Via IndianCountryToday: Looking Ahead: 2016 Loaded With Big Changes for Indian Country

Important developments are expected in Indian country in 2016. Here are some of them:

Kevin Washburn Leaving BIA; Lawrence Roberts to Take Over

Assistant Secretary for Indian Affairs Kevin K. Washburn, Chickasaw Nation of Oklahoma, will be leaving his post in January to return to teaching at the University of New Mexico School of Law. Principal Deputy Assistant Secretary Lawrence “Larry” Roberts, Oneida Tribe of Wisconsin, will take over the position for the remainder of President Barack Obama’s term.

Interior Secretary Sally Jewell said in a statement, “With Larry’s leadership, I am confident we will continue the strong momentum rooted in tribal self-determination and self-governance that Kevin has helped reignite.” Roberts has been with the department since 2012. Before that, he was General Counsel of the National Indian Gaming Commission.

During his tenure Washburn has overseen the settlement of past disputes between the federal government and tribes, convinced Congress to make funding contract support services mandatory, revised the federal acknowledgment process, updated right-of-way regulations and improved the land-into-trust process. On his watch, the Bureau of Indian Education has begun a complete reorganization that will eventually turn over control of most of its schools to tribes.

Supreme Court to Decide Dollar General Case

The U.S. Supreme Court ruling in Dollar General v. Mississippi Band of Choctaw Indians, expected in the spring, will have profound implications for justice in Indian country. Should the court rule against the tribe, it would reaffirm the Doctrine of Discovery and severely limit the ability of tribal courts to protect tribal members – even children – on their own lands from abuses, a right that both the Tribal Law and Order Act of 2010 and the Violence Against Women Act reauthorization of 2013 expanded.

The court heard oral arguments on December 7 and the justices seemed to lean toward favoring Dollar General’s position that the tribe could not bring a civil suit for the alleged sexual assault of a child against an entity that operated a business on tribal lands, despite the fact that the business had consented to be subject to tribal jurisdiction.

Suzette Brewer quoted legal experts as saying that Dollar General could be the “most potentially devastating case for Indian tribes in half a century.”

The Supreme Court will decide at least two other Indian cases in 2016, according to the Native American Rights Fund’s Tribal Supreme Court Project. On December 1, the Court heard oral argument in Menominee Indian Tribe v. United States and on January 20 it is scheduled to hear oral argument in Nebraska v. Parker, which pertains to tribal regulatory authority over non-Indian communities located within reservation boundaries.

New Education Law Will Go into Effect

President Obama signed the Every Student Succeeds Act of 2015 into law December 10. ESSA is the first reauthorization of the Elementary and Secondary School Act since 2001 when the highly-criticized No Child Left Behind Act passed during George W. Bush’s administration.

ESSA offers both opportunities and challenges for Indian country; as always, the details of how the law is implemented will be critical. On the one hand, the law offers much less federal oversight of education, a factor that could work against minority children, poor children, immigrant children and children with disabilities, groups whom the original 1965 federal education law was designed to protect. On the other hand, it mandates the participation of tribes and tribal organizations in local and district school board decision-making and provides expanded funding for programs such as immersion language learning.

National Indian Education Association Executive Director Ahniwake Rose, Cherokee, says, “This [law] is a huge change for Native education, the first steps toward self-determination over public education on our lands. It is the first time states and local educational agencies will have to talk to tribes. And it authorizes the STEP program, making more tribes eligible to run and operate federal programs. When tribes, governments, schools and the community have an active voice in the [schools their children attend], that’s the best step you can take to improve education.”

Carcieri ‘Fix’ Remains Elusive

Efforts to find a Congressional “fix” to the U.S. Supreme Court’s 2009 decision in Cacieri v. Salazar have so far failed to make much headway. The court ruled that the 1934 Indian Reorganization Act authorized the Secretary of the Interior to take land into trust only for tribes under federal jurisdiction at the time the IRA was passed. The “clean fix” advocated by many tribes would affirm Interior’s authority to place land into trust for all recognized tribes and affirm the department’s previous trust decisions. However, many members of Congress want the “fix” to give local governments more say in federal land-into-trust decisions; some proposed legislation has even given states and counties veto power.

Senate Committee on Indian Affairs Chairman John Barrasso, R-Wyoming, in July introduced a compromise measure. The Interior Improvement Act (S. 1879) would affirm Interior’s past land-into-trust decisions and would give the department authority to accept land into trust for all federally recognized tribes. It would not give local governments veto power over federal trust decisions but would require Interior to consider input from those governments. It would also fast track applications in which the tribe has forged cooperative agreements with nearby local governments and would require judicial review of all land-into-trust decisions. The United South and Eastern Tribes have expressed their support for the legislation. The Senate Committee on Indian Affairs gave the bill its okay on December 2.

