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The Indian Law Outlook

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The Indian Law Outlook

For more than 30 years, the win-loss record for tribal interests at the United State Supreme Court was dismal. Since 2018, however, tribal interests have been on a remarkable winning streak. Can this new direction continue? The outcome of the four Indian law cases in which the Supreme Court has granted certiorari this term will be telling. This program will summarize recent Indian law decisions at the Supreme Court and analyze the four pending cases. The program will benefit tribal attorneys, practitioners of federal Indian law, and other attorneys who wish to learn more about federal Indian law.

Presenters

Chloe Thompson Villagomez
Principal
Foster Garvey LLP

Transcript

Hello, and thank you for joining me today for the Indian Law outlook at the Supreme Court. My name is Chloe Thompson Villagomez, and I am a Principal at the Seattle office of Foster Garvey. And I'm a graduate of the University of Minnesota Law school and I have been representing tribes and tribal entities since 2005. Our learning objectives for today are first, to recognize the historic nature of the US Supreme Court's recent Indian Law decisions. Second, review recent Indian Law decisions at the Supreme Court. Third, learn about the Indian Law cases in which the Supreme Court has granted cert this term. And fourth, predict what the outlook might be for these cases and future Indian Law cases at the Supreme Court. For the period of 1986 to 2001, the late David Getches calculated that tribal interests at the US Supreme Court actually fared worse than convicted criminals who were appealing their convictions. Out of approximately 40 cases decided by the court, tribal interests had a 23% success rate. Whereas convicted criminals had a 36% success rate. And over this time period, the tribal interests fared progressively worse. As Getches testified to the Senate Committee on Indian Affairs in 2002, "nobody does worse in this Supreme Court than Indian tribes." By my own calculations for the subsequent period, 2001 to 2017, there was some improvement but not much. 2001 to 2017, there was some improvement but not much. You still see, by my calculations, tribal interests prevailing approximately 33% of the time. And so there were barely half the cases actually during this time period, then there had been in the preceding time period. So only about 21 cases in this 16 year timeframe versus approximately 40 in the previous 15 years. And the issues were kind of all across the board, as far as Indian Law goes. So it included federal trust responsibility, tribal sovereign immunity, land into trust, tribal civil jurisdiction, tribal criminal jurisdiction, state tax, and regulatory authority, ICWA, IGRA, and reservation diminishment. Then we have Justice Sotomayor, confirmed to the Supreme Court in August of 2009. And she's been quoted as saying that she actively studied Indian Law when she got on the Supreme Court. She went back to the very beginning and tried to understand the foundational principles of Indian Law. So this is, I think, a key event in the Supreme Court is the appointment of Justice Sotomayor and her studying of Indian Law. Then we have this unprecedented time period of 2018 to the present. So Justice Gorsuch was confirmed in April of 2017. And he does not participate in Lewis V. Clark, which is the only Indian Law decision of the 2016 to 2017 term, and that was on the topic of sovereign immunity. But the court has issued nine Indian Law decisions since then. And not counting Yellen versus Confederated Tribes, which I didn't count primarily just because there are arguably tribal interests on both sides. It's essentially Indian tribes in the lower 48 versus Alaska natives. And so I left that one out. So not counting that one, tribal interests have prevailed 100% of the time. And so that, as you can see, is a really big change from the previous three or four decades. So this is sort of unprecedented, this timeframe here for tribal interests at the Supreme Court. So beginning in 2018 and continuing into 2019, you've got sort of this one-two-three punch of treaty rights decisions, really powerful decisions in favor of tribal interests. And so the first one is Washington versus United States, which is also known as the Culverts Case. And this one's a little bit different because there's actually no opinion. The court affirmed the decision of the Ninth Circuit by a divided court. So no opinion is issued, but I think it's worth looking at what the Ninth circuit said. And so, what was affirmed? So first, essentially we have 21 tribes alleging that Washington violated treaties by building and maintaining culverts that impede fish passage. And so the Ninth Circuit affirmed the district court's injunction, requiring Washington to correct the offending culverts. The Ninth Circuit rejects Washington's argument that the treaties impose no obligation on it to ensure that fish will be available. And the Night Circuit says, "even in the absence of an explicit promise, we would infer a promise that the number of fish would always be sufficient to provide a moderate living to the tribes." And the court notes that "the tribes treaty right would be worthless without harvestable fish." And so the Ninth Circuit concludes that Washington violates its obligation to the tribes under the treaties, and that it must correct high priority culverts within 17 years. And then the remainder of the culverts, by the end of their natural life, or in the course of a road construction project. And so even though there's no decision issued here, I think it's significant that this decision was nevertheless affirmed. The next decision is Washington versus Cougar Den. And so this case involves a wholesale fuel importer that's owned by a tribal member. And it transports fuel from Oregon to the reservation, the Yakama Reservation in this case, on public highways. And the treaty in this case includes a reserved right in common with citizens of the United States to travel upon all public highways. And so the court says "the treaty should be understood as bearing the meaning that the Yakamas understood it to have in 1855. And travel and trade was really important to the Yakamas, and still is. And so the court concludes that the Washington Fuel Tax can't be lawfully assessed. So that's the second in our sort of one-two-three punch here. The third is Herrera versus Wyoming, and this is a 2019 case involving a Crow tribal member who was charged with off season and unlicensed hunting in the Bighorn National Forest. And in that case, the treaty "reserved the right to hunt on the unoccupied lands of the United States, so long as game may be found thereon." The Wyoming state courts held that the treaty right expired when Wyoming became a state. They also held that the land was not unoccupied. The Supreme Court though, repudiates Ward versus Race Horse to the extent that it held that treaty rights can be impliedly extinguished at statehood. And it reiterates that if Congress seeks to abrogate treaty rights, it must clearly express its intent to do so. The court again says, "treaty are construed as Indians would've understood them." They would've understood unoccupied to mean an area free of residents or settlement by non-Indians. And so the Supreme Court concludes that the treaty right survives statehood and that the national forest land is not categorically occupied. And not notably Sotomayor was the Justice who authored this opinion. Then in 2020, we get the really big case, McGirt versus Oklahoma and this is a really significant case. And it begins with this amazing line, "on the far end of the trail of tears was a promise." And this line, I think, will be quoted for decades if not