Amicus Curiae Brief — Wilkinson v. Confederated Tribes & Bands of the Yakima Indian Nation

te.

st bs ? * : 1 - ' | Pi r

a hy 7 " . A “ " , 3 J J Pa a oe

fey OF THE ARIZONA, NEVADA,

> cae?

+

StL Perens Pant D> anew, woes

of Pe RAs Sor yee oe

: eu ;

i ia =e, a9

QUESTIONS PRESENTED

1. Does an Indian Tribe have the authority to control,

through comprehensive zoning, the use of land owned by

non-members but located within a reservation’s boundaries,

under either of the following circumstances:

(a) The land has been alienated to a non-Indian, pursu-

ant to the federal Allotment Acts; or

(b) The land, originally allotted to a tribal member, has

been received through inheritance by an heir of such

member, but the heir, by reason of insufficient blood

quantum, is not a tribal member?

2. Is it constitutionally permissible, under the Due

Process Clause of the Fifth Amendment to the United States

Constitution, for the United States acting through either the

Congress, the Executive Branch, or the courts, to adopt a

policy pursuant to which:

(a) Indian tribal governments have general civil

regulatory jurisdiction over non-member reser-

vation residents and their on-reservation prop-

erty; and

(b) Such residents have none of the rights of par-

ticipation in tribal government, as either voters

in tribal elections or as candidates for tribal

offices, enjoyed by tribal members, and, by rea-

son of their ancestry, are disqualified from ever

attaining such rights through tribal member-

ship?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................020eeeees i

INTEREST OF THE STATES AS AMICI CURIAE .... 1

STATEMENT OF THE CASE........................ 4

Bie IN, db Oe U Wie bic sccbuvodws cctccece 4

B. The Tribal Zoning Ordinance ..................... | §

C. The Rationale Of The District Court .............. 5

D. The Rationale Of The Court Of Appeals........... 7

REASONS FOR GRANTING THE WRITS ............ 8

THIS CASE PRESENTS IMPORTANT QUESTIONS OF

FEDERAL LAW AFFECTING INDIANS AND NON-INDI-

ANS NATIONWIDE WHICH HAVE NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT........... 8

A. This Case Presents Questions Regarding The Scope Of

Indian Tribal Sovereignty Which Are As Important As

Those Decided In Montana v. United States, For The

Same Reasons As In Montana .................... 8

B. The Court Of Appeals Has Completely Disregarded The

Intent Of Congress, As Embodied In The Allotment

Acts And As Applied By This Court In Montana .._ 10

C. The Indian Reorganization Act Of 1934 Did Not Repu-

diate The Policy Embodied In The Allotment Acts That

Tribes Would Have No Civil Jurisdiction Over Non-In-

ed a eee en ee ace cccedecberecces 12

D. The Understanding Of The Executive Branch Has Been

That Indian Tribes Possess No Inherent General Gov-

ernmental Power Over Non-Members.............. 15

E. £onstitutional Considerations...................... 17

ee ee tee er Seka coisas cevecpowactexs 20

APPENDIX A

A State-By-State List Of All Reservations............. A-l

APPENDIX B

Letter Dated January 26, 1988, From John R. Bolton, As-

sistant Attorney General, U.S. Department of Justice, to

I UE IE obi deccouccccpecbesentoccecs B-1

iv

TABLE OF AUTHORITIES

Federal Cases:

Burton v. Wilmington Parking Authority, 365 U.S. 715

CCHS a dacbnde bce bSedbdc Cre ceweeks encbehs edhbecdanss 18

DeCoteau v. District Court, 420 U.S. 425, at 431 (1975) . l

Garcia v. San Antonio Metropolitan Transit Authority, 469

Page

Os ae es ead ee ot 12,19

Marsh v. Alabama, 326 U.S. 501 (1946) ................ 18

McClanahan v. Arizona Tax Commission, 411 U.S. 164, at

SPE nh 6 J. oc eddies Lathede kn ones bacedexk eae ies 17

Montana v. United States, 450 U.S. 544 (1981) ....... passim

National Farmers Union Insurance Cos. v. Crow Tribe, 471

en ee ee au hae ied 3, 10, 18

National League of Cities v. Usery, 426 U.S. 833 (1976) 12

Oliphant v. Suquamish Tribe, 435 U.S. 191

GRU ki 6 6d nC he ctide KdddU KRHA NOEs 2, 3, 8, 9, 10, 12, 17

Shelley v. Kraemer, 334 U.S. 1 (1948) ................. 18

Shoshone Bannack Tribe v. FMC Corp., 14 Ind. Law Reptr.

ee ie eee Oud et 0G 006 be mct oa ees 9

Talton v. Mayes, 163 U.S. 376 (1896)............... 17, 18, 19

United States v. Wheeler, 435 U.S. 313 (1978) ......... 17

Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, at

deudthuivaed cratetbdeh Seeuss sd cle ¢ch geod 12

Williams v. Lee, 358 U.S. 217 (1959)................... 11

Statutes:

25 U.S.C. § § 1301 et. seq. (Indian Civil Rights Act).... 19

Indian Reorganization Act of 1934, 48 Stat. 984 ........ 12, 15

General Allotment Act of 1887, 24 Stat. 388............ 10

Miscellaneous:

General Population Characteristics, United States Summary,

1980 Census of Population, Bureau of the Census, Table

71, “General Characteristics for American Indian Persons

on Reservations and Alaska Native Villages.” ......... 2,8

Page

Hearings Before the Committee on Indian Affairs, United —

States Senate on S. 2755, 73rd Cong. 2nd Sess. (1934) 14, 15

H.R. 7902, 73rd Cong. 2nd Sess. (1934) .............+-- 13

“Powers of Indian Tribes,” (M-27781— 55 I.D. 14 (1934)...19

Resolution T-98-72, Amended Zoning Regulations of the

NS I ee ie cts cunneeterneen ee 5

“Wheeler-Howard Act—Interpretation,” Op. Sol. I.D. Ind.

Aff. 1917-1974, Vol. I, 484 (M-27810, Dec. 13, 1934) ...15-17

. Y | Sf eye Erle 18

IN THE

SUPREME COURT

OF THE |

UNITED STATES

OCTOBER TERM, 1987

Puitip BRENDALE, Petitioner,

v.

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, et al., Respondents.

STANLEY WILKINSON, Petitioner,

v.

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, Respondent.

County OF YAKIMA et al., Petitioners,

v.

CONFEDERATED TRIBES AND BANDS

OF THE YAKIMA INDIAN NATION, Respondent.

BRIEF OF THE STATES OF ARIZONA, NEVADA,

NEW MEXICO, SOUTH DAKOTA, UTAH,

WASHINGTON, AND WYOMING IN SUPPORT OF

PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

INTEREST OF THE STATES AS AMICI CURIAE

Each of the States submitting this brief has within it

one or more Indian reservations. On many of those reserva-

tions the “familiar forces” set in motion by the Federal Gov-

ernment in the late 1800’s and alluded to by this Court in

DeCoteau v. District Court, 4° U.S. 425, at 431 (1975), have

2

produced the expected results. Pursuant to the invitation of

the Federal Government, non-Indians have purchased land

within those reservations, have established their homes and

businesses there, and in many cases now actually outnumber

the Indian population.' We estimate the total non-Indian res-

ervation population, nationwide, to be about 350,000.? The

Yakima Reservation, involved in this case, provides a typical

example of the effects of the “familiar forces”; the non-Indian

population, about 20,000, is over four times the Indian popu-

lation.

The Yakima Reservation also provides a typical exam-

ple of the types of claims being made by the Tribes for whom

those reservations were originally set aside. The Yakima

Tribe here claims that its inherent tribal sovereignty includes

within it not only the power of self-government, i.e., govern-

mental power over its own members, but also a much broader

power, i.e., governmental power over non-members and their

property. The Tribe further claims that the exercise of such

power over non-members and their property preempts the

exercise of any similar power by State and iocal governments.

In this case, the court below upheld the tribal claim of

regulatory power over non-members and their property, and

vacated the district court’s ruling which had rejected the

tribal claim of preemption.

The interest of the amici States in this case is thus two-

fold. First, there is the same interest which prompted the

participation of the Washington Attorney General as amicus

curiae in Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978),

‘A state-by-state list of all reservations is attached as Appendix A.

This list also contains the total population and the Indian population for

each reservation. It is compiled from General Population Characteristics,

United States Summary, 1980 Census of Population, Bureau of the Census,

Table 71, “General Characteristics for American Indian Persons on Reser-

vations and Alaska Native Villages,” pp. 1-300 through 1-303. (We have

excluded data for the Alaska Native Villages, which do not have the legal

status of reservations.) The classification in this table, it should be noted,

allows only an approximation of tribal and non-tribal members, since some

Indians may not be members of the tribe on whose reservation they reside.

Also, some non-members may be residing on Indian land as lessees, rather

than on their own land.

"See Appendix A for the data from which this estimate is made.

3

and which similarly prompted the Montana Attorney Gen-

eral to resist the jurisdictional claims of the Crow Tribe in

Montana v. United States, 450 U.S. 544 (1981). Simply put,

that interest is in protecting a large group of the State’s citi-

zens from the power of a tribal government in which they

cannot participate in any manner and the actions of which,

however arbitrary, are not subject to any effective judicial

checks. After Oliphant, to be sure, protection exists for such

citizens in the criminal area. But at least within the Ninth

Circuit, little, if any, protection exists in the civil area. These

citizens can avoid the uncontrolled power of tribal govern-

ments only by giving up their present homes and businesses

and moving off the reservation.

Second, if the decision below is not reversed, we fully

expect even more claims of preemption by tribal govern-

ments of state and local governmental powers over non-mem-

bers, not just in the area of zoning, but in broader areas such

as environmental controls, taxation, and general business

regulation.°

Non-members living and doing business within our na-

tion’s Indian reservations thus face a disturbing prospect.

