American Indian Law Journal

Volume II, Issue I • Fall 2013

“The Spirit of Justice” by Artist Terrance Guardipee

Supported by the Center for Indian Law & Policy

Spirit of Justice

Terrance Guardipee and Catherine Black Horse donated this original work of art to the Center for Indian Law and Policy in November 2012 in appreciation for the work the Center engages in on behalf of Indian and Native peoples throughout the United States, including educating and training a new generation of lawyers to carry on the struggle for justice. The piece was created by Mr. Guardipee, who is from the Blackfeet Tribe in Montana and is known all over the country and internationally for his amazing ledger map collage paintings and other works of art. He was among the very first artists to revive the ledger art tradition and in the process has made it into his own map collage concept. These works of art incorporate traditional Blackfeet images into Mr. Guardipee’s contemporary form of ledger art. He attended the Institute of American Indian Arts in Santa Fe. His work has won top awards at the Santa Fe Indian Market, the Heard Museum Indian Market, and the Autrey Museum Intertribal Market Place. He also has been a featured artist at the Smithsonian’s National Museum of the American Indian in Washington, D.C., along with the Museum of Natural History in Hanover, Germany, and the Hood Museum at Dartmouth College.

American Indian Law Journal Editorial Board 2013 – 2014

Editor-in-Chief Shannon “Shay” Story Managing Editor Jeanette “Jenny” Campbell Technical Editor Executive Editor Darko Slugić Erin White

Articles Editors Staff Member Events Coordinator Liz Leemon Charisse Arce Nga Nguyen Robin Sand 2L Staff Editors Jessica Buckelew Christopher Edwards Jillian Held Fabio Dworschak Leticia Hernandez Jonathan Litner Nick Major Kevin Margado Jocelyn McCurtain Nancy Mendez Callie Tift Faculty Advisors Catherine O’Neill Eric Eberhard Research Advisor Kelly Kunsch Table of Contents

1. An American Indian Supreme Court

Eugene R. Fidell …...………………………………………………...... 1

2. The Utility of Amicus Briefs in the Supreme Court’s Indian Cases

Matthew L.M. Fletcher ……………………………………………………38

3. Native American Winters Doctrine and Stevens Treaty Water Rights: Recognition, Quantification, Management

Rachael Paschal Osborn ….……………………...…………………...... 76

4. Tribal Advocacy and the Art of Dam Removal: The Lower Elwha Klallam and the Elwha Dams

Julia Guarino …..……………………………..…………….…………....114

5. The Washington State Indian Child Welfare Act: Putting the Policy Back Into the Law William N. Smith and Richard T. Okrent ………….…………………..146

6. Asserting Treaty Rights to Harness the Wind on The Great Lakes

Gerald Carr ………………………………………………………………173

7. The Unextinguished Militia Power of Indian Tribes

Seth Fortin………………………………………………………………..210

8. Until Yesterday Deterring and Healing the Cyclical Gender Based Violence in Indian Country Samantha Ivette Morales……………………………………………….275 9. Political Cooperation and Procedural (In)Justice: A Study of the Indian Reorganization Act Sam Thypin-Bermeo……………………………………………………..300

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AN AMERICAN INDIAN SUPREME COURT

Eugene R. Fidell*

INTRODUCTION

In 1978, a judge of the United States Court of Military Appeals1 described military justice as the third system of American criminal law, and noted that the Uniform Code of Military Justice governed more people than live in eighteen states.2 Actually, there is a fourth system of American law: American Indian tribal courts. Unlike courts-martial, tribal courts also have civil jurisdiction. Although these courts are better known than they were in 1978, collectively they serve more people than several states, are studied at a growing number of law schools, and recently obtained important legislation expanding their criminal jurisdiction.3 However, they still do not cast the kind of shadow they should over the landscape of American law. The current state of affairs presents an opportunity for Indian tribes. As I will explain, the creation of an American Indian Supreme Court would strongly serve sovereign tribal interests.

* Senior Research Scholar in Law, and Florence Rogatz Visiting Lecturer in Law, Yale Law School. I am indebted to the students in my Federal Indian Law and American Indian Tribal Law classes and Sam Deloria, Richard Du Bey, Matthew L.M. Fletcher, Joshua A. Geltzer, Linda Greenhouse, Peter Jaszi, BJ Jones, Ezra Rosser, Catherine T. Struve, Gerald Torres, and Luther A. Wilgarten, Jr. for important insights and challenging questions; to the staff of the Lillian Goldman Law Library for lightning-fast assistance; and to the Federal Bar Association’s Indian Law Section for the opportunity to share my early thoughts on this topic at Pojoaque. See Eugene R. Fidell, An American Indian Supreme Court: Need, Benefits, Costs, in FED. B. ASS’N, 36TH ANN. INDIAN L. CONF., BEST PRACTICES AND CONTINUING CHALLENGES IN FEDERAL INDIAN LAW, COURSE MATERIALS 381 (2011).

1 Created in 1950, the court has been known as the United States Court of Appeals for the Armed Forces since 1994. See National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 924(a)(2), 108 Stat. 2663, 2831 (1994); Special Session for Court Name Change, 42 M.J. 9 (1994). 2 William H. Cook, Courts-Martial: The Third System in American Criminal Law, 3 S. ILL. U. L.J. 1 (1978). 3 Recent legislation has widened tribal jurisdiction to include non-Indians for certain offences. Compare Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), with Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014).

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This article will begin with an overview of the place of tribal courts in the American judicial landscape, particularly their relationship with federal and state court systems. It will then describe a number of proposals for a nationwide tribal court. Finally, it will set forth a proposal for a nationwide American Indian Supreme Court, identifying a number of procedural and structural issues—some large, some not so large—that would have to be addressed in bringing such an entity into being.

I. OVERVIEW AND HISTORY

A. The Tribal Judiciary and Its Relationship With Federal and State Courts

Roughly 300 of the 566 federally acknowledged Indian tribes have courts or dispute resolution systems.4 They dispose of thousands of cases every year. These courts are as varied as the tribes they serve: some tribes have traditional courts, some have courts pursuant to constitutions approved under the Indian Reorganization Act of 1934 (IRA), some rely on pre-IRA Courts of Indian Offenses,5 some share trial courts with other tribes, some participate in inter-tribal courts, and many have appellate courts (either their own or inter-tribal ones).6 However, at present, there is no nationwide appellate tribal court.

4 See Tribal Courts and the Administration of Justice in Indian Country: Hearing Before the S. Comm. on Indian Affairs, 110th Cong. 9 (2008) (statement of Hon. Roman J. Duran, First Vice Pres., Nat’l American Indian Court Judges Ass’n); STEVEN W. PERRY, U.S. DEP’T OF JUSTICE, CENSUS OF TRIBAL JUSTICE AGENCIES IN INDIAN COUNTRY , 2002 (Tina Dorsey et. al eds., 2005), available at www.bjs.gov/content/pub/pdf/ctjaic02.pdf (last visited Jan. 5, 2014). According to Sen. Byron L. Dorgan, there were, in 2008, “about 290 tribal district courts and more than 150 tribal appellate courts.” S. Hrg., supra note 4, at 1. It is astounding that, as Professor Fletcher notes, “no one really knows how many tribal courts there are . . . .” Matthew L.M. Fletcher, Am. Indian Legal Scholarship and the Courts: Heeding Frickey’s Call, 4 CALIF. L. REV. CIR. 1, 10 (2013). 5 See 25 C.F.R. § 11 (2013). These are colloquially known as “CFR courts.” For a general description of the methods of establishment of tribal courts see COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.04[3][c][iv][B], at 265-66 (2012) [hereinafter COHEN’S HANDBOOK]. 6 These include the Southwest Intertribal Court of Appeals, see Christine Zuni, The Southwest Intertribal Court of Appeals, 24 N.M. L. REV. 309 (1994); NORTHWEST INTERTRIBAL COURT SYSTEM, http://www.nics.ws/ (last visited Jan. 5, 2014); INTERTRIBAL COURT OF NORTHERN CALIFORNIA; INTERTRIBAL COURT OF SOUTHERN CALIFORNIA, http://icsc.us/ (last visited Jan. 5, 2014); NORTHERN PLAINS INTER-TRIBAL COURT OF

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Current federal law requires litigants to exhaust tribal court remedies,7 including appellate remedies,8 before seeking relief in the Article III courts. It does not, however, provide for direct appellate review of decisions of any tribal court, trial or appellate, in any Article III court.9 Tribal court prison sentences are, however, subject to district court habeas corpus review pursuant to the Indian Civil Rights Act (ICRA).10 ICRA imposed important minimal procedural safeguards on tribal courts,11 which are not subject to the United States Constitution.12 The Article III courts may also exercise collateral review of decisions of tribal courts where a litigant claims that the tribal court has exceeded its jurisdiction. State courts enjoy no direct appellate jurisdiction over tribal courts.

B. A Survey of Previous and Recent Proposals

Proposals for nationwide courts of one kind or another to deal with matters of Indian law have a long history and no discernible results. By way of preface to my proposal, it may be helpful to survey the earlier suggestions. The idea seems to be a hardy perennial, although it has morphed over time.

One such proposal appeared in an early version of the IRA. Commissioner of Indian Affairs, John Collier, proposed to establish a Court of Indian Affairs.13 However, Professor Vine Deloria Jr. asserts that

APPEALS, http://www.npica.org/ (last visited Jan. 5, 2014); INTERTRIBAL COURT OF APPEALS OF NEVADA, see Jill Greiner, Appellate Law in Nevada Indian Country: The Inter-Tribal Court of Appeals, Nevada Lawyer, Aug. 2011, at 16. 7 National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 856-57 (1985) (federal question cases); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16-19 (1987) (diversity cases). 8 LaPlante, 480 U.S. at 17. 9 Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 ARIZ. ST. L.J. 113, 240 & n.444 (2002) [hereinafter Clinton, No Federal Supremacy]; Laurie Reynolds, “Jurisdiction” in Federal Indian Law: Confusion, Contraction, and Supreme Court Precedent, 27 N.M. L. REV. 359, 383 & nn.165-66 (1997). 10 25 U.S.C. § 1303 (2006). 11 25 U.S.C. § 1302 (2006), amended by TRIBAL LAW AND ORDER ACT OF 2010, Pub. L. No. 111–211, § 234(a), 124 Stat. 2258, 2279 (2010). 12 E.g., Talton v. Mayes, 163 U.S. 376 (1896) (tribal court not subject to Fifth Amendment requirement for indictment by grand jury). 13 Collier proposed to establish a ‘Court of Indian Affairs’ consisting of a chief judge and six associated. This court would accept all cases that presently go into federal district

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“[t]he Collier proposal was virtually dead after the March [1934 tribal] congresses because it was difficult for Indians to conceive of and their response was generally to oppose change.”14 Senator Burton Wheeler wrote in a memoir “when I began looking over the original draft, there were many provisions I didn’t like. It set up a special judicial system for the Indians, with a federal judge to try only Indian cases. I thought it was a crazy idea and had it thrown out in committee.”15

courts and handle all inheritance and competency issues. It could also order the removal of any case involving Indians in a state of tribal court, to be heard by the Court of Indian Affairs. And it would be the national appeals court for the newly authorized tribal courts. It would even handle penalty cases and all crimes for which a term of five or more years in prison would be the penalty. State law, except where it was superseded by federal and tribal law, would prevail in civil cases.

Judges would serve for a period of ten years and would be subject to removal with the consent of the Senate for any cause. Appeals from the Court of Indian Affairs would be to circuit courts, apparently based on the residency of the parties or the geographical origin of the case. Ten special federal attorneys were to be appointed to advise and represent Indian tribes and communities. The court would also be empower to hold hearings and conduct cases wherever the case might arise, suggesting that Collier had in mind a court that would periodically travel through Indian country and create dockets from the activities in each region. Considering the complete chaos that we presently see in the field of Indian litigation, Collier’s idea sparkles with brilliance. Most essential in his idea is the degree of homogeneity this court would bring to federal Indian law. . . . VINE DELORIA, JR., THE INDIAN REORGANIZATION ACT: CONGRESSES AND BILLS xiv (2002) [hereinafter DELORIA, REORGANIZATION ACT] (discussing H.R. Doc. No. 7902, Sess. tit. IV at 17-19 (1934)).See also 1 H. Comm. on Indian Affairs, Hearings on Readjustment of Indian Affairs, 73rd Cong. 12-14 (1934). The provision for jurisdiction over appeals from courts of “any chartered Indian community” appeared in § 6. H.R. Doc. No. 7902. It applied only to “cases in which said Court of Indian Affairs might have exercised original jurisdiction.” Id. 14 DELORIA, REORGANIZATION ACT, supra note 13, at xv. See also FRANCIS PAUL PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS 959-63 (1995). According to Collier’s annual report for 1934, “[t]he entire title creating a special court of Indian affairs was omitted and consideration of this subject adjourned until the next Congress. In view of the chaotic state of Indian law enforcement, it is important that this subject be given adequate consideration and that early remedial action be had.” FRANCIS PAUL PRUCHA, DOCUMENTS OF UNITED STATES INDIAN POLICY 228 (2000) (statement of Comm’r of Indian Affs., Ann. Rep. for 1934). 15 ELMER R. RUSCO, A FATEFUL TIME: THE BACKGROUND AND LEGISLATIVE HISTORY OF THE INDIAN REORGANIZATION ACT 234 & n.18 (2000), (quoting BURTON K. WHEELER & PAUL F. HEALY, YANKEE FROM THE WEST 315 (1962)). Cohen and Melvin Siegel appear to have originated the idea for the court. RUSCO, supra, at 193, 197-98, 201.

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However, Felix Cohen described the proposed court at the tribal congresses that were part of Collier’s road show “This court would be of help not only to the Indian communities which ask for a charter under this act and receive charters, but also to the tribes which do not want charters. We hope that all the Indians will be given a voice in the selection of the judges. . . .”16

In short, this Court of Indian Affairs would have had appellate jurisdiction over tribal courts, criminal jurisdiction over major crimes, and judicial review jurisdiction over acts of the Commissioner of Indian Affairs.17 It “would have jurisdiction over conflicts between Indian communities and the outside world, if they arose,” and could order a tribe to comply with its charter,18 but would not have jurisdiction over Indian claims against the federal government. Those were to remain within the jurisdiction of the Court of Claims.19 Despite calls for revival of the idea, Congress found Collier unsalable and expendable,20 and once Wheeler killed it in committee, it sank without a trace.

16 DELORIA, REORGANIZATION ACT, supra note 13, at 43. Cohen also expressed, I hope I have made it clear why we need a special federal court in addition to the local Indian court. It is because there are many cases which are too important for a local court to want or to have the right to handle. It is because you want a court of the highest authority before which each community and each individual can bring any grievances that may arise in the administration of the new policies of the administration. I ask you to remember when you discuss any provisions of this bill that wherever there is a provision which seems as if it might work an injustice on an Indian, that Indian will have the right to come before this court and insist, first, on his constitutional rights as a citizen of the United States, and, second, on his special rights as are given him by the charter of his community. Id. at 44. 17 The Court of Indian Affairs would deal, among other things, with any disputes between the community and one of its officers. If the community shuts out one of its members and doesn’t live up to its constitution and its charter, why then that member, or the Secretary or the Commissioner acting on his behalf, can go into the Federal Court and compel the community to act in accordance with its charter. . . . And if any member of a community has any rights in the community he could go into this court and get protection. Id. at 124. The court “would come to the reservation and do its work right here where you are.” Id. at 150; see also id. at 339. 18 Id. at 309. 19 Id. at 383. 20 See VINE DELORIA, JR. & CLIFFORD M. LYTLE, THE NATIONS WITHIN: THE PAST AND FUTURE OF AMERICAN INDIAN SOVEREIGNTY 131, 152-53, 162-63 (1984).

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Even so, since the 1930s, a variety of proposals have been advanced, some of which include a court that looks beyond a single reservation. For example, in 1978, the National American Indian Court Judges Association’s Long Range Planning Project offered suggestions for inter-tribal appellate systems. The Association’s report recommended that “[i]nter-tribal appellate systems should be established to insure a body of appeals judges who have no conflict of interest.”21 To be sure, there is no suggestion here of a nationwide tribal appellate court, but there is a recognition of the inherent limits of trying to dispense justice solely within the metes and bounds and political framework of a single tribe.

As noted, several inter-tribal appellate courts have come into being, along either regional or cultural lines. One notable idea that has, so far, proven to be stillborn was a proposal for a Great Sioux Nation Supreme Court.22 Nonetheless, that effort, which built on a “long-held cultural ideal and vision of the tribes of the Great Sioux Nation,”23 remains both timely and useful for its authors’ identification of numerous critical questions of judicial organization and administration, and options for their resolution.

21 NAT’L AMERICAN INDIAN COURT JUDGES ASS’N, INDIAN COURTS AND THE FUTURE 123 (1978). In addition to “the traditional way of the tribe,” the report noted three alternative approaches: 1. An appeals panel could be made up of judges from one cultural unit, such as all Apache reservations, and judges from reservations other than the one where the trial was held would hear appeals. This approach insures cultural integrity. 2. Judges from a different reservation could hear an appeal. The judges should be aware of tribal traditions. This method avoids conflicts of interest. 3. A permanent appeals court made up of present or past Indian judges or tribal elders who are familiar with tribal traditions could be established. Id. 22 See generally Frank Pommersheim & John P. LaVelle, Toward a Great Sioux Nation Judicial Support Center and Supreme Court: An Interim Planning and Recommendation Report for the Wakpa Sica Historical Society’s Reconciliation Place Project (The Great Sioux Supreme Court), 17 WICAZO SA REV. 183, 216 (2002), available at http://www.upress.umn.edu/journal-division/Journals/wicazo-sa-review (last visited Jan. 6, 2014) [hereinafter Pommersheim & LaVelle]. The eligible tribes would have been the eleven Sioux tribes in the Dakotas and Nebraska, eight tribes that signed the 1851 and 1868 Treaties of Ft. Laramie, and four other Sioux tribes in Minnesota. Id. at 216-17. For background on the proposed court, see Steven J. Gunn, Compacts, Confederacies, and Comity: Intertribal Enforcement of Tribal Court Orders, 34 N.M. L. REV. 297, 327-29 (2004). See also Omnibus Indian Advancement Act of 2000, Pub. L. No. 106-568, § 412, 114 Stat. 2868, 2905. 23 Pommersheim & LaVelle, supra note 22, at 216; see also id. at 224.

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These include who will decide which tribes would be invited to participate, what the court’s relationship would be to existing tribal appellate courts, its jurisdiction, judicial selection and terms of office, governing law, regulation of the bar, and enforcement of judgments.24 The proposal set forth below repeatedly reflects points raised by the Great Sioux Nation proposal’s authors, Professors Frank Pommersheim and John LaVelle.

In 1990, Professor Robert Clinton proposed a Court of Indian Appeals in light of his concern about “how to accommodate such review with the sovereignty and autonomy of the tribes and nevertheless provide some assurance that the tribal governments discharge their legal responsibilities as part of the federal union.”25 One of two admittedly imperfect solutions he offered26 was “for the tribes, by collective action and with the cooperation of Congress, or less preferably for Congress unilaterally, to create a standing specialized Court of Indian Appeals.”27 Professor Clinton felt his plan would dispel much of the criticism surrounding tribal court judgments.28

24 Id. at 217-224. Without an enforcement mechanism, a new court would be toothless: all symbol and no reality. 25 Robert N. Clinton, Tribal Courts and the Federal Union, 26 WILLAMETTE L. REV. 841, 889 (1990) [hereinafter Clinton, Tribal Courts]. 26 The other was to extend the Supreme Court’s certiorari jurisdiction to final judgments of tribal courts. Id. at 893 n.126. Professor Reynolds would also extend the certiorari jurisdiction to any tribal court ruling that involved a federal question. Laurie Reynolds, Exhaustion of Tribal Remedies: Extolling Tribal Sovereignty While Expanding Federal Jurisdiction, 73 N.C. L. REV. 1089, 1153-54 (1995). 27 Clinton, Tribal Courts, supra note 25, at 890 & n.123. Furthermore, this court would be composed of independent judges formally appointed by the President but selected from and by the tribes. This court would serve as an appeals court of last resort to hear appeals from all tribal courts in matters raising questions under ICRA or other federal laws in which the tribal decision was adverse to the federal claim. Id. 28 The judicial independence of such a court and its supra-tribal nature should ameliorate the concerns of critics of tribal enforcement of the Indian Civil Rights Act who argue that tribal court enforcement of claims made under that Act cannot finally be committed to non-independent judges who sometimes are members of the tribe in question, who have no judicial independence, and who are sometimes pressured or removed from office for enforcing the mandates of federal law. Furthermore, staffing such a specialized court with Native American judges, who are familiar with reservation life and the special legal problems posed by the interface of Indian customary and written federal, state, and tribal law, would obviate the objections of tribal critics of federal court review who fear that federal court review will ignore special tribal problems and conditions and undermine the

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The following year Michael Pacheco, an attorney in Oregon suggested an Article III Federal Indian Court of Appeals (FICA) “to avoid the inconsistent rulings rendered by the various federal courts on Indian matters” by removing “those matters from the current federal appellate review scheme.”29 Although there is much of value in Pacheco’s plan, important aspects are, as I will elaborate below, unwise and contrary to the larger interests of Indian tribes. In any event, nothing of substance came of either his or Professor Clinton’s proposals.

sovereignty of the various Indian tribes. While such a specialized national Indian Court of Appeals may be an appealing solution to many of the problems raised by critics of Martinez, this solution is not without difficulty. Indian sovereignty does not exist for Indian people as a whole; rather, it exists for each tribe. A single Indian Court of Appeals would not have the familiarity with the history, traditions, customary law, or conditions of each tribe needed to balance and accommodate its interpretations of the Indian Civil Rights Act or other federal laws with the actual interests or problems faced by the tribe whose decisions are at issue. Nevertheless, it is far more likely that a pan-tribal court composed of Native American judges could perform that delicate role better than a federal district judge who may never have set foot on an Indian reservation and who may have no familiarity with tribal traditions or governance. Id. at 892 (In the United States Supreme Court case Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), the Court held that no federal cause of action could be implied under the Indian Civil Rights Act of 1968 (ICRA) that would permit federal district courts to entertain civil claims brought under the Indian Civil Rights Act). 29 Michael M. Pacheco, Finality in Indian Tribunal Decisions: Respecting Our Brothers’ Vision, 16 AM. INDIAN L. REV. 119, 154 & n.197 (1991). Eschewing any suggestion “that Indian tribunals should be under a separate judicial system,” Id. at 154. his plan had nine elements: (1) Congress should create and maintain the FICA. (2) The FICA should hear all appeals from Indian tribunals. (3) FICA decisions may only be reviewed by the United States Supreme Court by writ of certiorari. (4) The FICA should be comprised of panels with seven Native Americans on each panel. (5) A simple majority of the appellate panel should originate from the litigant tribe’s membership. If two tribes are involved, one neutral tribe panelist should preside. (6) The governing law should be that of the litigant tribes, the United States Constitution, and the relevant states, in that order of preference. (7) The judges for the appellate panels should be elected for life by the tribes’ members with no requisite amount of Anglo legal training. (8) The judgments of the FICA should be respected, receiving full faith and credit from all the states and other tribes. (9) The guiding principle of the FICA should be to assure that tribal rights are upheld even when adverse to a federal claim. Technical violations of federal law should not suffice for Supreme Court review. Id. at 155. For Mr. Pacheco’s discussion of these features, see id. at 155-64.

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Within a few more years, Michael C. Blumm and Michael Cadigan put forward yet another variant, a more radical plan, with a view, quite simply, to “eliminat[e] the [United States] Supreme Court from Indian law,”30 and vest “an Indian Court of Appeals…with the jurisdiction taken from the Supreme Court.”31 This new court’s jurisdiction “would be limited to questions of federal law in cases where (1) any party is a member of a tribe; (2) the issue concerns an Indian reservation, an Indian’s or tribe’s land, water or other property, or involves an Indian government; or (3) the dispute originates in Indian country” as defined in 18 U.S.C. § 1151.32 Its decisions would be exempt from review by the Supreme Court.33

The basis for the Blumm and Cadigan proposal was that the Supreme Court had become “hostil[e] to the concept of Indian sovereignty.”34 While I agree that the Court has in recent decades been (and continues to be), on the whole, hostile to tribal sovereignty, this particular proposal would simply rearrange the judicial deck chairs.35 It has gained no traction in the twenty years since it was advanced. Moreover, it has nothing to do with the law developed by tribal courts, or the purposes served by my own proposal.

There have been at least three additional proposals of note. One would have created a two-tier Inter-Tribal Business Court to adjudicate disputes under a proposed Inter-Tribal Economic and Trade Treaty. The court would have relied on the Northwest Inter-Tribal Court System, but participating tribes could opt out and use their own courts for trials, appeals, or both.36 The idea seems not to have gained traction.

30 Michael C. Blumm & Michael Cadigan, The Indian Court of Appeals: A Modest Proposal to Eliminate Supreme Court Jurisdiction over Indian Cases, 46 ARK. L. REV. 203, 232 (1993). 31 Id. at 232. 32 Id. at 233 & n.172. 33 Id. at 234. 34 Id. at 206. 35 See John J. Tutterow, Annotation, Federal Review of Tribal Court Decisions: In Search of a Standard or a Solution for the Problem of Tribal Court Review by the Federal Courts, 23 OKLA. CITY U. L. REV. 459, 490 (1998). 36 See generally Robert J. Miller, Inter-Tribal and International Treaties for American Indian Economic Development, 12 LEWIS & CLARK L. REV. 1103, 1113, 1133-34 (2008). The proposal to rely on the Northwest Inter-Tribal Court System reflects the likelihood

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Another proposal was floated in 2010, when, in the course of analyzing membership disputes, Professor Suzianne Painter-Thorne urged tribes to “more fully assert their right to determine tribal membership by creating wholly independent judicial bodies such as an intertribal appellate court that would provide independent review of tribal membership decisions. Such a system would also provide redress for those aggrieved by enrollment decisions, quieting critics’ cries for federal oversight.”37

Professor Painter-Thorne has in mind something less than a nationwide institution38 when she suggests the need for an inter-tribal appellate court system “operated by the tribes rather than an outside government,” and notes that such a forum “would strengthen the credibility of tribal courts and render any claim for federal review unnecessary.”39 This inter-tribal appellate court has many benefits, such as, “parties’ cases could be heard before a neutral panel, leading to a greater perception of fairness and due process, and, thus, legitimacy of tribal enrollment

that only a few cases would arise under the treaty, making the “creation (and funding) of an entirely new court . . . unfeasible and duplicate.” Id. at 1113. 37 Suzianne D. Painter-Thorne, If You Build It, They Will Come: Preserving Tribal Sovereignty in the Face of Indian Casinos and the New Premium on Tribal Membership, 14 LEWIS & CLARK L. REV. 311, 346-47 & nn.330-31 (2010). She went on to say: Ideally, an intertribal appellate court would oversee appeals from the courts of multiple tribes, in much the way the United States Courts of Appeal[s] review appeals from district courts in their constituent states. Each tribe would have the option to become a member of an intertribal appellate court as an addition to their current tribal court system. The courts would be staffed and operated by the tribes themselves. In so doing, these “intertribal courts of appeal” would provide a level of judicial independence in the review of membership decisions that critics charge is currently lacking under the current structure of tribal governments and court systems. Id. at 346-347. 38 Perhaps, Painter-Thorne envisions a nationwide institution that would function on a regional basis: A court system designed by the tribes could account for [tribal] diversity by organizing it so that tribes with similar histories or cultures are grouped together. Further, because one court would not be charged with reviewing decisions from all tribal courts, each court would have oversight over fewer tribes, reducing the complexity that would be a natural consequence if federal courts were involved. Id. at 352 (emphasis added). 39 Id. at 349 & nn.347-48.

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decisions. Consequently, the main complaint against tribal sovereignty over membership decisions would be silenced.”40

Finally, Professor Wenona Singel has broadened the inquiry with a creative program for an “intertribal human rights regime in Indian country.”41 Her proposal, which candidly acknowledges the significant impediments it would face,42 entails the negotiation of norms to be included in a treaty, as well as, “an institutional framework for enforcement” that would reflect “examples set by the human rights instruments and institutions established by the United Nations and other regional systems.”43 The details of the enforcement framework will be critical to a full assessment of the proposal, but her article strongly implies that norm interpretation would be local, even if the norms themselves are pan-Indian.44 Her focus is on negotiated norms, whereas the proposal outlined below presupposes norms from various sources, but provides new enforcement machinery. Thus, the two concepts are not only incompatible, but actually complementary.

II. THE PROPOSAL

I propose the creation of an opt in nationwide American Indian appellate court, building on the experience of existing inter-tribal appellate courts and the insightful work of earlier commentators. Professors Pommersheim and LaVelle may have been ahead of their time when they

40 Id. at 349-50 & nn.352-53. She also stated: [T]he creation of an intertribal appellate court system would not require a change to any existing tribal government or court structure. Instead, it would provide an external layer of review in addition to whatever court system the tribe currently possessed. In fact, the structure of the court would be in tribal hands, ensuring continued tribal autonomy and sovereignty over its courts and membership decision making process. Further, decisions would be based on tribal law, tribal culture, and traditions. This would be possible because such a court system would be created, staffed, and operated by the tribes themselves. Consequently, such a court system would have a level of cultural awareness lacking in federal court adjudications of claims involving membership disputes. Id. at 351 & nn.364-69. 41 Wenona T. Singel, Indian Tribes and Human Rights Accountability, 49 SAN DIEGO L. REV. 567, 608 (2012). 42 E.g., id. at 619-20 (noting tribal tendency to isolationism and concerns over sovereignty). 43 Id. at 612. 44 Id. at 616-17.

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outlined a Great Sioux Nation Supreme Court, and Professor Clinton may have been doing the same when he proposed certiorari review of tribal decisions by the Supreme Court of the United States. I believe now is the time to set our sights even higher, although I am under no illusions that success will come easily.45 As Professor Pommersheim observed in connection with his own dramatic proposal for fundamental change in the legal environment within which tribes function, “this is the time to seize the initiative to advance the dialogue.”46

A. Potential Benefits

The potential benefits of creating a nationwide inter-tribal supreme court would be significant and would far outweigh the costs.

The potential benefits include (1) an Indian-built, -funded, and - staffed institution on an equal footing with federal and state courts; (2) increased accountability of tribal officials;47 (3) greater deference by Congress and the federal courts to tribal court decisions; (4) reduced danger of aberrant tribal court decisions that invite federal court interference; (5) a model for improved judicial independence throughout

45 In 2009, James BlueWolf identified as one alternative approach to the improvement of tribal governance the “creat[ion of] an American Indian Supreme Court to mediate all approved appeals to mediate internal tribal issues.” James BlueWolf, Native Government, SPEAK WITHOUT INTERRUPTION (Mar. 4, 2009), www.speakwithoutinterruption.com/site/2009/03/native-government/ (last visited Jan 13, 2014). He was not optimistic: Yeah right! Like the Tribal governments would ever agree to that! In the meantime many natives continue to live without equal protection under the law, yet are subject to all the penalties and transgressions of both the American government and their own. It will be left to our children and grandchildren to figure out a solution. Id. 46 FRANK POMMERSHEIM, BROKEN LANDSCAPE: INDIANS, INDIAN TRIBES, AND THE CONSTITUTION 257 (2009). Professor Pommersheim’s suggestion, id. at 307, for a constitutional amendment to better protect “[t]he inherent sovereignty of Indian tribes” from the shifting sands of congressional “plenary power” whim and Supreme Court jurisprudence is more far-reaching than the present proposal, but requires a kind of action that the Framers intentionally made extremely difficult. By comparison, the current proposal asks relatively little of Congress, and the central elements of it could move forward without congressional action of any kind, much less a constitutional amendment. For an insightful review of Broken Landscape see Angela R. Riley, Book Review, 60 J. LEGAL EDUC. 569 (2011). 47 See Singel, supra note 41, at 608-11 (noting adverse internal and external effects).

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Indian Country; (6) independent adjudication, by an Indian institution, of politically sensitive intra-tribal governance disputes and inter-tribal disputes such as access to culturally significant sites, natural resource allocation, child custody and other family law matters, and dual- membership issues; (7) reduced litigant recourse to federal and state courts; (8) economies of scale in the delivery of appellate justice; (9) encouragement of commerce with off-reservation interests by providing a reliable body of tribal law; (10) accelerated development of judicial expertise; and (11) accelerated development of a nationwide American Indian bar. Less directly related to the administration of justice, but still highly salient, in my view, is a final potential benefit: (12) affording this and succeeding generations of Indian leaders the opportunity to engage in institution building on a larger canvas than hitherto.

Some of these potential benefits are more likely to come to fruition than others. Some will be considered insubstantial, irrelevant, downright undesirable, or perhaps even insulting, depending on the observer. For instance, the third outcome—greater congressional and judicial deference to tribal court decisions—would be of great value, but, quite plainly, its realization would be a function of the unpredictable shifting political winds in Washington, and in the case of judicial deference, might take decades to achieve, assuming it were to come about. That kind of time frame, it seems to me, is unacceptable.

B. Potential Drawbacks

As with any new endeavor, there will be new costs, including unanticipated consequences. A new court will require capital and operating expenditures for facilities and salaries. Unless the new court takes the place of some existing inter-tribal appellate courts, adding a further tier to the appellate structure48 will add to the time and expense of litigation under existing exhaustion doctrine,49 potentially dis-incentivizing

48 This is what Professor Painter-Thorne has in mind. Painter-Thorne, supra note 37, at 351 & n.365 (referring to “an external layer of review in addition to whatever court system the tribe currently possessed”). Professors Pommersheim and LaVelle, considering a Great Sioux Nation Supreme Court, argue strongly against replacing existing tribal appellate structures. Pommersheim & LaVelle, supra note 22, at 217. 49 See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987).

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litigants to resort to tribal court. Unfortunately, there is no way to handicap how litigant behavior might be affected. Nor is it clear whether addition of this tier would serve or disserve tribal interests. Thus, it could be argued that the sheer difficulty of obtaining review by the Supreme Court of the United States in routine cases challenging the exercise of jurisdiction by tribal courts is in itself an advantage that tribal interests may be loath to relinquish. On the other hand, there is no particular reason to believe that the Supreme Court would be more likely to review jurisdictional decisions by the proposed court than it is to review Article III courts of appeals decisions on tribal jurisdiction under current federal jurisprudence. It would be a hard sell, in any event, given the Court’s parsimonious exercise of its power to grant certiorari. From this perspective, addition of the new court to the tribal appellate layer-cake seems likely to be either imponderable, or at worst, a wash.

Above all, tribal leaders and rank-and-file members will be alert to the danger that establishing a new court would compromise the autonomy of individual tribes. However, five features of this proposal minimize that danger: (1) the entire system would be the result of negotiations in which any tribe that wished to participate could do so or not at its sole discretion; (2) participation would be strictly on an opt in basis; (3) participating tribes could opt out; (4) the agreed-upon framework for the new court would be subject to review at stated intervals; and particularly significantly, (5) a participating tribe could legislatively overrule for the future any misinterpretation of its law.

C. Proposed Elements of the Court

Following are key elements of the proposal. The accompanying notes refer to sources and models, and identify policy questions. Plainly, these elements reflect the forms of judicial organization and administration known to and employed in the dominant society as well as many existing tribal and inter-tribal courts. To the extent there are alternatives that spring from or reflect Indian customs and institutions, modes of legal reasoning, and perspectives on the administration of justice, these should be given careful consideration so that the new court would be tribal in fact, as well as in name. What follows reflects my conviction that although the need for

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a nationwide inter-tribal court can be debated “’til kingdom come,” the concept cannot fully be evaluated until the discussion among stakeholders gets granular.

1. The Court Would Be Called the American Indian Supreme Court and Would Be a Court of Record.

A variety of names suggest themselves. I propose this one for the basic reason that it advertises the fact that it is the highest court of a jurisdiction. Since one of the purposes of the exercise is to place tribal law on as equal a footing as possible with state and federal law, the name settled on will have considerable significance.

An alternative that involves a few more keystrokes, but usefully underscores the tribal, rather than the pan-Indian character of the court is “American Indian Nations Supreme Court.” It has been used in connection with the mock re-arguments of major Indian law cases at the University of Kansas’ School of Law’s annual Tribal Law and Governance Conferences.50

The proposal is not predicated on either the abolition or the withering-away of intra- or inter-tribal appellate courts. Whether those courts would endure in the new environment that would include an American Indian Supreme Court will be a function of how events unfold over time.

2. The Court Would Be Established By Multilateral Inter- Tribal Agreement (MITA).

Since there is no existing nationwide inter-tribal political entity,51 an ad hoc multilateral agreement seems to be called for. This is consistent

50 See Stacy L. Leeds, Foreword: 2003 Tribal Law and Governance Conference, 14 KAN. J.L. & PUB. POL’Y 47 (2004). See also CAROLE E. GOLDBERG, REBECCA TSOSIE, KEVIN K. WASHBURN & ELIZABETH RODKE WASHBURN, AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM 424 (2010). 51 The National Congress of American Indians (NCAI) is of course inter-tribal, but some federally recognized tribes are not members, and in any event, it lacks governmental authority. NCAI would be one of the key institutional players in the consideration of any proposal along the lines of the one set forth in this article.

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with the view that each tribe is an independent sovereign. The effective reality is that the MITA would be in the nature of a compact, for which there is precedent.52 One premise of this exercise is to avoid congressional involvement, even though that may mean the loss of a potentially important funding source. Others may feel that the game is worth the candle.53

Getting to the point of negotiating a MITA, and then actually negotiating one, are beyond the scope of this essay. However, it is worth mentioning that without a sound process that includes an array of confidence- building strategies, the chances of success on the merits are nil, given the kind of cultural and political impediments that Professor Singel and others have identified.54 Matters that would have to be addressed include the selection of a balanced organizing committee, distinguished conveners, rapporteurs and other experts; funding; transparency policies with respect to public participation and media access; and the identification and drafting of deliverables.

3. The Court Would Not Be Created By an Act of Congress or Funded By the United States.

The overarching concept is that the court is to be a creature of Indian America, not of the federal government. Consistent with this is the provision below that calls for the court’s seat to be in Indian Country, and not in Washington, D.C. Some collateral aspects of establishment of the new court may require legislation. An example is the concept, noted below,55 of extending the United States Supreme Court’s certiorari jurisdiction to decisions of the new court that involve federal questions. The core concept would remain that the new court would be an Indian creation, not a congressional one.

52 See NAVAJO NATION & HOPI TRIBE, INTERGOVERNMENTAL COMPACT (Nov. 3, 2006), available at http://www.bia.gov/cs/groups/public/documents/text/idc-001890.pdf (last visited Nov. 25, 2013). 53 See Pacheco, supra note 29, at 155 (urging that “Congress should create and maintain the FICA”). 54 E.g., Singel, supra note 41, at 617-21. 55 See infra text accompanying notes 91-100.

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4. The Court Would Be Incorporated and Otherwise Organized so as to Ensure the Deductibility of Contributions for Federal Income Tax Purposes.

Practical considerations arising from the Internal Revenue Code drive this part of the proposal. Deductibility will be critical if charitable contributions are to play more than a trivial role in the business plan. Despite the overall philosophical approach set forth above, one option is to secure a federal charter from Congress. Selection of any particular state in which to incorporate implies a posture of subservience that is to be avoided if possible. A preferable solution might be to incorporate under tribal law, but because the court would be inter-tribal, doing so might be objected to as implying linkage to a particular tribe.

5. The MITA Would Be Subject to Review By the Participating Tribes After Five Years and at Five-Year Intervals, Thereafter.

Realism dictates some kind of scheduled review. Such a provision would allow participating tribes a chance to take stock of how the court and the MITA were holding up in real life. Additionally, it would likely allay fears of the new entity in some quarters. Periodic review of international agreements, especially those that were tough to negotiate in the first instance, is not uncommon to afford States parties an opportunity to take stock of actual experience in the early years of a new institution and to make mid-course corrections.56

6. The MITA Would Establish Only an Institutional Framework for the Adjudication of Cases, Although Substantive Rules of Law Could Be Added By Subsequent Agreement.

This is a very important provision. The concept is that the MITA would be an empty vessel, merely creating a structure and a process, rather than substantive norms. Professor Singel’s proposed Indian

56 E.g., Treaty on the Non-Proliferation of Nuclear Weapons, art. VIII(3), 729 U.N.T.S. 161 (1970), entered into force, Mar. 5, 1970; Rome Statute of the International Criminal Court, art. 123, 2198 U.N.T.S. 3 (2002), entered into force, July 1, 2002.

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Country human rights program could provide the substance (as could Professor Pommersheim’s constitutional amendment), and the court would be an appropriate framework for implementing those and other norms. One can speculate that, over time, tribes would move in the direction of enforceable inter-tribal norms on such subjects as adjudication of tribal agency action, common enrollment standards, or electoral matters. The court could play a role in that process.

7. Participation Would be Open On an Opt In Basis to All Federally-Recognized Tribes and Any Other Indian Tribe, Whether or Not State-Recognized, if the Participating Tribes Unanimously Agree That the Tribe Should Be Permitted to Participate.

The opt in concept is central to the proposal, but this feature highlights some major Indian Country policy issues that would need to be addressed in the MITA. If it is desired to downplay the federal role in designing the new institution, federal recognition could be dispensed with as a qualification for participation. Tribes that participate in the negotiation of the MITA may feel that state recognition is sufficient, but there will be differences of opinion on that.

Which tribes will be covered “is definitely a threshold question that must be answered and will likely set the tone for the entire project.”57 Tribes that have neither federal nor state recognition present a weak case for eligibility. Moreover, the requirement for unanimity may effectively exclude many, if not all, state-recognized or entirely unrecognized entities. Left unresolved is whether that requirement would afford state-recognized and unrecognized tribes (assuming they were permitted to participate) a veto under the unanimity clause when other such tribes seek to become participants.

Whether the door should be open to Canadian First Nations that are culturally related to tribes within the United States is an issue that may arise,58 and obviously would require close study.59 More pressing is

57 Pommersheim & LaVelle, supra note 22, at 217. 58 Id.

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whether there is a place in the proposed institution for the many federally recognized tribes that do not yet have court systems. The basic concept for an American Indian Supreme Court is that it would be in essence an appellate tribunal, but it is not hard to imagine that a court-less tribe might still find it desirable to opt in. For example, such a tribe might use other institutions, such as a tribal council, to perform adjudicatory functions that lend themselves to appellate review, such as membership decisions. Additionally, the court might develop in such a way that it could include a trial-level division for tribes that were too small or impecunious to support a trial court of their own.

8. Tribes Could Opt Out of the MITA Only at Stated Intervals, and Any Opt Out Would Have No Effect on Pending Cases or The Validity of Final Judgments.

Allowing unscheduled departures would materially harm the court and the entire project. Experience with international tribunals teaches that participating tribes may be tempted to bolt at the first sign of serious trouble. Hence, these precautions discourage defections and preserve the Rule of Law.

9. The Procedure Employed By Any Tribe For Deciding to Opt In or Out Shall Be Determined By the Tribe in Accordance With Its Own Law, But the Validity of Such a Decision May Be Subject to Review by the Court.

In a perfect universe, the court would not be placed in the position of deciding whether a tribe has validly opted in or out, but there may be no

59 Thus, it was observed in Cherokee Nation v. Georgia, 30 U.S. 1, 17-18 (1831), that the Cherokees “and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion [sic] with them would be considered by all as an invasion of our territory, and an act of hostility.” See also United States v. Pink, 315 U.S. 203, 233 (1942) (“power over external affairs . . . is vested in the national government exclusively”). Thus, the Department of State does not recognize passports issued by tribes. U.S. DEP’T OF STATE, TRAVEL DOCUMENTS ISSUED BY NATIVE AMERICAN TRIBES OR NATIONS OR PRIVATE ORGANIZATIONS, 7 FOREIGN AFFAIRS MANUAL § 1300, APP. O. On the other hand, many American cities, which, as mere municipal corporations, lack any claim to sovereignty, have made sister-city agreements with cities in other countries.

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alternative. The issue would be in the nature of a political question for which tribal organs of government must be responsible in the first instance. Questions will inevitably arise as to whether a group purporting to speak for a tribe in fact does so.60

10. Participating Tribes Would Waive Their Sovereign Immunity to Whatever Extent They Have Waived It In Proceedings In Their Own or Other Courts and for Such Other Categories of Cases, as the MITA Provides.

One would hope that tribes would broadly waive their immunity in cases before the court. Professor Painter-Thorne says this is necessary “so that the appeals court would have authority to review membership decisions.”61 This will be a challenge in the MITA negotiations, and the end-result may be waiver only as to certain causes of action. This matter would likely be revisited in the periodic review process.

Unlike, for example, the arrangements applicable to the Southwest Intertribal Court of Appeals,62 participating tribes would not be permitted to exclude certain kinds of cases.

11. The Court Would Be Funded Exclusively By Tribes, and From Private Charitable Contributions Under an Equitable Formula that Reflects Tribes’ Varying Demographic and Economic Circumstances.

Filing fees may generate a small income stream for the court, although any fee schedule should make allowance for in forma pauperis filings. Even mentioning charitable contributions may have the wrong connotation, since the whole idea behind the proposal is to erect an emphatically Indian institution, reliant on no one else. Nonetheless, financial support from philanthropic organizations could play an important part in negotiating the MITA and launching the court. Nor should such support for operating funds be rejected out of hand, especially before the

60 E.g., Picayune Rancheria of Chukchansi v. Rabobank, Civil No. 13-609 (E.D. Cal. 2013); Shenandoah v. U.S. Dep’t of Interior, 159 F.3d 708 (2d Cir. 1998). 61 Painter-Thorne, supra note 37, at 351 & n.362. 62 See Christine Zuni, supra note 6.

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willingness and ability of tribes to negotiate and contribute their fair share has become clear. Negotiation of an equitable formula will inevitably be a challenge. Regrettably, the Indian Gaming Regulatory Act as currently written does not permit tribes to allow other, less well-off tribes to benefit from Revenue Allocation Plans.63 Inter-tribal wealth transfers may be worthy of further exploration.

12. The Court Would Have Jurisdiction (1) Over Decisions of the Highest Court of a Tribe in Which Judgment Could Be Had; and (2) Subject to the Exhaustion of Any Applicable Tribal Court Remedies, Over Tribal Administrative Agencies, and Other Adjudicatory Bodies.

This language seeks to capture all tribal adjudication, whether the deciding body is a court, an agency, or the tribal council.64 The issuance of tribal regulations could also be subject to review by the court. The “highest court” concept is drawn from 28 U.S.C. § 1257(a), since there may be instances in which an existing tribal appellate court’s jurisdiction is discretionary. Where that court denied discretionary review, the American Indian Supreme Court’s review would run to the next lower tribal court.65

The proposal takes no position on whether a final judgment below is required.66 It does contemplate appellate review as of right rather than as a matter of discretion; although, this could be revisited if the court’s caseload were to expand dramatically. Cases that present issues that are either less complicated or less important might be disposed of summarily (i.e., without plenary briefing and argument, and typically without precedential effect), in keeping with the practice of the Article III courts of appeals. More important cases, or ones that involve an inter-tribal split on a point of law, could be heard en banc. Nothing would prevent the court

63 25 U.S.C. § 2710 (2006). 64 See COHEN’S HANDBOOK, supra note 5, § 4.04[3][c], 264 & n.78 (citing 25 U.S.C. §1903(12) (2006)). 65 Professor Clinton included a comparable provision in his alternative proposal. Clinton, Tribal Courts, supra note 25, at 893 n.126 (analogizing to 28 U.S.C. § 1257 (2006)). 66 The Southwest Intertribal Court of Appeals permits appeals from non-final orders by permission. S.W. Intertribal R. App. P. 3(f).

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from engaging in mere error correction, but it would not have general “supervisory authority” over lower tribal courts.67

An alternative approach would be to confine the court’s appellate jurisdiction to the resolution of inter-tribal disputes and cases presenting issues of generic interest and importance within Indian Country. Limiting the jurisdiction to cases that meet some threshold of importance would imply that the court was a kind of constitutional court. In the absence of a governing document or agreed body of jurisprudence that functioned as a constitution for all tribes, such a limitation would represent a mismatch between the institution and the political environment.

Finally, a confidence-building strategy could be adopted. The tribal negotiators could agree to a gradual approach to jurisdiction, starting with those categories of cases that are most in need of independent extra-tribal appellate review, such as electoral, membership and other governance- related issues. Alternatively, they could start at precisely the other end of the spectrum, with those categories of cases that least trench on tribal autonomy, and that are therefore presumably less likely to be divisive. Garden-variety tort or contract cases would meet this description. The choice is one of strategy, in gauging the nature and depth of political support and opposition. Depending on experience under the initial approach to jurisdiction, a more expansive approach could later be developed.

67 Professors Pommersheim and LaVelle would limit their proposed Great Sioux Nation Supreme Court to “cases that have sufficient import across the Sioux Nation as a whole.” Pommersheim & LaVelle, supra note 22, at 218; see also id. at 222 (suggesting appealability as of right only for “cases involving challenges to tribal jurisdiction, civil rights (e.g., due process/equal protection claims), election disputes, and commercial issues”). The proposal presented here is more aggressive. Any concern over “floodgates” can be met through the judicious use of summary disposition. At the same time, the present proposal would present far less of a floodgates challenge than Professor Clinton’s alternative suggestion for Supreme Court review of tribal court decisions on federal questions by writ of certiorari, Clinton, Tribal Courts, supra note 25, at 893-97, simply because tribes outnumber states by a ratio of more than 11:1.

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13. The Court Would Have Original Jurisdiction Over Cases Arising Between or Among Participating Tribes.

One can easily imagine inter-tribal cases involving dual- membership issues; family law matters, such as adoption, child custody, and child welfare; burial controversies; and water and other natural resources issues.68 Given the federal role in maintaining cadastral information for reservations, it is unlikely that the court’s original jurisdiction would reach inter-tribal boundary issues like the interstate boundary issues occasionally adjudicated by the Supreme Court of the United States.69

14. The Court Would Have Power to Issue Writs of Habeas Corpus and to Release Persons on Reasonable Bail or Personal Recognizance and to Issue All Other Writs Necessary or Appropriate In Aid of Its Jurisdiction and Agreeable to the Usages and Principles of Law.

The last clause is lifted from the All Writs Act.70 In a proper case, the court could entertain a petition for an extraordinary writ based on its potential appellate jurisdiction,71 although that power would be exercised sparingly. While federal courts may issue writs of habeas corpus at the request of persons held in custody in violation of ICRA,72 giving express recognition to the new court’s power to do so may reduce the number of habeas cases that wind up in the federal courts.

68 For types of cases that might qualify see United States v. State of Washington, Civil No. 9213, Subproceeding 09-1 (W.D. Wash. July 8, 2013) (inter-tribal dispute over “usual and accustomed fishing grounds”); Hopi Tribe v. Navajo Nation, Civil No. 13-8172 (D. Ariz. filed July 5, 2013) (pending) (access of one tribe to designated areas of another tribe’s reservation for religious purposes); Thlopthlocco Tribal Town v. Stidham, WL 65234 (N.D. Okla. 2013), appeal pending, No. 13-5006 (10th Cir. filed Jan. 11, 2013) (relationship between federally-recognized tribal town and Muscogee (Creek) Nation); see also Hopi Tribe v. Navajo Nation, Civil No. 13-8172 (D. Ariz. Nov. 8, 2013) (dispute over inter-tribal compact remanded for arbitration). 69 E.g., New Jersey v. New York, 523 U.S. 767 (1998). 70 28 U.S.C. § 1651(a) (2006). 71 See La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 254-55 (1957). 72 See 25 U.S.C. § 1303 (2006); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

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15. The Court Would Have Authority to Issue Advisory Opinions.

This is a judgment call. The federal ban on advisory opinions is rooted in Article III’s case or controversy requirement,73 which is inapplicable to tribal courts. Some tribal courts issue advisory opinions,74 as do some state courts.75

16. The Court Would Have Authority to Certify Questions of State Law to the Highest Court of a State, and to Respond to Questions of Tribal Law Certified By a Federal or State Court, But Only if the Courts of the Tribe Whose Law is in Issue Have No Provision for Responding to Certified Questions.

Some tribal codes already make provision for responding to requests for rulings on questions of tribal law.76 Because the proposal contemplates that tribal courts will in general be the authoritative judges of tribal law, the court would only respond to certified questions of tribal law where the tribe’s own courts make no provision for such responses.

17. The Court’s Decisions Would Not Be Subject to Direct Appellate Review By Any Other Court, With the Sole Exception That Congress Could Authorize the Supreme Court of the United States to Review Its Decisions On Federal Questions.

A major policy issue lurks here. On the one hand, the overarching principle is to create a free-standing Indian appellate court, liberated from

73 U.S. CONST. art. III, § 2, cl. 1. 74 E.g., S.W. Intertribal R. App. P. 3(c), 4(b); In re Termination and Settlement Agreement Between Mashpee Wampanoag Tribe, the Mashpee Wampanoag Indian Tribal Council, Inc., TCAM L.L.C., KSW Mass, L.L.C., At Mashpee, L.L.C., and Detroitma, L.L.C., Case No. CV-10-005 (Mashpee Wampanoag 2010) (finding jurisdiction to render advisory opinions); In re Certified Question re Village Authority to Remove Tribal Council Representatives, No. 2008-AP-0001 (Hopi App. 2010); In re Certified Question from the U.S. District Court for the Dist. of Arizona, 8 NAV. R. 134 (2001); MATTHEW L.M. FLETCHER, AMERICAN INDIAN TRIBAL LAW 648-58 (2012) (collecting cases). 75 E.g., Opinion of the Justices to the Senate, 430 Mass. 1205 (2000). 76 E.g., Hopi Ord. 21, § 1.2.1.8(a).

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direct federal review or control. On the other hand, it would make little sense for tribal court decisions on questions of federal law77 to be impervious to review by the Supreme Court of the United States.78 At present, unless a case meets the detention requirement for ICRA habeas corpus,79 the only federal question a federal court can consider on collateral review of a tribal court ruling is whether the tribal court had jurisdiction. If the federal court finds that the tribal court lacked jurisdiction, it will address any other federal question that was presented de novo; if the federal court finds that the tribal court had jurisdiction, it is functus officio and cannot properly examine the correctness of any ruling the tribal court made on a federal question. Such rulings would thus, under present law, be impervious to review by any Article III court.80

Direct review by the Supreme Court, rather than through collateral proceedings begun afresh in the district courts (much less an “appeal” to those courts),81 would treat the Indian forum as possessing the same dignity as the highest court of a state.82 Sovereignty, however, is a tribe- by-tribe matter, rather than a concept applicable in gross to tribal America as a super-tribal entity in its own right.83

77 E.g., Tulalip Tribes v. 2008 White Ford Econoline Van, No. TUL-CV-AP-2012-0404 (Tulalip App. 2013) (ICRA excessive fines clause applicable to civil forfeiture proceedings under tribal code). 78 Mr. Pacheco proposed that “FICA decisions may only be reviewed by the United States Supreme Court by writ of certiorari.” Pacheco, supra note 29, at 155, 157. As noted above, he also argued that “[t]echnical violations of federal law should not suffice for Supreme Court review.” Id. at 155, 163. What he meant by this is unclear. 79 E.g., Mitchell v. Seneca Nation of Indians, 2013 U.S. Dist. LEXIS 46579 (W.D.N.Y. Mar. 29, 2013), citing, e.g., Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996). 80 It strains the imagination to envision a system for certification of federal questions to the Supreme Court of the United States by the American Indian Supreme Court, which in theory would be an alternative. 81 See Gregory Schultz, The Federal Due Process and Equal Protection Rights of Non- Indian Civil Litigants in Tribal Courts After Santa Clara Pueblo v. Martinez, 62 DENVER U.L. REV. 761, 783-84 (1985). 82 See Clinton, Tribal Courts, supra note 25, at 885 & n.113, 893-94. 83 Id. at 892 (“Indian sovereignty does not exist for Indian people as a whole; rather, it exists for each tribe.”).

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There may be controversy over whether Congress could confer this jurisdiction on the Supreme Court,84 but it is hard to see why it could not do so since the Supreme Court undoubtedly has constitutional appellate jurisdiction over decisions of other non-Article III courts such as the territorial and military courts, not to mention state courts, which are themselves not Article III entities. To the extent that the American Indian Supreme Court might construe or apply a tribal treaty or an Act of Congress such as ICRA, the Violence Against Women Reauthorization Act, Indian Child Welfare Act, or Indian Gaming Regulatory Act, one would think its decisions would be within the judicial power of the United States under the “extend” clause of Article III, § 2, and therefore, within Congress’ authority over the Supreme Court’s appellate jurisdiction under the 85 Exceptions and Regulations Clause.

Even if federal questions were reviewable by the Supreme Court of the United States, tribal grounds of decision would not be so reviewable, just as is the case with state grounds of decision.86 The Supreme Court could apply the same kind of test in determining whether a decision of the American Indian Supreme Court rested on an adequate and independent tribal ground, as it does in determining whether a state court decision rests on an adequate and independent state ground.87 Tribes, however, might

84 See Clinton, No Federal Supremacy, supra note 9, at 240. A decade ago, Professor Struve saw no constitutional impediment to legislation “providing for Supreme Court review of the judgment of a tribe’s highest court.” Catherine T. Struve, How Bad Law Made a Hard Case Easy: Nevada v. Hicks and the Subject Matter Jurisdiction of Tribal Courts, 5 U. PA. J. CONST. L. 288, 314 & n.117 (2003) (citing, inter alia, THE FEDERALIST NO. 82). 85 But see COHEN’S, supra note 5, § 4.04[3][c] at 260-269. The foregoing discussion is not intended to suggest that Congress could not confer appellate jurisdiction over the new court on the Article III courts of appeals (or one of them). I agree with Professor Struve regarding Congress’s power. Struve, supra note 84, at 314 & n.117. I do not offer that approach because I believe review by a federal court below the level of the Supreme Court would not be in keeping with the dignity of an American Indian Supreme Court. 86 Hortonville Joint School Dist. No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 488 (1976); see also Clinton, Tribal Courts, supra note 25, at 886. 87 Michigan v. Long, 463 U.S. 1032 (1983). See Tutterow, supra note 35, at 500 (arguing that “such a non-review doctrine is both logically and politically appropriate to apply in the tribal court context”). Professor Clinton would exempt from review by the Supreme Court of the United States tribal court decisions that “over-vindicate” federal rights. Clinton, supra note 25, at 893 n.126. The difficulty with this, as he recognizes, is that it would “create nonuniformity.”

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find it wise to argue that the presumption ought to be, on the contrary, that an ambiguous decision of the new court rested on tribal, rather than federal law grounds, the better to recognize the autonomy of tribal law and cabin external review.

18. The Rules of Decision in Cases Before the Court Would Be the Constitutional, Statutory, Customary, or Common Law of the Tribe From Whose Court or Agency an Appeal Has Been Taken; Inter-Tribal Agreements; Indian Common Law; Federal Constitutional, Treaty or Statutory Law; State Law; and the Common Law.

This is inspired primarily by the practice of the Southwest Intertribal Court of Appeals.88 Primacy should be afforded to tribal law, although tribes have taken a variety of positions as to the sequence in which various sources of law will be turned to as rules of decision.89 Whether the court should deem itself bound by federal law that the relevant participating tribe has not affirmatively adopted would likely be a matter of dispute.90

Thinking deeply a decade ago, about the governing law that would apply in a Great Sioux Nation Supreme Court, Professors Pommersheim and LaVelle asked, “Is the objective uniformity, diversity, or a principled blend of both?” They correctly concluded that “there is no right or wrong way.”91 An American Indian Supreme Court would have to feel its way, ever mindful of the fact of tribe-by-tribe autonomy. The outcome will turn on the court’s ability to navigate what could be a series of political minefields. It will be a function of many factors, chief among them its willingness and ability to explain itself in terms that will resonate for and gain the support of tribal leaders.

88 See Zuni, supra note 6 (court “applies the law of the tribe which the tribe itself has adopted and recognizes”). 89 The Rules of Decision Act for federal courts is 28 U.S.C. § 1652 (2006). 90 See generally Robert Odawi Porter, The Inapplicability of American Law to the Indian Nations, 89 IOWA L. REV. 1595 (2004). 91 Pommersheim & LaVelle, supra note 22, at 223.

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19. Judgments of the Court Would Be Binding on The Parties and Enforceable By Writ Directed to Any Officer of Any Participating Tribe and, to the Extent Provided By Federal or State Law, Any Federal or State Officer.

Enforceability of tribal court judgments is currently recognized in the Indian Child Welfare Act.92 This part of the proposal adopts a pan-Indian approach to the extent that it requires officers of any participating tribe to enforce the court’s judgments,93 even though the proposal as a whole does not have a pan-Indian tilt as to jurisprudence.94 The MITA could not confer enforcement authority on federal and state officials. Although the current proposal emphatically does not look to Congress to create the new court, Congress and the states would have to make provision for enforcement of judgments.

20. A Tribe Would Be Entitled to Present Its Views as an Amicus Curiae in Any Case in Which It Is Not a Party.

This is broadly inspired by Supreme Court Rule 34.4 and the practice of the Supreme Court of the United States in inviting the views of the Solicitor General. If a case were to turn on a question of federal law,

92 25 U.S.C. § 1911(d) (2006). 93 See Pommersheim & LaVelle, supra note 22, at 224 (identifying alternative approaches). 94 Pan-Indianism is in tension with the concept of tribe-by-tribe autonomy. See Ezra Rosser, Ambiguity and the Academic: The Dangerous Attraction of Pan-Indian Legal Analysis, 119 HARV. L. REV. 141 (2006). Professor Fletcher has pointed out the “peril” of “careless invocation of inter-tribal common law or, worse, the invocation of pan-Indian customs.” FLETCHER, supra note 74, at 117. With 566 federally-recognized tribes, anti- pan-Indianism could lead to chaos and reduce the esteem which tribal law might otherwise enjoy. No hard-and-fast position needs to be taken with respect to the centrifugal forces generated by a tribe-by-tribe approach when designing the proposed court, but it should be borne in mind that even without a nationwide appellate court the law of each individual tribe hardly exists in perfect isolation from the law of other tribes as matters now stand, given the increasing ease with which decisions can be accessed as well as the fact that some tribal court judges serve or have served on more than one court. To some this will be objectionable, but it does seem inevitable that over time a nationwide court would tend, at least around the edges, to harmonize tribes’ separate bodies of jurisprudence, although positive law, such as constitutions and ordinances, would remain entirely within each tribe’s discretion and could serve as a powerful check on such a tendency.

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the views of the Solicitor General of the United States could also be requested.

21. The Court Would Maintain a List of Public Interest Organizations That Would Be Invited or Permitted When Appropriate to File Briefs as Amici Curiae.

Some United States Courts of Appeals maintain “public interest lists” of nongovernmental organizations that are from time to time invited to file briefs as amici curiae

22. A Tribe Could Overrule the Court’s Interpretation of Tribal Law By Amending Its Constitution or Laws or Codifying Its Customary or Decision Law, But No Such Amendment or Codification Would Affect the Rights of Parties Under a Final Judgment.

This is a key provision. The concept behind the court’s role is that it would be acting as if it were the highest court of a tribe, much as the Privy Council purports to be an integral part of the court structure of the particular British jurisdiction from which a case arises.95 If the competent tribal body concluded that the court had misinterpreted some point of tribal law, that entity could set matters straight by modifying the underlying ordinance or declaring the point of customary law. Such an overruling would bind the court, albeit only in futuro, and only if the restated version did not offend some principle of law with higher standing, such as (presumably) an Act of Congress. Final money judgments would be sacrosanct.96

23. The Court Would Have a Chief Justice and Fourteen Associate Justices, of Whom Nine Would Be a Quorum.

The size of the court will be a function of its anticipated caseload, cost, and the need to accommodate competing regional and tribal

95 Ibralebbe v. R., A.C. 900, 921-22. 96 See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Previously entered injunctions could be affected by subsequent tribal legislation. See Miller v. French, 530 U.S. 327, 344 (2000).

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expectations for representation on the bench. The larger the court, the more unwieldy it becomes97 and the less judging any particular Justice will do, but the easier to achieve tribal balance and diversity.

24. The Court Would Sit En Banc in Inter-Tribal Cases and Other Cases of Unusual Importance or to Reconcile Conflicting Panel Decisions.

This is broadly based on the practice of the United States Courts of Appeals.98

25. Justices Would Be Selected or Elected By the Participating Tribes Under Agreed-Upon Rules Regarding Geographical, Cultural, Land-Mass, Population, Gender, and Economic Balance.

Few aspects of the proposal are as likely to engender controversy as the manner of selecting the court’s members. A tribe that does not feel that it will have a fair chance to participate in that process is highly unlikely to opt in or, having opted in, to remain in when the court’s decisions may have dramatic effects on issues of great symbolic and practical importance to the tribe and its members. Whether because of concern over inter-tribal disputes or internal governance issues with serious political implications, tribes are going to look for real guarantees of fairness before breathing life into the new entity. Should there be a one- tribe, one-judge standard or should tribal membership data be taken into account—and if the latter, who should be counted? Should a tribe have a right to have one of its own, or a judge of its own selection, sit on any case in which it has an interest? As is obvious, there are many variables, and the diversity of recognized tribes in terms of population and other factors will make resolution of this threshold challenge fiendishly difficult. The importance of broad agreement on this score cannot be overstated.

The manner of selecting the Chief Justice and Associate Justices would have to be settled in the MITA negotiations. Negotiators could draw

97 See Pommersheim & LaVelle, supra note 22, at 219. 98 See FED. R. APP. P. 35.

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on such models as the International Court of Justice, the International Criminal Court, and the European Court of Human Rights. The participating tribes might usefully consider some arrangement analogous to the UN Security Council, whereby the largest tribes would be guaranteed permanent representation on the court. This part of MITA negotiations will be among the most challenging.

26. No More Than One Justice May Be a Member of Any Particular Tribe. A Person Who, for the Purposes of Membership of the Court, Could Be Regarded as a Member of More Than One Tribe Shall Be Deemed to Be a Member of the Tribe in Which That Person Ordinarily Exercises Civil and Political Rights.

This is drawn from Article 7 of the Rome Statute of the International Criminal Court. It is desirable to have a judge from the tribe whose law is being applied sitting on the panel that hears a case, since that judge will be more familiar with the pertinent tribal jurisprudence. Having a mix of tribes represented can serve as a useful check on the rigor of the decision.

27. At the Time of Selection or Election, Every Justice Would Have to (1) Be a Member of a Participating Tribe; (2) Hold a Law Degree; (3) Have Been Admitted to Practice in a Federal or State Court for at Least Five Years; and (4) Have Been a Member of the Bar of a Tribal Court for at Least Five Years.

There are numerous policy judgments to be made with respect to eligibility for election to the court. A major issue is whether only members of participating tribes would be eligible to serve on the court. Potential compromise options would be to permit some number—presumably a minority—of non-Indians to serve or to permit members of nonparticipating tribes to serve.

A major structural issue is whether non-lawyers should be entirely excluded, even if they possess special knowledge of customary law. The proposal contemplates lawyer-judges. An alternative would be to permit

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the election of some number—presumably a minority—of non-lawyers who have specialized knowledge of customary law. Inclusion of these individuals might reduce the court’s standing vis-à-vis other American legal institutions. This concern could be alleviated by permitting no more than one lay judge on a panel.

28. Only Persons Who Have Served as a Tribal Judge or a Judge of a Federal or State Court of Record for at Least Five Years Would Be Eligible to Serve On the Court.

MITA negotiators might wish to consider whether the prior judicial service requirement would be unduly restrictive, as it would exclude law professors and practitioners who may be highly knowledgeable in Indian law but had never served as judges or had not served for the requisite period. It would also exclude some number of present or former tribal chiefs, presidents, or chairs.

29. Justices Would Be Paid Out of a Central Fund For Time Actually Spent On the Court’s Business.

It is likely that the Chief Justice would have to spend full time on the business of the court. Associate Justices might need to serve only part time, depending on how the caseload develops over time.

30. Justices Would Serve for Five Years, Renewable Once.

Terms of office should be of sufficient duration to provide both the substance and appearance of judicial independence.99 Given the number of tribes that might participate, there will be considerable tension between

99 Professors Pommersheim and LaVelle correctly argue that “[t]wo-year or even three- year terms appear too short to allow the [Great Sioux Nation Supreme] Court to establish roots, consistency, and the necessary rules that face any court in its initial steps of development.” Pommersheim & LaVelle, supra note 22, at 219. The point would seem to apply even more strongly to a nationwide court. Given the number of tribes eligible to participate and the desire to involve as many of them as reasonably possible in the interest of achieving both broad knowledge and tribal “buy-in,” life tenure, which one author proposed, see Pacheco, supra note 29, at 151, 161, would be a dreadful idea. Much of what Professors Pommersheim and LaVelle outline for the Great Sioux Nation Supreme Court is very sound, but their view that lifetime appointments are possible and worthy of consideration, Pommersheim & LaVelle, supra note 22, at 219, seems misplaced, particularly if – not that they suggested this – applied to a nationwide court.

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the need for stability and the need for turnover. In any event, judicial terms should be staggered.100

31. Justices Would Be Removable Only for Disability, Misconduct, or Neglect of Duty.

The MITA would have to include procedural and substantive provisions for removal of Justices for cause.101 One approach would be to require a supermajority—two-thirds or three-quarters—of participating tribes to agree to a removal.

32. Associate Justices Would Be Allowed to Serve Concurrently On the Court and On One or More Tribal Courts, But Would Not Be Permitted to Sit On Cases Arising In Any Tribal Court of Which They Are a Judge.

Permitting concurrent service on tribal courts would make good use of the talent and learning of tribal judges. Justices of the court should not be permitted to work for any agency of the federal government, to avoid any possible institutional conflict of interest. Otherwise qualified former federal officials, however, could be an excellent source of disinterested judicial talent and should not be viewed as ineligible.

33. The Court Would Have a Dedicated Courtroom, Clerk’s Office, Marshal, and Judicial Center at Some Fixed Location in Indian Country, But Could Sit Anywhere In Indian Country or, for the Purpose of Improving Public Understanding of the Court, at Any Place In the United States.

The seat of the court will be important both symbolically and practically. Given the distribution of reservations across the United States, the court’s work will require it at times to “ride circuit.”102 This may impose some inconvenience and expense on litigants. The court’s facilities and ceremonials should be in keeping with the dignity of a court of last resort.

100 See Pommersheim & LaVelle, supra note 22, at 219. 101 Id. 102 See Pacheco, supra note 29, at 157.

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Co-location of the court at a law school in or near Indian Country may be a way of reducing library and other operating expenses. The court should not be prevented from hearing cases, on an exceptional basis, at law schools and other suitably dignified venues that will contribute to public understanding of the court and tribal law. Consideration could also be given to hearing argument telephonically or by video-teleconference in the interest of economy.103

34. The Court Would Issue Its Own Rules of Practice and Procedure, and Would Have a Rules Advisory Committee.

Judicial independence requires not only security of tenure and compensation, but also institutional independence. The court must be in a position to prescribe its own rules, and to adjust them in light of experience.

35. The Court Would Regulate Admission to Its Bar and Maintain Disciplinary Machinery to Ensure Professional Responsibility.

Control over its bar is also critical to the court’s independence. Large policy issues lurk with respect to admission to practice. Should an examination be required or should admission be reciprocal with state, federal, and tribal courts? Should a law degree be required? Should persons knowledgeable in customary law be permitted to appear (with or without attorney co-counsel)?104 A bar association can be a “critical partner of the judicial infrastructure in the effort to advance judicial legitimacy and also to provide a set of significant services that otherwise would overburden courts or go undone altogether.”105

103 See Appellate, THE NORTHWEST INTERTRIBAL COURT SYSTEM, (Sept. 1, 2010) http://www.nics.ws/appellate/appellate.htm (last visited Nov. 25, 2013). The Northwest Intertribal Court System at times hears appeals by telephone. 104 See generally Pommersheim & LaVelle, supra note 22, at 220-21. 105 Id. at 221.

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36. Indigent Parties Would Be Permitted to Appear Pro Se or, at the Court’s Discretion, the Court Could Appoint a Member of Its Bar to Represent Them Pro Bono Publico.

The new court may find its docket crowded with pro se cases. These cases may not be well presented and the court may have to take a more active role in the development of issues than would otherwise be the case. Appointment of pro bono counsel may alleviate this problem.

37. The Court Would Conduct an Annual Judicial Conference.

A Judicial Conference would be of unusual value given the court’s geographical sweep and the sheer number of potential and actual participating tribes. A conference also serves the interest in connecting the court to the bar, the legal academy, and federal and state opposite numbers. A Judicial Conference may also be a useful occasion for Continuing Legal Education programs. There already is a Tribal Judicial Conference under the auspices of the National American Indian Court Judges Association (NICJA). Rather than have competing conferences, one would hope the court and NICJA would pool their resources and collaborate on a single one.106

38. Justices Would Participate in Federal and State Judicial Conferences at the Court’s Expense.

Justices can be ambassadors for the court. Their presence at federal and state judicial functions will help to foster improved public understanding of the court’s work.

39. Decisions Would Be Made Available Online and Through Commercial and Noncommercial Outlets.

At present, tribal decisions are available through a welter of different systems. Some decisions are available online, either through free

106 For a discussion of some of the politics around a Tribal Judicial Conference, see Nell Jessup Newton, Let a Thousand Policy-Flowers Bloom: Making Indian Policy in the Twenty-First Century, 46 ARK. L. REV. 25, 38-47 (1993).

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tribal or organizational websites or via commercial fee-based providers. Other decisions are available only haphazardly or through informal personal networks. This Tower of Babel is a serious obstacle to the development of tribal law. Harmonization of the current patchwork system for publication of tribal jurisprudence is one area in which the court could play a leadership role. It could, for example, seek to work with Thomson Reuters to generate an “Analysis of Indian Law” that would supplant the “Indians” Digest Topic.107 Adoption of a PACER-type system108 for the court’s dockets, briefs, and decisions should be a priority. Additionally, oral argument records should be posted on the Internet promptly after any hearing.

40. Justices Would Have Permanent or Temporary Law Clerks That Hold Law Degrees and, in the Case of Permanent Law Clerks, are Members of the Bar of a State, Federal, or Tribal Court.

A combination of permanent and temporary law clerks may be desirable given the relatively short judicial terms of office contemplated. Serious personnel turbulence among both the Justices and the clerks would have an unsettling effect on its jurisprudence and institutional memory. There is no reason to rule out all reliance on law clerks who lack conventional legal training but are, for example, knowledgeable in customary law. There is, however, a danger in looking to internal court resources for customary law matters that ought to be a matter of proof if, as will likely be the case, they do not lend themselves to judicial notice.

107 See WEST’S ANALYSIS OF AMERICAN LAW 885-91 (2012) (listing key numbers for use in headnotes). 108 United States government legal documentation system standing for Public Access to Court Electronic Records.

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41. The Court Would Apply Principles of Indian Preference In Hiring109.

CONCLUSION

Opinions differ widely as to what lies in store for American Indian tribes. Some observers, whose views I respect, see events proceeding in a generally positive direction. Others, whose views I also respect, see bright spots on an otherwise gloomy horizon. Yet others may be filled with despair. I am in the second category. But, whichever of these perspectives proves the most accurate prediction of where the path leads, I suggest that there can be general agreement on the core principle that anything that tends to preserve and strengthen tribal autonomy and help place American Indian legal institutions on something more nearly approaching an equal footing with those of the dominant society is to the good. In that spirit, and with appreciation for those who have considered these issues in the past, I lay the foregoing proposal on the table for debate.

109 Section 703(i) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(i)(1982), provides an exception to Title VII’s general nondiscrimination principals allowing certain employers under certain circumstances to exercise an employment preference in favor of American Indians.

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THE UTILITY OF AMICUS BRIEFS IN THE SUPREME COURT’S INDIAN CASES

Matthew L.M. Fletcher

In the last days of the 2012 Term, the Supreme Court decided Adoptive Couple v. Baby Girl,1 possibly the highest profile Indian law case in decades.2 Given the stakes, it is not surprising that groups and individuals filed 32 amicus briefs in support of the parties.3 And yet the Supreme Court’s 5-4 decision, which included Justice Alito’s majority opinion, concurrences from Justices Thomas and Breyer, and dissents from Justices Scalia and Sotomayor, cited to exactly one amicus brief—

 Professor of Law, Michigan State University College of Law. Director, Indigenous Law and Policy Center. Reporter, RESTATEMENT, THIRD, THE LAW OF AMERICAN INDIANS. I owe significant inspiration for the article to Frank Pommersheim, Amicus Briefs in Indian Law: The Case of Plains Commerce Bank v. Long Family Land and Cattle Co., 56 S.D. L. REV . 86 (2011), and Douglas Laycock, Persuasion in Hot-Button Cases, in PERSUASION AND IDEOLOGY: POLITICALLY DIVISIVE CASES IN APPELLATE COURTS, 7TH ANNUAL MSU INDIGENOUS LAW CONFERENCE MATERIALS (2010). Miigwetch to the Stanford Native American Law Students Association—especially to the ever-patient Tom Pack—for allowing me to present this paper. And thanks to Dan Rey-Bear, Wenona Singel, and Kaighn Smith for comments.

1133 S. Ct. 2552 (2013). 2 National news commentators wrote repeatedly about the case, before and after the decision. E.g., Emily Bazelon, Send Veronica Back: A truly terrible ruling in the Baby Girl custody case, SLATE (July 18, 2013), http://www.slate.com/articles/double_x/doublex/2013/07/baby_veronica_case_the_south _carolina_court_got_it_wrong.html (last visited Nov. 24, 2013); Happy Ruling for Adoptive Couple, Uncertainty for Bab y Girl, NATIONAL PUBLIC RADIO (June 26, 2013), http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=195787510 &m=195787473 (last visited Nov. 10, 2013); Adam Liptak, Justices Hear Case of Indian Child Caught in Custody Fight, N.Y. TIMES (April 16, 2013), http://www.nytimes.com/2013/04/17/us/justices-hear-case-of-adopted-indian- child.html?ref=us&_r=0 (last visited Nov. 24, 2013). 3 The Native American Rights Fund complied each of the 32 amicus briefs filed in support of the respondents and the petitioners. See Native American Rights Fund, Tribal Supreme Court Project, Adoptive Couple v. Baby Girl (No. 12-399), Amici in Support of the Petitioners, available at http://sct.narf.org/caseindexes/adoptivecouplevbabygirl- amici_briefs_in_support.html (last visited Nov. 10, 2013); and id., Amici in Support of Respondents, available at http://sct.narf.org/caseindexes/adoptivecouplevbabygirl- amici_briefs_in_support_respondents.html (last visited Nov. 24, 2013).

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that of the United States.4 Did the other 31 amicus briefs make no impression on any of the Justices? What’s the point of filing an amicus brief in a hot-button Supreme Court case if there’s no evidence that the briefs have any impact?

Still, four times in the past 16 years, arguments or information raised by amici in Indian law cases before the Supreme Court have had dramatic impacts on the Court’s decision-making process in cases involving federal Indian law. In two cases involving government contracting, amicus briefs filed by the United States Chamber of Commerce supporting tribal interests played important roles in pointing out the impact the Court’s decision would have on defense and other government contractors.5 In another case, an amicus railroad company alleged that the procedures in one tribal court were stacked against nonmembers; apparently causing the Court to reconsider its views on tribal civil jurisdiction.6 In a fourth case, an amicus resuscitated a line of argument long thought to be retired from the field (in fact, none of the parties briefed the argument) and persuaded the Court to decide a case on that basis.7

What about these briefs, as opposed to the dozens upon dozens of other Supreme Court amicus briefs filed in the Court’s Indian cases, served to influence the Court so heavily? This short paper hopes to sort out a few general guidelines for amicus brief writers in federal Indian law cases by reviewing a series of amicus briefs and what we know about how the Court deals with them. In general, amicus briefs that provide the Court with factual and legal information not provided by the parties tend to be the most important amicus briefs, but there is no hard and fast rule.

The paper begins with a description of the subject area of federal Indian law; most particularly, the types of Indian law cases that reach the Court. Indian law is an unusual area, and has several non-legal

4 See Adoptive Couple v. Baby Girl, 133 S. Ct. at 2564 n. 9; and id. at 2577 n. 5 (Sotomayor, J., dissenting). 5 See Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181 (2012); Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005). 6 See Strate v. A-1 Contractors, 520 U.S. 438 (1997). 7 See City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).

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characteristics that affect how the Court decides these cases. Part I offers several reasons why an amicus strategy is usually important in the Indian cases. Part II parses through the array of amicus briefs in selected Indian law cases from the last few decades. Part III reviews more ge nerally the goals of amicus brief strategies in Supreme Court litigation. Part IV analyzes the impact the amicus briefs actually had on the outcome of selected cases by reviewing citations to and quotations of, amicus briefs within the selected cases. Part V offers conclusions.

