- [James Meggesto] Good afternoon, or good morning, good evening, wherever you may be accessing this course program. My name is James Meggesto, I'm a partner and the practice group leader at Holland and Knight in the Native American Law Group. I'm a, I'm based primarily in Washington DC, although my clients take me to all ends of the country, but Holland and Knights like a few of the larger Native American firms with a tribal practice. You know, we really view ourselves as nationwide, and I'll get into that in a minute, because Native American law issues or clients can find themselves from every corner of the country, Alaska to Florida, Maine, to San Diego, and even perhaps all the way out to Hawaii. So it really is a national practice, and I'm pleased to be with you today to kind of give you what I've, haven't invented the term 101, but really that's what it is. Quimby has asked me to give an overview of Native American law, and so I could probably talk for six hours if my voice were able to hold up that long, but fortunately for you all on this program, you'll only have me for about an hour, which is obviously not enough to dive deep into all aspects of Native American law, but is certainly enough time to give you an overview. I'm of the view, and I'm approaching this as if you the Practitioner has you've accessed this course because you either have an interest wholly aside from what you do as a Legal Practitioner, but just know that there's a body of Native American law and you'd need CLE credits and wanna know what it is, or you have in the course of your practice come across a tribal issue. You know, in this day and age, in 2022 and almost 23 now, there are Native American law issues in nearly every practice. It's not like it was in the fifties or sixties or seventies where it was highly specialized and people didn't even know Indian tribes were around. You could be in a practice and all of a sudden there's either an Indian tribe involved in the particular transaction or a tribal law issue that you didn't realize was there because your company that's has some piece of a sports betting operation has to get licensed by an Indian Tribal Gaming Commission. The possibilities are endless, but not for purposes of this presentation. I'm just gonna assume that you all fall into one of those categories, or maybe you're one of the people that we deal with regularly, and you'd like to hear how we view Native American law top to bottom, whatever it is, welcome, glad you're here. I've structured this next hour to sort of give an overview for that practitioner so that you can sort of understand what is it about, what is Native American law in the United States mean? And I think the only way to do it is to talk about, of course, the history of tribal relations, how Indian tribes came to be in the Constitution, and the early, some of the earliest statutes that the Federal Government passed after ratification of the Constitution and as we all know, as Lawyers, we learned through case studies more often than not and so there's been lots of cases that have arisen due to conflict that has occurred between tribes or aspects of tribal law, colliding with the non-Indian world, if you will and so for that reason, I've just kind of structured it that way. Well, of course talk about those historical and modern sources of conflict, but I also wanna focus a lot on cooperation because this practice isn't an adversarial practice, as a hundred percent of what we do. There are lots and lots of tribal law issues and matters that involve cooperation either with other Indian tribes, Federal Governments, state governments, and a host of non-Indian entities, individuals, corporations, et cetera and whether it's conflict or cooperation, you've gotta understand federal, state, tribal jurisdiction, issues of taxation, property rights, can't do a course on Native American law if we don't talk about Indian gaming. I think just depending on what state you're in, there really has been an explosion of gaming throughout the United States, which I think started in part because of the expansion of tribal gaming in the late eighties and expansion and development in the nineties and 2000s, to the point where when I grew up, casinos and gaming was something limited to Las Vegas and Atlantic City and now, you have to travel, you have to look hard on a map for a state or a jurisdiction that doesn't have some form of gaming, be it casino, lottery or as we're seeing now, lots of sports betting and all of those, you know, obviously touch upon various aspects of economic development, which I like to talk about because it's a large part of my practice. So that's how I am going to approach this course, if you will and hopefully you'll find it illuminating. Before we dive into the first part about, which is sort of what is the history and development of Native American law and so we have some definitions to get into, Indian-Indian tribe, Indian country. Let me tell you my own background. Of course, I'm a tribal member from the Onondaga Nation in upstate New York. It is one of the original Haudenosaunee or Iroquois Confederacy tribes, if you're all familiar with the history of colonial New York or New England, the six nations as they're called now, or Haudenosaunee, which is the traditional word, refers to a confederacy of the Seneca Cayuga, Onondaga, Oneida and Mohawk and then later joined by the Tuscarora from North Carolina. That Confederacy had fairly good relations with some of the Founding Fathers, Ben Franklin in particular, George Washington to a certain extent, although there was certainly some, some bloody conflict in there as well, but some of those notions of divided power, made its way into the articles of Confederation and the United States and you'll hear sometimes tribal members and tribal nation folk from New York take a little bit of credit for some of those Democratic principles of divided power, and that made their way into the foundation of the United States and so I'm proud to be a tribal member from Onondaga and some of my early experiences just growing up and sort of with one foot in each world have sort of guided me to this career and some of that might be relevant as we go forward, but for purposes of our discussion, let's get started with who is an Indian, right? I mean, who gets to decide who's an Indian? Well, first and foremost, the Indian tribes themselves and in the United States, we now keep a list. There are 580 plus federally recognized Indian tribes in the United States. That number can grow, and we'll talk about that in a second, but it means each of those entities is recognized by the United States as having a political relationship with the United States and represents roughly a hundred plus separate Indian tribes in California, 200 plus in Alaska alone, and