notes from the 38th annual Federal Bar Indian Law Conference

I attended last week’s Federal Bar Indian Law Conference in Santa Fe. It was a great time and there were a lot of terrific panels. I can’t claim I paid attention fully at every moment – I was working on my Criminal Procedure outline part of the time, and to be honest some panels were just more gripping and full of useful nuggets than others. But I thought I’d transcribe some of the more interesting bits from my notes. (It should go without saying that none of the following is an exact quotation of anyone’s opinion; it’s my digested version of what was said. So when I write that “X said this,” please take it as read that what I mean is, “I’m pretty sure I heard X say something in the vicinity of this.” Any discrepancies between what was said and what I’ve written here are, of course, entirely attributable to my own errors in note-taking.)


The first plenary session of the conference was about energy development in Indian country. Tom Fredericks traced some of the history of the law of Indian mineral exploitation, which was initially regulated in the 1930s under the Indian Mineral Leasing Act (IMLA). Under IMLA, tribes were generally passive lessors of mineral rights and did not directly participate in the development or exploitation of mineral wealth. (Many of these leases were not under particularly good terms for the tribes.)

In 1982, Congress passed the Indian Mineral Development Act (IMDA), which gave tribes tools to take control of development themselves. However, mineral development often required substantial outlays of capital, which in practice usually meant partnering with an energy company. So initially tribes were often only part owners of tribal development enterprises, and those enterprises were often “midstream” companies, handling distribution and logistics; the actual drilling was still being handled by energy companies that had the necessary technical expertise. More recently, however, some tribes have taken full ownership of mineral development enterprises, and those enterprises now often in include the “upstream” portion of the pipeline as well. Fredericks named Navajo, Southern Ute, Northern Ute, and the Affiliated Tribes of Fort Berthold as tribes that had taken full ownership of mineral development enterprises.

A major theme of the presentation was overregulation. All energy and mineral development is subject to regulation, of course, but those seeking to exploit natural resources in Indian country face a great deal of additional and often overlapping regulation. Tribes themselves, of course, regulate what happens on their land (though they have less control over what happens on land owned “in fee” within the reservation), and the EPA enforces federal environmental standards. But the surrounding state may sometimes tax and partially regulate energy and mineral enterprises; the BIA is involved and creates some additional procedural hurdles to be cleared; and the BLM has, in the past, treated Indian lands as federal “public lands,” inviting environmental impact comment from the entire United States population. Development can therefore take years longer, and be a great deal more expensive, on tribal land than it would be on private land outside the same reservation.

State taxation, in particular, is a large drag on Indian mineral development. The Cotton Petroleum case, among others, set up a rather cumbersome framework for determining which enterprises in Indian country can be taxed by the state as well as the tribe, and which will be taxed solely by the tribe. In order to be exempt from state taxation, the enterprise must be so completely regulated by the federal government and the tribe (in some unspecified combination) that the state’s ability to regulate (and therefore tax) is “pre-empted.”

This is a somewhat awkward basis on which to decide the state’s ability to tax; after all, the justification for state taxation of enterprises is surely that the state provides services that make the enterprise possible – road construction, for example, or perhaps environmental cleanup in the event of a spill. And surely that justification exists regardless of how little or much federal and tribal regulation there is. (Provision of state services does factor into the pre-emption analysis, but it is far from the only factor, and sometimes the provision of state services doesn’t actually get the state taxing power.)

In any event, “dual taxation” is a serious problem, as another speaker, Rob Thompson from Greenberg, Traurig, explained. Taxation (both tribal and state) and the tribe’s mineral royalty payment as the actual owner of the land all come out of the enterprise’s gross revenue. He gave the example of an oil development partnership where the state taxed 10%, the tribe taxed another 10%, and the tribe was paid royalties of another 20%. That would leave 60% of the gross for the partner oil company to pay for all expenses and recoup a profit from. This, he said, made partnering with tribes less attractive to energy companies. (Of course, the tribe could tax less or take a smaller royalty, but why should the tribe, which owns the land and is also the sovereign government on that land, be the one to take less?)

