualify for
protections under the ICWA.111 The majority found that the Father’s
absence from Baby Girl’s care, as well as his failure to claim paternity of
Baby Girl under South Carolina law, precluded him from seeking Baby
Girl’s adoption and invoking his rights under the ICWA.112
The dissent, however, did not find the majority’s reading of
§ 1912(f) of the ICWA to be so unambiguous. Justice Scalia dissented on
the grounds that “continued” is defined as "[p]rotracted in time or space,”
and therefore, it does not unequivocally follow that § 1912(f) of the ICWA
applies only to initial or temporary custody. 113 Justice Sotomayor’s dissent
criticizes the majority for coming to a decision “by plucking out of context a
single phrase from the last clause of the last subsection of the relevant
provision, and then builds its entire argument upon it.” 114
Rather than relying, as the majority did, on state law definitions of
custody for a federal statute when the federal statute is explicitly meant to
establish “minimum Federal standards for …the placement of [Indian]
children in foster or adoptive homes,” 115 the court should have found, as
the dissent found, that the ICWA’s definition section qualified the Father
as a “parent.”116
His paternity had been established during the
proceeding, and he was therefore entitled to protection under the ICWA
for his “parent-child relationship” with Baby Girl.117 The dissent further
demonstrated that multiple provisions in the ICWA, like those respecting
109
Authored by Alito, and joined by Breyer, Kennedy, Thomas, and Chief Justice
Roberts.
110
Id. at 2557.
111
Id. at 2562.
112
Id.
113
Id. at 2571-72 (quoting W EBSTER'S NEW INTERNATIONAL DICTIONARY 577 (1950)).
114
Id. at 2572.
115
25 U.S.C § 1902 (2006) (emphasis added).
116
117
Id.
167
notice,118 the right to counsel,119 and the right to inspect reports and
documents filed with the court,120 refer to and focus on the defined
“parent” standard rather than state custody law standards. 121
Looking at both arguments, the dissent makes a stronger case for
its reading of the statute and the ICWA. The majority’s use of state
custody law in applying the ICWA is inconsistent with United States
Supreme Court precedent, which emphasizes that the ICWA was explicitly
enacted to create a uniform federal standard for Indian child placement. 122
Furthermore, the majority’s holding undermines the explicit policy goals of
the ICWA.
The majority writes that denying non-custodial parents’ protection
under the ICWA is not inconsistent with the policies of the ICWA, which
was designed to prevent “removal” of Indian children from Indian
families.123 But the majority is once again taking the ICWA out of context.
ICWA explicitly states that its purpose is to “establish minimum Federal
standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect
the unique values of Indian culture.” 124 But a holding that applies state
custody law to determine rights under the ICWA, and a holding that goes
out of its way to cut off Indians’ parental rights, both undermines
Congress’ clearly stated goal of creating minimum federal standards and
placing Indian children in either Indian homes or homes that foster the
Indian child’s heritage.
The second part of the majority’s holding, that the Cherokee
Nation’s failure to file an adoption petition precluded its rights to placement
preference under § 1915(a) of the ICWA, is a pedantic reading of the law.
It was reasonable for the Indian tribe to be given placement preference
118
25 U.S.C. § 1912(a)(2006).
25 U.S.C. § 1912(b)(2006).
120
25 U.S.C. § 1912(c)(2006).
121
Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2574-75.
122
See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989).
123
Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2555; See 25 U.S.C.
§1901(4)(2006).
124
25 U.S.C § 1902(emphasis added)(2006).
119
168
just by intervening in the child custody proceeding. After all, the Cherokee
Nation intervened in a child custody case. It makes sense that they were
intervening in order to take custody of the child by placing Baby Girl with a
Cherokee family subject to their own tribal court proceedings. To hold
otherwise would be the equivalent of thinking people make doctors’
appointments just to sit in the waiting room. Accordingly, the majority
should have found that when an Indian tribe intervenes in any child
custody proceeding for an Indian child of their tribe, the state court should
view the intervention as an automatic petition for adoption.
B.
The WSICWA and Adoptive Couple
The United State Supreme Court decided Adoptive Couple after the
passage of the WSICWA, preventing the Washington Legislature from
directly addressing the case by either changing or keeping the “continued
custody” language of the ICWA. Nevertheless, there are still added
protections in the statutory language of the WSICWA and other
Washington State family law statutes that guard against the decision
reached in Adoptive Couple. Furthermore, because the WSICWA is state
legislation, there should be no concerns about the constitutionality of the
WSICWA as compared to the ICWA as an application of Congress’ power
under the Indian Commerce Clause. So while Adoptive Couple has a
profound effect on Indian child custody cases tried pursuant to the ICWA
throughout the United Sates, the case should have no effect on Indian
child custody cases tried in Washington State.
In South Carolina and other states, unwed fathers lose their right to
legal custody125 if they fail to file a claim of paternity with the state’s father
registry agency before a party files either a petition for adoption or petition
for termination of parental right for the child. 126 Unlike South Carolina and
many other states, Washington family law liberally grants legal custody to
unwed fathers once paternity has been acknowledged or established,
regardless of any initiated legal proceedings. 127 The WSICWA extends
125
In other words, the right to notice and to be joined as a party to legal proceedings
concerning the child.
126
S.C. CODE ANN. § 63-9-820(D)(F)(2013).
127
W ASH. REV. CODE §26.26.320(2013).
169
this same protection for unwed Indian fathers. 128 Under the WSICWA and
other state family law statutes, once the unwed Indian father has
acknowledged or established paternity, Washington law confers upon him
“all of the rights and duties of a parent.”129 This means that the unwed
Indian father in Washington State has legal custody of the child, and must
be given notice and joined as a party to any child custody proceeding. 130
Thus, should the facts of Adoptive Couple occur in Washington State, the
father would have legal custody of the Indian child under the WSICWA
and Washington State family law, and thus, would have been able to keep
custody of his child. So while the ICWA and WSICWA both contain
identical language as to the “continued custody” language found in §
1912(f) and RCW 13.38.130, the WSICWA extends legal custody to
unwed fathers who acknowledge or establish paternity.
Finally, the WSICWA accomplishes the goals of the ICWA while
obviating Justice Thomas’ constitutional concerns. In his concurrence,
Justice Thomas questioned the applicability of the Indian Commerce
Clause131 as a justification for the ICWA.132 He reasoned that because the
Indian Commerce Clause only gives Congress the power to regulate tribes
and not states, and because child custody proceedings cannot be
considered a form of “commerce,” therefore “there is simply no
constitutional basis for Congress' assertion of authority over such
proceedings.”133
Justice Thomas, who is a strict constitutional textualist, is
concerned that the ICWA regulates state family law proceedings, an area
of “traditional state concern,” without any enumerated authority granted to
Congress by the Constitution to pass such a law. 134 Justice Thomas would
128
W ASH. REV. CODE §13.38,040(13)(2013).
W ASH. REV. CODE §26.26.320(2013).
130
W ASH. REV. CODE §26.26.190(2013)(if a parent relinquishes or proposes to relinquish
for adoption a child, the other parent shall be given notice of the adoption proceeding and
have the rights provided under the provisions of chapter W ASH. REV. CODE § 26.33
(2103)); W ASH. REV. CODE § 26.33.110 (2013)(right of notice to all parents and inform
alleged father of his right to file a claim of paternity within twenty days of service).
131
25 U.S.C § 1901(1)(2102).
132
Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552, 2571 (2013).
133
Id. at 2565.
134
Id. at 2566.
129
170
agree, however, that the WSICWA obviates those concerns. The
WSICWA is state legislation and is a proper exercise of Washington
State’s police power.
CONCLUSION
The United States Supreme Court majority’s conclusion in the
Holyfield case is instructive to understanding the ICWA. While conceding
that “a separation [between the Indian children and their adoptive mother]
at this point would doubtless cause considerable pain,” the Holyfield
majority concluded, “[w]hatever feelings we might have as to where the
twins should live, however, it is not for us to decide that question.” 135 The
Court continues, “[t]he law places that decision in the hands of the…tribal
court” and “we must defer to the experience, wisdom, and compassion of
the…tribal courts to fashion an appropriate remedy.” 136
After all, why should a state or federal court be afraid to give
jurisdiction of a child custody case to a tribal court? Is there any reason to
believe that a tribal court will not make an equitable and just decision? In
fact, following the Holyfield case, the Choctaw Nation tribal court did just
that. The tribal court allowed the children to remain with their adoptive
family, saying that “it would have been cruel to take them from the only
mother they knew.”137 At the same time, the court ordered that the children
stay in contact with their extended family and tribe. 138 Tribal courts are in a
better position and often have more flexibility to determine the welfare of
the Indian children by nurturing the Indian children’s relationship to their
Indian family and heritage.
The statutory scheme of the WSICWA reinforces the ICWA’s stated
policy of preserving the unique values of Indian culture by requiring that
Indian tribes be given exclusive jurisdiction over Indian child custody
proceedings. In rare cases where state courts retain jurisdiction over the
child custody case, the WSICWA prescribes deference to the Indian tribe’s
input as to the child’s relationship to tribal culture and customs. At all
135
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 53 (1989).
Id. at 53 (quoting In re Adoption of Halloway, 732 P.2d 962, 972 (1986)).
137
See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 30.
138
Id.
136
171
stages of the proceeding tribal sovereignty is to be preserved by the
WSICWA’s notice and intervention provisions.
Additionally, The WSICWA serves as a model for sister states to
adopt. In addition to creating greater protections for Indian tribes and
children, the WSICWA is state legislation which obviates any constitutional
concerns over the scope of the Indian Commerce Clause,139 and places
Indian child custody proceedings firmly within the realm of state and Indian
tribal court law and jurisprudence.
The WSICWA makes great strides in protecting Indian tribal
sovereignty, tribal integrity, and continued tribal existence by letting Indian
tribes and their members either decide the appropriate remedies for Indian
child custody proceedings, or give Indian tribes a voice in state courts.
The WSICWA both ensures that the policy goals of the ICWA are followed
and strengthens the ties between Indian courts and state courts in acting
in the “best interest of the Indian children.”
139
Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552, 2571 (2013) (Thomas, J.
concurring).
172
ASSERTING TREATY RIGHTS TO HARNESS THE WIND ON
THE GREAT LAKES
Gerald Carr
INTRODUCTION
Wind energy is a booming business in America today. As
policymakers push alternative energy agendas, industry and government
agencies want the process of siting and permitting wind farms to be
shorter and more efficient. The significant delays of the country’s first
offshore wind energy project, Cape Wind, is a glaring example of what
needs be avoided.1 As a result, the federal government and states have
partnered to facilitate development of offshore wind resources in the
Atlantic and the Great Lakes. In the rush to develop, important
stakeholders have been left out of the discussions—Great Lakes treaty
tribes. This paper discusses the legal framework emerging for Great
Lakes wind energy permitting, and the legal challenges opponents may
raise in resisting development of offshore wind energy. More importantly, I
argue that treaty tribes, Michigan treaty tribes in particular, could assert
stakeholder status in the development of Great Lakes wind resources.

Gerald Carr is a third year student in the Indigenous Law Program at Michigan State
University College of Law. He holds a Ph.D. in Cultural Anthropology, specializing in the
languages and cultures of Native North America. Thanks to Wenona Singel for thoughtful
guidance through the development of this paper; thanks especially to Barbra Meek.
1
Originally proposed in 2001, Cape Wind has been mired in litigation and regulatory
review ever since. The struggle is ongoing. Opponents of the project include the
Wampanoag Tribe of Gayhead (Aquinnah), whose complaint is discussed infra, and the
Alliance to Protect Nantucket Sound, an umbrella organization covering numerous
groups individually opposing the project, such as residents, fishermen, towns, and
environmental groups. The delays have threatened the financing of the project and
increased overall costs, threatening the viability of the project itself. See Tom Zeller Jr.,
Cape Wind: Regulation, Litigation and The Struggle To Develop Offshore Wind Power In
The U.S., HUFFINGTON POST (February 23, 2013, 10:41 AM),
http://www.huffingtonpost.com/2013/02/23/cape-wind-regulation-liti_n_2736008.html (last
visited Dec. 30, 2013) and Gale Courey Toensing, Cape Wind: Justice Department
Urges Swift Lawsuit Resolution Before Tax Breaks Expire, INDIAN COUNTRY TODAY MEDIA
NETWORK (April 25, 2013), http://indiancountrytodaymedianetwork.com/2013/04/25/capewind-justice-department-urges-swift-lawsuit-resolution-tax-breaks-expire-149020 (last
173
These tribes could do this not only because their treaty rights will be
affected, but also because tribes could consider Great Lakes wind energy
a natural resource reserved to them by treaty. Asserting a reserved right in
the production and transmission of energy generated from wind resources
on Lake Michigan would expand treaty rights and further affirm and
enhance tribal sovereignty.
The first section of this article provides an overview of wind energy
development in the United States and introduces the subject of offshore
wind energy on the Great Lakes. In the second section, I discuss the
emerging regulatory framework for offshore wind energy development
generally. The third section discusses the legal challenges to wind farms,
which provide recourse to tribes to protect their interests in the Great
Lakes from negative impacts due to development. In section four, I
present an overview of Indian treaties and treaty rights. Then, in section
five, a close examination of the treaty rights reserved on Lake Michigan by
Michigan treaty tribes. Lastly, in section six, I apply these recognized
treaty rights and build an argument for asserting treaty rights to harness
the wind on the Great Lakes.
I.
OVERVIEW OF WIND ENERGY DEVELOPMENT IN THE UNITED STATES
This section discusses the growth of the wind energy industry, the
reasons for its favored position in federal energy policy, and notes the
development of wind energy resources on tribal lands. Furthermore, this
section introduces federal support of offshore wind energy development in
general and on the Great Lakes.
Since the first wind farms were built in the California deserts in the
1980s, the wind energy industry has grown significantly. In the past four
years, wind energy production has more than doubled and in 2012 wind
energy became the leading source of new energy generated in the United
States2. There are over 60,000 megawatts (MW) of installed wind power
capacity, generated by 45,000 utility-scale turbines. This is enough
2
Reports Show Record High U.S. Wind Energy Production and Manufacturing, U.S.
DEP’T OF ENERGY, (Aug. 6, 2013, 12:00PM), http://energy.gov/eere/articles/reports-showrecord-high-us-wind-energy-production-and-0 (last visited Nov. 24, 2013).
174
electricity to power 15 million American homes. Thirty-eight states have
wind power generating facilities. Texas leads the way in generation, with
more than twice the output of second-place California.3 Industry analysts
estimate that the United States has enough onshore wind energy
resources to power the entire country ten times over, and enough offshore
resources to power it thirteen times over.4
A.
Wind Energy as a Leading Policy Choice
The phenomenal growth of wind energy is a result of the United
States need for energy independence and energy security. President
Obama’s proposed Clean Energy Standard seeks to generate 80 percent
of the country’s electricity from clean energy, largely wind, by the year
2035.5 Toward that end, the Department of the Interior is committed to
issuing permits for 10,000 MW of renewable power generation on public
lands and offshore waters by the end of 2012. 6 While the federal
government has used direct investment and tax incentives to promote its
goals, many states are using the Renewable Portfolio Standard (RPS) to
achieve the same ends. An RPS obligates power companies in a state to
provide a set portion of their electricity sales from renewable energy
sources. Around the Great Lakes, Michigan and Wisconsin are using the
RPS to meet their goal of 10 percent of energy from renewable sources by
2015; Ohio has a goal of 12.5 percent by 2025, Illinois of 25 percent by
3
AMERICAN W IND ENERGY ASSOCIATION,
http://www.awea.org/resources/statefactsheets.aspx?itemnumber=890 (last visited Nov.
24, 2013).
4
Id. See also, Offshore Wind Energy, BUREAU OF OCEAN ENERGY MGMT.
http://www.boem.gov/Renewable-Energy-Program/Renewable-Energy-Guide/OffshoreWind-Energy.aspx (last visited Nov. 24 2013).
5
Blueprint For A Secure Energy Future, THE WHITE HOUSE, (March 30, 2011),
http://www.whitehouse.gov/sites/default/files/blueprint_secure_energy_future.pdf (last
visited Nov. 24, 2013). See also U.S. DEP’T OF ENERGY, 20% W IND ENERGY BY 2030:
INCREASING W IND ENERGY'S CONTRIBUTION TO U.S. ELECTRICITY SUPPLY (2008), available
at http://www1.eere.energy.gov/wind/pdfs/41869.pdf (last visited Dec. 30, 2013)
(hereinafter U.S. DEP’T OF ENERGY, W IND ENERGY BY 2030).
6
Id at 36.
175
2025, New York of 25 percent by 2013, and Pennsylvania of 18 percent by
2020. Indiana has no RPS program.7
Wind energy is favored because it is clean energy, domestically
produced, and entirely renewable and sustainable. Environmentalists who
support wind energy (and not all do) point out that wind power requires no
fuel, does not release greenhouse gases or other pollutants, does not
consume water, generates no hazardous waste, and carries no threat of
disastrous spills.8 Industry advocates add that it has become costcompetitive due to advances in technology offers the advantage of
predictable costs—because it is untethered to volatile fuel prices—and is
supporting job growth.9
B.
Wind Energy on Tribal Lands
Wind energy is also in full development on tribal lands. 10 The
Navajo Nation is constructing an 85 MW wind project at the Big Boquillas
Ranch. Located within Navajo lands, its purpose is to deliver energy to
customers on and off the reservation. 11 For the project, they have
partnered with Edison Mission of Irvine, California, who owns 49 percent
of the venture (the remaining ownership stake is with the tribe). 12 Tribal
energy projects are not only a matter of economic development or
diversification; in many parts of Indian country, they are for the purpose of
building infrastructure. On the Navajo Nation reservation, for instance,
7
Renewable Portfolio Standards, M.J. BECK CONSULTING LLC,
http://mjbeck.emtoolbox.com/?page=Renewable_Portfolio_Standards (last visited Nov.
24, 2013).
8
Ronald H. Rosenberg, Diversifying America’s Energy Future: The Future of Renewable
Wind Power, 26 VA. ENVTL. L.J. 505, 522-24 (2008).
9
U.S. DEP’T OF ENERGY, W IND ENERGY BY 2030, supra note 5, at 107-110.
10
See generally PETER MEISEN, GLOBAL ENERGY NETWORK INSTITUTE, RENEWABLE
ENERGY ON TRIBAL LANDS, available at
http://www.geni.org/globalenergy/research/renewable-energy-on-tribal-lands/RenewableEnergy-on-Tribal-Lands.pdf (last visited Nov. 24, 2013). The Department of Energy also
maintains a Tribal Energy Program, which provides financial and technical assistance for
renewable energy projects on tribal lands; see Tribal Energy Program, U.S DEP’T OF
ENERGY, http://apps1.eere.energy.gov/tribalenergy/index.cfm (last visited Nov. 24, 2013).
11
Alastair Lee Bitsoi, Wind Project Holds Promise for Tribe, NAVAJO TIMES (Aug. 4, 2011),
http://navajotimes.com/news/2011/0811/080411wind.php (last visited Nov. 24, 2013)
(hereinafter NAVAJO TIMES, Wind Project).
12
Id.
176
there are an estimated 16,000 homes without access to electricity. 13
Eventually, the Navajo Nation plans to expand the Big Boquillas Ranch
facility to a 200 MW capacity, and develop wind energy (as well as solar
energy) at another site.14 While the project is not intended to address
infrastructural issues directly, using revenue from the project to fund rural
electrification is one of its goals. 15
The Navajo are not alone. In Maine, the Passamaquoddy Tribe of
Indian Township and Pleasant Point has partnered with a Midwest energy
company to build a wind farm at a decommissioned United States Air
Force radar site that they plan to purchase. 16 The Cheyenne and Arapaho,
as well as several other tribes in Oklahoma, either have or are building
facilities.17 In September of 2012, the Senate Indian Affairs Committee
approved the Indian Tribal Energy Development and Self-Determination
Act Amendments of 2011.18 One of the goals of the legislation is to
facilitate Secretarial approval of energy projects, including wind, on Indian
lands.19
C.
Federal Support of Offshore Wind Energy Development
Even greater enthusiasm is held for the development of America’s
offshore wind energy resources. Offshore wind is a superior resource
13
NAVAJO TRIBAL UTIL. AUTHORITY, http://www.ntua.com/ (last visited Nov. 24, 2013).
NAVAJO TIMES, Wind Project, supra note 11.
15
Terry W. Battiest, NAVAJO NATION RENEWABLE ENERGY INITIATIVES 17 available at
http://www4.nau.edu/tribalclimatechange/resources/docs/res_830BattiestNavajo.pdf (last
visited Nov. 24, 2013). The report notes that the Nation is planning to use small scale
solar units to provide off-grid residential power in some locations.
16
Sharon Kiley Mack, Passamaquoddy Tribe Plans $120M Wind Farm In Washington
County, BANGOR DAILY NEWS (Jan. 26, 2012, 5:20 PM),
http://bangordailynews.com/2012/01/26/business/passamaquoddy-tribe-plans-120mwind-farm-in-washington-county/ (last visited Nov. 24, 2013).
17
Cheyenne and Arapaho Tribes Purchase Wind Turbines to Power Reservation, INDIAN
COUNTRY TODAY MEDIA NETWORK (Apr. 27, 2011),
http://indiancountrytodaymedianetwork.com/article/cheyenne-and-arapaho-tribespurchase-wind-turbines-to-power-reservation-29819 (last visited Nov. 24, 2013).
18
Senate Indian Affairs Committee Approves Indian Energy Bill, INDIANZ (Sept. 20, 2012),
http://www.indianz.com/News/2012/007159.asp (last visited Nov. 24, 2013).
19
Barrasso Indian Tribal Energy Bill Moves Forward, JOHN BARRASSO, (Sept. 13, 2012),
http://barrasso.senate.gov/public/index.cfm?FuseAction=PressOffice.PressReleases&Co
ntentRecord_id=c143f275-b7f0-89f7-87cc-2790fefd2fa9 (last visited Nov. 24, 2013).
14
177
because there are steadier winds and higher wind speeds across open
water than over land, which leads to increased generating capacity. 20
Offshore siting would place generating facilities closer to population
centers (our largest cities are coastal), which reduces transmission
costs.21 Additionally, engineers can scale-up offshore projects (larger
turbines and larger wind farms) because they do not compete for land. 22
However, offshore wind farms have higher construction and maintenance
costs, and the technology for operation in marine environments is not as
advanced.23 While there is currently no offshore wind generation in the
United States, the country’s first offshore lease was issued in 2010, for the
Cape Wind facility on Nantucket Sound.24 The facility will consist of 130
turbines with a combined generating capacity of 420 MW.
In 2010, the Secretary of the Interior launched the Smart From The
Start initiative, which was intended to facilitate siting, leasing, and
construction of new projects. 25 It does so by identifying “wind energy
areas” along the Outer Continental Shelf (OCS), and launching
environmental assessments (EAs) evaluating the impact of authorizing
leases and approving site assessment plans in those areas, so that a
more efficient permitting process can unfold. 26
In 2011, Secretary of the Interior Ken Salazar and Secretary of
Energy Steven Chu released their joint plan to develop 10 gigawatts of
offshore wind capacity by 2020 and 54 gigawatts by 2030. 27 This plan
comes with funding to incentivize development, and a promise of
20
U.S. DEP’T OF ENERGY, A NATIONAL OFFSHORE W IND STRATEGY: CREATING AN OFFSHORE
W IND ENERGY INDUSTRY IN THE UNITED STATES 6-7 (2011), available at
http://www1.eere.energy.gov/wind/pdfs/national_offshore_wind_strategy.pdf (last visited
Nov. 24, 2013) (hereinafter NATIONAL OFFSHORE W IND STRATEGY).
21
Id. at 6.
22
Id.
23
Id. at 7.
24
CAPE W IND, http://www.capewind.org/article26.htm (last visited Nov. 24, 2013).
25
SMART FROM THE START FACTSHEET, DEP’T OF INTERIOR, available at
http://www.doi.gov/news/pressreleases/upload/02-07-10-wea-fact-sheet.pdf (last visited
Nov. 24, 2013).
26
Id.
27
NATIONAL OFFSHORE W IND STRATEGY, supra note 20 at iii.
178
removing obstacles in the path of development. 28 The major obstacles to
wind energy include a need for developments in technology and
infrastructure, a lack of data on environmental impacts for such projects,
and an absence of regulatory framework.29
These initiatives were followed by the Department of
Energy’s Offshore Wind Innovation and Demonstration Initiative
(OSWInD), which seeks to “[r]educe the cost of energy through technology
development to ensure competitiveness with other electrical generation
sources [and r]educe deployment timelines and uncertainties limiting
United States offshore wind project development,” in both the Atlantic
Ocean and the Great Lakes.30 The hope is to avoid delays similar to those
faced by the Cape Wind project by, among other things, promoting public
acceptance of the wind farms, initiating the public consultation process,
and accelerating and streamlining the permitting process. 31
A streamlined permitting process can be achieved by increasing
coordination and data sharing between agencies, reducing the regulatory
burden for projects facing similar questions, developing best management
practices for siting, and identifying needed regulatory reforms and
statutory amendments.32 With respect to environmental assessments,
OSWInD intends a coordinated data gathering effort to reduce duplicative
assessments by interested parties and agencies. In doing so, they
recognize that the development of offshore wind energy will require much
original research that is likely to be time consuming and expensive. 33
D.
Developing Wind Energy on the Great Lakes
While other Atlantic projects are being discussed, government and
industry are eyeing the Great Lakes as the next area for major
development. The State of Michigan, for instance, established the
Michigan Great Lakes Wind Council as an advisory body to make
28
Id.
Id. at 10.
30
Id. at 14.
31
Id. at 27.
32
Id. at 29.
33
Id. at 17.
29
179
recommendations related to offshore wind development in Michigan. 34 The
Public Service Commission of Wisconsin has studied the feasibility of wind
energy development on Lakes Michigan and Superior,35 and the Great
Lakes Commission has explored the issue for Michigan and Wisconsin. 36
These initial studies indicated a need for partnering between states and
federal agencies. In 2012, a collaborative framework was established
through a Memorandum of Understanding (MOU) signed by five states
and ten federal agencies. 37 (Noticeably absent from the MOU is the State
of Wisconsin.) The MOU created the Great Lakes Offshore Wind Energy
Consortium, an entity whose purpose is to “support the efficient,
expeditious, orderly and responsible review of proposed offshore wind
energy projects in the Great Lakes by enhancing coordination among
federal and Great Lakes state regulatory agencies.” 38 It anticipated a
“regulatory roadmap” within fifteen months of the signing. 39
II.
THE REGULATORY FRAMEWORK
As the many initiatives discussed above attest, wind energy
projects face great regulatory uncertainty. Numerous state and federal
entities have authority over siting and permitting of offshore wind facilities,
yet no clear regulatory framework exists. Furthermore, the regulatory
34
REPORT OF THE MICHIGAN GREAT LAKES WIND COUNCIL, GREAT LAKES W IND COUNCIL 1
(Sep. 1, 2009) available at http://www.michiganglowcouncil.org/GLOW%20Report%2091-09_FINAL.pdf (last visited Dec. 20, 2013).
35
PUBLIC SERVICE COMMISSION OF W ISCONSIN, HARNESSING W ISCONSIN’S ENERGY
RESOURCES: AN INITIAL INVESTIGATION INTO GREAT LAKES W IND DEVELOPMENT 9 (2009)
available at http://psc.wi.gov/renewables/documents/WOWreport11509.pdf (last visited
Nov. 24, 2013) (hereinafter HARNESSING W ISCONSIN’S ENERGY RESOURCES).
36
LESLIE GARRISON, GREAT LAKES COMMISSION, PREPARATION FOR OFFSHORE W IND IN LAKE
MICHIGAN: INFORMATION SOLICITATION OPTIONS FOR MICHIGAN AND W ISCONSIN 2 (2009)
available at http://wiki.glin.net/download/attachments/950462/Information-SolicitationOptions-Offshore-Wind-Lake-Michigan_FINAL.pdf?version=1 (last visited Dec. 20,
2013)(the report indicates that Lake Michigan has the greatest wind resources).
37
Memorandum of Understanding Among The White House Council on Environmental
Quality to Create a Great Lakes Offshore Wind Energy Consortium to Coordinate Issues
of Regional Applicability for the Purpose of Promoting the Efficient, Expeditious, Orderly
and Responsible Evaluation of Offshore Wind Power Projects in the Great Lakes 1
(2012) available at
http://www1.eere.energy.gov/wind/pdfs/great_lakes_offshore_wind_energy_consortium_
mou.pdf (last visited Dec. 30, 2013) (hereinafter MOU).
38
Id.
39
Id.
180
framework developing for the Atlantic coastal waters cannot simply be
transplanted to the Great Lakes. In this section, I discuss the regulatory
framework emerging for offshore wind energy development, focusing on
permitting agencies and environmental review. I first discuss regulations
for offshore development in ocean waters because these are expected to
provide the model for regulation of the Great Lakes.
A.
Regulation of Federal Ocean Waters: A Model for the
Great Lakes
In 2009, The Department of the Interior’s Bureau of Ocean Energy
Management, Regulation and Enforcement (BOEMRE) finalized
regulations for the issuance of leases for renewable energy on the OCS. 40
BOEMRE serves as the lead agency in permitting offshore wind energy
projects on the OCS. 41 The Energy Policy Act of 2005 authorized the
Secretary of the Interior to grant leases on the OCS for alternative energy
projects.42 The Secretary delegated this authority to BOEMRE, which
promulgated regulations.43 Leases may be issued to any person,
corporation, or government demonstrably capable of “constructing,
operating, maintaining, and decommissioning” an alternative energy
project on the OCS.44
BOEM45 uses a competitive bidding process to grant leases,
initiated by publishing a request for interest in the Federal Register. 46 Two
kinds of leases may be issued, a 25-year commercial lease for the
generation and transmission of electricity, and limited leases, which allow
40
Hanna Conger, A Lesson From Cape Wind: Implementation of Offshore Wind Energy
in the Great Lakes Should Occur Through Multi-State Cooperation, 42 LOY. U. CHI. L.J.
741, 758 (2011).
41
A NATIONAL OFFSHORE W IND STRATEGY, supra note 20, at 10.
42
Energy Policy Act of 2005, Pub. L. No. 109-58 119 Stat, 594 § 388 (2005). See 30
C.F.R. § 285.100 (2011).
43
Id.
44
Conger, supra note 40, at 762.
45
On October 1, 2011, BOEMRE, formerly the Minerals Management Service (MMS),
was replaced by the Bureau of Ocean Energy Management (BOEM) and the Bureau of
Safety and Environmental Enforcement (BSEE). The former is involved in renewable
energy development.
46
30 C.F.R. § 285.201 (2013).
181
only research, data collection, and testing at a site for a five-year period.47
After the granting of a lease, developers must submit extensive plans to
BOEM prior to construction. BOEM uses these plans to assess whether
the project will conform to applicable law, not interfere with other uses of
the OCS, and confirm compliance with environmental regulations. 48
BOEM’s regulations were promulgated for OCSLA, and the
federally controlled waters of the Atlantic, and therefore do not extend to
state-controlled bottomlands, like those of the Great lakes. This regulatory
uncertainty is expected to be addressed by the Great Lakes Offshore
Wind Consortium, which will, in the least, facilitate coordination among the
federal and state agencies that may participate in the permitting, and the
extensive environmental review that must take place. 49 But exactly who
would control the permitting process is yet to be determined.
B.
Federal Statutes and Agencies Implicated in Offshore
Wind Energy Permitting
The United States Army Corps of Engineers (USACE) has authority
under § 10 of the Rivers and Harbors Act to issue permits for construction
in navigable waters of the United States. 50 USACE also has authority
under the Clean Water Act to issue permits for dredging and filling of any
United States waters, including the Great Lakes. 51 Wind farm construction
would entail these activities, so these Acts could be used to regulate and
permit wind farm development in the Great Lakes. However, states with
Great Lakes bottomlands have significant authority to govern their
coastlines and water; in fact, they have greater control over their waters
and coastlines than ocean-bordering states do over theirs.52 This is
because Great Lakes states control the water all the way to the Canadian
border. In other words, there is no point at which the Great Lakes become
47
Conger, supra note 40, at 762.
Id.
49
MOU, supra note 37.
50
33 U.S.C. § 403 (2006); see also Conger, supra note 40 at 781.
51
33 U.S.C. § 1344 (2006).
52
Katherine Saks, Great Lakes, Great Potential: Examining the Regulatory Framework
for Wind Farms in the Great Lakes, 35 CAN.-U.S. L.J. 209, 233 (2011).
48
182
federal waters. States also have approval authority under the Clean Water
Act for projects impacting their water quality. 53
A National Offshore Wind Strategy lists the statutes and agencies
involved in offshore wind permitting. 54 First and foremost of these is the
National Environmental Policy Act (NEPA).55 NEPA requires that federal
agencies prepare an Environmental Impact Statement (EIS) for any “major
federal action significantly affecting the quality of the human environment,”
both immediately and cumulatively. 56 The environmental effects to be
considered in an EIS include impacts on social, cultural, and economic
resources, as well as natural resources.57 The preparation of the EIS is
the only enforceable duty under NEPA; no substantive environmental
obligations are imposed. 58 NEPA ensures that an agency contemplating
action will have environmental data to consider, including all reasonable
alternatives to the proposed action. But it does not mandate that those
environmental factors identified in reports actually guide decision making,
merely that the agency take a “hard look” at environmental consequences
before taking major action. 59 Other values or factors, perhaps nonenvironmental ones, could be more influential in decision making. 60
53
33 U.S.C. § 1342 (b) (2006).
A NATIONAL OFFSHORE W IND STRATEGY, supra note 20, at 11-12. The statutes and
agencies are: National Environmental Policy Act of 1969, Endangered Species Act of
1973, Marine Mammal Act of 1972, Magnuson-Stevens Fishery Conservation and
Management Act, Marine Protection, Research, and Sanctuaries Act of 1972, National
Marine Sanctuaries Act, Coastal Zone Management Act of 1972, National Historic
Preservation Act of 1966, Federal Aviation Act of 1958, Federal Power Act, Ports and
Waterways Safety Act, Rivers and Harbors Act of1899, Outer Continental Lands Act of
1953, Clean Water Act, and Clean Air Act. Not all will be discussed here.
55
42 U.S.C. § 4321(2006). Binding regulations concerning NEPA were issued by the
Council on Environmental Quality (CEQ), 40 C.F.R. 1500 (2013).
56
42 U.S.C. § 4332 (2013); “cumulative impact” is defined as “the impact on the
environment which results from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions regardless of what agency
(Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7
(2013).
57
40 C.F.R. § 1508.14 (2013).
58
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
59
Id.
60
Id.
54
183
Under any agency’s NEPA plan, a lead federal agency in an action
impacting the human environment must coordinate with other federal
agencies that have jurisdiction or special expertise.61 For offshore wind
projects, this would require coordination with the many agencies already
listed on the MOU creating the Great Lakes Offshore Wind Energy
Consortium: the White House Council on Environmental Quality (CEQ),
the Department of Energy, the Department of Defense, the EPA, the
Army, the Coast Guard, Fish and Wildlife Service, Federal Aviation
Administration, National Oceanic and Atmospheric Administration, and the
Advisory Council on Historic Preservation. 62 Additionally, executive order
13175 requires that all federal policies having tribal implications be
developed in meaningful consultation with tribes. 63 The particular
environmental impacts that would need to be addressed in an EIS
covering an offshore wind facility are discussed in the next section.
Offshore wind projects will also be subject to the Coastal Zone
Management Act (CZMA). 64 CZMA encourages coordination and
cooperation between local, State, and Federal agencies with
responsibilities over ocean and Great Lakes coastal areas.65 Its most
significant feature is the empowerment of local knowledge and local
concerns in environmental policy. 66 Under CZMA, States can create
“management programs,” which identify “objectives, policies, and
standards to guide public and private uses of lands and waters in the
coastal zone.”67 They must include the views of local governments and
other interested parties 68 and federal agencies “principally affected.” 69 The
61
42 U.S.C. § 4332 (2006). See also 40 C.F.R. §§ 1501.5-1501.6 (2013).
MOU, supra note 37.
63
Exec. Order No. 13175, 65 Fed. Reg.218, 67249 (2000). An example of agency
implementation of this order available at http://www.epa.gov/tp/consultation/planaction.htm (last visited Nov. 24, 2013).
64
16 U.S.C. §§1451-66 (2006) (CZMA is administered by the National Oceanic and
Atmospheric Administration).
65
16 U.S.C. § 1452 (2006).
66
Holly Doremus, Through Another's Eyes: Getting the Benefit of Outside Perspectives in
Environmental Review, 38 B.C. ENVTL. AFF. L. REV. 247, 258 (2011), available at
http://lawdigitalcommons.bc.edu/ealr/vol38/iss2/3 (last visited Nov. 24, 2013).
67
16 U.S.C. § 1453 (12) (2006).
68
16 U.S.C. § 1455 (d)(1) (2006).
69
16 U.S.C § 1456 (b)(2006); further requirements at 16 U.S.C. § 1455 (d)(2) (2006).
62
184
Secretary must then approve the state management programs. After they
are approved, any federal action in the area must be “consistent” with
state management programs.70 Offshore wind facilities are likely to invoke
CZMA concerns because the construction and operation of the facilities
involves both onshore and offshore activities.
Next, environmental review for offshore wind energy projects may
also be required under the Endangered Species Act, the Migratory Birds
Treaty Act, the National Historic Preservation Act, The Magnuson-Stevens
Fishery Conservation and Management Act and the Clean Air Act. This
legislation is relevant because of the wide range of specific environmental
hazards that wind turbines pose, many of which are not well understood.
The Endangered Species Act, 16 U.S.C. §§ 1531-1544, is intended to
ensure that federal agency actions do not destroy endangered and
threatened species, or their critical habitat. 71 The ESA makes it illegal to
“take” —meaning to harass, harm, pursue, wound, or kill—a listed
(protected) species. 72 The Secretary may grant exceptions to the ESA,
allowing for incidental takes under certain conditions. 73 As a result of ESA
requirements, wind turbines on the Great Lakes will likely require the
issuance of an incidental take permit for listed birds in the region. 74
Similarly, because the Great Lakes are significant migratory routes, the
Migratory Bird Treaty Act will need to be considered. 75 It prohibits the
taking of listed migratory birds without federal authorization. 76 Such
authorization can come in the form of permits, or compliance with
regulations—hunting regulations, for instance. 77 Through the operation of
70
16 U.S.C § 1456 (c)(1)(A) (2006)(“[e]ach Federal agency activity within or outside the
coastal zone that affects any land or water use or natural resource of the coastal zone
shall be carried out in a manner which is consistent to the maximum extent practicable
with the enforceable policies of approved State management programs.”).
71
16 U.S.C. §§ 1531-1543 (2006).
72
16 U.S.C. §§ 1532 (19) (20); “Harm” here includes “significant habitat modification or
degradation where it actually kills or injures wildlife.” Babbitt v. Sweet Home Chapter of
Communities for a Great Or. 515 U.S. 687 (1995).
73
16 U.S.C. § 1539 (2006).
74
The Bald Eagle Protection Act may also be implicated in Great Lakes Wind farms for
the same reasons as the ESA. 16 U.S.C. § 668 (2006).
75
16 U.S.C. §§ 703-712 (2006).
76
Id.
77
Id.
185
NEPA, ESA, Migratory Birds Act, and the Fish and Wildlife Coordination
Act,78 the United States Fish and Wildlife Services (USFWS) will be
implicated in the permitting process for all wind energy development. In
anticipation, guidance is being developed by USFWS.79
Finally, the National Historic Preservation Act80 requires federal
agencies to consider the impact of federal action on historic and cultural
resources eligible for listing in the National Register of Historic Places, and
requires that the Advisory Council on Historic Preservation be given a
reasonable opportunity to comment on such undertakings. 81 The NHPA
supplements NEPA, which includes protections for cultural resources, and
similarly requires only the consideration of impacts by an agency,
including the consideration of alternatives to avoid or mitigate the adverse
impacts, and the processes of community consultation. 82
C.
State Agencies Implicated in Great Lakes Offshore Wind
Energy Permitting
In Michigan, legislators intend to establish a wind energy regulatory
program under Part 324 of the Natural Resources and Environmental
Protection Act of 1994.83 This program, to be situated within the Michigan
Department of Environmental Quality, will manage leasing of bottomlands
and handle the permitting of offshore wind energy projects in Michigan
Great Lakes waters.84 However, much of this may be conditioned upon the
Great Lakes MOU (supra). The State of Wisconsin, which is not a
signatory to the MOU, anticipates that regulatory participation at the state
level would implicate the Public Service Commission of Wisconsin, the
78
16 U.S.C. §§ 661-667(e) (2006).
See generally Wind Energy Development Information, U.S FISH & W ILDLIFE SERVICES,
http://www.fws.gov/windenergy/ (last visited Nov. 24, 2013).
80
16 U.S.C. § 470 (2006).
81
Id.