then the rest being the lower 48 and each of those tribes as sovereign tribal governments that enjoy a political government to government relationship with the United States, gets to determine their own membership really without any sort of oversight or jurisdiction in any state or federal court to challenge that and so, first and foremost, you're an Indian if you are recognized by that tribal government as an Indian. Of course, it's not absolute, some tribes have banished or removed people from their roles, either because of evidence that they were incorrectly enrolled or as a punishment, which is a traditional punishment, but generally speaking, the tribes determine their own membership and they can do so in any number of ways. Many tribes have a blood quantum requirement, meaning you have to have a certain amount of Indian blood in your heritage, which can obviously be traced back genealogically. Other tribes have what's known as base roles, thinking of Oklahoma in general, and they have a situation there where, in the 1800s as Indian territory as was called then eventually became the state of Oklahoma. I think there were a number of censuses taken, and many of the various tribes, tribal members were put on a list just as a matter of census and they use those roles as what's known as base roles. So that if you can establish lineal descendancy from, say, the Cherokee Nation role of such and such year, sometimes known as the Daws roles, then you are, you have eligibility for membership in that tribe. Membership is kind of a term that it gets stuck in my head and others, but it's really citizenship, right? These aren't clubs, these aren't voluntary organizations. You're either a member or a citizen. See, this happens to me all the time. You're either a citizen of a tribe or you're not and it's based on that tribe's criteria. Contrast that with Canada for a moment. Just so that you, to drive home the point. In Canada, you're an Indian if the government of Canada says you're an Indian. So they have really the polar opposite situation. I'm fairly well aware of this because, you know, part of my Onondaga heritage is from a member on my grandfather's side, was from born in Canada, was a Canadian citizen and a member of the Onondaga, clear sky ban that resides to this day in Brantford, Ontario on the Sixth Nations Reserve, which is known as the Grand River Reserve and so the government has what's known as the Indian Act, and they keep records of who's in Indian and so while the bans and the tribes in Canada have a form of self-government, and they, you know, they sort of like the lower 48 create and operate tribal governments to govern their territorial bases. It's the government of Canada that will determine if that person is an Indian based on genealogical tracing back to certain Canadian Indians from previous roles. So that's certainly not what happens in the United States. I only bring that up to, like I said, drive, try to drive home the point of it, that it's up to each individual tribe to determine their membership and that's really absolute. Like I said, there's no real, you can, if you believe you're a member of a tribe because of ancestry, you pay, make a application or however that particular tribe would handle it and that decision is really appealable only through that tribe's legal system. There's just no jurisdiction with the BIA or the Federal Government or any state government to further challenge that if it didn't go in the direction that the person thought it would. So that's really an aspect of the political relationship that has been established in this country. One of the foundational cases that sort of confirmed that political relationship is this case Morton versus Mancari which dealt with a hiring preference that the BIA enacted, which still is there to this day, which gives a preference to otherwise equally qualified people for a job at the Bureau of Indian Affairs, if one is Indian and another is not, then that Indian person will get a preference because the Bureau of Indian Affairs, which is there to serve the needs and of Indian tribes and fulfill the government's trust obligation to Indian tribes, it makes sense that the Indian population that's served by that portion of the Federal Government prefers to have those people have a tribal connection as well and so that was challenged in that case, and it was upheld not as a racial classification because of course, we all know that racial classifications in statutes are gonna be subject to strict scrutiny and I don't think there's been a case that's survived any sort of strict scrutiny of racial classification. So it was not analyzed as a racial classification because the court recognized that it's a political relationship. Now, that notion of political relationship is currently being tested and I'll talk about that in a second, but let me just close the loop on Indian, because another way you can be adopted into a tribe and you'll have whatever membership, citizenship that the tribe deems, a lot of times that happens with spousal relations after a certain number of years, and there's a long history of that dating back to those colonial times where, many settlers, sort of abandoned that way of life and basically became part of the tribe, not to quote Dances with wolves, but that sort of thing happened a lot and after a while, those people are considered tribal members just like anybody else. So again, it's subject to the discretion of the particular Indian tribe. So, but the definition of Indian can and has in the recent past and currently pending, has created a source of conflict because who's an Indian and what does that mean? And where we see that, just that bare definition of who's an Indian having an issue is in the Indian Child Welfare Act, which if you're not familiar, is a comprehensive federal statute enacted in the 1970s to address the unfortunate situation that occurred throughout the fifties and sixties where Indian reservations were fertile ground for the private adoption in the industry to go through and essentially have a population base from which to serve the needs of those adoptive parents that couldn't have children of their own and so the statistics bear that out very clearly, that a number of Indian children were adopted and whether put up for adoption and tribal members from either that tribe or other nearby Indian tribes, you were never ones to be the success of adoptive parents. So, you know, obviously domestic relations is a difficult area of the law and it's obviously, it's almost always an unfortunate situation if a child has to be put up for adoption. That's not unique to Indian country in any way, but the fact that Indian tribes and Indian children, because of the social and economic problems there created a more of a, like I said, fertile ground