Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

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NCHRP LRD 76 3 UPDATE OF SELECTED STUDIES IN TRANSPORTATION LAW, VOLUME 8, SECTION 3: INDIAN TRANSPORTATION LAW Lindsey Hanson, Attorney, Minneapolis, MN A. INTRODUCTION This section of Selected Studies in Transportation Law: Vol- ume 8: Indian Transportation Law, examines the intersection of transportation law and Indian law as it relates to federal, state, and local transportation agencies. Indian law is a particularly complex area of law that is uniquely rooted in history. For that reason, this section begins by providing background informa- tion on Indians, tribes, and the history of the federal govern- ment’s Indian policy and Indian law. With this background in- formation in mind, this section goes on to discuss jurisdiction in Indian country beginning with three basic concepts (inherent tribal sovereignty, Indians and tribal membership, and Indian country). The section on Indian country discusses basic terms for land ownership on reservations and in Indian country more generally. These concepts are necessary to understand the cases and issues discussed in this section. Following the discussion of these foundational concepts, this document goes on to provide an overview of federal, state, and tribal civil jurisdiction in In- dian country, followed by an overview of criminal jurisdiction in Indian country. This document also explores the law related to reservation boundary disputes, the fee-to-trust process and reservation proclamations, state sovereign immunity in suits in- volving Indian tribes, contracting with Indian tribes and tribal entities, acquisitions of Indian lands for public transportation purposes, and federal highway and transit programs involving Indian tribes. The latter sections of this document explore plan- ning and project development activities, construction activities, and operation and maintenance of highways in Indian country followed by a final section on government-to-government co- operation between states and Indian tribes. B. INDIANS, TRIBES, AND HISTORICAL BACKGROUND 1. Background In the 2010 Census, 5.2 million people identified as Ameri- can Indian or Alaska Native alone or in combination with other races (1.5 percent of the total U.S. population); 2.9 million peo- ple identified as American Indian or Alaska Native alone.1 The Census Bureau estimated that 20.5 percent of American Indians and Alaska Natives (alone or in combination with one or more races) live on reservations, on trust lands outside reservations, 1 2010 Census Briefs, U.S. Census Bureau, The American Indian and Alaska Native Population: 2010 (January 2012), avail- able at https://www.census.gov/history/pdf/c2010br-10.pdf (accessed May 26, 2018). or in other American Indian designated statistical areas.2 As of the 2010 Census, California (360,424) had the largest American Indian and Alaska native population (alone or in combination with one or more races), followed by Oklahoma (161,073) and Texas (144,292).3 The Navajo Nation is the largest reservation in the United States both in terms of geographical size and American In- dian population. According to the 2010 Census, an estimated 169,321 American Indians live on the Navajo Nation Reserva- tion and off-reservation trust lands.4 a. Indians5 The term “Indian” may be used to refer both to a race of people and as a political designation; these two applications of the term are not necessarily synonymous. Consider the U.S. Su- preme Court case Morton v. Mancari,6 in upholding a Bureau of Indian Affairs (BIA) Indian employment preference, the U.S. Supreme Court declared the Indian employment preference to be “political rather than racial in nature.”7 There is no single federal or tribal criterion to establish that a person is Indian.8 Government agencies use different criteria to determine who is an Indian eligible to participate in various programs. For example, the Indian Reorganization Act (IRA)9 uses this definition: 2 Id. American Indian designated statistical areas include the fol- lowing: Oklahoma tribal statistical areas, tribal designated statistical areas, state American Indian reservations, and state designated Ameri- can Indian statistical areas. 3 Id. 4 Id. A map of the United States that shows Indian lands can be found at: https://catalog.data.gov/dataset/bia-indian-lands-dataset- indian-lands-of-the-united-states. 5 See generally, William C. Canby, Jr. American Indian Law In A Nut Shell 3-9 (6th ed., West Academic 2015) (1998) (hereinafter Canby); Felix S. Cohen, Handbook Of Federal Indian Law 19-26 (LexisNexis 2012) (1941) (hereinafter Cohen); Stephan L. Pevar, The Rights Of Indians And Tribes: The Basic ACLU Guide To Indian And Tribal Rights (2002) (hereinafter Pevar). 6 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). 7 Id. at 553 n.24, 94 S. Ct. at 2484, 41 L. Ed. 2d at 302. See also, Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 480, 96 S. Ct. 1634, 1645, 48 L. Ed. 2d 96, 110 (1976); United States v. Antelope, 430 U.S. 641, 645, 97 S. Ct. 1395, 1398, 51 L. Ed. 2d 701, 706 (1977); Greene v. Comm’r of the Minn. Dep’t of Human Servs., 733 N.W.2d 490 (2007). 8 See Cohen, supra note 5, § 3.03, Definition of Indian. 9 73 Pub. L. No. 383, 48 Stat. 984, 988 (1934), (codified at 25 U.S.C. §§ 5101-5103, 5107-5113, 5115-5116, 5118, 5120-5121, 5123- 5125, and 5129 (2018).

4 NCHRP LRD 76 to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. §§ 1601 et seq.] which is recognized as eligible for the special pro- grams and services provided by the United States to Indians because of their status as Indians[.] In 1978, the U.S. Department of the Interior (DOI) ad- opted regulations establishing a procedure for tribal recogni- tion.18. While a group of Indians may consider itself a “tribe,” that group must meet the requirements for recognition es- tablished by the Secretary of the Interior to qualify for federal benefits afforded federally recognized Indian tribes. Such recognition by the Secretary of the Interior is given substan- tial deference by courts.19 The government’s recognition of a tribe or failure to recognize a tribe, while a political decision, is still subject to judicial review for compliance with the law and due process requirements.20 As late as 1977, out of 400 tribes that then existed, less than 300 had been officially recognized by the Secretary of the Inte- rior.21 By 1991, there were 510 federally recognized tribes in the United States, including about 200 village groups in Alaska.22 In 2002, the BIA listed 562 recognized tribes, which included some 225 Alaska Native entities.23 The latest BIA listing, published on January 30, 2018, listed 570 recognized tribes and Alaska Native entities.24 2. Historical Background—Federal Government Indian Policy a. Introduction Indian law is best understood in historical perspective be- cause the law reflects national Indian policy that has been con- stantly changing. “Some commenters liken the federal-Indian 18 25 C.F.R. Part 83 19 Deskbook, supra note 15, at 109-110, 110 n.23; but see Koke v. Little Shell Tribe of Chippewa Indians of Mont., 2003 Mt. 121, 133, 315 Mont. 510, 513, 68 P.3d 814, 816-17 (2003): “[t]ribes may still be recognized as such under common law. The United States Supreme Court established criteria for common law recognition of a tribe in Montoya v. United States, 180 U.S. 261, 21 S. Ct. 358, 359, 45 L. Ed. 521, 36 Ct. Cl. 577 (1901); first, members must be of the same or a similar race; second, they must be united in a community; third, they must exist under one leadership or government; and fourth, they must inhabit a particular, though sometimes ill-defined territory.” 20 Canby, supra note 5, 6, citing Muwekma Ohlone Tribe v. Sala- zar, 708 F.3d 209 (D.C. Cir. 2013); Samich Indian Nation v. United States, 419 F.3d 1355, 1370-73 (Fed. Cir. 2005). 21 American Indian Policy Review Commission, Final Report 461 (1977). 22 Deborah M. Tootle, American Indians: Economic Opportuni- ties and Development, 102, USDA Economic Research Service, USDA, Rural Americans, https://www.ers.usda.gov/webdocs/ publications/40678/32997_aer731i_002.pdf?v=0 23 Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 67 Fed. Reg. 46,328 (July 12, 2002). 