82
Id.
83
MICH. COMP. LAWS § 324.101(1994).
84
MICH. COASTAL MGMT. PROGRAM OFFICE OF THE GREAT LAKES DEP’T OF ENVTL QUALITY,
SECTION 309 ASSESSMENT AND FIVE-YEAR STRATEGY FOR COASTAL ZONE MANAGEMENT
PROGRAM ENHANCEMENT FISCAL YEARS 2012-2016, 43 (2011), available at
http://coastalmanagement.noaa.gov/mystate/docs/mi3092011.pdf (last visited Nov. 24,
2013).
79
186
Wisconsin Department of Natural Resources, and Wisconsin’s Indian
Tribes.85
III.
CHALLENGES TO WIND FARMS
Currently, there is no anticipated role for tribes in the emerging
regulatory framework, except by the State of Wisconsin. 86 However, two
avenues for asserting stakeholder status and preserving, or even
enhancing, treaty rights exist. These are: (1) legal battles to protect tribal
interests from negative impacts due to offshore wind energy development;
and (2) asserting treaty rights to wind. The first of these options will be
discussed in this section. 87
Despite widespread support, wind energy has been criticized on a
number of grounds. Opponents of onshore wind projects have relied on
tort claims such as nuisance, zoning and FAA violations, improper
permitting challenges, and violations of the public trust to ground claims
seeking injunctions against particular wind farms.88 More rarely, actions
challenging onshore wind farms have alleged violations of the Endangered
Species Act, the Migratory Birds Act, NHPA, the Federal Land Policy
Management Act (FLPM), and CZMA. 89
Offshore wind energy development faces similar opposition. The
Cape Wind Project has been delayed for over a decade by litigation from
alliances of local residents. 90 These allegations are poignant because
wind energy facilities can cover large areas of land and water—from
thousands of acres to tens of square miles—even though their actual
85
HARNESSING W ISCONSIN’S ENERGY RESOURCES, supra note 35, at 131-132 (“it would be
necessary to consult with Wisconsin’s Indian tribes on any regulatory decisions related
on off-shore wind projects that could affect tribal lands, rights or interests, such as fishing
rights in Lake Superior”).
86
Id.
87
Here, my intent is to merely survey the types of claims typically made against wind
farms; I do not attempt a comprehensive review of potentially applicable case law.
88
Eric M. Larsson, Cause of Action to Challenge Development of Wind Energy Turbine or
Wind Energy Farm, 50 CAUSES OF ACTION 2d 1 (2012).
89
Id.
90
Such opposition is often called NIMBY (Not In My Back Yard) opposition and is based
on aesthetics and impacts on property values. See Conger, supra note 40, at 753.
187
footprint is quite small, and because turbine towers can be seen from
great distances.91
A.
Zoning and Public Utility Permitting Challenges to Wind
Farms
Zoning and public utility permitting challenges have been a primary
cause of action for local residents attempting to prevent the development
of wind farms, and even test turbines 92 In general, a challenge based on
zoning or improper utility permitting must show that the permitting body
erred in applying its own regulations to an application. 93 In doing so,
plaintiffs must overcome the significant deference a court will give to an
administrative body’s interpretation of its own rules and findings and show
that the agency’s determinations are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law” under the
Administrative Procedure Act (APA).94 When wind energy facilities already
exist, plaintiffs have relied on nuisance law to recover damages for harms
caused by them. 95 The types of harms attributed to wind energy
generation include: noise, vibration, shadow flicker or strobe effect (where
the shadow of the rotating blades cause rapid changes in light intensity),
aesthetics, emotional injury, and diminished property values.
B.
Alleged Violations of Environmental Law
While there is established case law in these areas, it may not be
applicable in challenges to offshore wind development. Instead, plaintiffs
91
Offshore wind turbines have tower heights greater than 200 feet and rotor diameters of
250 to 430 feet. The maximum height can, therefore, approach 500 feet. Even larger
turbine designs are contemplated. Offshore Wind Energy, BUREAU OF OCEAN ENERGY
MGMT. http://www.boem.gov/Renewable-Energy-Program/Renewable-EnergyGuide/Offshore-Wind-Energy.aspx (last visited Nov. 24 2013).
92
Larsson, supra note 88 at § 12.
93
Id.
94
5 U.S.C. § 706(2)(A) (2006).
95
Larsson, supra note 88, § 15. To establish a prima facie case in nuisance, the plaintiff
must show that “(1) the plaintiff had a private interest in land; (2) the defendant interfered
with or invaded the plaintiff's interest by conduct that was (a) negligent, or (b) intentional
and unreasonable, or (c) abnormal and out of place in its surroundings; (3) the
defendant’s conduct resulted in a condition that substantially interfered with the plaintiff's
private use and enjoyment of the land; and (4) the nuisance caused injury to the plaintiff.”
Id.
188
would likely attack new projects by alleging violations of environmental
law. As noted above, NEPA does not create a private right of action;
rather, an agency’s alleged noncompliance with NEPA is a final agency
action reviewable under the APA. 96 Litigation typically challenges the
adequacy of an EIS, or the decision not to issue one, but not an agency’s
failure to comply with an EIS, as there is no cause of action to enforce an
agency’s compliance with any EIS. 97
An offshore wind farm will be open to challenges to environmental
review because projects will need to undertake significant review of
impacts on air and water quality, fish and wildlife, coastal, marine, and
seafloor habitats, terrestrial habitats (due to the use of onshore staging
and lay down areas during construction), visual resources/ view shed, the
acoustic environment, fisheries, cultural resources, socioeconomic
conditions, land use concerns, and possibly more. 98 Experience with
onshore wind farms have shown that turbines pose a danger to birds and
bats through collisions and in promoting avoidance behavior that can
disrupt feeding, reproduction, and migration. 99 Because of such
disruptions, an additional cause of action may lie in the Endangered
Species Act’s citizen suit provision. 100 Fish are also likely to be impacted
by the development of offshore wind farms. Turbine foundations and
power transmission lines disturb the substrate (usually temporarily), which
has the potential to affect aquatic habitat. 101 Such impacts, if significant,
could be felt by commercial, recreational, and treaty fishermen. 102 Beyond
these anticipated concerns are a host of unknowns. The novelty of
offshore wind energy, especially in the Great Lakes, means that extensive
environmental assessment needs to be done, which presents many
possibilities for litigation challenging the assessments.
96
DANIEL R. MADELKER, NEPA LAW AND LITIGATION § 4:1 (2012).
Id. at § 4:8.
98
HARNESSING W ISCONSIN’S ENERGY RESOURCES, supra note 35, at 79-104.
99
Id. at 79.
100
16 U.S.C. § 1540 (g) (2006); Babbitt v. Sweet Home Chapter of Communities for a
Great Or., 515 U.S. 687 (the Court upheld the Secretary’s inclusion of significant habitat
modification impairing essential behavioral patterns within the definition of “harm” to an
endangered or threatened species).
101
HARNESSING W ISCONSIN’S ENERGY RESOURCES, supra note 35, at 85-88.
102
Id. at 89.
97
189
Offshore wind farms may also face some of the less common
allegations made against onshore facilities. In Flint Hills Tallgrass Prairie
Heritage Foundation v. Scottish Power. PLC,103 the plaintiffs based their
challenge on the Migratory Bird Treaty Act (MBTA). The court held that the
plaintiffs failed to state a cause of action under federal law because they
did not establish that the MBTA created a private right of action. 104
The Endangered Species Act of 1973, however, authorizes citizen
suits.
In Animal Welfare Institute v. Beech Ridge Energy LLC, several
nonprofit organizations sued the developers of a wind energy project,
alleging that the project would “take” endangered Indiana bats in violation
of the ESA.106 The court there enjoined the operation of wind turbines at
all times the bats were not hibernating, at least until the defendants
acquired a take permit.107 Opponents of a coastal wind farm in Texas
brought another challenge, under CZMA. 108 The court rejected plaintiffs’
claims that they could force Texas agencies to conduct a consistency
review and allow public participation before allowing a private wind energy
project to proceed. 109
105
C.
Challenges Based on Cultural Resource Protection
Laws
While tribes could challenge wind energy development under any of
the above causes of action, they may also allege violations of statutory
requirements to protect cultural resources. For example, in 2012, the
Quechan Tribe of the Fort Yuma Indian Reservation filed suit against the
Bureau of Land Management (BLM) to stop the development of a 112103
Flint Hills Tallgrass Prairie Heritage Found. v. Scottish Power. PLC, WL 427503 (D.
Kan. 2005).
104
Id. at 4. Sierra Club v. Martin, 933 F. Supp. 1559, 1567 (N.D. Ga. 1996) (while MBTA
does not grant a private cause of action, it can be enforced through the APA); Sierra Club
v. Martin, 110 F. 3d 1551, 1555 (11th Cir. 1997)(however, MBTA has been held to not
apply to the federal government).
105
16 U.S.C. § 1540 (g) (2013).
106
Animal Welfare Inst. v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540, 560 (D. Md.
2009).
107
Id. at 581.
108
Coastal Habitat Alliance v. Patterson, 385 Fed. Appx. 358 (2010).
109
Id. at 361.
190
turbine wind farm in the California Desert Conservation Area (CDCA), an
area managed by the BLM.110 The Secretary of the Interior approved a
10,000 acre right-of-way in the CDCA for the construction of the Ocotillo
Wind Energy Facility (OWEF), an action the Tribe argued violates the
APA, NEPA, the National Historic Preservation Act (NHPA), and the
Federal Land Policy Management Act (FLPM). 111 The Tribe sought a
temporary restraining order enjoining defendants from authorizing any
ground disturbing activities in the OWEF area.
The Tribe argued that its traditional territory, including the OWEF
Project Area, is integral to its identity and ceremonial practices; that
damage to cultural resources or the landscape “contributes to the
destruction of the Tribe’s culture, history, and religion,” and that “[i]njury to
the Tribe’s cultural resources causes injury to the Tribe and its people.” 112
The Final Environmental Impact Statement for OWEF identified
archaeological sites, traditional use areas, burial sites, and trail segments,
which the Tribe alleged constituted a Traditional Cultural Property eligible
for inclusion in the National Register of Historic Places. The Tribe also
claimed an interest in the “quality of the land, water, air, flora, and fauna
within the Tribe’s traditional territory,” especially noting a concern for the
habitat of the Flat tailed Horned lizard, it being a creature central to the
Tribe’s Creation Story.113 Finally, the Tribe alleged that the Project would
degrade the scenic value of the area and destroy the viewsheds to sacred
mountains.
The court denied the motion on grounds that a memorandum of
understanding between the California State Historic Preservation Office,
the Advisory Council on Historic Preservation, the BLM, the Army Corps of
Engineers, and Ocotillo Express LLC, would assure compliance with state
law safeguarding archaeological resources and NAGPRA provisions
protecting burials. 114
110
Quechan Tribe of the Fort Yuma Indian Reservation v. Dep’t of the Interior, 3:12-cv01167-WQH-MDD (S.D. Cal. 2011).
111
Id.
112
Id. at 8.
113
Id.
114
Id. at 11 (the case is currently on appeal in the Ninth Circuit).
191
Another cultural resource challenge comes from the Cape Wind
litigation. In 2011, the Wampanoag Tribe of Gay Head (Aquinnah), a
federally-recognized tribe based on Martha’s Vineyard, filed suit against
the BOEMRE over their approval of the Cape Wind Energy Project in
Nantucket Sound. The Tribe sought declarative and injunctive relief,
specifically a declaration that defendants approved the Project in violation
of NEPA, the NHPA, and the APA, and an injunction requiring defendants
to withdraw the Record of Decision and prepare a Supplemental
Environmental Impact Statement.115
The Tribe objected to any alteration of the eastern viewshed across
Nantucket Sound. 116 They alleged that construction and operation would
make “cultural heritage, spiritual ceremonies, and day-to-day practices,
such as subsistence fishing off the coast of Martha’s Vineyard, nearly
impossible and will irreparably intrude into sites of cultural and spiritual
significance that the Tribe wishes to remain undisturbed.” 117 The
Wampanoag refer to themselves as “The People of the First Light” and
argue that from time immemorial, they have engaged in traditional and
customary religious practices that include ceremonies at dawn as the sun
rises over the horizon across Nantucket Sound. The Wampanoag believe
that these ceremonies are essential to the proper conduct of their religion,
and are a significant identifying aspect of the Tribe.
Additionally, they argued that Nantucket Sound and its landforms
bear a significant relation to Moshop, a cultural icon for the tribe. Oral
history about Moshop, his relationship to the Tribe, and his creation of the
Sound and the islands have been an integral part of Wampanoag culture
for generations and comprise a key part of the Tribe’s cultural
identification as a distinct Indian people. The Wampanoag also have
subsistence rights in the Sound, and have cultural affiliation with
submerged archaeological resources on the seabed of Horseshoe
115
Wampanoag Tribe of Gay Head (Aquinnah) v. Bromwich, Case 1:11-cv-01238-RMU
27 (D. D.C. 2011).
116
Id.
117
Id. at 2.
192
Shoal.118 This case has since been merged with other actions against the
Cape Wind Project.
Both the Quechan and Wampanoag complaints illustrate the
importance of cultural resources in environmental review. Around the
Great Lakes, the numerous Anishinabek tribes may raise similar issues
against wind farms sited offshore. The waters contain unknown numbers
of historic and archaeological sites, ranging from ice-age habitation sites
to modern shipwrecks, all of which would be eligible for listing on the
National Registry of Historic Places. These sites would likely be detected
during anarchaeological survey for a project’s EIS, then mitigation
measures imposed (salvage or avoidance), and the mitigation upheld by
the courts119. A court’s treatment of tribal claims of adverse impacts to
traditional cultural properties—sites important to a community’s historically
rooted beliefs, customs, and practices—and culturally significant
viewsheds is less predictable. Many tribes will be able to demonstrate a
spiritual connection to the Great Lakes. But, as noted supra, while an
agency must prepare and take a “hard look” at an EIS, it need not follow
the recommendations within it. And if an agency decides not to base a
siting or permitting decision on cultural property considerations, a court
would likely defer to the agency’s decision.
D.
Challenges Under the Public Trust Doctrine
Finally, offshore wind farm opponents could challenge development
under the public trust doctrine. This doctrine provides that submerged
lands are preserved for public use—for navigation, commerce, fishing, or
recreation—by the state, and that the state must protect the public’s right
to these uses of the waters.120 The public’s interests include “commercial
and recreational navigation, natural scenic beauty, protection of fish and
wildlife, preservation of aquatic habitat, protection of water quality, and
118
Id.
This was the case in Quechan Tribe of the Fort Yuma Indian Reservation, supra note
110, in which the court noted that the BLM archaeologist’s mitigation measures were
adequate to protect the sites.
120
BLACK’S LAW DICTIONARY 859 (1991). See also Ill. Cent. R.R Co. v. Ill. 146 U.S. 387
(1892)( the Court applied the public trust doctrine to prevent the transfer of reclaimed
Lake Michigan bottomland to a private railroad company, explaining that the land was
inalienable unless made as a grant that would improve the public’s use of the land).
119
193
other uses.”121 Plaintiffs using the public trust doctrine to challenge
onshore wind farms have argued that wildlife is a public trust resource and
that the killing of birds by wind turbines, constitutes a violation of that
trust.122
Some of the opponents to Cape Wind have also alleged that the
project violates the public trust. In Alliance to Protect Nantucket Sound v.
Energy Facilities Siting Board, local residents argued that the local agency
that granted Cape Wind a permit had no authority to consider issues
related to the public trust, an argument that the court rejected. 123 Offshore
wind farms will have to contend with each state’s own public trust
doctrine.124 Michigan’s Supreme Court has recently reaffirmed its
adherence to the doctrine as applied to the Great Lakes:
Under longstanding principles of Michigan’s common law,
the state, as sovereign, has an obligation to protect and
preserve the waters of the Great Lakes and the lands
beneath them for the public. The state serves, in effect, as
the trustee of public rights in the Great Lakes for fishing,
hunting, and boating for commerce or pleasure. 125
A challenge to a wind energy project on Michigan’s Great Lakes
based on public trust doctrine would need to show that the proposed
action is likely to impair the public’s rights in one of these areas. The same
arguments made in challenging environmental review of offshore wind
projects, supra, could be made in an action alleging violation of the public
trust; i.e. that turbines pose threats to wildlife, fisheries, and other
environmental hazards that the state has a duty to protect.
121
HARNESSING W ISCONSIN’S ENERGY RESOURCES, supra note 35, at 111.
Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal. App. 4th 1349, 1359
(1st Dist. 2008).
123
Alliance to Protect Nantucket Sound v. Energy Facilities Siting Bd., 932 N.E.2d 787,
676-677 (Mass. 2010)(the court held that the legislature had properly delegated authority
to administer public trust rights when it authorized the siting board to issue licenses for
structures in the Commonwealth’s tidelands).
124
Conger, supra note 40, at 757-58.
125
Glass v. Goeckel, 473 Mich. 667, 678-79 (Mich. 2005) (footnote omitted).
122
194
E.
Challenges Alleging Violations of Treaty Rights
Treaty rights are discussed more fully below. But note that because
of the potential environmental threats posed by wind farms, a cause of
action may exist to challenge a state’s ability to issue wind energy permits
because they could affect the exercise of treaty rights. Violations of treaty
rights are actionable in federal courts.126 But exactly what actions have
violated treaty rights is a legal determination. Courts have recognized that
states have a duty to protect natural resources so that tribes can exercise
their treaty rights, or manage natural resources in a manner that does not
interfere with treaty rights. In a sub-proceeding of United States v.
Washington, tribes and the United States sued to compel the State of
Washington to repair or replace culverts blocking salmon from returning to
their spawning grounds. 127 The Tribes alleged that the culvert problem so
degraded fish habitat as to impair their exercise of treaty rights. Moreover,
they argued that the Stevens Treaties imposed a duty upon the State to
maintain fish habitat such that no diminishment of the harvest occurs.
While the court granted the Tribes’ motion, it stopped short of supporting
the idea that the Treaties imposed an environmental servitude on the
territory; the court said that “the Treaties do impose a duty upon the State
to refrain from building or maintaining culverts in such a manner as to
block the passage of fish upstream or down, to or from the Tribes’ usual
and accustomed fishing places,” but this does not impose an affirmative
duty on the State to do all it can to protect fish runs. 128
The existing and novel challenges to wind farms will apply to
offshore wind energy projects, and tribes may use these theories to
protect existing treaty rights in Great Lakes waters as wind energy is
developed there. Treaty tribes around the Great Lakes have varying, but
enforceable interests in the waters that must be considered when
regulations for wind energy are promulgated.
126
See STEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES 56 (2012).
United States v. State of Washington, CV 9213RSM, 2007 WL 2437166 at *1 (W.D.
Wash. Aug. 22, 2007).
128
Id. at 10.
127
195
IV.
TREATIES AND TREATY RIGHTS
This section provides an overview of treaties and treaty rights. I
discuss four topics within this area of law, because these are necessary to
understand how off reservation treaty rights have been secured for the
Great Lakes. Additionally, these four topics would be implicated in any
exercise of treaty rights in this region. These topics are tribal sovereignty,
the reserved rights doctrine, the Indian Canons of Construction, and treaty
abrogation.
A.
Treaty-Making and Tribal Sovereignty
Sovereignty is most basically defined as “the inherent right or
power to govern.”129 The present right of tribes to govern their members
and territories flows from a historical and preexisting independence and
right to self-government that has survived, albeit in diminished form,
through centuries of contact with Euro-American society.130 Colonial
governments interacted with native nations on a government-togovernment basis—that is, by engaging in diplomatic relations, making
treaties, and respecting the right of tribes to govern their internal matters
themselves.131 The principle that Indian tribes are sovereign nations was
first articulated in Worcester v. Georgia, in which the Court described the
Indian nations as “distinct, independent political communities, retaining
their original natural rights, as the undisputed possessors of the soil, from
time immemorial.”132 This sovereignty is not a power delegated by
Congress, but one that stems from indigenous political power predating
European colonization.133 While not originating with Congress, tribal
sovereignty is nonetheless subject to Congressional limitation, as a
consequence of their inclusion within the United States. 134 In the Court’s
words, Indian tribes are “domestic, dependent nations,” nations whose
sovereignty may be extinguished at any time by (express) act of
129
W ILLIAM CANBY JR., AMERICAN INDIAN LAW IN A NUTSHELL 76 (2009).
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.01 [1] [a] at 207(2012) [hereinafter
COHEN’S HANDBOOK].
131
PEVAR, supra note 126, at 5-6.
132
Worcester v. Georgia, 31 U.S. 515, 559 (1832).
133
COHEN’S HANDBOOK, supra note 130 at 207.
134
Id.
130
196
Congress.135 Today, it is understood that “Indian tribes still possess those
aspects of sovereignty not withdrawn by treaty or statute, or by implication
as a necessary result of their dependent status.”136
The United States continued the practice of sovereign-to-sovereign
treaty making from the time of the founding until 1871, when treaty making
officially ended.137 By this time, the United States had entered into
hundreds of treaties with Indian tribes,138 all of which, until expressly
abrogated by Congress, are the supreme law of the land.139 Peacemaking
was certainly a goal in many treaties, but extinguishment of aboriginal title
was the federal government’s primary objective. 140 Most Indian treaties
were treaties of cession, in which the tribe ceded part of its territory to the
United States for consideration, usually in the form of annuities,
provisions, protection (peace) and other land. 141 What a tribe held on to—
what it reserved—was its reservation.
B.
The Reserved Rights Doctrine
In addition to reserving a portion of its land in a treaty, tribes often
reserved the rights of hunting, fishing, and gathering in the ceded territory.
Concomitant with aboriginal title—their undisputed possession of the soil
recognized in Worcester v. Georgia—are usufruct rights. Many tribes
relied heavily on hunting, gathering, and fishing.142 The Court recognized
this in United States v. Winans, where it noted that these rights “were not
much less necessary to the existence of the Indians than the atmosphere
they breathed.”143 Indians reserved such rights in treaties because their
livelihoods depended on the natural resources existing in large areas, and
they knew that the small reservations of land they were withholding for
135
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).
United States v. Wheeler, 435 U.S. 313, 323 (1978).
137
COHEN’S HANDBOOK, supra note 130, § 1.03[9] at 70 (although the United States could
no longer enter into treaties with tribes, the treaty process was simply replaced with
agreements, statutes, and executive orders).
138
PEVAR, supra note 126, at 46.
139
COHEN’S HANDBOOK, supra note 130, § 18.07 at 1190.
140
Id.
141
Id. §§ 1.02-1.03 at 8-71.
142
143
136
197
habitation would not support them. This fact was recognized by United
States treaty negotiators, who often yielded to the Indians’ needs on this
point by conceding a reservation of treaty rights on ceded lands. Thus, the
issue of off-reservation treaty rights involves the conflict of three facts:
(1) the treaty rights are rights to natural resources on lands that the
Indians have willfully alienated in exchange for consideration; (2) after
alienation, these lands were purchased by white settlers who believed
them to be unencumbered; and (3) the land is not Indian land but land
over which states have clear regulatory authority.144
In conflicts over treaty rights, courts rely on the reserved rights
doctrine. This doctrine was articulated most precisely in Winans, in which
the Court, ruling on treaty fishing rights in Washington State, said that the
treaty with the Yakima Indians “was not a grant of rights to the Indians, but
a grant of rights from them—a reservation of those not granted. 145 That is,
as expressed above, Indian treaties do not describe what the United
States is granting the tribe, but rather what the Indians are granting the
United States and the tribe reserves that what is not expressly granted. 146
The reserved rights doctrine has been a pivotal factor in major treaty rights
cases147 and would certainly be implicated in any attempt to assert treaty
rights to harnessing the wind. Rights to specific natural resources need
not be enumerated in treaties.148 However, many treaties do impose
geographic and other limitations on the exercise of treaty rights. 149
144
Treaty rights have been likened to easements running with burdened land. See
COHEN’S HANDBOOK,, supra note 130, § 18.02 at 1157 (citing United States v. Winans,
198 U.S. 371, 381 (1905)). On tribal land, treaty rights are not at issue because “[t]ribes
generally retain exclusive rights to the use of land within their territories, unless those
rights have been abrogated by treaty or statute.” COHEN’S HANDBOOK, supra note 130, §
17.01 at 1106.
145
146
See also Washington v. Washington State Commercial Passenger Fishing Vessel
Ass’n, 443 U.S. 658 (1979); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.
172 (1999).
147
See Karen Ferguson, Indian Fishing Rights: Aftermath of the Fox Decision and the
Year 2000, 23 AM. INDIAN L. REV. 97, 1998.
148
COHEN’S HANDBOOK, supra note 130, § 18.04 [2] [a] at 1164; and § 18.04 [2] [e] at
1169.
149
Id. at § 18.04 [2] [e] at 1169-1174.
198
C.
The Indian Canons of Construction
Another principle of treaty interpretation that would certainly arise is
that of the Indian Canons of Construction. These canons are court-made
guidelines that trace back to the Cherokee Cases. 150 There, the Court
explained that the plenary power of the federal government to control
Indian affairs comes with a corollary trust responsibility to act in the
Indians’ best interests. 151 But more popularly the canons are thought to
protect Indian interests by recognizing that most, if not all, Indian treaties
were negotiated in a context of significant power imbalances. 152 The
Indian Canons of Construction are that: (1) treaties, agreements, statutes
and executive orders are to be liberally construed in favor of the Indians;
(2) all ambiguities are to be construed in favor of the Indians; (3) treaties
and agreements are to be construed as the Indians would have
understood them at the time of signing (which requires looking at the
broad historical context of the treaty signing); and (4) tribal property rights
and sovereignty are preserved unless Congress’ intent to the contrary is
clear and unambiguous.153
Courts have applied the Indian canons of construction in a long line
of treaty rights cases in Washington, Wisconsin, and Michigan. 154 These
cases have upheld off reservation treaty fishing rights as well as rights to
other kinds of natural resource procurement. Any attempt at expanding
treaty rights would necessarily involve recourse to the Indian Canons of
Construction to interpret applicable treaty provisions.
150
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); Worcester v. Georgia, 31 U.S. 515
(1832); see also COHEN’S HANDBOOK, supra note 130, § 2.02 [2] at 116-118.
151
See also United States v. Kagama, 118 U.S. 375, 384 (1886) (“[t]hese Indian tribes
are the wards of the nation. […] From their very weakness and helplessness […] there
arises the duty of protection, and with it the power. This has always been recognized by
the Executive and by Congress, and by this court, whenever the question has arisen.”).
152
PEVAR, supra note 126, at 51.
153
COHEN’S HANDBOOK, supra note 130, § 2.02 [1] at 113-114.
154
Karen Ferguson, Indian Fishing Rights: Aftermath of the Fox Decision and the Year
2000, 23 AM. INDIAN L. REV. 97, 142 (1998). See also COHEN’S HANDBOOK, supra note
130, § 18.02 at 1156.
199
D.
Treaty Abrogation
Finally, in interpreting treaties, courts must consider whether the
treaty in question has been abrogated. The reduction or termination of
treaty rights, or any aspect of sovereignty, is within the broad plenary
power of Congress over Indian affairs.155 However, in recognition of tribal
sovereignty and the United States’ trust responsibility under existing
treaties with Indian tribes (principles reflected in the canons of
construction, supra), legislation abrogating treaties or diminishing tribal
lands or sovereignty must be clear in expressing the intent of Congress to
do so.156 This can be evidenced by an express statement of abrogation or
by implication when it is clear that “Congress actually considered the
conflict between its intended action on the one hand and Indian treaty
rights on the other and chose to resolve that conflict by abrogating the
treaty.”157 Treaties may be abrogated in whole or part; therefore, an
attempt to assert treaty rights to harness the wind in ceded territory could
fail despite the reservation of hunting and fishing rights if it is determined
that Congress intended the right to be extinguished.
V.
TREATY RIGHTS ON LAKE MICHIGAN
To take advantage of the most productive wind resources on the
Great Lakes, developers would need to construct wind farms on waters
that are part of the territory ceded by the Ottawa and Chippewa Indians of
Michigan. The continued existence of treaty rights in these waters was
upheld in United States v. Michigan.158 In this section, I discuss the
relevant treaties and major decisions affecting treaty rights on these
waters. More importantly, I extract and describe the test used in United
States v. Michigan. This test would be applied in any attempt by Michigan
treaty tribes to assert a treaty-based right to harness wind on the ceded
waters of Lake Michigan.
155
Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903).
COHEN’S HANDBOOK, supra note 130, § 18.07 [1] at 1190.
157
United States v. Dion, 476 U.S. 734, 738-740 (1986).
158
United States v. Michigan, 471 F. Supp. 192, 205 (W.D. Mich. 1979).
156
200
Between 1785 and 1871, the United States entered into forty-four
treaties with the Ottawa and Chippewa Indians of Michigan.159 The most
important of these were the Treaties of July 6, 1820, 7 Stat. 207, March
28, 1836, 7 Stat. 491 (known as the Treaty of Washington), and July 31,
1855, 11 Stat. 621 (also called the Treaty of Detroit). These treaties cover
the primary land cessions of the Ottawa and Chippewa Indians—
amounting to about a third of what is now the State of Michigan and
including much of the Great Lakes. The land claims deriving from these
treaties were litigated through the Indian Claim Commission and settled by
the Michigan Indian Land Claims Settlement Act. 160 The claims of
reserved treaty rights were decided in United States v. Michigan (called
the Fox decision after its author, Judge Noel Fox) and several subsequent
negotiated Decrees coming from that court.161
In the Upper Great Lakes, treaty rights had been greatly eroded
away. By the middle of the 20th century, Ottawa and Chippewa Indians
lived in largely unrecognized bands, with diminished reservations, and
under State attempts to regulate their fishing.163 In 1973, Michigan treaty
Tribes and the United States sought to enjoin the State of Michigan from
interfering with the Indians’ treaty rights to fish in the Great Lakes. 164
These waters are part of the territory ceded in the Treaty of 1836. This
treaty states, in pertinent part, that “[t]he Indians stipulate for the right of
hunting on the lands ceded, with the other usual privileges of occupancy,
until the land is required for settlement.”165
162
The central issue before the court was whether the Indians could
fish in the Great Lakes free from state interference because they had
reserved that right in the Treaty of 1836; in other words, whether such
159
26 Ind. Cl. Comm. 538, 544 (1971).
See Ind. Cl. Comm. Consolidated Dockets Nos. 18E and 58; Michigan Indian Land
Claims Settlement Act, Pub. L. No. 105-143 (1997).
161
United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979); 2000 Consent
Decree; 2007 Inland Consent Decree.
162
See MATTHEW L.M. FLETCHER, THE EAGLE RETURNS: THE LEGAL HISTORY OF THE GRAND
TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS (2012).
163
Id. at chapter 5.
164
United States v. Michigan, 471 F. Supp. 192, 203 (W.D. Mich.1979).
165
Treaty of Washington, art. XII, March 28, 1836, 7 Stat. 495.
160
201
fishing is one of the “usual privileges of occupancy.” 166 The court
answered the treaty fishing rights issue in the affirmative, largely by
reliance on the reserved rights doctrine but also on the Indian canons of
construction. In applying the reserved rights doctrine, the Fox court
construed the Treaty of Washington to reserve fishing rights in the waters
of the Great Lakes despite there being no grant of those rights to the
Ottawa and Chippewa Indians, nor even any explicit reservation of them in
the treaty itself:
[T]he reserved right to fish in the ceded waters of the Great
Lakes rests on its implied reservation from the grant of land
from the Indians to the United States and also on Article
Thirteenth. The right is implied because it was never
explicitly ceded away by the Indians; thus, they retained it.
The reason it was not granted was because the Indians were
too heavily dependent upon fish as a food source and for
their livelihood to ever relinquish this right.167
This dependency was revealed by the intense historical
investigation undertaken by the court, guided by the Indian canon of
construction, which demanded that treaties be construed as the Indians
would have understood them at the time of signing. 168
Liberal use of reserved rights doctrine could, in theory, present
unlimited opportunity for tribes to claim reserved rights. To reign in tribal
claims to treaty rights, the court noted that “[i]n order for the right to exist
in the first instance, it must be shown that the Indians were in fact using
the resource, i.e., that they exercised this right, subsumed within their
larger, aboriginal right to their land and water.”169 The “factual predicate”
for reserved rights, “is the documented historic, ethnohistoric,
anthropologic and archaeological evidence proving” them. 170 In this case,
166
Two other issues were considered: whether any reserved rights were abrogated by
the Treaty of 1855, and whether the treaty deprives the State of all authority to regulate
the exercise of treaty rights, specifically Indian fishing in the Great Lakes.
167
168
Id. at 253.
169
Id. at 213.
170
Id.
202
this meant that ethnohistorical evidence of subsistence and commercial
fishing was a prerequisite to showing the reserved right. It would seem
that the court established a test for determining whether an activity is
included as one of the “usual privileges of occupancy” under Article
Thirteenth of the Treaty of 1836. If a plaintiff tribe can demonstrate,
through ethnohistorical evidence, that a particular right was exercised
during treaty times, then it is one of the usual privileges of occupancy.
Here, the court held that the Tribes did make this showing—
plaintiffs’ experts demonstrated that Indians had fished the Great Lakes
waters for subsistence purposes for centuries, and had, at the time of the
treaty, been involved in commercial fishing to trade for European goods,
which they were dependent on by then. Therefore, the Tribes “possessed
an aboriginal right to fish in those waters for subsistence and commercial
purposes.”171 Furthermore, the court stated, this reserved right to fish is
not restricted in any way; it “is not affected by the passage of time or
changing conditions.”172 This means that the right is not limited to any kind
of fish, or methods, and can grow with the commercial market. 173
Expert witnesses also attested that the phrase “usual privileges of
occupancy,” which appears in other treaties, was included to assure the
Indian signatories that they could continue to live in the manner they were
accustomed to.174 The court pointed to a letter written by Indian agent and
treaty negotiator Henry Schoolcraft to his superiors explaining that “Article
Thirteenth would allow the Indians to continue to use all of the land and
water resources of the ceded area . . . .”175 The court then stated that the
usual privileges of occupancy “includes the use of all natural resources for
economic and ceremonial purposes and for travel.”176
171
Id. at 278.
Id. at 260.
173
See also United States v. Winans, 198 U.S. 371, 381 (1905)(in which the Supreme
Court similarly held that in exercising treaty rights, Indians are not limited to the
technology that they had at the time of the treaty).
174
175
Id. at 236.
176
Id. at 235 [emphasis added].
172
203
This broad reservation of rights to natural resources was
conditioned only by the phrase “until required for settlement.” Plaintiffs’
experts testified that the Indians would have understood this to mean that
they could use the ceded land until white settlers occupied it—meaning
indefinitely, with the further understanding that some of the lands would
never be settled because they were unsuitable for farming. Therefore the
court held that “until required for settlement” meant “as long as Indians
lived in Michigan.”177 Regarding “settlement” itself, the meaning of this
term was not determined. Historical materials presented by plaintiffs’
experts indicated that “settlement” was used in its “normal” sense, but the
court noted that since the Great Lakes waters cannot be “settled,” the
limitation will never impact fishing there.178 Importantly, United States v.
Michigan demands that as long as these treaty tribes live in Michigan, they
have reserved treaty rights to any and all natural resources of the ceded
waters of Lake Michigan, which they may use for subsistence, ceremonial,
or commercial purposes.
VI.
ASSERTING TREATY RIGHTS TO HARNESS THE WIND ON THE GREAT
LAKES
As the regulatory gap in Great Lakes wind energy development
closes, treaty tribes should assert their status as stakeholders in the
process. Offshore wind energy poses specific threats to fisheries and
navigation, and presents a range of environmental unknowns that could
affect the exercise of treaty fishing rights in the Great Lakes. For this
reason alone, tribes should not wait until regulations are in place and
environmental review underway to consider the impacts of offshore wind
energy on their treaty rights.
But treaty tribes should be seen as more than just interested parties
in the regulatory development and environmental review processes.
Tribes are sovereigns and should have equal standing in the MOU forming
the Great Lakes Offshore Wind Energy Consortium. Reserved treaty rights
not only allow for natural resource procurement in the ceded territory but
also allow tribes to regulate the hunting, fishing, and gathering activities of
177
178
Id. at 235, 238.
Id. at 279. See also COHEN’S HANDBOOK, supra note 130, § 18.04[2][e] at 1173.
204
tribal members in the ceded territories while preventing states from
interfering with the exercise of those rights.179 Courts have upheld tribal
jurisdiction over the exercise of treaty rights in ceded territories.180 The
significance of this should not be underestimated. Essentially, it means
that there would be a further regulatory gap if treaty rights to wind were
recognized because states would be unable to impose their regulations on
tribal wind projects. Currently, the Court recognizes state regulation of
tribal members’ exercise of off reservation treaty rights only in the interest
of conservation. In Settler v. Lameer, a Yakima citizen challenged his
prosecution by the tribe for violations of tribal fishing regulations off the
reservation, in ceded territory. 181 The court affirmed the tribe’s civil
jurisdiction over the matter, stating “the regulation of these activities with
respect to off-reservation fishing is within the scope of the rights retained
by the Yakima Nation in the Treaty of 1855.” 182 The court held that the
inability of the state to exercise jurisdiction over this violation of tribal law
stemmed from the limitation on state regulation of treaty rights laid down
by the Supreme Court in Minnesota v. Mille Lacs Band of Chippewa
Indians.183 There the Court said that states may only impose “reasonable
and necessary nondiscriminatory regulations on Indian hunting, fishing,
and gathering rights in the interest of conservation.”184 If a treaty right to
wind is established, infringing upon the exercise of it under the guise of
conserving the wind may be a difficult basis for state regulation.
179
COHEN’S HANDBOOK, supra note 130, § 18.04 [1] at 1163; United States v. Michigan,
471 F. Supp. 192, 274 (W.D. Mich.1979)(as incorporated by the Fox court: “[b]oth [treaty
tribes’] treaty rights include the power to regulate their members so long as they are
fishing under tribal regulation and in the area ceded by the Treaty of 1836. Both tribes
presently exercise that power and regulate the fishing activities of their members. This
regulation preempts any state authority to regulate the fishing activity of the tribal
members.”).
180
COHEN’S HANDBOOK, supra note 130, § 6.01 [5] at 503, § 7.02[1] [c] at 603.
181
Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974).
182
Id. at 238.
183
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).
184
Id. at 205 (citing Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 398
(1968)).
205
A.
Wind as a Natural Resource
Beyond safeguarding existing rights and asserting a seat at the
table, Great Lakes treaty tribes should take the opportunity to expand their
treaty rights by claiming the right to harvest wind energy as a right
reserved by treaty. There are two goals for such an assertion of rights.
First, tribes would have a greater stake in the development of offshore
wind energy and would be in a better position to stop agency action
adverse to their interests. Second, tribes could develop wind energy
themselves. They could do this because the Fox court determined that
the “usual privileges of occupancy” includes the use of all natural
resources in the ceded territory for economic purposes (and the Great
Lakes include a good deal of ceded territory). However, this hinges on a
determination of wind as a natural resource, which is a determination that
a state legislature or a court needs to make. One possibility, in Michigan,
would be to interpret existing legislation as already including wind as a
natural resource. The Michigan Environmental Protection Act (MEPA) 185
grants a cause of action for the protection of the air, water, and other
natural resources from pollution, impairment, or destruction. 186 The
Natural Resources and Environmental Protection Act (NREPA) 187
regulates the use of natural resources in Michigan. 188 Both MEPA and
NREPA recognize air as a natural resource, but it is not clear if wind
should be equated with air in this manner and be considered a natural
resource under these statutes.
Alternatively, tribes could look to how the nature of wind, as a
natural resource and as a property interest attached to or severable from
the land, is being determined judicially and legislatively. The question of
what property rights regime will be applied to wind is unsettled. As wind
power has become a marketable commodity like minerals or gas, the
practice in some areas has been to follow the mineral model and treat the
185
MICH. COMP. LAWS §§ 324.1701-324.1706 (1994).
9 Mich. Civ. Jur. Environmental Protection § 4.
187
MICH. COMP. LAWS § 324.101 (1994).
188
9 Mich. Civ. Jur. Environmental Protection § 1.
186
206
rights to harvest the wind as severable from the surface estate. 189
However, other courts have rejected the analogy and applied the rule of
capture to wind. 190 Under this theory, wind has no value until reduced to
possession.191 In Romero v. Bernell, the court explained “[w]ind is never
embedded in the real estate; rather, it is more like water or wild animals
which traverse the surface and which do not belong to the fee owner until
reduced to possession.”192 What counts as possession of wind is
theorized as requiring “that it be focused on driving the fins of a wind
[turbine] which turn a generator and ultimately generates electricity.” 193 But
before capture and possession, wind, as with wild animals, may be
considered the property of the state. Currently, states are experimenting
with legislative efforts regarding wind capture. While some states have
crafted a property rights scheme for harnessing the wind, in the form of
wind easements, most states have preferred to use programs of
incentives and zoning restrictions to regulate the industry. 194
B.