for potential adoptees. Congress recognized in response to tribes saying, something needs to be done to encourage Indian parents to be successful and prospective adoptive parents that a federal statute was created that did just that, among other things, it creates a preference for Indian family members or tribal members from that tribe to have a preference and one case that got to the Supreme Court touched on whether the baby girl in the adoptive couple versus baby girl case from 2013 was very, had a very low blood quantum. It was like three, 257th or something like that, which was the first line in Justice Robert's opinion when he announced the decision of the court. It didn't really challenge the legality or the constitutionality of the Indian Child Welfare Act, but it was prescient in the sense that litigants, the adoption industry if you will, recognize that there might be an opportunity to challenge that down the road because the Supreme Court really didn't, in the language it used, express any real appreciation for the statute, recognizing that there was a essentially a racial preference, although, if you only, it's only a racial preference if you ignore the fact that tribes have a political relationship with the United States, but nonetheless gave rise to a number of challenges that made their way through the circuit courts, one of which was this Brackeen case, Brackeen versus Holland, which resulted in a very complicated decision out of the Fifth Circuit that the Supreme Court accepted review on, two separate cases that had consolidated, but it heard two hours of oral argument on it in last November 9th, 2022, which really went to the heart of this notion of a political relationship and can Congress, by what authority does Congress have to enact statutes that give a preference to Native American adoptive parents and why is that not an unconstitutional racial preference? It was obviously brief, there were dozens of briefs on both sides of the issue from the parties and interested in Niki and the argument really focused on that issue and because of the long history of and development of federal Indian law, there are lots of instances where Congress, through its dealing with Indian tribes upon the foundation of the United States, straight through the present has an obligation. It comes from that war power, if you will, that precolonial, colonial times and westward expansion was a time of war. You know, the Interior department, which houses the BIA used to be the war department because that was the, federal tribal relations were really war relations and upon the establishment of the reservation system and the end of the Indian wars, if you will, left tribes weak, weakened, I don't think anybody would argue with that and, but nonetheless, through treaties that it ended those wars, the tribes retained our reserved for themselves and that's where we give the word reservation. They're not given to tribes, but they were reserved for themselves, land upon which they could make their own laws and be ruled by them and retain their separate sovereign status. Now whether the United States or most people on that side, signing those treaties, thought that, that would continue to be for the next 200 plus years, nobody knows. There's certainly a number of people from that time who thought that, once the United States was fully formed, that tribes would, abandon tribal relations and Indian tribes would ceases to exist, but that obviously didn't happen and so the Federal Government realized that this weakened state of Indian tribes meant that they had an obligation to take care of tribes and tribal people and that's the genesis of what's known as the Trust responsibility, that the United States has a fiduciary duty, like a, as a trustee for the benefit of Indian tribes to enact statutes and otherwise promote the health and welfare of Indian people and Indian tribes and in the context of child welfare and the adoption of Indian Child Welfare Act, it was right in the first 25 USC 1901 in the congressional findings that Indian tribes will cease to exist if they cannot hang on to their children and so the power to make that preference comes from not just trying to benefit one race over the other, it's the natural, it's the natural consequence of needing to enact a statute to preserve Indian tribes by having their citizens not be adopted out of the tribe if there are willing and able and qualified prospective adoptive parents of that same tribe. So that was what, two hours plus of argument before the Supreme Court went through. The statute's fairly complicated. It requires state adoptive proceedings and agencies to look for prove that they've undergone active efforts to look for potentially qualified Indian tribes. In other words, you can't just sort of have a public hearing and expect that a tribe several states away that would otherwise be interested in that person's, that's a tribal member or somebody who's eligible for membership in that tribe might not know other ways know about it. So there are certain aspects of the statute that the court focused in on, and there may be some, so here's my prediction, if you will. I think the Indian Child Welfare, survive Child Welfare Act survives this constitutional challenge and again, on equal protection grounds, the plaintiffs have challenged the statute as an unconstitutional racial preference and I don't think they're gonna be successful on that, but I think around the edges there are, the non commandeering doctrine was talked about a lot, and there could be some things that the statute requires, some of these active efforts that they take could get struck down and there is a preference in the order of preference. I think the third preference, the first two deal with family and prospective parents from that tribe, but there's also a preference for other Indian tribes. In some of the cases that makes sense, because like I said, the Confederacy that I'm from in New York, Onondagas are closely related to Mohawks and Seneca, the language is similar, there's shared history, et cetera. So it makes sense that if there was no Mohawk family, but there was a Oneida family that could, that makes sense because close in geographic proximity, a shared history, similar language and customs, et cetera, that preference makes sense, but what about a, say a tribe from the southwest, like the Navajo or Pueblos or something, and a tribe from Maine for instance, that there is no shared history there. Of course I could make a good argument that there's something about modern day or tribal relations that there is a shared history regardless of any historical connection between tribes because there's certainly a whole body of federal law that applies equally across tribes, but I could see that portion getting struck out as well, but I