Native American Rights
NATIVE AMERICAN RIGHTS
In the United States, persons of Native American descent occupy a unique legal position. On the one hand, they are U.S. citizens and are entitled to the same legal rights and protections under the Constitution that all other U.S. citizens enjoy. On the other hand, they are members of self-governing tribes whose existence far predates the arrival of Europeans on American shores. They are the descendants of peoples who had their own inherent rights—rights that required no validation or legitimation from the newcomers who found their way onto their soil.
These combined, and in many ways conflicting, legal positions have resulted in a complex relationship between Native American tribes and the federal government. Although the historic events and specific details of each tribe's situation vary considerably, the legal rights and status maintained by Native Americans are the result of their shared history of wrestling with the U.S. government over such issues as tribal sovereignty, shifting government policies, treaties that were made and often broken, and conflicting latter-day interpretations of those treaties. The result today is that although Native Americans enjoy the same legal rights as every other U.S. citizen, they also retain unique rights in such areas as hunting and fishing, water use, and gaming operations. In general, these rights are based on the legal foundations of tribal sovereignty, treaty provisions, and the "reserved rights" doctrine, which holds that Native Americans retain all rights not explicitly abrogated in treaties or other legislation.
Tribal sovereignty refers to the fact that each tribe has the inherent right to govern itself. Before Europeans came to North America, Native American tribes conducted their own affairs and needed no outside source to legitimate their powers or actions. When the various European powers did arrive, however, they claimed dominion over the lands that they found, thus violating the sovereignty of the tribes who already were living there.
The issue of the extent and limits of tribal sovereignty came before the U.S. Supreme Court in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681 (1823). Writing for the majority, Chief Justice john marshall described the effects of European incursion on native tribes, writing that although the Indians were " admitted to be the rightful occupants of the soil … their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." The European nations that had "discovered" North America, Marshall ruled, had "the sole right of acquiring the soil from the natives."
Having acknowledged this limitation to tribal sovereignty in Johnson, however, Marshall's opinions in subsequent cases reinforced the principle of tribal sovereignty. In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), Marshall elaborated on the legal status of the Cherokees, describing the tribe as a "distinct political society that was separated from others, capable of managing its own affairs, and governing itself." In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832), Marshall returned to the issue, this time in an opinion denying the state of Georgia's right to impose its laws on a Cherokee reservation within the state's borders. He rejected the state's argument, writing "The Cherokee nation … is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force." Reviewing the history of relations between native tribes and the colonizing European powers, Marshall cited the Indians '"original natural rights," which he said were limited only by "the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed."
The cumulative effect of Marshall's opinions was to position Native American tribes as nations whose independence had been limited in just two specific areas: the right to transfer land and the right to deal with foreign powers. In regard to their own internal functions, the tribes were considered to be sovereign and to be free from state intrusion on that sovereignty. This position formulated by Marshall has been modified over the years, but it continues to serve as the foundation for determining the extents and limits of Native American tribal sovereignty. Although Congress has the ultimate power to limit or abolish tribal governments, until it does so each tribe retains the right to self-government, and no state may impose its laws on the reservation. This position was reiterated in a 1978 U.S. Supreme Court case, United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303, in which Justice potter stewart concluded 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."
The ways that individual tribes exercise their sovereignty vary widely, but, in general, tribal authority is used in the following areas: to form tribal governments; to determine tribal membership; to regulate individual property; to levy and collect taxes; to maintain law and order; to exclude non-members from tribal territory; to regulate domestic relations; and to regulate commerce and trade.
From the time Europeans first arrived in North America, they needed goods and services from Native Americans in order to survive. Often, the terms of such exchanges were codified in treaties, which are contracts between sovereign nations. After the American Revolution, the federal government used treaties as its principal method for acquiring land from the Indians. From the first treaty with the Delawares in 1787 to the end of treaty making in 1871, the federal government signed more than 650 treaties with various Native American tribes. Although specific treaty elements varied, treaties commonly included such provisions as a guarantee of peace; a cession of certain delineated lands; a promise by the United States to create a reservation for the Indians under federal protection; a guarantee of Indian hunting and fishing rights; and a statement that the tribe recognized the authority or placed itself under the protection of the United States. Treaty making ended in 1871, when Congress passed a rider to an Indian appropriations act providing, " No Indian nation or tribe … shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty …" (25 U.S.C.A. § 71). This rider was passed largely in response to the House of Representatives' frustration that it was excluded from Indian affairs because the constitutional power to make treaties rests exclusively with the Senate. Since 1871, the federal government has regulated Native American affairs through legislation, which does not require the consent of the Indians involved, as treaties do.
Indian treaties may seem like historical documents, but the courts have consistently ruled that they retain the same legal force that they had when they were negotiated. Despite frequent challenges and intense opposition, courts have upheld guaranteed specific tribal rights, such as hunting and fishing rights. Often, disputes over treaty rights arise from conflicting interpretations of the specific language of treaty provisions. In general, there are three basic principles for interpreting treaty language. First, uncertainties in Indian treaties should be resolved in favor of the Indians. Second, Indian treaties should be interpreted as the Indians signing the treaty would have understood them. Third, Indian treaties are to be liberally construed in favor of the Indians involved. Courts have consistently upheld these principles of treaty interpretation, which clearly favor the Indians, on the basis that Indian tribes were the much weaker party in treaty negotiations, signing documents written in a foreign language and often with little choice. Liberal interpretation rules are designed to address the great inequality of the parties' original bargaining positions.
Reserved Rights Doctrine
Another crucial factor in the interpretation of Native American treaties is what is known as the reserved rights doctrine, which holds that any rights that are not specifically addressed in a treaty are reserved to the tribe. In other words, treaties outline the specific rights that the tribes gave up, not those that they retained. The courts have consistently interpreted treaties in this fashion, beginning with United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089 (1905), in which the U.S. Supreme Court ruled that a treaty is "not a grant of rights to the Indians, but a grant of rights from them." Any right not explicitly extinguished by a treaty or a federal statute is considered to be "reserved" to the tribe. Even when a tribe is officially "terminated" by Congress, it retains any and all rights that are not specifically mentioned in the termination statute.