Tribal governments in which these non-members have no

voice and over which there are no effective political or legal

checks may be increasing the scope of their powers, and may

thus be gradually replacing, as a practical matter, those gov-

ernmental bodies in which the non-members do have a voice

and over which there are effective checks.

Further, as this shift in governmental power takes place,

from the States and their local governments to the 268 In-

dian Tribes within this country, there will inevitably be a

type of balkanization of government within each State, and a

consequent breakdown of the power of each State over its

own non-Indian citizens.

We cannot countenance such a development. Nor should

this Court.

°A third interest should not be overlooked. State and local govern-

ments are themselves property owners within reservations, using that

property to provide educational and other governmental services for the

Indian and non-Indian reservation residents. See, e.g., National Farmers

Union Insurance Companies v. Crow Tribe, 471 U.S. 845 (1985).

4

STATEMENT OF THE CASE

Because this brief is submitted in support of three sepa-

rate petitions for a writ of certiorari, all of which involve the

same underlying proceedings, a brief history of those pro-

ceedings may be useful in showing the relationship between

the various petitions. We shall also add a word regarding the

tribal zoning ordinance which is here in controversy, and the

rationales used by the district court and the court of appeals

in reaching their decisions.

A. Proceedings Below.

The Confederated Tribes and Bands of the Yakima In-

dian Nation (hereafter “Yakima Tribe”) brought two sepa-

rate actions in federal district court, the first involving what

is commonly called the “closed area” of the Yakima Reserva-

tion, and the second involving what is commonly called the

“open area.” Following the usage of the courts below, we shall

refer to the first action as Whiteside I, and she second action

as Whiteside II.‘

In both district court actions, Yakima County and its

commissioners were joined as defendants. The Tribe, as

plaintiff, joined as well various non-member landowners who

were contemplating development of their land. Petitioner

Philip Brendale, who owned land in the closed area, was thus

joined as a defendant in Whiteside I, and Petitioner Stanley

Wilkinson, who owned land in the open area, was joined as a

defendant in Whiteside II.

In Whiteside I, the district court held that the Tribe

had zoning authority over all land within the closed area,

including land owned by non-members such as Mr. Brendale,

and that this tribal authority was exclusive of any authority

in the county. In Whiteside II, in contrast, the district court

held that the Tribe had no such authority over land within

the open area that was owned by non-members, such as Mr.

Wilkinson, and that exclusive zoning authority over such

land rested with the county.

‘(Jim Whiteside, a county commissioner, was the first of the individu-

ally named -defendants in each action.)

5

Mr. Brendale, though not the county, appealed the rul-

ing in Whiteside I. The Tribe appealed the ruling in White-

side II. The court of appeals affirmed the district court’s

ruling in Whiteside I, but reversed the ruling in Whiteside II,

for reasons which we shall examine shortly. Thus, through

Mr. Brendale’s petition, review is sought of the court of ap-

peals’ ruling in Whiteside I; and through the petitions of Mr.

Wilkinson and the County, review is sought of the ruling in

Whiteside II. By this brief, we urge review of both rulings.

B. The Tribal Zoning Ordinance.

As pointed out by the court of appeals, only the follow-

ing uses are permitted in the closed area:

Harvesting wild crops;

Grazing, timber production or open field crops;

Hunting or fishing by Tribal members;

Camping in temporary structures;

Tribal camps for the education and recreation of

tribal members;

Construction and occupancy of buildings and struc-

tures constructed by the Yakima Nation or the Bu-

reau of Indian Affairs to be used in furtherance of

tribal resources;

7. No building or other permanent structure or any ap-

purtenances thereto other than those allowed in Sec-

tions 1-6 above shall be allowed in this district;

Yakima County Pet. 4-A--5-A. (Quoting from Resolu-

tion T-98-72, Amended Zoning Regulations of the

a — Nation, hereafter “Tribal Ordinance”,

ec. 23.

Petitioner Brendale’s use of his 160 acres in the closed

area is thus severely restricted.

Se FFrP?rr

C. The Rationale Of The District Court

In Whiteside II, the district court, as we have noted,

found the tribal ordinance to be invalid as applied to the

open area, and as applied specifically to the property of Mr.

Wilkinson. Focusing upon the criteria for a valid exercise of

tribal civil jurisdiction over non-Indians on their own lands,

6

as established in Montana v. United States, 450 U.S. 544

(1981), the court entered inter alia, the following findings of

fact:

* * *

10. The trust land in the vicinity of the Wilkinson

property is not a significant source of food for members

of the Yakima Nation. The proposed Wilkinson devel-

opment does not threaten a food source of members of

the Yakima Nation.

11. Similarly, the Wilkinson project does not

threaten the economic security of the Yakima Nation.

The plaintiff has not demonstrated how Yakima Coun-

ty’s regulation of the land use of Wilkinson’s “Open

Area” 7 ita in any way places its economic security

in jeopardy.

12. In contrast to the “Closed Area”, the “Open

Area” is not of a unique religious or spiritual signifi-

cance to the members of the Yakima Nation. The coun-

ty’s regulation of the Wilkinson property will not

significantly infringe on those cultural values.

13. While the court is aware of the special role

which land and other natural resources play in the cul-

ture of the Yakima Indian Nation, the court finds that

the county’s exercise of its land use regulatory jurisdic-

tion over the subject property does not threaten those

aspects of the tribal culture.

14. The Yakima Nation’s political integrity will

not be diminished. The County’s regulation of Wilkin-

son’s fee land will not hinder the Yakima Nation from

exercising its regulatory jurisdiction over the trust land.

15. In sum, the court finds that Yakima County’s

exercise of its regulatory jurisdiction over the at-issue

Wilkinson property does not threaten and will not have

a direct effect on the Yakima Nation’s political ew:

its economic security or its health or welfare. Yakima

County Pet. 30-A--31-A.

In his oral opinion the district court judge made it un-

mistakably clear that he thought more was at stake than just

a question of jurisdiction. He stated:

In utilizing the Montana standards, I am not unmoved

by the desire of the Tribe and the Members thereof to

have its treaty lands returned to it, but that does not, in

my opinion, justify my finding that such a desire consti-

7

tutes a threat to the political integrity, the economic

security, or the health or welfare of the Tribe and its

Members. Yakima County Pet. 50-A.

Again:

I am unable to find that the desire, the sincere desire of

the Tribe and its Members to have the deeded land re-

stored to it is such as interferes with the political integ-

rity, the economic security, or the health or welfare of

the Tribe and its Members. Once again, that is a matter

for the Legislative Branch, not the Judicial Branch to

determine. Yakima County Pet. 51-A.

And again:

I suggest to the Yakima Indian Nation that despite your

sincere belief that all of the land within the exterior

boundaries should be returned in accordance with the

Treaty of 1855, that that may be some time in coming. I

think you recognize that that is a matter for the Legisla-

tive Branch of this Government to decide; to-wit, Con-

gress. Yakima County Pet. 52-A.

In that same oral opinion, the judge also explained why

his ruling in Whiteside I was just the opposite from that in

Whiteside II. He stated:

While this case [Whiteside II] also involves land within

the exterior boundaries of the Yakima Indian Reserva-

tion, the factual circumstances in the two cases are strik-

ingly different. They are as different, in my opinion, as

night and day. Yakima County Pet. 44-A.

The judge then went on to point out the different popu-

lation and land ownership patterns in the open and closed

areas, and the different degrees and types of interests of the

county in each. See Yakima County Pet. 44-A--47-A.

D. The Rationale Of The Court Of Appeals.

In reversing the district court’s ruling in Whiteside II,

the court of appeals ignored entirely the findings of the dis-

trict court, quoted above, which had applied the Montana

criteria and which had found, under those criteria, no factual

justification for the Tribe’s claim of zoning jurisdiction over

non-Indians. Instead, the court of appeals first determined

that Indian tribal sovereignty includes zoning power, at least

8

over tribal members. See Yakima County Pet. 10-A. It then

determined that extension of this power to non-members and

their lands was necessary in order to fully effectuate zoning

power over tribal members. In the words of the court:

If we were to deny the Yakima Nation the right zone to

fee land owned by non-Indians, we would destroy their

capacity to engage in comprehensive planning, so funda-

mental to a zoning scheme. This we are unwilling to do.

Yakima Pet. 13-A.

With this ruling, a major underpinnning for upholding

the County zoning ordinance as applied to the open area was

eliminated. The court of appeals did not, however, invalidate

the County ordinance then and there, but remanded the

question of its validity to the district court, for further weigh-

ing of federal, tribal, and county interests in the open area.

This ruling in Whiteside II also, of course, made affirm-

ance in Whiteside I a foregone conclusion.

REASONS FOR GRANTING THE WRITS

THIS CASE PRESENTS IMPORTANT QUES-

TIONS OF FEDERAL LAW AFFECTING INDI-

ANS AND NON-INDIANS NATIONWIDE

WHICH HAVE NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT.

A. This Case Presents Questions Regarding

The Scope Of Indian Tribal Sovereignty Which Are

As Important As Those Decided In Montana V.

United States, For The Same Reasons As In Mon-

tana.

We begin with Oliphant v. Suquamish Tribe, 435 U.S.

191 (1978), in which the Court held that Indian Tribes have

no inherent criminal authority over non-Indians. The impor-

tance of that decision, and the scope of its effect, is shown by

Appendix A, which is a listing, state-by-state, of all the In-

dian Reservations identified in the 1980 Census. According to

that census data, there are 268 reservations, located in 33

States. The total population on those reservations is about

682,000, of which, as we have already noted, slightly more

than half, about 350,000, are non-Indian. These non-Indians,

9

together with an undeterminable number of non-Indians who

might be temporarily within a reservation for one reason or

another, are now protected by the Oliphant decision.

