Indian Country | Season 3, Ep. 14

Hello and welcome to the final episode of season three of Bound by Oath, a podcast on legal history, civil rights, and on this season property rights, brought to you by the Institute for Justice's Center for Judicial Engagement. If this is the first episode that you're listening to, please do back up and start with episode one, which is entitled Mr. Thornton's Woods.

Lotman imposed a one size fits all property rights regime on every tribe, irrespective of their individual tribal notions of private property. and to change those property rights regimes, now it requires an act of Congress

Rules and regulations imposed by the federal government make doing business in Indian country unbelievably difficult. But whether the rules actually benefit Native Americans or whether the federal government even has the constitutional authority to impose them in the first place is essentially unreviewable in court.

Everybody knows it makes no sense. There's nothing in the Constitution that authorizes this. The federal government just has this plenary power that's extra constitutional.

In Indian country, things that are taken for granted everywhere else, like the first time. And who gets to make the rules are much more complicated. On this episode, we'll explore a few Supreme Court cases, some historic and some pretty recent, that are major sources of uncertainty and confusion.

Indians knew for a very long time the federal government was not managing assets well, to put it mildly. You could see this oil well, you'd ask the federal government where's hey the revenue coming from it, and you wouldn't see anything.

And finally, we'll take a look at some historic examples of Indian property rights regimes prior to European contact. Contrary to persistent myth, Native Americans had sophisticated systems of property rights that were in the words of a Cherokee chief. admirably suited to our people.

There are some fascinating examples of property rights. They owned the parcels that they farmed and they cultivated, they invested in, they did all the things that we think ownership brings.

I'm John Ross. Thanks for listening to Bound by Oath.

Please raise your right hand and repeat after me.

Hi, Elena C. I Katanji Brown Jackson.

Without respect to personal.

Right.

To the poor and

The rich.

To the poor and to the rich.

and that I won't

Well and

Faithfully discharged.

That I will well and faithfully perform. His charge and perform.

Form.

Please, I'll be on.

Of the office on which I am about to enter.

For long periods of our history and as recently as the 1950s, the official policy of the federal government has been to break up Indian lands and destroy Indian culture and institutions. Since nineteen seventy five, however, we have been in what is called the era of tribal self determination, which has enabled tribes to rebuild and to begin to govern themselves as sovereign nations.

Congress in nineteen seventy five passed the Indian Self Determination Education Assistance Act, which creates the tribal self determination period.

That is Professor Adam Kripel of the Loyola University Chicago School of Law.

What has happened from nineteen seventy five till today? Every Congress and president has endorsed that policy and by all accounts is the only policy that's ever really worked to improve life in Indian country.

At the same time, however, tribes are still considered to be quote, domestic dependent. Nations, over which the federal government has nearly unlimited. Which is, of course, the very antithesis of self-determination and self-government. It's a dynamic that, as many scholars and even some Supreme Court justices have pointed out, is not entirely coherent.

Most land in Indian country is held in trust. And on trust land underlying titles owned by the federal government. So if you want to do anything on trust land, you have to get the federal government's approval before you can do it. If you wanna start a hamburger saying you might need a mortgage.

Also, businesses in Indian country need federal approval for virtually everything they want to do.

So if you want to open up a hamburger stand, you're probably not going to make big profits, but if you're doing a casino, you're probably expecting a load of cash, so it's worth your time to jump through all the white tape. Whereas if it's a small business, it's not worth the pain and effort.

Getting approvals is a laborious and uncertain process, and for many of the rules, no one can say with any certainty what they mean.

Twenty five USC eighty one. a leasing statute if you encumber land for seven or more years, the federal government has to approve it, but nobody knows what encumber land means. So this opens up the door to litigation and all kinds of headaches that you don't have to deal with if you operate outside of Indian country.

There are also laws that apply outside of Indian country that nevertheless impose unique burdens on the res. For instance, NEPA, the National Environmental Policy Act, under which proposed infrastructure and energy projects must undergo a lengthy and costly environmental review process. In practice, however, that process is waived over ninety percent of the time unless the project is in Indian country.