24 Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 83 Fed. Reg. 4235 (Jan. 30, 2018). The term “Indian” as used in this Act shall include all persons of In- dian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the pres- ent boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians.10 An important definition is the one used in the Indian Self- Determination and Education Assistance Act (ISDEAA),11 which provides that “‘Indian’ means a person who is a mem- ber of an Indian tribe.”12 The process for determining tribal membership is defined and administered by each tribe. Tribes vary their criteria for membership.13 One common require- ment for tribal membership is being a lineal descendant of a member of the tribe. Someone who is a tribal member might also be called an “enrolled member” or said to be “enrolled” or an “enrollee.” These terms all mean the same thing.14 Note that the varying definitions of “Indian” require the practitio- ner to specifically determine the purpose for which identifi- cation is relevant when conducting legal research. b. Tribes15 Originally, an Indian tribe was a body of people bound to- gether by blood ties who were socially, politically, and religiously organized; who lived together in a defined territory; and who spoke a common language or dialect.16 Even though the U.S. Constitution, Article I, Section 8, Clause 3, and many federal statutes and regulations use the term, today there is no single federal statute that defines “Indian Tribe” for all purposes.17 IS- DEAA at 25 U.S.C. § 5304(e) states as follows: (e) “Indian tribe” means any Indian tribe, band, nation, or other or- ganized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant 10 See 25 U.S.C. § 5129 (2018). 11 93 Pub. L. No. 638, 88 Stat. 2203. 2204 §4(a) (1975), (codified at 25 U.S.C. § 5301-5423) (2018). 5404(d). 12 23 USC § 5304(d) (2018). 13 U. S. Dept. of Interior, Office of Public Affairs – Indian Affairs, A guide to Tracing American Indian and Alaska Native Ancestry, 4, https://www.bia.gov/sites/bia_prod.opengov. ibmcloud.com/files/assets/public/pdf/Guide_to_Tracing_AI_and_ AN_Ancestry.pdf. 14 See Jessica Bardill (Cherokee), Ph.D., Tribal Sovereignty and Enrollment Determinations, National Congress of American Indians, American Indian -Alaskan Native Genetics Resource Center (undated), http://genetics.ncai.org/tribal-sover- eignty-and-enrollment-determinations.cfm. 15 See generally, L. R. Weatherhead, What Is an “Indian Tribe”— The Question of Tribal Existence, 8 AM. Indian L. Rev. 1 (1980); Cohen, supra note 5, at 131-140; American Indian Law Deskbook 82-116 (Thomson Reuters 2014) (1993) (hereinafter Deskbook); at 79–83; Pevar, supra note 5, at 20-21. 16 See, Montoya v. United States, 180 U.S. 261, 266, 21 S. Ct. 358, 359, 45 L. Ed. 521, 523 (1901), where the Court said: “By a ‘tribe’ we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory.” 17 Cohen, supra note 5, at 131.

NCHRP LRD 76 5 out their consent.”35 The establishment of central government power over Indian affairs by the Continental Congress in 1775 was continued in the new U.S. Constitution. Article 1, Section 8, Clause 3, which provides that “Congress shall have power… to regulate commerce with foreign Nations, among the several States and with the Indian Tribes.” The President was autho- rized to make treaties with Indian tribes, with Senate consent, by Article II, Section 2, Clause 2. Congress, in passing a series of Trade and Intercourse Acts beginning in 1790, began a statutory pattern designed to separate Indians from non-Indians for pur- poses of federal control and regulation. For example, Congress required persons trading with Indians to have a federal license, authorized criminal prosecution of non-Indians for crimes against Indians, and prohibited acquisition of Indian land with- out federal government consent. However, when gold was discovered on Georgia’s Cherokee lands in the late 1820s it heightened the demand for white ac- cess to the Cherokee land and increased illegal entry by whites, leading to conflict and violence.36 The State of Georgia reacted by passing several laws “purporting to abolish the Cherokee government, nullify all Cherokee laws, and extend Georgia state law over the Cherokee Nation.”37 This climate of hostility was the backdrop for two of the important U.S. Supreme Court cases that make up Chief Justice Marshall’s Indian Trilogy. These cases will be discussed in section B.3 of this digest entitled “Historical Background-Indian Law.” c. Removal Policy (1830 to 1861) 38 The period between 1830 and 1861 is known as the “Remov- al Period,” marking a time when, because of increasing pressure from the states, the federal government began to force eastern tribes to cede their land by treaty in exchange for reserved land in the west. Several treaties in the 1850s “reserved” land for trib- al occupancy.39 According to Prucha: In the late 1820s and the 1830s a full-scale debate on Indian trea- ties renewed the criticisms of treaty making that Andrew Jackson had brought forth a decade earlier. There was a powerful onslaught against the treaties and the Indian nationhood on which they rested and an equally vigorous and eloquent defense of both, set in a frame- work of preservation of national faith and honor. The debate centered on the Cherokees in Georgia, but it had broader applicability.40 Under Jackson, who was elected president in 1828, the re- moval policy ripened into official action. Jackson’s first message 35 Pevar, supra note 5, at 6. 36 Wildenthal, supra note 27, at 39. 37 Id. 38 See generally, John Ehle, Trail Of Tears: The Rise And Fall Of The Cherokee Nation 170 (1988); Francis P. Prucha, American Indian Treaties: The History Of A Political Anomaly 156–207 (1944) (hereinafter Prucha); Robert V. Remini, Andrew Jackson And His Indian Wars 226–53 (2001); Wildenthal, supra note 27, at 39–40. 39 See e.g., Treaty with the Kansas Tribe of Indians, 12 Stat. 1111 (1859); Treaty with the Winnebago Tribe of Indians, 12 Stat. 1101 (1859); Treaty with the Menominee Tribe of Indians, 10 Stat. 1064 (1854). 40 Prucha, supra note 38, at 156. relationship to a pendulum that has shifted back and forth be- tween attempts to annihilate tribes during certain periods of time and attempts to support tribal self-government and au- tonomy at other times “(citations omitted).25 Understanding the history of these shifting policies is important to understanding American Indian law because there are lasting effects from each policy. The following sections briefly cover federal Indian policy from the colonial era to the present. b. Colonial and Treaty Making Era At the outset of European settlement of North America, the continent was occupied by approximately 500 independent In- dian nations.26 Agreements between the European colonists and tribes reflected treatment of each tribe as a sovereign nation. British colonists generally purchased Indian lands with consent of the tribe.27 During the colonization period, the English Crown also treated Indian tribes as foreign sovereigns and provided for protection of tribes from encroachment by the colonists. For ex- ample, following the end of the French and Indian War (1754– 1763) and the defeat of France by England, King George III, by royal proclamation, prohibited settlement or encroachment on Indian lands west of the Appalachian Mountains. One of the disputes arising from this proclamation resulted in the first U.S. Supreme Court decision relating to Indian law.28 The Continental Congress declared its jurisdiction over In- dian tribes on July 12, 1775.29 The Delaware Treaty of Fort Pitt, also known as the Treaty with the Delawares,30 was the first of 367 ratified Indian treaties between 1778 and 1868, when the final treaty was signed with the Nez Perce. 31 The Fort Pitt Treaty guaranteed the Delaware Indians “all their territorial rights in the fullest and most ample manner….”32 From the beginning, federal policy recognized a separate status for tribal Indians in their territory.33 Following the Revolutionary War, Congress continued to make strong efforts to resist state/citizen aggression towards Indians and Indian lands to avoid retaliation. The Northwest Ordinance of 178734 clearly reflects this effort by declaring: “The utmost good faith shall always be observed towards Indians; their land and property shall never be taken from them with- 25 Pevar, supra note 5, at 4. 26 Id. at 1. 27 Bryon H. Wildenthal, Native American Sovereignty On Trial: A Handbook With Cases, Laws, And Documents, 21 (Charles Zelden ed., 2003) (hereinafter Wildenthal). 28 Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L. Ed. 162 (1810). See Wildenthal, supra note 27, at 21. 29 2 J. Continental Cong. 175 (1775). See also U.S. Const. art. 1, § 8, cl. 3, giving Congress “power to regulate commerce with Indian tribes.” 30 2 Kapp 3; 7 Stat. 13 (1778). 31 Nez Perce Treaty, available at, https://www.fs.usda.gov/ Internet/FSE_DOCUMENTS/stelprdb5108216.pdf 32 7 Stat. 13, Art. VI. 33 Cohen, supra note 5, at 140. 34 1 Stat. 50 (Aug. 7, 1789).