Federal Power over Native American Rights
Although Native Americans have been held to have both inherent rights and rights guaranteed, either explicitly or implicitly, by treaties with the federal government, the government retains the ultimate power and authority to either abrogate or protect Native American rights. This power stems from several legal sources. One is the power that the Constitution gives to Congress to make regulations governing the territory belonging to the United States (Art. IV, Sec. 3, Cl. 2), and another is the president's constitutional power to make treaties (Art. II, Sec. 2, Cl. 2). A more commonly cited source of federal power over Native American affairs is the commerce clause of the U.S. Constitution, which provides that "Congress shall have the Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Art. I, Sec. 8, Cl. 3). This clause has resulted in what is known as Congress's "plenary power" over Indian affairs, which means that Congress has the ultimate right to pass legislation governing Native Americans, even when that legislation conflicts with or abrogates Indian treaties. The most well-known case supporting this congressional right is Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903), in which Congress broke a treaty provision that had guaranteed that no more cessions of land would be made without the consent of three-fourths of the adult males from the Kiowa and Comanche tribes. In justifying this abrogation, Justice edward d. white declared that when "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 governmental policy."
Another source for the federal government's power over Native American affairs is what is called the "trust relationship" between the government and Native American tribes. This "trust relationship" or "trust responsibility" refers to the federal government's consistent promise, in the treaties that it signed, to protect the safety and well-being of the tribal members in return for their willingness to give up their lands. This notion of a trust relationship between Native Americans and the federal government was developed by U.S. Supreme Court Justice John Marshall in the opinions that he wrote for the three cases on tribal sovereignty described above, which became known as the Marshall Trilogy. In the second of these cases, Cherokee Nation v. Georgia, Marshall specifically described the tribes as "domestic dependant nations" whose relation to the United States was like "that of a ward to his guardian." Similarly, in Worcester v. Georgia, Marshall declared that the federal government had entered into a special relationship with the Cherokees through the treaties they had signed, a relationship involving certain moral obligations. "The Cherokees," he wrote, "acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected."
The federal government has often used this trust relationship to justify its actions on behalf of Native American tribes, such as its defense of Indian fishing and hunting rights and the establishment of the Bureau of Indian Affairs. Perhaps more often, however, the federal government has used the claim of a trust relationship to stretch its protective duty toward tribes into an almost unbridled power over them. The United States, for example, is the legal title-holder to most Indian lands, giving it the power to dispose of and manage those lands, as well as to derive income from them. The federal government has also used its powers in ways that seem inconsistent with a moral duty to protect Indian interests, such as terminating dozens of Indian tribes and consistently breaking treaty provisions. Because the trust responsibility is moral rather than legal, Native American tribes have had very little power or ability to enforce the promises and obligations of the federal government.
Several disputes have erupted over the relationship between the federal government and Native Americans. Beginning in 1998, beneficiaries of Individual Indian Money (IIM), which is held in trust by the federal government, brought a class action against the secretary of the interior and others, alleging mismanagement and breach of fiduciary duties against trustee-delegates of the funds. The case has spawned dozens of orders and rulings by the U.S. District Court for the District of Columbia.
In 1999, the district court in Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999), found that the secretary of the interior and others had violated their fiduciary duties and ordered the secretary to file quarterly reports detailing progress in fulfilling these orders. The U.S Court of Appeals for the District of Columbia Circuit affirmed this ruling in Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). Since the appeals court ruling, the district court has considered numerous motions and has issued several orders, including a holding that the secretary of the interior and the secretary of the Treasury were guilty of civil contempt for refusing to comply with a court order to produce certain documents.
Other issues involving the federal government's power over Native Americans have likewise resulted in litigation. The struggle to define the jurisdictional boundaries between Native American tribal courts and state courts has occupied the federal courts for many years. Although Indian reservations are deemed sovereign states, both Congress and the U.S. Supreme Court have placed limitations on their sovereignty. Therefore, as specific issues arise about tribal court jurisdiction, the federal courts must intervene to decide these cases.
Such was the case in Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001), in which the U.S. Supreme Court ruled that tribal courts do not have jurisdiction to hear federal civil rights lawsuits concerning allegedly unconstitutional actions by a state government officer on tribal land. The case arose when the home of a member of the Fallon Paiute-Shoshone Tribes of western Nevada was searched under suspicion that the tribe member had killed a bighorn sheep in violation of Nevada law. The tribe member brought a federal civil rights lawsuit against the game warden who had searched his house. The suit was brought in tribal court, which ruled that it had jurisdiction to hear the claim against the warden.
The district court and the U.S. Court of Appeals for the Ninth Circuit both found that the warden was required to exhaust his remedies in the tribal court before proceeding to federal court. The U.S. Supreme Court, per Justice antonin scalia disagreed, finding that Congress had not extended the jurisdiction of tribal court to hear federal civil rights claims. The case severely limits the scope of tribal jurisdiction.
Hunting and Fishing Rights
Hunting and fishing rights are some of the special rights that Native Americans enjoy as a result of the treaties signed between their tribes and the federal government. Historically, hunting and fishing were critically important to Native American tribes. Fish and wildlife were a primary source of food and trade goods, and tribes based their own seasonal movements on fish migrations. In addition, fish and wildlife played a central role in the spiritual and cultural framework of Native American life. As the Court noted, access to fish and wildlife was "not much less necessary to the existence of the Indians than the atmosphere they breathed" (United States v. Winans, 198 U.S. 371, S. Ct. 662, 49 L. Ed. 2d 1089 ).
When Native American tribes signed treaties consenting to give up their lands, the treaties often explicitly guaranteed hunting and fishing rights. When the treaties created reservations, they usually gave tribe members the right to hunt and fish on reservation lands. In many cases, treaties guaranteed Native Americans the continued freedom to hunt and fish in their traditional hunting and fishing locations, even if those areas were outside the reservations. Even when hunting and fishing rights were not specifically mentioned in treaties, the reserved-rights doctrine holds that tribes retain any rights, including the right to hunt and fish, that are not explicitly abrogated by treaty or statute.