centuries. And this is an opinion that's authored by Gorsuch. And it involves an individual named Jimcy McGirt, who was convicted by a state court for three serious sexual offenses. And he claims that the state lacks jurisdiction because he's Indian and his crimes took place on the Muskogee Creek Reservation. So Justice Gorsuch begins by saying that, "today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law." "Because Congress has not said otherwise, we hold the government to its word." And he discusses how a series of treaties promised to the Creek a permanent home forever set apart, and the right of self government free from any state jurisdiction. And he says that to determine whether a tribe continues to hold a reservation, there is only one place we may look, the Acts of Congress. If Congress wishes to break the promise of a reservation, it must say so. Disestablishment does not require any particular form of words, so it's no magic words required. But it does require that Congress clearly express its intent to do so. And so in McGirt, the court finds no act of Congress that dissolved the Creek Tribe or disestablished its reservation. So there's no express intention to do either of those things. The state then argues that under Solem versus Bartlett, the court should examine events surrounding passage of the relevant legislation, as well as subsequent events and demographics. And that demographics piece and the subsequent events piece, that's sort of part of this Indian character analysis. Where the courts will look at whether the land in question is still essentially Indian in character as the courts see it. And so you might guess there are a lot of problems with that type of analysis. And it looks at things like, what percentage of residents are Indian versus non-Indian? And what has been sort of the acting government framework and those types of things? Are there tribal buildings located there, et cetera? So it looks at those types of things. And it's, in my opinion, a fairly problematic analysis. And so just Gorsuch, writing for the court of course, says this is mistaken. "Ascertaining and following the original meaning of the law before us is the only step proper for a court of law." And so he's essentially eliminating, or at least diminishing greatly, the Indian character analysis, as well as the events surrounding passage of the relevant legislation piece of it. "Only if there's ambiguity," he goes on to say, "we will sometimes consult contemporaneous usages, customs, and practices, to the extent they shed light on the meaning of the language at the time of an enactment." "To avoid further confusion, we restate the point." "There is no need to consult extra-textual sources when the meaning of a statute's terms is clear." "Nor may extra-textual sources overcome those terms." "The only role such materials can properly play is to help clear up, not create, ambiguity about a statute's original meaning." "And as we have said time and again, once a reservation is established, it retains that status until Congress explicitly indicates otherwise." And so the court goes on to essentially conclude "that the federal government promised the Creek a reservation in perpetuity." "Over time, Congress has diminished that reservation." "It has sometimes restricted, and other times expanded, the tribe's authority." "But Congress has never withdrawn the promised reservation." "As a result, many of the arguments before us today follow a sadly familiar pattern." "Yes, promises were made but the price of keeping them has become too great." "So now we should just cast a blind eye, we reject that thinking." "If Congress wishes to withdraw its promises, it must say so." "Unlawful acts performed long enough and with sufficient vigor are never enough to amend the law." "To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right." So this is a really significant decision in Indian country, much celebrated. And as I said, I think will likely be quoted and will be a significant decision for many, many years to come. But as we will see in a little bit, it's resulted in almost immediate challenges to this decision. And the state of Oklahoma has really sought to raise numerous challenges to this decision. And we'll look at one of those in a moment here. The next case is the 2021 case, US versus Cooley. And in this case, the question presented is, whether an Indian tribe's police officer has authority to detain temporarily, and to search a non-Indian on a public right of way that runs through an Indian reservation? The Ninth Circuit said that a tribal police officer could detain a non-Indian suspect only if one, the officer first tried to determine whether the suspect is Indian. And if non-Indian, then two, it is apparent that the subject has violated state or federal law. And the Ninth Circuit said that because the officer here didn't try to determine whether the suspect was Indian, the lower court correctly suppressed evidence in the case. And I will note that it's essentially been the status quo for years, that tribal police officers have this authority. While they don't have criminal jurisdiction in most cases with certain exceptions over non-Indians, they can detain them until state or the appropriate law enforcement arrives to detain the suspect. So that's been the status quo for a long time. At the Supreme Court, it's noteworthy that the court cites a number of amicus briefs. And then the court discredits the Ninth Circuit standard, and it uses practical considerations to do so. And so in this case, the court says that "the first requirement, even if limited to asking a single question, would produce an incentive to lie." "The second requirement, that the violation of law be apparent, introduces a new standard into search and seizure law." "Whether or how that standard would be met is not obvious." "At the same time, because most of those who live on Indian reservations are non-Indian, this problem of interpretation could arise frequently." And so I think that focus on practical considerations and listening to the amici about real world, contemporary circumstances in Indian country is noteworthy in this case. The court goes on to discuss that "a tribe retains inherent authority to address conduct that threatens or has some direct effect on the health or welfare of the tribe." And that is the second prong of the Montana Test for tribal civil jurisdiction over non-Indians. And so it's noteworthy that the court is applying Montana, which involves civil jurisdiction, in the criminal context. So that's interesting and noteworthy here. Also noteworthy is that the court has previously set quite a high standard for application of Montana's second exception, or second prong. In the Plains Commerce Bank versus Long Family Land And Cattle Company case the court said, "the conduct must do more than injure the tribe." "It must imperil the subsistence of the tribal community, perhaps even be necessary to avert catastrophic consequences." So it is a fairly high standard, or I should say, probably quite a high standard. And so as a result, the lower courts have frequently declined to apply that second prong as a basis for tribal jurisdiction. There are a few notable cases in which they did apply it. One example is in the Ninth Circuit, involving tribal court jurisdiction over an individual who started a forest fire that burned 400,000 acres and caused millions in damage. And an Eight Circuit case involving tribal court jurisdiction over individuals who attempted an armed takeover of the tribe's government center and casino, which was its economic engine. And so you have some examples of the kind of drastic circumstances that typically would be some of the rare cases in which that second prong of the Montana standard might be applied. While here in this criminal context, the court says, "the second exception we have just quoted fits the present case almost like a glove." "The phrase speaks of the protection of the health or welfare of the tribe." "To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime, would make it difficult for tribes to protect themselves against ongoing threats." Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation. As the Washington Supreme Court has noted, "allowing a known drunk driver to get back in his or her car, careen off down the road and possibly kill or injure Indians or non-Indians would certainly be detrimental to the health or welfare of the tribe." I think that's interesting and it's a bit ironic in some ways, because the case that sort of divested tribes of criminal jurisdiction over non-Indians in most circumstances, was the case of Oliphant versus Suquamish. And that involved very similar circumstances to this, including a drunk driver careening through the residential roads of the reservation. Which the court characterized as a highway, which technically it is, but it's through a residential area. It's a two lane, rural highway type of road. So it's a bit ironic that this is very similar type of conduct and yet sufficient for jurisdiction, apparently in the court's opinion, under the Montana second prong. So that's interesting. But because this case basically just preserved the status quo and the result is really the only option that makes sense from a practical perspective, it's not a particularly surprising result. And it's a 10 page opinion, which I think supports that idea that it's not the most surprising result. But if it would've gone the other way, then it would've been significant. But the significance, I think, here lies primarily in this application of Montana's second prong. Which maybe suggests that it's somewhat of a lowering of the standard for that second prong. And then also in the fact that it was a unanimous decision. And so that shows that it continues to be possible to get other Justices on board in Indian Law cases, at least in some circumstances, even after the loss of Justice Ginsburg. And so I think it's significant for that reason as well. So what explains this remarkable string of wins? And I think there are a number of things, at least in my mind, that might be included in possible explanations. I'm always curious to hear of others' thoughts on this topic. But I think one thing is the types of issues in the case, a number of these were treaty rights cases. And so, it's sort of a similar type of case. And so, it's sort of a similar type of case. And then the Cooley decision that we just looked at, really involved a practical public safety issue. It's not representative of a full range of Indian Law topics. Another thing is I think we're starting to see on the court somewhat of a deeper understanding of and appreciation for historical background. And you see that a lot with Justice Gorsuch's opinions. And then also, I guess, Sotomayor's studying of Indian Law and kind of going back to the very beginning is emblematic of that as well. And then there's been this increased propensity towards textualism. And so most, if not all, of the Justices now frequently apply textualism and many of them are textualists in philosophy. And so particularly for treaty rights types of cases, that can be useful because they're looking at what the language actually said and what it would've been understood to mean at the time it was written. And so that really fits well into that particular philosophy and approach, I think, at least in these treaty rights cases. It remains to be seen then how that approach might work with some of the other topics in Indian Law. I think we're also seeing, to some extent and with a limited number of Justices still but hopefully they can help to educate their colleagues, a more modern and practical understanding of Indian country. And I think that's been something that we've seen in past decades, that there just did not seem to be an understanding of what Indian country is like today. There just was sort of, you could see it throughout many different opinions, this sort of lack of understanding of what Indian country is like these days. And so now we're starting to see a bit more practical understanding of that, and also taking into account of amici that can help to educate the court on very practical issues. We saw in McGirt, the amici talking about things like how governments can have intergovernmental agreements, and talking about very practical statistics and things like that. So you get the court paying attention to these amici, who are really able to bring that modern and practical understanding of Indian country to the court. And then we've got Gorsuch, who certainly brings a much more sophisticated understanding of Indian Law to the court. And then other Justices like Sotomayor, who were already working to develop that. And so you've got some knowledge there, that was not previously there. Potentially, I think and some have suggested that, maybe a Justice from the West is something that's a noteworthy factor. And Justice Gorsuch is from the West. And there are certain things that I think judges who come from the East Coast may not necessarily have an understanding of what things are like in the West. And I mentioned earlier that example from the Oliphant versus Suquamish case, where the Justices are talking about, well, a driver careening down a highway is not going to be a sufficient basis for criminal jurisdiction in that case. They weren't aware, kind of, that a highway is not necessarily like an interstate or something like that. It could be a narrow two lane, rural residential road essentially. And so then maybe it looks a little bit different, if they might have had that understanding. I don't know if that changes the results, but I think, in certain ways, it does potentially bring a different level of understanding. And then whether coordinated efforts such as the tribal Supreme Court Project, which tries to coordinate briefing to the Supreme Court on tribal interests or cases involving tribal interests, what effect that might have had. Some suggest that it may have been helpful in resulting in this string of wins. And then what other factors are there? I mean, I think that's an interesting thing to think about. And as I said, I'm always interested to hear what folks might think on that, if they have other ideas for what might be explaining this sort of remarkable phenomenon that we've been observing. But then the real question now is, can this winning streak continue? And so our coalition for Cougar Den, Herrera and McGirt was Gorsuch, Sotomayor, Kagan, Ginsburg, and Breyer. And so the loss of Ginsburg calls into question whether this better direction for Indian Law cases can continue. But the unanimous opinion in Cooley provides some reason to hope that it can. Notably though, as I mentioned, most of these recent cases have been treaty rights cases. And so what will the results be in other types of cases? And that's, I would say, uncertain at this point. Now we have two new Justices, and so what can we expect there? Well, we've got Amy Coney Barrett who is viewed as being conservative but she is a textualist. And so that may actually work in tribes' favor, especially on treaty rights cases and other cases that may involve interpretation of language, statutory or treaty language. And that could potentially be something that works in the tribes' favor. She does not have notable Indian Law experience though. And so she's not likely to be, at least initially, bringing any particular level of sophistication or knowledge of Indian Law or history in that area. Then there is Ketanji Brown Jackson, who will be taking her seat soon on the Supreme Court when the court, well Justice Breyer has already participated in his last oral argument and