But does the rationale of Oliphant extend to the civil

side, so that its protection applies to tribal assertions of civil

jurisdiction as well? In Montana v. United States, 450 U.S.

544 (1981), the Court answered that question in the affirma-

tive, and on that basis invalidated an effort by the Crow

Tribe to regulate non-Indian hunting and fishing on non-

Indian lands.

The Court stated:

Though Oliphant only determined inherent tribal au-

thority in criminal matters, the principles on which it

relied support the pace proposition that the inherent

sovereign powers of an Indian tribe do not extend to the

activities of nonmembers of the tribe. Montana, 450

U.S. at 564-565.

Again, the data presented in Appendix A show the potential

scope and consequent importance of Montana.

Not only is the same general group of citizens adversely

affected by the decision below, but the risk to which they are

now exposed is, if anything, even more serious than that in-

volved in Montana. While a Tribe may not, under Montana,

prohibit or otherwise regulate the use of land such as Mr.

Wilkinson’s and Mr. Brendale’s for hunting or fishing, it may,

under the decision below, regulate and even prohibit the use

of that same land for just about anything else. Further, under

the rationale of the court of appeals, tribal authority over

non-Indians on non-Indian lands would not be confined just

to zoning. It could include business regulation, taxation, envi-

ronmental controls, or any other area of governmental power,

just so long as a Tribe can make a plausible argument that

the exercise of such power would promote the tribal welfare.

See, e.g., Shoshone Bannack Tribe v. FMC Corp., 14 Ind.

Law Reptr. 6046 (1987) (Tribal ordinance controls non-In-

dian company’s hiring policies, despite conflict between ordi-

nance and collective bargaining agreement.)

For these reasons, the questions presented for review

here are no less important than those decided in Montana.

10

B. The Court Of Appeals Has Completely Disre-

garded The Intent of Congress, As Embodied In The

Allotment Acts And As Applied By this Court In

Montana.

In denying to the Crow Tribe the authority to regulate

hunting and fishing by non-Indians on non-Indian lands, the

Court in Montana relied not only upon the Oliphant ration-

ale, but also upon the policies of Congress, as embodied in

the Allotment Acts of the late 1800s, pursuant to which the

non-Indians had obtained those lands in the first place. See,

e.g., the General Allotment Act of 1887, 24 Stat. 388. As

stated by the Court:

There is simply no suggestion in the legislative history

that Congress intended that the non-Indians who would

settle upon alienated allotted lands would be subject

tribal regulatory authority. Indeed, throughout the con-

gressional debates, allotment of Indian land was consist-

ently equated with dissolution of tribal affairs and

jurisdiction. [citations omitted] It defies common sense

to suppose that Congress would intend that non-Indians

purchasing allotted lands would become subject to tribal

jurisdiction when an avowed purpose of the allotment

policy was the ultimate destruction of tribal govern-

ment. * * * Montana, 450 U.S. at 559, note 9.

What this Court viewed as “common sense” in Montana

proved to be no obstacle to the court of appeals in reaching

the result it desired in this case. Even more importantly, foc-

using upon the intent of Congress as embodied in the allot-

ment acts puts in sharp relief what is really at stake here. As

explicitly recognized by the district court, the Yakima Tribe

is attempting to reverse and undo the effect of the allotment

policy, and thus remove from non-Indians precisely the pro-

tection Congress intended they should have. (See pp. 6-7,

supra.)

There are, to be sure, qualifications to the general rule

established in Montana, that Tribes have no civil jurisdiction

over non-Indians on non-Indian land. The “bright line”

which exists on the criminal side after Oliphant does not yet

exist on the civil side, even after Montana. See also National

11

Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845

(1985).

As stated in Montana:

To be sure, Indian tribes retain inherent sovereign

power to exercise some forms of civil jurisdiction over

non-Indians on their reservations, even on non-Indian

fee lands. A tribe may regulate, through taxation, licens-

ing, or other means, the activities of nonmembers who

enter consensual relationships with the tribe or its mem-

bers, through commercial dealing, contracts, leases, or

other arrangements. Williams v. Lee, supra, at 223;

Morris v. Hitchcock, 194 U.S. 384; Buster v. Wright, 135

F 947, 950 (CA8); see Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134,

152-154. Montana, 450 U.S. at 565-566.

The Court then stated a second qualification:

A tribe may also retain inherent power to exercise civil

authority over the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or

has some direct effect on the political integrity, the eco-

nomic security, or the health or welfare of the tribe. See

Fisher v. District Court, 424 U.S. 382, 386; Williams v.

Lee, supra, at 220; Montana Catholic Missions v. Mis-

soula County, 200 U.S. 118, 128-129; Thomas v. Gay,

169 U.S. 264, 273. Montana, 450 U.S. at 565-566.

But the court of appeals has in effect so expanded these

qualifications as to turn them into the rule itself, in complete

disregard of the congressional policy applied in Montana.

The court of appeals uses them as a license to ignore and

nullify that policy completely, and treats them, in effect, as a

repudiation of everything the Court had just stated up to

that point as the grounds for its decisions, i.e., its discussion

of the allotment policy and the principles of Oliphant.

Those qualifications, we submit, were intended to have

a much narrower scope and more modest role. As in Williams

v. Lee, 358 U.S. 217 (1959), for example, which was twice

cited by the Court, the right of tribal self-government guar-

anteed by a treaty or executive order is a shield which bars a

non-Indian irom subjecting a tribal member involuntarily to

a non-Indian court with respect to a commercial dispute. But

even under Williams that right is not a sword which the

12

tribal member may use to subject the non-Indian to some

form of tribal jurisdiction involuntarily. Those qualifica-

tions—especially the second—may also reflect a doctrine of

tribal self-government analogous to that developed, but sub-

sequently abandoned, for States in National League of Cities

v. Usery, 426 U.S. 833 (1976). Cf. Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528 (1985).

The danger in going beyond these narrow limits in ap-

plying the Montana qualifications is not simply that the pol-

icy embodied in the allotment acts would be jettisoned. As

suggested by the remarks of the district court judge quoted

above (see p. 7 supra), an even more fundamental question

involves the proper role of the courts in a case such as this.

Are the courts, taking as their charter an overly broad read-

ing of the Montana qualifications, to fashion some sort of

federal common law, based on their own notions of what na-

tional Indian policy should be? Or are they to ascertain, as

the Court did in Oliphant and Montana, what the Congress

intended, through a careful analysis of the relevant treaty

and statutory provisions?

The power conferred upon the Yakima Tribe by the de-

cision below is “* * * a creature of judicial cloth, not legisla-

tive cloth* * *” Weinberger v. Cathblic Action of Hawaii,

454 U.S. 139, at 141 (1981). Review of that decision will allow

the Court to reorient the lower courts—and the court below

especially—in the proper direction.

C. The Indian Reorganization Act of 1934 Did

Not Repudiate The Policy Embodied In The Allot-

ment Acts That Tribes Would Have No Civil Juris-

diction Over Non-Indians.

The assimilationist policies embodied in the allotment

acts were, to be sure, repudiated by the Indian Reorganiza-

tion Act of 1934, 48 Stat. 984. Among the policies so repu-

diated was the policy of eliminating Indian reservations and

tribal governments. But that Act did not repudiate the policy

that Tribes would have no civil jurisdiction over non-Indians.

Viewed in the light of its legislative history, the Act actually

confirmed that policy.

13

The Indian Reorganization Act, as originally introduced

in Congress, was a very different bill from that which eventu-

ally passed. Those differences are of great significance here.

The original version was introduced in the House as H.R.

7902, 73rd Cong., 2nd Sess. (1934) and in the Senate as S.

2755, 73rd Cong., 2nd Sess. (1934).

The heart of the bill was Title I, “Indian Self-Govern-

ment.” Section 2 of Title I read, in pertinent part, as follows:

In accordance with the foregoing purposes, the Secre-

oats of the Interior is hereby authorized to issue to the

Indians residing upon any Indian reservation or reserva-

tions or subdivision thereof a charter granting to the

said community group any and all such powers of gov-

ernment * * * as may seem fitting in the light of the

experience, capacities, and desires of the Indians con-

cerned * * * (Emphasis supplied.)

Section 4 spelled out in more detail the powers which

were to be included in the charter. The first is found in sub-

section (a):

(a) To organize and act as a Federal municipal corpo-

ration, to establish a form of government to adopt and

thereafter to amend a constitution, and to promulgate,

and enforce ordinances and regulations for the effectua-

tion of the functions hereafter specified, and any other

functions customarily exercised by local governments.

(Emphasis supplied.)

Subsection (d) granted another important power:

(d) To establish courts for the enforcement and admin-

istration of ordinances of the community, which courts

shall have exclusive jurisdiction over all offenses of,

and controversies between, members of the chartered

) community, under the ordinances of such community,

and jurisdiction exclusive or non-exclusive over all

other cases arising under the ordinances of the commu-

nity, and shall have power to render and enforce judg-

ments, criminal and civil, legal and equitable, and to

punish violations of local ordinances by fine not exceed-

ing $500, or in the alternative, by imprisonment for a

period of not exceeding six months: * * * * (Emphasis

supplied.)

Title IV of the bill also dealt with courts, establishing a

14

Court of Indian Affairs. Section 3 of this Title spelled out the

broad jurisdiction of that court, which included jurisdiction

“of all cases, civil or criminal, arising under the laws and

ordinances of a chartered Indian community, wherein a real

party in interest is not a member of such community.” (Sub-

section 4)

Clearly, a chartered Indian community was to have

broad legislative jurisdiction over non-members—as broad as

those of any municipal corporation or other unit of local gov-

ernment. And the tribal courts and the Court of Indian Af-

fairs would have jurisdiction over non-members as well.