think, I think the statute survives as a whole, but it's interesting that on the, essentially what's the first slide of this presentation? Indian, has resulted in two Supreme Court cases in the last 10 years, but what that does is allow us to kind of go through some of these other things a little more quickly. So we talked about who's an Indian, so who is an Indian or what is an Indian tribe? And some of these early cases from the seventies arose in the context of land claims, where tribes were like in a position to question land that was lost in the late 1700 and early 1800, because one of the first federal statutes, which I had said, involved Indian tribe was the Indian Non Intercourse Act, which prohibited the states or any individual from doing any deals or making contracts that alienate land without the Federal Government's approval and of course, that's what a number of states, particularly in the Eastern United States, the original 13 colonies, Massachusetts and New York, Connecticut in particular were big violators of the Non-Intercourse act and tribes brought suit under the non-Intercourse act. There wasn't a statute of limitations problem that eventually became sort of a latches problem, but prelude to standing in those cases was well, who's an Indian tribe? And so, Congress had never really made a definition right? I said they, they've kept a list, but that list sort of just evolved from who they had treaties with or who they had been doing, having relations with or making, land swaps with et cetera and so there needed to be a more formalized process to recognize tribes and so the 25 C F R Part 83 regulations came to be and are still used to this day to recognize tribes. Now, of course, you know that, that's a mouthful there right? I mean, how are there, they're not new tribes, but where have been? Well, in Virginia, where I happen to reside now, the Pamunkey in the last several years have finally been able to achieve federal recognition because they were, like many tribes left off those early lists from the seventies and eighties. They weren't, they were left off because through no fault of their own. I mean, they're, if you didn't have a treaty, that didn't mean you weren't a tribe and if you kept your head down and didn't interact with the Federal Government because you didn't think it was in your best interest, that didn't mean you weren't a tribe either. It's just sort of a historical happenstance that some tribes were on the list and some tribes weren't, but it's an area where it's less controversial now because tribes have either gotten recognition through restoration of their status, through Congress or through these Part 83 rights or through some judicial decisions, but the definition of and who was an Indian tribe actually came up in the pandemic, because before the American Rescue Plan, the first major statute that Congress passed to deal with the Coronavirus pandemic was the Cares Act, if you remember that. It was the first big chunk of money allocated for state, local, and tribal governments and Congress used a definition from a particular federal statute that said that Alaska native corporations, which of course exists only in Alaska and exists pursuant over 1971 law that settled a number of land claims, created a situation in Alaska where there aren't Indian reservations, per se, except for one Melaka law, but created, recognized that there were lots of village tribes, really small villages, and they were essentially the tribal governments, but because Alaska is so natural resource rich there is and how to share those natural resources equally among all the tribal people there, they created village and regional corporations, which are for-profit corporations chartered under state law, but for the benefit of just the Alaska native people there and so a number of those corporations have provide governmental services through a series of federal statutes, one of which is known as the Indian Self-Determination and Education Assistant Act, otherwise known as public law 638, which sort of recognize that tribes and Alaska native organizations have provided services to people and so who better to provide services to Indian people than Indians themselves and so for purposes of contracting with the Federal Government to provide, to basically take off the Federal Government's plate, this range of services that the Federal Government is otherwise obligated to provide Indian people under this trust obligation, trust responsibility, I talked about earlier, tribes can contract with the Federal Government pursuant to federal contracting law and like I said, take that off the plate of the Federal Government and provide those services themselves and the definition, definitional section of that pretty comprehensive statute stated that Alaska native corporations are Indian tribes for purposes of that statute, so that the tribes could, so that same as a, say a lower 48 tribe would be able to make a contract and provide services, some of these Alaska native corporations, which were better equipped to provide services than maybe some of the smaller village corporations would be able to take advantage of this federal statute. So in the rush to get the Cares Act enacted because of the pandemic they simply adopted, they Congress simply adopted the, the ISDA or the 638 statute definition of Indian Tribe, which included Alaska native corporations. Well, when billions are at stake, and it's a zero sum game, some tribes brought suit claiming that Alaska native corporations aren't Indian tribes for purposes of a statute like this and it should be, they should not be able to get a share of that. I think under the Cares Act, there was 8 billion dollars, went to the Supreme Court, and the Supreme Court reversed the DC circuit and held that, oh, look, if you didn't like it, it's kind of too bad because the Cares Act very clearly adopts the Self-Determination Act definition, which says "Alaska native corporations are Indian tribes for purposes of the statute." So Alaska native corporations were considered Indian tribes pursuant to the Cares Act since it adopted that Self-Determination Act definition, of course, subsequent to the Cares Act was ARPA , which did not, Congress if you wanna call it a mistake, I'm not gonna say that, I don't wanna be disrespectful to Alaska native entities, but I think Congress in the rush to get Cares written and enacted, just a, you know, does what Congress only, took a definition from a previous statute and which was, you know, hadn't been controversial in that context, simply adopted it this time around, they said, tribal government, which Alaska native corporations are not tribal governments, and then of course referred to the list of federally recognized Indian tribes. So it wasn't an issue for ARPA, but it did come up in