I. THE IMPORTANCE OF AMICUS IN THE SUPREME COURT’S INDIAN CASES

There are several non-legal ways to describe American Indian law cases before the Supreme Court. First, the cases are very unpopular, unsexy cases for the Court. Jeffrey Toobin’s book notes that the clerks consider these cases “dogs.”8 Justice Brennan supposedly once referred to an assignment to write the opinion in an Indian law case as a “chickenshit” assignment.9 Senior Justices often assign the Indian law opinions to junior Justices.10 It is probably unlikely that a Supreme Court Justice will ascend to the High Court with an expertise in Indian law, although one sitting Justice (Sotomayor) has demonstrated that Indian law is a special area of her concern.11 Similarly, it seems unlikely that a sitting Justice would hire a clerk for their expertise in Indian law. And since few, if any, clerks come from law schools where Indian law is emphasized (mostly non-elite law schools in the west), it cannot be expected that Supreme Court clerks will have any experience with Indian law questions. That said, Supreme Court clerks are better than anyone in the world at getting up to speed in short order.

8 JEFFREY TOOBIN, THE OATH: THE OBAMA WHITE HOUSE AND THE SUPREME COURT 54 (2012). 9 BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 359 (1979). 10 Junior Justices authored the last three Indian law decisions. See Match-E-Be-Nash- She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) (Kagan); Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181 (2012) (Sotomayor); United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) (Alito). 11 See U.S. Supreme Court Justice Sonia Sotomayor Visits Law School, UNIV. NEW MEXICO, http://lawschool.unm.edu/news/archives/2011/september/sotomayor.php (last visited Nov. 24, 2013).

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Second, tribal interests12 are similarly disfavored by the Supreme Court. The outcomes in the Indian cases since the 1986 Term, when Chief Justice Rehnquist ascended, are stark—tribal interests have lost more than 75 percent of their cases before the Court, a figure the late Dean David Getches noted was worse than the failure rate of convicted criminals before the Court.13 It is also apparent from the Court’s certiorari decisions that the only Indian law cases that attract the Court’s attention are cases where the tribal interest has won below, or in the limited cases where the United States acquiesces to Supreme Court review.14 This is not to accuse the Justices or the Court as an institution of overt discrimination against tribal interests, but to note the extreme disadvantage tribal interests face before the Supreme Court. After all, tribal interests differ in fundamental ways than federal, state, business, foreign, and even individual interests in that tribal governance activities often are not sanctioned or constrained by the Constitution. Further, these fundamentally different tribal interests enter into a Court that gives weight based on the units of government most likely to represent consensus en mass, rather than the divergent views of a particular locality. Consider, for example, that the Supreme Court’s clerks decide the importance of a particular amicus brief by employing a hierarchy of sovereignties. Briefs of the United States government are highest on the list, followed by the state briefs (regardless of the quality of the brief), local units of government, and everyone else.15

Third, tribal interests are incredibly diffuse. More often in recent decades, tribal interests are on opposite sides, although this is rarely the

12 I use “tribal interests” to define the parties to which I am focusing. I include Indian tribes, individual Indians backed by or siding with a tribe, governmental and economic entities siding with a tribe, and individuals siding with a tribe. Occasionally, individual Indians are in opposition to this notion of “tribal interests,” most notably in criminal cases. E.g., United States v. Lara, 541 U.S. 193 (2004) (nonmember Indian challenge to “Duro fix”). 13 See David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Main-stream Values, 86 MINN. L. REV . 267, 280-81 (2001). 14 See Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as a Barrier to Justice for Indian Tribes, 51 ARIZ. L. REV . 933, 937 (2009). 15 See Kelly J. Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J. L. & POL. 33, 46-49 (2004).

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case in Supreme Court litigation, largely because the Court rarely finds inter-tribal disputes important enough to be worthy of the Court’s attention.16 This is important because of the reality that the Supreme Court’s decisions, absent some sort of check, apply universally to all of Indian country. The most obvious example is Oliphant v. Suquamish Indian Tribe,17 a decision barring tribal criminal jurisdiction over non- Indians involving an Indian tribe that had a tiny population, a nascent tribal judicial system, and limited resources. That decision applies to all Indian tribes, even those tribes with centuries-old criminal justice systems, control over massive territorial bases, and sufficient economic and legal resources to exercise prosecutorial authority, such as the Navajo Nation. 18 While it makes sense for some decisions to apply universally, it makes less sense in other cases.

Fourth, information about Indian country is relatively scarce. 19 There are few methodologically sound social science studies on tribal judicial systems, tribal economies, tribal legal infrastructure, and federal and state relations with Indian tribes; although, that is beginning to change.20 Legal scholarship on American Indian law is nascent and often skewed by political (and perhaps racial) biases. Representations made by

16 The last such case appears to be Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976). 17 435 U.S. 191 (1978). 18 See generally Sarah Krakoff, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent Nation, 83 OR. L. REV . 1109, 1185 (2004) (“In 1980, two years after Oliphant, an editorial in the Navajo Times complained: ‘The New Mexico State government appears to be totally unconcerned about the problems it has created in the checkerboard area with its decision to prohibit Navajo police from citing non-Indians into tribal courts.’”) (footnote omitted). 19 See Philip P. Frickey, Address at University of Kansas Conference on Tribal Law and Institutions, Feb. 2, 2008, Tribal Law, Tribal Context, and the Federal Courts, 18 KAN. J.L. & PUB.POL’Y 24, 32 (2008) (“The larger, non-Indian community simply does not know very much about tribal institutions and law. And what they don’t know tends not to hurt the larger community, but instead, to hurt tribes.”). 20 E.g., MARY E. GUSS, MIRIAM JORGENSEN, MELISSA L. TATUM, & SARAH DEER, STRUCTURING SOVEREIGNTY: CONSTITUTIONS OF NATIVE NATIONS (forthcoming 2014) (manuscript on file with author) (surveying tribal constitutional law).

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tribal advocates and their adversaries often cannot be independently verified by the Court and the clerks.21

Finally, federal Indian law primarily is federal common law. Like admiralty law, federal Indian law is the province of the Supreme Court. While Congress can and does preempt many areas within federal Indian law, large swaths of the field remain common law. In such circumstances, the Court’s uncomfortable role as policymaker and legislative judiciary arises. In one document—a private memorandum from Justice Scalia to Justice Brennan—discovered by the late Dean David Getches in Justice Marshall’s papers,22 Justice Scalia wrote that:

[O]pinions in this field have not posited an original state of affairs that can subsequently be altered only by explicit legislation, but have rather sought to discern what the current state of affairs ought to be by taking into account all legislation, and the congressional “expectations” that it reflects, down to the present day.23

21 A paradigmatic example is the amicus brief in Strate v A -1 Contractors, Brief for the American Trucking Ass'ns., Inc. et al. as Amici Curiae in Support of Respondents, Strate v. A-1 Contractors, 520 U.S. 438 (1997) (No. 95-1872), 1996 WL 711202, where the Court’s amici alleged damning procedural facts about a tribal court case at the Crow Nation’s reservation. See id. at 3. The amici alleged in the brief, which was a filed while the tribal court case was pending, that a tribal judge addressed the all-Indian jury in the language of the Absalooke people and suggested the case was a chance for them to punish the railroad for historic transgressions. If true, the allegations are particularly troubling, but it is, and would be impossible, for the Court to verify the truth of these allegations. 22 See David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV . 1573, 1575 (1996). 23 See id. (quoting Memorandum from Justice Antonin Scalia to Justice William J. Brennan, Jr. (Apr. 4, 1990) (Duro v. Reina, No. 88-6546) (hereinafter Scalia Memorandum), in PAPERS OF JUSTICE THURGOOD MARSHALL (reproduced from the Collections of the Manuscript Division, Library of Congress). Thanks to the David H. Getches Collection at the William A. Wise Law Library at the University of Colorado Law School, the memorandum is now available at Turtle Talk. See Matthew L.M. Fletcher, Scalia Memorandum to Brennan in Duro v. Reina, TURTLE TALK BLOG POST, http://turtletalk.wordpress.com/2012/11/13/scalia-memorandum-to-brennan-in-duro-v- reina/ (last visited Nov. 24, 2013).

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This unusually “frank admission”24 by a sitting Supreme Court Justice may overstate the case, but the fact remains that public policy is very much in play in the Court’s decision-making in Indian cases.

All of these factors make the role of amicus briefs very important in the Supreme Court’s Indian cases. Information about Indian tribes and Indian country is at a premium, and amicus briefs are critical sources for information. As the next two sections show, however, to a large extent the provision of critical information about Indian country is either, often not the goal of the Indian law amici, or is simply unsuccessful.

II. SELECTIVE SURVEY OF AMICUS BRIEFS IN INDIAN LAW CASES

Below, I outline four categories of amicus briefs for later review in the Court’s Indian cases.25 First, I identify “policy briefs” that provide new information useful to helping the Court predict the outcomes of its decision. I believe these briefs are likely to be the most influential on the Court (“influential” being relative, of course). Second, I identify “alternative merits argument briefs” that simply provide an alternative theory upon which the Court could rely in its ruling. The United States as amicus curiae is probably the party most likely to file this kind of brief, although other amici do on occasion. These briefs may be influential if the amicus is the United States; less so if it is anyone else. Third, I identify “support briefs” that merely support or reiterate the parties’ merits arguments. It is likely that the vast majority of amicus briefs fit inside this third category. I do not believe these amicus briefs are influential, but they may be very useful to the Court in focusing the Court’s attention on relevant precedents in cases where the parties do not, for whatever reason. Finally, historical briefs are useful in underscoring the origins of modern Indian policy, although their influence is far from clear. I include history briefs as support briefs, and set them aside for later discussion.

24 Frank Pommersheim, “New” Directions in Indian Law Scholarship: An Afterword, 32 AM. INDIAN L. REV . 157, 159 (2007-2008). 25 My categories differ, but not much, from other commentators’. E.g., Paul M. Smith, The Sometimes Troubled Relationship Between Courts and Their “Friends”, excerpted in RICHARD SEAMON, ANDREW SIEGEL, JOSEPH THAI, & KATHRYN WATTS, THE SUPREME COURT SOURCEBOOK 362, 366 (2013).

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An additional factor to consider is the organization and development of the Tribal Supreme Court Project, operated by the National Congress of American Indians and the Native American Rights Fund.26 The Project started actively participating and organizing the tribal interest briefing in the Supreme Court in 2002.27 The critical aspects of that Project for the purposes of this paper are the focusing of amicus briefs supporting tribal interests and the reduction in the number of repetitive amicus briefs. Four of the cases studied here are affected.

I will first highlight, in numbers, the amicus briefs filed in these 13 Indian law cases, and then categorize them. The first chart merely shows the number of briefs filed in these cases, and how many support tribal interests and how many oppose.28

About two-thirds of the amicus briefs filed before the Supreme Court in the 13 Indian cases I study are supportive of tribal interests, but the outcomes in those cases were almost exactly the opposite—tribal interests lost two-thirds of the cases. This fact alone lends support to the initial, but weak, hypothesis that amicus briefs are not all that influential. Certainly, other factors can account for this array. Weaker positions may require additional amici support, for example.

Another fact that will require some consideration is that tribal interests are now very well represented in the high stakes and expensive arena of Supreme Court litigation. This is a relatively new development, especially considering that tribal economies bolstered by Indian gaming

26 See generally Tracy Labin, We Stand United Before the Court:The Tribal Supreme Court Project, 37 NEW ENG. L. REV . 695 (2003). 27 Id. 28 A few notes about the chart. I generally do not include certiorari stage briefs (those amicus briefs either supporting or opposing a petition for certiorari), but I included one such brief in the City of Sherrill case because it was the only brief before the Supreme Court in that case that argued in favor of the argument upon which the Court actually decided the matter. Also, there was a third amicus brief that purported to partially support the tribal interests, perhaps because of a missed filing deadline, but was strongly in opposition to tribal interests. I included that brief as an opposing brief.

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floundered until the Supreme Court’s Cabazon Band decision in 1987,29 and the resulting enactment of the Indian Gaming Regulatory Act in 1988.30 Moreover, it wasn’t until 2000 that Congress finally removed the requirement under federal law that all contracts between attorneys and Indian tribes were invalid unless approved by the Secretary of Interior. 31 Tribal interests, more than ever before, have the resources and the legal capacity to represent themselves in high stakes Supreme Court litigation.

A. Policy Briefs

As noted above, I counted a brief as a policy brief where the brief dedicates a significant portion (usually a whole part or section) to making public policy arguments about the importance of the potential outcomes. For example, in the California v. Cabazon Band32 and Seminole Tribe v. Florida33 cases, both of which involved some aspect of Indian gaming, a policy brief might include information about the economic impact of a decision limiting tribal gaming opportunities.

29 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Indian gaming is now a $27.9 Billion per year concern nationally. See 2012 Indian gaming revenues increase 2.7 percent, NATIONAL INDIAN GAMING COMMISSION, July 23, 2013, http://www.nigc.gov/Portals/0/NIGC%20Uploads/readingroom/pressreleases/2012Indiang amingrevenuesincreasegraphics.pdf (last visited Nov. 24, 2013). 30 25 U.S.C. §§ 2701 (2012). 31 See S. REP. 106-150, at 1 (1999) (“S. 613 also amends the Indian Reorganization Act of 1934 and § 81 to eliminate any statutory requirement for federal review of tribal contracts with attorneys.”). 32 480 U.S. 202 (1987). 33 517 U.S. 44 (1996).

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This chart details the number of cases in which a policy brief appeared, and how many policy briefs appeared overall. 34

Policy Briefs

Number of Total Policy Briefs

Cases in Which Policy … Policy Briefs Opposing Tribal Interests 0 20 40 Policy Briefs Supporting Tribal Interests Cases in Number of Total Which Total Policy Brief Policy Appears Briefs Policy Briefs Opposing Tribal 5 7 Interests Policy Briefs Supporting Tribal 11 28 Interests Total 11 35

B. Alternative Merits Arguments Briefs

In relatively few instances, amici filed briefs making arguments on the merits not raised by the parties. Once again, I counted these briefs if the amici dedicated a substantial portion of the brief (a part or section) to an alternate argument not initially addressed by the parties (the argument might be addressed in reply briefs, of course). One example is the amicus brief filed (at the cert stage) by local units of government in the City of Sherrill v. Oneida Indian Nation.35 A case arguing that the Oneida’s claim

34 A few notes. In every case where an amicus filed a policy brief, amici supporting tribal interests filed a brief. In half of the cases where an amicus filed a policy brief, amici opposing tribal interests filed a brief. 35 544 U.S. 197 (2005).

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to tax immunity in their on-reservation fee lands was foreclosed by equitable defenses such as laches. This chart details the number of cases in which an alternative merits argument brief appeared, and how many of these briefs appeared overall.

Alternative Merits Arguments Briefs

Number of Total Alternative Argument… Cases in Which Alternative Argument…

0 20 40 Alternative Arguments Briefs Supporting Neither Cases in Party Number of Which Total Alternativ Alternative Arguments Alternativ e Briefs Opposing Tribal e Argument Interests Argument s Brief s Briefs Appears Alternative Arguments Briefs 1 2 Supporting Neither Party Alternative Arguments Briefs 7 11 Opposing Tribal Interests Alternative Arguments Briefs 11 16 Supporting Tribal Interests Total 12 29

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C. Support Briefs

By far the largest category includes amicus briefs that supported, enhanced, or reiterated the merits arguments of the parties. Again, I counted amicus briefs that devoted a substantial portion of the brief, a part or section, to arguing the merits. Support briefs in Indian law cases that enhanced the parties’ merits arguments often included additional information about the history of a particular tribe or group of similar tribes, or information about a class of treaties or federal statutes dealing with similar questions. I include these history briefs as support briefs, but set them aside for further discussion as well. Examples of support briefs include the briefs filed by law professors or historians specializing in American Indian law in Carcieri v. Salazar.36 These briefs delved into the history of the Indian Reorganization Act. Of note, there is a stark divide here, more so than in the other categories, of the sheer number of support briefs supporting tribal interests—there are two-and-a-half times more support briefs in favor of tribal interests than opposed.

Support Briefs

Total … Cases in …

0 100

Cases in Total Support Briefs Total Which Number of Opposing Tribal Interests Support Support Total Support Briefs Briefs Briefs Supporting Tribal Interests Appear Total Support Briefs 11 22 Opposing Tribal Interests Total Support Briefs 13 55 Supporting Tribal Interests Total 13 77

36 555 U.S. 379 (2009).

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III. GOALS OF SUPREME COURT AMICUS BRIEFS

The goals of a Supreme Court amicus brief vary widely. “At one extreme is the brief, filed . . . for a particular outcome, that contains no legal analysis and a scanty, one-sided policy argument. At the other extreme is the brief, filed by an expert that is far superior to anything filed by either of the parties.”37 Within this spectrum are amicus briefs that are more effective in persuading the Court than others. For example, an amicus can “demonstrate and emphasize areas of importance or conflict that are outside the expertise of the parties.”38 Robert Stern and Eugene Gressman argue that important national organizations have a better view of the big picture: “For example, an international union or the AFL-CIO may be able to visualize and stress the importance of a particular labor law question to the national labor movement far better than the local union and the small company that are parties to the controversy.” 39 The best amicus briefs have critical impacts on the decisions reached by the Court, as veteran Supreme Court litigator Bruce Ennis once wrote:

Occasionally, a case will be decided on a ground suggested only by an amicus, not by the parties. Frequently, judicial rulings, and thus their precedential value, will be narrower or broader than the parties had urged, because of a persuasive amicus brief. Courts often rely on factual information, cases or analytical approaches provided only by an amicus. A good idea is a good idea, whether it is contained in an amicus brief or in the brief of a party.40

37 SUSAN LOW BLOCH, VICKI C. JACKSON & THOMAS G. KRATTENMAKER, INSIDE THE SUPREME COURT: THE INSTITUTION AND ITS PROCEDURES 931-32 (2008). 38 ROBERT L. STERN & EUGENE GRESSMAN, SUPREME COURT PRACTICE 497 (1978) (footnote omitted). 39 Id. at 497 n. 103. 40 Bruce J. Ennis, Effective Amicus Briefs, 33 CATH. U. L. REV . 603, 603 (1984).

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One could easily analogize this purpose to how modern tribal organizations and their sometimes-adversaries (such as, state and local governments) utilize amicus briefs in Supreme Court litigation. 41

Occasionally, amicus briefs can be harmful by wasting the Court’s time, by being duplicative, or by undermining the strategy of the party the amicus is trying to support; as veteran Supreme Court litigator Doug Laycock wrote:

Alternatively amicus briefs can be a waste of time; they can even do affirmative harm to the cause they are trying to support. If there are too many amicus briefs, the important ones that the party needs the Court to read may get lost in the clutter. Worse, unrestrained amicus briefs may aggressively argue for applications and extensions of the party’s argument that the party is trying to avoid or disclaim. Occasionally, an amicus brief may disclose bad facts that are not in the record.42

In my view, the best amicus briefs in Indian law cases offer some specialized and useful bits of information to the Supreme Court, information not otherwise available. Some social science researchers agree that non-parties file amicus briefs as a means of providing the Supreme Court with information important to the Court’s decision-making process: “Since litigants are more likely to be narrowly focused on the case outcome, the broader policy implications of the decision may not be discussed in their briefs. In contrast, amicus briefs may provide this information and help the Court’s members understand the policy

41 For example, in Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008), the Cheyenne River Sioux Tribe as amicus provided the Supreme Court with detailed descriptions and explanations of the inner workings of the Cheyenne River Sioux Tribal Court. See Brief for Amicus Curiae Cheyenne River Sioux Tribe in Support of Respondents, Plains Commerce Bank, 554 U.S. 316 (2008) (No. 07-411), 2008 WL 782553. 42 Douglas Laycock, Persuasion in Hot-Button Cases, in PERSUASION AND IDEOLOGY: POLITICALLY DIVISIVE CASES IN APPELLATE COURTS, 7TH ANNUAL MSU INDIGENOUS LAW CONFERENCE MATERIALS 19, 42 (2010) (available through the author).

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implications of their rulings.”43 In Indian law, an area of federal common law, where the Supreme Court’s policymaking and legislative functions are in play, policy-oriented amicus briefs are very relevant. One survey of former Supreme Court clerks strongly suggests that amicus briefs offering information expanding upon the positions of the parties are very helpful.44

A note about historical information and Indian law—as Bruce Ennis wrote: “[T]he amicus can support points the party is making by providing a detailed legislative or constitutional history [or] a scholarly exposition of the common law. . . ”45 There should be no question that the Supreme Court benefits from amicus briefs in this vein, given that federal Indian law is replete with nigh-ancient common law doctrines and labyrinthine statutory schemes. Several amici offered detailed expositions of historical information in these cases; and, unlike the other subcategories here, these briefs likely had influence on the Supreme Court by providing clear and cogent historical support, even if the Court did not cite these briefs directly.

IV. IMPACT OF AMICUS BRIEFS IN INDIAN LAW CASES

Here, I selectively review amicus briefs in several cases, providing prototypical examples of each of the categories of amicus briefs I have identified. I will focus on a small sampling of cases whose issues tended to be based in federal common law and therefore had policy questions for the Court to decide; or had broader policy implications beyond Indian law; or otherwise were more likely to have included amicus briefs that likely had some influence on the Court’s decision. Those cases are (in reverse chronological order): Adoptive Couple v. Baby Girl (2013),46 United States

43 James F. Spriggs & Paul J. Wahlbeck, Amicus Curiae and the Role of Information at the Supreme Court, 50 POL. RES. Q. 365, 367 (1997) (citations omitted). 44 See Lynch, supra note 15, at 41; Kelly J. Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J. L. & POL. 33, 41 (2004) (“The majority of clerks (56 percent) explained that amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases … [N]oteworthy areas of law included: railroad preemption, water rights, marine labor, immigration and Native American law.”) (emphasis added). 45 Ennis, supra note 40, at 606. 46 133 S. Ct. 2552 (2013).

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v. Jicarilla Apache Nation (2012),47 Carcieri v. Salazar (2009),48 City of Sherrill v. Oneida Indian Nation (2005),49 Cherokee Nation v. Leavitt (2005),50 United States v. Lara (2004),51 Kiowa Tribe v. Manufacturing Technologies (1998),52 South Dakota v. Yankton Sioux Tribe (1998),53 Strate v. A-1 Contractors (1997),54 Seminole Tribe v. Florida (1996),55 Duro v. Reina (1990),56 Cotton Petroleum v. New Mexico (1989),57 and California v. Cabazon Band of Mission Indians (1987).58 Tribal interests prevailed in four of these 13 cases,59 a figure consistent with the 20-25 percent win rate for tribal interests during this period.

It is not easy to measure in any meaningful way the impact or influence that an amicus brief might have on the Supreme Court’s decision-making. A Supreme Court decision relying heavily on an amicus brief might cite or quote from the amicus brief. Or an amicus brief might have influence by being part of the Court’s decision, even where the Court rejects the thrust of the amici’s argument. The Court simply might not even cite to an amicus brief, leaving amici to wonder if, or at all, their brief had any impact. In this Part, the article addresses instances where the Court cites to amicus briefs, and categorizes the citations by significance.

47 131 S. Ct. 2313 (2011). 48 555 U.S. 379 (2009). 49 544 U.S. 197 (2005). 50 543 U.S. 631 (2005). 51 541 U.S. 193 (2004). 52 523 U.S. 751 (1998). 53 522 U.S. 329 (1998). 54 520 U.S. 438 (1997). 55 517 U.S. 44 (1996). 56 495 U.S. 676 (1990). 57 490 U.S. 163 (1989). 58 480 U.S. 202 (1987). 59 See Cherokee Nation v. Leavitt, 543 U.S. 631(2005); United States v. Lara, 541 U.S. 193 (2004); Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 751(1998); and California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

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A. Significant Discussion of Arguments or Information Raised in Amicus Briefs

I cherry-picked these 13 cases because in many of these opinions the Court has reviewed amicus briefs and made conclusions based on those briefs. I will start with opinions in which the Court actually discussed arguments or information raised in amicus briefs, as the Court did in eight of the 13 cases. I will categorize each discussion as (1) adoption or (2) rejection.

1. Adoption

In a small number of cases (I count two), the Supreme Court cited amicus briefs favorably. I put these cases in the category of “adoption,” in that the Court may have adopted an argument presented by the amicus, or at least utilized the argument presented by the amicus to develop its holding or shape its reasoning.

a. Cherokee Nation v. Leavitt

In Cherokee Nation v. Leavitt,60 the Supreme Court agreed with the tribal interests and their amici, most notably the United States Chamber of Commerce, that the federal government owed contract support costs to government contracts even where Congress had not expressly appropriated funds for that purpose. The Court’s opinion cited tribal interest amici favorably here, although it referenced the parties’ merits arguments first.61 Regardless, here the Supreme Court adopted the

60 543 U.S. 631 (2005). 61 The Court wrote: The Tribes (and their amici) add, first, that this Court has said that “a fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.”

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reasoning of the amici that federal statutes authorizing government contracting generally require government payment for services, even where Congress’ appropriations are insufficient to pay all costs.

b. United States v. Lara

In United States v. Lara,62 the Supreme Court held that Congress has authority to recognize tribal inherent authority to prosecute nonmember Indians. In two instances (one more important than the other), the Court cited to amici supporting tribal interests. First, the Court cited to an amici in relation to particular facts of the case.63 In the second instance, Justice Thomas in his concurrence, cited to an amici supporting tribal interests that offered supporting authorities on a point he wished to raise in opposition to tribal interests.64

The Tribes and their amici add, second, that as long as Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue, the Government normally cannot back out of a promise to pay on grounds of “insufficient appropriations,” even if the contract uses language such as “subject to the availability of appropriations,” and even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.

As we have said, the Government denies none of this. Thus, if it is nonetheless to demonstrate that its promises were not legally binding, it must show something special about the promises here at issue. That is precisely what the Government here tries, but fails, to do. Id. at 637-38 (emphasis added) [citations omitted]. 62 541 U.S. 193 (2004). 63 The Court wrote: Respondent Billy Jo Lara is an enrolled member of the Turtle Mountain Band of Chippewa Indians in north-central North Dakota. He married a member of a different tribe, the Spirit Lake Tribe, and lived with his wife and children on the Spirit Lake Reservation, also located in North Dakota. See Brief for Spirit Lake Sioux Tribe of North Dakota et al. as Amici Curiae 4-5. After several incidents of serious misconduct, the Spirit Lake Tribe issued an order excluding him from the reservation. Lara ignored the order; federal officers stopped him; and he struck one of the arresting officers. Id. at 196 (emphasis added) [citation omitted]. 64 Justice Thomas wrote: It does not appear that the President has any control over tribal officials, let alone a substantial measure of the appointment and removal power. Cf. Brief for National Congress of American Indians as Amicus Curiae

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These citations are less important than the citations in Cherokee Nation. The first citation is to the facts, otherwise not noteworthy, but it still shows that the Court digested the brief of the Spirit Lake Sioux Tribe to some extent. The second citation, coming as it does in a concurring opinion, is less important still, but the fact that Justice Thomas relied upon the amicus brief of the National Congress of American Indians to demonstrate his agreement with the amicus is very important, even if he would use the arguments in the brief to potentially undercut the amici’s position.

2. Rejection

In another sampling of cases, which I place in a category called “rejection,” the Supreme Court addresses but ultimately rejects the arguments raised by amici. Rejected amicus arguments remain influential, as some of the following discussions demonstrate, because the Court believed they were important enough to address. Moreover, these rejected arguments of amici can be helpful in limiting the damage to the amici’s interests.

In Adoptive Couple v. Baby Girl,65 the Supreme Court held that the Indian Child Welfare Act did not apply to the adoption of an Indian child where the Indian parent objecting to the adoption did not have custody. The majority opinion briefly touched upon—and disapproved of—a representation by the United States as amicus curiae,66 and the dissent directly rejected an aspect of the United States’ legal position.

27-29.Thus, at least until we are prepared to recognize absolutely independent agencies entirely outside of the Executive Branch with the power to bind the Executive Branch (for a tribal prosecution would then bar a subsequent federal prosecution), the tribes cannot be analogized to administrative agencies, as the dissent suggests. That is, reading the “Duro fix” as a delegation of federal power (without also divining some adequate method of Presidential control) would create grave constitutional difficulties. Accordingly, the Court has only two options: Either the “Duro fix” changed the result in Duro or it did nothing at all. Id. at 216 (Thomas, J., concurring in judgment) (emphasis added) [citations omitted]. 65 133 S. Ct. 2552 (2013). 66 The Court wrote:

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a. United States v. Jicarilla

In United States v. Jicarilla Apache Nation,67 the Supreme Court ruled that the federal government’s trust obligations to Indians and Indian tribes differ from a standard common law trust on the question of whether the government as trustee must turn over attorney-client privileged material to the tribal beneficiary. The Court held the government’s trust obligations do not require that action. The Court directly addressed and rejected the arguments made by the amici supporting the tribe. 68

b. Carcieri v. Salazar

In Carcieri v. Salazar,69 the Court held that the Secretary of Interior’s authority to acquire land in trust for Indian tribes did not extend to trust acquisitions for tribes not “under federal jurisdiction” in 1934, when

Biological Father and the Solicitor General argue that a tribe or state agency could provide the requisite remedial services under § 1912(d). Brief for Respondent Birth Father 43; Brief for United States as Amicus Curiae 22. But what if they don't? And if they don't, would the adoptive parents have to undertake the task? Id. at 2564 n. 9 (emphasis added). 67 131 S. Ct. 2313 (2011). 68 The Court wrote: We cannot agree with the Tribe and its amici that “[t]he government and its officials who obtained the advice have no stake in [the] substance of the advice, beyond their trustee role,” Brief for Respondent 9, or that “the United States’ interests in trust administration were identical to the interests of the tribal trust fund beneficiaries,” Brief for National Congress of American Indians et al. as Amici Curiae 5. The United States has a sovereign interest in the administration of Indian trusts distinct from the private interests of those who may benefit from its administration. Courts apply the fiduciary exception on the ground that “management does not manage for itself.” [citations omitted] But the Government is ne ver in that position. While one purpose of the Indian trust relationship is to benefit the tribes, the Government has its own independent interest in the implementation of federal Indian policy. For that reason, when the Government seeks legal advice related to the administration of tribal trusts, it establishes an attorney-client relationship related to its sovereign interest in the execution of federal law. In other words, the Government seeks legal advice in a “personal” rather than a fiduciary capacity. Id. at 2327-28 (emphasis added) [citations omitted]. 69 555 U.S. 379 (2009).

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Congress enacted the Indian Reorganization Act.70 The Court thus invalidated the Secretary’s trust acquisition of land for the benefit of the Narragansett Indian Tribe of Rhode Island, which the Court appeared to hold was under state jurisdiction in 1934.71 The Court expressly rejected numerous arguments by the amici favoring tribal interests (also, here, the interests of the United States).72

70 See id. at 395-96 (interpreting 25 U.S.C. § 479 (2012)). 71 See id. at 395. 72 The Court wrote: The Secretary and his amici also go beyond the statutory text to argue that Congress had no policy justification for limiting the Secretary’s trust authority to those tribes under federal jurisdiction in 1934, because the IRA was intended to strengthen Indian communities as a whole, regardless of their status in 1934. Petitioners counter that the main purpose of § 465 was to reverse the loss of lands that Indians sustained under the General Allotment Act. . . so the statute was limited to tribes under federal jurisdiction at that time because they were the tribes who lost their lands. We need not consider these competing policy views, because Congress’ use of the word “now” in § 479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” *** The Secretary and his supporting amici also offer two alternative arguments that rely on statutory provisions other than the definition of “Indian” in § 479 to support the Secretary’s decision to take this parcel into trust for the Narragansett Tribe. We reject both arguments.

First, the Secretary and several amici argue that the definition of “Indian” in § 479 is rendered irrelevant by the broader definition of “tribe” in § 479 and by the fact that the statute authorizes the Secretary to take title to lands “in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired.” § 465 (emphasis added); Brief for Respondents 12–14. But the definition of “tribe” in § 479 itself refers to “any Indian tribe” (emphasis added), and therefore is limited by the temporal restrictions that apply to § 479’s definition of “Indian.” See § 479 (“The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation” (emphasis added)). And, although § 465 authorizes the United States to take land in trust for an Indian tribe, § 465 limits the Secretary’s exercise of that authority “for the purpose of providing land for Indians.” There simply is no legitimate way to circumvent the definition of “Indian” in delineating the Secretary’s authority under §§ 465 and 479.

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The vote tally in Carcieri was 8-1 against the interests of the amici, but the real action in the majority, concurring, and dissenting opinions involved the scope of the decision. Justice Thomas, it appears, was forced to address arguments advanced by amici in his majority opinion, demonstrating (if

Second, amicus National Congress of American Indians (NCAI) argues that 25 U.S.C. § 2202, which was enacted as part of the Indian Land Consolidation Act (ILCA), Title II, 96 Stat. 2517, overcomes the limitations set forth in § 479 and, in turn, authorizes the Secretary’s action. Section 2202 provides:

“The provisions of section 465 of this title shall apply to all tribes notwithstanding the provisions of section 478 of this title: Provided, That nothing in this section is intended to supersede any other provision of Federal law which authorizes, prohibits, or restricts the acquisition of land for Indians with respect to any specific tribe, reservation, or state(s).” (alteration in original.)

NCAI argues that the “ILCA independently grants authority under Section 465 for the Secretary to execute the challenged trust acquisition.” NCAI Brief 8. We do not agree. The plain language of § 2202 does not expand the power set forth in § 465, which requires that the Secretary take land into trust only “for the purpose of providing land for Indians.” Nor does § 2202 alter the definition of “Indian” in § 479, which is limited to members of tribes that were under federal jurisdiction in 1934. [citations omitted] Rather, § 2202 by its terms simply ensures that tribes may benefit from § 465 even if they opted out of the IRA pursuant to § 478, which allowed tribal members to reject the application of the IRA to their tribe. § 478 (“This Act shall not apply to any reservation wherein a majority of the adult Indians. . . shall vote against its application”). As a result, there is no conflict between § 2202 and the limitation on the Secretary’s authority to take lands contained in § 465. Rather, § 2202 provides additional protections to those who satisfied the definition of “Indian” in § 479 at the time of the statute’s enactment, but opted out of the IRA shortly thereafter.

NCAI’s reading of § 2202 also would nullify the plain meaning of the definition of “Indian” set forth in § 479 and incorporated into § 465. Consistent with our obligation to give effect to every provision of the statute. . .we will not assume that Congress repealed the plain and unambiguous restrictions on the Secretary’s exercise of trust authority in §§ 465 and 479 when it enacted § 2202. “We have repeatedly stated. . . that absent ‘a clearly expressed congressional intention,’. . . [a]n implied repeal will only be found where provisions in two statutes are in ‘irreconcilable conflict,’ or where the latter Act covers the whole subject of the earlier one and ‘is clearly intended as a substitute.’” Carcieri v. Salazar, 555 U.S. at 392-95 (emphasis added) [citations omitted].

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nothing else) that perhaps the case was closer than the 8-1 vote tally showed. Notably, Justice Breyer’s concurrence and Justice Stevens’ dissent both cited to amici as means of limiting the reach of the Court’s opinion.73 Similarly, but in dissent, Justice Stevens, relying on an amicus brief filed by one of the amici below, wrote to limit the breadth of the majority opinion.74

We now know that it is clear the opinions of Justices Breyer and Stevens portend the future of litigation in this area. There are numerous post-Carcieri cases pending, almost all of them involving heavy litigation

73 Justice Breyer noted: Third, an interpretation that reads “now” as meaning “in 1934” may prove somewhat less restrictive than it at first appears. That is because a tribe may have been “under Federal jurisdiction” in 1934 even though the Federal Government did not believe so at the time. We know, for example, that following the Indian Reorganization Act’s enactment, the Department compiled a list of 258 tribes covered by the Act; and we also know that it wrongly left certain tribes off the list. See Brief for Law Professors Specializing in Federal Indian Law as Amicus Curiae 22–24; Quinn, Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331, 356–359 (1990). The Department later recognized some of those tribes on grounds that showed that it should have recognized them in 1934 even though it did not. And the Department has sometimes considered that circumstance sufficient to show that a tribe was “under Federal jurisdiction” in 1934—even though the Department did not know it at the time. Id. at 397-98 (Breyer, J., concurring) (emphasis added). 74 He wrote: Although Congress has passed specific statutes granting the Secretary authority to take land into trust for certain tribes, it would be a mistake to conclude that the Secretary lacks residual authority to take land into trust under § 5 of the IRA, 25 U.S.C. § 465. Some of these statutes place explicit limits on the Secretary’s trust authority and can be properly read as establishing the outer limit of the Secretary’s trust authority with respect to the specified tribes. [citations omitted] Other statutes, while identifying certain parcels the Secretary will take into trust for a tribe, do not purport to diminish the Secretary’s residual authority under § 465. Indeed, the Secretary has invoked his § 465 authority to take additional land into trust for the Miccosukee Tribe despite the existence of a statute authorizing and directing him to acquire certain land for the Tribe. See Post–Argument En Banc Brief for National Congress of American Indians et al. as Amici Curiae 7 and App. 9 in No. 03–2647(CA1). Id. at 407 n. 7 (Stevens, J., dissenting) (emphasis added) [citations omitted].

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over the extent of the Carcieri holding and focusing on these opinions.75 The amici may have, if the post-Carcieri cases ultimately favor tribal interests, staved off disastrous outcomes for tribal interests by providing a guiding light to the concurring and dissenting Justices.

Although the Carcieri amicus briefs supporting tribal interests did not persuade a majority of the Court, in overall terms the briefs may have been as successful as any in that they offered sufficient support to the concurrence and dissent to limit the import of the decision. Ultimately, as a result of this effort, it may be that the only tribe foreclosed from eligibility to utilize Section 5 by Carcieri is the Narragansett Tribe.

c. Strate v. A-1 Contractors

In Strate v. A-1 Contractors,76 the Supreme Court held that tribal courts did not have civil adjudicatory jurisdiction over a tort claim brought by a nonmember against a nonmember involving an accident arising on a state-controlled highway on the reservation. The Court rejected an effort by amici to persuade it to read one of its precedents in a manner supportive of tribal interests.77

75 E.g., Stand Up for California! v. Dept. of the Interior, 919 F. Supp.2d 51 (D. D.C. 2013); First Amended Complaint for Declaratory & Injunctive Relief, County of Amador v. Dept. of Interior, No. 2:12-cv-01710-JAM, 2012 WL 4364462 (E.D. Cal., Sept. 20, 2012); Defendants' Opposition to the Motion for Temporary Restraining Order by Citizens for a Better Way, United Auburn Indian Community of the Auburn Rancheria v. Dept. of Interior, No. 2:13-CV -00064 JAM-AC, 2013 WL 373417 (E.D. Cal., Jan. 23, 2013); Wilton Miwok Rancheria v. Salazar, Nos. C 07-05706 JF (PVT) & C 07-2681 JF (PVT), 2010 WL 1397185 (N.D. Cal., Feb 2, 2010); Complaint for Declaratory and Injunctive Relief, No Casino in Plymouth v. Salazar, No. 2:12CV01748, 2012 WL 5127077 (E.D. Cal., June 29, 2012); Cherokee Nation v. Salazar, No. 12CV-493 GKF TLW, 2012 WL 3964965 (N.D. Okla., Aug. 29, 2012). 76 520 U.S. 438 (1997). 77 The Court wrote: Petitioners and the United States as amicus curiae urge that Montana does not control this case. They maintain that the guiding precedents are National Farmers and Iowa Mutual, and that those decisions establish a rule converse to Montana’s. Whatever Montana may instruct regarding regulatory authority, they insist, tribal courts retain adjudicatory authority in disputes over occurrences inside a reservation, even when the episode-in-suit involves nonmembers, unless a treaty or federal statute directs otherwise. Petitioners, further supported by the United States,

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The amici favoring tribal interests here provided an alternate argument on the question—that the precedent which the parties believed to be controlling was not the correct precedent, which at the time was at least partially an open question. The Court, it appears, used the arguments advanced by the amici as an opportunity to shut down that line of argument as an avenue for future litigation. In this respect, the amici’s arguments backfired (although it can only be said to be true in hindsight, and amici could not possibly be criticized for raising the argument).

As noted in the introduction, Strate was the case in which a railroad asserted, in an amicus brief, that tribal courts in general were unfair to nonmember litigants, an assertion based on its experiences in litigating before the Crow Tribal Court. While the Court did not cite to this amicus, Justice O’Connor’s questioning of the attorney for the United States strongly suggested that the Court took very seriously the allegations contained in the brief, and even may have believed that the structural basis for the allegation (the racial basis of tribal membership) may be endemic to tribal justice systems beyond the Crow Reservation.

The amici favoring tribal interests had no opportunity to respond to the allegations made in the railroad brief, as the tribal party was the petitioner, meaning the merits and amici briefs supporting the tribal interests came first. Amici do not file reply briefs and the parties usually do

argue, alternately, that Montana does not cover lands owned by, or held in trust for, a tribe or its members. Montana holds sway, petitioners say, only with respect to alienated reservation land owned in fee simple by non-Indians. We address these arguments in turn. *** We consider next the argument that Montana does not govern this case because the land underlying the scene of the accident is held in trust for the Three Affiliated Tribes and their members. Petitioners and the United States point out that in Montana, as in later cases following Montana’s instruction. . .the challenged tribal authority related to nonmember activity on alienated, non-Indian reservation land. We “can readily agree,” in accord with Montana, [citation] that tribes retain considerable control over nonmember conduct on tribal land. On the particular matter before us, however, we agree with respondents: The right-of-way North Dakota acquired for the state’s highway renders the 6.59–mile stretch equivalent, for nonmember governance purposes, to alienated, non- Indian land. Id. at 447-48, 454 (emphasis added) [citations omitted].

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not want to highlight bad facts in opposing amicus briefs by responding to them. In fact, responses to the due process concerns expressed in the railroad brief didn’t appear until more than a decade later in the United States’ and other tribal amici’s briefs in Plains Commerce Bank v. Long Family Land and Cattle Co.78

d. Duro v. Reina

In Duro v. Reina,79 the Supreme Court held that Indian tribes have no inherent criminal jurisdiction authority over nonmember Indians, an outcome later reversed by Congress in the “Duro fix” legislation affirmed by the Court in Lara. In a passage concerning the merits of extending prior precedents, the Court rejected efforts by amici to distinguish an earlier case.80 In a second passage, the Court rejected a claim by amici that the

78 554 U.S. 316 (2008). See generally Frank Pommersheim, Amicus Briefs in Indian Law: The Case of Plains Commerce Bank v. Long Family Land and Cattle Co., 56 S.D. L. REV . 86 (2011). 79 495 U.S. 676 (1990). 80 The Court wrote: We think the rationale of our decisions in Oliphant and Wheeler, as well as subsequent cases, compels the conclusion that Indian tribes lack jurisdiction over persons who are not tribe members. Our discussion of tribal sovereignty in Wheeler bears most directly on this case. We were consistent in describing retained tribal sovereignty over the defendant in terms of a tribe’s power over its members. Indeed, our opinion in Wheeler stated that the tribes ‘cannot try nonmembers in tribal courts.’ 435 U.S., at 326, 98 S. Ct., at 1087-88. Literal application of that statement to these facts would bring this case to an end. Yet respondents and amici, including the United States, argue forcefully that this statement in Wheeler cannot be taken as a statement of the law, for the party before the Court in Wheeler was a member of the Tribe.

It is true that Wheeler presented no occasion for a holding on the present facts. But the double jeopardy question in Wheeler demanded an examination of the nature of retained tribal power. We held that jurisdiction over a Navajo defendant by a Navajo court was part of retained tribal sovereignty, not a delegation of authority from the Federal Government. It followed that a federal prosecution of the same offense after a tribal conviction did not involve two prosecutions by the same sovereign, and therefore did not violate the Double Jeopardy Clause. Our analysis of tribal power was directed to the tribes’ status as limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining necessary powers of internal self-governance. We

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history of tribal government compelled a different result.81 In a third passage, the Court rejected a claim by amici that the nonmember Indian had consented to tribal jurisdiction in accordance with tribal cultural understandings.82 In a final passage, the Court recognized a policy argument by amici supporting tribal interests which alleged that eliminating the tribal authority would create adverse policy implications on Indian

recognized that the ‘sovereignty that the Indian tribes retain is of a unique and limited character.’ Id. at 685 (emphasis added) [citations omitted]. 81 The Court wrote: Respondents and amici argue that a review of history requires the assertion of jurisdiction here. We disagree. The historical record in this case is somewhat less illuminating than in Oliphant, but tends to support the conclusion we reach. Early evidence concerning tribal jurisdiction over nonmembers is lacking because ‘[u]ntil the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure and not by formal judicial processes; emphasis was on restitution rather than punishment.’ Cases challenging the jurisdiction of modern tribal courts are few, perhaps because ‘most parties acquiesce to tribal jurisdiction’ where it is asserted. We have no occasion in this case to address the effect of a formal acquiescence to tribal jurisdiction that might be made, for example, in return for a tribe’s agreement not to exercise its power to exclude an offender from tribal lands. . . Id. at 688-89 (emphasis added) [citations omitted]. 82 The Court wrote: The United States suggests that Pima-Maricopa tribal jurisdiction is appropriate because petitioner’s enrollment in the Torres-Martinez Band of Cahuilla Mission Indians “is a sufficient indication of his self- identification as an Indian, with traditional Indian cultural values, to make it reasonable to subject him to the tribal court system, which. . . implements traditional Indian values and customs.” Brief for United States as Amicus Curiae 27. But the tribes are not mere fungible groups of homogenous persons among whom any Indian would feel at home. On the contrary, wide variations in customs, art, language, and physical characteristics separate the tribes, and their history has been marked by both intertribal alliances and animosities. Petitioner’s general status as an Indian says little about his consent to the exercise of authority over him by a particular tribe. Id. at 695 (emphasis added) [citations omitted].

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country law enforcement. The Court declined to address this question, later suggesting Congress was the proper venue.83

The amicus briefs in Duro, filed by amici supporting the tribal interests, were heavily policy-oriented. One key argument from amici that Justice Kennedy largely declined to address, although he acknowledged, involved the jurisdictional gray area that the outcome in Duro could create—if tribes didn’t have jurisdiction over the nonmember Indians within their territories, then it was unclear whether state or federal authorities would or could replace the tribal first responders. After the Duro Court told the tribal interests to take their policy concerns to Congress, they did and a short while later Congress enacted what became known as the “Duro fix.”84

83 The Court wrote: Respondents and amici contend that without tribal jurisdiction over minor offenses committed by nonmember Indians, no authority will have jurisdiction over such offenders. They assert that unless we affirm jurisdiction in this case, the tribes will lack important power to preserve order on the reservation, and nonmember Indians will be able to violate the law with impunity. Although the jurisdiction at stake here is over relatively minor crimes, we recognize that protection of the community from disturbances of the peace and other misdemeanors is a most serious matter. But this same interest in tribal law enforcement is applicable to non-Indian reservation residents, whose numbers are often greater. It was argued in Oliphant that the absence of tribal jurisdiction over non-Indians would leave a practical, if not legal, void in reservation law enforcement. The argument that only tribal jurisdiction could meet the need for effective law enforcement did not provide a basis for finding jurisdiction in Oliphant; neither is it sufficient here. *** If the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement, then the proper body to address the problem is Congress, which has the ultimate authority over Indian affairs. We cannot, however, accept these arguments of policy as a basis for finding tribal jurisdiction that is inconsistent with precedent, history, and the equal treatment of Native American citizens. Id., at 696, 698 (emphasis added) [citations omitted]. 84 See Means v. District Court of the Chinle Judicial District, 2 Am. Tribal L. 439, 442 (Navajo Nation Supreme Court 1999) (discussing and describing the “Duro fix,” codified at 25 U.S.C. § 1301(2)(2102)); United States v. Lara, 541 U.S. 193, 215-16 (2004) (same). See also Alex Tallchief Skibine, United States v. Lara, Indian Tribes, and the Dialectic of Incorporation, 40 TULSA L. REV . 47, 51-53 (2004) (discussing Lara and the Duro fix).

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e. United States v. New Mexico

In Cotton Petroleum v. New Mexico,85 the Supreme Court revised its federal Indian law preemption doctrine and recognized an actionable state interest in taxing on-reservation business activities by nonmembers. Importantly, the parties to the case—a non-Indian-owned corporate resource extraction company and a state—were entirely non-Indian. The tribe in interest, the Jicarilla Apache Nation, did not participate as a party, but instead as an amicus. The tribal interests prior to Cotton Petroleum were important to the preemption analysis (although not as important as the federal interest), but since the tribe was not a party, there was no evidence presented to show the impact on the tribal interests by the state taxation scheme.

The Court did address, and agree with, the arguments raised by tribal amici that tribes should be treated as states under the Commerce Clause for tax apportionment purposes.86 Many of the non-tribal amici (mostly the oil and gas companies) argued that the taxes should be apportioned. The tribal amici apparently pursued an all-or-nothing strategy when it came to whether or not the taxes should be apportioned, and therefore received nothing.

85 490 U.S. 163 (1989). 86 The Court wrote: In our order noting probable jurisdiction we invited the parties to address the question whether the Tribe should be treated as a state for the purpose of determining whether New Mexico’s taxes must be apportioned. All of the Indian tribes that have filed amicus curiae briefs addressing this question, including the Jicarilla Apache Tribe, have uniformly taken the position that Indian tribes are not states within the meaning of the Commerce Clause. This position is supported by the text of the Clause itself. Article I, § 8, cl. 3, provides that the ‘Congress shall have Power. . . To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.’ Thus, the Commerce Clause draws a clear distinction between “States” and “Indian Tribes.” As Chief Justice Marshall observed in Cherokee Nation v. Georgia …: ‘The objects to which the power of regulating commerce might be directed, are divided into three distinct classes-foreign nations, the several states, and Indian Tribes. When forming this article, the convention considered them as entirely distinct.’ In fact, the language of the Clause no more admits of treating Indian tribes as states than of treating foreign nations as states. Id. at 191-92 (emphasis added) [citations omitted].

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The Jicarilla Apache Nation, as the tribe in interest, did not brief the merits of the preemption claim, which would have allowed the Nation to articulate to the Court its sovereign interests in the state taxation scheme. But the Court ruled on the tribe’s sovereign interests anyway, noting that the Nation had briefed the merits below.87 The Court also noted that the sheer number of amicus briefs filed by the non-Indian-owned oil and gas companies was evidence, in its view, that the major impact of the state’s taxation scheme was on them, not the tribe.88

While the Court rejected the Jicarilla Apache Nation’s claims that the State of New Mexico’s taxation expenditures inside the Jicarilla reservation did not justify the state’s taxation, Justice Blackmun in dissent relied heavily on the Nation’s amicus brief on this point. 89

87 The Court wrote: Although Cotton did not press the pre-emption argument as an independent claim before the New Mexico Court of Appeals, we conclude that the issue is properly before us. Cotton did rely on our preemption cases at least as a “backdrop” for its multiple taxation claim. In addition, the pre-emption claim was fully briefed before the Court of Appeals by the Tribe in its status as an amicus curiae. And finally, the pre-emption claim was carefully considered and passed upon by the Court of Appeals. Id. at 176 n. 11 (emphasis added). 88 The Court wrote: It is important to keep in mind that the primary burden of the state taxation falls on the non-Indian taxpayers. Amicus curiae briefs supporting the position of Cotton in this case have been filed by New Mexico Oil & Gas Association, Texaco Inc., Chevron U.S.A. Inc., Union Oil Company of California, Phillips Petroleum Company, Wilshire Oil Company of Texas, Exxon Corporation, Mobil Exploration and Producing North America Inc., Anadarko Petroleum Corporation, Southland Royalty Company, and Marathon Oil Company. Id. at 187 n. 18 (emphasis added). 89 Justice Blackmun wrote: The distribution of responsibility is even clearly reflected in the relevant oil-and-gas-related expenditures during the 5-year period at issue in this case: federal expenditures were $1,206,800; tribal expenditures were $736,358; the State spent, at most, $89,384. Brief for Jicarilla Apache Tribe as Amicus Curiae 10-11, n. 8. In any event, it is clear from this Court's rejection of the Montana severance tax at issue in Montana v. Crow Tribe [citation], that the mere fact that the State has made some expenditures that benefit the taxed activities is not sufficient to avoid a

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The Cotton Petroleum Court used the amicus briefs filed by the Jicarilla Apache Nation and other tribal amici in the light least supportive of the tribal position. The Court made constitutional findings of fact on the preemption question without the benefit of hearing from the tribe affected, except in an amicus brief filed below.

B. What the Court Did Not Discuss

While the discussion in the previous subpart suggests that the Supreme Court frequently takes into account the arguments of amici in Indian law cases(and they do, given that one study suggested that the Court cites to amicus briefs in fewer than one in five decisions 90), overall the Court does not. This subpart reviews many of the important examples where the Court fails to take into account amici.

1. “One-Sided Policy Arguments”

Several amici on both sides filed briefs that likely would fit under the category of “one-sided policy argument,” to borrow a phrase from Inside the Supreme Court.91 Many of these briefs invited the Supreme Court to revisit foundational principles of federal Indian law, and perhaps even to reverse precedents unappealing to the amici. With one unusual exception, these briefs appear to have fallen on deaf ears.

The one exception appears to be the amicus brief filed in the cert stage of City of Sherrill v. Oneida Indian Nation by the Towns of Lenox, Stockbridge, and Southampton, New York.92 That brief presented the equitable defense of laches to the assertion of tribal sovereignty over

finding of pre-emption. Montana spent $500,000 to pay 25 percent of the cost of a road used by employees and suppliers of a mine. Id. at 207 n. 11 (Blackmun, J., dissenting) [citations omitted]. 90 See Gregory A. Caldeira & John H. Wright, Amici Curiae before the Supreme Court: Who Participates, When, and How Much?, 52 J. POL. 782, 788 (1990). 91 BLOCH, JACKSON & KRATTENMAKER, supra note 37. 92 See Brief of Amici Curiae Town of Lenox, New York; Town of Stockbridge, New York; and Town of Southampton, New York in Support of Petitioner City of Sherrill, New York, City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) (No. 03 -855), 2004 WL 1835370.

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newly-acquired lands by the Oneida Indian Nation.93 No other party, likely relying on the Court’s 1985 rejection of equitable defenses in dictum in a related case,94 briefed the issue.95

2. Duplicative Argument

A survey of former Supreme Court clerks by Kelly Lynch found that the clerks emphatically refused to consider amicus briefs that offered “me too”-style substance, where the brief reiterates ground already covered by the parties’ merits briefs without offering anything “novel.” 96 Couple this with a large number of amicus briefs, and the likelihood that any of the briefs receive attention from the Court declines dramatically. 97

Tribal interest amici in the Cabazon Band, Cotton Petroleum, Seminole Tribe, Kiowa Tribe cases filed a total of 31 amicus briefs—about 7.8 briefs per case. Most of these briefs included very repetitive arguments -repetitive as to the parties’ briefs and repetitive as to each other. Note that the Court decided these cases before 2002, when the Tribal Supreme Court Project began to effectively organize tribal amici.98

93 See id. at 6-12 (arguing that Congressional acquiescence to state purchases of tribal lands and the passage of time between tribal land sale and ownership should be addressed by the Supreme Court). 94 See Oneida County, N.Y. v. Oneida Indian Nation of N.Y., 470 U.S. 226, 244 n. 16 (1985). 95 The City of Sherrill decision did work a radical reinterpretation of federal Indian law. See generally Kathryn E. Fort, The New Laches: Creating Title Where None Existed, 16 GEO. MASON L. REV . 357 (2009); Kathryn Fort, Disruption and Impossibility: The New Laches and the Unfortunate Resolution of the Modern Iroquois Land Claims, 11 WYO. L. REV . 375 (2011). 96 Lynch, supra note 15, at 45. See also Fort, supra note 91. (“Clerks repeatedly emphasized that most amicus briefs filed with the Court are not helpful and tend to be duplicative, poorly written, or merely lobbying documents not grounded in sound argument.”). See also Ennis, supra note 40, at 608 (“[T]he amicus should avoid duplicating the work of the parties. It is an improper use of the amicus role, and an imposition on the Court, to file a ‘me too’ amicus brief.”). 97See Lynch, supra note 15, at 45 (“A few clerks noted that, in cases where fewer amicus briefs are filed, there is a greater probability that each will be given more attention.”). 98 Amici supporting tribal interests filed 23 amicus briefs in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013), even with the guidance of the Tribal Supreme Court Project.

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The opposite of duplication is collaboration, a tactic approved of by the Supreme Court clerks in Kelly Lynch’s study.99 In contrast to the tribal amici, the amici most often opposing tribal interests—state governments— collaborated extensively. Multiple states—and sometimes dozens of them—combined to sign on to a single amicus brief in several cases— Adoptive Couple, City of Sherrill, Carcieri, Yankton Sioux, Kiowa Tribe, Strate, Seminole Tribe, and Cotton Petroleum. The interests supported by the states won six of eight cases. Notably, in United States v. Lara,100 the state amici split into two briefs, one supporting tribal interests and another marginally supporting tribal interests. Even more notably, the only other time the state amici split up, in California v. Cabazon Band of Indians,101 the state interests lost. Adoptive Couple v. Baby Girl,102 where 18 states signed on to an unsuccessful brief in support of tribal interests with no opposing state brief, is a true anomaly.

V. LOOKING FORWARD: THE SUPREME COURT AS LEGISLATIVE JUDICIARY IN THE INDIAN CASES

Federal Indian law, as federal common law uniquely subject to interpretation and modification by the Supreme Court, could be fertile ground for policy arguments on the merits of important Indian law questions. I have argued elsewhere that the Supreme Court’s overarching theory of federal Indian law is “pragmatic utilitarianism.” 103 I say pragmatic (borrowing from Judge Posner’s assumption of “institutional and material constraints on decision-making by officials in a democracy”)104 because of the Court’s temptation to rely upon on “what the current state of affairs ought to be.”105 And I say utilitarianism because of the Court’s obligation to

99 See Lynch, supra note 15, at 57 (“Almost 90 percent of clerks expressed a preference for collaboration, at least in certain circumstances. Most clerks explained that they would prefer to see more collaboration because there would be fewer total amicus briefs to read.”). 100 541 U.S. 193 (2004). 101 480 U.S. 202 (1987). 102 133 S. Ct. 2552 (2013). 103 Matthew L.M. Fletcher, “National Implications of Sherrill,” Address, Syracuse University College of Law, Eighth Annual Haudenosaunee Conference, Syracuse, NY (November 19, 2011) (on file with author). 104 RICHARD POSNER, LAW, PRAGMATISM, AND DEMOCRACY ix (2003). 105 Scalia Memorandum, supra note 23.

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all Americans and American governmental institutions requires it to consider the interests of all, and because the Court’s easiest routes are to issue judgments favoring majorities absent clear constitutional rules to the opposite. In order to win, amici supporting tribes must persuade the Court that ruling in favor of tribal interests substantially benefits non-Indians.106 It’s a hard road for tribal interests to walk, to be sure.

How does one find the convergence of Indian and non-Indian interests?

I posit that finding those convergences and highlighting them is absolutely critical to effective advocacy by amici. Interest convergence in American Indian law tends to be economic or jurisdictional. These can be extremely helpful to tribal interests where there are direct convergences of interests that can involve traditional adversaries.

A. Economic Interest Convergence

The tribal interests in the recent tribal government contracting cases, Cherokee Nation v. Leavitt107 and Salazar v. Ramah Navajo Chapter,108 found common cause with the United States Chamber of Commerce, an unusual ally, which expressed concerns to the Supreme Court about government contracting in general.109

As tribal business interests develop, more and more business partners (perhaps even state governments) may be helpful as amici in future cases. The recent convergence of the interests of the State of

106 Cf. Derrick A Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV . 518 (1980); see also ROBERT A. WILLIAMS, JR., LIKE A LOADED WEAPON xxxv (2005) (drawing upon Professor Bell’s interest-convergence theory to articulate a “singularity thesis” for Indian affairs). 107 543 U.S. 631 (2005). 108 132 S. Ct. 2181 (2012). 109 See Brief of the Chamber of Commerce of the United States of America and the National Defense Industrial Association as Amici Support of Respondents, Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181 (2012) (No. 11-551), 2012 WL 1132333; Brief of Amici Curiae the Chamber of Commerce of the United States of America, The National Defense Industrial Association, and The Aerospace Industries Association in Support of the Cherokee Nation and Shoshone-Paiute Tribes, Cherokee Nation v. Leavitt, 543 U.S. 631 (2005) (Nos. 02-1472, 03-853), 2004 WL 1386408.

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Massachusetts and the Mashpee Wampanoag Tribe,110 and the City of Lansing, Michigan and the Sault Ste. Marie Tribe of Chippewa Indians 111 over the tribes’ gaming compact approvals and trust acquisitions are exemplary (even if they fail, as might occur).

B. Jurisdictional Interest Convergence

The tribal interests in recent criminal jurisdiction cases have found common cause with some state governments in recent years, most notably in United States v. Lara.112 The state amici split in this case, with one amicus brief led by Washington’s Attorney General supporting the federal government and tribal positions in upholding the so-called “Duro fix,” and another partially supporting the tribal position.113

These convergences of interests are helpful, but unless the substance of the amicus brief is valuable, the convergences might not mean anything. The short survey of cases and amicus briefs above suggests that briefs providing useful information to the Supreme Court are good (not great) bets for influencing the Court. This information includes historical and public policy information.114 Conversely, briefs arguing for doctrinal changes in the law are the least helpful.

110 See KG Urban Enterprises, LLC v. Patrick, 693 F.3d 1 (1st Cir. 2012). 111 See State of Michigan v. Sault Ste. Marie Tribe of Chippewa Indians, No. 1:12 -CV-962 (W.D. Mich., March 5, 2013), available at http://turtletalk.files.wordpress.com/2013/03/dct-order-granting-injunction.pdf (last visited Nov. 24, 2013), appeal pending, No. 13-1438 (6th Cir.). 112 541 U.S. 193 (2004). 113 See Brief for the States of Washington, Arizona, California, Colorado, Michigan, Montana, New Mexico, and Oregon as Amici Curiae Supporting Petitioner, United States v. Lara, 541 U.S. 193 (2004) (No. 03-107), 2003 WL 22766742; Brief Amicus Curiae of the States of Idaho, Alabama, Louisiana, Nebraska, South Dakota, and Utah Supporting Petitioner in Part, United States v. Lara, 541 U.S. 193 (2004) (No. 03-107), 2003 WL 22766744. 114 However, at least one social science study suggests that the Supreme Court barely pays attention to information offered by amici that is different from what the parties present. See James F. Spriggs & Paul J. Wahlbeck, Amicus Curiae and the Role of Information at the Supreme Court, 50 POL. RES. Q. 365 (1997). I suspect that the study might be partially inapplicable in cases involving federal common law subjects like Indian law, but these findings suggest temperance on the role of information regardless.

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C. Historical Information

The tribal amici in Carcieri v. Salazar,115 for example, offered a wealth of historical information. The historians’ brief developed the history of the Indian Reorganization Act (IRA).116 The Indian law professors’ brief included more information about the history of the IRA, but also developed the historical record on the Department of Interior’s interpretation of the relevant provisions of the Act.117 The Carcieri majority paid little heed to these briefs (and instead drew more from a separate amicus brief by the National Congress of American Indians that supported its view of the legislative history of the Act118). However, as noted above, Justice Breyer’s concurrence and Justice Stevens’ dissent drew heavily from the law professors’ brief in a manner suggesting that the reach of the decision was limited to a small number of tribes (and perhaps only one).

Historical information, as the Carcieri decision shows, works for and against the parties. The state amici drew upon history to great effect in the reservation diminishment case South Dakota v. Yankton Sioux Tribe,119 and also in City of Sherrill v. Oneida Indian Nation.120

D. Public Policy Information

There is a dearth of useful public policy information in Supreme Court amicus briefs. While I would hope that policy information providing needed background on Indian country is useful, I have doubts about whether this information alone will be enough to change minds on the Court. One need only look at Justice Kennedy’s outright rejection of the policy points in Duro v. Reina.121 I suspect good policy details will appear

115 555 U.S. 379 (2009). 116 See Brief of Historians Frederick E. Hoxie, Paul C. Rosier, and Christian W. McMillen As Amici Curiae Supporting Respondents, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526), 2008 WL 3991410. 117 See Brief of Law Professors Specializing in Federal Indian Law as Amicus Curiae Supporting Respondents, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526), 2008 WL 3991411. 118 See Brief of the National Congress of American Indians as Amicus Curiae Supporting Respondents, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526), 2008 WL 3976868. 119 522 U.S. 329 (1998). 120 544 U.S. 197 (2005). 121 495 U.S. 676 (1990).

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in opinions by the Justices already leaning toward a particular position. Policy information, somewhat like historical information, in amicus briefs is less important than economic and jurisdictional convergences with parties the Court considers important, such as state governments and big business.

In sum, tribal interests cannot go at it alone in the Supreme Court. This small case study demonstrates that a good amicus strategy can be helpful. It requires coordination (fewer briefs), persuasive policy arguments, and convergence of interests with actors the Supreme Court cares about (states and big business, for a start).122 This is not easy, and in many cases it is virtually impossible.

A coda—in the recent decision, Adoptive Couple v. Baby Girl,123 the tribal interests did all of these things right, with one possible exception. 124 The Cherokee Nation and Dusten Brown, the Birth Father seeking vindication of his rights under the Indian Child Welfare Act,125 enlisted the assistance of the United States,126 more than a dozen state attorney generals,127 child welfare groups,128 religious organizations,129 and

122 It also requires Supreme Court specialization from the counsel of record for the amicus. See Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 GEO. L. J. 1487 (2008). And help from the federal government. See Patricia A. Millett, “We’re Your Government and We’re Here to Help”: Obtaining Amicus Support from the Federal Government in Supreme Court Cases, 10 J. APP. PRACT. & PROC. 209 (2009). 123 133 S. Ct. 2552 (2013). 124 There were 23 amicus briefs in support of the tribal interests, probably far too many. See Matthew L.M. Fletcher, Turtle Talk Guide to the Amici Supporting Respondents in Baby Veronica Case (Adoptive Couple v. Baby Girl), TURTLE TALK BLOG POST (March 29, 2013), available at http://turtletalk.wordpress.com/2013/03/29/turtle-talk-guide-to-the- amici-supporting-respondents-in-baby-veronica-case-adoptive-couple-v-baby-girl/ (last visited Nov. 24, 2013). 125 25 U.S.C. §§ 1901 (2006). 126 Brief of the United States as Amicus Curiae, Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399), 2013 WL 1099169. 127 Brief of the States of Arizona, et al., Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399), 2013 WL 1308816. 128 Brief of Casey Family Programs, et al., Adopti ve Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399), 2013 WL 1279468. 129 Brief of Religious Organization Amici Curiae Friends Committee on National Legislation, et al., Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399), 2013 WL 1279465.

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psychologists.130 In one way, the amicus effort failed, both in persuading a majority of the Supreme Court and, less important, in terms of the amount of citations from the Court.

But in a more important way, the effort may have succeeded in helping to drive the Court into treating the Baby Veronica case as a dispute over statutory interpretation rather than a vehicle to address the ultimate constitutionality of the Indian Child Welfare Act, as Justice Thomas may have wanted to do.131 In that way, at least, perhaps the strategy succeeded.

Amici focused on the multiple interpretations of the statute potentially drew attention away from the constitutional questions raised by counsel for the Guardian ad Litem.132 The amici supporting the tribal interests largely did not respond to the constitutional objections, and focused on the statutory text, legislative history, and public policy.

Adoptive Couple may be an example of how a strong amicus strategy can shape the terms of the debate at the Supreme Court. The amici supporting tribal interests collectively carved a path (or lit a path) for the Court to avoid the constitutional questions. In the end, perhaps that is the best any amicus strategy can do.

130 Brief of Amici Curiae National Latina/o Psychological Association, et al., Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399), 2013 WL 1279460. 131 See Adoptive Couple v. Baby Girl, 133 S. Ct. at 2565 (Thomas, J., concurring) (“I join the Court's opinion in full but write separately to explain why constitutional avoidance compels this outcome. Each party in this case has put forward a plausible interpretation of the relevant sections of the Indian Child Welfare Act (ICWA). However, the interpretations offered by respondent Birth Father and the United States raise significant constitutional problems as applied to this case. Because the Court’s decision avoids those problems, I concur in its interpretation.”). 132 See Brief for Guardian ad Litem, as Representative of Respondent Baby Girl, Supporting Reversal at 48-58, Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (No. 12-399), 2013 WL 633603.

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NATIVE AMERICAN WINTERS DOCTRINE AND STEVENS TREATY WATER RIGHTS: RECOGNITION, QUANTIFICATION, MANAGEMENT

Rachael Paschal Osborn*

INTRODUCTION

Tribes of the Pacific Northwest hold two types of water rights. First are the traditional on-reservation water rights recognized in Winters v. United States.1 Second, certain tribes hold unique habitat-based water rights that derive from reserved fishing rights contained in treaties negotiated by Washington Territorial Governor Isaac Stevens (and thus known as Stevens Treaty water rights), and that exist both on and off reservation at traditional fishing areas reserved in the treaties. This article examines the content and scope of these two types of Native American water rights. Part I discusses the basis of tribal rights in terms of the value of water to tribes. Part II(A) describes the Winters doctrine, the legal framework by which all tribes in the United States own and enjoy water rights associated with their reservations. Part II(A) concludes with three examples of the treatment of Winters rights in state and federal courts, involving the Wind River, Klamath and Flathead Reservations. Part II(B) introduces the habitat-based water rights unique to Pacific Northwest Tribes and concludes with two examples of implementation of those rights involving the Yakama Nation and Muckleshoot Indian Tribe. Part III describes two examples of tribal management of water rights, on the Colville and Lummi Indian Reservations.

I. THE IMPORTANCE OF WATER TO INDIAN TRIBES

“In the Circle of Life, Water is the Giver of Life.”2

*Director, Columbia Institute for Water Policy, Spokane, Washington, Adjunct Faculty Member, Gonzaga University School of Law. An early version of this article was published in the Journal of Water Law, v. 20, p. 224 (Lawtext Publishing Ltd., 2010).

1 Winters v. United States, 207 U.S. 564 (1908). 2 YAKAMA NATION REV. CODE ch. 60.01, § 60.01.01 (2005)(on file with author).

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In the Pacific Northwest region of the United States of America, water is a deeply respected component of the ecosystem for the indigenous people who have occupied these lands for millennia. In this arid region, water is also an invaluable resource for the descendants of the Euro-American settlers who arrived in the 1800s and who now dominate in terms of population and resource use. Not surprisingly, substantial differences mark the values placed on water by Indian Tribes and non-Indian settlers and their descendants. These differences are well- illustrated in the context of legal claims to water rights and water resource management norms and processes.

In the western United States, water is critical to the lifeways of Indian Tribes, particularly because water in situ is a physical precept to the health and abundance of salmon fisheries.3 Tribal reliance on salmon cannot be overstated, and is reflected in philosophical and economic relationships between the indigenous Salish inhabitants of the Pacific Northwest and the natural ecosystems that sustain them.4

The natural history of salmon illuminates the significance of water and the basis for tribal claims. The history of salmon also highlights the judicial and political recognition of tribal rights to water in the United States. Salmon are anadromous; they hatch and rear in fresh water streams, out-migrate to the Pacific Ocean for one to four years, and finally return to their natal streams to spawn a new generation and then die.5 Historically, many millions of salmon, comprising hundreds of species and sub-species, returned to Pacific Northwest rivers each year.6 The migration was (and is) impressive not only in terms of sheer numbers, but also the extraordinary distances—up to 900 miles in the Columbia River drainage—that certain sub-species travel to return to their streams of origin.7

3 See generally JOSEPH C. DUPRIS, KATHLEEN HILL, & WILLIAM H. RODGERS, JR., THE SI’LAILO WAY: INDIANS, SALMON AND LAW ON THE COLUMBIA RIVER (2006). 4 See generally EUGENE S. HUNN, NCH'I-WÁNA, "THE BIG RIVER": MID-COLUMBIA INDIANS AND THEIR LAND (1990). 5 See generally JAMES A. LICHATOWICH, SALMON WITHOUT RIVERS (2001). 6 Id. 7 Id.

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Due to their broad geographic range, ecological perturbations affect salmon at many levels. Water is, of course, a universal need. Clean, cool, flowing waters are essential to virtually every aspect of the salmon life history. Conversely, the degradation of rivers brought about through post- contact human activities has caused major adverse impacts on salmon abundance and, consequently, on the health and well-being of salmon- dependent tribes.

Indian Tribes claim, and have been awarded, water rights based on two legal theories, both arising out of treaties with the United States government. First, tribes hold rights arising from their cession of millions of acres of aboriginal territories—virtually the entire estate of the Pacific Northwestern region—and agreements to settle on homeland reservations, which serve as the loci of various, evolving economic pursuits.8 Second, unique to the Pacific Northwest Tribes, their treaties with the United States reserved indigenous rights to continue to take fish at historic fishing sites, including locations outside of the tribal reservations. This fishing right includes a right to habitat sufficient to support fish. Sufficient habitat for fish includes cold, abundant water; hence, recognition of the Stevens Treaty water rights is intimately associated with tribal treaty fishing rights for salmon and other aquatic species.9

The definition and quantification of water rights for specific tribes is nearly always a product of legal proceedings, some of which have been the largest and longest-running lawsuits in the United States. The water courts that hear such cases and the claims of opponents—typically non- Indian water users—often manifest hostility to tribal claims. Yet, substantial tribal water rights have been recognized in court proceedings or negotiated through litigation-driven settlements.10

8 See infra Section II(A-1). 9 See infra Section IIB(1),(2). 10 See infra Sections II(A)(4), II(B)(3)(ii) and (iii). The Yakima River adjudication in Washington was filed in 1977, involves 40,000 claimants, and is not yet complete. Sidney P. Ottem, The General Adjudication of the Yakima River: Tributaries for the Twenty-First Century and a Changing Climate, 23 J. ENVTL. L. & LITIG. 275, 286-90 (2008). The Snake River Basin Adjudication in Idaho was filed in 1987, involves 150,000 claimants, and is

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Once rights are awarded, water must be managed for protection and proper allocation. Historic assimilation policies of the U.S. government, dating from the late 1800s, allotted already-diminished tribal reservations to non-Indians.11 The patchwork ownership of reservation lands has created modern-day jurisdictional quagmires for all types of regulatory systems, including water resources management. This article concludes with two examples of successful and creative exercise of tribal sovereign powers of self-government to bridge the gap and effectively manage tribal water resources.

II. LEGAL FOUNDATIONS

A. Winters Doctrine Water Rights

1. Concept of Federal Implied Reserved Water Rights

Indigenous water rights in the United States trace back to a 1908 decision of the United States Supreme Court, Winters v. United States.12 The locus of the Winters controversy, northeastern Montana, is a semi- arid, sparsely populated landscape dominated by vast tracts of grassland. Before Euro-American contact, the area was inhabited by multiple indigenous tribes and bands who relied on the buffalo as a major economic and food resource.13 Through a series of engagements and agreements with the United States, two such tribes, the Assiniboine (also known as the Nakoda) and the Gros Ventre, settled on lands near the Fort Belknap Indian Agency.14 The 1888 Fort Belknap Treaty established a

not yet complete. See IDAHO DEPARTMENT OF WATER RESOURCES, available at http://www.idwr.idaho.gov/WaterManagement/AdjudicationBureau/ (last visited Nov. 24, 2013). The Klamath Basin adjudication in Oregon was filed in 1975, involved about 730 claimants and over 5,500 contests to those claims, and was just completed at the trial level in March 2013. In the Matter of the Determination of the Relative Rights to the Use of the Waters of Klamath River and its Tributaries, Findings of Fact and Order of Determination at 1, 4 (Mar. 7, 2013). 11 General Allotment Act of 1887, 25 U.S.C. § 331 (repealed 1934). 12 See Winters v. United States, 207 U.S. 564 (1908). 13 See generally JOHN SHURTS, INDIAN RESERVED WATER RIGHTS: THE WINTERS DOCTRINE IN ITS SOCIAL AND LEGAL CONTEXT, 1880S-1930S (2000). 14 Winters, 207 U.S at 565.

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640,000-acre reservation for the two Tribes, bounded by the Milk River on the north.15

The Winters case arose out of conflict between non-Indian settlers and the Tribes over diversions from the Milk River, a source insufficient to meet all water demands.16 It was impossible to pursue agricultural activities in this region of Montana without active irrigation, but the 1888 Treaty—which expressed clear intent that the Tribes would take up agricultural pursuits—made no mention of water rights nor did it even reference the word “water.”17 In deciding the Winters case, the Supreme Court held that the 1888 Treaty reserved water rights to the Tribes by implication.18 The Court found it inconceivable that the two Tribes would have ceded millions of acres of lands to take up agriculture as the primary means of sustenance, without also intending to reserve sufficient water to survive in such an extreme arid environment.19 The Court, therefore, found it appropriate and necessary to infer a tribal water right from the language of the Fort Belknap Treaty.20

Key to the Winters decision were three canons, or rules of construction, that United States courts utilize to interpret treaties between the United States and Indian Tribes. First, the Tribes owned all land and resources prior to treaty-making and were in “command of the lands and the waters—command of all their beneficial use.”21 The United States government recognized tribal title and engaged in treaty-making in order to obtain ownership of those lands.22 Because the Tribes owned all

15 SHURTS, supra note 13 at 73. 16 Winters, 207 U.S at 577. 17 Id. at 564. 18 Id. at 576. 19 Id. 20 Id. 21 Id. 22 The United States policy to enter into treaties with the indigenous peoples of North America does not reflect the entire history. Violence, war, coercion, and fraud are among the problems that plagued relationships between Tribes and the United States. The United States government became “trustee” of tribal property and interests after treaties were established, creating a “double edged sword” of duties and power. See Ralph W. Johnson, Fragile Gains: Two Centuries of Canadian and United States Policy Toward Indians, 66 WASH. L. REV. 643 (1991). Nonetheless, the United States’ original

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resources pre-contact, any rights not explicitly granted to the United States by the treaties were presumed retained by the Tribes.23

Second, treaties are construed as the Tribes would have understood them at the time of treaty-making. “[T]he treaty must . . . be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”24 And third, because the treaties were written in English, a non-native language to the Tribes, ambiguities are resolved “from the standpoint of the Indians.”25

The significance of the Winters decision is profound. Little attention was paid at the time of the Court’s ruling and for several decades thereafter, as the United States actively sought to open tribal lands to settlement and develop water resources for the benefit of non-Indians. But, in a 1963 decision involving allocation of the Colorado River between the states of Arizona and California, the Court relied on the Winters precedent to find that the Colorado River Indian Tribes possessed substantial water rights for their desert reservations.26 The Court further held that such rights were to be quantified under an objective standard, termed “practicably irrigable acreage” or PIA, which evaluated the economic and technical feasibility of converting arid lands to irrigated agriculture.27 The Arizona v. California Court also clarified that the reserved water rights held by the Tribes enjoyed a “priority date” based on the date the tribal reservation was established, often pre-dating existing state-law based water rights.28 Further, these rights could not be lost for non-use.29

These interpretive rules created an inherent conflict between the treaty-based implied water rights held by Indian Tribes and state-based recognition of tribal ownership of lands and resources, including water, has led to important legal interpretations that are critical to understanding tribal water rights today. 23 See Winters, 207 U.S at 576-77. 24 Jones v. Meehan, 175 U.S. 1, 11 (1899). 25 Winters, 207 U.S at 576-77. 26 Arizona v. California, 373 U.S. 546, 599-601 (1963). 27 Id. at 600. 28 Id. at 608-09. 29 Id. at 600.

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water permits held by non-Indians, which are ordered according to date of first use and beneficial (actual) use standards. The inchoate, un-quantified water rights of Indian Tribes, which are often senior to state-based rights, threaten non-Indian water usage that has developed over the past century. Non-Indians are therefore often motivated to oppose tribal rights in legal and political proceedings.

2. Duality: Winters Water Rights and Western Water Law

Virtually all Winters doctrine cases have emerged from the western continental United States, which encompasses seventeen states and approximately 230 federally recognized Indian Tribes.30 The states have primacy with respect to control of water resources within their boundaries, and thus promulgate water codes, maintain water resource administrative agencies, and issue and regulate permits for use. The Winters and Stevens Treaty water rights held by the Tribes serve as major exceptions to comprehensive state control of water resources, and are creatures of federal common law. Under Federal Indian jurisprudence, tribal water rights are held “in trust” for tribes by the United States government.31

In the western United States, the 100th meridian serves as the informal boundary between the well-watered east and the arid interior west, where precipitation averages between 5 and 15 inches per year.32 Scarcity has animated epic conflicts, tribal and non-tribal, over water allocation. The western United States are dominated by mountain ranges, including the Rockies, Great Basin, Sierra Nevada and Cascades, that capture precipitation on their western slopes, store it as winter snowpack, and release it to the many rivers that flow throughout the region.33 A

30 U.S. Dept. of the Interior, Federally Recognized Indian Tribes, 73 Fed. Reg. No. 66, 18553-18557 (April 4, 2008). 31 COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 1905 at 1241 (2012). Not discussed in this article, Winters doctrine implied water rights also extend to all types of federal reservations (e.g., military bases, national parks). Arizona v. California, 373 U.S. at 597. 32 Brad Udall & Gary Bates, “Climatic and Hydrologic Trends in the Western U.S.: A Review of Recent Peer-Reviewed Research,” INTERMOUNTAIN WEST CLIMATE SUMMARY (2007), http://wwa.colorado.edu/climate/iwcs/archive/IWCS_2007_Jan_feature.pdf (last visited Jan. 3, 2014). 33 See generally EL-ASHRY, MOHAMED T. & DIANA C. GIBBONS, WATER AND ARID LANDS OF THE WESTERN UNITED STATES (2009).