Titles I and IV did not survive. The major reason was

that the chairman of the Senate on Indian Affairs, Senator

Wheeler, was adamantly opposed.°

How Senator Wheeler’s objections were met is best. ex-

plained in his own words: —

The Chairman. * * * I got together with the Commis-

sioner of Indian Affairs and went over the important

‘In the hearings on S. 2755, the following exchange took place con-

cerning Title I, with its proposal for federally chartered Indian communi-

ties which would exercise governmental powers over non-Indians.

The Chairman. Well, you might possibly, Mr. Commissioner, get, for

instance, some tribe of Indians in Montana [the Chairman’s home

state] who would want to try this, and they might get a sufficient

number of signers to a petition to have a charter issued.

Commissioner [of Indian Affairs) Collier. Yes.

The Chairman. But if they did do it, in my judgment, it would bring

about all kinds of conflicts between your Indians and the white peo-

ple, and, in addition to that, it would set back the Indians, in my

judgment, considerably by doing it, and I am afraid that it would lead

to conflicts in the Northwest between the Indians and the whites.

I mean, supposing that Indian Bureau went out there, for instance, if

you had this provision in there, your Indian Bureau could go out there

and take those Indians possibly and propagandize them and get suffic-

ient numbers of them to sign it and issue a charter, and then attempt

to set up this government within a government out there, which would

be, in my judgment, a serious mistake on the part of the Indians to do

it. Hearing Before the Committee on Indian Affairs, United States

Senate on S. 2755, 73rd Congress, 2nd Sess. (1934) p. 68 (hereinafter

“1934 Hearings”).

Senator Wheeler liked the proposed court system in Article IV, with

its jurisdiction over non-Indians, no better. See 1934 Hearings, pp. 205-

208.

15

points that I thought were in controversy, and yesterday

they sent up this bill, which eliminates, it seems to me,

practically all of the matters that are in controversy, *

* * 1934 Hearings, p. 237.

The bill which the BIA sent up was the bill which ulti-

mately passed. (Compare S. 3645, reproduced at 1934 Hear-

ings, p. 234, and Act of June 18, 1934, 48 Stat. 984). All of the

provisions for any sort of Indian jurisdiction over non-Indi-

ans had been eliminated. Thus the Congress, in 1934, denied

to the Indians the broad, general governmenta! powers over

non-Indians which the BIA had hoped to attain for the Indi-

ans. And that fact is reason enough for this Court to deny the

claim to any such powers now.

D. The Understanding Of The Executive

Branch Has Been That Indian Tribes Possess No In-

herent General Governmental Power Over Non-

Members.

In 1934, shortly after passage of the Indian Reorganiza-

tion Act, the Solicitor of the Department of Interior, Mr.

Margold, was squarely faced with the question of the extent

of an Indian Tribe’s inherent sovereign power over non-mem-

bers. The specific question was the extent of a Tribe’s inher-

ent power of eminent domain. Op. Sol. I.D. Ind. Aff.

1917-1974, Vol I, 484, 489-491 (Dec. 13, 1934).°

The opinion first considered the source of this tribal

power.

The power of eminent domain is one of the usual powers

of sovereignty. It is, as the United States Supreme Court

held in Cincinnati v. Louisville and Nash, R.R. Co. (223

U.S. 390, 404) “one of the powers vital to the public

welfare of every self-governing community.”

No Federal statutes terminating the exercise of this

power by an Indian tribe are known. Therefore, under

the doctrines advanced in the recent opinion of this De-

partment on “Powers of Indian Tribes” (M-27781, ap-

proved October 25, 1934), the power of eminent domain

is one of those powers which are vested in an Indian

*This important opinion remained unpublished until this two volume

compilation.

16

tribe within the meaning of Section 16 of the Wheeler-

Howard [Indian Reorganization] Act. At 489.

Yet Solicitor Margold concluded:

I am of the opinion that the Indian Service is correct “in

assuming that a tribe organized under section 16 may

exercise the power of eminent domain in the acquisition

of land as against its members, but not in the case of

land owned in fee by non-members.” /bid.

This inherent power of eminent domain, which is “one

of the usual powers of sovereignty,” may be exercised only

with respect to tribal members.

From this, Solicitor Margold draws another important

conclusion:

It is proper to add that since the tribal power of con-

demnation is based, in the first instance, upon tribal

jurisdiction over the members of the tribe, it ceases to

exist where an Indian abandons his tribal membership;

and as was said in the opinion of this Department on

“Powers of Indian Tribes,” (M-27781, approved October

25, 1934, at page 36), “any member of any Indian tribe is

at full liberty to terminate his tribal relationship when-

ever he so chooses.” * * *

Threatened oppression in the form of condemnation,

taxation, or ie incidents of social control may be

avoided by the termination of the landowner’s tribal sta-

tus. But if he remains to share in the benefits of tribal

life he must bear its burdens.

The restricted land of the Indian who has severed his

tribal affiliation is not subject to tribal condemnation

proceedings under tribal law. At 490.

Non-Indians are in the same status as the Indian who

has severed his tribal membership, as the opinion goes on to

make clear.

Accordingly, patented land may be condemned, as it

may be taxed on exactly the same basis as the land of

non-Indians. An Indian tribe will have whatever rights

of condemnation the laws of the State may give to it. *

*

Land held in fee, therefore, whether owned by Indians

or by non—indians, may be condemned by an Indian

tribe only in accordance with State law, through pro-

ceedings brought in State courts. At 490, 491.

17

As this opinion explicitly recognizes, a tribal claim of

general governmental power, even if it be on the civil side,

and whether it involves condemnation, taxation, or any other

form of civil jurisdiction, is valid only with respect to tribal

members.’ And as the opinion reminds us, our system of gov-

ernment has no room for “threatened oppression in the form

of condemnation, taxation, or other incidents of social con-

trol” over those non-members.

E. Constitutional Considerations.

The reference to “threatened oppression” in Solicitor

Margold’s opinion serves as a reminder that important con-

stitutional issues are here involved. We are not suggesting

that they need final resolution here; but they certainly form a

“backdrop” which is no less important in construing relevant

treaties and statutes, than the backdrop of tribal sovereignty.

Cf. McClanahan v. Arizona Tax Commission, 411 U.S. 164,

at 172 (1973).

Tribal governments are not subject to the Bill of Rights,

which governs the conduct of the Federal Government, or to

the Fourteenth Amendment, which governs that of the States

and its political subdivisions. Talton v. Mayes, 163 U.S. 376

(1896). This is because Indian Tribes, unlike political subdi-

visions of a State, do not exercise power delegated by a supe-

rior sovereign. United States v. Wheeler, 435 U.S. 313

(1978).

But if, as we submit, the ultimate controlling factor in

this case is congressional intent, the Bill of Rights surely

controls the permissible scope of that intent. And this gives

rise to an obvious problem. How can it be permissible for

Congress to intend—and thereby bring about—a system of

government which itself would surely be constitutionally im-

"We are not in any way suggesting that position of the executive has

been consistent with Solicitor Margold’s over the years. Indeed, to take

just two examples, the United States sided with the Indians’ position in

Oliphant and Montana. Rather, the point is that Solicitor Margold’s opin-

ion shows the position of the executive shortly after the adoption of the

Indian Reorganization Act and its understanding of the limited effect of

that Act—an understanding reinforced by the legislative history discussed

above.

18

permissible to the extent that non-members who are subject

to it cannot possibly participate in it, through the voting

franchise or otherwise?

Talton v. Mayes, supra, shields tribal governments from

the Bill of Rights; but it does not shield the Congress.* Fur-

ther, it is not just a question of Congress tolerating the con-

tinued existence of tribal governments through inaction. If

tribal governments are to be true governments, recognizable

as such by the federal courts, they must first be recognized as

such by the Congress, in a treaty or statute, or by the Execu-

tive pursuant to congressional authority. Absent congressio-

nal action, the problem does not even arise. And that fact is

itself a large part of the problem. In the final analysis, the

Tribes have governmental powers only to the extent that

Congress so wills. That, after all, is why the extent of these

powers is always a federal question. Cf. National Farmers

Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985).

This constitutional issue is really a form of the familiar

“state action” issue. Cf. Marsh v. Alabama, 326 U.S. 501

(1946), Shelley v. Kraemer, 334 U.S. 1 (1948) and Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961). And

Solicitor Margold’s opinion points the way, we believe, to a

*The applicability of the Constitution to the congresional exercise of

its treaty-making power with the Indians, and the constitutional difficul-

ties in a broad grant of tribal jurisdiction over non-Indians, were recog-

nized by the Attorney General of the United States 150 years ago. In 2 Op.

Atty. Gen. 693 (1834), relied upon in Oliphant, 435 U.S. at 199, the Attor-

ney General stated, with regard to the treaty of Dancing Rabbit (7 Stat.

33), entered into with the Choctaws in 1830:

For the more effectual accomplishment of the same end [creation of a

territory for the Choctaws west of the Mississippi], the government

and people of the United States, by the 4th article of the treaty, en-

gaged to “secure to the Choctaw nation of red people the jurisdiction

and government of all the persons and property that may be within

their limits west.” If this provision had stopped here, it would have

indicated an intention on the part of the framers of the treaty to give

to the Choctaws a jurisdiction and government exclusive of all inter-

ference by the United States, or any other authority, and broad

enough to authorize the particular proceedings now before me; though

it is by no means clear that such a treaty could have been made, or

would be valid, under the constitution of the United States.” 2 Op.

Atty. Gen. at 694. (Emphasis supplied.)

19

solution. Tribal government car apply only to tribal mem-

bers; but those members are perfectly free to avoid the juris-

diction of that government by becoming non-members. That

solution, we suggest is consistent with the understanding of

the framers of our Constitution as construed in Talton v.