then will be stepping down when the court breaks. And so she'll be then taking her seat. She's viewed as being more liberal. She does have noteworthy diverse life experience. She's a black woman, she's a former public defender. And so that type of diverse life experience may make her, I think, maybe more sensitive or empathetic to tribal interests. But she also does not have notable Indian Law experience. And she's also not likely to be involved in the decision of any of the current pending cases, except for possibly Haaland versus Brackeen. And the reason for that is because the other pending cases have already been argued. So oral argument has already occurred and typically, the Justices don't participate in cases if they did not participate in the oral argument. Although, so it remains to be seen. But she's probably not likely to participate in those pending cases. So the cases in which the court has granted cert are Ysleta del Sur Pueblo versus Texas, Denezpi versus United States, Oklahoma versus Castro-Huerta, and Haaland versus Brackeen. And so we'll be looking at the first three cases because those are the ones that have been already briefed and argued. And then Haaland versus Brackeen, we'll just look at the issues. But those have not yet, or that case has not yet been briefed or argued. And so there's not as much to look at there. So in the first case, Ysleta del Sur Pueblo versus Texas, this case was argued on the somewhat, it seems like a rather auspicious date of 2/22/22. And so the area of law for this case is gaming. And the issue is whether the Restoration Act, which we'll take a look at in a second, provides del Pueblo with sovereign authority to regulate non-prohibited gaming activities on its land, including Bingo, as set forth in the plain language of Section 107B, the act's legislative history, and this court's holding in California versus Cabezon. Or whether the Fifth circuit's decision affirming Ysleta I currently subjects or correctly subjects del Pueblo to all Texas gaming regulations. So the act in question here is a 1987 Restoration Act, which restored federal recognition for the Pueblo, as well as the Alabama-Coushatta Tribe tribes of Texas. And so there are two operative sections of this act, Section 105F incorporates by reference Public Law 280. And so it essentially incorporates a Public Law 280 framework into this statute. And we'll discuss that a bit more and why that matters as we go here. Then Section 107 of the act provides, A, in general that all gaming activities which are prohibited by the laws of the state of Texas are hereby prohibited on the reservation and on the lands of the tribe. Any violation of the prohibition provided in this section shall be subject to the same civil and criminal penalties that are provided by the laws of the state of Texas. The provisions of this subsection are enacted in accordance with the tribe's request in tribal resolution number TC02-86. And we'll look at the language of that in a moment here as well. But then the next subsection goes on to say, "nothing in this section shall be construed as a grant of civil or criminal regulatory jurisdiction to the state of Texas." And then the subsection C discusses enforcement. And so it says that the courts of the United States will have exclusive jurisdiction over any offense and violation of Subsection A. But nothing in this section will be construed as precluding the state of Texas from bringing an action in the courts of the United States to enjoin violations. So Texas at least would appear, according to this language, not to have regulatory jurisdiction but to have the ability to go to federal court to enjoin violations. The other thing that I think is noteworthy and important to note here is that lottery under Texas law means, "the procedures operated by the state under this chapter, through which prizes are awarded or distributed by chance among persons who have paid or unconditionally agreed to pay for a chance or other opportunity to receive a prize." And so that is arguably broad enough to encompass games of chance like those that the tribe, or the Pueblo, originally proposed to conduct. Which included games of chance like Bacarrat, Blackjack, Craps, Roulette and slot machines. And so that becomes relevant because, as we'll see in a moment here, the Public Law 280 analysis typically looks at whether something is prohibited or whether something is regulated. And so arguably, this definition of lottery could be broad enough to say that these gaming activities are regulated, not prohibited. So the Tribal Council resolution, which as you may recall from the previous slide, the Restoration Act provided that it was being passed in accordance with the request in this resolution. So the Tribal Council resolution specifically disclaimed any interest in conducting high stakes Bingo or other gambling activities. And it requested for the Restoration Act language which would provide that all gaming, gambling, lottery or Bingo as defined by the laws and administrative regulations of the state of Texas shall be prohibited on the tribe's reservation or on tribal land. And so this does make for a bit of a complicated statutory framework, but this resolution was actually passed with respect to a previous version of the bill and not with respect to the version of the bill that was actually passed. And if I can, I'll go back to the previous side just so you can look at this language again. But it says here, "the provisions of this subsection are enacted in accordance with the tribe's request." And so it doesn't necessarily incorporate all of the specific language of that request. But nevertheless, it is still somewhat of a complicated and somewhat unclear statutory framework that we're working under in this case. So as I mentioned, Texas law has a broad definition of lottery. Although only the state can operate a lottery under Texas law. And it also permits certain groups to operate Bingo, but it's typically things like charitable organizations, and there's also a dollar limit for Bingo. So nearly 30 years of litigation results from this statutory framework here. And we'll look at the various stages of this litigation so that we can understand the case currently before the Supreme Court. So in Ysleta I, which is in 1994, well the decision at the appellate level is in 1994. The Pueblo sued the state and the governor for failing to negotiate a compact in good faith under IGRA. Because if tribes want to conduct Class III gaming, which would involve some of the activities that I mentioned that the tribe wanted to engage in, would be Class III gaming under the Indian Gaming Regulatory Act or IGRA. Then they need to negotiate a compact with the state under IGRA. Although IGRA does require states to negotiate in good faith. And so the Pueblo are essentially alleging that the state is not negotiating in good faith. So the Fifth Circuit, in that case, dismissed the Pueblo's claim holding that the Cabazon framework did not apply to the Restoration Act. The Restoration Act, not IGRA, governed. And the action was barred by the state's 11th Amendment immunity, because the Restoration Act did not waive the state's sovereign immunity. And so when we say that Cabazon framework did not apply, again, that refers to this framework that says, if something is prohibited by the state, then that falls under the Public Law 280's grant of criminal jurisdiction. If it is regulated by the state, then that would be civil and would not fall under Public Law 280's grant of jurisdiction. And as I mentioned before, the Restoration Act did incorporate Public Law 280. And so would also then, by extension, incorporate the Public Law 280 and Cabazon framework into this statutory framework that we're working within here. But the Fifth Circuit said because Cabazon framework did not apply, then