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typical hydrograph for a western river depicts substantial snowmelt-driven runoff during spring months (March through June), followed by summer low flows (June through September).34 Irrigation is a necessity for most agricultural endeavors in this region, and high water demand during the summer season competes with the river flows needed to protect fisheries, water quality, and other in-stream uses.

The western states allocate water to individual users pursuant to the doctrine of prior appropriation, as articulated through the principles of beneficial use and priority.35 A water right is created by actual and continuous use of water according to standards of reasonable efficiency.36 A water right that is not consistently utilized over time may be deemed forfeited or abandoned and returns to the state for re-allocation.37 Water is allocated according to seniority, i.e., the first person to utilize water from a given source is entitled to their full measure of water as against all subsequent claimants.38 If the water source is insufficient to serve all claims, the most recent users will be curtailed.39 This system is efficient, but inequitable, and has historically favored out-of-stream utilization of water resources.

Winters water rights are not governed by principles of prior appropriation. Rather, these rights contemplate that tribes may use water over time as needed to fulfill the purposes of their tribal reservations.40 Unlike prior appropriation rights, Winters rights are not based on actual use, but future needs.41 Further, Winters rights cannot be lost for non- use.42

34 Id. 35 DAN A. TARLOCK, THE LAW OF WATER RIGHTS AND RESOURCES, §§ 5:30, 5:66, 5:86 (2010). 36 Id. at § 5:30. 37 Id. at § 5:86. 38 Id. at § 5:30. 39 Id. at § 5:86. 40 Arizona v. California, 373 U.S. 546, 600-601 (1963). 41 Id. 42 United States v. Adair, 723 F.2d 1394, 1416 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1983).

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The chief point of intersection between Winters and prior appropriation water rights is the priority date. Winters rights date at least to the time of establishment of tribal reservations, which often pre-dates the development of state-permitted water use in western watersheds.43 Winters rights for in situ water use, i.e., in-stream flows to support fisheries, date back even further, to “time immemorial.”44 Indian Tribes may rely on this priority, at least in theory, to require non-tribal junior appropriators to curtail their water use in favor of tribal rights.

The treaties between Indian Tribes and the United States extinguished Indian title to vast tracts of lands that then became available for Euro-American homesteading and development.45 Access to and use of water was critical to successful agriculture and new settlers claimed and developed water rights at will, without regard to the proprietary rights of tribes. In 1902, Congress established the United States Bureau of Reclamation, a federal agency that developed hundreds of water projects (dams, reservoirs, canals), again without regard to, and often in derogation of, tribal Winters water rights.46 Water development was the foundation for settlement of the American West.47

As a result of headlong development, many rivers and groundwater systems of the western United States are over-appropriated, i.e., claims to use exceed supply. The inevitable byproduct of the resulting scarcity has been conflict. As Indian Tribes have grown in population and economic might, they have sought to exercise their previously unused Winters rights.48 In basins where non-Indian water uses have fully or over- appropriated available supply, Winters rights represent a substantial threat to the status quo. Legal battles over the recognition, quantification, and

43 Id. at 1414. 44 Id. 45 See generally PATRICIA NELSON LIMERICK, THE LEGACY OF CONQUEST: THE UNBROKEN PAST OF THE AMERICAN WEST (1987). 46 Reclamation Act of 1902, 43 U.S.C. § 391 (2006); see also DONALD WORSTER, RIVERS OF EMPIRE: WATER, ARIDITY AND THE GROWTH OF THE AMERICAN WEST (1992). 47 WORSTER, supra note 46. 48 See SLY, PETER, RESERVED WATER RIGHTS SETTLEMENT MANUAL at 71-74 (1989).

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management of Winters rights have been epic, dominating development of water law.49

3. Adjudicating Winters Rights

Winters rights, though recognized at law, are not self-executing. A forum is necessary where the scope of Winters water rights for individual tribes may be evaluated and quantified, and that forum is typically the courts. Numerous lawsuits over tribal water rights have ensued since 1963, when the Arizona v. California court expanded on the Winters doctrine, finding that water is “essential to the life of the Indian people.”50

Treaty making and interpretation is a matter of federal law, and Indian Tribes normally bring treaty-based disputes before the federal courts.51 However, a 1952 federal law, the McCarran Amendment,52 interpreted in the 1970s, waived both United States and tribal sovereign immunity. Hence, states may compel federal agencies and tribal governments to be joined as parties and defend their water rights in general stream adjudications, a special proceeding initiated in state courts that joins all water claimants within a watershed to determine the validity, priority and quantity of water rights.53 General stream adjudications are now the most common venue for quantification of all types of water rights, including Winters doctrine rights. In the early cases, federal court jurisdiction could be invoked to resolve Winters disputes, but the McCarran Amendment gave rise to a court-developed abstention doctrine for federal water right cases.54

General stream adjudications can involve thousands of claimants, and are often filed in watersheds where water conflicts are already occurring, even without tribal exercise of the full measure of Winters rights.55 To ameliorate the placement of federal law-based water claims in

49 See infra Part I (A)(3). 50 Arizona v. California, 373 U.S. 546, 599 (1963). 51 U.S. CONST. art. II, § 2, cl. 2. 52 43 U.S.C. § 666 (2006). 53 Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983); Colo. River Conservation Dist. v. United States, 424 U.S. 800 (1976). 54 Colo. River Conservation Dist., 424 U.S. at 821. 55 See Ottem, supra note 10 (re Yakima, Idaho and Oregon adjudications).

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state courts, such courts are admonished to rigorously and properly apply federal law to treaty-based claims to water. As explained below, this rule is not always as effective as federal courts may have hoped.

Winters water rights are based on the purposes of the reservation for which they are claimed. While tribes frequently argue that reservations were intended as “homelands,” and thus, the reservation purpose should be broadly construed, few courts have accepted such a general basis for the award of rights.56 The point should be moot, because tribes are empowered to transfer or change the purpose of use of their Winters rights.57 However, some state courts (most notably Wyoming),58 have refused to acknowledge tribal decisions to change the purpose of their rights, for example applying diversionary rights to in-stream uses.

Quantification and distribution of tribal water rights are further complicated by the misguided federal policy that allowed non-Indian settlement within the boundaries of Indian reservations. Pursuant to the 1887 Dawes Act, Congress required that tribal lands be allotted to tribal members (typically 80 or 160 acres per person) and that “surplus” lands sold to non-Indians.59 This disastrous policy was halted in 1934, but not before millions of acres of tribal land was transferred into non-Indian ownership. The Indian Reorganization Act of 1934 reinstated the boundaries of tribal reservations, but did not restore to the tribes the lands that had been transferred into non-Indian ownership.60 As a result, many tribal reservations are partially occupied by non-Indians, in some places creating significant conflicts regarding jurisdiction over, and control of, resources. As discussed in Section III(B) below, non-Indian property owners on Indian reservations may claim a portion of the tribe’s Winters water rights.

56 San Carlos Apache Tribe v. Arizona, 668 F.2d 1093, 1097 (9th Cir. 1982) (accepting the concept of a “homeland” purpose of tribal reservations); cf. In re Gen. Adjudication of All Rights to Use Water in the Big Horn River, 835 P.2d 273, 278-79 (Wyo. 1992); Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1357 (9th Cir. 2000). 57 United States v. Anderson, 736 F.2d 1358, 1362-1365 (9th. Cir. 1984), cert. denied, 467 U.S. 1252 (1983). 58 See infra, Section II(A)(4)(i) 59 General Allotment Act of 1887, 25 U.S.C. § 331 (repealed 1934). 60 Indian Reorganization Act (Wheeler-Howard Act), 25 U.S.C. § 478 (2006).

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Finally, it is noteworthy that the myriad of uncertainties surrounding Winters rights, including the amount of water to which tribes are entitled, the potential for adverse state court decisions, and scientific questions relating to hydrology, biology and other disciplines, have led to the development of major programs dedicated to settlement of tribal water rights. As discussed in the next section, Montana created a commission to negotiate tribal water claims that has met with substantial success. The recent Nez Perce water settlement, discussed in Section (B)(3)(ii) infra, has brought significant resources to that Tribe’s reservation. Although inherently involving compromise, settlement agreements have become a well-trodden road to resolution of Winters rights.

4. Winters Rights Exemplified

Hundreds of court decisions have applied the Winters doctrine to tribal water claims, and decades of litigation and settlements have led to mixed results. While comprehensive review is not possible here, three examples illustrate important principles and developments in Winters doctrine jurisprudence.

a. Wyoming’s Big Horn Adjudication

In north-central Wyoming, the 2.2 million acre Wind River Reservation, near Yellowstone National Park, is home to two tribes, the Northern Arapahoe and Eastern Shoshone.61 The Wind River Reservation exemplifies the scope and consequences of nineteenth century federal policies of assimilation imposed upon Indians. The Shoshone Tribes originally occupied 45 million acres in areas now known as the states of Colorado, Utah, and Wyoming that, through a series of cessions and purchases, shrank to the current 2.2 million acre reservation at Wind River.62 Historic allotment policies also affected the Wind River Reservation, where only 30 percent of the population is Indian, and land ownership among the Tribes, Tribal members, and non-Indians is

61 Wind River Agency, INDIAN AFFAIRS, http://www.bia.gov/WhoWeAre/RegionalOffices/RockyMountain/WeAre/WindRiver/ (last visited Nov. 24, 2013). 62 In re the General Adjudication of All Rights to Use Water in the Big Horn River, 753 P.2d 76 (Wyo. 1988).

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fragmented.63 Conflicts over water from the Big Horn River and its tributaries led Wyoming to commence general stream adjudication in 1977. The Wind River Tribes filed claims for groundwater, in-stream, and out-of-stream water rights for a variety of purposes, including fisheries and wildlife protection, aesthetics, homeland needs, and irrigation.64 The Wyoming Supreme Court affirmed only those rights claimed for irrigation purposes.65

The Wind River Tribes are determined to restore in-stream flows and aquatic habitat on the rivers within the reservation. Based on federal case law authorizing Tribes to use their Winters rights for any purpose,66 the Tribes established a tribal water code and water management agency, and transferred a portion of their adjudicated irrigation right to non- consumptive in-stream flows.67 These flows would conflict with non-Indian out-of-stream uses; however, in contravention of federal precedent, Wyoming courts ruled that the tribal transfer was void.68 Although the Wind River Reservation’s Winters right is a substantial 500,000 acre-feet with a priority date of 1868, water management in Wyoming is vested in the Wyoming State Engineer’s Office, severely limiting the ability of the Tribes to protect and use on-reservation water resources according to their own priorities.69 In recent years the Wind River Tribes have developed sophisticated water quality monitoring, enforcement, and source water protection programs, but issues surrounding use of Winters water rights have not been satisfactorily resolved.70 A “Tribal Futures”

63 Id. at 84. 64 In re the General Adjudication of All Rights to Use Water in the Big Horn River, 753 P.2d 76 (Wyo. 1988). 65 Id. (the court found that domestic and commercial water uses were subsumed by the irrigation right, id. at 99). 66 United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984). 67 In re the General Adjudication of All Rights to Use Water in the Big Horn River, 835 P.2d 273, 275-76 (Wyo. 1992). 68 Id. at 278-80. 69 Wyoming v. United States, 492 U.S. 406, 406-07 (1989)(the Tribes’ attempt to appeal adverse state court decisions to the U.S. Supreme Court met with no success). 70 E.g., Wind River Environmental Quality Commission Power Point [on file with author]; JON P. MASON, SONJA K SEBREE & THOMAS L. QUINN, MONITORING-WELL NETWORK AND SAMPLING DESIGN FOR GROUND-WATER QUALITY, WIND RIVER INDIAN RESERVATION, WYOMING 1 (2005) available at http://pubs.usgs.gov/sir/2005/5027/pdf/sir20055027.pdf (last visited Jan. 9, 2014).

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irrigation project was proposed several years ago, but development has not progressed.71

The Big Horn cases present a cautionary example. The “practicably irrigable acreage” standard resulted in an award of substantial quantities of water to the Wind River Tribes.72 However, conflict with non-Indian water use, even though junior in priority, has prevented full tribal utilization of the resource. Forced into court against their wishes, the Wind River Tribes encountered hostility and a refusal to apply federal law in state court proceedings.73 Most important, the inability of the Tribes to manage their own water resources according to their own priorities, values, and interests has prevented exercise of sovereign rights of self-governance.

b. Oregon’s Klamath Adjudication

In south-central Oregon, the Klamath Tribes “hunted, fished, and foraged in the area of the Klamath Marsh and upper Williamson River for over a thousand years.”74 In the 1864 Treaty between the United States and the Klamath and Modoc Tribes, the Tribes ceded 12 million acres in return for an 800,000-acre reservation.75 The Treaty identified two purposes of the reservation: to convert the Tribes to agriculture pursuits and to allow the Tribes to continue their hunting and gathering ways of life.76 In 1983, as state court adjudication was getting underway, a parallel proceeding in federal court decided initial questions of law pertaining to Tribal water rights.77 Specifically, the court held that both agricultural and fishing-hunting purposes were valid and recognized under the Winters doctrine, and that the Klamath Tribes held water rights to support game

71 Wind/Bighorn River Basin Plan, WYOMING WATER DEVELOPMENT COMM. (2003), http://waterplan.state.wy.us/plan/bighorn/finalrept/chap4.html (last visited Jan 9, 2013). 72 In re the General Adjudication of All Rights to Use Water in the Big Horn River, 753 P.2d 76, 100-101 (Wyo. 1988). 73 Berrie Martinis, From Quantification to Qualification: A State Court’s Distortion of the Law in In Re the General Adjudication of All Rights to Use Water in the Big Horn River System, 68 WASH. L. REV. 435 (1993). 74 United States v. Adair, 723 F.2d 1394, 1397 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1983). 75 Treaty with the Klamath, etc., art 6, Oct. 14, 1864, 16 Stat. 707. 76 Adair, 723 F.2d 1394. 77 Id.

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and fish adequate to the needs of Indian hunters and fishers.78 This right was described as a non-consumptive entitlement that prevents other users from depleting stream waters below protected levels.79 In keeping with treaty interpretation rules, the court held that the Tribes’ non-consumptive water rights were not created, but were instead reserved and confirmed by the Treaty.80 These rights were established when the Klamath Tribes first began hunting and fishing in the region, dating back a thousand years or more. The priority of the Tribal rights was therefore held to date from “time immemorial.”81

The state court adjudication of water rights in the Klamath Basin was filed in 1976, and in 2013 the trial court issued a final order.82 The in- stream flow water rights of the Klamath Tribes, legally recognized in the 1983 Adair83 decision, were quantified and awarded a “time immemorial” priority date, and certain off-reservation rights were denied.84 In the interim, the over-appropriated Klamath Basin has been the site of tremendous conflict over water allocation between tribal and non-tribal users.85 In 2000, water management agencies curtailed all agricultural diversions in the Basin to protect endangered fisheries.86 The following year, water agencies limited the release of water to streams, cutting off river flows and causing a die-off of 30,000 migrating salmon at the mouth

78 See Id. at 1394. 79 Id. at 1418. 80 Id. at 1415. 81 Id. at 1414. 82 Findings of Fact and Order of Determination at 1, In the Matter of the Determination of the Relative Rights to the Use of the Waters of Klamath River and its Tributaries, (March 7, 2013), available at www.oregon.gov/owrd/ADJ/docs/7_Findings_of_Fact_and_Order_of_Determination.pdf (last visited Nov. 24, 2013). 83 Adair, 723 F.2d at 1397 84 Partial Orders of Determination re Klamath Lake, Klamath Marsh, Seeps and Springs, Williamson River and tributaries, Sprague River and tributaries, Sycan River and tributaries, Wood River and tributaries, and Klamath River and tributaries, In the Matter of the Claim of the Klamath Tribes and the United States Department of Interior, Bureau of Indian Affairs as Trustee on Behalf of the Klamath Tribes, (March 7, 2013), available at www.oregon.gov/owrd/ADJ/docs/orders/Claims_612_673_Klamath_Tribes_USBIA.pdf (last visited, Nov. 3, 2013). 85 See generally HOLLY DOREMUS & DAN A. TARLOCK, WATER WAR IN THE KLAMATH BASIN: MACHO LAW, COMBAT BIOLOGY, AND DIRTY POLITICS (2008). 86 Id.

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of the Klamath River.87 In 2013, judicial recognition and quantification of Klamath Treaty water rights caused the tribes to call for curtailment of junior rights to preserve ecological water flows.88

Litigation involving endangered species recovery and hydroelectric facilities licensing has also dominated annual water management in the Klamath Basin.89 In 2009, a multi-party agreement was signed to demolish four Klamath River dams—the largest dam removal ever contemplated— to allow for fish passage and ecologically appropriate water flows.90 Whether water peace in the Klamath will be achieved is not yet known.

In the realm of Winters jurisprudence, the Klamath adjudication is best-known for the Adair holding, i.e., that reservations may be established for fisheries purposes, that in-stream water rights may be reserved to protect those purposes, and further, that the priority date of such rights is time immemorial.91 While the lengthy delay in implementation of the tribal right is discouraging, the resilience of the Tribal right has driven the Klamath water conflicts toward creative and dramatic solutions, including dry-year voluntary curtailments, dam removal, water markets, and more.92

c. Montana’s Reserved Water Rights Compact Commission

Montana is a large landlocked state, 145,552 square miles bisected by the Northern Rockies mountain range.93 Vast prairies dominate the eastern half of the state, once home to millions of bison that supported

87 Id. 88 See generally JEFF BARNARD, KLAMATH TRIBES, FEDS EXERCISE WATER RIGHTS (2013). 89 Klamath Water Users Ass’n v. Patterson, 15 F. Supp. 2d 990, 997 (D. Or. 1998). 90 Klamath Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities (Klamath Basin Restoration Agreement), January 8, 2010. 91 United States v. Adair, 723 F.2d 1394, 1414-1415 (9th Cir. 1983). 92 CONGRESSIONAL RESEARCH SERVICE, KLAMATH BASIN SETTLEMENT AGREEMENTS: ISSUES IN BRIEF (2013) available at http://www.fas.org/sgp/crs/misc/R42158.pdf (last visited Jan. 9, 2014). 93 MONTANA OFFICE OF PUBLIC INSTRUCTION, MONTANA INDIANS: THEIR HISTORY AND LOCATION (2009) http://opi.mt.gov/pdf/indianed/resources/MTIndiansHistoryLocation.pdf (last visited Nov. 24, 2013).

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tribal subsistence and prosperity until extirpation by Euro-Americans.94 Western Montana is mountainous, and known for Glacier and Yellowstone National Parks, wild mountains populated by ursina horribilis (grizzly bear), and blue-ribbon trout streams.95 Seven Indian reservations are scattered across the state, home to twelve linguistically distinct tribes.96

As discussed above, Montana is the locus of the 1908 Winters decision, which emerged from water conflicts at the Fort Belknap Reservation.97 It took another seven decades, however, to commence a process to evaluate the scope and extent of the Winters right for the Fort Belknap Tribes. In 1979, the Montana Water Use Act was amended to establish a statewide adjudication of all water rights, state, federal and Tribal.98 Five Tribes challenged the statute, disputing that Montana courts were empowered to exercise any authority over them, based on the state constitutional proviso that “Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.”99 All proceedings were stayed as federal courts grappled with the question of state court jurisdiction over treaty-based water claims in Montana and other states with similar constitutional disclaimers. In 1983, the United States Supreme Court held that the McCarran Amendment, the 1952 law that waived United States sovereign immunity for water right adjudications, did open the door for state court adjudication of Winters water rights.100

The potential was high for long-haul litigation, but the Montana Water Use Act included an innovative alternative dispute resolution approach, creating the Reserved Water Rights Compact Commission.101 The Act called for voluntary government-to-government negotiations among the state, Tribal and federal governments, to resolve Winters water

94 Id. 95 Id. 96 Id. 97 Winters v. United States, 207 U.S. 564, 565 (1908). 98 MONT. CODE ANN. § 85-2 (West 2013). 99 Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 556 (1983) (citing Draper v. United States, 164 U.S. 240 (1896)). 100 Id. 101 MONT. CODE ANN. § 2-15-212 (West 2013).

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right claims through settlement agreements.102 The Montana Compact Commission is a unique entity, and has had substantial success in achieving water right settlements with most of the Indian Tribes in Montana.103 Success is attributed to the political composition of the Compact Commission (empowering the Commission to make commitments that will be adopted through the state legislative process), effective mechanisms for public education and input, interdisciplinary approaches to problem solving, and flexibility in settlement terms.104

Even so, substantial conflict has arisen over water rights reserved for the western-most tribal reserve in Montana, the Flathead Reservation, home to the Confederated Salish and Kootenai Tribes (CSKT). CSKT’s efforts to limit on-reservation state-based water allocations reveal a flaw in the Montana settlement approach: even before compact negotiations are completed, the state water resources agency was issuing “provisional” water rights to non-Indians.

A trilogy of Montana Supreme Court decisions established that the state water resources agency may not issue water permits on the Flathead Reservation for surface or ground waters until CSKT’s Winters rights are adjudicated or resolved by compact.105 These cases contrast with the more common state court disregard for tribal water rights, and also illustrate the sophisticated legal capabilities that tribes now marshal to defend their rights. In its rulings on Flathead Reservation water management, the Montana Court recognized fundamental distinctions between Winters rights—inchoate rights with early priority that contemplate future development—and prior appropriation rights, based on actual use that may be interrupted when senior rights are exercised. A key problem that the Montana compacts have had to address is the historic over-allocation of water resources prior to negotiation and settlement of

102 MONT. CODE ANN. § 85-2-702 (West 2013). 103 MONT. CODE ANN. § 85-20 (West 2013). 104 BARBARA COSENS, FILLING THE GAP IN WESTERN AND FEDERAL WATER LAW, IN TRIBAL WATER RIGHTS: ESSAYS IN CONTEMPORARY LAW, POLITICS, AND ECONOMICS (2006). 105 Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Stults, 2002 MT 280, 312 Mont. 420, 59 P.3d (Mont. 2002); In re Benefit Water Use Permit, 287 Mont. 50, 923 P.2d 1073 (Mont. 1996); Confederated Salish and Kootenai Tribes v. Clinch, 1999 MT 342, 297 Mont. 448, 992 P.2d 244 (Mont. 1999).

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Winters rights. The compacts have made tribal rights whole through expensive exchange, purchase, and mitigation strategies.106

Protection of as-yet unallocated water supply has been a pragmatic and critical concern for the CSKT as it approaches the compacting process. A draft compact with substantial implementation measures, submitted for Montana state legislative approval in April 2013, was tabled.107 Controversy continues over on-reservation water management and protection of irrigation rights.108

Tri-partite settlements among states, Tribes and the federal government have become an increasingly common mechanism for resolution of Winters water claims.109 In the arid American West of the twenty-first century, where virtually every drop is spoken for, neither the scenario of Winters rights unfulfilled nor radical disruption of non-Indian water use is acceptable to most parties. The Montana Reserved Water Rights Compact Commission is one approach in which a state has utilized diplomatic engagement to address historic water conflicts. Outcomes obviously require compromise, but the process does serve as an exit ramp from lengthy, expensive litigation. Because the Confederated Salish and Kootenai Tribes are the sole Stevens Treaty Tribe in Montana, their claims to water on and off the Flathead Reservation present the most challenging scenario to date for the Montana compacting process.

106 COSENS, supra note 103, at 164-67. 107 HB 629, 2013 Leg., 63rd Sess. (Mont. 2013); see Implement negotiated water compacts with Montana Tribal government, OPEN: STATES, http://openstates.org/mt/bills/2013/HB629 (last visited Nov. 24, 2013). 108 See CONFEDERATED SALISH KOOTENAI TRIBES TRIBAL RESERVED WATER RIGHTS NEGOTIATION, http://www.cskt.org/tr/nrd_waternegotiations.htm (last visited Nov. 24, 2013), and MONTANA RESERVED WATER RIGHTS COMPACT COMMISSION, www.dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp (last visited Nov. 24, 2013). 109 Robert T. Anderson, Indian Water Rights: Litigation and Settlements, 42 TULSA L. REV. 43 (2006); see Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed.Reg. 9223-25 (Mar. 12, 1990).

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B. Stevens Treaty Water Rights

1. Antecedents: U.S. v. Washington (the “Boldt Decision”)

Indian tribes of the Pacific Northwest possess a second type of reserved water right derived from treaties with the United States, but linked specifically with aquatic habitat protection. These rights, referred to as Stevens Treaty water rights, arise out of language found in ten treaties negotiated by Isaac Stevens, governor of the Washington Territory in 1853.110 Stevens was a controversial figure because of the military powers and political expedience he exercised in coercing tribes to sign treaties that transferred virtually all of the lands and resources of the Pacific Northwest region to the United States.111 Surprisingly, his legacy represents the most powerful codification of tribal rights and interests in water resources that exists in United States jurisprudence.

In each of the Stevens Treaty negotiations, Pacific Northwest Tribes bargained to retain rights to traditional foods and harvest practices. A key provision of the Treaty with the Confederated Tribes and Bands of the Yakama Nation exemplifies tribal reservation of the all-important fishing right:

The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory . . .112

Similar language is found in nine other treaties with tribes throughout the Pacific Northwest.113

110 See infra note 113 (listing Stevens Treaties). 111 See Charles Wilkinson, “Peoples Distinct from Others”: The Making of Modern Indian Law, 2006 UTAH L. REV. 379, 385-86 (2006). 112 Treaty with the Yakima, U.S.-Yakama Nation, art. III, ¶ 2, June 9, 1855, 12 Stat. 951, 953. 113 See Treaty with Nisqualli, Puyallup, Etc. (Treaty of Medicine Creek), U.S.- Nisqualli- Puyallup, art. III, Dec. 26, 1854, 10 Stat. 1132, 1133; Treaty with the Dwámish Indians (Treaty of Point Elliott), U.S.-Dwámish Tribe, art. V, Jan. 22, 1855, 12 Stat. 927, 928; Treaty with the S'Klallams (Treaty of Point No Point), U.S.-S’Kilallam Tribe, art. IV, Jan.

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For many decades, the tribal fishing right was ignored or denied, and in the mid-twentieth century, Indian exercise of traditional fishing rights were met with arrests and convictions, confiscation of equipment, and abuse of civil rights.114 Tribes prosecuted several lawsuits to defend and define the treaty fishing right, culminating in the landmark 1974 decision in which federal Judge George Boldt famously interpreted the Treaty provision “taking fish at all usual and accustomed places, in common with the citizens of the territory,” to mean that the annual salmon harvest must be shared equally between Stevens Treaty Tribes and non- Indians.115 Judge Boldt further held that the Tribes could harvest their 50 percent portion at traditional fishing grounds outside the boundaries of their reservations that Washington state agencies could not regulate Indian fishing, and that Tribes and states would serve as co-managers of the fisheries resources.116 Controversy and violence ensued, as non- Indian recreational and commercial fishers, state fisheries management agencies, and even the Washington State Supreme Court resisted the federal Treaty interpretation.117

Over time, conflict abated as the states and Tribes adopted a cooperative approach to fisheries management.118 The Boldt Decision,

26, 1855, 12 Stat. 933, 934; Treaty with the Makah Tribe (Treaty of Neah Bay), U.S.- Makah Tribe, art. IV, Jan. 31, 1855, 12 Stat. 939, 940; Treaty with the Walla-Wallas, U.S.-Walla Walla Tribe, art. I, June 9, 1855,12 Stat. 945, 946; Treaty with the Nez Percés, U.S.-Nez Percé Tribe, art. III, ¶ 2, June 11, 1855, 12 Stat. 957, 958; Treaty with the Tribes of Middle Oregon, art. I, ¶ 3, June 25, 1855, 12 Stat. 963, 964; Treaty with the Qui-Nai-Elts (Treaty of Olympia), U.S.-Qui-Nai-Fis, art. III, July 1, 1855, 12 Stat. 971, 972; Treaty with the Flatheads (Treaty of Hell Gate), U.S.-Flathead Tribe, art. III, ¶ 2, July 16, 1855, 12 Stat. 975, 976. 114 AMERICAN FRIENDS SERVICE COMMITTEE, UNCOMMON CONTROVERSY: FISHING RIGHTS OF THE MUCKLESHOOT, PUYALLUP, AND NISQUALLY INDIANS 110-12 (1970); see also CHARLES W. WILKINSON, MESSAGES FROM FRANK’S LANDING: A STORY OF SALMON, TREATIES AND THE INDIAN WAY (2000). 115 See Treaty with the Yakima, U.S.-Yakama Nation, art. III, ¶ 2, June 9, 1855, 12 Stat. 951, 953. 116 United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) aff’d and remanded, 520 F.2d 676 (9th Cir. 1975); see CHARLES W. WILKINSON, BLOOD STRUGGLE: THE RISE OF MODERN INDIAN NATIONS (2005). 117 Washington v. Washington State Commercial Fishing Vessel Ass’n, 443 U.S. 658, rev’d sub no. Washington v. United States, 444 U.S. 816 (1979); see also WILKINSON, supra note 114. 118 Fronda Woods, Who’s In Charge of Fishing?, 106 OR. HIST. Q. 412 (2005).

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however, gave rise to a number of new legal questions, including whether the treaty right to fish encompassed a right to habitat. Habitat for fish is water and, by virtue of this need, the Stevens Treaty fishing right swam upstream and asserted itself into the domain of freshwater management.119

2. Birth of the Habitat Right

Does the Stevens Treaty fishing right include a habitat right to water for in-stream flows outside reservations? The first time the habitat question was put to the courts, the case was rejected as not yet ripe for review.120 Shortly thereafter, a water allocation question arose out of the Yakima River Basin in central Washington where (as quoted above) the Yakama Nation reserved its aboriginal fishing rights via treaty.121 Salmon species were once abundant in the Basin, but water management was dominated by the United States Bureau of Reclamation’s irrigation project. The Bureau routinely manipulated water flows with devastating effects on fisheries. To reach spawning grounds, salmon must migrate several hundred miles from the Pacific Ocean, up the Columbia and Yakima Rivers into upper Basin tributaries. Historically, returning Yakima Basin salmon numbered from 500,000-900,000 per year.122 However, the Basin fisheries were largely eliminated in the early 1900s. This occurred when the Bureau of Reclamation developed the Yakima Project. Due to the construction of dams and reservoirs without fish passage and the diversion of virtually the entire flow of the River into an extensive network of irrigation canals, stream flows were severely depleted for much of the

119 O. Yale Lewis III, Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights Implied by the Fishing Clause of the Stevens Treaties, 27 AM. INDIAN L. REV. 281 (2003). 120 United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc); in U.S. jurisprudence, courts may not issue advisory opinions but instead may only decide actual cases and controversies; U.S. CONST. art. III, § 2, cl. 1; Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 121 Treaty with the Yakamas, U.S.-Yakama Nation, art. III, ¶ 2, June 9, 1855, 12 Stat. 951, 953. 122 Yakima River, NORTHWEST POWER & CONSERVATION COUNCIL (Oct. 31, 2008), http://www.nwcouncil.org/history/YakimaRiver (last visited Nov. 3, 2013).

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year.123 Agriculture was king, with apple, cherry and other crops producing an annual $1 billion in export products.124 In the 1990s, salmon numbers declined to less than 25,000 per year.125

In 1982, a low-water year, a tribal biologist discovered several Chinook salmon redds (nests of salmon eggs) directly below the gates of one of the Bureau reservoirs.126 These redds contained significant genetic and biological value – wild spring-run Chinook were nearly extinct in the Basin – but were at risk of stranding as reservoir gates were closed to collect water for the following year’s irrigation demand. The Tribe sought an emergency injunction in federal court. The court held that the Bureau had authority to release project water to protect the Yakama Nation’s interest in basin fisheries.127

The Yakama Nation’s Chinook-water case was the first test, albeit implicitly, of the existence and scope of the habitat right associated with the “to fish in common” treaty right. The judicial mandate to revise the Bureau’s operating procedures for Yakima Basin dams was a crucial first step in the jurisprudential development of Stevens Treaty water rights.

3. Stevens Treaty Rights Exemplified

Three case studies reveal the scope and substance of Stevens Treaty water rights, including cases and settlements involving the Yakama Nation, the Nez Perce Tribe, and the Muckleshoot Tribe.

123 Christopher A. Kent, Water Resource Planning in the Yakima River Basin: Development vs. Sustainability, in YEARBOOK OF THE ASSN. OF PACIFIC COAST GEOGRAPHERS 27 (2004). 124 David Lester, Agriculture is ‘pillar’ of Yakima Valley economy, YAKIMA HERALD- REPUBLIC (April 21, 2013), http://www.yakimaherald.com/news/business/industriousvalley/883395-17/agriculture-is- pillar-of-yakima-valley-economy (last visited Jan. 3, 2014). 125 See Yakima River, supra note 122. 126 Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032 (9th Cir. 1985). 127 Id. at 1035 n. 5. The appellate court noted cryptically that it was not deciding the scope of the treaty fishing right. For more detail regarding the Ninth Circuit opinions on this matter, see Michael C. Blumm and Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO. L. REV. 407, 465-67 (1998).

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a. The Yakama Nation and the Acquavella Adjudication

In 1977, a severe drought year, Washington filed a general stream adjudication, titled “State v. Acquavella,” involving 40,000 water claimants.128 Preliminary procedural questions consumed several years.129 In 1989, the court took up the first substantive claims: the Yakama Nation’s claims for on-reservation Winters water rights for agriculture and other purposes, and Stevens Treaty claims to off-reservation in-stream flows to protect treaty fishing rights.130

The Yakima Basin is an unlikely venue for a court decision recognizing tribal treaty fishing rights. The presiding judge, himself a former irrigation district attorney, could not ignore the admonition of Colorado River Conservation District: state courts may exercise jurisdiction over tribal water claims, but in so doing they must apply federal law.131 In 1993, the Washington State Supreme Court affirmed the trial court, finding that the Yakama Nation holds off-reservation in-stream flow water rights for “the absolute minimum amount of water necessary to maintain anadromous fish life in the Yakima River,” that the quantity of the right is to be determined annually according to weather conditions, that the Bureau is to administer the right in consultation with an advisory panel of biologists, and that the tribal in-stream water right dates to “time immemorial.”132

128 See Ottem, supra note 10. 129 State Dep’t of Ecology v. Acquavella, 100 Wash.2d 651 (1983). 130 State, Dep’t of Ecology v. Yakima Reservation Irr. Dist., 121 Wash.2d 257 (1993) (“Acquavella II”). 131 Colo. River Conservation Dist. v. United States, 424 U.S. 800, 817-18 (1976). 132 Memorandum Opinion re: Motions for Partial Summary Judgment, State Dep’t of Ecology v. Acquavella, 100 Wash.2d 651 (1983) aff’d, State Dep’t of Ecology v. Yakima Reservation Irr. Dist.,121 Wn.2d 257 (1993)(No. 77-2-01484-5); see also Final Order Re: Treaty Reserved Water Rights at Usual and Accustomed Fishing Places, State Dep’t of Ecology v. Acquavella, 100 Wash.2d 651 (1983) aff’d, State Dep’t of Ecology v. Yakima Reservation Irr. Dist.,121 Wn.2d 257 (1993)(No. 77-2-01484-5).

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The award of the “absolute minimum amount of water”133 necessary to keep fish alive seems parsimonious, but implementation of the Tribe’s in-stream water rights has met with decided success. In 1994, another low-water year, the biologist panel advised the Bureau that release of a pulse of water, termed a “flushing flow,” was needed to assist downstream migration of juvenile salmon smolts.134 Irrigation districts challenged the water releases, but were rebuffed when the court deferred to scientific expertise.135 The court further expanded on its original ruling to find that, given the endangered status of the Basin’s fisheries, biology-based recommendations regarding the flows needed to support salmon life stages would receive favorable consideration.136 Thus, the “absolute minimum” has evolved into a standard for conservation and recovery of endangered fish populations in the Yakima Basin.

Water supply conditions in the Yakima Basin are perennially difficult. Drought occurs every few years, requiring curtailment of junior irrigation rights. In-stream flows are depleted in certain reaches of the River at certain times. Climate change exacerbates water scarcity. But the Yakama Nation has parlayed its treaty right into formal and informal co- management partnerships with Washington and the United States Bureau of Reclamation.137 Through these processes, the Tribe has successfully asserted its Stevens Treaty water rights to protect fish and habitat, and institutionalized processes to perpetuate protections. Water conservation improvements, trust water rights (dedicated in-stream flow rights), fish passage at Basin reservoirs, and other activities hold promise for fisheries

133 Memorandum Opinion re: Motions for Partial Summary Judgment, State Dep’t of Ecology v. Acquavella, 100 Wash.2d 651 (1983) aff’d, State Dep’t of Ecology v. Yakima Reservation Irr. Dist.,121 Wn.2d 257 (1993)(No. 77-2-01484-5). 134 Memorandum Opinion re: “Flushing Flows,” State Dep’t of Ecology v. Acquavella, 100 Wash.2d 651 (1983) aff’d, State Dep’t of Ecology v. Yakima Reservation Irr. Dist.,121 Wn.2d 257 (1993)(No. 77-2-01484-5). 135 Id. 136 Id. 137 E.g., Memorandum of Agreement Among the Yakama Nation and U.S Bureau of Reclamation and Wash. State Dep’t of Ecology Related to Ground Water Management in Yakima River Basin (Aug. 12, 1999), available at http://www.ecy.wa.gov/programs/wr/cro/images/pdfs/moa_yn_br_ecy1999.pdf (last visited Nov. 24, 2013); WASH. DEP’T OF ECOLOGY WATER TRANSFER WORKING GROUP, http://www.ecy.wa.gov/programs/wr/ywtwg/ywtwg_qanda.html (last visited Nov. 23, 2013).

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restoration. Progress is slow, but steady, and reveals the contemporary power of the Stevens Treaty legal right, reserved in 1855, to counter the force of prior appropriation.

b. The Nez Perce Tribe and the Snake River Basin Adjudication

The Nez Perce Tribe (known also as Nimi’ipu), is an Inland Northwest Tribe historically dependent on the extraordinary 900-mile migration of salmon into the Clearwater River region now known as Idaho.138 The Nez Perce ceded fourteen million acres of aboriginal lands to the United States via two treaties in 1855 and 1863, and agreed to settle and reside on the present-day reservation.139 The Nez Perce peoples are well known for welcoming the Lewis & Clark expedition of 1805 when the near-starved “Corps of Discovery” stumbled out of the Bitterroot Mountains, and were revived with salmon and other traditional foods.140

The Nez Perce Treaties reserved rights to fish at usual and accustomed sites.141 As explained by the Nez Perce Tribal chairman in a hearing before the United States Congress, “fish and water are materially and symbolically essential to Nez Perce people both in the present and the past; and declines in fish and water availability, primarily due to human environmental alteration and restrictions on access, have had devastating effects on our people and their culture.”142

Unique among the Stevens Treaties, the 1863 Nez Perce Treaty also preserved tribal access and use rights to approximately 600 “springs or fountains . . . and, further, to preserve a perpetual right of way to and from the same, as watering places, for the use in common of both whites

138 DAN LANDEEN AND ALLEN PINKHAM, SALMON AND HIS PEOPLE: FISH AND FISHING IN NEZ PERCE CULTURE (1999). 139 Treaty with the Nez Percés, U.S.-Nez Percé Indians, art 3, June 11, 1855, 12 Stat. 957; Treaty with the Nez Percés, U.S.-Nez Percé Indians, 16 Stat. 647 (1868). 140 THE JOURNALS OF LEWIS AND CLARK, 240-41 (1981). 141 See Treaty with the Nez Percés, supra note 139. 142 Snake River Basin Adjudication Settlement, Hearing on S. 108-636 Before the S. Comm. on Indian Affairs, 108 Cong. (2004) (statement of Anthony Johnson, Nez Perce Tribal Executive Committee Chairman).

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and Indians.”143 The abundant springs of Nez Perce aboriginal lands supply water for human and livestock needs, and also support traditional foods and cultural practices.

In 1987, Idaho commenced a general stream adjudication of the Snake River Basin, and approximately 150,000 claims to water were filed.144 The Nez Perce Tribe filed multiple claims for on-reservation Winters water rights, Stevens Treaty off-reservation in-stream flows, and use of springs and fountains.145 Tribal water claims drew substantial opposition from non-Indian agricultural and timber interests, and in 1999, the adjudication court ruled that there was a lack of intent by United States and Tribal treaty negotiators to reserve in-stream flows because they did not contemplate future fisheries problems.146

Rather than risk further losses in the state court system, the Nez Perce Tribe elected to negotiate. The resulting settlement was substantial but involved “significant and difficult compromises for the Tribe.”147 Stevens Treaty in-stream flow rights were not recognized in the agreement. The Tribe’s on-reservation Winters water right was quantified at 50,000 acre-feet, dating from 1855.148 In-stream flow rights were recognized for 205 streams off the reservation, but are managed by the state and subordinated to state water permits that pre-date the 2004 agreement.149 Both on-and off-reservation in-stream flow rights are subordinated to future water uses. The Tribe’s “springs and fountains”

143 Treaty with the Nez Percés, U.S.-Nez Percé Indians, art 8, June 9, 1863, 14 Stat. 647. 144 See Ottem, supra, note 10 (re Yakima, Idaho and Oregon adjudications). 145 In re Snake River Basin Adjudication, Case No. 39576, Consolidated Subcase No. 03- 10022 at 12-15 (Idaho 5th Dist. Ct., Twin Falls County, Nov. 10, 1999) (copy on file with author). 146 Id. at 27-39, 47. 147 See Heidi K. Gudgell, et al., The Nez Perce Tribe’s Perspective on the Settlement of Its Water Right Claims in the Snake River Basin Adjudication, 42 IDAHO L. REV. 563 (2006). 148 Nez Perce Tribe, and State of Idaho, Snake River Water Rights Agreement, Mediator’s Term Sheet and Agreement Summary, U.S. DEP’T OF INTERIOR, (May 2004), available at www.idwr.idaho.gov/waterboard/WaterPlanning/nezperce/default.htm (last visited Nov. 24, 2013). 149 Id.

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rights, explicitly reserved in the Treaty, fared better with a priority date of “time immemorial,” and are shared equally with non-Indian users.150

The failure of the Nez Perce settlement to recognize off-reservation in-stream flow rights of the Tribe represents a disappointing turn in the development of Stevens Treaty water right jurisprudence. Idaho has proven a particularly difficult venue to protect environmental values in rivers from both tribal and non-tribal perspectives.151 The Nez Perce settlement is hard to assail given the context for its negotiation. Moreover, the settlement brought significant resources to the Tribe that would be unobtainable through the Snake River general stream adjudication. Tribal benefits include the return of 11,000 acres of federal lands within the boundaries of the Nez Perce Reservation, the right to control water releases from a major reservoir on the Columbia-Snake River system to enhance salmon migration, and payment of $90 million in federal funds to restore fisheries habitats and establish on-reservation water and sewer management infrastructure.152

c. The Muckleshoot Tribe and the Cedar River Habitat Conservation Plan

The Muckleshoot Indian Reservation is located at the foot of Mount Rainier in western Washington; the Tribe is signatory to the Treaties of Point Elliott and Medicine Creek, which established the Tribe’s 6-square mile reservation and rights to “fish in common” with Euro-American settlers.153 Descendants of the Coast Salish peoples of the Northwest, the Muckleshoot are salmon and shell fishers and possess access and use rights to aboriginal fishing sites along hundreds of miles of shorelines of the Puget Sound estuary and tributary rivers.154

150 Id. 151 See, e.g., Michael C. Blumm, Reversing the Winters Doctrine?: Denying Reserved Water Rights for Idaho Wilderness and Its Implications, 73 UNIV. COLO. L. REV. 173 (2002). 152 See, Gudgell, et al., supra note 146. 153 Treaty of Medicine Creek, US-Nisqually, Dec. 26, 1854, 10 Stat. 1132; Treaty of Point Elliott, Jan. 22, 1855, 12 Stat. 927. 154 About Us - Overview, MUCKLESHOOT INDIAN TRIBE, http://www.muckleshoot.nsn.us/about-us/overview.aspx (last visited. Nov. 24, 2013).

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The Cedar River, an important tributary located near the Muckleshoot Reservation, is home to several salmon and trout species, including three that are threatened with extinction and have been listed pursuant to the federal Endangered Species Act (ESA).155 The Cedar River is also a major source of water supply for the City of Seattle, which delivers water to 1.3 million customers.156 As Seattle’s population skyrocketed in the 1990s, the City prepared to double its water diversions from the Cedar, an action that would have caused substantial harm to the Tribe’s fishery interests.157

Rather than broach the risks inherent in litigating treaty water rights, the Muckleshoot Tribe leveraged the ESA as legal authority for establishing in-stream flows. Because Seattle’s water system threatened harm to ESA-listed salmon species, the City was required to prepare a habitat conservation plan (HCP) to meet overarching habitat and species recovery goals.158

Even without treaty litigation, the going was difficult. In 2000, Seattle negotiated an HCP in-stream flow agreement, signed off by all interested parties except the Muckleshoot Tribe and one federal agency.159 The Tribe’s first legal challenge to the HCP was dismissed on procedural grounds,160 but a second challenge was met with proposals for a new round of negotiations. The resulting settlement, signed in 2006, limits Seattle’s diversions in perpetuity.161 The agreement also establishes a fish-friendly in-stream flow regime that protects a range of flows—

155 Endangered Species Act, § 4, 7 U.S.C. § 1533 (2006); see also Pacific Salmon and Anadromous Trout: Management Under the Endangered Species Act (Oct. 27, 1999) http://www.cnie.org/nle/crsreports/biodiversity/biodv-22.cfm (last visited Jan. 9, 2014). 156 SEATTLE PUBLIC UTILITIES, SAVING WATER PARTNERSHIP 2010 ANNUAL REPORT AND 10- YEAR REVIEW (2011), available at http://www.savingwater.org/index.htm (last visited Nov. 24, 2013). 157 Muckleshoot Tribe Settles with Seattle on Cedar River Water, EARTHJUSTICE (March 28, 2006), http://earthjustice.org/news/press/2006/muckleshoot-tribe-settle-with-seattle- on-cedar-river-water (last visited Nov. 24, 2013); Muckleshoot Indian Tribe v. Washington Dep’t. of Ecology, 112 Wash. App. 712, 717-18 (2002). 158 Endangered Species Act, § 10, 7 U.S.C. § 1539 (2006). 159 Muckleshoot Indian Tribe v. Washington Dep’t of Ecology, 112 Wash. App.at 712. 160 Id. 161 Cedar River Settlement Agreement between Muckleshoot Indian Tribe and City of Seattle (2006) (on file with author).

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including both minimum flows during the summer season and peak flows needed for channel maintenance functions—and creates an In-stream Flow Commission comprised of agency and tribal representatives to provide oversight for Cedar River water management.162 The Muckleshoot Tribe heralded the agreement as one that would allow the Tribe to rely on the Cedar River watershed "to sustain its society and culture and to provide sustenance for its people."163 The Tribe’s use of robust federal environmental laws illustrates a successful mechanism to leverage treaty- based rights.

III. MANAGEMENT OF WINTERS WATER

A. Introduction

Water must be managed after tribal rights are established at law. Identifying which governments are empowered to manage water resources within or adjacent to tribal reservations is a key question emerging from the Winters doctrine. This question has engendered yet more litigation, a developing jurisprudence, and some creative and practical responses to the need for effective water management. Regulatory jurisdiction over tribal water resources raises several issues, founded in large part on the fact of substantial non-Indian ownership of fee lands within reservation boundaries. As described above, the Dawes Act of 1887 authorized the allotment of reservation lands to tribal members and subsequent sale of “surplus lands” to non-Indians, leading to the loss of a large amount of the tribal estate.164 Many individual tribal members sold their allotments or lost them in tax foreclosure proceedings, allowing non-Indians to move onto reservations. Despite repudiation of the allotment policy in 1934, the United States Congress did not require the removal of non-Indians from tribal lands.165

162 Id. 163 Muckleshoot Tribe Settles with Seattle on Cedar River Water, EARTHJUSTICE (March 28, 2006), http://earthjustice.org/news/press/2006/muckleshoot-tribe-settle-with-seattle- on-cedar-river-water (last visited Nov. 24, 2013). 164 General Allotment Act of 1887, supra note 11. 165 Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479 (2006).

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The resulting patchwork of non-Indian fee properties on tribal reservations created lingering questions about non-Indian entitlement to Winters water rights. It also raised the question of the scope of tribal governmental authority to regulate water use by all reservation residents. United States courts have increasingly diminished the exercise of tribal governmental authority over non-Indians. As a result, the ability of tribes to fully control reservation water resources has resulted in a confusing set of precedents.

Rivers and aquifers are unitary in nature, and jurisdictional fragmentation undermines protection of water resources and traditional tribal uses. Lack of clear authority over non-Indian water usage has led to illegal self-help, over-appropriation, and widespread contamination of tribal water resources.

Prior to the decision in Confederated Colville Tribes v. Walton, described below, non-Indians would secure water right permits from state water agencies for diversion and use of tribal waters.166 In 1981, the Walton court ruled that states lack authority to issue such permits, but made a point of noting the unique geographic circumstances in that case.167 Three years later, the same court ruled that states could issue permits for use of waters by non-Indians on non-tribal lands within an Indian reservation when those waters are “excess” to Winters doctrine needs.168 However, “excess” waters determinations have not been made for most Indian reservations.

Despite the confusion, Tribes are pro-active in their exercise of sovereign governmental powers to protect reservation waters and promote orderly development. Many tribal governments have promulgated water codes to govern on-reservation water use.169 One early challenge to such a code extended the Anderson170 rule to hold that the tribe could not

166 Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981). 167 Id. 168 United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984). 169 National Congress of American Indians, Tribal Water Codes: what are they and why are they important?, YOUTUBE (Dec. 17, 2012), www.youtube.com/watch?v=m20tFgVEOpE (last visited Nov. 24, 2013). 170 Anderson, 736 F.2d 1358.

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regulate non-Indian use of “excess” waters—although that term was itself not defined or quantified.171 As discussed above, the Arapahoe and Shoshone Tribes of the Wind River Reservation were unsuccessful in using their water code to transfer irrigation rights to in-stream flows.172 The volatility of the issue has caused the United States Bureau of Indian Affairs, which reviews and approves adoption of tribal law and order codes for tribal governments constituted under the Indian Reorganization Act of 1934, to impose a 40-year moratorium on approval of tribal water codes.173

Notwithstanding the controversies over tribal regulatory authority, many Indian tribes have moved forward to ensure protection of reservation resources. What follows are two examples of Tribes that have carved their own path to protect their Winters rights and ensure protection of reservation waters.

B. “Walton” Rights on the Colville Indian Reservation

The Colville Reservation comprises 1.4 million acres in northeastern Washington, bounded partly by the Columbia and Okanogan Rivers.174 In determining the scope of the Tribe’s Winters rights, a federal court held the purposes of the Reservation to include both agriculture and fishing, the latter being of “economic and religious importance” to the Tribes.175

171 Holly v. Totus, 655 F. Supp. 546 (E.D. Wash. 1983) aff’d in part, rev’d in part sub nom. Holly v. Watson Totus, 749 F.2d 37 (9th Cir. 1984). (Undeterred, the Tribe amended the water code to remove offending language, and has effectively regulated on-reservation waters since 1992.) See YAKAMA NATION REV. CODE ch. 60.01 (2005) (on file with author). 172 In re Gen. Adjudication of All Rights to Use Water in the Big Horn River, 835 P.2d 273; see also supra Section II(A)(4)(i). 173 JOHN E. THORSON, SARAH BRITTON, & BONNIE G. COLBY, TRIBAL WATER CODES, IN TRIBAL WATER RIGHTS: ESSAYS IN CONTEMPORARY LAW, POLICY, AND ECONOMICS 199, 206 (2006); SLY, supra note 48 (1989). 174 History of the Colvilles, CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, http://www.colvilletribes.com/history_of_the_colvilles.php (last visited Nov. 25, 2013) (citing President William McKinley, Proclamation 445, Withdrawal of Certain Lands from the Colville Reservation (April 10, 1900)). 175 Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981).

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The tribes and bands comprising the Confederated Colville Tribes (CCT) were salmon fishers, but traditional tribal fishing grounds on the Columbia River were destroyed by the Grand Coulee Dam. To mitigate for this loss, CCT created a replacement fishery in the Omak Lake watershed, a hydrologic system completely encompassed within the Colville Reservation.176 The Tribe stocked Omak Lake with a trout species that thrives in saline lake waters, but requires freshwater to spawn.177 After the Colville Reservation was opened to allotment, non-Indians acquired ownership of lands within the Omak Lake drainage and commenced irrigation diversions from the Lake’s tributary stream.178 Conflict arose between the Tribe’s need to maintain water in the creek system for trout spawning and the non-Indian irrigation diversions.

The resulting litigation established a landmark holding in the development of Winters jurisprudence: non-Indian successors to Indian allotments are entitled to share in the Winters rights held by the Tribes.179 This so-called “Walton” right (named for the Omak Lake non-Indian defendant), implicates on-reservation water management on every reservation where non-Indians have acquired lands—virtually every Indian reservation in the western United States.

Several rules apply to Walton rights, including that the non-Indian right (1) is based on a pro rata share of irrigable tribal lands; (2) must be put to use within a reasonable time (typically 15 years) from the date that the land is transferred from Indian to non-Indian ownership; and (3) may be lost for non-use.180 If the non-Indian right is lost, it reverts to the state in which the tribal reservation is located, not the tribe.181

Because water in the Omak Lake watershed is inadequate to supply all needs, usage must be carefully managed. Who regulates the Walton right? The court found that state water law was pre-empted by the

176 Id. at 45. 177 Id. 178 Id. 179 Id.at 48. 180 Id. at 51. 181 United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984).

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federal actions creating the Colville Reservation.182 The Omak Lake system is non-navigable and lies entirely within the Reservation, factors that were important but not determinative.183 Instead, the court looked to historic precedent to reject the claim that state laws, particularly water laws, may apply.184

The court did not decide, however, whether federal or tribal authority applied to manage on-reservation water resources. CCT, therefore, set about taking control of water management, signing ground- breaking cross-jurisdictional agreements with the State of Washington and federal agencies.185 CCT marshaled available law and procedures to create an impressive natural resources management program, including a water code. Sources of authority supporting tribal regulation of the natural resources and the reservation environment include tribal sovereignty,186 federal self-determination policy and law,187 assumption of delegated powers pursuant to federal environmental statutes such as the Clean Water, Clean Air, and Resource Conservation and Recovery Acts,188 cross-jurisdictional agreements, and federal common law that creates an exception to the general prohibition on tribal jurisdiction over non-Indians under circumstances involving “the political integrity, the economic security, or the health and welfare of the Tribe.”189

The Colville Tribal Water Use & Permitting Code exemplifies a successful tribal program that asserts jurisdiction over all reservation waters and, through modern management techniques such as integrated resource management planning, hydrogeologic investigations, geographic

182 Colville Confederated Tribes v. Walton, 647 F.2d 42, 51-53 (9th Cir. 1981). 183 Id. 184 Id. (citing Fed. Power Comm’n v. Oregon, 349 U.S. 435, 448 (1955)); United States v. McIntire, 101 F.2d 650, 654 (9th Cir. 1934). 185 See RALPH W. JOHNSON & RACHAEL PASCHAL, REPORT OF FINDINGS AND RECOMMENDATIONS, COMPENDIUM OF AGREEMENTS BETWEEN THE 26 FEDERALLY RECOGNIZED INDIAN TRIBES IN WASHINGTON STATE AND STATE AND LOCAL GOVERNMENTS (1991). 186 White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). 187 Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450 (2006). 188 Clean Water Act, 33 U.S.C. § 104(b)(3) (2006); Clean Air Act, 42 U.S.C. § 301 (2006); Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6908(a) (2006); see Washington v. EPA, 752 F.2d 1465 (9th Cir. 1985). 189 Montana v. United States, 450 U.S. 544, 566 (1981).

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information systems, vigilant regulatory control, and hands-on interpersonal skills, effectively manages the entire reservation environment.190

C. Lummi Nation Groundwater Management

The Lummi Indian Nation is located on the island of Cha-Cho-Sen, now known as Lummi Peninsula, which juts into Puget Sound a few miles south of the Canada-United States border.191 The Lummi Reservation was established by the Treaty of Point Elliott.192 Historically, the Lummi people occupied the San Juan Islands and Bellingham Bay areas of Puget Sound and, like all Northwest Tribes, depend on salmon and shellfish as major food and cultural resources.193

As with many tribal reservations, lands were allotted to individual Indian households, some of which found their way into non-Indian ownership. On the 6,254-acre Lummi Peninsula, the Tribe and its members comprise about two-thirds of the population and own about three-quarters of the land base.194 Population growth has increased demand for the Peninsula’s sole freshwater resource, a groundwater system recharged by precipitation and hydraulically connected to the saltwater Puget Sound. Over-pumping of groundwater has become a major concern, inducing saltwater intrusion and chloride contamination of wells and rendering them unsafe for human consumption. The Lummi Nation’s Water Resources Program determined that the safe yield of the Lummi Aquifer was 910 acre-feet per year, and that pumping was

190 COLVILLE TRIBAL LAW & ORDER CODE, ch. 4-10 (amended June 2006) (Water Use and Permitting), available at www.narf.org/nill/Codes/colvillecode/cctoc.htm (last visited Nov. 3, 2013). 191 United States v. Washington, 375 F. Supp. 2d 1050 (W.D. Wash. 2005) vacated pursuant to settlement sub nom. United States ex rel Lummi Indian Nation v. Washington, C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007) aff’d sub nom. United States ex rel. Lummi Nation v. Dawson, 328 F. App’x 463 (9th Cir. 2009). 192 Treaty with the Dwamish, Suquamish, etc., U.S.- Dwamish, art 2, April 11, 1859, 12 Stat. 927. 193 United States v. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974) aff’d and remanded, 520 F. 2d 676 (9th Cir. 1975). 194 United States v. Washington, 375 F. Supp. 2d 1050, 1057-58 (W.D Wash. 2005).

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exceeding the natural rate of recharge and putting the Peninsula aquifer at risk.195

While the Lummi Nation was in a position to control its own water usage, non-Indians would not cooperate in tribal water management. In 2001, the United States joined the Lummi Nation to bring suit in federal court to adjudicate and quantify the rights of the Nation vis-à-vis non- Indian water users and Washington.196 The litigation and settlement of the lawsuit offer two instructive developments regarding Winters water rights and tribal water resource management.

First, in its initial review of legal questions, the court interpreted the scope of the Nation’s Lummi Peninsula water rights pursuant to the Treaty of Point Elliott. The court held that Winters doctrine water rights may encompass rights to groundwater, even if the groundwater is not connected to surface waters.197 Second, the court held that under the Treaty of Point Elliott, the Lummi Nation reserved rights to utilize groundwater, even though it was not using such waters in 1855 at the time the Treaty was signed.198

Ultimately, the parties opted for settlement, and the resulting agreement is notable for its comprehensive scope. Lummi Peninsula water usage by non-Indians is capped at a fixed annual rate and regulated to prevent over-pumping.199 All wells are metered to determine pumpage rates, and monitored for water quality degradation due to saltwater

195 Order Conditionally Approving Settlement Agreement at 3, United States ex rel Lummi Indian Nation v. Washington, C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007) aff’d sub nom. United States ex rel. Lummi Nation v. Dawson, 328 F. App’x 463 (9th Cir. 2009), (No. C01-0047Z). 196 Complaint, United States ex rel Lummi Indian Nation v. Washington, C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007) aff’d sub nom. United States ex rel. Lummi Nation v. Dawson, 328 F. App’x 463 (9th Cir. 2009), (No. C01-0047Z). 197 Order at 9-12, United States ex rel Lummi Indian Nation v. Washington, C01-0047Z, 2007 WL 4190400 (W.D. Wash. Nov. 20, 2007) aff’d sub nom. United States ex rel. Lummi Nation v. Dawson, 328 F. App’x 463 (9th Cir. 2009), (No. C01-0047Z). 198 Id. 199 Settlement Agreement Regarding Uses of Groundwater on Lummi Peninsula (Nov. 13, 2007), available at http://www.ecy.wa.gov/programs/wr/rights/Images/pdf/luimmi/SettlementAgreement1113 07.pdf (last visited Nov. 24, 2013).

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intrusion.200 A federal water master oversees disputes among all parties,201 while the Washington Department of Ecology retains authority to control direct, non-tribal water usage.202 The Lummi Nation water code, promulgated in 2004, regulates existing and new water use by tribal members and non-Indians who are served by tribal water systems.203

The Lummi Nation settlement and water management program arose out of a scientifically rigorous approach to determining aquifer yield and controlling water quality degradation, combined with a creative cross- jurisdictional approach to water management duties. Tribal Winters and non-Indian Walton rights are recognized and given effect, but within the constraints of existing supply.

CONCLUSION

History reveals the importance of tribal water rights and the significance of contemporary efforts to define and quantify those rights. Tribal interests and values in water emerge from traditions dating back millennia; the treaties that codified tribal water rights are 150 years old. Judicial emphasis on evaluating treaties from perspectives of times past gives history more relevance in tribal water right proceedings than virtually any other area of law. History is known to the tribes too, as oral tradition keeps alive the meaning of the treaties. Professor Charles Wilkinson writes of the elders who testified in Judge Boldt’s courtroom in 1974, explaining in detail why their parents and grandparents reserved fishing rights and access stations in the Stevens Treaty negotiations.204

200 Id. at 7-8, 40-45. 201 Id. at 31-39; e.g., United States v. Washington, No. C-01-0047Z; FEDERAL WATER MASTER’S ANNUAL REPORT FOR FISCAL YEAR 2012-2013, available at http://www.ecy.wa.gov/programs/wr/rights/Images/pdf/luimmi/LummiAnnualReport06281 3FINAL.pdf (last visited Nov. 24, 2013). 202 Settlement Agreement Regarding Uses of Groundwater on Lummi Peninsula at 10-24 (Nov. 13, 2007) available at http://www.ecy.wa.gov/programs/wr/rights/Images/pdf/luimmi/SettlementAgreement1113 07.pdf (last visited Nov. 24, 2013). 203 WATER RESOURCES PROTECTION CODE, tit. 17, LUMMI NATION CODE OF LAWS (2004), available at http://lnnr.lummi-nsn.gov/LummiWebsite/userfiles/119_2010- 2020LummiNationUnexpiredFMP_FINAL9-2-2010.pdf (last visited Nov. 24, 2013). 204 Wilkinson, supra note 110.

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Equally critical is the emergence of the modern tribal governmental estate. Tribes are capable not only of self-governance, but operate sophisticated, natural resource management programs. Professor Bill Rodgers identifies three unique attributes that put tribes in a position to protect and defend the waters of the American west: tribal sovereignty, the special trust relationship between the United States and Indian Tribes, and tribal proprietary interests in land, water and wildlife resources.205 Tribal resource agencies now participate as co-managers with state and federal governments to protect and restore the waters and fisheries in which they hold an ownership interest. The successes are palpable and will continue to improve and grow.

The antipathy of state courts toward Indian water rights cannot be averted, and the historic allotment policies that allow non-Indians to own lands within tribal reservations are a significant obstacle to full use and management of tribal water rights. However, the movement toward settlement of Indian water claims is gaining ground due to the need by all parties for greater control over outcomes and the broad and productive terms that may be achieved through settlement, rather than litigation.

Finally, in the United States, an evolution is underway with respect to cultural and political thinking about human relationships with water.206 This change, long in coming, is a force for justice and the recognition of tribal water claims—claims that, in turn, illuminate a path forward for all people, and all rivers.

205 William H. Rodgers, Tribal Government Roles in Environmental Federalism, 21 NAT. RESOURCES AND ENV’T 3 (2007). 206 The Columbia River Watershed: Caring for Creation and the Common Good, The CATHOLIC BISHOPS OF THE COLUMBIA WATERSHED REGION (2000), available at http://www.youtube.com/watch?v=6Kc1F2-EvJw (last visited Nov. 24, 2013).

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TRIBAL ADVOCACY AND THE ART OF DAM REMOVAL: THE LOWER ELWHA KLALLAM AND THE ELWHA DAMS

Julia Guarino*

United States Dep’t. of Commerce & Nat’l Marine Fisheries Serv., Elwha River Fish Restoration Plan, Developed Pursuant to the Elwha River, Ecosystem and Fisheries Restoration Act, Pub. L. No. 102-495, NOAA Technical Memorandum NMFSNWFSC-90, fig. 1 at 2 (2008).

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INTRODUCTION: THE TREND TOWARD DAM REMOVAL AND THE ROLE OF TRIBAL ADVOCACY

The lower dam immediately blocked the spawning migrations of salmon and steelhead. As one wades the riffles, fishes the pools, and explores the Elwha and its tributaries above the dam, it becomes clear that the salmon and steelhead are absent. Biologically speaking, the river is a shadow of its former self. Before the Elwha Dam was built, the river produced approximately 400,000 salmon and steelhead a year, with some chinook weighing over 100 pounds. It is an odd experience to be deep in the Elwha River valley, surrounded by healthy forest, viewing a clean and healthy river ecosystem, and comprehend the diminished river. While magnificent, beautiful, and even transcendent, the river exudes a fundamental emptiness that is the legacy of settlement and development—a legacy specifically due to the two aging dams and the historical and economic processes that culminated in their construction.1

The big dam-building era is over, and though it will be a long journey, we have begun to move toward dam removal for ecological, economic, and social reasons. The Lower Elwha Klallam Tribe has demonstrated, through its role in the removal of the Elwha Dams, that tribal advocacy can be a major force in freeing the rivers of Tribes’ historic homelands.

The twentieth century saw an unprecedented frenzy of dam construction in the United States and worldwide. There are now more than

* Getches Fellow, Getches-Wilkinson Center for Natural Resources, Energy, and the Environment; J.D., University of Colorado Law School (2013); B.A., Bard College (2007). With many thanks to Charles Wilkinson for his direction and mentorship, and to Steve Suagee, Robert Elofson, Doug Morrill, and Larry Ward with the Lower Elwha Klallam Tribe for their time, advice, and comments.

1 JEFF CRANE, FINDING THE RIVER: AN ENVIRONMENTAL HISTORY OF THE ELWHA 3 (2011).

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87,000 medium to large-sized dams on America’s rivers.2 “[I]n the words of former Secretary of Interior Bruce Babbit, ‘we overdid it . . . building, on average, one dam a day, including weekends, since the Declaration of Independence.’”3 These structures were built for flood control, diversion, water storage, and recreational purposes, with little thought to their destructive environmental and social impacts.4

The negative impacts of dams on American rivers are numerous. By altering river temperature, water level, oxygen and sedimentation loads, the timing, volume, and velocity of flows and by blocking migration of species, dams completely change the environment in which native flora and fauna developed.5 This alteration threatens fisheries, prevents certain types of recreation, and often has a particularly devastating impact on traditional indigenous uses of the water body and the various species that reside in it.6

The majority of American dams constructed during the twentieth century were designed with a 50-year life expectancy, and 85 percent of these dams will be 50 or more years old by the year 2020.7 As American dams age, the public and the federal government have begun to acknowledge the environmental and social harms that dams cause, and

2 ARMY CORPS OF ENGINEERS, NATIONAL INVENTORY OF DAMS, http://geo.usace.army.mil/pgis/f?p=397:12: (last visited Nov. 24, 2013). The National Inventory of Dams only includes dams meeting at least one of the following criteria: 1) High hazard classification - loss of one human life is likely if the dam fails, 2) Significant hazard classification - possible loss of human life and likely significant property or environmental destruction, 3) Equal or exceed 25 feet in height and exceed 15 acre-feet in storage, 4) Equal or exceed 50 acre-feet storage and exceed 6 feet in height, in 49 states (excluding Alabama), and Puerto Rico; CorpsMap: National Inventory of Dams, ARMY CORPS OF ENGINEERS, http://geo.usace.army.mil/pgis/f?p=397:1:0 (last visited Nov. 24, 2013). 3 Christine A. Klein, On Dams and Democracy, 78 OR. L. REV. 641 (1999) (quoting Bruce Babbitt, Dams Must Be Looked at Critically, With an Eye Toward Environment, WIS. STATE J. (Nov. 29, 1998)). 4 See generally MARC REISNER, CADILLAC DESERT: THE AMERICAN WEST AND ITS DISAPPEARING WATER (1986); See generally STEPHEN GRACE, DAM NATION (2012). 5 See Why We Remove Dams, AM. RIVERS, http://www.americanrivers.org/initiatives/dams/why-remove/ (last visited Nov. 24, 2013). 6 See THE JOHN HEINZ III CTR. FOR SCI., ECON. & ENV’T, DAM REMOVAL: SCIENCE AND DECISION MAKING 74-78 (2002) [hereinafter HEINZ REPORT]. 7 See Id. at 34.

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federal dam building has essentially ceased.8 Furthermore, private parties and the federal government have begun to consider removing dams instead of repairing and relicensing them as they age. On July 1, 1999, Edwards Dam in Maine, the first dam to be removed over the protestations of its owner by order of the federal government, was demolished.9 Since 1999, 593 dams have been removed from American rivers, 63 of which came out in 2012.10

8 Beginning in the 1960s, an international environmental and social movement concerned about the effects of dams began to grow, and large dam construction faced new political and legal opposition. DAVID P. BILLINGTON, DONALD C. JACKSON, & MARTIN V. MELOSI, U.S. DEPT. OF THE INTERIOR & BUREAU OF RECLAMATION, THE HISTORY OF LARGE FEDERAL DAMS: PLANNING, DESIGN, AND CONSTRUCTION IN THE ERA OF BIG DAMS 383 (2005). Since the 1990s, the federal government has acknowledged that “[t]he dam building era in the United States is now over.” Marc Reisner, The Fight for Reclamation, HIGH COUNTRY NEWS at 8 (Mar. 20, 1995), http://www.hcn.org/issues/31/874/print_view (last visited Nov. 24, 2013). “The big dam era left a powerful structural and economic legacy, but it was a legacy that presents challenges to society in terms of making the best use of America’s water resources.” BILLINGTON ET AL., supra, at 412. Although large dam construction is no longer politically feasible in the United States, a similar story is unfolding in the debate over pipeline construction. As with large dams, pipelines can threaten ecosystems, communities, and cultural resources. See, e.g., Dr. Janet Swan, Assessing the Environmental Impacts of Pipelines, PIPELINES INTERNATIONAL (Sept. 2009), http://pipelinesinternational.com/news/assessing_the_environmental_impacts_of_pipeline s/008361/ (last visited Nov. 24, 2013); TIM WILLIAMS, PARLIAMENT OF CANADA INDUSTRY, INFRASTRUCTURE AND RESOURCES DIVISION, PIPELINES: ENVIRONMENTAL CONSIDERATIONS (2012). The Keystone XL pipeline, which is proposed to extend from Alberta, Canada to the Gulf Coast of Texas, has been a major source of environmental controversy in recent years. See, e.g., Keystone XL Pipeline, FRIENDS OF THE EARTH, http://www.foe.org/projects/climate-and-energy/tar-sands/keystone-xl-pipeline (last visited Nov. 24, 2013). The Department of State is currently finalizing an Environmental Impact Statement for the project, New Keystone XL Pipeline Application, U.S. DEPT. OF STATE, http://keystonepipeline-xl.state.gov/ (last visited Nov. 24, 2013), and construction is anticipated to begin in 2015. Keystone XL Pipeline: About the Project, TRANSCANADA, http://keystone-xl.com/about/the-project/ (last visited Nov. 24, 2013). Meanwhile, environmental groups, tribes, and others remain vocally opposed to the project and the federal government has been inconsistent in its support. See, e.g., Ben Brumfield, Oil, Money and Politics; EPA Snags Keystone XL Pipeline, CNN (Apr. 23, 2013); Steve Mufson, Keystone XL Pipeline Raises Tribal Concerns, WASHINGTON POST (Sept. 17, 2012). 9 Edwards Dam and Kennebec Restoration: A Brief History of Edwards Dam, NATURAL RESOURCES COUNCIL OF MAINE, http://www.nrcm.org/historyedwards.asp (last visited Nov. 24, 2013). 10 63 Dams removed to restore rivers in 2012, AM. RIVERS (2012) http://www.americanrivers.org/assets/pdfs/dam-removal-docs/2012-dams-removed.pdf (last visited Nov. 24, 2013).

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As with the Edwards Dam, the removal of the Elwha and Glines Canyon Dams on the Elwha River in Washington began with a dam relicensing procedure by the Federal Energy Regulatory Commission (FERC).11 As with many dams being considered for removal, the health and preservation of the salmon runs has been a central issue for all parties.12 The salmon have certainly been a driving force for the intensive advocacy undertaken by the Lower Elwha Klallam Tribe, which first filed a motion to intervene in the FERC proceedings for both dams in 1986.13 Eventually the Tribe was able to engage federal agencies and local stakeholders in the removal process, which officially began with a dam removal ceremony on September 17, 2011.14

This article will explore the role played by the Lower Elwha Klallam Tribe in the removal of the Elwha Dams, discussing Elwha life and livelihood before the dams, the motivations and forces behind the building of the dams and their effect on the Tribe, the decision to remove the dams, and finally the dam removal process that is now underway on the Elwha River. This article emphasizes the unique role of the Lower Elwha Klallam Tribe in the removal process, which has stretched over more than thirty years. The Tribe’s success in achieving the removal of a dam that has interfered with its traditions and way of life for a century, should serve as a model for other tribal nations in advocating for dam removal in their traditional homelands.

I. LOWER ELWHA KLALLAM LIFE BEFORE THE DAMS

On the northwest edge of the continental United States, in some of the quietest and most rain-drenched lands in all of North America, runs the glacier-blue Elwha River. It arises

11 See Peter Lavinge, Dam(n) How Times Have Changed, 29 WM. & MARY ENVTL. L. &POL’Y REV. 451, 464-65 (2005). 12 See generally Peter J. Carney, Dam Removal: Evolving Federal Policy Opens a New Avenue of Fisheries and Ecosystem Management, 5 OCEAN & COASTAL L.J. 309 (2000). 13 Motion of Lower Elwha Indian Tribe for intervention, consolidation etc. re Crown Zellerbach Corp., F.E.R.C. Docket No. P-2683, P-588 (Federal Energy Regulatory Commission, Jan. 27, 1986), available at http://elibrary.ferc.gov/idmws/doc_info.asp (last visited Nov. 24, 2013). 14 See Ted Warren, Ceremony Marks the Start of Elwha Dam Removal, ASSOCIATED PRESS (Sept. 17, 2011).

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from the Elwha Snowfinger, a perennial snowfield in Washington’s Olympic National Park, and flows 45 miles northward through basalt canyons and old-growth forest before spilling into the Strait of Juan de Fuca. The river traverses the reservation of the Lower Elwha Klallam Tribe, a people who have relied on the river’s salmon for physical, spiritual, and cultural sustenance for millennia.15

A large flat rock pocketed with two hollows stood beside the Elwha River before it was inundated by the Glines Canyon and Elwha Dams.16 Lower Elwha Klallam ancestors explain that this was the place where the creator scooped dirt from the earth to form the people, and then bathed and blessed them in the river.17 The earliest archeological evidence of human activity on the Peninsula, dating to 12,000 years ago, was discovered near Sequim, Washington in 1977.18 In August of 2003, the (at least) 2,700-year-old Klallam village of Tse-whit-zen was unearthed by a construction project adjacent to Port Angeles Harbor.19

The Klallam, whose name means “strong people,”20 historically lived along much of the northern Olympic Peninsula’s coast.21 The Klallam people, like many tribes in the Pacific Northwest, historically relied heavily

15 Wendee Nicole, Lessons of the Elwha River: Managing Health Hazards During Dam Removal, ENVIRONMENTAL HEALTH PERSPECTIVES (2012), http://ehp.niehs.nih.gov/120- a430/ (last visited on Nov. 24, 2013). 16 Jamie Valadez, Elwha Klallam, in NATIVE PEOPLES OF THE OLYMPIC PENINSULA: WHO WE ARE 21 (2002). 17 Id. 18 NATIVE PEOPLES OF THE OLYMPIC PENINSULA: WHO WE ARE 7 (2002) [hereinafter WHO WE ARE]. 19 The dating of this site is based on the oldest of a random sampling of artifacts uncovered at the site. Jamie Valadez & Carmen Watson-Charles, ən, LOWER ELWHA KLALLAM TRIBE, http://elwha.org/tsewhitzen.html (last visited Nov. 24, 2013); Russell W. Busch, Tr bal Advo a y for Elwha R ver Dams Removal on Wash ngton’s Olympic Peninsula, 2 GOLDEN GATE UNIV. ENVTL. L.J. 5, 6 (2008). 20 ROBERT H. RUBY, JOHN A. BROWN. & CARY C. COLLINS, A GUIDE TO THE INDIAN TRIBES OF THE PACIFIC NORTHWEST 35 (1986). 21 The S’Klallam: Elwha, Jamestown and Port Gamble, in NATIVE PEOPLES OF THE OLYMPIC PENINSULA: WHO WE ARE 18 (2002); Villages and Government, LOWER ELWHA KLALLAM TRIBE, http://elwha.org/cultureandhistory/villagesandgovernment.html (last visited Nov. 24, 2013); RUBY, ET AL., supra note 20, at 35-36.

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on salmon fisheries,22 as well as hunting and gathering for their subsistence, developing an extensive trade network.23 All five species of pacific salmon found in the Northwest were caught by the Klallam in the Elwha River: chinook, coho, pink, chum, and sockeye salmon.24 Especially prized were the tyee, or the chinook salmon, which could reach 100 pounds each.25 “Because of salmon, the Pacific Northwest Indians developed one of the few hunter/gatherer societies in the world that consistently produced more food and material wealth than it needed for subsistence.”26

European exploration of the Pacific Northwest Coast began in the late 1500s,27 but the first recorded contact between Klallam peoples and Europeans occurred on July 21, 1790, when Spanish explorer Manuel Quimper anchored near the mouth of the Elwha River.28 With the Europeans, came disease against which the Klallams and other American

22 The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. United States v. Winans, 198 U.S. 371, 381 (1905). 23 In pre-treaty times Indian settlements were widely dispersed throughout Western Washington. There was considerable local diversity in the availability and importance of specific animal, plant and mineral resources used for food and artifacts. (FPTO § 3-32) But one common cultural characteristic among all of these Indians was the almost universal and generally paramount dependence upon the products of an aquatic economy, especially anadromous fish, to sustain the Indian way of life. (Ex. G-17o, pp. 286-287; Exs. USA-20 to 30 and 53; Exs.G-21 to 26). These fish were vital to the Indian diet, played an important role in their religious life, and constituted a major element of their trade and economy. United States v. State of Washington, 384 F. Supp. 312, 350 (W.D. Wash. 1974) aff'd and remanded, 520 F.2d 676 (9th Cir. 1975). 24 GRACE, supra note 4, at 155; Historic Anadromous Fish Runs in the Elwha, NAT’L PARK SERV., http://www.nps.gov/olym/naturescience/historic-anadromous-fish-runs-in-the- elwha.htm (last visited Nov. 24, 2013). 25 Phillip M. Bender, Restoring the Elwha, White Salmon, and Rogue Rivers: A Comparison of Dam Removal Proposals in the Pacific Northwest, 17 J. LAND RESOURCES & ENVTL. L. 219 (1997). 26 O. Yale Lewis III, Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights Implied By the Fishing Clause of the Stevens Treaties, 27 AM. INDIAN L. REV. 281, 286 (2002-03) (citing AM. FRIENDS SERV. COMM., UNCOMMON CONTROVERSY: FISHING RIGHTS OF THE MUCKLESHOOT, PUYALLUP, AND NISQUALLY INDIANS 3 (1970)). 27 WHO WE ARE, supra note 18, at 11. 28 The S’Klallam, supra note 21, at 18.