6 NCHRP LRD 76 to make reserved lands permanent helped provide stability to tribal territorial boundaries. Eventually, the reservations “came to be viewed…as instruments for ‘civilizing’ the Indi- ans,” with federally appointed Indian agents placed to ensure Indian adaptation to non-Indian ways.49 e. Allotment and Assimilation Policy (1887 to 1934) Tribal land was held in common for the benefit of all mem- bers of the tribe prior to the allotment period. During the al- lotment period, the United States followed a policy of allotting tribal land to individual Indians.50 This involved dividing land held in common into allotments, or parcels of land, for indi- vidual Indians, and then opening the “surplus” land to non-In- dians for settlement. One of the intentions of the policy was to promote assimilation of Indians into American society.51 There were those, sympathetic to the plight of Indians living in hope- less poverty, who sincerely believed this could be remedied by granting individual ownership of land, which would thereby de- 3. Idaho: Idaho Const. art 21, § 19; Enabling Act, 26 Stat. 215. 4. Montana: Mont. Const. ord. I, § 2; Enabling Act, 25 Stat. 676, §§ 4 and 10; Pres. Procl. 26 Stat. 1551. 5. New Mexico: N. M. Const. art 21, §§ 2 and 10; Enabling Act, 36 Stat. 557; Joint Res., 37 Stat. 39; Pres. Procl., 37 Stat. 1723. 6. North Dakota: N. D. Const. art. 16; Enabling Act, 25 Stat. 676, §§ 4 and 10; Pres. Procl., 26 Stat. 1548. 7. Oklahoma: Okla. Const. art. I, § 3; Enabling Act, 34 Stat. 267, §§ 1, 2, and 3; Pres. Procl., 35 Stat. 2160. 8. South Dakota: S. D. Const. art. 22, § 2; Enabling Act, 25 Stat. 676, §§ 4 and 10; Pres. Procl., 26 Stat. 1549. 9. Utah: Utah Const. art. 3; Enabling Act, 28 Stat. 107, § 3; Pres. Procl., 29 Stat. 876. 10. Washington: Wash. Const. art. 26; Enabling Act, 25 Stat. 676; Pres. Procl., 26 Stat. 1552. 11. Wyoming: Wyo. Const. art. 21, § 26; Enabling Act, 26 Stat. 222. 49 Canby, supra note 5, at 21, where he also notes: The appointment of Indian agents came to be heavily influ- enced by organized religions, and when reservation schools were first set up in 1865, they too were directed by religious organizations with a goal of “Christianizing” the Indians. In 1878, off-reservation boarding schools were established to permit education of Indian children away from their tribal environments. 50 See generally, Delos S. Otis, The Dawes Act And The Allotment Of Indian Lands, Readjustment Of Indian Affairs: Hearings On H.R. 7902 Before The House Comm. On Indian Affairs, 73d CONG., 2d SESS. 428–89 (Francis P. Prucha, ed., Univ. of Oklahoma Press, 1973) (1934) (History of the Allot- ment Policy) (hereinafter D. Otis). 51 See Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 650 n.1, 96 S. Ct. 1793, 1794, 48 L. Ed. 2d 274, 277 (1976). Cited in S. Cal. Edison Co. v. Rice, 685 F.2d 354, 356 (9th Cir. 1982) and Murphy v. Royal, 875 F.3d 896, 934 (10th Cir. 2017). to Congress sought federal legislation to authorize removal of the Cherokees and the other four “Civilized Tribes” (the Choc- taw, Chickasaw, Creek, and Seminole) to the west.41 In response, following bitter debate, Congress passed the Indian Removal Act which President Jackson signed on May 28, 1830.42 The Act authorized the President to negotiate with the eastern tribes for relocation. It expressly provided for grants of federal land west of the Mississippi for any Indians who “may choose to exchange the lands where they now reside, to remove there” (Oklahoma “Indian Territory”).43 The program of voluntary land exchange and removal be- came one of coercion. This led to journeys of great hardship and suffering. The Trail of Tears, resulting from the forced removal of the Five Civilized Tribes from the Southeast to what is now Oklahoma, is a well-known example of this.44 The southern Indians had been forced into treaties they did not want, treaties whose validity they denied but which were adamantly enforced. The hardships of removal were extreme. Yet these Indian nations were not destroyed…. [S]upporters in Congress and the deci- sions of John Marshall in the Cherokee cases provided a theoretical basis for the continuing political autonomy of the tribes and their rights to land.45 Between 1832 and 1843 most eastern tribes either were removed to the West or forced to live on smaller reservations in the East. In their treaties with the United States, many eastern tribes were promised that their new homes in Arkansas, Kansas, Iowa, Illinois, Missouri, or Wisconsin would be theirs permanently. The United States broke almost every one of these treaties, often within a few years after they were signed, and some tribes moved several times to ‘permanent homes’ farther west.46 d. Reservation Policy (1861 to 1887) The period from 1861 to 1887 is known as the “Reserva- tion Period.” During this time, Congress recognized the trea- ty “reserved” lands as permanent areas under tribal jurisdic- tion within the states (“reservations”). This was first done in the Enabling Act for the Kansas Territory.47 Other such En- abling Acts or state constitutions recognized “reservations” and disavowed state jurisdiction in these areas.48 The move 41 Wildenthal, supra note 27, at 38. 42 4 Stat. 411 (1830). 43 Id. at 40. 44 Canby, supra note 5, at 19-20. 45 Prucha, supra note 38, at 182. 46 Pevar, supra note 5, at 7. 47 Act of Jan. 29, 1861, ch. 20, § 1, 12 Stat. 126, 127; see also Robert H. Clinton, Development of Criminal Jurisdiction over Indian Lands: The Historical Perspective, 17 Ariz. L. Rev. 951, 960–61 (1975). 48 Eleven states initially disclaimed jurisdiction over Indian lands, including Indian reservation land, in their state constitutions at the time they received statehood. However, this was not necessar- ily a total disclaimer of jurisdiction over the actions of Indians. These states are: 1. Alaska: Alaska Const. art. 12, § 12; Enabling Act, 72 Stat. 339, § 4, as amended, 73 Stat. 141. 2. Arizona: Ariz. Const. art 20; Enabling Act, 36 Stat. 568, § 19.