Excessive and overlapping regulation also hampers development. Satisfying numerous federal regulatory agencies as well as the tribe and, sometimes, the state, can add years to the process compared to development on similar privately-held non-tribal land. (The problem is exacerbated in so-called “checkerboard” areas, where the tribe does not have a clearly defined reservation boundary and tribal land is intermixed with non-tribal land.)

Thompson explained that energy companies tend to be highly sensitive to changes in price and changes in cost – i.e., changes in their rate of return. Three factors causing that rate to fluctuate are delay, costs of regulatory compliance, and the value of the asset in the ground at any given moment. The value of the asset is usually beyond anyone’s control, but Thompson and Fredericks both urged the localization of control and regulation in order to reduce both delay and the cost of compliance.

There was some discussion of court challenges to state taxation and regulation under Cotton — Tom Fredericks suggested the Cotton opinion relied in part on the fact that IMLA did not require the enterprise in question to maximize profits. More recent legislation, however, including IMDA, includes specific language requiring that development projects do maximize profits for the tribe. Fredericks thinks this might be enough to tip the balance in a Cotton analysis.

However, as will be discussed below, the current Supreme Court is notoriously hostile to tribal interests in Indian law cases. So rather than litigating the limits on taxation, some tribes negotiate taxation compacts with the states. Negotiation is not always an effective tool – the tribe may have much more to lose if the minerals go undeveloped than the state does, which gives the state outsized bargaining power – but it does seem that this is the direction things are going (see also gaming and tobacco).

The panel’s third speaker, Tracey Lebeau of the DOE, changed the subject slightly to renewables. She noted that Alaskan villages were engaged in a number of small, off-grid, self-sustaining energy projects, while the southwestern tribes were well-positioned to become major players in solar. However, she identified two major hurdles to renewable energy development.

First, renewables are currently incentivized mostly by tax credits; that is, they are subsidized by tax credits, and without the subsidy renewables are generally not profitable (yet). But tribes don’t pay federal income tax on their tribal enterprises. So even though right now there are tribal governments that could probably put together solar and wind projects on their own, in practice they often still have to partner with outside firms who use their own tax liability to gain the subsidy and thus offset the costs enough to make the enterprise profitable. And second, tribal enterprises often do not yet have sufficient access to the power grid to sell all the energy they could generate.

Supreme Court Jurisprudence

I didn’t take extensive notes at this panel, but the key theme — a depressing one — is that tribal governments almost always lose in Indian law cases that reach the Supreme Court. (Check out, for example, the Native American Rights Fund’s ten-year analysis of Supreme Court cases, here. It’s grim.) Matthew Fletcher, of Turtle Talk fame, offered the most cogent and useful advice to tribes and their representatives: don’t argue Indian law per se. That is, don’t try to rest your arguments on common-law principles of Indian law, because the Rehnquist and Roberts Courts have been all too willing to sweep those principles aside entirely or to read them against tribal interests.

Rather, the best course for tribal attorneys (or others representing tribal interests) is to frame the issues, as early as possible in the litigation process, as a matter of statutory of regulatory interpretation, and NOT as a matter of common law principle. The reason should be obvious — in statutory interpretation, the Court is bound by the plain text and by Congress’s intent. So even if the tribe loses in a statutory interpretation case, it can always go back to Congress to clarify the law in its favor, at which point the Court must bow to Congress’s wishes. Similarly, the Court must take a highly deferential stance toward administrative agencies’ interpretations of the statutes under which they take administrative action. When a lawyer invokes judge-made Indian law principles, however, the Court is far less deferential, brings its own interpretive apparatus to the table, and cannot be overridden by the political branches. So, during periods when the Court is unsympathetic to tribal interests, tribes will do well not to let the Court address overarching questions of common-law principle.

That observation, once you’ve heard it, sounds almost trivially obvious. But I can say for myself that it’s all too easy to get too focused on the “federal Indian law” framework and forget that there are other arrows in the quiver. So thanks to Professor Fletcher for that reminder.