Asserting Treaty Rights to Wind Using the Fox Test
Another option for tribes would be to argue for the determination to
be made using the Fox test. The Fox court, like other courts interpreting
treaty rights, understood that the sum total of reserved treaty rights was
not contained in the text of treaties or court decisions on the issues before
189
K.K. DuVivier, Animal, Vegetable, Mineral—Wind? The Severed Wind Power Rights
Conundrum, 49 W ASHBURN L.J. 69 (2009); see also Lisa Chavarria, Wind Power:
Prospective Issues, 68 TEX. B.J. 832 (Oct. 2005).
190
The capture rule, most famously described in Pierson v. Post, 3 Cai. R. 175 (N.Y.
1805), states that wild animals, in their natural habitats, are unpossessed until captured.
The first person to kill or capture a wild animal acquires title to it. The principle was
traditionally applied to underground oil and gas because they were, like wild animals, free
to move about until “captured” by a person, who then becomes the owner. The common
law of capture, as pertaining to oil and gas, has been superseded by statute.
191
Romero v. Bernell, 603 F. Supp. 2d 1333 (D.N.M. 2009) (citing Contra Costa Water
Dist. v. Vaquero Farms, 68 Cal. Rptr. 2d 272 (Cal. Ct. App. 1997)) (“[t]he right to
‘harvest’ wind energy is, then, an inchoate interest in the land which does not become
‘vested’ until reduced to ‘possession’ by employing it for a useful purpose. Only after it is
reduced to actual wind power can wind energy then be severed and/or quantified.”).
192
Id.
193
Terry E. Hogwood, “Against the Wind,” Oil, Gas and Energy Resources Law Section
Report Vol. 26, Number 2, at 6 (December 2001).
194
Alexandra B. Klass, “Property Rights on the New Frontier: Climate Change, Natural
Resource Development, and Renewable Energy,” 38 ECOLOGY L.Q. 63, 106-110 (2011).
207
it. Instead, the court envisioned a process—a test—for determining what
future activities may be construed as the exercise of treaty rights. The Fox
test begins by assuming that all rights to exploit natural resources in the
ceded territory were included within “the usual privileges of occupancy”
and thus reserved by tribes, which limits this set by imposing the predicate
that the right must have existed at the time of the treaty. By this logic,
contemporary tribes can engage in commercial fishing because their
ancestors were engaged in commercial fishing at the time of the treaty,
and not simply because their ancestors fished in the past. It would seem
that the Fox test would require a tribe to show that, at the time of the
treaty, it was engaged in practices that harnessed the wind. Evidence of
sailing or windmill use would suffice, but these are not technologies
indigenous to the Americas. If it were shown that Great Lakes tribes had
adopted these technologies, or others involved in harnessing the wind,
then the Fox test would likely be met, as the adoption of Western practices
was used to establish treaty rights in United States v. Michigan.
After categorizing the harnessing of wind as a treaty right, one must
determine whether these treaty rights have been abrogated. Therefore, as
regulations are promulgated to develop wind energy on the Great Lakes,
the question becomes: is there anything in the emerging regulations that
expressly or impliedly states Congress’ intent to abrogate the treaties? As
noted above, courts have required a clear and unequivocal expression by
Congress to find abrogation. This means that as states formulate a
regulatory framework for their waters, they may be incapable of
unilaterally foreclosing a possible wind estate for treaty tribes.
C.
Regulating Off Reservation Tribal Wind Projects
If a treaty right to harness the wind on the Great Lakes were
successfully advanced, then the question arises as to how to exercise the
right. Who would regulate tribal wind farms in ceded waters? The state
would unquestionably have the authority to regulate wind energy projects,
and applicable federal law would still be in force. But tribal members
exercising treaty rights off reservation are under the jurisdiction of their
208
tribe.195 In the treaty fishing rights context, the problem of regulation has
been addressed by the use of state-tribal compacts and agreements, and
with the practice of co-management.196 In both the Pacific Northwest and
the Great Lakes, tribal-state cooperation in regulating treaty fishing has
led to the protection of tribal interests, state interests, and the interests of
commercial and recreational fishers. It has also led to the avoidance of
costly and protracted litigation. Such compacts demonstrate that tribal
development of offshore wind resources need not be exclusive of state
and private development. However, if treaty rights to wind are never
asserted, tribes will be sidelined as development proceeds without them.
CONCLUSION
Wind energy is a rapidly growing industry, and the centerpiece of
many strategies for clean, renewable energy. But, currently, wind energy
projects face great regulatory uncertainty. Additionally, there is no
anticipated role for tribes, except as parties whose interests may be
affected. As a framework for offshore wind energy development in the
Great Lakes emerges, treaty tribes, Michigan treaty tribes in particular,
should assert stakeholder status not only to protect their interests but also
to participate as sovereigns in the regulatory process. Moreover, Michigan
treaty tribes could assert a reserved right to the production and
transmission of energy generated from wind resources on Lake Michigan
as an expansion of recognized treaty rights. Such an assertion would
further affirm and enhance tribal sovereignty.
195
196
See id. at n.204.
209
THE UNEXTINGUISHED MILITIA POWER OF INDIAN TRIBES
Seth Fortin*
INTRODUCTION
Sovereigns in the United States have military power: the federal
government has the power to “[t]o raise and support Armies,” 1 while
States, subject to some limitations, maintain militias. 2 But where do Indian
tribal governments fit into this picture? Do tribes have some sort of
equivalent power arising out of their retained inherent sovereignty? Or has
tribal military power been impliedly or explicitly curtailed somewhere?
Moreover, because almost every Indian reservation is encompassed by
both state and federal borders, is there any need for the tribes to exercise
a military power today?
This article suggests that, for some Indian tribal governments, a
local militia of the people—raised, trained, and managed in accordance
with the particular needs and military customs of that tribe—might be a
valuable adjunct to tribal police and emergency services. A tribal militia
might also be useful as an institution for shaping and transmitting certain
cultural values. Raising a tribal militia—or even contemplating such a
step—could be a powerful affirmation of tribal sovereignty within the
American constitutional framework.
However, use of military power implicates the danger of abuse, and
that danger is reflected in the history of militias and militia-like
organizations in Indian country. Moreover, the use of the militia power in
an internal, on-reservation capacity has sometimes occasioned
paternalistic responses by the United States and Canadian governments.
* J.D. Candidate, UCLA School of Law, Class of 2014. The author would like to thank
Angela Riley for her guidance, Peter Nabokov for his useful suggestions about historical
reading, and Michael Smith and Elana Fortin for reading drafts of this article.
1
U.S. CONST., art. I, § 8.
The states train the militias and appoint their officers, while Congress arms them and
prescribes the discipline by which they are to be organized. Id. Although governors
normally command the militias, the President may use state militias “to execute the Laws
of the Union, suppress Insurrections and repel Invasions.” Id.
2
210
Although this article arrives at the ultimate conclusion that tribes today
retain a limited militia power, that conclusion is by no means automatic.
Tribes would face real practical challenges in implementing a militia
program. A highly-trained and well-equipped militia is an expensive
proposition. On the other hand, there may be models of militia
organization that can achieve some important tribal goals even without
professional training and equipment. The organization of a militia could
provide a vehicle through which tribes could obtain additional funding from
the federal government.
Part I of this article examines definitions of “the militia” under AngloAmerican theory and surveys the use of militia and militia-like
organizations in 19th- and 20th-century Indian history. Such historical
examples show both that militias are not alien to Indian country and that
they are not without certain perils. Part II looks to treaties, federal statutes,
and state law to determine what military powers tribal governments might
still be able to exercise. Part III briefly sketches some reasons why a tribal
government might be interested in exercising a militia power. Some of
these reasons are immediate and practical, while others are tied to more
general interests in cultural and political sovereignty. Part IV examines
three possible models for a contemporary tribal militia: a select militia, a
universal citizen militia, and a militia under the National Guard framework.
Each model has certain advantages and disadvantages, and likely no one
model is ideal for every tribal government. Nonetheless, this article
concludes that a tribal militia could offer real advantages to tribal
governments that are perpetually under-funded and face serious threats to
the safety of their members.
I.
WHAT IS A MILITIA?
What is a militia? This question turns out to be one without a clear
answer—or at least, a question with several competing answers. 3 The
broadest definition would be “a fighting or security force drawn from the
people, rather than a professional ‘standing’ army.” Yet this definition fails
3
See infra notes 4-19, 78-104, and accompanying text.
211
to capture two issues that, at least in the Anglo-American tradition, have
always been contentious.
First, there is a tension between the idea of the militia as an
institution representing “the people” as a whole and the practical need of
the government to use the militia as an instrument. The more
representative and all-encompassing the militia is, the less the militia can
be adequately trained and made into a useful force. Conversely, a smaller
militia is more easily trained and equipped, but because it is less
representative it may be seen as a partisan tool of repression.
Second, the militia is often distinguished from an army in terms of
its duties. In the American constitutional framework, “armies” and “navies”
fight foreign wars, while the militia is often thought to have the duties of
maintaining order in, and repelling invasions of, the homeland. This
division, as we shall see, may be keenly important when discussing what
remains of the tribes’ inherent military powers.
Furthermore, Anglo-American thought recognizes two possible
types of official militia organization: a universal militia, made up of the
people as a whole, and a “select” militia, which is smaller and (usually)
composed of semi-professional soldiers. Lurking in the background is a
third, more troublesome definition, which describes the militia as a
spontaneous, unofficial organization of the people in response to tyranny.
This section will examine the various types of militias, discussing
their strengths and weaknesses. Each type of militia has had some
analogue in Indian country, either historically, in modern times, or both.
Some of the described historical Indian militias should serve as models for
thinking about the benefits and perils of the militia for tribal governments.
A.
Select Militias and Universal Militias
In early American political thought select militias were viewed with
some suspicion. In England, under the Stuarts, the formation of a select
militia (distinct from the regular or universal militia) often went hand-in-
212
hand with laws affecting the disarmament of the people, 4 and select militia
members were required to swear never to take up arms against the king.5
Charles II used a combination of loyal regular militia units and a second
“volunteer” militia to disarm the regular militia and, more disturbingly, to
monitor and harass dissidents. 6
Familiar with this history and the political fights it engendered,7
many Founding-era Americans were suspicious of a select militia and
feared that a strong national government would impose one on the people.
The “Federal Farmer,” an Anti-Federalist writer, thought that “the
constitution ought to secure a genuine and guard against a select militia . .
. .”8 “Congress,” said John Smilie during Pennsylvania’s ratification
convention “may give us a select militia which will, in fact, be a standing
army. . . .”9 Further, he worried, “[w]hen a select militia is formed; the
people in general may be disarmed.” 10 Others also felt that a select militia
was just the “artful introduction” of a standing army, which would be used
for political oppression. 11 Additionally, the Anti-Federalist minority at the
4
William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History,
136 MIL. L. REV. 1, 21 (1992) (“[A]rms confiscations under the Militia Act were a
widespread grievance. Sir Richard Temple, for example, criticized the militia bill as
containing the power to disarm all England.”); id. at 12-13 (“[T]he 1662 Militia Act
empowered lieutenants of the Militia to confiscate all arms owned by any person ‘judged
dangerous to the peace of the kingdom’ . . . [and] parliament enacted amendments to the
Hunting Act in 1671 that were designed to disarm the non-landowning population.”).
5
Id. at 12.
6
JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN
RIGHT 35 (1994). (“Charles instructed his lieutenants to . . . monitor the ‘motions’ of
‘suspected’ persons and . . . [that their] weapons were to be seized at once and
employed for the use of the trained bands.”).
7
Id. at 142 (“The American colonists followed the lively English debates over the
retention of a standing army . . . [and] were also alert to the dangers of a ‘select militia’ . .
. .”).
8
Letter from the Federal Farmer to the Republican No. XVIII (Jan. 25, 1788), in THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION DIGITAL EDITION 362
(2009), available at http://rotunda.upress.virginia.edu/founders/RNCN.html (last visited
Jan. 4, 2014) [hereinafter DOCUMENTARY HISTORY].
9
Speech by John Smilie to the Pennsylvania State Convention (Dec. 6, 1787), in
DOCUMENTARY HISTORY, supra note 8, at 509. Standing armies were generally distrusted
as instruments of autocracy and oppression; Elbridge Gerry called them “the bane of
liberty.” 1 ANNALS OF CONGRESS 778 (1789).
10
Smilie, supra note 9.
11
Hugh Hughes, “A Countryman” V, NEW YORK J. (Jan. 22, 1788).
213
Pennsylvania convention was worried that Congress would use a select
militia to collect unpopular taxes. 12
The Founders generally preferred a universal militia, comprised of
the “body of the people”—a phrase used in early drafts of the Second
Amendment,13 as well as some of its state-level predecessors.14 Soon
after the adoption of the Constitution, the (Federalist) Congress actually
created a militia. It turned out the Anti-Federalists’ fears of a select militia
running wild through the countryside were overblown. The Militia Act
called for “each and every free able-bodied white male citizen” to be
enrolled in the militia. 15
Despite its intuitive appeal, the universal militia was not without its
drawbacks. Alexander Hamilton noted a key problem:
The project of disciplining all the militia of the United States
is as futile as it would be injurious, if it were capable of being
carried into execution. A tolerable expertness in military
movements is a business that requires time and practice. It
is not a day, or even a week, that will suffice for the
attainment of it.16
Indeed, for the most part the universal militia was not well trained. As
Frederick Wiener pointed out on the eve of World War II, the universal
militia had never been an effective tool of national defense or national
policy at either the Founding or in the century-and-a-half since.17
Moreover, many militia members, noting that the Constitution
12
The Address and Reasons of Dissent of the Minority of the Convention of the State of
Pennsylvania to their Constituents, PENNSYLVANIA PACKET (Dec. 18, 1787), in
DOCUMENTARY HISTORY, supra note 8, at 636.
13
Compare 1 ANNALS OF CONGRESS 451 (1789) (introducing a draft without the phrase),
with DOCUMENTARY HISTORY supra note 8, at 778 (including the phrase).
14
MALCOLM, supra note 6, at 148 (“[T]he famous Virginia Bill of Rights of June 1776
expressly stated that ‘a well-regulated Militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free State.’”). See Virginia
Declaration of Rights, § 13 (1776).
15
Militia Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271, (repealed 1903).
16
THE FEDERALIST, NO. 29 (Alexander Hamilton).
17
Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181,
188-90 (1940).
214
contemplated only domestic uses of the militia, 18 believed that they could
not be compelled to fight abroad. 19
Eventually, in a series of acts from 1901 to 1916, Congress mostly
abandoned the idea of a universal citizen militia and opted instead for a
semi-professional, select militia in the form of the National Guard, which
would now be under joint federal and state control. 20 The advantages were
obvious—the Guard, equipped by the federal government and trained in
accordance with a uniform plan, would now be a disciplined and capable
fighting force. There was no longer any question of the scope of the
militia’s duties because it was now a federal organ made up of volunteers,
rather than the entire (male) body politic. It could now be called on to meet
any and all public emergencies, including external warfare.
The English and American militias likely do not have exact
analogues in the history of Indian North America. However, the issues that
have arisen in the Anglo-American context may provide a useful lens
through which to examine the historical use of military and paramilitary
power by tribes and tribal governments.
1. The Citizen-Soldier in the Tribal Tradition
It is far beyond the scope of this paper to describe the practice of
war in pre-contact or pre-reservation Indian societies, but a simple note
will suffice: in many tribes, war seems to have been conducted by the
whole body of the (fit) male citizenry as a part-time occupation. For
example, 17th-century Jesuit missionaries in contact with the
Haudenosaunee (Iroquois) reported that virtually the entire male
population of a village would go out as a war party: “They go to war at a
distance of two or three hundred leagues from their country . . . leaving in
18
The Militia Clauses of Article I, Section 8 only speak of using the militia to “execute the
Laws of the Union, suppress Insurrections and repel Invasions.”
19
See, e.g., DAVID STEPHEN HEIDLER & JEANNE T. HEIDLER, THE W AR OF 1812 56 (2002)
(noting the refusal of militia units to cross into Canada); Wiener, supra note 17, at 190
(describing the use of volunteer, rather than militia, forces in the Mexican-American War).
See also Charles Hughes, War Powers Under the Constitution, S. DOC. NO. 105 (1917).
(“[T]he organized militia, as such, cannot be employed for offensive warfare outside the
limits of the United States.”).
20
Wiener, supra note 17, at 197-201.
215
their Villages, for whole years at a time, only their women and little
children.”21 Karl Llewellyn and E. Adamson Hoebel note, in discussing
Cheyenne military societies, that they were “[o]pen to all men of all ages,
[and] they were of an ungraded type.”22 These groups functioned as
“social fraternities as well as military societies.” 23 Joe Sando similarly
says, of the Jemez Pueblo, that “[e]very Jemez man belong[ed] to one of
two societies, Eagle and Arrow, that ha[d] traditional functions dealing with
defense and war.”24 Mary Eastman, who lived among the Sioux near Fort
Snelling in the 19th century, suggests that warfare was a part of the
“education” of all young male children.25 (She recounts, as an example, a
“mimic war” in which young boys were ordered to attack a hornets’ nest;
the hornets were considered their “enemies,” and the boys, after their
battle, “entered [the village] as triumphantly as their fathers would have
done.”26)
This is not to suggest that Indian societies did not differentiate
among soldiers. J.R. Walker, a physician who lived among the Sioux in
the late 19th century, wrote of a special class of highly-revered warrior:
The only duties of the Zuyawicasa, or Dakota soldiers, are to
march and fight, and when not engaged in either of these
they are not together as an organized body so that they are
not under obligation to perform the ordinary duties of camp
life. They considered such affairs as beneath their dignity,
leaving it to the women to perform the manual labor, or to
the Akicita who were appointed to enforce compliance with
regulations . . . .27
Even Walker’s account suggests that this sort of warrior status was
something most young men aspired to. He notes that the Akicita, or
21
THE JESUIT RELATIONS AND ALLIED DOCUMENTS 264-65 (1896-1901).
KARL N. LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE W AY: CONFLICT AND CASE
LAW IN PRIMITIVE JURISPRUDENCE 99 (1941).
23
Id. at 101.
24
Joe S. Sando, Jemez Pueblo, in 9 HISTORY OF NORTH AMERICAN INDIANS: SOUTHWEST
425 (1979).
25
MARY HENDERSON EASTMAN, DAHCOTAH; OR, LIFE AND LEGENDS OF THE SIOUX 49 (1849).
26
Id. at 50-51.
27
J.R. W ALKER, LAKOTA SOCIETY 77 (1982).
22
216
“marshals,” were selected from the young men of the tribe who saw it as a
“step towards becoming a leader of the people and a soldier.” 28 Historian
Royal Hassrick asserts that the Akicita societies were “founded upon the
desire to be successful in war,” and that “[t]hey acted as a body both in
war and as camp police.”29
Thus, although it would be a mistake to universalize “Indian”
structures of military practice from a few examples, it is safe to say that
pre-contact and pre-reservation Indian societies often regarded a great
proportion of their male population as a soldier class. It is not clear that
one can draw close analogies with the Anglo-American “militia” system—
yet it is not a stretch to say that both types of society embraced the notion
of citizen-soldiers.
Groups like the Sioux Akicita and the Cheyenne warrior societies,
which were composed of a large portion of the male population and were
the primary enforcers and police in tribal life, seem to mirror the Founding
Generation’s militia ideal: civilian chiefs could make decrees, but they had
to rely on “the people” (i.e., males in the military societies) perceiving
those decrees as legitimate in order to get them enforced. 30 Among the
Cheyenne, structural barriers prevented civilian chiefs from also being
soldier chiefs31—a separation of powers that doubtless contributed further
to the independence of the citizen-military.
2.
Select Militias in Indian Territory—the Light
Horsemen, the Militia, and United States
Interventionism
In the 19th century, paramilitary companies often provided internal
security on Indian lands among the so-called “Five Civilized Tribes” in the
28
Id. at 78.
ROYAL B. HASSRICK, THE SIOUX : LIFE AND CUSTOMS OF A W ARRIOR SOCIETY 91 (1964).
30
See THE FEDERALIST NO. 29 (Alexander Hamilton) (“There is something so far-fetched
and so extravagant in the idea of danger to liberty from the militia . . . . What shadow of
danger can there be from men who are daily mingling with the rest of their countrymen
and who participate with them in the same feelings, sentiments, habits and interests?”).
31
LLEWELLYN & HOEBEL, supra note 22, at 102 (“[A] soldier chief was never permitted to
be a tribal chief at the same time.”).
29
217
Southeast.32 The very first written law of the Cherokee Nation 33 provided
for the formation of “regulating parties” of light-horsemen. A mid-19thcentury (non-Cherokee) source described them as “persons of courage
and intelligence . . . whose duty it was to ride through the nation, to decide
all controversies between individuals. In the unsettled state of the
community . . . much was left to their discretion . . . .”34 After the forcible
removal of many southeastern tribes to the Indian Territory, the Cherokee
National Council passed another bill establishing “a company of LightHorse-men” to punish, among other things, murder, arson, and
“endangering the peace and lives of the citizens of this Nation.” 35
Rennard Strickland has claimed that during the post-removal
period—a period marked by angry political disputes within the Cherokee
Nation—the light-horsemen “degenerated into private groups of vigilantes,
such as those suspected of executing the political vendettas of Chief John
Ross.”36 Although allegations of murder and general brutality were lodged
with Congress,37 it is unclear how much of the violence is attributable to
the light-horsemen per se, rather than individual partisans. 38 Nonetheless,
32
These were the Cherokee, Chickasaw, Choctaw, Creek, and Seminole nations, which
had successfully adopted a variety of Anglo-American legal and social practices.
33
CHEROKEE NATION, LAWS OF THE CHEROKEE NATION 3-4 (1995) (RESOLUTION OF “THE
CHIEFS AND W ARRIORS IN A NATIONAL COUNCIL ASSEMBLED,” SEPT. 11, 1808), AVAILABLE AT
HTTP://WWW .LOC.GOV/LAW /HELP/AMERICAN-INDIAN-CONSTS/PDF/28014184.PDF (LAST VISITED
JAN. 4, 2014).
34
THOMAS L. MCKENNEY& JAMES HALL, HISTORY OF THE INDIAN TRIBES OF NORTH AMERICA
WITH BIOGRAPHICAL SKETCHES AND ANECDOTES OF THE PRINCIPAL CHIEFS 89 (1849).
35
CHEROKEE NATION, supra note 33, at 130-31 (enactment of the National Council, Nov.
8, 1845).
36
RENNARD STRICKLAND, THE FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT
148 (1975).
37
See generally S. DOC. NO. 298 (Apr. 13, 1846).
38
Daniel Blake Smith presents the assassinations of several men associated with the
“Treaty Party,” for example, as the work of organized partisans. Daniel Blake Smith, An
American Betrayal: Cherokee Patriots and the Trail of Tears 1-2 (2011). And in The
Murder of Elias Boudinot, 12 Chron. of Okla. 23 (1934), Ross’s son claimed that the
assassination plan had to be kept from his father, who had stopped a previous attempt.
Carolyn Thomas Foreman has gathered some of the conflicting accounts of partisan
murders at the time. See The Light-Horse in the Indian Territory, 34 Chron. of Okla. 1922 (1956), available at http://digital.library.okstate.edu/Chronicles/contents/v034toc.html
218
some Cherokees complained of “a ‘police company’ . . . who arrested
whom they pleased, without any responsibility whatever . . . .”39
American political leaders of the time used the testimony of angry
Cherokee partisans to portray the Cherokee Nation as hopelessly
fractured—and probably in need of federal intervention. President Polk
used the violence and chaos in Cherokee territory to justify a threat to
dismember the Cherokee Nation in order to keep the peace. 40 That threat
gave him leverage to force Chief John Ross to make key concessions,
including acknowledging the validity of the Treaty of New Echota. 41
The light-horsemen, however, may not have been a militia in the
strictest sense; they were more a form of rough-and-ready law
enforcement. (The difference between the two is not always apparent
because a militia may also be called into service to perform law
enforcement duties.42) It may be that the light-horsemen were appointed
under an internal police power rather than any military power; the
Cherokee statutes are silent on the point. However, there is another
example from the same period of a tribe using a military power quite
explicitly.
Like the Cherokee, the Choctaw were removed from the Southeast
to the Indian Territory in the 19th century. The post-removal Constitution
of the Choctaw Nation, first ratified in 1838 and amended several times
between 1838 and 1860, provided initially for the creation of a “military
39
S. DOC. NO. 298 at 74 (Apr. 13, 1846). But see W ILLIAM G. MCLOUGHLIN, AFTER THE
TRAIL OF TEARS: THE CHEROKEES’ STRUGGLE FOR SOVEREIGNTY 1839-1880 (1993) (“Ross’s
opponents referred to these patrol companies as ‘vigilantes’ who . . . sought essentially to
arrest of shoot down Ross’s opponents . . . . [But] these patrols were not essentially
political in nature . . . . [L]ocated on the open prairie, the nation needed a mounted patrol
to deal with outlaw bands.”).
40
S. JOURNAL, 29th Cong., 1st Sess. 241-43 (1846) (statement by President James Polk
to Congress asserting that “internal feuds still exist, which call for the prompt intervention
of the government of the United States”).
41
See MCLOUGHLIN, supra note 39, at 55-57.
42
The U.S. Constitution, for example, allows Congress to authorize the use of the militia
to “execute the Laws of the Union,” as well as to “suppress Insurrections.” U.S. CONST.,
art. I, § 8, cl. 15. See also THE FEDERALIST NO. 29 (Alexander Hamilton) (discussing the
use of the militia “in those emergencies which call for the military arm in support of the
civil magistrate”); MALCOLM, supra note 6, at 3.
219
department” which was explicitly envisioned as being empowered to fight
in the event of “invasion or war.”43 The military department was essentially
a militia—“warriors” could be called into action by the “Militia Captains” “in
case of war,”44 and a “commander in chief” of the Nation’s forces was to
be elected only “in case of war.”45 Thus, immediately after removal, the
Choctaw Nation understood itself as having both an internal and an
external military power, to be exercised in time of need by the calling up of
a citizen militia.
In 1842, the Nation revised its constitution to eliminate the military
department and replace it with something called simply “the militia.” 46 With
minor adjustments, the militia statutes remained intact until 1906, when
the legal authority of the tribal government was effectively nullified by the
Curtis Act.47 Under the militia laws, the chief of each of the districts (and
later, the principal chief of the Nation) could call forth the militia “to
execute the laws of the Nation, to suppress insurrection and repel
invasion.”48
That language is drawn directly from the United States
Constitution;49 and as we saw above, the United States militia was
43
CHOCTAW NATION CONST., art. VI, § 2 (1838) (emphasis added), available at
http://s3.amazonaws.com/choctaw-msldigital/assets/325/1838constitution_original.pdf
44
Id.
45
Id. at § 4. The form of organization may have been based on customary military
organization existing prior to the constitution. See A Brief History of the Choctaw Nation,
FIVE CIVILIZED TRIBES,
http://www.fivecivilizedtribes.org/FiveTribes/Choctaw/ChoctawHistory.aspx (last visited
Nov. 24, 2013) (“Each town had . . . a War Chief who acted as leader of the town's
warriors. It was customary for the War Chief to appoint two assistants who became the
town's military captains.”).
46
CHOCTAW NATION CONST., art. VI, §§ 21-22 (1842), available at
47
An Act For the Protection of the People of the Indian Territory, § 28, 30 Stat. 495
(1898).
48
Compare CHOCTAW NATION CONST., art. VI, § 2 (1842), available at
(last visited Nov. 24, 2013), with CHOCTAW NATION CONST., art.VIII, § 3 (1860), available
at http://s3.amazonaws.com/choctaw-msldigital/assets/331/1860constitution_original.pdf
49
U.S. CONST., art. I, § 8, cl. 15.
220
understood to be a domestic force that did not fight abroad.50 This raises
the question: was the Choctaw Nation, by changing the language of its
constitution, consciously yielding the right to make war outside its own
territory, yet explicitly attempting to retain the power to use military force
within its territory?
In statutes providing for the organization of the militia, the Nation’s
General Council emphasized that the militia was being formed “[f]or the
better securing to the citizens of this nation their rights of person and
property . . . and for a speedy apprehension of murderers, robbers,
thieves, and any other criminals . . . .”51 However, there are at least two
good reasons to think the Choctaw Nation had not entirely surrendered its
right to fight external wars. First, every constitution from 1838 to 1860
includes a section prescribing a “mode of declaring war.”52 This is not
mere defensive war, as there is a separate provision for dealing with
“actual invasion by an enemy.” 53 Second, the Nation joined with the
Confederacy during the Civil War. Although the Choctaws “did little active
fighting during the war,” they did raise three regiments of troops, and the
Choctaw military officially surrendered to the United States at the close of
war.54 It seems relatively clear that whatever motivated the change in the
constitutional language, the Choctaw Nation did not, at least through the
Civil War, see itself as lacking an external military power.
Although the Choctaw militia could theoretically be used to
prosecute external wars, it seems to have been used primarily as a tool for
quelling internal unrest and enforcing the law. Angie Debo points to
several uses of the militia in this regard: reconstituting the civil order after
the Civil War;55 keeping the peace during whiskey riots; 56 and disrupting
gangs of cattle rustlers.57
50
See HEIDLER & HEIDLER supra note 19 and accompanying text.
CHOCTAW NATION, CONSTITUTION AND LAWS OF THE CHOCTAW NATION 243 (1894).
52
See, e.g., CHOCTAW NATION CONST., art. VII, § 12 (1860) (“The mode of declaring war in
this Nation shall be by at least two-thirds of the members of the General Council in full
Council, with the approval of the Principal Chief . . . .”).
53
Id.
54
ANGIE DEBO, THE RISE AND FALL OF THE CHOCTAW REPUBLIC, 85 (1961).
55
Id. at 93.
51
221
However, the Choctaw militia, like the Cherokee light-horse
company, was accused of being little more than a gang of thugs enforcing
the political will of the Principal Chief. In what Debo calls “the most serious
political disturbance in the history of the Choctaw people,” a close and
bitter 1892 election was marred by murders, and there followed an intense
partisan standoff over whether the light-horsemen could arrest a suspect
in the murders. 58 For days, members of the suspect’s political party, the
Nationals, guarded the suspect from both the light-horsemen and the
militia, which had been called out to enforce the orders of the Principal
Chief (the Chief belonged to the Progressive party). The militia shot up a
small town and then the two sides engaged in a largely ineffectual
shootout.59
Although the violence resulted in no deaths, it deeply frightened
Leo Bennett, the United States government’s Indian agent in Choctaw
territory. He reported to the Secretary of the Interior that:
the calling out of the militia by Governor Jones to arrest
Willis Jones was unnecessary and unlawful; that the acts of
said so-called militia have been contrary to the laws and the
constitution of the Choctaw Nation and that the conflict
precipitated by them was the act of a drunken irresponsible
and uncontrollable mob who were banded together as militia
for the evident purpose of murdering women and children,
thereby removing their political opponents, and so
intimidating others that the powers of the present party in
authority may be perpetuated. 60
Bennett declared that he could not think of any other way to defuse the
situation than for the United States to declare martial law in the Nation. 61
56
Id. at 178.
Id. at 193.
58
Id. at 174.
59
Id. at 169-172.
60
Report of the Secretary of the Interior, 1893, H.R. DOC. NO. 1, 53d Cong., 2d Sess. 8889.
61
Id. at 89.
57
222
Troops were sent, and order restored.62 United States soldiers remained
in the Nation for months afterward, 63 and the incident provided additional
impetus to the movement, already afoot in Congress, to strip tribal
governments of their ownership of and sovereignty over tribal land. Debo
writes that the incident “strengthened sentiment in favor of the law recently
passed . . . looking to the ultimate extinction of the tribal governments.”64
Loren Brown similarly concludes that “[i]f the opponents of tribal
government were looking for an excuse to bring their demands before
Congress and the people in a lurid light, they had just what they wanted in
the election troubles in the Choctaw Nation during the fall of 1892.” 65
These stories of political conflict in the Cherokee and Choctaw
Nations point out two potential disadvantages of a select militia for tribal
governments. First, a select militia’s legitimacy depends on the perceived
legitimacy of the government. If it is not the body of the people, it can
easily be seen as (and sometimes may, in fact, be) the partisan instrument
of an overreaching political regime. Second, the purported or actual
misuse of a militia may furnish the federal government with an excuse to
interfere in tribal affairs in order to “protect” the Indians from their leaders.
Such an excuse is far less credible where the militia represents the mass
of the people. So choosing a select militia over a universal militia poses a
special danger to Indian tribal governments.
3. A Modern Select Militia?—The GOON Squad at Pine
Ridge
The select militia could also be said to have played a role in 20thcentury political disputes in Indian country. On the Pine Ridge
Reservation, home to the Oglala Sioux, a political clash between
traditionalists and the tribal government, led by tribal chairman Dick
Wilson, famously erupted into an occasionally violent standoff with the
62
Id.
DEBO, supra note 54, at 172.
64
Id. at 173.
65
Loren N. Brown, The Establishment of the Dawes Commission for Indian Territory, 18
CHRONICLES OF OKLAHOMA 179 (1940) available at
http://digital.library.okstate.edu/chronicles/v018/v018p171.html (last visited Jan. 4, 2014).
63
223
federal government at the town of Wounded Knee in 1973. 66 What is
perhaps less well known is the role of Wilson’s select group of enforcers
called “the GOON squad.”67 Wilson claimed to be authorized to form such
a force under a tribal council resolution granting him certain powers to
deal with (as yet prospective) activities of the American Indian Movement
(AIM) on Pine Ridge.68 Although tribal police already patrolled the
reservation, they were at least nominally employees of the Bureau of
Indian Affairs (BIA).69 The GOONs, on the other hand, reported directly to
Wilson.70 In the run-up to the Wounded Knee standoff, the GOONs
intimidated and harassed Wilson’s political enemies—including AIM
members, traditionalist, “full-blood” Oglalas who were resistant to United
States federal influence on the reservation, and even other tribal council
members who challenged Wilson’s authority. 71 A failed attempt to impeach
Wilson—in part because of these abuses—precipitated the Wounded
Knee occupation. 72
During the occupation, the GOONs set up their own roadblocks,
which they used to harass and detain the occupiers and their allies. 73 After
the occupation ended and the United States Marshals left the area, Wilson
66
See Andrew H. Malcolm, Occupation of Wounded Knee Is Ended, N.Y. TIMES (May 24,
1973), http://www.nytimes.com/learning/general/onthisday/big/0508.html#article (last
visited Nov. 24, 2013); History—Incident at Wounded Knee, US MARSHALS,
http://www.usmarshals.gov/history/wounded-knee/index.html (last visited Nov. 24, 2013)
(calling Wounded Knee “the longest civil disorder in the history of the Marshals Service.”).
67
Although the name was originally a derisive epithet used by Wilson’s critics, the militia
itself claimed the name, reverse engineering a proud acronym: Guardians of the Oglala
Nation. AKIM D. REINHARDT, RULING PINE RIDGE 157 (2007).
68
Id. at 153, 157.
69
Id. at 153.
70
Id. at 158 (describing Wilson’s personal involvement in recruiting GOON Squad
members). It is thought, however, that the money to pay the GOONs did come from the
BIA. Id. at 157.
71
We Shall Remain: Wounded Knee at approx. 00:260:00 (PBS television broadcast
2009) (footage contemporary with the Wounded Knee incident in which Ellen Moves
Camp states, “The people were scared, and they are scared, of Dick Wilson and all his
men.”); REINHARDT, supra note 67, at 159 (quoting a 1973 news interview in which Vice
Chairman David Long noted, “I have bullet holes in my window and eight horses shot.”).
72
REINHARDT, supra note 67, at 176-88; VOICES FROM W OUNDED KNEE, 1973: IN THE
W ORDS OF THE PARTICIPANTS 25-32 (1974) [hereinafter VOICES].
73
Id.
224
consolidated power74 and actually ramped up the intimidation. Wilson was
not shy about his intentions, telling an interviewer “The Oglalas don’t like
what happened. If the FBI don’t get ‘em, the Oglalas will. We have our
own way of punishing people like that.”75 When the interviewer asked if
this included “shooting on the reservation,” Wilson smiled wryly: “You said
it.”76 During the years following Wounded Knee, Pine Ridge had the
highest murder rate of any jurisdiction in the United States; political
enemies of Dick Wilson died or disappeared on a regular basis. 77
One may ask the question: was Wilson’s force a militia, or
something else—secret police, perhaps? To ask the question is merely to
underline the problem the early Americans had with select militias to begin
with. Once the use of force by the government is taken out of the hands of
the general polity and placed in the hands of a select group of loyalists,
the danger of secret-police-like tactics increases. King Charles had his
“militia;” Wilson had his Orwellian “Guardians of the Oglala Nation.” Both
used a loyal group of enforcers to crack down on political opposition—the
core fear of John Smilie, the Federal Farmer, and others.
B.
Non-Government Militias
We have seen two possible ways of organizing the people to create
an internal fighting or security force that is separate from the army. There
is the universal militia: the general class of able-bodied men, who may be
trained formally or informally to use force on behalf of the people. And
there is the select militia: a smaller group, less representative of the
people, but perhaps more highly trained.
There was also a third sort of militia, one which bedeviled the
American republic from the beginning and tended to upset the neat
74
REINHARDT, supra note 67, at 204-05.
We Shall Remain, supra note 71, at approx. 01:11:00 (interview with Dick Wilson).
76
Id.
77
See Timothy Williams, Tribe Seeks Reopening of Inquiries in ’70s Deaths, N.Y. TIMES
(June 15, 2012), http://www.nytimes.com/2012/06/15/us/sioux-group-asks-officials-toreopen-70s-cases.html?_r=0 (last visited Nov 3, 2013) See also INCIDENT AT OGLALA at
approx. 00:23:00-00:28:00 (Miramax 1992) (various Pine Ridge residents describing the
post-Wounded Knee atmosphere as a “reign of terror” and the GOONs as “death
squads”).
75
225
select/universal dichotomy. This was the spontaneously formed, unofficial
citizens’ militia. Such “militias” often attempted to found their legitimacy on
the same popular right to resist tyranny that the universal militia ultimately
represented. In practice they usually represented only a fraction of the
populace.
Both Shays’ Rebellion in 1786-87 (which took place just before the
Constitutional Convention) and the Whiskey Rebellion in 1791-94 (under
the newly-formed Constitution), for example, came clad in the garb of
militia activity. In both cases, despite constituting only a small minority, the
rebels posited themselves as true representatives of the people 78 and
challenged the legitimacy of government institutions.79 They mimicked the
dress and customs of the revolutionary militia in order to show continuity
with those now-celebrated bodies.80 Shays’ Rebellion in particular
precipitated a crisis in public order, as many members of official state
militias refused to fight—and in rare cases even joined—the Shaysites.81
Saul Cornell writes that “Shays’ rebellion exposed a tension in American
constitutional theory: was the militia an agent of government authority, or
was it a popular institution that might serve as a check on government?” 82
The Whiskey Rebellion showed that even after the adoption of the new
78
SAUL CORNELL, A W ELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF
GUN CONTROL IN AMERICA 32 (2006) (“[T]he Shaysites cast themselves as champions of
the ‘good of the commonwealth’ . . . invoking the metaphor of the ‘Body of the People’ . . .
. The voice of the people spoke not through written constitutional texts, but directly
through popular assemblies, including the militia.”); id. at 80 (“[T]he rebels . . . used the
language of civic obligations and republican liberty.”).
79
Id. at 31 (stating that the Shaysites “challenge[d] their own state government’s
authority” and “shut down the local courts [to] prevent [farm] foreclosures”); id. at 77
(quoting one Whiskey Rebel: “It was time there should be a Revolution—that Congress
ought either to Repeal the Law or allow these people to set up a government for
themselves . . . .”).
80
Id. at 32 (“The Regulators . . . went to extraordinary lengths to dispel the idea that they
were a mob. Their actions and their rhetoric self-consciously drew on symbols
associated with the Revolutionary militia.”); id. at 79-80 (“As had been true of the
Shaysites before them, the Whiskey Rebels appropriated the rituals and rhetoric of the
militia muster to . . . give their actions legitimacy.”).
81
Id. at 33.
82
Id.
226
Constitution, the possibility of spontaneous citizens’ militias “remained a
latent force to be reckoned with.”83
After the Civil War, that “latent force” reappeared in the
Reconstruction South. Like the Stuart select militia in 17th-century
England, post-War Southern state militias embarked on a campaign of
disarming their fellow citizens: “[T]he head of the Freedmen’s Bureau . . .
reported that . . . militias were ‘engaged in disarming the negroes.’” 84
When the federal government, in response, insisted on integrating the
militias, white citizens abandoned the formal militia in favor of the Ku Klux
Klan.85 The conflict that followed was essentially a clash of two militias
representing two different (and antagonistic) segments of Southern
society—the official select militia, mostly black, and the shadow militia,
entirely white.