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Indian populations had no immunity,29 and the Native population of the Northwest declined approximately 80 percent from an estimated 180,000 pre-European contact to between 35,000 and 40,000 by the late 1800s.30 This decline in population had a devastating effect on the peoples and cultures of the Olympic Peninsula.31 In 1855, the Klallam, Chemakum, and Skokomish signed the Treaty of Point No Point with the United States government,32 which importantly guaranteed the tribes “[t]he right of taking fish at usual and accustomed grounds and stations . . . in common with all citizens of the United States.”33 The Klallam “understood that a reservation was to be established for them between Sequim and Dungeness Bay,” but instead were ordered to remove to the Skokomish Reservation on Hood Canal.34 Most refused and remained in their traditional territory, some acquiring land by purchase or homesteading,35 but many lived as squatters or exiles in their own homeland. As settlers encroached on their traditional territory, some Klallam villages were consistently and forcibly relocated.36 In the 1930s, the United States Secretary of Interior began taking land into trust for certain groups of Klallam peoples under the authority of the newly enacted Indian Reorganization Act of 1934.37 During this period, Klallam Indians from the various aboriginal villages eventually became three separate federally recognized Klallam Tribes: the Lower Elwha Klallam, the Jamestown S’Klallam, and the Port Gamble S’Klallam.38 A little over 300 acres of land were taken in trust for the Lower Elwha Klallam in1936-37, which was later formally proclaimed as the Lower Elwha Klallam Reservation in 1968.39 Together, with a few hundred

29 ROBERT BOYD, THE COMING OF THE SPIRIT OF PESTILENCE 4 (1999). 30 Id. at 3. 31 CRANE, supra note 1, at 34-35. 32 The S’Klallam, supra note 21, at 19; see also BRUCE BROWN, MOUNTAIN IN THE CLOUDS: A SEARCH FOR THE WILD SALMON 81-82 (1982). 33 Treaty of Point No Point, U.S.- S'Klallams Indians, art 4, Jan. 26, 1855, 12 Stat. 933 available at http://digital.library.okstate.edu/kappler/vol2/treaties/skl0674.htm (last visited Nov. 24, 2013). 34 The S’Klallam, supra note 21, at 19; RUBY, ET AL., supra note 20, at 36-37. 35 Id. 36 LOWER ELWHA KLALLAM TRIBE, supra note 16, at Villages and Government; Busch, supra note 19 at 7-8. 37 25 U.S.C. § 461 (2006); RUBY, ET AL., supra note 20, at 37. 38 The S’Klallam, supra note 21, at 18. 39 Valadez, supra note 16, at 26; Villages and Government, supra note 21.

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additional contiguous acres of tribal trust land, this small reservation sits at the mouth of the Elwha River.40

Map of Wash ngton’s Tr bes, WASHINGTON TRIBES, http://www.washingtontribes.org/default.aspx?ID=48 (last visited Nov. 24, 2013).

As with their reservation, the Lower Elwha Klallam waited more than a century to see the federal government take action to protect the Tribe’s treaty right to continue to take fish in their traditional territory. In 1974, Federal District Court Judge George Boldt “issued one of the most sweeping and significant judicial rulings in the history of the Pacific Northwest,”41 affirming the Tribes’ rights to take fish under the treaties and guaranteeing them 50 percent of the harvestable fish available in traditional tribal fishing grounds.42 The Supreme Court affirmed Judge

40 Culture and History, LOWER ELWHA KLALLAM TRIBE, http://www.elwha.org/cultureandhistory.html (last visited Nov. 24, 2013). 41 CHARLES WILKINSON, MESSAGES FROM FRANK’S LANDING: A STORY OF SALMON, TREATIES, AND THE INDIAN WAY 55-56 (2000). 42 See United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).

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Boldt’s decision in a related case in 1979,43 but that did nothing to redress the continued denial of the Lower Elwha Klallam Tribe’s treaty fishing rights by the destructive force of the Elwha and Glines Canyon Dams on the Elwha River.44 Reservation life and the loss of the salmon completely disrupted the Klallam people’s thriving culture. Adeline Smith, a tribal elder, recalled life before the dams:

The Klallams were a huge tribe. This stamp-sized place [now occupied by a few tribal members near Port Angeles] was not the tribe. There was a big village at the Hoko, a great big village at Psyht, at Clallam Bay, at Deep Creek. Everyone had a village and they were all Klallams. People who lived up the river hunted, then came down the river and exchanged. That way everybody tasted everything.45

II. BUILDING THE ELWHA DAMS

In 1862, eight years after the Lower Elwha Klallam signed the Treaty of Point No Point, President Lincoln established Port Angeles as a townsite, though most of the land was officially held as a military reserve until 1894.46 Thomas Aldwell, who moved to Port Angeles in 1890, began to plan for a hydropower dam on the Elwha River to serve the growing city

43 Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979). 44 The “Boldt decision” has had a tremendous impact on the lives and livelihood of Washington State tribes, but the right to environmental protection of fish habitat for the preservation of the species has not been guaranteed as part of a tribe’s right to harvest. See Lewis, supra note 26, at 281-82 (“The fishing rights guaranteed by the fishing clause of the Stevens Treaties between the United States and the Indians of Western Washington should be considered a trinity of rights: a right of access, a right of equitable apportionment, and a habitat right . . . Without judicial recognition of a habitat right, anadromous fish populations will continue to perish and the treaty fishing right will become even emptier than it already is.”). Western Washington Treaty Tribes and the State of Washington are currently in the Ninth Circuit litigating aspects of the habitat right in the “culverts” subproceeding of United States v. Washington, Ninth Circuit Nos. 13- 35474 and 13-35519, a topic beyond the scope of this article. 45 Charles Wilkinson, The Olymp Pen nsula’s Elwha R ver: Pr soner of H story, Harbinger of Hope, in AWAY OUT OVER EVERYTHING: THE OLYMPIC PENINSULA AND THE ELWHA RIVER 71 (2004). 46 PORT ANGELES: THE AUTHENTIC NORTHWEST, PORT ANGELES REGIONAL CHAMBER OF COMMERCE 17 (2013), available at http://www.portangeles.org/files/821.pdf. (last visited Nov. 24, 2013).

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in the early 1900s.47 In 1908, Aldwell formed the Olympic Power and Development Company to assemble the land and funding necessary to build the Elwha Dam.48 Olympic Power began construction on the dam at a site 4.9 miles above the mouth of the 45-mile-long river in 1910, hoping to attract pulp mills to Port Angeles.49

A Washington state law was in place in 1910 requiring fish passage facilities in all new dams, but when construction was completed in 1912 the one hundred and five-foot Elwha Dam had none.50 Game warden James Pike wrote to Fisheries Commissioner Riseland with despair in the fall of 1911:

I have personally searched the Elwha River & Tributaries above the Dam, and have been unable to find a single Salmon. . . . I have visited the Dam several times lately . . . and there appear to be [t]housands of [s]almon at the foot of the Dam, where they are continually trying to get up the flume. I have watched them very close, and I am satisfied now that they cannot get above the Dam.51

A tribal member, Mel Elofson, recalled a similar scene recounted by his grandmother:

When the lower dam first went in, our homestead site was only about half a mile away from it, so she was able to walk down there. When the salmon returned in the summer and

47 Biographical Note, Guide to Thomas T. Aldwell Papers, 1980-1951, UNIVERSITY LIBRARIES, http://digital.lib.washington.edu/findingaids/view?docId=AldwellThomasT4082.xml (last visited Nov. 24, 2013). 48 Id. 49 Tearing Down The Elwha River Dam, POPULAR MECHANICS (Feb. 10, 2006), http://www.popularmechanics.com/science/environment/water/2294301 (last visited Nov. 24, 2013). 50 Bender, supra note 25, at 220. 51 BROWN, supra note 32, at 65. In a 2006 interview for Popular Mechanics, Brian Winter, fisheries biologist and project manager for the National Park Service, made an eerily similar observation: “When the light is right . . . you can see them down there - adult salmon, waiting to swim upriver, waiting for the dam to be gone.” See also Tearing Down The Elwha River Dam, supra note 49.

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the fall they came back in huge hoards, and they were jumping, jumping, jumping, trying to get past this structure. A lot of them died and didn’t even spawn. Thousands and thousands of fish died that first year because they had no passage.52

As Bruce Brown asserts, in Mountain in the Clouds: A Search for the Wild Salmon, there is little mystery about why Fisheries Commissioner Riseland took no action against Olympic Power given the economic interests at play in the Pacific Northwest at the turn of the 20th century.53 The financial interests of the mineral, timber, water, and fishing industries held heavy sway in Washington state politics, so it is perhaps unsurprising that Washington’s fish passage laws were not enforced during the construction of the Elwha Dam.54

From the beginning, members of the Lower Elwha Klallam Tribe were opposed to the Elwha Dam, which inundated a traditional village site and the Tribe’s Creation Site.55 Feelings of resentment were heightened amongst tribal members when in 1912 the base of the dam, which was built on a gravel deposit and had not been tied into bedrock, blew out.56 “The only warning the Klallam families who were sitting down to dinner had was the barking of their dogs at the roar of water and breaking tree trunks.”57 This event is remembered as “the time when there were salmon in the trees.”58 There were no deaths or injuries, but the Tribe was left with extensive property damage and a lasting fear of the dam, which never was

52 Wilkinson, supra note 45, at 70. 53 BROWN, supra note 32, at 66. 54 Id. 55 See LOWER ELWHA KLALLAM TRIBE, supra, note 16 at Dam Timeline, Effect on the People. 56 See Roger Oaks, American Field Guide: Historical Background on the Elwha River Dams, PBS, available at http://www.pbs.org/americanfieldguide/teachers/salmon/history.pdf (last visited Nov. 24, 2013). 57 Valadez, supra note 16, at 28. 58 BROWN, supra note 32, at 108.

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tied to bedrock, even after being rebuilt.59 As former Tribal Chairperson Frank Bennett said, “I guess they don’t care if a few Indians drown.”60

In 1912, as Olympic Power began to reconstruct the Elwha Dam, the newly elected governor appointed Leslie Darwin to replace Riseland as Fisheries Commissioner.61 Unlike his predecessor, Darwin began to enforce fisheries laws, cracking down on widespread tax fraud and wasteful cannery processes.62 However, Darwin was still not prepared to fully enforce the laws against Olympic Power, and proposed that the company build a hatchery in lieu of fish passage facilities.63 The law provided for no such work-around, but Darwin’s solution soon became the norm in Washington State.64 The hatchery on the Elwha River was short- lived, closing in 1922,65 while salmon runs on the river continued to decline.66 In 1925, construction began on the Glines Canyon Dam at river mile 13.6, which was completed without fish passage facilities under a Federal Power Commission license in 1927.67 Before removal began in September, 2011, the Elwha and Glines Canyon Dams collectively prevented salmon runs from reaching seventy miles of spawning habitat.68

III. THE DECISION TO REMOVE THE ELWHA DAMS

We cherished it, and we respected it. . . We didn't waste it, we used every bit of it. . . I may not see the abundance of fish come back in my lifetime, but I would like to see it come back for my grandchildren, my great grandchildren, and the

59 CRANE, supra note 1, at 62. 60 Brian D. Winter & Patrick Crain, Making the Case for Ecosystem Restoration by Dam Removal in the Elwha River, Washington, 82 NORTHWEST SCIENCE 13 (2008), available at http://www.bioone.org/doi/pdf/10.3955/0029-344X-82.S.I.13 (last visited Nov. 24, 2013) [hereinafter Winter, Ecosystem Restoration]. 61 BROWN, supra note 32, at 66-69. 62 CRANE, supra note 1, at 70-71. 63 Bender, supra note 25, at 221-22. 64 Bender, supra note 25, at 221-22. 65 Quotes from Tribal Members regarding Dam Removal, LOWER ELWHA KLALLAM TRIBE, http://www.elwha.org/effectsontheelwhaklallampeople.html (last visited Nov. 24, 2013). 66 CRANE, supra note 1, at 86. 67 See LOWER ELWHA KLALLAM TRIBE, supra note 16, at Dam Timeline, supra note 55; Bender, supra note 25, at 219-20, 228. 68 Carney, supra note 12, at 322.

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rest of my people, the following generations to come. It was a gift from our Creator; it was our culture and heritage.69

Our elders – nobody would listen to them, their voices weren’t heard – until the late 1960s or 70s and there was a lot of opposition immediately. It was unheard of to remove the dams. It took a lot of educating. . . . We are protectors of the salmon. Salmon and us are like family to each other. We need each other. A lot of the people who opposed are now in agreement that they need to come out. That is how we won the battle, just by educating. 70

The Lower Elwha Klallam Tribe has been advocating for the removal of the Elwha and Glines Canyon dams since the dams’ construction in the early 20th century.71 The Federal Energy Regulatory Commission (FERC) process by which private hydropower dams are licensed provided the Tribe with an opportunity to intervene in an effort to restore the river and its salmon fisheries.72 This occurred in 1986 when the tribe filed a motion to intervene.73 This intervention soon gained the support of several environmental groups.74 In 1992, after a protracted administrative process, Congress passed the Elwha River Ecosystems and Fisheries Restoration Act, which directed the United States Department of the Interior to study the feasibility of the river and fisheries restoration.75 In the 1995 “Elwha Report,” the Secretary of Interior recommended removal of both dams,76 and in 2000, the federal

69 Quotes from Tribal Members regarding Dam Removal, supra note 65 (quote from Tribal elder Beatrice Charles). 70 Wilkinson, supra note 45, at 76 (quote from former Lower Elwha Klallam Tribal Chairperson Dennis Sullivan). 71 CRANE, supra note 1, at 87. 72 See generally 18 C.F.R. §§ 5.1-5.31 (2013). 73 See supra note 13. 74 Adam Burke, River of Dreams, HIGH COUNTRY NEWS, Sept. 24, 2001. 75 Elwha River Ecosystem and Fisheries Restoration Act Pub. L. No. 102-495, 106 Stat. 3173 (1992). 76 PHILLIP A. MEYER & RICHARD LICHTKOPPLER, U.S. BUREAU OF RECLAMATION, NATIONAL PARK SERVICE, AND LOWER ELWHA KLALLAM TRIBE, ELWHA RIVER RESTORATION PROJECT: ECONOMIC ANALYSIS FINAL TECHNICAL REPORT, at iii (1995) [hereinafter PHILLIP A. MEYER,ET AL., ELWHA REPORT].

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government purchased both dams from then-owner Daishowa America Co., Ltd.77 The primary source of funding for the Elwha River Restoration Act came from the National Park Service Construction Budget. In 2009, the American Recovery and Reinvestment Act78 provided the remaining funding necessary to accomplish removal of both dams, which began in September of 2011.79

A. The Federal Energy Regulatory Commission Process for Dam Removal

Under the Federal Power Act (FPA), most privately owned hydropower projects must be licensed by FERC.80 When the Elwha Dam was completed in 1913, the FPA was not yet in existence and the dam was not initially licensed.81 The Glines Canyon Dam, however, was granted a 50-year operating license during its construction in 1926 by FERC’s predecessor the Federal Power Commission.82 Crown Zellerbach Corporation, which purchased the Elwha Dam from Olympic Power in 1919 and subsequently constructed the Glines Canyon Dam,83 filed a license application for the Elwha Dam in 1968, and an application to relicense Glines Canyon Dam in 1973.84 FERC consolidated the applications into a single process in 1979.85

77 Adam Burke, River of dreams, HIGH COUNTRY NEWS, Sept. 24, 2001, http://www.hcn.org/issues/211/10739/ (last visited Nov. 24, 2013). 78 American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 115, 516 (2009). 79 Olympic National Park, Washington: Elwha Frequently Asked Questions, NAT’L PARK SERV.,http://www.nps.gov/olym/naturescience/elwha-faq.htm (last visited Nov. 24, 2013). 80 See generally 16 U.S.C. § 791-828(c) (2006) as amended; 18 C.F.R. §§ 5.1-5.31 (2013). See also FEDERAL ENERGY REGULATORY COMMISSION, DIVISION OF HYDROPOWER ADMINISTRATION AND COMPLIANCE: COMPLIANCE HANDBOOK (2004). 81 S. 2527, Elwha River Ecosystem and Fisheries Restoration Act, 102nd Congress S. Rep.102-447 (1992) (Report by Mr. Johnston, from the Committee on Energy and Natural Resources). 82 Id. 83 Bender, supra note 25, at 222. 84 Winter, Ecosystem Restoration, supra note 60, at 14. 85 Id. (FERC concluded that “the two hydroelectric projects were hydraulically, electrically, and operationally interconnected” and the two proceedings should be considered together so that “the combined impacts could be assessed.” This is not the only instance in which FERC has consolidated a licensing process, but the practice is not discussed in FERC’s relicensing regulations).

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When issuing a license under the FPA, FERC is required by both the FPA and the Electric Consumers Protection Act (ECPA)86 to consider impacts to fish and wildlife.87 The ECPA further requires FERC to include recommendations by “National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies”88 in licensing decisions. FERC must also consider the recommendations of “Federal and State agencies exercising administration over flood control, navigation, irrigation, recreation, cultural and other relevant resources of the State in which the project is located, and the recommendations (including fish and wildlife recommendations) of Indian tribes affected by the project.”89 Although FERC was slow to take up its responsibility to prioritize ecosystem preservation, the agency has begun to respond to the policy shift that has made environmental preservation a national priority.90 The Elwha River “battle,” as one of the seminal cases of federally ordered

86 Electric Consumers Protection Act of 1986 16 U.S.C. § 791a (2006). 87 See generally 16 U.S.C. § 797(e)(2006); 16 U.S.C. § 803(a)(2006). These provisions have had profound effects on hydropower development and relicensing nationwide. Federal agencies now often require hydropower facilities to install ‘fish ladders’ or other fish passage devices to enable fish migration to preserve these species. These requirements, however, are extremely controversial, both because environmental advocates argue they are often ineffective, and hydropower developers and operators argue they are unnecessarily costly. Recently, hydropower operations have challenged the fish passage requirements as constituting a taking of private property without just compensation under the Fifth Amendment because of the financial impact on the facility, thus putting additional pressures on federal and state efforts to protect wildlife from hydropower impacts. Moreover, the Energy Policy Act of 2005 reduced leverage for environmental interests in the FERC licensing process by allowing project owners a trial- type procedure to challenge licensing conditions and authorizing FERC to select alternative licensing conditions to those conditions proposed by resource agencies, if the alternatives are ‘adequate’ but less costly. There has been significant litigation, in some cases spanning decades, regarding the conflict between hydropower development and aquatic species. Alexandra B. Klass, Energy and Animals: A History of Conflict, 3 SAN DIEGO J. CLIMATE & ENERGY L. 159, 177 (2012) (citations omitted). 88 16 U.S.C. § 803(j)(1)(2006). 89 16 U.S.C. § 803(a)(2)(B)(2006). 90 Once responsible for promoting the increased utilization of hydropower for an industrializing nation, the Federal Energy Regulatory Commission now finds itself in the position of protectorate of the environment. This policy shift is making it possible for governmental agencies to consider dam removal as a viable alternative to long-standing practices of automatically issuing new permits when existing projects come up for relicensing. Carney, supra note 12, at 310.

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dam removal labeled it, was likely a driving force in this policy shift by FERC.91 The Lower Elwha Klallam Tribe played a vital role in challenging Crown Zellerbach Corporation’s license applications by intervening in the FERC process when Crown Zellerbach first applied in 1986.92

When the Lower Elwha Klallam intervened in the FERC relicensing process on the Elwha River, the ECPA had not yet been passed, and FERC was not yet required to give special consideration to the Tribe’s position. Furthermore, FERC did not believe that it had the power to order dam removal under the FPA.93 When the dams initially came up for relicensing, the Fish and Wildlife Service, the National Marine Fisheries Service, the National Park Service (NPS), and the Washington State Department of Natural Resources also approached the habitat management aspect of relicensing by proposing mitigation alternatives, without considering removal as an option.94 When the ECPA was passed in 1986, however, FERC solicited comments to consider its options if a project did not meet the ECPA’s new, more stringent environmental standards, and in 1994 FERC declared that it had the authority to order removal at a dam owner’s expense.95

The Lower Elwha Klallam Tribe was the first intervener in the FERC licensing process to officially call for dam removal on the Elwha River in January, 1986, followed by a coalition of environmental groups made up of

91 [In the 1980s], the idea of removing an operating hydroelectric dam for the purpose of ecosystem restoration (rather than for safety reasons) was considered a heretical idea by FERC, Congress, federal resource agencies, and most main-stream environmental groups. In a few short years, a precedent setting battle formed over dam removal for ecosystem restoration. Today, dam removal is a high profile, main-stream environmental issue . . . The Elwha case also foreshadowed many new pressures to reform the hydro relicensing process in the US. Charles Gowan, Kurt Stephenson, & Leonard Shabman, The Role of Ecosystem Valuation in Environmental Decision Making: Hydropower relicensing and Dam Removal on the Elwha River, 56 ECOLOGICAL ECONOMICS 508, 512 (2006). 92 Id.; See generally 18 C.F.R. § 385.214 (2006). 93 Gowan et al., supra note 91, at 512. 94 Elwha River Ecosystem and Fisheries Restoration Act, Pub. L. No. 102-495, 106 Stat. 3173 (1992) (Statement of Nicholas Ladanza, Chief, Habitat Conservation Branch, Northwest Region, National Marine Fisheries Serv., National Oceanic and Atmospheric Administration, Dept. of Commerce). 95 Project Decommissioning at Relicensing; Policy Statement, 60 Fed. Reg. 339-01 (Jan. 4, 1994).

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the Seattle Audubon Society, Friends of the Earth, Olympic Park Associates, and the Sierra Club.96 That same year, the Tribe received water resource funds through the Bureau of Indian affairs, with which it was able to fund studies of the Elwha River and its fisheries.97 Those studies clearly demonstrated that dam removal was not only a viable option, but was in fact more economically feasible than adding fish passage facilities to the dams.98 During the 1980s, the Tribe worked to bring together a diverse coalition of stakeholders in the region around dam removal, which resulted in a settlement agreement.99 In 1991, FERC distributed its Draft Environmental Impact Statement (EIS) regarding the relicensing of the Glines Canyon and Elwha Dams for public comment.100 However, in 1992, before FERC’s EIS could be finalized, Congress stayed the FERC process by adopting the stakeholders’ settlement agreement in the form of the Elwha River Ecosystem and Fisheries Restoration Act

96 Motion of Lower Elwha Indian Tribe for intervention, consolidation etc re Crown Zellerbach Corp., F.E.R.C. Docket No. P-2683, P-588 (Federal Energy Regulatory Commission, Jan. 20, 1986), available at http://elibrary.ferc.gov/idmws/doc_info.asp (last visited Nov. 24, 2013); Elwha River Ecosystem and Fisheries Restoration Joint Hearing Before the Subcommittee on Energy and Power of the Committee on Energy and Commerce and the Subcommittee on Fisheries and Wildlife Conservation and the Environment of the Committee on Merchant Marine and Fisheries and the Subcommittee on Interior and Insular Affairs on H.R. 2527, S. Hrg. 102-739 at 150 (1992). (Testimony of Shawn Cantrell, Assistant Northwest Representative, Friends of the Earth). 97 Telephone interview with Robert Elofson, Lower Elwha Klallam Tribal Fisheries Manager 1976-78, and Elwha River Restoration Director 1991-93, and 2001-present, (Sept. 17, 2013) [hereinafter, Elofson, Interview]. 98 Id. 99 After years of negotiation, a unanimous agreement was reached regarding a process to restore Elwha River fisheries and to make the ultimate decision regarding whether removal of the dams would be necessary to achieve restoration. The parties to this settlement, which became the Elwha Act, included numerous Federal Departments and Agencies (including FERC, the National Park Service, the United States Fish and Wildlife Service, the Bureau of Indian Affairs, and NOAA); the Tribe; the State, Clallam County, and the City of Port Angeles; private hydropower, industrial, and economic development interests; commercial and sport fishermen; and the environmental community. Lower Elwha Tribal Defendants’ Motion to Dismiss, or, in the Alternative, Motion for a More Definite Statement at 6, Wild Fish Conservancy v. Nat’l Park Serv., No. 3:12-CV- 05109-BHS (W.D. Wash. 2012) (Doc. 26). 100 See Final Environmental Impact Statement on Elwha River Ecosystem Restoration, NAT’L PARK SERV. (June 1995), http://www.nps.gov/olym/naturescience/loader.cfm?csModule=security/getfile&PageID=1 36255 (last visited Nov. 24, 2013) [hereinafter 1995 EIS].

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(Elwha Act).101 The Elwha Act required the Secretary of Interior to perform a study of the Elwha River and to release a report to identify the actions that would be necessary to achieve “full restoration” of the river’s ecosystem and anadromous fish population.102

B. Environmental Impact Statements

The final Elwha Report, prepared by the Secretary of Interior with collaboration from the Department of Commerce and the Lower Elwha Klallam Tribe, was submitted to Congress in 1994.103 The Elwha Act removed FERC’s authority to issue a final licensing decision, but FERC nonetheless released its Final EIS to the public in 1995.104 Both documents recommended removal as the preferred alternative.

Although the Elwha Report made extensive use of FERC’s analyses, the distinct power granted to the Secretary of Interior by the Elwha Act to accomplish “full restoration of the Elwha River ecosystem and the native anadromous fisheries,” required a new set of technical reports, and three new EISs.105 These would consist of: (1) a Programmatic EIS to recommend the best action for full restoration of the ecosystem; (2) an Implementation EIS to recommend the best means to achieve the action recommended in the Programmatic EIS; and (3) an optional third supplemental EIS in the case of “significant new circumstances or information relevant to environmental concerns and bearing on the selected action or its impacts.”106

When the Final Programmatic EIS was released in 1995, the preferred alternative was the removal of both the Glines Canyon and Elwha dams.107 Although a Final Implementation EIS was released in

101 Elwha River Ecosystem and Fisheries Restoration Act Pub. L. No. 102-495, §5(a), 106 Stat. 3173 (1992). 102 Id. at § 3. 103 PHILLIP, A. MEYER ET AL., ELWHA REPORT, supra note 76. 104 Elwha River Ecosystem and Fisheries Restoration Act Pub. L. No. 102-495, §5, 106 Stat. 3173 (1992); See 1995 EIS, supra note 99. 105 Id. at §3. 106 Elwha River Ecosystem Restoration Implementation, Final Supplement to the Final Environmental Impact Statement, NAT’L PARK SERV. (July 2005) (hereafter 2005 EIS). 107 1995 EIS, supra note 99.

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1996,108 a Final Supplemental EIS was released by the NPS in 2005 in order to address “changes to water supply, water quality, and flood control mitigation.”109 All three EISs center around the return of the salmon and the resulting benefits to the river and the surrounding ecosystem as the justification for dam removal.110

C. Funding the Removal

Although the proposal to remove the dams gained widespread support by the early 1990s, United States Senator for Washington State Slade Gorton consistently remained one of the few vocal opponents of removal.111 Senator Gorton feared that removal of the dams would be “an unmitigated disaster and an economic nightmare.”112 Although he was originally a co-sponsor of the Elwha Act, Senator Gorton withdrew his support when it became clear that dam removal was the preferred alternative.113 It appears that Senator Gorton’s opposition was based in large part on his concern that removal of the Elwha dams would become precedent for breaching the Snake River dams as well.114 Throughout the administrative process, the Tribe also found allies in Senator Bill Bradley,115 Representative Norm Dicks,116 and others in Congress.117

108 Final Environmental Impact Statement on Elwha River Ecosystem Restoration, NAT’L PARK SERV. (Nov. 1996), http://www.nps.gov/olym/naturescience/loader.cfm?csModule=security/getfile&PageID=1 36253 (last visited Nov. 24, 2013). 109 2005 EIS, supra note 106, at iv. 110 Carney, supra note 12, at 330-31. 111 Bender, supra note 25, at 227. 112 Klein, supra note 3, at 708 (quoting Sam A. Verhovek, Returning River to Salmon, and Man to the Drawing Board, N.Y. TIMES (Sep. 26, 1999)). 113 CRANE, supra note 1, at 157. 114 WILLIAM R. LOWRY, DAM POLITICS: RESTORING AMERICA’S RIVERS 146-47 (2003). 115 Senator Bradley was involved in the dam removal process on the Elwha River beginning when he served as Chair of the Water and Power Subcommittee of the Senate Committee on Energy and Natural Resources, which had jurisdiction over the Elwha Act. He continued to be an advocate for the Elwha River dam removal project even after leaving office in 1997. See Sen. Bill Bradley, Keynote Address, Dinner hosted by the Lower Elwha Klallam Tribe, Port Angeles, WA (Sept. 16, 2011) available at http://turtletalk.files.wordpress.com/2011/09/sen-bradley-elwha-remarks.pdf (last visited Jan. 8, 2014). 116 Long-time supporter of the dam removal effort and co-sponsor of the Elwha Act. See Sen. Bradley, supra note 114 (“Norm Dicks is the Elwha settlement’s hero. He made the

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Finally, the Elwha and Glines Canyon Dams were purchased by the federal government in 2000 for $29.5 million, as authorized by the Elwha Act,118 and Senator Gorton lost reelection the same year.119

Despite purchase of the dams, funding for removal and ecosystem recovery of the dams continued to stall, even after Senator Gorton left office in 2001. Deconstruction was originally scheduled for 2009, but rising costs delayed the project’s start date to 2012.120 The final $54 million needed was provided by the American Recovery and Reinvestment Act of 2009, commonly referred to as the “Stimulus,” which allowed deconstruction to begin a year ahead of schedule.121 Steve Suagee, General Counsel to the Tribe, recalls the collaborative effort of the Tribe, environmental groups, and their allies in Washington to secure the final funding needed for dam removal—an “example of the Tribe’s ability to call on relationships that had been in development for 20 years or more.”122

law work. I know it is a small thing, and it is far less than he deserves, but please, God, please grant Norm Dicks the first 100 pound salmon caught on the Elwha”). 117 Elofson, Interview, supra note 97; Telephone interview with Steve Suagee, Lower Elwha Klallam Tribal Counsel, phone interview (Sept. 20, 2013) [hereinafter Suagee, Interview]; See also Sen. Bradley, supra note 115. 118 PHILLIP, ELWHA REPORT, supra note 76. 119 See GORTON, THOMAS SLADE, BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS, available at http://bioguide.congress.gov/scripts/biodisplay.pl?index=G000333 (last visited Nov. 24, 2013). 120 Warren Cornwall, Stimulus Money Will Speed Elwha Dam Removal, SEATTLE TIMES, (April 22, 2009), http://seattletimes.nwsource.com/html/localnews/2009105595_webelwah22m.html (last visited Nov. 24, 2013). 121 See generally American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 115, 516 (2009). We just didn't have the money before,’ said [U.S. Representative Norm] Dicks, whose 6th Congressional District includes Clallam and Jefferson counties, Wednesday morning. ‘We've been doing $20 million a year, and now we'll have the money to go forward. This is a big deal because we are able to accelerate the project,’ he said. Paul Gottlieb, Federal Stimulus Funds Jumps Elwha Dams Removal Date Ahead a Year, PENINSULA DAILY NEWS (April 22. 2009), http://www.peninsuladailynews.com/article/20090423/news/304239995 (last visited Nov. 24, 2013). 122 Suagee, Interview, supra note 117.

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IV. THE ART OF DAM REMOVAL

The Elwha’s beauty could serve as a model, an icon, of Pacific Northwest Rivers. The deep green pools; the wide gravel beds with rich, aerated riffles; the variety of cobble and larger rocks in the riverbed—all suggest a perfect Pacific Northwest River, one that should roil with bright red and green-hued spawning salmon.123

As detailed in the Introduction to this article, America was lured in the name of “progress” into a frenzy of dam-building that has devastated ecosystems and indigenous cultures. Nonetheless, it must be acknowledged that dams have “played a critical role in the settling of the United States,”124 particularly in the American West, by supporting agriculture, delivering domestic water supplies, facilitating transportation, allowing for industrial development, and providing emissions-free hydropower.125 At times, dams have, in fact, been important means of providing water for settlement agreements with Indian Tribes.126 However, many dams, such as the Elwha and Glines Canyon dams, have outlived their purpose.127

Once past the half-century mark, dams begin to degenerate: Concrete walls degrade, earthworks erode and seep,

123 CRANE, supra note 1, at 1. 124 RIVER ALLIANCE OF WISCONSIN & TROUT UNLIMITED, DAM REMOVAL: A CITIZEN’S GUIDE TO RESTORING RIVERS 18 (2000). 125 HEINZ REPORT, supra note 6, at x, 4 (2002); GRACE, supra note 4, at 154. 126 For example, Lake Nighthorse, which was filled in 2011, was an important component of a water settlement between the Ute Mountain Ute Tribe, the state of Colorado, and the Federal Government. See, e.g. Bruce Finley, Federal settlements give Colorado tribes a share of water rights, THE DENVER POST, Nov. 10, 2011. 127 While dams serve a number of human needs, society has developed ways to address many of these needs without dams. For instance, flood control can often be accomplished more effectively and for less money by restoring wetlands, maintaining riparian buffers, or moving people out of the floodplain. Updating antiquated irrigation systems and replacing inappropriate crops can dramatically reduce the need for dams and reservoirs in the arid West. Rather than plugging rivers with multiple hydropower dams, a cheaper and less environmentally harmful solution is to use existing energy efficiency technologies. Dam Removal: Frequently Asked Questions, AM. RIVERS, http://www.americanrivers.org/initiatives/dams/faqs/ (last visited Nov. 24, 2013).

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spillway gates rust and lose tensile strength, and sediment clogs reservoirs, reducing their capacity. In the worst-case scenario, an aging dam could fail, causing catastrophic flooding. As maintenance and liability costs rise, economic returns drop. Many older dams are obsolete. Many others, including the Elwha and Glines Canyon dams, need upgrades such as fish passage structures that would cause the power they produce to soar above market prices.128

As dams become increasingly inefficient, and ecosystem costs become a greater part of the economic calculation, dam removal is now being seen as a reasonable option.129 “The principal removal efforts to date involve dams that fragment streams and block salmon spawning runs.”130 A host of state and federal agencies will continue to play a role in dam removal as a solution to the increasing ecological, safety, and economic concerns posed by aging American dams.131

128 Tearing Down The Elwha River Dam, supra note 49. 129 Id. 130 HEINZ REPORT, supra note 6, at 47. 131 Several federal agencies can create or enforce policies to control and remove public and private dams, including FERC, Interior, the Environmental Protection Agency, the Army Corps of Engineers, and the Department of Agriculture. Relevant statutes include: the [Clean Water Act] CWA, [Endangered Species Act] ESA, and National Environmental Policy Act (NEPA) . . . as well as the Federal Power Act of 1920 (Pub.L.16 USC 791a), Electric Consumers Protection Act (ECPA) of 1986 (P.L. 99-495), National Historic Preservation Act (NHPA) of 1966 (P.L. 89-665), western water rights law, Small Watershed Rehabilitation Amendments of 2000 (Pub .L. 106-472), Indian Dam Safety Act of 1994 (Pub. L. 103-302), National Dam Safety Program, and FERC Dam Safety Program. Id. at 61. State agencies and water law also play a role in the regulation of dam safety. Dam Removal: Frequently Asked Questions (FAQs), AM. RIVERS, http://www.americanrivers.org/our-work/restoring-rivers/dams/background/faqs.html (last visited Nov. 24, 2013).

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A. The Mechanics of Removing the Elwha and Glines Canyon Dams

The art of dam removal is complicated, and is highly dependent on the river, the dam, and the goals of removal.132 With “removals like the Elwha Dam . . . the construction is undertaken in careful steps, almost surgically, to not only avoid stream damage but also to keep dam removal contractors, their equipment, and people downstream out of harm’s way.”133 For both dams, this process began by lowering the reservoirs behind the dams to the level of the existing spillways.134 For the Elwha Dam, engineers then built a temporary spillway and cofferdams designed to divert the river’s flow into the spillway.135 Once the base of the Elwha Dam was dry, the dam was removed, and the original channel restored.136 The Glines Canyon dam, on the other hand, is being disassembled through a “notching process.”137 This process involves removing the concrete of the dam to the level of the water and creating temporary spillways on alternating sides of the dam.138 The three major considerations in removing large dams such as those on the Elwha River are: (1) recognizing and resolving the equities of current water users (in the case of the Elwha, this involved the paper mill and other water users); (2) draining the reservoir; and (3) removing the dam structures. Once these steps are completed, ecosystem restoration can begin.

132 See How Are Dams Removed?,AM. RIVERS, http://www.americanrivers.org/our- work/restoring-rivers/dams/background/how-are-dams-removed-show.html (last visited Nov. 24, 2013). 133 Id.; See also Tearing Down The Elwha River Dam, supra note 49. 134 See Dam Removal - Overview, NAT’L PARK SERVICE, http://www.nps.gov/olym/naturescience/dam-removal-overview.htm (last visited Nov. 24, 2013); Mark Knowlin, Special Report: How the Elwha Dams Will be Removed, SEATTLE TIMES (Sept. 17, 2011), http://seattletimes.com/flatpages/specialreports/elwha/elwhadamremovalgraphic.html (last visited Nov. 24, 2013); How to Tear Down a Dam, POPULAR MECHANICS (Feb. 10, 2006),http://www.nps.gov/olym/naturescie nce/upload/Elwha-Dam-in-Popular-Mechanics- 2.pdf (last visited Nov. 24, 2013). 135 See Dam Removal - Overview, NAT’L PARK SERVICE, http://www.nps.gov/olym/naturescience/dam-removal-overview.htm (last visited Nov. 24, 2013). 136 Id. 137 Id. 138 Id.

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B. Lower Elwha Klallam Tribal Leadership in the Planned Ecosystem Restoration on the Elwha River

Salmon have been the major driving force behind the advocacy for dam removal on the Elwha River.139 For Lower Elwha Klallam Tribal members, survival and restoration of the salmon runs are critically important for cultural, historical, and dietary reasons.140

‘This story is about the fish,’ said Frances Charles, [Chairperson] of the Lower Elwha Klallam Tribe. ‘The tribe looks forward to the return of the chinook, and the abundance of fish from the stories our ancestors have been telling us about since the dams went up. We used to have salmon and other species out there, and we want them back and revived for our children, and our children's children.’141

When the Elwha Dam was constructed at river mile 4.9 in 1913, it blocked anadromous fish from more than 70 miles of river habitat in which they had historically spawned and reared.142 This beautiful reach of pristine river, much of which is permanently protected within the Olympic National Park, is still prime salmon habitat—“salmon heaven.”143 With the dams now in place, remaining spawning habitat in the lower reaches of the river has been damaged by higher water temperatures and trapped sediment, which in the naturally flowing river had provided nutrients and material for spawning beds.144 “The river went from producing more than 390,000 salmon and sea-run trout in 1910 (based on habitat available to

139 “The concept that dam removal of this magnitude might be a viable option in the FERC licensing/relicensing process only gained momentum when a growing body of evidence showed that significant gains in salmon abundance would only be possible by removing the dams.” Winter, Ecosystem Restoration, supra note 60, at 16. 140 See discussion in section II supra of Lower Elwha Klallam fishing rights and tribal use of historic fish runs. 141 $27 Million Awarded To Remove Elwha Dams; Salmon Numbers Expected To Go From 3,000 to 300,000, THE COLUMBIA BASIN FISH & WILDLIFE NEWS BULLETIN (Aug. 27, 2010), http://www.cbbulletin.com/396072.aspx (last visited Nov. 24, 2013). 142 2005 EIS, supra note 106, at 135. 143 CRANE, supra note 1, at 7; See also GRACE, supra note 4, at 155. 144 2005 EIS, supra note 106, at 136.

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the fish and fish-production modeling) to fewer than 3,000 wild native anadromous fish today.”145

In 2008, pursuant to the Elwha Act, the Lower Elwha Klallam Tribe, Olympic National Park, the Washington Department of Fish and Wildlife, the United States Fish and Wildlife Service, and the Northwest Fisheries Science Center of the National Marine Fisheries Service published the Elwha River Fish Restoration Plan, which presents a scientific framework for restoring the ecosystem and fisheries on the Elwha River as part of dam removal efforts.146

Prior to that, in 2005, the Natural Resources Division at Olympic National Park formed the Elwha Research Consortium in order to study the scientific impacts of dam removal on the Elwha River ecosystem.147 The core participants in the Consortium were the Olympic National Park, the Lower Elwha Klallam Tribe, United States Geological Survey Biological Resources Discipline, National Oceanographic and Atmospheric Administration Fisheries, Olympic Park Institute, Western Washington University, and Peninsula College in Port Angeles.148

The Elwha is a perfect test of whether removing dams can help restore a river. The lessons learned from restoring the Elwha will be in every ecology book for the next 50 years. The Elwha Research Consortium—based on teamwork, strategic partnerships, and scientific collaboration—will tell the tale. 149

145 Id. at 135. 146 LARRY WARD, ET AL., U.S. DEPT OF COMMERCE, ELWHA RIVER FISH RESTORATION PLAN– DEVELOPED PURSUANT TO THE ELWHA RIVER ECOSYSTEM AND FISHERIES RESTORATION ACT, PUBLIC LAW 102-492,NOAA TECHNICAL MEMORANDUM NMFS-NWFS-90 (2008). 147 Jerry Freilich, The Science of Large Dam Removal: Removing Dams on the Elwha River, Olympic National Park, 2007 GEORGE WRIGHT SOCIETY CONFERENCE PROCEEDINGS 186. 148 Id. 149 Freilich, supra note 146, at 188.

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As of March 16, 2012, the Olympic National Park announced that the Elwha River is again flowing through its natural channel,150 and in the summer of 2012, fish were again spawning above the site of the former Elwha Dam.151 The complete success of the ecosystem restoration efforts and salmon recovery, however, will only be evident in time.

CONCLUSION: LESSONS LEARNED FROM THE ELWHA RIVER

We know what the River wanted because it always had a voice. [The Lower Elwha Klallam Tribal people] have listened to the Elwha and listened to the life in the Elwha for more generations than can be counted. They spoke for the Elwha with a voice that never wavered, never left any doubt about what the river was calling for. The Lower Elwha Klallam [T]ribe, its leaders and members, cared for the River, lived from the river, and brought the River’s voice to every audience that could be found.152

The removal of the Elwha dams is historic, and will serve as an inspiration and a model for many large-scale watershed and ecosystem restoration projects to come.153 By the late spring of 2012, the Elwha Dam had been completely dismantled.154 During the summer of 2012, scientists

150 Welcome Home, Elwha!,NAT’L PARK SERV. OLYMPIC NAT’L PARK DAM REMOVAL BLOG (Mar. 16, 2012), http://www.nps.gov/olym/naturescience/dam-removal-blog.htm (last visited Nov. 24, 2013). 151 Fish Already Returning To Elwha River After Dam Removal, NAT’L OCEANIC & ATMOSPHERIC AGENCY FISHERIES SERV., http://www.nmfs.noaa.gov/stories/2012/07/07_20_2012_elwha_restoration_video.html (last visited Nov 24, 2013). 152 Bradley, supra note 115. 153 Dam removal advocates will be watching the restoration of the Elwha River closely. Its success may provide the impetus to breach other aging dams, including the four massive structures that block the lower Snake River in eastern Washington, and the 168-ft.-tall Matilija Dam on a tributary of Southern California's Ventura River. Elofson will be keeping an even closer watch on the free-flowing waters. Like Winter, he got involved in the Elwha project right out of college. Now 53, he hopes to hike upriver and catch a coho before he retires. Tearing Down The Elwha River Dam, supra note 49. 154 Jeremy Schwartz and Paul Gottlieb, Updated—More Repairs Needed at Water Plant, Will Likely Hold up Elwha River Dam Removal Work, PENINSULA DAILY NEWS (May 5, 2013); Removal of Last Dam on Olympic Peninsula's Elwha River on Hold, ASSOCIATED PRESS (Apr. 23, 2013)

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were amazed to find that wild steelhead had already made their way well above the site of the former Elwha Dam.155 These wild fish joined approximately 60 released native steelhead and 600 released native salmon, some of which successfully spawned in the newly opened riverbed.156 In August 2012, the Lower Elwha Klallam Tribe performed the first salmon ceremony and blessing to welcome the salmon home above the dam for the first time in over a century.157 The Glines Canyon Dam removal was temporarily stalled due to water quality issues downriver,158 but deconstruction has resumed and the Park Service expects that the removal will be completed on schedule in 2014.159

http://www.oregonlive.com/environment/index.ssf/2013/04/removal_of_last_dam_on_oly mpic.html (last visited Nov. 24, 2013) (federal officials had hoped to complete removal of the Glines Canyon Dam ahead of schedule, by summer 2013, but the heavy sediment discharge from behind the dam clogged the water treatment intake on the lower river, requiring an upgrade to prevent long-term sedimentation problems for the Port Angeles water supply. NPS officials put the dam removal on hold while the treatment plant was upgraded). 155 Fish Already Returning To Elwha River after Dam Removal, supra note 151. 156 Id. The Lower Elwha Klallam Tribe’s new fish hatchery, which was completed in 2011, is a state-of-the art facility designed to support river restoration efforts. This role is particularly vital in light of water quality issues as sediment load from the former reservoir sites makes its way down stream over the next five years or so. There is a five-year moratorium on the salmon and steelhead fishery in the Elwha, which will end in 2017, and the Tribe’s Natural Resources staff expect that some subsistence fishing may resume as early as 2018, while commercial fisheries may be possible by 2020. Currently the Tribe is involved in litigation over potential negative effects of the hatchery stock on wild fish genetics, but the Tribe firmly believes that the hatchery serves a vital role in the process of river restoration and the prevention of the extirpation of species during the process of dam removal. Interview with Larry Ward, Lower Elwha Kallam Tribe Fish Hatchery Manager (Nov. 14, 2013); Interview with Doug Morrill, Director of Natural Resources for the Lower Elwha Kallam Tribe, (Nov. 14, 2013); Elofson, Interview, supra note 97; see also Suagee, Interview, supra note 117. 157 Arwyn Rice, Lower Elwha Klallam Tribe Ceremoniously Welcomes Salmon Back Into Upstream River, PENINSULA DAILY NEWS (Aug. 16, 2012), http://www.peninsuladailynews.com/article/20120817/news/308179982 (last visited Nov. 24, 2013). 158 Sediment loads in Lake Mills behind Glines Canyon Dam were as expected, but the water treatment plant near the mouth of the Elwha’s water intake filtration system failed. Although dam removal has resumed, the water treatment plant is not yet back in operation as of November, 2013. Interview with Doug Morrill, Director of Natural Resources for the Lower Elwha Kallam Tribe (Nov. 14, 2013). 159 Paul Gottlieb, Elwha Water Plant Clog Fixed, So Work Begins Again on Tearing Down Glines Canyon Dam, PENINSULA DAILY NEWS (Oct. 3, 2013).

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The Lower Elwha Klallam Tribe provides one of several examples of the power of tribal advocacy in natural resource management of lands, waters, and wildlife that are of cultural importance to the tribes.160 Competing priorities of tribes, non-Indian citizens, state, local, and federal governments, and environmental organizations do not always align, and there is a long way to go before tribes are consistently and meaningfully involved in decisions affecting their lands and the resources on which they have always depended. But tribes like the Lower Elwha Klallam have already successfully asserted their traditional understandings of and dependence on the land and its resources, and invoked their unique

160 Like the Lower Elwha Klallam Tribe, the Nisqually Indian Tribe’s treaty reserved fishing right has been damaged by overfishing and development on the Nisqually River and in the Puget Sound. In 1912, Tacoma Power built the first diversion dam on the Nisqually River, which was replaced by the Alder and LaGrande dams in 1945. United States v. Washington, 384 F. Supp. at 368-69. FERC renewed the license for both dams in 1997, and the Nisqually Indian Tribe was involved in the development of that license. Id. at 369. Even before U.S. v. Washington, as Judge Boldt described, the Nisqually were involved in developing fisheries management schemes, in order to protect their resource. Id. The tribe currently participates in the Nisqually River Task Force, and runs a sophisticated Natural Resources Department, which manages several programs, including a Salmon Recovery Program, a Salmon Enhancement project, an Environmental Management project, and a Harvest Management Program. Natural Resources, NISQUALLY INDIAN TRIBE, http://www.nisqually-nsn.gov/content/natural- resources (last visited Nov. 24, 2013). The Nisqually Tribe Natural Resources Department additionally serves as the Nisqually River Salmon Recovery Lead Entity under the authority of Washington’s Salmon Recovery Act. RCW §77.85 (2009); Habitat Recovery Work Schedule: Nisqually River Salmon Recovery, WASH. STATE RECREATION & CONSERVATION OFFICE, http://www.hws.ekosystem.us/prun.aspx?p=Page_89901fef-078a- 47c8-9c7b-f3c0c259700a&sid=220 (last visited Nov. 24, 2013). The Nisqually Tribe has and will continue to serve as a leader in the battle to protect the salmon on the Nisqually River.Similarly, the Klamath, Hoopa Valley, Karuk, and Yurok Tribes, who have inhabited the Klamath River basin since time immemorial, are actively involved in an effort to remove four hydropower dams from the Klamath River Basin in Southern Oregon / Northern California. See generally JIM DOWNING, LAYPERSON’S GUIDE TO THE KLAMATH RIVER, WATER EDUCATION FOUNDATION (2011). It is hazardous to predict the course of future political events in the Klamath Basin given the great number of stakeholders, the long history of conflict, and the hydrological realities in the basin. But there are enormous political and legal forces that are pushing for the removal of dams and the improved water quality, increased water flows, and protection of endangered species that will result. The tribes in the Basin will undoubtedly continue to play a prominent role in this debate; their existence depends on a return of the fish species that, for thousands of years, gave them their identity and their sustenance. Daniel McCool, Rivers of the Homeland: River Restoration on Indian Reservations, 16 CORNELL J.L. & PUB. POL’Y 539, 553-54 (2007).

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status as sovereign nations and beneficiaries of the special trust relationship with the federal government.161 As one scholar puts it,

[t]he impoverishment of nature affects every American citizen, but it poses particularly severe threats to Native America because tribal populations today are not mobile. Sovereignty and culture are tied to a fixed, remnant land base. Environmental damage originating outside of reservations jeopardizes traditional economies, cultural ways of life, and the health of tribal citizens.162

Tribes are thus well situated to become the foremost experts on protecting the natural resources in their traditional territories, and to take the leading role in the political process, which many like the Lower Elwha Klallam have chosen to do.

In some ways, the Lower Elwha Klallam Tribe was in an ideal position to develop the strong coalition that eventually achieved the removal of the Elwha Dams.163 After all, the Elwha Dams produced little power and served no irrigation purposes, and the majority of the River’s watershed lay within the boundaries of a National Park.164 As Lower Elwha Klallam Tribal leaders point out, their opportunity to unite the interests of the larger community were unique, although much of the strength of those collaborations simply came with relationship-building over time and the

161 Given the enormous impact that water development has had on Indian people, it is not surprising that they would play a major role in efforts to restore rivers. Today there are hundreds of river restoration projects taking place across the nation. Many, but not all, of these involve dam removal. Since 1912 about 465 dams were removed in the United States. Since 1999, another 145 dams have been removed. However, dam removal is just one aspect of river restoration; many rivers are partially restored while dams on the same river are maintained. Indian tribes are the primary leaders of some of these restoration efforts, but the more typical modus operandi is for tribes to participate in a broad coalition of stakeholder groups that work together to restore rivers. Id. at 543. 162 Mary Christina Wood & Zachary Welcker, Tribes As Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement, 32 HARVARD ENVTL. L. REV. 373, 375 (2008). 163 Elfoson, Interview, supra note 97; Suagee, Interview, supra note 117. 164 Id.

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accompanying development of political strategy.165 The Tribe, which has always emphasized the importance of natural resource management within the Tribal government, additionally had the benefit of a Natural Resources Department comparable to any state or federal agency.166 However, as more tribes reach cooperative agreements, take advantage of statutory schemes that encourage tribal management, and assert treaty or similar reserved rights under federal law, the future of culturally and ecologically sound management of tribal resources appears ever brighter.167 As Senator Bradley remarked during a dinner celebrating the Elwha Dam removal on September 16, 2011:

Each of us owes the Lower Elwha Klallam Tribe the greatest possible gratitude for their unceasing efforts over decades to bring back the River’s life. To tell us all what the River needed. And we owe the Tribe the greatest deference and respect for the burdens its people and society have borne because of what was done to the River 100 years ago.168

The Elwha River must still achieve full recovery, but the return of the fish is a promising sign for the revival of the ecosystem and the cultural heritage of the Lower Elwha Klallam Tribe.169 The Tribe will

165 Id. 166 Id. 167 Wood & Welcker, supra note 162 at 393-95 (discussing the failure of statutory conservation schemes currently in place to protect tribal interests, and the importance of tribal use of “new ways to extend their environmental prerogatives outside reservation boundaries” as part of the “growing Native environmental sovereignty movement”). 168 Bradley, supra note 115. 169 It defies experience-hardened cynicism whenever any big public works project is under budget and ahead of schedule. But the Elwha has served up something even better: life itself, in the form of ocean-going fish answering to the imperatives of love and death. Not long ago, scientists were stunned to find wild steelhead trout scouting habitat well past the site where the Elwha Dam had stood for nearly a century. They didn’t expect fish to return this soon . . . The dams choked off one of the greatest salmon bounties in the United States. They were built to service a pulp mill, and once the mill outlived its purpose, the Indians of the Lower Elwha Klallam Tribe began to dream of big Chinook, some up to 80 pounds, coming back to a river wild once again—a ghost dance, in its way. After an initial act of Congress authorized dam removal in 1992, it took two decades of persistence by the tribe, the National Park Service and lovers of wild land and feisty fish to guide the $325 million project through much turbulence . . . The investment here will not only return a river to its natural state, but lays the foundation for a wild

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continue to shape the future course the Elwha River takes by playing a vital role in the restoration efforts.170 “We were told it was insurmountable,” Robert Elofson, long-time Elwha River Restoration Director for the Lower Elwha Klallam said, “but as a tribal people working to make change in your ancestral homeland, you are not going anywhere, and you have a long time to get things done.”171

Julia Guarino, Regeneration begins at the former site of the Elwha Dam (Nov. 14, 2013)

salmon fishery like no other in the 48 states. Imagine having a place, two hours and change from the 3 million people of the Seattle metro area, that looks like Alaska’s Kenai Peninsula—and has the fish to bring in visitors to expand what is already a thriving tourist industry. Timothy Egan, Biological Boomerang, N.Y. TIMES, July 26, 2012. 170 River Restoration, LOWER ELWHA KLALLAM TRIBE, http://www.elwha.org/tribalprograms/riverrestoration.html (last visited Nov. 24, 2013). 171 Elofson, Interview, supra note 97.

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THE WASHINGTON STATE INDIAN CHILD WELFARE ACT: PUTTING THE POLICY BACK INTO THE LAW

William N. Smith and Richard T. Okrent

INTRODUCTION

One of the fundamental tenets of Indian tribal sovereignty is the preservation of Indian tribal courts’ exclusive jurisdiction over their land and people.1 Prior to the enactment of the Indian Child Welfare Act2 (ICWA), the policy of the federal and state governments was the assimilation and elimination of Indian tribes through the breakup of Indian families and the placement of Indian children in non-Indian homes. Since the 1970s, federal policy now supports Indian tribes in retention of their children through the ICWA. Washington State has recently enacted its own version3 of the ICWA, entitled the Washington State Indian Child Welfare Act4 (WSICWA), which mirrors the current federal policy. The

 William N. Smith, J.D. George Mason University School of Law; B.A. Hampden-Sydney College. Special thanks to the AILJ staff for all their professionalism and diligent work. Special thanks to Judge Okrent for his invaluable mentorship and his vision and work on the article. Special thanks to Nina DeJong for her polish on the article. And finally, special thanks for the love and support of my parents, sister, Emily, and my cousin John Berry whom I look up to every day. Richard T. Okrent, Superior Court Judge, Snohomish County Washington. J.D. Seattle University School of Law; M.A. University of California Los Angeles; B.A. University of Washington. Judge Okrent has worked as a commissioner pro tem, arbitrator, and mediator in Snohomish County courts. He has worked for the Island County and Snohomish County Prosecutor’s Offices, was an Associate of the Law Offices of David Kastle, and a partner in the Law Office of Okrent and Wogsland, where he specialized in representing parents and children in dependency cases and in the representation of Native Americans. Judge Okrent is also a former president of the Snohomish County Bar Association.

1 Worcester v. Georgia, 6 Pet. 515, 559 (1832)(the concept of tribal sovereignty recognizes that Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government).; see United States v. Mazurie, 419 U.S. 544, 557 (1975); United States v. Kagama, 118 U.S. 375, 381-382 (1886)( although no longer "possessed of the full attributes of sovereignty," they remain a "separate people, with the power of regulating their internal and social relations."). COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.01 [1] [a] at 207(2012) 2 25 U.S.C. § 1901 (2006). 3 WASH. REV. CODE § 13.38 (2013). 4 WASH. REV. CODE § 13.38.010 (2013).

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policy of Washington State is that it is in the per se best interest of Indian children to be placed in the homes of Indian families, and that at every stage of child custody cases involving Indian children Washington State courts must respect the jurisdictional rights of Indian tribes.

This article has four main purposes: (1) to examine the major litigated issues of the ICWA in Washington State courts; (2) to compare the WSICWA and its departure from Washington State courts’ jurisprudence interpreting the ICWA; (3) to demonstrate that the WSICWA is rightfully more protective of Indian tribes and Indian children’s interests than Washington State courts’ jurisprudence; and (4) to analyze the merits of the recent United States Supreme Court decision on the ICWA, and demonstrate that the WSICWA also offers better protections for Indian tribes than the Supreme Court’s jurisprudence.

I. BACKGROUND

In the late 1970s, Congress made findings, inter alia, “that an alarmingly high percentage of Indian families are broken up by the removal…of their children from them by nontribal public and private agencies” and “that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”5 Studies presented by the Association on American Indian Affairs in 1969 and 1974 “showed that 25 to 35 percent of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions.”6 In an effort to protect Indian tribal culture, Congress enacted the ICWA.7 The law was passed in 1978 with the purpose “to protect the best interests of Indian tribes and families . . . by the establishment of minimum Federal standards for . . . the placement of [Indian] children in foster or adoptive homes which will reflect the unique values of Indian

5 25 U.S.C. § 1901 (2006). 6 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989) (citing: Senate, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93rd Cong. 15 (1974) ; H.R. Rep. No. 95-1386, 9 (1978)). 7 25 U.S.C. § 1901 (2006).

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culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”8

The ICWA has two main functions: (1) to give federally recognized Indian tribes9 exclusive jurisdiction over Indian children residing or domiciled on the reservation;10 and (2) to allow federally recognized Indian tribes to intervene in any state court “foster care placement” or “termination of parental rights” proceeding where the child subject to that proceeding is an Indian child residing or domiciled off the reservation.11 To invoke the protections of the ICWA, one of the parties to the child custody proceeding must establish upon petition that the child subject to such proceeding is an Indian child as defined by the ICWA.12 If any party to the child custody proceeding, usually a parent, Indian custodian, or intervening Indian tribe, establishes that the child does qualify as an Indian child, then the state court must transfer jurisdiction of the proceeding to the appropriate Indian tribal court.13 There are, however, exceptions to the transfer from state court to Indian tribal court.14 And these exceptions make up the body of state and federal jurisprudence for the ICWA.

The ICWA not only limits state court jurisdiction over Indian children, but also provides stringent procedural hurdles for state courts when terminating parental rights of Indian parents over their Indian children and placing children with non-Indian foster or adoptive parents. Unlike most federal legislation, however, the ICWA is enforced almost exclusively in state court. In response to the Washington State courts’

8 25 U.S.C. § 1902 (2006). 9 A list of federally recognized Indians tribes is found in “Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs,” 74 Fed. Reg. 40218 (Aug. 11, 2009). 10 25 U.S.C. § 1911(a) (2006). 11 25 U.S.C. § 1911(b) (2006). For a definition of “foster care placement” or “termination of parental rights” see 25 U.S.C. §1903(1)(i-ii) (2006). 12 25 U.S.C. § 1911(b)(2006); 25 U.S.C. § 1903(4)(2006)(defining an Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”). 13 25 U.S.C. § 1911(b) (2006). 14 Id. A state court must refuse to transfer jurisdiction if either parent of the Indian child objects to the transfer, the appropriate Indian tribe does not have a tribal court, or there is “good cause” to refuse the transfer.

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decisions interpreting various provisions of the ICWA to the chagrin of local Indian tribes, the Washington State Legislature has developed the WSICWA with a stated goal of “clarifying existing laws and codifying existing policies and practices” for Indian child custody cases, and “promoting practices designed to prevent out-of-home placement of Indian children that is inconsistent with the rights of the parents, the health, safety, or welfare of the children, or the interests of their tribe.”15

II. WASHINGTON STATE COURTS AND ICWA LITIGATION

The ICWA is not without ambiguities and vague language. The Indian tribes and the Washington State Department of Social and Health Services (DSHS) have routinely litigated two issues. What is the role, if any, of state family law in relation to the ICWA? And, what is a “qualified expert witness” under § 1912 of the ICWA? In the case In re Mahaney,16 the Supreme Court of Washington answered both questions.

In Mahaney, a non-Indian grandmother appealed termination of her non-parental custody over her Indian grandchildren17 pursuant to the Nonparent Custody Act, under the Revised Code of Washington (RCW) 26.10.18 The petitioning grandmother had been awarded foster care custody by the Superior Court, but subsequently had her custody terminated by the Court of Appeals.19 The Washington Supreme Court reversed the Court of Appeals decision and reinstated the petitioning grandmother’s custody of the Indian children.20

The Supreme Court found that the “…fact that [the] ICWA applies should not signal to state courts that state law is replaced by the act's mandate,” and held that Washington State’s “best interest of the child”

15 WASH. REV. CODE § 13.38.030 (2013). 16 In re Mahaney,146 Wash.2d 878 (2002). 17 25 U.S.C. §1903(4) (2006) (defines Indian child as an “unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”). 18 In re Mahaney,146 Wash.2d at 881. WASH. REV. CODE § 26.10.030 (2013)(the Non Parent Custody Act allows a person “other than a parent to petition a court for custody of a child”). WASH. REV. CODE § 26.10.100 (2013)(the court shall determine custody “in accordance with the best interest of the child”). 19 In re Mahaney,146 Wash.2d at 885-86. 20 Id. at 898.

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test21 still applied to dependency cases for Indian children.22 The Supreme Court reasoned that its holding was consistent both with other state court opinions, which also applied state laws in Indian children child custody cases,23 and with the legislative history of the ICWA that “Congress did not intend [for the ICWA] ‘to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits'.”24

Furthermore, the Supreme Court found that the trial court complied with 25 U.S.C § 1912(e). Section 1912 (e) reads in its pertinent part:

Foster care placement orders; evidence; determination of damage to child. No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. . . . 25

21 WASH. REV. CODE § 26.09.002 (2013)(the “best interest of the child” test is applied to all Washington State child custody cases and is defined as a parenting arrangement that “best maintains a child's emotional growth, health and stability, and physical care”); In re Marriage of Allen, 28 Wash. App 637, 648 (1981)(there is no bright line rule of what is in the best interest of children. Each situation regarding children is decided on the circumstances of the case. Generally the court has to balance the competing interests of the parents, the child custodian, and sometimes the State in order to maximize the optimal placement for the child). 22 See In re Mahaney,146 Wash.2d at 893. 23 In re Maricopa County Juvenile Action No. A–25525, 136 Ariz. 528 (1983) (applying “best interests of the child” test to an Indian child dependency case); In re Santos Y., 112 Cal.Rptr.2d 692 (2001) (applying “existing Indian family doctrine” to award custody of an Indian child to non-Indian de facto parents); In re TM, 245 Mich. Ct. App. 181 (2001) (applying Michigan state law in the termination of parental rights of an Indian parent over his Indian child). 24 In re Mahaney,146 Wash.2d at 893-94 (quoting Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 at 58 (1989) (quoting H.R. Rep. No. 95–1386, at 19 (citing 1978 U.S.C.C.A.N. 7541, 7530)). 25 25 U.S.C. § 1912(e)(2006)(emphasis added); 1 U.S.C. § 1 (2102)(emphasis added)(while the ICWA calls for a plural number of “qualified expert witnesses,” federal statutory rules of construction provide that “unless the context indicates otherwise…words importing the plural include the singular”).

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At the trial level, the “qualified expert witness” that the Superior Court relied on when making its decision had only specialized training in medical, psychological, and special needs of children.26 The expert witness lacked special knowledge of, and sensitivity to, Indian culture.27 The issue was whether witnesses who had specialized knowledge of medical, psychological, and special needs of children, but no understanding of Indian culture, were in fact “qualified expert witnesses.”28

The Washington Supreme Court partially adopted the Bureau of Indian Affairs (BIA) guidelines by holding that a “qualified expert witness” should normally be an individual with specialized “knowledge of tribal culture and childrearing practices.”29 Nevertheless, the Supreme Court made an exception that a “qualified expert witness” need not necessarily have “special knowledge of and sensitivity to Indian culture” so long as the expert testimony offered does not “inject cultural bias or subjectivity.”30 The Supreme Court, however, did not specify what sort of testimony would or would not “inject cultural bias or subjectivity.” Nevertheless, in examining the facts of Mahaney and other state court decisions which share the same interpretive rule, “a qualified expert witness” need not have “special knowledge of and sensitivity to Indian culture” for foster care placement cases involving alleged substance abuse by the Indian parents.31

The dissent in Mahaney criticized the majority’s decision for resting on emotion rather than a straightforward application of the law. The dissent writes, “I sympathize with my colleagues' desire to keep the

26 In re Mahaney,146 Wash.2d at 897. 27 Id. at 897. 28 Id. 29 Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979). 30 In re Mahaney,146 Wash.2d at 897, (quoting State ex rel. Juvenile Dep't of Lane Cnty. v. Tucker, 76 Or. App. 673 (1985)). 31 Id. at 884-85; see also Thea G. v. State, Dep’t. of Health & Soc. Services, Office of Children's Services 291 P.3d 957, 964 (Alaska 2013) (holding that foster care or termination of parental rights cases involving issues of parental substance abuse do not implicate cultural mores); Dep't of Human Services v. K.C.J., 228 Or. App. 70, 84 (2009) (“Because this case implicates no cultural bias, the tribal representative is not the only ‘qualified expert witness’ whose testimony can be considered to support the court's finding….”).

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Mahaney children with their paternal grandmother who has nurtured and protected them and provided them with a stable environment since 1993. It is, however, incumbent on this Court to enforce the laws of the United States.”32 The dissent questioned the majority’s interpretation of a “qualified expert witness” and the Supreme Court’s affirmation of the trial court’s application of the “best interest of the child” test.

The dissent found the “best interest of the child” test used in Washington State family law to be inapposite to § 1912(e) because the § 1912(e) standard is centered on the parent(s) rather than the child.33 The text of the statute reads that a court must find “clear and convincing evidence . . . that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child. . .” before there can be any foster care placement.34

“The majority is wrong in concluding that the best interests of the child must be found by clear and convincing evidence,” the dissent writes, “[c]lear and convincing evidence must support a finding of parental unfitness to care for the child.”35 The dissent concluded that the majority’s application of the “best interest of the child” test, while “laudable,” results in the court “doing precisely what the ICWA was designed to prevent: it applies non-Native American values with little appreciation for the value of Native American tribes, their culture, and their influence.”36

The dissent, however, did not dismiss the majority’s exception that a “qualified expert witness” need not always have a “special knowledge of and sensitivity to Indian culture.”37 Instead, the dissent interpreted a narrower exception allowing a “qualified expert witness” to lack special knowledge of Indian culture for cases “when cultural bias is clearly not implicated and when there is no dispute about the parental inadequacy at

32 In re Mahaney,146 Wash.2d at 899. 33 Id. at 902-03. 34 25 U.S.C. § 1912(e) (2006) (emphasis added). 35 In re Mahaney,146 Wash.2d at 903. 36 Id. at 902. 37 Id. at 903.

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the time of the hearing.”38 Examples cited by the dissent were cases where the Indian parents suffered from mental illness39 or paranoia.40

In re Mahaney was wrongly decided mainly for the reasons stated by the dissent. The majority’s application of the “best interest of the child” test inappropriately undermines both the statutory scheme of the ICWA and Congress’ explicit goal of “…the placement of [Indian] children in foster or adoptive homes which will reflect the unique values of Indian culture….”41 Additionally, the Mahaney majority opinion erroneously relied on the United States Supreme Court case Holyfield42 to support its holding.

The Mahaney majority cites the legislative history of the ICWA found in Holyfield to justify the application of Washington State family law in conjunction with the ICWA.43 The reliance on that particular excerpt of legislative history by the Mahaney majority is problematic because it is found in the dissent of Holyfield and stands in complete contravention to Holyfield’s holding and supporting dicta.

Holyfield is one of two44 United States Supreme Court decisions interpreting the ICWA. The case, as is normal of any child custody proceeding, was highly emotional. In fact, when Justice Scalia was asked what was the most personally wrenching decision that he ever had to

38 Id. (emphasis added). 39 State ex rel. Juvenile Dep't of Lane Cnty. v. Tucker, 76 Or. App. 673, 683–84 (1985) (holding that the Indian parent’s undisputed mental illness precluded the need for “qualified expert witnesses” to possess special knowledge of Indian life). 40See In re Oscar C., Jr., 147 Misc.2d 761, 763–64 (1990) (finding that the Indian parent suffered from paranoia that was a chronic, lifelong disorder absent psychological intervention). 41 25 U.S.C. § 1902 (2006). 42 See generally Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 30 (1989). 43 In re Mahaney,146 Wash.2d at 893-94 (congress did not intend [for the ICWA] ‘to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits'”). 44 The second case, Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552 (2013) was decided on June 25, 2013. Adoptive Couple v. Baby Girl, 398 S.C. 625, 631 (2012), reh'g denied (Aug. 22, 2012), cert. granted, 133 S. Ct. 831, 184 (2013).

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make as a Supreme Court Justice he answered that it was Holyfield.45 The breakdown of the votes also reveals the controversy surrounding the case. The majority was authored by Justice Brennan with Justices Scalia, White, Marshall, Blackmun, and O’Conner joining, while the dissent was authored by Justice Stevens with Chief Justice Rehnquist and Justice Kennedy joining.46 Both the majority and the dissent include Justices across the spectrum of liberal, moderate, and conservative jurisprudence.

In Holyfield, two Indian parents of the Mississippi Band of Choctaw Indians (Choctaw Nation) residing on the Choctaw Nation’s reservation gave birth to a set of Indian twins at an off-reservation hospital, and less than a month later, signed their consent to an adoption decree with the Mississippi State Chancery Court.47 Six days later the Holyfields, a non- Indian couple, filed a petition for adoption for the children, which the Chancery Court granted, giving the Holyfields custody of the Indian twins.48 Two months later, the Choctaw Nation moved the Chancery Court to vacate its adoption decree on the ground that, under the ICWA, exclusive jurisdiction was vested in the tribal court.49 After the Chancery Court refused to vacate the order, the Choctaw Nation appealed to the Supreme Court of Mississippi.50 The Mississippi Supreme Court found that under State law the Indian children were domiciled off the reservation, thus distinguishing any of the Choctaw Nation’s claims of exclusive jurisdiction.51 The Choctaw Nation then appealed to the United States Supreme Court, who reversed the Supreme Court of Mississippi.52

The United States Supreme Court held that that states could not apply state laws of domicility that would undermine Indian tribal jurisdiction over Indian child custody proceedings.53 The Holyfield majority writes, “We

45 Adam Liptak, Case Pits Adoptive Parents Against Tribal Rights, N.Y. TIMES (Dec. 24, 2012), http://www.nytimes.com/2012/12/25/us/american-indian-adoption-case-comes-to- supreme-court.html?_r=1& (last visited Dec. 29, 2013). 46 See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 30. 47 Id. at 37-38. 48 Id. at 38. 49 See 25 U.S.C. § 1911(a) (2006). 50 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 39. 51 Id. at 40. 52 Id. at 41. 53 Id. at 53.

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start, however, with the general assumption that ‘in the absence of a plain indication to the contrary. . . .Congress when it enacts a statute is not making the application of the federal act dependent on state law.’”54 The reasons for this general presumption are (1) that “federal statutes are generally intended to have uniform nationwide application;” and (2) with application of state law there is a danger that “the federal program would be impaired if state law were to control.”55 Thus, in analyzing the statutory scheme of the ICWA, the United States Supreme Court found “beyond dispute” that Congress intended to establish a uniform federal law of domicility under the ICWA.”56

Applying that logic to Mahaney, if Congress intended uniform application of the domicility requirement of the ICWA, then it would necessarily follow that Congress intended uniform application of all provisions of the ICWA by the states unless the context of the particular statute clearly indicates otherwise. In Mahaney, however, the application of Washington State’s’ “best interest of the child” test exemplifies the very problem cited in Holyfield of states impairing federal programs by establishing completely different standards for state courts to examine child custody proceedings involving Indian children.

The Mahaney majority interpretation of a “qualified expert witness” falls short of a comprehensive definition of the term. Admittedly, Congress failed to define what exactly the qualifications for a “qualified expert witness” are. Even in context, the term is still unclear and is susceptible to more than one reasonable interpretation. Given that the term “qualified expert witness” is susceptible to more than one reasonable interpretation, the term is ambiguous as a matter of Washington State law.57 Accordingly, the Mahaney majority should have “resort[ed] to principles of statutory construction, legislative history, and relevant case law to assist in interpreting [the term].”58

54 Id. at 43 (citing Jerome v. United States, 318 U.S. 101, 104 (1943)). 55 Id. at 44 (citing Jerome, 318 U.S. at 104). 56 Id. at 47. 57 See Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 808 (2001). 58 State v. Watson, 146 Wash.2d 947, 955 (2002).

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The majority, however, made no citation to any of the legislative history in hopes of finding the meaning of a “qualified expert witness.” It is true that the Mahaney majority cited relevant case law from the Oregon Court of Appeals59 that defines a “qualified expert witnesses” as someone generally qualified through their “special knowledge of and sensitivity to Indian culture.”60 But the Mahaney majority fails to analyze how the Court of Appeals came to that conclusion. In fact, the Court of Appeals of Oregon relied heavily on the House Reports and the BIA guidelines in reaching its conclusion that a “qualified expert witness” should have an understanding of Indian culture.61

The Court of Appeals of Oregon specifically relied on the House Report for the ICWA:

The courts tend to rely on the testimony of social workers who often lack the training and the insights necessary to measure the emotional risk the child is running at home. In a number of cases, the AAIA [Association on American Indian Affairs] has obtained evidence from competent psychiatrists who, after examining the defendants, have been able to contradict the allegations offered by the social worker. . .

The abusive actions of social workers would largely be nullified if more judges were themselves knowledgeable about Indian life and require a sharper definition of standards of child abuse and neglect.62

Furthermore, the Court of Appeals of Oregon relied on the BIA guidelines which give three definitions of a “qualified expert witness,” two of which

59 State ex rel. Juvenile Dept. of Multnomah Cnty. v. Cooke, 88 Or. App. 176 (1987). 60 In re Mahaney, 146 Wash.2d 878, 897 (2002). 61 See State ex rel. Juvenile Dept. of Multnomah Cnty. v. Cooke, 88 Or. App. at 178 (citing State ex rel. Juvenile Dept. of Multnomah Cnty. v. Charles, 70 Or. App. 10, 16 (1984) (quoting H.R.1386, 95th Cong.,10 (1978) in U.S. CODE CONG. & ADMIN. NEWS 7532–7533 (1978))). 62 State ex rel. Juvenile Dept. of Multnomah Cnty. v. Charles, 70 Or. App. at 16, (quoting H.R. 1386, 95th Cong. 10 (1978), in U.S. CODE CONG. & ADMIN.NEWS 7532–7533 (1978)).

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require that the “qualified expert witness” be either a member of the child’s tribe or a lay expert in Indian culture.63

The Mahaney majority omits any discussion of the BIA guidelines and this portion of the House Report in its interpretation of a “qualified expert witness.” Instead, the only legislative history that the majority cites is the portion from the House Report that “Congress did not intend [for the ICWA] ‘to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits.’”64 Yet, relying on this piece of legislative history is problematic in two ways. The first problem is that the majority has fallen, as justice Scalia has described, into the trap of using legislative history “as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends.”65 In interpreting its broad exception for allowing a “qualified expert witnesses” to have no knowledge of Indian culture or child rearing practices when testifying in Indian child custody cases involving substance abuse, the majority ignores what amounts to be very probative legislative history cited by the Court of Appeals of Oregon indicating to the contrary. Secondly, the majority’s failure to cite legislative history when interpreting the term “qualified expert witness,” and its citation of legislative history as justification for application of Washington State law’s “best interest of the child” test, is the reverse approach to Washington State jurisprudence regarding statutory interpretation. When confronted with the ambiguous “qualified expert witness” term, the majority fails to cite legislative history. But when applying the state law “best interest of the child” test, a standard unambiguously precluded by the statutory scheme of the ICWA, the majority chooses to cite and rely on legislative history.

III. THE WASHINGTON STATE INDIAN CHILD WELFARE ACT

The WSICWA was passed on April 21, 2011, almost nine years after the Mahaney decision. The Act is a codification into Washington State law of the federal ICWA and certain provisions of the BIA

63 Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979). 64 In re Mahaney,146 Wash.2d at 893-94. 65 Conroy v. Aniskoff, 507 U.S. 511, 519 (1993).

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guidelines.66 The WSICWA creates uniform procedures for all child custody cases involving Indian children in Washington State, and gives state courts better direction on the vague language contained in the ICWA.

A. The WSICWA’s Response to Mahaney

In one of its very first sections, the WSICWA abridges Mahaney’s holding that the state law “best interest of the child” test still applied to child custody cases for Indian children in Washington State courts. The WSICWA reads in pertinent part “[t]his chapter shall apply in all child custody proceedings as that term is defined in this chapter. Whenever there is a conflict between chapter 13.32A, 13.34, 13.36, 26.10, or 26.33 RCW, the provisions of this chapter shall apply.”67 The enumerated chapters in RCW 13.38.020 are Washington State’s dependency, juvenile, and family law provisions. Particularly, RCW 26.10’s “best interest of the child” test was the very standard that the Mahaney court applied under the Nonparent Custody Act.68 Thus, RCW 13.38.020 precludes any other application of state family law in a child custody proceeding involving an Indian child.

As written, the language of RCW 13.38.020 was not strong enough to protect the “best interest of the Indian child” in a child custody case. Therefore, the Washington State Legislature included in the WSICWA, a separate and distinct definition for the “best interest of the Indian child.”69 In doing so, the Washington State Legislature essentially took a flamethrower to the Mahaney majority opinion. The WSICWA defines the “best interest of the Indian child” as:

66 25 U.S.C. § 1921 (2006) provides: In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard. Accordingly, the WSCIWA should not be preempted by the ICWA. 67 WASH. REV. CODE § 13.38.020 (2013). 68 See In re Mahaney,146 Wash.2d at 887. 69 WASH. REV. CODE §13.38.040(2) (2013) (emphasis added).

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the use of practices in accordance with the federal Indian child welfare act, this chapter, and other applicable law, that are designed to accomplish the following: (a) Protect the safety, well-being, development, and stability of the Indian child; (b) prevent the unnecessary out-of-home placement of the Indian child; (c) acknowledge the right of Indian tribes to maintain their existence and integrity which will promote the stability and security of their children and families; (d) recognize the value to the Indian child of establishing, developing, or maintaining a political, cultural, social, and spiritual relationship with the Indian child's tribe and tribal community; and (e) in a proceeding under this chapter where out-of-home placement is necessary, to prioritize placement of the Indian child in accordance with the placement preferences of this chapter.70

RCW 13.38.020’s mandate that only the WSICWA be applied in Indian child custody cases, coupled with RCW 13.38.040(2)’s definition of the “best interest of the Indian child,” leaves no room for doubt that Washington State courts may not apply the Washington State’s traditional family law “best interest of the child” test in Indian child custody proceedings.

The WSICWA also statutorily overturns the Mahaney court’s interpretation of a “qualified expert witness” whose testimony is necessary in any foster care placement or termination of parental rights case. The WSICWA established two procedures based on two different factual scenarios:

Scenario 1: If the Indian child’s tribe has intervened or, in the case that DSHS is the petitioner and the Indian child’s tribe had entered into an agreement with DSHS, the petitioner must “notify the child's Indian tribe of the need to provide a ‘qualified expert witness’ at least twenty days prior to

70 Id.

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any evidentiary hearing in which the testimony of the witness will be required;” 71

Scenario 2: If the child’s Indian tribe has not intervened, the child’s Indian tribe has not entered into a local agreement with DSHS,72 or the child’s Indian tribe has not responded to a request to identify a “qualified expert witness” for the proceeding on a timely basis, the petitioner shall provide a “qualified expert witness” who meets one or more of the statutory requirements in a prescribed descending order of preferences.73

As a result, the WSICWA gives intervening Indian tribes an opportunity to choose who exactly is a “qualified expert witness,” that is, “knowledgeable regarding tribal customs as they pertain to family organization or child rearing practices.”74 In addition, in a case where a child’s Indian tribe fails to intervene, or has not timely responded to a petitioner’s request, the WSICWA codifies, almost verbatim, the BIA Guidelines’ definition of a “qualified expert witness.” The BIA Guidelines define a “qualified expert witness” as someone who is either a recognized member of the child’s Indian tribe knowledgeable in tribal customs and childrearing; a lay expert who has substantial experience in the delivery of child and family services to Indians, and has extensive knowledge of customs and childrearing practices within the Indian child's tribe; or a professional person having substantial education and experience in the area of his or her specialty.75 The WSICWA thus ensures that a Washington State court hears testimony from someone who understands Indian tribal customs and culture before there can be any breakup of an Indian family or placement of an Indian child in foster care.