Controversy and protest have surrounded Native American hunting and fishing rights, as state governments and non-Indian hunters and fishers have fought to make Native Americans subject to state hunting and fishing regulations. The rights of tribal members to hunt and fish on their own reservations have rarely been questioned, because states generally lack the power to regulate activities on Indian reservations. Tribes themselves have the right to regulate hunting and fishing on their reservations, whether or not they choose to do so. Protests have arisen, however, over the rights of Native Americans to hunt and fish off of their reservations. Such rights can be acquired in one of two ways. In some instances, Congress has reduced the size of a tribe's reservation, or terminated it completely, without removing the tribe's hunting and fishing rights on that land. In other cases, treaties have specifically guaranteed tribes the right to hunt and fish in locations off the reservations. In the Pacific Northwest, for example, treaty provisions commonly guaranteed the right of tribes to fish "at all usual and accustomed grounds and stations," both on and off their reservations. Tribes in the Great Lakes area also reserved their off-reservation fishing rights in the treaties they signed.
These off-reservation rights have led to intense opposition and protests from non-Indian hunters and fishermen and state wildlife agencies. Non-Indian hunters and fishermen resent the fact that Indians are not subject to the same state regulations and limits imposed on them. State agencies have protested the fact that legitimate conservation goals are compromised when Indians can hunt and fish without having to follow state wildlife regulations. The U.S. Supreme Court, however, has consistently upheld the off-reservation hunting and fishing rights of Native Americans. In the 1905 case United States v. Winans, it ruled that treaty language guaranteeing a tribe the right to "tak[e] fish at all usual and accustomed places" indeed guaranteed access to those usual and accustomed places, even if they were on privately owned land.
The most intense opposition to Native American off-reservation hunting and fishing rights has occurred in the Pacific Northwest, where tribal members have fought to defend their right to fish in their traditional locations, unhindered by state regulations. In a series of cases involving the state of Washington and local Native American tribes, the federal courts ruled on aspects of the extent and limits of tribal fishing rights. In a 1942 case, Tulee v. Washington, 315 U.S. 681, 62 S. Ct. 862, 86 L. Ed. 1115, the Court ruled that tribal members could not be forced to purchase fishing licenses because the treaties that their ancestors had signed already reserved the right to fish in the "usual and accustomed places."
That case was followed by a series of cases involving the Puyallup Indian tribe that became known as Puyallup I, Puyallup II, and Puyallup III. In the first of those cases, the Court ruled that the state of Washington has the right, in the interest of conservation, to regulate tribal fishing activities, as long as "the regulation meets appropriate standards and does not discriminate against the Indians" (Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S. Ct. 1725, 20 L. Ed. 2d 689 ). In the second case, the Court ruled that the state's prohibition on net fishing for steelhead trout was discriminatory because its effect was to reserve the entire harvestable run of steelhead to non-Indian sports fishermen (Department of Game v. Puyallup Tribe, 414 U.S. 44, 94 S. Ct. 330, 38 L. Ed. 2d 254 ). In its ruling, the Court declared that the steelhead "must in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing." Finally, in Puyallup III, the Court ruled that the fish caught by tribal members on their reservation could be counted against the Indian share of the fish (Puyallup Tribe v. Department of Game, 429 U.S. 976, 97 S. Ct. 483, 50 L. Ed. 2d 583 ).
This notion of a fair apportionment of fish was clarified by United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), in which the court determined that treaty language guaranteeing tribes the right to take fish "in common with all citizens of the Territory" guaranteed the Indians not just the right to fish but also the right to a certain percentage of the harvestable run, up to 50 percent. This decision set off a firestorm of controversy throughout the Pacific Northwest. Hundreds of legal disputes erupted over the allocation of individual runs of salmon and steelhead, and state and non-Indian fishing interests attacked the decision. The U.S. Supreme Court ultimately upheld the decision in a collateral case, Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n 443 U.S. 658, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979). In that case, the Court upheld the district court's ruling and went on to clarify the details of the way the fish should be apportioned. Writing for the majority, Justice john paul stevens stated that the treaties guaranteed the tribes "so much as, but no more than, is necessary to provide the Indians with a livelihood—that is to say a moderate living." A "fair apportionment, " he said, would be 50 percent of the fish, emphasizing that 50 percent was the maximum, but not the minimum, amount of fish to which the Indians were entitled.
The Court resolved a decade-old legal dispute in 1999 involving Indian fishing and hunting rights with the decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119 S. Ct. 1187, 143 L. Ed. 2d 270 (1999). It ruled in favor of the Chippewa Indians' right to fish and hunt in northern Minnesota without state regulation. By a 5-4 vote, the Court upheld an appeals court decision finding that the tribe's rights under an 1837 treaty were still valid. The ruling marked a final victory for the tribe in its long fight to assert its treaty rights and to defend its cultural traditions.
Brought by the tribe in 1990, the lawsuit proved highly controversial in Minnesota, which regarded it as a threat to the $54 million in tourism revenue generated by the Mille Lacs Lake resort industry. But two lower federal courts and the U.S. Supreme Court rejected the state's arguments that the 162-year old treaty had been invalidated by presidential order, later treaties, and even by Minnesota's gaining of statehood. The U.S. Supreme Court's majority opinion, written by Justice sandra day o'connor, detailed the history of the treaty and subsequent actions that the state, nine counties, and landowners claimed had rendered the treaty invalid. She found nothing in this historical information that had bearing on the continued validity of the treaty.
Access to water is another area in which Native Americans enjoy special rights. The issue of water rights has been most pertinent in the western part of the United States, where most Indian reservations are located and where water is the scarcest. In the West, rights to water are determined by the "appropriative" system, which holds that water rights are not connected to the land itself. Rather, the right to water belongs to the first user who appropriates it for a beneficial use. That appropriator is guaranteed the right to continue to take water from that source, unhindered by future appropriators, as long as the water continues to be put to a beneficial use. When the appropriator ceases to use the water, he or she loses the right to it. In contrast to this appropriative system, states in the East, where water is plentiful, follow the "riparian" system, which gives the owner of land bordering a body of water the right to the reasonable use of that water. All riparian owners are guaranteed the right to a continued flow of water, whether or not they use it continuously.