But if you're operating outside of Indian country, the federal government will often waive them. Whereas in Indian country, at least on the BIA's website until maybe they changed it recently, but it specifically said, We're not waiving any of these requirements if it's in Indian country. So who wants to do that when you just operate outside of Indian country and you're free of that regulation or it's gonna be waived? So that's just essentially another tax on doing business in Indian country.

Another source of difficulty comes from fractional ownership of Indian land. In the 1880s, Congress decided to divide up reservations and allot parcels to individual Indians, giving them at least the appearance of an ownership stake in the land. But the rights of property that ran with the land were highly restricted, and did not include, for instance, the right to say who would inherit the land when you died.

So, hypothetically, you have a hundred acre piece of parcel and you have two kids. You could ordinarily just go, Hey, I want each of my kids to have fifty acres and we're good. But how the Allotment Act worked is it didn't do like that. So rather the hundred acre parcel, each individual would have a fifty percent interest in the full hundred acres.

Today, the federal government spends more money managing allotments and just trying to keep track of who owns them than the land is worth on the private market.

Lotman imposed a one size fits all property rights regime on every tribe, irrespective of their individual tribal notions of private property. and to change those property rights regimes, now it requires an act of Congress

Nominally, the purpose of allotment was to introduce the idea of private property to Native Americans, to assist them in building their own farms and houses, and to assimilate them into American society. But as we'll talk about later in the episode, Tribes already had systems of property rights and they didn't need any lessons.

Many people think allotment's probably the most devastating piece of legislation in the world. American history regarding Indian affairs. And remember we have this legislation called the Indian Removal Act. Allotment is considered worse by most people because it just completely eradicated the recognition of Indian property rights.

Other sources of regulatory uncertainty are much more recent. For instance, the authority of state governments to tax economic activity on reservations.

Taxation in Indian country is a mess. So everybody assumes you go into Indian country and tribes are tax free, which sounds very nice, but in reality it's quite the opposite. Tribes are usually double taxed. And that really started in the nineteen eighties.

The Constitution, specifically the Indian Commerce Clause, grants Congress the power to regulate commerce with Indian tribes, which, according to the Supreme Court, makes Indian relations quote, the exclusive province of federal law. State government's powers, by contrast, are said to end where the reservation begins. And yet, the Supreme Court has allowed states to impose a lot of their own white tape.

So cotton petroleum, you have a non Indian oil company generating oil on um Hickory Apache Reservation in New Mexico. And Hickoria Apache has its own tax, I think it's six percent, and the federal government approved this six percent tax.

The federal government allowed the Hickoria Apache Nation to impose a tax on cotton petroleum to drill on the reservation. But the state of New Mexico also imposed its own tax on the same project.

Naturally, Cotton Petroleum is not happy about this, so it files suit.

The oil company argued that it paid two point three million dollars in taxes to the state over a four year period, while only receiving the equivalent of eighty nine thousand dollars in services from the state. It argued that if the state had the authority to tax at all, which was questionable, the tax had to be a bit more proportional.

And the case goes up to the US Supreme Court, and the US Supreme Court said, Of course the state can tag.

Today we hold that the state of New Mexico may also impose a severance tax on this same production of oil and gas.

Because, the court said, Congress had been silent on the issue. It had passed several laws governing how tribes could work with oil companies, but none of those laws said anything about whether states could tax non-Indians doing business on reservations.

We conclude that the Indian Mineral Leasing Act of nineteen thirty eight, which grants the tribe authority to execute mineral leases, does not include an express or implied prohibition on state taxation of non Indian lessees.

Congress hadn't said what to do, so the court applied its own balancing test, weighing the various federal, state, and tribal interests in a particular project.

Rather than abiding by the Indian Commerce Clause, that would preempt all this stuff, just categorically, now we think we need to balance the interest of the tribal government, the state government, and the federal government. It creates tremendous uncertainty.

The court had adopted the balancing test in earlier cases, but the reasoning in cotton petroleum made it much more difficult for tribes to fend off state taxation going forward.