Gay Marriage

For the most part, this panel simply offered observations from the field and described the variety of marriage and partnership laws in Indian country. Apparently the Little Traverse Bay Bands of Odawa Indians allow for gay marriage, and they’re not the only ones. But there’s a wide spectrum of gay marriage and partnership laws in Indian country, and the two largest Indian nations, Cherokee and Navajo, actually forbid gay marriage.

A couple of interesting questions were raised in the discussion. First, the new VAWA bill gives tribes criminal jurisdiction over couples in which one spouse is a non-Indian. It’s not completely clear how that provision will affect gay couples on reservations where there is no recognition of gay marriage. On the one hand, VAWA also allows jurisdiction over cases of “dating violence,” which should cover most couples. (The text of the bill uses sex-neutral language.) On the other hand, it’s possible that without official recognition of the relationship, same-sex partners may not get adequate assistance from law enforcement or the tribal courts in domestic violence cases. Time will tell, I’m sure.

The other interesting question, which I think is wide open, is to what degree tribes have civil jurisdiction to marry same-sex non-Indians. Obviously, of course, a tribal government can recognize whatever marriages it likes. And as far as federal Indian law goes, one could say that a plain-language reading of Montana v. U.S. gives the tribes civil jurisdiction over non-Indians who explicitly consent to jurisdiction. But are states obliged to honor tribal marriages? The answer is probably no; DOMA, which notoriously excepts gay marriage from the usual guarantees of interstate “full faith and credit,” includes tribal governments in its sweep. There is a case challenging DOMA before the Supreme Court right now, but the challenge is to the federal definition of marriage, not the full faith and credit exception. And even if DOMA is struck down entirely, the recognition of gay marriages under the authority of tribal governments is far from certain, as tribes are not explicitly included the full faith and credit statute. However, some states have FF&C statutes of their own. It’s complicated, and I’m not sure anyone knows the answer here.

What’s Going on with Morton v. Mancari?

There was a nice discussion of Morton v. Mancari, the 1974 case that established that legislative classifications based on Indian tribal membership are not racial classifications for equal protection purposes. The reason for this is seemingly straightforward: Indian tribes are sovereign governments, so membership is a political classification. This neat division is complicated slightly by the fact that membership in most tribes involves either ancestry traceable to specific (19th-century) tribal members or a certain amount of “blood” derived from the tribe generally. So it’s fair to say that tribal membership usually has an aspect of, if not “race,” then certainly family lineage. On the other hand, it’s perfectly clear under Mancari that lineage alone, absent formal enrollment in a federally-recognized tribe, is usually not enough to subject one to the “Indian” classifications in the federal statutes. Which makes the classification not quite racial after all. So statutory schemes singling out tribes or tribal members (whether to their benefit or to their detriment) need only pass be “rationally tied” to Congress’s “unique obligation to Indians,” rather than meeting the usual high legal standard (“strict scrutiny“) appropriate for classifications by race. (This distinction is consistent with other cases in which, for example, courts have generally declined to interfere with political gerrymandering, but will put a stop to gerrymandering based purely on race.)

At the panel, Addie Rolnick, of UNLV, traced two lines of cases since the 1970s — one line in which the Court became increasingly uncomfortable with classifications purely by race, even for benign purposes, and the other in which the Court (and lower courts) applied the racial/political distinction. In the former line are cases like Defunis v. Odegaard, Regents of the Univ. of Cal. v. Bakke, and Adarand Constructors v. Peña — all cases in which the Court grappled with race-based affirmative action. Bakke, in particular, remains the (narrow) foundation of modern university affirmative action policies, while Adarand has largely sunk non-university-based affirmative action.

The second line of cases, on the other hand, has generally upheld the racial/political distinction that makes modern federal Indian law and policy possible. Moe v. Confederated Salish and Kootenai Tribes, for example, held that state tax immunity for Indians on the reservation did not constitute invidious racial discrimination; U.S. v. Antelope held that Indians subject to harsher penalties because they were prosecuted under federal, rather than state, criminal law were not being subjected to impermissible racial classification; and Artichoke Joe’s California Grand Casino v. Norton (9th Circuit) held that the monopoly on gaming granted to Indian tribes in the state of California did not violate the Equal Protection Clause.

