Taxation And Regulation
Canby: Chapter 9
Pevar: Chapter 10
American Government Review
Sources of Law
There are several sources of law in the United States:
Case law – court interpretations of the law
We will be discussing all of these sources in this class.
The following is a review of the roles and functions of the three governmental branches. We will be addressing topics this semester that involve all three branches.
The three branches of government are: Executive, Legislative and Judicial. The role of the Legislative branch is to create law through the passage of statutes. The role of the Judiciary is to interpret law and the role of the Executive is to implement law.
Congress is comprised of the House of Representatives and the Senate. The House of Representatives has 435 members. The Senate has 100 members (2 from each state).
In California, the legislative branch is comprised of the Senate, with 40 members, and the Assembly, with 80 members. (As you will see during the semester, the state plays a very limited role in Indians affairs).
The President heads up the executive branch of the federal government. Beneath the President, are numerous federal agencies, such as the EPA, Dept. of Interior and the Bureau of Indian Affairs. (The Bureau of Indian Affairs is an agency within the Dept. of the Interior).
At the state level, the governor heads up the executive branch and also has numerous agencies beneath him.
Republicans hold a majority in both the Senate and the House of Representatives, and the current President is Republican.
Does it make a difference which political party a political representative is from? Yes. The Democratic Party generally supports taxation, regulation and social programs while Republicans support lower taxes, particularly for corporations and the highest tax brackets, less social spending and less federal regulation. It has been said that the Republican Party represents the wealthy. This is primarily due to their emphasis on reduced social spending, such as subsidized housing and welfare.
When voting takes place on Capitol Hill, most politicians are expected to follow party lines. As you will see, politics is not a pretty business, hence the old adage: there are two things that you don’t want to see made - sausage and law. (In this class, we will not look at sausage, but we will be looking at law).
In addition, the president makes federal judicial appointments, but these must be confirmed by the Senate. This gives the Senate power to block appointments. This is a ploy that was used by the Republican Senate during the Clinton administration to ensure that Democratic judges were not appointed.
There is an increasing number of Indian Republicans, but since becoming U.S. citizens, Indians have been predominantly Democrats. Why are there now more Indian Republicans? Some tribes have increasing resources and depend less on government grants to provide governmental infrastructure. These resources have also resulted in little or no need for welfare and similar social programs for tribal members. This has occurred on reservations that previously suffered from severe poverty. This changes the needs of both the tribe and the individual, and often changes their political ideology.
Some of you may remember the cartoon that featured a bill on the capitol steps, and sang a catchy little tune about how laws are made. If you don’t, that’s okay, I’ll give you my version – but I’m sorry there is no song to accompany this.
Laws start as bills and are launched by a committee that addresses that type of bill. For example, the Senate Select Committee on Indian Affairs addresses all Indian issues in the Senate (The House Resources Committee addresses Indian issue in the House of Representatives). A bill must be authored by at least one legislative representative, and is often sponsored by more than one. (The ideas belong to the representatives, but the bills are actually written by a department of the government, who do nothing but write laws).
If the committee passes the bill, it then goes to the full legislative body. For example if the Senate Select Committee on Indian Affairs passed a bill, it would then be heard on the floor of the Senate. If the Senate passes it without changes, it then goes to the House of Representatives, where it once again must go to a committee before being heard on the floor. If any changes are made to the bill while in the House of Representatives, it must return to the Senate committee, then the Senate floor for approval of those changes. This process can keep bills bouncing back and forth for quite some time before a statute is actually passed, and the final version of the bill often has little in common with the original bill. Once Congress passes a bill, it must be signed into law by the President. If the President vetoes a bill, it requires a 2/3 vote of Congress for the bill to become law. It is therefore very difficult for a bill to become law without the consensus of the President.
When you read a bill, you can tell where it originated by the letters preceding the bill number. If it begins with “S” it originated in the Senate. If it begins with “HR”, it originated in the House of Representatives.
Similarly, state bills begin with “SB’ if they originated in the Senate, and “AB” if they originated in the Assembly.
The role of the Judiciary is to interpret the law. Keep this in mind as the semester proceeds. At times it may seem that the judiciary has lost sight of their role.
The federal judicial system consists of three levels. All cases are first heard in the District Court. If a party is not happy, he or she may appeal to the Court of Appeals for the district in which the original action was heard. There are 11 appellate judicial districts, known as circuits. In California, we are in the 9th Circuit. Any decisions made by the 9th Circuit are only valid law in our region. There are many times when different circuits come up with conflicting opinions, and therefore, conflicting law.