it said that Texas's gaming laws and regulations operate as surrogate federal law on the tribe's reservation. And so that's significant because it's not just the law, but also regulations are essentially applicable by operation of the Restoration Act, according to the Fifth Circuit. So nevertheless, the Pueblo opened a gaming facility in 1993 while Ysleta I was still pending. And their gaming activities included slot machines, Poker, Blackjack, Bingo, number games, Keno number games, dice games, and off premises wagering on horse and dog races. So that includes both Class II and Class III games under IGRA's classification standards. That gaming facility was a huge economic benefit to the Pueblo. Prior to this, they had very high rates of unemployment and poverty. The gaming facility employed approximately 1,200 people, 30% of whom were tribal members. The revenues are 60%, or were 60% of the Pueblo's budget. And so when the casino has closed at various points in this litigation, unemployment went from 3% to 28%. So it is a really significant economic benefit to the Pueblo and that's consistent with federal priorities and prioritization of tribal economic development, and self-determination and self-sufficiency. It's also consistent with IGRA's purposes. Although, as we've seen already, the Fifth Circuit has said that IGRA does not govern here. But it nevertheless is sort of consistent with these goals that the federal government has established for tribes. Next, in Ysleta II, the state sued to enjoin the Pueblo's gaming activities. Basically, well I'll get there in a second. But the Fifth Circuit granted the state's motion for summary judgment, and it enjoined the Pueblo from engaging in all gaming activities on the reservation. So they had opened this casino while the Ysleta I was still pending. Now the state sues to enjoin and the Fifth Circuit grants that and enjoins the Pueblo from all gaming activities. And the Fifth Circuit here concludes that the fact that the state of Texas is authorized to conduct a lottery, did not open the door for the Pueblo to do so. And then it says, "moreover, the Pueblos may only engage in gaming activities that private citizens and organizations may lawfully engage in, if it complies with state regulations including obtaining a license." And so there are a couple of things, kind of, that are noteworthy here. One is that you have this scope problem that sort of reoccurs sometimes in case law, also under IGRA. And so just Indian gaming case law in general is, what does prohibited mean? Is the fact that a state allows any type of gaming activity, does that then mean that gaming is regulated, and so all gaming activities are regulated and so there's no grant of jurisdiction? Or what about if a state allows a certain limited type of gaming activity, but then prohibits other types of gaming activity. Then does that become part of the prohibitory side of things and thus, subject to state jurisdiction? So this is a recurring issue and you see it illustrated here as well. And the Fifth Circuit is taking sort of the more conservative approach and saying, well, just the fact that a lottery is allowed even though there's this broad definition, doesn't make these other types of gaming activity regulated. All the rest is essentially prohibited, according to the Fifth Circuit here. And then also the other thing that is really noteworthy is that the Fifth Circuit says, the Pueblo, it goes beyond just saying that this is something that's prohibited unless they fall within these specific activities that are allowed under state law. And it goes beyond that and says, not only that, but the Pueblo has to obtain a state license if it wants to lawfully engage in certain gaming activities, which would be essentially Bingo, limited to Bingo. And so that is quite an intrusion on tribal sovereignty, and sort of a surprising result here. Especially considering, if you recall, the statutory framework that explicitly said there's no grant of regulatory jurisdiction to the state. So it's interesting results. And so as a result, the Pueblo shut down their casino in 2002. But then they subsequently pushed the boundaries of the injunction with various gaming activities. And they were twice held to be in violation of the injunction. And they got pretty creative, I must say. So the amended injunction, because it was amended a couple of different times, so as amended, the injunction allowed the Pueblo to operate a certain kind of gaming device which is called an eight liner. Provided it could only reward players with non-cash prizes with a value of not more than 10 times the amount charged to play the game, or $5, whichever is less. And so the Pueblo was issuing visa debit cards rather than cash, and that was how they were attempting to get around that. Likewise, the amended injunction allowed the Pueblo's convenience stores to conduct the kinds of sweepstakes that you might normally see at a convenience store. Various giveaways and sweepstakes of that nature at a convenience store. And so the Pueblo sort of expanded that and was, again, kind of pushing the boundaries and were conducting a sweepstakes, a so-called sweepstakes at the casino through electronic gaming machines that were designed to look and feel like slot machines. And they characterized the entries, or the cash entries as donations to the Pueblo. And so as I said, I mean, they were getting kind of creative and pushing the boundaries. And as a result, they were held to be in violation of the injunction. Next, we finally get to Ysleta the current. Next, we finally get to Ysleta the current. So essentially Ysleta III, which is the current case. So the Pueblo then transitioned to Bingo in 2016, and they were operating live Bingo and also Bingo machines. And the Ysleta III court, Fifth Circuit, noted that these Bingo machines look and sound like slot machines. And I will say, that is the case throughout Indian country. So there are these Class II Bingo games that look and sound a lot like slot machines. And if you didn't know better, you would think they were slot machines. But they are actually an electronic form of Bingo. And there's been some, I will say, kind of I guess disputing over the years in various forums, including with the NIGC and then in court systems, whether these are actually Bingo games or whether they then cross the line into being Class III games. It's a bit of a gray area, but these machines are all over Indian country at this point. And many tribes now rely heavily on these machines, in situations where either they might not have a Class III compact with the state. Maybe the state has not been willing to agree to one. Or when there are difficulties, when tribes encounter difficulties in negotiating maybe a new compact or something like that, it's really important for them to have these Class II games to be able to fall back on in the event that they're maybe not able to renegotiate a compact or something like that. So these are really important games throughout Indian country. So the state, again, sues to enjoin these Bingo operations. Both the live Bingo and the Bingo machines because, again, state law's limited to just certain organizations can operate Bingo and certain dollar amounts, within certain dollar amounts. And so the Fifth Circuit here held that Ysleta I controlled. And so essentially said, this question was already answered a couple decades ago. The Restoration Act governs the Pueblo's gaming activities and prohibits any gaming that violates Texas law. And so the Fifth Circuit affirmed the district court's enjoining of the Pueblo's Bingo operations. So the case goes to the Supreme Court. And in their Supreme Court merits briefs the Pueblo, with amicus support from the Alabama-Coushatta tribe, the National Indian Gaming Association, and the United States, argues