Native American water rights combine the features of the appropriative and riparian systems. The legal foundation for Indian water rights is the 1908 U.S. Supreme Court case Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340. That case involved a Montana Indian reservation that had a river as one of its borders. After the reservation was established, non-Indian settlers diverted the river's water, claiming that they had appropriated the water after the reservation was created but before the Indians had begun to use the water themselves. The U.S. Supreme Court ruled against the settlers, finding that when the reservation was created, reserved water rights for the Indians were necessarily implied. It was unreasonable, the Court argued, to assume that Indians would accept lands for farming and grazing purposes without also reserving the water that would make those activities possible.
A second important case involving Native American water rights is Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963). In that case, as in Winters, the U.S. Supreme Court held that the establishment of a reservation necessarily implied the rights to the water necessary to make the land habitable and productive. Arizona went beyond Winters, however, in also ruling on the quantity of water to which the reservation had a right. Although competing water users argued that the amount of water reserved to the reservation should be limited to the amount that was likely to be needed by the relatively small Indian population, the Court ruled that the Indians were entitled to enough water "to irrigate all the practicably irrigable acreage on the reservation," a much more generous allotment.
Based on Winters and Arizona, Native American water rights today are determined by a set of principles called "Winters rights." First, Congress has the right to reserve water for federal lands, including Indian reservations. Second, when Congress establishes a reservation, it is implied that the reservation has the right to water sources within or bordering the reservation. Third, reservation water rights are reserved as of the date of the reservation's creation. Competing users with earlier appropriation dates take precedence, but those with later dates are
subordinate. Fourth, the amount of water reserved for Indian use is the amount necessary to irrigate all of the practically irrigable land on the reservation. Finally, Winters rights to water are not lost through non-use of the water. All of these rights apply to both surface water and groundwater.
Even with the acknowledgement of Native Americans' Winters rights, water use in the West continues to be highly contested, as reservations fight to maintain their rights against the competing demands of state governments and non-Indian users. Several issues are yet to be resolved, such as the precise quantity of water that is needed to irrigate all "practically irrigable acreage" and the question of whether states can regulate non-Indian water users on Indian reservations. Because of the high costs and other difficulties involved in litigation, many tribes and states are choosing to try to negotiate water rights and then ask to Congress or the courts to approve their agreements.
In recent years, gaming has become one of the most important areas of economic development for Native American tribes. Since 1979, when the federal courts ruled that tribal-sponsored gaming activities were exempt from state regulatory law, the Indian gaming industry has grown tremendously, with more than 200 tribes operating gaming establishments. These operations have been extremely lucrative for the tribes running them; in 1993 the gross gambling revenues from class II and class III tribal gaming operations amounted to approximately $2.6 billion. By comparison, Atlantic City had revenues of $3.3 billion the same year. Tribe members benefit from the creation of jobs on the reservation and from the cash generated, which some tribal governments choose to distribute through direct payments to tribe members and others choose to reinvest in improving reservation infrastructure, educational facilities, and other programs and services designed to benefit tribe members.
The impetus for the growth of Native American gaming began in the late 1970s, when the Oneida tribe in Wisconsin and the Seminole tribe in Florida sought to open high-stakes bingo operations on their reservations. The applicable laws in those states imposed limitations on the size of jackpots and the frequency of bingo games. The tribes asserted, however, that as sovereign nations, they were not bound by such limitations; they claimed that they could operate bingo games and regulate them under tribal law, deciding for themselves how large prizes could be and how often games could be played. Both suits ended up in federal court, and both tribes won (Seminole Tribe of Florida v. Butter worth, 658 F. 2d 310 [5th Cir. 1981]; Oneida Tribe of Indians v. Wisconsin, 518 F. Supp. 712 [W.D. Wis. 1981]). The rulings in both cases hinged on whether the states' laws concerning gaming were criminal laws that prohibited gaming, or civil laws that regulated gaming. If the laws were criminal-prohibitory, they could be applied to activities on Indian reservations, but if they were civil-regulatory, they could not. The courts ruled that because the states allowed bingo games in some form, the laws were civil-regulatory and thus did not apply to gaming operations on Indian reservations.
Other tribes subsequently sued in federal court on the same issue and also won. The issue finally reached the U.S. Supreme Court in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987). In that case, the Court accepted the criminal-prohibitory/civil-regulatory distinction of the lower courts, ruling that the Cabazon Band of Mission Indians in California had the right to operate high-stakes bingo and poker games on its reservation because the state's gaming laws were civil-regulatory and thus could not be applied to on-reservation gaming activities.
Concern over Indian gaming had been building in Congress during the 1980s, and Congress responded to California v. Cabazon by passing the Indian Gaming Regulatory Act (IGRA), (25 U.S.C.A. §§ 2701 et seq.) in 1988. The IGRA specifically provides that Indian tribes "have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity." The sponsors of the IGRA claimed that one of the bill's main goals was to use gaming as a means of "promoting tribal economic development, self-sufficiency, and strong tribal governments." Nevertheless, many tribal leaders were opposed to the provisions of IGRA, regarding them as infringements on tribal sovereignty.
The IGRA provides the general framework for regulating Indian gaming. Its principal provision is the classification of Indian gaming, with each category of games being subject to the different regulatory powers of the tribes, the states, and federal agencies, including the National Indian Gaming Commission (NIGC), which was created by the IGRA. The IGRA classifies games into three types. Class I games are traditional Indian games, such as those played in connection with tribal ceremonies or celebrations; those games are regulated exclusively by the tribes. Class II games include bingo and related games; those games are regulated by the tribes, with oversight from the NIGC. Class III games include all games that do not fall into classes I and II, including casino-style games, parimutuel wagering, slots, and dog and horse racing. Class III games, according to the IGRA, may be conducted if three conditions are met: if the state in which the tribe is located permits any such games for any purposes; if the tribe and the state have negotiated a compact that has been approved by the secretary of the interior; and if the tribe has adopted an ordinance that has been approved by the chair of the NIGC.