Mayes, i.e., that tribal governments were to continue, if Con-

gress so wished, just as they were before the adoption of that

Constitution, exercising jurisdiction over members only, un-

fettered by the Constitution itself. At the same time, it as-

sures that non-members will not be deprived of the benefit of

the Bill of Rights.’

The approach in Solicitor Margold’s opinion, we would

agree, may not be entirely consistent with the Montana qual-

ifications, depending, of course, on how broadly they are con-

strued and applied.’* But the inherent difficulties in applying

them to concrete cases such as this one, as well as the consti-

tutional considerations just discussed, may well warrant re-

examination of those qualifications. Cf. Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528

(1985)

*Enforcement of the Indian Civil Rights Act by tribal courts is simply

no substitute for enforcement of the Bill of Rights by federal and state

courts. See letter dated January 26, 1988, from John R. Bolton, Assistant

Attorney General, U.S. Department of Justice, to Senator Daniel K. In-

ouye, attached as Appendix B to this brief, for a discussion of the type of

treatment litigants are likely to face in tribal courts.

‘In an opinion issued on October 25, 1934, shortly before his Decem-

ber 13, 1934, opinion discussed above, Solicitor Margold did recognize a

type of civil jurisdiction even over non-members. In “Powers of Indian

Tribes”, he stated that the tribal taxing power” * * * may be exercised

over members of the tribe and over non-members, so far as non-members

may accept privileges of trade, residence, etc., to which taxes may be at-

tached as conditions.” 55 ID 14, at 46 (1934). So long as the tribal sanctions

are confined to withdrawal of the privileges which the Tribe is empowered

to confer in the first place, we see no constitutional problems in this posi-

tion, or any inconsistency with Selicitor Margold’s subsequent opinon of

December 13, 1934, discussed at pp. 15-17, supra.

20

CONCLUSION

For the reasons given above, the petitions for a writ of

certiorari, should be granted.

Respectfully submitted,

KENNETH QO. EIKENBERRY

Attorney General of Washington

TimoTHy R. MALONE

Assistant Attorney General

(Counsel of Record)

Attorneys for Amici States

A-1

APPENDIX A

Note: The use of this list should not be construed as an

admission by any of the amici States as to the legal status or

boundaries of any particular reservation.

A-2

Note: A reservation located in more than

one State is listed under each State in

which it is located.

RESERVATIONS

Annette Island Reserve

Camp Verde Reservation

Cocopah Reservation

Colorado River Reservation

Fort Apache Reservation

Fort McDowell Reservation

Fort Mojave Reservation

Fort Yuma Reservation

Gila Bend Reservation

Gila River Reservation

Havasupai Reservation

Hopi Reservation

Hualapai Reservation

Kaibab Reservation

Maricopa Reservation

Navajo Reservation

Papago Reservation

Pascua Yaqui Reservation

Payson Community of Yavapai-Apache

Salt River Reservation

San Carlos Reservation

San Xavier Reservation

Yavapai Reservation

Agua Caliente Reservation

Alturas Rancheria

Augustine Reservation

Barona Rancheria

Benton Paiute Reservation

Berry Creek Rancheria

Big Bend Rancheria

Big Lagoon Rancheria

Big Pine Rancheria

TOTAL

PERSONS

1,195

200

355

; 7,873

7,774

349

219

4,581

7,380

282

6,906

849

173

397

110,433

7,203

562

4,089

6,104

875

76

13,743

7

300

12

11

11

396

A-3

TOTAL TOTAL

INDIANS NON~-INDIANS

958 237

173 27

349 6

1,965 5,908

6,880 894

345 4

127 92

1,096 3,485

7,067 313

267 15

6,601 305

809 40

93 80

375 22

104,968 5,465

6,959 244

551 11

2,624 1,465

5,872 232

851 24

66 10

65 13,678

7 0

222 78

12 0

8 3

8 3

269 127

A-4

RESERVATIONS

Bishop Rancheria

Bridgeport Colony

Cabazon Reservation

Cachil Dehe Rancheria

Cahuilla Reservation

Campo Reservation

Capitan Grande Reservation

Cedarville Rancheria

Chamehuevi Reservation

Cold Springs Rancheria

Colorado River Reservation

Cortina Rancheria

Coyote Valley Rancheria

Cuyapaipe Reservation

Dry Creek Rancheria

Enterprise Rancheria

Fort Bidwell Reservation

Fort Independence Reservaticn

Fort Mojave Reservation

Fort Yuma Reservation

Grindstone Creek Rancheria

Hoopa Valley Extension Reservation

Hoopa Valley Reservation

Hopland Rancheria

Inaja-Cosmit Reservation

Jackson Rancheria

La Jolla Reservation

La Posta Reservation

Laytonville Rancheria

Likely Rancheria

Lone Pine Rancheria

Lookout Rancheria

Los Coyotes Reservation

Manchester Rancheria

Manzanita Reservation

Mesa Grande Reservation

Middletown Rancheria

Montgomery Creek Rancheria

Morango Reservation

A-5

TOTAL TOTAL TOTAL

STATE PERSONS INDIANS NON-INDIAN

CA 1,125 784 341

CA 55 47 8

CA 815 8 807

CA 17 17 0

CA 56 29 27

CA 100 86 14

CA - - -

CA 6 6 0

CA 265 23 242

CA 65 63 2

CA 7,873 1,965 5,908

CA 6 2 4

CA 9 ° 9

CA 2 2 0

CA 46 41 5

CA 16 16 0

CA 98 93 5

CA 61 31 30

CA 219 127 92

CA 4,581 1,096 3,485

CA 73 72 1

CA 1,082 411 671

CA 2,041 1,502 539

CA 13 10 3

CA - - -

CA 15 15 0

CA 151 141 10

CA 1 1 0

CA 111 105 6

CA - - -

CA 248 172 76

CA 13 12 1

CA 51 45 6

CA 81 77 4

CA 14 13 1

CA - - °

CA 40 39 1

CA 1 1 0

CA 414 313 101

A-6

RESERVATIONS

Pala Reservation

Pauma Reservation

Pechanga Reservation

Ramona Reservation

Resighini Rancheria

Rincon Reservation

Roaring Creek Rancheria

Round Valley Reservation

Rumsey Rancheria

San Manuel Reservation

San Pasqual Reservation

Santa Rosa Rancheria

Santa Rosa Reservation

Santa Ynez Reservation

Santa Ysabel Reservation

Sheep Ranch Rancheria

Sherwood Valley Rancheria

Shingle Springs Rancheria

Soboba Reservation

Stewart’s Point Rancheria

Sulphur Bank Rancheria

Susanville Reservation

Sycuan Reservation

Torres-Martinez Reservation

Trinidad Rancheria

Tule River Reservation

Tuolumne Rancheria

Twenty-Nine Palms Reservation

Viejas Rancheria

Woodfords Community

XL Ranch Reservation

Southern Ute Reservation

Ute Mountain Reservation

Eastern Pequot Reservation

Golden Hill Reservation

Schaghticoke Reservation

STATE

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CA

CO

CO

CT

CT

CT

TOTAL

PERSONS

648

141

21

490

25

1,268

13

31

209

169

12

133

196

2

19

258

75

115

90

61

278

63

453

93

209

308

24

A-7

TOTAL

INDIANS

519

117

TOTAL

NON-INDIAN

129

24

A-8

RESERVATIONS

Western Pequot Reservation

Big Cypress Reservation

Brighton Reservation

Hollywood Reservation

Miccosukee Reservation

Tama Reservation

Omaha Reservation

Sac and Fox Reservation

Coeur d’Alene Reservation

Duck Valley Reservation

Fort Hall Reservation

Kootenai Reservation

Nez Perce Reservation

Iowa Reservation

Kickapoo Reservation

Pottawatomi Reservation

Sac and Fox Reservation

Chitimacha Reservation

Coushatta Reservation

Tunica-Biloxi Reservation

Hassanamisco Reservation

Wampanoog Reservation

Indian Township Reservation

Penobscot Reservation

Pleasant Point Reservation

Bay Mills Reservation

Hannahville Community

Isabella Reservation

L’Anse Reservation

A-9

TOTAL TOTAL TOTAL

STATE PERSONS INDIANS NON-INDIAN:

cT 24 6 18

FL 387 351 36

FL 338 323 15

FL 2,592 416 2,176

FL 276 1 275

GA 33 30 3

IA 5,459 1,275 4,184

IA 509 492 17

ID 4,911 538 4,373

ID 1,041 932 109

ID 4,783 2,542 2,241

ID o = -

ID 17,806 1,463 16,343

KS 112 26 86

KS 461 356 105

KS 985 331 654

KS 114 3 lll

LA 1,300 185 1,115

LA ° 3 -

LA 63 7 56

MA 1 1 0

MA - _ -

ME 423 333 90

ME 456 398 69

ME 549 504 45

MI 322 283 39

MI 211 206 5

MI 23,020 517 22,503

A-10

RESERVATIONS

Ontonagon Reservation

Pine Creek Reservation

Sault Ste. Marie Reservation

Bois Forte Reservation (Nett Lake)