If a party is unhappy at the appellate level, they can apply to have the case heard by the U.S. Supreme Court by filing what is know as a petition for certiorari. (There may be footnotes or citations to cases throughout the semester that read “cert. denied”. This means that the Supreme court refused to hear the case). The petition is simply a request for the Supreme Court to hear the case. The U.S. Supreme Court is under no obligation to hear cases, and takes only those cases that they want to hear. They hear only cases involving areas of federal law (as opposed to state law). They are suppose to take all cases in which there is a conflict among the appellate courts, but this doesn’t always happen. (The current Supreme Court has taken fewer cases than any court in history).
The judiciary is not considered a political body, but remember the President appoints Supreme Court justices and the appointments are ratified by the Senate. Presidents tend to select justices that have similar political views. Once appointed, the justices serve for life, or retirement whichever comes first. Thus, the President’s political views can carry over into the courts long after he has left office.
Many of the current justices were appointed by conservative Presidents. We therefore have a conservative court, which supports state’s rights and has not been particularly kind to Indian interests. (A recent study indicated that the current U.S. Supreme Court upholds criminal rights more often than it upholds tribal rights).
What does it take to have political power? Money. Political campaigns are very expensive, and most candidates are in need of funds. It is illegal to offer a large campaign contribution (or a small contribution) in exchange for a vote on a specific issue. It is not illegal, however, to offer a campaign contribution and at some later time, ask for a vote on a specific issue. The end result is that money buys political power so gaming tribes are often politically powerful.
Keep these concepts in mind as we move forward throughout the semester.
What is an Indian Tribe?
A tribe is a group of Indians recognized as constituting a distinct and historically continuous political entity for at least some governmental purposes. There are both federally-recognized and non-recognized tribes. Federal recognition allows tribes to build a governmental infrastructure and entitles tribes to federal grants for medical services, housing, etc., but not all federally-recognized tribes have land. You will see when we discuss termination, that in the 1950s many tribes lost their land and still remain landless.
Federal recognition may arise from a treaty, statute, executive order, administrative order, or from a course of dealing with the tribe as a political entity. The BIA determines which tribes will be recognized, but it was not until 1978 that they promulgated a set of rules setting forth the requirements for recognition. Prior to 1978, this was done on a case by case basis. Since then, bills have been introduced in Congress, at various times, which would take this task from the BIA and give it to an independent commission appointed by the President. Congress has thus far not passed any such bill and it still remains within the domain of the BIA.
Among the requirements for recognition are that:
1. The tribe must have a government that exercises power over its members; and
2. The tribal government continued to function as an autonomous entity throughout history until the present; and
3. The tribe has been identified as an American Indian entity on a substantially continuous basis since 1900 (This can be demonstrated by using books, magazines, anthropologists, historians, etc.); and
4. The tribe occupies a specified territory or inhabits a community viewed as distinctly Indian.
If the BIA does not follow their own criteria, a tribe seeking recognition can appeal to an administrative board, then to federal court. There is no right to contest the criteria for recognition – only the application of the criteria to a particular tribe.
Example: (The following example is completely fictitious and is used for demonstrative purposes only). The First People’s Tribe was a federally-recognized tribe in Orange County. In 1950, Orange County began to flourish and the tribe began to intermarry. By 1960, there was little interest in tribal affairs. The reservation was leased to Disneyland and the tribal members disbursed throughout the community. In 2000, Proposition 1a was passed, which allows Indian tribes to have casinos. Descendants of the First People’s Tribe now want to re-establish their tribal government and open a casino. Should the tribe still be federally recognized?
No, the tribe would no longer have federal recognition. Once a tribe receives recognition, it can lose recognition only by:
1. Voluntarily ceasing to function as a government; or
2. Congress can decide to no longer recognize the tribe.
There are a few cases in New England where a state recognized a tribe but the federal government did not. The states recognized tribes, took their land and gave tribes reservations and financial assistance as a reward for siding with colonists in 1776. Some tries later petitioned for, and some have received, federal recognition.
There have been many cases where the federal government has placed more than one tribe on a single reservation and recognized this new tribe by another name. For example, the Blackfeet Tribe is comprised of the Blackfoot, Bloods and Piegans – three distinct tribes. Their northern counterparts remain separate tribes in Canada.
Who is an Indian?
Many of you are of mixed ancestry. Do you know exactly what fraction of ancestry you have from each nationality? Most Indians know exactly how much “Indian blood” they have because it is required for various purposes.