New Regs for Implementing Indian Child Welfare Act Due Out

Even as the Bureau of Indian Affairs implements new guidelines for implementing the 1978 Indian Child Welfare Act, adoption agencies and states are challenging the law. In July, the Goldwater Institute filed a proposed class-action lawsuit in U.S. District Court for the District of Arizona challenging the constitutionality of the ICWA and the BIA’s guidelines. The case involves children whose parents’ rights have been terminated and who live off-reservation.

The BIA is now working on new regulations (as opposed to guidelines) for implementing ICWA to ensure uniformity in the way the law is implemented by state courts and agencies. The proposed regs were published in the Federal Register in March.  Comments were due in May.

Via TurtleTalk: Supreme Court Oral Argument Transcript in Dollar General

Transcript available here.

Here are some interesting passages:

Justice Sotamayor (questioning counsel for Dollar General at p 10):

States appoint judges. Sometimes they’re elected, but often they’re appointed. We don’t think it lacks being a neutral forum because the State can sue a citizen there. We think of it as neutral because the judges are neutral.

You’re just assuming that these judges are not neutral.

Counsel for Dollar general (asserting that tribal courts are not an inherent feature of sovereign tribal governments at p 16):

The United States obviously did not regard the Tribes’ judiciary as something that is purely a part of their government, because time and again, it has micromanaged them.

And, Justice Breyer, I do want to point out another example of that, and that is the Violence Against Women Act. There, we see the right way of doing this, and that Congress has developed systems that say if this tribal judiciary is a good one which affords due process, then it has jurisdiction over cases.

And we think that’s the right approach here. Congress has the institutional capacity to develop rules like the one you were talking about. It’s a much more ­­[…]

Justice Breyer (trying to frame Dollar General’s argument at p 18):

The nontribal member goes to the tribal land and signs an agreement that says tribal law would apply, and then commits a tort on the tribal lands, and even under those circumstances, and even if the court is functioning well, the tribal court cannot take jurisdiction over his claim. That’s your position. And then to that I say, if I haven’t got it already, why not?


Justice Kagan (characterizing Dollar General’s argument at p 23):

It’s a bit of an odd argument, isn’t it, Mr. Goldstein, that there’s less of a sovereign interest in protecting your own citizens than in enforcing your licensing laws?


Exchange between Justice Kennedy and Dollar General regarding the scope of Congress’s power to delegate jurisdiction to Indian tribes (p 25):

JUSTICE KENNEDY: My ­­ my hypothetical is that the Congress gives Indian powers ­­ Indian tribes complete powers, both civil and criminal, over all persons on tribal Reservations. No Federal review, nothing.

Mr. GOLDSTEIN: That’s unconstitutional because Congress is subject to the Constitution. It would violate the Supremacy Clause; it would violate Article III, which contemplate, sorry…

Neal Katyal, counsel to the Mississippi Band of Choctaw pushing back on Justice Scalia’s suggestion that the Supreme Court’s prior statements on tribal court jurisdiction are merely dicta (p 31):

So yes, I understand that they are dicta, but it is dicta of the most persuasive sort. It is the unbroken rule of this Court, frankly, that in all of these cases, this Court has said there is presumptively jurisdiction.

And indeed, the exhaustion cases would make no sense otherwise because twice this Court said, in tort cases, in Iowa Mutual and National Farmers Union, this Court said you’ve got to go to tribal court and exhaust your remedies.

And Justice Scalia, if the rule in those cases was, hey, tribal courts don’t have jurisdiction, they would have done what you did in your opinion in Hicks, because at page 369 you said, quote, “Since it’s clear tribal courts lack jurisdiction over State officials, adherence to the tribal exhaustion requirement would serve no purpose.

Chief Justice Roberts, on whether there can be due process with all-Indian juries in tribal courts (p 42):

If we’re ­­ if we’re going to evaluate the due process concerns on a case­by­case basis, as a general matter, it ­­ does it violate due process for a nonmember to be subjected to a jury verdict where the jury consists solely of tribal members?

Chief Justice Roberts, again, on the same point (pp 43-44):

Kind of think that ­­ you think the concerns are on the same level: Forcing somebody in a State court to be subjected ­­a New Yorker to be subject to jurisdiction where everyone’s from Massachusetts because it’s Massachusetts court. You think that’s the same as subjecting a nonmember accused of a terrible assault on an Indian to jurisdiction before a jury consisting solely of members of the Tribe.

The Chief Justice, one more time, on the same point when questioning the United States’ attorney Ed Kneedler (p 56):

Is it consistent with your concept of due process, as a general matter, to have a nonmember tried by a jury consisting solely of tribal members?

Justice Scalia, questioning Ed Kneedler on the scope of tribal regulatory jurisdiction in relation to tribal court jurisdiction over tort claims (p 58):

And so I could say that person was subject to tribal regulatory jurisdiction, which can be interpreted, narrowly, to mean the Tribe can regulate that person’s conduct. If he violates that conduct, the Tribe, as a tribe, can fine him. It doesn’t necessarily mean that the regulatory jurisdiction includes the ­­ the power to impose tort law and adjudicate tort law.