Research Reports
Reflections on Traditional American Indian Ways, 1998
Threats to Tribal Sovereignty, 1998
Traditional American Indian Leadership: A Comparison with U.S. Governance, 1997
Contemporary Threats to Tribal Sovereignty From the Courts
A pervasive condition of ignorance about Indian law exists in the U.S. court system. Lower courts in particular are often unfriendly to Indian tribes and remit decisions inconsistent with Supreme Court precedence. Lawyers and judges still lack education or training on the basics of Indian law. Indian law is not required in most law schools and often those making decisions on these matters have little or no background in the area. This places Indian tribes in the constant position of having to appeal decisions made by the lower courts. The appeal process takes a significant amount of time, energy and resources, which Indian tribes often do not have. Moreover, pursuing appeals does not guarantee a decision that will be more favorable to Indians, and so it is not only a costly process, but a risky one as well. Since 1991, the U.S. Supreme Court has decided on 13 Indian law cases, 5 of which were favorable to Indians. These recent court decisions show a trend of unfavorable decisions toward Indians. Endreson indicates:
In the 1980's (including 1990) the U.S. Supreme Court decided 47 Indian law cases, of which 20 were generally favorable to Indians. In contrast, in the 1970's and 1960's, a majority of the decisions were favorable to Indians...In the 1970's, 35 decisions were handed down, 20 were favorable to Indians. In the 1960's, 13 decisions were issued, 9 were favorable to Indians (Endreson 1997, 1).
One important case recently reviewed by the Supreme Court related to land in trust. This case began with the Lower Brule Sioux Tribe of South Dakota wanting to buy 91 acres of land and to put it in trust status. The town of Oacoma which is adjacent to Lower Brule Sioux Reservation, feared a loss of tax revenue and the state of South Dakota sued the U.S. Department of Interior for allowing the land transfer. The Eighth District Court ruling in Department of the Interior v. South Dakota (1996) halted the Department of the Interior process and declared the process unconstitutional as stipulated under the Indian Reorganization Act (1934). Forty tribes and the U.S. Department of Justice appealed the case to the Supreme Court. The high court vacated and remanded the case back to the lower district court. This action threatens decision-making by sovereign tribes to acquire trust land.
Recent Court Cases
Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of
Oklahoma, 498 U.S. 404 (1991).
The Court ruled that the State Tax Commission could not sue the tribes
to collect cigarette sales taxes from sales to non-Indians. The Court
also rejected the state's attempt to distinguish trust land from reservation
land. The Court also rejected the effort of the state to exclude business
ventures from internal affairs and tribal courts which are secure under
tribal immunity.
Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991).
The Court ruled that sovereign immunity applies to sovereigns and individuals,
but that states did not consent to suits by the tribes in the making of
the Constitution. The ruling states that states can sue each other, but
tribes lack this mutuality.
County of Yakima v. Yakima Nation, 502 U.S. 251 (1992).
The Court ruled that according to the General Allotment Act, states are
authorized to impose property taxes on fee land owned by Indians within
reservations. The court also ruled that the states cannot impose excise
taxes on Indians who sell fee land. This reaffirms that states cannot
tax Indian people and their activities on Indian land.
South Dakota v. Bourland, 508 U.S. 679 (1993).
The Court eliminated the tribe's power to exclude nonmembers from lands
taken for the Oahe Dam and Reservoir project. The court also eliminated
the tribe's power to exercise regulatory jurisdiction over non-Indians
on the same lands.
Negonsott v. Samuels, 507 U.S. 49 (1993).
The Court ruled that Kansas had the right to prosecute an Indian for a
state offense that fell under the Indian Major Crimes Act. Under this
act, the state can define and enforce such criminal laws.
Lincoln v. Vigil, 508 U.S. 182 (1993).
The Court upheld the termination of the Indian Children's Program on the
basis that the funding came from a lump sum appropriation. The lump sum
appropriation, it ruled, is not reviewable because the sum comes from
agency which by law reserves discretion. The tribe asserted that this
termination violated the trust responsibility.
Hagen v. Utah, 510 U.S. 399 (1994).
The Court ruled that the Uintah Valley Reservation had been diminished
by a 1902 act. A clear statement with explicit language of cession or
surrender of tribal, and compensation for lost lands was sought. This
reservation was diminished by Congress when it opened the reservation
to non-Indians.
Department of Taxation and Finance of New York v. Milhelm Attea &
Bros., Inc., 512 U.S. 61 (1994).
The Court ruled in favor of the state's regulations that cigarette taxes
be collected before they are sold to non-Indians. The wholesaler is responsible
for collecting and paying the tax.
Oklahoma Tax Commission v. Chickasaw Nation, 115 S.Ct., 2214, 515
U.S. (1995).
The Court rejected the tribe's assertion that all tribal members, whether
they fell under tribal jurisdiction or not, are immune from state taxation.
Further, members who work for the tribe but live outside of the reservation
are subject to state taxation. This decision passed by a narrow 5-4 margin.
Seminole Tribe of Florida v. Florida, 116 S.Ct., 1114, 517 U.S. (1996).
The Court ruled that states are immune from suits brought forward by tribes
under the Indian Gaming Regulatory Act. The Court ruled that states and
state officials are protected from such suits by the Eleventh Amendment.
The Court ruled 5-4 and was greatly divided. The tribes argued that Congress
authorized such suits in passing IGRA. The Court ruled that Congress does
not have the power to subject states to lawsuits. The tribes argued that
they can sue the states in federal court to bring them in accordance with
federal law. The Court ruled that IGRA contains specific language as to
how disputes between tribes and state are to be resolved, resolution processes
that do not include federal lawsuits.
Department of the Interior v. South Dakota, 117 S.Ct., 286, U.S.
(1996).
The Court decided to send the case back to the 8th Circuit Court of Appeals
without addressing its merit. The lower court had ruled that it is an
unconstitutional delegation of legislative power that the Secretary of
the Interior takes lands into trust for tribes. Better known as the Oacoma
case where the city of Oacoma challenged the Secretary's decision to acquire
land for the Lower Brule Sioux Tribe.
Babbitt v. Youpee, 117 S.Ct. 727, U.S. (1997).
The Court struck down a tribal provision to deal with fractionated allotments
of property reverting to heirs. The tribe was trying to avoid increasing
divided heirship to land and to consolidate tribal lands.
There has been a significant rise in attempts by states and other jurisdictions to legally challenge treaties, particularly in the areas of taxation, sovereign immunity and jurisdiction. Courts do not initiate these actions; however, they are responsible for resolving issues and establishing the terms to which both parties must abide. Therefore courts pose a threat to sovereignty by their interpretation of the law.
The
Well-Being of American Indian Children in Minnesota: Economic Conditions,
1994
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