cares. So even things as basic of who's an Indian or what's an Indian tribe have generated Supreme Court cases in the last couple of years. So we'll move a little bit more quickly 'cause I've given you some recent contacts, but I want, we've got a lot to cover and so Indian country really refers to tribal territory. There are reservations, obviously, but there are other definitions. The 18 USC definition is a definition from the criminal statute, and it makes reservation Indian country, an Indian country being a term of art. So it's Indian reservations, it's trust or restricted land, meaning land that's not within the bounds of an Indian reservation, but it's the title to which is held in trust by the United States for the benefit of a tribe or an allotment would be held in trust for the benefit of an individual Indian, or there's a catchall definition, which is dependent Indian communities, which is, means it's not Indian land that's held by the tribe or the government, but there's so many Indians that live there, it's essentially an Indian community. That came up in the Venetie case and suffices. It's very difficult to establish that. So it's kind of going by the wayside. Accepting those definitions of tribe and tribal people. Then, what has been the basic history of US and tribal relations? 'Cause it matters because each of those eras has created problems that the next era has to try to fix and so if you kind of, you probably can figure it out from the discussion previously, the most recent statute, the Indian Self-Determination and Education Assistant Act, we are now in what's known as the self-determination here and I'm pretty sure we're not gonna shift back to that. Meaning the Federal Government's policy is to promote, strengthen, and assist tribal governments in that basic notion of making their own laws and being ruled by them, sovereignty. They're, the government, the Federal Government wants to respect, but also promote tribal sovereignty because tribes, when strengthened can, are not only the best entities to provide for the betterment of its tribal citizen rate, but can also, and have added to the overall health and welfare of the country, economically and otherwise, but we didn't just get there in a straight line and so what this slide is trying to establish is that, there was the treaty making era, which essentially respected the separateness of Indian tribes and the Federal Government. As Westford expansion happened, tribes were removed for the most part from the east to the west, resulting in what was became known as Allotment and Assimilation, which meant that let's break up Indian reservations, allot land to individual families and encourage, assimilate, assimilation into the non-Indian United States. That was a disaster for a number of reasons. You know, tribes throughout their history leading up to that we're not, that that wasn't their culture or history and so to, in a generation expect, tribal people to completely abandon one way of life and take on something completely foreign to them was probably not realistic and so by the late, you know, by the depression era, it was a disaster and so in 1934, Congress passed the Indian Reorganization Act, reorganizing tribes, strengthening tribal governments, again, respecting the separateness of it, enacting provisions for land to get taken back into trust and that federal protection from alienation from outside entities, states or individuals, et cetera and really established, helping tribes create modern governments by improving tribal constitutions, et cetera, and that was generally successful, but for whatever reason, by the fifties, Congress thought, well, you know, I don't, McCarthy era, I don't know, it was before my time. Congress, you know, did a 180 and said, what, we've gotta terminate, right? This is not working out. We're gonna just terminate tribes and end our relationship with tribes and terminated a number of tribes. That was of course a disaster, 'cause tribes was, they might have lost their status, but again, they're not going to go away and I think, wow, by the seventies, Congress finally realized that, look, tribes have fought throughout the entire history of North America to maintain their separate status of sovereigns and to make their own laws and rule their people the way they see fit, the way they always have and so I think fairly safe to say that this self-determination era is here to stay, at least hopefully for my lifetime and the lifetime of my kids and their kids, I'd hate to see it, whatever the justification would be to shift back and do another 180 and so there's the statute I talked about earlier, it allow, it's a hugely important statute because rather than having tribes just stand in line, metaphorically, if you will, before the Federal Government looking for services and handouts, et cetera, it recognizes that tribal governments like state and local governments are best equipped to handle local issues and so that statute allows these 638 compacts and contracts, which is 638, comes from the public law number of that statute and so with IHS, which is the Indian Health Service, or BIA, a HUD, Department of Labor, Department of Transportation, all these different agencies that have a little bit of responsibility, transportation that is, Indian reservation roads, Indian Health Service health, obviously BIA, a tribal government kind of stuff. It allows tribes to basically step into the shoes of the Federal Government or take those services off the plate of the Federal Government and put them out of the federal bureaucracy and into tribal control and so it's most active tribes, not every tribe, but many, many, many tribes operate many of their social service programs for tribal, for their tribal citizens under these 638 contracts and compacts. So, shifting gears a little bit, let's talk about jurisdiction because that's obviously a source of conflict and confusion and it's ever changing a little bit. Just some general notions. Federal jurisdiction tends to be paramount unless there's a specific treaty provision. You know, federal jurisdiction tends to control this notion of laws of general applicability. Federal laws of general applicability will be, will apply to Indian tribes unless specifically in conflict with a previous statute or treaty, but that's not the same for state jurisdiction. Generally speaking, states are without jurisdiction in Indian country, remember that term and that definition and for the most part, you can just think of Indian reservations and so there are two sides of jurisdiction, criminal and civil. On the criminal side, there was a recent Supreme Court case which clarified that the Indian Major Crimes Act, which is the major crimes like murder, bank, robbery, rape, kidnapping, et cetera, is within the exclusive criminal