NCHRP LRD 76 7 resisted assimilation and did not want to abandon their communal society to become farmers and ranchers. Besides, not only were many allotments unsuitable for small-scale agriculture but few Indians pos- sessed the capital to buy the equipment, cattle, or seeds to initiate these ventures. Thousands of impoverished Indians sold their allot- ments to white settlers or lost their land in foreclosures when they were unable to pay state real estate taxes. .61 Many Indian lands passed from Indian ownership to non- Indian ownership under the allotment policy.62 Out of ap- proximately 156 million acres of Indian lands in 1881, less than 105 million remained by 1890, and by 1900, only 78 million remained.63 In 1924, during this period of allotment and assimilation, Congress conferred citizenship on all Indi- ans born in the United States (8 U.S.C. § 1401(b)). By 1934, approximately 90 million acres had passed from tribal own- ership, through individual Indian allotment status, to non- Indian fee ownership.64 Although the allotment policy ended with passage of the IRA in 1934, the allotment policy resulted in reservations becoming a checkerboard of land ownership between allotments held in trust and patented lands owned in fee by either Indians or non-Indians and no longer in trust status. This checkerboard of ownership still exists today within the boundaries of many reservations. On some reser- vations there is a high percentage of land owned and occu- pied by non-Indians, although 140 reservations comprise en- tirely tribally owned land.65 Today, this checkerboard of land ownership significantly complicates the process of acquiring lands within most reservations because federal requirements differ depending on how the land is owned. f. Indian Reorganization Policy (1934 to 1953) The 1930s saw an abrupt policy change in the federal govern- ment’s handling of Indian affairs, due in large measure to recog- nition that the Dawes Act had been a failure. A major vehicle for this change was a Brookings Institution two-year study by Lewis Meriam that produced a report released in 1928 entitled, The Problem of Indian Administration (commonly called the “Me- riam Report”),66 which documented the failure of the allotment policy.67 John Collier, who had long been actively involved in the Indian reform movement, was appointed as Commissioner of Indian Affairs by President Roosevelt in 1933;68 he “aggressively promoted a new policy in Indian affairs that revived tribalism 61 Pevar, supra note 5, at 9. 62 In 1934, Congress enacted the Indian Reorganization Act, 73 Pub, L. No. 383, 48 Stat. 984, ch. 576 (1934) (codified as amended at 25 U.S.C. §§ 5101-44 (2018)), which ended the allotment policy. 63 D. Otis, supra note 50, at 87. 64 Id. at 17. 65 USACE, Consulting with Tribal Nations, 3 (2013). 66 Complete Meriam Report available at https://files.eric.ed.gov/ fulltext/ED087573.pdf. 67 Prucha, supra note 38, at 374 n.29; Canby, supra note 5, at 25. 68 Pevar, supra note 5, at 10. Pevar notes that Collier declared in 1934 that “No interference with Indian religious life or expression will hereafter be tolerated. The cultural history of Indians is in all respects to be considered equal to that of any non-Indian group.” Id. n.48 Commissioner of Indian Affairs, Annual Report, 1934, at 90. velop a “middle class” of Indian farmers.52 Under this policy, the United States allotted millions of acres of tribal lands on certain Indian reservations.53 The passage of the General Allotment Act of 1887,54 com- monly referred to as the Dawes Act, formalized this policy, and is considered “the most important and, to the tribes, the most disastrous piece of Indian legislation in United States history.”55 The Dawes Act provided for the mandatory allot- ment of reservation lands to individual Indians, with surplus lands made available to non-Indians by fee patent. It also provided that allottees became U.S. citizens and would be subject to state criminal and civil law.56 Section 5 of the Act provided that title to allotments would be held in trust by the United States for 25 years (i.e., the federal government would hold title to the land and manage it for the individual Indian allottee) with title passing to the allottee at the end of the 25- year period. Section 5 of the Dawes Act also provided that the President could extend the trust period beyond 25 years. The Dawes Act was challenged by the confederated tribes of the Kiowa, Comanche, and Apache Indians, residing in the Territory of Oklahoma, alleging violation of their treaty rights. The resulting 1903 U.S. Supreme Court decision in Lone Wolf v. Hitchcock57, upheld the allotment policies of Congress. Ac- cording to one legal scholar, this “is probably the most infamous and harshly criticized Indian law decision in the history of U.S. courts.”58 A unanimous Court, in rejecting the challenge, held this: The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the coun- try and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of government policy, particularly if consistent with perfect good faith towards the Indians.59 *** We must presume that Congress acted in perfect good faith in the dealings with the In- dians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises.60 Furthermore, scholars and researchers have stated: Rather than assist Indians overcome poverty, the GAA [General Al- lotment Act of 1887] drove them further into it. Most Indians fiercely 52 Canby, supra note 5, at 22. See also County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 253–54, 112 S. Ct. 683, 686, 116 L. Ed. 2d 687, 694 (1992); Shangreau v. Babbitt, 68 F.3d 208, 209-211 (8th Cir. 1995). 53 President Roosevelt described the allotment process in his message to Congress in 1903 as “a mighty pulverizing engine to break up the tribal mass.” 35 CONG. REC. 90 (1902). 54 Pub. L. No. 49-119, 244 Stat. 388. 55 Canby, supra note 5, at 22. 56 Id. at 23. 57 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903). 58 Wildenthal, supra note 27, at 53. 59 Lone Wolf, 187 U.S. at 566, 23 S. Ct. at 221, 47 L. Ed. at 306. 60 Id. at 568, 23 S. Ct. at 222, 47 L. Ed. at 307(1903).