71 WASH. REV. CODE §13.38.130(4)(a)(2013). 72 Provided DSHS is the petitioner. 73 WASH. REV. CODE §13.38.130(4)(b)(2013)(the descending order of preferences are found in (4)(b)(i-iv)). 74 WASH. REV. CODE §13.38.130(2013). 75 See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979).

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B. The WSICWA’s Response to the ICWA

The WSICWA also seeks to cure other vague language found throughout the ICWA. Both the WSICWA and the ICWA require “active efforts” on the part of the petitioner to provide “remedial services and rehabilitative programs” to Indian parents before there can be any breakup of an Indian family. 76 The ICWA, however, fails to give any guidance on what exactly are “active efforts,” and what exactly are “remedial and rehabilitative programs” that must be provided to Indian parents.

The WSICWA defines “active efforts” for DSHS and other petitioners.77 The WSICWA defines “active efforts” for DSHS as a duty to work “with the parent, parents, or Indian custodian to engage them in remedial services and rehabilitation programs to prevent the breakup of the family beyond simply providing referrals to such services.”78 For petitioners other than DSHS, or those without statutory or contractual duty to the Indian child, “active efforts” means a “documented, concerted, and good faith effort” to facilitate “remedial and rehabilitative services.”79

Additionally, the WSICWA requires DSHS and other petitioners to provide or facilitate “reasonably available and culturally appropriate preventive, remedial, or rehabilitative services” for Indian parents, including “services offered by tribes and Indian organizations whenever possible.”80 Accordingly, the WSICWA differs significantly from the ICWA by requiring petitioners to provide or facilitate “remedial or rehabilitative services” for Indian parents that are geared towards Indian families and, if possible, to involve Indian tribes in the provision of these services.81 However, the WSICWA fails to enumerate what these “remedial and rehabilitative services” are exactly. But given that each child custody case is highly factual, specific enumeration of remedial services might have been too constraining.

76 WASH. REV. CODE §13.38.130(1)(2013); 25 U.S.C. § 1912(d)(2006). 77 WASH. REV. CODE §13.38.40(1)(a)(2013). 78 WASH. REV. CODE §13.38.40(1)(a)(2013)(the “active efforts” requirement for all other petitioners is found in subsection (b)). 79 WASH. REV. CODE §13.38.040(b)(2013). 80 Id. 81 Id.

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The Court of Appeals of Washington has given some guidance on this matter when it found that DSHS had complied with the “active efforts” requirement in the ICWA82 by providing an Indian family “psychological, parenting and substance abuse evaluations, parenting classes, mental health counseling, skills training, financial assistance, a public health nurse, and transportation.” Additionally, DSHS referred the parents to culturally appropriate mental health services at the parents' request.”83 Admittedly, the Court of Appeals was interpreting the “active efforts” requirement of ICWA rather than the new requirement in the WSICWA, but given the similarities of the statutes, the Court of Appeals decision is still instructive.

The “active efforts” requirement clearly imposes upon DSHS affirmative duties and the burden of showing to the Court that there was a good faith effort on DSHS’s part to provide and engage Indian parents in appropriate rehabilitative services, including services geared towards Indian families, before there can be any breakup of an Indian family. More simply put, petitioners have complied with the “active efforts” requirement by showing the court that they have done everything they reasonably could have done to prevent the breakup of the Indian family. Likewise, petitioners other than DSHS must also show the court they that have made a good faith and documented effort to facilitate Indian parents’ engagement in appropriate rehabilitative services before there can be any breakup. By its language, the WSICWA mandates strict compliance with the “active efforts” requirement.

The WSICWA reinforces the ICWA by ensuring state and federal laws are the same in Indian child custody cases. WSICWA’s elimination of the traditional “best interest of the child” test strongly limits Washington State courts from placing Indian children with non-Indian foster or adoptive parents. Furthermore, by defining a “qualified expert witness” the Washington legislature has created bright-line standards which not only conform to the BIA guidelines but also give Washington State courts direction on the vague language found in the ICWA in a way that is in

82 25 U.S.C. § 1912(d)(2006)(the “active efforts” requirement in this section of the ICWA is almost identical to WASH. REV. CODE § 13.38.130(1)(2013)). 83 In re Welfare of L.N.B.L., 157 Wash. App. 215, 248 (2010).

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better keeping with Congress’ explicitly stated goals. Moreover, the new requirement for “qualified expert witnesses” not only places a burden on the state to create a list of “qualified expert witnesses” but also requires better coordination between DSHS and the Indian tribes in training and selecting “qualified expert witnesses” among non-Indians.

Nevertheless, the WSICWA could have gone a bit further to cure other vague language in the ICWA. Particularly, the WSICWA could have defined when a court has “good cause” to refuse transfer of foster care placement or termination of parental rights cases to an Indian tribe’s jurisdiction,84 and when a court has “good cause” to deviate from the foster and adoptive care placement preferences.85

The Mahaney majority referenced the trial court’s refusal to transfer the child custody proceeding to Indian tribal court for “good cause.”86 The trial court found that “good cause warranted that the matter remain in the trial court” because of “concern for the safety of the children . . . [the] special needs of the children, an . . . disruption of [the] children's lives”87 In addition, the trial court ordered a guardian ad litem to appear.88 Neither the majority nor the dissent weighed the merits of the trial court’s decision since, “no assignment of error was made to the court's denial of the motion to transfer.”89 A likely explanation for the appellants’ failure to assign error to the refusal of the transfer is that they could not make a good faith argument that the refusal was an abuse of discretion. Like the “active efforts” requirement to provide remedial services, the “good cause” requirement is highly fact intensive, and the Washington State Legislature wanted to give broad discretion to trial courts. Still, it would have been helpful to have some statutory guidance on the matter.

The Washington State Legislature, however, should have better addressed the placement preferences for Indian children removed in

84 WASH. REV. CODE §13.38.080(2013); 25 U.S.C. § 1911(b)(2006). 85 WASH. REV. CODE §13.38.180(2013); 25 U.S.C. § 1915(2006). 86 See In re Mahaney,146 Wash.2d 878, 888 (2002). 87 Id. 88 Id. 89 Id.

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emergency settings.90 What happens often in a child custody proceeding is that the Indian child is temporarily placed with a non-Indian foster family, especially if the Indian child is domiciled off the reservation. Child custody proceedings, like most legal proceedings, are protracted. Therefore, time is a factor that potentially leads to the Indian child bonding to a non-Indian foster family and assimilating, contrary to the policy of the ICWA.

The Supreme Court of Alaska has found that such attachment can create “good cause” to deviate from the placement preferences. In Roy S. v. State Department of Health & Social Services,91 the Alaska Supreme Court relied on the expert testimony from the trial record of a child psychologist that the Indian child “was very fully bonded with and ‘embedded’ in her foster family, and losing contact with them would be ‘a very significant loss’ for her.”92 The Supreme Court of Alaska has also previously affirmed decisions to deviate from the ICWA placement preferences based on findings that “another separation is certain to cause serious emotional harm and would create a significant likelihood that [the child's] ability to attach would be irrevocably destroyed.”93

It is of course not appropriate, in this article, to question an expert of child psychology about the effects of separation anxiety. But in the case of an emergency removal of an Indian child living off the reservation, it is likely that the child will be placed with non-Indian foster care, with whom the child may become attached. To avoid placing Indians with non-Indian foster care or adoptive parents, the WSICWA, to better meet the stated goals of the ICWA, should require that Indian children, even in an emergency removal situation, be placed with Indian families, Indian approved foster care families, or with non-Indian families sympathetic to Indian culture.

90 WASH. REV. CODE §13.38.180(2013). 91 In Roy S. v. State, Dept. of Health & Soc. Services, 278 P.3d 886 (Alaska 2012). 92 Id. at 892. 93 Id.

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IV. THE RECENT SUPREME COURT JURISPRUDENCE AND THE IMPORTANCE OF THE WSICWA

The Supreme Court of the United States recently decided the case Adoptive Couple v. Baby Girl94 in a 5-4 decision. The decision was very unpopular with Indian tribes who saw the decision as undermining the ICWA.95 The Supreme Court decision, however, is important because it underscores the advantages of Washington State’s enactment of the WSICWA. In addition to creating state legislation that is insulated from unfavorable federal precedent, the WSICWA also dispels constitutional concerns that Justice Thomas believed plagued the ICWA.

A. Adoptive Couple v. Baby Girl

In Adoptive Couple, the majority held that the language of the ICWA prevents unwed fathers who have never had custody of their children from asserting custody rights normally guaranteed to them under the ICWA.96 Furthermore, the majority held that in order for Indian tribes to be given placement preferences under § 1915(a) of the ICWA they have to actually file a petition for adoption rather than just intervening in the child custody case.97 The majority’s holding, however, seizes on a latent ambiguity in the text of the ICWA, and in so doing undermines the intent of the ICWA to keep Indian children with their biological parents and Indian tribes. Additionally, the majority’s holding that an Indian tribe must actually file a petition for adoption rather than just intervene in a child custody case to be given placement preference under § 1915(a) of the ICWA is patently absurd.

The United States Supreme Court granted certiorari to Adoptive Couple from the Supreme Court of South Carolina.98 In Adoptive Couple,

94 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552 (2013). 95 Rob Capriccioso, “Supreme Court Thwarts ICWA Intent in Baby Veronica Case,” INDIAN COUNTRY TODAY (June 25, 2013), http://indiancountrytodaymedianetwork.com/2013/06/25/supreme-court-thwarts-icwa- intent-baby-veronica-case-150103 (last visited Nov. 24, 2013). 96 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2562. 97 Id. at 2564-65. 98 See Adoptive Couple v. Baby Girl, 398 S.C. 625 (2012), reh'g denied (Aug. 22, 2012), cert. granted, 568 U.S. _, 133 S. Ct. 831 (2013).

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the biological father (the Father), who is a member of the Cherokee Nation, had a child (Baby Girl) with his fiancée (the Mother), who was a non-Indian.99 After the birth of Baby Girl, the Father and the Mother’s relationship deteriorated and the two broke up.100 After ending his relationship with the Mother, the Father did not provide Baby Girl or the Mother with any financial support, either during pregnancy or after Baby Girl’s birth.101 When the Mother asked the Father whether he would rather provide financial support or terminate his parental rights, the Father said that he would rather terminate his parental rights.102 Following this communication the Mother put Baby Girl up for adoption through a private adoption agency and chose Adoptive Couple (a couple from South Carolina) to be the parents of Baby Girl.103 Upon receiving notice of the adoption from Adoptive Couple and the private adoption agency, the Father initially agreed but later revoked his waiver of parental rights and sought custody of Baby Girl in South Carolina State Family Court.104 Additionally, the Cherokee Nation intervened in the South Carolina State Family Court adoption proceeding for Baby Girl.105

The South Carolina State Family Court held that under the ICWA the Father, as Baby Girl’s Indian parent, was entitled to custody of Baby Girl because Adoptive Couple could not prove, per § 1912(f) of the ICWA, that custody by the Father would result in Baby Girl suffering serious emotional or physical damage.106 The South Carolina Supreme Court affirmed.107 The United States Supreme Court granted certiorari and reversed and remanded the South Carolina Supreme Court decision.108

99 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2558. 100 Id. 101 Id. 102 Id. 103 Id. 104 Id. at 2558-59. 105 Id. at 2564-65. 106 Id. at 2559. 107 Id. 108 Id. at 2559-65.

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The majority109 held that the text of § 1912(f) of the ICWA only prevents termination of parental rights when the termination would disturb “continued custody” of the child.110 Simply put, an Indian parent must have had physical or legal custody under state law of the Indian child since birth, or since before the child custody proceeding, in order to qualify for protections under the ICWA.111 The majority found that the Father’s absence from Baby Girl’s care, as well as his failure to claim paternity of Baby Girl under South Carolina law, precluded him from seeking Baby Girl’s adoption and invoking his rights under the ICWA.112

The dissent, however, did not find the majority’s reading of § 1912(f) of the ICWA to be so unambiguous. Justice Scalia dissented on the grounds that “continued” is defined as "[p]rotracted in time or space,” and therefore, it does not unequivocally follow that § 1912(f) of the ICWA applies only to initial or temporary custody.113 Justice Sotomayor’s dissent criticizes the majority for coming to a decision “by plucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it.”114

Rather than relying, as the majority did, on state law definitions of custody for a federal statute when the federal statute is explicitly meant to establish “minimum Federal standards for …the placement of [Indian] children in foster or adoptive homes,”115 the court should have found, as the dissent found, that the ICWA’s definition section qualified the Father as a “parent.”116 His paternity had been established during the proceeding, and he was therefore entitled to protection under the ICWA for his “parent-child relationship” with Baby Girl.117 The dissent further demonstrated that multiple provisions in the ICWA, like those respecting

109 Authored by Alito, and joined by Breyer, Kennedy, Thomas, and Chief Justice Roberts. 110 Id. at 2557. 111 Id. at 2562. 112 Id. 113 Id. at 2571-72 (quoting WEBSTER'S NEW INTERNATIONAL DICTIONARY 577 (1950)). 114 Id. at 2572. 115 25 U.S.C § 1902 (2006) (emphasis added). 116 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2574. 117 Id.

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notice,118 the right to counsel,119 and the right to inspect reports and documents filed with the court,120 refer to and focus on the defined “parent” standard rather than state custody law standards.121

Looking at both arguments, the dissent makes a stronger case for its reading of the statute and the ICWA. The majority’s use of state custody law in applying the ICWA is inconsistent with United States Supreme Court precedent, which emphasizes that the ICWA was explicitly enacted to create a uniform federal standard for Indian child placement.122 Furthermore, the majority’s holding undermines the explicit policy goals of the ICWA.

The majority writes that denying non-custodial parents’ protection under the ICWA is not inconsistent with the policies of the ICWA, which was designed to prevent “removal” of Indian children from Indian families.123 But the majority is once again taking the ICWA out of context. ICWA explicitly states that its purpose is to “establish minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”124 But a holding that applies state custody law to determine rights under the ICWA, and a holding that goes out of its way to cut off Indians’ parental rights, both undermines Congress’ clearly stated goal of creating minimum federal standards and placing Indian children in either Indian homes or homes that foster the Indian child’s heritage.

The second part of the majority’s holding, that the Cherokee Nation’s failure to file an adoption petition precluded its rights to placement preference under § 1915(a) of the ICWA, is a pedantic reading of the law. It was reasonable for the Indian tribe to be given placement preference

118 25 U.S.C. § 1912(a)(2006). 119 25 U.S.C. § 1912(b)(2006). 120 25 U.S.C. § 1912(c)(2006). 121 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2574-75. 122 See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989). 123 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. at 2555; See 25 U.S.C. §1901(4)(2006). 124 25 U.S.C § 1902(emphasis added)(2006).

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just by intervening in the child custody proceeding. After all, the Cherokee Nation intervened in a child custody case. It makes sense that they were intervening in order to take custody of the child by placing Baby Girl with a Cherokee family subject to their own tribal court proceedings. To hold otherwise would be the equivalent of thinking people make doctors’ appointments just to sit in the waiting room. Accordingly, the majority should have found that when an Indian tribe intervenes in any child custody proceeding for an Indian child of their tribe, the state court should view the intervention as an automatic petition for adoption.

B. The WSICWA and Adoptive Couple

The United State Supreme Court decided Adoptive Couple after the passage of the WSICWA, preventing the Washington Legislature from directly addressing the case by either changing or keeping the “continued custody” language of the ICWA. Nevertheless, there are still added protections in the statutory language of the WSICWA and other Washington State family law statutes that guard against the decision reached in Adoptive Couple. Furthermore, because the WSICWA is state legislation, there should be no concerns about the constitutionality of the WSICWA as compared to the ICWA as an application of Congress’ power under the Indian Commerce Clause. So while Adoptive Couple has a profound effect on Indian child custody cases tried pursuant to the ICWA throughout the United Sates, the case should have no effect on Indian child custody cases tried in Washington State.

In South Carolina and other states, unwed fathers lose their right to legal custody125 if they fail to file a claim of paternity with the state’s father registry agency before a party files either a petition for adoption or petition for termination of parental right for the child.126 Unlike South Carolina and many other states, Washington family law liberally grants legal custody to unwed fathers once paternity has been acknowledged or established, regardless of any initiated legal proceedings.127 The WSICWA extends

125 In other words, the right to notice and to be joined as a party to legal proceedings concerning the child. 126 S.C. CODE ANN. § 63-9-820(D)(F)(2013). 127 WASH. REV. CODE §26.26.320(2013).

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this same protection for unwed Indian fathers.128 Under the WSICWA and other state family law statutes, once the unwed Indian father has acknowledged or established paternity, Washington law confers upon him “all of the rights and duties of a parent.”129 This means that the unwed Indian father in Washington State has legal custody of the child, and must be given notice and joined as a party to any child custody proceeding.130 Thus, should the facts of Adoptive Couple occur in Washington State, the father would have legal custody of the Indian child under the WSICWA and Washington State family law, and thus, would have been able to keep custody of his child. So while the ICWA and WSICWA both contain identical language as to the “continued custody” language found in § 1912(f) and RCW 13.38.130, the WSICWA extends legal custody to unwed fathers who acknowledge or establish paternity.

Finally, the WSICWA accomplishes the goals of the ICWA while obviating Justice Thomas’ constitutional concerns. In his concurrence, Justice Thomas questioned the applicability of the Indian Commerce Clause131 as a justification for the ICWA.132 He reasoned that because the Indian Commerce Clause only gives Congress the power to regulate tribes and not states, and because child custody proceedings cannot be considered a form of “commerce,” therefore “there is simply no constitutional basis for Congress' assertion of authority over such proceedings.”133

Justice Thomas, who is a strict constitutional textualist, is concerned that the ICWA regulates state family law proceedings, an area of “traditional state concern,” without any enumerated authority granted to Congress by the Constitution to pass such a law.134 Justice Thomas would

128 WASH. REV. CODE §13.38,040(13)(2013). 129 WASH. REV. CODE §26.26.320(2013). 130 WASH. REV. CODE §26.26.190(2013)(if a parent relinquishes or proposes to relinquish for adoption a child, the other parent shall be given notice of the adoption proceeding and have the rights provided under the provisions of chapter WASH. REV. CODE § 26.33 (2103)); WASH. REV. CODE § 26.33.110 (2013)(right of notice to all parents and inform alleged father of his right to file a claim of paternity within twenty days of service). 131 25 U.S.C § 1901(1)(2102). 132 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552, 2571 (2013). 133 Id. at 2565. 134 Id. at 2566.

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agree, however, that the WSICWA obviates those concerns. The WSICWA is state legislation and is a proper exercise of Washington State’s police power.

CONCLUSION

The United States Supreme Court majority’s conclusion in the Holyfield case is instructive to understanding the ICWA. While conceding that “a separation [between the Indian children and their adoptive mother] at this point would doubtless cause considerable pain,” the Holyfield majority concluded, “[w]hatever feelings we might have as to where the twins should live, however, it is not for us to decide that question.”135 The Court continues, “[t]he law places that decision in the hands of the…tribal court” and “we must defer to the experience, wisdom, and compassion of the…tribal courts to fashion an appropriate remedy.”136

After all, why should a state or federal court be afraid to give jurisdiction of a child custody case to a tribal court? Is there any reason to believe that a tribal court will not make an equitable and just decision? In fact, following the Holyfield case, the Choctaw Nation tribal court did just that. The tribal court allowed the children to remain with their adoptive family, saying that “it would have been cruel to take them from the only mother they knew.”137 At the same time, the court ordered that the children stay in contact with their extended family and tribe.138 Tribal courts are in a better position and often have more flexibility to determine the welfare of the Indian children by nurturing the Indian children’s relationship to their Indian family and heritage.

The statutory scheme of the WSICWA reinforces the ICWA’s stated policy of preserving the unique values of Indian culture by requiring that Indian tribes be given exclusive jurisdiction over Indian child custody proceedings. In rare cases where state courts retain jurisdiction over the child custody case, the WSICWA prescribes deference to the Indian tribe’s input as to the child’s relationship to tribal culture and customs. At all

135 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 53 (1989). 136 Id. at 53 (quoting In re Adoption of Halloway, 732 P.2d 962, 972 (1986)). 137 See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 30. 138 Id.

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stages of the proceeding tribal sovereignty is to be preserved by the WSICWA’s notice and intervention provisions.

Additionally, The WSICWA serves as a model for sister states to adopt. In addition to creating greater protections for Indian tribes and children, the WSICWA is state legislation which obviates any constitutional concerns over the scope of the Indian Commerce Clause,139 and places Indian child custody proceedings firmly within the realm of state and Indian tribal court law and jurisprudence.

The WSICWA makes great strides in protecting Indian tribal sovereignty, tribal integrity, and continued tribal existence by letting Indian tribes and their members either decide the appropriate remedies for Indian child custody proceedings, or give Indian tribes a voice in state courts. The WSICWA both ensures that the policy goals of the ICWA are followed and strengthens the ties between Indian courts and state courts in acting in the “best interest of the Indian children.”

139 Adoptive Couple v. Baby Girl, 568 U.S. _, 133 S. Ct. 2552, 2571 (2013) (Thomas, J. concurring).

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ASSERTING TREATY RIGHTS TO HARNESS THE WIND ON THE GREAT LAKES

Gerald Carr

INTRODUCTION

Wind energy is a booming business in America today. As policymakers push alternative energy agendas, industry and government agencies want the process of siting and permitting wind farms to be shorter and more efficient. The significant delays of the country’s first offshore wind energy project, Cape Wind, is a glaring example of what needs be avoided.1 As a result, the federal government and states have partnered to facilitate development of offshore wind resources in the Atlantic and the Great Lakes. In the rush to develop, important stakeholders have been left out of the discussions—Great Lakes treaty tribes. This paper discusses the legal framework emerging for Great Lakes wind energy permitting, and the legal challenges opponents may raise in resisting development of offshore wind energy. More importantly, I argue that treaty tribes, Michigan treaty tribes in particular, could assert stakeholder status in the development of Great Lakes wind resources.

 Gerald Carr is a third year student in the Indigenous Law Program at Michigan State University College of Law. He holds a Ph.D. in Cultural Anthropology, specializing in the languages and cultures of Native North America. Thanks to Wenona Singel for thoughtful guidance through the development of this paper; thanks especially to Barbra Meek.

1 Originally proposed in 2001, Cape Wind has been mired in litigation and regulatory review ever since. The struggle is ongoing. Opponents of the project include the Wampanoag Tribe of Gayhead (Aquinnah), whose complaint is discussed infra, and the Alliance to Protect Nantucket Sound, an umbrella organization covering numerous groups individually opposing the project, such as residents, fishermen, towns, and environmental groups. The delays have threatened the financing of the project and increased overall costs, threatening the viability of the project itself. See Tom Zeller Jr., Cape Wind: Regulation, Litigation and The Struggle To Develop Offshore Wind Power In The U.S., HUFFINGTON POST (February 23, 2013, 10:41 AM), http://www.huffingtonpost.com/2013/02/23/cape-wind-regulation-liti_n_2736008.html (last visited Dec. 30, 2013) and Gale Courey Toensing, Cape Wind: Justice Department Urges Swift Lawsuit Resolution Before Tax Breaks Expire, INDIAN COUNTRY TODAY MEDIA NETWORK (April 25, 2013), http://indiancountrytodaymedianetwork.com/2013/04/25/capewind-justice-department-urges-swift-lawsuit-resolution-tax-breaks-expire-149020 (last visited Nov. 24, 2013).

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These tribes could do this not only because their treaty rights will be affected, but also because tribes could consider Great Lakes wind energy a natural resource reserved to them by treaty. Asserting a reserved right in the production and transmission of energy generated from wind resources on Lake Michigan would expand treaty rights and further affirm and enhance tribal sovereignty.

The first section of this article provides an overview of wind energy development in the United States and introduces the subject of offshore wind energy on the Great Lakes. In the second section, I discuss the emerging regulatory framework for offshore wind energy development generally. The third section discusses the legal challenges to wind farms, which provide recourse to tribes to protect their interests in the Great Lakes from negative impacts due to development. In section four, I present an overview of Indian treaties and treaty rights. Then, in section five, a close examination of the treaty rights reserved on Lake Michigan by Michigan treaty tribes. Lastly, in section six, I apply these recognized treaty rights and build an argument for asserting treaty rights to harness the wind on the Great Lakes.

I. OVERVIEW OF WIND ENERGY DEVELOPMENT IN THE UNITED STATES

This section discusses the growth of the wind energy industry, the reasons for its favored position in federal energy policy, and notes the development of wind energy resources on tribal lands. Furthermore, this section introduces federal support of offshore wind energy development in general and on the Great Lakes.

Since the first wind farms were built in the California deserts in the 1980s, the wind energy industry has grown significantly. In the past four years, wind energy production has more than doubled and in 2012 wind energy became the leading source of new energy generated in the United States2. There are over 60,000 megawatts (MW) of installed wind power capacity, generated by 45,000 utility-scale turbines. This is enough

2 Reports Show Record High U.S. Wind Energy Production and Manufacturing, U.S. DEP’T OF ENERGY, (Aug. 6, 2013, 12:00PM), http://energy.gov/eere/articles/reports-show- record-high-us-wind-energy-production-and-0 (last visited Nov. 24, 2013).

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electricity to power 15 million American homes. Thirty-eight states have wind power generating facilities. Texas leads the way in generation, with more than twice the output of second-place California.3 Industry analysts estimate that the United States has enough onshore wind energy resources to power the entire country ten times over, and enough offshore resources to power it thirteen times over.4

A. Wind Energy as a Leading Policy Choice

The phenomenal growth of wind energy is a result of the United States need for energy independence and energy security. President Obama’s proposed Clean Energy Standard seeks to generate 80 percent of the country’s electricity from clean energy, largely wind, by the year 2035.5 Toward that end, the Department of the Interior is committed to issuing permits for 10,000 MW of renewable power generation on public lands and offshore waters by the end of 2012.6 While the federal government has used direct investment and tax incentives to promote its goals, many states are using the Renewable Portfolio Standard (RPS) to achieve the same ends. An RPS obligates power companies in a state to provide a set portion of their electricity sales from renewable energy sources. Around the Great Lakes, Michigan and Wisconsin are using the RPS to meet their goal of 10 percent of energy from renewable sources by 2015; Ohio has a goal of 12.5 percent by 2025, Illinois of 25 percent by

3 AMERICAN WIND ENERGY ASSOCIATION, http://www.awea.org/resources/statefactsheets.aspx?itemnumber=890 (last visited Nov. 24, 2013). 4 Id. See also, Offshore Wind Energy, BUREAU OF OCEAN ENERGY MGMT. http://www.boem.gov/Renewable-Energy-Program/Renewable-Energy-Guide/Offshore- Wind-Energy.aspx (last visited Nov. 24 2013). 5 Blueprint For A Secure Energy Future, THE WHITE HOUSE, (March 30, 2011), http://www.whitehouse.gov/sites/default/files/blueprint_secure_energy_future.pdf (last visited Nov. 24, 2013). See also U.S. DEP’T OF ENERGY, 20% WIND ENERGY BY 2030: INCREASING WIND ENERGY'S CONTRIBUTION TO U.S. ELECTRICITY SUPPLY (2008), available at http://www1.eere.energy.gov/wind/pdfs/41869.pdf (last visited Dec. 30, 2013) (hereinafter U.S. DEP’T OF ENERGY, WIND ENERGY BY 2030). 6 Id at 36.

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2025, New York of 25 percent by 2013, and Pennsylvania of 18 percent by 2020. Indiana has no RPS program.7

Wind energy is favored because it is clean energy, domestically produced, and entirely renewable and sustainable. Environmentalists who support wind energy (and not all do) point out that wind power requires no fuel, does not release greenhouse gases or other pollutants, does not consume water, generates no hazardous waste, and carries no threat of disastrous spills.8 Industry advocates add that it has become cost- competitive due to advances in technology offers the advantage of predictable costs—because it is untethered to volatile fuel prices—and is supporting job growth.9

B. Wind Energy on Tribal Lands

Wind energy is also in full development on tribal lands.10 The Navajo Nation is constructing an 85 MW wind project at the Big Boquillas Ranch. Located within Navajo lands, its purpose is to deliver energy to customers on and off the reservation.11 For the project, they have partnered with Edison Mission of Irvine, California, who owns 49 percent of the venture (the remaining ownership stake is with the tribe).12 Tribal energy projects are not only a matter of economic development or diversification; in many parts of Indian country, they are for the purpose of building infrastructure. On the Navajo Nation reservation, for instance,

7 Renewable Portfolio Standards, M.J. BECK CONSULTING LLC, http://mjbeck.emtoolbox.com/?page=Renewable_Portfolio_Standards (last visited Nov. 24, 2013). 8 Ronald H. Rosenberg, Diversifying America’s Energy Future: The Future of Renewable Wind Power, 26 VA. ENVTL. L.J. 505, 522-24 (2008). 9 U.S. DEP’T OF ENERGY, WIND ENERGY BY 2030, supra note 5, at 107-110. 10 See generally PETER MEISEN, GLOBAL ENERGY NETWORK INSTITUTE, RENEWABLE ENERGY ON TRIBAL LANDS, available at http://www.geni.org/globalenergy/research/renewable-energy-on-tribal-lands/Renewable- Energy-on-Tribal-Lands.pdf (last visited Nov. 24, 2013). The Department of Energy also maintains a Tribal Energy Program, which provides financial and technical assistance for renewable energy projects on tribal lands; see Tribal Energy Program, U.S DEP’T OF ENERGY, http://apps1.eere.energy.gov/tribalenergy/index.cfm (last visited Nov. 24, 2013). 11 Alastair Lee Bitsoi, Wind Project Holds Promise for Tribe, NAVAJO TIMES (Aug. 4, 2011), http://navajotimes.com/news/2011/0811/080411wind.php (last visited Nov. 24, 2013) (hereinafter NAVAJO TIMES, Wind Project). 12 Id.

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there are an estimated 16,000 homes without access to electricity.13 Eventually, the Navajo Nation plans to expand the Big Boquillas Ranch facility to a 200 MW capacity, and develop wind energy (as well as solar energy) at another site.14 While the project is not intended to address infrastructural issues directly, using revenue from the project to fund rural electrification is one of its goals.15

The Navajo are not alone. In Maine, the Passamaquoddy Tribe of Indian Township and Pleasant Point has partnered with a Midwest energy company to build a wind farm at a decommissioned United States Air Force radar site that they plan to purchase.16 The Cheyenne and Arapaho, as well as several other tribes in Oklahoma, either have or are building facilities.17 In September of 2012, the Senate Indian Affairs Committee approved the Indian Tribal Energy Development and Self-Determination Act Amendments of 2011.18 One of the goals of the legislation is to facilitate Secretarial approval of energy projects, including wind, on Indian lands.19

C. Federal Support of Offshore Wind Energy Development

Even greater enthusiasm is held for the development of America’s offshore wind energy resources. Offshore wind is a superior resource

13 NAVAJO TRIBAL UTIL. AUTHORITY, http://www.ntua.com/ (last visited Nov. 24, 2013). 14 NAVAJO TIMES, Wind Project, supra note 11. 15 Terry W. Battiest, NAVAJO NATION RENEWABLE ENERGY INITIATIVES 17 available at http://www4.nau.edu/tribalclimatechange/resources/docs/res_830BattiestNavajo.pdf (last visited Nov. 24, 2013). The report notes that the Nation is planning to use small scale solar units to provide off-grid residential power in some locations. 16 Sharon Kiley Mack, Passamaquoddy Tribe Plans $120M Wind Farm In Washington County, BANGOR DAILY NEWS (Jan. 26, 2012, 5:20 PM), http://bangordailynews.com/2012/01/26/business/passamaquoddy-tribe-plans-120m- wind-farm-in-washington-county/ (last visited Nov. 24, 2013). 17 Cheyenne and Arapaho Tribes Purchase Wind Turbines to Power Reservation, INDIAN COUNTRY TODAY MEDIA NETWORK (Apr. 27, 2011), http://indiancountrytodaymedianetwork.com/article/cheyenne-and-arapaho-tribes- purchase-wind-turbines-to-power-reservation-29819 (last visited Nov. 24, 2013). 18 Senate Indian Affairs Committee Approves Indian Energy Bill, INDIANZ (Sept. 20, 2012), http://www.indianz.com/News/2012/007159.asp (last visited Nov. 24, 2013). 19 Barrasso Indian Tribal Energy Bill Moves Forward, JOHN BARRASSO, (Sept. 13, 2012), http://barrasso.senate.gov/public/index.cfm?FuseAction=PressOffice.PressReleases&Co ntentRecord_id=c143f275-b7f0-89f7-87cc-2790fefd2fa9 (last visited Nov. 24, 2013).

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because there are steadier winds and higher wind speeds across open water than over land, which leads to increased generating capacity.20 Offshore siting would place generating facilities closer to population centers (our largest cities are coastal), which reduces transmission costs.21 Additionally, engineers can scale-up offshore projects (larger turbines and larger wind farms) because they do not compete for land.22 However, offshore wind farms have higher construction and maintenance costs, and the technology for operation in marine environments is not as advanced.23 While there is currently no offshore wind generation in the United States, the country’s first offshore lease was issued in 2010, for the Cape Wind facility on Nantucket Sound.24 The facility will consist of 130 turbines with a combined generating capacity of 420 MW.

In 2010, the Secretary of the Interior launched the Smart From The Start initiative, which was intended to facilitate siting, leasing, and construction of new projects.25 It does so by identifying “wind energy areas” along the Outer Continental Shelf (OCS), and launching environmental assessments (EAs) evaluating the impact of authorizing leases and approving site assessment plans in those areas, so that a more efficient permitting process can unfold.26

In 2011, Secretary of the Interior Ken Salazar and Secretary of Energy Steven Chu released their joint plan to develop 10 gigawatts of offshore wind capacity by 2020 and 54 gigawatts by 2030.27 This plan comes with funding to incentivize development, and a promise of

20 U.S. DEP’T OF ENERGY, A NATIONAL OFFSHORE WIND STRATEGY: CREATING AN OFFSHORE WIND ENERGY INDUSTRY IN THE UNITED STATES 6-7 (2011), available at http://www1.eere.energy.gov/wind/pdfs/national_offshore_wind_strategy.pdf (last visited Nov. 24, 2013) (hereinafter NATIONAL OFFSHORE WIND STRATEGY). 21 Id. at 6. 22 Id. 23 Id. at 7. 24 CAPE WIND, http://www.capewind.org/article26.htm (last visited Nov. 24, 2013). 25 SMART FROM THE START FACTSHEET, DEP’T OF INTERIOR, available at http://www.doi.gov/news/pressreleases/upload/02-07-10-wea-fact-sheet.pdf (last visited Nov. 24, 2013). 26 Id. 27 NATIONAL OFFSHORE WIND STRATEGY, supra note 20 at iii.

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removing obstacles in the path of development.28 The major obstacles to wind energy include a need for developments in technology and infrastructure, a lack of data on environmental impacts for such projects, and an absence of regulatory framework.29

These initiatives were followed by the Department of Energy’s Offshore Wind Innovation and Demonstration Initiative (OSWInD), which seeks to “[r]educe the cost of energy through technology development to ensure competitiveness with other electrical generation sources [and r]educe deployment timelines and uncertainties limiting United States offshore wind project development,” in both the Atlantic Ocean and the Great Lakes.30 The hope is to avoid delays similar to those faced by the Cape Wind project by, among other things, promoting public acceptance of the wind farms, initiating the public consultation process, and accelerating and streamlining the permitting process.31

A streamlined permitting process can be achieved by increasing coordination and data sharing between agencies, reducing the regulatory burden for projects facing similar questions, developing best management practices for siting, and identifying needed regulatory reforms and statutory amendments.32 With respect to environmental assessments, OSWInD intends a coordinated data gathering effort to reduce duplicative assessments by interested parties and agencies. In doing so, they recognize that the development of offshore wind energy will require much original research that is likely to be time consuming and expensive.33

D. Developing Wind Energy on the Great Lakes

While other Atlantic projects are being discussed, government and industry are eyeing the Great Lakes as the next area for major development. The State of Michigan, for instance, established the Michigan Great Lakes Wind Council as an advisory body to make

28 Id. 29 Id. at 10. 30 Id. at 14. 31 Id. at 27. 32 Id. at 29. 33 Id. at 17.

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recommendations related to offshore wind development in Michigan.34 The Public Service Commission of Wisconsin has studied the feasibility of wind energy development on Lakes Michigan and Superior,35 and the Great Lakes Commission has explored the issue for Michigan and Wisconsin.36 These initial studies indicated a need for partnering between states and federal agencies. In 2012, a collaborative framework was established through a Memorandum of Understanding (MOU) signed by five states and ten federal agencies.37 (Noticeably absent from the MOU is the State of Wisconsin.) The MOU created the Great Lakes Offshore Wind Energy Consortium, an entity whose purpose is to “support the efficient, expeditious, orderly and responsible review of proposed offshore wind energy projects in the Great Lakes by enhancing coordination among federal and Great Lakes state regulatory agencies.”38 It anticipated a “regulatory roadmap” within fifteen months of the signing.39

II. THE REGULATORY FRAMEWORK

As the many initiatives discussed above attest, wind energy projects face great regulatory uncertainty. Numerous state and federal entities have authority over siting and permitting of offshore wind facilities, yet no clear regulatory framework exists. Furthermore, the regulatory

34 REPORT OF THE MICHIGAN GREAT LAKES WIND COUNCIL, GREAT LAKES WIND COUNCIL 1 (Sep. 1, 2009) available at http://www.michiganglowcouncil.org/GLOW%20Report%209- 1-09_FINAL.pdf (last visited Dec. 20, 2013). 35 PUBLIC SERVICE COMMISSION OF WISCONSIN, HARNESSING WISCONSIN’S ENERGY RESOURCES: AN INITIAL INVESTIGATION INTO GREAT LAKES WIND DEVELOPMENT 9 (2009) available at http://psc.wi.gov/renewables/documents/WOWreport11509.pdf (last visited Nov. 24, 2013) (hereinafter HARNESSING WISCONSIN’S ENERGY RESOURCES). 36 LESLIE GARRISON, GREAT LAKES COMMISSION, PREPARATION FOR OFFSHORE WIND IN LAKE MICHIGAN: INFORMATION SOLICITATION OPTIONS FOR MICHIGAN AND WISCONSIN 2 (2009) available at http://wiki.glin.net/download/attachments/950462/Information-Solicitation- Options-Offshore-Wind-Lake-Michigan_FINAL.pdf?version=1 (last visited Dec. 20, 2013)(the report indicates that Lake Michigan has the greatest wind resources). 37 Memorandum of Understanding Among The White House Council on Environmental Quality to Create a Great Lakes Offshore Wind Energy Consortium to Coordinate Issues of Regional Applicability for the Purpose of Promoting the Efficient, Expeditious, Orderly and Responsible Evaluation of Offshore Wind Power Projects in the Great Lakes 1 (2012) available at http://www1.eere.energy.gov/wind/pdfs/great_lakes_offshore_wind_energy_consortium_ mou.pdf (last visited Dec. 30, 2013) (hereinafter MOU). 38 Id. 39 Id.

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framework developing for the Atlantic coastal waters cannot simply be transplanted to the Great Lakes. In this section, I discuss the regulatory framework emerging for offshore wind energy development, focusing on permitting agencies and environmental review. I first discuss regulations for offshore development in ocean waters because these are expected to provide the model for regulation of the Great Lakes.

A. Regulation of Federal Ocean Waters: A Model for the Great Lakes

In 2009, The Department of the Interior’s Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) finalized regulations for the issuance of leases for renewable energy on the OCS.40 BOEMRE serves as the lead agency in permitting offshore wind energy projects on the OCS.41 The Energy Policy Act of 2005 authorized the Secretary of the Interior to grant leases on the OCS for alternative energy projects.42 The Secretary delegated this authority to BOEMRE, which promulgated regulations.43 Leases may be issued to any person, corporation, or government demonstrably capable of “constructing, operating, maintaining, and decommissioning” an alternative energy project on the OCS.44

BOEM45 uses a competitive bidding process to grant leases, initiated by publishing a request for interest in the Federal Register.46 Two kinds of leases may be issued, a 25-year commercial lease for the generation and transmission of electricity, and limited leases, which allow

40 Hanna Conger, A Lesson From Cape Wind: Implementation of Offshore Wind Energy in the Great Lakes Should Occur Through Multi-State Cooperation, 42 LOY. U. CHI. L.J. 741, 758 (2011). 41 A NATIONAL OFFSHORE WIND STRATEGY, supra note 20, at 10. 42 Energy Policy Act of 2005, Pub. L. No. 109-58 119 Stat, 594 § 388 (2005). See 30 C.F.R. § 285.100 (2011). 43 Id. 44 Conger, supra note 40, at 762. 45 On October 1, 2011, BOEMRE, formerly the Minerals Management Service (MMS), was replaced by the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE). The former is involved in renewable energy development. 46 30 C.F.R. § 285.201 (2013).

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only research, data collection, and testing at a site for a five-year period.47 After the granting of a lease, developers must submit extensive plans to BOEM prior to construction. BOEM uses these plans to assess whether the project will conform to applicable law, not interfere with other uses of the OCS, and confirm compliance with environmental regulations.48

BOEM’s regulations were promulgated for OCSLA, and the federally controlled waters of the Atlantic, and therefore do not extend to state-controlled bottomlands, like those of the Great lakes. This regulatory uncertainty is expected to be addressed by the Great Lakes Offshore Wind Consortium, which will, in the least, facilitate coordination among the federal and state agencies that may participate in the permitting, and the extensive environmental review that must take place.49 But exactly who would control the permitting process is yet to be determined.

B. Federal Statutes and Agencies Implicated in Offshore Wind Energy Permitting

The United States Army Corps of Engineers (USACE) has authority under § 10 of the Rivers and Harbors Act to issue permits for construction in navigable waters of the United States.50 USACE also has authority under the Clean Water Act to issue permits for dredging and filling of any United States waters, including the Great Lakes.51 Wind farm construction would entail these activities, so these Acts could be used to regulate and permit wind farm development in the Great Lakes. However, states with Great Lakes bottomlands have significant authority to govern their coastlines and water; in fact, they have greater control over their waters and coastlines than ocean-bordering states do over theirs.52 This is because Great Lakes states control the water all the way to the Canadian border. In other words, there is no point at which the Great Lakes become

47 Conger, supra note 40, at 762. 48 Id. 49 MOU, supra note 37. 50 33 U.S.C. § 403 (2006); see also Conger, supra note 40 at 781. 51 33 U.S.C. § 1344 (2006). 52 Katherine Saks, Great Lakes, Great Potential: Examining the Regulatory Framework for Wind Farms in the Great Lakes, 35 CAN.-U.S. L.J. 209, 233 (2011).

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federal waters. States also have approval authority under the Clean Water Act for projects impacting their water quality.53

A National Offshore Wind Strategy lists the statutes and agencies involved in offshore wind permitting.54 First and foremost of these is the National Environmental Policy Act (NEPA).55 NEPA requires that federal agencies prepare an Environmental Impact Statement (EIS) for any “major federal action significantly affecting the quality of the human environment,” both immediately and cumulatively.56 The environmental effects to be considered in an EIS include impacts on social, cultural, and economic resources, as well as natural resources.57 The preparation of the EIS is the only enforceable duty under NEPA; no substantive environmental obligations are imposed.58 NEPA ensures that an agency contemplating action will have environmental data to consider, including all reasonable alternatives to the proposed action. But it does not mandate that those environmental factors identified in reports actually guide decision making, merely that the agency take a “hard look” at environmental consequences before taking major action. 59 Other values or factors, perhaps non- environmental ones, could be more influential in decision making.60

53 33 U.S.C. § 1342 (b) (2006). 54 A NATIONAL OFFSHORE WIND STRATEGY, supra note 20, at 11-12. The statutes and agencies are: National Environmental Policy Act of 1969, Endangered Species Act of 1973, Marine Mammal Act of 1972, Magnuson-Stevens Fishery Conservation and Management Act, Marine Protection, Research, and Sanctuaries Act of 1972, National Marine Sanctuaries Act, Coastal Zone Management Act of 1972, National Historic Preservation Act of 1966, Federal Aviation Act of 1958, Federal Power Act, Ports and Waterways Safety Act, Rivers and Harbors Act of1899, Outer Continental Lands Act of 1953, Clean Water Act, and Clean Air Act. Not all will be discussed here. 55 42 U.S.C. § 4321(2006). Binding regulations concerning NEPA were issued by the Council on Environmental Quality (CEQ), 40 C.F.R. 1500 (2013). 56 42 U.S.C. § 4332 (2013); “cumulative impact” is defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7 (2013). 57 40 C.F.R. § 1508.14 (2013). 58 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). 59 Id. 60 Id.

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Under any agency’s NEPA plan, a lead federal agency in an action impacting the human environment must coordinate with other federal agencies that have jurisdiction or special expertise.61 For offshore wind projects, this would require coordination with the many agencies already listed on the MOU creating the Great Lakes Offshore Wind Energy Consortium: the White House Council on Environmental Quality (CEQ), the Department of Energy, the Department of Defense, the EPA, the Army, the Coast Guard, Fish and Wildlife Service, Federal Aviation Administration, National Oceanic and Atmospheric Administration, and the Advisory Council on Historic Preservation.62 Additionally, executive order 13175 requires that all federal policies having tribal implications be developed in meaningful consultation with tribes.63 The particular environmental impacts that would need to be addressed in an EIS covering an offshore wind facility are discussed in the next section.

Offshore wind projects will also be subject to the Coastal Zone Management Act (CZMA).64 CZMA encourages coordination and cooperation between local, State, and Federal agencies with responsibilities over ocean and Great Lakes coastal areas.65 Its most significant feature is the empowerment of local knowledge and local concerns in environmental policy.66 Under CZMA, States can create “management programs,” which identify “objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone.”67 They must include the views of local governments and other interested parties68 and federal agencies “principally affected.”69 The

61 42 U.S.C. § 4332 (2006). See also 40 C.F.R. §§ 1501.5-1501.6 (2013). 62 MOU, supra note 37. 63 Exec. Order No. 13175, 65 Fed. Reg.218, 67249 (2000). An example of agency implementation of this order available at http://www.epa.gov/tp/consultation/plan- action.htm (last visited Nov. 24, 2013). 64 16 U.S.C. §§1451-66 (2006) (CZMA is administered by the National Oceanic and Atmospheric Administration). 65 16 U.S.C. § 1452 (2006). 66 Holly Doremus, Through Another's Eyes: Getting the Benefit of Outside Perspectives in Environmental Review, 38 B.C. ENVTL. AFF. L. REV. 247, 258 (2011), available at http://lawdigitalcommons.bc.edu/ealr/vol38/iss2/3 (last visited Nov. 24, 2013). 67 16 U.S.C. § 1453 (12) (2006). 68 16 U.S.C. § 1455 (d)(1) (2006). 69 16 U.S.C § 1456 (b)(2006); further requirements at 16 U.S.C. § 1455 (d)(2) (2006).

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Secretary must then approve the state management programs. After they are approved, any federal action in the area must be “consistent” with state management programs.70 Offshore wind facilities are likely to invoke CZMA concerns because the construction and operation of the facilities involves both onshore and offshore activities.

Next, environmental review for offshore wind energy projects may also be required under the Endangered Species Act, the Migratory Birds Treaty Act, the National Historic Preservation Act, The Magnuson-Stevens Fishery Conservation and Management Act and the Clean Air Act. This legislation is relevant because of the wide range of specific environmental hazards that wind turbines pose, many of which are not well understood. The Endangered Species Act, 16 U.S.C. §§ 1531-1544, is intended to ensure that federal agency actions do not destroy endangered and threatened species, or their critical habitat.71 The ESA makes it illegal to “take” —meaning to harass, harm, pursue, wound, or kill—a listed (protected) species.72 The Secretary may grant exceptions to the ESA, allowing for incidental takes under certain conditions.73 As a result of ESA requirements, wind turbines on the Great Lakes will likely require the issuance of an incidental take permit for listed birds in the region.74 Similarly, because the Great Lakes are significant migratory routes, the Migratory Bird Treaty Act will need to be considered.75 It prohibits the taking of listed migratory birds without federal authorization.76 Such authorization can come in the form of permits, or compliance with regulations—hunting regulations, for instance.77 Through the operation of

70 16 U.S.C § 1456 (c)(1)(A) (2006)(“[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.”). 71 16 U.S.C. §§ 1531-1543 (2006). 72 16 U.S.C. §§ 1532 (19) (20); “Harm” here includes “significant habitat modification or degradation where it actually kills or injures wildlife.” Babbitt v. Sweet Home Chapter of Communities for a Great Or. 515 U.S. 687 (1995). 73 16 U.S.C. § 1539 (2006). 74 The Bald Eagle Protection Act may also be implicated in Great Lakes Wind farms for the same reasons as the ESA. 16 U.S.C. § 668 (2006). 75 16 U.S.C. §§ 703-712 (2006). 76 Id. 77 Id.

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NEPA, ESA, Migratory Birds Act, and the Fish and Wildlife Coordination Act,78 the United States Fish and Wildlife Services (USFWS) will be implicated in the permitting process for all wind energy development. In anticipation, guidance is being developed by USFWS.79

Finally, the National Historic Preservation Act80 requires federal agencies to consider the impact of federal action on historic and cultural resources eligible for listing in the National Register of Historic Places, and requires that the Advisory Council on Historic Preservation be given a reasonable opportunity to comment on such undertakings.81 The NHPA supplements NEPA, which includes protections for cultural resources, and similarly requires only the consideration of impacts by an agency, including the consideration of alternatives to avoid or mitigate the adverse impacts, and the processes of community consultation.82

C. State Agencies Implicated in Great Lakes Offshore Wind Energy Permitting

In Michigan, legislators intend to establish a wind energy regulatory program under Part 324 of the Natural Resources and Environmental Protection Act of 1994.83 This program, to be situated within the Michigan Department of Environmental Quality, will manage leasing of bottomlands and handle the permitting of offshore wind energy projects in Michigan Great Lakes waters.84 However, much of this may be conditioned upon the Great Lakes MOU (supra). The State of Wisconsin, which is not a signatory to the MOU, anticipates that regulatory participation at the state level would implicate the Public Service Commission of Wisconsin, the

78 16 U.S.C. §§ 661-667(e) (2006). 79 See generally Wind Energy Development Information, U.S FISH & WILDLIFE SERVICES, http://www.fws.gov/windenergy/ (last visited Nov. 24, 2013). 80 16 U.S.C. § 470 (2006). 81 Id. 82 Id. 83 MICH. COMP. LAWS § 324.101(1994). 84 MICH. COASTAL MGMT. PROGRAM OFFICE OF THE GREAT LAKES DEP’T OF ENVTL QUALITY, SECTION 309 ASSESSMENT AND FIVE-YEAR STRATEGY FOR COASTAL ZONE MANAGEMENT PROGRAM ENHANCEMENT FISCAL YEARS 2012-2016, 43 (2011), available at http://coastalmanagement.noaa.gov/mystate/docs/mi3092011.pdf (last visited Nov. 24, 2013).

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Wisconsin Department of Natural Resources, and Wisconsin’s Indian Tribes.85

III. CHALLENGES TO WIND FARMS

Currently, there is no anticipated role for tribes in the emerging regulatory framework, except by the State of Wisconsin.86 However, two avenues for asserting stakeholder status and preserving, or even enhancing, treaty rights exist. These are: (1) legal battles to protect tribal interests from negative impacts due to offshore wind energy development; and (2) asserting treaty rights to wind. The first of these options will be discussed in this section.87

Despite widespread support, wind energy has been criticized on a number of grounds. Opponents of onshore wind projects have relied on tort claims such as nuisance, zoning and FAA violations, improper permitting challenges, and violations of the public trust to ground claims seeking injunctions against particular wind farms.88 More rarely, actions challenging onshore wind farms have alleged violations of the Endangered Species Act, the Migratory Birds Act, NHPA, the Federal Land Policy Management Act (FLPM), and CZMA.89

Offshore wind energy development faces similar opposition. The Cape Wind Project has been delayed for over a decade by litigation from alliances of local residents.90 These allegations are poignant because wind energy facilities can cover large areas of land and water—from thousands of acres to tens of square miles—even though their actual

85 HARNESSING WISCONSIN’S ENERGY RESOURCES, supra note 35, at 131-132 (“it would be necessary to consult with Wisconsin’s Indian tribes on any regulatory decisions related on off-shore wind projects that could affect tribal lands, rights or interests, such as fishing rights in Lake Superior”). 86 Id. 87 Here, my intent is to merely survey the types of claims typically made against wind farms; I do not attempt a comprehensive review of potentially applicable case law. 88 Eric M. Larsson, Cause of Action to Challenge Development of Wind Energy Turbine or Wind Energy Farm, 50 CAUSES OF ACTION 2d 1 (2012). 89 Id. 90 Such opposition is often called NIMBY (Not In My Back Yard) opposition and is based on aesthetics and impacts on property values. See Conger, supra note 40, at 753.

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footprint is quite small, and because turbine towers can be seen from great distances.91 A. Zoning and Public Utility Permitting Challenges to Wind Farms

Zoning and public utility permitting challenges have been a primary cause of action for local residents attempting to prevent the development of wind farms, and even test turbines92 In general, a challenge based on zoning or improper utility permitting must show that the permitting body erred in applying its own regulations to an application.93 In doing so, plaintiffs must overcome the significant deference a court will give to an administrative body’s interpretation of its own rules and findings and show that the agency’s determinations are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” under the Administrative Procedure Act (APA).94 When wind energy facilities already exist, plaintiffs have relied on nuisance law to recover damages for harms caused by them.95 The types of harms attributed to wind energy generation include: noise, vibration, shadow flicker or strobe effect (where the shadow of the rotating blades cause rapid changes in light intensity), aesthetics, emotional injury, and diminished property values.

B. Alleged Violations of Environmental Law

While there is established case law in these areas, it may not be applicable in challenges to offshore wind development. Instead, plaintiffs

91 Offshore wind turbines have tower heights greater than 200 feet and rotor diameters of 250 to 430 feet. The maximum height can, therefore, approach 500 feet. Even larger turbine designs are contemplated. Offshore Wind Energy, BUREAU OF OCEAN ENERGY MGMT. http://www.boem.gov/Renewable-Energy-Program/Renewable-Energy- Guide/Offshore-Wind-Energy.aspx (last visited Nov. 24 2013). 92 Larsson, supra note 88 at § 12. 93 Id. 94 5 U.S.C. § 706(2)(A) (2006). 95 Larsson, supra note 88, § 15. To establish a prima facie case in nuisance, the plaintiff must show that “(1) the plaintiff had a private interest in land; (2) the defendant interfered with or invaded the plaintiff's interest by conduct that was (a) negligent, or (b) intentional and unreasonable, or (c) abnormal and out of place in its surroundings; (3) the defendant’s conduct resulted in a condition that substantially interfered with the plaintiff's private use and enjoyment of the land; and (4) the nuisance caused injury to the plaintiff.” Id.

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would likely attack new projects by alleging violations of environmental law. As noted above, NEPA does not create a private right of action; rather, an agency’s alleged noncompliance with NEPA is a final agency action reviewable under the APA.96 Litigation typically challenges the adequacy of an EIS, or the decision not to issue one, but not an agency’s failure to comply with an EIS, as there is no cause of action to enforce an agency’s compliance with any EIS.97

An offshore wind farm will be open to challenges to environmental review because projects will need to undertake significant review of impacts on air and water quality, fish and wildlife, coastal, marine, and seafloor habitats, terrestrial habitats (due to the use of onshore staging and lay down areas during construction), visual resources/ view shed, the acoustic environment, fisheries, cultural resources, socioeconomic conditions, land use concerns, and possibly more.98 Experience with onshore wind farms have shown that turbines pose a danger to birds and bats through collisions and in promoting avoidance behavior that can disrupt feeding, reproduction, and migration.99 Because of such disruptions, an additional cause of action may lie in the Endangered Species Act’s citizen suit provision.100 Fish are also likely to be impacted by the development of offshore wind farms. Turbine foundations and power transmission lines disturb the substrate (usually temporarily), which has the potential to affect aquatic habitat.101 Such impacts, if significant, could be felt by commercial, recreational, and treaty fishermen.102 Beyond these anticipated concerns are a host of unknowns. The novelty of offshore wind energy, especially in the Great Lakes, means that extensive environmental assessment needs to be done, which presents many possibilities for litigation challenging the assessments.

96 DANIEL R. MADELKER, NEPA LAW AND LITIGATION § 4:1 (2012). 97 Id. at § 4:8. 98 HARNESSING WISCONSIN’S ENERGY RESOURCES, supra note 35, at 79-104. 99 Id. at 79. 100 16 U.S.C. § 1540 (g) (2006); Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687 (the Court upheld the Secretary’s inclusion of significant habitat modification impairing essential behavioral patterns within the definition of “harm” to an endangered or threatened species). 101 HARNESSING WISCONSIN’S ENERGY RESOURCES, supra note 35, at 85-88. 102 Id. at 89.

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Offshore wind farms may also face some of the less common allegations made against onshore facilities. In Flint Hills Tallgrass Prairie Heritage Foundation v. Scottish Power. PLC,103 the plaintiffs based their challenge on the Migratory Bird Treaty Act (MBTA). The court held that the plaintiffs failed to state a cause of action under federal law because they did not establish that the MBTA created a private right of action.104

The Endangered Species Act of 1973, however, authorizes citizen suits.105 In Animal Welfare Institute v. Beech Ridge Energy LLC, several nonprofit organizations sued the developers of a wind energy project, alleging that the project would “take” endangered Indiana bats in violation of the ESA.106 The court there enjoined the operation of wind turbines at all times the bats were not hibernating, at least until the defendants acquired a take permit.107 Opponents of a coastal wind farm in Texas brought another challenge, under CZMA.108 The court rejected plaintiffs’ claims that they could force Texas agencies to conduct a consistency review and allow public participation before allowing a private wind energy project to proceed.109

C. Challenges Based on Cultural Resource Protection Laws

While tribes could challenge wind energy development under any of the above causes of action, they may also allege violations of statutory requirements to protect cultural resources. For example, in 2012, the Quechan Tribe of the Fort Yuma Indian Reservation filed suit against the Bureau of Land Management (BLM) to stop the development of a 112-

103 Flint Hills Tallgrass Prairie Heritage Found. v. Scottish Power. PLC, WL 427503 (D. Kan. 2005). 104 Id. at 4. Sierra Club v. Martin, 933 F. Supp. 1559, 1567 (N.D. Ga. 1996) (while MBTA does not grant a private cause of action, it can be enforced through the APA); Sierra Club v. Martin, 110 F. 3d 1551, 1555 (11th Cir. 1997)(however, MBTA has been held to not apply to the federal government). 105 16 U.S.C. § 1540 (g) (2013). 106 Animal Welfare Inst. v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540, 560 (D. Md. 2009). 107 Id. at 581. 108 Coastal Habitat Alliance v. Patterson, 385 Fed. Appx. 358 (2010). 109 Id. at 361.

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turbine wind farm in the California Desert Conservation Area (CDCA), an area managed by the BLM.110 The Secretary of the Interior approved a 10,000 acre right-of-way in the CDCA for the construction of the Ocotillo Wind Energy Facility (OWEF), an action the Tribe argued violates the APA, NEPA, the National Historic Preservation Act (NHPA), and the Federal Land Policy Management Act (FLPM).111 The Tribe sought a temporary restraining order enjoining defendants from authorizing any ground disturbing activities in the OWEF area.

The Tribe argued that its traditional territory, including the OWEF Project Area, is integral to its identity and ceremonial practices; that damage to cultural resources or the landscape “contributes to the destruction of the Tribe’s culture, history, and religion,” and that “[i]njury to the Tribe’s cultural resources causes injury to the Tribe and its people.”112 The Final Environmental Impact Statement for OWEF identified archaeological sites, traditional use areas, burial sites, and trail segments, which the Tribe alleged constituted a Traditional Cultural Property eligible for inclusion in the National Register of Historic Places. The Tribe also claimed an interest in the “quality of the land, water, air, flora, and fauna within the Tribe’s traditional territory,” especially noting a concern for the habitat of the Flat tailed Horned lizard, it being a creature central to the Tribe’s Creation Story.113 Finally, the Tribe alleged that the Project would degrade the scenic value of the area and destroy the viewsheds to sacred mountains.

The court denied the motion on grounds that a memorandum of understanding between the California State Historic Preservation Office, the Advisory Council on Historic Preservation, the BLM, the Army Corps of Engineers, and Ocotillo Express LLC, would assure compliance with state law safeguarding archaeological resources and NAGPRA provisions protecting burials.114

110 Quechan Tribe of the Fort Yuma Indian Reservation v. Dep’t of the Interior, 3:12-cv- 01167-WQH-MDD (S.D. Cal. 2011). 111 Id. 112 Id. at 8. 113 Id. 114 Id. at 11 (the case is currently on appeal in the Ninth Circuit).

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Another cultural resource challenge comes from the Cape Wind litigation. In 2011, the Wampanoag Tribe of Gay Head (Aquinnah), a federally-recognized tribe based on Martha’s Vineyard, filed suit against the BOEMRE over their approval of the Cape Wind Energy Project in Nantucket Sound. The Tribe sought declarative and injunctive relief, specifically a declaration that defendants approved the Project in violation of NEPA, the NHPA, and the APA, and an injunction requiring defendants to withdraw the Record of Decision and prepare a Supplemental Environmental Impact Statement.115

The Tribe objected to any alteration of the eastern viewshed across Nantucket Sound.116 They alleged that construction and operation would make “cultural heritage, spiritual ceremonies, and day-to-day practices, such as subsistence fishing off the coast of Martha’s Vineyard, nearly impossible and will irreparably intrude into sites of cultural and spiritual significance that the Tribe wishes to remain undisturbed.”117 The Wampanoag refer to themselves as “The People of the First Light” and argue that from time immemorial, they have engaged in traditional and customary religious practices that include ceremonies at dawn as the sun rises over the horizon across Nantucket Sound. The Wampanoag believe that these ceremonies are essential to the proper conduct of their religion, and are a significant identifying aspect of the Tribe.

Additionally, they argued that Nantucket Sound and its landforms bear a significant relation to Moshop, a cultural icon for the tribe. Oral history about Moshop, his relationship to the Tribe, and his creation of the Sound and the islands have been an integral part of Wampanoag culture for generations and comprise a key part of the Tribe’s cultural identification as a distinct Indian people. The Wampanoag also have subsistence rights in the Sound, and have cultural affiliation with submerged archaeological resources on the seabed of Horseshoe

115 Wampanoag Tribe of Gay Head (Aquinnah) v. Bromwich, Case 1:11-cv-01238-RMU 27 (D. D.C. 2011). 116 Id. 117 Id. at 2.

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Shoal.118 This case has since been merged with other actions against the Cape Wind Project.

Both the Quechan and Wampanoag complaints illustrate the importance of cultural resources in environmental review. Around the Great Lakes, the numerous Anishinabek tribes may raise similar issues against wind farms sited offshore. The waters contain unknown numbers of historic and archaeological sites, ranging from ice-age habitation sites to modern shipwrecks, all of which would be eligible for listing on the National Registry of Historic Places. These sites would likely be detected during anarchaeological survey for a project’s EIS, then mitigation measures imposed (salvage or avoidance), and the mitigation upheld by the courts119. A court’s treatment of tribal claims of adverse impacts to traditional cultural properties—sites important to a community’s historically rooted beliefs, customs, and practices—and culturally significant viewsheds is less predictable. Many tribes will be able to demonstrate a spiritual connection to the Great Lakes. But, as noted supra, while an agency must prepare and take a “hard look” at an EIS, it need not follow the recommendations within it. And if an agency decides not to base a siting or permitting decision on cultural property considerations, a court would likely defer to the agency’s decision.

D. Challenges Under the Public Trust Doctrine

Finally, offshore wind farm opponents could challenge development under the public trust doctrine. This doctrine provides that submerged lands are preserved for public use—for navigation, commerce, fishing, or recreation—by the state, and that the state must protect the public’s right to these uses of the waters.120 The public’s interests include “commercial and recreational navigation, natural scenic beauty, protection of fish and wildlife, preservation of aquatic habitat, protection of water quality, and

118 Id. 119 This was the case in Quechan Tribe of the Fort Yuma Indian Reservation, supra note 110, in which the court noted that the BLM archaeologist’s mitigation measures were adequate to protect the sites. 120 BLACK’S LAW DICTIONARY 859 (1991). See also Ill. Cent. R.R Co. v. Ill. 146 U.S. 387 (1892)( the Court applied the public trust doctrine to prevent the transfer of reclaimed Lake Michigan bottomland to a private railroad company, explaining that the land was inalienable unless made as a grant that would improve the public’s use of the land).

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other uses.”121 Plaintiffs using the public trust doctrine to challenge onshore wind farms have argued that wildlife is a public trust resource and that the killing of birds by wind turbines, constitutes a violation of that trust.122 Some of the opponents to Cape Wind have also alleged that the project violates the public trust. In Alliance to Protect Nantucket Sound v. Energy Facilities Siting Board, local residents argued that the local agency that granted Cape Wind a permit had no authority to consider issues related to the public trust, an argument that the court rejected.123 Offshore wind farms will have to contend with each state’s own public trust doctrine.124 Michigan’s Supreme Court has recently reaffirmed its adherence to the doctrine as applied to the Great Lakes:

Under longstanding principles of Michigan’s common law, the state, as sovereign, has an obligation to protect and preserve the waters of the Great Lakes and the lands beneath them for the public. The state serves, in effect, as the trustee of public rights in the Great Lakes for fishing, hunting, and boating for commerce or pleasure.125

A challenge to a wind energy project on Michigan’s Great Lakes based on public trust doctrine would need to show that the proposed action is likely to impair the public’s rights in one of these areas. The same arguments made in challenging environmental review of offshore wind projects, supra, could be made in an action alleging violation of the public trust; i.e. that turbines pose threats to wildlife, fisheries, and other environmental hazards that the state has a duty to protect.

121 HARNESSING WISCONSIN’S ENERGY RESOURCES, supra note 35, at 111. 122 Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal. App. 4th 1349, 1359 (1st Dist. 2008). 123 Alliance to Protect Nantucket Sound v. Energy Facilities Siting Bd., 932 N.E.2d 787, 676-677 (Mass. 2010)(the court held that the legislature had properly delegated authority to administer public trust rights when it authorized the siting board to issue licenses for structures in the Commonwealth’s tidelands). 124 Conger, supra note 40, at 757-58. 125 Glass v. Goeckel, 473 Mich. 667, 678-79 (Mich. 2005) (footnote omitted).

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E. Challenges Alleging Violations of Treaty Rights

Treaty rights are discussed more fully below. But note that because of the potential environmental threats posed by wind farms, a cause of action may exist to challenge a state’s ability to issue wind energy permits because they could affect the exercise of treaty rights. Violations of treaty rights are actionable in federal courts.126 But exactly what actions have violated treaty rights is a legal determination. Courts have recognized that states have a duty to protect natural resources so that tribes can exercise their treaty rights, or manage natural resources in a manner that does not interfere with treaty rights. In a sub-proceeding of United States v. Washington, tribes and the United States sued to compel the State of Washington to repair or replace culverts blocking salmon from returning to their spawning grounds.127 The Tribes alleged that the culvert problem so degraded fish habitat as to impair their exercise of treaty rights. Moreover, they argued that the Stevens Treaties imposed a duty upon the State to maintain fish habitat such that no diminishment of the harvest occurs. While the court granted the Tribes’ motion, it stopped short of supporting the idea that the Treaties imposed an environmental servitude on the territory; the court said that “the Treaties do impose a duty upon the State to refrain from building or maintaining culverts in such a manner as to block the passage of fish upstream or down, to or from the Tribes’ usual and accustomed fishing places,” but this does not impose an affirmative duty on the State to do all it can to protect fish runs.128

The existing and novel challenges to wind farms will apply to offshore wind energy projects, and tribes may use these theories to protect existing treaty rights in Great Lakes waters as wind energy is developed there. Treaty tribes around the Great Lakes have varying, but enforceable interests in the waters that must be considered when regulations for wind energy are promulgated.

126 See STEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES 56 (2012). 127 United States v. State of Washington, CV 9213RSM, 2007 WL 2437166 at *1 (W.D. Wash. Aug. 22, 2007). 128 Id. at 10.

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IV. TREATIES AND TREATY RIGHTS

This section provides an overview of treaties and treaty rights. I discuss four topics within this area of law, because these are necessary to understand how off reservation treaty rights have been secured for the Great Lakes. Additionally, these four topics would be implicated in any exercise of treaty rights in this region. These topics are tribal sovereignty, the reserved rights doctrine, the Indian Canons of Construction, and treaty abrogation.

A. Treaty-Making and Tribal Sovereignty

Sovereignty is most basically defined as “the inherent right or power to govern.”129 The present right of tribes to govern their members and territories flows from a historical and preexisting independence and right to self-government that has survived, albeit in diminished form, through centuries of contact with Euro-American society.130 Colonial governments interacted with native nations on a government-to- government basis—that is, by engaging in diplomatic relations, making treaties, and respecting the right of tribes to govern their internal matters themselves.131 The principle that Indian tribes are sovereign nations was first articulated in Worcester v. Georgia, in which the Court described the Indian nations as “distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.”132 This sovereignty is not a power delegated by Congress, but one that stems from indigenous political power predating European colonization.133 While not originating with Congress, tribal sovereignty is nonetheless subject to Congressional limitation, as a consequence of their inclusion within the United States.134 In the Court’s words, Indian tribes are “domestic, dependent nations,” nations whose sovereignty may be extinguished at any time by (express) act of

129 WILLIAM CANBY JR., AMERICAN INDIAN LAW IN A NUTSHELL 76 (2009). 130 COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.01 [1] [a] at 207(2012) [hereinafter COHEN’S HANDBOOK]. 131 PEVAR, supra note 126, at 5-6. 132 Worcester v. Georgia, 31 U.S. 515, 559 (1832). 133 COHEN’S HANDBOOK, supra note 130 at 207. 134 Id.

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Congress.135 Today, it is understood that “Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.”136

The United States continued the practice of sovereign-to-sovereign treaty making from the time of the founding until 1871, when treaty making officially ended.137 By this time, the United States had entered into hundreds of treaties with Indian tribes,138 all of which, until expressly abrogated by Congress, are the supreme law of the land.139 Peacemaking was certainly a goal in many treaties, but extinguishment of aboriginal title was the federal government’s primary objective.140 Most Indian treaties were treaties of cession, in which the tribe ceded part of its territory to the United States for consideration, usually in the form of annuities, provisions, protection (peace) and other land.141 What a tribe held on to— what it reserved—was its reservation.

B. The Reserved Rights Doctrine

In addition to reserving a portion of its land in a treaty, tribes often reserved the rights of hunting, fishing, and gathering in the ceded territory. Concomitant with aboriginal title—their undisputed possession of the soil recognized in Worcester v. Georgia—are usufruct rights. Many tribes relied heavily on hunting, gathering, and fishing.142 The Court recognized this in United States v. Winans, where it noted that these rights “were not much less necessary to the existence of the Indians than the atmosphere they breathed.”143 Indians reserved such rights in treaties because their livelihoods depended on the natural resources existing in large areas, and they knew that the small reservations of land they were withholding for

135 Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831). 136 United States v. Wheeler, 435 U.S. 313, 323 (1978). 137 COHEN’S HANDBOOK, supra note 130, § 1.03[9] at 70 (although the United States could no longer enter into treaties with tribes, the treaty process was simply replaced with agreements, statutes, and executive orders). 138 PEVAR, supra note 126, at 46. 139 COHEN’S HANDBOOK, supra note 130, § 18.07 at 1190. 140 Id. 141 Id. §§ 1.02-1.03 at 8-71. 142 COHEN’S HANDBOOK, supra note 130, § 18.01 at 1154. 143 United States v. Winans, 198 U.S. 371, 381 (1905).

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habitation would not support them. This fact was recognized by United States treaty negotiators, who often yielded to the Indians’ needs on this point by conceding a reservation of treaty rights on ceded lands. Thus, the issue of off-reservation treaty rights involves the conflict of three facts: (1) the treaty rights are rights to natural resources on lands that the Indians have willfully alienated in exchange for consideration; (2) after alienation, these lands were purchased by white settlers who believed them to be unencumbered; and (3) the land is not Indian land but land over which states have clear regulatory authority.144

In conflicts over treaty rights, courts rely on the reserved rights doctrine. This doctrine was articulated most precisely in Winans, in which the Court, ruling on treaty fishing rights in Washington State, said that the treaty with the Yakima Indians “was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.145 That is, as expressed above, Indian treaties do not describe what the United States is granting the tribe, but rather what the Indians are granting the United States and the tribe reserves that what is not expressly granted.146 The reserved rights doctrine has been a pivotal factor in major treaty rights cases147 and would certainly be implicated in any attempt to assert treaty rights to harnessing the wind. Rights to specific natural resources need not be enumerated in treaties.148 However, many treaties do impose geographic and other limitations on the exercise of treaty rights.149

144 Treaty rights have been likened to easements running with burdened land. See COHEN’S HANDBOOK,, supra note 130, § 18.02 at 1157 (citing United States v. Winans, 198 U.S. 371, 381 (1905)). On tribal land, treaty rights are not at issue because “[t]ribes generally retain exclusive rights to the use of land within their territories, unless those rights have been abrogated by treaty or statute.” COHEN’S HANDBOOK, supra note 130, § 17.01 at 1106. 145 United States v. Winans, 198 U.S. 371, 381 (1905). 146 See also Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). 147 See Karen Ferguson, Indian Fishing Rights: Aftermath of the Fox Decision and the Year 2000, 23 AM. INDIAN L. REV. 97, 1998. 148 COHEN’S HANDBOOK, supra note 130, § 18.04 [2] [a] at 1164; and § 18.04 [2] [e] at 1169. 149 Id. at § 18.04 [2] [e] at 1169-1174.

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C. The Indian Canons of Construction

Another principle of treaty interpretation that would certainly arise is that of the Indian Canons of Construction. These canons are court-made guidelines that trace back to the Cherokee Cases.150 There, the Court explained that the plenary power of the federal government to control Indian affairs comes with a corollary trust responsibility to act in the Indians’ best interests.151 But more popularly the canons are thought to protect Indian interests by recognizing that most, if not all, Indian treaties were negotiated in a context of significant power imbalances.152 The Indian Canons of Construction are that: (1) treaties, agreements, statutes and executive orders are to be liberally construed in favor of the Indians; (2) all ambiguities are to be construed in favor of the Indians; (3) treaties and agreements are to be construed as the Indians would have understood them at the time of signing (which requires looking at the broad historical context of the treaty signing); and (4) tribal property rights and sovereignty are preserved unless Congress’ intent to the contrary is clear and unambiguous.153

Courts have applied the Indian canons of construction in a long line of treaty rights cases in Washington, Wisconsin, and Michigan.154 These cases have upheld off reservation treaty fishing rights as well as rights to other kinds of natural resource procurement. Any attempt at expanding treaty rights would necessarily involve recourse to the Indian Canons of Construction to interpret applicable treaty provisions.

150 Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); Worcester v. Georgia, 31 U.S. 515 (1832); see also COHEN’S HANDBOOK, supra note 130, § 2.02 [2] at 116-118. 151 See also United States v. Kagama, 118 U.S. 375, 384 (1886) (“[t]hese Indian tribes are the wards of the nation. […] From their very weakness and helplessness […] there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.”). 152 PEVAR, supra note 126, at 51. 153 COHEN’S HANDBOOK, supra note 130, § 2.02 [1] at 113-114. 154 Karen Ferguson, Indian Fishing Rights: Aftermath of the Fox Decision and the Year 2000, 23 AM. INDIAN L. REV. 97, 142 (1998). See also COHEN’S HANDBOOK, supra note 130, § 18.02 at 1156.

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D. Treaty Abrogation

Finally, in interpreting treaties, courts must consider whether the treaty in question has been abrogated. The reduction or termination of treaty rights, or any aspect of sovereignty, is within the broad plenary power of Congress over Indian affairs.155 However, in recognition of tribal sovereignty and the United States’ trust responsibility under existing treaties with Indian tribes (principles reflected in the canons of construction, supra), legislation abrogating treaties or diminishing tribal lands or sovereignty must be clear in expressing the intent of Congress to do so.156 This can be evidenced by an express statement of abrogation or by implication when it is clear that “Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other and chose to resolve that conflict by abrogating the treaty.”157 Treaties may be abrogated in whole or part; therefore, an attempt to assert treaty rights to harness the wind in ceded territory could fail despite the reservation of hunting and fishing rights if it is determined that Congress intended the right to be extinguished.

V. TREATY RIGHTS ON LAKE MICHIGAN

To take advantage of the most productive wind resources on the Great Lakes, developers would need to construct wind farms on waters that are part of the territory ceded by the Ottawa and Chippewa Indians of Michigan. The continued existence of treaty rights in these waters was upheld in United States v. Michigan.158 In this section, I discuss the relevant treaties and major decisions affecting treaty rights on these waters. More importantly, I extract and describe the test used in United States v. Michigan. This test would be applied in any attempt by Michigan treaty tribes to assert a treaty-based right to harness wind on the ceded waters of Lake Michigan.

155 Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903). 156 COHEN’S HANDBOOK, supra note 130, § 18.07 [1] at 1190. 157 United States v. Dion, 476 U.S. 734, 738-740 (1986). 158 United States v. Michigan, 471 F. Supp. 192, 205 (W.D. Mich. 1979).

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Between 1785 and 1871, the United States entered into forty-four treaties with the Ottawa and Chippewa Indians of Michigan.159 The most important of these were the Treaties of July 6, 1820, 7 Stat. 207, March 28, 1836, 7 Stat. 491 (known as the Treaty of Washington), and July 31, 1855, 11 Stat. 621 (also called the Treaty of Detroit). These treaties cover the primary land cessions of the Ottawa and Chippewa Indians— amounting to about a third of what is now the State of Michigan and including much of the Great Lakes. The land claims deriving from these treaties were litigated through the Indian Claim Commission and settled by the Michigan Indian Land Claims Settlement Act.160 The claims of reserved treaty rights were decided in United States v. Michigan (called the Fox decision after its author, Judge Noel Fox) and several subsequent negotiated Decrees coming from that court.161

In the Upper Great Lakes, treaty rights had been greatly eroded away.162 By the middle of the 20th century, Ottawa and Chippewa Indians lived in largely unrecognized bands, with diminished reservations, and under State attempts to regulate their fishing.163 In 1973, Michigan treaty Tribes and the United States sought to enjoin the State of Michigan from interfering with the Indians’ treaty rights to fish in the Great Lakes.164 These waters are part of the territory ceded in the Treaty of 1836. This treaty states, in pertinent part, that “[t]he Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the land is required for settlement.”165

The central issue before the court was whether the Indians could fish in the Great Lakes free from state interference because they had reserved that right in the Treaty of 1836; in other words, whether such

159 26 Ind. Cl. Comm. 538, 544 (1971). 160 See Ind. Cl. Comm. Consolidated Dockets Nos. 18E and 58; Michigan Indian Land Claims Settlement Act, Pub. L. No. 105-143 (1997). 161 United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979); 2000 Consent Decree; 2007 Inland Consent Decree. 162 See MATTHEW L.M. FLETCHER, THE EAGLE RETURNS: THE LEGAL HISTORY OF THE GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS (2012). 163 Id. at chapter 5. 164 United States v. Michigan, 471 F. Supp. 192, 203 (W.D. Mich.1979). 165 Treaty of Washington, art. XII, March 28, 1836, 7 Stat. 495.

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fishing is one of the “usual privileges of occupancy.”166 The court answered the treaty fishing rights issue in the affirmative, largely by reliance on the reserved rights doctrine but also on the Indian canons of construction. In applying the reserved rights doctrine, the Fox court construed the Treaty of Washington to reserve fishing rights in the waters of the Great Lakes despite there being no grant of those rights to the Ottawa and Chippewa Indians, nor even any explicit reservation of them in the treaty itself:

[T]he reserved right to fish in the ceded waters of the Great Lakes rests on its implied reservation from the grant of land from the Indians to the United States and also on Article Thirteenth. The right is implied because it was never explicitly ceded away by the Indians; thus, they retained it. The reason it was not granted was because the Indians were too heavily dependent upon fish as a food source and for their livelihood to ever relinquish this right.167

This dependency was revealed by the intense historical investigation undertaken by the court, guided by the Indian canon of construction, which demanded that treaties be construed as the Indians would have understood them at the time of signing.168

Liberal use of reserved rights doctrine could, in theory, present unlimited opportunity for tribes to claim reserved rights. To reign in tribal claims to treaty rights, the court noted that “[i]n order for the right to exist in the first instance, it must be shown that the Indians were in fact using the resource, i.e., that they exercised this right, subsumed within their larger, aboriginal right to their land and water.”169 The “factual predicate” for reserved rights, “is the documented historic, ethnohistoric, anthropologic and archaeological evidence proving” them.170 In this case,

166 Two other issues were considered: whether any reserved rights were abrogated by the Treaty of 1855, and whether the treaty deprives the State of all authority to regulate the exercise of treaty rights, specifically Indian fishing in the Great Lakes. 167 United States v. Michigan, 471 F. Supp. 192, 259 (W.D. Mich.1979). 168 Id. at 253. 169 Id. at 213. 170 Id.