that the Restoration Act is essentially a codification of California versus Cabazon's criminal prohibitory and civil regulatory distinction, which we've talked a bit about already. And that the Fifth Circuit's decisions to the contrary were incorrect. The state argues, for its part, that Ysleta I was correct. And that the court was correct when it held that the Restoration Act federalizes all Texas gaming laws and regulations, and that the Restoration Act controls. At oral argument, a few things were apparent. So the Justices, for one thing, had a very hard time conceptualizing the distinction between an electronic Bingo game and a slot machine. Which is what I was talking about just a moment ago. So they do lack, apparently lack, that subject matter expertise. And so they really grappled with that, even though that wasn't necessarily an issue in the case. But they just sort of had a really hard time understanding that. They also really struggled with the scope issue that I was talking about a few minutes ago. That, for example, if Bingo is only allowed for certain groups or only for certain stakes, then why isn't something beyond that prohibited rather than regulated? And they grappled with the fact that the Cabazon framework sort of modifies that. And so then we also saw Alito and Roberts trot out sort of familiar old slippery slope concerns that come up. And even you see them in Cabazon and in other cases as well. So for example, Alito asked, is the sale of opioids without a prescription prohibited or regulated? And so that's essentially a slippery slope argument, that oh, if we say something that appears to be not allowed is only regulated, then where does that end essentially? And then Gorsuch repeatedly questioned whether the purported difficulty in applying the prohibitory regulatory distinction was an argument for overruling Cabazon. And so that was really, I think, the most surprising concerning part of this oral argument. And so Gorsuch asks, at one point, and what would be the negative consequences if we were to overrule Cabazon? And Attorney Yang, who is arguing for the United States, his initial response is just, wow. I think he's as surprised as I was when I first heard it. And then he goes on to say, and he kind of struggles a bit I think with this answer, but goes on to say, "first of all, I don't think that's before the court." This has been a fundamental distinction that's existed in the law of tribal sovereignty and tribal lands for decades upon decades. Again, it goes back before Cabazon. It's beyond the stage of rethinking now. Cabazon is embedded in the law in all kinds of areas. And then Gorsuch also asks, if we were to eliminate the distinction between regulate and prohibit in the Restoration Act, would we also wind up doing so in IGRA? And so these questions I think, are concerning because Cabazon and it's predecessor Bryant are what essentially led to the gaming industry, which has been one of the most beneficial things, if not the most beneficial thing in Indian country for many, many, perhaps hundreds of years. It's provided some tribes with a lot of financial resources to be able to operate their governmental operations. And then other tribes with at least some resources to be able to operate governmental operations. And I think the really distinct and important thing to be aware of is that these are not like commercial gaming enterprises. This is not like Las Vegas gaming, where the money goes into some CEO or shareholder's pockets. This is governmental gaming, and so the proceeds go to operate tribal governments who are quite limited, unlike other governments, in their ability to... Or I should say, not in their ability to tax because they can tax, but their tax base essentially. They often don't have a practical tax base in order to generate substantial tax revenues like other governments do. And so they rely on actually being able to raise governmental revenues through economic operations. And gaming has been an extremely significant part of that, and then has given rise to further economic development in Indian country. And that's what's allowed tribes to really help improve their infrastructures, provide better services to their communities. And even has a positive impact on surrounding communities as well. And tribes are often now the largest employer or among the largest employers in their areas. And so it's been really significant. And so to contemplate that perhaps Cabazon could be overruled is quite shocking and concerning, I would say. Although it is also codified into IGRA, but then Justice Gorsuch is asking, well then how would we handle this regulatory versus prohibitory aspect? So then Kavanaugh also questions, is it possible to rule for the state of Texas narrowly in this case without such follow on implications? So that's interesting to see, that he's thinking in that direction. Then Gorsuch also again asks, if we were to ignore Cabazon here in 107, on what basis could you continue to recognize that distinction under IGRA? Wouldn't that be pretty hard? So there, you can see them kind of grappling with this. They also questioned why the prohibitory regulatory distinction was uniquely difficult to apply here and not in Cabazon. And then also towards the end they started to ask questions about, why should the federal courts be determining minutia regarding Texas gaming laws and regulations? So I think that's somewhat positive for tribal interests. I think it, it felt to me, that they ultimately seemed to lean somewhat towards applying the Cabazon framework here, which would be a good thing. Although they did seem to struggle with Cabazon's regulatory prohibitory distinction, as I mentioned. And so it'll be interesting to see which way this comes out. I think it's hard to really tell, although I did feel, yes, maybe they're leaning somewhat more towards applying Cabazon framework. So we'll see, let's hope. Then Denezpi versus United States is the next case. And this was also argued on that same date of 2/22/22. So this area of law is sort of the intersection of criminal and constitutional law, it involves double jeopardy. And the issue is, is the Court of Indian Offenses of the Ute Mountain Ute Agency a federal agency, such that Merle Denezpi's conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident? So Denezpi is a Navajo citizen and he was charged in the Court of Indian offenses of the Ute Mountain Ute Agency. And we'll call that the CFR court going forward. He is charged with assault and battery under the Ute Mountain Ute Code, as well as with terroristic threats and false imprisonment under federal law. He enters a plea to the assault charge and he's sentenced to time served, which was 140 days at that point. And then the remaining charges, so the other tribal law charge and then the federal charges were dismissed. Six months later, he's indicted in federal court on one charge of aggravated sexual abuse in Indian country arising from the same incident. So he moves to dismiss the indictment on the ground that it violates the Fifth Amendment's double jeopardy clause. The district court denied the motion to dismiss. So he was convicted and sentenced to 360 months in prison, and 10 years of supervised release. He then appeals the denial of the motion to dismiss the indictment. So under the dual sovereignty doctrine, an individual can normally be prosecuted in both tribal court and federal court. And we can cite for that proposition US V. Wheeler, which is a 1978 case. But the question here is whether the CFR court's authority originally derives from tribal sovereignty, or from the federal government? And the 10th Circuit stated that the Wheeler reasoning applied to CFR courts as well, because Congress's creation of the CFR courts did not divest the tribes of their sovereignty. But merely provided a forum