8 NCHRP LRD 76 their status as wards of the United States.77 The BIA began a survey of tribes suitable for termination, which resulted in the termination of more than 100 tribes by congressional ac- tion, primarily in Oregon and California.78 Upon termina- tion, “the tribe’s property was distributed to its members or to a tribal corporation. Once the property was distributed, the reservation was eliminated, and tribal members became subject to state law.”79 Another product of termination policy was the enact- ment of Public Law 83-280,80 which is commonly referred to as Public Law 280. Public Law 280 gave five states (Cali- fornia, Minnesota, Nebraska, Oregon, and Wisconsin81) ex- tensive criminal and civil jurisdiction in Indian country.82 Alaska also received this grant of criminal and civil juris- diction in Indian country under Public Law 280 in 1958.83 Public Law 280 also gave the remaining states the option of assuming such jurisdiction.84 Out of 44 “option” states, only 10 assumed jurisdiction under Public Law 280.85 According to Canby: The effect of Public Law 280 was drastically to change the traditional division of jurisdiction among those states where the law was ap- plied…[displacing] otherwise applicable federal law and…[leaving] tribal authorities with a greatly diminished role. It ran directly coun- ter to John Marshall’s original characterization of Indian country as territory in which the laws of the state “can have no force.”86 h. Self-Determination Policy (1969 to Present) The Termination Era was short-lived, and by 1959, “the Eisenhower administration backed off any further pursuit 77 H. Con. Res. 108, 83d Cong., 67 Stat. B132 (1953). 78 Pevar, supra note 5, at 67 n.73: American Indian Policy Review Commission, Final Report, at 447- 53. 79 Id. at 67-68, n.71 citing, “e.g., Menominee Termination Act, 25 U.S.C. Secs. 985 et seq.; Klamath Termination Act, 25 U.S.C. Secs. 564 et seq. See discussion, South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986).” 80 Act of Aug. 15, 1953, Pub. L. No. 83-28, 67 Stat. 588, ch. 505 amending ch. 53 of 18 U.S.C. to add § 1162 and ch. 85 of 28 U.S.C. to add § 1360. 81 Note that Public Law 280 never granted the State of Minnesota any additional jurisdiction on the Red Lake Reservation and never granted the State of Oregon additional jurisdiction over the Warm Springs Reservation. Also note that Public Law 280 did not take away jurisdiction from Indian tribes; thus, tribes retain jurisdiction in Indian country resulting in situations where concurrent jurisdiction exists. See section C for additional information. 82 Later court decisions clarified that Public Law 280 is not a grant of civil regulatory jurisdiction to the states in Indian country. See sec- tion C.3 for additional information. 83 Act of Aug. 8, 1958, Pub. L. No. 85-615, 72 Stat. 545. 84 Pub. L. No. 83-280, §§ 6, 7. 85 Pevar, supra note 5, at 125: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. 86 Canby, supra note 5, at 29 citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832).; See also, Canby, supra note 5, at 265-291, Chapter VII, at Public Law 280: A Federal Grant of Jurisdiction to the States. and Indian cultures.”69 Congress passed the Indian Reorgani- zation Act (Wheeler–Howard Act) in 1934,70 adopting much of his program, including efforts to strengthen and modern- ize tribal governments.71 “The Indian Reorganization Act was based on the assumption, quite contrary to that of the Allotment Act, that the tribes not only would be in existence for an indefi- nite period, but that they should be.”72 The purpose of the IRA was “to rehabilitate the Indian’s economic life and give him a chance to develop the initiative destroyed by a century of oppression and paternalism.”73 Major features of the IRA included provisions for the following: end- ing the allotment policy; holding Indian allotments in trust in- definitely; returning to tribes the surplus land not already sold; authorizing the Interior Secretary to acquire lands for tribes; au- thorizing the Interior Secretary to create new reservations; au- thorizing tribes to organize as federally chartered corporations and adopt constitutions (with approval of the Secretary of Inte- rior and subject to ratification by a majority of tribal members); and requiring the Secretary of Interior to give Indians prefer- ence in employment for BIA positions. Between 1934 and 1953, “Indian land holdings increased by over two million acres, and federal funds were spent to improve reservation roads, homes, health facilities, community schools, and irrigation systems, and tribal governments experienced a revitalization.”74 The IRA stopped further reduction of the tribal land base. The “encouragement of tribal self-government en- joyed a more limited success.”75 However, scholars note, “[O]n the whole the Act must be considered a success in providing a framework, however flawed, for growing self-government by the tribes in the decades following its passage.”76 g. Termination Policy (1953 to 1969) Congress abruptly changed federal Indian policy again in 1953, adopting a policy of “termination.” The 83rd Congress enacted House Concurrent Resolution No. 108, resolving to, at the earliest possible time, “make the Indians within the ter- ritorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States,” ending 69 Prucha, supra note 38, at 374–75. 70 73 Pub. L. No. 383, 48 Stat. 984 (1934) (codified, as amended, at 25 U.S.C. §§ 5101-44(2018)). 71 Prucha, supra note 38, at 374–75. 72 Canby, supra note 5, at 25. 73 Pevar, supra note 5, at 10 n.50, citing H.R. REP. NO. 73- 1804, at 6, 90 (1934). See also, Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S. Ct. 1267,1272, 36 L. Ed. 2d 114, 121 (1973) (quot- ing H.R. REP. NO. 73-1804, at 6 (1934); see also, Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14 n.5, 107 S. Ct. 971, 975, 94 L. Ed. 2d 10, 18 (1987); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335, 103 S. Ct. 2378, 2387, 76 L. Ed. 2d 611, 621 (1983); Washing- ton v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 168, 100 S. Ct. 2069, 2089, 65 L. Ed. 2d 10, 38 (1980). 74 Pevar, supra note 5, at10. 75 Canby, supra note 5, at 26. 76 Id. at 27.

NCHRP LRD 76 9 a procedure was enacted providing for states to retrocede jurisdiction previously assumed under Public Law 280.95 By 1992, six states had retroceded jurisdiction to some extent.96 Building on President Johnson’s rejection of termination policy, President Nixon called for a federal policy of “self-de- termination” for the Indian tribes in a landmark message in 1970. He denounced termination policy, stating, “This, then, must be the goal of any new Indian policy toward the Indian people: to strengthen the Indian sense of autonomy with- out threatening his sense of community.”97 While stressing the continued importance of the trust relationship, he urged Congress to undertake a program of legislation that would permit the tribes to manage their own affairs. This ignited a bipartisan consensus that has remained, more or less, ever since.98 This consensus has produced a significant number of legislative enactments advancing “self-determination” for Indian tribes.99 The first piece of legislation in this era was the Indian Education Act of 1972,100 designed to meet the special needs of Indian children, but which one commentator viewed as open- ing “a Pandora’s box of benefits because it failed to describe precisely the Indians who were to be the beneficiaries of an expanded federal effort in Indian education.”101 Next came the Indian Financing Act of 1974,102 establishing a revolving loan fund to aid development of Indian resources. Then came the 95 25 U.S.C. § 1323. (2018). 96 Pevar, supra note 5 at 126-127. 97 Id. at 12. 98 Wildenthal supra note 27, at 31. 99 See Cohen, supra note 5, at 93-108. See also Canby, supra note 5, at 33, pointing out that: “In 1983 President Reagan reaffirmed the policy of strengthening tribal governments…[and] repeated Presi- dent Nixon’s repudiation of the termination policy. Statement on Indian Policy, 19 Weekly Comp. Pres. Doc. 98 (Jan. 24, 1983).” Presi- dent George H.W. Bush issued a proclamation on March 2, 1992, “Proclamation 6407 of March 2, 1992”, 57 Fed. Reg. 7873 (March 4, 1992), proclaiming 1992 as the “Year of the American Indian,” affirming “the right of Indian tribes to exist as sovereign entities… [and] express[ed] our support for trial self-determination.” Id. at 7873. In 1994, President Clinton issued a Presidential Memorandum to all heads of executive departments and agencies, recognizing the sovereignty of tribal governments, directing that each department and agency operate “within a government-to-government relation- ship with federally recognized tribal governments,” and requiring all federal agencies to consult with tribal councils before developing federal regulations affecting Indian reservations. Government-to- Government Relations with Native American Tribal Governments, 59 Fed. Reg. 22, 951 (May 4, 1994). This was further endorsed by President Clinton in 2000, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 65 Fed. Reg. 67,249 (Nov. 6, 2000), President George W. Bush in 2004, Executive Order 13336 of April 30, 2004, American Indian and Alaska Native Education, 69 Fed. Reg. 25,293 (May5, 2000), and President Obama in 2009, Tribal Consultation Memorandum of November 5, 2009, 74 Fed. Reg. 57,879 (Nov. 9, 2009). 100 Pub. L. No. 92-318, 86 Stat. 235-334 (1972). 101 American Indian Policy, supra note 91, at 253. 102 Pub. L. No. 93-262, 88 Stat. 77 (codified at 25 U.S.C. §§ 1451 -1543 (2018). of termination without Indian consent, which was decidedly lacking.”87 Wildenthal observes that the historical timing of the U.S. Supreme Court’s unanimous decision in Williams v. Lee88 was also a significant factor and “a key turning point in the return to a policy of self-determination and greater respect for tribal sovereignty.”89 The issue in Williams was whether the Arizona State courts had jurisdiction over a suit brought by Lee, a non-Indian store merchant on the Navajo Reservation, to col- lect for goods sold on credit to Williams, a Navajo Indian. Wil- liams motioned to dismiss on the grounds that jurisdiction lay in the tribal court rather than state court. His motion was de- nied. The Supreme Court, however, held that the motion should have been granted, concluding the following: There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reser- vation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indi- an…. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868 and has done so ever since. If this power is to be taken away from them, it is for Con- gress to do it.90 By 1958, Indians were becoming active voters, causing con- gressional candidates to become more cautious about suggest- ing a break in “the traditional federal-Indian relationship,” and that the “[t]ermination policy simply evaporated in the early 1960s because not enough advocates could be found in Con- gress to make it an important issue.”91 In 1968, building on social welfare programs benefiting impoverished Indians, President Johnson, in a message to Congress, described Indians as the “forgotten” Americans, declaring: “We must affirm the rights of the first Americans to remain Indians while exercising their rights as Americans. We must affirm their rights to freedom of choice and self- determination.”92 The same year Congress passed the Indian Civil Rights Act of 1968 (ICRA),93 imposing upon the tribes most of the Bill of Rights, including protection of free speech, free exercise of religion, and due process and equal protec- tion of the laws. Another provision of ICRA amended Public Law 280 to require tribal consent for states to assume civil and criminal jurisdiction over Indian country.94 In addition, 87 Wildenthal, supra note 27, at 31. 88 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959). 89 Wildenthal, supra note 27, at 86. 90 Williams, 358 U.S. at 223,79 S. Ct. at 272, 3 L. Ed. 2d at 255., citing Lone Wolf v. Hitchcock, 187 U.S. 553, 564-566, 23 S. Ct. 216, 221, 47 L. Ed. 299, 306 (1903). 91 American Indian Policy in The Twentieth Century (Vine Deloria, Jr., ed., 1985); Vine Deloria, Jr., The Evolution Of Fed- eral Indian Policy Making 251 (hereinafter American Indian Policy). 92 Pevar, supra note 5, at 12 n.65 citing, 4 Gov’t Printing Office, Presidential Documents, Weekly Compilation Of, no. 10 (1968). 93 Pub. L. No. 90- 284, 82 Stat. 77 (codified at 25 U.S.C. § 1301 -1341(2018)). 94 25 U.S.C. §§ 1321-22, 1326 (2018).