Deer Creek Reservation

Fond du Lac Reservation

Grand Portage Reservation

Leech Lake Reservation

Lower Sioux Community

Mille Locs Reservation

Prairie Island Community

Red Lake Reservation

Sandy Lake Reservation

Shakopee Community

Upper Sioux Community

Vermillion Lake Reservation

White Earth Reservation

Mississippi Choctaw Reservation

Blackfeet Reservation

Crow Reservation

Flathead Reservation

Fort Belknap Reservation

Fort Peck Reservation

Northern Cheyenne Reservation

Other reservation lands in Montana

Rocky Boy’s Reservation

Eastern Cherokee Reservation

Fort Berthold Reservation

Fort Totten Reservation

Sisseton Reservation

Standing Rock Reservation

Turtle Mountain Reservation

Iowa Reservation

STATE

MI

MI

MI

MT

TOTAL

PERSONS

A-11

TOTAL

INDIANS

TOTAL

NON-INDIAN

A-12

RESERVATIONS

Omaha Reservation

Sac and Fox Reservation

Santee Reservation

Winnebago Reservation

Acoma Pueblo

Alamo Reservation

Canoncito Reservation

Cochiti Pueblo

Isleta Pueblo

Jemez Pueblo

Jicarilla Apache Reservation

Laguna Pueblo

Mescalero Apache Reservation

Nambe Pueblo

Navajo Reservation

Picuris Pueblo

Pojoaque Pueblo

Ramah Community

San Felipe Pueblo

San Felipe/Santa Ana Joint Area

San Felipe/Santo Domingo Joint Area

San Ildefonso Pueblo

San Juan Pueblo

Sandia Pueblo

Santa Ana Pueblo

Santa Clara Pueblo

Santo Domingo Pueblo

Taos Pueblo

Tesuque Pueblo

Ute Mountain Reservation

Zia Pueblo

Zuni Pueblo

Carson Colony

Dresslerville Colony

Duck Valley Reservation

Duckwater Reservation

—e

STATE

NE

NE

NE

NE

NM

NM

NM

NM

NM

2222225

222% ZZRFFZS222EE5

TOTAL

PERSONS

5,459

114

914

2,554

2,359

1,072

978

839

2,412

1,515

1,996

3,791

2,101

386

110,433

337

1,191

1,237

2,266

122

1,491

4,365

683

409

6,740

2,162

1,421

252

1,138

524

6,291

227

129

1,041

106

A-13

TOTAL

INDIANS

1,275

3

420

1,140

2,268

1,062

969

613

2,289

1,504

1,715

3,564

1,922

175

104,968

116

94

1,163

1,789

116

488

852

217

407

459

2,139

716

235

1,111

524

5,988

213

127

932

103

TOTAL

NON-INDIAN

4,184

111

494

1,414

91

10

19

226

123

11

281

227

179

211

A-14

RESERVATIONS

Ely Colony

Fallon Colony

Fallon Reservation

Fort McDermitt Reservation

Fort Mojave Reservation

Goshute Reservation

Las Vegas Colony

Lovelock Colony

Moapa River Reservation

Pyramid Lake Reservation

Reno-Sparks Colony

Summit Lake Reservation

Te-Moak Reservation

Walker River Reservation

Washoe Reservation

Winnemucca Colony

Yerington Reservation

Yomba Reservation

Allegany Reservation

Cattaraugus Reservation

Oil Springs Reservation

Onondaga Reservation

Poospatuck Reservation

Shinnecock Reservation

St. Regis Mohawk Reservation

Tonawanda Reservation

Tuscarora Reservation

Osage Reservation

Burns Reservation

Fort McDermitt Reservation

Umatilla Reservation

Warm Springs Reservation

Catawba Reservation

Cheyenne River Reservation

A-15

TOTAL TOTAL TOTAL

STATE PERSONS INDIANS NON-INDIAN:

NV 78 67 ll

NV 64 46 18

NV 279 258 21

NV 472 463 9

NV 219 127 92

NV 105 105 0

NV 113 106 7

NV 126 117 9

NV 185 182 3

NV 853 720 133

NV 463 451 12

NV - - =

NV 91 91 0

NV 571 471 100

NV 87 4 83

NV 37 35 2

NV 421 105 316

NV 60 57 3

NY 7,681 925 6,756

NY 1,994 1,855 139

NY 6 - »

NY 596 592 4

NY 203. | 94 119

NY 297 194 103

NY 1,802 1,763 39

NY 467 438 29

NY 921 873 48

OK 39,327 4,749 34,578

OR 167 160 7

OR 472 463 9

OR 2,619 908 1,711

OR 2,244 2,004 240

SC 998 728 270

A-16

RESERVATIONS

Crow Creek Reservation

Flandreau Reservation

Lower Brule Reservation

Pine Ridge Reservation

Rosebud Reservation

Sisseton Reservation

Standing Rock Reservation

Yankton Reservation

Alabama-Coushatta Reservation

Tigua Reservation

Goshute Reservation

Navajo Reservation

Skull Valley Reservation

Southern Paiute Reservation

Uintah and Ouray Reservation

Pamunkey Reservation

Chehalis Reservation

Colville Reservation

Hoh Reservation

Kalispel Reservation

Lower Elwah Reservation

Lummi Reservation

Makah Reservation

Muckleshoot Reservation

Nisqually Reservation

Nooksack Reservation

Ozette Reservation

Port Gamble Reservation

Port Madison Reservation

Puyallup Reservation

Quileute Reservation

Quinault Reservation

Sauk-Suiattle Reservation

Shoalwater Reservation

Skokomish Reservation

STATE

SD

SD

SD

SD

SD

SD

SD

SD

TX

TX

UT

UT

UT

UT

UT

VA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

WA

TOTAL

PERSONS

1,787

169

1,023

13,143

7,328

13,586

8,816

6,541

504

503

105

110,433

13

1,217

16,909

59

A-17

TOTAL

INDIANS

1,474

158

850

11,882

5,688

2,700

4,800

1,688

494

105

104,968

13

196

2,050

50

TOTAL

NON-INDIAN:

313

11

173

1,261

1,640

10,886

4,016

4,853

10

503

0

5,465

0

1,021

14,859

A-18

RESERVATIONS

Spokane Reservation

Squaxin Island Reservation

Swinomish Reservation

Tulalip Reservation

Upper Skagit Reservation

Yakima Reservation

Bad River Reservation

Lac Courte Oreilles Reservation

Lac du Flambeau Reservation

Menominee Reservation

Oneida Reservation

Patawatomi Reservation

Red Cliff Reservation

Sokaogon Chippewa Community

St. Croix Reservation

Stockbridge Reservation

Wisconsin Winnebago Reservation

Wind River Reservation

STATE

TOTAL

PERSONS

1,475

56

1,390

5,046

5

25,363

916

1,699

2,211

2,672

13,389

224

686

105

427

1,272

658

23,157

A-19

TOTAL

INDIANS

TOTAL

NON-INDIAN:

425

21

976

4,278

5

20,380

217

554

1,119

295

11,568

+

97

10

35

690

79

19,007

Nae enn ee ee ee ee a Lee en See Meee ee

ee

B-1

APPENDIX B

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Atiorney General Washington, D.C. 20530

Honorable Daniel K. Inouye 26 Jan. 1988

Chairman

Select Committee on Indian Affairs

United State Senate

Washington, D.C. 20510

Re: S. 1703 and the Indian Civil Rights Act

Dear Mr. Chairman:

This supplements our letter of October 27, 1987 con-

cerning S. 1703, a bill to amend the Indian Self-Determina-

tion and Education Assistance Act. We said then, and

remained convinced now, that tribal programs funded by this

Act may fail to comply fully with the Indian Civil Rights Act

(ICRA), 25 U.S.C. § 1301 et seq. (P.L. 90-284, Title II of the

Act of April 11, 1968, 88 Stat. 77). We propose to grant fed-

eral courts, following the exhaustion of tribal remedies, lim-

ited authority to enforce the ICRA. Specifically, we suggest

adding the following new section to S. 1703:

ri “Sec. ___ . Compliance with the Indian Civil Rights

ct.

“Title I of the Indian Self-Determination and Edu-

cation Assistant Act (Public Law 93-638, Act of January

4, 1975, 88 Stat. 2203, as amended) is further amended

by adding the following new section 112:

“Sec. 112. (a) Any program or activity receiving

federal financial assistance from the Secretary of the

Interior or from the Secretary of Health and Human

Services pursuant to this Title shall be administered in

compliance with the Indian Civil Rights Act of 1968

(Public Law 90-284, Act of April 11, 1968, 82 Stat. 77).

“(b) Federal district courts shall have jurisdiction

of civil actions alleging the failure of programs or activi-

ties funded by this Act to comply with § 202 of Title II

B-2

of the Civil Rights Act of 1968 (Public Law 90-284, Act

of April 11, 1968, 82 Stat. 77).

“(c) Any aggrieved person, following the exhaustion

of such tribal remedies as may be both timely and rea-

sonable under the circumstances, or the Attorney Gen-

eral on behalf of the United States, may initiate an

action in the appropriate federal district court for equi-

table relief against an Indian tribe, tribal organization,

or official thereof, yp failure to comply with sub-

paragraphs (a) and (b) above. Tribal sovereign immu-

nity shall not constitute a defense to such an action.”

The language we suggest grants federal district courts juris-

diction, following the exhaustion of tribal remedies, of com-

plaints that federally funded tribal programs violate the

ICRA. The proposed amendment is limited to federally

funded tribal programs; tribal activities which do not receive

federal dollars remain unaffected. For the reasons spelled out

below, we urge the Select Committee to adopt the proposed

amendment to S. 1703.

1. The Need To Condition S. 1703 On Compliance

With The ICRA

S. 1703 amends the current law to aid Indian tribes in

providing important government services to their members.

Under the Act, Indian tribes may choose to provide services

such as health care, education, social welfare benefits, law

enforcement, judicial services, employment assistance and

other government services to many of the nation’s nearly one

million eligible Indians. Funding is provided by the United

States pursuant to coniracts between tribes and various fed-

eral agencies. The program is substantial; the Bureau of In-

dian Affairs alone estimates that in fiscal 1988 its

self-determination contracts with Indian tribes will total 308

million dollars. Absent the language we propose, or an

equally effective remedy, we believe the beneficiaries of pro-

grams funded by this Act may be denied the protection of

federal law.