jurisdiction of the United States. The murder case, which I'll talk about very briefly, accepted that notion, but question whether one of the reservations in Oklahoma still existed because if the reservation didn't exist, then the State would've jurisdiction and wouldn't be exclusively federal. The court in a five to four decision by Justice Gorsuch said very clearly that only Congress can disestablish a reservation. The passage of time is not gonna make a reservation go away. So that created the framework for Oklahoma to test the boundaries of that and basically then question whether, other aspects of the federal criminal law can sort of pierce that reservation boundary and in the aftermath of McGirt Oklahoma went on a public relations campaign to basically say the Federal Government's not equipped to prosecute all the crimes within these huge Indian reservations, many of which, don't have a lot of Indian land left in them, but are within our states, et cetera and just last term, the case of Oklahoma versus Castro-Huerta was decided and limited McGirt and that's kind of what the headline is. It's really not what happened. What it did was kind of flip the default provision on its head, that default provision that I said earlier, that States don't generally have jurisdiction on Indian reservations unless specifically granted by the Federal Government and turn that on its head and said in the criminal context, states have inherent jurisdiction within their reservation boundaries, even if it conflicted with a number of previous cases. I've listed Public Law 280, there being the most obvious because public law 280 was a fifties era statute that, specifically was Congress granting to certain States the ability to have criminal jurisdiction within Indian reservations on crimes committed by or against Native Americans and so that law wouldn't even have been necessary under the logic of the, that the Supreme Court used in Oklahoma versus Castro-Huerta, but the aftermath of which has now established that there is concurrent jurisdiction between the Federal Government, state governments, and tribal governments to prosecute crimes on Indian reservations. Not the major crimes, of course those are still within exclusive federal jurisdiction, but so these lesser crimes, when it used to be that if there was a buyer against the Native American, that it was exclusively the federal or the tribal jurisdiction, now states have under Oklahoma versus Castro-Huerta concurrent jurisdiction, in those instances as well. There may be further congressional action on that, that remains to be seen and so kind of put a asterisks on that case. There have been instances throughout the course of federal Indian law where Supreme court cases that sort of went against what was the long held view and get corrected by Congress, so that, that may happen. Yeah still, and so that's why it sort of remains to be seen. In this next slide, we'll kind of just quickly go through it. There are exceptions. Generally Indian tribes don't have criminal jurisdiction over non-Indians, right? Because non-Indians don't have the power to vote in tribal governmental procedures. So that wouldn't be something that, that's always been the basis for eliminating criminal jurisdiction by tribes over non-Indians, but the 2013 amendments to the Violence Against Women Act recognized that domestic abusers, non-Indians would come on the reservations, commit domestic abuse, leave the reservation, and not be subject to criminal jurisdiction and generally outside the hierarchy of things that limited local law enforcement would go after and so that's an interesting exception to that rule. Tribal court exhaustion is a civil litigation doctrine, which means that in the civil litigation context, if a tribal court is exercising jurisdiction over a case, which could involve non-Indian defendants, that there's no per se rule that that's not allowable. The per se rule of no criminal jurisdiction by tribal courts or Indian tribes over non-Indian does not carry over on the civil side. Now it's difficult, I will grant you that, but it's not absolute, there are exceptions to the rule that tribes can't exercise jurisdiction over non-Indians and generally has to do with the health and welfare of the tribe. So say a polluter came onto an Indian reservation and was like polluting the water supply and stay, a tribe would've jurisdiction to shut that down on its own reservation, right? Or things along those, some person who stirring up trouble and trying to overthrow the tribal government could be subject to civil tribal jurisdiction and banish from the reservation. That kind of stuff obviously is within tribal jurisdiction. The tribal court exhaustion doctrine says that if a case gets started in tribal court, then it can finish there and later on, if the non-Indian says that tribal court didn't have jurisdiction, they can challenge it, but there's no per se, "hey, I'm a non-Indian, I'm in tribal court, get me out of here." No, you have have to exhaust your tribal remedies before you go to outside courts. So I probably didn't do jurisdiction enough justice, but I wanna make sure we get through some of the other big ticket items on our list and so tribal sovereign immunity is one of them. I'm sure you've all heard that Indian tribes are immune from suit, that they haven't consented to. It's been to the Supreme Court a few times. There are some exceptions like in the Lewis v Clark case where the doctrine does not borrow a suit against a tribal officer or employee for acts committed within the scope of their employment, but it does extend to commercial activity outside of a tribes reservation. That's the Bay Mill's case. So it's still a very forceful doctrine as a part of federal Indian law and something that anybody doing any sort of deal, transaction, settlement agreement, any sort of contractual circumstance where an Indian tribe's performance and it is necessary for purposes of the deal and tribe's non-performance would otherwise give rise in a purely non-Indian context to the potential for injunctive relief or money damages for non-performance. If that is at all involved in, in any deal that involves an Indian tribe, then you have to have an effective waiver of tribal sovereign immunity or you run the risk of being unable to sue a tribe for, in a civil litigation context for breach of contract or something like that. So the only cases that get there are usually the outliers. I, personally, in 20 plus years haven't been involved in a sophisticated transaction where tribal sovereign immunity hasn't been dealt with. It's just, it's do not go pass co, do not collect $200 if you haven't addressed that yet. So that's kind of a foundational thing that most practitioners are aware of, but if you're new to it, then you need to be aware of