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this meant that ethnohistorical evidence of subsistence and commercial fishing was a prerequisite to showing the reserved right. It would seem that the court established a test for determining whether an activity is included as one of the “usual privileges of occupancy” under Article Thirteenth of the Treaty of 1836. If a plaintiff tribe can demonstrate, through ethnohistorical evidence, that a particular right was exercised during treaty times, then it is one of the usual privileges of occupancy.

Here, the court held that the Tribes did make this showing— plaintiffs’ experts demonstrated that Indians had fished the Great Lakes waters for subsistence purposes for centuries, and had, at the time of the treaty, been involved in commercial fishing to trade for European goods, which they were dependent on by then. Therefore, the Tribes “possessed an aboriginal right to fish in those waters for subsistence and commercial purposes.”171 Furthermore, the court stated, this reserved right to fish is not restricted in any way; it “is not affected by the passage of time or changing conditions.”172 This means that the right is not limited to any kind of fish, or methods, and can grow with the commercial market.173

Expert witnesses also attested that the phrase “usual privileges of occupancy,” which appears in other treaties, was included to assure the Indian signatories that they could continue to live in the manner they were accustomed to.174 The court pointed to a letter written by Indian agent and treaty negotiator Henry Schoolcraft to his superiors explaining that “Article Thirteenth would allow the Indians to continue to use all of the land and water resources of the ceded area . . . .”175 The court then stated that the usual privileges of occupancy “includes the use of all natural resources for economic and ceremonial purposes and for travel.”176

171 Id. at 278. 172 Id. at 260. 173 See also United States v. Winans, 198 U.S. 371, 381 (1905)(in which the Supreme Court similarly held that in exercising treaty rights, Indians are not limited to the technology that they had at the time of the treaty). 174 United States v. Michigan, 471 F. Supp. 192, 235 (W.D. Mich.1979). 175 Id. at 236. 176 Id. at 235 [emphasis added].

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This broad reservation of rights to natural resources was conditioned only by the phrase “until required for settlement.” Plaintiffs’ experts testified that the Indians would have understood this to mean that they could use the ceded land until white settlers occupied it—meaning indefinitely, with the further understanding that some of the lands would never be settled because they were unsuitable for farming. Therefore the court held that “until required for settlement” meant “as long as Indians lived in Michigan.”177 Regarding “settlement” itself, the meaning of this term was not determined. Historical materials presented by plaintiffs’ experts indicated that “settlement” was used in its “normal” sense, but the court noted that since the Great Lakes waters cannot be “settled,” the limitation will never impact fishing there.178 Importantly, United States v. Michigan demands that as long as these treaty tribes live in Michigan, they have reserved treaty rights to any and all natural resources of the ceded waters of Lake Michigan, which they may use for subsistence, ceremonial, or commercial purposes.

VI. ASSERTING TREATY RIGHTS TO HARNESS THE WIND ON THE GREAT LAKES

As the regulatory gap in Great Lakes wind energy development closes, treaty tribes should assert their status as stakeholders in the process. Offshore wind energy poses specific threats to fisheries and navigation, and presents a range of environmental unknowns that could affect the exercise of treaty fishing rights in the Great Lakes. For this reason alone, tribes should not wait until regulations are in place and environmental review underway to consider the impacts of offshore wind energy on their treaty rights.

But treaty tribes should be seen as more than just interested parties in the regulatory development and environmental review processes. Tribes are sovereigns and should have equal standing in the MOU forming the Great Lakes Offshore Wind Energy Consortium. Reserved treaty rights not only allow for natural resource procurement in the ceded territory but also allow tribes to regulate the hunting, fishing, and gathering activities of

177 Id. at 235, 238. 178 Id. at 279. See also COHEN’S HANDBOOK, supra note 130, § 18.04[2][e] at 1173.

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tribal members in the ceded territories while preventing states from interfering with the exercise of those rights.179 Courts have upheld tribal jurisdiction over the exercise of treaty rights in ceded territories.180 The significance of this should not be underestimated. Essentially, it means that there would be a further regulatory gap if treaty rights to wind were recognized because states would be unable to impose their regulations on tribal wind projects. Currently, the Court recognizes state regulation of tribal members’ exercise of off reservation treaty rights only in the interest of conservation. In Settler v. Lameer, a Yakima citizen challenged his prosecution by the tribe for violations of tribal fishing regulations off the reservation, in ceded territory.181 The court affirmed the tribe’s civil jurisdiction over the matter, stating “the regulation of these activities with respect to off-reservation fishing is within the scope of the rights retained by the Yakima Nation in the Treaty of 1855.”182 The court held that the inability of the state to exercise jurisdiction over this violation of tribal law stemmed from the limitation on state regulation of treaty rights laid down by the Supreme Court in Minnesota v. Mille Lacs Band of Chippewa Indians.183 There the Court said that states may only impose “reasonable and necessary nondiscriminatory regulations on Indian hunting, fishing, and gathering rights in the interest of conservation.”184 If a treaty right to wind is established, infringing upon the exercise of it under the guise of conserving the wind may be a difficult basis for state regulation.

179 COHEN’S HANDBOOK, supra note 130, § 18.04 [1] at 1163; United States v. Michigan, 471 F. Supp. 192, 274 (W.D. Mich.1979)(as incorporated by the Fox court: “[b]oth [treaty tribes’] treaty rights include the power to regulate their members so long as they are fishing under tribal regulation and in the area ceded by the Treaty of 1836. Both tribes presently exercise that power and regulate the fishing activities of their members. This regulation preempts any state authority to regulate the fishing activity of the tribal members.”). 180 COHEN’S HANDBOOK, supra note 130, § 6.01 [5] at 503, § 7.02[1] [c] at 603. 181 Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974). 182 Id. at 238. 183 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). 184 Id. at 205 (citing Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 398 (1968)).

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A. Wind as a Natural Resource

Beyond safeguarding existing rights and asserting a seat at the table, Great Lakes treaty tribes should take the opportunity to expand their treaty rights by claiming the right to harvest wind energy as a right reserved by treaty. There are two goals for such an assertion of rights. First, tribes would have a greater stake in the development of offshore wind energy and would be in a better position to stop agency action adverse to their interests. Second, tribes could develop wind energy themselves. They could do this because the Fox court determined that the “usual privileges of occupancy” includes the use of all natural resources in the ceded territory for economic purposes (and the Great Lakes include a good deal of ceded territory). However, this hinges on a determination of wind as a natural resource, which is a determination that a state legislature or a court needs to make. One possibility, in Michigan, would be to interpret existing legislation as already including wind as a natural resource. The Michigan Environmental Protection Act (MEPA)185 grants a cause of action for the protection of the air, water, and other natural resources from pollution, impairment, or destruction.186 The Natural Resources and Environmental Protection Act (NREPA)187 regulates the use of natural resources in Michigan.188 Both MEPA and NREPA recognize air as a natural resource, but it is not clear if wind should be equated with air in this manner and be considered a natural resource under these statutes.

Alternatively, tribes could look to how the nature of wind, as a natural resource and as a property interest attached to or severable from the land, is being determined judicially and legislatively. The question of what property rights regime will be applied to wind is unsettled. As wind power has become a marketable commodity like minerals or gas, the practice in some areas has been to follow the mineral model and treat the

185 MICH. COMP. LAWS §§ 324.1701-324.1706 (1994). 186 9 Mich. Civ. Jur. Environmental Protection § 4. 187 MICH. COMP. LAWS § 324.101 (1994). 188 9 Mich. Civ. Jur. Environmental Protection § 1.

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rights to harvest the wind as severable from the surface estate.189 However, other courts have rejected the analogy and applied the rule of capture to wind.190 Under this theory, wind has no value until reduced to possession.191 In Romero v. Bernell, the court explained “[w]ind is never embedded in the real estate; rather, it is more like water or wild animals which traverse the surface and which do not belong to the fee owner until reduced to possession.”192 What counts as possession of wind is theorized as requiring “that it be focused on driving the fins of a wind [turbine] which turn a generator and ultimately generates electricity.”193 But before capture and possession, wind, as with wild animals, may be considered the property of the state. Currently, states are experimenting with legislative efforts regarding wind capture. While some states have crafted a property rights scheme for harnessing the wind, in the form of wind easements, most states have preferred to use programs of incentives and zoning restrictions to regulate the industry.194

B. Asserting Treaty Rights to Wind Using the Fox Test

Another option for tribes would be to argue for the determination to be made using the Fox test. The Fox court, like other courts interpreting treaty rights, understood that the sum total of reserved treaty rights was not contained in the text of treaties or court decisions on the issues before

189 K.K. DuVivier, Animal, Vegetable, Mineral—Wind? The Severed Wind Power Rights Conundrum, 49 WASHBURN L.J. 69 (2009); see also Lisa Chavarria, Wind Power: Prospective Issues, 68 TEX. B.J. 832 (Oct. 2005). 190 The capture rule, most famously described in Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805), states that wild animals, in their natural habitats, are unpossessed until captured. The first person to kill or capture a wild animal acquires title to it. The principle was traditionally applied to underground oil and gas because they were, like wild animals, free to move about until “captured” by a person, who then becomes the owner. The common law of capture, as pertaining to oil and gas, has been superseded by statute. 191 Romero v. Bernell, 603 F. Supp. 2d 1333 (D.N.M. 2009) (citing Contra Costa Water Dist. v. Vaquero Farms, 68 Cal. Rptr. 2d 272 (Cal. Ct. App. 1997)) (“[t]he right to ‘harvest’ wind energy is, then, an inchoate interest in the land which does not become ‘vested’ until reduced to ‘possession’ by employing it for a useful purpose. Only after it is reduced to actual wind power can wind energy then be severed and/or quantified.”). 192 Id. 193 Terry E. Hogwood, “Against the Wind,” Oil, Gas and Energy Resources Law Section Report Vol. 26, Number 2, at 6 (December 2001). 194 Alexandra B. Klass, “Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy,” 38 ECOLOGY L.Q. 63, 106-110 (2011).

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it. Instead, the court envisioned a process—a test—for determining what future activities may be construed as the exercise of treaty rights. The Fox test begins by assuming that all rights to exploit natural resources in the ceded territory were included within “the usual privileges of occupancy” and thus reserved by tribes, which limits this set by imposing the predicate that the right must have existed at the time of the treaty. By this logic, contemporary tribes can engage in commercial fishing because their ancestors were engaged in commercial fishing at the time of the treaty, and not simply because their ancestors fished in the past. It would seem that the Fox test would require a tribe to show that, at the time of the treaty, it was engaged in practices that harnessed the wind. Evidence of sailing or windmill use would suffice, but these are not technologies indigenous to the Americas. If it were shown that Great Lakes tribes had adopted these technologies, or others involved in harnessing the wind, then the Fox test would likely be met, as the adoption of Western practices was used to establish treaty rights in United States v. Michigan.

After categorizing the harnessing of wind as a treaty right, one must determine whether these treaty rights have been abrogated. Therefore, as regulations are promulgated to develop wind energy on the Great Lakes, the question becomes: is there anything in the emerging regulations that expressly or impliedly states Congress’ intent to abrogate the treaties? As noted above, courts have required a clear and unequivocal expression by Congress to find abrogation. This means that as states formulate a regulatory framework for their waters, they may be incapable of unilaterally foreclosing a possible wind estate for treaty tribes.

C. Regulating Off Reservation Tribal Wind Projects

If a treaty right to harness the wind on the Great Lakes were successfully advanced, then the question arises as to how to exercise the right. Who would regulate tribal wind farms in ceded waters? The state would unquestionably have the authority to regulate wind energy projects, and applicable federal law would still be in force. But tribal members exercising treaty rights off reservation are under the jurisdiction of their

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tribe.195 In the treaty fishing rights context, the problem of regulation has been addressed by the use of state-tribal compacts and agreements, and with the practice of co-management.196 In both the Pacific Northwest and the Great Lakes, tribal-state cooperation in regulating treaty fishing has led to the protection of tribal interests, state interests, and the interests of commercial and recreational fishers. It has also led to the avoidance of costly and protracted litigation. Such compacts demonstrate that tribal development of offshore wind resources need not be exclusive of state and private development. However, if treaty rights to wind are never asserted, tribes will be sidelined as development proceeds without them.

CONCLUSION

Wind energy is a rapidly growing industry, and the centerpiece of many strategies for clean, renewable energy. But, currently, wind energy projects face great regulatory uncertainty. Additionally, there is no anticipated role for tribes, except as parties whose interests may be affected. As a framework for offshore wind energy development in the Great Lakes emerges, treaty tribes, Michigan treaty tribes in particular, should assert stakeholder status not only to protect their interests but also to participate as sovereigns in the regulatory process. Moreover, Michigan treaty tribes could assert a reserved right to the production and transmission of energy generated from wind resources on Lake Michigan as an expansion of recognized treaty rights. Such an assertion would further affirm and enhance tribal sovereignty.

195 See id. at n.204. 196 COHEN’S HANDBOOK, supra note 130, § 18.08 at 1200.

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THE UNEXTINGUISHED MILITIA POWER OF INDIAN TRIBES

Seth Fortin*

INTRODUCTION

Sovereigns in the United States have military power: the federal government has the power to “[t]o raise and support Armies,”1 while States, subject to some limitations, maintain militias.2 But where do Indian tribal governments fit into this picture? Do tribes have some sort of equivalent power arising out of their retained inherent sovereignty? Or has tribal military power been impliedly or explicitly curtailed somewhere? Moreover, because almost every Indian reservation is encompassed by both state and federal borders, is there any need for the tribes to exercise a military power today?

This article suggests that, for some Indian tribal governments, a local militia of the people—raised, trained, and managed in accordance with the particular needs and military customs of that tribe—might be a valuable adjunct to tribal police and emergency services. A tribal militia might also be useful as an institution for shaping and transmitting certain cultural values. Raising a tribal militia—or even contemplating such a step—could be a powerful affirmation of tribal sovereignty within the American constitutional framework.

However, use of military power implicates the danger of abuse, and that danger is reflected in the history of militias and militia-like organizations in Indian country. Moreover, the use of the militia power in an internal, on-reservation capacity has sometimes occasioned paternalistic responses by the United States and Canadian governments.

* J.D. Candidate, UCLA School of Law, Class of 2014. The author would like to thank Angela Riley for her guidance, Peter Nabokov for his useful suggestions about historical reading, and Michael Smith and Elana Fortin for reading drafts of this article.

1 U.S. CONST., art. I, § 8. 2 The states train the militias and appoint their officers, while Congress arms them and prescribes the discipline by which they are to be organized. Id. Although governors normally command the militias, the President may use state militias “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Id.

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Although this article arrives at the ultimate conclusion that tribes today retain a limited militia power, that conclusion is by no means automatic. Tribes would face real practical challenges in implementing a militia program. A highly-trained and well-equipped militia is an expensive proposition. On the other hand, there may be models of militia organization that can achieve some important tribal goals even without professional training and equipment. The organization of a militia could provide a vehicle through which tribes could obtain additional funding from the federal government.

Part I of this article examines definitions of “the militia” under Anglo- American theory and surveys the use of militia and militia-like organizations in 19th- and 20th-century Indian history. Such historical examples show both that militias are not alien to Indian country and that they are not without certain perils. Part II looks to treaties, federal statutes, and state law to determine what military powers tribal governments might still be able to exercise. Part III briefly sketches some reasons why a tribal government might be interested in exercising a militia power. Some of these reasons are immediate and practical, while others are tied to more general interests in cultural and political sovereignty. Part IV examines three possible models for a contemporary tribal militia: a select militia, a universal citizen militia, and a militia under the National Guard framework. Each model has certain advantages and disadvantages, and likely no one model is ideal for every tribal government. Nonetheless, this article concludes that a tribal militia could offer real advantages to tribal governments that are perpetually under-funded and face serious threats to the safety of their members.

I. WHAT IS A MILITIA?

What is a militia? This question turns out to be one without a clear answer—or at least, a question with several competing answers.3 The broadest definition would be “a fighting or security force drawn from the people, rather than a professional ‘standing’ army.” Yet this definition fails

3 See infra notes 4-19, 78-104, and accompanying text.

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to capture two issues that, at least in the Anglo-American tradition, have always been contentious.

First, there is a tension between the idea of the militia as an institution representing “the people” as a whole and the practical need of the government to use the militia as an instrument. The more representative and all-encompassing the militia is, the less the militia can be adequately trained and made into a useful force. Conversely, a smaller militia is more easily trained and equipped, but because it is less representative it may be seen as a partisan tool of repression.

Second, the militia is often distinguished from an army in terms of its duties. In the American constitutional framework, “armies” and “navies” fight foreign wars, while the militia is often thought to have the duties of maintaining order in, and repelling invasions of, the homeland. This division, as we shall see, may be keenly important when discussing what remains of the tribes’ inherent military powers.

Furthermore, Anglo-American thought recognizes two possible types of official militia organization: a universal militia, made up of the people as a whole, and a “select” militia, which is smaller and (usually) composed of semi-professional soldiers. Lurking in the background is a third, more troublesome definition, which describes the militia as a spontaneous, unofficial organization of the people in response to tyranny.

This section will examine the various types of militias, discussing their strengths and weaknesses. Each type of militia has had some analogue in Indian country, either historically, in modern times, or both. Some of the described historical Indian militias should serve as models for thinking about the benefits and perils of the militia for tribal governments.

A. Select Militias and Universal Militias

In early American political thought select militias were viewed with some suspicion. In England, under the Stuarts, the formation of a select militia (distinct from the regular or universal militia) often went hand-in-

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hand with laws affecting the disarmament of the people,4 and select militia members were required to swear never to take up arms against the king.5 Charles II used a combination of loyal regular militia units and a second “volunteer” militia to disarm the regular militia and, more disturbingly, to monitor and harass dissidents.6

Familiar with this history and the political fights it engendered,7 many Founding-era Americans were suspicious of a select militia and feared that a strong national government would impose one on the people. The “Federal Farmer,” an Anti-Federalist writer, thought that “the constitution ought to secure a genuine and guard against a select militia . . . .”8 “Congress,” said John Smilie during Pennsylvania’s ratification convention “may give us a select militia which will, in fact, be a standing army. . . .”9 Further, he worried, “[w]hen a select militia is formed; the people in general may be disarmed.”10 Others also felt that a select militia was just the “artful introduction” of a standing army, which would be used for political oppression.11 Additionally, the Anti-Federalist minority at the

4 William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136 MIL. L. REV. 1, 21 (1992) (“[A]rms confiscations under the Militia Act were a widespread grievance. Sir Richard Temple, for example, criticized the militia bill as containing the power to disarm all England.”); id. at 12-13 (“[T]he 1662 Militia Act empowered lieutenants of the Militia to confiscate all arms owned by any person ‘judged dangerous to the peace of the kingdom’ . . . [and] parliament enacted amendments to the Hunting Act in 1671 that were designed to disarm the non-landowning population.”). 5Id. at 12. 6 JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 35 (1994). (“Charles instructed his lieutenants to . . . monitor the ‘motions’ of ‘suspected’ persons and . . . [that their] weapons were to be seized at once and employed for the use of the trained bands.”). 7 Id. at 142 (“The American colonists followed the lively English debates over the retention of a standing army . . . [and] were also alert to the dangers of a ‘select militia’ . . . .”). 8 Letter from the Federal Farmer to the Republican No. XVIII (Jan. 25, 1788), in THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION DIGITAL EDITION 362 (2009), available at http://rotunda.upress.virginia.edu/founders/RNCN.html (last visited Jan. 4, 2014) [hereinafter DOCUMENTARY HISTORY]. 9 Speech by John Smilie to the Pennsylvania State Convention (Dec. 6, 1787), in DOCUMENTARY HISTORY, supra note 8, at 509. Standing armies were generally distrusted as instruments of autocracy and oppression; Elbridge Gerry called them “the bane of liberty.” 1 ANNALS OF CONGRESS 778 (1789). 10 Smilie, supra note 9. 11 Hugh Hughes, “A Countryman” V, NEW YORK J. (Jan. 22, 1788).

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Pennsylvania convention was worried that Congress would use a select militia to collect unpopular taxes.12

The Founders generally preferred a universal militia, comprised of the “body of the people”—a phrase used in early drafts of the Second Amendment,13 as well as some of its state-level predecessors.14 Soon after the adoption of the Constitution, the (Federalist) Congress actually created a militia. It turned out the Anti-Federalists’ fears of a select militia running wild through the countryside were overblown. The Militia Act called for “each and every free able-bodied white male citizen” to be enrolled in the militia.15

Despite its intuitive appeal, the universal militia was not without its drawbacks. Alexander Hamilton noted a key problem:

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it.16

Indeed, for the most part the universal militia was not well trained. As Frederick Wiener pointed out on the eve of World War II, the universal militia had never been an effective tool of national defense or national policy at either the Founding or in the century-and-a-half since.17 Moreover, many militia members, noting that the Constitution

12 The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, PENNSYLVANIA PACKET (Dec. 18, 1787), in DOCUMENTARY HISTORY, supra note 8, at 636. 13 Compare 1 ANNALS OF CONGRESS 451 (1789) (introducing a draft without the phrase), with DOCUMENTARY HISTORY supra note 8, at 778 (including the phrase). 14 MALCOLM, supra note 6, at 148 (“[T]he famous Virginia Bill of Rights of June 1776 expressly stated that ‘a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State.’”). See Virginia Declaration of Rights, § 13 (1776). 15 Militia Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271, (repealed 1903). 16 THE FEDERALIST, NO. 29 (Alexander Hamilton). 17 Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 188-90 (1940).

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contemplated only domestic uses of the militia,18 believed that they could not be compelled to fight abroad.19

Eventually, in a series of acts from 1901 to 1916, Congress mostly abandoned the idea of a universal citizen militia and opted instead for a semi-professional, select militia in the form of the National Guard, which would now be under joint federal and state control.20 The advantages were obvious—the Guard, equipped by the federal government and trained in accordance with a uniform plan, would now be a disciplined and capable fighting force. There was no longer any question of the scope of the militia’s duties because it was now a federal organ made up of volunteers, rather than the entire (male) body politic. It could now be called on to meet any and all public emergencies, including external warfare.

The English and American militias likely do not have exact analogues in the history of Indian North America. However, the issues that have arisen in the Anglo-American context may provide a useful lens through which to examine the historical use of military and paramilitary power by tribes and tribal governments.

1. The Citizen-Soldier in the Tribal Tradition

It is far beyond the scope of this paper to describe the practice of war in pre-contact or pre-reservation Indian societies, but a simple note will suffice: in many tribes, war seems to have been conducted by the whole body of the (fit) male citizenry as a part-time occupation. For example, 17th-century Jesuit missionaries in contact with the Haudenosaunee (Iroquois) reported that virtually the entire male population of a village would go out as a war party: “They go to war at a distance of two or three hundred leagues from their country . . . leaving in

18 The Militia Clauses of Article I, Section 8 only speak of using the militia to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” 19 See, e.g., DAVID STEPHEN HEIDLER & JEANNE T. HEIDLER, THE WAR OF 1812 56 (2002) (noting the refusal of militia units to cross into Canada); Wiener, supra note 17, at 190 (describing the use of volunteer, rather than militia, forces in the Mexican-American War). See also Charles Hughes, War Powers Under the Constitution, S. DOC. NO. 105 (1917). (“[T]he organized militia, as such, cannot be employed for offensive warfare outside the limits of the United States.”). 20 Wiener, supra note 17, at 197-201.

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their Villages, for whole years at a time, only their women and little children.”21 Karl Llewellyn and E. Adamson Hoebel note, in discussing Cheyenne military societies, that they were “[o]pen to all men of all ages, [and] they were of an ungraded type.”22 These groups functioned as “social fraternities as well as military societies.”23 Joe Sando similarly says, of the Jemez Pueblo, that “[e]very Jemez man belong[ed] to one of two societies, Eagle and Arrow, that ha[d] traditional functions dealing with defense and war.”24 Mary Eastman, who lived among the Sioux near Fort Snelling in the 19th century, suggests that warfare was a part of the “education” of all young male children.25 (She recounts, as an example, a “mimic war” in which young boys were ordered to attack a hornets’ nest; the hornets were considered their “enemies,” and the boys, after their battle, “entered [the village] as triumphantly as their fathers would have done.”26)

This is not to suggest that Indian societies did not differentiate among soldiers. J.R. Walker, a physician who lived among the Sioux in the late 19th century, wrote of a special class of highly-revered warrior:

The only duties of the Zuyawicasa, or Dakota soldiers, are to march and fight, and when not engaged in either of these they are not together as an organized body so that they are not under obligation to perform the ordinary duties of camp life. They considered such affairs as beneath their dignity, leaving it to the women to perform the manual labor, or to the Akicita who were appointed to enforce compliance with regulations . . . .27

Even Walker’s account suggests that this sort of warrior status was something most young men aspired to. He notes that the Akicita, or

21 THE JESUIT RELATIONS AND ALLIED DOCUMENTS 264-65 (1896-1901). 22 KARL N. LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASE LAW IN PRIMITIVE JURISPRUDENCE 99 (1941). 23 Id. at 101. 24 Joe S. Sando, Jemez Pueblo, in 9 HISTORY OF NORTH AMERICAN INDIANS: SOUTHWEST 425 (1979). 25 MARY HENDERSON EASTMAN, DAHCOTAH; OR, LIFE AND LEGENDS OF THE SIOUX 49 (1849). 26 Id. at 50-51. 27 J.R. WALKER, LAKOTA SOCIETY 77 (1982).

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“marshals,” were selected from the young men of the tribe who saw it as a “step towards becoming a leader of the people and a soldier.”28 Historian Royal Hassrick asserts that the Akicita societies were “founded upon the desire to be successful in war,” and that “[t]hey acted as a body both in war and as camp police.”29

Thus, although it would be a mistake to universalize “Indian” structures of military practice from a few examples, it is safe to say that pre-contact and pre-reservation Indian societies often regarded a great proportion of their male population as a soldier class. It is not clear that one can draw close analogies with the Anglo-American “militia” system— yet it is not a stretch to say that both types of society embraced the notion of citizen-soldiers.

Groups like the Sioux Akicita and the Cheyenne warrior societies, which were composed of a large portion of the male population and were the primary enforcers and police in tribal life, seem to mirror the Founding Generation’s militia ideal: civilian chiefs could make decrees, but they had to rely on “the people” (i.e., males in the military societies) perceiving those decrees as legitimate in order to get them enforced.30 Among the Cheyenne, structural barriers prevented civilian chiefs from also being soldier chiefs31—a separation of powers that doubtless contributed further to the independence of the citizen-military.

2. Select Militias in Indian Territory—the Light Horsemen, the Militia, and United States Interventionism

In the 19th century, paramilitary companies often provided internal security on Indian lands among the so-called “Five Civilized Tribes” in the

28 Id. at 78. 29 ROYAL B. HASSRICK, THE SIOUX : LIFE AND CUSTOMS OF A WARRIOR SOCIETY 91 (1964). 30 See THE FEDERALIST NO. 29 (Alexander Hamilton) (“There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia . . . . What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”). 31 LLEWELLYN & HOEBEL, supra note 22, at 102 (“[A] soldier chief was never permitted to be a tribal chief at the same time.”).

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Southeast.32 The very first written law of the Cherokee Nation33 provided for the formation of “regulating parties” of light-horsemen. A mid-19th- century (non-Cherokee) source described them as “persons of courage and intelligence . . . whose duty it was to ride through the nation, to decide all controversies between individuals. In the unsettled state of the community . . . much was left to their discretion . . . .”34 After the forcible removal of many southeastern tribes to the Indian Territory, the Cherokee National Council passed another bill establishing “a company of Light- Horse-men” to punish, among other things, murder, arson, and “endangering the peace and lives of the citizens of this Nation.”35

Rennard Strickland has claimed that during the post-removal period—a period marked by angry political disputes within the Cherokee Nation—the light-horsemen “degenerated into private groups of vigilantes, such as those suspected of executing the political vendettas of Chief John Ross.”36 Although allegations of murder and general brutality were lodged with Congress,37 it is unclear how much of the violence is attributable to the light-horsemen per se, rather than individual partisans.38 Nonetheless,

32 These were the Cherokee, Chickasaw, Choctaw, Creek, and Seminole nations, which had successfully adopted a variety of Anglo-American legal and social practices. 33 CHEROKEE NATION, LAWS OF THE CHEROKEE NATION 3-4 (1995) (RESOLUTION OF “THE CHIEFS AND WARRIORS IN A NATIONAL COUNCIL ASSEMBLED,” SEPT. 11, 1808), AVAILABLE AT HTTP://WWW.LOC.GOV/LAW/HELP/AMERICAN-INDIAN-CONSTS/PDF/28014184.PDF (LAST VISITED JAN. 4, 2014). 34 THOMAS L. MCKENNEY& JAMES HALL, HISTORY OF THE INDIAN TRIBES OF NORTH AMERICA WITH BIOGRAPHICAL SKETCHES AND ANECDOTES OF THE PRINCIPAL CHIEFS 89 (1849). 35 CHEROKEE NATION, supra note 33, at 130-31 (enactment of the National Council, Nov. 8, 1845). 36 RENNARD STRICKLAND, THE FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT 148 (1975). 37 See generally S. DOC. NO. 298 (Apr. 13, 1846). 38 Daniel Blake Smith presents the assassinations of several men associated with the “Treaty Party,” for example, as the work of organized partisans. Daniel Blake Smith, An American Betrayal: Cherokee Patriots and the Trail of Tears 1-2 (2011). And in The Murder of Elias Boudinot, 12 Chron. of Okla. 23 (1934), Ross’s son claimed that the assassination plan had to be kept from his father, who had stopped a previous attempt. Carolyn Thomas Foreman has gathered some of the conflicting accounts of partisan murders at the time. See The Light-Horse in the Indian Territory, 34 Chron. of Okla. 19- 22 (1956), available at http://digital.library.okstate.edu/Chronicles/contents/v034toc.html (last visited Nov. 24, 2013).

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some Cherokees complained of “a ‘police company’ . . . who arrested whom they pleased, without any responsibility whatever . . . .”39

American political leaders of the time used the testimony of angry Cherokee partisans to portray the Cherokee Nation as hopelessly fractured—and probably in need of federal intervention. President Polk used the violence and chaos in Cherokee territory to justify a threat to dismember the Cherokee Nation in order to keep the peace.40 That threat gave him leverage to force Chief John Ross to make key concessions, including acknowledging the validity of the Treaty of New Echota.41

The light-horsemen, however, may not have been a militia in the strictest sense; they were more a form of rough-and-ready law enforcement. (The difference between the two is not always apparent because a militia may also be called into service to perform law enforcement duties.42) It may be that the light-horsemen were appointed under an internal police power rather than any military power; the Cherokee statutes are silent on the point. However, there is another example from the same period of a tribe using a military power quite explicitly.

Like the Cherokee, the Choctaw were removed from the Southeast to the Indian Territory in the 19th century. The post-removal Constitution of the Choctaw Nation, first ratified in 1838 and amended several times between 1838 and 1860, provided initially for the creation of a “military

39 S. DOC. NO. 298 at 74 (Apr. 13, 1846). But see WILLIAM G. MCLOUGHLIN, AFTER THE TRAIL OF TEARS: THE CHEROKEES’ STRUGGLE FOR SOVEREIGNTY 1839-1880 (1993) (“Ross’s opponents referred to these patrol companies as ‘vigilantes’ who . . . sought essentially to arrest of shoot down Ross’s opponents . . . . [But] these patrols were not essentially political in nature . . . . [L]ocated on the open prairie, the nation needed a mounted patrol to deal with outlaw bands.”). 40 S. JOURNAL, 29th Cong., 1st Sess. 241-43 (1846) (statement by President James Polk to Congress asserting that “internal feuds still exist, which call for the prompt intervention of the government of the United States”). 41 See MCLOUGHLIN, supra note 39, at 55-57. 42 The U.S. Constitution, for example, allows Congress to authorize the use of the militia to “execute the Laws of the Union,” as well as to “suppress Insurrections.” U.S. CONST., art. I, § 8, cl. 15. See also THE FEDERALIST NO. 29 (Alexander Hamilton) (discussing the use of the militia “in those emergencies which call for the military arm in support of the civil magistrate”); MALCOLM, supra note 6, at 3.

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department” which was explicitly envisioned as being empowered to fight in the event of “invasion or war.”43 The military department was essentially a militia—“warriors” could be called into action by the “Militia Captains” “in case of war,”44 and a “commander in chief” of the Nation’s forces was to be elected only “in case of war.”45 Thus, immediately after removal, the Choctaw Nation understood itself as having both an internal and an external military power, to be exercised in time of need by the calling up of a citizen militia.

In 1842, the Nation revised its constitution to eliminate the military department and replace it with something called simply “the militia.”46 With minor adjustments, the militia statutes remained intact until 1906, when the legal authority of the tribal government was effectively nullified by the Curtis Act.47 Under the militia laws, the chief of each of the districts (and later, the principal chief of the Nation) could call forth the militia “to execute the laws of the Nation, to suppress insurrection and repel invasion.”48

That language is drawn directly from the United States Constitution;49 and as we saw above, the United States militia was

43 CHOCTAW NATION CONST., art. VI, § 2 (1838) (emphasis added), available at http://s3.amazonaws.com/choctaw-msldigital/assets/325/1838constitution_original.pdf (last visited Nov. 24, 2013). 44 Id. 45 Id. at § 4. The form of organization may have been based on customary military organization existing prior to the constitution. See A Brief History of the Choctaw Nation, FIVE CIVILIZED TRIBES, http://www.fivecivilizedtribes.org/FiveTribes/Choctaw/ChoctawHistory.aspx (last visited Nov. 24, 2013) (“Each town had . . . a War Chief who acted as leader of the town's warriors. It was customary for the War Chief to appoint two assistants who became the town's military captains.”). 46 CHOCTAW NATION CONST., art. VI, §§ 21-22 (1842), available at http://s3.amazonaws.com/choctaw-msldigital/assets/326/1842constitution_original.pdf (last visited Nov. 24, 2013). 47 An Act For the Protection of the People of the Indian Territory, § 28, 30 Stat. 495 (1898). 48 Compare CHOCTAW NATION CONST., art. VI, § 2 (1842), available at http://s3.amazonaws.com/choctaw-msldigital/assets/326/1842constitution_original.pdf (last visited Nov. 24, 2013), with CHOCTAW NATION CONST., art.VIII, § 3 (1860), available at http://s3.amazonaws.com/choctaw-msldigital/assets/331/1860constitution_original.pdf (last visited Nov. 24, 2013). 49 U.S. CONST., art. I, § 8, cl. 15.

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understood to be a domestic force that did not fight abroad.50 This raises the question: was the Choctaw Nation, by changing the language of its constitution, consciously yielding the right to make war outside its own territory, yet explicitly attempting to retain the power to use military force within its territory?

In statutes providing for the organization of the militia, the Nation’s General Council emphasized that the militia was being formed “[f]or the better securing to the citizens of this nation their rights of person and property . . . and for a speedy apprehension of murderers, robbers, thieves, and any other criminals . . . .”51 However, there are at least two good reasons to think the Choctaw Nation had not entirely surrendered its right to fight external wars. First, every constitution from 1838 to 1860 includes a section prescribing a “mode of declaring war.”52 This is not mere defensive war, as there is a separate provision for dealing with “actual invasion by an enemy.”53 Second, the Nation joined with the Confederacy during the Civil War. Although the Choctaws “did little active fighting during the war,” they did raise three regiments of troops, and the Choctaw military officially surrendered to the United States at the close of war.54 It seems relatively clear that whatever motivated the change in the constitutional language, the Choctaw Nation did not, at least through the Civil War, see itself as lacking an external military power.

Although the Choctaw militia could theoretically be used to prosecute external wars, it seems to have been used primarily as a tool for quelling internal unrest and enforcing the law. Angie Debo points to several uses of the militia in this regard: reconstituting the civil order after the Civil War;55 keeping the peace during whiskey riots;56 and disrupting gangs of cattle rustlers.57

50 See HEIDLER & HEIDLER supra note 19 and accompanying text. 51 CHOCTAW NATION, CONSTITUTION AND LAWS OF THE CHOCTAW NATION 243 (1894). 52 See, e.g., CHOCTAW NATION CONST., art. VII, § 12 (1860) (“The mode of declaring war in this Nation shall be by at least two-thirds of the members of the General Council in full Council, with the approval of the Principal Chief . . . .”). 53Id. 54 ANGIE DEBO, THE RISE AND FALL OF THE CHOCTAW REPUBLIC, 85 (1961). 55 Id. at 93.

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However, the Choctaw militia, like the Cherokee light-horse company, was accused of being little more than a gang of thugs enforcing the political will of the Principal Chief. In what Debo calls “the most serious political disturbance in the history of the Choctaw people,” a close and bitter 1892 election was marred by murders, and there followed an intense partisan standoff over whether the light-horsemen could arrest a suspect in the murders. 58 For days, members of the suspect’s political party, the Nationals, guarded the suspect from both the light-horsemen and the militia, which had been called out to enforce the orders of the Principal Chief (the Chief belonged to the Progressive party). The militia shot up a small town and then the two sides engaged in a largely ineffectual shootout.59

Although the violence resulted in no deaths, it deeply frightened Leo Bennett, the United States government’s Indian agent in Choctaw territory. He reported to the Secretary of the Interior that:

the calling out of the militia by Governor Jones to arrest Willis Jones was unnecessary and unlawful; that the acts of said so-called militia have been contrary to the laws and the constitution of the Choctaw Nation and that the conflict precipitated by them was the act of a drunken irresponsible and uncontrollable mob who were banded together as militia for the evident purpose of murdering women and children, thereby removing their political opponents, and so intimidating others that the powers of the present party in authority may be perpetuated.60

Bennett declared that he could not think of any other way to defuse the situation than for the United States to declare martial law in the Nation.61

56 Id. at 178. 57 Id. at 193. 58 Id. at 174. 59 Id. at 169-172. 60 Report of the Secretary of the Interior, 1893, H.R. DOC. NO. 1, 53d Cong., 2d Sess. 88- 89. 61 Id. at 89.

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Troops were sent, and order restored.62 United States soldiers remained in the Nation for months afterward,63 and the incident provided additional impetus to the movement, already afoot in Congress, to strip tribal governments of their ownership of and sovereignty over tribal land. Debo writes that the incident “strengthened sentiment in favor of the law recently passed . . . looking to the ultimate extinction of the tribal governments.”64 Loren Brown similarly concludes that “[i]f the opponents of tribal government were looking for an excuse to bring their demands before Congress and the people in a lurid light, they had just what they wanted in the election troubles in the Choctaw Nation during the fall of 1892.”65

These stories of political conflict in the Cherokee and Choctaw Nations point out two potential disadvantages of a select militia for tribal governments. First, a select militia’s legitimacy depends on the perceived legitimacy of the government. If it is not the body of the people, it can easily be seen as (and sometimes may, in fact, be) the partisan instrument of an overreaching political regime. Second, the purported or actual misuse of a militia may furnish the federal government with an excuse to interfere in tribal affairs in order to “protect” the Indians from their leaders. Such an excuse is far less credible where the militia represents the mass of the people. So choosing a select militia over a universal militia poses a special danger to Indian tribal governments.

3. A Modern Select Militia?—The GOON Squad at Pine Ridge

The select militia could also be said to have played a role in 20th- century political disputes in Indian country. On the Pine Ridge Reservation, home to the Oglala Sioux, a political clash between traditionalists and the tribal government, led by tribal chairman Dick Wilson, famously erupted into an occasionally violent standoff with the

62 Id. 63 DEBO, supra note 54, at 172. 64 Id. at 173. 65 Loren N. Brown, The Establishment of the Dawes Commission for Indian Territory, 18 CHRONICLES OF OKLAHOMA 179 (1940) available at http://digital.library.okstate.edu/chronicles/v018/v018p171.html (last visited Jan. 4, 2014).

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federal government at the town of Wounded Knee in 1973.66 What is perhaps less well known is the role of Wilson’s select group of enforcers called “the GOON squad.”67 Wilson claimed to be authorized to form such a force under a tribal council resolution granting him certain powers to deal with (as yet prospective) activities of the American Indian Movement (AIM) on Pine Ridge.68 Although tribal police already patrolled the reservation, they were at least nominally employees of the Bureau of Indian Affairs (BIA).69 The GOONs, on the other hand, reported directly to Wilson.70 In the run-up to the Wounded Knee standoff, the GOONs intimidated and harassed Wilson’s political enemies—including AIM members, traditionalist, “full-blood” Oglalas who were resistant to United States federal influence on the reservation, and even other tribal council members who challenged Wilson’s authority.71 A failed attempt to impeach Wilson—in part because of these abuses—precipitated the Wounded Knee occupation.72

During the occupation, the GOONs set up their own roadblocks, which they used to harass and detain the occupiers and their allies.73 After the occupation ended and the United States Marshals left the area, Wilson

66 See Andrew H. Malcolm, Occupation of Wounded Knee Is Ended, N.Y. TIMES (May 24, 1973), http://www.nytimes.com/learning/general/onthisday/big/0508.html#article (last visited Nov. 24, 2013); History—Incident at Wounded Knee, US MARSHALS, http://www.usmarshals.gov/history/wounded-knee/index.html (last visited Nov. 24, 2013) (calling Wounded Knee “the longest civil disorder in the history of the Marshals Service.”). 67 Although the name was originally a derisive epithet used by Wilson’s critics, the militia itself claimed the name, reverse engineering a proud acronym: Guardians of the Oglala Nation. AKIM D. REINHARDT, RULING PINE RIDGE 157 (2007). 68 Id. at 153, 157. 69 Id. at 153. 70 Id. at 158 (describing Wilson’s personal involvement in recruiting GOON Squad members). It is thought, however, that the money to pay the GOONs did come from the BIA. Id. at 157. 71 We Shall Remain: Wounded Knee at approx. 00:260:00 (PBS television broadcast 2009) (footage contemporary with the Wounded Knee incident in which Ellen Moves Camp states, “The people were scared, and they are scared, of Dick Wilson and all his men.”); REINHARDT, supra note 67, at 159 (quoting a 1973 news interview in which Vice Chairman David Long noted, “I have bullet holes in my window and eight horses shot.”). 72 REINHARDT, supra note 67, at 176-88; VOICES FROM WOUNDED KNEE, 1973: IN THE WORDS OF THE PARTICIPANTS 25-32 (1974) [hereinafter VOICES]. 73 Id.

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consolidated power74 and actually ramped up the intimidation. Wilson was not shy about his intentions, telling an interviewer “The Oglalas don’t like what happened. If the FBI don’t get ‘em, the Oglalas will. We have our own way of punishing people like that.”75 When the interviewer asked if this included “shooting on the reservation,” Wilson smiled wryly: “You said it.”76 During the years following Wounded Knee, Pine Ridge had the highest murder rate of any jurisdiction in the United States; political enemies of Dick Wilson died or disappeared on a regular basis.77

One may ask the question: was Wilson’s force a militia, or something else—secret police, perhaps? To ask the question is merely to underline the problem the early Americans had with select militias to begin with. Once the use of force by the government is taken out of the hands of the general polity and placed in the hands of a select group of loyalists, the danger of secret-police-like tactics increases. King Charles had his “militia;” Wilson had his Orwellian “Guardians of the Oglala Nation.” Both used a loyal group of enforcers to crack down on political opposition—the core fear of John Smilie, the Federal Farmer, and others.

B. Non-Government Militias

We have seen two possible ways of organizing the people to create an internal fighting or security force that is separate from the army. There is the universal militia: the general class of able-bodied men, who may be trained formally or informally to use force on behalf of the people. And there is the select militia: a smaller group, less representative of the people, but perhaps more highly trained.

There was also a third sort of militia, one which bedeviled the American republic from the beginning and tended to upset the neat

74 REINHARDT, supra note 67, at 204-05. 75 We Shall Remain, supra note 71, at approx. 01:11:00 (interview with Dick Wilson). 76 Id. 77 See Timothy Williams, Tribe Seeks Reopening of Inquiries in ’70s Deaths, N.Y. TIMES (June 15, 2012), http://www.nytimes.com/2012/06/15/us/sioux-group-asks-officials-to- reopen-70s-cases.html?_r=0 (last visited Nov 3, 2013) See also INCIDENT AT OGLALA at approx. 00:23:00-00:28:00 (Miramax 1992) (various Pine Ridge residents describing the post-Wounded Knee atmosphere as a “reign of terror” and the GOONs as “death squads”).

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select/universal dichotomy. This was the spontaneously formed, unofficial citizens’ militia. Such “militias” often attempted to found their legitimacy on the same popular right to resist tyranny that the universal militia ultimately represented. In practice they usually represented only a fraction of the populace.

Both Shays’ Rebellion in 1786-87 (which took place just before the Constitutional Convention) and the Whiskey Rebellion in 1791-94 (under the newly-formed Constitution), for example, came clad in the garb of militia activity. In both cases, despite constituting only a small minority, the rebels posited themselves as true representatives of the people78 and challenged the legitimacy of government institutions.79 They mimicked the dress and customs of the revolutionary militia in order to show continuity with those now-celebrated bodies.80 Shays’ Rebellion in particular precipitated a crisis in public order, as many members of official state militias refused to fight—and in rare cases even joined—the Shaysites.81 Saul Cornell writes that “Shays’ rebellion exposed a tension in American constitutional theory: was the militia an agent of government authority, or was it a popular institution that might serve as a check on government?”82 The Whiskey Rebellion showed that even after the adoption of the new

78 SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA 32 (2006) (“[T]he Shaysites cast themselves as champions of the ‘good of the commonwealth’ . . . invoking the metaphor of the ‘Body of the People’ . . . . The voice of the people spoke not through written constitutional texts, but directly through popular assemblies, including the militia.”); id. at 80 (“[T]he rebels . . . used the language of civic obligations and republican liberty.”). 79 Id. at 31 (stating that the Shaysites “challenge[d] their own state government’s authority” and “shut down the local courts [to] prevent [farm] foreclosures”); id. at 77 (quoting one Whiskey Rebel: “It was time there should be a Revolution—that Congress ought either to Repeal the Law or allow these people to set up a government for themselves . . . .”). 80 Id. at 32 (“The Regulators . . . went to extraordinary lengths to dispel the idea that they were a mob. Their actions and their rhetoric self-consciously drew on symbols associated with the Revolutionary militia.”); id. at 79-80 (“As had been true of the Shaysites before them, the Whiskey Rebels appropriated the rituals and rhetoric of the militia muster to . . . give their actions legitimacy.”). 81 Id. at 33. 82 Id.

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Constitution, the possibility of spontaneous citizens’ militias “remained a latent force to be reckoned with.”83

After the Civil War, that “latent force” reappeared in the Reconstruction South. Like the Stuart select militia in 17th-century England, post-War Southern state militias embarked on a campaign of disarming their fellow citizens: “[T]he head of the Freedmen’s Bureau . . . reported that . . . militias were ‘engaged in disarming the negroes.’”84 When the federal government, in response, insisted on integrating the militias, white citizens abandoned the formal militia in favor of the Ku Klux Klan.85 The conflict that followed was essentially a clash of two militias representing two different (and antagonistic) segments of Southern society—the official select militia, mostly black, and the shadow militia, entirely white.

The subject of spontaneous citizens’ militias erupted into the public discourse in the mid-1990s, after Timothy McVeigh parked a truck full of explosives next to Oklahoma City’s Alfred Murrah Federal Building.86 McVeigh and his accomplice, Terry Nichols, were originally believed to be associated with the “Michigan Militia,”87 a private militia group whose website today sports the slogan “Defending Against Disaster, Crime, Terrorism, and Tyranny.”88 The connection turned out to be weak— according to the Christian Science Monitor, “McVeigh considered groups like the Michigan Militia ‘too moderate’ and saw himself as ‘a man of action’ who wanted to do more than just vent.”89 The Michigan Militia

83 Id. at 85. 84 Id. at 175. 85 Id. at 176-77. 86 History and Mission, OKLA. CITY NAT’L MEM’L. http://www.oklahomacitynationalmemorial.org/secondary.php?section=1&catid=193 (last visited Nov. 24, 2013). 87 Robert D. McFadden, Links in Blast: Armed 'Militia' and a Key Date, N.Y. TIMES at A1. (Apr. 22, 1995) available at http://www.nytimes.com/1995/04/22/us/terror-in-oklahoma- the-far-right-links-in-blast-armed-militia-and-a-key-date.html (last visited Jan. 4, 2014). 88 MICHIGAN MILITIA, http://www.michiganmilitia.com/ (last visited Nov. 24, 2013). 89 Mark Guarino, Could the Hutaree militia have spawned a Timothy McVeigh?, CHRISTIAN SCIENCE MONITOR (Mar. 31, 2010), http://www.csmonitor.com/USA/Justice/2010/0331/Could-the-Hutaree-militia-have- spawned-a-Timothy-McVeigh (last visited Nov. 24, 2013).

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strenuously denied that the group had been involved in the bombing.90 The link called attention to a groundswell of private “militias” and raised questions about whether they truly represented a return to the grand American tradition of the engaged citizen as a buffer against tyranny.

Brannon Denning, a Second Amendment scholar writing not long after the bombing, took a skeptical but appreciative position on private militias. Denning emphasized the community-building nature of militia practice and saw the historical transition away from citizen militias and toward the professionalized National Guard system as highly problematic:

Many present day commentators seem unwilling to acknowledge the unique role that the militia filled, one that is not easily replaced . . . .[In the Founders’ view] [c]ivic virtue and a willingness to subordinate all private concerns to those of the community were conditions precedent to the establishment of a virtuous republic.91

But Denning also recognized that the anti-government philosophy animating the modern militia movement was so paranoid as to undermine claims to civic virtue:

[M]embers tend to share the same fears: federal gun control, erosion of national sovereignty, emergence of a United Nations led “one world government” and the invasion of the United States by shadowy socialist forces. The movement seems to have been further galvanized by both the Randy Weaver trial and the Branch Davidian standoff in Waco, Texas. Many . . . speak fatalistically about a coming showdown with the federal government . . . .

[T]hose participating in this new militia movement are not the successors to the heritage of the colonial militias . . . .Nor is

90See McFadden, supra note 87 (“We have denounced the entire incident as an act of barbarity . . . . It's totally alien to everything we believe. We are totally defensive. We do not engage in terrorism.”). 91 Brannon P. Denning, Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 OKLA. CITY U. L. REV. 191, 239 (1996).

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Dennis Henigan completely wrong when he makes the point that “the Framers understood the militia to be an instrument of governmental authority.”92

The private militias have certainly had a tendency to sound paranoid. Shortly after the Oklahoma bombing, two leaders of the Michigan Militia came forward with a theory that the attack had been organized by the Japanese government and that “Japan had paid CIA agents to bug President Clinton's offices.”93 The Southern Poverty Law Center asserts that the militia movement, “which in the past was not primarily motivated by race hate,” has in more recent years become infected with racial animus.94

Today’s Michigan Militia aims to present a non-threatening, family- friendly face, inviting the public to “open carry” (that is, armed) picnics95 and posting a letter from a mother of three on its website.96 More directly to Denning’s point about civic virtue the group in its FAQ heavily emphasizes active involvement and personal sacrifice.97

There is some evidence that the government has been overzealous in raiding and prosecuting militias for what are lawful activities. The Federal Bureau of Investigation (FBI) raided another Michigan group, the “Hutaree,” in 2010, only to have a federal judge throw out sedition and

92 Id. at 229-30. 93 Two Leaders of Paramilitary Group Resign, N.Y. TIMES (Apr. 30, 1995), http://www.nytimes.com/1995/04/30/us/terror-in-oklahoma-michigan-militia-two-leaders- of-paramilitary-group-resign.html (last visited Nov. 24, 2013). 94 Southern Poverty Law Center, The Second Wave: Return of the Militias, SLPC (Aug. 2009), http://www.splcenter.org/get-informed/publications/splc-report-return-of-the- militias#.UZRStoL3g08 (last visited Nov. 24, 2013). 95 Fara Warner, A Militia Reboots, DAILY BEAST (Apr. 13, 2010), http://www.thedailybeast.com/articles/2010/04/13/a-militia-reboots.html (last visited Nov. 24, 2013). 96 Kristin Stoner, While it is True You Can Learn a Lot by Asking, You Can Learn More by DOING…, MICHIGAN MILITIA, http://www.michiganmilitia.com/SMVM/faq/faq.htm (last visited Nov. 24, 2013). 97 See id. (“You do not ‘belong’ to a militia; you ‘participate’ in one. . . . [W]hile many of our fellow citizens are nestled warmly around a mug of hot cocoa, or sitting on the couch watching the game, we were nestled not-so-warmly in sub-freezing snow; out in the field DOING stuff.”).

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conspiracy charges against the group.98 An expert interviewed by the New York Times noted that the Hutaree appeared to be “engaged in political speech,” and their defense attorneys similarly invoked the First Amendment.99 The militia members are now suing the FBI over the incident.100

For our purposes, what may be most interesting about the private militias is their size: the Michigan Militia claimed only 217 members in 2010,101 while the Hutaree may have just 20.102 Yet over nearly two decades private militias have been able to stir the interest of the public at large (which has never quite been able to decide whether they were risible103 or alarming104) and to convince their members of their own legitimacy as a genuine exercise of popular sovereignty. For the most part, private militias are harmless. However, their existence is unsettling because it suggests that small groups of individuals (like the Shaysites and the Southern post-Civil War white militias) may be attempting to take on the mantle of popular sovereignty—and perhaps even the popular right of revolution—without having bothered to consult the people. The right of

98 Nick Bunkley, U.S. Judge in Michigan Acquits Militia Members of Sedition, N.Y. TIMES (Mar. 27, 2012), http://www.nytimes.com/2012/03/28/us/hutaree-militia-members- acquitted-of-sedition.html (last visited Nov. 24, 2013). 99 Id. 100 Niraj Warikoo, Hutaree Militia Members Sue State Cop and FBI Agents, DETROIT FREE PRESS (Apr. 9, 2013), http://www.freep.com/article/20130409/NEWS05/304090086/1001/news (last visited Nov. 24, 2013). 101 Warner, supra note 95. 102 Hutaree Militia Fact Sheet, ANTI-DEFAMATION LEAGUE, http://archive.adl.org/main_extremism/hutaree_militia_facts.html#.Usz8WfQ59XU (last visited Jan. 4, 2014). 103 See, e.g., BOWLING FOR COLUMBINE (United Artists 2002); Moxy Früvous, Michigan Militia, on YOU WILL GO TO THE MOON (Warner Music Canada 1997). 104 See, e.g., Chris Rovzar, Are the Members of the Michigan Militia Terrorists?, N.Y. MAG. (Mar. 30, 2010) http://nymag.com/daily/intelligencer/2010/03/are_the_members_of_the_michiga.html (last visited Nov. 24, 2013); Eileen Pollack, The Extremists Next Door, N.Y. TIMES (Apr. 18, 2010) http://www.nytimes.com/2010/04/19/opinion/19Pollack.html?_r=0 (last visited Nov. 24, 2013); Michelle Green, Shadow Warriors, PEOPLE, May 8, 1995, at 58.

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revolution was one that the Founders assumed was the prerogative of the whole people, not a tiny, self-appointed team.105

Again using the Anglo-American framework as background, we can now examine some examples of militias formed spontaneously by the people themselves in Indian country. Like their Anglo-American counterparts, these groups often put themselves out as representing the interests of the people, but are painted by their opponents as small bands of malcontents with little legitimacy.

1. American Indian Movement (AIM)

The Pine Ridge standoff, discussed above in Part I.A.3, involved armed groups on both sides. The AIM side, though partly made up of outsiders claimed to represent the people of Pine Ridge. Given Dick Wilson’s dictatorial practices, they may well have been right.106 Nonetheless, AIM was neither composed of a substantial majority of the Pine Ridge populace nor sponsored by any government, which made it easier for both Wilson and the United States government to suggest that they were malcontents and communist agitators, not a genuine popular movement.107 Over the long run, even those who had supported the occupation ultimately moved away from full-throated support for the AIM

105 Even the early Americans most invested in the popular right of revolution thought revolutions should occur, where possible, through deliberation and voting, not through mob violence. See THOMAS PAINE, COMMON SENSE (1776) (“[I]t is infinitely wiser and safer, to form a constitution of our own in a cool deliberate manner, while we have it in our power, than to trust such an interesting event to time and chance. If we omit it now, some Massenello may hereafter arise, who laying hold of popular disquietudes, may collect together the desperate and the discontented, and by assuming to themselves the powers of government, may sweep away the liberties of the continent like a deluge.”). 106 See, e.g., VOICES, supra note 72, at 102 (noting that the Porcupine District of the reservation passed a resolution supporting the Wounded Knee occupiers); REINHARDT, supra note 67, at 208 (“Wilson was finally defeated in the more rigorously regulated 1976 election . . . . The rejection of Wilson in an honest election was not surprising.”). 107 VOICES, supra note 72, at 125-26 (reprinting Dick Wilson’s open letter claiming that Wounded Knee was a “long range plan of the Communist Party”); REINHARDT, supra note 67, at 176-77 (describing the FBI’s mistaken belief that AIM was driving, rather than catching up to, events on Pine Ridge).

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itself,108 suggesting some discomfort with a self-appointed militia even when its motives were praiseworthy.

2. The Mohawk Warrior Society

Among the Mohawk living at Akwesasne, an area straddling the border between New York and Quebec, the “Mohawk Warrior Society” has often been at the center of political controversies on and off the reservation. The Warrior Society is an unusual organization: outside all channels of official government, it nonetheless occasionally claims that it acts under the aegis of the traditional tribal government. Mohawk journalist Kenneth Deer, on the other hand, has directly compared the Warriors to a spontaneous citizens’ militia and says that “[t]here’s no membership to the Warrior Society . . . . It's just a name. It's just a way to organize men when there's something to be done.”109

The Warriors have flitted in and out of alliance with various political factions since the early 1970s—unsurprising, perhaps, given the complex governmental arrangements in Mohawk territory. The tribe is officially represented by the Tribal Council of the St. Regis Mohawk Tribe110 on the New York side and the Mohawk Council of Akwesasne111 on the Canadian side; both are democratically elected. However, there are also traditional governing bodies like the “Mohawk Nation Council of Chiefs” operating at Akwesasne.112 The “Kahnawake branch of the Mohawk,” a sort of traditionalist shadow government in one of the territories on the Canadian side, states on its website that at least one Warrior Society was “authorized” by the “Mohawk Nation Council of Chiefs at Kahnawake” in 1972. It was charged “to carry out the resolutions of the Clans in Council and to serve as the defensive vanguard of the Longhouse.”113 For

108 REINHARDT, supra note 67, at 208-209. 109 Mohawk Warriors to Get Military Apology, CBC (Dec. 21, 2010), http://www.cbc.ca/news/canada/montreal/story/2010/12/20/mohawk-military-apology.html (last visited Nov. 24, 2013). 110 SAINT REGIS TRIBAL COUNCIL, http://www.srmt-nsn.gov/ (last visited Nov. 24, 2013). 111 AKWESASNE.CA, http://www.akwesasne.ca/ (last visited Nov. 24, 2013). 112 See generally MOHAWK NATION, http://www.mohawknation.org (last visited Nov. 24, 2013). 113 National Defense and Public Security, KAHNAWAKE LONGHOUSE, http://www.kahnawakelonghouse.com/index.php?mid=1&p=3 (last visited Nov. 3, 2013).

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decades the more traditional bodies have insisted that the federally recognized, elected governments were not legitimate Mohawk institutions, but the tools of colonial home-rule.114 The Warrior Society may have emerged, originally, as a weapon in that fight.115 Rick Hornung reports that “[f]or two years [1971-73], the Warriors wrangled with the elected chiefs in confrontations that verged on violence.”116

However, the Warriors have not been purely an agent of traditionalists agitating for recognition and clashing with the elected/federally-recognized governments. Certainly, the Warrior Society seems to have followed its own course and set its own agenda, especially during the heightened tensions around casino gambling at Akwesasne in 1989-90.117 The Warriors’ primary interest seems always to have been in excluding Canadian and United States authorities from Mohawk territory. During the gambling crisis they frequently forestalled attempts by both traditional and elected governments to bring in outside police or armed forces.118

At other times, the Warriors acted as an impromptu internal security force—for example, preventing a political demonstration from disrupting

114 See, e.g., About the Mohawk Nation Council of Chiefs, MOHAWKNATION.ORG, http://www.mohawknation.org/index.php?option=com_content&view=article&id=47&Itemi d=56 (last visited Nov. 24, 2013) (“The Mohawk Nation Council, its Chiefs, Clan mothers and Faith keepers are not to be confused with the St. Regis (Mohawk) Tribal Council . . . . The St. Regis Tribal Council exists because the United States Government has chosen to recognize . . . ‘a government that it created’, instead of the one that was given to the Mohawk people by the Creator.”); Akwesasne, IROQUOISMUSEUM.ORG, http://www.iroquoismuseum.org/akwesasne.htm (last visited Nov. 24, 2013) (“The Mohawk Council of Akwesasne was forcibly imposed on Akwesasne by Canada. The St. Regis Band Council was forcibly imposed on Akwesasne by the United States.”). 115 RICK HORNUNG, ONE NATION UNDER THE GUN 28 (1991) (“[T]he Warriors see the elected tribal councils as mere adjuncts to the U.S. and Canadian governments.”). 116 Id. at 21. 117See generally id. at 16, 28-29, 32-64 (detailing the role of the Warrior Society in factional disputes in the Mohawk Nation). 118 See id. at 21 (“[T]he Canadian chiefs called in the Quebec provincial police, the Sûreté du Québec, but the Warriors drove them out.”); id. at 33-34 (recounting a situation in which the Warriors repelled, temporarily, an FBI/state police joint patrol attempting to enter Mohawk territory); id. at 63-64 (“[T]he [police] major said . . . officers would contact the [Warriors] if police were called . . . . He also offered a guarantee that troopers would not stray from Route 37 during routine traffic patrols . . . .”).

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traffic on the reservation.119 Unlike Wilson’s GOONs, the Warriors frequently avoided violence and claimed to prefer political means.120 The female Warriors seem to have encouraged the men to think about long- term political gains instead of the immediate satisfaction of violent skirmishes. Minnie Garrow says of the Warriors at the time:

The men were focused on the police and protecting our community from outsiders. These are very real problems that require enormous concentration, but we also have to see beyond this role . . . . How do we go from a group that is always fighting the police to a group that is willing to stand on our own?121

Diane Lazore adds: “The people trusted us for protection. Now we had to win their trust for leadership . . . .”122

Predictably, given the heated nature of the fight over casinos in Akwesasne at the time, the Warriors have their detractors. The Warriors themselves always maintained that their focus was Mohawk territorial sovereignty123 and they claim to have attempted to avoid direct commercial entanglements with controversial enterprises like gambling and smuggling.124 Anti-gaming activist and publisher Doug George has said that the Warriors’ talk of sovereignty was code for “their right to make

119 Id. at 83. 120 Id. at 35 (“Despite the tough talk and the previous sighting of guns by undercover cops, the Mohawks did not display any firearms.”); id. at 42 (“With Maracle pushing for a confrontation, Kakwirakeron had to project militancy but stop short of any display of force or armament.”); id. at 78 (“[T]he Warriors met with the casino owners to get assurances that their security guards would not be provoked into a fight that would give police an opportunity to come again.”); id. at 54 (“‘I support the march as all Warriors support anything peaceful,’ said Warrior John Boots. ‘If this march can help the so-called elected leadership understand that they have neglected us and our needs as Mohawks, then it will be a real success.’”). 121 Id. at 61-62 (internal quotation marks omitted). 122 Id. at 62 (internal quotation marks omitted). 123 Id. at 42 (“Kakwirakeron, Boots, and Maracle knew the warriors needed to . . . present sovereignty, not gambling, as the key issue.”). 124 Id. at 79-81 (recounting discussions within the group about whether or not to embrace gambling and cigarette smuggling as sources of revenue). On the other hand, see id. at 1 for a description of Warriors smuggling weapons across the Canadian border; whether this is primarily for profit or to help the ideological struggle is not made clear.

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a buck by crap games or tobacco smuggling,” and criticizes them for not having put forth a coherent political plan for uniting Akwesasne.125 Traditional Chief Jake Swamp attacks Kakwirakeron, a prominent Warrior, as a self-promoting outsider:

He will tell you about Moss Lake126 and how he fought for the Mohawk Nation. Well, what happened . . . ? Within a few years he left for California. . . .He did not come onto Mohawk land and join the community and participate in our life. But as soon as there is talk of the state police, he shows up with his long braids and big shoulders. A good picture for the newspaper and the television, but this is not his land . . . .127

The newspaper Akwesasne Notes occasionally published scathing editorials calling the Warrior Society everything from an illegitimate “militant group” playing on public sympathies128 to a “military dictatorship,”129 “like a bunch of Nazi thugs.”130

Canada’s military establishment is also not enthusiastic about the Warrior Society, which it included in a 2006 draft list of “potentially violent insurgent group[s].”131 Although the government later offered an apology for the inclusion,132 the Canadian military’s view of the Warrior Society was undoubtedly shaped by the “Oka crisis.”133 During the crisis, Warriors, after months of wrangling with anti-gambling forces and American authorities on the New York side,134 crossed the border to aid Mohawks demonstrating against the development of a golf course on traditional Mohawk land. Hornung describes the Canadian reaction:

125 Id. at 47. 126 Site of a longstanding Warrior occupation that ended with a state set-aside of 5,000 acres for the Mohawk to hunt and fish in. Id. at 21. 127 Id. at 49. 128 “Warrior Society,” AKWESASNE NOTES, June 30, 1990. 129 Charlotte Debbane, The Rule of the “Warriors”, AKWESASNE NOTES, May 31, 1990. 130 The Crisis at Akwesasne, AKWESASNE NOTES, Jan. 31, 1990. 131 Mohawk Warriors to Get Military Apology, CBC (Dec. 21, 2010), http://www.cbc.ca/news/canada/montreal/story/2010/12/20/mohawk-military-apology.html (last visited Nov. 24, 2013). 132 Id. 133 See id. 134 See, e.g., HORNUNG, supra note 115, at 111-132.

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On the American side of the border . . . [t]he authorities handled the Warriors as yet another fringe group exercising their distinctly American rights to dissent and bear arms. . . . In Canada, citizens do not have a constitutional right to bear arms, particularly against the government . . . . When the Warriors crossed the border, provincial and federal officials saw the presence of heavily armed Mohawks as an insurrection. . . .135

Invited in by some Canadian Mohawks to help sustain a blockade preventing access to the disputed site,136 the Warriors and other protesters initially did not carry weapons.137 By the time court orders had been issued against the occupying Mohawks and the Sûreté du Québec (provincial police) were ordered in to clear the barricade, guns were on site. Sûreté officers fired tear gas, shooting started, and after a few minutes of chaos, a Sûreté corporal had been fatally shot.138 The Canadian government then brought in the military. Internal disagreements between the Warriors and other protesters weakened the effectiveness of their campaign,139 and eventually, after 78 days, the Mohawks came out of the woods. Although many fled, twenty-three Warriors were arrested in a confused, but largely bloodless, series of melees with police and the army.140

The Warriors still exist, at least as an idea,141 but since the Oka crisis they have been far less visible. The Mohawk Warrior Society

135 Id. at 3-4. 136 Id. at 186,188. 137 Id. at 188-89; CBC Television News (CBC television broadcast April 27, 1990) (interview with unidentified Mohawk who says he is not armed, but adds, “But the Creator will provide”), available at http://www.cbc.ca/archives/categories/politics/civil-unrest/the- oka-crisis-1/bubbling-frustration-and-anger.html (last visited Nov. 24, 2013). 138The National (CBC television broadcast July 11, 1990), available at http://www.cbc.ca/archives/categories/politics/civil-unrest/the-oka-crisis-1/the-stand-off- begins.html (last visited Nov. 24, 2013). 139 See generally HORNUNG, supra note 115, at 226-77. 140The National (CBC television broadcast, Sept. 26 1990), available at http://www.cbc.ca/archives/categories/politics/civil-unrest/the-oka-crisis-1/the-stand-off- begins.html (last visited Nov. 24, 2012). 141See Kahnawake Branch of the Mohawk Nation, supra note 113. See also “Mohawk Warrior Society” profile, FACEBOOK, https://www.facebook.com/pages/Mohawk-Warrior-

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provides an interesting model through which to understand the benefits and drawbacks of spontaneous citizens’ militias. In many ways the Warriors mirror the most radical conceptions of the American militia to arise during the Founding era: those embodied in Shays’ Rebellion and the Whiskey Rebellion. Like the Warriors, the Shaysites and the Whiskey Rebels disputed the legitimacy of democratic institutions and their officers; consciously adopted popular imagery of the past; insisted that they were carrying on in the true spirit of their culture’s most important principles; and occasionally rallied support from the people.142 Like the Warriors, they were defeated militarily but helped focus public attention on the questions raised by their very existence.143

Since the Washington administration, the United States government has viewed spontaneous, non-state-sponsored militias with deep suspicion, seeing them as a gateway to mob rule. As outlined above, there is good reason for such skepticism; spontaneous citizen militias are almost never of sufficient numbers to claim the inherent legitimacy of the universal militia, and by definition they cannot derive legitimacy from the government’s democratic institutions. It should always make us nervous when armed private citizens claim the mantle of “the people.”

The same principles probably apply to reservation politics. Organizations like AIM and the Warrior Society set themselves up in opposition to what they see as unlawful governmental intrusion on the people’s liberty. But precisely because a legitimate government does not back them, they carry a certain burden of proving that they accurately represent the people’s interests. Additionally, since they form only a part of “the people,” their opponents (both tribal and federal) can easily paint them as an extremist fringe.

Society/35272274775 (last visited Nov. 3, 2013)) (Facebook page for fans of the Warriors); The Warriors Within, N. Y. PRESS, (Feb. 8, 2006) http://nypress.com/the- warriors-within/ (last visited Jan. 13, 2014) (profile of Paul Delaronde, a Warrior from the Moss Lake era). 142 See supra notes 77-80, and accompanying text. 143 CORNELL, supra note 78, at 85 (“While the defeat of the Whiskey Rebels was certainly a setback for the opponents of the Federalist agenda . . . the notion that the militia might actively or passively protest unjust federal policies remained a latent force to be reckoned with in American constitutionalism.”).

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All this may seem to be somewhat irrelevant to the question of whether tribal governments may (or should) form official tribal militias. But I think these stories of unofficial militias can shed some light on that issue in two ways. First, the unofficial militias stand as a counterpoint to the official use of citizen militias. To the degree that “armed Indians” may strike some atavistic chord of unease among federal officials, it may be useful for tribal governments to distinguish their clearly lawful activities from the somewhat more dubious activities of the unofficial militias. On the other hand, AIM and the Mohawk Warrior Society were arguably modern Indian expressions of the same communitarian (if also slightly anarchic) militia spirit that animated so much of early American civic thought and played a countermelody to the dominant tune of Federalism. Presumably, if they could create legitimate democratic structures through which to channel it, at least some contemporary Indian societies might find it advantageous to tap into that spirit.

II. MAY TRIBES STILL EXERCISE THE MILITIA POWER?

While the dominant theme of Part I was the authority and composition of the militia itself, the theme of Part II is the nature of the militia power, which I hope to show is a power of inherent sovereignty that tribal governments retain to this day. Prior to being absorbed into the United States, Indian tribes had all the sovereign powers that any nation claims—including the power to use military force. The question now is, how much of that power is left? Having examined a number of treaties, as well as federal statutory law and a few other sources of law, I conclude that tribes likely retain at least the “militia” power, which is the power to organize the people for the purposes of (1) defense from invasion and (2) internal security.144

Here the Anglo-American model, oddly enough, may prove useful to the cause of tribal sovereignty. The United States Constitution already provides a neat framework for dividing the military power between that used for external warfare (the power to “raise Armies,” in the Constitution’s

144 Recall U.S. CONST. art. I, § 8, cl. 15 (authorizing the use of the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions”), as well as the militia’s role as the defense and security force of the state government, see infra Part II.C.

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terms) and that used for defensive and internal purposes (i.e., the militia power). Because the history of treaty relations with the United States suggests that the federal government was primarily worried about the exercise of the former power, and not the latter, there is a very good argument that the latter power remains viable today.

A. General Indian Law Principles

As a general rule, tribes retain all the aboriginal powers of sovereignty that have not been “extinguished” by agreement in the treaty process or by Congress through its so-called “plenary power” over Indian affairs.145 The military power is one of the fundamental rights of sovereignty—so much so that the unique system of co-sovereignty created in the United States Constitution splits the military power between the States and the federal government.146 Equally foundational to the notion of sovereignty is the power to exclude others from one’s territory.147 It follows that the power to effectuate that exclusion is also a part of sovereignty.

Thus, absent restrictions accomplished through treaty, or clear statutory limitations created by Congress, Indian tribes retain their inherent military powers—especially the portion of the military power necessary to exclude unwanted parties and maintain order within their own territory.

In the following sections, I introduce treaties as the most likely and most authoritative source of any limitations on the tribal military power. The Supreme Court has been inconsistent in its treatment of treaty

145See, e.g., United States v. Lara, 541 U.S. 193, 197 (2004) (holding that criminal jurisdiction over tribal offenders was one of the inherent powers of tribal sovereignty which had not been extinguished); COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 18.04 [2] [a] at 1164; and § 18.04 [2] [e] at 1169 (2012) (“Perhaps the most basic principle of all Indian law … is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished.”). 146 U.S. CONST. art. I, § 8, cl. 16. 147See Arizona v. United States, 132 S. Ct. 2492, 2511 (2012) (Scalia, J., dissenting) (emphasis added) (“[M]ost would consider the defining characteristic of sovereignty . . . [to be] the power to exclude from the sovereign's territory people who have no right to be there.”).

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rights,148 but it is fair to say that today treaties are honored, at least in principle, as part of the foundational corpus of Indian law. Indeed, the strong form of the argument is that treaties are the only legal framework for dealing with Indian tribes that is constitutional in scope. They are the only records of any sort of consent to be governed equivalent to the consent of the States to enter into the constitutional arrangement.149 Like the Constitution, treaties are presumptively binding on tribes and the federal government alike, even in the absence of any enabling statute.

Of course, treaties are not uniform in their legitimacy (i.e., in documenting the consent of the governed); nor are they nationwide in scope (because they necessarily apply only to the signatory tribes). Nonetheless, although each treaty applies only to certain tribes, all treaties bind the United States government. Treaties are thus our window into the federal government’s view of which powers the tribes had to surrender to become part of the Union. One could argue, therefore, that treaties collectively throw a sort of shadow, outlining the shape of what the United States understood to be the lost—or retained—sovereign powers of the tribes.150

To complete the picture I also examine federal statutes for possible limitations on the tribal military power and raise the question of whether state governments should have any say in regulating tribal militias.

148Compare Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (holding that Congress may unilaterally alter Indian treaties), with United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) (affirming an Indian Claims Commission finding an uncompensated taking of the Black Hills, which had been guaranteed to the Sioux by treaty). 149 See, e.g., FRANK POMMERSHEIM, BRAID OF FEATHERS: AMERICAN INDIAN LAW AND CONTEMPORARY TRIBAL LIFE 40 (1995) (explaining that treaties form “the primary doctrinal grounding for the recognition of tribal sovereignty,” “the foundation for the recognition of a government-to-government relationship,” and “the closest thing to a (federal) constitutional benchmark” in Indian affairs). 150 A similar method was used, controversially, in Justice Rehnquist’s majority opinion in Oliphant v. Suquamish Indian Tribe, where he drew on the terms of an 1830 treaty with the Choctaw and an 1855 treaty with the Suquamish (as well as other sources) to find a broad lack of tribal criminal jurisdiction over non-Indians. 435 U.S. 191, 197-99, 206-207 (1978). It seems to me that turnabout is fair play, and that this method ought be available to argue in favor of retained tribal sovereignty as well as against.

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B. Treaties

As Stuart Banner has noted, there is a standard narrative lurking in the background of our popular culture that “[t]he Indians were . . . conquered by force,”151 an idea that has informed legal doctrine since at least 1823.152 What then are we to make of the extensive body of treaties between the United States and Indian tribes? Is it the case, as Banner admits he originally assumed, that “Americans and their British colonial predecessors papered over their conquest with these documents to make the process look proper and legal”?153 One might expect, were this the case that treaties would tend to look like instruments of surrender, with terms dictated by the winning party to the losing party. Given the violence of the wars between the United States (or, originally, colonists) and Indians, we might expect that some of these treaties would require the Indians to foreswear their inherent military powers as nations, either as a condition of entry into the Union (if one adopts the view that Indian treaties constituted an agreement to enter the federal system154), or as a means of ensuring that the tribes were too weak to be a further threat.

But the text and context of Indian treaties argue (as does Banner) that it was rarely so simple, and that Indians were often full participants in the treaty-making process—albeit participants under tremendous pressure.155 And, as I will attempt to show below, Indian treaties may have

151 STUART BANNER, HOW THE INDIANS LOST THEIR LAND 1 (2005). 152 Johnson v. McIntosh, 21 U.S. 543, 588 (1823) (“Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.”). 153 BANNER, supra note 151, at 1. 154 Some treaties do, if only ambiguously, anticipate that Indians will ultimately have some sort of formal representation in Congress. See, e.g., Treaty with the Delaware Nation, U.S-Delaware Nation, art 6, Sept. 17, 1778, 7 Stat. 13 (“[I]t is further agreed . . . [that other tribes may] join the present confederation, and to form a state whereof the Delaware nation shall be the head, and have a representation in Congress.”); Treaty of Hopewell with the Cherokee Nation, U.S.-Cherokee Nation, art 12, Nov. 28, 1785, 7 Stat. 18 (“That the Indians . . . shall have the right to send a deputy of their choice, whenever they think fit, to Congress.”). See also BRUCE ELLIOTT JOHANSEN, THE ENCYCLOPEDIA OF NATIVE AMERICAN LEGAL TRADITION 297-300 (1998) (describing doomed efforts to have the Indian state of Sequoyah admitted to the Union). 155 Perhaps the quintessential treaty illustrating this point is the 1868 Treaty with the Navajo Nation, in which the Navajo, who were at the time effectively prisoners of the U.S.

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acted to limit certain uses of the inherent military power, but never actually extinguished that power.

Treaty making between the United States and Indian tribes has tended to reflect the contemporary power dynamic between the respective parties. Between the first English contact with Indians in Virginia and Massachusetts to the end of the treaty period in 1871, the United States grew from a ragtag set of outposts dependent on good relations with Indians for their very survival, to a small set of embattled former colonies in need of allies, to an aggressively expansionist continental power. In the 19th century particularly, America grew more colonialist;156 United States courts officially declared that Indians no longer had absolute sovereignty over their own territory;157 white supremacy reached its zenith;158 and new

Army, nonetheless managed to reclaim a substantial portion of their traditional land after having been removed several years prior. See Part II.B.5, infra, for discussion of this treaty and the military power. 156 See, e.g., John O’Sullivan, The True Title, N. Y. MORNING NEWS (Dec. 27, 1845) ("[The American claim to the Oregon territory] is by the right of our manifest destiny to overspread and to possess the whole of the continent which Providence has given us for the development of the great experiment of liberty and federated self-government entrusted to us. It is a right such as that of the tree to the space of air and earth suitable to the full expansion of its principle and destiny of growth . . . ."). 157Johnson v. McIntosh, 21 U.S. 543, 587 (1823) (“The United States . . . maintain . . . that discovery gave [European powers] an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.”). 158 Whether the supremacy of whites was due to their biological superiority or merely the grace of circumstances was a subject of debate—but the fact of that supremacy was, generally, considered axiomatic. Compare, e.g., George Combe & B.H. Coates, Crania Americana, 38 AMER .J. OF SCIENCE AND ARTS 342, 352 (1840), available at http://archive.org/download/mobot31753002152160/mobot31753002152160.pdf (last visited Nov. 24, 2013) (book review) (emphasis added) (“One of the most singular features in the history of this continent is, that the aboriginal races, with few exceptions, have perished or constantly receded, before the Anglo-Saxon race, and have in no instance either mingled with them as equals, or adopted their manners and civilization. These phenomena must have a cause; and can any enquiry be at once more interesting and philosophical than that which endeavors to ascertain whether that cause be connected with a difference in the brain between the native American race, and their conquering invaders?”), with GEORGE CUSTER, MY LIFE ON THE PLAINS, OR, PERSONAL EXPERIENCES WITH INDIANS 12 (2009) (1874) (third emphasis added) (“Stripped of the beautiful romance with which we have been so long willing to envelop him . . . in his native village, on the war path, and when raiding upon our frontier settlements and lines of travel, the Indian forfeits his claim to the appellation of the ‘noble red man.’ We see him as he is . . . a savage in every sense of the word; not worse, perhaps, than his white

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commercial powers like the railroads put additional pressure on the government to dispossess the Indians of their lands.159 Indians became more embattled by the year, winning both legal and military victories, but ultimately fighting a rear guard action. Treaties between the United States and various tribes reflect the changing political balance, and later treaties reflect much harsher terms—terms of conquest. Despite this, however, at no point were Indian nations’ internal military powers ever entirely extinguished.