Indian gaming and the IGRA continue to face opposition from various quarters. Tribal leaders view state regulation as a violation of their tribal sovereignty. The proprietors of non-Indian gaming establishments have attempted to slow or to stop the growth of Indian gaming, viewing it as a threat to their own enterprises. In some cases, tribal and state governments have had great difficulties negotiating the details of tribal-state compacts. These areas of difficulty and dissatisfaction suggest that Indian gaming may be subject to further legislation in the future.
Gaming has led to unprecedented growth for tribal economies, providing thousands of jobs for Indians and non-Indians and drastically improving the financial well-being of the tribes that have operated successful gaming establishments. Although some legislators have expressed concern over the expansion of gaming activities and the problems associated with increased gambling, Indian gaming generally enjoys broad public support. Native Americans have described it as "the return of the white buffalo," a traditional Native American symbol of good fortune.
The U.S. Supreme Court has stepped in to resolve several controversies regarding gaming rights. In Chickasaw Nation v. United States, 534 U.S. 84, 122 S. Ct. 528, 151 L. Ed. 2d 474 (2001), the Court held that revenues from pull-tab games, similar to lottery tickets, at Chickasaw Nation gaming operations could be taxed under Chapter 35 of the internal revenue code. The ruling also applied to the Choctaw Nation, which offered a similar type of pull-tab game. The U.S. Court of Appeals for the Tenth Circuit, in reviewing the Chickasaw Nation's gaming activities, ruled that revenue from these games amounted to gambling revenues, rather than lottery revenues. The Federal Circuit, however, reached an opposite conclusion with respect to the Choctaw Nation in Little Six, Inc. v. United States, 210 F.3d 1361 (Fed. Cir. 2000).
The U.S. Supreme Court, per Justice stephen breyer, found that the internal revenue service had properly levied a tax on these gaming activities. Although states are not required to pay these taxes, the applicable provisions in the tax laws applied specifically to the Indian tribes. Although Court precedent suggested that statutes regarding Indian tribes should be construed liberally in favor of the Indian tribes, Breyer found the statute to be unambiguous by its terms.
Cox, Michael D. 1995. "The Indian Gaming Regulatory Act: An Overview." St. Thomas Law Review 7.
Getches, David H., et al. 1998. Cases and Materials on Federal Indian Law. 4th ed. St. Paul, Minn.: West Group.
Hutchins, Francis G. 2000. Tribes and the American Constitution. Brookline, Mass.: Amarta Press.
Johnson, Dana. 1995. "Native American Treaty Rights to Scarce Natural Resources." UCLA Law Review 43.
Kelly, Joseph M. 1995. "Indian Gaming Law." Drake Law Review 43.
McNeil, Heidi L. 1994. Indian Gaming—Prosperity, Controversy. PLI order no. B4-7077. New York: Practising Law Institute.
Pevar, Stephen L. 2002. The Rights of Indians and Tribes: The Authoritative ACLU Guide to Indian and Tribal Rights. 3d ed. Carbondale: Southern Illinois Univ. Press.
Native American Rights
NATIVE AMERICAN RIGHTS
City of Sherrill, New York v. Oneida Indian Nation
In 1788, the Oneida Indian Nation of North America entered into a treaty in which it ceded all of the areas of homeland that it occupied as aboriginal Native Americans to New York State. They retained a reservation of approximately 300,000 acres (located in what is now central New York State) for their own use. Two years later, Congress passed the first Indian Trade and Intercourse Act (Nonintercourse Act) barring sale of tribal lands without the Government's acquiescence . Subsequently, the U.S. government consistently acknowledged the Oneidas' free use and enjoyment of reservation territory.
Notwithstanding the treaty, the State of New York continued to purchase reservation land from the Oneidas over the years, and with impunity. Ultimately, under increasing pressure to open lands for incoming white settlers, the State of New York actively pursued a policy to purchase remaining Oneida lands and to remove tribes westward. The land at issue in the present case, City of Sherrill, New York v. Oneida Indian Nation of New York,, 544 U.S. __ 125 S.Ct. 2290, __ L.Ed.2d __ (2005), was last possessed by the Oneida Nation in 1805. After that, many Oneidas fled westward, leaving the remaining acres to a few Oneidas who stayed behind and eventually sold the land to non-Indians. By 1920, the Oneidas retained only 32 acres in the state.
In 1970, the Oneida descendants filed their first federal "test case" against two New York counties, claiming that the cessation of 100,000 acres to the State of New York back in 1795 was in violation of the Nonintercourse Act and that it therefore did not terminate their right to possession. As remedy, they sought damages measured by the fair rental value for the two preceding years, 1968-1969 (to meet statute-of-limitations requirements), of 872 acres owned and occupied by the two counties. The federal district court dismissed the suit, and the appeals court upheld the dismissal. The U.S. Supreme Court (Oneida I,, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73) reversed, however, holding that plaintiff Oneidas had articulated a viable federal claim. After the Oneidas prevailed in the lower courts, the case went back to the Supreme Court. At that time, the Court reserved the question as to whether equitable consideration should limit the relief available to present-day Oneida Indians Oneida II, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169).
In the present case, the parcels of property at issue were part of those lands that were last possessed by the Oneida Nation in 1805, at which time they were transferred to a tribal member who sold the land to non-Indians in 1807. Once part of the original historic reservation, these parcels remained in the hands of non-Indians for two hundred years until they were recently reacquired in open-market real estate transactions. The parcels are located in what is now the City of Sherrill in central New York, the population of which, according to the 2000 census, is more than 99 percent non-Indian.
The issue in the present case was neither possession nor past wrongs. Rather, it was the refusal to pay city and county taxes. The descendant Oneidas ("Oneida Indian Nation of New York," or "OIN"), who purchased the parcels in 1997 and 1998, maintained that the properties were tax-exempt because they were located within the boundaries of the original historic reservation. Sherrill initiated eviction proceedings in state court, and the Oneidas filed suit in federal court (as the Oneida Indian Nation of New York). Unlike Oneida I and II, OIN did not ask for monetary compensation this time. Instead, OIN sought equitable relief prohibiting the imposition of current and future taxes on the subject parcels. OIN argued that the acquisition of fee title to these discreet parcels of historic reservation land revived sovereignty over each purchased parcel, in piecemeal fashion, ending Sherrill's regulatory authority over the property.