The subject of spontaneous citizens’ militias erupted into the public
discourse in the mid-1990s, after Timothy McVeigh parked a truck full of
explosives next to Oklahoma City’s Alfred Murrah Federal Building. 86
McVeigh and his accomplice, Terry Nichols, were originally believed to be
associated with the “Michigan Militia,”87 a private militia group whose
website today sports the slogan “Defending Against Disaster, Crime,
Terrorism, and Tyranny.”88 The connection turned out to be weak—
according to the Christian Science Monitor, “McVeigh considered groups
like the Michigan Militia ‘too moderate’ and saw himself as ‘a man of
action’ who wanted to do more than just vent.”89 The Michigan Militia
83
Id. at 85.
Id. at 175.
85
Id. at 176-77.
86
History and Mission, OKLA. CITY NAT’L MEM’L.
http://www.oklahomacitynationalmemorial.org/secondary.php?section=1&catid=193 (last
87
Robert D. McFadden, Links in Blast: Armed 'Militia' and a Key Date, N.Y. TIMES at A1.
(Apr. 22, 1995) available at http://www.nytimes.com/1995/04/22/us/terror-in-oklahomathe-far-right-links-in-blast-armed-militia-and-a-key-date.html (last visited Jan. 4, 2014).
88
MICHIGAN MILITIA, http://www.michiganmilitia.com/ (last visited Nov. 24, 2013).
89
Mark Guarino, Could the Hutaree militia have spawned a Timothy McVeigh?,
CHRISTIAN SCIENCE MONITOR (Mar. 31, 2010),
http://www.csmonitor.com/USA/Justice/2010/0331/Could-the-Hutaree-militia-havespawned-a-Timothy-McVeigh (last visited Nov. 24, 2013).
84
227
strenuously denied that the group had been involved in the bombing. 90
The link called attention to a groundswell of private “militias” and raised
questions about whether they truly represented a return to the grand
American tradition of the engaged citizen as a buffer against tyranny.
Brannon Denning, a Second Amendment scholar writing not long
after the bombing, took a skeptical but appreciative position on private
militias. Denning emphasized the community-building nature of militia
practice and saw the historical transition away from citizen militias and
toward the professionalized National Guard system as highly problematic:
Many present day commentators seem unwilling to
acknowledge the unique role that the militia filled, one that is
not easily replaced . . . .[In the Founders’ view] [c]ivic virtue
and a willingness to subordinate all private concerns to those
of the community were conditions precedent to the
establishment of a virtuous republic. 91
But Denning also recognized that the anti-government philosophy
animating the modern militia movement was so paranoid as to undermine
claims to civic virtue:
[M]embers tend to share the same fears: federal gun control,
erosion of national sovereignty, emergence of a United
Nations led “one world government” and the invasion of the
United States by shadowy socialist forces. The movement
seems to have been further galvanized by both the Randy
Weaver trial and the Branch Davidian standoff in Waco,
Texas. Many . . . speak fatalistically about a coming
showdown with the federal government . . . .
[T]hose participating in this new militia movement are not the
successors to the heritage of the colonial militias . . . .Nor is
90
See McFadden, supra note 87 (“We have denounced the entire incident as an act of
barbarity . . . . It's totally alien to everything we believe. We are totally defensive. We do
not engage in terrorism.”).
91
Brannon P. Denning, Palladium of Liberty? Causes and Consequences of the
Federalization of State Militias in the Twentieth Century, 21 OKLA. CITY U. L. REV. 191,
239 (1996).
228
Dennis Henigan completely wrong when he makes the point
that “the Framers understood the militia to be an instrument
of governmental authority.”92
The private militias have certainly had a tendency to sound
paranoid. Shortly after the Oklahoma bombing, two leaders of the
Michigan Militia came forward with a theory that the attack had been
organized by the Japanese government and that “Japan had paid CIA
agents to bug President Clinton's offices.”93 The Southern Poverty Law
Center asserts that the militia movement, “which in the past was not
primarily motivated by race hate,” has in more recent years become
infected with racial animus.94
Today’s Michigan Militia aims to present a non-threatening, familyfriendly face, inviting the public to “open carry” (that is, armed) picnics 95
and posting a letter from a mother of three on its website. 96 More directly
to Denning’s point about civic virtue the group in its FAQ heavily
emphasizes active involvement and personal sacrifice.97
There is some evidence that the government has been overzealous
in raiding and prosecuting militias for what are lawful activities. The
Federal Bureau of Investigation (FBI) raided another Michigan group, the
“Hutaree,” in 2010, only to have a federal judge throw out sedition and
92
Id. at 229-30.
Two Leaders of Paramilitary Group Resign, N.Y. TIMES (Apr. 30, 1995),
http://www.nytimes.com/1995/04/30/us/terror-in-oklahoma-michigan-militia-two-leadersof-paramilitary-group-resign.html (last visited Nov. 24, 2013).
94
Southern Poverty Law Center, The Second Wave: Return of the Militias, SLPC (Aug.
2009), http://www.splcenter.org/get-informed/publications/splc-report-return-of-themilitias#.UZRStoL3g08 (last visited Nov. 24, 2013).
95
Fara Warner, A Militia Reboots, DAILY BEAST (Apr. 13, 2010),
http://www.thedailybeast.com/articles/2010/04/13/a-militia-reboots.html (last visited Nov.
24, 2013).
96
Kristin Stoner, While it is True You Can Learn a Lot by Asking, You Can Learn More by
DOING…, MICHIGAN MILITIA, http://www.michiganmilitia.com/SMVM/faq/faq.htm (last
97
See id. (“You do not ‘belong’ to a militia; you ‘participate’ in one. . . . [W]hile many of
our fellow citizens are nestled warmly around a mug of hot cocoa, or sitting on the couch
watching the game, we were nestled not-so-warmly in sub-freezing snow; out in the field
DOING stuff.”).
93
229
conspiracy charges against the group.98 An expert interviewed by the New
York Times noted that the Hutaree appeared to be “engaged in political
speech,” and their defense attorneys similarly invoked the First
Amendment.99 The militia members are now suing the FBI over the
incident.100
For our purposes, what may be most interesting about the private
militias is their size: the Michigan Militia claimed only 217 members in
2010,101 while the Hutaree may have just 20. 102 Yet over nearly two
decades private militias have been able to stir the interest of the public at
large (which has never quite been able to decide whether they were
risible103 or alarming104) and to convince their members of their own
legitimacy as a genuine exercise of popular sovereignty. For the most
part, private militias are harmless. However, their existence is unsettling
because it suggests that small groups of individuals (like the Shaysites
and the Southern post-Civil War white militias) may be attempting to take
on the mantle of popular sovereignty—and perhaps even the popular right
of revolution—without having bothered to consult the people. The right of
98
Nick Bunkley, U.S. Judge in Michigan Acquits Militia Members of Sedition, N.Y. TIMES
(Mar. 27, 2012), http://www.nytimes.com/2012/03/28/us/hutaree-militia-membersacquitted-of-sedition.html (last visited Nov. 24, 2013).
99
Id.
100
Niraj Warikoo, Hutaree Militia Members Sue State Cop and FBI Agents, DETROIT FREE
PRESS (Apr. 9, 2013),
http://www.freep.com/article/20130409/NEWS05/304090086/1001/news (last visited Nov.
24, 2013).
101
Warner, supra note 95.
102
Hutaree Militia Fact Sheet, ANTI-DEFAMATION LEAGUE,
http://archive.adl.org/main_extremism/hutaree_militia_facts.html#.Usz8WfQ59XU (last
103
See, e.g., BOWLING FOR COLUMBINE (United Artists 2002); Moxy Früvous, Michigan
Militia, on YOU W ILL GO TO THE MOON (Warner Music Canada 1997).
104
See, e.g., Chris Rovzar, Are the Members of the Michigan Militia Terrorists?, N.Y.
MAG. (Mar. 30, 2010)
http://nymag.com/daily/intelligencer/2010/03/are_the_members_of_the_michiga.html (last
visited Nov. 24, 2013); Eileen Pollack, The Extremists Next Door, N.Y. TIMES (Apr. 18,
2010) http://www.nytimes.com/2010/04/19/opinion/19Pollack.html?_r=0 (last visited Nov.
24, 2013); Michelle Green, Shadow Warriors, PEOPLE, May 8, 1995, at 58.
230
revolution was one that the Founders assumed was the prerogative of the
whole people, not a tiny, self-appointed team.105
Again using the Anglo-American framework as background, we can
now examine some examples of militias formed spontaneously by the
people themselves in Indian country. Like their Anglo-American
counterparts, these groups often put themselves out as representing the
interests of the people, but are painted by their opponents as small bands
of malcontents with little legitimacy.
1.
American Indian Movement (AIM)
The Pine Ridge standoff, discussed above in Part I.A.3, involved
armed groups on both sides. The AIM side, though partly made up of
outsiders claimed to represent the people of Pine Ridge. Given Dick
Wilson’s dictatorial practices, they may well have been right. 106
Nonetheless, AIM was neither composed of a substantial majority of the
Pine Ridge populace nor sponsored by any government, which made it
easier for both Wilson and the United States government to suggest that
they were malcontents and communist agitators, not a genuine popular
movement.107 Over the long run, even those who had supported the
occupation ultimately moved away from full-throated support for the AIM
105
Even the early Americans most invested in the popular right of revolution thought
revolutions should occur, where possible, through deliberation and voting, not through
mob violence. See THOMAS PAINE, COMMON SENSE (1776) (“[I]t is infinitely wiser and
safer, to form a constitution of our own in a cool deliberate manner, while we have it in
our power, than to trust such an interesting event to time and chance. If we omit it now,
some Massenello may hereafter arise, who laying hold of popular disquietudes, may
collect together the desperate and the discontented, and by assuming to themselves the
powers of government, may sweep away the liberties of the continent like a deluge.”).
106
See, e.g., VOICES, supra note 72, at 102 (noting that the Porcupine District of the
reservation passed a resolution supporting the Wounded Knee occupiers); REINHARDT,
supra note 67, at 208 (“Wilson was finally defeated in the more rigorously regulated 1976
election . . . . The rejection of Wilson in an honest election was not surprising.”).
107
VOICES, supra note 72, at 125-26 (reprinting Dick Wilson’s open letter claiming that
Wounded Knee was a “long range plan of the Communist Party”); REINHARDT, supra note
67, at 176-77 (describing the FBI’s mistaken belief that AIM was driving, rather than
catching up to, events on Pine Ridge).
231
itself,108 suggesting some discomfort with a self-appointed militia even
when its motives were praiseworthy.
2.
The Mohawk Warrior Society
Among the Mohawk living at Akwesasne, an area straddling the
border between New York and Quebec, the “Mohawk Warrior Society” has
often been at the center of political controversies on and off the
reservation. The Warrior Society is an unusual organization: outside all
channels of official government, it nonetheless occasionally claims that it
acts under the aegis of the traditional tribal government. Mohawk journalist
Kenneth Deer, on the other hand, has directly compared the Warriors to a
spontaneous citizens’ militia and says that “[t]here’s no membership to the
Warrior Society . . . . It's just a name. It's just a way to organize men when
there's something to be done.” 109
The Warriors have flitted in and out of alliance with various political
factions since the early 1970s—unsurprising, perhaps, given the complex
governmental arrangements in Mohawk territory. The tribe is officially
represented by the Tribal Council of the St. Regis Mohawk Tribe110 on the
New York side and the Mohawk Council of Akwesasne111 on the Canadian
side; both are democratically elected. However, there are also traditional
governing bodies like the “Mohawk Nation Council of Chiefs” operating at
Akwesasne.112 The “Kahnawake branch of the Mohawk,” a sort of
traditionalist shadow government in one of the territories on the Canadian
side, states on its website that at least one Warrior Society was
“authorized” by the “Mohawk Nation Council of Chiefs at Kahnawake” in
1972. It was charged “to carry out the resolutions of the Clans in Council
and to serve as the defensive vanguard of the Longhouse.” 113 For
108
REINHARDT, supra note 67, at 208-209.
Mohawk Warriors to Get Military Apology, CBC (Dec. 21, 2010),
http://www.cbc.ca/news/canada/montreal/story/2010/12/20/mohawk-military-apology.html
110
SAINT REGIS TRIBAL COUNCIL, http://www.srmt-nsn.gov/ (last visited Nov. 24, 2013).
111
AKWESASNE.CA, http://www.akwesasne.ca/ (last visited Nov. 24, 2013).
112
See generally MOHAWK NATION, http://www.mohawknation.org (last visited Nov. 24,
2013).
113
National Defense and Public Security, KAHNAWAKE LONGHOUSE,
http://www.kahnawakelonghouse.com/index.php?mid=1&p=3 (last visited Nov. 3, 2013).
109
232
decades the more traditional bodies have insisted that the federally
recognized, elected governments were not legitimate Mohawk institutions,
but the tools of colonial home-rule.114 The Warrior Society may have
emerged, originally, as a weapon in that fight. 115 Rick Hornung reports that
“[f]or two years [1971-73], the Warriors wrangled with the elected chiefs in
confrontations that verged on violence.”116
However, the Warriors have not been purely an agent of
traditionalists agitating for recognition and clashing with the
elected/federally-recognized governments. Certainly, the Warrior Society
seems to have followed its own course and set its own agenda, especially
during the heightened tensions around casino gambling at Akwesasne in
1989-90.117 The Warriors’ primary interest seems always to have been in
excluding Canadian and United States authorities from Mohawk territory.
During the gambling crisis they frequently forestalled attempts by both
traditional and elected governments to bring in outside police or armed
forces.118
At other times, the Warriors acted as an impromptu internal security
force—for example, preventing a political demonstration from disrupting
114
See, e.g., About the Mohawk Nation Council of Chiefs, MOHAWKNATION.ORG,
http://www.mohawknation.org/index.php?option=com_content&view=article&id=47&Itemi
d=56 (last visited Nov. 24, 2013) (“The Mohawk Nation Council, its Chiefs, Clan mothers
and Faith keepers are not to be confused with the St. Regis (Mohawk) Tribal Council . . . .
The St. Regis Tribal Council exists because the United States Government has chosen to
recognize . . . ‘a government that it created’, instead of the one that was given to the
Mohawk people by the Creator.”); Akwesasne, IROQUOISMUSEUM.ORG,
http://www.iroquoismuseum.org/akwesasne.htm (last visited Nov. 24, 2013) (“The
Mohawk Council of Akwesasne was forcibly imposed on Akwesasne by Canada. The St.
Regis Band Council was forcibly imposed on Akwesasne by the United States.”).
115
RICK HORNUNG, ONE NATION UNDER THE GUN 28 (1991) (“[T]he Warriors see the
elected tribal councils as mere adjuncts to the U.S. and Canadian governments.”).
116
Id. at 21.
117
See generally id. at 16, 28-29, 32-64 (detailing the role of the Warrior Society in
factional disputes in the Mohawk Nation).
118
See id. at 21 (“[T]he Canadian chiefs called in the Quebec provincial police, the
Sûreté du Québec, but the Warriors drove them out.”); id. at 33-34 (recounting a situation
in which the Warriors repelled, temporarily, an FBI/state police joint patrol attempting to
enter Mohawk territory); id. at 63-64 (“[T]he [police] major said . . . officers would contact
the [Warriors] if police were called . . . . He also offered a guarantee that troopers would
not stray from Route 37 during routine traffic patrols . . . .”).
233
traffic on the reservation.119 Unlike Wilson’s GOONs, the Warriors
frequently avoided violence and claimed to prefer political means. 120 The
female Warriors seem to have encouraged the men to think about longterm political gains instead of the immediate satisfaction of violent
skirmishes. Minnie Garrow says of the Warriors at the time:
The men were focused on the police and protecting our
community from outsiders. These are very real problems that
require enormous concentration, but we also have to see
beyond this role . . . . How do we go from a group that is
always fighting the police to a group that is willing to stand
on our own?121
Diane Lazore adds: “The people trusted us for protection. Now we had to
win their trust for leadership . . . .”122
Predictably, given the heated nature of the fight over casinos in
Akwesasne at the time, the Warriors have their detractors. The Warriors
themselves always maintained that their focus was Mohawk territorial
sovereignty123 and they claim to have attempted to avoid direct
commercial entanglements with controversial enterprises like gambling
and smuggling.124 Anti-gaming activist and publisher Doug George has
said that the Warriors’ talk of sovereignty was code for “their right to make
119
Id. at 83.
Id. at 35 (“Despite the tough talk and the previous sighting of guns by undercover
cops, the Mohawks did not display any firearms.”); id. at 42 (“With Maracle pushing for a
confrontation, Kakwirakeron had to project militancy but stop short of any display of force
or armament.”); id. at 78 (“[T]he Warriors met with the casino owners to get assurances
that their security guards would not be provoked into a fight that would give police an
opportunity to come again.”); id. at 54 (“‘I support the march as all Warriors support
anything peaceful,’ said Warrior John Boots. ‘If this march can help the so-called elected
leadership understand that they have neglected us and our needs as Mohawks, then it
will be a real success.’”).
121
Id. at 61-62 (internal quotation marks omitted).
122
Id. at 62 (internal quotation marks omitted).
123
Id. at 42 (“Kakwirakeron, Boots, and Maracle knew the warriors needed to . . . present
sovereignty, not gambling, as the key issue.”).
124
Id. at 79-81 (recounting discussions within the group about whether or not to embrace
gambling and cigarette smuggling as sources of revenue). On the other hand, see id. at
1 for a description of Warriors smuggling weapons across the Canadian border; whether
this is primarily for profit or to help the ideological struggle is not made clear.
120
234
a buck by crap games or tobacco smuggling,” and criticizes them for not
having put forth a coherent political plan for uniting Akwesasne. 125
Traditional Chief Jake Swamp attacks Kakwirakeron, a prominent Warrior,
as a self-promoting outsider:
He will tell you about Moss Lake126 and how he fought for
the Mohawk Nation. Well, what happened . . . ? Within a few
years he left for California. . . .He did not come onto Mohawk
land and join the community and participate in our life. But
as soon as there is talk of the state police, he shows up with
his long braids and big shoulders. A good picture for the
newspaper and the television, but this is not his land . . . .127
The newspaper Akwesasne Notes occasionally published scathing
editorials calling the Warrior Society everything from an illegitimate
“militant group” playing on public sympathies 128 to a “military
dictatorship,”129 “like a bunch of Nazi thugs.”130
Canada’s military establishment is also not enthusiastic about the
Warrior Society, which it included in a 2006 draft list of “potentially violent
insurgent group[s].”131 Although the government later offered an apology
for the inclusion,132 the Canadian military’s view of the Warrior Society
was undoubtedly shaped by the “Oka crisis.”133 During the crisis, Warriors,
after months of wrangling with anti-gambling forces and American
authorities on the New York side, 134 crossed the border to aid Mohawks
demonstrating against the development of a golf course on traditional
Mohawk land. Hornung describes the Canadian reaction:
125
Id. at 47.
Site of a longstanding Warrior occupation that ended with a state set-aside of 5,000
acres for the Mohawk to hunt and fish in. Id. at 21.
127
Id. at 49.
128
“Warrior Society,” AKWESASNE NOTES, June 30, 1990.
129
Charlotte Debbane, The Rule of the “Warriors”, AKWESASNE NOTES, May 31, 1990.
130
The Crisis at Akwesasne, AKWESASNE NOTES, Jan. 31, 1990.
131
Mohawk Warriors to Get Military Apology, CBC (Dec. 21, 2010),
http://www.cbc.ca/news/canada/montreal/story/2010/12/20/mohawk-military-apology.html
132
Id.
133
See id.
134
See, e.g., HORNUNG, supra note 115, at 111-132.
126
235
On the American side of the border . . . [t]he authorities
handled the Warriors as yet another fringe group exercising
their distinctly American rights to dissent and bear arms. . . .
In Canada, citizens do not have a constitutional right to bear
arms, particularly against the government . . . . When the
Warriors crossed the border, provincial and federal officials
saw the presence of heavily armed Mohawks as an
insurrection. . . .135
Invited in by some Canadian Mohawks to help sustain a blockade
preventing access to the disputed site,136 the Warriors and other
protesters initially did not carry weapons.137 By the time court orders had
been issued against the occupying Mohawks and the Sûreté du Québec
(provincial police) were ordered in to clear the barricade, guns were on
site. Sûreté officers fired tear gas, shooting started, and after a few
minutes of chaos, a Sûreté corporal had been fatally shot. 138 The
Canadian government then brought in the military. Internal disagreements
between the Warriors and other protesters weakened the effectiveness of
their campaign,139 and eventually, after 78 days, the Mohawks came out of
the woods. Although many fled, twenty-three Warriors were arrested in a
confused, but largely bloodless, series of melees with police and the
army.140
The Warriors still exist, at least as an idea,141 but since the Oka
crisis they have been far less visible. The Mohawk Warrior Society
135
Id. at 3-4.
Id. at 186,188.
137
Id. at 188-89; CBC Television News (CBC television broadcast April 27, 1990)
(interview with unidentified Mohawk who says he is not armed, but adds, “But the Creator
will provide”), available at http://www.cbc.ca/archives/categories/politics/civil-unrest/theoka-crisis-1/bubbling-frustration-and-anger.html (last visited Nov. 24, 2013).
138
The National (CBC television broadcast July 11, 1990), available at
http://www.cbc.ca/archives/categories/politics/civil-unrest/the-oka-crisis-1/the-stand-offbegins.html (last visited Nov. 24, 2013).
139
See generally HORNUNG, supra note 115, at 226-77.
140
The National (CBC television broadcast, Sept. 26 1990), available at
http://www.cbc.ca/archives/categories/politics/civil-unrest/the-oka-crisis-1/the-stand-offbegins.html (last visited Nov. 24, 2012).
141
See Kahnawake Branch of the Mohawk Nation, supra note 113. See also “Mohawk
Warrior Society” profile, FACEBOOK, https://www.facebook.com/pages/Mohawk-Warrior136
236
provides an interesting model through which to understand the benefits
and drawbacks of spontaneous citizens’ militias. In many ways the
Warriors mirror the most radical conceptions of the American militia to
arise during the Founding era: those embodied in Shays’ Rebellion and
the Whiskey Rebellion. Like the Warriors, the Shaysites and the Whiskey
Rebels disputed the legitimacy of democratic institutions and their officers;
consciously adopted popular imagery of the past; insisted that they were
carrying on in the true spirit of their culture’s most important principles;
and occasionally rallied support from the people. 142 Like the Warriors, they
were defeated militarily but helped focus public attention on the questions
raised by their very existence. 143
Since the Washington administration, the United States
government has viewed spontaneous, non-state-sponsored militias with
deep suspicion, seeing them as a gateway to mob rule. As outlined above,
there is good reason for such skepticism; spontaneous citizen militias are
almost never of sufficient numbers to claim the inherent legitimacy of the
universal militia, and by definition they cannot derive legitimacy from the
government’s democratic institutions. It should always make us nervous
when armed private citizens claim the mantle of “the people.”
The same principles probably apply to reservation politics.
Organizations like AIM and the Warrior Society set themselves up in
opposition to what they see as unlawful governmental intrusion on the
people’s liberty. But precisely because a legitimate government does not
back them, they carry a certain burden of proving that they accurately
represent the people’s interests. Additionally, since they form only a part
of “the people,” their opponents (both tribal and federal) can easily paint
them as an extremist fringe.
Society/35272274775 (last visited Nov. 3, 2013)) (Facebook page for fans of the
Warriors); The Warriors Within, N. Y. PRESS, (Feb. 8, 2006) http://nypress.com/thewarriors-within/
(last visited Jan. 13, 2014) (profile of Paul Delaronde, a Warrior from the Moss Lake
era).
142
See supra notes 77-80, and accompanying text.
143
CORNELL, supra note 78, at 85 (“While the defeat of the Whiskey Rebels was certainly
a setback for the opponents of the Federalist agenda . . . the notion that the militia might
actively or passively protest unjust federal policies remained a latent force to be reckoned
with in American constitutionalism.”).
237
All this may seem to be somewhat irrelevant to the question of
whether tribal governments may (or should) form official tribal militias. But
I think these stories of unofficial militias can shed some light on that issue
in two ways. First, the unofficial militias stand as a counterpoint to the
official use of citizen militias. To the degree that “armed Indians” may
strike some atavistic chord of unease among federal officials, it may be
useful for tribal governments to distinguish their clearly lawful activities
from the somewhat more dubious activities of the unofficial militias. On the
other hand, AIM and the Mohawk Warrior Society were arguably modern
Indian expressions of the same communitarian (if also slightly anarchic)
militia spirit that animated so much of early American civic thought and
played a countermelody to the dominant tune of Federalism. Presumably,
if they could create legitimate democratic structures through which to
channel it, at least some contemporary Indian societies might find it
advantageous to tap into that spirit.
II.
MAY TRIBES STILL EXERCISE THE MILITIA POWER?
While the dominant theme of Part I was the authority and
composition of the militia itself, the theme of Part II is the nature of the
militia power, which I hope to show is a power of inherent sovereignty that
tribal governments retain to this day. Prior to being absorbed into the
United States, Indian tribes had all the sovereign powers that any nation
claims—including the power to use military force. The question now is,
how much of that power is left? Having examined a number of treaties, as
well as federal statutory law and a few other sources of law, I conclude
that tribes likely retain at least the “militia” power, which is the power to
organize the people for the purposes of (1) defense from invasion and
(2) internal security. 144
Here the Anglo-American model, oddly enough, may prove useful
to the cause of tribal sovereignty. The United States Constitution already
provides a neat framework for dividing the military power between that
used for external warfare (the power to “raise Armies,” in the Constitution’s
144
Recall U.S. CONST. art. I, § 8, cl. 15 (authorizing the use of the militia “to execute the
Laws of the Union, suppress Insurrections and repel Invasions”), as well as the militia’s
role as the defense and security force of the state government, see infra Part II.C.
238
terms) and that used for defensive and internal purposes (i.e., the militia
power). Because the history of treaty relations with the United States
suggests that the federal government was primarily worried about the
exercise of the former power, and not the latter, there is a very good
argument that the latter power remains viable today.
A.
General Indian Law Principles
As a general rule, tribes retain all the aboriginal powers of
sovereignty that have not been “extinguished” by agreement in the treaty
process or by Congress through its so-called “plenary power” over Indian
affairs.145 The military power is one of the fundamental rights of
sovereignty—so much so that the unique system of co-sovereignty
created in the United States Constitution splits the military power between
the States and the federal government.146 Equally foundational to the
notion of sovereignty is the power to exclude others from one’s territory. 147
It follows that the power to effectuate that exclusion is also a part of
sovereignty.
Thus, absent restrictions accomplished through treaty, or clear
statutory limitations created by Congress, Indian tribes retain their inherent
military powers—especially the portion of the military power necessary to
exclude unwanted parties and maintain order within their own territory.
In the following sections, I introduce treaties as the most likely and
most authoritative source of any limitations on the tribal military power.
The Supreme Court has been inconsistent in its treatment of treaty
145
See, e.g., United States v. Lara, 541 U.S. 193, 197 (2004) (holding that criminal
jurisdiction over tribal offenders was one of the inherent powers of tribal sovereignty
which had not been extinguished); COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 18.04 [2]
[a] at 1164; and § 18.04 [2] [e] at 1169 (2012) (“Perhaps the most basic principle of all
Indian law … is the principle that those powers which are lawfully vested in an Indian
tribe are not, in general, delegated powers granted by express acts of Congress, but
rather inherent powers of a limited sovereignty which has never been extinguished.”).
146
U.S. CONST. art. I, § 8, cl. 16.
147
See Arizona v. United States, 132 S. Ct. 2492, 2511 (2012) (Scalia, J., dissenting)
(emphasis added) (“[M]ost would consider the defining characteristic of sovereignty . . .
[to be] the power to exclude from the sovereign's territory people who have no right to be
there.”).
239
rights,148 but it is fair to say that today treaties are honored, at least in
principle, as part of the foundational corpus of Indian law. Indeed, the
strong form of the argument is that treaties are the only legal framework
for dealing with Indian tribes that is constitutional in scope. They are the
only records of any sort of consent to be governed equivalent to the
consent of the States to enter into the constitutional arrangement. 149 Like
the Constitution, treaties are presumptively binding on tribes and the
federal government alike, even in the absence of any enabling statute.
Of course, treaties are not uniform in their legitimacy (i.e., in
documenting the consent of the governed); nor are they nationwide in
scope (because they necessarily apply only to the signatory tribes).
Nonetheless, although each treaty applies only to certain tribes, all treaties
bind the United States government. Treaties are thus our window into the
federal government’s view of which powers the tribes had to surrender to
become part of the Union. One could argue, therefore, that treaties
collectively throw a sort of shadow, outlining the shape of what the United
States understood to be the lost—or retained—sovereign powers of the
tribes.150
To complete the picture I also examine federal statutes for possible
limitations on the tribal military power and raise the question of whether
state governments should have any say in regulating tribal militias.
148
Compare Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (holding that Congress may
unilaterally alter Indian treaties), with United States v. Sioux Nation of Indians, 448 U.S.
371 (1980) (affirming an Indian Claims Commission finding an uncompensated taking of
the Black Hills, which had been guaranteed to the Sioux by treaty).
149
See, e.g., FRANK POMMERSHEIM, BRAID OF FEATHERS: AMERICAN INDIAN LAW AND
CONTEMPORARY TRIBAL LIFE 40 (1995) (explaining that treaties form “the primary doctrinal
grounding for the recognition of tribal sovereignty,” “the foundation for the recognition of a
government-to-government relationship,” and “the closest thing to a (federal)
constitutional benchmark” in Indian affairs).
150
A similar method was used, controversially, in Justice Rehnquist’s majority opinion in
Oliphant v. Suquamish Indian Tribe, where he drew on the terms of an 1830 treaty with
the Choctaw and an 1855 treaty with the Suquamish (as well as other sources) to find a
broad lack of tribal criminal jurisdiction over non-Indians. 435 U.S. 191, 197-99, 206-207
(1978). It seems to me that turnabout is fair play, and that this method ought be available
to argue in favor of retained tribal sovereignty as well as against.
240
B.
Treaties
As Stuart Banner has noted, there is a standard narrative lurking in
the background of our popular culture that “[t]he Indians were . . .
conquered by force,”151 an idea that has informed legal doctrine since at
least 1823.152 What then are we to make of the extensive body of treaties
between the United States and Indian tribes? Is it the case, as Banner
admits he originally assumed, that “Americans and their British colonial
predecessors papered over their conquest with these documents to make
the process look proper and legal”?153 One might expect, were this the
case that treaties would tend to look like instruments of surrender, with
terms dictated by the winning party to the losing party. Given the violence
of the wars between the United States (or, originally, colonists) and
Indians, we might expect that some of these treaties would require the
Indians to foreswear their inherent military powers as nations, either as a
condition of entry into the Union (if one adopts the view that Indian treaties
constituted an agreement to enter the federal system 154), or as a means of
ensuring that the tribes were too weak to be a further threat.
But the text and context of Indian treaties argue (as does Banner)
that it was rarely so simple, and that Indians were often full participants in
the treaty-making process—albeit participants under tremendous
pressure.155 And, as I will attempt to show below, Indian treaties may have
151
STUART BANNER, HOW THE INDIANS LOST THEIR LAND 1 (2005).
Johnson v. McIntosh, 21 U.S. 543, 588 (1823) (“Conquest gives a title which the
Courts of the conqueror cannot deny, whatever the private and speculative opinions of
individuals may be, respecting the original justice of the claim which has been
successfully asserted.”).
153
BANNER, supra note 151, at 1.
154
Some treaties do, if only ambiguously, anticipate that Indians will ultimately have
some sort of formal representation in Congress. See, e.g., Treaty with the Delaware
Nation, U.S-Delaware Nation, art 6, Sept. 17, 1778, 7 Stat. 13 (“[I]t is further agreed . . .
[that other tribes may] join the present confederation, and to form a state whereof the
Delaware nation shall be the head, and have a representation in Congress.”); Treaty of
Hopewell with the Cherokee Nation, U.S.-Cherokee Nation, art 12, Nov. 28, 1785, 7 Stat.
18 (“That the Indians . . . shall have the right to send a deputy of their choice, whenever
they think fit, to Congress.”). See also BRUCE ELLIOTT JOHANSEN, THE ENCYCLOPEDIA OF
NATIVE AMERICAN LEGAL TRADITION 297-300 (1998) (describing doomed efforts to have
the Indian state of Sequoyah admitted to the Union).
155
Perhaps the quintessential treaty illustrating this point is the 1868 Treaty with the
Navajo Nation, in which the Navajo, who were at the time effectively prisoners of the U.S.
152
241
acted to limit certain uses of the inherent military power, but never actually
extinguished that power.
Treaty making between the United States and Indian tribes has
tended to reflect the contemporary power dynamic between the respective
parties. Between the first English contact with Indians in Virginia and
Massachusetts to the end of the treaty period in 1871, the United States
grew from a ragtag set of outposts dependent on good relations with
Indians for their very survival, to a small set of embattled former colonies
in need of allies, to an aggressively expansionist continental power. In the
19th century particularly, America grew more colonialist; 156 United States
courts officially declared that Indians no longer had absolute sovereignty
over their own territory;157 white supremacy reached its zenith; 158 and new
Army, nonetheless managed to reclaim a substantial portion of their traditional land after
having been removed several years prior. See Part II.B.5, infra, for discussion of this
treaty and the military power.
156
See, e.g., John O’Sullivan, The True Title, N. Y. MORNING NEWS (Dec. 27, 1845) ("[The
American claim to the Oregon territory] is by the right of our manifest destiny to
overspread and to possess the whole of the continent which Providence has given us for
the development of the great experiment of liberty and federated self-government
entrusted to us. It is a right such as that of the tree to the space of air and earth suitable
to the full expansion of its principle and destiny of growth . . . .").
157
Johnson v. McIntosh, 21 U.S. 543, 587 (1823) (“The United States . . . maintain . . .
that discovery gave [European powers] an exclusive right to extinguish the Indian title of
occupancy, either by purchase or by conquest; and gave also a right to such a degree of
sovereignty, as the circumstances of the people would allow them to exercise.”).
158
Whether the supremacy of whites was due to their biological superiority or merely the
grace of circumstances was a subject of debate—but the fact of that supremacy was,
generally, considered axiomatic. Compare, e.g., George Combe & B.H. Coates, Crania
Americana, 38 AMER .J. OF SCIENCE AND ARTS 342, 352 (1840), available at
http://archive.org/download/mobot31753002152160/mobot31753002152160.pdf (last
visited Nov. 24, 2013) (book review) (emphasis added) (“One of the most singular
features in the history of this continent is, that the aboriginal races, with few exceptions,
have perished or constantly receded, before the Anglo-Saxon race, and have in no
instance either mingled with them as equals, or adopted their manners and civilization.
These phenomena must have a cause; and can any enquiry be at once more interesting
and philosophical than that which endeavors to ascertain whether that cause be
connected with a difference in the brain between the native American race, and their
conquering invaders?”), with GEORGE CUSTER, MY LIFE ON THE PLAINS, OR, PERSONAL
EXPERIENCES WITH INDIANS 12 (2009) (1874) (third emphasis added) (“Stripped of the
beautiful romance with which we have been so long willing to envelop him . . . in his
native village, on the war path, and when raiding upon our frontier settlements and lines
of travel, the Indian forfeits his claim to the appellation of the ‘noble red man.’ We see
him as he is . . . a savage in every sense of the word; not worse, perhaps, than his white
242
commercial powers like the railroads put additional pressure on the
government to dispossess the Indians of their lands.159 Indians became
more embattled by the year, winning both legal and military victories, but
ultimately fighting a rear guard action. Treaties between the United States
and various tribes reflect the changing political balance, and later treaties
reflect much harsher terms—terms of conquest. Despite this, however, at
no point were Indian nations’ internal military powers ever entirely
extinguished.
1.
Colonial Period
Treaties from the colonial period are quite clear that Indian tribes
are separate, equal nations. Around 1643, the Haudenosaunee entered
into an unwritten, but physically memorialized, treaty known as the “Two
Row Wampum” treaty with Dutch colonists.160 The wampum belt,
memorializing the agreement, consisted of two parallel rows of colored
beads, indicating the parallel (i.e., non-interfering) and equal relationship
of the two parties. 161 The relationship was later transferred to the English
(who largely displaced the Dutch) and a three-link silver “chain of
friendship” was forged in 1677 to memorialize this agreement. 162
Even in the earliest years, there were attempts to frame these
agreements as creating a vassalage relationship. 163 The Haudenosaunee,
brother would be similarly born and bred, but one whose cruel and ferocious nature far
exceeds that of any wild beast of the desert.”).
159
See, e.g., General William T. Sherman, Speech to Lakota and Cheyenne Chiefs at
North Platte, Nebraska Territory (Sept. 19, 1867), in The Indian Commission: Grand
Council with the Hostile Chiefs at North Platte, N.Y. TIMES (Sept. 27, 1867),
http://query.nytimes.com/mem/archivefree/pdf?res=9902E3DF103AEF34BC4F51DFBF66838C679FDE (last visited Nov. 24,
2013) (“This railroad up the Platte and the Smoky Hill Railroad will be built . . . and if your
young men interfere, the Great Father [i.e., the president] . . . will let loose his young
men, and you will be swept away . . . . The slow ox-wagons do not answer white men; we
build iron roads, and you cannot stop the locomotives any more than you can stop the
sun and the moon . . . .”).
160
ROBERT S. ALLEN, HIS MAJESTY’S INDIAN ALLIES: BRITISH INDIAN POLICY IN THE DEFENCE
OF CANADA, 1774-1815 15 (1993).
161
Id.
162
Id.
163
See id. at 16 (quoting instructions to colonial officials to impress on the Indians that
they “are and have always been, the subjects of the King of England”); JAMES W ILSON,
243
however, politely rebuffed any such suggestion. A Haudenosaunee
tradition records the following response to a Dutch proposal of vassalage:
You say that you are our Father and I am your son. We say
We will not be like Father and Son, but like Brothers. This
wampum belt confirms our words. These two rows will
symbolize two paths or two vessels, traveling down the
same river together. One, a birch bark canoe, will be for the
Indian People, their laws, their customs and their ways. The
other, a ship, will be for the white people and their laws, their
customs and their ways. We shall each travel the river
together, side by side, but in our boat. Neither of us will
make compulsory laws or interfere in the internal affairs of
the other. Neither of us will try to steer the other's vessel. 164
In 1753, responding to a failure of the British to assist the
Haudenosaunee in fending off encroachments from western tribes, a party
of Mohawks threatened to declare the chain of friendship broken and to
“send up a belt of Wampum to our Brothers the 5 Nations to acquaint
them the Covenant Chain is broken . . . .”165 This kind of threat is a
diplomatic maneuver by a completely independent sovereign, not an entity
that has surrendered any of its powers of self-government—especially not
the military power.
2.
Revolutionary Period
Revolution-era treaties also envisioned tribes as independent
nations likely to engage in war from time to time, including in alliance with
the newly formed United States. A 1778 treaty with the Delaware tribe
reflects the young country’s weak position and need for allies against the
British. It provides that the United States will supply the Delaware with
THE EARTH SHALL W EEP: A HISTORY OF NATIVE AMERICA 115 (1998) (arguing that the
English viewed the treaties as feudal arrangements).
164
W ILSON, supra note 163 at 115–116 (1998); See also What is Wampum?
GANONDAGAN, http://www.ganondagan.org/wampum.html (last visited Nov. 24, 2013).
165
ALLEN, supra note 160, at 20.
244
“implements of war,”166 while for their part, the Delaware promised to “join
the troops of the United States . . . with such a number of their best and
most expert warriors as they can spare, consistent with their own safety,
and act in concert with them . . . .”167 Furthermore, as Chief Justice
Marshall would later explain, at the time of the Founding Indian tribes even
had the right of warfare against the United States. “Their appeal [in cases
of conflict with the United States or the States] was to the tomahawk, or to
the government.”168 That is, Indian tribes were separate nations and
resolved their disputes with the United States via warfare and diplomacy.
3.
Early 19th Century/Removal Period
Soon after the Revolution, treaties began to call on Indian nations
to acknowledge the patronage and protection of the United States. A 1785
treaty with the Cherokee, who had sided with the British in the
Revolutionary War, required the tribe to admit that it was “under the
protection of the United States of America and of no other sovereign
whosoever.”169 The idea that Indian tribes were in some way dependent
on the United States would later become the foundation of the legal
doctrines diminishing tribal sovereignty. 170 Yet even assuming the validity
of such doctrine, there is nothing in the mere fact of dependence, in and of
itself, that would diminish any specific power of a pre-existing sovereign.
As Chief Justice Marshall wrote in Worcester v. Georgia, “A weak state, in
order to provide for its safety, may place itself under the protection of one
166
Treaty with the Delaware Nation, U.S-Delaware Nation, art 5, Sept. 17, 1778, 7 Stat.
13, available at http://digital.library.okstate.edu/kappler/vol2/treaties/del0003.htm (last
167
Id. at art. 3.