Beneficiaries of federal programs generally are pro-

B-3

tected by broad, well-defined constitutional rights and the

full range of federal civil rights legislation. Furthermore, fed-

eral courts are routinely available to enforce rights secured

by federal civil rights statutes or the Constitution. Beneficia-

ries of programs funded under this Act, howevcr, are limited

to the protections contained in the ICRA. Constitutional

safeguards are largely unavailable. Talton v. Mayes, 163 US.

376 (1896). While the ICRA contains many of the protections

found in the Constitution, except for habeas corpus it is un-

enforceable in federal courts. Tribal forums enjoy exclusive

jurisdiction of civil actions brought to enforce the ICRA.

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Al-

though some post Santa Clara litigants indirectly sought to

redress tribal grievances by suing federal officials in district

court, few such suits have achieved their objective in a timely

manner. See, e.g., Runs After v. United States, 766 F.2d 347

(8th Cir. 1985) and Wheeler v. United States Department of

Interior, 811 F.2d 549 (10th Cir. 1987).

While tribal measures to enforce the ICRA may be

available in theory, such remedies are often unavailable in

practice. Since the Supreme Court’s decision in Santa Clara

Pueblo, several federal court opinions, two major news artic-

les and the Report of the Presidential Commission on Indian

Reservation Economies have all questioned the fairness or

availability of ICRA enforcement in tribal court. In addition,

serious allegations of ICRA violations surfaced recently in

hearings held by the United States Commission on Civil

Rights. In testimony taken in Washington, D.C., Rapid City,

South Dakota, and Flagstaff, Arizona, a number of Indians

shared important evidence of tribal non-compliance with the

ICRA.

This Department’s substantial interest in ICRA compli-

ance, see, e.g., 28 CFR § 0.50(a)—indeed, our conviction that

all federal civil rights statutes must be aggressively en-

forced—compels us to add our voice to those who find a fail-

ure to fully enforce the ICRA post Santa Clara Pueblo.

B-4

2. Tribal Failure to Enforce The ICRA Post Santa

Clara Pueblo

For 10 years prior to Santa Clara Pueblo, the ICRA was

routinely enforced in both tribal and federal courts, with lit-

tle if any adverse effect on tribal government. Federal court

review ended, however, with the Supreme Court’s 1978 deci-

sion in Santa Clara Pueblo that federal courts lack non-ha-

beas corpus jurisdiction over ICRA cases. Although the Court

found that the ICRA “has the substantial and intended effect

of changing the law which [tribal] forums are obliged to ap-

ply”, Jd. at 65, enforcement was limited to tribal forums and

remedies.

Substantia! evidence now exists that tribal forums may

not, as the Supreme Court assumed in Santa Clara Pueblo,

“vindicate rights created by the ICRA”. Jd. Tribal remedies

under the ICRA are often inadequate; they fail to fully pro-

tect individuals from the arbitrary and unfair action of tribal

government, including tribal programs and activities funded

by the Self-Determination and Education Assistance Act.

According to the Presidential Commission On Reservations

Economies, “the politicization of tribal courts [by tribal gov-

eraments] * * * discriminate[s] unfairly against individuals

and businesses.” Report and Recommendation To The Pres-

ident Of The United States, Presidential Commission On

Indian Reservation Economies, November 1984, Part Two at

36. Three factors contribute to this result: first, judicial re-

view may be unavailable; second, tribal sovereign immunity

and other jurisdictional impediments may bar or limit ICRA

relief; and, third, tribal governing bodies interfere with tribal

courts.

A. The Lack Of Judicial Review

Tribal courts lack clear authority to review tribal gov-

ernment action. In some tribes, judicial review may be un-

available. See e.g., Santa Clara Pueblo, supra. In other tribes

judicial review may be limited. The Cheyenne River Sioux

B-5

Tribe, for example, is one of several tribes which explicitly

reserve final authority over tribal action to tribal councils

and not tribal courts. A recent Cheyenne River resolution

states in part:

Be Ir FrnaL_y Regoiven, that the Council shall retain

the power to review the decision of the Tribal Court of

Ap on issues of law under such conditions and pro-

ures as are found by the Council to be appropriate.

Cheyenne River Sioux Tribal Resolution No. 213-85-CR.

Similarly, Oglala Sioux Tribal Resolution No. 87-76 provides

in part:

Wuereas, the Oglala Siox Tribe has reviewed the

actions of the Tribal Court and Tribal Court of Ap

in the Moore case and find that the said courts have

exceeded their authority under Ordinance No. 86-09,

now

THEREFORE Be IT RESOLVED, that the Oglala Sioux

Tribal Council hereby declares that all court orders in

the case of Margaret Moore v. Oglala Sioux Tribal Per-

sonnel Board, et al. are hereby declared null and void

* * *

Although the rule may not be as clear elsewhere, “[i]n at least

27 tribes the council hears appeals from tribal court judg-

ment * * * .” American Indian Lawyer Training Program,

Indian Self-Determination And The Role Of Tribal Courts,

1977, at 59. In fact, tribal courts are available in only about

one half of the nation’s nearly 300 federally recognized In-

dian tribes.

As a result, the same tribal body which takes action is

often called upon to determine its propriety. The Eighth Cir-

cuit in Runs After v. United States, supra, citing Justice

White’s dissent in Santa Clara Pueblo, notes parenthetically

that “* * * given congressional concern about deprivations

of individual Indians’ rights by tribal authorities, [it is] im-

probable that Congress desired enforcement of rights to be

left to the very tribal authorities alleged to have violated

them.” Jd. at 353.

B-6

B. Sovereign Immunity And Other Jurisdic-

tional Impediments To ICRA Enforcement In Tribal

Court

In Santa Clara Pueblo, the Court found that “[t]ribal

forums are available to vindicate rights created by the ICRA,

and [the Act] has the substantial and intended effect of

changing the law these forums are obliged to apply”. Santa

Clara Pueblo, supra, at 65. The clear implication is that

tribal courts, where they exist, are available to enforce the

ICRA. However, in addition to those tribes which have no

court or refuse to permit full judicial review, other tribes rely

on the doctrine of sovereign immunity or jurisdictional limi-

tations to bar judicial enforcement of rights secured by the

ICRA. For example, Cheyenne River Chairman Morgan Gar-

reau provided the following testimony to the Civil Rights

Commission:

MS. MILLER: Do you believe that sovereign immunity

is a bar to Indian Civil Rights Act claims against the

tribe [in tribal court]?

MR. GARREAU: Yes, I do. [The question] has come to

the tribal council with regard to [a] waiver of sovereign

immunity. As I stated, T sat on the tribal council. I

served as administrative officer. At no time during those

years, I believe from 1979 to the present [i.e., 1986], has

the tribal council ever waived sovereign immunity for

anyone, for any case or cause at all.

MS. MILLER: So what that means is you are saying

that the Indian Civil Rights Act really is unenforceable

as against the tribe?

MR. GARREAU: Unless the council waives sovereign

immunity.

MS. MILLER: Which it hasn’t done.

MR. GARREAU: No, they have not, for anyone.

Hearings, supra, at p. 377.

Cheyenne River is not an isolated case. Tribal court de-

cisions which dismiss ICRA cases by invoking sovereign im-

munity have occurred in a number of jurisdictions. For

example, in Satiacum v. Sterud et al., No. 82-1157 (Puy. Tr.

B-7

Ct., April 23, 1983), 10 Indian L. Rep. 6013, the Puyallup

Tribal Court rejects the argument that Santa Clara Pueblo

“represents an explicit waiver of the tribe’s immunity” in an

ICRA action in tribal court. Jd at 6015. In Dubray v. Rosebud

Housing Authority, No. CIV83-01 (Rosebud Sioux Tr. Ct.,

Feb 1, 1985), 12 Indian L. Rep. 6015 (app. pndg., Intertribal

Ct. of App.), the tribal court found “no provision in the tribal

code which would waive the tribe’s immunity to suits based

on claims under the [ICRA]”. Jd. Therefore, the tribal court

continued, “because the tribe’s immunity has not been

waived, the plaintiff’s [ICRA] complaint * * * must be dis-

missed.” Jd. See also, Whatoname v. Hualapai Tribe et al.,

Civil No. 003-80 (Hualapai Ct. of App., May 11, 1981) (The

tribal court dismissed an ICRA case commenting that “(i]t is

difficult for this Court to fathom how the Indian Civil Rights

Act can be said to waive the immunity of the Tribe in its own

Courts by implication while such waiver by implication was

expressly rejected by the federal courts * * *”. Slip o. at 8.);

Garman v. Fort Belknap Community Council, et. al., No.

CV83-238, (Ft. Blkp Tr. Ct., Jan. 20, 1984), 11 Indian L. Rep.

6017 (ICRA case dismissed against tribal defendants with the

observation that the tribe has “not chosen to expressly waive

tribal sovereign immunity to allow enforcement of the Indian

Civil Rights Act in tribal courts * * *”); and the cases cited

by Johnson and Madden, Sovereign Immunity In Indian

Tribal Law, 12 Am. Indian L. Rev. at 167, n. 59 (1984).

In those cases where sovereign immunity presents no

bar to ICRA enforcement, other jurisdictional considerations

may intervene. For example, tribal court civil jurisdiction

may be limited to cases in which both parties are members of

the tribe or each consent to tribal court jurisdiction. See, e.g.,

25 CFR §11.22C (The Interior Department’s Court of Indian

Offenses, which is similar to tribal courts, has “jurisdiction of

all suits wherein the parties to the action are members of the

tribe * * * and of all other suits between members and non-

members which are brought before the court by stipulation of

both parties.”).