it. Tribal gaming and that's one area where these notions of tribal sovereign immunity have been well documented and taken care of because there are lots of contracts, development agreements, agreements between governments, state and local governments, tribes, et cetera. Sovereign immunity almost is never an issue because it's been dealt with. Why? Because Indian gaming is a big industry and there's lots of dollars at risk throughout these operations so, but what is worth knowing is how did it come to be? Why is there a multi-billion dollar tribal gaming industry in the United States? And I should say for the same reason that certain plaintiffs kind of went after the Indian Child Welfare Act as an unconstitutional racial preference. There is a case percolating in Washington state, it's called "Maverick Gaming," where ambitious plaintiffs are going after this, what I'm about to discuss, the Indian Gaming Regulatory Act as an unconstitutional racial preference and violation of Equal Protection Act because it gives Indian tribes and not other so-called minorities the opportunity to conduct gaming, but hopefully the overview I'm about to give you will clearly establish that it's not any, has nothing to do with race and everything to do with the self-determination era. You know, creating a situation where Indian tribes who are without a real tax base have through Congress codified a way of generating governmental revenue to provide for its tribal citizenry. It started generally in California and Florida with bingo operations in the early eighties at Seminole Tribe versus Butterworth case from the fifth Circuit 1981, was an early case and so throughout the mid eighties, more and more tribes were recognizing that, that's right, we have, we can do what we want on our reservations as long as it doesn't violate essentially federal criminal law and gaming is really a state law issue, right? That there is most states outlaw it from a standpoint of not you either can get a license like in Las Nevada or at the time New Jersey or many states have fundraising like casino nights if you will, that you could get a license for a short to raise money for your charitable organization or whatever and what that established was that, you know, the states regulate gaming as sort of a civil regulatory prohibition and if you violate a civil regulatory provision, there may be criminal punitive measures if you violate that, but it's not criminally prohibited like theft, larceny, murder, et cetera. Those things are not regulated, right? You simply cannot commit murder. That's a criminal prohibition. Whereas gaming in almost all states is regulated civilly, even if it's not widely available to everybody and it's that distinction that civil regulatory versus criminal prohibitory that gave rise to the Indian Gaming Regulatory Act, because the California versus Cabazon case in 1987 turned on exactly that question that gaming is civil regulatory, it's not criminally prohibited. So states have no jurisdiction to regulate or try to stop gaming that occurs on Indian reservations. So did I say it quickly led to the enactment of Indian Gaming Regulatory Act because it, sort of that decision through the doors open and recognize that, well, if tribes can do it, then they're just gonna do it however they want and rather than sort of wait for the chaos to unfold, and this is Congress's mind, now it's not me saying this. They brought states and tribes to the table and said, we've gotta create a system of how to regulate this and so the Indian Gaming Regulatory Act was a compromise measure after Cabazon and so centralized, this notion of, well, what is gaming? And it created classes of gaming. Class one traditional games, with little or no value, but it's really not something that even really happens anywhere, I don't think. Class two is your bingo and sort of pull tabs type games and then class three being Las Vegas style, casino gaming, Created a federal regulatory agency known as the "Nation Indian Gaming Commission" and established a regulatory framework where class two gaming is within the exclusive tribal regulation of Indian tribes, meaning on tribal territory, Indian tribes can, with a limited amount of energy to see oversight, conduct whatever class two gaming they want and the state has no say in it whatsoever, but if a tribe wants to engage in full Las Vegas style gaming, they have to enact a tribal state compact, which is essentially a contract, a deal between the tribe and the state in which the tribe and the state agree that here are the games we're gonna offer, here's how they're gonna be regulated, here's a little bit of money to offset state regulatory oversight, et cetera, but you can't tax the activity. Really just establishing a framework and so those compacts, once they get negotiated, have to be approved by the Secretary of the Interior, but can be area areas where, controversy can develop. For the most part, tribes and states have enacted very good compacts because Indian gaming has become a booming industry. On the edges, there are issues sometimes about what games are allowed or how to allocate or deal with issues of sovereign immunity, labor unions, one big issue that came about in the 2000s and the teens was revenue sharing. Tribes are under the statute not subject to any state taxation or fee for the right to conduct class three gaming, but states wanted a piece of the action, if you will and what Interior as the approver of tribal state compacts has allowed is a situation where if the state can give something of valuable consideration to the tribe, then a tribe can pay for that with revenues from gaming and so what's valuable to a tribe in that context? Usually it involves exclusivity, right? Because as I've said earlier, there are lots of non-Indian states or lots of non-Indian commercial gaming in states where there are Indian tribes. New York for instance, has licensed commercial gaming in areas, but they don't do so near where the existing tribes are because the state agreed to exclusivity zones and so Interior has approved a situation where tribes, if they are granted valuable consideration like exclusivity, meaning the state's not going to license a non-Indian company to compete with that tribe, then that's worthy of a share of revenue. So that's, you see that in California. California has other than some poker rooms throughout the state, which don't really compete on a brick and mortar level with the major casinos like Salmon Well, or Pechanga or Morongo. Tribes have statewide a monopoly on Las Vegas style class three gaming and in turn the state of California gets to share in that revenue and that's sort of the framework that has happened there. So that's Indian gaming. In the remaining time we have, let's talk about taxation a little bit because that's