In 1997, however, Judge Kozinski of the Ninth Circuit suggested that after Adarand the Mancari principle ought to be policed carefully, to ensure that any “Indian preference” really was based on political affiliation with a tribe rather than on individual racial heritage. In Williams v. Babbitt, a case about a statute preserving reindeer herds in Alaska for the sole use of Alaska natives, Kozinski suggested a “uniquely Indian interest” test — that is, a preference should only be considered to fall under the Mancari umbrella if it protects the acknowledged interest of tribes in self-government and self-determination free from interference. For example, limiting the right to inherit reservation land to Indians would be acceptable, but giving tribes a monopoly on Space Shuttle contracts would not. (Kozinski even cast casinos in the NOT-“uniquely Indian” category, putting the opinion in some tension with Artichoke Joe’s (another 9th Circuit case) and also, strangely, ignoring the principle of tribal sovereignty over the reservation on which Indian gaming rests.) In the end, Kozinski’s opinion avoided the constitutional question by using statutory and regulatory interpretation to resolve the issue instead — but in dicta he suggested that “Mancari‘s days are numbered.”

Then in 2000, the two lines of cases converged in Rice v. Cayetano, a Supreme Court case about a Hawaii statute giving Native Hawaiians the exclusive right to vote for members of the Board of Trustees of the Office of Hawaiian Affairs. At first blush, Rice greatly resembled Mancari: Mancari upheld a statute giving Indian applicants a preference in hiring and promotion at the BIA, an office administering the government’s relationship with the Indian tribes. Because the BIA was so intimately connected with tribal self-governance, the Mancari statute likely would have passed even Judge Kozinski’s proposed “uniquely Indian interest” test. So did Rice, which similarly involved the (state, in this case) government’s interface with native peoples, come out the same?

It did not. The Court determined that an exclusive voting right for native Hawaiians violated the 15th Amendment. The majority opinion by Justice Kennedy emphasized that it was not shown that native Hawaiians, as a class, “have a status like that of Indians in organized tribes.” Lacking that status, mere reliance on “ancestry” was not sufficient to bring native Hawaiians within the ambit of Mancari, and, indeed, the Court famously held that “[a]ncestry can be a proxy for race” and that “[i]t is that proxy here.” “The ancestral inquiry mandated by the State,” Kennedy wrote, “implicates the same grave concerns as a classification specifying a particular race by name.” (Justice Stevens, in dissent, argued that the history of interactions between native Hawaiians and the United States showed that they did, indeed, have a political status not unlike that of “Indians in organized tribes,” the lack of such formal organization notwithstanding.)

Rice is a plausible reading of the Mancari doctrine — it can be seen as an attempt, however ill-considered, to take the political/racial distinction seriously. On the other hand, it seems to make the degree to which formerly-oppressed groups may seek remedy from the government turn on peculiar accidents of history. Thus, for example, Northeastern tribes and California tribes that were dispersed and all but wiped out — to the point that they were not able to maintain the sort of continuous self-governance required for federal recognition — cannot take advantage of the “political” classification that the (relatively) more fortunate Southwestern, Southeastern, and Plains tribes do. More to the point, had the colonization of Hawaii proceeded differently, with native Hawaiians being allowed to retain some sort of parallel governance structure (however nominal), things presumably would have come out differently in Rice. One can even imagine, albeit with somewhat more effort, a counterfactual form of American slavery in which whole tribal groups were enslaved in Africa and brought to work in the U.S. If those groups were allowed some degree of internal autonomy (say, performing marriages or resolving disputes by tribal custom) as long as they acquiesced to slave work, and continued to live in their tribal groups after emancipation, would we now include modern-day members of those groups in the “political” category?

