Indian Gambling Outline
University of Dayton School of Law, Spring 2008, Intrasession
Professor Blake Watson
1. Tribes as Governments: The “Marshall Trilogy”
2. Tribal Power: Sovereignty by Sufferance?
3. State Authority in Indian Country
4. The Indian Gaming Regulatory Act of 1988
4.9 Indian Gaming Regulatory Act (IGRA)
4.9.10 § 2710. Tribal gaming ordinances
4.9.20 § 2719. Gaming on lands acquired after October 17, 1988
4.10 Indian Gaming Regulatory Act – Criminal Penalties
5. Lands Acquired after October 17, 1988
6. What Kind of Gaming?
7. Tribal-State Compacts
8. Who Gets the Money?
9. Litigation and Future of Indian Gaming
Land to Trust Regulations – 25 C.F.R. Part 151
1. Tribes as Governments: The “Marshall Trilogy”
1.1. Historical Background. Cherokee Nation forced migration from Georgia to Oklahoma Indian Territory known as the “trail of tears.” By the end of the War of 1812, the major tribes located north of the Ohio River and east of the Mississippi River had ceded most of their lands to the U.S. In 1828 Georgia passed a law that annexed the lands of the Cherokee Nation. The tribe, relying on treaty guarantees protested and sued, but Congress, backed by President Jackson, passed legislation to remove the tribe.
1.2. Johnson v. M’Intosh (1823) (Indians sold same land twice).
Doctrine of Discovery, Indians right of occupancy, and land title claims. Indians had a right to occupy land, and a legal claim to retain possession and use it as they like, but they did not have complete sovereignty & did not have the power to dispose of land at their own will.
By the time of this opinion the Indians were entirely gone from this area, having been moved west so he’s really just recognizing a fait accompli.
1.2.1. Discovery Doctrine. “[D]iscovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.” This European power who made the discovery had the sole right of acquiring the soil from the natives. “Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves.” Quoting Johnson v. M’Intosh. The doctrine of discovery, “gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.” Worcester v. Georgia. Even as early as 1823 Marshall is using a fait accompli as justification. Discovery doctrine may be unreasonable, but that’s the way it is, so it’s a given. FSA being given to the discoverers is a fiction, but it’s a useful fiction.
1.2.2. Indian property rights. The Indians were “admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but 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 nations of Europe “asserted the ultimate dominion to be in themselves; and claimed and exercised a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.” The Indians are “deemed incapable of transferring the absolute title to others.” The Indians “right of possession has never been questioned.” Johnson v. M’Intosh. Indians had a right to occupy land, and a legal claim to retain possession and use it as they like. They are “merely occupants.” They do not have, nor can they convey fee simple absolute.
1.2.3. Implicit Divestiture. The Indians have an “Indian title.” They can only sell their land to the United States, but to no one else. They lost FSA, but even the possessory right they keep can’t be sold to private individuals. The Indians have a present possessory term for years and the U.S. got a future interest in FSA. The fact that the U.S. is the only possible party who can buy Indian land necessarily impacts the price of the land that the Indians have to sell – there’s no market for Indian lands and the U.S. has a monopoly.
1.3. Cherokee Nation v. Georgia (1831) (Cherokee nation tries to stop Georgia from enforcing law on them).
As far as constitution goes, the Cherokee Nation is NOT a “foreign state,” so SCOTUS has no jurisdiction. The Cherokee Nation is a “state,” but not a “foreign state.” The Cherokee are really a “domestic dependent nation.” “[T]he framers of our constitution had not the Indian tribes in view, when they opened the courts of the union to controversies between a state or the citizens thereof, and foreign states.”
Marshall uses the language in the Commerce Clause in the Constitution to justify that they’re not a foreign nation. “In this clause they are as clearly contradistinguished by a name appropriate to themselves, from foreign nations, as from the several states composing the Union. The objects, to which the power of regulating commerce might be directed, are divided into three distinct classes – foreign nations, the several states, and Indian tribes. When forming this article the convention considered them as entirely distinct.”
The merits of the case were never heard because SCOTUS said they didn’t have jurisdiction.
What the SCOTUS Justices said about the Cherokee Nation:
ARE THEY A STATE?
ARE THEY A “FOREIGN” STATE?
J. Marshall says: Yes
J. Thompson & Story say: Yes
J. Johnson says: No
J. McLean in Worcester: Yes (but only for now – it won’t last).
? Not sure, but he probably never thought they were foreign if that meant giving them jurisdiction.
Anti Indian Pro-Indian
1.4. Worcester v. Georgia (1832) (Whether Georgia’s legislature had the right to abolish the Cherokee nation and impose its own laws).
The laws of Georgia have no force within the territory of the Cherokee Nation. “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 conformity with treaties, and with the acts of congress.”
“Indian tribes are ‘distinct, independent political communities, retaining their original natural rights’ in matters of local self-government.”