obviously a big issue. Let's start from the standpoint that tribal governments are not taxable entities. That's been the case for, that's really never been in controversy, right? And so tribes are the owners of Indian gaming, for instance, and so that money is not taxed, right? Governments don't tax other governments and no individuals own tribal gaming, so it's not a situation where the tribe is subject to taxation and that principle holds true regardless of whether the income is dry. You know, if it's an Indian tribe, they can make money off reservation, but the tribe is not a taxable entity. It starts to get potentially complicated as tribes create subsidiaries or venture away from tribal governmental functions and then essentially charter corporations or LLCs, et cetera. Certainly if a tribe were to form, and I know why they would, but some tribes have, created state law corporations that's gonna be taxable, but a tribally chartered corporation, as long as it's performing governmental functions, it it doesn't have to be the tribal government per se to be tax exempt. It can create a subsidiary and because a tribal government is busy governing the tribe, but it also needs to make money to create governmental revenue, so it can create corporations and instrumentalities to conduct business and make money, which then goes back to the tribal government coffers and so just having that separate form doesn't create any sort of taxable entity. Lots of conflict happens with state entities based on where activity is happening. So tobacco sales for instance, the stream of commerce begins at least for name brand, you know your Marbaro type name brand, tobacco products that happens off reservation and as it gets there, then states were like, well let's, we deserve some of that state tax revenue. Tribes and they couldn't states were unsuccessful in making tribes at the point of sale collect state sales tax, but tribes were unsuccessful in preventing states from taxing the stream before it even gets to a reservation. So what's ultimately developed in what you see on Indian reservations, if you go to a smoke shop or whatever, that's all tribal business. You know, tribes have gotten into the cigarette manufacturing business. I'm not a smoker, but from what I understand, they're just as good as steam brand cigarettes. Like it's not that very, not that difficult to make cigarettes and so tribe to tribe trade has been the norm for the last few dozen years or a few decades and so that has eliminated any issues with taxation of tobacco. The question of on and off reservation transactions, comes to be a lot of times in the natural resources development phase or other areas where there might be a reservation, but there is non-Indian land within that reservation or Indian land within that reservation, but commerce going on, non-Indians coming onto the, to the reservation and conducting business and so arguments will fall under this white Mount Apache versus Bracker test, which is really a balancing test to determine who, what government is bearing the burden of commerce such that it deserves the tax. It's not a great test for Indian tribes if, I come at it from the standpoint of a Tribal Practitioner. I don't think it's, I don't think it's a good test. It presumes that only the state governments really are suffering from the burdens of, transportation and et cetera and it needs to be over overhauled and it's one of the many things that tribal lobbyists tend to bring to congress each year, but there hasn't been much movement on, on those aspects as of late. Natural resources development. I'm gonna be honest, I don't do a ton of natural resources law, but the thing to know about energy development on Indian lands, what's Inflation reduction act new stuff, there's a big push for renewables and so tribes, there's a lot of opportunities for tribes to develop solar and wind and that's gonna spur economic development for fossil fuel and that kind of extraction, you know, people probably remember the Dakota Access Pipeline controversies and the need to use Indian lands or transferred over Indian lands or a pipeline on Indian lands has created, this sort of question of environmental impacts and to what extent is tribal consent required and statutes like the, like NEPA, the National Environmental Policy Act or National Historic Preservation Act have provisions that you have to consult with Indian tribe, but there aren't a lot of teeth in those statutes and you really, as a non-Indian developer can go on to tribal lands, if you've checked all the boxes in terms of consultation and studying things, they're process statutes. There really isn't any teeth that can stop a tribe from, that a tribe can use to stop a project like to cut access, if there isn't a treaty or any specific provision that they can point to. So that's kind of how, that's the state of play going forward and again, in congress, tribes are trying to do their best to, have statutes amended where they can have more of an impact in those situations, but to date, nothing really has been enacted in the law yet and then finally, this is the last side, economic development, right? There are, it's an area that is something I like to, to get involved with it, because it's creativity, right? It's the ability to figure out new things. The folks that developed Indian gaming were striking out new, right? There wasn't anything like that prior, but recognized, you know, sort of a market, a demand, an opportunity and figured out ways to partner with Indian tribes and create a new market and so there are lots of opportunities out there, whether it's cannabis as that continues to get legalized throughout the states, sports betting and real estate development. Hearth Act is a relatively recent federal statute that tribes can use to lease their lands without a lot of unnecessary federal regulatory approval. So I think the thing I would like to leave you with is that going forward, there's the traditional things like gaming and taxation and your jurisdictional fights and questions of equal protection, et cetera and that'll be something, but I'm most interested in the future and, where economic development and other aspects of tribal law, create new markets and create new opportunities for tribes and their partners. I think the first slide, I talked about sources of conflict and cooperation and I much prefer focusing on the cooperation side of things rather than, than the conflict side and I think there are lots of opportunities in the future and look forward to continuing on that. So thank you all for attending today. I hope you've found it insightful. If anybody wants to reach out to me, look me up. James Meggesto, Holland and Knight and maybe we can connect. Other than that, thanks for listening and appreciate your time. Take care.