The textbooks discuss four definitions of “Indian”.
1. Tribal requirements
2. Federal jurisdiction
3. General meaning
4. Census Definition
Tribal enrollment is specifically within the jurisdiction of the tribe itself. Blood quantum required for tribal enrollment varies from tribe to tribe. Some tribes, such as the Cherokee, have no blood quantum requirement while others, such as the Mississippi Choctaw require that members have ¾ Indian blood quantum. Other tribes have recently introduced a requirement that an individual must live on the reservation to become enrolled.
When there is no blood quantum requirement, an applicant for enrollment must be able to trace their ancestry to a tribal member, and in some cases the applicant’s mother or father had to be an enrolled member of the tribe.
A tribe can change its requirements for enrollment at any time that it chooses. For example, Santa Clara Pueblo required that the mother be an enrolled member of the Pueblo for her children to be enrolled. The tribe later changed the requirement so the father had to be an enrolled member. Mrs. Martinez had a child and attempted to enroll her child. The child had the requisite blood quantum, but since the father was not an enrolled member, the child was ineligible for enrollment. (Mrs. Martinez sued the tribe in federal court in an attempt to get her child enrolled, but she lost).
To receive government services, in many cases, but not all, there is a requirement of ¼ Indian blood from a federally-recognized tribe. The federal government does not consider members of non-federally-recognized tribes to be Indians. As we will discuss in more detail later, in the 1950s, Congress terminated many tribes. When the tribes were terminated, that is, no longer federally-recognized, the individual tribal members were no longer considered Indians by the federal government, and were no longer eligible for federal services.
Enrollment does not always determine jurisdiction. Often eligibility for enrollment is enough to consider an individual a “member” of a federally recognized tribe for purposes of application of federal law.
If you have 1/252 degree of Indian blood, does this make you an Indian under the general definition?
The general definition of an Indian is that:
1. The individual must have some degree of Indian blood; and
2. The individual must be recognized as an Indian by the relevant community.
In my example, you have met part one of the test because you have some Indian blood. Part two depends on how the community recognizes you. If you are enrolled in a tribe with no blood quantum requirements, you have clearly fulfilled the second part of the test. If you are not enrolled in a tribe, it may be a harder matter to prove and your success may depend on the purpose for which you are using the identification.
One question for you to ponder is this: “Indian blood” defines who is and is not an Indian so if an individual is ¼ Indian and receives a blood transfusion from a non-Indian, is he still ¼ Indian?
Does the census definition accurately reflect who is or is not an Indian?
The census considers anyone to be an Indian who claims to be an Indian. This often results in large discrepancies between the other definitions of an Indian and the census definition. Indians living on the reservation often do not respond to census requests, while other individuals who have some Indian blood, but are not enrolled in a tribe, may report themselves as an Indian to census takers. For example, the 1990 census reports that the Blackfeet tribe has 32,234 members, while the tribe reports approximately 14,500 for the same period.
Indian Country will become more relevant later in the semester as we talk about Indian land holdings and jurisdiction.
Tribal Sovereignty/P. L. 280
History of Tribal Sovereignty
Sovereignty is defined as the inherent right to self-govern. It is sovereignty that sets Indians apart from other minority groups, and it is sacred among Indians.
A dichotomy existed from the time of the initial contact with Europeans. European powers believed in the discovery doctrine. They believed they had rights to the whole world, even those areas inhabited by indigenous peoples, subject only to an earlier European claim, because only European Christians could own land. At the same time colonial powers, and later the federal government, dealt with the Indians through the use of treaties – agreements between sovereign powers.
The first treaty recorded between English colonists and North American Indian confederacy is the 1608 treaty between the Jamestown colony and the Indian emperor, Powhatan. From this early point in the relations between Indian tribes and European colonists, one can see that treaty relations involved a process of cultural as well as diplomatic negotiation. In these early treaties, the scope of ill-defined concepts, such as tribal sovereignty, and novel institutions, such as reservations, were first tested and practiced. Much of the theory and practices of our modern federal Indian law is generated out of this early treaty-making era.
A law was passed in 1790 known as the Trade and Nonintercourse Act aka Trade and Intercourse Act. (The law has nothing to do with sex). This law states that Indians cannot transfer land except to the federal government. Two colonists (land speculators), by the name of Johnson and MacIntosh each received title to land. One received title from the federal government and the other received an earlier title from a tribal chief. To complicate the matter, the title from the tribal chief had been given before the American Revolution, so England was still in charge of land transfers. In 1823, the two took the case to the Supreme Court. The court said that Indians have not completely lost their land rights, what they have is the right to occupy the land. When they cease to occupy the land, their rights to the land are extinguished. (How would this affect a tribe, such as those in the plains, that subsisted by following the buffalo? A prediction would be that if they leave the land, their rights cease at that point).