According to Justice McLean in referring to the Indians self-government and title over their own lands, the settled policy of the U.S. gov’t is “the extinguishment of their title.”
1.4.1. Trust Duty. Trust Duty is a fiduciary relationship. The duty is that the U.S. has an obligation to act in the benefit of the tribes. The U.S. does have a recognized obligation to act in a manner that’s beneficial & not harmful to native Americans. More specifically if the U.S. mismanages Indian funds held in trust it can be sued for breach of trust. Trust duty’s the flip side of Plenary Power. Tribes have sovereignty, but plenary power can abolish it. Similarly, the U.S. has to take the interests of the tribe into consideration. If the U.S. has the power to do whatever they want to Tribes, they also have a responsibility not to do anything too harmful. The specific concept of trust is the concept of taking land and putting title of land into trust by the U.S. for the benefit of the Indian Tribes. The trust duty can’t be stretched to say that the U.S. can’t act in a way that the tribes wouldn’t like – it is an advocacy argument available to Tribes though. In the Cobell case the gov’t has a duty to manage Indian money responsibly.
In Kagama it says (bottom of pg. 44) “From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power.”
1.4.2. Status – what are the tribes status? Are they a nation, a state? Marshall says they’re nations within a nation, but they’re a domestic dependent nation.
2. Tribal Power: Sovereignty by Sufferance?
2.1. The Thrust and Parry of Federal Indian Law. 23 University of Dayton School of Law 437, Blake Watson. “Congressional treatment of Indians has fluctuated from total separation to total assimilation, including the complete termination of tribal status.” The episodic federal Indian policies since 1830 can be summarized with five buzzwords: removal, assimilation, reorganization, termination, and self-determination.
2.1.1. Five episodes of Indian policy since 1830:
126.96.36.199. Removal 1830-1887
188.8.131.52.1. 1830 Indian Removal Act passed under the Jackson administration authorized the removal of eastern Indian tribes to west of the Mississippi. There were still a government-to-government relationship, but the Indians were moved.
184.108.40.206.2. 1834 Nonintercourse Acts. Prohibited se
customs.” 109 U.S. at 571-572
In response to Crow Dog, Congress enacted the Major Crimes Act of 1885, which granted jurisdiction to federal courts over murder and other enumerated crimes when committed by Indians in Indian country. Shortly thereafter, the authority of Congress to enact the Major Crimes Act was put before the Supreme Court in Kagama, which involved the murder of a Klamath Indian by a Klamath Indian near the Hoopa Reservation in northern California.
2.2.2. Major Crimes Act of 1885. This granted jurisdiction to federal courts over murder and other enumerated crimes when committed by Indians in Indian country.
2.2.3. United States v. Kagama (1886) (An Indian murdered another Indian & the Major Crimes Act is tested).
The 1885 Major Crimes Act, which granted jurisdiction to federal courts over murder and other enumerated crimes when committed by Indians in Indian country, is constitutional because the tribes are dependent on the federal government.
The Constitution gives congress “’power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’”
Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess. “These Indian tribes are the wards of the nation. They are communities dependent on the United States.” “Largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power.”
This ended Indian territorial jurisdiction in the way that Justice Marshall thought about it. This law gave the fed. gov’t the power to protect Indians (regardless of whether the Indians felt they needed protected or not). This duty to protect was transformed into a power to regulate. Trusty Duty & Plenary Power concepts both exist today.
2.3. Trust Responsibilities in Indian Country.
2.3.1. Cobell v. Norton (D.C. Cir. 2001) (Class action suit by beneficiaries of Individual Indian Money (“IIM”) trust accounts against DOI Secretary).
The fed. gov’t has the fiduciary obligation of a trustee and it breached its “trust duty.” “Because the United States holds IIM [Individual Indian Money trust accounts] lands in trust for individual Indian beneficiaries, it assumes the fiduciary obligations of a trustee.”
The “trust duty” doctrine “imposes obligations on those who administer the IIM trust lands and funds to, among other things, maintain and complete existing records, recover missing records where possible, and develop plans and procedures sufficient to ensure that all aspects of the accounting process are carried out.” “[T]he relationship between Indians and the federal government was like ‘that of a ward to his guardian.’” “’Indian tribes are the wards of the nation’ and reaffirmed that the federal government owes Indians a ‘duty of protection.’”
This is a class-action suit since the U.S. breached its trust duty to manage Indian money. There’s no doubt that the U.S. breached this duty. They did it so badly in fact that the gov’t has no record of what money they hold for some Indians. There’s no question the Indians will win, the question that remains is how much they’ll get. Congressional appropriations were inadequate to adequately fund the trust activities. What they’re really suing for is an accounting (so they can investigate mismanagement) & the government’s response is that they can’t do an accounting because of their mismanagement.
2.4. Limits on Tribal Governmental Authority.
2.4.1. Talton v. Mayes (1896) (Talton appealed murder conviction in tribal court saying the indictment was void because the grand jury was insufficient under the Fifth Amendment of the Constitution.).