10 NCHRP LRD 76 affected Indian tribe if the archaeological investigations proposed would result in harm to, or destruction of, any location consid- ered by the tribe to have religious or cultural importance. This Act directs consideration of the American Indian Religious Freedom Act (AIRFA)107 in the promulgation of uniform regulations. • AIRFA resulted from a joint resolution to establish a policy to remedy and alleviate the suppression of the practice of Indian religions, though it provided no enforcement remedy. Section 1 of the Act states as follows: [H]enceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to be- lieve, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not lim- ited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonies and traditional rites. Federal agencies are directed to evaluate their policies and procedures to determine if changes are needed to ensure that such rights and freedoms are not disrupted by agency practices. The Court of Appeals for the D.C. Circuit deter- mined that there is a compliance element in this Act in the context of the National Environmental Policy Act of 1969 (NEPA)108 requiring that the views of Indian leaders be ob- tained and considered when a proposed land use might con- flict with traditional Indian religious beliefs or practices, and that unnecessary interference with Indian religious practices be avoided during project implementation on public lands, although conflict does not bar adoption of proposed land uses where they are in the public interest.109 A more detailed discussion of AIRFA is at section K.2.c of this digest entitled “Environmental and Related Issues.” • The Indian Gaming Regulatory Act of 1988 (IGRA)110 re- quires states that do not totally prohibit gambling (meeting cer- tain criteria) to negotiate compacts with Indian tribes that want to establish gambling operations.111 Congress enacted IGRA 107 Pub. L. No. 95-341; 92 Stat. 469 (1978) (codified at 42 U.S.C. § 1996-1996b). 108 Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C.§§4321-4370m-12) 109 Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983). 110 Pub. L. No. 100–497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701–2721 (2018)). 111 See generally, Jason Kalish, Do the States Have an Ace in the Hole or Should the Indians Call Their Bluff? Tribes Caught in the Power Struggle Between the Federal Government and the States, 38 Ariz. L. Rev. 1345 (1996); Anthony J. Marks, A House of Cards: Has the Federal Government Succeeded in Regulating Indian Gaming? 17 Loy. L.A. Ent. L. J. 157 (1996); Jason D. Kolkema, Federal Policy of Indian Gaming on Newly Acquired Lands and the Threat to State Sovereignty: Retaining Guberna- torial Authority Over the Federal Approval of Gaming on Off- Reservation Sites, 73 U. Det. Mercy L. Rev. 361 (1996); Michael D. Cox, The Indian Gaming Regulatory Act: An Overview, 7 St. Thomas L. Rev. 769 (1995); Jeffrey B. Mallory, Congress’ Author- ity to Abrogate a State’s Eleventh Amendment Immunity from Suit: Will Seminole Tribe v. Florida be Seminal?, 7 St. Thomas L. Rev. 791 (1995); Leah L. Lorber, State Rights, Tribal Sover- eignty, and the “White Man’s Firewater”: State Prohibition of Gambling on New Indian Lands, 69 Ind. L. J. 255 (1993). Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA),103 The ISDEAA along with other legislation important to Indian transportation law are as follows: • The ISDEAA directs the Secretary of the Interior and the Secretary of Health and Human Services, upon request of a tribe, to contract with tribal organizations for specified programs ad- ministered by their departments for the benefit of Indians, in- cluding construction programs.104 Relative to subcontracting, 25 U.S.C. § 5307(b) requires all federal agencies, to the greatest extent feasible, to give preference in the award of subcontracts to Indian organizations and Indian-owned economic enterprises in any contracts with Indian organizations or for the benefit of Indians.105 In connection with employment, 25 U.S.C. § 5407(b)(1) re- quires all federal agencies —to the greatest extent feasible—to give preference in opportunities for training and employment to Indians in any contracts with Indian organizations or for the benefit of Indians. The Act’s provisions for Indian prefer- ence in contracting and subcontracting has caused much con- fusion relative to the Federal-Aid Highway Program. This is due, in part, to the fact that Indian tribal officials believed its provisions to apply to all federal highway construction funds, including the grant-in-aid to the states for highway construc- tion. The confusion is understandable given the fact that certain earmarked funds from the Highway Trust Fund administered by the Secretary of the Interior are subject to the ISDEAA, i.e., Indian reservation road funds administered under 23 U.S.C. § 204. However, no contracting preference for Indian-owned firms is either authorized or mandated under the Federal-Aid Highway Program. • The Archaeological Resources Protection Act of 1979 (ARPA)106 provides for the protection and management of ar- chaeological resources, and specifically requires notification of the 103 Pub. L. No. 93-638 (Jan. 7, 1975), 88 Stat. 2205, 25 U.S.C. §§ 5301 - 5423. (formerly, 25 U.S.C. §§ 450e et seq.). 104 25 U.S.C. § 5321(a); formerly, 25 U.S.C. § 450f(a). 105 See Alaska Chapter, Associated General Contractors v. Pierce, 694 F.2d 1162 (9th Cir. 1982), holding that the Indian Self-Determi- nation Act, § 7(b), 25 U.S.C.S. § 450e(b), did not violate the Due Pro- cess Clause of the U.S. Constitution and upholding the preference for Indian-owned construction companies in HUD regulations; See also, St. Paul Intertribal Housing Bd. v. Reynolds, 564 F. Supp. 1408 (D. Minn. 1983), upholding HUD program giving contracting pref- erence to Indian-owned businesses in HUD-financed Indian hous- ing programs; See also, Hoopa Valley Indian Tribe v. United States, 415 F.3d 986 (9th Cir. July 2005), where the court of appeals affirmed both the administrative and district court decision that certain activi- ties under the Trinity River Mainstream Restoration Program were not subject to ISDEAA because they were designed to benefit the public as a whole rather than “Indians because of their status as Indians.” Id. at 992. This case offers an excellent discussion on con- tracting preferences pursuant to both Title I and Title IV of ISDEAA. The case further distinguishes programs that are specifically targeted to Indians in contrast to programs that collaterally benefit Indians as part of the broader population. 106 Pub. L. No. 96-95, 93 Stat. 721 (1979) (codified at 16 U.S.C. § 470aa-470mm (2018)). The federal regulations interpreting ARPA are at 43 C.F.R. § 7.