In 1831 and 1832, two other cases were decided by the court. (These cases and that discussed above have become known as the Marshall trilogy, because they are three landmark decisions authored by Chief Justice Marshall). In Cherokee Nation v. Georgia, the Cherokee Nation argued that it was a foreign nation. Even though Cherokee Nation v. Georgia was not decided by the Supreme Court due to lack of jurisdicition, it remains a pivotal case in federal Indian law. The Court conncluded that Indian tribes are not foreign , at least as that term is used in the U.S. Constitution, in describing the Court's original jurisdiction over controversies between a state (Georgia) and foreign states (tribes). Rather, Justice Marshall's opinion for the Court holds that tribes are "domestic dependent nations," whose relations with the U.S. resemble that of a "ward to his guardian." This language gives birth to the "Trust Doctrine" in federal Indian law. This fundamental doctrine governing the federal-tribal relationship holds that the U.S. has a trust responsibility to act on behalf of Indian tribes.
The last of the Marshall trilogy, Worcester v. Georgia, involved several missionaries attempting to Christianize the Indians. Georgia passed a law that required any non-Indians entering Indian Country within the state to receive a permit from the state of Georgia. The missionaries had no such permit. At the request of the tribe, the missionaries refused to get a permit, to allow the Supreme Court to decide if the tribe was on equal footing with the state. As the case wore on, and the missionaries were sentenced to perform hard labor for their crimes, several of the missionaries cooperated with the state. By the time the case was decided there were only two missionaries who faced a sentence of hard labor. The U.S. Supreme Court accepted the case and decided that tribes are on equal footing with the state and that state laws have no force and effect in Indian Country.
The court’s decision in Worcester v. Georgia has been diluted over the years. In a 1973 case, McClanahan v. Arizona Tax Commission, the U.S. Supreme Court decided that state law can intrude into Indian country only if two conditions are met:
1. There is no interference with tribal self-government and
2. Non-Indians are involved.
Tribal Jurisdiction Over Non-Indians
Canby speaks of the “Montana Rule” which applies when looking at tribal powers over non-Indians. Tribes have power to regulate non-Indian conduct, on non-Indian land within reservation boundaries, if
1. The non-Indian enters into consensual relationships with the tribe or its members; or
2. The conduct threatens or directly affects the tribe’s political integrity, economic security, or the health or welfare of the tribe.
For example, if the telephone company provides telephone service on the reservation, they must comply with tribal law, even if the service is provided to a non-Indian on his own land, if his land is within the exterior boundaries of an Indian reservation. (As a practical matter, if tribal law is too restrictive, the telephone company may choose not to conduct business on the reservation).
Congressional Power Over Tribal Sovereignty
Congress has what is known as plenary power over Indian affairs. (This means plenty of power). The U. S. Constitution is the source of Congressional power and serves as its only restraint, subject to interpretation by the courts.
Article I, Section 8, of the U.S. Constitution is known as the “Indian Commerce Clause” and states that “The Congress shall have the power…to regulate commerce with the foreign nations, and among the several states, and with the Indian tribes.”
In the late 1800s, Congress passed a law known as the Major Crimes Act, which gave the federal court jurisdiction over Indian vs. Indian crimes, which it did not previously have. This law was challenged in 1886, in U.S. v. Kagama. Kagama was a member of the Hoopa tribe in Northern California. He was tried for murder under the Major Crimes Act. He challenged Congress’ power to pass the act, claiming that it had nothing to do with the regulation of trade. The United States made an interesting argument in this case. They argued that if the federal government did not have the authority to punish murderers of Indians, even other Indians, then there would be less trade to regulate. The court did not buy this argument, but they did decide that the federal government had the power to pass the law, because if the federal government didn’t have this power then only the tribes would have the power to punish murder of one Indian by another Indian. (And it certainly couldn’t be left in the hands of Indians to punish their own tribal members).