1. Colonial Period

Treaties from the colonial period are quite clear that Indian tribes are separate, equal nations. Around 1643, the Haudenosaunee entered into an unwritten, but physically memorialized, treaty known as the “Two Row Wampum” treaty with Dutch colonists.160 The wampum belt, memorializing the agreement, consisted of two parallel rows of colored beads, indicating the parallel (i.e., non-interfering) and equal relationship of the two parties.161 The relationship was later transferred to the English (who largely displaced the Dutch) and a three-link silver “chain of friendship” was forged in 1677 to memorialize this agreement.162

Even in the earliest years, there were attempts to frame these agreements as creating a vassalage relationship.163 The Haudenosaunee, brother would be similarly born and bred, but one whose cruel and ferocious nature far exceeds that of any wild beast of the desert.”). 159See, e.g., General William T. Sherman, Speech to Lakota and Cheyenne Chiefs at North Platte, Nebraska Territory (Sept. 19, 1867), in The Indian Commission: Grand Council with the Hostile Chiefs at North Platte, N.Y. TIMES (Sept. 27, 1867), http://query.nytimes.com/mem/archive- free/pdf?res=9902E3DF103AEF34BC4F51DFBF66838C679FDE (last visited Nov. 24, 2013) (“This railroad up the Platte and the Smoky Hill Railroad will be built . . . and if your young men interfere, the Great Father [i.e., the president] . . . will let loose his young men, and you will be swept away . . . . The slow ox-wagons do not answer white men; we build iron roads, and you cannot stop the locomotives any more than you can stop the sun and the moon . . . .”). 160 ROBERT S. ALLEN, HIS MAJESTY’S INDIAN ALLIES: BRITISH INDIAN POLICY IN THE DEFENCE OF CANADA, 1774-1815 15 (1993). 161 Id. 162 Id. 163See id. at 16 (quoting instructions to colonial officials to impress on the Indians that they “are and have always been, the subjects of the King of England”); JAMES WILSON,

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however, politely rebuffed any such suggestion. A Haudenosaunee tradition records the following response to a Dutch proposal of vassalage:

You say that you are our Father and I am your son. We say We will not be like Father and Son, but like Brothers. This wampum belt confirms our words. These two rows will symbolize two paths or two vessels, traveling down the same river together. One, a birch bark canoe, will be for the Indian People, their laws, their customs and their ways. The other, a ship, will be for the white people and their laws, their customs and their ways. We shall each travel the river together, side by side, but in our boat. Neither of us will make compulsory laws or interfere in the internal affairs of the other. Neither of us will try to steer the other's vessel.164

In 1753, responding to a failure of the British to assist the Haudenosaunee in fending off encroachments from western tribes, a party of Mohawks threatened to declare the chain of friendship broken and to “send up a belt of Wampum to our Brothers the 5 Nations to acquaint them the Covenant Chain is broken . . . .”165 This kind of threat is a diplomatic maneuver by a completely independent sovereign, not an entity that has surrendered any of its powers of self-government—especially not the military power.

2. Revolutionary Period

Revolution-era treaties also envisioned tribes as independent nations likely to engage in war from time to time, including in alliance with the newly formed United States. A 1778 treaty with the Delaware tribe reflects the young country’s weak position and need for allies against the British. It provides that the United States will supply the Delaware with

THE EARTH SHALL WEEP: A HISTORY OF NATIVE AMERICA 115 (1998) (arguing that the English viewed the treaties as feudal arrangements). 164 WILSON, supra note 163 at 115–116 (1998); See also What is Wampum? GANONDAGAN, http://www.ganondagan.org/wampum.html (last visited Nov. 24, 2013). 165 ALLEN, supra note 160, at 20.

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“implements of war,”166 while for their part, the Delaware promised to “join the troops of the United States . . . with such a number of their best and most expert warriors as they can spare, consistent with their own safety, and act in concert with them . . . .”167 Furthermore, as Chief Justice Marshall would later explain, at the time of the Founding Indian tribes even had the right of warfare against the United States. “Their appeal [in cases of conflict with the United States or the States] was to the tomahawk, or to the government.”168 That is, Indian tribes were separate nations and resolved their disputes with the United States via warfare and diplomacy.

3. Early 19th Century/Removal Period

Soon after the Revolution, treaties began to call on Indian nations to acknowledge the patronage and protection of the United States. A 1785 treaty with the Cherokee, who had sided with the British in the Revolutionary War, required the tribe to admit that it was “under the protection of the United States of America and of no other sovereign whosoever.”169 The idea that Indian tribes were in some way dependent on the United States would later become the foundation of the legal doctrines diminishing tribal sovereignty.170 Yet even assuming the validity of such doctrine, there is nothing in the mere fact of dependence, in and of itself, that would diminish any specific power of a pre-existing sovereign. As Chief Justice Marshall wrote in Worcester v. Georgia, “A weak state, in order to provide for its safety, may place itself under the protection of one

166 Treaty with the Delaware Nation, U.S-Delaware Nation, art 5, Sept. 17, 1778, 7 Stat. 13, available at http://digital.library.okstate.edu/kappler/vol2/treaties/del0003.htm (last visited Jan. 5, 2014). 167 Id. at art. 3. 168 Cherokee Nation v. State of Georgia, 30 U.S. 1, 18 (1831). 169 Treaty of Hopewell with the Cherokee Nation, U.S.-Cherokee Nation, art 3, Nov. 28, 1785, 7 Stat. 18, available at http://www.cherokee.org/AboutTheNation/History/Facts/TreatyofHopewell,1785.aspx (last visited Jan. 5, 2014). 170See supra note 168 (“It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can with strict accuracy be denominated foreign nations. They may more correctly perhaps be denominated domestic dependent nations . . . . Their relations to the United States resemble that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father.”).

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more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe.”171

Marshall’s view of the Cherokee as a “weak state . . . under the protection of one more powerful” is the most natural reading of the early treaties. But even a federalist reading of “under the protection of the United States”—one that views the tribes as agreeing to be encompassed in the Union—does not, by itself, tell us that any given power of sovereignty is extinguished. Similarly, in order to show that the tribes were divested of some or all of their military powers as sovereign nations when entering the Union, we would still need to rely on specific treaty language.

The 1830 Treaty of Dancing Rabbit Creek with the Choctaw Nation, providing terms of forced removal, seems to envision a hybrid system of patronage. The Choctaw would desist from aggressive warfare against the United States or neighboring tribes, and in exchange the United States would “protect the Choctaws from domestic strife and from foreign enemies on the same principles that the citizens of United States are protected.”172 Thus, the Choctaw are not made citizens of the United States, and are still clearly envisioned as a separate nation, but the United States take on obligations to protect the Choctaw, as if they were citizens.

At the same time, the treaty contemplates the possibility that the United States might call on the Choctaw to fight a common enemy, “provided, no war shall be undertaken or prosecuted by said Choctaw Nation but by declaration made in full Council, and to be approved by the United States, unless it be in self-defense against an open rebellion or against an enemy marching into their country.” 173 The key point is that the Choctaw Nation as a whole is still recognized as having a military power, albeit now primarily defensive and of circumscribed independence.174 (As

171 Worchester v. Georgia, 31 U.S. 515, 520 (1832). 172 Treaty of Dancing Rabbit Creek with the Choctaw Nation, U.S.- Chocktaw Nation, art 5, Sept. 27, 1830, 7 Stat. 333 (emphasis added), available at http://www.choctawnation.com/history/pre-removal-government-treaties/1830-treaty-of- dancing-rabbit-creek/ (last visited Jan. 5, 2014). 173 Id. 174 See also id. at art. 6 (committing the Nation to deliver up for punishment anyone who engages in acts of war “except to oppose an actual or threatened invasion or rebellion”).

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discussed in Part I.A.2, supra, the Choctaw might not have agreed that they were so circumscribed.) Furthermore, far from envisioning the Choctaw as in any way disarmed, the treaty provides that the United States will furnish “to each warrior who emigrates a rifle, moulds, wipers and ammunition.”175

This kind of treaty provision—stipulating that Indian tribes would desist from military activities outside their reservations, relying on United States military protection from exterior threats, but retaining the right to repel invasions and maintain order—appears to have been quite common in the early and mid-19th century.176 For example, the Treaty of Yakima explicitly reserves to the tribe a right to make war with other tribes “in self- defence.”177

4. Late 19th Century/Western Expansion

One might expect that the later treaties with Plains and Southwest Indians, who were often subdued and driven onto reservations only through the operation of considerable military force, would be written almost entirely on the conquering nation’s terms. This view is complicated by the fact that by the 1860s the United States was using nearly identical boilerplate language in treaties with both tribes over whom it had exerted total military control, like the Navajo,178 and those that had actually defeated the United States in battle, like the Sioux.179 Yet this only

175 Id. at art. 20. 176 See also Treaty of Medicine Creek., U.S.-Nisqually, Puyallup, Etc., art 8, Dec. 26, 1854, 10 Stat. 1132, available at http://digital.library.okstate.edu/kappler/vol2/treaties/nis0661.htm (last visited Jan. 5, 2014); Treaty of Yakima, U.S.- Yakima Nation, art. 8, June 9, 1855, 12 Stat. 951, available at http://www.ccrh.org/comm/moses/primary/yaktreaty.html (last visited Jan. 5, 2014). 177 Treaty of Yakima, U.S.- Yakima Nation, art. 8, June 9, 1855, 12 Stat. 951. 178 See John Burnett, The Navajo Nation's Own 'Trail Of Tears', NPR (June 15, 2005) http://www.npr.org/2005/06/15/4703136/the-navajo-nation-s-own-trail-of-tears (last visited Nov. 24, 2013). 179 See JEFFERY OSTLER, THE PLAINS SIOUX AND U.S. COLONIALISM FROM LEWIS AND CLARK TO WOUNDED KNEE 49 (2004) (“For the Sioux, then, the 1868 Treaty entailed the making of a permanent peace between two equal parties.”); id. at 40-46 (describing the U.S.’s unsuccessful attempts to subdue the Sioux through military force in the 1860s). The Sioux would not be finally subdued until 1876, five years after Congress had, for its own

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underscores the point—regardless of whether the tribes were militarily subdued, their treaties did not deprive them of the internal military powers that had been more explicitly retained by tribes like the Choctaw.180 Neither treaty calls for the tribe to disarm, or to refrain from defensive warfare or internal peacekeeping.

Both treaties, moreover, appear to have recognized the tribes’ retained right of exclusion. The treaty with the Navajo, for example, provides that “no persons” shall “pass over, settle upon, or reside in” the tribe’s land, except duly authorized agents “of the Government, or of the Indians.”181 The treaty also contemplates that the tribe might allow “other friendly tribes or individual Indians” to settle among them.182 The land is “set apart” for the “use and occupation” of the tribe. All these taken together would seem to imply a retained right of exclusion. An even more explicit example is the treaty with the Utes, guaranteeing to the tribe “the absolute and undisturbed use” of the land.183

Whether the right of exclusion should by itself suggest a retained and unextinguished right to use force to eject intruders, or to engage in self-defense, can be a somewhat more difficult question.184 The Apache, internal political reasons, ended the treaty-making process with Indian tribes. Indian Appropriation Act, 25 U.S.C. § 71 (2006). 180 They do circumscribe the external activities of the tribe with a high degree of specificity, however. Treaties with the Sioux and the Navajo required, for example, that the tribes “withdraw all opposition to the construction of the railroads,” permit railroad construction “not passing over their reservation,” cease all attacks on the homes, wagon trains, coaches, and livestock of U.S. citizens, and refrain from harming or killing white men. Treaty of Fort Laramie, U.S.-Sioux Nation, art 11, Apr. 29, 1968, 15 Stat. 635; Treaty of Fort Sumner, U.S.-Navaho Nation, art. 9, June 1, 1868, 15 Stat. 667, available athttp://reta.nmsu.edu/modules/longwalk/lesson/document/treaty.htm (last visited Jan. 5, 2014). 181 Treaty of Fort Sumner, U.S.-Navaho Nation, art. 2, June 1, 1868, 15 Stat. 667 (emphasis added). 182 Id. 183 Treaty with the Utes, U.S.-Ute Nation, art 2. Mar. 2, 1868, 15 Stat.619. 184 Confusing matters further, the Supreme Court has been unclear about the exact degree of exclusive control tribes have over their reservations. Compare United States v. Wheeler, 435 U.S. 313 (1978) (holding that tribal governments, unlike cities, counties, or federal territories, constitute a “separate sovereign” within the federal system), Williams v. Lee, 358 U.S. 217, 223 (1959) (“The cases in this Court have consistently guarded the authority of Indian governments over their reservations.”), and Morris v. Hitchcock, 194 U.S. 384, 387-89 (1904) (“[I]t is also undoubted that in treaties entered into with the

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for example, agreed to “refer all cases of aggression against themselves or their property and territory, to the government of the United States for adjustment.”185 Is this merely a grant of jurisdiction in cases of private tort against individuals? Or does the phrase “cases of aggression” include acts of war, either by other tribes or by organized factions of Americans? Does it matter that the Apache agreed to allow American citizens “free and safe passage through the territory,”186 thereby limiting its right to exclude?187 On the other hand, the Apache also agreed, in the same treaty, and again in a separate treaty involving other tribes, to cease military incursions into “Mexican provinces.”188 Does the specificity of this particular promise suggest that a blanket ban on military activities is not intended, on the principle of expression unius est exclusion alterius? None of this is easily resolved.

Chickasaw Nation, the right of that tribe to control the presence within the territory assigned to it of persons who might otherwise be regarded as intruders has been sanctioned . . . .”), with Nevada v. Hicks, 533 U.S. 353 (2001) (holding that a tribal court did not have jurisdiction to hear civil rights claims against state officials executing a warrant against Indians on the reservation), Strate v. A-1 Contractors, 520 U.S. 438 (1997) (holding that tribal courts did not have civil jurisdiction over a traffic accident between nonmembers on a state highway running through the reservation), and Montana v. United States, 450 U.S. 544 (1981) (holding that the tribal government could not regulate hunting and fishing on non-Indian fee land within the reservation). 185 Treaty with the Apache, U.S.-Apache, art 4, July1, 1852, 10 Stat. 979, available at http://digital.library.okstate.edu/kappler/vol2/treaties/apa0598.htm (last visited Jan. 5, 2014). 186 Id. at art. 7. 187 See, e.g., Strate v. A-1 Contractors, 520 U.S. at 455-56 (“Forming part of the State's highway, the right-of-way is open to the public, and traffic on it is subject to the State's control. The Tribes . . . have retained no gatekeeping right. So long as the stretch is maintained as part of the State's highway, the Tribes cannot assert a landowner's right to occupy and exclude.”). 188 See Treaty with the Apache, U.S.-Apache, art 5, July 1, 1852, 10 Stat. 979 (“Said nation, or tribe of Indians, do hereby bind themselves for all future time to desist and refrain from making any ‘incursions within the Territory of Mexico’ of a hostile or predatory character . . . .”); Treaty with the Camanche, Kiowa, and Apache, U.S.-Camanche, Kiowa, and Apache Nations, art 5, July 27,1853, 10 Stat. 1013 (“The Camanche, and Kiowa, and Apache tribes of Indians, parties to this treaty, do hereby solemnly covenant and agree to refrain in future from warlike incursions into the Mexican provinces, and from all depredations upon the inhabitants thereof . . . .”) available at http://digital.library.okstate.edu/kappler/vol2/treaties/apa0598.htm (last visited Jan. 5, 2014).

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Perhaps the clearest example to be found of a tribe explicitly surrendering the right to use some portion of their military power is in the Treaty with the Cheyenne and Arapaho. There the tribes agreed that:

For the purpose of enforcing the provisions of this article it is agreed that in case hostile acts or depredations are committed by the people of the United States, or by Indians on friendly terms with the United States, against the tribe or tribes, or the individual members of the tribe or tribes, who are parties to this treaty, such hostile acts or depredations shall not be redressed by a resort to arms, but the party or parties aggrieved shall submit their complaints through their agent to the President of the United States, and thereupon an impartial arbitration shall be had . . . .189

This appears to be a great limitation on any retained military power. By barring “resort to arms,” even in retaliation for “hostile acts or depredations,” it does seem that the treaty is going beyond the scope of mere tit-for-tat revenge in cases of private tort; the language seems to be a ban on military retaliation even for acts of war against the tribe as a whole.

However, the provision is limited by at least two clauses. One clause specifies that the prescribed method of redress is applicable only when the “hostile acts” are committed by “people of the United States” or the United States’ Indian allies. Presumably tribes hostile to the United States are on their own if they aggrieve the Cheyenne or the Arapaho.

More importantly, there is the initial clause, which limits the ban on military retaliation to the purposes of the first article of the treaty. The treaty must be read in its peculiar context. It was intended to bring an end to a war that had begun with a massacre of Cheyenne and Arapaho villagers by United States soldiers at Sand Creek in 1864.190 Article 6 of

189 Treaty with of the Little Arkansas, U.S.-Cheyenne and Arapaho, art 1, Oct. 14, 1865, 14 Stat. 703, (emphasis added), available at http://digital.library.okstate.edu/kappler/vol2/treaties/che0887.htm (last visited Jan. 5, 2014). 190 See S. DOC. NO. 26, at 11-14 (1867) (testimony describing the attack).

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the treaty acknowledges the wrong done and provides for reparations.191 In light of these circumstances and the language limiting it to “the purposes of enforcing” the first article (i.e., the end of the war), the most natural reading of the non-retaliation provision is that it is intended to bring a halt to what might otherwise have become a cyclical blood feud. It was not intended to deprive the tribes of a military power generally.

Even in the 1866 treaty with the Cherokee—who had sided with the Confederacy in the Civil War, and who were therefore an explicitly defeated enemy—the United States does not abolish the Nation’s military power per se.192 Instead, the treaty merely requires the tribe to turn over all weapons “and quartermaster's stores” belonging to either the United States or the Confederacy.193 This provision seems like little more than an attempt to secure loose munitions in Confederate-friendly country194— especially because it immediately follows an amnesty provision for all “wrongs committed in aid or in the suppression of the rebellion.”195 It certainly lacks the absolute sweep of other provisions in the treaty that clearly were intended to limit the Cherokee government’s powers. An example of this is found in the provision bringing Cherokee abolition of slavery into conformity with the Thirteenth Amendment,196 or the one

191 Treaty with of the Little Arkansas, U.S.-Cheyenne and Arapaho, art 6, Oct. 14, 1865, 14 Stat. 703, available at http://digital.library.okstate.edu/kappler/vol2/treaties/che0887.htm (last visited Jan. 5, 2014). 192 See generally Treaty with the Cherokee Nation, U.S.-Cherokee Nation, July 19, 1866, 14 Stat. 799, available at http://digital.library.okstate.edu/kappler/vol2/treaties/che0942.htm (last visited Jan. 5, 2014). The treaty is also highly tribe- and circumstance-specific, unlike the more boilerplate language of the Navajo and Sioux treaties. 193 Id. at art. 2. 194 The post-Civil War treaty with the Choctaw and Chickasaw similarly demands the surrender of “ordnance, ordnance stores, and arms of all kinds” belonging to the “so- called Confederate States of America.” Treaty with the Choctaw and Chickasaw,U.S.- Choctaw and Chicksaw Nation, art 5, Apr. 28,1866, 14 Stat.769, available at http://digital.library.okstate.edu/kappler/vol2/treaties/cho0918.htm (last visited Jan. 5, 2014). 195 Id. 196 Id. at art. 9.

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giving the United States President discretion to “correct” certain Cherokee laws.197

5. Extrinsic Sources

We might also ask whether extrinsic sources could shed light on whether the parties (but especially the United States) intended the treaties to extinguish the military power. Records of Indian treaty negotiations are sometimes used by courts to resolve ambiguities or otherwise shed light on the application of treaty provisions.198 Although an exhaustive survey is not possible within the scope of this article, perusal of some of the better- known records of Indian treaty negotiations does not suggest a general understanding, on the part of either tribal or United States representatives, that treaties with the United States included an extinguishment of tribal military power.

For example, the proceedings of the Council at the Walla Walla Valley, where Governor Isaac Stevens of the Washington Territory met with the Umatilla, the Cayuse, and the Walla Walla to convince them to move onto reservations, contain no hint of any attempt to negotiate away their military power.199 The United States negotiators do admonish against internecine war on moral grounds,200 but there is simply no hint that the treaty would involve a surrender of the military power, even despite the hostile circumstances under which negotiations took place.201 The final

197 Id. at art. 6. 198See, e.g., Mille Lacs Band of Chippewa Indians v. State of Minnesota, 124 F.3d 904, 916 (8th Cir. 1997) aff'd sub nom. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (“Defendants do not point to a single document indicating that the 1837 treaty negotiations included discussion of removal.”); United States v. Webb, 219 F.3d 1127, 1137 (9th Cir. 2000) (citation omitted) (“[T]he record of negotiations with the Yankton Sioux disclosed a desire to ‘dissolve . . .tribal governance,’ motivation utterly absent from the Nez Perce negotiations.”). 199 See PROCEEDINGS AT THE COUNCIL IN THE WALLA WALLA VALLEY (1855), reprinted in ROBERT H. RUBY & JOHN ARTHUR BROWN, THE CAYUSE INDIANS: IMPERIAL TRIBESMEN OF OLD OREGON 315-370 (1972). 200 Id. at 379 (“We not only want you to be at peace with all whites but we want you to be at peace with yourself. We didn’t come here to divide you or to induce one to be against another. Why should you be at war with each other? You may live at separate places, but your hearts would be as one and help each other.”). 201 In his diary of the negotiations, Lawrence Kip describes the discovery, after the negotiations, of a narrowly defeated proposal by the Cayuse to massacre the American

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treaty stipulated that the tribes would refrain from “depredations” against United States citizens and would not make war with other tribes “except in self-defence.”202 This treaty put the tribes on roughly the same footing, it would appear, as the Choctaw, the Yakama, and others discussed above.203

To add to the notion that treaties were not intended to terminate tribal military power, the treaty provisions provided the Choctaw with rifles and ammunition, and the Walla Walla negotiators promised the tribes a gunsmith to ensure their weapons worked.204 Similarly, General Sherman promised the Sioux “powder and ball” as an incentive during negotiations a year before the Fort Laramie treaty.205 In fairness, the weapons are discussed primarily as tools for hunting, but the general point remains that American negotiators did not anticipate that the tribes would be disarmed.

Indeed, as late as 1868, General Sherman made very clear, during negotiations with Navajo leader Barboncito, that the tribe still had the same rights of defensive warfare we have already seen were explicitly retained by the Choctaw and others:

[Y]ou must live at peace and must not fight with other Indians . . . . The Army will do the fighting, you must live at peace, if you go to your own country the Utes will be the nearest Indians to you, you must not trouble the Utes and the Utes must not trouble you. If however the Utes or Apaches come into your country with bows and arrows and

negotiating party. LAWRENCE KIP, INDIAN COUNCIL IN THE VALLEY OF THE WALLA WALLA (1855). 202 Treaty with the Walla Walla, Cayuse and Umatilla, U.S.-Walla Walla, Cayuse, and Umatilla, art 8, June 9, 1855, 12 Stat. 945, available at http://digital.library.okstate.edu/kappler/vol2/treaties/wal0694.htm (last visited Jan. 6, 2014). 203 See supra notes 175-76, and accompanying text. 204 RUBY & BROWN, supra note 199, at 352. 205 Sherman, supra note 159.

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guns you of course can drive them out but must not follow beyond the boundary line.206

In short, even as late as 1868, it seems clear that negotiators were still envisioning Indian nations as holding a military power, albeit one limited to defensive and internal purposes, not to be directed in aggression against the United States itself or its neighbors. This is arguably no less than what the States themselves retain under our federal system,207 especially after the Civil War.208

The overwhelming conclusion is that 19th-century negotiators for both the tribes and the United States overwhelmingly understood themselves to be negotiating certain conditions to be placed on the tribes’ use of the military power. It was understood that the power would be used defensively, and, more specifically, that tribes would refrain from attacking the United States and its allies—rather than extinguishing that power entirely.

As noted above, treaties are generally binding only on the signatory tribes. But because the United States has been a party to each one of those treaties, their collective outline may yield the closest thing we have to universal principles regarding United States-tribal relations—including, in this case, the principle that tribes have not relinquished a defensive/internal military power.

206 Council Proceedings (May 28, 1868) (emphasis added) available at http://reta.nmsu.edu/modules/longwalk/lesson/document/may28.htm (last visited Nov. 24, 2013). 207 See U.S. CONST. art. I, § 8, cl. 15 (limiting even the federal use of state Militias to “execut[ing] the Laws of the Union, suppress[ing] Insurrections and repel[ling] Invasions”); see also Wiener, supra note 17, at 189, 192-93 (detailing situations in which state militias refused to go abroad for war, on the theory that their role was domestic and defensive). 208 See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 212 (1983) (calling the theory of the Second Amendment as supporting States’ right to armed revolt against the U.S. “little more than a holdover from an era of constitutional philosophy that received its death knell in the decision rendered at Appomattox Courthouse”).

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C. Federal Statutes

Though treaties form a significant basis for understanding which powers of sovereignty tribes retain, they do not tell the whole story because Congress is generally assumed to have “plenary power” over Indian tribes.209 Is there, then, any federal statute that prohibits formation of militias by Indian tribes?

Nothing in Title 25 of the United States Code—dealing with Indians—forbids a tribe from maintaining a militia. On the other hand, Title 32 of the United States Code, regulating the National Guard, does forbid “a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands” from maintaining troops in peacetime except for its National Guard troops.210 Does this limitation prevent tribes from raising a militia outside the National Guard system?

Arguably not, for two reasons. First, Title 32 does not even prevent the States from raising a militia that would act purely as a defensive or internal force211—exactly the kind of military power which, as I have argued above, remains in the tribes’ hands. Second, the text of the provision is quite inclusive, naming territories (Guam and the Virgin Islands), a commonwealth (Puerto Rico), and a federal capital district (D.C.). Yet it excludes Indian tribes. Furthermore, 32 U.S.C. § 101 provides that “[f]or purposes of other laws relating to the militia . . . the term ‘Territory’ includes Guam and the Virgin Islands.” In 10 U.S.C. §335, a chapter governing the use of state militias to control insurrections, “State” is defined to include those same territories. Again, neither mentions Indian tribes. Note, however, that numerous other parts of the

209 The strongest statement of the principle is probably found in United States v. Kagama, 118 U.S. 375, 384-85 (1886) (asserting that the power over tribes must exist in Congress, because “it never has existed anywhere else; because the theater of its exercise is within the geographical limits of the United States; because it has never been denied; and because it alone can enforce its laws on all the tribes”). Later courts have backed off Kagama’s position somewhat. See, for a summary of the changes, United States v. Doherty, 126 F.3d 769, 778 (6th Cir. 1997). 210 32 U.S.C. § 109(a), (c) (2006). 211 Id. at § 109(c). Although the term “defense force” is used, such militias do more than just respond to invasions. See infra Part IV.B discussing State Defense Forces.

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United States Code include the phrase “Indian tribe” in similar lists,212 suggesting that Congress will name tribes explicitly when it intends to include them.

Federal regulation might inevitably follow the formation of tribal militias. If a tribe were to adopt a militia program as a means of dealing with crime along international borders,213 for example, the federal executive’s broad power over international relations would likely be implicated. Moreover, male tribal members between 17 and 45 are already a part of the federal unorganized militia.214 To avoid conflicts with federal policy, perhaps tribes should be brought within the scope of 32 U.S.C. § 109. However, they are not; federal statutes simply do not regulate tribal militias.

D. The Role of the States

It is uncertain whether state law would have any effect on tribal militias. Some states prohibit or heavily regulate non-state-sponsored militias within their geographical boundaries.215 Florida, for example, requires paramilitary organizations to be specially licensed216 and bans paramilitary training or drilling for purposes of engaging in civil disorder.217

These statutes likely apply only to individuals, not to independent sovereigns. Although some states do exercise criminal jurisdiction over Indian individuals on tribal reservations,218 and recent Supreme Court cases have tended to move away from an absolute prohibition on state regulation,219 states generally may not interfere with the functioning of

212 See, e.g., 18 U.S.C. § 2265 (2006); 28 U.S.C. § 1738C (2006); 42 USC § 12523 (2006). Others include “Indian country,” as well as territories, in a broad definition of “State.” See, e.g., 28 U.S.C. § 1738B(b) (2006). 213 See infra Part III.A. 214 10 U.S.C. § 311 (2006). This “unorganized militia” is the last remnant of the national universal militia and the source of draftees when there is a draft. 215 For an excellent primer, see Joelle E. Polesky, The Rise of Private Militia: A First and Second Amendment Analysis of the Right to Organize and the Right to Train, 144 U. PA. L. REV. 1593, 1606 (1996). 216 FLA. STAT. ANN. § 870.06 (West 2012). 217 FLA. STAT. ANN. § 790.29 (West 2012). 218 18 U.S.C. § 1162 (2006), 28 U.S.C. § 1360 (2006), 25 U.S.C. §§ 1321 (2006). 219 See Rice v. Rehner, 463 U.S. 713, 718 (1983).

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tribal governments. States may not directly tax tribal enterprises,220 for example, or regulate tribally-managed game herds.221

In Nevada v. Hicks, the Supreme Court distinguished between “on- reservation conduct involving only Indians,” where “state law is generally inapplicable,” and a situation where “state interests outside the reservation are implicated” and states might have authority to intervene.222 Whether a state could ban or limit a tribal militia is untested legal territory, but the answer might turn on the degree to which the militia is understood as being limited in reach and scope—that is, not implicating the security of the state itself.

There is no reason a tribal militia should necessarily threaten a surrounding state—given the population disparities between tribes and states. However, there would certainly be government-to-government issues to work out: the tribal militia’s ability to detain non-Indian state citizens during times of public emergency, for example, or its ability to patrol and enforce the borders of the reservation. In jurisdictions where tribes lack clearly defined reservations or in areas under state regulatory jurisdiction that lie cheek-by-jowl with those under tribal jurisdiction (Oklahoma, for example), the use of a tribal militia is obviously much more likely to implicate the state’s sovereign functions.

Perhaps the best that can be said on this subject is that tribes would likely have to take state interests into account in deciding how to employ a tribal militia; that the degree of state interest is likely to be highly situation-dependent; and that it could be the subject of litigation.

III. WHY A MILITIA?

Assuming they have the right to do so, we may ask why Indian tribes might need or want to organize a citizen militia. The very short answer is, for the same reasons any other sovereign might. But a slightly more nuanced answer should address reasons specific to tribal

220 Okla. Tax Comm’n. v. Chickasaw Nation, 515 U.S. 450 (1995) (holding that where the incidence of a fuel tax falls on the tribe as vendor, the tax is invalid). 221 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). 222 Nevada v. Hicks, 533 U.S. 353, 361-62 (2001).

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governments. With the caveat that of course no single governance tool (including citizen militias) will be appropriate to every one of the 565 federally-recognized Indian communities,223 I examine some of these reasons below.

A. Maintaining Territorial Control and Reducing Crime

Tribes, like other sovereigns, have the right to secure their territories and exclude unwanted intruders.224 Among sub-federal sovereigns in the United States, this ability may be subject to federal limitations. For example, states may not exclude citizens from other states.225 Indian tribes, by contrast, have some powers that states do not have226—including the power to exclude nonmembers, at least from trust- held, tribally-owned, or member-owned lands within the reservation,227 and in certain cases from the reservation entirely.228

Tribal police, however, are often understaffed and asked to patrol vast territories.229 They simply may not have the manpower to exclude, for

223 BUREAU OF INDIAN AFFAIRS, TRIBAL LEADERS DIRECTORY (2012), available at http://www.bia.gov/cs/groups/public/documents/text/idc002652.pdf (last visited Nov. 24, 2013). 224See Arizona v. United States, 132 S. Ct. 2492, 2511 (2012) (Scalia, J., dissenting) (emphasis added) (“[M]ost would consider the defining characteristic of sovereignty . . . [to be] the power to exclude from the sovereign's territory people who have no right to be there.”). 225 See U.S. CONST. art IV, § 2 (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”); Saenz v. Roe, 526 U.S. 489, 498 (1999) (internal quotation marks omitted) (“[T]he constitutional right to travel from one State to another is firmly embedded in our jurisprudence.”). 226 Native Am. Church of N. Am. v. Navajo Tribal Council, 272 F.2d 131, 134 (10th Cir. 1959) (“Indian tribes are not states. They have a status higher than that of states.”). 227See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 160 (1982) (Stevens, J., dissenting) (“[A] tribe may exclude nonmembers entirely from tribal territory”); Monestersky v. Hopi Tribe, No. 01AP000015, 2002.NAHT.0000003 (Hopi Tribal App. Ct., June 27, 2002) (holding that the tribe has an inherent right to exclude nonmembers); Alire v. Jackson, 65 F. Supp. 2d 1124 (D. Or. 1999) (holding that civil exclusion of nonmember Indian was not grounds for habeas relief). 228 Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985) (holding that tribe could exclude non-Indian even from fee land, where he had initially entered the reservation under color of a lease that specifically reserved right of exclusion). 229 Examination of Federal Declinations to Prosecute Crimes in Indian Country: Hearing Before the S. Comm. on Indian Affairs, 110th CONG. 1 (2008) (statement of Sen. Byron Dorgan, Chairman, S. Comm. on Indian Affairs) (“Less than 3,000 Bureau of Indian

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example, non-Indian criminals taking shelter within the reservation, or to prevent them from engaging in criminal conspiracies with tribal members.230 A citizen militia could give professional law enforcement a substantial manpower boost without the cost of adding full-time employees to already tight tribal budgets.

This may be especially useful on-reservations that are essentially “border states.” Both the St. Regis Mohawk territory in New York and the Tohono O’odham territory in Arizona stretch across national borders— reaching into Canada and Mexico, respectively. Each has become a gateway for smugglers who take advantage of the lack of law enforcement as well as “[t]he deep loyalty that exists within tribes, where [cross-border] neighbors are often related, and the intense mistrust of the American justice system” among reservation residents.231 Some members may even flout the tribal government’s own laws to take part in or support cross- border activities.232 This dynamic leads to both weakening of the tribal government’s legitimacy and the intrusion of federal authorities. At Tohono

Affairs and tribal police patrol more than 56 million acres in Indian lands.”); BUREAU OF JUSTICE STATISTICS, CENSUS OF TRIBAL JUSTICE AGENCIES IN INDIAN COUNTRY iii, 5 (2002) (noting that only 165 of the 314 tribes responding employed at least one full-time sworn officer), available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=543 (last visited Jan. 6, 2014); John Christopher Fine, Profile: Cheyenne River Sioux Tribal Police, 9-1-1 Magazine, Feb. 27, 2012, (“We were down to six officers to patrol the whole reservation, now we have thirteen . . . . We had five thousand more calls [per year] than the Rapid City, South Dakota Police Department . . . . We average 13,500 calls per year.”), available at http://www.9-1-1magazine.com/Fine-Cheyenne-River-Sioux-Tribal-PD (last visited Jan. 6, 2014). 230 See Sarah Kershaw, Drug Traffickers Find Haven in Shadows of Indian Country, N.Y. TIMES (February 19, 2006), http://www.nytimes.com/2006/02/19/national/19smuggle.html (last visited Nov. 24, 2013) (describing the invasion of some reservations by organized crime). 231 Id. 232 See id. (noting that the Mohawk government spends half its budget on border patrol and law enforcement, but that many tribal members are nonetheless “recruited” to assist in drug smuggling); Todd Miller, Ground Zero: The Tohono O’odham Nation, NACLA, Nov. 2, 2012, http://nacla.org/blog/2012/11/2/ground-zero-tohono-oodham-nation (last visited Nov. 24, 2013) (“Mike Wilson, a Tohono O’odham man . . . puts out water in stations on the reservation [for those attempting illegal border crossings] in defiance of the Nation’s legislative council . . . .”).

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O’odham, for example, the Border Patrol presence has been described as an “occupying army”233 and a “militarized zone”234 on the reservation.

The creation of a tribal citizen militia could address these sorts of problems in several ways. First, a militia could provide a mechanism by which the federal government could provide support and training for better law enforcement and border control without invading the reservation and taking over. In Part IV(C) I suggest that it might be possible to incorporate tribal militias into the National Guard system. Even absent such a drastic step, it seems that a reservation population with arms and some militia training might be effectively mobilized to provide much of the manpower needed, even when federal authorities do feel the need to take action on the reservation.

Second, the adoption of militia laws on the reservation could go hand-in-hand with an overall gun control scheme: the tribal government could use the militia as a conduit for registration of household weapons, and weapons not registered through the militia could be outlawed or tightly regulated.235 This would give law enforcement an additional tool in detaining, arresting, and prosecuting criminals on the reservation even when they are not presently engaged in smuggling or trafficking.

Third, there is at least a plausible argument that a citizen militia, especially if universal, could forge a tighter bond between the people and their government. This might generate positive effects in both directions— deterring crime by citizens on the one hand, but also deterring corruption and the capture of government institutions by crime syndicates on the other.236 From the perspective of the political theory that informed the framing of the Constitution, this is a primary purpose of a citizen militia: to act as a safeguard against overreach by a government. To put it in a more

233 Id. 234 Erik Eckholm, In Drug War, Tribe Feels Invaded by Both Sides, N.Y. TIMES (Jan. 24, 2010) http://www.nytimes.com/2010/01/25/us/25border.html (last visited Nov. 24, 2013). 235 See generally Angela R. Riley, Indians and Guns, 100 GEO. L.J. 1675 (2012) (explaining that tribal governments probably have much more latitude than state and federal lawmakers in enacting gun control following District of Columbia v. Heller). 236 See Kershaw, supra note 230 (reporting allegations of tribal officials colluding with criminals at the Wind River and Red Lake reservations).

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positive light, the more tightly a government’s use of force is bound to the people’s consent, the more legitimacy it will have. Therefore, where a tribal government has struggled to enforce the law against its own citizenry’s wishes, the militia becomes a way for the citizenry to “buy into” government and for the government to acquire a measure of trust.

In short, endowing tribal governments with the ability to organize the people to disrupt criminal enterprises, drive out intruders, and patrol their own territory could greatly augment existing police forces and increase public safety. It might also increase the legitimacy of tribal governments, both by forestalling federal intervention on the reservation and by giving tribal citizens a direct role in the use of force by the government.

B. Disaster Readiness

Apart from strengthening tribes’ ability to exercise territorial control, a citizen militia could be useful in other ways. Like everyone else, tribes face increased threats of natural disasters in the coming years. In 2011, for example, the massive Las Conchas fire devastated the Santa Clara Pueblo,237 and the Crow Reservation experienced catastrophic flooding.238 The Spirit Lake Reservation has been dealing with continuous flooding for nearly two decades,239 and in 2011 it and two other reservations in North Dakota were declared part of a disaster area.240 In such situations, it may be useful to have the people organized as a rapid-response force to mitigate damage, rescue the injured, and control opportunistic crime.

237 See, e.g., Facing Floods and Fires: Emergency Preparedness for Natural Disasters in Native Communities: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 59 (2011) (statement of Walter Dasheno, Governor, Santa Clara Pueblo). 238 Lorna Thackeray, Reservation Flooding: Flood Emergency Declared on Crow Reservation, BILLINGS GAZETTE (May 23, 2011), http://billingsgazette.com/news/state-and- regional/montana/flood-emergency-declared-on-crow-reservation/article_0bee3562- 93dd-527d-8810-cc491fe271fc.html (last visited Nov. 24, 2013). 239 Lisa M. Hamilton, Spirit Lake Rising: Living with a Neverending Flood, ATLANTIC (May 31, 2011), http://www.theatlantic.com/national/archive/2011/05/spirit-lake-rising-living- with-a-neverending-flood/239644/ (last visited Nov. 24, 2013). 240 Office of the Governor, Disaster Declaration Approved for North Dakota Flooding, ND (May 10, 2011), http://governor.nd.gov/media-center/news/disaster-declaration-approved- north-dakota-flooding (last visited Nov. 24, 2013).

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In addition, the Federal Emergency Management Agency urges individual tribal members to have an emergency plan ready in case a natural disaster strikes.241 However, as with the American population at large, that idea is not always translated into practice, as a 2009 survey on the Chehalis Reservation illustrates. According to the survey, only 13 percent of Chehalis citizens had a household emergency plan, and only 17 percent had spare supplies set aside for an emergency.242 Yet, the same remoteness from federal and state hubs that makes reservations subject to inadequate law enforcement can likewise make them subject to delays in emergency services as well as greater difficulty evacuating.243 A militia—especially a universal militia, with members in every household— could be a useful hub for distributing supplies, ensuring that citizens are familiar with emergency plans and evacuation routes, and training household members in first aid and other useful self-help skills.

C. Esprit de Corps/Tribal Identity

Finally, tribes may wish to create tribal militias for purely cultural reasons. For about a century, various assimilationist policies of the federal government encouraged or demanded that Indians relinquish traditional ways and become “civilized” in accord with Euro-American norms.244 In recent years, many tribes have attempted to reverse the damage wrought by assimilation by training young people in inherited ceremonial and practical skills.245 A tribal militia might similarly be a venue for young tribal

241 Federal Emergency Management Agency, Make a Plan: Indian Country, READY, http://www.ready.gov/make-a-plan/indian-country (last visited Nov. 24, 2013) (under the tab “Readiness Planning”) [hereinafter FEMA]. 242 CHEHALIS TRIBE, CHEHALIS RESERVATION NATURAL HAZARDS MITIGATION PLAN 18 (2009). Nationally, about 46 percent of Americans have a household plan and about 43 percent have emergency supplies. FEDERAL SIGNAL, UNCOVERING THE SAFETY CONCERNS OF AMERICANS 5-7 (2010). 243 FEMA, supra note 241 at Special Considerations. 244 The story is almost too well known to rehearse, but see, for example, Charla Bear, American Indian Boarding Schools Haunt Many, NPR (May 12, 2008), http://www.npr.org/templates/story/story.php?storyId=16516865 (last visited Nov. 24, 2013). 245See, e.g., Laurel Morales, Forget the Heels: What it Takes to Be Miss Navajo, NPR (Sept. 8, 2012), http://www.npr.org/2012/09/08/160789972/forget-the-heels-what-it-takes- to-be-miss-navajo (last visited Nov. 24, 2013) (describing the positive psychological benefits for young Navajo women of connecting with traditional tribal activities); The

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members to engage in tribal traditions of self-sacrifice, public service, and physical bravery.246 Such a venue may be especially useful for young men who feel trapped by both poverty and the history of cultural destruction.247 An interview with Anderson Thomas, director of the Ramah Navajo behavioral health program, confirms this point:

[I]t’s typically young men who are dying by suicide, not young women. “I’d say more than 90 percent of girls here go through their traditional coming-of-age ceremony,” he said. In contrast, little is done for young males. In large part, he said, that’s because traditional male activities like hunting have diminished, so rituals related to them have dropped off as well. Though Ramah Navajo men and boys can obtain conventional therapy, they also need ceremonies, Thomas said.248

Always keeping in mind that tribal militias need not be male-only enclaves, military service to the community surely counts as a “traditional male

Kitchen Sisters, Four Days, Nights: A Girls’ Coming-of-Age Ceremony, NPR (Sept. 6, 2010), http://www.npr.org/templates/story/story.php?storyId=129611281 (last visited Nov. 24, 2013) (describing a Yankton Sioux coming-of-age ritual for girls); Pauline Arrillaga, Indian Tribe Fights to Preserve Tradition with Coming-of-Age Ceremony, ELLENSBURG DAILY RECORD B2 (Oct. 1, 2001) (describing an Apache community’s challenges in transmitting ceremonial and religious traditions to the younger generations). 246 More so even than their American and European counterparts, American Indian military traditions often included a significant non-military public service component. See, e.g., LINDA PERTUSATI, IN DEFENSE OF MOHAWK LAND: ETHNOPOLITICAL CONFLICT IN NATIVE NORTH AMERICA 42 (1997) (“Although the Mohawk language contains no word that literally translates as ‘warrior,’ the Mohawk word ‘rotiskenrakhete’ symbolically means ‘warrior.’ Rotiskenrakhete means those who ‘carry the responsibility of protecting the origins,’ or ‘carry the burden of peace.’”); KARL LLEWELLYN, THE CHEYENNE WAY: CONFLICT AND CASE LAW IN PRIMITIVE JURISPRUDENCE 99-131 (1941) (giving examples of “military societies” involved in dispute resolution and social discipline in traditional Cheyenne society). 247 Stephanie Woodard, Suicide Is Epidemic for American Indian Youth: What More Can Be Done?, NBC, (Oct. 10, 2012), http://openchannel.nbcnews.com/_news/2012/10/10/14340090-suicide-is-epidemic-for- american-indian-youth-what-more-can-be-done (last visited Nov. 24, 2013) (“Native youngsters are particularly affected by community-wide grief stemming from the loss of land, language and more. . . .”). 248 Id.

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activity,” and a citizen militia could be used to connect young men with culturally specific military traditions.

In short, a citizen militia may serve a tribe’s immediate practical needs, and it may also serve longer-term, less concrete needs such as maintaining sovereignty, and transmitting tribal values and traditions to the next generation. But what form of militia would be most useful in achieving those goals? The next Part attempts to answer that question.

IV. MODELS OF A TRIBAL CITIZEN MILITIA

If a tribal militia might be useful to tribal governments, and its formation appears to be lawful, the remaining question is how a militia could be organized. In the following sections, I consider three forms of organization. First, there are “select” militias, which have some precedent in 19th-and 20th-century Indian country. Second, there are “universal” militias, which would arguably ameliorate some of the select militia’s shortcomings and provide additional benefits, but which also present certain functional and definitional challenges. Finally, there is the modern National Guard system, which could provide funding and a broader mission for tribal militias, but would almost certainly impinge on both the flexibility and the distinctive cultural flavor of a tribal militia.

A. Select Militias

The Cherokee, Choctaw, Pine Ridge, and Mohawk experiences all show, in different ways, that militias comprised of something less than the whole body of the people may struggle for legitimacy. The legitimacy of a select militia will always be closely tied to the legitimacy of the government it serves. A select militia is thus most likely to be both functional and accepted as legitimate where the tribal government is well established, generally free from allegations of corruption, and bolstered by strong democratic safeguards.249 This is, of course, somewhat like saying

249 Such democratic safeguards will not necessarily mirror Anglo-American institutions. In traditional Haudenosaunee governance, for example, the check on the Chiefs is not direct election, but careful selection by Clan Mothers accompanied by the possibility of removal for cause. See People of the Hills, ONONDAGA NATION, http://www.onondaganation.org/gov/chiefs.html (last visited Nov. 24, 2013).

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warrantless wiretapping works best when the people have a high level of confidence in the integrity of the intelligence services; once the possibility is admitted at all, it is difficult to prevent its abuse, or in any event the perception of abuse.

Consider our historical precedents. In the case of John Ross’s Light-horsemen, complaints about its legitimacy may have been largely the work of a disgruntled political minority; in the case of Dick Wilson’s GOONs, the complaints appear to have been objectively valid. But as we saw in the Cherokee case, even where the complaints are not well- founded, they may be used to justify federal intrusion into Indian affairs. Wilson’s abuses also pushed citizens to take up arms themselves, which, again, invited federal intrusion. The overall point, of course, is that perceived or real misuse of a select militia can end up threatening tribal sovereignty, above and beyond whatever civil rights abuses occur.

Some select militias are likely to be better than others. The more representative it is of the people (in terms of both absolute numbers and demographics), the more likely the militia will be seen as legitimate. One way to ensure that the militia’s membership is representative of the people rather than obedient to a particular leader is to create regular, published standards for recruiting and training members. Recruitment, in particular, should be highly regularized to ensure that favoritism does not creep in, and in general command should be separated from oversight.

Such separation may be particularly challenging in communities operating under, for example, unmodified Indian Reorganization Act (IRA) constitutions, which “typically established a system of centralized government”250 and “did not provide for any separation of powers.”251 (Felix Cohen, who oversaw the organization of tribes under the IRA, envisioned tribal government essentially like a town council,252 rather than a sovereign with enough power and authority to need careful separation.) Some tribal constitutions may not have organs of government sufficiently

250 OFFICE OF INDIAN ENERGY AND ECONOMIC DEVELOPMENT, TRIBAL BUSINESS STRUCTURE HANDBOOK II-1 (2008). 251 POMMERSHEIM, supra note 149, at 65. 252 David E. Wilkins, Introduction, in FELIX S. COHEN, ON THE DRAFTING OF TRIBAL CONSTITUTIONS xxii (2006).

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separated to provide adequate independent oversight of a militia’s functioning, which increases the likelihood that a select militia could be misused.

However, the advantages of a select militia should also not be overlooked. A select militia is easier to manage, train, and equip than a universal militia. Membership can be made contingent on competence and fitness, and morale is generally higher among volunteers than among those required to serve. In some cases, a select militia may also be politically easier to achieve, because it does not require the participation of the entire community. For tribal communities that have thought deeply about separation of powers and attempted to strengthen tribal courts or other organs of independent review, a select militia may well be workable.253

B. A Universal Tribal Militia

The appeal of a “universal” militia—that is, a militia whose composition is large enough to include a member from every, or nearly every, household—is that by its very nature it represents the people. Unlike a select militia, which will often (justly or not) be seen as the tool of a governing elite, the universal militia inherently acts as a counterweight to overreaching tribal government, putting the brakes on civil rights abuses and other questionable policies.

A universal militia is also the kind best suited to enhancing emergency preparedness. Where the militia has members in every household, ensuring that each household has an emergency plan and the necessary supplies becomes a simple task. And the militia could provide both an effective network for disseminating information during an emergency and a large pool of trained emergency workers when the situation requires it.

253 I use the term “separation of powers” here, which has an undeniably Anglo-American ring to it. But recall that the Cheyenne, for example, arrived at the same practice independently, forbidding civilian chiefs from also being soldier chiefs. See supra Part I.A.1.

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Finally, because it would touch the majority of households in the community, a universal militia could be an effective focal point for a wide array of meaning-building activities: it could become an institution for training young people in traditional values; it could act as an informal network for transmitting important political ideas; its drills could be augmented with community get-togethers; and (if desired) its ceremonial functions could be meshed with the community’s ceremonial/religious life.254

How might a universal tribal militia be structured? Traditional American militias depended on two sorts of laws; laws requiring militia members to own weapons and other accoutrements of military service, and laws requiring regular drill. For example, the Massachusetts colony required that “all inhabitants” have “armes in their howses fitt for service, with pouder, bullets, [and] match,”255 and that “every captains shall traine his companie on Saterday in everieweeke” (later reduced to once- monthly).256

Whether this would work in the modern tribal context is probably highly contingent on circumstances. Although gun ownership is thought to be widespread on reservations,257 exact numbers are elusive. One can imagine a tribal community in which requiring gun ownership would not be terribly burdensome, and the tribal government might be able to assist members who don’t already own guns with purchasing them. But one can also imagine communities where such a requirement might impose a serious hardship. Moreover, relying on individuals to provide their own weapons would necessarily mean that weapons would not be

254 Tribal governments have somewhat wider latitude than other American sovereigns in integrating religion into governance; see Talton v. Mayes, 163 U.S. 376, 384 (1896) (holding that tribes are not governed by the Bill of Rights); Indian Civil Rights Act, 25 U.S.C.§§ 1301-1304 (2006) (creating certain statutory analogues to the Bill of Rights, but omitting an Establishment Clause analog). 255 NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY 102 (2012). 256 ROBERT K. WRIGHT, MASSACHUSETTS MILITIA ROOTS: A BIBLIOGRAPHIC STUDY 3 (1986). 257 EDITH G. C. WOLFF, GUN VIOLENCE ON INDIAN RESERVATIONS: AN ADVOCACY CAMPAIGN TO COLLECT DATA AND RAISE COMMUNITY AWARENESS 5 (1998) (“Gun ownership is widespread on many reservations, especially rural ones . . . .”).

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standardized, making firearms training, and maintenance more of a challenge.

Similarly, requiring some large percentage of the populace to attend drill once a month may or may not be feasible in a given tribal community. On the one hand, any community that elects to adopt a universal militia program presumably has a great deal of buy-in from the public, such that people would be willing to abide by such a requirement. On the other hand, reservations are often geographically quite large, which might make regular drills logistically challenging. Decentralized training would probably be key, and the tribal government might also have to arrange transportation.

Still, a universal tribal militia need not look like the Massachusetts Militia of 1628. The degree to which militia members need to be armed, be armed uniformly, or develop a high degree of weapons proficiency will vary enormously from situation to situation. At one extreme might be the “border state” problem discussed above, in which a citizen militia might face armed and hostile foreign drug gangs. In that circumstance, to have a militia at all would be to take on the responsibility of sufficiently arming and training militia members for actual combat.

By contrast, where the militia is intended more for emergency management, it might resemble State Defense Forces—quasi-military volunteer groups organized by many states. Such groups are often given training in emergency medical services258 and plugged into the emergency plans of the National Guard.259 Their duties may also include logistical support and, for example, assisting firefighters in “monitoring real-time fire behavior.”260 Members of State Defense Forces do not need to meet the combat-ready marksmanship and fitness standards of the regular forces. However, they may still take on certain obligations, including purchasing uniforms, training for a certain number of hours each year, and agreeing to

258 See, e.g., Military Emergency Medical Specialist Academy (MEMS), STATE GUARD ASS’N OF THE U.S., http://www.sgaus.org/training/mems.asp (last visited Nov. 24, 2013). 259 CAL. NAT’L GUARD, 2008 CALIFORNIA NATIONAL GUARD YEAR IN REVIEW 31 (2008) (describing the activation of 155 state defense force members to assist the California National Guard in fighting wildfires). 260 Id.

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be bound by a military code.261 A universal tribal militia where armed defense is not necessary or desirable might follow a similar model.

Of course, there are many possible in-between models—a militia that requires some basic arms training, but not high levels of proficiency or constant ownership, for example. One could also imagine a hybrid of the select and universal models in which the universal militia is augmented by a somewhat smaller, better-trained select corps. Such a model could offer some of the manpower advantages and anti-abuse deterrence of a universal militia while still allowing for a well-equipped and well-trained subset to aid the police and federal forces in more dangerous missions, like providing border security and rousting drug gangs.

Finally, any tribe that decides to institute an armed universal militia should consider allowing for conscientious objection. The United States Code exempts from armed military service those who, by “religious training and belief,” oppose “war in any form,”262 while local ordinances requiring firearms ownership often exempt those who are morally opposed to owning or using weapons.263 A tribal militia ordinance might have a similar provision.

C. The Tribal National Guard

The idea of tribes raising their own militias poses the question whether those militias should be integrated with, or adjoined to, the federal National Guard system. Although, as I have pointed out in Part II(C) federal statutes do not currently require this of tribes the way they do of states, there might be advantages to engaging with the federal system.

261 Cal. Nat’l Guard, California State Military Reserve Frequently Asked Questions, CAL. NAT’L GUARD, http://www.calguard.ca.gov/casmr/Documents/New_Application_Files_/9.CA%2520SMR %2520Frequently%2520Asked%2520Questions.doc (last visited Nov. 24, 2013). 262 50 U.S.C. App. § 456(j) (2006). 263See Kennesaw, Ga., Code of Ordinances § 34-21(b) (2011); Melissa Gray, Georgia Town Mulls Mandatory Gun Ownership, CNN (Mar. 8, 2013), http://us.cnn.com/2013/03/07/us/georgia-gun- requirement/index.html?sr=sharebar_facebook (last visited Nov. 24, 2013); See also Joseph Blocher, The Right Not to Keep or Bear Arms, 64 STAN. L. REV. 1 (2012).

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The largest advantage would be access to federal money and training opportunities. Many tribes might struggle even to adequately equip a militia and conduct minimal training, but the federal government devotes enormous financial resources to the state militias. The Utah National Guard, for example, receives 74 percent of its funds from the federal government,264 while the Georgia National Guard “is funded with $552 million in federal money and 9 million dollars from the state.”265 Even adjusted down to a level appropriate to tribal populations, that kind of money could provide tribal governments with vast new resources in addressing public safety issues, both routine and emergency.

Additionally, integration with the National Guard system could be a useful public relations maneuver, elevating the tribes to co-equal status with the states in the public eye. By making tribal membership an alternative basis on which to join the National Guard, the federal government could acknowledge the “third sovereign” in a highly visible way. It could convey a clear message to the public (and the states) that the sovereign status of tribes entitles them to participation in one of the most fundamental projects of the federal system: joint control of the military.

Finally, integration with the national military could check abusive uses of a tribal militia, because the federal government would provide for regularized disciplinary procedures and meaningful oversight. Thus, a federally integrated militia could provide a tribe with all the benefit of a select militia while mitigating the risk that it could be used for oppressive purposes.

Of course, that possibility points to the very reason why tribes might not want to integrate with the federal system: any such integration would almost certainly involve some loss—perhaps a very great loss—of local control. In exchange for federal money, state militias agree to a number of

264 STATE OF UTAH, NATIONAL GUARD, VETERANS’ AFFAIRS, AND CAPITOL PRESERVATION BOARD AGENCY BUDGET OVERVIEW 1 (2012). 265 Terry Dickson, Defense Budget Cuts Would Affect Georgia National Guard, Adjutant General Says, FLORIDA TIMES-UNION (Feb. 10, 2013). http://jacksonville.com/news/georgia/2013-02-10/story/defense-budget-cuts-would-affect- georgia-national-guard-adjutant (last visited Nov. 24, 2013).

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conditions: their National Guard soldiers are trained and disciplined according to federal standards; they wear the Army’s uniform; their units are structured according to the Army’s command-and-control regime; and the President may federalize National Guard units in times of war or public emergency, or for training, even beyond the nation’s borders.266

Integration with the federal system thus presents profound challenges to both tribal sovereignty and tribal cultural distinctiveness. If the tribal militia, to receive federal funds, must embrace United States military culture in full, the idea of the tribal militia as a vehicle for the transmission of cultural traditions is radically undermined. A relationship in which the federal government could commandeer organs of the tribal government would upend the principles of self-determination which are supposed to be the hallmark of tribal-federal relations. That this would put the tribes in no worse position than the states is no answer, because states have powerful representation in the national government (especially the Senate), while tribes have no federal representation at all.

In theory, each tribe could decide for itself which trade-offs in sovereignty and cultural distinctiveness would be worthwhile. In practice, however, this would raise another potential issue with federal integration: namely, many tribes are not large enough to create whole National Guard units larger than, say, a company. By way of example, California has an overall population of approximately 38 million267 and total National Guard enrollment of 21,000.268 The Navajo Nation, one of the nation’s largest tribes, has an on-reservation population of approximately 173,000269 and an overall enrollment of about 287,000.270 Thus, we might expect National Guard enlistment of, at most, a few hundred soldiers—enough, perhaps,

266 See Perpich v. Dep't of Def., 496 U.S. 334 (1990). 267 U.S. Census Bureau, State and County Quick Facts, CENSUS.GOV,(2010), http://quickfacts.census.gov/qfd/states/06000.html (last visited Nov. 24, 2013). 268 Gretel C. Kovach, S.D. National Guard Unit Preps for a Final Afghan Deployment, U-T SAN DIEGO (Jan. 18, 2013), http://www.utsandiego.com/news/2013/jan/18/tp-sd-national- guard-unit-preps-for-a-final/ (last visited Nov. 24, 2013). 269 U.S. CENSUS BUREAU, THE AMERICAN INDIAN AND ALASKA NATIVE POPULATION 14 (2010). 270 Id. at 17. The Nation itself puts the number at slightly over 300,000. Bill Donovan, Census: Navajo Enrollment Tops 300,000, NAVAJO TIMES (Jul. 7, 2011), http://navajotimes.com/news/2011/0711/070711census.php (last visited Nov. 24, 2013).

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to man a single battalion.271 By contrast, many tribes in California number in the hundreds,272 and statistically might be expected to have only a handful of citizens who would be interested in the substantial time commitment of a National Guard-type militia membership, let alone be able to meet enlistment requirements. Of course, small tribes would face challenges raising a tribal militia no matter what, but attempting to integrate the militia into the federal system would presumably reduce the tribe’s flexibility in finding creative ways to man its militia.

There are workarounds to the size issue. Perhaps a small tribal Guard unit could be folded into a larger state unit. But this is likely a solution no tribe would adopt. Integrating into the federal system, though admittedly risky, is not a fundamental threat to the current status of tribal sovereignty, because the federal government claims plenary power over tribes anyway. States, however, are traditionally much more circumscribed in their ability to regulate tribal affairs,273 and to give a state governor command authority over a tribal organ seems like an unprecedented step.

A more interesting possibility is that tribes could enter into regional compacts, creating intertribal militia frameworks in order to have sufficient numbers. There is no theoretical reason why tribes could not create such a compact without sacrificing sovereignty—tribes already enter into intertribal agreements, for example, to manage federal appropriations for natural resource husbandry, or to provide court services to multiple small tribes.274 States have also entered into regional compacts to deal with

271 See U.S. Army, Operational Unit Diagrams, ARMY.MIL., http://www.army.mil/info/organization/unitsandcommands/oud/ (last visited Nov. 24, 2013). 272 See U.S. CENSUS BUREAU, AMERICAN INDIAN AND ALASKA NATIVE TRIBES IN CALIFORNIA (2000), http://www.census.gov/population/www/cen2000/briefs/phc-t18/tables/tab019.pdf (last visited Nov. 24, 2013). 273See supra Part II.D. 274 Who We Are, INTERTRIBAL BUFFALO COUNCIL,http://itbcbuffalo.com/node/3 (last visited Nov. 24, 2013) (describing the history of the ITBC, including its early formation as a 501 (c) 3 non-profit and its 2010 reorganization as a corporation under Section 17 of the IRA); Protecting Tribal Sovereignty, INTERTRIBAL COURT OF SOUTHERN CALIFORNIA, http://icsc.us/ (last visited Nov. 24, 2013).

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large-scale problems, like nuclear waste disposal.275 This might be an effective mechanism for tribes to generate sufficient numbers to integrate smoothly with the National Guard. However, it might end up stripping the tribal militia of many of its proposed advantages, because it would now be neither a vehicle for cultural transmission nor an immediately available local emergency force.

Of course, tribal engagement with the federal system need not look exactly like that of the state militias. For example, tribes might elect to create something that looks much less like the actual National Guard and much more like the State Defense Forces—that is, an emergency response force that is not subject to federal activation. State Defense Forces are normally funded entirely by the state. An accommodation might be reached with Congress whereby tribal militias are given federal National Guard funding at a much lower level than state National Guard units, but in exchange remain entirely under local control. Such an arrangement might represent a happy medium for tribes reluctant to enter into the federal National Guard wholesale, and it would moot the size issue.

CONCLUSION

Tribal governments have a retained, but largely unused, internal military power. That power could provide a tool for tribes to secure the territorial integrity of their reservations, police their borders, disrupt criminal organizations, manage natural disasters and other public emergencies, train young people, and provide a focal point for community organization. Tribal members and their governments should consider whether such a tool can help them meet their governance goals.

The use of military power is, of course, not without its dangers. An armed select militia, particularly, has an unfortunate historical precedent in Dick Wilson’s GOONs, which was an instrument of flagrant civil rights violations on the reservation. Moreover, complaints about the use of internal military power have sometimes led to federal intervention in tribal

275 See 42 U.S.C. § 2021(d) (2006) (authorizing and incentivizing the creation of regional compacts).

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affairs or to armed clashes with the federal government. With that history as a warning and a guide, there is no reason why a tribe could not provide adequate safeguards against abuse, adopt a tribal militia under one of the models discussed above, and thus exercise its powers as a sovereign and provide for public safety.

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UNTIL YESTERDAY: DETERRING AND HEALING THE CYCLICAL GENDER-BASED VIOLENCE IN INDIAN COUNTRY

Samantha Ivette Morales

INTRODUCTION

“As ancient sovereign nations, we must look to our histories, beliefs, resources, and experiences to reclaim safety and empowerment for all women.”1

Despite our modern day lives and laws of the twenty first century, Native women are just now being afforded the protections and privileges that non-Native women have had for decades. A number of scholars have written about the need to protect Native women from sexual assaults and domestic violence on tribal lands.2 For any woman, breaking the cycle of domestic violence or recounting the horrors behind a sexual invasion can be painful, degrading, and traumatic. It takes courage, strength, and power to face their fears and their perpetrators. For Native women specifically, coming forward has often been useless because the law has often failed to protect them, until now.

 Third year law student at Thomas Jefferson School of Law (expected graduation in May 2014). The author acknowledges the contributions and guidance of Thomas Jefferson School of Law Professor Bryan H. Wildenthal on this article. A special note of appreciation to Elaine Whitefeather, Executive Director of A Community for Peace (formerly the Domestic Violence Intervention Center) for her inspirational guidance, support and leadership. With gratitude to my guiding stars and the courageous women who found their voice and spoke their truths to pass on their teachings to my rainbow sisters and I. For my daughters Laura and Nevaeh who inspire me every day.

1 Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 KAN. J.L. & PUB. POLICY 121, 143 (2004) [hereinafter Deer, Indigenous Jurisprudence]. 2 Deer, Indigenous Jurisprudence, supra note 1; see also Hossein Dabiri, Kiss The Ring, But Never Touch The Crown: How U.S. Policy Denies Indian Women Bodily Autonomy And The Save Native Women Act's Attempt To Reverse That Policy, 36 AM. INDIAN L. REV. 385 (2011); Andrea Johnson, A Perfect Storm: The U.S. Anti-Trafficking Regime's Failure To Stop The Sex Trafficking Of American Indian Women And Girls, 43 COLUM. HUM. RTS. L. REV 617 (2012); Samuel D. Cardick, The Failure Of The Tribal Law And Order Act Of 2010 To End The Rape Of American Indian Women, 31 ST. LOUIS U. PUB. L. REV. 539 (2012).

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This article examines the need to address gender violence3 within Indian Country in a way that deters offenders and offers culturally sensitive restorative justice programs to help heal victims. Part I demonstrates the magnitude of what many have called an epidemic of violence against Native women. Part II provides an overview of the criminal jurisdictional challenges and describes how the recently enacted Tribal Law and Order Act and Violence Against Women Act (VAWA) partly address those challenges. Part III discusses, in more depth, how Native governments need to enforce current legislation that protects women, and discusses ways in which restorative justice programs can be incorporated within tribal criminal justice infrastructures to provide healing options for victims.

I. WOMEN ARE SACRED, RIGHT?

A. The Epidemic of Gender-Based Violence in Indian Country

Some scholars trace the prevalence of gender violence against Native women to the history of Spanish colonization where rape and assault were used as a means for conquest to exterminate the conquered population.4 Essentially, when the women of a tribe were taken away, their tribe could no longer reproduce their lineage and would therefore be exterminated. Decades of treating Native women in the United States like second-class citizens, without ensuring adequate legal protections and enforcements of their rights, have resulted in statistics that are alarming and unsettling. Native women suffer from the highest rates of intimate partner violence5 and stalking,6 and the highest rate of rape and sexual victimization compared to non-Native women.7 Murder is the third leading

3 “Gender violence” is used to address both sexual and physical assaults against women. 4 Dabiri, supra note 2 at 393. 5 OFFICE ON VIOLENCE AGAINST WOMEN AND THE NATIONAL CENTER ON FULL FAITH AND CREDIT, VIOLENCE AGAINST NATIVE WOMEN A GUIDE FOR PRACTITIONER ACTION 1 (2006), available at http://www.bwjp.org/files/bwjp/articles/Violence_Against_Native_Women.pdf (last visited Jan 13, 2014) [hereinafter OVW, GUIDE] (citing PATRICIA T. JADEN & NANCY THOENNES, U.S. DEP'T OF JUSTICE, FULL REPORT ON THE PREVALENCE, INCIDENCE AND CONSEQUENCES OF VIOLENCE AGAINST WOMEN 21-23 (2000)). 6 Id. 7 Id.

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cause of death for Native women, and on some Indian Reservations the murder rate of women is ten times the national average.8

Although perpetrators can come from all backgrounds, research indicates that most crimes committed against Native women are by non- Natives. Recent studies indicate that 76 percent of the people living on- reservations are non-Native.9 Native women suffer inter-racial violence at five times the rate of other racial groups.10 In domestic violence cases amongst spouses, one fourth of all cases involve a non-Native perpetrator.11 Sexual assaults are also more likely to be interracial and involve perpetrators under the influence of drugs or alcohol. Between 1992 and 2002, 88 percent of rapes or sexual assaults against Native women were at the hands of non-Native perpetrators.12 Furthermore, over two thirds of Native women report their perpetrators were under the influence of drugs or alcohol before the attacks.13

Rape is much more than an invasion of a woman's body. “‘Rape is laden with psychological and spiritual ramifications.’ Rape is a lived experienced.”14 It degrades the human spirit, shatters a woman's psychological well-being, and has been happening to Native women at

8 S. REP. NO. 112-265, at n.25 (2012). 9 STEVEN W. PERRY, U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, TRIBAL CRIME DATA COLLECTION ACTIVITIES 1 (2012), available at http://www.bjs.gov/content/pub/pdf/tcdca12.pdf (last visited Nov 24, 2013) [hereinafter PERRY, TRIBAL CRIME]. 10 FUTURES WITHOUT VIOLENCE, FORMERLY FAMILY VIOLENCE PREVENTION FUND, THE FACTS ON VIOLENCE AGAINST AMERICAN INDIAN/ALASKAN NATIVE WOMEN 5, available at http://www.futureswithoutviolence.org/userfiles/file/Violence%20Against%20AI%20AN%2 0Women%20Fact%20Sheet.pdf (last visited Nov 24, 2013) [hereinafter FWV, FACTS ON VIOLENCE] (citing GREENFIELD, LAWRENCE & SMITH, STEVEN, U.S DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, AMERICAN INDIANS AND CRIME (1999), available at http://www.justice.gov/otj/pdf/american_indians_and_crime.pdf (last visited Jan. 9, 2014)). 11 Id. 12 Johnson, supra, note 2 at 638 (citing STEVEN W. PERRY, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PROFILE 1992-2002: AMERICAN INDIANS AND CRIME (2004), available at http://www.justice.gov/otj/pdf/american_indians_and_crime.pdf (last visited Nov. 24, 2013). 13 FWV, FACTS ON VIOLENCE, supra note 10, at 20 (citing U.S. DEP'T OF JUSTICE, VIOLENCE AGAINST INDIAN AND ALASKA NATIVE WOMEN AND THE CRIMINAL JUSTICE RESPONSE: WHAT IS KNOWN 39 (2008)). 14 Dabiri, supra note 2, at 3 (citing Deer, Indigenous Jurisprudence, supra note 1, at 123).

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startling rates. Native women are two and half times more likely to be raped or sexually assaulted.15 One out of three Native women is projected to be raped within their lifetime;16 whereas, less than one in five women is projected for the general population.17 Compared to non-Native women, Native women are more likely to suffer from violent rapes and twice as likely to face armed offenders and require medical care for injuries from an attack.18 91 percent are struck by their perpetrators as they are being raped; whereas, 71 percent of white women and 78 percent of African American women are struck during their rapes.19 A study of Native sex trafficking victims20 in Minnesota found 92 percent had been raped and 73 percent suffered traumatic brain injuries.21

As shocking as these statistics are, the sad reality is that these numbers are likely to just show the tip of the iceberg in this epidemic of violence against Native women. A vast majority of crimes go unreported because many women do not always come forward to report their crimes. Estimates vary between 17 percent and 49 percent of Native rape victims

15 AMNESTY INT'L, MAZE OF INJUSTICE: THE FAILURE TO PROTECT INDIGENOUS WOMEN FROM SEXUAL VIOLENCE IN THE USA 2 (2007), available at http://www.amnestyusa.org/pdfs/MazeOfInjustice.pdf (last visited Nov. 24, 2013) [hereinafter AMNESTY INT'L, MAZE] (citing STEVEN W. PERRY, U.S DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, AMERICAN INDIANS AND CRIME –A BJS STATISTICAL PROFILE 1192-2002 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/aic02.pdf (last visited Nov. 24, 2013)). 16 OVW, GUIDE, supra note 5, at 1. 17 Johnson, supra note 2, at 627 (citing AMNESTY INT'L, MAZE, supra note 15, at 21-23). 18 RONET BACHMAN ET.AL, U.S DEP'T OF JUSTICE, VIOLENCE AGAINST AMERICAN INDIAN AND ALASKA NATIVE WOMEN AND THE CRIMINAL JUSTICE RESPONSE: WHAT IS KNOWN 37 (2008), available at https://www.ncjrs.gov/pdffiles1/nij/grants/223691.pdf (last visited Nov. 24, 2013) (unpublished report). 19 Cardick, supra note 2, at 534 (citing Cf. Ronet Bachman et al., Estimating The Magnitude Of Rape And Sexual Assault Against American Indian And Alaska Native (AIAN) Women, 43 AUST. & N.Z.J. CRIMINOLOGY 199, 211 (2010)). 20 I use the term sex trafficking victims synonymous with prostitutes. 21 Dabiri, supra note 2, at 392 (citing Melissa Farley et al., Garden of Truth: The Prostitution And Trafficking Of Native Women In Minnesota 3 (2011)). The same study also found Native women were overrepresented as sex trafficking victims and that 84 percent of the sex trafficking victims interviewed reported having been psychically assaulted. See Johnson, supra note 2, at 621 (citing U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S ANNUAL REPORT TO CONGRESS AND ASSESSMENT OF U.S. GOVERNMENT ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS IN FISCAL YEAR 2009 16 (2010)).

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reporting their attacks.22 In the Navajo Nation, one of the largest reservations, only about 10 percent of victims report their sexual assaults.23 Besides having to gather the strength and courage needed to come forward, many women are paralyzed by the fear that “breaches in confidentiality, retaliation, and a lack of confidence that reports will be taken seriously and result in perpetrators being brought to justice.”24

Many Native women have had to ask themselves, what good will it do to come forward if my perpetrator will still walk as a free man? Their lack of faith in the justice system is not unfounded given the high declination rates from federal and state authorities. In 2011, 65 percent of rape cases in Indian Country went unprosecuted by the Department of Justice.25 Out of the 329 rapes reported in 2007 within the Navajo Nation, only seventeen arrests had been made by 2012.26 According to the Department of Justice, arrests are made in only 13 percent of the sexual assaults reported by Native women compared to 35 percent for African American and 32 percent for Caucasian women.27 Other estimates place the arrest and conviction rate at 6 percent for rapes against Native women compared to 11-12 percent for non-Native women.28 What is undisputed is that in 2010, cases in Indian Country only accounted for 1 percent of the offenses investigated for violating federal laws and 1 percent of the criminal cases filed by federal prosecutors.29

22 Cardick, supra note 2, at n.38-39 (citing Ct. Bachman et al., Estimating the Magnitude of Rape and Sexual Assault Against American Indian and Alaska Native (AIAN) Women, 43 AUST. & N.Z.J. CRIMINOLOGY 199, 211 (2010)). 23 Timothy Williams et al., For Native American Women, Scourge of Rape, Rare Justice, NEW YORK TIMES, May 23, 2012 [hereinafter Williams, Native American Women]. This article also highlighted that in South Dakota, Natives make up 10 percent of the population, but account for 40 percent of the victims of sexual assault. Alaska Natives account for 15 percent of the population in Alaska, but account for 61 percent of its victims of sexual assault. 24 AMNESTY INT'L, MAZE, supra note 15, at 4. 25 Williams, Native American Women, supra note 23. 26 Id. 27 Id. 28 Cardick, supra note 2 (citing Ct. Bachman et al., Estimating the Magnitude of Rape and Sexual Assault Against American Indian and Alaska Native (AIAN) Women, 43 AUST. & N.Z.J. CRIMINOLOGY 199, 211 (2010)). 29 PERRY, TRIBAL CRIME, supra note 9, at 13-14.

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II. THE LEGAL BACKGROUND OF GENDER-BASED CRIME AND (LACK OF) PUNISHMENTS ON INDIAN RESERVATIONS

A. History of Criminal Jurisdictional Restrictions on Tribal Sovereignty

In America, we rely on the assumption that in an emergency we can call 911 and trust that first responders will be dispatched immediately to aid us. Given the federal trust relationship between tribes and the government,30 it is hard to fathom that Native women in Indian Country cannot rely on this safeguard to stop their non-Native partners from abusing them. “Before asking 'what happened' police ask: 'what is our jurisdiction? Was the perpetrator Native American?”31 Tribal jurisdiction has been limited by a number of laws throughout the years, and until recently,32 tribal authorities could not exercise criminal jurisdiction over non-Natives committing crimes within their reservations.

Nineteenth century laws still impact tribal jurisdiction today. During the Relocation Era, Congress was concerned with crimes in Indian Country affecting non-Natives and in 1817, passed the Indian Country Crimes Act (ICCA) that expanded the General Crimes Act (GCA). It recognized tribal jurisdiction for crimes where both victim and defendant were Natives and federal jurisdiction over interracial crimes.33 In 1883, the Supreme Court reaffirmed exclusive tribal jurisdiction over crimes committed on their tribal lands involving Natives.34 In response, Congress passed the Major Crimes Act (MCA) of 1885, which extended concurrent

30 See Cherokee Nation v. State of Ga., 30 U.S. 17 (1831)(holding that tribes were considered domestic dependent nations noting that their relation to the United States “resembles that of a ward to his guardian”). 31 AMNESTY INT'L, MAZE, supra note 15, at 8 (citing an interview with a support worker for Native American survivors of sexual violence in May 2005). 32 See infra Section III; Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014) (The 2013 Violence Against Women Act will give qualifying tribal authorities “special domestic violence jurisdiction” over non-Natives in 2015). 33 The government retained jurisdiction over interracial crimes (Native against non-Native or vice versa), except where offenses were already punished by the tribe or where treaty rights gave tribes exclusive jurisdiction. See 18 U.S.C. § 1152 (2006). 34 Ex parte Crow Dog, 109 U.S. 556 (1883).

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federal jurisdiction over Natives committing murder, manslaughter, rape, and assault with intent to commit murder, arson, burglary, or larceny.35

During the Termination Era, Congressional policies were aimed towards terminating federal obligations to tribes. Public Law 28036 (PL 280) was passed in 1953, without consent from tribal governments.37 It transferred federal jurisdiction over Indian Country to “mandatory” states and gave “optional states” the ability to exercise the same jurisdiction if they amended their Constitutions.38 The effects in Indian Country were devastating. State authorities became “reluctant to become involved in Indian Country crimes,”39 and Native communities became vulnerable and dependent on them to prosecute crimes because their funding was reduced across PL 280 states.40

The Indian Civil Rights Act (ICRA) of 1968 imposed further limitations on tribal jurisdiction.41 If and when tribes exercised exclusive or

35 18 U.S.C.A. § 1153 (2006)(MCA has been amended several times to extended federal jurisdiction over Natives committing maiming, sexual abuse, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, assault against minors under 16 years, felony child abuse or neglect, and embezzlement). 36 Pub. L. No. 83-280 (1953) (codified as 18 U.S.C. § 1162, 28 U.S.C. § 1360 and 25 U.S.C. § 1321-1326). 37 Pub. L. No. 280 was amended in 1968 by ICRA to require tribal consent to extend mandatory jurisdiction to states. Since then, no tribe has consented. See U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, PUBLIC LAW 280 AND LAW ENFORCEMENT IN INDIAN COUNTRY – RESEARCH PRIORITIES 4 (2005), available at https://www.ncjrs.gov/pdffiles1/nij/209839.pdf (last visited Nov. 24, 2013). 38 Mandatory states were California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska. Optional states who have asserted all or partial criminal jurisdiction include Nevada, South Dakota, Washington, Florida, Montana, North Dakota, Arizona, Iowa and Utah. See 28 U.S.C § 1360 (2006). 39 OVW, GUIDE, supra note 5, at 9 (citing Sarah Deer, Expanding The Network Of Safety; Tribal Protection Orders For Survivors of Sexual Assault, 4 TRIBAL L.J. SECTION II.B.2. (2004)). 40 Id. 41 25 U.S.C. § 1302 (2006). ICRA also introduced some of the guarantees from the Bill of Rights into Tribal Courts such as due process and right to counsel. See Matthew L.M. Fletcher, Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited, 84 U. COLO. L. REV. 59, 95 (2013) noting “ICRA has served, and will continue to serve, an important purpose in assisting tribal courts, litigants, and legislatures in providing the legal infrastructure necessary to guarantee fundamental fairness in Indian country.”

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concurrent jurisdiction with PL280 states or the federal government,42 ICRA's sentencing caps essentially eliminated tribal government's power to prosecute felony level crimes. Under ICRA, tribes could not impose punishments exceeding one year imprisonment or $5,000 in fines.43 Consequently, Native perpetrators faced little, if any, deterrence because they only faced misdemeanor level penalties. They could also commit repeated offenses against Native women without the threat of repeat offender laws in place outside Indian Country.