The U.S. Supreme Court, in an opinion by Justice Ruth Bader Ginsberg, rejected this argument.It held that the longstanding, distinctly non-Indian character of central New York; the constant exercise of regulatory authority by the State, its counties, and towns for two hundred years; and OIN's long delay in seeking judicial relief against parties other than the United States precluded the OIN from unilaterally reviving its ancient sovereignty over the parcels at issue. Such sovereignty was long ago relinquished by the Oneidas, according to the Court, and such reins of government "cannot [be regained] through open market purchases from current titleholders."
The Court reasoned that the appropriateness of the remedy sought by OIN must be evaluated in light of the long history of state sovereign control over the land. The Court placed significance on "justifiable expectations" created by the longstanding assumption of jurisdiction by the State over an area that is predominantly non-Indian in population and land use and that was, until recently, uncontested by OIN. The wrongs complained of occurred during the early years of the Republic. The Oneidas did not seek redress or possession of their aboriginal lands by court decree until the 1970s. Further, OIN did not acquire the present properties until the late 1990s and did not assert its theory to revive sovereign control until then. Finally, the character and value of the property in question had greatly appreciated in value since it was sold by the Oneidas two hundred years ago.
All of these factors, the Court wrote, evoked the doctrines of laches , acquiescence, and impossibility, therefore rendering as inequitable the piecemeal shift in governance unilaterally sought by OIN. The Court explained that the doctrine of laches, for example, focuses on one side's inaction and the other's legitimate reliance to bar long-dormant claims for equitable relief. Similarly, long acquiescence by OIN may have controlling effect on the exercise of the states' dominion and sovereignty over territory. Finally, there is the impracticability of such a "disruptive remedy" as returning to Indian control land that had passed into numerous private hands over two hundred years.
The Court noted that if OIN could unilaterally reassert sovereign control and remove individually purchased parcels from local zoning and regulatory controls that protect all landowners in the area, little would prevent it from initiating a new generation of litigation to attempt to regain acquiesced sovereignty in such piecemeal manner. The Court also noted that Congress had recognized these practical concerns when it provided, in the Indian Reorganization Act of 1934, 25 U.S.C. 465, a mechanism (for the acquisition of lands into trust for tribal communities) that takes into account the interests of others with stakes in the area's governance and well being.
Six justices joined Justice Ginsberg's opinion. Justice David Souter filed a separate concurring opinion. Justice John Paul Stevens, who filed a dissenting opinion, reiterated his earlier position, in Oneida II, that remedies for such ancient wrongs should be provided by Congress, not by judges. Even so, Stevens hinted where his sympathies lay by stating that this case "involves an Indian tribe's claim to tax immunity on its own property located within its reservation."
Native American Rights
Native American Rights
Wagnon v. Prairie Band Potawatomi Nation
American Indian tribes are recognized as sovereign entities by the U.S. government, yet the federal government has made many exceptions to tribal sovereignty. One thorny issue involves the taxation by state governments of goods sold on tribal property. The Supreme Court has wrestled with the proper standards for evaluating the legality of these taxes, most recently in Wagnon v. Prairie Band Potawatomi Nation, __U.S.__, 126 S.Ct. 676, 163 L.Ed.2d 429 (2005). In this case the Court ruled that a motor fuel tax imposed on a distributor of gasoline residing within the state could be passed on to a gas station located on an Indian reservation.
The Prairie Band Potawatomi Nation in Kansas has a large gambling casino on its reservation. The casino's employees are overwhelmingly members of the Nation and the profits earned by the casino are used to improve the standard of living for tribal members. A state highway is the only way for the public to access the casino. The Nation established a gas station that sells fuel to customers who visit the casino (73 per cent of the station's customers) and it imposed an excise tax on the fuel as a way to maintain the portion of the highway that is on tribal land. In 1995 the state of Kansas imposed a tax on the distributors of motor fuels residing within the state. The distributors passed along the tax as a cost of business to gas station owners. When the fuel distributors passed along the tax to the Nation's gas station, the Nation objected, claiming that by paying the additional amount for fuel it was, in effect, paying a tax to the state of Kansas. The nation argued that this was a violation of tribal sovereignty and filed suit in federal district court.
The federal district court dismissed the lawsuit, reasoning that on balance the interests of the state trumped those of the Nation. The "legal incidence of the tax" was directed to off-reservation fuel distributors and most of the purchasers of the fuel were non-Indian casino patrons who received most of their governmental services from the state of Kansas. The Nation could not block the tax merely because it imposed its own fuel tax. The Tenth Circuit Court of Appeals disagreed, finding that the balancing of interests favored the Nation. The appeals court concluded that the Nation's fuel revenues were "derived from the value generated primarily on its reservation" through the presence of the casino. The Nation's desire to tax this reservation-created value to help with maintaining the highway outweighed the state's interest in raising revenues. The state then appealed to the Supreme Court, which granted review to determine whether a tax on the off-reservation receipt of fuel was subject to the balancing test used by the lower courts.
The Court, in a 7-2 decision, overruled the Tenth Circuit, finding that the balancing test did not apply in this situation because the motor fuel tax was a nondiscriminatory tax imposed on an off-reservation transaction that involved non-Indians. Justice Clarence Thomas, in his majority opinion, noted that under the Court's Indian tax immunity decisions the "'who' and the 'where' of the challenged tax have significant consequences." A state may not place an excise tax on a tribe or tribal members for sales made within a reservation without congressional approval. Likewise, when a state imposes a tax on a non-Indian seller on a transaction that takes place on the reservation, it may be prohibited under a balancing of interests test. The Nation argued that the legal incidence of the tax occurred on tribal land but Justice Thomas concluded that the Nation had failed both the "who" and "where" test. In this case Kansas imposed the tax on fuel distributors who did business within the state's boundaries. The distributor, not the retailer, was liable to pay the motor fuel tax. Therefore, the legal incidence of the tax fell on the distributor (the "who") rather than the tribal retailer. As to the "where" of the tax, Thomas found that it occurred off tribal land.