168
Cherokee Nation v. State of Georgia, 30 U.S. 1, 18 (1831).
169
Treaty of Hopewell with the Cherokee Nation, U.S.-Cherokee Nation, art 3, Nov. 28,
1785, 7 Stat. 18, available at
http://www.cherokee.org/AboutTheNation/History/Facts/TreatyofHopewell,1785.aspx (last
170
See supra note 168 (“It may well be doubted whether those tribes which reside within
the acknowledged boundaries of the United States can with strict accuracy be
denominated foreign nations. They may more correctly perhaps be denominated
domestic dependent nations . . . . Their relations to the United States resemble that of a
ward to his guardian. They look to our government for protection; rely upon its kindness
and its power; appeal to it for relief to their wants; and address the President as their
great father.”).
245
more powerful, without stripping itself of the right of government, and
ceasing to be a state. Examples of this kind are not wanting in Europe.” 171
Marshall’s view of the Cherokee as a “weak state . . . under the
protection of one more powerful” is the most natural reading of the early
treaties. But even a federalist reading of “under the protection of the
United States”—one that views the tribes as agreeing to be encompassed
in the Union—does not, by itself, tell us that any given power of
sovereignty is extinguished. Similarly, in order to show that the tribes were
divested of some or all of their military powers as sovereign nations when
entering the Union, we would still need to rely on specific treaty language.
The 1830 Treaty of Dancing Rabbit Creek with the Choctaw Nation,
providing terms of forced removal, seems to envision a hybrid system of
patronage. The Choctaw would desist from aggressive warfare against the
United States or neighboring tribes, and in exchange the United States
would “protect the Choctaws from domestic strife and from foreign
enemies on the same principles that the citizens of United States are
protected.”172 Thus, the Choctaw are not made citizens of the United
States, and are still clearly envisioned as a separate nation, but the United
States take on obligations to protect the Choctaw, as if they were citizens.
At the same time, the treaty contemplates the possibility that the
United States might call on the Choctaw to fight a common enemy,
“provided, no war shall be undertaken or prosecuted by said Choctaw
Nation but by declaration made in full Council, and to be approved by the
United States, unless it be in self-defense against an open rebellion or
against an enemy marching into their country.” 173 The key point is that the
Choctaw Nation as a whole is still recognized as having a military power,
albeit now primarily defensive and of circumscribed independence.174 (As
171
Worchester v. Georgia, 31 U.S. 515, 520 (1832).
Treaty of Dancing Rabbit Creek with the Choctaw Nation, U.S.- Chocktaw Nation, art
5, Sept. 27, 1830, 7 Stat. 333 (emphasis added), available at
http://www.choctawnation.com/history/pre-removal-government-treaties/1830-treaty-ofdancing-rabbit-creek/ (last visited Jan. 5, 2014).
173
Id.
174
See also id. at art. 6 (committing the Nation to deliver up for punishment anyone who
engages in acts of war “except to oppose an actual or threatened invasion or rebellion”).
172
246
discussed in Part I.A.2, supra, the Choctaw might not have agreed that
they were so circumscribed.) Furthermore, far from envisioning the
Choctaw as in any way disarmed, the treaty provides that the United
States will furnish “to each warrior who emigrates a rifle, moulds, wipers
and ammunition.”175
This kind of treaty provision—stipulating that Indian tribes would
desist from military activities outside their reservations, relying on United
States military protection from exterior threats, but retaining the right to
repel invasions and maintain order—appears to have been quite common
in the early and mid-19th century.176 For example, the Treaty of Yakima
explicitly reserves to the tribe a right to make war with other tribes “in selfdefence.”177
4.
Late 19th Century/Western Expansion
One might expect that the later treaties with Plains and Southwest
Indians, who were often subdued and driven onto reservations only
through the operation of considerable military force, would be written
almost entirely on the conquering nation’s terms. This view is complicated
by the fact that by the 1860s the United States was using nearly identical
boilerplate language in treaties with both tribes over whom it had exerted
total military control, like the Navajo,178 and those that had actually
defeated the United States in battle, like the Sioux. 179 Yet this only
175
Id. at art. 20.
See also Treaty of Medicine Creek., U.S.-Nisqually, Puyallup, Etc., art 8, Dec. 26,
1854, 10 Stat. 1132, available at
http://digital.library.okstate.edu/kappler/vol2/treaties/nis0661.htm (last visited Jan. 5,
2014); Treaty of Yakima, U.S.- Yakima Nation, art. 8, June 9, 1855, 12 Stat. 951,
available at http://www.ccrh.org/comm/moses/primary/yaktreaty.html (last visited Jan. 5,
2014).
177
Treaty of Yakima, U.S.- Yakima Nation, art. 8, June 9, 1855, 12 Stat. 951.
178
See John Burnett, The Navajo Nation's Own 'Trail Of Tears', NPR (June 15, 2005)
http://www.npr.org/2005/06/15/4703136/the-navajo-nation-s-own-trail-of-tears (last visited
Nov. 24, 2013).
179
See JEFFERY OSTLER, THE PLAINS SIOUX AND U.S. COLONIALISM FROM LEWIS AND CLARK
TO W OUNDED KNEE 49 (2004) (“For the Sioux, then, the 1868 Treaty entailed the making
of a permanent peace between two equal parties.”); id. at 40-46 (describing the U.S.’s
unsuccessful attempts to subdue the Sioux through military force in the 1860s). The
Sioux would not be finally subdued until 1876, five years after Congress had, for its own
176
247
underscores the point—regardless of whether the tribes were militarily
subdued, their treaties did not deprive them of the internal military powers
that had been more explicitly retained by tribes like the Choctaw. 180
Neither treaty calls for the tribe to disarm, or to refrain from defensive
warfare or internal peacekeeping.
Both treaties, moreover, appear to have recognized the tribes’
retained right of exclusion. The treaty with the Navajo, for example,
provides that “no persons” shall “pass over, settle upon, or reside in” the
tribe’s land, except duly authorized agents “of the Government, or of the
Indians.”181 The treaty also contemplates that the tribe might allow “other
friendly tribes or individual Indians” to settle among them. 182 The land is
“set apart” for the “use and occupation” of the tribe. All these taken
together would seem to imply a retained right of exclusion. An even more
explicit example is the treaty with the Utes, guaranteeing to the tribe “the
absolute and undisturbed use” of the land. 183
Whether the right of exclusion should by itself suggest a retained
and unextinguished right to use force to eject intruders, or to engage in
self-defense, can be a somewhat more difficult question. 184 The Apache,
internal political reasons, ended the treaty-making process with Indian tribes. Indian
Appropriation Act, 25 U.S.C. § 71 (2006).
180
They do circumscribe the external activities of the tribe with a high degree of
specificity, however. Treaties with the Sioux and the Navajo required, for example, that
the tribes “withdraw all opposition to the construction of the railroads,” permit railroad
construction “not passing over their reservation,” cease all attacks on the homes, wagon
trains, coaches, and livestock of U.S. citizens, and refrain from harming or killing white
men. Treaty of Fort Laramie, U.S.-Sioux Nation, art 11, Apr. 29, 1968, 15 Stat. 635;
Treaty of Fort Sumner, U.S.-Navaho Nation, art. 9, June 1, 1868, 15 Stat. 667, available
athttp://reta.nmsu.edu/modules/longwalk/lesson/document/treaty.htm (last visited Jan. 5,
2014).
181
Treaty of Fort Sumner, U.S.-Navaho Nation, art. 2, June 1, 1868, 15 Stat. 667
(emphasis added).
182
Id.
183
Treaty with the Utes, U.S.-Ute Nation, art 2. Mar. 2, 1868, 15 Stat.619.
184
Confusing matters further, the Supreme Court has been unclear about the exact
degree of exclusive control tribes have over their reservations. Compare United States v.
Wheeler, 435 U.S. 313 (1978) (holding that tribal governments, unlike cities, counties, or
federal territories, constitute a “separate sovereign” within the federal system), Williams v.
Lee, 358 U.S. 217, 223 (1959) (“The cases in this Court have consistently guarded the
authority of Indian governments over their reservations.”), and Morris v. Hitchcock, 194
U.S. 384, 387-89 (1904) (“[I]t is also undoubted that in treaties entered into with the
248
for example, agreed to “refer all cases of aggression against themselves
or their property and territory, to the government of the United States for
adjustment.”185 Is this merely a grant of jurisdiction in cases of private tort
against individuals? Or does the phrase “cases of aggression” include acts
of war, either by other tribes or by organized factions of Americans? Does
it matter that the Apache agreed to allow American citizens “free and safe
passage through the territory,”186 thereby limiting its right to exclude? 187
On the other hand, the Apache also agreed, in the same treaty, and again
in a separate treaty involving other tribes, to cease military incursions into
“Mexican provinces.”188 Does the specificity of this particular promise
suggest that a blanket ban on military activities is not intended, on the
principle of expression unius est exclusion alterius? None of this is easily
resolved.
Chickasaw Nation, the right of that tribe to control the presence within the territory
assigned to it of persons who might otherwise be regarded as intruders has been
sanctioned . . . .”), with Nevada v. Hicks, 533 U.S. 353 (2001) (holding that a tribal court
did not have jurisdiction to hear civil rights claims against state officials executing a
warrant against Indians on the reservation), Strate v. A-1 Contractors, 520 U.S. 438
(1997) (holding that tribal courts did not have civil jurisdiction over a traffic accident
between nonmembers on a state highway running through the reservation), and Montana
v. United States, 450 U.S. 544 (1981) (holding that the tribal government could not
regulate hunting and fishing on non-Indian fee land within the reservation).
185
Treaty with the Apache, U.S.-Apache, art 4, July1, 1852, 10 Stat. 979, available at
http://digital.library.okstate.edu/kappler/vol2/treaties/apa0598.htm (last visited Jan. 5,
2014).
186
Id. at art. 7.
187
See, e.g., Strate v. A-1 Contractors, 520 U.S. at 455-56 (“Forming part of the State's
highway, the right-of-way is open to the public, and traffic on it is subject to the State's
control. The Tribes . . . have retained no gatekeeping right. So long as the stretch is
maintained as part of the State's highway, the Tribes cannot assert a landowner's right to
occupy and exclude.”).
188
See Treaty with the Apache, U.S.-Apache, art 5, July 1, 1852, 10 Stat. 979 (“Said
nation, or tribe of Indians, do hereby bind themselves for all future time to desist and
refrain from making any ‘incursions within the Territory of Mexico’ of a hostile or predatory
character . . . .”); Treaty with the Camanche, Kiowa, and Apache, U.S.-Camanche,
Kiowa, and Apache Nations, art 5, July 27,1853, 10 Stat. 1013 (“The Camanche, and
Kiowa, and Apache tribes of Indians, parties to this treaty, do hereby solemnly covenant
and agree to refrain in future from warlike incursions into the Mexican provinces, and
from all depredations upon the inhabitants thereof . . . .”) available at
http://digital.library.okstate.edu/kappler/vol2/treaties/apa0598.htm (last visited Jan. 5,
2014).
249
Perhaps the clearest example to be found of a tribe explicitly
surrendering the right to use some portion of their military power is in the
Treaty with the Cheyenne and Arapaho. There the tribes agreed that:
For the purpose of enforcing the provisions of this article it is
agreed that in case hostile acts or depredations are
committed by the people of the United States, or by Indians
on friendly terms with the United States, against the tribe or
tribes, or the individual members of the tribe or tribes, who
are parties to this treaty, such hostile acts or depredations
shall not be redressed by a resort to arms, but the party or
parties aggrieved shall submit their complaints through their
agent to the President of the United States, and thereupon
an impartial arbitration shall be had . . . .189
This appears to be a great limitation on any retained military power. By
barring “resort to arms,” even in retaliation for “hostile acts or
depredations,” it does seem that the treaty is going beyond the scope of
mere tit-for-tat revenge in cases of private tort; the language seems to be
a ban on military retaliation even for acts of war against the tribe as a
whole.
However, the provision is limited by at least two clauses. One
clause specifies that the prescribed method of redress is applicable only
when the “hostile acts” are committed by “people of the United States” or
the United States’ Indian allies. Presumably tribes hostile to the United
States are on their own if they aggrieve the Cheyenne or the Arapaho.
More importantly, there is the initial clause, which limits the ban on
military retaliation to the purposes of the first article of the treaty. The
treaty must be read in its peculiar context. It was intended to bring an end
to a war that had begun with a massacre of Cheyenne and Arapaho
villagers by United States soldiers at Sand Creek in 1864.190 Article 6 of
189
Treaty with of the Little Arkansas, U.S.-Cheyenne and Arapaho, art 1, Oct. 14, 1865,
14 Stat. 703, (emphasis added), available at
http://digital.library.okstate.edu/kappler/vol2/treaties/che0887.htm (last visited Jan. 5,
2014).
190
See S. DOC. NO. 26, at 11-14 (1867) (testimony describing the attack).
250
the treaty acknowledges the wrong done and provides for reparations. 191
In light of these circumstances and the language limiting it to “the
purposes of enforcing” the first article (i.e., the end of the war), the most
natural reading of the non-retaliation provision is that it is intended to bring
a halt to what might otherwise have become a cyclical blood feud. It was
not intended to deprive the tribes of a military power generally.
Even in the 1866 treaty with the Cherokee—who had sided with the
Confederacy in the Civil War, and who were therefore an explicitly
defeated enemy—the United States does not abolish the Nation’s military
power per se.192 Instead, the treaty merely requires the tribe to turn over
all weapons “and quartermaster's stores” belonging to either the United
States or the Confederacy. 193 This provision seems like little more than an
attempt to secure loose munitions in Confederate-friendly country194—
especially because it immediately follows an amnesty provision for all
“wrongs committed in aid or in the suppression of the rebellion.” 195 It
certainly lacks the absolute sweep of other provisions in the treaty that
clearly were intended to limit the Cherokee government’s powers. An
example of this is found in the provision bringing Cherokee abolition of
slavery into conformity with the Thirteenth Amendment, 196 or the one
191
Treaty with of the Little Arkansas, U.S.-Cheyenne and Arapaho, art 6, Oct. 14, 1865,
14 Stat. 703, available at
2014).
192
See generally Treaty with the Cherokee Nation, U.S.-Cherokee Nation, July 19, 1866,
14 Stat. 799, available at
2014). The treaty is also highly tribe- and circumstance-specific, unlike the more
boilerplate language of the Navajo and Sioux treaties.
193
Id. at art. 2.
194
The post-Civil War treaty with the Choctaw and Chickasaw similarly demands the
surrender of “ordnance, ordnance stores, and arms of all kinds” belonging to the “socalled Confederate States of America.” Treaty with the Choctaw and Chickasaw,U.S.Choctaw and Chicksaw Nation, art 5, Apr. 28,1866, 14 Stat.769, available at
http://digital.library.okstate.edu/kappler/vol2/treaties/cho0918.htm (last visited Jan. 5,
2014).
195
Id.
196
Id. at art. 9.
251
giving the United States President discretion to “correct” certain Cherokee
laws.197
5.
Extrinsic Sources
We might also ask whether extrinsic sources could shed light on
whether the parties (but especially the United States) intended the treaties
to extinguish the military power. Records of Indian treaty negotiations are
sometimes used by courts to resolve ambiguities or otherwise shed light
on the application of treaty provisions.198 Although an exhaustive survey is
not possible within the scope of this article, perusal of some of the betterknown records of Indian treaty negotiations does not suggest a general
understanding, on the part of either tribal or United States representatives,
that treaties with the United States included an extinguishment of tribal
military power.
For example, the proceedings of the Council at the Walla Walla
Valley, where Governor Isaac Stevens of the Washington Territory met
with the Umatilla, the Cayuse, and the Walla Walla to convince them to
move onto reservations, contain no hint of any attempt to negotiate away
their military power. 199 The United States negotiators do admonish against
internecine war on moral grounds,200 but there is simply no hint that the
treaty would involve a surrender of the military power, even despite the
hostile circumstances under which negotiations took place. 201 The final
197
Id. at art. 6.
See, e.g., Mille Lacs Band of Chippewa Indians v. State of Minnesota, 124 F.3d 904,
916 (8th Cir. 1997) aff'd sub nom. Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172 (1999) (“Defendants do not point to a single document indicating that the
1837 treaty negotiations included discussion of removal.”); United States v. Webb, 219
F.3d 1127, 1137 (9th Cir. 2000) (citation omitted) (“[T]he record of negotiations with the
Yankton Sioux disclosed a desire to ‘dissolve . . .tribal governance,’ motivation utterly
absent from the Nez Perce negotiations.”).
199
See PROCEEDINGS AT THE COUNCIL IN THE W ALLA W ALLA VALLEY (1855), reprinted in
ROBERT H. RUBY & JOHN ARTHUR BROWN, THE CAYUSE INDIANS: IMPERIAL TRIBESMEN OF
OLD OREGON 315-370 (1972).
200
Id. at 379 (“We not only want you to be at peace with all whites but we want you to be
at peace with yourself. We didn’t come here to divide you or to induce one to be against
another. Why should you be at war with each other? You may live at separate places, but
your hearts would be as one and help each other.”).
201
In his diary of the negotiations, Lawrence Kip describes the discovery, after the
negotiations, of a narrowly defeated proposal by the Cayuse to massacre the American
198
252
treaty stipulated that the tribes would refrain from “depredations” against
United States citizens and would not make war with other tribes “except in
self-defence.”202 This treaty put the tribes on roughly the same footing, it
would appear, as the Choctaw, the Yakama, and others discussed
above.203
To add to the notion that treaties were not intended to terminate
tribal military power, the treaty provisions provided the Choctaw with rifles
and ammunition, and the Walla Walla negotiators promised the tribes a
gunsmith to ensure their weapons worked.204 Similarly, General Sherman
promised the Sioux “powder and ball” as an incentive during negotiations
a year before the Fort Laramie treaty. 205 In fairness, the weapons are
discussed primarily as tools for hunting, but the general point remains that
American negotiators did not anticipate that the tribes would be disarmed.
Indeed, as late as 1868, General Sherman made very clear, during
negotiations with Navajo leader Barboncito, that the tribe still had the
same rights of defensive warfare we have already seen were explicitly
retained by the Choctaw and others:
[Y]ou must live at peace and must not fight with other
Indians . . . . The Army will do the fighting, you must live at
peace, if you go to your own country the Utes will be the
nearest Indians to you, you must not trouble the Utes and
the Utes must not trouble you. If however the Utes or
Apaches come into your country with bows and arrows and
negotiating party. LAWRENCE KIP, INDIAN COUNCIL IN THE VALLEY OF THE W ALLA W ALLA
(1855).
202
Treaty with the Walla Walla, Cayuse and Umatilla, U.S.-Walla Walla, Cayuse, and
Umatilla, art 8, June 9, 1855, 12 Stat. 945, available at
http://digital.library.okstate.edu/kappler/vol2/treaties/wal0694.htm (last visited Jan. 6,
2014).
203
See supra notes 175-76, and accompanying text.
204
RUBY & BROWN, supra note 199, at 352.
205
Sherman, supra note 159.
253
guns you of course can drive them out but must not follow
beyond the boundary line. 206
In short, even as late as 1868, it seems clear that negotiators were still
envisioning Indian nations as holding a military power, albeit one limited to
defensive and internal purposes, not to be directed in aggression against
the United States itself or its neighbors. This is arguably no less than what
the States themselves retain under our federal system,207 especially after
the Civil War.208
The overwhelming conclusion is that 19th-century negotiators for
both the tribes and the United States overwhelmingly understood
themselves to be negotiating certain conditions to be placed on the tribes’
use of the military power. It was understood that the power would be used
defensively, and, more specifically, that tribes would refrain from attacking
the United States and its allies—rather than extinguishing that power
entirely.
As noted above, treaties are generally binding only on the signatory
tribes. But because the United States has been a party to each one of
those treaties, their collective outline may yield the closest thing we have
to universal principles regarding United States-tribal relations—including,
in this case, the principle that tribes have not relinquished a
defensive/internal military power.
206
Council Proceedings (May 28, 1868) (emphasis added) available at
http://reta.nmsu.edu/modules/longwalk/lesson/document/may28.htm (last visited Nov. 24,
2013).
207
See U.S. CONST. art. I, § 8, cl. 15 (limiting even the federal use of state Militias to
“execut[ing] the Laws of the Union, suppress[ing] Insurrections and repel[ling]
Invasions”); see also Wiener, supra note 17, at 189, 192-93 (detailing situations in which
state militias refused to go abroad for war, on the theory that their role was domestic and
defensive).
208
See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 MICH. L. REV. 204, 212 (1983) (calling the theory of the Second
Amendment as supporting States’ right to armed revolt against the U.S. “little more than a
holdover from an era of constitutional philosophy that received its death knell in the
decision rendered at Appomattox Courthouse”).
254
C.
Federal Statutes
Though treaties form a significant basis for understanding which
powers of sovereignty tribes retain, they do not tell the whole story
because Congress is generally assumed to have “plenary power” over
Indian tribes.209 Is there, then, any federal statute that prohibits formation
of militias by Indian tribes?
Nothing in Title 25 of the United States Code—dealing with
Indians—forbids a tribe from maintaining a militia. On the other hand, Title
32 of the United States Code, regulating the National Guard, does forbid
“a State, the Commonwealth of Puerto Rico, the District of Columbia,
Guam, or the Virgin Islands” from maintaining troops in peacetime except
for its National Guard troops. 210 Does this limitation prevent tribes from
raising a militia outside the National Guard system?
Arguably not, for two reasons. First, Title 32 does not even prevent
the States from raising a militia that would act purely as a defensive or
internal force211—exactly the kind of military power which, as I have
argued above, remains in the tribes’ hands. Second, the text of the
provision is quite inclusive, naming territories (Guam and the Virgin
Islands), a commonwealth (Puerto Rico), and a federal capital district
(D.C.). Yet it excludes Indian tribes. Furthermore, 32 U.S.C. § 101
provides that “[f]or purposes of other laws relating to the militia . . . the
term ‘Territory’ includes Guam and the Virgin Islands.” In 10 U.S.C. §335,
a chapter governing the use of state militias to control insurrections,
“State” is defined to include those same territories. Again, neither
mentions Indian tribes. Note, however, that numerous other parts of the
209
The strongest statement of the principle is probably found in United States v. Kagama,
118 U.S. 375, 384-85 (1886) (asserting that the power over tribes must exist in Congress,
because “it never has existed anywhere else; because the theater of its exercise is within
the geographical limits of the United States; because it has never been denied; and
because it alone can enforce its laws on all the tribes”). Later courts have backed off
Kagama’s position somewhat. See, for a summary of the changes, United States v.
Doherty, 126 F.3d 769, 778 (6th Cir. 1997).
210
32 U.S.C. § 109(a), (c) (2006).
211
Id. at § 109(c). Although the term “defense force” is used, such militias do more than
just respond to invasions. See infra Part IV.B discussing State Defense Forces.
255
United States Code include the phrase “Indian tribe” in similar lists, 212
suggesting that Congress will name tribes explicitly when it intends to
include them.
Federal regulation might inevitably follow the formation of tribal
militias. If a tribe were to adopt a militia program as a means of dealing
with crime along international borders,213 for example, the federal
executive’s broad power over international relations would likely be
implicated. Moreover, male tribal members between 17 and 45 are already
a part of the federal unorganized militia.214 To avoid conflicts with federal
policy, perhaps tribes should be brought within the scope of 32 U.S.C.
§ 109. However, they are not; federal statutes simply do not regulate tribal
militias.
D.
The Role of the States
It is uncertain whether state law would have any effect on tribal
militias. Some states prohibit or heavily regulate non-state-sponsored
militias within their geographical boundaries.215 Florida, for example,
requires paramilitary organizations to be specially licensed216 and bans
paramilitary training or drilling for purposes of engaging in civil disorder. 217
These statutes likely apply only to individuals, not to independent
sovereigns. Although some states do exercise criminal jurisdiction over
Indian individuals on tribal reservations,218 and recent Supreme Court
cases have tended to move away from an absolute prohibition on state
regulation,219 states generally may not interfere with the functioning of
212
See, e.g., 18 U.S.C. § 2265 (2006); 28 U.S.C. § 1738C (2006); 42 USC § 12523
(2006). Others include “Indian country,” as well as territories, in a broad definition of
“State.” See, e.g., 28 U.S.C. § 1738B(b) (2006).
213
See infra Part III.A.
214
10 U.S.C. § 311 (2006). This “unorganized militia” is the last remnant of the national
universal militia and the source of draftees when there is a draft.
215
For an excellent primer, see Joelle E. Polesky, The Rise of Private Militia: A First and
Second Amendment Analysis of the Right to Organize and the Right to Train, 144 U. PA.
L. REV. 1593, 1606 (1996).
216
FLA. STAT. ANN. § 870.06 (West 2012).
217
FLA. STAT. ANN. § 790.29 (West 2012).
218
18 U.S.C. § 1162 (2006), 28 U.S.C. § 1360 (2006), 25 U.S.C. §§ 1321 (2006).
219
See Rice v. Rehner, 463 U.S. 713, 718 (1983).
256
tribal governments. States may not directly tax tribal enterprises,220 for
example, or regulate tribally-managed game herds.221
In Nevada v. Hicks, the Supreme Court distinguished between “onreservation conduct involving only Indians,” where “state law is generally
inapplicable,” and a situation where “state interests outside the reservation
are implicated” and states might have authority to intervene.222 Whether a
state could ban or limit a tribal militia is untested legal territory, but the
answer might turn on the degree to which the militia is understood as
being limited in reach and scope—that is, not implicating the security of
the state itself.
There is no reason a tribal militia should necessarily threaten a
surrounding state—given the population disparities between tribes and
states. However, there would certainly be government-to-government
issues to work out: the tribal militia’s ability to detain non-Indian state
citizens during times of public emergency, for example, or its ability to
patrol and enforce the borders of the reservation. In jurisdictions where
tribes lack clearly defined reservations or in areas under state regulatory
jurisdiction that lie cheek-by-jowl with those under tribal jurisdiction
(Oklahoma, for example), the use of a tribal militia is obviously much more
likely to implicate the state’s sovereign functions.
Perhaps the best that can be said on this subject is that tribes
would likely have to take state interests into account in deciding how to
employ a tribal militia; that the degree of state interest is likely to be highly
situation-dependent; and that it could be the subject of litigation.
III.
WHY A MILITIA?
Assuming they have the right to do so, we may ask why Indian
tribes might need or want to organize a citizen militia. The very short
answer is, for the same reasons any other sovereign might. But a slightly
more nuanced answer should address reasons specific to tribal
220
Okla. Tax Comm’n. v. Chickasaw Nation, 515 U.S. 450 (1995) (holding that where the
incidence of a fuel tax falls on the tribe as vendor, the tax is invalid).
221
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).
222
Nevada v. Hicks, 533 U.S. 353, 361-62 (2001).
257
governments. With the caveat that of course no single governance tool
(including citizen militias) will be appropriate to every one of the 565
federally-recognized Indian communities,223 I examine some of these
reasons below.
A.
Maintaining Territorial Control and Reducing Crime
Tribes, like other sovereigns, have the right to secure their
territories and exclude unwanted intruders.224 Among sub-federal
sovereigns in the United States, this ability may be subject to federal
limitations. For example, states may not exclude citizens from other
states.225 Indian tribes, by contrast, have some powers that states do not
have226—including the power to exclude nonmembers, at least from trustheld, tribally-owned, or member-owned lands within the reservation, 227
and in certain cases from the reservation entirely.228
Tribal police, however, are often understaffed and asked to patrol
vast territories.229 They simply may not have the manpower to exclude, for
223
BUREAU OF INDIAN AFFAIRS, TRIBAL LEADERS DIRECTORY (2012), available at
http://www.bia.gov/cs/groups/public/documents/text/idc002652.pdf (last visited Nov. 24,
2013).
224
See Arizona v. United States, 132 S. Ct. 2492, 2511 (2012) (Scalia, J., dissenting)
(emphasis added) (“[M]ost would consider the defining characteristic of sovereignty . . .
[to be] the power to exclude from the sovereign's territory people who have no right to be
there.”).
225
See U.S. CONST. art IV, § 2 (“The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.”); Saenz v. Roe, 526 U.S.
489, 498 (1999) (internal quotation marks omitted) (“[T]he constitutional right to travel
from one State to another is firmly embedded in our jurisprudence.”).
226
Native Am. Church of N. Am. v. Navajo Tribal Council, 272 F.2d 131, 134 (10th Cir.
1959) (“Indian tribes are not states. They have a status higher than that of states.”).
227
See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 160 (1982) (Stevens, J.,
dissenting) (“[A] tribe may exclude nonmembers entirely from tribal territory”);
Monestersky v. Hopi Tribe, No. 01AP000015, 2002.NAHT.0000003 (Hopi Tribal App. Ct.,
June 27, 2002) (holding that the tribe has an inherent right to exclude nonmembers); Alire
v. Jackson, 65 F. Supp. 2d 1124 (D. Or. 1999) (holding that civil exclusion of nonmember
Indian was not grounds for habeas relief).
228
Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985) (holding that
tribe could exclude non-Indian even from fee land, where he had initially entered the
reservation under color of a lease that specifically reserved right of exclusion).
229
Examination of Federal Declinations to Prosecute Crimes in Indian Country: Hearing
Before the S. Comm. on Indian Affairs, 110th CONG. 1 (2008) (statement of Sen. Byron
Dorgan, Chairman, S. Comm. on Indian Affairs) (“Less than 3,000 Bureau of Indian
258
example, non-Indian criminals taking shelter within the reservation, or to
prevent them from engaging in criminal conspiracies with tribal
members.230 A citizen militia could give professional law enforcement a
substantial manpower boost without the cost of adding full-time employees
to already tight tribal budgets.
This may be especially useful on-reservations that are essentially
“border states.” Both the St. Regis Mohawk territory in New York and the
Tohono O’odham territory in Arizona stretch across national borders—
reaching into Canada and Mexico, respectively. Each has become a
gateway for smugglers who take advantage of the lack of law enforcement
as well as “[t]he deep loyalty that exists within tribes, where [cross-border]
neighbors are often related, and the intense mistrust of the American
justice system” among reservation residents.231 Some members may even
flout the tribal government’s own laws to take part in or support crossborder activities.232 This dynamic leads to both weakening of the tribal
government’s legitimacy and the intrusion of federal authorities. At Tohono
Affairs and tribal police patrol more than 56 million acres in Indian lands.”); BUREAU OF
JUSTICE STATISTICS, CENSUS OF TRIBAL JUSTICE AGENCIES IN INDIAN COUNTRY iii, 5 (2002)
(noting that only 165 of the 314 tribes responding employed at least one full-time sworn
officer), available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=543 (last visited Jan. 6,
2014); John Christopher Fine, Profile: Cheyenne River Sioux Tribal Police, 9-1-1
Magazine, Feb. 27, 2012, (“We were down to six officers to patrol the whole reservation,
now we have thirteen . . . . We had five thousand more calls [per year] than the Rapid
City, South Dakota Police Department . . . . We average 13,500 calls per year.”),
available at http://www.9-1-1magazine.com/Fine-Cheyenne-River-Sioux-Tribal-PD (last
230
See Sarah Kershaw, Drug Traffickers Find Haven in Shadows of Indian Country, N.Y.
TIMES (February 19, 2006), http://www.nytimes.com/2006/02/19/national/19smuggle.html
(last visited Nov. 24, 2013) (describing the invasion of some reservations by organized
crime).
231
Id.
232
See id. (noting that the Mohawk government spends half its budget on border patrol
and law enforcement, but that many tribal members are nonetheless “recruited” to assist
in drug smuggling); Todd Miller, Ground Zero: The Tohono O’odham Nation, NACLA,
Nov. 2, 2012, http://nacla.org/blog/2012/11/2/ground-zero-tohono-oodham-nation (last
visited Nov. 24, 2013) (“Mike Wilson, a Tohono O’odham man . . . puts out water in
stations on the reservation [for those attempting illegal border crossings] in defiance of
the Nation’s legislative council . . . .”).
259
O’odham, for example, the Border Patrol presence has been described as
an “occupying army”233 and a “militarized zone”234 on the reservation.
The creation of a tribal citizen militia could address these sorts of
problems in several ways. First, a militia could provide a mechanism by
which the federal government could provide support and training for better
law enforcement and border control without invading the reservation and
taking over. In Part IV(C) I suggest that it might be possible to incorporate
tribal militias into the National Guard system. Even absent such a drastic
step, it seems that a reservation population with arms and some militia
training might be effectively mobilized to provide much of the manpower
needed, even when federal authorities do feel the need to take action on
the reservation.
Second, the adoption of militia laws on the reservation could go
hand-in-hand with an overall gun control scheme: the tribal government
could use the militia as a conduit for registration of household weapons,
and weapons not registered through the militia could be outlawed or tightly
regulated.235 This would give law enforcement an additional tool in
detaining, arresting, and prosecuting criminals on the reservation even
when they are not presently engaged in smuggling or trafficking.
Third, there is at least a plausible argument that a citizen militia,
especially if universal, could forge a tighter bond between the people and
their government. This might generate positive effects in both directions—
deterring crime by citizens on the one hand, but also deterring corruption
and the capture of government institutions by crime syndicates on the
other.236 From the perspective of the political theory that informed the
framing of the Constitution, this is a primary purpose of a citizen militia: to
act as a safeguard against overreach by a government. To put it in a more
233
Id.
Erik Eckholm, In Drug War, Tribe Feels Invaded by Both Sides, N.Y. TIMES (Jan. 24,
2010) http://www.nytimes.com/2010/01/25/us/25border.html (last visited Nov. 24, 2013).
235
See generally Angela R. Riley, Indians and Guns, 100 GEO. L.J. 1675 (2012)
(explaining that tribal governments probably have much more latitude than state and
federal lawmakers in enacting gun control following District of Columbia v. Heller).
236
See Kershaw, supra note 230 (reporting allegations of tribal officials colluding with
criminals at the Wind River and Red Lake reservations).
234
260
positive light, the more tightly a government’s use of force is bound to the
people’s consent, the more legitimacy it will have. Therefore, where a
tribal government has struggled to enforce the law against its own
citizenry’s wishes, the militia becomes a way for the citizenry to “buy into”
government and for the government to acquire a measure of trust.
In short, endowing tribal governments with the ability to organize
the people to disrupt criminal enterprises, drive out intruders, and patrol
their own territory could greatly augment existing police forces and
increase public safety. It might also increase the legitimacy of tribal
governments, both by forestalling federal intervention on the reservation
and by giving tribal citizens a direct role in the use of force by the
government.
B.
Disaster Readiness
Apart from strengthening tribes’ ability to exercise territorial control,
a citizen militia could be useful in other ways. Like everyone else, tribes
face increased threats of natural disasters in the coming years. In 2011,
for example, the massive Las Conchas fire devastated the Santa Clara
Pueblo,237 and the Crow Reservation experienced catastrophic flooding. 238
The Spirit Lake Reservation has been dealing with continuous flooding for
nearly two decades,239 and in 2011 it and two other reservations in North
Dakota were declared part of a disaster area. 240 In such situations, it may
be useful to have the people organized as a rapid-response force to
mitigate damage, rescue the injured, and control opportunistic crime.
237
See, e.g., Facing Floods and Fires: Emergency Preparedness for Natural Disasters in
Native Communities: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 59
(2011) (statement of Walter Dasheno, Governor, Santa Clara Pueblo).
238
Lorna Thackeray, Reservation Flooding: Flood Emergency Declared on Crow
Reservation, BILLINGS GAZETTE (May 23, 2011), http://billingsgazette.com/news/state-andregional/montana/flood-emergency-declared-on-crow-reservation/article_0bee356293dd-527d-8810-cc491fe271fc.html (last visited Nov. 24, 2013).
239
Lisa M. Hamilton, Spirit Lake Rising: Living with a Neverending Flood, ATLANTIC (May
31, 2011), http://www.theatlantic.com/national/archive/2011/05/spirit-lake-rising-livingwith-a-neverending-flood/239644/ (last visited Nov. 24, 2013).
240
Office of the Governor, Disaster Declaration Approved for North Dakota Flooding, ND
(May 10, 2011), http://governor.nd.gov/media-center/news/disaster-declaration-approvednorth-dakota-flooding (last visited Nov. 24, 2013).
261
In addition, the Federal Emergency Management Agency urges
individual tribal members to have an emergency plan ready in case a
natural disaster strikes.241 However, as with the American population at
large, that idea is not always translated into practice, as a 2009 survey on
the Chehalis Reservation illustrates. According to the survey, only 13
percent of Chehalis citizens had a household emergency plan, and only
17 percent had spare supplies set aside for an emergency. 242 Yet, the
same remoteness from federal and state hubs that makes reservations
subject to inadequate law enforcement can likewise make them subject to
delays in emergency services as well as greater difficulty evacuating. 243 A
militia—especially a universal militia, with members in every household—
could be a useful hub for distributing supplies, ensuring that citizens are
familiar with emergency plans and evacuation routes, and training
household members in first aid and other useful self-help skills.
C.
Esprit de Corps/Tribal Identity
Finally, tribes may wish to create tribal militias for purely cultural
reasons. For about a century, various assimilationist policies of the federal
government encouraged or demanded that Indians relinquish traditional
ways and become “civilized” in accord with Euro-American norms.244 In
recent years, many tribes have attempted to reverse the damage wrought
by assimilation by training young people in inherited ceremonial and
practical skills.245 A tribal militia might similarly be a venue for young tribal
241
Federal Emergency Management Agency, Make a Plan: Indian Country, READY,
http://www.ready.gov/make-a-plan/indian-country (last visited Nov. 24, 2013) (under the
tab “Readiness Planning”) [hereinafter FEMA].
242
CHEHALIS TRIBE, CHEHALIS RESERVATION NATURAL HAZARDS MITIGATION PLAN 18 (2009).
Nationally, about 46 percent of Americans have a household plan and about 43 percent
have emergency supplies. FEDERAL SIGNAL, UNCOVERING THE SAFETY CONCERNS OF
AMERICANS 5-7 (2010).
243
FEMA, supra note 241 at Special Considerations.
244
The story is almost too well known to rehearse, but see, for example, Charla Bear,
American Indian Boarding Schools Haunt Many, NPR (May 12, 2008),
http://www.npr.org/templates/story/story.php?storyId=16516865 (last visited Nov. 24,
2013).
245
See, e.g., Laurel Morales, Forget the Heels: What it Takes to Be Miss Navajo, NPR
(Sept. 8, 2012), http://www.npr.org/2012/09/08/160789972/forget-the-heels-what-it-takesto-be-miss-navajo (last visited Nov. 24, 2013) (describing the positive psychological
benefits for young Navajo women of connecting with traditional tribal activities); The
262
members to engage in tribal traditions of self-sacrifice, public service, and
physical bravery.246 Such a venue may be especially useful for young men
who feel trapped by both poverty and the history of cultural destruction. 247
An interview with Anderson Thomas, director of the Ramah Navajo
behavioral health program, confirms this point:
[I]t’s typically young men who are dying by suicide, not
young women. “I’d say more than 90 percent of girls here go
through their traditional coming-of-age ceremony,” he said.
In contrast, little is done for young males. In large part, he
said, that’s because traditional male activities like hunting
have diminished, so rituals related to them have dropped off
as well. Though Ramah Navajo men and boys can obtain
conventional therapy, they also need ceremonies, Thomas
said.248
Always keeping in mind that tribal militias need not be male-only enclaves,
military service to the community surely counts as a “traditional male
Kitchen Sisters, Four Days, Nights: A Girls’ Coming-of-Age Ceremony, NPR (Sept. 6,
2010), http://www.npr.org/templates/story/story.php?storyId=129611281 (last visited
Nov. 24, 2013) (describing a Yankton Sioux coming-of-age ritual for girls); Pauline
Arrillaga, Indian Tribe Fights to Preserve Tradition with Coming-of-Age Ceremony,
ELLENSBURG DAILY RECORD B2 (Oct. 1, 2001) (describing an Apache community’s
challenges in transmitting ceremonial and religious traditions to the younger generations).
246
More so even than their American and European counterparts, American Indian
military traditions often included a significant non-military public service component. See,
e.g., LINDA PERTUSATI, IN DEFENSE OF MOHAWK LAND: ETHNOPOLITICAL CONFLICT IN NATIVE
NORTH AMERICA 42 (1997) (“Although the Mohawk language contains no word that
literally translates as ‘warrior,’ the Mohawk word ‘rotiskenrakhete’ symbolically means
‘warrior.’ Rotiskenrakhete means those who ‘carry the responsibility of protecting the
origins,’ or ‘carry the burden of peace.’”); KARL LLEWELLYN, THE CHEYENNE W AY: CONFLICT
AND CASE LAW IN PRIMITIVE JURISPRUDENCE 99-131 (1941) (giving examples of “military
societies” involved in dispute resolution and social discipline in traditional Cheyenne
society).