The most devastating blow to tribal sovereignty with regard to criminal jurisdiction came in 1978 with the heavily criticized Supreme Court decision in Oliphant v. Suquamish Indian Tribe.44 The court held that unless expressly granted by Congress, tribal authorities did not hold criminal jurisdiction over non-Natives for crimes committed in Indian Country.45 Native women had to hope and pray their perpetrators would be brought to justice and prosecuted by state or federal authorities. Oliphant eliminated tribes' ability to prosecute non-Natives for attacking Native women. Tribal authorities could only offer their women protection if attacked by another Native.46

Consequently, Oliphant also eliminated a critical level of deterrence for non-Natives wishing to commit crimes on reservations. “Criminals tend to see Indian reservations and Alaska Native villages as places of free reign, where they can hide behind the current ineffectiveness of the judicial system.”47

42 See United States V Wheeler, 435 U.S. 313, 318. 43 25 U.S.C. § 1302 (2006). 44 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 45 Id. 46 See 25 U.S.C. § 1301 (2006); see Duro v. Reina, 495 U.S. 676 (1990) in which the Supreme Court ruled Native tribes could not prosecute Natives who were members of other tribes. In response, Congress amended ICRA in 1991 in what has been called the "Duro-fix", to expressly designate criminal jurisdiction over all Natives regardless of tribal membership due to their inherent sovereignty. See also United States v. Lara, 541 U.S. 193, where the Court implied that the "Duro-fix” amendment to ICRA was generally valid and upheld concurrent jurisdiction amongst tribes and the federal government. The Court has not yet resolved possible equal protection challenges to the law. 47 S. Rep. No. 112-265 at n.39 (2012).

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B. Attempting to Undo Historical Harm Through the Tribal Law and Order Act

High rates of violent crime on reservations, specifically sexual and domestic violence against Native women, prompted Congress in 2010 to pass the Tribal Law and Order Act (TLOA).48 TLOA amended PL 280, strengthening tribal law enforcement and addressed concerns that state authorities in PL 280 states were reluctant to “become involved” with Indian Country issues. Tribal governments may now exercise concurrent jurisdiction over reservation crimes in PL 280 states with approval by the Attorney General.49 TLOA also amended ICRA to increase tribal sentencing caps.50 Tribes that meet certain conditions may now sentence offenders to three years imprisonment, a $15,000 fine, or both, for each offense with the discretion to stack them for a maximum sentence of nine years.51

In terms of preventive measures, TLOA established a sexual assault protocol that requires the Indian Health Service (IHS) to consult with tribes, tribal organizations, and the Department of Justice’s Office on Violence Against Women to develop new standardized policies for addressing sexual assaults.52 To help ensure follow-through and increase victim's confidence that their reports will be taken seriously, TLOA requires “any federal department or agency” to communicate with local tribal law enforcement whenever non-referrals or declinations of criminal investigations occur.53 To help with the prosecution of crimes in Indian

48 Indian Arts and Crafts Amendments Act of 2010, 25 U.S.C.A. § 305 (2013); Tribal Law and Order Act of 2010, 25 U.S.C.A, § 2801 (2013). 49 Id. 50 See NATIONAL CONGRESS OF AMERICAN INDIANS', THE TRIBAL LAW & ORDER ACT ONE YEAR LATER: AN UPDATE ON IMPLEMENTATION 3 (2011), available at http://tloa.ncai.org/documentlibrary/2011/07/TLOA_comprehensive_one_year_FINAL1.pd f (last visited Nov. 24, 2013). The report highlights that it will take time before tribal courts can use their enhanced sentencing authority because under the ICRA amendment by TLOA, tribes must provide indigent counsel for defendants, train and license judges, publicize their tribal codes, provide detention facilities that are certified for long-term detention. 51 Tribal Law and Order Act of 2010, 25 U.S.C.A. § 2801 (2013). 52 Id. 53 Id.

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Country, TLOA expanded the use of Assistant United States Attorneys within Indian Country.54

While TLOA was successful in remedying some of the criminal jurisdictional limitations that prior laws had placed on Native authorities, its major flaw and criticism stems from what it failed to do. TLOA did not undo Oliphant and return criminal jurisdiction to tribes over non-Natives.55 It failed to provide Native Women with the same protections and rights as non-Native women.

C. The 2013 Violence Against Women Act: Long Awaited Protections or Just a Band Aid?

Efforts to adopt legislation to address domestic and sexual violence against women led to the first version of VAWA drafted by Vice President Joe Biden and signed into law by President Bill Clinton in 1994.56 VAWA created the Violence Against Women Office, now the Office of Violence Against Women (OAW) within the Department of Justice.57 This established: harsher penalties for repeat sex offenders; created the federal “rape shield law;” increased victim's accessibility to rape examinations and restraining orders; established full faith and credit for restraining orders; funded specialized enforcement and prosecution units to increase prosecution and convictions of perpetrators; developed training for law enforcement; created the National Domestic Violence Hotline; and introduced immigration relief for undocumented, battered immigrants leaving the cycle of violence.58 Thanks to VAWA, more raped

54 Tribal Law and Order Act of 2010, 25 U.S.C.A. § 2801 (2013); Michael J. Bulzomi, Indian Country And The Tribal Law And Order Act of 2010, LAW ENFORCEMENT BULLETIN (2012), available at http://www.fbi.gov/stats-services/publications/law-enforcement- bulletin/may-2012/indian-country-and-the-tribal-law-and-order-act-of-2010 [hereinafter Bulzomi, TLOA of 2010] (citing U.S. DEPARTMENT OF JUSTICE DECLINATIONS OF INDIAN COUNTY CRIMINAL MATTERS, GAO-11-167R, § 213 (2010)). 55 Cardick, supra note 2, at 564. 56 Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C § 13701 (2006). 57 FWV, FACTS ON VIOLENCE, supra note 10, at n.36 (citing U.S DEP’T. OF JUSTICE, OFFICE OF VICTIMS OF CRIME UNIVERSITY OF OKLAHOMA HEALTH SCIENCES CENTER (1997)). 58 Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014); THE WHITE HOUSE, FACT SHEET: THE VIOLENCE AGAINST WOMEN ACT, available at http://www.whitehouse.gov/sites/default/files/docs/vawa_factsheet.pdf (last visited Nov. 24, 2013).

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and battered women have come forward to make reports; states have reformed laws to take violence against women “more seriously,” and intimate partner violence declined by 67 percent between 1993 and 2010.59 Although women across the country have benefited from VAWA's protections, earlier versions did nothing to address the specific needs of Native women.

VAWA was reauthorized in 2000 and 2005 with bi-partisan support, but died in 2012 after House Republicans opposed the Senate version that afforded protections to Native women, undocumented immigrants, and the LGTB community.60 In his letter to the Majority Leader of the House, the President of the National Congress of American Indians summarized the need for VAWA's reauthorization to specifically protect Native women:

Tribes are dealing with felony violence in domestic situations–such as beatings and rapes of young Native women by non-Native boyfriends, some of whom are engaged in drug trafficking and understand that they are untouchable under the current system of law on Indian lands. U.S. Attorneys currently decline 67 percent of sexual abuse and related cases. If a case is declined at the federal level the felony crime would go back to tribal court as a misdemeanor–where the defendant can immediately remove the case back for the U.S. Attorney for a dismissal. Even if the U.S. Attorney is interested in prosecuting, the offender would likely be set free until the U.S. Attorneys can obtain a grand jury indictment, which can take months. Until that indictment is obtained, the offender is often set free to walk the very community that he haunts. The federal criminal justice system is simply not equipped to handle local crimes,

59 Id. 60 Tom Cohen, House Passes Violence Against Women Act After GOP Version Defeated, CNN (February 28, 2013), http://www.cnn.com/2013/02/28/politics/violence-against- women (last visited Nov. 24, 2013).

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and this is the primary reason that tribes seek local control over these crimes that are plaguing our communities.61

Tribal courts were finally authorized to exercise jurisdiction over non-Native perpetrators when the House of Representatives voted 286 to 138 to pass the Senate version of VAWA on February 28, 2013.62 Before signing the Bill on March 7, 2013, President Barack Obama acknowledged, “Indian Country has some of the highest rates of domestic abuse in America. And one of the reasons is that when Native American women are abused on tribal lands by an attacker who is not Native American, the attacker is immune from prosecution by tribal courts. Well, as soon as I sign this bill that ends.”63

For the first time, Title IX of VAWA lays out the specific protections afforded to Native women.64 VAWA amended ICRA by giving concurrent jurisdiction to eligible tribes65 able to exercise their “special domestic violence” jurisdiction over non-Native perpetrators with pre-existing state and federal authorities.66 “Special domestic violence” jurisdiction is triggered for domestic violence, dating violence, and certain protective order violations.67 VAWA amended the federal assault statute for domestic

61 Jefferson Keel, Letter to Hon. Eric Cantor, Majority Leader for United States House of Representatives, 1 (December 20, 2012), http://turtletalk.files.wordpress.com/2012/12/letter-to-majority-leader-cantor_122012.pdf (last visited Jan. 14, 2014)(emphasis added). 62 Jane C. Time, VAWA Passes House, With Full Protections For LGBT, Native Americans, MSNBC (February 28, 2013), http://tv.msnbc.com/2013/02/28/vawa-passes- house-with-full-protections-for-lgbt-native-americans/ (last visited Nov. 24, 2013); http://clerk.house.gov/evs/2013/roll055.xml (last visited Jan. 20, 2014). 63 Remarks by the President and Vice President at Signing of the Violence Against Women Act, THE WHITE HOUSE (March 7, 2013), http://www.whitehouse.gov/the-pressoffice/2013/03/07/remarks-president-and-vice-president-signing-violence-against-women- act (last visited Jan. 14, 2014). 64 Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014). 65 Id. 66 Id. Eligible tribes must provide indigent defendants with defense counsel, timely notification of their rights under VAWA and the Constitution as well as their right to a trial by an impartial jury reflecting a fair cross section of the community, and their right to file a for a writ of habeas corpus. 67 Id. Applicable protection orders must provide protection against violent or threatening acts or harassment, sexual violence, contact or communication or physical proximity issued against the defendant, enforceable by the participating tribe and consistent with

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violence by increasing the sentences for numerous offenses.68 It also amended 18 U.S.C. § 2265 and finally closed the loophole for repeat offenders with tribal convictions. Federal prosecutors can now use tribal convictions against perpetrators and no longer have to try them as first time offenders.69

The current VAWA's incorporation of Title IX is undeniably a landmark piece of legislation and a significant step towards providing Native women with some of the same protections that non-Native women have had for decades. However, it is far from being the comprehensive piece of legislation needed to stop gender-based violence in Indian Country. It is very limited in that the “special domestic violence” jurisdictional expansion only applies to a very narrow and specific portion of cases. First, tribes cannot assert jurisdiction in cases where both defendant and victim are non-Native.70 Second, tribal governments may only assert jurisdiction over non-Native defendants who are residents or employees of the tribe, a spouse, an intimate or dating partner of a tribal member, or a Native residing on the lands of a participating tribe.71 Hence, it only protects Native women who are intimately involved with their abusers and not from perpetrators who are strangers. Aside from enforcing protective orders, it does little to protect Native women from attacks by those who do not live or work for the tribe. VAWA has very little impact on non-recognized tribes,72 and excludes most Alaskan Native women from its protections.73 Except for the few tribal nations

U.S.C. 18 § 2265(b). VAWA also gives tribal courts full civil jurisdiction to “issue and enforce orders involving any person, including the authority to enforce orders through civil contempt proceedings, to exclude violators from Indian land” Id. 68 Id. at § 906. Federal sentencing guidelines were increased to 10 years for assaulting a spouse, intimate partner, or dating partner by strangling or suffocating, 5 years for assaulting a spouse, intimate partner, or dating partner resulting in substantial bodily injury, and 1 year for assaulting a person by striking, beating, or wounding. 69 Id. 70 Id. 71 Id. 72 There are currently 556 federally recognized tribes. 25 U.S.C. §§ 479a (2013). 73 Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014).VAWA only confers special domestic violence criminal jurisdiction to the Metlakatla Indian Community and Annette Indian Reserve in Alaska.

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participating in the two-year “pilot program,”74 the special domestic violence jurisdiction will not be available to eligible tribal governments until March 7, 2015.75 Waiting one day is inexcusable; waiting two years is simply outrageous.

Developing and funding strong tribal criminal justice systems that are in compliance with the ICRA will be a significant hurdle for tribes wishing to exercise special domestic jurisdictions as “participating tribes.” Adequate funding will be crucial to repair tribal governments that have been severely understaffed and underfunded. To combat this, VAWA authorizes appropriations of $5,000,000 each year76 to ensure tribal governments build and support the criminal justice infrastructure they need.

III. RIPPLES OF CHANGE: FIGHTING BACK AND HEALING GENDER-BASED VIOLENCE AGAINST NATIVE WOMEN

A. Tribal Government Needs

1. The Tribal Court System

The Indian Country judicial system has five legal institutions: traditional courts, Courts of Indian Offenses, inter-tribal courts, courts of appeal and tribal courts of general jurisdiction. Their size and funding varies according to the tribe. Even though all must adhere to ICRA provisions, some have not written nor publicized their criminal codes for crimes against women.77 VAWA's implementation will take time and

74 The Department of Justice published procedures and solicited preliminary expressions of interest from Native tribes requesting designation as a participating tribe under “the Pilot Project” in the Federal Register. Pilot Project for Tribal Jurisdiction Over Crimes of Domestic Violence, 78 Fed. Reg. 115 (June 14, 2013), http://www.gpo.gov/fdsys/pkg/FR- 2013-06-14/pdf/2013-14158.pdf (last visited Nov. 24, 2013). 75 Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014). 76 25 U.S.C.A. § 1304 (West 2014). Authorizes appropriations for the 2014-2018 fiscal years for the Attorney General to award grants to supplement already existing monetary relief so tribes can strengthen their tribal criminal justice systems, carry out their duty, and provide “training, technical assistance, data collection, and evaluation of the criminal justice systems of participating tribes”. Id. 77 PERRY, TRIBAL CRIME, supra note 9, at 15. Right now, it is not clear which tribes need specialized help. However, in 2012 the Bureau of Justice Statistics (BJS) initiated a

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funding so that tribal Courts can ensure defendants receive rights that are consistent with both 18 U.S.C. § 3771(a) and “tribal law and custom.”78

In response to this need, VAWA appropriates funding for the development of tribal court systems. Tribal Coalition Grants will assist tribes in developing and promoting state and local tribal legislation and policies to respond to violent crimes against Native women including domestic violence, dating violence, sexual assault, sex trafficking, and stalking.79 VAWA funding will also help tribal courts develop culturally appropriate services for victims and their families: including, the use of criminal codes, the rules of evidence and criminal and appellate procedure, as well as, funding for indigent defense counsel representation and proper procedures for juror selection and jury instruction.80

2. Tribal Law Enforcement

As discussed in Part I, 76 percent of the 4.6 million people living on reservations are non-Native.81 When tribal courts begin to exercise “special domestic violence” jurisdiction over non-Natives, the need for law enforcement will increase dramatically. Adequate funding and cooperation amongst new and existing law enforcement agencies will be critical. The most significant obstacle towards fighting gender violence on reservations is the lack of tribal law enforcement's ability to enforce the protections afforded by TLOA and VAWA:

Many tribal law enforcement agencies face unique obstacles that often challenge their ability to promote and sustain community policing effectively. Unlike municipal police agencies, many tribes still lack basic technology to modernize their departments, such as laptops installed in national survey of tribal court systems and in 2013 BJS will coordinate with federal justice agencies to gather data from 2009-2011 which will be published on its web page. BUREAU OF JUSTICE STATISTICS, INDIAN COUNTY JUSTICE STATISTICS, http://bjs.gov/index.cfm?ty=tp&tid=200000 (last visited Jan. 14, 2014). 78 Id. 79 Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014). 80 Id. 81 PERRY, TRIBAL CRIME, supra note 9, at 1.

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police vehicles. The officer-to-population ratio still remains lower on Indian reservations than in other jurisdictions across the country. Finally, tribal law enforcement has a unique challenge of patrolling large areas of sparsely populated land.82

Tribes need funding to support the tribal law enforcement agencies that are severely underfunded and understaffed. The latest numbers reveal 178 tribal law enforcement agencies employ about 3,000 full-time personnel across twenty-eight states.83 In 2008, the Bureau of Indian Affairs (BIA) operated forty-two agencies and employed an additional 227 full time personnel to provide law enforcement services to tribes without police agencies.84 The Navajo Nation has a population of 174,00085 on a reservation that spans four states and only has 393 officers.86 The recruitment and retention of tribal officers is also a problem. According to the FBI, many tribal officers leave their departments within two years of hire.87

Partnership relations between tribal, state, and federal authorities are imperative to deal with tribal law enforcement understaffing. TLOA established grants and technical assistance as incentives for cooperative law enforcement agreements between state and tribal authorities to cross- deputize their officers.88 Cross-deputizing would be helpful because it would expand a tribal officer's authority to enforce laws that would

82 DEP’T OF JUSTICE, BUDGET AND PERFORMANCE SUMMARY 12 (2013), http://www.justice.gov/jmd/2013summary/pdf/fy13-bud-summary-request- performance.pdf (emphasis added). 83 Id. at 2. 84 Id. at 6. 85 THE UNITED STATES CENSUS BUREAU, THE AMERICAN INDIAN AND ALASKA NATIVE POPULATION 14 (2010), available at http://www.census.gov/prod/cen2010/briefs/c2010br- 10.pdf (last visited Nov. 24, 2013). 86 PERRY, TRIBAL CRIME, supra note 9, at 6. 87 Bulzomi, TLOA of 2010, supra note 54. 88 Id. at n.46 (citing THE U.S. DEP’T OF THE INTERIOR’S, BUDGET JUSTIFICATIONS AND PERFORMANCE INFORMATION: FISCAL YEAR 2009, INDIAN AFFAIRS, IA-PSJ-6, noted there were 2,758 BIA and tribal criminal investigators and police serving Indian country).

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normally be out of their jurisdiction, regardless of the perpetrator’s identity.89

Without their own tribal police departments, tribal nations are likely to have a difficult time establishing a strong criminal justice infrastructure because the majority of the funding available is already ear marked for strengthening existing tribal police departments. Tribes with tribal law enforcement agencies may obtain funding through the Department of Justice's Coordinated Tribal Assistance Solicitation (CTAS) program that is administered through the Community Oriented Policing Services (COPS) program.90 In 2012, the Department of Justice awarded $101,472,879 to tribal governments.91

Tribes may also obtain funding by collaborating with state and federal agencies through the use of crime databases. The Bureau of Justice Statistics (BJS) awards funds to tribal agencies that participate in the Tribal Criminal History Records Improvement Program (T-CHIRP).92 A 2007 survey highlighted tribal law enforcement's serious underuse of T- CHIRP: 72 percent of tribal law enforcement agencies reported they did not regularly submit criminal history records to State or Federal databases, less than 25 percent submitted basic criminal records to State or Federal authorities, 75 percent did not submit sex offender information to the National Sex Offender Registry (NSOR), and less than 20 percent were electronically networked to federal, state, or local law enforcement agencies.93 BJS also provides funding through the Edward Byrne

89 Id. 90 See DEP'T OF JUSTICE COMMUNITY ORIENTED POLICING SERVICES, http://www.cops.usdoj.gov/ (last visited Nov. 24, 2013). 91 DEP’T OF JUSTICE, DEP’T OF JUSTICE, COORDINATED TRIBAL ASSISTANCE SOLICITATION – FY 12, COMBINED AWARD LIST 1 (2012), available at http://www.cops.usdoj.gov/pdf/2012AwardDocs/CTAS/FY-2012-CTAS-Full-Award- List.pdf (last visited Nov. 24, 2013). 92 STEVEN PERRY, U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, TRIBAL CRIMINAL HISTORY RECORDS IMPROVEMENT PROGRAM (T-CHIRP): IMPROVING CRIMINAL HISTORY RECORDS IN INDIAN COUNTRY 2004-2006 1 (2007), available at http://bjs.gov/content/pub/pdf/ichric06.pdf (last visited Nov. 24, 2013). T-CHIRP is aimed at improving the completeness, quality and accessibility of tribal criminal history records. 93 Id. at 1.

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Memorial Justice Assistance Grant (JAG)94 to tribes participating in the FBI's Uniform Crime Reporting (UCR) Program.95 However, tribal law enforcement agencies that do not use UCR are not eligible for JAG funding. By 2010 only about seventy tribal law enforcement agencies had received the requisite UCR training.96 To address this, VAWA has specifically allocated funding to assist tribal law enforcement to enter and obtain information from national crime information databases.97

B. Victim Needs

Victims of sexual abuse and domestic violence should be able to count on a criminal justice system that meets their needs. One explanation for the high declination rates for rape prosecution discussed in Part I is due to a lack of forensic evidence. Indian Health Services (IHS) on reservations has been historically underfunded. Rape kits needed to perform forensic exams were considered “extraneous to core health care needs,”98 and there was no funding allocated to train IHS employees on sexual assault forensic examinations.99 Consequently, IHS did not have standardized protocols in place for collecting forensic sexual assault evidence for federal prosecutors to rely on.100 The funding for these services allocated by TLOA and VAWA needs to be allocated to remote tribal communities so that these services can be easily accessed.

Domestic violence experts agree that the most dangerous time for battered women is amidst escape and securing a safe place to hide. Funding is needed to help Native women leave and stay away from their perpetrators. Unfortunately, Native domestic violence victims have few, if

94 Id. at 1-3. JAG is the leading source of federal justice funding to state and local jurisdictions. 95 Id. The UCR is national collection system capturing information of crimes known to law enforcement agencies nationwide. 96 Id. at 7. Only 21 the 70 agencies had been trained to use the FBI's National Incident Based Reporting system (NIBRS), which houses comprehensive and detailed crime data across agencies nationwide. 97 Violence Against Women Reauthorization Act of 2013, 42 U.S.C.A § 13701 (West 2014). 98 Williams, Native American Women, supra note 23. 99 Deer, Indigenous Jurisprudence, supra note 1, at 14. 100 Williams, Native American Women, supra note 23.

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any, safe havens available to them because there are only twenty-six Native specific shelters serving Indian Country.101 However, shelters are only a temporary solution. They cannot “provide the time or the stability for women to create a solid base for change in their lives.”102 Many will be single mothers and self-sufficiency will be critical in order to provide for themselves, their children, and their communities. Survivors of domestic violence need long-term affordable housing programs, counseling, support, and tools to enter the workforce. Organizations like A Community for Peace in California are leading the way with an effective delivery service model offering co-located wrap around services for victims.103

C. Healing Through Restorative Justice Programs

1. Indigenous Restorative Justice Ceremonies

Implementing restorative justice programs as part of the infrastructure of tribal criminal justice systems is critical. They present culturally sensitive adjudications that are specific to each tribe and can supply victims with healing and closure where appropriate.

The power of individual woman’s stories of surviving sexual assault should not be underestimated. Indeed, there are accounts of the power of a single woman's story to affect change within her tribal government . . . . 104 Other social problems cannot be resolved unless psychological trauma is addressed in a systemic way.105

Tribal courts are unique because they respect and protect the values of their tribal communities while following the rules and customs of non-tribal courts. The indigenous justice system has a restorative and reparative foundation that includes peacemaking and talking circles, family and

101 FWV, FACTS ON VIOLENCE, supra note 10, at 38. 102 Id. 103 More information on A Community for Peace’s wrap around programs for domestic violence victims and their families is available at http://acommunityforpeace.org/ (last visited Nov. 24, 2013). 104 Deer, Indigenous Jurisprudence, supra note 1, at 151. 105 Id. at 138 [emphasis added].

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community gatherings, and traditional dispute resolution like meditation.106 Spirituality, humanity, community and respect are values that play a central role in the everyday life of Native Americans. “Whereas Western law is based on punishment, Indian law is based on healing.”107 Furthermore, “[w]estern law does not attempt to reach into the mind or deal with psychological injuries, much less seek spiritual help in doing this. Traditional Indian law does, and that is why it heals.”108

Restorative justice ceremonies are aimed toward preserving ongoing relationships and restoring a state of balance, harmony, and peace amongst the parties and their communities.109 Tribes try to restore this balance by giving offenders the opportunity to make amends for the damage they caused by entering into healing contracts.110 Participation makes offenders endure the shame and humiliation of answering for their crimes directly to their victims and communities rather than just serving time in prison.111 Tribes believe “observing and hearing the apologies helps victims and their families to discern the offender’s sincerity and move toward forgiveness and healing.”112

Ceremonies vary according to tribal culture and the needs of each case. Ceremonial sweats, fasting, purification, and rituals are often used.113 For the Navajo, Hozhooji Naat'aannii is a peacemaking and healing ceremony that is used to recommend or reduce sentences with consent of both parties.114 Prayers are offered to seek help from the spirit world and opinion evidence is allowed because everyone is free to

106 WANDA D. MCCASLIN, JUSTICE AS HEALING: INDIGENOUS WAYS, WRITINGS ON COMMUNITY PEACEMAKING AND RESTORATIVE JUSTICE FROM THE NATIVE LAW CENTRE, 114-115 (2005). 107 Id. at 70. 108 Id. at 69. 109 U.S. DEP'T OF JUSTICE, U.S. DEP'T OF INTERIOR, TRIBAL LAW AND ORDER ACT (TLOA) LONG TERM PLAN TO BUILD AND ENHANCE TRIBAL JUSTICE SYSTEMS 18 n.29 (August 2011), available at http://www.justice.gov/tribal/docs/tloa-tsp-aug2011.pdf (last visited Nov. 24, 2013) (hereinafter TLOA PLAN). 110 ANDREA SMITH, CONQUEST; SEXUAL VIOLENCE AND AMERICAN INDIAN GENOCIDE 140 (2005) [hereinafter SMITH , CONQUEST ]. 111 Id. at 188. 112 MCCASLIN, supra note 106, at 115. 113 Id. at 116. 114 Id. at 124, 131. See TLOA PLAN, supra note 109, at 29. The Navajo Nation has 242 certified Peacemakers and a Peacemaker Liaison in each district court.

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express how they feel.115 After expressions are shared, the Naat'aanii,116 acting as the judge, offers guidance from stories, traditions, and ceremonies. A discussion is held between the parties, reconciliation plans are created, and the parties reach a consensus about what to do.117 The offender's relatives pay a restitution to make the victim whole, and act as the offender's “probation officer” to ensure he will not offend again.118

The Canadian Hollow Water First Nation developed the Community Holistic Circle Healing (CHCH) sentencing circle. It targets sexual victimization believing victimizers are created, that the cycle of abuse must be broken, and that healing is possible in a safe place.119 The circle takes place in a courtroom where the victim, offender, and their families are joined by the community and local law enforcement.120 Personal smudges121 and prayers are offered before a judge reads pleas and establishes ground rules for the circle. Participants engage in four go- arounds speaking to the victim and offender and outline their expectations to the offender before the judge issues a sentence. The circle is concluded by a closing prayer and a debriefing.122

Similarly to the Hollow Water circle, the Millie Lacs Indian Reservation in central Minnesota created the Millie Lacs Band of Ojibwe Circle Sentencing Project. The circle also brings together victims, offenders, and the community in a safe place before a judge where all parties have an equal voice. Smudging and prayers in the Tribe's native language are also offered before participants speak. It mirrors

115 Id. at 125. The use of opinion evidence is very different from non-Native courts. In a city court proceeding for example, when a man accused of beating his wife was in denial, his sister was able to confront him and make him accountable for his actions. 116 Naat'aanii means “wise one”. 117 Id. at 125-128. 118 Id. 119 MCCASLIN, supra note 106, at 190. 120 Id. at 192. 121 Smudging is a cleansing ritual. 122 McCaslin, supra note 106, at 192.

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Westernized jury deliberations in that everyone must reach a consensus to sentence the offender.123

2. Criticisms of Indigenous Justice Ceremonies

Critics of peacemaking and sentencing circles justifiably caution against their use for domestic violence and sexual assault crimes. Congress in the TLOA specifically recommended peacemaking circles as alternatives to incarceration, but warned that they may not be appropriate in cases of violent sexual or domestic violence assaults.124 The University of Texas's Institute for Restorative Justice and Restorative Dialogue notes that opponents are concerned with the inherent risk to victims of domestic violence because of the lack of safety measures.125 Others prefer that circles involve the community and not the individual stakeholders noting “the victim's cooperation with the defendant may not be appropriate under any circumstances”126 for rape or domestic violence cases.

Despite these criticisms, the traditional Native law restorative justice framework has gained international support over the last few decades. In 2002, The United Nations Economic and Social Council (ECOSOC) passed Resolution 2002/12 to use restorative justice programs in criminal matters. In response to the 2000 Vienna Declaration on Crime and Justice,127 Resolution 2002/12 urged “the formation of national strategies and policies aimed at the development of restorative justice and

123 Restorative Justice Programs in Minnesota, THE ENTERPRISE FOUNDATION RESOURCE CENTER, http://content.knowledgeplex.org/kp2/cache/documents/849/849.html (last visited Nov. 24, 2013). 124 TLOA PLAN, supra note 109, at 18. 125 See The Institute for Restorative Justice and Restorative Dialogue, UNIVERSITY OF TEXAS, http://www.utexas.edu/research/cswr/rji/ourinitiatives.html (last visited Nov. 24, 2013) [hereinafter UT Program]. 126 Chris Longman, Making a Case for Restorative Justice, 1 AM. BAR ASS’N. 3, available at http://www.americanbar.org/publications/gpsolo_ereport/2011/october_2011/making_cas e_restorative_justice.html (last visited Nov. 24, 2013). 127 BASIC PRINCIPLES ON THE USE OF RESTORATIVE JUSTICE PROGRAMMES IN CRIMINAL MATTERS, U.N. ECONOMIC AND SOCIAL COUNCIL RES. 2002/12, available at http://www.un.org/en/ecosoc/docs/2002/resolution%202002-12.pdf (last visited Nov. 24, 2013). The 2000 Vienna Convention of Crime and Justice called for “the development of restorative justice policies, procedures, and programs that are respectful of the rights, needs, and interests of victims, offenders and communities and all other parties”.

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at the promotion of a culture favorable to the use of restorative justice among law enforcement, judicial and social authorizes, as well as local communities.”128 The United Nations Office of Drugs and Crime has even published a Handbook on Restorative Justice Programs to assist governments with criminal justice reforms and the implementation of restorative programs.129

Restorative justice programs have already been implemented successfully throughout the United States. The American Bar Association confirms “restorative justice programs have been patterned after victim and defendant experiences in tribal courts in the 1990s.”130 In 1992, Minnesota’s Department of Corrections created the Restorative Justice Initiative, promoting victim-offender mediation, family group conferencing, neighborhood conferencing and the introduction of sentencing circles.131 Since then, communities in Texas, Baltimore, Minneapolis, Oakland, Vermont, Oregon, Missouri, and Colorado have implemented restorative justice programs.132

There is no “one size fits all” approach to implementing restorative justice circles. The best solution to their use is on a case-by-case approach within the autonomy and discretion of the victims and their tribal governments. The National Institute of Justice (NIJ) notes that although

128 Id. 129 UNITED NATIONS OFFICE OF DRUGS AND CRIME, HANDBOOK ON RESTORATIVE JUSTICE PROGRAMMES (2006), available at http://www.unodc.org/pdf/criminal_justice/06- 56290_Ebook.pdf (last visited Nov. 24, 2013). 130 Longman, supra note 126. 131 LEENA KURKI DEPT' OF JUSTICE, INCORPORATING RESTORATIVE AND COMMUNITY JUSTICE INTO AMERICAN SENTENCING AND CORRECTIONS 5 (1999) available at https://www.ncjrs.gov/pdffiles1/nij/175723.pdf (last visited Nov. 24, 2013). 132 See TEXAS DEP’T OF CRIMINAL JUSTICE, http://www.tdcj.state.tx.us/divisions/vs/victim_helpful_links.html (last visited Nov. 24, 2013); see Paul Tullis, Can Forgiveness Play a Role in Criminal Justice, N.Y. TIMES (January 4, 2013), http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a- role-in-criminal-justice.html?pagewanted=all (last visited Nov. 24, 2013); see BALSAM, NINA, MISSOURI RESTORATIVE JUSTICE COALITION, MISSOURI RESTORATIVE JUSTICE PROGRAMS/RESOURCES, available at http://www.dps.mo.gov/dir/programs/jj/documents/rj/MO_RJ_Programs_Resources- Nina_Balsam%5B1%5D.pdf (last visited Oct. 14, 2013); see RESTORATIVE SOLUTIONS, http://wp.restorativesolutions.us/resources/resources-and-links-programs#colorado (last visited Nov. 24, 2013).

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restorative methods may not be appropriate for all offenders, they can be used with a variety of offenses to provide healing for the victims and the offenders.133 The University of Texas' Institute for Restorative Justice and Restorative Dialogue promotes modified versions of restorative practices.134 However, advocates agree these justice ceremonies are important for addressing violence against Native women, but are insufficient by themselves. In order to be fully effective, “[t]hey must be backed up by the threat of incarceration.”135

CONCLUSION

All women should be protected by their government. It is difficult to believe that for Native women this is still only a partial truth. While the landmark VAWA legislation gives tribal governments the possibility to exercise “special domestic violence” jurisdiction, it fails to protect women outside of its limitations. Until comprehensive legislation returns criminal jurisdiction to tribes over all crimes and defendants, VAWA will remain a band-aid where loopholes in the law fail to deter violence against Native women. Funding is underway to ensure tribal governments create a strong criminal justice infrastructure. However, this will take time, collaboration between agencies, and continued funding. Tribes without current tribal law enforcement departments and skeleton-like criminal justice systems need significant help before they can be eligible for “participating tribe” status and exert their jurisdiction over non-Native perpetrators. As these efforts continue, it will be crucial that Indian Tribes be given continued funding that ensures rape victims have access to adequate medical treatment and domestic violence victims have services to aid their journey towards self- sufficiency. Lastly and more importantly, Native women need to be given the option to heal and take back some of the power that their perpetrators took from them. Restorative justice ceremony circles can be a feasible option in some cases. There are differing opinions as to whether their use is effective. Ultimately, the decision should be the victim’s. Only she

133 Sentencing Circles, OFFICE OF JUSTICE PROGRAMS, NATIONAL INSTITUTE OF JUSTICE, http://www.nij.gov/nij/topics/courts/restorative-justice/promising-practices/sentencing- cricles.htm (last visited Nov. 24, 2013). 134 See UT Program, supra note 125. 135 SMITH, supra note 110.

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knows the damage her perpetrator inflicted and only she can determine if confronting him through long standing culturally traditional ways will aid her in her journey towards healing.

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POLITICAL COOPERATION AND PROCEDURAL (IN)JUSTICE: A STUDY OF THE INDIAN REORGANIZATION ACT

Sam Thypin-Bermeo*

In 1934 and 1935, thousands of Native Americans did something that they had never done before: they voted on federal Indian law.1 More specifically, they voted on whether an existing congressional act should apply to their reservations and provide their local tribal governments with the legal authority to govern their people and manage their economies.2 Although the Wheeler-Howard Act, also known as the Indian Reorganization Act (IRA), tempted reservations with numerous material incentives including cash grants and low-interest financial credit, more than thirty percent of voting reservations rejected the proposal.3

Scholars have attempted to explain this perplexing behavior for decades. Most scholars have taken a materialist approach and have claimed that economic incentives drove support patterns.4 They argue that lower income tribes were more likely to pass the IRA because they needed the capital and credit more than their wealthier counterparts did.5

Although these scholars have provided valuable, anecdotal evidence to substantiate their claims, their conclusions are inconsistent with broader and more systematic findings. Contrary to what materialist

* 2015 J.D. candidate at Yale Law School. I would like to thank Professors Tom Tyler and Eugene Fidel for their kind encouragement and wise guidance.

1 THEODORE H. HAAS, TEN YEARS OF TRIBAL GOVERNMENT UNDER I.R.A. (1947), available at http://thorpe.ou.edu/IRA/IRAbook/tribalgovtp1-12.htm (last visited Dec. 27, 2013). 2 Id. 3 DAVID E. WILKIN & HEIDI KIIWETINEPINESIIK STARK, AMERICAN INDIAN POLITICS AND THE AMERICAN POLITICAL SYSTEM 64 (2011). 4 See also THOMAS BIOLSI, ORGANIZING THE LAKOTA: POLITICAL ECONOMY OF THE NEW DEAL ON THE PINE RIDGE AND ROSEBUD RESERVATIONS 79 (1992) (suggesting that “[m]ost Lakota probably voted in favor of the IRA because of the material benefits they anticipated”); LAURENCE M. HAUPTMAN, THE IROQUOIS AND THE NEW DEAL 87 (1981) (concluding that because the Oneidas in Wisconsin were poorer than the Iroquois in New York they “had less to lose than their eastern brethren and were more willing to take the chance of accepting New Deal programs”). 5 Id.

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arguments would predict, accepting and rejecting reservations had similar economic profiles, as indicated by their nearly identical employment rates. The average employment rate for the reservations that endorsed the bill was sixty-six percent, while the average employment rate for the reservations that rejected the bill was 67 percent.6 Similarly, the median employment rate for the reservations that supported the bill was 67 percent and the median employment rate for the reservations that declined the bill was 68 percent.7

The materialist argument falls short because it assumes that human behavior is motivated by projected financial outcomes. This “instrumentalist” assumption is questionable.8 As Professor Tom Tyler first argued in his paradigm-shifting study of law compliance, people’s behavioral decisions often derive from normative—non-instrumentalist— assessments of their best options.9 In an extensive study of more than fifteen thousand Chicago residents, Professor Tyler found that respondents’ belief in the law’s legitimacy more effectively predicted the likelihood of their legal compliance than their faith in beneficial outcomes did.10 Furthermore, he discovered that respondents determined the law’s

6 These statistics include information from all 245 voting reservations, except for seven reservations located in states with small American Indian populations, such as Florida, Iowa, Louisiana, Mississippi, and Colorado. I did not incorporate these reservations into the study because the 1930 census, which provided this information, did not collect data in these states. Because there is no data available for employment rates on each reservation, I used average employment rate for Native Americans in each state as an indicator of the employment rate on each reservation. U.S. DEP’T OF COMMERCE, FIFTEENTH CENSUS OF THE UNITED STATES: 1930, THE INDIAN POPULATION OF THE UNITED STATES AND ALASKA 200 (1937), available at http://babel.hathitrust.org/cgi/pt?id=mdp.39015011818450;view=1up;seq=185 (last visited Dec. 26, 2013). 7 Id. 8 TOM R. TYLER, WHY PEOPLE OBEY THE LAW 3 (1990)[hereinafter TYLER, WHY PEOPLE OBEY] . 9 Professor Tyler’s Chicago study of procedural justice and compliance concludes that normative issues matter. People obey the law because they believe that it is proper to do so, they react to their experiences by evaluating their justice or injustice, and in evaluating the justice of their experiences they consider factors unrelated to outcome, such as whether they have had a chance to state their case and have been treated with dignity and respect. Id. at 178. 10 Tom R. Tyler, Stephen Schulhofer, & Aziz Z. Huq, Legitimacy and Deterrence Effects in Counterterrorism Policing: A Study of Muslim Americans, 44 LAW & SOC’Y REV. 365, 367 (2010).

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legitimacy by considering whether or not they were treated fairly or in a procedurally just way by representative authority figures, such as police officers or judges.11

Professor Tyler has recently used this normative framework to explain a wider range of human behavior.12 In a 2010 co-authored article, Professor Tyler found that perceptions of procedural justice were strongly correlated with Muslim Americans’ willingness to cooperate in the implementation of the policing of antiterrorism.13 More specifically, Professor Tyler concluded that “[p]rocedural justice in policy formation significantly influences willingness to report terrorism-related concerns to the police.”14

This paper draws upon and extends Professor Tyler’s insights by showing that procedural justice in the creation of federal Indian Law strongly shaped reservations’ desire to adopt the federal government’s preferred legislation. Simply put, reservations were more likely to support the IRA, and thus, cooperate with the federal government’s initiative, if they thought that the Bureau of Indian Affairs (BIA) had treated them fairly during the 1934 Indian Congresses—official meetings held between BIA representatives and hundreds of American Indian leaders. By studying the conduct of these meetings, which were created to build support for the Act, I find that the reservations whose delegates attended Indian Congresses, and so scored higher on a scale of procedural justice, were significantly more likely to accept the IRA than reservations whose delegates attended Congresses that scored lower on the same scale. I also find that delegates from reservations that rejected the proposal were much more likely to discuss unfair treatment in the actual Congresses. Thus, a model based on considerations of procedural justice proves more accurate in determining the ultimate decisions of the tribes with respect to accepting or rejecting IRA by ratification than the current accepted model, which argues that financial considerations motivated the accepting tribes.

11 Id. 12 Id. at 368. 13 Id. 14 Id. at 386.

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Three sections structure this paper. First, I begin with a brief, historical background of the IRA. Second, I discuss my methods of sample selection and analysis. Third, I present and explore my case studies. Finally, I discuss the consequences of the findings and suggest grounds for further research with regard to procedural justice.

I. BACKGROUND

In the fall of 1933, Nathan Margold, the Solicitor of the Department of the Interior, hired Felix Cohen, a Harvard-trained legal philosopher with no background in Indian law, to be an Assistant Solicitor in the Department of the Interior.15 Almost immediately, Cohen and John Collier, the Commissioner of the BIA, began planning a revolution in federal Indian law.16 In order to repeal the Dawes Act,17 to preserve Native American culture, 18 and to liberate Native American communities from the BIA’s authoritarian control, 19 Collier and Cohen produced a fifty-five page bill that eventually became the IRA. Initially, the bill moved slowly through Congress because of its complexity and ambiguity.20 Indeed, many legislators, including Senator Burton Wheeler, one of its sponsors,

15 Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 FLA. ST. U. L. REV. 189, 206, 209 (2001). 16 Id. 17 ELMER R. RUSCO, A FATEFUL TIME: THE BACKGROUND AND LEGISLATIVE HISTORY OF THE INDIAN REORGANIZATION ACT 291 (2000). 18 Ward Shepard, a BIA official, told the National Conference of Social Work that the new policy does not seek to answer the problem of assimilation. Rather, it recognizes what is good in Indian culture, and seeks to preserve and to build on it, as something which, as the slow fruition of an imaginative and gifted race in close contact with nature for untold centuries, is inherently worth preserving, and shall not be deliberately destroyed. Id. at 196. 19 Cohen and another BIA official wrote in a 1934 memorandum that “the ‘ultimate goal’ of the program to be outlined in a draft bill was said to be ‘the removal of supervision in questions involved administrative discretion, leading to the ‘the gradual emancipation of the Indian Communities.”’ Id. at 200. 20 Collier wrote C. Hart Merriam and said: “You are right in saying that the bill is long, complicated, and technical. That is partly due to the fact that the situation itself is exceedingly complicated and we were confronted with the necessity of choosing between a few blanket formulas or setting up the bill procedures that would recognize widely variable circumstances that must be met. But the complexity is also in part due to the speed with which the bill had to be drawn.” Id. at 208.

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struggled to understand the bill’s implications.21 Fearing that their bill might never leave the House Committee on Indian Affairs, Collier and Cohen boldly attempted to build support for the bill by inviting Native Americans to participate in the legislative process.22 The BIA planned ten Congresses throughout the country and asked hundreds of influential and non- influential Native Americans to share their thoughts on the proposed bill.23 BIA officials, including Collier himself, extensively outlined the bill’s provisions and listened to the participants’ suggestions.24 Although the Congresses did not significantly affect the bill’s final structure, these meetings did increase Native American support for the law.25

After learning that President Franklin Roosevelt and most Native Americans supported the proposed measure, Senator Wheeler began to take the bill more seriously and agreed to meet with William Zimmerman, the Assistant Commissioner of the BIA, to amend the original bill.26 Zimmerman and Senator Wheeler produced a streamlined, five-page act that moved quickly through Congress and became law on June 18, 1934.27 According to the law’s introduction, Congress passed the bill to develop Native American lands, empower their governments, support their businesses and educate their citizens. 28 More specifically, section 5 created a $2,000,000 fund for land acquisition; section 10 provided a $10,000,000 fund for development loans; and section 11 created a $250,000 fund for education loans.29 Most importantly, however, section 18 provided that the law should “not become operative until ratified at a special election by a majority vote of the Adult Indians living in the

21 At a hearing on April 28, Senator Wheeler said, “I have read the [original] bill and I will swear that it is impossible for me to understand some of the provisions of the bill.” Id. at 234. Similarly, Sam Collins, a member of the House Committee on Indian Affairs, admitted, “[N]ot many of us do understand it, I think.” Id. Representative Oscar Priest, also a member of the Committee on Indian Affairs, went further and stated, “there is no member of the committee that understands it.” Id. 22 Id. at 247. 23 Id. at 246. 24 See generally VINE DELORIA, JR., THE INDIAN REORGANIZATION ACT: CONGRESSES AND BILL (2002). 25 RUSCO, supra note 17. 26 Id. at 253-54. 27 Wheeler-Howard Act, Pub. L. No. 73-383, 48 Stat. 984 (1934). 28 Id. 29 Id.

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reservation.”30 This Act seemed especially radical at the time because it replaced many elements of the General Allotment Act, a law passed in 1887 to weaken tribal governments and extend the federal government’s power over American Indian tribes.31

II. SURVEYING THE INDIAN CONGRESSES: METHODOLOGY AND ANALYSIS

To ensure that the IRA would be ratified at the reservation level, the BIA organized eleven Indian Congresses in seven states, including three in Arizona, three in Oklahoma, one in New Mexico, one in California, one in Wisconsin, one in South Dakota, and one in Oregon.32 This article studies these last three Congresses for two reasons. First, by concentrating on the Oregon, South Dakota, and Wisconsin Congresses— Congresses that drew reservations with average employment rates of 61 percent, 60 percent, and 59 percent, respectively (see Table 1) —I use the crucial case selection method33 and explain why some of the most needy reservations inexplicably rejected the generous IRA. Second, I chose not to study the Oklahoma Congresses because the final version of the law contained a proviso that exempted Oklahoma tribes from the Act.34

30 Id. at § 17. 31 Indian General Allotment Act, 25 U.S.C.A. § 331 (repealed 2000). 32 DELORIA, supra note 24, at vii. 33 A crucial case selection method tests the validity of a hypothesis by studying the case that will most likely confirm a hypothesis. If the hypothesis cannot explain these crucial cases, one must conclude that it cannot adequately explain other, less clear, cases. CASE STUDY METHOD: KEY ISSUES, KEY TEXTS 148 (ROGER GOMM, MARTYN HAMMERSLEY, & PETER FOSTER, eds., 2000). 34 Indian General Allotment Act, 25 U.S.C.A. § 331 (repealed 2000). Indian and non- Indian Oklahomans lobbied Congress to exempt Oklahoman tribes from the IRA because the law would “retard a well advanced movement toward assimilation.” GRAHAM D. TAYLOR, THE NEW DEAL AND AMERICAN INDIAN TRIBALISM 35 (1980). See also JON S. BLACKMAN, OKLAHOMA’S INDIAN NEW DEAL 4 (2013) (“Politicking of the Oklahoma congressional delegation exempted Oklahoma Indians from six significant provisions of the Indian Reorganization Act in 1934.”).

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Table 1

Congress Average Male Employment Rate of Attending Reservations New Mexico 71 % Arizona 69 % California 67 % Oregon 61 % South Dakota 60 % Wisconsin 59 % Oklahoma 61 %

Ten indicators of procedural justice are used to give each Congress a procedural justice score.35 As illustrated by Table 2, a “1” indicates that the element of procedural justice was present; a “0” indicates that it was absent; and a “-1” indicates the presence of its unjust counterpart. Because procedural justice develops at the intersection of reality and perception, a Congress’ level of procedural justice was determined by considering both the BIA’s actions and the participants’ reactions.

35 TOM R. TYLER, WHY PEOPLE COOPERATE: THE ROLE OF SOCIAL MOTIVATIONS 183 (2011).

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Table 2

Chemawa, Rapid City, South Hayward, Oregon Dakota Wisconsin (Neutrality) Does 0 0 1 the authority figure not act on BIAs? (Explanation) 1 0 1 Does the authority figure explain his or her actions? (Voice) Does the 0 0 1 authority figure give people the opportunity to be heard? (Consideration) 0 1 1 Does the authority figure consider others insights (Equal 0 1 1 Consideration) Does the authority figure consider others’ insights equally? (Trust) Does the 0 1 1 authority figure inspire trust? (Politeness) Does 0 1 1 the authority figure treat people politely and with dignity? (Accuracy) Does 0 0 0 the authority figure use accurate information? (Consistency) 0 0 0 Does the authority figure apply rules consistently? Total Score 1 4 7

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The Congresses are ranked in order from least to most procedurally just by using the procedural justice score described in Table 2. The case studies varied in ranking from Hayward, which had the highest procedural justice score, to Chemawa, which had the lowest score out of all the Congresses. I then ranked the Congresses in order of their efficacy in garnering support for the IRA, as measured by the percentage of the represented reservations that eventually ratified the federal government’s proposal.

As Table 3 indicates, I found that the Congresses’ procedural justice rankings were highly correlated with their efficacy scores. All of the reservations that attended the most procedurally just Congress, Hayward, accepted the IRA. 68 percent of reservations that attended the second most procedurally just Congress, the Rapid City Congress, accepted the IRA. 47 percent of the reservations that attended the third most procedurally just Congress, Chemawa, accepted the IRA.36 These general findings support the argument that procedural justice in the formation of policy promotes cooperation in its implementation.

Table 3

Procedural Justice Percentage of Score attending reservations that eventually approved the IRA Hayward, Wisconsin 6 100% Rapid City, South 4 68 % Dakota Chemawa, Oregon 1 47 %

III. CASE STUDIES: AN INVESTIGATION OF THE RELATIONSHIP BETWEEN PROCEDURAL JUSTICE AND COOPERATION

Although these data are instructive, they fail to capture fully the importance of these normative considerations in determining acceptance. In the case studies that follow, I investigate the relationship between

36 HAAS, supra note 1.

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procedural justice and cooperation on two different levels. First, I analyze this relationship at the macro-level by explaining each Congress’ procedural justice ranking and by showing its correlation to the Congress’ efficacy in promoting IRA acceptance. Second, I focus on this association at the micro-level and reference delegates’ actual remarks to demonstrate how normative determinations affected the decisions of individual reservations. I begin with the Hayward Congress, the most procedurally just Congress.

A. Hayward, Wisconsin Congress

On April 23, 1934, four officials from the BIA stood in the middle of a high school gymnasium and greeted a crowd of more than 167 American Indian delegates.37 William Zimmerman, Bob Marshall, Walker Woehlke, and Dr. Henry Roe Cloud traveled to this sleepy town in northern Wisconsin to drum up support for the IRA. Although Zimmerman, the Assistant to the Commissioner of the BIA, began the meeting by highlighting the bill’s financial incentives,38 he and the rest of his team consistently acted and explained their intentions to act in a procedurally just way. Seven elements of procedural justice figured especially prominently in their presentation: neutrality, explanation, voice, consideration, equality, trust, and politeness. In the sections that follow, I discuss each of these elements individually.

1. Indicators of Procedural Justice from BIA Officials

a. Neutrality

First, all of the officials, but Woehlke especially, repeatedly implied that BIA did not motivate their actions. They did this by stressing that Native Americans’ abilities were equal, if not superior, to those of their white counterparts. For example, Woehlke began a flurry of compliments

37 Ronald N. Satz, “Tell Those Gray Haired What They Should Know”: The Hayward Indian Congress of 1934, 77 WIS. MAG. HIST. 196, 205 (1994), available at http://content.wisconsinhistory.org/cdm/ref/collection/wmh/id/39393 (last visited Dec. 27, 2013). 38 Zimmerman: “Only organized groups have power in the white world.” DELORIA, supra note 24, at 369.

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in the Congress’ opening session by claiming, “I am dead certain that once an Indian community is given the right to run its own affairs it will do so efficiently and far better than a lot whites are doing it now.”39 He continued by making the observation that Native American men “performed their work as efficiently if not more efficiently than their white brothers in the C.C.C. camps,”40 and finished by noting that “we know then that the capacity for leadership is in the Indian race. It is there just as much and sometimes more than in other races.”41

b. Explanation

Second, the BIA representatives thoroughly explained their actions. They summarized the purpose and effect of each section of the Act.42 They drew the delegates’ attention to their actions by highlighting their interest in explaining the bill. Zimmerman began the meeting by emphasizing that “we are here to explain this bill as we understand it.”43 Woehlke added, just three sentences later, “We want to discuss this bill in great detail and make it as clear to you as possible.”44 Because the representatives explained and then reiterated their interest in explaining their actions to the delegates, Hayward received a 1 for explanation.

c. Voice

Third, the BIA officials emphasized their interest in giving the Native American delegates an opportunity to voice their opinions about the bill. Woehlke, for instance, began his portion of the presentation by warning the crowd, “We . . . will ask you to do most of the talking.”45 The rest of the delegates kept Woehlke’s promise and, unlike in the other Congresses, they never silenced a single delegate.46 Dr. Roe Cloud sincerely expressed his interest in hearing delegates’ opinions of the bill when he

39 Id. at 373. 40 Id. 41 Id. 42 Id. at 370-375. 43 Id. at 370. 44 Id. 45 Id. 46 See generally id.

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stated, “It will be very interesting to hear some of these views.”47 Because the representatives repeatedly indicated their interest in hearing the delegates’ opinions, Hayward received a 1 for voice.

d. Equality

Fourth, The BIA officials considered everyone’s opinions equally. They even went as far as to allow two unofficial delegates to address the crowd on two different occasions.48 Possibly conscious of the Congress’ time constraints and fearing that the second unofficial delegate might indirectly cut into another delegate’s time, Dr. Cloud asked the crowd, “Shall we hear him?”49 Dr. Cloud, who was responsible for managing the debate, even encouraged people to express tangentially related opinions. After listening to an unofficial delegate’s meandering yet argumentative speech, which referenced Shakespeare, Emerson, Cicero, and Daniel Webster, Dr. Cloud patiently responded, “We are here to hear all sides of this question, and we are certainly glad to get that side of it indeed.”50 Because the representatives encouraged a wide range of people to express a diverse set of opinions, the Hayward Congress received a 1 for equality.

e. Consideration

Fifth, despite the fact that the BIA had already submitted their final amendments to the Indian Reorganization Act,51 Zimmerman implied that the Bureau would consider the Native American delegates’ comments in its future decisions to amend the bill. In fact, he said, “We are not here to sell you anything, nor are we trying to ram anything down your throats. We realize that this bill is not perfect by any means. Many changes have been made as a result of suggestions derived at previous Congresses like this one.”52 Consideration in the Congress demonstrated to Native American

47 Id. at 390. 48 Id. 49 Id. at 391. 50 Id. 51 Satz, supra note 37, at 200. 52 DELORIA, supra note 24, at 370.

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delegates that they could have an active role in the bill, rather than a passive role.

f. Trust

Sixth, the officials attempted to inspire honesty by vowing to keep their promises. Woehlke, for example, explained that “I can guarantee that whatever promises are made to you by this administration will be kept by this administration.”53

g. Politeness

Seventh, the BIA officials treated the delegates with respect and dignity which was shown through their politeness. In a surprising turn of events, the BIA officials were so effective in making the delegates feel comfortable that both officials and delegates began to light-heartedly brag to each other. Dr. Cloud, who was a Winnebago, responded to a Chippewa’s boasts by saying, “I think it is true that the Chippewa is a very great and kind person. I married one—I ought to know. But I still contend that the Winnebago is the bravest Indian on this continent.”54 Later in the Congress, Paul Abraham, a delegate from the Pipestone Sioux, picked up where Roe left off and paused before his speech to say:

Before I start in, I would like to finish a statement made by Dr. Roe Cloud and correct a statement made by Mr. St. Germaine. Dr. Roe Cloud says that Chippewas are the smartest Indians and the Winnebagos are the bravest, but he forgot to add that the Sioux are the best looking.55

William Skenadore, an Oneida delegate, delivered his speech directly after Abraham, and continued with the same good-natured boasting:

I assure you it is a great pleasure to stand before this grand body of Indians although I feel I wish to say this—that if the Winnebago Indians are the bravest and the Sioux are the

53 Id. at 377. 54 Id. at 391. 55 Id. at 396.

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best looking, we have overlooked the fact that the Oneidas have got the most money.56

Consistent with the normative framework’s predictions, all of the reservations that were represented at the Congress eventually accepted the IRA. Unlike in most of the other Congresses, delegates began promising to cooperate with the BIA before the meeting even ended. Charles Picard, from the L’Anse delegation, stated, “[o]ur delegation has pledged themselves to use their influence in persuading our members of our tribe to stand back of the bill.”57 Similarly, Reverend Aaron, a member of the Stockbridge delegation, turned to his fellow delegates and said, “I would like to suggest that after you go home today or tomorrow from this gathering, please remember what he has said and by pen or by tongue do what you can to make this bill go through.”58 This outpouring of support and cooperation emerged—not because of the bill’s outcomes—but because of, in Aaron’s words, “this grand and glorious meeting.”59

2. Indicators of Procedural Justice From How the Tribal Delegates Perceived the BIA Officials

As predicted by this paper’s normative framework, the Congress’ most vocal delegates focused on issues of procedural justice. In particular, the delegates spoke enthusiastically about two elements of procedural justice: explanation and trust.

First, the delegates noted the BIA’s thorough explanations. George Garvin of the Winnebago delegation explained, “I feel that we have been enlightened by this meeting.”60 Similarly, Mike La Fernier from the Red Cliff delegation said, “I wish to thank the Commissioner for explaining this bill to us.”61 Most significantly, Henry Wakemeup from the St. Croix delegation declared that the BIA’s thorough explanation of the bill actually influenced his previously unsupportive position when he stated, “When we

56 Id. at 397. 57 Id. at 395. 58 Id. at 398-99. 59 Id. at 396. 60 Id. at 389. 61 Id. at 394.

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heard they were going to present this bill, we said it was no good and we had many objections to it, but since hearing the deliberation of the different delegates and the explanations by the commission, I have changed my opinion of it.”62

Second, the delegates expressed surprisingly high levels of trust for the BIA officials despite their limited interactions. These expressions of trust manifested themselves in a number of ways. Some delegates evidenced their trust for the BIA by emphasizing their faith in the BIA’s deliberation and efforts. Mitchell Red Cloud, a Winnebago delegate, noted, “In some respects this bill is too good to be true, but we know that it is the outcome of long and deep thought and that the Indians will receive the benefits of justice.”63 Charles Picard, a L’Anse delegate, illustrated the potentially transformative impact of procedural justice when he explained how his trust in the BIA’s sincerity appeased his initial fears about the bill:

We came to this notable gathering armed with pockets full of objections to the bill we were to consider . . . [but] we have had the benefit of a private conference with some of the experts of this commission representing the Commissioner. . . We are satisfied that this commission will put forth its best effort to assist us in solving our own local difficulties.64

Other delegates expressed their trust in the BIA by referring to the BIA officials as friends.65 Skenadore, a delegate from the Oneida reservation, submitted a resolution to the Congress in which he wrote: “[W]e will forever be thankful to you as the New Commissioner of Indian Affairs, as the tried and true friend of Indians.”66 Henry Ritchie from the Pottawatomie delegation also implied that his trust for the BIA explained his support for the bill when he said, “As far as I am concerned, individually, I think it is a good thing. The bill is being drafted by friends of the Indians.”67 Reverend Aaron from the Stockbridge reservation went

62 Id. at 395. 63 Id. 64 Id. at 394. 65 Id. at 397. 66 Id. 67 Id. at 395.

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further than just describing Collier as a friend. Instead, he playfully suggested that Collier was, in fact, a Native American: “My common sense tells me that John Collier is a member of the White Race, but my heart tells me John Collier is an Indian: Yes, indeed, John Collier is an Indian with a heart as big and broad as the day is long.”68 The highest praise, however, came from Edwin Wilson, the Grand Portage delegate who described Collier as the “perfect gentlemen.”69 Thus, the Hayward Congress’ accepting delegates focused on the BIA’s fair treatment. The same is true for the following case study.

B. Rapid City, South Dakota

The BIA held its longest Congress in Rapid City, South Dakota. On March 2, 1934, delegates from more than twenty reservations clamored into the Rapid City Indian School in the hopes of meeting Collier, the man primarily responsible for managing their relationship with the United States government.70

The Rapid City Congress displayed a relatively high level of procedural justice, but it ultimately fell short of the standard set by Hayward. Four elements of procedural justice were especially evident: consideration, equality, trust, and politeness. One was noticeably absent: voice. I begin by discussing the elements of procedural justice that were present.

1. Indicators of Procedural Justice From BIA Officials

a. Consideration

First, the BIA officials claimed that Congress wished to consider the delegates’ opinions. In the following statement Collier explained that the event’s overriding purpose was to enable Congress to consider the opinions of Native Americans in the shaping of federal Indian law:

68 Id. at 396. 69 Id. at 390. 70 Id. at 24.

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It also is true that within the last four or five years the members of the House Committee on Indian Affairs have taken the view that they are representatives of the Indians in Indian matters and that they want to know the views and wishes of the Indians. Hence, it is in behalf of these Committees and their Members, as well as the Administration that we have now come to meet with you.71

Similarly, the BIA emphasized their interest in considering the delegates’ perspectives by framing the legislative process as a cooperative endeavor. In his opening statements Collier summarized the BIA’s policy of collaborative law-making and announced, “We intend to act in partnership with the Indians and we are not going to act unless the Indians are willing to go with us.”72 Similarly, on the third day of the Congress, Collier rehashed the same point and indicated, “We are meeting with you in order that you and we may think out this question and improve the Bill in any way that it can be improved, or change it in any way it ought to be changed.”73

The BIA repeatedly put this cooperative ethos into practice by asking the delegates, throughout the Congress, to participate in the planning of the meeting. Collier, for example, opened up the meeting by asking the crowd, “[w]hether you would like to have an Indian chairman or have one of the government men preside as chairman.”74 The BIA officials used this democratic planning technique throughout the Congress and polled the delegates on a number of issues, including where the BIA should hold the meetings,75 what the BIA officials should discuss,76 whether the BIA should host a dance party for the delegates,77 and whether the BIA should organize future congresses.78 The BIA not only adhered to the results of these impromptu elections but also granted

71 Id. at 26. 72 Id. 73 Id. at 70. 74 Id. at 25. 75 Id. at 32. 76 Id. at 47, 61-62, 92. 77 Id. at 93. 78 Id. at 88.

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other, more specific requests. After hearing rumors of an interest in non- English presentations, the BIA gave delegates an opportunity to deliver speeches in their native language.79 On a similar note, Collier and another BIA official promised to amend the bill in response to the suggestions of two different delegations.80

b. Equality

Second, the BIA officials considered people’s opinions equally. Most importantly, they did not privilege their own voices over the voices of the delegates. Collier introduced the Congress by notifying the delegates that “[i]t will be necessary for me and for others on the platform to do a good deal of talking, but please understand that it is just as important for you to talk as for us to talk.”81

In the same vein, the BIA officials explicitly structured the Congress’ format in a way to prevent the unequal distribution of voice. Woehlke questioned a request to remove interpreters because he feared that some delegates might not be able to participate in the discussion without the aid of a translator.82 Analogously, Dr. Cloud rejected his own tribe’s request to speak for more than their allotted time.83 Furthermore, the BIA emphasized the Congress’ openness in order to ensure that they were considering the voices of official and unofficial delegates equally.84 One BIA official even provided a heartfelt apology to an unofficial delegate who he had silenced the day before:

Yesterday afternoon I was sorry I had to be a little harsh with a gentleman who spoke out of turn and I believe that this gentleman who was out of turn yesterday should be given an opportunity to speak his mind. Therefore, if that gentleman, who was out of order yesterday afternoon, is in the house, I

79 Id. at 79. 80 Id. at 79-80, 82. 81 Id. at 26. 82 Id. at 49. 83 Id. at 74. 84 Id. at 40, 61.

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would be glad to have him come to the platform here and, with your consent, speak five minutes.85

c. Trust

Third, as in Hayward, the BIA officials made a concerted effort to project honesty. They did this in a number of ways. Some explicitly highlighted their attempts to tell the truth. Collier, for example, said, “I think it is the duty of the Commissioner to tell the truth and the truth is what I said and everyone in this hall knows that it is the truth.”86 Others proved their honesty by explicitly referencing their interest in keeping promises made earlier in the Congress. In one instance, Woehlke noted, “[A] large number of questions . . . have so far remained unanswered. We said that we would answer them and we do not want to speak with two tongues. Therefore, I am asking the Commissioner to . . . answer some more questions now.”87 Collier, at the very end of the Congress once again tried to project honesty by giving a short soliloquy on his interest in the delegates’ confidence:

We want the Indians to continue to believe that we have been truthful and faithful. Should we, at some future date, appear to have misinformed you, to have told you things that were not true, as we understood the truth, then we should consider that we had failed and lost the most precious thing that we possess, which is your confidence…. I am merely trying to convey to you that we have a stake of our own, just as much as you have, in making good, in playing fair, and in telling the truth.88

d. Politeness

Fourth, as in Hayward, the BIA treated the delegates politely, and with such dignity and respect that the mood turned sufficiently collegial and officials and delegates alike began to tell jokes. The BIA officials,

85 Id. at 79. 86 Id. at 35. 87 Id. at 79. 88 Id. at 95.

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including Dr. Cloud,89 Stewart,90 Woehlke,91 Marshall,92 and even some of the delegates93 made comments that, according to the transcript, sent rolls of laughter through the crowd.

e. Voice

While the Rapid City Congress displayed these four elements of procedural justice, it lacked one particularly important factor: voice. Although there were moments, like in Hayward, when the BIA stressed the importance of the delegate’s participation94 and attempted to let the delegates lead the conversation,95 there were instances in which the officials silenced the delegates’ voices. For example, some officials, such as Collier himself, explicitly expressed their aversion to hearing the delegates’ speeches. After hearing only half of the older delegates react to the bill, Collier attempted to prevent the remaining delegates from speaking and explained, “I don’t want to take any more time from the old men.”96

Other officials limited the delegates’ voice by strictly structuring the conversation and by discouraging the delegates from speaking about anything except for the session’s particular topic. In response to the Rosebud delegation’s request to present their questions publicly, Woehlke asked, “Do they refer to the three preceding sections or deal with the land division?”97 After learning that the questions did not concern the explicitly prohibited topics and were not related to those previously discussed, Woehlke granted the delegation’s request, albeit begrudgingly: “You may

89 Id. at 45. 90 Id. at 57. 91 Id. at 53, 58. 92 Id. at 55-56. 93 Id. at 88. 94 Id. at 26 (“Collier: ‘It is important that your views are expressed and put into the record.’”); Id. at 98 (“Woehlke: ‘[The Commissioner] and his representatives want to listen to what you have to say concerning the reorganization of your reservations.’”). 95 Id. at 58 (“James McGregor: ‘[g]et up right now and ask the Commissioner some things, anything, or the thing that you are most worried about this question.’”); id. at 89 (‘Collier: ‘We do want all views to have the fullest expression whether we agree with them or not . . . .’”). 96 Id. at 85. 97 Id. at 46.

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proceed, but make it quick.”98 Because BIA officials encouraged, but also prevented the delegates from expressing their opinions, the Rapid City Congress received a zero for this element of procedural justice.

f. Indicators of Procedural Justice From How the Tribal Delegates Perceived the BIA Officials

Not surprisingly, and consistent with this paper’s normative argument, 68 percent of reservations represented at the Rapid City Congress would eventually endorse the bill, making the second most procedurally just Congress also the second most effective Congress in garnering support for the bill.99

At the micro-level, the experience of procedural justice was also correlated with cooperation. Delegates who represented reservations that rejected the IRA voiced their concerns about the absence of procedural justice, and delegates who represented reservations that accepted the IRA spoke mostly about the presence of procedural justice.100 I begin by discussing the rejecting reservations and then finish with reference to the accepting ones.

The majority of rejecting delegations focused on at least one of four elements of procedural justice during their speeches. First, Harry White Man, a representative from the Crow reservation, referenced the BIA’s impolite comments, before explaining his reluctance to support the bill.101 He began his speech to the Congress by noting, “Once an Assistant Commissioner of Indian Affairs called me the most ungrateful Indian in the United States.”102 Second, Charles Blackbird, a delegate from the rejecting Fort Totten reservation, implied that he did not trust the BIA when he asked the “Government” to “guarantee us in some way that it will live up to its obligations.”103 Third, delegations from the rejecting Shoshone

98 Id. 99 HAAS, supra note 1. 100 DELORIA, supra note 24, at 69. 101 Id. 102 Id. at 68. 103 Id. at 73.

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Arapahoe104 and the Turtle Mountain Chippewa105 reservations protested that the BIA officials had forgotten to give their appointed delegates an opportunity to deliver their speeches.

Reservations that had endorsed the bill, on the other hand, focused on four elements of procedural justice: trust, voice, explanation, and politeness. First, some focused on their trust in Collier. The Lower Brule106 and the Fort Belknap107 delegations expressed this sentiment by describing Collier as a “friend.” Fort Berthold’s Chief Drags Wolf indirectly indicated his trust in the BIA by contrasting the current administration’s behavior with the actions of prior administrations: “The past administrations did not fulfill their promises . . . . Since then, the Government and the Indian Bureau are trying to rectify the evils of the past.”108

Second, other delegations that supported the IRA expressed their appreciation for having received an opportunity to voice their opinions. Jesse White Man, a member of the Flandreau delegation, explicitly articulated the relationship between his support for the proposal and his voice in the process: “The program indicates that Indians will have a voice in their property or anything that concerns them. Therefore, I believe I am very much in favor of the new system, especially education.”109

Third, other delegates, who represented supportive reservations, communicated their appreciation for the BIA’s thorough explanation of the law. Felix White from the Ponca reservation turned to Collier and stated, “I want to express appreciation that the Commissioner brought this ball of light out here. . . We are thankful that we came up here.”110 Similarly, a Fort Berthold delegate noted, “We are enjoying, however, the talks and the discussion that we have had in this convention. The more we learn

104 Id. at 86. 105 Id. at 87. 106 Id. at 73. 107 Id. at 86. 108 Id. at 85. 109 Id. at 71. 110 Id. at 77.

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from you and the more instructions we get from our Government officials, the more we believe we are getting the very best information . . . . ”111

Fourth, some accepting delegates highlighted the BIA’s polite and respectful treatment as a whole. Brown, a representative from the Blackfeet delegation, announced, “I want to take this opportunity to express publicly our sincere and heartfelt sympathy for the way our new Commissioner and those of his staff have treated us. . . .”112

These references to delegates’ actual remarks highlight the fact that delegations were thinking deeply about how they interacted with the BIA. Furthermore, and more explicitly in support of this paper’s normative framework, the delegates’ comments demonstrate how elements of procedural justice influenced behavior on the individual level. Indeed, as illustrated above, delegates from rejecting reservations noted the BIA’s unfair treatment, while delegates from accepting reservations expressed their appreciation for the BIA’s procedural justice.

C. Chemawa in Salem, Oregon

Immediately after the Rapid City Congress, BIA officials traveled west to Salem, Oregon to hold a Congress at the Chemawa Indian School. Collier, exhausted from his performance in Rapid City, did not attend.113 Unlike in Hayward and Rapid City, delegates and BIA officials did not develop a friendly rapport because the BIA officials did not conduct the meeting in a manner as procedurally just as they did in the two Congresses described above.114 Only one of the seven elements of procedural justice present at Hayward, explanation, was clearly evident in Chemawa. Two others, consideration and voice, were only marginally present. As a result, Chemawa, the least procedurally just Congress, received a score of 1.

111 Id. at 71. 112 Id. at 69. 113 Id. at 104. 114 Id.

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1. Indicators of Procedural Justice From BIA Officials

a. Explanation

First, as in Hayward, the BIA thoroughly explained their actions and encouraged participants to ask questions. Ward Shepard, a specialist in land policies for the Indian office, explained to the crowd, “I am going to try to be simple and straight-forward and if anything that I say is not clear, please do not hesitate to interrupt me.”115 Similarly, Marshall, another BIA official, told the delegates, “So what we want at this meeting and tomorrow is for all of you to ask us questions regarding anything which you don’t fully understand.”116 Others made the same point by emphasizing the fact that BIA held the conferences in order to explain their actions.117 Woehlke stated, “Mr. Collier called this Congress . . . for a very definite purpose. He called you together because he wanted to tell you, either through his own words or through the members of his staff, of the Wheeler-Howard Bill— what this bill is going to accomplish.”118 Because of the BIA’s repeated emphasis on the importance of explaining their actions, the Chemawa Congress received a 1 for this element of procedural justice.

b. Consideration

Second, even though the BIA officials repeatedly attempted to convince the delegates that they were seriously considering their opinions,119 there were moments in which BIA officials thoughtlessly and stubbornly dismissed delegates’ suggestions. For example, in a room full of more than twenty translators each speaking a different language, the Spokane delegate voiced his concern that the participants could not understand key elements of the BIA’s presentation.120 Instead of addressing the delegate’s reasonable concerns, Marshall initially responded, “At Rapid City, where there were 16 tongues . . . it was done

115 Id. at 112. 116 Id. at 104. 117 Id. at 108. 118 Id. 119 Id. at 103 (“Marshall: ‘Your criticisms and your suggestions are to be listened to and accepted and the bill is to be changed where necessary in order to make it what Indians want.’”). 120 Id. at 103.

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[this] way and there wasn’t much confusion. We will see how it works.”121 Because the BIA officials did not fully consider the delegates’ views, the Chemawa congress received a zero for this factor of procedural justice.

c. Voice

Third, like consideration, voice was only marginally present at Chemawa. Although the BIA officials highlighted their interest in giving the delegates an opportunity to express their opinions,122 they often failed to keep their promises.123 For example, a commotion ensued after Dr. Cloud initially refused to grant an audience member’s request for a question and answer session.124 The unidentified voice from the crowd repeatedly shouted at Dr. Cloud, “You’re out of order. You are out of order. We understood this morning that this afternoon was to be spent in answering questions that were presented on the table.”125 Less dramatically, Shepard declined to answer a delegate’s question because he could not “see that this question pertains to the Indian Government at all.”126 Dr. Cloud realized Shepard’s misstep and interjected, “Let’s give the speaker a chance now.”127 In the most explicit example of limiting a delegate’s voice, Woehlke announced:

In order to get through and cover the ground thoroughly, we must proceed in an orderly manner. We cannot transform this congress into a mob; therefore I hope you will understand if I am compelled, in order to preserve the orderly proceedings, to shut off someone or refuse to recognize someone.128

121 Id. 122 Id. at 106, 108, 121. 123 Id. at 116. 124 Id. 125 Id. 126 Id. at 113. 127 Id. 128 Id. at 108.

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2. Indicators of Procedural Justice From How the Tribal Delegates Perceived the BIA Officials

In accord with the procedural justice argument, after repeatedly being denied an opportunity to voice their concerns, only 53 percent of the reservations that were represented at the Congress eventually accepted the IRA. In other words, nearly half the represented reservations rejected the IRA.

As was true in my previous case studies, focusing purely on the BIA’s actions, fails to capture the significance of procedural justice. In fact, issues of procedural justice played prominent roles in the delegates’ individual responses to the BIA presentation.

Indeed, the Congress left many of the delegations so insecure about the importance of their voices in the legislative process that they encouraged the BIA to consider their perspectives in the future. Robert Smith from the Warm Springs reservation reminded the BIA, “[W]hen you get back to Washington, I want you to tell them not to forget Warm Spring’s [sic] talk here today. I want you to listen to what I say today.”129 Other tribes made more explicit assessments of the BIA’s treatment of their members. Consistent with this paper’s normative argument, the rejecting reservations focused on the absence of procedural justice and the accepting reservations concentrated on its presence. A majority of the rejecting reservations pointed to one of three missing elements of procedural justice.

First, some of the rejecting delegates protested the lack of a stronger Indian voice at the meeting. Before discouraging the other delegates from blindly accepting the IRA, Clayton Kirk, a delegate from the Klamath reservation, lamented the Congress’ representational inequity and stated, “[T]his bill is on trial today. On the one side you have the best that is in the Indian office . . . [but] I would like to have seen the Indian side represented by a lawyer . . . .”130

129 Id. at 131. 130 Id. at 135.

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Second, other rejecting reservations questioned the federal government’s institutional legitimacy by referring to its long history of broken promises. Chief Peter Mocktum, for example, a member of the Coeur D’Alene delegation, recounted stories of prior dishonesty and, interestingly, did not differentiate between the contemporary and previous administrations:

You surveyed and allotted my reservation by force. The government promised me at the time of allotment that this was to be my own individual allotment forever. Very few years after the allotments were made some delegation of yours informed me that the young people, the competent Indians could have their [land]. . . . Again the treaty was broken.131

Although the Siletz132 and Yakima133 delegations also spoke of broken treaties, John Wilson, a member of the Nez Perce delegation, explicitly explained his reservation’s eventual rejection of the IRA with a reference to the BIA’s dishonesty and inconsistent adherence to its rules.134 Wilson said:

My personal opinion is that [my reservation is] inclined to oppose the Bill. There is one big objection to the Bill: the reason is the Nez Perce claim 18,000,000 dollars in lieu of ceding the Montana hunting grounds to the government. The promises were extended as part of the Indian interests into the treaties with the government in 1855 and the promises that the mountains and rivers would be ours have never been kept.135

For the most part, accepting reservations described the BIA in glowing terms. They focused on two elements of procedural justice: consideration and trust. First, some expressed appreciation for the BIA’s

131 Id. at 127. 132 Id. at 130. 133 Id. at 131. 134 Id. at 129. 135 Id.

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visit and the BIA’s attempts to consider their opinions. An interpreter relayed a message from Eaneas Conso, an elder from the Flathead reservation, telling the BIA that “he says he is very glad you came over and visited us, the red men.”136 John Ballard, a member of the Fort Hall delegation, made an analogous statement and said, “we were glad to have you come here to talk to us.”137

Second, other accepting delegations expressed their trust in the BIA officials themselves. They did so in a number of ways. Jack George, a member of the Taholah delegation, indicated his trust for the BIA by complimenting their characters: “I think these are good people from the Indian Office . . . .”138 Others expressed their trust in the BIA more directly. John Ballard from the Fort Hall delegation turned to the BIA officials and said, “I believe you are telling me the truth.”139 Steve Knight, a member of the Sacramento delegation, trusted the BIA so much that he could comfortably claim, “I have enough faith and confidence in that man that I would support any proposal that he might put up for the welfare of the Indians of America.”140 Thus, delegates’ considerations of procedural justice played important roles in their decisions to reject or accept the IRA.

CONCLUSION

In support of the procedural justice theory of cooperation, there is strong evidence that Native American reservations accepted or rejected the IRA because of how the BIA treated their members during consultative congresses. These findings have at least three broader implications.

First, this research demonstrates the influence of procedural justice beyond the settings in which it has been examined thus far. On some views, Native American communities during the 1930s would be thought especially unlikely to have made judgments based upon normative—non- materialistic—considerations. Indeed, Native Americans severely lacked financial resources during this period compared to the general population.

136 Id. at 127. 137 Id. 138 Id. at 137. 139 Id. at 127-128. 140 Id. at 136.

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In fact, at the time, Native American unemployment rates were more than four times higher than the national average.141 Regardless of these abysmal employment rates, the Native American delegates who attended the Indian Congresses focused on procedure instead of on outcomes and chose respect and dignity over capital and credit.

Similarly unexpected, this research also expands our understanding of what sort of actor is affected by procedural justice concerns. Scholars such as Professor Justice Tankabe have previously argued that procedural justice is less influential in formerly colonized societies.142 This paper complicates those findings because, despite the fact that these delegates had spent most of their lives as colonized subjects, unable to vote, they made normative democratic decisions and cooperated with those who acted in a way consistent with the delegates’ moral expectations.143

Second, this paper further attempts to push procedural justice theory beyond its origins in law compliance and into the study of cooperation more generally. Indeed, unlike the examples found within the classical procedural justice literature,144 this study of the Indian Congresses suggests that procedural justice plays an important role in how people implement, and even make, laws. Further research in this vein could shed light on one of America’s most pressing problems and possibly find a solution to the hopelessly gridlocked legislature.

Third, and along the same lines, this research could provide a valuable tool for Native American governments. If procedural justice could effectively encourage Native American communities to cooperate with a once completely authoritarian and illegitimate BIA, current tribal officials should certainly be able to use the model highlighted above to more effectively and efficiently govern their polities. Reservations could increase

141 Christina Romer, Spurious Volatility in Historical Unemployment Data, 94 JOURNAL POL. ECON. 1, 31 (1986). 142 See generally, Justice Tankebe, Cooperation with Police in Ghana: Does Procedural Fairness Matter?, 47 CRIMINOLOGY 4 (2009). 143 An Act To authorize the Secretary of the Interior to issue certificates of citizenship to Indians, Pub. L. No. 68-175, 43 stat. 253 (1924). 144 TYLER, WHY PEOPLE OBEY, supra note 8.

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their efforts to make their institutions more procedurally just by continuing to experiment with procedurally focused forms of alternative dispute resolution. On reservations with high crime rates and empty coffers, this cost effective method of governance, based on friendly, public deliberation, seems especially useful.

Because of this study’s limited methodological resources and its inability to draw upon survey data, these conclusions are merely tentative. Despite these caveats, these conclusions do suggest, however, that the adoption of the IRA was about much more than just money. Indeed, it appears that a search for justice—not just riches—drove the reservations’ support for the Indian Reorganization Act.

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