The Court declined to extend the balancing of interest test to this type of tax. Justice Thomas stated that this test must be limited to on-reservation transactions "between a nontribal entity and a tribe or tribal member." Prior decisions by the Court had ignored the balancing test when the state asserted taxing authority outside of tribal lands. For example, a state was permitted to tax the gross receipts of an off-reservation Indian-owned ski resort. If a state was permitted to tax Indian tribes for their off-reservation activities, "it follows that it may apply a nondiscriminatory tax where, as here, the tax is imposed on non-Indians as a result of an off-reservation transaction." The Court refused to expand the interest balancing test to any off-reservation tax for goods imported by the Nation. It made not difference that the state tax interfered with the tribal gas tax. The Nation sold gas at the prevailing market rates, so "its decision to impose a tax should have no effect on net revenues from the operation of the station." If the tax had been struck down the Nation would have increased those revenues by purchasing untaxed fuel. Therefore, the state was entitled to pass the tax onto to Nation through the prices charged by the distributors.
Justice Ruth Bader Ginsburg, in a dissenting opinion joined by Justice Anthony Kennedy, noted that Kansas had provided many exemptions to the collection of the motor fuel tax yet it had not made one for the Nation. The effect of the state tax meant that if the Nation continued to impose its tax "scarcely anyone will fill up at its pumps." Because of this double taxation the Nation would either have to cut prices and operate the station at a loss or close the station. The balancing of interests test should be applied in such circumstances. If applied, the Nation should prevail because the operation of the gas station and the collection of the tribal tax was needed to fund reservation road-building programs.
Native American Rights
NATIVE AMERICAN RIGHTS
Cobell v. Kempthorne
The federal government's policies involving the rights of Native Americans have led to many problems over the past 200 years. The government's attempt to dismantle tribes that began in the late 1800's with the Dawes Act and continued into the 1930s devastated Native American communities. In addition, this policy sought to instill the Anglo-American concept of private ownership in Native Americans by dividing reservation land into individually owned tracts or allotments of up to 160 acres. The government also allowed non-Indian settlement upon and exploitation of some reservation land. This resulted in the alienation of millions of acres from tribal ownership. The act also required the federal government to hold the alloted land in trust for the individual allotees and their heirs for 25 years, but this was extended over the years. Income generated from these allotments was to be placed in accounts for Individual Indian Money (IIM) account holders.
As of 1990, 11 million acres were held in trust for the heirs of the allottees. Many trust allotments are now owned in common by hundreds or even thousands of beneficiaries, each with undivided interests in the whole parcel. In 1997 a class action lawsuit was filed in federal court by a group of Native Americans, alleging that the Department of Interior, which oversees these IIM accounts, had violated federal statutory trust obligations. Since then the case has gone back and forth between the federal district court and the Federal Circuit Court of Appeals and led to the removal of district court judge hearing case. In early 2008 the new judge assigned to the case, James Robertson, issued a voluminous decision in Cobell v. Kempthorne, 532 F. Supp. 2d 37 (D.D.C. 2008), ruling that the Department of Interior's 2007 historical accounting plan did not satisfy the department's obligation to produce an accounting of IIM trust accounts.
Judge Robertson conducted a 10-day bench trial in October 2007, seeking to find out if the Department of the Interior had remedied or was remedying its breach of duty under the Indian Trust Fund Management Reform Act of 1994, 25 U.S.C. 4011(a). This act reflected many years of congressional frustration over Interior's management of the IIM trust. It ordered Interior to provide an historical accounting to trust beneficiaries The 1997 lawsuit was filed after the plaintiffs concluded the department had not even begun this effort. The original judge, Royce Lamberth, divided the case into two phases, addressing the “to-be plan” that Interior would use going forward and another plan that would deal with the historical accounting. Judge Robertson, reviewing the nine published circuit court of appeals decisions on this case, noted that there had been “no definitive, undisturbed ruling on the core question” in this dispute: What is the scope or nature of the accounting required by the 1994 law?
Judge Robertson pointed out that the historical accounting project would have been “unthinkable” until the advent of powerful computers and software. The project would involve merging records and procedures that had been used for almost 100 years. The department's efforts in the past had been hampered by different practices in its regional offices and by the fact that most trust records had been destroyed on a regular basis until 1989. The department had an “abysmal” record of failing to prioritize the maintenance and preservation of trust documents and its attempts to perform the historical accounting in the late 1990s did not go well. After Judge Lamberth ordered the department to develop a better plan, Interior proposed a $2.45 billion plan. Congress objected to the cost and refused to fund the plan, leading Interior to propose a plan in 2007 that excluded accounts closed before 1994, transactions occurring after 2000, and transactions in closed accounts or in the accounts of deceased beneficiaries. This plan abandoned a total transaction-by-transaction approach in favor of a mixture of transaction-by-transaction and statistical sampling.
Though Judge Robertson gave Interior “substantial credit” for trying to strike a balance between “exactitude and cost.” It made no sense to spend several billion dollars to account for a trust fund worth around the same amount. In addition, the department's efforts at improving the process for future beneficiaries were encouraging. However, these improvements could not remedy “the failures of the past.” The judge found that the 2007 historical accounting plan would not result in an adequate accounting compelled by the 1994 act. The plan's major defect was its failure to provide a “verified opening balance and as asset statement.” Without this information it would be “utterly impossible” for a beneficiary to determine whether the department had faithfully carried out the duties of the trust. Though Judge Robertson concluded Interior was unable to perform an adequate accounting, this did not mean “a just resolution of this dispute is hopeless.” Although he believed the time had come to bring the lawsuit to a close, he ordered the parties to return to court later in the year to discuss a process for finding an appropriate remedy.
Native American Rights
Native American Rights
When Europeans arrived in North America in the 1600s, they discovered that Native American tribes already occupied the land. Between the 1630s and the War of Independence, white settlers gradually pushed the Native Americans, whom they called "Indians," westward. The goals of the settlers, which included colonization, land exploitation, and religious conversion, led to cultural and social conflict that erupted in periodic "Indian wars."