NCHRP LRD 76 11 [T]he Secretary, after consultation with the Indian tribe and appro- priate State and local officials, including officials of other nearby Indi- an tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its mem- bers, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary’s determination. • The Native American Graves Protection and Repatria- tion Act (NAGPRA)119 applies to the human remains of Na- tive American peoples, to funerary objects, and to sacred and cultural patrimony objects. It also governs the intentional ex- cavation or removal of Native American human remains and objects from federal or tribal lands. NAGPRA prohibits excava- tion or removal unless authorized by permit under the ARPA.120 NAGPRA’s site protection measures only apply to remains and objects located on tribal, Native Hawaiian, or federal lands. The Act also governs the inadvertent discovery of Native American cultural items on federal or tribal lands.121 This Act is discussed in more detail at section K.2.c. of this digest entitled “Laws Ad- dressing Cultural and Religious Concerns.” 3. Historical Background—Indian Law a. Chief Justice Marshall’s Indian Trilogy: Federal Plenary Power Three opinions by Chief Justice John Marshall, known as the Marshall Trilogy, established the foundational principles of American Indian law. The primary principle established by the Marshall Trilogy is federal plenary power in Indian affairs. In the first case, Johnson v. McIntosh,122 the Court held that Indi- ans had only a right of possession to land, with legal title and the power to transfer ownership resting only in the federal gov- ernment. In the second case, Cherokee Nation v. Georgia,123 the Court clarified the status of Indian tribes within the legal frame- work of the United States as being neither states nor foreign na- tions, but “domestic dependent nations…in a state of pupilage.” In the third case, Worcester v. Georgia,124 the Court concluded that the states have no power in Indian territory and that the In- dian nations are distinct political communities, having territo- rial boundaries within which their authority is exclusive, subject to federal plenary power. • Johnson v. McIntosh was the first Supreme Court decision determining ownership of land occupied by Indians and the power of Indians to convey such land. The plaintiffs claimed the land under 1773 and 1775 grants by chiefs of the Illinois and the Piankeshaw Indian Nations. The grants purported to convey the soil as well as the right of dominion to the grantee- 119 101 Pub. L. No. 601, 104 Stat. 3048 (1990) (Codified at 25 U.S.C §§ 3001–3013, 18 U.S.C. § 1170). 120 16 U.S.C. §§ 470aa–470mm 121 San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 887–88 (2003). 122 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681 (1823). 123 30 U.S. 1, 8 L. Ed. 25 (1831). 124 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832). in response to the U.S. Supreme Court decision in California v. Cabazon Band of Mission Indians,112 where the Court held that neither the state nor the county had authority to enforce its gambling laws within the reservations of the Cabazon and Mo- rongo Bands of Mission Indians in Riverside County, Califor- nia. In Cabazon, the Court followed the rule in Bryan v. Itasca County113 that even in Public Law 280 states, state law may be applicable when it is prohibitory and inapplicable when it is reg- ulatory. Both tribes, through ordinances approved by the fed- eral government, conducted on-reservation bingo games. The Cabazon Band also operated a card club for draw poker and other card games. The games were open to the general public and predominantly played by non-Indians coming onto the res- ervations. In a 7-2 opinion, Justice White reasoned that Public Law 280 did not authorize state regulation because the state law at issue was not criminal/prohibitory (noting in footnote 11 that “it is doubtful that Pub. L. 280 authorizes application of any lo- cal laws to Indian reservations”). The Court rejected California’s contention that the tribes were “marketing an exemption” from state law (a practice condemned by the Court in Washington v. Confederated Tribes of the Colville Indian Reservation114), stating: [The] decision in this case turns on whether state authority is pre- empted by the operation of federal law; and “[s]tate jurisdiction is preempted…if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify assertion of state authority.” Mescalero, 462 U.S. at 333, 334. The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-govern- ment, including its “overriding goal” of encouraging tribal self-suffi- ciency and economic development. Id. at 334–335.115 While noting that the State’s concern that organized crime would be attracted to the high stakes games, the court noted this factor as “a legitimate concern…we are unconvinced that it is sufficient to escape the preemptive force of federal and tribal interests apparent in this case” and “the prevailing federal policy continues to support these tribal enterprises….”116 Congress enacted IGRA to provide a statutory basis for the operation of gaming by Indian tribes as a “means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”117 The Act requires Indian tribes to appropriate the profits from gaming activities for specified purposes includ- ing to fund tribal government operations or programs and to promote economic development.118 One section of IGRA, deal- ing with newly acquired trust lands, has particular relevance to states. Section 2719(a) prohibits gaming on lands acquired in trust for Indian tribes after October 17, 1988. However, it pro- vides for a waiver of this provision in Section 2719(b)(1)(A), where: 112 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987). 113 426 U.S. 373, 96 S. Ct. 2102, 48 L. Ed. 710 (1976). 114 447 U.S. 134, 155, 100 S. Ct. 2069, 2082, 65 L. ed. 2d 10, 30 (1980) 115 Cabazon, 480 U.S. at 216, 107 S. Ct. at 1092, 94 L. Ed. 2d at 260. 116 Id. at 221, 107 S. Ct. at 1094, 94 L. Ed. 2d at 263. 117 25 U.S.C. §2702(1). 118 25 U.S.C. § 2710(b)(2)(B).