247
Stephanie Woodard, Suicide Is Epidemic for American Indian Youth: What More Can
Be Done?, NBC, (Oct. 10, 2012),
http://openchannel.nbcnews.com/_news/2012/10/10/14340090-suicide-is-epidemic-foramerican-indian-youth-what-more-can-be-done (last visited Nov. 24, 2013) (“Native
youngsters are particularly affected by community-wide grief stemming from the loss of
land, language and more. . . .”).
248
Id.
263
activity,” and a citizen militia could be used to connect young men with
culturally specific military traditions.
In short, a citizen militia may serve a tribe’s immediate practical
needs, and it may also serve longer-term, less concrete needs such as
maintaining sovereignty, and transmitting tribal values and traditions to the
next generation. But what form of militia would be most useful in achieving
those goals? The next Part attempts to answer that question.
IV.
MODELS OF A TRIBAL CITIZEN MILITIA
If a tribal militia might be useful to tribal governments, and its
formation appears to be lawful, the remaining question is how a militia
could be organized. In the following sections, I consider three forms of
organization. First, there are “select” militias, which have some precedent
in 19th-and 20th-century Indian country. Second, there are “universal”
militias, which would arguably ameliorate some of the select militia’s
shortcomings and provide additional benefits, but which also present
certain functional and definitional challenges. Finally, there is the modern
National Guard system, which could provide funding and a broader
mission for tribal militias, but would almost certainly impinge on both the
flexibility and the distinctive cultural flavor of a tribal militia.
A.
Select Militias
The Cherokee, Choctaw, Pine Ridge, and Mohawk experiences all
show, in different ways, that militias comprised of something less than the
whole body of the people may struggle for legitimacy. The legitimacy of a
select militia will always be closely tied to the legitimacy of the government
it serves. A select militia is thus most likely to be both functional and
accepted as legitimate where the tribal government is well established,
generally free from allegations of corruption, and bolstered by strong
democratic safeguards. 249 This is, of course, somewhat like saying
249
Such democratic safeguards will not necessarily mirror Anglo-American institutions.
In traditional Haudenosaunee governance, for example, the check on the Chiefs is not
direct election, but careful selection by Clan Mothers accompanied by the possibility of
removal for cause. See People of the Hills, ONONDAGA NATION,
http://www.onondaganation.org/gov/chiefs.html (last visited Nov. 24, 2013).
264
warrantless wiretapping works best when the people have a high level of
confidence in the integrity of the intelligence services; once the possibility
is admitted at all, it is difficult to prevent its abuse, or in any event the
perception of abuse.
Consider our historical precedents. In the case of John Ross’s
Light-horsemen, complaints about its legitimacy may have been largely
the work of a disgruntled political minority; in the case of Dick Wilson’s
GOONs, the complaints appear to have been objectively valid. But as we
saw in the Cherokee case, even where the complaints are not wellfounded, they may be used to justify federal intrusion into Indian affairs.
Wilson’s abuses also pushed citizens to take up arms themselves, which,
again, invited federal intrusion. The overall point, of course, is that
perceived or real misuse of a select militia can end up threatening tribal
sovereignty, above and beyond whatever civil rights abuses occur.
Some select militias are likely to be better than others. The more
representative it is of the people (in terms of both absolute numbers and
demographics), the more likely the militia will be seen as legitimate. One
way to ensure that the militia’s membership is representative of the people
rather than obedient to a particular leader is to create regular, published
standards for recruiting and training members. Recruitment, in particular,
should be highly regularized to ensure that favoritism does not creep in,
and in general command should be separated from oversight.
Such separation may be particularly challenging in communities
operating under, for example, unmodified Indian Reorganization Act (IRA)
constitutions, which “typically established a system of centralized
government”250 and “did not provide for any separation of powers.” 251
(Felix Cohen, who oversaw the organization of tribes under the IRA,
envisioned tribal government essentially like a town council,252 rather than
a sovereign with enough power and authority to need careful separation.)
Some tribal constitutions may not have organs of government sufficiently
250
OFFICE OF INDIAN ENERGY AND ECONOMIC DEVELOPMENT, TRIBAL BUSINESS STRUCTURE
HANDBOOK II-1 (2008).
251
POMMERSHEIM, supra note 149, at 65.
252
David E. Wilkins, Introduction, in FELIX S. COHEN, ON THE DRAFTING OF TRIBAL
CONSTITUTIONS xxii (2006).
265
separated to provide adequate independent oversight of a militia’s
functioning, which increases the likelihood that a select militia could be
misused.
However, the advantages of a select militia should also not be
overlooked. A select militia is easier to manage, train, and equip than a
universal militia. Membership can be made contingent on competence and
fitness, and morale is generally higher among volunteers than among
those required to serve. In some cases, a select militia may also be
politically easier to achieve, because it does not require the participation of
the entire community. For tribal communities that have thought deeply
about separation of powers and attempted to strengthen tribal courts or
other organs of independent review, a select militia may well be
workable.253
B.
A Universal Tribal Militia
The appeal of a “universal” militia—that is, a militia whose
composition is large enough to include a member from every, or nearly
every, household—is that by its very nature it represents the people.
Unlike a select militia, which will often (justly or not) be seen as the tool of
a governing elite, the universal militia inherently acts as a counterweight to
overreaching tribal government, putting the brakes on civil rights abuses
and other questionable policies.
A universal militia is also the kind best suited to enhancing
emergency preparedness. Where the militia has members in every
household, ensuring that each household has an emergency plan and the
necessary supplies becomes a simple task. And the militia could provide
both an effective network for disseminating information during an
emergency and a large pool of trained emergency workers when the
situation requires it.
253
I use the term “separation of powers” here, which has an undeniably Anglo-American
ring to it. But recall that the Cheyenne, for example, arrived at the same practice
independently, forbidding civilian chiefs from also being soldier chiefs. See supra Part
I.A.1.
266
Finally, because it would touch the majority of households in the
community, a universal militia could be an effective focal point for a wide
array of meaning-building activities: it could become an institution for
training young people in traditional values; it could act as an informal
network for transmitting important political ideas; its drills could be
augmented with community get-togethers; and (if desired) its ceremonial
functions could be meshed with the community’s ceremonial/religious
life.254
How might a universal tribal militia be structured? Traditional
American militias depended on two sorts of laws; laws requiring militia
members to own weapons and other accoutrements of military service,
and laws requiring regular drill. For example, the Massachusetts colony
required that “all inhabitants” have “armes in their howses fitt for service,
with pouder, bullets, [and] match,” 255 and that “every captains shall traine
his companie on Saterday in everieweeke” (later reduced to oncemonthly).256
Whether this would work in the modern tribal context is probably
highly contingent on circumstances. Although gun ownership is thought to
be widespread on reservations, 257 exact numbers are elusive. One can
imagine a tribal community in which requiring gun ownership would not be
terribly burdensome, and the tribal government might be able to assist
members who don’t already own guns with purchasing them. But one can
also imagine communities where such a requirement might impose a
serious hardship. Moreover, relying on individuals to provide their own
weapons would necessarily mean that weapons would not be
254
Tribal governments have somewhat wider latitude than other American sovereigns in
integrating religion into governance; see Talton v. Mayes, 163 U.S. 376, 384 (1896)
(holding that tribes are not governed by the Bill of Rights); Indian Civil Rights Act, 25
U.S.C.§§ 1301-1304 (2006) (creating certain statutory analogues to the Bill of Rights, but
omitting an Establishment Clause analog).
255
NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION,
RIGHTS, AND POLICY 102 (2012).
256
ROBERT K. W RIGHT, MASSACHUSETTS MILITIA ROOTS: A BIBLIOGRAPHIC STUDY 3 (1986).
257
EDITH G. C. W OLFF, GUN VIOLENCE ON INDIAN RESERVATIONS: AN ADVOCACY CAMPAIGN
TO COLLECT DATA AND RAISE COMMUNITY AWARENESS 5 (1998) (“Gun ownership is
widespread on many reservations, especially rural ones . . . .”).
267
standardized, making firearms training, and maintenance more of a
challenge.
Similarly, requiring some large percentage of the populace to
attend drill once a month may or may not be feasible in a given tribal
community. On the one hand, any community that elects to adopt a
universal militia program presumably has a great deal of buy-in from the
public, such that people would be willing to abide by such a requirement.
On the other hand, reservations are often geographically quite large,
which might make regular drills logistically challenging. Decentralized
training would probably be key, and the tribal government might also have
to arrange transportation.
Still, a universal tribal militia need not look like the Massachusetts
Militia of 1628. The degree to which militia members need to be armed, be
armed uniformly, or develop a high degree of weapons proficiency will
vary enormously from situation to situation. At one extreme might be the
“border state” problem discussed above, in which a citizen militia might
face armed and hostile foreign drug gangs. In that circumstance, to have a
militia at all would be to take on the responsibility of sufficiently arming and
training militia members for actual combat.
By contrast, where the militia is intended more for emergency
management, it might resemble State Defense Forces—quasi-military
volunteer groups organized by many states. Such groups are often given
training in emergency medical services258 and plugged into the emergency
plans of the National Guard.259 Their duties may also include logistical
support and, for example, assisting firefighters in “monitoring real-time fire
behavior.”260 Members of State Defense Forces do not need to meet the
combat-ready marksmanship and fitness standards of the regular forces.
However, they may still take on certain obligations, including purchasing
uniforms, training for a certain number of hours each year, and agreeing to
258
See, e.g., Military Emergency Medical Specialist Academy (MEMS), STATE GUARD
ASS’N OF THE U.S., http://www.sgaus.org/training/mems.asp (last visited Nov. 24, 2013).
259
CAL. NAT’L GUARD, 2008 CALIFORNIA NATIONAL GUARD YEAR IN REVIEW 31 (2008)
(describing the activation of 155 state defense force members to assist the California
National Guard in fighting wildfires).
260
Id.
268
be bound by a military code. 261 A universal tribal militia where armed
defense is not necessary or desirable might follow a similar model.
Of course, there are many possible in-between models—a militia
that requires some basic arms training, but not high levels of proficiency or
constant ownership, for example. One could also imagine a hybrid of the
select and universal models in which the universal militia is augmented by
a somewhat smaller, better-trained select corps. Such a model could offer
some of the manpower advantages and anti-abuse deterrence of a
universal militia while still allowing for a well-equipped and well-trained
subset to aid the police and federal forces in more dangerous missions,
like providing border security and rousting drug gangs.
Finally, any tribe that decides to institute an armed universal militia
should consider allowing for conscientious objection. The United States
Code exempts from armed military service those who, by “religious
training and belief,” oppose “war in any form,”262 while local ordinances
requiring firearms ownership often exempt those who are morally opposed
to owning or using weapons. 263 A tribal militia ordinance might have a
similar provision.
C.
The Tribal National Guard
The idea of tribes raising their own militias poses the question
whether those militias should be integrated with, or adjoined to, the federal
National Guard system. Although, as I have pointed out in Part II(C)
federal statutes do not currently require this of tribes the way they do of
states, there might be advantages to engaging with the federal system.
261
Cal. Nat’l Guard, California State Military Reserve Frequently Asked Questions, CAL.
NAT’L GUARD,
http://www.calguard.ca.gov/casmr/Documents/New_Application_Files_/9.CA%2520SMR
%2520Frequently%2520Asked%2520Questions.doc (last visited Nov. 24, 2013).
262
50 U.S.C. App. § 456(j) (2006).
263
See Kennesaw, Ga., Code of Ordinances § 34-21(b) (2011); Melissa Gray, Georgia
Town Mulls Mandatory Gun Ownership, CNN (Mar. 8, 2013),
http://us.cnn.com/2013/03/07/us/georgia-gunrequirement/index.html?sr=sharebar_facebook (last visited Nov. 24, 2013); See also
Joseph Blocher, The Right Not to Keep or Bear Arms, 64 STAN. L. REV. 1 (2012).
269
The largest advantage would be access to federal money and
training opportunities. Many tribes might struggle even to adequately
equip a militia and conduct minimal training, but the federal government
devotes enormous financial resources to the state militias. The Utah
National Guard, for example, receives 74 percent of its funds from the
federal government,264 while the Georgia National Guard “is funded with
$552 million in federal money and 9 million dollars from the state.” 265 Even
adjusted down to a level appropriate to tribal populations, that kind of
money could provide tribal governments with vast new resources in
addressing public safety issues, both routine and emergency.
Additionally, integration with the National Guard system could be a
useful public relations maneuver, elevating the tribes to co-equal status
with the states in the public eye. By making tribal membership an
alternative basis on which to join the National Guard, the federal
government could acknowledge the “third sovereign” in a highly visible
way. It could convey a clear message to the public (and the states) that
the sovereign status of tribes entitles them to participation in one of the
most fundamental projects of the federal system: joint control of the
military.
Finally, integration with the national military could check abusive
uses of a tribal militia, because the federal government would provide for
regularized disciplinary procedures and meaningful oversight. Thus, a
federally integrated militia could provide a tribe with all the benefit of a
select militia while mitigating the risk that it could be used for oppressive
purposes.
Of course, that possibility points to the very reason why tribes might
not want to integrate with the federal system: any such integration would
almost certainly involve some loss—perhaps a very great loss—of local
control. In exchange for federal money, state militias agree to a number of
264
STATE OF UTAH, NATIONAL GUARD, VETERANS’ AFFAIRS, AND CAPITOL PRESERVATION
BOARD AGENCY BUDGET OVERVIEW 1 (2012).
265
Terry Dickson, Defense Budget Cuts Would Affect Georgia National Guard, Adjutant
General Says, FLORIDA TIMES-UNION (Feb. 10, 2013).
http://jacksonville.com/news/georgia/2013-02-10/story/defense-budget-cuts-would-affectgeorgia-national-guard-adjutant (last visited Nov. 24, 2013).
270
conditions: their National Guard soldiers are trained and disciplined
according to federal standards; they wear the Army’s uniform; their units
are structured according to the Army’s command-and-control regime; and
the President may federalize National Guard units in times of war or public
emergency, or for training, even beyond the nation’s borders. 266
Integration with the federal system thus presents profound
challenges to both tribal sovereignty and tribal cultural distinctiveness. If
the tribal militia, to receive federal funds, must embrace United States
military culture in full, the idea of the tribal militia as a vehicle for the
transmission of cultural traditions is radically undermined. A relationship in
which the federal government could commandeer organs of the tribal
government would upend the principles of self-determination which are
supposed to be the hallmark of tribal-federal relations. That this would put
the tribes in no worse position than the states is no answer, because
states have powerful representation in the national government (especially
the Senate), while tribes have no federal representation at all.
In theory, each tribe could decide for itself which trade-offs in
sovereignty and cultural distinctiveness would be worthwhile. In practice,
however, this would raise another potential issue with federal integration:
namely, many tribes are not large enough to create whole National Guard
units larger than, say, a company. By way of example, California has an
overall population of approximately 38 million 267 and total National Guard
enrollment of 21,000. 268 The Navajo Nation, one of the nation’s largest
tribes, has an on-reservation population of approximately 173,000 269 and
an overall enrollment of about 287,000.270 Thus, we might expect National
Guard enlistment of, at most, a few hundred soldiers—enough, perhaps,
266
See Perpich v. Dep't of Def., 496 U.S. 334 (1990).
U.S. Census Bureau, State and County Quick Facts, CENSUS.GOV,(2010),
http://quickfacts.census.gov/qfd/states/06000.html (last visited Nov. 24, 2013).
268
Gretel C. Kovach, S.D. National Guard Unit Preps for a Final Afghan Deployment, U-T
SAN DIEGO (Jan. 18, 2013), http://www.utsandiego.com/news/2013/jan/18/tp-sd-nationalguard-unit-preps-for-a-final/ (last visited Nov. 24, 2013).
269
U.S. CENSUS BUREAU, THE AMERICAN INDIAN AND ALASKA NATIVE POPULATION 14 (2010).
270
Id. at 17. The Nation itself puts the number at slightly over 300,000. Bill Donovan,
Census: Navajo Enrollment Tops 300,000, NAVAJO TIMES (Jul. 7, 2011),
http://navajotimes.com/news/2011/0711/070711census.php (last visited Nov. 24, 2013).
267
271
to man a single battalion. 271 By contrast, many tribes in California number
in the hundreds,272 and statistically might be expected to have only a
handful of citizens who would be interested in the substantial time
commitment of a National Guard-type militia membership, let alone be
able to meet enlistment requirements. Of course, small tribes would face
challenges raising a tribal militia no matter what, but attempting to
integrate the militia into the federal system would presumably reduce the
tribe’s flexibility in finding creative ways to man its militia.
There are workarounds to the size issue. Perhaps a small tribal
Guard unit could be folded into a larger state unit. But this is likely a
solution no tribe would adopt. Integrating into the federal system, though
admittedly risky, is not a fundamental threat to the current status of tribal
sovereignty, because the federal government claims plenary power over
tribes anyway.
States, however, are traditionally much more
circumscribed in their ability to regulate tribal affairs, 273 and to give a state
governor command authority over a tribal organ seems like an
unprecedented step.
A more interesting possibility is that tribes could enter into regional
compacts, creating intertribal militia frameworks in order to have sufficient
numbers. There is no theoretical reason why tribes could not create such
a compact without sacrificing sovereignty—tribes already enter into
intertribal agreements, for example, to manage federal appropriations for
natural resource husbandry, or to provide court services to multiple small
tribes.274 States have also entered into regional compacts to deal with
271
See U.S. Army, Operational Unit Diagrams, ARMY.MIL.,
http://www.army.mil/info/organization/unitsandcommands/oud/ (last visited Nov. 24,
2013).
272
See U.S. CENSUS BUREAU, AMERICAN INDIAN AND ALASKA NATIVE TRIBES IN CALIFORNIA
(2000), http://www.census.gov/population/www/cen2000/briefs/phc-t18/tables/tab019.pdf
273
See supra Part II.D.
274
Who We Are, INTERTRIBAL BUFFALO COUNCIL,http://itbcbuffalo.com/node/3 (last visited
Nov. 24, 2013) (describing the history of the ITBC, including its early formation as a 501
(c) 3 non-profit and its 2010 reorganization as a corporation under Section 17 of the IRA);
Protecting Tribal Sovereignty, INTERTRIBAL COURT OF SOUTHERN CALIFORNIA, http://icsc.us/
272
large-scale problems, like nuclear waste disposal.275 This might be an
effective mechanism for tribes to generate sufficient numbers to integrate
smoothly with the National Guard. However, it might end up stripping the
tribal militia of many of its proposed advantages, because it would now be
neither a vehicle for cultural transmission nor an immediately available
local emergency force.
Of course, tribal engagement with the federal system need not look
exactly like that of the state militias. For example, tribes might elect to
create something that looks much less like the actual National Guard and
much more like the State Defense Forces—that is, an emergency
response force that is not subject to federal activation. State Defense
Forces are normally funded entirely by the state. An accommodation might
be reached with Congress whereby tribal militias are given federal
National Guard funding at a much lower level than state National Guard
units, but in exchange remain entirely under local control. Such an
arrangement might represent a happy medium for tribes reluctant to enter
into the federal National Guard wholesale, and it would moot the size
issue.
CONCLUSION
Tribal governments have a retained, but largely unused, internal
military power. That power could provide a tool for tribes to secure the
territorial integrity of their reservations, police their borders, disrupt
criminal organizations, manage natural disasters and other public
emergencies, train young people, and provide a focal point for community
organization. Tribal members and their governments should consider
whether such a tool can help them meet their governance goals.
The use of military power is, of course, not without its dangers. An
armed select militia, particularly, has an unfortunate historical precedent in
Dick Wilson’s GOONs, which was an instrument of flagrant civil rights
violations on the reservation. Moreover, complaints about the use of
internal military power have sometimes led to federal intervention in tribal
275
See 42 U.S.C. § 2021(d) (2006) (authorizing and incentivizing the creation of regional
compacts).
273
affairs or to armed clashes with the federal government. With that history
as a warning and a guide, there is no reason why a tribe could not provide
adequate safeguards against abuse, adopt a tribal militia under one of the
models discussed above, and thus exercise its powers as a sovereign and
provide for public safety.
274
UNTIL YESTERDAY: DETERRING AND HEALING THE
CYCLICAL GENDER-BASED VIOLENCE IN INDIAN COUNTRY
Samantha Ivette Morales
INTRODUCTION
“As ancient sovereign nations, we must look to our histories, beliefs,
resources, and experiences to reclaim safety and empowerment for all
women.”1
Despite our modern day lives and laws of the twenty first century,
Native women are just now being afforded the protections and privileges
that non-Native women have had for decades. A number of scholars have
written about the need to protect Native women from sexual assaults and
domestic violence on tribal lands. 2 For any woman, breaking the cycle of
domestic violence or recounting the horrors behind a sexual invasion can
be painful, degrading, and traumatic. It takes courage, strength, and
power to face their fears and their perpetrators. For Native women
specifically, coming forward has often been useless because the law has
often failed to protect them, until now.

Third year law student at Thomas Jefferson School of Law (expected graduation in May
2014). The author acknowledges the contributions and guidance of Thomas Jefferson
School of Law Professor Bryan H. Wildenthal on this article. A special note of
appreciation to Elaine Whitefeather, Executive Director of A Community for Peace
(formerly the Domestic Violence Intervention Center) for her inspirational guidance,
support and leadership. With gratitude to my guiding stars and the courageous women
who found their voice and spoke their truths to pass on their teachings to my rainbow
sisters and I. For my daughters Laura and Nevaeh who inspire me every day.
1
Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 KAN. J.L. & PUB. POLICY
121, 143 (2004) [hereinafter Deer, Indigenous Jurisprudence].
2
Deer, Indigenous Jurisprudence, supra note 1; see also Hossein Dabiri, Kiss The Ring,
But Never Touch The Crown: How U.S. Policy Denies Indian Women Bodily Autonomy
And The Save Native Women Act's Attempt To Reverse That Policy, 36 AM. INDIAN L.
REV. 385 (2011); Andrea Johnson, A Perfect Storm: The U.S. Anti-Trafficking Regime's
Failure To Stop The Sex Trafficking Of American Indian Women And Girls, 43 COLUM.
HUM. RTS. L. REV 617 (2012); Samuel D. Cardick, The Failure Of The Tribal Law And
Order Act Of 2010 To End The Rape Of American Indian Women, 31 ST. LOUIS U. PUB. L.
REV. 539 (2012).
275
This article examines the need to address gender violence 3 within
Indian Country in a way that deters offenders and offers culturally sensitive
restorative justice programs to help heal victims. Part I demonstrates the
magnitude of what many have called an epidemic of violence against
Native women. Part II provides an overview of the criminal jurisdictional
challenges and describes how the recently enacted Tribal Law and Order
Act and Violence Against Women Act (VAWA) partly address those
challenges. Part III discusses, in more depth, how Native governments
need to enforce current legislation that protects women, and discusses
ways in which restorative justice programs can be incorporated within
tribal criminal justice infrastructures to provide healing options for victims.
I.
A.
WOMEN ARE SACRED, RIGHT?
The Epidemic of Gender-Based Violence in Indian
Country
Some scholars trace the prevalence of gender violence against
Native women to the history of Spanish colonization where rape and
assault were used as a means for conquest to exterminate the conquered
population.4 Essentially, when the women of a tribe were taken away, their
tribe could no longer reproduce their lineage and would therefore be
exterminated. Decades of treating Native women in the United States like
second-class citizens, without ensuring adequate legal protections and
enforcements of their rights, have resulted in statistics that are alarming
and unsettling. Native women suffer from the highest rates of intimate
partner violence5 and stalking,6 and the highest rate of rape and sexual
victimization compared to non-Native women.7 Murder is the third leading
3
“Gender violence” is used to address both sexual and physical assaults against women.
Dabiri, supra note 2 at 393.
5
OFFICE ON VIOLENCE AGAINST W OMEN AND THE NATIONAL CENTER ON FULL FAITH AND
CREDIT, VIOLENCE AGAINST NATIVE W OMEN A GUIDE FOR PRACTITIONER ACTION 1 (2006),
available at http://www.bwjp.org/files/bwjp/articles/Violence_Against_Native_Women.pdf
(last visited Jan 13, 2014) [hereinafter OVW, GUIDE] (citing PATRICIA T. JADEN & NANCY
THOENNES, U.S. DEP'T OF JUSTICE, FULL REPORT ON THE PREVALENCE, INCIDENCE AND
CONSEQUENCES OF VIOLENCE AGAINST W OMEN 21-23 (2000)).
6
Id.
7
Id.
4
276
cause of death for Native women, and on some Indian Reservations the
murder rate of women is ten times the national average. 8
Although perpetrators can come from all backgrounds, research
indicates that most crimes committed against Native women are by nonNatives. Recent studies indicate that 76 percent of the people living onreservations are non-Native.9 Native women suffer inter-racial violence at
five times the rate of other racial groups. 10 In domestic violence cases
amongst spouses, one fourth of all cases involve a non-Native
perpetrator.11 Sexual assaults are also more likely to be interracial and
involve perpetrators under the influence of drugs or alcohol. Between
1992 and 2002, 88 percent of rapes or sexual assaults against Native
women were at the hands of non-Native perpetrators. 12 Furthermore, over
two thirds of Native women report their perpetrators were under the
influence of drugs or alcohol before the attacks.13
Rape is much more than an invasion of a woman's body. “‘Rape is
laden with psychological and spiritual ramifications.’ Rape is a lived
experienced.”14 It degrades the human spirit, shatters a woman's
psychological well-being, and has been happening to Native women at
8
S. REP. NO. 112-265, at n.25 (2012).
STEVEN W. PERRY, U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, TRIBAL CRIME
DATA COLLECTION ACTIVITIES 1 (2012), available at
http://www.bjs.gov/content/pub/pdf/tcdca12.pdf (last visited Nov 24, 2013) [hereinafter
PERRY, TRIBAL CRIME].
10
FUTURES W ITHOUT VIOLENCE, FORMERLY FAMILY VIOLENCE PREVENTION FUND, THE FACTS
ON VIOLENCE AGAINST AMERICAN INDIAN/ALASKAN NATIVE W OMEN 5, available at
http://www.futureswithoutviolence.org/userfiles/file/Violence%20Against%20AI%20AN%2
0Women%20Fact%20Sheet.pdf (last visited Nov 24, 2013) [hereinafter FWV, FACTS ON
VIOLENCE] (citing GREENFIELD, LAWRENCE & SMITH, STEVEN, U.S DEP'T OF JUSTICE, BUREAU
OF JUSTICE STATISTICS, AMERICAN INDIANS AND CRIME (1999), available at
http://www.justice.gov/otj/pdf/american_indians_and_crime.pdf (last visited Jan. 9,
2014)).
11
Id.
12
Johnson, supra, note 2 at 638 (citing STEVEN W. PERRY, U.S. DEP'T OF JUSTICE, BUREAU
OF JUSTICE STATISTICS, PROFILE 1992-2002: AMERICAN INDIANS AND CRIME (2004), available
at http://www.justice.gov/otj/pdf/american_indians_and_crime.pdf (last visited Nov. 24,
2013).
13
FWV, FACTS ON VIOLENCE, supra note 10, at 20 (citing U.S. DEP'T OF JUSTICE, VIOLENCE
AGAINST INDIAN AND ALASKA NATIVE W OMEN AND THE CRIMINAL JUSTICE RESPONSE: W HAT IS
KNOWN 39 (2008)).
14
Dabiri, supra note 2, at 3 (citing Deer, Indigenous Jurisprudence, supra note 1, at 123).
9
277
startling rates. Native women are two and half times more likely to be
raped or sexually assaulted. 15 One out of three Native women is projected
to be raped within their lifetime; 16 whereas, less than one in five women is
projected for the general population. 17 Compared to non-Native women,
Native women are more likely to suffer from violent rapes and twice as
likely to face armed offenders and require medical care for injuries from an
attack.18 91 percent are struck by their perpetrators as they are being
raped; whereas, 71 percent of white women and 78 percent of African
American women are struck during their rapes.19 A study of Native sex
trafficking victims20 in Minnesota found 92 percent had been raped and 73
percent suffered traumatic brain injuries.21
As shocking as these statistics are, the sad reality is that these
numbers are likely to just show the tip of the iceberg in this epidemic of
violence against Native women. A vast majority of crimes go unreported
because many women do not always come forward to report their crimes.
Estimates vary between 17 percent and 49 percent of Native rape victims
15
AMNESTY INT'L, MAZE OF INJUSTICE: THE FAILURE TO PROTECT INDIGENOUS W OMEN FROM
SEXUAL VIOLENCE IN THE USA 2 (2007), available at
http://www.amnestyusa.org/pdfs/MazeOfInjustice.pdf (last visited Nov. 24, 2013)
[hereinafter AMNESTY INT'L, MAZE] (citing STEVEN W. PERRY, U.S DEP'T OF JUSTICE,
BUREAU OF JUSTICE STATISTICS, AMERICAN INDIANS AND CRIME –A BJS STATISTICAL PROFILE
1192-2002 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/aic02.pdf (last visited
Nov. 24, 2013)).
16
OVW, GUIDE, supra note 5, at 1.
17
Johnson, supra note 2, at 627 (citing AMNESTY INT'L, MAZE, supra note 15, at 21-23).
18
RONET BACHMAN ET.AL, U.S DEP'T OF JUSTICE, VIOLENCE AGAINST AMERICAN INDIAN AND
ALASKA NATIVE W OMEN AND THE CRIMINAL JUSTICE RESPONSE: W HAT IS KNOWN 37 (2008),
available at https://www.ncjrs.gov/pdffiles1/nij/grants/223691.pdf (last visited Nov. 24,
2013) (unpublished report).
19
Cardick, supra note 2, at 534 (citing Cf. Ronet Bachman et al., Estimating The
Magnitude Of Rape And Sexual Assault Against American Indian And Alaska Native
(AIAN) Women, 43 AUST. & N.Z.J. CRIMINOLOGY 199, 211 (2010)).
20
I use the term sex trafficking victims synonymous with prostitutes.
21
Dabiri, supra note 2, at 392 (citing Melissa Farley et al., Garden of Truth: The
Prostitution And Trafficking Of Native Women In Minnesota 3 (2011)). The same study
also found Native women were overrepresented as sex trafficking victims and that 84
percent of the sex trafficking victims interviewed reported having been psychically
assaulted. See Johnson, supra note 2, at 621 (citing U.S. DEP'T OF JUSTICE, ATTORNEY
GENERAL'S ANNUAL REPORT TO CONGRESS AND ASSESSMENT OF U.S. GOVERNMENT
ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS IN FISCAL YEAR 2009 16 (2010)).
278
reporting their attacks.22 In the Navajo Nation, one of the largest
reservations, only about 10 percent of victims report their sexual
assaults.23 Besides having to gather the strength and courage needed to
come forward, many women are paralyzed by the fear that “breaches in
confidentiality, retaliation, and a lack of confidence that reports will be
taken seriously and result in perpetrators being brought to justice.” 24
Many Native women have had to ask themselves, what good will it
do to come forward if my perpetrator will still walk as a free man? Their
lack of faith in the justice system is not unfounded given the high
declination rates from federal and state authorities. In 2011, 65 percent of
rape cases in Indian Country went unprosecuted by the Department of
Justice.25 Out of the 329 rapes reported in 2007 within the Navajo Nation,
only seventeen arrests had been made by 2012. 26 According to the
Department of Justice, arrests are made in only 13 percent of the sexual
assaults reported by Native women compared to 35 percent for African
American and 32 percent for Caucasian women. 27 Other estimates place
the arrest and conviction rate at 6 percent for rapes against Native women
compared to 11-12 percent for non-Native women.28 What is undisputed
is that in 2010, cases in Indian Country only accounted for 1 percent of the
offenses investigated for violating federal laws and 1 percent of the
criminal cases filed by federal prosecutors.29
22
Cardick, supra note 2, at n.38-39 (citing Ct. Bachman et al., Estimating the Magnitude
of Rape and Sexual Assault Against American Indian and Alaska Native (AIAN) Women,
43 AUST. & N.Z.J. CRIMINOLOGY 199, 211 (2010)).
23
Timothy Williams et al., For Native American Women, Scourge of Rape, Rare Justice,
NEW YORK TIMES, May 23, 2012 [hereinafter Williams, Native American Women]. This
article also highlighted that in South Dakota, Natives make up 10 percent of the
population, but account for 40 percent of the victims of sexual assault. Alaska Natives
account for 15 percent of the population in Alaska, but account for 61 percent of its
victims of sexual assault.
24
AMNESTY INT'L, MAZE, supra note 15, at 4.
25
Williams, Native American Women, supra note 23.
26
Id.
27
Id.
28
Cardick, supra note 2 (citing Ct. Bachman et al., Estimating the Magnitude of Rape and
Sexual Assault Against American Indian and Alaska Native (AIAN) Women, 43 AUST. &
N.Z.J. CRIMINOLOGY 199, 211 (2010)).
29
PERRY, TRIBAL CRIME, supra note 9, at 13-14.
279
II. THE LEGAL BACKGROUND OF GENDER-BASED CRIME AND (LACK OF)
PUNISHMENTS ON INDIAN RESERVATIONS
A.
History of Criminal Jurisdictional Restrictions on Tribal
Sovereignty
In America, we rely on the assumption that in an emergency we
can call 911 and trust that first responders will be dispatched immediately
to aid us. Given the federal trust relationship between tribes and the
government,30 it is hard to fathom that Native women in Indian Country
cannot rely on this safeguard to stop their non-Native partners from
abusing them. “Before asking 'what happened' police ask: 'what is our
jurisdiction? Was the perpetrator Native American?” 31 Tribal jurisdiction
has been limited by a number of laws throughout the years, and until
recently,32 tribal authorities could not exercise criminal jurisdiction over
non-Natives committing crimes within their reservations.
Nineteenth century laws still impact tribal jurisdiction today. During
the Relocation Era, Congress was concerned with crimes in Indian
Country affecting non-Natives and in 1817, passed the Indian Country
Crimes Act (ICCA) that expanded the General Crimes Act (GCA). It
recognized tribal jurisdiction for crimes where both victim and defendant
were Natives and federal jurisdiction over interracial crimes. 33 In 1883, the
Supreme Court reaffirmed exclusive tribal jurisdiction over crimes
committed on their tribal lands involving Natives. 34 In response, Congress
passed the Major Crimes Act (MCA) of 1885, which extended concurrent
30
See Cherokee Nation v. State of Ga., 30 U.S. 17 (1831)(holding that tribes were
considered domestic dependent nations noting that their relation to the United States
“resembles that of a ward to his guardian”).
31
AMNESTY INT'L, MAZE, supra note 15, at 8 (citing an interview with a support worker for
Native American survivors of sexual violence in May 2005).
32
See infra Section III; Violence Against Women Reauthorization Act of 2013, 42
U.S.C.A § 13701 (West 2014) (The 2013 Violence Against Women Act will give
qualifying tribal authorities “special domestic violence jurisdiction” over non-Natives in
2015).
33
The government retained jurisdiction over interracial crimes (Native against non-Native
or vice versa), except where offenses were already punished by the tribe or where treaty
rights gave tribes exclusive jurisdiction. See 18 U.S.C. § 1152 (2006).
34
Ex parte Crow Dog, 109 U.S. 556 (1883).
280
federal jurisdiction over Natives committing murder, manslaughter, rape,
and assault with intent to commit murder, arson, burglary, or larceny. 35
During the Termination Era, Congressional policies were aimed
towards terminating federal obligations to tribes. Public Law 280 36 (PL
280) was passed in 1953, without consent from tribal governments. 37 It
transferred federal jurisdiction over Indian Country to “mandatory” states
and gave “optional states” the ability to exercise the same jurisdiction if
they amended their Constitutions. 38 The effects in Indian Country were
devastating. State authorities became “reluctant to become involved in
Indian Country crimes,”39 and Native communities became vulnerable and
dependent on them to prosecute crimes because their funding was
reduced across PL 280 states.40
The Indian Civil Rights Act (ICRA) of 1968 imposed further
limitations on tribal jurisdiction. 41 If and when tribes exercised exclusive or
35
18 U.S.C.A. § 1153 (2006)(MCA has been amended several times to extended federal
jurisdiction over Natives committing maiming, sexual abuse, incest, assault with a
dangerous weapon, assault resulting in serious bodily injury, assault against minors
under 16 years, felony child abuse or neglect, and embezzlement).
36
Pub. L. No. 83-280 (1953) (codified as 18 U.S.C. § 1162, 28 U.S.C. § 1360 and 25
U.S.C. § 1321-1326).
37
Pub. L. No. 280 was amended in 1968 by ICRA to require tribal consent to extend
mandatory jurisdiction to states. Since then, no tribe has consented. See U.S. DEP'T OF
JUSTICE, OFFICE OF JUSTICE PROGRAMS, PUBLIC LAW 280 AND LAW ENFORCEMENT IN INDIAN
COUNTRY – RESEARCH PRIORITIES 4 (2005), available at
https://www.ncjrs.gov/pdffiles1/nij/209839.pdf (last visited Nov. 24, 2013).
38
Mandatory states were California, Minnesota, Nebraska, Oregon, Wisconsin, and
Alaska. Optional states who have asserted all or partial criminal jurisdiction include
Nevada, South Dakota, Washington, Florida, Montana, North Dakota, Arizona, Iowa and
Utah. See 28 U.S.C § 1360 (2006).
39
OVW, GUIDE, supra note 5, at 9 (citing Sarah Deer, Expanding The Network Of Safety;
Tribal Protection Orders For Survivors of Sexual Assault, 4 TRIBAL L.J. SECTION II.B.2.
(2004)).
40
Id.
41
25 U.S.C. § 1302 (2006). ICRA also introduced some of the guarantees from the Bill of
Rights into Tribal Courts such as due process and right to counsel. See Matthew L.M.
Fletcher, Indian Courts and Fundamental Fairness: Indian Courts and the Future
Revisited, 84 U. COLO. L. REV. 59, 95 (2013) noting “ICRA has served, and will continue
to serve, an important purpose in assisting tribal courts, litigants, and legislatures in
providing the legal infrastructure necessary to guarantee fundamental fairness in Indian
country.”
281
concurrent jurisdiction with PL280 states or the federal government, 42
ICRA's sentencing caps essentially eliminated tribal government's power
to prosecute felony level crimes. Under ICRA, tribes could not impose
punishments exceeding one year imprisonment or $5,000 in fines. 43
Consequently, Native perpetrators faced little, if any, deterrence because
they only faced misdemeanor level penalties. They could also commit
repeated offenses against Native women without the threat of repeat
offender laws in place outside Indian Country.
The most devastating blow to tribal sovereignty with regard to
criminal jurisdiction came in 1978 with the heavily criticized Supreme
Court decision in Oliphant v. Suquamish Indian Tribe. 44 The court held that
unless expressly granted by Congress, tribal authorities did not hold
criminal jurisdiction over non-Natives for crimes committed in Indian
Country.45 Native women had to hope and pray their perpetrators would
be brought to justice and prosecuted by state or federal authorities.
Oliphant eliminated tribes' ability to prosecute non-Natives for attacking
Native women. Tribal authorities could only offer their women protection if
attacked by another Native.46
Consequently, Oliphant also eliminated a critical level of deterrence
for non-Natives wishing to commit crimes on reservations. “Criminals tend
to see Indian reservations and Alaska Native villages as places of free
reign, where they can hide behind the current ineffectiveness of the
judicial system.”47
42
See United States V Wheeler, 435 U.S. 313, 318.
25 U.S.C. § 1302 (2006).
44
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
45
Id.
46
See 25 U.S.C. § 1301 (2006); see Duro v. Reina, 495 U.S. 676 (1990) in which the
Supreme Court ruled Native tribes could not prosecute Natives who were members of
other tribes. In response, Congress amended ICRA in 1991 in what has been called the
"Duro-fix", to expressly designate criminal jurisdiction over all Natives regardless of tribal
membership due to their inherent sovereignty. See also United States v. Lara, 541 U.S.
193, where the Court implied that the "Duro-fix” amendment to ICRA was generally valid
and upheld concurrent jurisdiction amongst tribes and the federal government. The Court
has not yet resolved possible equal protection challenges to the law.
47
S. Rep. No. 112-265 at n.39 (2012).
43
282
B.
Attempting to Undo Historical Harm Through the Tribal
Law and Order Act
High rates of violent crime on reservations, specifically sexual and
domestic violence against Native women, prompted Congress in 2010 to
pass the Tribal Law and Order Act (TLOA).48 TLOA amended PL 280,
strengthening tribal law enforcement and addressed concerns that state
authorities in PL 280 states were reluctant to “become involved” with
Indian Country issues. Tribal governments may now exercise concurrent
jurisdiction over reservation crimes in PL 280 states with approval by the
Attorney General. 49 TLOA also amended ICRA to increase tribal
sentencing caps.50 Tribes that meet certain conditions may now sentence
offenders to three years imprisonment, a $15,000 fine, or both, for each
offense with the discretion to stack them for a maximum sentence of nine
years.51
In terms of preventive measures, TLOA established a sexual
assault protocol that requires the Indian Health Service (IHS) to consult
with tribes, tribal organizations, and the Department of Justice’s Office on
Violence Against Women to develop new standardized policies for
addressing sexual assaults.52 To help ensure follow-through and increase
victim's confidence that their reports will be taken seriously, TLOA requires
“any federal department or agency” to communicate with local tribal law
enforcement whenever non-referrals or declinations of criminal
investigations occur. 53 To help with the prosecution of crimes in Indian
48
Indian Arts and Crafts Amendments Act of 2010, 25 U.S.C.A. § 305 (2013); Tribal Law
and Order Act of 2010, 25 U.S.C.A, § 2801 (2013).