B-8

C. Separation Of Powers—The Lack Of Tribal

Court Independence

Tribal governing bodies may interfere with the process

of tribal courts. The 1984 Report of the Presidential Com-

mission on Indian Reservation Economies found that

failure [of tribal governments] to adhere to a constitu-

tional principle separating executive, legislative and ju-

dicial powers has had a detrimental effect on [tribal]

governmental functioning. For example, the failure to

establish a clear se tion of powers between the tribal

council and the tribal judiciary has resulted in political

interference with tribal courts, weakening their indepen-

-mogga and raising doubts about fairness and the ns oy of

aw.

Report And Recommendations To The President Of The

United States, supra, Part One, at 29. The Presidential

Commission, co-chaired by Ross O. Swimmer, further finds

that

[bjoth Indians and non-Indians complain of political

discrimination against them by tribal governments and

by tribal courts which are arms of tribal governments.

Access to tribal physical resources, to the benefits of

tribally ed programs, and to tribal employmert is

considered to be unfair by many Indians. Decisions ren-

dered by tribal courts, which are controlled by tribal

councils, are also perceived to be unfair by Indians and

non-Indians.

Id., Part Two at 36.

Recent hearings before the United States Commission

on Civil Rights provide further evidence that tribal courts

may be incapable of enforcing rights secured by the ICRA.

Former Chief Judge Trudell Guerue of the Rosebud Sioux

Tribal Court wrote that there is an “absence of any forum in

which the Indian Civil Rights Act is enforceable.” Guerue,

The Indian Civil Rights Act — How it is Used As License

And Not As Protection, 1986, at 3 (unpublished paper in the

files of the United States Commission On Civil Rights). This

is true, according to Guerue, because tribal councils control

B-9

tribal courts; “removal from office or the bench is not an

uncommon tribal council tool.” Jd., at 4. This lack of judicial

independence or separation of tribal powers was echoes by a

number of other Indian judges. For example, former Tribal

Judge Walter Woods of the Cheyenne River Sioux Tribe tes-

tified before the Civil Rights Commission that tribal

judges are politically appointed so they can be con-

jveficd by the mame | If they make aliens that are

not favorable with the council, then they will be re-

moved without a hearing—because I know; I was one of

the individuals that was removed.

Hearings before the United States Commission on Civil

Rights, Rapid City, S.D., 1986, at 392. Former Cheyenne

River Sioux Tribal Chairman Garreau confirmed that “(a]ll

it takes is just an action of the tribal council to remove a

judge.” Id. at 383.

A number of federal court decisions further underscore

the lack of an independent tribal judiciary. In Shortbull v.

Looking Elk, 677 F.2d 645 (8th Cir. 1982), a panel of the

Eight Circuit noted that “because of [a tribal court) ruling,

Judge Red Shirt was removed from office and was replaced

by a judge more sympathetic to the tribal Executive Commit-

tee, who quashed Judge Red Shirt’s orders.” Jd. at 650. As a

result, “[w]e are thus presented with a situation in which [the

plaintiff] has no remedy within the tribal machinery * * *”

Id. Similarly, in Runs After v. United States, supra, the

Eighth Circuit found that after the tribal court upheld a con-

tested voting redistricting plan

the Tribal Council terminated the tribal court judge,

allegedly because of the decision enforcing the reappor-

tionment, rescinded the tribal court order directing elec-

tions to be held in thirteen election districts, and

appointed a new tribal court judge.

Id. at 348. In addition, the tribe “forever barred” the judge

who was removed in Runs After from tribal political office.

Resolution No. 190-84-CR, Cheyenne River Sioux Tribe, July

12, 1984. “Abuse of power by tribal governments is wide-

B-10

spread”, according to former Tribal Judge Guerue. Guerue,

supra, at 3.

3. The Need To Expand The Federal Court’s ICRA

Jurisdiction

With the exception of habeas corpus authority found in

§1303 of the ICRA, 25 U.S.C. §1303, federal courts lack juris-

diction of ICRA complaints. Enforcement is left exclusively

to tribal forums. However, the Supreme Court’s finding that

these tribal forums are “available to vindicate rights created

by the ICRA” has not proved accurate. Santa Clara Pueblo,

supra, at 65. The lack of judicial review, sovereign immunity,

jurisdictional barriers and tribal council interference with

tribal courts are some of the factors which impede full tribal

enforcement of rights secured by the ICRA.

Several federal court decisions recognize the anomaly of

creating statutory rights without an adequate enforcement

mechanism or remedy. In Garreaux v. Andrus, 676 F.2d 1206

(8th Cir. 1982), for example, the Eight Circuit acknowledged

“that the plaintiffs are being treated unfairly by the tribal

council” but, citing Santa Clara Pueblo, went on to hold that

federal courts lack statutory authority to consider ICRA

claims. /D. at 1210, n. 2. See also, Shortbull v. Looking Elk,

supra; and R.J. Williams Co. v. Fort Belknap Housing Au-

thority, 509 F. Supp. 933 (D.C. Mont. 1981), Rev’d and re-

manded on other grounds, 719 F.2d 979 (9th Cir. 1983)

(“This case illustrates the absurd results that the broad rule

of [Santa Clara Pueblo] can cause.” 509 F. Supp. at 939).

Courts, however, properly defer to congressional action.

In Kickapoo Tribe v. Thomas, No. 83-4177 (D. Kan., June

24, 1983), 10 Indian L. Rep. 3093, the court found that it is

beyord the power of the judiciary “to determine whether [ |

congressional Indian policy fosters self-government or a vac-

uum with the potential for chaos.” Jd. at 3096. In Wells v.

Philbrick, 486 F. Supp. 807 (1980), the court went one step

further adding

B-11

lilt certainly may be argued that the effect, after Santa

Clara Pueblo, of the ICRA is to create rights while with-

holding any meaningful remedies to enforce them. [cita-

tion omitted], but it is for Congress, not the Courts, to

resolve this state of affairs [citing Santa Clara Pueblo,

supra, at 72).

Id. at 809.

Evidence of the tribal failure to fully enforce the ICRA

is important because, as the Court noted in Santa Clara

Pueblo,

Congress’ authority over Indian matters is extraordinar-

ily broad * * * Congress retains authority expressly to

authorize civil actions for injunctive or other relief to

redress violations of [the ICRA\, in the event that the

tribes themselves prove deficient in applying and en-

forcing its substantive provisions.

Santa Clara Pueblo, supra, at 72. In fact, the Presidential

Commission on Indian Reservation Economies has made

such a recommendation. The Commission, in its November

1984 report, recommends

that legislation be provided for appellate review of tribal

court decisions to the federal court system where consti-

tutional or statutory rights are involved.

Report And Recommendations To The President, supra,

Part One at 30. Profession Wilkinson adds support for such a

view when he argues “that federal judicial review of tribal

action is often appropriate and perhaps should be ex-

panded”. Wilkinson, American Indians, Time, and the Law,

Yale Univ. Press, 1987, at p. 113 (1987). A similar view was

voiced by Gover and Laurence. In discussing the need to

modify both Santa Clara Pueblo and Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191 (1978), they suggest that:

[t]he legislative branch seems well-suited to judge the

sophistication of Indian judicial systems * * * . [A leg-

islative] modification of (Santa Clara] to grant a careful

and not overly disruptive federal oversight of [tribal]

jurisdiction might be acceptable. We leave the details of

such legislation in the capable hands of Congress * * *.

B-12

It would place a scalpel back in the federal judge’s hand

* * *

Avoiding Santa Clara Pueblo v. Martinez: The Litigation In

Federal Court Of Civil Actions Under The Indian Civil

Rights Act, 8 Hamlin L. Rev. 497, 523 (1985). See also, Final

Report Of Task Force Number 9, American Indian Policy

Review Commission, September, 1976, at p. 35 (The stand-

ards set by Congress in the ICRA permit federal courts to be

“sensitive” to tribal concerns and such a process has a “salu-

tary” effect on federal court construction of the Act).

A number of tribal judges also recognize the need for

federal court ICRA jurisdiction. Judge Sambroak of the

Rosebud Sioux Tribal Court provided the following testi-

mony to the Civil Rights, Commission:

MR. MCDONALD: Do you believe the ICRA should be

amended to allow [a] private right of action in federal

court?

JUDGE SAMBROAK: Yes.

Hearings, Supra, at 250. Chief Judge Lorraine Rousseau of

the Sisseton Wahpeton Sioux Tribal Court echoed the same

theme when she told the Civil Rights Commission:

I guess what I’m saying is there may be a need for lim-

ited jurisdiction by the federal courts in certain cases.

Testimony Before the United States Commission on Civil

Rights, Washington, D.C., February, 1986 at 196.

4. Conclusion

Santa Clara Pueblo, which held that federal courts lack

jurisdiction after 10 years of effective ICRA enforcement, was

premised on the assumption that “[t]ribal forums are availa-

ble to vindicate rights created by the ICRA.” Santa Clara

Pueblo, supra, at 65. Since the record now shows serious

tribal “deficien[cies] in applying and enforcing” the ICRA,

we look to Congress, as did the Court in Santa Clara Pueblo,

to permit “civil actions for injunctive or other relief to re-

dress violations of [the ICRA].” Id. at 72. Systemic, institu-

B-13

tional factors, including sovereign immunity and the lack of

judicial independence, often limit the ability of tribal forums,

as a practical matter, to remedy violations of the ICRA. Fur-

ther, many tribes, not just a few suffer from these systemic

impediments to effective tribal enforcement of the ICRA. Ac-

cordingly, we urge the Select Committee to include language

in S. 1703, along the lines set out above, which grants federal

courts limited jurisdiction of complaints that federally

funded tribal programs violate the ICRA.

The Office of Management and Budge had advised this

Department that there is no objection to the presentation of

this report from the standpoint of the Administration’s pro-

gram.

Sincerely,

JOHN R. BOLTON

Assistant Attorney General

Office of Legislative Affairs