Or does the question turn, as another panelist suggested, on indigeneity — as he defined it: “who was here first?” That would arguably include native Hawaiians, but exclude our hypothetical slave tribe. Is that result just? And how, exactly, would “firstness” be determined? The Cheyenne and the Lakota swept into the plains from the east, displacing other tribes, and could lay claim to their territories in the West going back only to the 16th and 18th centuries, respectively. Indeed, the Lakota have now been displaced from the Black Hills for nearly as long as they originally occupied them. Does this make their claim against the U.S. any less just? I would argue no, because that claims rests on fraudulent practices by the U.S. Government in violation of an approved treaty. But that seems to suggest that bad behavior on the part of the U.S., and not “who was here first,” provides the ground for remedial actions.

(Of course, not all, or even most, classifications based on “Indianness” or tribal membership are directly intended to be remedial — many are purely administrative in nature. Yet, as Mancari itself was at pains to point out, every such classification, if legitimate, rests upon the “unique obligation” of Congress to the tribes — which, in turn, rests to a great degree on the recognition of the historical evils of colonization and the attempt to ameliorate them. That is, recognition of the tribal right to self-government is at least in part a recognition that Indians were governing themselves before Europeans arrived, and Euro-American colonization greatly disrupted their ability to continue doing so — creating a “unique obligation” on the part of the colonizing power to support self-government in the modern era.)

Anyway… in 2004, the Court ruled in U.S. v. Lara that Congress could authorize tribal governments to exercise criminal jurisdiction over “Indians,” but not non-Indians, within their reservations. Although the arguments in Lara turned mostly on whether the jurisdiction was merely a revival of inherent tribal sovereign powers or, as Justice Souter insisted in dissent, delegated federal power, there is buried in the statute an equal protection question as well — namely, may Congress either re-invest or delegate criminal jurisdiction to the tribes based on a racial category like “Indian”? At a minimum, the statute in Lara would seem to fail Judge Kozinski’s test — that is, the tribal interest in self-government could logically be enhanced by giving tribal governments criminal jurisdiction over everyone within their reservations. But why does it aid self-government to give those governments criminal jurisdiction only over one (apparently racial) category of defendants?

Indeed, almost this very question was asked by Russell Means in Means v. Dist. Ct. of the Chinle Judicial Dist., a Navajo Supreme Court case. In Means, which came before the Lara decision, the Navajo trial court exercised jurisdiction over Means, an enrolled Oglala Sioux. The Navajo Supreme Court found that jurisdiction was appropriate because Means had entered into significant, voluntary family relationships with tribal members, and so entered into a particular relationship with the tribe (called “hadane” in Navajo) for purposes of a treaty-based exercise of criminal jurisdiction. (Treaty-based jurisdiction, the court noted, was specifically allowed by the U.S. Supreme Court’s opinion in Duro v. Reina (1990).) When Means objected that he was being classified as a “nonmember Indian,” the court clarified that the categorization under which jurisdiction was being exercised was not a racial category. “One can be of any race or ethnicity to assume tribal relations with Navajos.”

Nonetheless, the court noted in passing that “there is a fundamental governmental interest in prosecuting nonmember Indians. As mentioned, many Indians marry or enter into intimate relationships with Indians from other Indian nations, and this has been recognized for a long period of time.” Thus, recognition of jurisdiction over nonmember Indians is an accommodation of the realities of life in Indian country. Indeed, this was addressed by members of the panel in Santa Fe, who pointed out that limiting an understanding of either tribal membership or jurisdiction to ancestry-based criteria fails to capture the fluid, dynamic social and familial relationships that often exist on the ground.

This is why the recent VAWA reauthorization, which took limited steps toward extended criminal jurisdiction over non-Indians, is so important. It is certainly true that nonmember Indians are frequently embedded in the tribes’ social networks. But it is also true that those who are not racially Indian are also embedded in many of those networks. The now-ancient case of U.S. v. Rogers, still affirmed as recently as 1990 in Duro, held that a white man could not become “Indian” for purposes of criminal jurisdiction by being adopted into a tribe. But that holding — which takes a highly racial view of tribal membership — undercuts the tribes’ ability to be the purely “political” bodies that the Mancari/Rice line of cases demands that they be. The VAWA bill remedies that problematically racial exclusion by simply letting tribal governments exercise criminal jurisdiction (albeit, for now, only in domestic violence cases) over everyone within their territory, just as states do, without regard to race. This ought to be a welcome development for those who are concerned about any lingering racial categorization latent in the Mancari framework.