49
Id.
50
See NATIONAL CONGRESS OF AMERICAN INDIANS', THE TRIBAL LAW & ORDER ACT ONE
YEAR LATER: AN UPDATE ON IMPLEMENTATION 3 (2011), available at
http://tloa.ncai.org/documentlibrary/2011/07/TLOA_comprehensive_one_year_FINAL1.pd
f (last visited Nov. 24, 2013). The report highlights that it will take time before tribal
courts can use their enhanced sentencing authority because under the ICRA amendment
by TLOA, tribes must provide indigent counsel for defendants, train and license judges,
publicize their tribal codes, provide detention facilities that are certified for long-term
detention.
51
Tribal Law and Order Act of 2010, 25 U.S.C.A. § 2801 (2013).
52
Id.
53
Id.
283
Country, TLOA expanded the use of Assistant United States Attorneys
within Indian Country. 54
While TLOA was successful in remedying some of the criminal
jurisdictional limitations that prior laws had placed on Native authorities, its
major flaw and criticism stems from what it failed to do. TLOA did not undo
Oliphant and return criminal jurisdiction to tribes over non-Natives.55 It
failed to provide Native Women with the same protections and rights as
non-Native women.
C.
The 2013 Violence Against Women Act: Long Awaited
Protections or Just a Band Aid?
Efforts to adopt legislation to address domestic and sexual violence
against women led to the first version of VAWA drafted by Vice President
Joe Biden and signed into law by President Bill Clinton in 1994. 56 VAWA
created the Violence Against Women Office, now the Office of Violence
Against Women (OAW) within the Department of Justice.57 This
established: harsher penalties for repeat sex offenders; created the
federal “rape shield law;” increased victim's accessibility to rape
examinations and restraining orders; established full faith and credit for
restraining orders; funded specialized enforcement and prosecution units
to increase prosecution and convictions of perpetrators; developed
training for law enforcement; created the National Domestic Violence
Hotline; and introduced immigration relief for undocumented, battered
immigrants leaving the cycle of violence.58 Thanks to VAWA, more raped
54
Tribal Law and Order Act of 2010, 25 U.S.C.A. § 2801 (2013); Michael J. Bulzomi,
Indian Country And The Tribal Law And Order Act of 2010, LAW ENFORCEMENT BULLETIN
(2012), available at http://www.fbi.gov/stats-services/publications/law-enforcementbulletin/may-2012/indian-country-and-the-tribal-law-and-order-act-of-2010 [hereinafter
Bulzomi, TLOA of 2010] (citing U.S. DEPARTMENT OF JUSTICE DECLINATIONS OF INDIAN
COUNTY CRIMINAL MATTERS, GAO-11-167R, § 213 (2010)).
55
Cardick, supra note 2, at 564.
56
Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C § 13701 (2006).
57
FWV, FACTS ON VIOLENCE, supra note 10, at n.36 (citing U.S DEP’T. OF JUSTICE, OFFICE
OF VICTIMS OF CRIME UNIVERSITY OF OKLAHOMA HEALTH SCIENCES CENTER (1997)).
58
Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West
2014); THE W HITE HOUSE, FACT SHEET: THE VIOLENCE AGAINST W OMEN ACT, available at
http://www.whitehouse.gov/sites/default/files/docs/vawa_factsheet.pdf (last visited Nov.
24, 2013).
284
and battered women have come forward to make reports; states have
reformed laws to take violence against women “more seriously,” and
intimate partner violence declined by 67 percent between 1993 and
2010.59 Although women across the country have benefited from VAWA's
protections, earlier versions did nothing to address the specific needs of
Native women.
VAWA was reauthorized in 2000 and 2005 with bi-partisan support,
but died in 2012 after House Republicans opposed the Senate version
that afforded protections to Native women, undocumented immigrants,
and the LGTB community. 60 In his letter to the Majority Leader of the
House, the President of the National Congress of American Indians
summarized the need for VAWA's reauthorization to specifically protect
Native women:
Tribes are dealing with felony violence in domestic
situations–such as beatings and rapes of young Native
women by non-Native boyfriends, some of whom are
engaged in drug trafficking and understand that they are
untouchable under the current system of law on Indian
lands. U.S. Attorneys currently decline 67 percent of sexual
abuse and related cases. If a case is declined at the federal
level the felony crime would go back to tribal court as a
misdemeanor–where the defendant can immediately remove
the case back for the U.S. Attorney for a dismissal. Even if
the U.S. Attorney is interested in prosecuting, the offender
would likely be set free until the U.S. Attorneys can obtain a
grand jury indictment, which can take months. Until that
indictment is obtained, the offender is often set free to walk
the very community that he haunts. The federal criminal
justice system is simply not equipped to handle local crimes,
59
Id.
Tom Cohen, House Passes Violence Against Women Act After GOP Version Defeated,
CNN (February 28, 2013), http://www.cnn.com/2013/02/28/politics/violence-againstwomen (last visited Nov. 24, 2013).
60
285
and this is the primary reason that tribes seek local control
over these crimes that are plaguing our communities. 61
Tribal courts were finally authorized to exercise jurisdiction over
non-Native perpetrators when the House of Representatives voted 286 to
138 to pass the Senate version of VAWA on February 28, 2013. 62 Before
signing the Bill on March 7, 2013, President Barack Obama
acknowledged, “Indian Country has some of the highest rates of domestic
abuse in America. And one of the reasons is that when Native American
women are abused on tribal lands by an attacker who is not Native
American, the attacker is immune from prosecution by tribal courts. Well,
as soon as I sign this bill that ends.” 63
For the first time, Title IX of VAWA lays out the specific protections
afforded to Native women. 64 VAWA amended ICRA by giving concurrent
jurisdiction to eligible tribes 65 able to exercise their “special domestic
violence” jurisdiction over non-Native perpetrators with pre-existing state
and federal authorities. 66 “Special domestic violence” jurisdiction is
triggered for domestic violence, dating violence, and certain protective
order violations.67 VAWA amended the federal assault statute for domestic
61
Jefferson Keel, Letter to Hon. Eric Cantor, Majority Leader for United States House of
Representatives, 1 (December 20, 2012),
http://turtletalk.files.wordpress.com/2012/12/letter-to-majority-leader-cantor_122012.pdf
(last visited Jan. 14, 2014)(emphasis added).
62
Jane C. Time, VAWA Passes House, With Full Protections For LGBT, Native
Americans, MSNBC (February 28, 2013), http://tv.msnbc.com/2013/02/28/vawa-passeshouse-with-full-protections-for-lgbt-native-americans/ (last visited Nov. 24, 2013);
http://clerk.house.gov/evs/2013/roll055.xml (last visited Jan. 20, 2014).
63
Remarks by the President and Vice President at Signing of the Violence Against
Women Act, THE W HITE HOUSE (March 7, 2013), http://www.whitehouse.gov/the-pressoffice/2013/03/07/remarks-president-and-vice-president-signing-violence-against-womenact (last visited Jan. 14, 2014).
64
2014).
65
Id.
66
Id. Eligible tribes must provide indigent defendants with defense counsel, timely
notification of their rights under VAWA and the Constitution as well as their right to a trial
by an impartial jury reflecting a fair cross section of the community, and their right to file a
for a writ of habeas corpus.
67
Id. Applicable protection orders must provide protection against violent or threatening
acts or harassment, sexual violence, contact or communication or physical proximity
issued against the defendant, enforceable by the participating tribe and consistent with
286
violence by increasing the sentences for numerous offenses. 68 It also
amended 18 U.S.C. § 2265 and finally closed the loophole for repeat
offenders with tribal convictions. Federal prosecutors can now use tribal
convictions against perpetrators and no longer have to try them as first
time offenders. 69
The current VAWA's incorporation of Title IX is undeniably a
landmark piece of legislation and a significant step towards providing
Native women with some of the same protections that non-Native women
have had for decades. However, it is far from being the comprehensive
piece of legislation needed to stop gender-based violence in Indian
Country. It is very limited in that the “special domestic violence”
jurisdictional expansion only applies to a very narrow and specific portion
of cases. First, tribes cannot assert jurisdiction in cases where both
defendant and victim are non-Native.70 Second, tribal governments may
only assert jurisdiction over non-Native defendants who are residents or
employees of the tribe, a spouse, an intimate or dating partner of a tribal
member, or a Native residing on the lands of a participating tribe. 71 Hence,
it only protects Native women who are intimately involved with their
abusers and not from perpetrators who are strangers. Aside from
enforcing protective orders, it does little to protect Native women from
attacks by those who do not live or work for the tribe. VAWA has very little
impact on non-recognized tribes, 72 and excludes most Alaskan Native
women from its protections. 73
Except for the few tribal nations
U.S.C. 18 § 2265(b). VAWA also gives tribal courts full civil jurisdiction to “issue and
enforce orders involving any person, including the authority to enforce orders through civil
contempt proceedings, to exclude violators from Indian land” Id.
68
Id. at § 906. Federal sentencing guidelines were increased to 10 years for assaulting a
spouse, intimate partner, or dating partner by strangling or suffocating, 5 years for
assaulting a spouse, intimate partner, or dating partner resulting in substantial bodily
injury, and 1 year for assaulting a person by striking, beating, or wounding.
69
Id.
70
Id.
71
Id.
72
There are currently 556 federally recognized tribes. 25 U.S.C. §§ 479a (2013).
73
2014).VAWA only confers special domestic violence criminal jurisdiction to the Metlakatla
Indian Community and Annette Indian Reserve in Alaska.
287
participating in the two-year “pilot program,”74 the special domestic
violence jurisdiction will not be available to eligible tribal governments until
March 7, 2015.75 Waiting one day is inexcusable; waiting two years is
simply outrageous.
Developing and funding strong tribal criminal justice systems
that are in compliance with the ICRA will be a significant hurdle for tribes
wishing to exercise special domestic jurisdictions as “participating tribes.”
Adequate funding will be crucial to repair tribal governments that have
been severely understaffed and underfunded. To combat this, VAWA
authorizes appropriations of $5,000,000 each year76 to ensure tribal
governments build and support the criminal justice infrastructure they
need.
III. RIPPLES OF CHANGE: FIGHTING BACK AND HEALING GENDER-BASED
VIOLENCE AGAINST NATIVE WOMEN
A.
Tribal Government Needs
1.
The Tribal Court System
The Indian Country judicial system has five legal institutions:
traditional courts, Courts of Indian Offenses, inter-tribal courts, courts of
appeal and tribal courts of general jurisdiction. Their size and funding
varies according to the tribe. Even though all must adhere to ICRA
provisions, some have not written nor publicized their criminal codes for
crimes against women.77 VAWA's implementation will take time and
74
The Department of Justice published procedures and solicited preliminary expressions
of interest from Native tribes requesting designation as a participating tribe under “the
Pilot Project” in the Federal Register. Pilot Project for Tribal Jurisdiction Over Crimes of
Domestic Violence, 78 Fed. Reg. 115 (June 14, 2013), http://www.gpo.gov/fdsys/pkg/FR2013-06-14/pdf/2013-14158.pdf (last visited Nov. 24, 2013).
75
2014).
76
25 U.S.C.A. § 1304 (West 2014). Authorizes appropriations for the 2014-2018 fiscal
years for the Attorney General to award grants to supplement already existing monetary
relief so tribes can strengthen their tribal criminal justice systems, carry out their duty,
and provide “training, technical assistance, data collection, and evaluation of the criminal
justice systems of participating tribes”. Id.
77
PERRY, TRIBAL CRIME, supra note 9, at 15. Right now, it is not clear which tribes need
specialized help. However, in 2012 the Bureau of Justice Statistics (BJS) initiated a
288
funding so that tribal Courts can ensure defendants receive rights that are
consistent with both 18 U.S.C. § 3771(a) and “tribal law and custom.” 78
In response to this need, VAWA appropriates funding for the
development of tribal court systems. Tribal Coalition Grants will assist
tribes in developing and promoting state and local tribal legislation and
policies to respond to violent crimes against Native women including
domestic violence, dating violence, sexual assault, sex trafficking, and
stalking.79 VAWA funding will also help tribal courts develop culturally
appropriate services for victims and their families: including, the use of
criminal codes, the rules of evidence and criminal and appellate
procedure, as well as, funding for indigent defense counsel representation
and proper procedures for juror selection and jury instruction. 80
2.
Tribal Law Enforcement
As discussed in Part I, 76 percent of the 4.6 million people living on
reservations are non-Native.81 When tribal courts begin to exercise
“special domestic violence” jurisdiction over non-Natives, the need for law
enforcement will increase dramatically. Adequate funding and cooperation
amongst new and existing law enforcement agencies will be critical. The
most significant obstacle towards fighting gender violence on reservations
is the lack of tribal law enforcement's ability to enforce the protections
afforded by TLOA and VAWA:
Many tribal law enforcement agencies face unique obstacles
that often challenge their ability to promote and sustain
community policing effectively. Unlike municipal police
agencies, many tribes still lack basic technology to
modernize their departments, such as laptops installed in
national survey of tribal court systems and in 2013 BJS will coordinate with federal justice
agencies to gather data from 2009-2011 which will be published on its web page. BUREAU
OF JUSTICE STATISTICS, INDIAN COUNTY JUSTICE STATISTICS,
http://bjs.gov/index.cfm?ty=tp&tid=200000 (last visited Jan. 14, 2014).
78
Id.
79
2014).
80
Id.
81
PERRY, TRIBAL CRIME, supra note 9, at 1.
289
police vehicles. The officer-to-population ratio still remains
lower on Indian reservations than in other jurisdictions
across the country. Finally, tribal law enforcement has a
unique challenge of patrolling large areas of sparsely
populated land.82
Tribes need funding to support the tribal law enforcement agencies
that are severely underfunded and understaffed. The latest numbers
reveal 178 tribal law enforcement agencies employ about 3,000 full-time
personnel across twenty-eight states.83 In 2008, the Bureau of Indian
Affairs (BIA) operated forty-two agencies and employed an additional 227
full time personnel to provide law enforcement services to tribes without
police agencies.84 The Navajo Nation has a population of 174,000 85 on a
reservation that spans four states and only has 393 officers. 86 The
recruitment and retention of tribal officers is also a problem. According to
the FBI, many tribal officers leave their departments within two years of
hire.87
Partnership relations between tribal, state, and federal authorities
are imperative to deal with tribal law enforcement understaffing. TLOA
established grants and technical assistance as incentives for cooperative
law enforcement agreements between state and tribal authorities to crossdeputize their officers.88 Cross-deputizing would be helpful because it
would expand a tribal officer's authority to enforce laws that would
82
DEP’T OF JUSTICE, BUDGET AND PERFORMANCE SUMMARY 12 (2013),
http://www.justice.gov/jmd/2013summary/pdf/fy13-bud-summary-requestperformance.pdf (emphasis added).
83
Id. at 2.
84
Id. at 6.
85
THE UNITED STATES CENSUS BUREAU, THE AMERICAN INDIAN AND ALASKA NATIVE
POPULATION 14 (2010), available at http://www.census.gov/prod/cen2010/briefs/c2010br10.pdf (last visited Nov. 24, 2013).
86
PERRY, TRIBAL CRIME, supra note 9, at 6.
87
Bulzomi, TLOA of 2010, supra note 54.
88
Id. at n.46 (citing THE U.S. DEP’T OF THE INTERIOR’S, BUDGET JUSTIFICATIONS AND
PERFORMANCE INFORMATION: FISCAL YEAR 2009, INDIAN AFFAIRS, IA-PSJ-6, noted there
were 2,758 BIA and tribal criminal investigators and police serving Indian country).
290
normally be out of their jurisdiction, regardless of the perpetrator’s
identity.89
Without their own tribal police departments, tribal nations are likely
to have a difficult time establishing a strong criminal justice infrastructure
because the majority of the funding available is already ear marked for
strengthening existing tribal police departments. Tribes with tribal law
enforcement agencies may obtain funding through the Department of
Justice's Coordinated Tribal Assistance Solicitation (CTAS) program that
is administered through the Community Oriented Policing Services
(COPS) program. 90 In 2012, the Department of Justice awarded
$101,472,879 to tribal governments. 91
Tribes may also obtain funding by collaborating with state and
federal agencies through the use of crime databases. The Bureau of
Justice Statistics (BJS) awards funds to tribal agencies that participate in
the Tribal Criminal History Records Improvement Program (T-CHIRP).92 A
2007 survey highlighted tribal law enforcement's serious underuse of TCHIRP: 72 percent of tribal law enforcement agencies reported they did
not regularly submit criminal history records to State or Federal
databases, less than 25 percent submitted basic criminal records to State
or Federal authorities, 75 percent did not submit sex offender information
to the National Sex Offender Registry (NSOR), and less than 20 percent
were electronically networked to federal, state, or local law enforcement
agencies.93 BJS also provides funding through the Edward Byrne
89
Id.
See DEP'T OF JUSTICE COMMUNITY ORIENTED POLICING SERVICES,
http://www.cops.usdoj.gov/ (last visited Nov. 24, 2013).
91
DEP’T OF JUSTICE, DEP’T OF JUSTICE, COORDINATED TRIBAL ASSISTANCE SOLICITATION –
FY 12, COMBINED AWARD LIST 1 (2012), available at
http://www.cops.usdoj.gov/pdf/2012AwardDocs/CTAS/FY-2012-CTAS-Full-AwardList.pdf (last visited Nov. 24, 2013).
92
STEVEN PERRY, U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, TRIBAL CRIMINAL
HISTORY RECORDS IMPROVEMENT PROGRAM (T-CHIRP): IMPROVING CRIMINAL HISTORY
RECORDS IN INDIAN COUNTRY 2004-2006 1 (2007), available at
http://bjs.gov/content/pub/pdf/ichric06.pdf (last visited Nov. 24, 2013). T-CHIRP is aimed
at improving the completeness, quality and accessibility of tribal criminal history records.
93
Id. at 1.
90
291
Memorial Justice Assistance Grant (JAG)94 to tribes participating in the
FBI's Uniform Crime Reporting (UCR) Program. 95 However, tribal law
enforcement agencies that do not use UCR are not eligible for JAG
funding. By 2010 only about seventy tribal law enforcement agencies had
received the requisite UCR training.96 To address this, VAWA has
specifically allocated funding to assist tribal law enforcement to enter and
obtain information from national crime information databases. 97
B.
Victim Needs
Victims of sexual abuse and domestic violence should be able to
count on a criminal justice system that meets their needs. One explanation
for the high declination rates for rape prosecution discussed in Part I is
due to a lack of forensic evidence. Indian Health Services (IHS) on
reservations has been historically underfunded. Rape kits needed to
perform forensic exams were considered “extraneous to core health care
needs,”98 and there was no funding allocated to train IHS employees on
sexual assault forensic examinations.99 Consequently, IHS did not have
standardized protocols in place for collecting forensic sexual assault
evidence for federal prosecutors to rely on. 100 The funding for these
services allocated by TLOA and VAWA needs to be allocated to remote
tribal communities so that these services can be easily accessed.
Domestic violence experts agree that the most dangerous time for
battered women is amidst escape and securing a safe place to hide.
Funding is needed to help Native women leave and stay away from their
perpetrators. Unfortunately, Native domestic violence victims have few, if
94
Id. at 1-3. JAG is the leading source of federal justice funding to state and local
jurisdictions.
95
Id. The UCR is national collection system capturing information of crimes known to law
enforcement agencies nationwide.
96
Id. at 7. Only 21 the 70 agencies had been trained to use the FBI's National Incident
Based Reporting system (NIBRS), which houses comprehensive and detailed crime data
across agencies nationwide.
97
2014).
98
99
Deer, Indigenous Jurisprudence, supra note 1, at 14.
100
292
any, safe havens available to them because there are only twenty-six
Native specific shelters serving Indian Country.101 However, shelters are
only a temporary solution. They cannot “provide the time or the stability
for women to create a solid base for change in their lives.”102 Many will be
single mothers and self-sufficiency will be critical in order to provide for
themselves, their children, and their communities. Survivors of domestic
violence need long-term affordable housing programs, counseling,
support, and tools to enter the workforce. Organizations like A Community
for Peace in California are leading the way with an effective delivery
service model offering co-located wrap around services for victims.103
C.
Healing Through Restorative Justice Programs
1.
Indigenous Restorative Justice Ceremonies
Implementing restorative justice programs as part of the
infrastructure of tribal criminal justice systems is critical. They present
culturally sensitive adjudications that are specific to each tribe and can
supply victims with healing and closure where appropriate.
The power of individual woman’s stories of surviving sexual
assault should not be underestimated. Indeed, there are
accounts of the power of a single woman's story to affect
change within her tribal government . . . . 104 Other social
problems cannot be resolved unless psychological trauma is
addressed in a systemic way. 105
Tribal courts are unique because they respect and protect the values of
their tribal communities while following the rules and customs of non-tribal
courts. The indigenous justice system has a restorative and reparative
foundation that includes peacemaking and talking circles, family and
101
FWV, FACTS ON VIOLENCE, supra note 10, at 38.
Id.
103
More information on A Community for Peace’s wrap around programs for domestic
violence victims and their families is available at http://acommunityforpeace.org/ (last
104
Deer, Indigenous Jurisprudence, supra note 1, at 151.
105
Id. at 138 [emphasis added].
102
293
community gatherings, and traditional dispute resolution like meditation.106
Spirituality, humanity, community and respect are values that play a
central role in the everyday life of Native Americans. “Whereas Western
law is based on punishment, Indian law is based on healing.” 107
Furthermore, “[w]estern law does not attempt to reach into the mind or
deal with psychological injuries, much less seek spiritual help in doing this.
Traditional Indian law does, and that is why it heals.” 108
Restorative justice ceremonies are aimed toward preserving
ongoing relationships and restoring a state of balance, harmony, and
peace amongst the parties and their communities.109 Tribes try to restore
this balance by giving offenders the opportunity to make amends for the
damage they caused by entering into healing contracts. 110 Participation
makes offenders endure the shame and humiliation of answering for their
crimes directly to their victims and communities rather than just serving
time in prison.111 Tribes believe “observing and hearing the apologies
helps victims and their families to discern the offender’s sincerity and
move toward forgiveness and healing.”112
Ceremonies vary according to tribal culture and the needs of each
case. Ceremonial sweats, fasting, purification, and rituals are often
used.113 For the Navajo, Hozhooji Naat'aannii is a peacemaking and
healing ceremony that is used to recommend or reduce sentences with
consent of both parties.114 Prayers are offered to seek help from the spirit
world and opinion evidence is allowed because everyone is free to
106
W ANDA D. MCCASLIN, JUSTICE AS HEALING: INDIGENOUS W AYS, W RITINGS ON COMMUNITY
PEACEMAKING AND RESTORATIVE JUSTICE FROM THE NATIVE LAW CENTRE, 114-115 (2005).
107
Id. at 70.
108
Id. at 69.
109
U.S. DEP'T OF JUSTICE, U.S. DEP'T OF INTERIOR, TRIBAL LAW AND ORDER ACT (TLOA)
LONG TERM PLAN TO BUILD AND ENHANCE TRIBAL JUSTICE SYSTEMS 18 n.29 (August 2011),
available at http://www.justice.gov/tribal/docs/tloa-tsp-aug2011.pdf (last visited Nov. 24,
2013) (hereinafter TLOA PLAN).
110
ANDREA SMITH, CONQUEST; SEXUAL VIOLENCE AND AMERICAN INDIAN GENOCIDE 140
(2005) [hereinafter SMITH , CONQUEST ].
111
Id. at 188.
112
MCCASLIN, supra note 106, at 115.
113
Id. at 116.
114
Id. at 124, 131. See TLOA PLAN, supra note 109, at 29. The Navajo Nation has 242
certified Peacemakers and a Peacemaker Liaison in each district court.
294
express how they feel. 115 After expressions are shared, the Naat'aanii, 116
acting as the judge, offers guidance from stories, traditions, and
ceremonies. A discussion is held between the parties, reconciliation plans
are created, and the parties reach a consensus about what to do. 117 The
offender's relatives pay a restitution to make the victim whole, and act as
the offender's “probation officer” to ensure he will not offend again. 118
The Canadian Hollow Water First Nation developed the Community
Holistic Circle Healing (CHCH) sentencing circle. It targets sexual
victimization believing victimizers are created, that the cycle of abuse must
be broken, and that healing is possible in a safe place. 119 The circle takes
place in a courtroom where the victim, offender, and their families are
joined by the community and local law enforcement. 120 Personal
smudges121 and prayers are offered before a judge reads pleas and
establishes ground rules for the circle. Participants engage in four goarounds speaking to the victim and offender and outline their expectations
to the offender before the judge issues a sentence. The circle is concluded
by a closing prayer and a debriefing.122
Similarly to the Hollow Water circle, the Millie Lacs Indian
Reservation in central Minnesota created the Millie Lacs Band of Ojibwe
Circle Sentencing Project. The circle also brings together victims,
offenders, and the community in a safe place before a judge where all
parties have an equal voice. Smudging and prayers in the Tribe's native
language are also offered before participants speak. It mirrors
115
Id. at 125. The use of opinion evidence is very different from non-Native courts. In a
city court proceeding for example, when a man accused of beating his wife was in denial,
his sister was able to confront him and make him accountable for his actions.
116
Naat'aanii means “wise one”.
117
Id. at 125-128.
118
Id.
119
MCCASLIN, supra note 106, at 190.
120
Id. at 192.
121
Smudging is a cleansing ritual.
122
McCaslin, supra note 106, at 192.
295
Westernized jury deliberations in that everyone must reach a consensus
to sentence the offender. 123
2.
Criticisms of Indigenous Justice Ceremonies
Critics of peacemaking and sentencing circles justifiably caution
against their use for domestic violence and sexual assault crimes.
Congress in the TLOA specifically recommended peacemaking circles as
alternatives to incarceration, but warned that they may not be appropriate
in cases of violent sexual or domestic violence assaults.124 The University
of Texas's Institute for Restorative Justice and Restorative Dialogue notes
that opponents are concerned with the inherent risk to victims of domestic
violence because of the lack of safety measures. 125 Others prefer that
circles involve the community and not the individual stakeholders noting
“the victim's cooperation with the defendant may not be appropriate under
any circumstances”126 for rape or domestic violence cases.
Despite these criticisms, the traditional Native law restorative
justice framework has gained international support over the last few
decades. In 2002, The United Nations Economic and Social Council
(ECOSOC) passed Resolution 2002/12 to use restorative justice programs
in criminal matters. In response to the 2000 Vienna Declaration on Crime
and Justice,127 Resolution 2002/12 urged “the formation of national
strategies and policies aimed at the development of restorative justice and
123
Restorative Justice Programs in Minnesota, THE ENTERPRISE FOUNDATION RESOURCE
CENTER, http://content.knowledgeplex.org/kp2/cache/documents/849/849.html (last
124
TLOA PLAN, supra note 109, at 18.
125
See The Institute for Restorative Justice and Restorative Dialogue, UNIVERSITY OF
TEXAS, http://www.utexas.edu/research/cswr/rji/ourinitiatives.html (last visited Nov. 24,
2013) [hereinafter UT Program].
126
Chris Longman, Making a Case for Restorative Justice, 1 AM. BAR ASS’N. 3, available
at
http://www.americanbar.org/publications/gpsolo_ereport/2011/october_2011/making_cas
e_restorative_justice.html (last visited Nov. 24, 2013).
127
BASIC PRINCIPLES ON THE USE OF RESTORATIVE JUSTICE PROGRAMMES IN CRIMINAL
MATTERS, U.N. ECONOMIC AND SOCIAL COUNCIL RES. 2002/12, available at
http://www.un.org/en/ecosoc/docs/2002/resolution%202002-12.pdf (last visited Nov. 24,
2013). The 2000 Vienna Convention of Crime and Justice called for “the development of
restorative justice policies, procedures, and programs that are respectful of the rights,
needs, and interests of victims, offenders and communities and all other parties”.
296
at the promotion of a culture favorable to the use of restorative justice
among law enforcement, judicial and social authorizes, as well as local
communities.”128 The United Nations Office of Drugs and Crime has even
published a Handbook on Restorative Justice Programs to assist
governments with criminal justice reforms and the implementation of
restorative programs. 129
Restorative justice programs have already been implemented
successfully throughout the United States. The American Bar Association
confirms “restorative justice programs have been patterned after victim
and defendant experiences in tribal courts in the 1990s.” 130 In 1992,
Minnesota’s Department of Corrections created the Restorative Justice
Initiative, promoting victim-offender mediation, family group conferencing,
neighborhood conferencing and the introduction of sentencing circles. 131
Since then, communities in Texas, Baltimore, Minneapolis, Oakland,
Vermont, Oregon, Missouri, and Colorado have implemented restorative
justice programs.132
There is no “one size fits all” approach to implementing restorative
justice circles. The best solution to their use is on a case-by-case
approach within the autonomy and discretion of the victims and their tribal
governments. The National Institute of Justice (NIJ) notes that although
128
Id.
UNITED NATIONS OFFICE OF DRUGS AND CRIME, HANDBOOK ON RESTORATIVE JUSTICE
PROGRAMMES (2006), available at http://www.unodc.org/pdf/criminal_justice/0656290_Ebook.pdf (last visited Nov. 24, 2013).
130
Longman, supra note 126.
131
LEENA KURKI DEPT' OF JUSTICE, INCORPORATING RESTORATIVE AND COMMUNITY JUSTICE
INTO AMERICAN SENTENCING AND CORRECTIONS 5 (1999) available at
https://www.ncjrs.gov/pdffiles1/nij/175723.pdf (last visited Nov. 24, 2013).
132
See TEXAS DEP’T OF CRIMINAL JUSTICE,
http://www.tdcj.state.tx.us/divisions/vs/victim_helpful_links.html (last visited Nov. 24,
2013); see Paul Tullis, Can Forgiveness Play a Role in Criminal Justice, N.Y. TIMES
(January 4, 2013), http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-arole-in-criminal-justice.html?pagewanted=all (last visited Nov. 24, 2013); see BALSAM,
NINA, MISSOURI RESTORATIVE JUSTICE COALITION, MISSOURI RESTORATIVE JUSTICE
PROGRAMS/RESOURCES, available at
http://www.dps.mo.gov/dir/programs/jj/documents/rj/MO_RJ_Programs_ResourcesNina_Balsam%5B1%5D.pdf (last visited Oct. 14, 2013); see RESTORATIVE SOLUTIONS,
http://wp.restorativesolutions.us/resources/resources-and-links-programs#colorado (last
129
297
restorative methods may not be appropriate for all offenders, they can be
used with a variety of offenses to provide healing for the victims and the
offenders.133 The University of Texas' Institute for Restorative Justice and
Restorative Dialogue promotes modified versions of restorative
practices.134 However, advocates agree these justice ceremonies are
important for addressing violence against Native women, but are
insufficient by themselves. In order to be fully effective, “[t]hey must be
backed up by the threat of incarceration.”135
CONCLUSION
All women should be protected by their government. It is difficult to
believe that for Native women this is still only a partial truth. While the
landmark VAWA legislation gives tribal governments the possibility to
exercise “special domestic violence” jurisdiction, it fails to protect women
outside of its limitations. Until comprehensive legislation returns criminal
jurisdiction to tribes over all crimes and defendants, VAWA will remain a
band-aid where loopholes in the law fail to deter violence against Native
women. Funding is underway to ensure tribal governments create a strong
criminal justice infrastructure. However, this will take time, collaboration
between agencies, and continued funding. Tribes without current tribal law
enforcement departments and skeleton-like criminal justice systems need
significant help before they can be eligible for “participating tribe” status
and exert their jurisdiction over non-Native perpetrators. As these efforts
continue, it will be crucial that Indian Tribes be given continued funding
that ensures rape victims have access to adequate medical treatment and
domestic violence victims have services to aid their journey towards selfsufficiency. Lastly and more importantly, Native women need to be given
the option to heal and take back some of the power that their perpetrators
took from them. Restorative justice ceremony circles can be a feasible
option in some cases. There are differing opinions as to whether their use
is effective. Ultimately, the decision should be the victim’s. Only she
133
Sentencing Circles, OFFICE OF JUSTICE PROGRAMS, NATIONAL INSTITUTE OF JUSTICE,
http://www.nij.gov/nij/topics/courts/restorative-justice/promising-practices/sentencingcricles.htm (last visited Nov. 24, 2013).
134
See UT Program, supra note 125.
135
SMITH, supra note 110.
298
knows the damage her perpetrator inflicted and only she can determine if
confronting him through long standing culturally traditional ways will aid
her in her journey towards healing.
299
POLITICAL COOPERATION AND PROCEDURAL (IN)JUSTICE:
A STUDY OF THE INDIAN REORGANIZATION ACT
Sam Thypin-Bermeo*
In 1934 and 1935, thousands of Native Americans did something
that they had never done before: they voted on federal Indian law. 1 More
specifically, they voted on whether an existing congressional act should
apply to their reservations and provide their local tribal governments with
the legal authority to govern their people and manage their economies. 2
Although the Wheeler-Howard Act, also known as the Indian
Reorganization Act (IRA), tempted reservations with numerous material
incentives including cash grants and low-interest financial credit, more
than thirty percent of voting reservations rejected the proposal. 3
Scholars have attempted to explain this perplexing behavior for
decades. Most scholars have taken a materialist approach and have
claimed that economic incentives drove support patterns. 4 They argue that
lower income tribes were more likely to pass the IRA because they
needed the capital and credit more than their wealthier counterparts did.5
Although these scholars have provided valuable, anecdotal
evidence to substantiate their claims, their conclusions are inconsistent
with broader and more systematic findings. Contrary to what materialist
* 2015 J.D. candidate at Yale Law School. I would like to thank Professors Tom Tyler
and Eugene Fidel for their kind encouragement and wise guidance.
1
THEODORE H. HAAS, TEN YEARS OF TRIBAL GOVERNMENT UNDER I.R.A. (1947), available
at http://thorpe.ou.edu/IRA/IRAbook/tribalgovtp1-12.htm (last visited Dec. 27, 2013).
2
Id.
3
DAVID E. W ILKIN & HEIDI KIIWETINEPINESIIK STARK, AMERICAN INDIAN POLITICS AND THE
AMERICAN POLITICAL SYSTEM 64 (2011).
4
See also THOMAS BIOLSI, ORGANIZING THE LAKOTA: POLITICAL ECONOMY OF THE NEW DEAL
ON THE PINE RIDGE AND ROSEBUD RESERVATIONS 79 (1992) (suggesting that “[m]ost
Lakota probably voted in favor of the IRA because of the material benefits they
anticipated”); LAURENCE M. HAUPTMAN, THE IROQUOIS AND THE NEW DEAL 87 (1981)
(concluding that because the Oneidas in Wisconsin were poorer than the Iroquois in New
York they “had less to lose than their eastern brethren and were more willing to take the
chance of accepting New Deal programs”).
5
Id.
300
arguments would predict, accepting and rejecting reservations had similar
economic profiles, as indicated by their nearly identical employment rates.
The average employment rate for the reservations that endorsed the bill
was sixty-six percent, while the average employment rate for the
reservations that rejected the bill was 67 percent.6 Similarly, the median
employment rate for the reservations that supported the bill was 67
percent and the median employment rate for the reservations that
declined the bill was 68 percent.7
The materialist argument falls short because it assumes that
human behavior is motivated by projected financial outcomes. This
“instrumentalist” assumption is questionable. 8 As Professor Tom Tyler first
argued in his paradigm-shifting study of law compliance, people’s
behavioral decisions often derive from normative—non-instrumentalist—
assessments of their best options. 9 In an extensive study of more than
fifteen thousand Chicago residents, Professor Tyler found that
respondents’ belief in the law’s legitimacy more effectively predicted the
likelihood of their legal compliance than their faith in beneficial outcomes
did.10 Furthermore, he discovered that respondents determined the law’s
6
These statistics include information from all 245 voting reservations, except for seven
reservations located in states with small American Indian populations, such as Florida,
Iowa, Louisiana, Mississippi, and Colorado. I did not incorporate these reservations into
the study because the 1930 census, which provided this information, did not collect data
in these states. Because there is no data available for employment rates on each
reservation, I used average employment rate for Native Americans in each state as an
indicator of the employment rate on each reservation. U.S. DEP’T OF COMMERCE,
FIFTEENTH CENSUS OF THE UNITED STATES: 1930, THE INDIAN POPULATION OF THE UNITED
STATES AND ALASKA 200 (1937), available at
http://babel.hathitrust.org/cgi/pt?id=mdp.39015011818450;view=1up;seq=185 (last
visited Dec. 26, 2013).
7
Id.
8
TOM R. TYLER, W HY PEOPLE OBEY THE LAW 3 (1990)[hereinafter TYLER, W HY PEOPLE
OBEY] .
9
Professor Tyler’s Chicago study of procedural justice and compliance concludes that
normative issues matter. People obey the law because they believe that it is proper to do
so, they react to their experiences by evaluating their justice or injustice, and in
evaluating the justice of their experiences they consider factors unrelated to outcome,
such as whether they have had a chance to state their case and have been treated with
dignity and respect. Id. at 178.
10
Tom R. Tyler, Stephen Schulhofer, & Aziz Z. Huq, Legitimacy and Deterrence Effects
in Counterterrorism Policing: A Study of Muslim Americans, 44 LAW & SOC’Y REV. 365,
367 (2010).
301
legitimacy by considering whether or not they were treated fairly or in a
procedurally just way by representative authority figures, such as police
officers or judges.11
Professor Tyler has recently used this normative framework to
explain a wider range of human behavior.12 In a 2010 co-authored article,
Professor Tyler found that perceptions of procedural justice were strongly
correlated with Muslim Americans’ willingness to cooperate in the
implementation of the policing of antiterrorism. 13 More specifically,
Professor Tyler concluded that “[p]rocedural justice in policy formation
significantly influences willingness to report terrorism-related concerns to
the police.”14
This paper draws upon and extends Professor Tyler’s insights by
showing that procedural justice in the creation of federal Indian Law
strongly shaped reservations’ desire to adopt the federal government’s
preferred legislation. Simply put, reservations were more likely to support
the IRA, and thus, cooperate with the federal government’s initiative, if
they thought that the Bureau of Indian Affairs (BIA) had treated them fairly
during the 1934 Indian Congresses—official meetings held between BIA
representatives and hundreds of American Indian leaders. By studying the
conduct of these meetings, which were created to build support for the
Act, I find that the reservations whose delegates attended Indian
Congresses, and so scored higher on a scale of procedural justice, were
significantly more likely to accept the IRA than reservations whose
delegates attended Congresses that scored lower on the same scale. I
also find that delegates from reservations that rejected the proposal were
much more likely to discuss unfair treatment in the actual Congresses.
Thus, a model based on considerations of procedural justice proves more
accurate in determining the ultimate decisions of the tribes with respect to
accepting or rejecting IRA by ratification than the current accepted model,
which argues that financial considerations motivated the accepting tribes.
11
Id.
Id. at 368.
13
Id.
14
Id. at 386.
12
302
Three sections structure this paper. First, I begin with a brief,
historical background of the IRA. Second, I discuss my methods of sample
selection and analysis. Third, I present and explore my case studies.
Finally, I discuss the consequences of the findings and suggest grounds
for further research with regard to procedural justice.
I.
BACKGROUND
In the fall of 1933, Nathan Margold, the Solicitor of the Department
of the Interior, hired Felix Cohen, a Harvard-trained legal philosopher with
no background in Indian law, to be an Assistant Solicitor in the
Department of the Interior.15 Almost immediately, Cohen and John Collier,
the Commissioner of the BIA, began planning a revolution in federal Indian
law.16 In order to repeal the Dawes Act,17 to preserve Native American
culture, 18 and to liberate Native American communities from the BIA’s
authoritarian control, 19 Collier and Cohen produced a fifty-five page bill
that eventually became the IRA. Initially, the bill moved slowly through
Congress because of its complexity and ambiguity. 20 Indeed, many
legislators, including Senator Burton Wheeler, one of its sponsors,
15
Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 FLA. ST. U. L. REV.
189, 206, 209 (2001).
16
Id.
17
ELMER R. RUSCO, A FATEFUL TIME: THE BACKGROUND AND LEGISLATIVE HISTORY OF THE
INDIAN REORGANIZATION ACT 291 (2000).
18
Ward Shepard, a BIA official, told the National Conference of Social Work that the new
policy does not seek to answer the problem of assimilation. Rather, it recognizes what is
good in Indian culture, and seeks to preserve and to build on it, as something which, as
the slow fruition of an imaginative and gifted race in close contact with nature for untold
centuries, is inherently worth preserving, and shall not be deliberately destroyed. Id. at
196.