through which a tribe could exercise that power, until a tribal court replaced the CFR court. And so the 10th circuit held that the ultimate source of the CFR court's power is the tribe's inherent sovereignty. So the subsequent prosecution of Denezpi in federal court did not violate the prohibition against double jeopardy. In their merits briefs, Denezpi argues that the prosecution in the CFR court was brought by federal prosecutors on behalf of the United States. And the United States is the plaintiff. He also strives to characterize the CFR courts as federal courts and gives examples of why these are really federal courts by nature. And he argues that not only the charge, but also the prosecution must have its source of authority in separate sovereignce, which is not the case here. The US, for its part, argues that today CFR courts are viewed as vehicles for the exercise of tribal jurisdiction. And the US also argues that it's the offense that is determinative and that the offense in question was a violation of tribal law. There were several amicus briefs filed on both sides, including a brief from the Ute Tribe in support of the United States. At oral argument, Gorsuch noted that the tribal crimes were only enforceable in the CFR court with the ascent of the Secretary of the Interior. Sorry, Alito asked if a federal criminal statute can include a racial classification. And asserted that if the court were to find that the tribal law was really federal law, it would have to confront that question. To which the attorney for Denezpi noted that the question wasn't presented here. That question that Alito raised is not necessarily particularly interesting for this case, but the fact that he's thinking in this direction is not a surprise but we will see that in future cases, including the Haaland versus Brackeen case where it really is a concern. And so then there was lots of discussion about the nature of CFR courts, whether that's tribal or federal in nature. Justice Kagan noted that the tribe believes that these are their courts. On other hand, Justice Robert says he doesn't understand why a federal official appointed to represent the interests of the Indians is the same as a US attorney with a different set of priorities. So at that point, he's almost saying that he views them as separate. But then later on, he sort of seems to be leaning in the other direction. And so he then questions whether a CFR court trial provides a dry run for a federal court trial. And so the concern there would be, these are essentially same sovereign. Just the first trial is providing essentially like a rehearsal for the federal court trial, which would violate the double jeopardy prohibition. And so both Thomas and Roberts questioned, "why the tribe would bother to prosecute for a lower sentence, when a much longer sentence would be possible in federal court?" And there was quite a bit of discussion about that. They seemed to have a hard time grasping why tribes or tribes might want to have the ability to prosecute. Even though they are somewhat limited in, for example, the length of sentences they can impose. So they had a hard time understanding that. Sotomayor noted that there's a long history of recognizing that it's not just the source of law, but also the power to prosecute. And that the prosecutor charged the offense as the US versus Denezpi. Then Gorsuch notes that the CFR courts have historically not been friendly to tribes. And see, there you have another example of just this somewhat more sophisticated understanding of the history of Indian Law and policy that we have not necessarily seen previously on the court. And so that's a good example of that. Then Kagan says that Denezpi's approach would have a fairly simple administrative rule. Whereas she seems to suggest that the US' approach is overly focused on the law and is ignoring practical realities. Sotomayor notes that the US has previously taken the position that it could unilaterally establish a CFR court without a tribe's permission. And suggests that Justice Kagan's simple rule would be much more administrable. Gorsuch repeatedly expresses skepticism about there being no double jeopardy problem. And this is to quote Gorsuch, "the assistant secretary could create his own court, appoint his own prosecutor, tell him to report to the Department of Justice, appoint the judge, and then curate the tribal code and choose which tribal offenses can be prosecuted." So I would say that my sense is that the Justices seemed somewhat more favorable to Denezpi position. So we will see how that one comes out as well. Third is Oklahoma versus Castro-Huerta, and this is argued on April 27th, '22. And the area of law here, again, is criminal jurisdiction. The issue is whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country. And the state of Oklahoma also sought to present the question of whether McGirt should be overruled. But the court limited cert to the first issue. And so, as I mentioned at the beginning of the presentation, here's one example. There have been many other cases that the state of Oklahoma has brought, but this is one that has now actually reached the Supreme court, challenging the McGirt decision already. So in this case, Castro-Huerta was a non-Indian convicted of child neglect in Tulsa County District Court. The victim was Indian and the crime was committed within the Cherokee Reservation, which according to McGirt, the district court concluded had not been disestablished. Castro-Huerta appealed on several grounds, including that the state lacked jurisdiction to prosecute him. The state argued that it had jurisdiction over all crimes committed by non-Indian in Indian country. The Oklahoma Court of Criminal Appeals rejected the state's argument. The appellate court vacated and remanded with instructions to dismiss. And so the state appealed to the US Supreme Court. A little bit of law to be aware of here, the General Crimes Act, which is a federal statute, gives federal authority to prosecute crimes by non-Indians against Indians in Indian country. And so the state argues that that statute does not preclude it from having concurrent authority. So in their merits briefs, the state argues that McGirt was a hugely destabilizing force to public safety. And it argues that federal law does not preempt state jurisdiction over non-Indians in Indian country. And it suggests applying a Bracker balancing test. And it asserts that if such a test were applied, that there would be no serious issues of tribal sovereignty because tribes lack the power to prosecute non-Indians. So a couple things to be aware of there, Bracker is a balancing test for civil cases, Bracker is a balancing test for civil cases, not for criminal cases. And the test essentially balances the interests of tribes, the federal government, and the state government to determine whether state law is preempted in a given case. And it's a very fact specific and case by case analysis. And so right away when I read that, the first thing that came to mind was that. Well, that and that it's a civil test. And the concern that this can't reasonably be applied in such cases like this. Because if you're gonna look at this in every case, there would just be no predictability. It's just, it's not administrable. So that's a concern. Castro-Huerta, for his part, argues that the General Crimes Act preempt state prosecutions of non-Indians for crimes against Indians in Indian country. And he argues that Bracker does not apply. But even if it did, it would confirm that the state lacks jurisdiction. And he also asserts that the state's practical concerns are overstated. In this case, we've got numerous amicus briefs filed on both sides. At oral argument, Sotomayor notes that the core of the power to prosecute is protection of the community, which only the tribe has