(NOTE: For more on Mancari‘s future under the Roberts Court, see Gregory Smith and Caroline Mayhew’s piece published in the most recent issue of The Federal Lawyer, Apocalypse Now: The Unrelenting Assault on Morton v. Mancari.)

Cobell implementation

Another panel dealt with the consequences of the recent settlement in the Cobell trust mismanagement case. This panel was a bit disjointed, but I wanted to highlight a few interesting points.

– First, an expert on probate law spoke about the way the Cobell case (which involved, among other things, the mismanagement of fractionated inherited interests in land) underscored the need for tribes to adopt uniform probate codes that could deal clearly with land interests to keep them from becoming fractionated in this way. The idea is that customary treatment of land disposition, in many tribes, looks very different from the kind of disposition that Anglo-American law is able to deal with. A tribal probate code, he argued, could clarify and consolidate how property disposition would work, in a way that is both culturally sensitive to the expectations of tribal members and predictable enough to keep fractionation and abandonment from occurring.

– Second, someone from the IRS pointed out that the Cobell settlement establishes, through statute, that the settlement money is non-taxable. In many land claims cases, she said, no one on either side of the settlement addresses the issue of taxation until later, when tribal members suddenly have this ambiguous income that may or may not be taxable. So, she said, ALWAYS INCLUDE THE TAX PIECE when you’re negotiating settlements to land claims.

– Third, someone from the V.A. gave a very depressing account of the way veterans’ benefits owed to tribal members are handled. First, there is a formula for “means testing” that tends to penalize Indian veterans who live on large tracts of tribal land that they share in common with a lot of family members. (This land, apparently, is counted as an “asset,” although it is not the private property of the veteran.) And although V.A. regulations call for fiduciary duties to be exercised by family members whenever possible, in practice they are often turned over to semi-professional “fiduciaries” who may have a whole “stable” of veterans, making their living from the veterans’ benefits and subject to little or no oversight. This, of course, wanders pretty far afield from Cobell per se, but it’s interesting.

Tribal Law and Order Act/Violence Against Women Act

A final plenary session addressed two recent federal laws enacting serious changes to tribal court sentencing power and jurisdiction. The Tribal Law and Order Act allows tribal courts to pass felony-length sentences, while the Violence Against Women Act now allows tribes to exercise jurisdiction over non-Indians in domestic violence cases. Both laws were passed in response to dismal law enforcement statistics in Indian country — especially when it comes to crimes against women. Some 34% of native women will be raped during their lifetime, and 39% will experience domestic violence. As noted above in the Mancari discussion, non-Indians often enter into domestic and sexual relationships with Indians, and become part of the reservation community in that way. So Congress allowed tribal governments to extend their inherent criminal jurisdiction to non-Indians on the reservation in certain cases, and to pass felony sentences, assuming the tribal court can meet certain due process requirements.

I’ve got a piece coming out in Discourse, the UCLA Law Review’s online component, in the summer, explaining in some detail how these due process requirements work. Suffice it to say that there is still a great deal of uncertainty as to how much tribal court due process must, or even should, mirror American constitutional or common-law due process, and how much it may, or should, be understood in a culturally-distinct way. At a minimum, one can certainly expect some habeas corpus challenges to jurisdiction and sentencing, where federal courts may be faced with the unenviable task of hashing out those boundaries. But as Troy Eid, chair of the Indian Law and Order Commission, pointed out, the idea that the powers in VAWA and TLOA are delegated federal powers was considered, and explicitly rejected, in the congressional debate. So tribal lawyers should argue, and one hopes judges will acknowledge, that due process need not mirror federal court procedures to be valid, and that tribes should be given a great deal of deference as they attempt to provide due process in a way that is both culturally distinctive (to the degree that a tribe finds that desirable) and practical (given tribes’ often-limited material resources).

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One Response to notes from the 38th annual Federal Bar Indian Law Conference

  1. Pingback: Adoptive Couple v. Baby Girl, blood, and citizenship | The Handsome Camel

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