12 NCHRP LRD 76 • Worcester v. Georgia is considered the more important of the Cherokee cases; it establishes the foundation for federal ju- risdiction over Indian affairs. The case was heard on a writ of error issued to certain Georgia judges to review the conviction of Worcester and others for the offense of “residing within the limits of the Cherokee nation without a license and without hav- ing taken the oath to support and defend the constitution and laws of the state of Georgia.”132 Chief Justice Marshall identified the issue as “whether the act of the legislature of Georgia, un- der which the plaintiff [Worcester] in error has been prosecuted and condemned, be consistent with, or repugnant to, the con- stitution, laws and treaties of the United States.”133 The opinion reviews the history of Indian affairs under the English Crown, finding “no example…of any attempt on the part of the crown to interfere with the internal affairs of the Indians.”134 It goes on to review practices under the Continental Congress, finding that it followed the Crown’s model in its Indian treaties. Chief Justice Marshall then reviews in detail the 1785 Treaty of Hopewell and the 1791 Treaty of Holston between the United States and the Cherokee Nation. His opinion concludes: The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States; and pro- vide that all intercourse with them shall be carried on exclusively by the government of the Union. * * *135 The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in con- formity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States. The act of the State of Georgia under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity….136 b. Enduring Principles of Chief Justice Marshall’s Indian Trilogy Beyond establishing federal plenary power in Indian affairs, the Marshall Trilogy also established the following enduring principles:137 1. Indian tribes, because of their original political/territorial status, retain incidents of preexisting sovereignty; 2. This sovereignty may be diminished or dissolved by the United States, but not by the states; 3. Because of this limited sovereignty and tribes’ dependence on the United States, the government has a trust responsibility relative to In- dians and their lands. 132 Worcester, 31 U.S. at 537, 8 L. Ed. at 492. 133 Id. at 541, 8 L. Ed. at 494. 134 Id. at 547, 8 L. Ed. at 496. 135 Id. at 551, 8 L. Ed. at 500. 136 Id. at 561, 8 L. Ed. at 501. 137 Deskbook, supra note 15, at 8. plaintiffs. The defendant claimed ownership under a grant from the United States. The court held that the Indian conveyances were invalid. In the opinion, Chief Justice Marshall reasoned that the United States government became owner of lands under the European doctrine of discovery and conquest: The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave 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 exercise125…. So, too, with respect to the concomitant principle, that Indian inhabitants are to be considered merely as occupants, to be protected. . .in the possession of their lands, but to be deemed in- capable of transferring the absolute title to others126…. [t]heir right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of pos- session, and to the exclusive power of acquiring that right….127 • Cherokee Nation v. Georgia resulted from an original bill brought in the U.S. Supreme Court by the Cherokee Nation seeking an injunction to restrain the State of Georgia from executing certain state laws, which it asserted “go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.”128 The Cherokee Nation proceeded as a foreign state against the State of Georgia un- der Article III, Section 2, of the Constitution, which gives the court jurisdiction in controversies between a state of the United States and a foreign state. Chief Justice Marshall de- livered the pathmarking opinion for the majority, concluding that The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts…129[but] the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the Constitution and cannot main- tain an action in the courts of the United States.”130 As to the legal status of Indian tribes, Chief Justice Marshall penned the following language, which formed the basis for the principle that the federal government has a “trust responsibility” to tribes: Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our govern- ment, yet it may be doubted whether those tribes…can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations…. Meanwhile they are in a state of pupilage. Their relation to the United States re- sembles that of a ward to his guardian.131 125 Id. at 587, 5 L. Ed. at 692. 126 Id. at 591, 5 L. Ed. at 693. 127 Id. at 603, 5 L. Ed. at 696. 128 Cherokee Nation, 30 U.S. (5 Pet.) at 15, 8 L. Ed. at 30. 129 Id. at 16, 8 L. Ed. at 30. 130 Id. at 20, 8 L. Ed. at 31. 131 Id. at 17., 8 L. Ed. 31.

NCHRP LRD 76 13 the courts, by interpreting ambiguous statutes in favor of Indians, attribute to Congress an intent to exercise its ple- nary power in the manner most consistent with trust obli- gations.146 This trust relationship is now one of the significant features of Indian law, and it plays a major role in the procedures estab- lished for the acquisition of Indian lands147 and in state police power regulation of Indian lands, as will be discussed later. The strength of the trust relationship is demonstrated by the deci- sion in United States v. Mitchell,148 where the Court held the United States subject to suit for money damages for violation of fiduciary duties in its management of forested allotted lands.149 d. Canons of Construction150 There are canons of construction specific to Indian law. Citing Choctaw Nation v. United States,151 Supreme Court Justice Powell observed in a 1985 decision that “[T]he can- ons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians.”152 Treaties are federal law153 and “it is well es- tablished that treaties should be construed liberally in favor of Indians […].”154 In Choctaw, it was the opinion of the Court that courts, may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties…. 146 Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 660 (1975), citing Squire v. Capoeman, 351 U.S. 1, 7-8, 76 S. Ct. 611, 100 L. Ed. 883 (1956). 147 Cohen, supra note 5, 412-416. 148 463 U.S. 206, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983). 149 Writing for the majority, Justice Thurgood Marshall stated: Because the statutes and regulations at issue in this case clearly establish fiduciary obligations of the Government in the management and operation of Indian lands and resources, they can fairly be interpreted as mandating compensation by the Federal Government for damages sustained. Given the existence of a trust relationship, it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties…. This Court and several other federal courts have consistently recognized that the existence of a trust relationship between the United States and an Indian or Indian tribe includes as a fundamental incident the right of an injured beneficiary to sue the trustee for damages result- ing from a breach of trust [citations omitted]. Id.at 226, 103 S. Ct. at 2972-2973, 77 L. Ed.2d at 597. 150 See generally, Deskbook, supra note 15, at 40-51; Canby, supra note 5, at 122-130; Prucha, supra note 38, at 386–87. 151 318 U.S. 423, 431–432, 63 S. Ct. 672, 87 L. Ed. 877 (1943). 152 County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S. Ct. 1245, 1258, 84 L. Ed. 2d 169, 187 (1985). 153 Litigation based on treaty-rights can arise in ways that may be not be expected by states. Take for example United States v. Washing- ton, 853 F.3d 946 (2017), in which an equally divided Supreme Court in a per curiam order affirmed the lower court’s ruling directing the State to correct culverts that violated a treaty with the tribes which provided for a “a sufficient quantity of fish to satisfy their moderate living needs.” 2018 U.S. LEXIS 3501, June 11, 2018. 154 Oneida, 470 U.S. at 247, 105 S. Ct. at 1258, 84 L. Ed. 2d at 187. c. Federal Trust Responsibility The federal government entered into more than 600 treaties with Indian tribes between 1787 and 1871 when Congress end- ed treaty making. 138 Many of these treaties explicitly provided for territorial protection by the United States and numerous treaties declared the tribes’ status to be that of a dependent na- tion.139 During the period of “extinguishment” of aboriginal title and establishment of reservations, the concept of a federal trust responsibility to Indians evolved judicially.140 It first appeared in Cherokee Nation v. Georgia,141 where Chief Justice Marshall concluded that Indian tribes “may, more correctly, perhaps, be denominated domestic dependent nations…in a state of pupil- age…[with t]heir relation to the United States resembl[ing] that of a ward to his guardian.”142 In applying these enduring principles in the intervening years, the Court has continually emphasized “the distinctive ob- ligation of trust incumbent upon the Government in its dealing with these dependent and sometime exploited people.”143 The Court in Seminole Nation v. United States went on to describe this trust obligation: In carrying out its treaty obligations with Indian tribes, the Govern- ment is something more than a mere contracting party. Under a hu- mane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.144 In 1977, the American Indian Policy Commissions issued a final report to the U.S. Congress that expressed the modern view of this trust relationship: The purpose behind the trust doctrine is and always has been to ensure the survival and welfare of Indian tribes and people. This includes an obligation to provide those services required to protect and enhance Indian lands, resources, and self-government, and also includes those economic and social programs which are necessary to raise the standard of living and social well-being of the Indian people to a level comparable to the non-Indian society.145 Thus, the federal government has long been recognized as holding, along with its plenary power to regulate Indian affairs, a trust status towards Indians—a status accompanied by fiduciary obligations. While there is nothing to prevent Congress from attempting to disregard its trust obligations, 138 The Appropriations Act of March 3, 1871, ch. 120, § 1, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71). The federal government contin- ued to deal with Indian tribes after 1871 by agreements, statutes, and executive orders that had legal ramifications similar to treaties. 139 Cohen, supra note 5, at 26, n.25. 140 See generally, Id. at 220–21. 141 30 U.S. 1, 8 L. Ed. 25 (1831). 142 Id. at 17, 8 L. Ed. at 31. 143 Seminole Nation v. United States, 316 U.S. 286, 296, 62 S. Ct. 1049, 1054, 86 L. Ed. 1480, 1490 (1942). 144 Id. at 296–97. 62 S. Ct. at 1054, 86 L. Ed. at 1490. 145 American Indian Policy Review Commission, Final Report, at 130 (May 17, 1977).