an interest in. Gorsuch notes that the court has never applied a Bracker test in the criminal context. And that it would be inconsistent with our precedence. And recall that Gorsuch wrote the McGirt opinion. So essentially, this is attacking kind of his baby essentially. And so he sounds almost angry at this point and almost angrily asks why the court would not take into account the history in this country of states abusing Indian victims in their courts. He reminds everyone that the treaties promised this tribe that it would not be subject to state jurisdiction. He questions why it would be a worry to determine the Indian status of victims, if that also has to be done for defendants. Because one of the things the state argued was, well, it's such a hassle to determine the Indian status of the victim, we shouldn't have to do that. And Gorsuch kind of says, well I mean, you have to do it anyway for the defendants, what's the big deal? And then Breyer suggests that Oklahoma could ask Congress to provide extra prosecutorial and judicial resources. Because one of the things the state has argued is that the federal government is not holding up its end of prosecuting enough crimes. And is somewhat limited in its ability to prosecute, fully prosecute enough crimes. And so Breyer also notes that there are 49 other states, and that these particular crimes are prosecuted in federal court there. And so also notes that this decision will impact the rest of the country as well. And Sotomayor characterizes this as an unfunded mandate to 49 other states to take on the responsibility that they had a choice to take on, originally under Public Law 280, and most of them did not want. And says, you're creating chaos across the country. Kavanaugh even notes that "several states have renounced the very kind of authority you thrust upon them though, haven't they? Then Kagan asks, is there concurrent jurisdiction in federal enclaves? The General Crimes Act essentially extends this law of federal enclaves to Indian country. And so she's asking, what is the situation then in federal enclaves? And she suggests that the more natural reading of the General Crimes Act is that it's the exclusive law of the federal government. And she says, "I'm sorry, but this court has indicated six times that you are wrong." "Congress has indicated that you are wrong, the executive branch has said you're wrong in all but one decade." So I think we can fairly easily see where some of these Justices are leaning. But then we also see where some of the other ones are leaning. So even though Kavanaugh did have the previous point I noted, then later on he suggests that ruling against the state would hurt Indian victims because there's a deficit in federal enforcement. And he says, "I'm not sure how Indian victims can be harmed by having more prosecutorial authority to fill a gap in Oklahoma where crimes are not being prosecuted against Indian victims, at least now." And Alito later asks sort of the same thing in different words. And so here, again, they're just having this hard time grasping why tribes might not want state courts prosecuting tribal members. And they just cannot seem to grasp that, even though Gorsuch has already explained it in this particular oral argument. But they just are having a hard time wrapping their minds around that apparently. Roberts then asks, "where do you get any notion of the preemption of state jurisdiction in the General Crimes Act? So I think my sense of this oral argument was that Gorsuch, Sotomayor, Kagan, and Breyer did not seem receptive to the state's position. Alito, Kavanaugh, and Roberts seemed more receptive to it. Thomas and Barrett were fairly quiet. And so it's hard to say which way this one will come out. I think it will be close, there certainly seem to be more apparent positions in this case. And I do think that barring something outrageous happening in Ysleta, like an overruling of Cabazon or something like that, God forbid, that this is likely to be the court's most important Indian Law decision this term. So this will be really the one to watch, I think. Finally, the fourth case in which cert is pending, and this is actually a consolidation of several cases, but it's Haaland versus Brackeen. And opening briefs are due in a few days, here on May 26th. And then response briefs will be due August 5th. And the oral argument has not yet been scheduled. The area of law involved here is the Indian Child Welfare Act. And this decision at the Court of Appeals was sort of a monster decision. It's super long, super complex. Multiple, multiple issues. And so this is gonna be a challenging one, I think. But the issues at the Supreme Court will be whether various provisions of the Indian Child Welfare Act or ICWA, namely the minimum standards of Section 1912, A, D, E, and F. And those are removal provisions, so the provisions regarding removal of Indian children from homes. The placement provisions of Section 915 A and B. So the provisions regarding placement of Indian children in either foster homes or other facilities, et cetera. And the record keeping provisions of Sections 1915 and 1951A violate the anti-commandeering doctrine of the 10th Amendment. Second, whether the individual plaintiffs have Article Three standing to challenge ICWA's placement preferences for other Indian families and for Indian foster homes. And three, whether section 1915 and A3 and B3 are rationally related to legitimate governmental interests and therefore consistent with equal protection. And so this is really of concern. I mean, this case is going to be extremely significant. And I noted earlier that Justice Alito is already asking questions about essentially equal protection. And so there are significant concerns, I think, about how this case will develop and ultimately turn out. Because it could have really significant implications for Indian Law as a whole really, depending on the way it comes out. So this case is another one to watch. But it's still in, at least at the Supreme Court, in its very early stage. And so I've not delved into it beyond that here. But that'll be, I would imagine, the subject of many CLE presentations to come once it's decided. So finally, the takeaways for this presentation. So again, the recent winning streak for tribal interests has really been remarkable. I mean, there were decades and decades of dismal losses. And then suddenly there are these nine cases in a row in which tribes prevail. And so that's quite remarkable. And I would say that Cougar Den, Herrera, and McGirt especially have breathed new life into treaty rights cases. So that's significant and important. McGirt is particularly significant and will be cited for decades to come. After the loss of Justice Ginsburg though, it's uncertain whether this winning streak can continue. And also the court's approach to issues other than treaty rights is still uncertain, because we just haven't seen the broad diversity of Indian Law issues in these nine decisions. But Cooley, and I think also the shifts in some Justices' approaches, at least give some reason to hope that tribal interests can continue to prevail. And recall that Cooley was a unanimous decision of the court, and so that's significant. And really, I think these cases that are currently at the Supreme Court are gonna provide some indication. So we will see how these cases come out. And I think that will give us a pretty good indication of whether this winning streak can continue. Or whether things are going to revert back to sort of the dismal days of the past. And so let's hope for the best. And I thank you for joining me today. And we will be keeping an eye out for those decisions, and look forward to potentially speaking about them at another time in the future. Thank you, goodbye.

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