19
Cohen and another BIA official wrote in a 1934 memorandum that “the ‘ultimate goal’ of
the program to be outlined in a draft bill was said to be ‘the removal of supervision in
questions involved administrative discretion, leading to the ‘the gradual emancipation of
the Indian Communities.”’ Id. at 200.
20
Collier wrote C. Hart Merriam and said:
“You are right in saying that the bill is long, complicated, and technical. That is partly due
to the fact that the situation itself is exceedingly complicated and we were confronted with
the necessity of choosing between a few blanket formulas or setting up the bill
procedures that would recognize widely variable circumstances that must be met. But the
complexity is also in part due to the speed with which the bill had to be drawn.”
Id. at 208.
303
struggled to understand the bill’s implications. 21 Fearing that their bill might
never leave the House Committee on Indian Affairs, Collier and Cohen
boldly attempted to build support for the bill by inviting Native Americans
to participate in the legislative process.22 The BIA planned ten Congresses
throughout the country and asked hundreds of influential and noninfluential Native Americans to share their thoughts on the proposed bill. 23
BIA officials, including Collier himself, extensively outlined the bill’s
provisions and listened to the participants’ suggestions.24 Although the
Congresses did not significantly affect the bill’s final structure, these
meetings did increase Native American support for the law. 25
After learning that President Franklin Roosevelt and most Native
Americans supported the proposed measure, Senator Wheeler began to
take the bill more seriously and agreed to meet with William Zimmerman,
the Assistant Commissioner of the BIA, to amend the original bill. 26
Zimmerman and Senator Wheeler produced a streamlined, five-page act
that moved quickly through Congress and became law on June 18,
1934.27 According to the law’s introduction, Congress passed the bill to
develop Native American lands, empower their governments, support their
businesses and educate their citizens. 28 More specifically, section 5
created a $2,000,000 fund for land acquisition; section 10 provided a
$10,000,000 fund for development loans; and section 11 created a
$250,000 fund for education loans. 29 Most importantly, however, section
18 provided that the law should “not become operative until ratified at a
special election by a majority vote of the Adult Indians living in the
21
At a hearing on April 28, Senator Wheeler said, “I have read the [original] bill and I will
swear that it is impossible for me to understand some of the provisions of the bill.” Id. at
234. Similarly, Sam Collins, a member of the House Committee on Indian Affairs,
admitted, “[N]ot many of us do understand it, I think.” Id. Representative Oscar Priest,
also a member of the Committee on Indian Affairs, went further and stated, “there is no
member of the committee that understands it.” Id.
22
Id. at 247.
23
Id. at 246.
24
See generally VINE DELORIA, JR., THE INDIAN REORGANIZATION ACT: CONGRESSES AND
BILL (2002).
25
RUSCO, supra note 17.
26
Id. at 253-54.
27
Wheeler-Howard Act, Pub. L. No. 73-383, 48 Stat. 984 (1934).
28
Id.
29
Id.
304
reservation.”30 This Act seemed especially radical at the time because it
replaced many elements of the General Allotment Act, a law passed in
1887 to weaken tribal governments and extend the federal government’s
power over American Indian tribes. 31
II.
SURVEYING THE INDIAN CONGRESSES: METHODOLOGY AND ANALYSIS
To ensure that the IRA would be ratified at the reservation level, the
BIA organized eleven Indian Congresses in seven states, including three
in Arizona, three in Oklahoma, one in New Mexico, one in California, one
in Wisconsin, one in South Dakota, and one in Oregon. 32 This article
studies these last three Congresses for two reasons. First, by
concentrating on the Oregon, South Dakota, and Wisconsin Congresses—
Congresses that drew reservations with average employment rates of 61
percent, 60 percent, and 59 percent, respectively (see Table 1) —I use the
crucial case selection method33 and explain why some of the most needy
reservations inexplicably rejected the generous IRA. Second, I chose not
to study the Oklahoma Congresses because the final version of the law
contained a proviso that exempted Oklahoma tribes from the Act.34
30
Id. at § 17.
Indian General Allotment Act, 25 U.S.C.A. § 331 (repealed 2000).
32
DELORIA, supra note 24, at vii.
33
A crucial case selection method tests the validity of a hypothesis by studying the case
that will most likely confirm a hypothesis. If the hypothesis cannot explain these crucial
cases, one must conclude that it cannot adequately explain other, less clear, cases.
CASE STUDY METHOD: KEY ISSUES, KEY TEXTS 148 (ROGER GOMM, MARTYN HAMMERSLEY,
& PETER FOSTER, eds., 2000).
34
Indian General Allotment Act, 25 U.S.C.A. § 331 (repealed 2000). Indian and nonIndian Oklahomans lobbied Congress to exempt Oklahoman tribes from the IRA because
the law would “retard a well advanced movement toward assimilation.” GRAHAM D.
TAYLOR, THE NEW DEAL AND AMERICAN INDIAN TRIBALISM 35 (1980). See also JON S.
BLACKMAN, OKLAHOMA’S INDIAN NEW DEAL 4 (2013) (“Politicking of the Oklahoma
congressional delegation exempted Oklahoma Indians from six significant provisions of
the Indian Reorganization Act in 1934.”).
31
305
Table 1
Congress
Average Male Employment Rate of Attending
Reservations
New Mexico
71 %
Arizona
69 %
California
67 %
Oregon
61 %
South Dakota
60 %
Wisconsin
59 %
Oklahoma
61 %
Ten indicators of procedural justice are used to give each Congress
a procedural justice score. 35 As illustrated by Table 2, a “1” indicates that
the element of procedural justice was present; a “0” indicates that it was
absent; and a “-1” indicates the presence of its unjust counterpart.
Because procedural justice develops at the intersection of reality and
perception, a Congress’ level of procedural justice was determined by
considering both the BIA’s actions and the participants’ reactions.
35
TOM R. TYLER, W HY PEOPLE COOPERATE: THE ROLE OF SOCIAL MOTIVATIONS 183 (2011).
306
Table 2
(Neutrality) Does
the
authority
figure not act on
BIAs?
(Explanation)
Does the authority
figure explain his
or her actions?
(Voice) Does the
authority
figure
give people the
opportunity to be
heard?
(Consideration)
Does the authority
figure
consider
others insights
(Equal
Consideration)
Does the authority
figure
consider
others’
insights
equally?
(Trust) Does the
authority
figure
inspire trust?
(Politeness) Does
the
authority
figure treat people
politely and with
dignity?
(Accuracy) Does
the
authority
figure
use
accurate
information?
(Consistency)
Does the authority
figure apply rules
consistently?
Total Score
Chemawa,
Oregon
0
Rapid City, South
Dakota
0
Hayward,
Wisconsin
1
1
0
1
0
0
1
0
1
1
0
1
1
0
1
1
0
1
1
0
0
0
0
0
0
1
4
7
307
The Congresses are ranked in order from least to most
procedurally just by using the procedural justice score described in Table
2. The case studies varied in ranking from Hayward, which had the
highest procedural justice score, to Chemawa, which had the lowest score
out of all the Congresses. I then ranked the Congresses in order of their
efficacy in garnering support for the IRA, as measured by the percentage
of the represented reservations that eventually ratified the federal
government’s proposal.
As Table 3 indicates, I found that the Congresses’ procedural
justice rankings were highly correlated with their efficacy scores. All of the
reservations that attended the most procedurally just Congress, Hayward,
accepted the IRA. 68 percent of reservations that attended the second
most procedurally just Congress, the Rapid City Congress, accepted the
IRA. 47 percent of the reservations that attended the third most
procedurally just Congress, Chemawa, accepted the IRA.36 These general
findings support the argument that procedural justice in the formation of
policy promotes cooperation in its implementation.
Table 3
Procedural
Score
Hayward, Wisconsin
Rapid
City,
South
Dakota
Chemawa, Oregon
III.
6
4
1
Justice Percentage
of
attending reservations
that
eventually
approved the IRA
100%
68 %
47 %
CASE STUDIES: AN INVESTIGATION OF THE RELATIONSHIP BETWEEN
PROCEDURAL JUSTICE AND COOPERATION
Although these data are instructive, they fail to capture fully the
importance of these normative considerations in determining acceptance.
In the case studies that follow, I investigate the relationship between
36
HAAS, supra note 1.
308
procedural justice and cooperation on two different levels. First, I analyze
this relationship at the macro-level by explaining each Congress’
procedural justice ranking and by showing its correlation to the Congress’
efficacy in promoting IRA acceptance. Second, I focus on this association
at the micro-level and reference delegates’ actual remarks to demonstrate
how normative determinations affected the decisions of individual
reservations. I begin with the Hayward Congress, the most procedurally
just Congress.
A.
Hayward, Wisconsin Congress
On April 23, 1934, four officials from the BIA stood in the middle of
a high school gymnasium and greeted a crowd of more than 167
American Indian delegates. 37 William Zimmerman, Bob Marshall, Walker
Woehlke, and Dr. Henry Roe Cloud traveled to this sleepy town in
northern Wisconsin to drum up support for the IRA. Although Zimmerman,
the Assistant to the Commissioner of the BIA, began the meeting by
highlighting the bill’s financial incentives,38 he and the rest of his team
consistently acted and explained their intentions to act in a procedurally
just way. Seven elements of procedural justice figured especially
prominently in their presentation: neutrality, explanation, voice,
consideration, equality, trust, and politeness. In the sections that follow, I
discuss each of these elements individually.
1.
Indicators of Procedural Justice from BIA Officials
a. Neutrality
First, all of the officials, but Woehlke especially, repeatedly implied
that BIA did not motivate their actions. They did this by stressing that
Native Americans’ abilities were equal, if not superior, to those of their
white counterparts. For example, Woehlke began a flurry of compliments
37
Ronald N. Satz, “Tell Those Gray Haired What They Should Know”: The Hayward
Indian Congress of 1934, 77 W IS. MAG. HIST. 196, 205 (1994), available at
http://content.wisconsinhistory.org/cdm/ref/collection/wmh/id/39393 (last visited Dec. 27,
2013).
38
Zimmerman: “Only organized groups have power in the white world.” DELORIA, supra
note 24, at 369.
309
in the Congress’ opening session by claiming, “I am dead certain that
once an Indian community is given the right to run its own affairs it will do
so efficiently and far better than a lot whites are doing it now.” 39 He
continued by making the observation that Native American men
“performed their work as efficiently if not more efficiently than their white
brothers in the C.C.C. camps,” 40 and finished by noting that “we know then
that the capacity for leadership is in the Indian race. It is there just as
much and sometimes more than in other races.”41
b. Explanation
Second, the BIA representatives thoroughly explained their actions.
They summarized the purpose and effect of each section of the Act.42
They drew the delegates’ attention to their actions by highlighting their
interest in explaining the bill. Zimmerman began the meeting by
emphasizing that “we are here to explain this bill as we understand it.” 43
Woehlke added, just three sentences later, “We want to discuss this bill in
great detail and make it as clear to you as possible.” 44 Because the
representatives explained and then reiterated their interest in explaining
their actions to the delegates, Hayward received a 1 for explanation.
c. Voice
Third, the BIA officials emphasized their interest in giving the Native
American delegates an opportunity to voice their opinions about the bill.
Woehlke, for instance, began his portion of the presentation by warning
the crowd, “We . . . will ask you to do most of the talking.” 45 The rest of the
delegates kept Woehlke’s promise and, unlike in the other Congresses,
they never silenced a single delegate. 46 Dr. Roe Cloud sincerely
expressed his interest in hearing delegates’ opinions of the bill when he
39
Id. at 373.
Id.
41
Id.
42
Id. at 370-375.
43
Id. at 370.
44
Id.
45
Id.
46
See generally id.
40
310
stated, “It will be very interesting to hear some of these views.” 47 Because
the representatives repeatedly indicated their interest in hearing the
delegates’ opinions, Hayward received a 1 for voice.
d. Equality
Fourth, The BIA officials considered everyone’s opinions equally.
They even went as far as to allow two unofficial delegates to address the
crowd on two different occasions.48 Possibly conscious of the Congress’
time constraints and fearing that the second unofficial delegate might
indirectly cut into another delegate’s time, Dr. Cloud asked the crowd,
“Shall we hear him?”49 Dr. Cloud, who was responsible for managing the
debate, even encouraged people to express tangentially related opinions.
After listening to an unofficial delegate’s meandering yet argumentative
speech, which referenced Shakespeare, Emerson, Cicero, and Daniel
Webster, Dr. Cloud patiently responded, “We are here to hear all sides of
this question, and we are certainly glad to get that side of it indeed.” 50
Because the representatives encouraged a wide range of people to
express a diverse set of opinions, the Hayward Congress received a 1 for
equality.
e. Consideration
Fifth, despite the fact that the BIA had already submitted their final
amendments to the Indian Reorganization Act,51 Zimmerman implied that
the Bureau would consider the Native American delegates’ comments in
its future decisions to amend the bill. In fact, he said, “We are not here to
sell you anything, nor are we trying to ram anything down your throats. We
realize that this bill is not perfect by any means. Many changes have been
made as a result of suggestions derived at previous Congresses like this
one.”52 Consideration in the Congress demonstrated to Native American
47
Id. at 390.
Id.
49
Id. at 391.
50
Id.
51
Satz, supra note 37, at 200.
52
DELORIA, supra note 24, at 370.
48
311
delegates that they could have an active role in the bill, rather than a
passive role.
f. Trust
Sixth, the officials attempted to inspire honesty by vowing to keep
their promises. Woehlke, for example, explained that “I can guarantee that
whatever promises are made to you by this administration will be kept by
this administration.”53
g. Politeness
Seventh, the BIA officials treated the delegates with respect and
dignity which was shown through their politeness. In a surprising turn of
events, the BIA officials were so effective in making the delegates feel
comfortable that both officials and delegates began to light-heartedly brag
to each other. Dr. Cloud, who was a Winnebago, responded to a
Chippewa’s boasts by saying, “I think it is true that the Chippewa is a very
great and kind person. I married one—I ought to know. But I still contend
that the Winnebago is the bravest Indian on this continent.”54 Later in the
Congress, Paul Abraham, a delegate from the Pipestone Sioux, picked up
where Roe left off and paused before his speech to say:
Before I start in, I would like to finish a statement made by
Dr. Roe Cloud and correct a statement made by Mr. St.
Germaine. Dr. Roe Cloud says that Chippewas are the
smartest Indians and the Winnebagos are the bravest, but
he forgot to add that the Sioux are the best looking. 55
William Skenadore, an Oneida delegate, delivered his speech directly
after Abraham, and continued with the same good-natured boasting:
I assure you it is a great pleasure to stand before this grand
body of Indians although I feel I wish to say this—that if the
Winnebago Indians are the bravest and the Sioux are the
53
Id. at 377.
Id. at 391.
55
Id. at 396.
54
312
best looking, we have overlooked the fact that the Oneidas
have got the most money.56
Consistent with the normative framework’s predictions, all of the
reservations that were represented at the Congress eventually accepted
the IRA. Unlike in most of the other Congresses, delegates began
promising to cooperate with the BIA before the meeting even ended.
Charles Picard, from the L’Anse delegation, stated, “[o]ur delegation has
pledged themselves to use their influence in persuading our members of
our tribe to stand back of the bill.”57 Similarly, Reverend Aaron, a member
of the Stockbridge delegation, turned to his fellow delegates and said, “I
would like to suggest that after you go home today or tomorrow from this
gathering, please remember what he has said and by pen or by tongue do
what you can to make this bill go through.” 58 This outpouring of support
and cooperation emerged—not because of the bill’s outcomes—but
because of, in Aaron’s words, “this grand and glorious meeting.” 59
2. Indicators of Procedural Justice From How the Tribal
Delegates Perceived the BIA Officials
As predicted by this paper’s normative framework, the Congress’
most vocal delegates focused on issues of procedural justice. In particular,
the delegates spoke enthusiastically about two elements of procedural
justice: explanation and trust.
First, the delegates noted the BIA’s thorough explanations. George
Garvin of the Winnebago delegation explained, “I feel that we have been
enlightened by this meeting.” 60 Similarly, Mike La Fernier from the Red
Cliff delegation said, “I wish to thank the Commissioner for explaining this
bill to us.”61 Most significantly, Henry Wakemeup from the St. Croix
delegation declared that the BIA’s thorough explanation of the bill actually
influenced his previously unsupportive position when he stated, “When we
56
Id. at 397.
Id. at 395.
58
Id. at 398-99.
59
Id. at 396.
60
Id. at 389.
61
Id. at 394.
57
313
heard they were going to present this bill, we said it was no good and we
had many objections to it, but since hearing the deliberation of the
different delegates and the explanations by the commission, I have
changed my opinion of it.”62
Second, the delegates expressed surprisingly high levels of trust for
the BIA officials despite their limited interactions. These expressions of
trust manifested themselves in a number of ways. Some delegates
evidenced their trust for the BIA by emphasizing their faith in the BIA’s
deliberation and efforts. Mitchell Red Cloud, a Winnebago delegate,
noted, “In some respects this bill is too good to be true, but we know that it
is the outcome of long and deep thought and that the Indians will receive
the benefits of justice.” 63 Charles Picard, a L’Anse delegate, illustrated the
potentially transformative impact of procedural justice when he explained
how his trust in the BIA’s sincerity appeased his initial fears about the bill:
We came to this notable gathering armed with pockets full of
objections to the bill we were to consider . . . [but] we have
had the benefit of a private conference with some of the
experts of this commission representing the Commissioner. .
. We are satisfied that this commission will put forth its best
effort to assist us in solving our own local difficulties. 64
Other delegates expressed their trust in the BIA by referring to the
BIA officials as friends.65 Skenadore, a delegate from the Oneida
reservation, submitted a resolution to the Congress in which he wrote:
“[W]e will forever be thankful to you as the New Commissioner of Indian
Affairs, as the tried and true friend of Indians.” 66 Henry Ritchie from the
Pottawatomie delegation also implied that his trust for the BIA explained
his support for the bill when he said, “As far as I am concerned,
individually, I think it is a good thing. The bill is being drafted by friends of
the Indians.”67 Reverend Aaron from the Stockbridge reservation went
62
Id. at 395.
Id.
64
Id. at 394.
65
Id. at 397.
66
Id.
67
Id. at 395.
63
314
further than just describing Collier as a friend. Instead, he playfully
suggested that Collier was, in fact, a Native American: “My common sense
tells me that John Collier is a member of the White Race, but my heart
tells me John Collier is an Indian: Yes, indeed, John Collier is an Indian
with a heart as big and broad as the day is long.” 68 The highest praise,
however, came from Edwin Wilson, the Grand Portage delegate who
described Collier as the “perfect gentlemen.” 69 Thus, the Hayward
Congress’ accepting delegates focused on the BIA’s fair treatment. The
same is true for the following case study.
B.
Rapid City, South Dakota
The BIA held its longest Congress in Rapid City, South Dakota. On
March 2, 1934, delegates from more than twenty reservations clamored
into the Rapid City Indian School in the hopes of meeting Collier, the man
primarily responsible for managing their relationship with the United States
government.70
The Rapid City Congress displayed a relatively high level of
procedural justice, but it ultimately fell short of the standard set by
Hayward. Four elements of procedural justice were especially evident:
consideration, equality, trust, and politeness. One was noticeably absent:
voice. I begin by discussing the elements of procedural justice that were
present.
1. Indicators of Procedural Justice From BIA Officials
a. Consideration
First, the BIA officials claimed that Congress wished to consider the
delegates’ opinions. In the following statement Collier explained that the
event’s overriding purpose was to enable Congress to consider the
opinions of Native Americans in the shaping of federal Indian law:
68
Id. at 396.
Id. at 390.
70
Id. at 24.
69
315
It also is true that within the last four or five years the
members of the House Committee on Indian Affairs have
taken the view that they are representatives of the Indians in
Indian matters and that they want to know the views and
wishes of the Indians. Hence, it is in behalf of these
Committees and their Members, as well as the
Administration that we have now come to meet with you. 71
Similarly, the BIA emphasized their interest in considering the
delegates’ perspectives by framing the legislative process as a
cooperative endeavor. In his opening statements Collier summarized the
BIA’s policy of collaborative law-making and announced, “We intend to act
in partnership with the Indians and we are not going to act unless the
Indians are willing to go with us.”72 Similarly, on the third day of the
Congress, Collier rehashed the same point and indicated, “We are
meeting with you in order that you and we may think out this question and
improve the Bill in any way that it can be improved, or change it in any
way it ought to be changed.” 73
The BIA repeatedly put this cooperative ethos into practice by
asking the delegates, throughout the Congress, to participate in the
planning of the meeting. Collier, for example, opened up the meeting by
asking the crowd, “[w]hether you would like to have an Indian chairman or
have one of the government men preside as chairman.”74 The BIA officials
used this democratic planning technique throughout the Congress and
polled the delegates on a number of issues, including where the BIA
should hold the meetings, 75 what the BIA officials should discuss,76
whether the BIA should host a dance party for the delegates, 77 and
whether the BIA should organize future congresses. 78 The BIA not only
adhered to the results of these impromptu elections but also granted
71
Id. at 26.
Id.
73
Id. at 70.
74
Id. at 25.
75
Id. at 32.
76
Id. at 47, 61-62, 92.
77
Id. at 93.
78
Id. at 88.
72
316
other, more specific requests. After hearing rumors of an interest in nonEnglish presentations, the BIA gave delegates an opportunity to deliver
speeches in their native language. 79 On a similar note, Collier and another
BIA official promised to amend the bill in response to the suggestions of
two different delegations. 80
b. Equality
Second, the BIA officials considered people’s opinions equally.
Most importantly, they did not privilege their own voices over the voices of
the delegates. Collier introduced the Congress by notifying the delegates
that “[i]t will be necessary for me and for others on the platform to do a
good deal of talking, but please understand that it is just as important for
you to talk as for us to talk.”81
In the same vein, the BIA officials explicitly structured the
Congress’ format in a way to prevent the unequal distribution of voice.
Woehlke questioned a request to remove interpreters because he feared
that some delegates might not be able to participate in the discussion
without the aid of a translator. 82 Analogously, Dr. Cloud rejected his own
tribe’s request to speak for more than their allotted time. 83 Furthermore,
the BIA emphasized the Congress’ openness in order to ensure that they
were considering the voices of official and unofficial delegates equally. 84
One BIA official even provided a heartfelt apology to an unofficial delegate
who he had silenced the day before:
Yesterday afternoon I was sorry I had to be a little harsh with
a gentleman who spoke out of turn and I believe that this
gentleman who was out of turn yesterday should be given an
opportunity to speak his mind. Therefore, if that gentleman,
who was out of order yesterday afternoon, is in the house, I
79
Id. at 79.
Id. at 79-80, 82.
81
Id. at 26.
82
Id. at 49.
83
Id. at 74.
84
Id. at 40, 61.
80
317
would be glad to have him come to the platform here and,
with your consent, speak five minutes. 85
c. Trust
Third, as in Hayward, the BIA officials made a concerted effort to
project honesty. They did this in a number of ways. Some explicitly
highlighted their attempts to tell the truth. Collier, for example, said, “I think
it is the duty of the Commissioner to tell the truth and the truth is what I
said and everyone in this hall knows that it is the truth.”86 Others proved
their honesty by explicitly referencing their interest in keeping promises
made earlier in the Congress. In one instance, Woehlke noted, “[A] large
number of questions . . . have so far remained unanswered. We said that
we would answer them and we do not want to speak with two tongues.
Therefore, I am asking the Commissioner to . . . answer some more
questions now.”87 Collier, at the very end of the Congress once again tried
to project honesty by giving a short soliloquy on his interest in the
delegates’ confidence:
We want the Indians to continue to believe that we have
been truthful and faithful. Should we, at some future date,
appear to have misinformed you, to have told you things that
were not true, as we understood the truth, then we should
consider that we had failed and lost the most precious thing
that we possess, which is your confidence…. I am merely
trying to convey to you that we have a stake of our own, just
as much as you have, in making good, in playing fair, and in
telling the truth.88
d. Politeness
Fourth, as in Hayward, the BIA treated the delegates politely, and
with such dignity and respect that the mood turned sufficiently collegial
and officials and delegates alike began to tell jokes. The BIA officials,
85
Id. at 79.
Id. at 35.
87
Id. at 79.
88
Id. at 95.
86
318
including Dr. Cloud,89 Stewart,90 Woehlke,91 Marshall,92 and even some of
the delegates93 made comments that, according to the transcript, sent rolls
of laughter through the crowd.
e. Voice
While the Rapid City Congress displayed these four elements of
procedural justice, it lacked one particularly important factor: voice.
Although there were moments, like in Hayward, when the BIA stressed the
importance of the delegate’s participation 94 and attempted to let the
delegates lead the conversation, 95 there were instances in which the
officials silenced the delegates’ voices. For example, some officials, such
as Collier himself, explicitly expressed their aversion to hearing the
delegates’ speeches. After hearing only half of the older delegates react to
the bill, Collier attempted to prevent the remaining delegates from
speaking and explained, “I don’t want to take any more time from the old
men.”96
Other officials limited the delegates’ voice by strictly structuring the
conversation and by discouraging the delegates from speaking about
anything except for the session’s particular topic. In response to the
Rosebud delegation’s request to present their questions publicly, Woehlke
asked, “Do they refer to the three preceding sections or deal with the land
division?”97 After learning that the questions did not concern the explicitly
prohibited topics and were not related to those previously discussed,
Woehlke granted the delegation’s request, albeit begrudgingly: “You may
89
Id. at 45.
Id. at 57.
91
Id. at 53, 58.
92
Id. at 55-56.
93
Id. at 88.
94
Id. at 26 (“Collier: ‘It is important that your views are expressed and put into the
record.’”); Id. at 98 (“Woehlke: ‘[The Commissioner] and his representatives want to listen
to what you have to say concerning the reorganization of your reservations.’”).
95
Id. at 58 (“James McGregor: ‘[g]et up right now and ask the Commissioner some
things, anything, or the thing that you are most worried about this question.’”); id. at 89
(‘Collier: ‘We do want all views to have the fullest expression whether we agree with them
or not . . . .’”).
96
Id. at 85.
97
Id. at 46.
90
319
proceed, but make it quick.”98 Because BIA officials encouraged, but also
prevented the delegates from expressing their opinions, the Rapid City
Congress received a zero for this element of procedural justice.
f. Indicators of Procedural Justice From How the Tribal
Not surprisingly, and consistent with this paper’s normative
argument, 68 percent of reservations represented at the Rapid City
Congress would eventually endorse the bill, making the second most
procedurally just Congress also the second most effective Congress in
garnering support for the bill. 99
At the micro-level, the experience of procedural justice was also
correlated with cooperation. Delegates who represented reservations that
rejected the IRA voiced their concerns about the absence of procedural
justice, and delegates who represented reservations that accepted the
IRA spoke mostly about the presence of procedural justice. 100 I begin by
discussing the rejecting reservations and then finish with reference to the
accepting ones.
The majority of rejecting delegations focused on at least one of four
elements of procedural justice during their speeches. First, Harry White
Man, a representative from the Crow reservation, referenced the BIA’s
impolite comments, before explaining his reluctance to support the bill. 101
He began his speech to the Congress by noting, “Once an Assistant
Commissioner of Indian Affairs called me the most ungrateful Indian in the
United States.”102 Second, Charles Blackbird, a delegate from the
rejecting Fort Totten reservation, implied that he did not trust the BIA when
he asked the “Government” to “guarantee us in some way that it will live
up to its obligations.”103 Third, delegations from the rejecting Shoshone
98
Id.
HAAS, supra note 1.
100
DELORIA, supra note 24, at 69.
101
Id.
102
Id. at 68.
103
Id. at 73.
99
320
Arapahoe104 and the Turtle Mountain Chippewa 105 reservations protested
that the BIA officials had forgotten to give their appointed delegates an
opportunity to deliver their speeches.
Reservations that had endorsed the bill, on the other hand, focused
on four elements of procedural justice: trust, voice, explanation, and
politeness. First, some focused on their trust in Collier. The Lower Brule 106
and the Fort Belknap107 delegations expressed this sentiment by
describing Collier as a “friend.” Fort Berthold’s Chief Drags Wolf indirectly
indicated his trust in the BIA by contrasting the current administration’s
behavior with the actions of prior administrations: “The past
administrations did not fulfill their promises . . . . Since then, the
Government and the Indian Bureau are trying to rectify the evils of the
past.”108
Second, other delegations that supported the IRA expressed their
appreciation for having received an opportunity to voice their opinions.
Jesse White Man, a member of the Flandreau delegation, explicitly
articulated the relationship between his support for the proposal and his
voice in the process: “The program indicates that Indians will have a voice
in their property or anything that concerns them. Therefore, I believe I am
very much in favor of the new system, especially education.” 109
Third, other delegates, who represented supportive reservations,
communicated their appreciation for the BIA’s thorough explanation of the
law. Felix White from the Ponca reservation turned to Collier and stated, “I
want to express appreciation that the Commissioner brought this ball of
light out here. . . We are thankful that we came up here.”110 Similarly, a
Fort Berthold delegate noted, “We are enjoying, however, the talks and
the discussion that we have had in this convention. The more we learn
104
Id. at 86.
Id. at 87.
106
Id. at 73.
107
Id. at 86.
108
Id. at 85.
109
Id. at 71.
110
Id. at 77.
105
321
from you and the more instructions we get from our Government officials,
the more we believe we are getting the very best information . . . . ”111
Fourth, some accepting delegates highlighted the BIA’s polite and
respectful treatment as a whole. Brown, a representative from the
Blackfeet delegation, announced, “I want to take this opportunity to
express publicly our sincere and heartfelt sympathy for the way our new
Commissioner and those of his staff have treated us. . . .”112
These references to delegates’ actual remarks highlight the fact
that delegations were thinking deeply about how they interacted with the
BIA. Furthermore, and more explicitly in support of this paper’s normative
framework, the delegates’ comments demonstrate how elements of
procedural justice influenced behavior on the individual level. Indeed, as
illustrated above, delegates from rejecting reservations noted the BIA’s
unfair treatment, while delegates from accepting reservations expressed
their appreciation for the BIA’s procedural justice.
C.
Chemawa in Salem, Oregon
Immediately after the Rapid City Congress, BIA officials traveled
west to Salem, Oregon to hold a Congress at the Chemawa Indian
School. Collier, exhausted from his performance in Rapid City, did not
attend.113 Unlike in Hayward and Rapid City, delegates and BIA officials
did not develop a friendly rapport because the BIA officials did not conduct
the meeting in a manner as procedurally just as they did in the two
Congresses described above. 114 Only one of the seven elements of
procedural justice present at Hayward, explanation, was clearly evident in
Chemawa. Two others, consideration and voice, were only marginally
present. As a result, Chemawa, the least procedurally just Congress,
received a score of 1.
111
Id. at 71.
Id. at 69.
113
Id. at 104.
114
Id.
112
322
1. Indicators of Procedural Justice From BIA Officials
a. Explanation
First, as in Hayward, the BIA thoroughly explained their actions and
encouraged participants to ask questions. Ward Shepard, a specialist in
land policies for the Indian office, explained to the crowd, “I am going to try
to be simple and straight-forward and if anything that I say is not clear,
please do not hesitate to interrupt me.”115 Similarly, Marshall, another BIA
official, told the delegates, “So what we want at this meeting and tomorrow
is for all of you to ask us questions regarding anything which you don’t
fully understand.”116 Others made the same point by emphasizing the fact
that BIA held the conferences in order to explain their actions. 117 Woehlke
stated, “Mr. Collier called this Congress . . . for a very definite purpose. He
called you together because he wanted to tell you, either through his own
words or through the members of his staff, of the Wheeler-Howard Bill—
what this bill is going to accomplish.”118 Because of the BIA’s repeated
emphasis on the importance of explaining their actions, the Chemawa
Congress received a 1 for this element of procedural justice.
b. Consideration
Second, even though the BIA officials repeatedly attempted to
convince the delegates that they were seriously considering their
opinions,119 there were moments in which BIA officials thoughtlessly and
stubbornly dismissed delegates’ suggestions. For example, in a room full
of more than twenty translators each speaking a different language, the
Spokane delegate voiced his concern that the participants could not
understand key elements of the BIA’s presentation.120 Instead of
addressing the delegate’s reasonable concerns, Marshall initially
responded, “At Rapid City, where there were 16 tongues . . . it was done
115
Id. at 112.
Id. at 104.
117
Id. at 108.
118
Id.
119
Id. at 103 (“Marshall: ‘Your criticisms and your suggestions are to be listened to and
accepted and the bill is to be changed where necessary in order to make it what Indians
want.’”).
120
Id. at 103.
116
323
[this] way and there wasn’t much confusion. We will see how it works.” 121
Because the BIA officials did not fully consider the delegates’ views, the
Chemawa congress received a zero for this factor of procedural justice.
c. Voice
Third, like consideration, voice was only marginally present at
Chemawa. Although the BIA officials highlighted their interest in giving the
delegates an opportunity to express their opinions, 122 they often failed to
keep their promises.123 For example, a commotion ensued after Dr. Cloud
initially refused to grant an audience member’s request for a question and
answer session.124 The unidentified voice from the crowd repeatedly
shouted at Dr. Cloud, “You’re out of order. You are out of order. We
understood this morning that this afternoon was to be spent in answering
questions that were presented on the table.” 125 Less dramatically, Shepard
declined to answer a delegate’s question because he could not “see that
this question pertains to the Indian Government at all.”126 Dr. Cloud
realized Shepard’s misstep and interjected, “Let’s give the speaker a
chance now.”127 In the most explicit example of limiting a delegate’s voice,
Woehlke announced:
In order to get through and cover the ground thoroughly, we
must proceed in an orderly manner. We cannot transform
this congress into a mob; therefore I hope you will
understand if I am compelled, in order to preserve the
orderly proceedings, to shut off someone or refuse to
recognize someone.128
121
Id.
Id. at 106, 108, 121.
123
Id. at 116.
124
Id.
125
Id.
126
Id. at 113.
127
Id.
128
Id. at 108.
122
324
2. Indicators of Procedural Justice From How the Tribal
In accord with the procedural justice argument, after repeatedly
being denied an opportunity to voice their concerns, only 53 percent of the
reservations that were represented at the Congress eventually accepted
the IRA. In other words, nearly half the represented reservations rejected
the IRA.
As was true in my previous case studies, focusing purely on the
BIA’s actions, fails to capture the significance of procedural justice. In fact,
issues of procedural justice played prominent roles in the delegates’
individual responses to the BIA presentation.
Indeed, the Congress left many of the delegations so insecure
about the importance of their voices in the legislative process that they
encouraged the BIA to consider their perspectives in the future. Robert
Smith from the Warm Springs reservation reminded the BIA, “[W]hen you
get back to Washington, I want you to tell them not to forget Warm
Spring’s [sic] talk here today. I want you to listen to what I say today.”129
Other tribes made more explicit assessments of the BIA’s treatment of
their members. Consistent with this paper’s normative argument, the
rejecting reservations focused on the absence of procedural justice and
the accepting reservations concentrated on its presence. A majority of the
rejecting reservations pointed to one of three missing elements of
procedural justice.
First, some of the rejecting delegates protested the lack of a
stronger Indian voice at the meeting. Before discouraging the other
delegates from blindly accepting the IRA, Clayton Kirk, a delegate from
the Klamath reservation, lamented the Congress’ representational inequity
and stated, “[T]his bill is on trial today. On the one side you have the best
that is in the Indian office . . . [but] I would like to have seen the Indian side
represented by a lawyer . . . .”130
129
130
Id. at 131.
Id. at 135.
325
Second, other rejecting reservations questioned the federal
government’s institutional legitimacy by referring to its long history of
broken promises. Chief Peter Mocktum, for example, a member of the
Coeur D’Alene delegation, recounted stories of prior dishonesty and,
interestingly, did not differentiate between the contemporary and previous
administrations:
You surveyed and allotted my reservation by force. The
government promised me at the time of allotment that this
was to be my own individual allotment forever. Very few
years after the allotments were made some delegation of
yours informed me that the young people, the competent
Indians could have their [land]. . . . Again the treaty was
broken.131
Although the Siletz132 and Yakima133 delegations also spoke of
broken treaties, John Wilson, a member of the Nez Perce delegation,
explicitly explained his reservation’s eventual rejection of the IRA with a
reference to the BIA’s dishonesty and inconsistent adherence to its
rules.134 Wilson said:
My personal opinion is that [my reservation is] inclined to
oppose the Bill. There is one big objection to the Bill: the
reason is the Nez Perce claim 18,000,000 dollars in lieu of
ceding the Montana hunting grounds to the government. The
promises were extended as part of the Indian interests into
the treaties with the government in 1855 and the promises
that the mountains and rivers would be ours have never
been kept.135
For the most part, accepting reservations described the BIA in
glowing terms. They focused on two elements of procedural justice:
consideration and trust. First, some expressed appreciation for the BIA’s
131
Id. at 127.
Id. at 130.
133
Id. at 131.
134
Id. at 129.
135
Id.
132
326
visit and the BIA’s attempts to consider their opinions. An interpreter
relayed a message from Eaneas Conso, an elder from the Flathead
reservation, telling the BIA that “he says he is very glad you came over
and visited us, the red men.” 136 John Ballard, a member of the Fort Hall
delegation, made an analogous statement and said, “we were glad to
have you come here to talk to us.”137
Second, other accepting delegations expressed their trust in the
BIA officials themselves. They did so in a number of ways. Jack George, a
member of the Taholah delegation, indicated his trust for the BIA by
complimenting their characters: “I think these are good people from the
Indian Office . . . .”138 Others expressed their trust in the BIA more directly.
John Ballard from the Fort Hall delegation turned to the BIA officials and
said, “I believe you are telling me the truth.”139 Steve Knight, a member of
the Sacramento delegation, trusted the BIA so much that he could
comfortably claim, “I have enough faith and confidence in that man that I
would support any proposal that he might put up for the welfare of the
Indians of America.”140 Thus, delegates’ considerations of procedural
justice played important roles in their decisions to reject or accept the IRA.
CONCLUSION
In support of the procedural justice theory of cooperation, there is
strong evidence that Native American reservations accepted or rejected
the IRA because of how the BIA treated their members during consultative
congresses. These findings have at least three broader implications.
First, this research demonstrates the influence of procedural justice
beyond the settings in which it has been examined thus far. On some
views, Native American communities during the 1930s would be thought
especially unlikely to have made judgments based upon normative—nonmaterialistic—considerations. Indeed, Native Americans severely lacked
financial resources during this period compared to the general population.
136
Id. at 127.
Id.
138
Id. at 137.
139
Id. at 127-128.
140
Id. at 136.
137
327
In fact, at the time, Native American unemployment rates were more than
four times higher than the national average.141 Regardless of these
abysmal employment rates, the Native American delegates who attended
the Indian Congresses focused on procedure instead of on outcomes and
chose respect and dignity over capital and credit.
Similarly unexpected, this research also expands our
understanding of what sort of actor is affected by procedural justice
concerns. Scholars such as Professor Justice Tankabe have previously
argued that procedural justice is less influential in formerly colonized
societies.142 This paper complicates those findings because, despite the
fact that these delegates had spent most of their lives as colonized
subjects, unable to vote, they made normative democratic decisions and
cooperated with those who acted in a way consistent with the delegates’
moral expectations.143
Second, this paper further attempts to push procedural justice
theory beyond its origins in law compliance and into the study of
cooperation more generally. Indeed, unlike the examples found within the
classical procedural justice literature,144 this study of the Indian
Congresses suggests that procedural justice plays an important role in
how people implement, and even make, laws. Further research in this vein
could shed light on one of America’s most pressing problems and possibly
find a solution to the hopelessly gridlocked legislature.
Third, and along the same lines, this research could provide a
valuable tool for Native American governments. If procedural justice could
effectively encourage Native American communities to cooperate with a
once completely authoritarian and illegitimate BIA, current tribal officials
should certainly be able to use the model highlighted above to more
effectively and efficiently govern their polities. Reservations could increase
141
Christina Romer, Spurious Volatility in Historical Unemployment Data, 94 JOURNAL
POL. ECON. 1, 31 (1986).
142
See generally, Justice Tankebe, Cooperation with Police in Ghana: Does Procedural
Fairness Matter?, 47 CRIMINOLOGY 4 (2009).
143
An Act To authorize the Secretary of the Interior to issue certificates of citizenship to
Indians, Pub. L. No. 68-175, 43 stat. 253 (1924).
144
TYLER, W HY PEOPLE OBEY, supra note 8.
328
their efforts to make their institutions more procedurally just by continuing
to experiment with procedurally focused forms of alternative dispute
resolution. On reservations with high crime rates and empty coffers, this
cost effective method of governance, based on friendly, public
deliberation, seems especially useful.
Because of this study’s limited methodological resources and its
inability to draw upon survey data, these conclusions are merely tentative.
Despite these caveats, these conclusions do suggest, however, that the
adoption of the IRA was about much more than just money. Indeed, it
appears that a search for justice—not just riches—drove the reservations’
support for the Indian Reorganization Act.
329

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