After the formation of the United States, state and federal government leaders agreed that the nation needed to establish a national policy toward Native Americans. By the 1820s the government's policy was to remove Native Americans from their lands and resettle them in the "Great American Desert" to the west. In 1830 Congress passed the Indian Removal Act (4 Stat. 411) and appropriated $500,000 for this purpose. During the presidency of Andrew Jackson (1829–1837), ninety-four removal treaties were negotiated. By 1840 most of the Native Americans in the more settled states and territories had been sent west.
The U.S. Supreme Court confronted the issue of Native American rights in the Cherokee cases, the collective name for two cases of the 1830s: Cherokee Nation v. Georgia, 30 U.S. 1, 8 L. Ed. 25 (1831), and Worcester v. Georgia, 31 U.S. 515, 8 L. Ed. 483 (1832). In Cherokee Nation, Chief Justice John Marshall ruled that the Cherokee Indians were not a sovereign nation. The following year Marshall issued an opinion that, while not overruling Cherokee Nation, held that the Cherokees were a nation with the right to retain independent political communities. President Jackson refused to abide by this ruling and supported the removal of the Cherokees to Oklahoma, which took place in 1838–1839.
Few tribes willingly moved westward, resulting in more Indian wars. The Black Hawk War of 1832, fought in Illinois, illustrates the situation Native Americans faced. The Sauk and Fox tribes, who had been forced from their lands by white settlers, faced the prospect of famine but were reluctant to move west where they would have to confront the hostile Sioux nation. Accordingly, Chief Black Hawk led the Sauk and Fox in an unsuccessful campaign to reoccupy their former lands.
Throughout the nineteenth century, treaties were made in which tribes ceded areas of land to the federal government in return for compensation in the form of livestock, merchandise, and annuities. These agreements were often accompanied by the establishment of reservations. All treaties that the United States entered into prior to 1871 were written in the formal language of international covenants. The parties would sign the draft treaty, and the document would be submitted to the U.S. Senate for ratification. After 1871 formal treaty arrangements were abandoned in favor of simple agreements between the government and Native American tribes. These agreements required the approval of both houses of Congress and had the same authority as the previous treaty forms, but they effectively abandoned the idea that Native American tribes were independent. For their part, the tribes came to distrust the federal government for not honoring the treaties, confining them to reservations, and ending a way of life that had endured for centuries. Not until the twentieth century, after the continent had been settled and the tribes restricted to reservations, did the federal government attempt to seek a different policy.
Native American Rights
Native American Rights
San Manuel Indian Bingo and Casino v. National Labor Relations Board
Though American Indian Tribes are recognized by the federal government as sovereign entities, Congress and the courts have created exceptions that allow state and federal governments to regulate certain activities on tribal lands. With the explosive growth of Indian casinos, a host of legal issues concerning the application of business and labor rights have come into the courts. In San Manuel Indian Bingo and Casino v. National Labor Relations Board, 475 F.3d 1306(D.C. Cir. 2007), the Circuit Court of Appeals for the District of Columbia ruled that that the National Labor Relations Act (NLRA) 29 U.S.C.A. §§151 et seq. applies to employment at Indian casinos.
The San Manuel Band of Serrano Mission Indians opened a casino on its reservation in San Bernardino County, California in 1986. The tribe, which has endure decades of poverty and unemployment, soon had millions of dollars of gambling profits that it could distribute for the benefit of the tribe. Unlike other Indian casinos, San Manuel does not contract with an independent management company to operate the casino, choosing instead to have tribal members work in key positions. The casino, which is about an hour's drive from Los Angeles, employed many non-Indians and drew most of its customers from outside the reservation.
In the late 1990s, two rival unions, the Communications Workers of America (CWA) and the Hotel Employees and Restaurant Employees International Union (HERE), set their sights on organizing casino employees. In 1999, HERE filed an unfair labor practice charge with the National Labor Relations Board (NLRB), the administrative agency that enforces the NLRA. HERE charged that the casino had interfered with their attempt to organize workers, using threats and coercion against casino workers. In addition, HERE alleged that the casino had thrown its support to CWA by allowing CWA representatives access to casino property. The casino permitted CWA to place a trailer on its property to use as its headquarters and to hand out leaflets and talk to employees during working hours. CWA also alleged that casino security guards denied its representatives equal access to employees.
The tribe sought to dismiss the complaint, contending that Indian reservations are not subject to the NLRA. The NLRB issued a ruling in 2004 that the tribal casino was subject to the NLRA and that the tribe had committed an unfair labor practice. It ordered the tribe to give access to HERE and to post notices in the casino describing the rights of employees under the NLRA. The tribe then petitioned the Circuit Court for the District Columbia, which reviews NLRB appeals, arguing that the NLRB had no jurisdiction to hear the case.
A three-judge panel of the appeals court upheld the NLRB decision. Judge Janice Rogers Brown, writing for the court, acknowledged that the case was complicated because of issues involving tribal sovereignty, congressional intent, and the lack of clear legal precedent. The key issue was tribal sovereignty and how it related to the NLRA. The court posed two questions: would application of the NLRA violate federal Indian law by impinging upon protected tribal sovereignty, and, if the answer to the first question was negative, does the term "employer" in the NLRA apply to Indian tribal governments operating commercial enterprises? Judge Brown reviewed a host of conflicting decision on tribal sovereignty and concluded that it was "far from absolute." Tribal sovereignty was strongest when explicitly established by treaty or when the tribal government acted on matters of concern only to tribal members. Judge Brown stated that the "determinative consideration appears to be the extent to which application of the general law will constrain the tribe with respect to its governmental functions." In this case impairment of tribal sovereignty was slight because the operation of a casino was not a traditional element of self-government and because most of the casino's employees were not tribal members and they lived off the reservation. Applying the NLRA to the casino would not impair tribal sovereignty.
Having removed the sovereignty issue, the court reviewed whether the word "employer" in the NLRA applied to Indian governments operating commercial enterprises. The NLRA does not define "employer," but does list certain specific entities that are not employers. Judge Brown noted the common definition of the word meant a person who controls and directs a worker under a contract and pays the worker's salary or wages. Using this definition the casino clearly was an employer; in its brief the casino even referred to its workers as employees. Finally, there was nothing in the law governing Indian gaming that foreclosed application of the NLRA to tribal enterprises.