This case and an additional case, Lone Wolf v. Hitchcock, set the limits on Congressional power over Indian affairs. Lone Wolf v. Hitchcock involved an 1867 treaty with the Kiowas and Comanches known as the Treaty of Medicine Lodge Creek. Terms of the treaty stated that it could only be amended by a vote of ¾ of the adult Indian males occupying the land set aside for the tribes. Prior to the treaty, the tribes had sustained themselves by hunting buffalo. When placed on a reservation, they were forced to rely on government rations, which were insufficient, so the Indians were starving. At the same time, there was an influx of non-Indian settlers, which created a demand for more land. The Cherokee Commission, an entity created by the executive branch of the federal government, attempted to renegotiate the treaty to obtain an additional 2,150,000 acres of land from the tribes.
The government agents acquired the signatures of 456 adult males. They certified that there were 562 eligible voters, thus giving them the assent they needed to modify the treaty. A tribal roll prepared less than three months after the Commission certification showed that there were 725 adult males over the age of 18 and 639 over the age of 21, so the Commission did not have enough votes to amend the treaty.
Since fraud was committed, should the treaty amendment be valid?
The tribes sent a letter repudiating the signatures and spoke to the President, but the treaty amendment was sent to Congress for ratification. Congress investigated the matter and both the Secretary of the Interior and the Indian Affairs Commissioner asked Congress not to ratify the agreement. Congress then attached ratification of the agreement as a rider to another bill, and passed the bill.
The tribes sued to stop enforcement of the agreement. The court said that congressional power is a political power not subject to judicial control. Since Congress has the power to eliminate treaties entirely, they must presume that Congress acted in good faith. The court further reasoned that if Congress were to be controlled, it would eliminate their ability to act in case of emergency.
These decisions have given Congress virtually unfettered power over Indian affairs. The only area in which the courts have restrained Congress is when land is taken without providing any compensation.
If you are at a tribal casino and the roof falls in on you, and breaks your back can you sue?
All sovereign powers have what is known as sovereign immunity. The doctrine of sovereign immunity states that you cannot sue a sovereign without its consent. The federal government has what is known as the Federal Tort Claims Act that sets out the procedures and circumstances under which the federal government will accept liability for injuries on federal land. The state has a similar ordinance. In the case of Indian tribes, consent to suit can come from either Congress or the tribe. In the example above, you cannot sue for your injuries, unless the tribe allows you to sue. (In California, all gaming tribes must have what is known as a Tort Claims Ordinance, which says if you can sue, and procedures for doing so).
Assume in the example above, that the tribe has not waived its sovereign immunity. This infuriates you so you walk out of the tribal casino with a slot machine, valued at $10,000. The tribe sues you to recover their slot machine, so you sue them for your injuries that have resulted in $100,000 in medical bills. Can you do this?
There is a doctrine known as recoupment. Recoupment says that if a sovereign, in this case a tribe, sues you, the tribe’s sovereign immunity is waived only to the extent that they sued you. So in my example, you could only sue the tribe for $10,000 – the amount for which they sued you. If it was an old used slot machine, and they only sued you for $500, you could only counterclaim against the tribe for $500.
In 1953, during what is known as the termination era, Congress passed a law known as Public Law 83-280. The purpose of P.L. 280 was to relieve the problem of lawlessness on California reservations.
There were problems with P.L. 280 from the beginning because the federal government did not appropriate any money to repay the states for the services they were mandated to provide. At the same time, tribes resented the intrusion into their sovereignty.
P.L. 280 gave 5 states extensive criminal and civil jurisdiction over Indian Country. Alaska was added later which now makes six states where Congress imposed P.L. 280 jurisdiction without state or tribal consent. These are known as the “mandatory states.” P.L. 280 was amended in 1968 so that both tribes and the state must consent to state jurisdiction, but this only affects the imposition of state jurisdiction under P.L after 1968. The mandatory states were unaffected by this amendment. There is also a provision for retrocession – which is returning jurisdiction from the state to the tribes. The problem with retrocession is that the state must request that the federal government grant jurisdiction back to the tribes – the request does not come from the tribe itself.
Courts have diluted the grant of civil jurisdiction under P.L. 280. If you read the act literally it seems to have few limits on state jurisdiction, but Courts have stated that Congress seems to have added the civil portion of P.L. 280 as an afterthought. This is due to the lack of legislative history attached to the bill, as there usually is. Since there is no legislative history, the courts have interpreted the act as they see fit.
As Canby indicates, county and local ordinances do not apply on Indian reservations. Does this mean there is no building code on Indian reservations? Yes, building codes are county law. Unless the tribe adopts a building code, there is no building code applicable to Indian reservations. (Under the current gaming compact, a code must be adopted for casino construction).
If suit is brought in state court against an individual Indian, state law will apply, but tribal ordinances and customs have full force and effect if they are not inconsistent with state laws.