So sure, the tribe and the feds do just about everything. But the state does provide some reasonable. services. Non-zero dollar amount of services. It wasn't taxation with no services at all. Court also said the impact of state taxation has no significant impact on tribal economies, which of course is dumb.

The Hickoria Apache tribe was not a party in the case, but they had filed a brief in which they'd argued that if the state could tax, it would seriously impact the tribe's own ability to collect taxes. It would mean that either projects would be double taxed or that tribes would have to forego taxation in order to be competitive with off reservation projects. But the court said that any effect on tribes was quote indirect and insubstantial.

The inability to tax is absolutely crushing for tribes. So if you can't tax, how do you fund schools, roads, bridges? How do you pay for cops? That's why houses in Indian country don't have running water and electricity oftentimes, because the tribe doesn't have money to provide basic infrastructure because it cannot tax.

It also creates an incentive for tribal governments to start their own businesses.

So casinos being the best known manifestation of this. If you can't tax, you have to generate money some way, so tribes start their own businesses. To fill the tax voice. So unlike Vegas casinos that are privately run enterprises, the revenues goes to fund the tribal government. And that's another thing too. Tribes don't get to control how the money is spent from the casinos. The feds have to approve how tribal gaming revenues are spent.

Another way that the modern court has sown confusion and disorder is that it has stripped tribes of their ability to make and enforce laws on their own land.

Due to various Supreme Court cases, tribal jurisdiction has been severely restricted over non Indian, so if a non Indian goes on the reservation and does something, oftentimes the tribe legally has no remedy, or they have to turn to the federal or state government to try to get the law enforced.

For instance, the case of Olafant Visukwamish Indian tribe decided in nineteen seventy eight.

The Sequamish Indian tribes located outside of Seattle, and they were having an annual celebration, the Chief Seattle Day celebration. Late one night, mister Oliphant gets a little drunk and disorderly, so the cops are called, and the tribal police are the only ones around. So they show up to arrest Olaphant, and he proceeds to assault the cop. As you might imagine, punching cops is illegal under Saquamish law, so the Sequamish proceed to arraign Mr Olafant for this offense.

While Congress has given the federal government and state governments jurisdiction over some crimes committed in Indian country, tribal authorities had retained their own jurisdiction to prosecute crime. It wasn't something that happened too terribly often until the 1970s, because until the era of tribal self-determination, tribes had been unable to set up the institutions necessary to do that.

And at the time, it's worth noting, the max sentence the tribe could impose was six months in jail and a five hundred dollar fine, which is a pretty light sentence for punching a cop. So that was the max the tribe could have done under federal law. However, Olafant said this is an outrage. The tribe cannot prosecute me because I'm not an Indian.

But then Mark Oliphant appealed to the Supreme Court, which took up the case and combined it with that of another non Indian petitioner who, in a separate incident, led Suquamish tribal police on a high speed chase and then rammed into a tribal police car. Interestingly, that second petitioner had a passenger in his car, none other than Mark Oliphant.

In an opinion filed today we reverse the judgment of the Court of Appeal.

The tribe had argued that its treaty with the United States did not say anything about surrendering jurisdiction to prosecute crime by non Indians. Bye.

Respondents that is the tribe do not point to any treaty provision or congressional statute giving the Sequamish Indians criminal jurisdiction over non Indians. Instead, they contend that Indian tribes have inherent jurisdiction to try non Indians as part of their original sovereignty. By submitting to the overriding sovereignty of the United States, Indian tribes necessarily gave up their power to try non Indian citizens of the United States except in a manner acceptable to Congress.

The court said that allowing tribal governments to prosecute non Indians was inconsistent with their status as something less than sovereign.

And its reasoning is quite dubious to put it mildly.

The court said that historically, Indians had been understood to have given up jurisdiction. But the evidence it relied on was thin, and the court ignored contrary evidence. For instance, the court pointed to a bill that was proposed in Congress in eighteen thirty four that said tribes might not have criminal jurisdiction over non Indians. But the bill was rejected and did not pass into law.

That was the only legislative statement it had supporting its cause. and it found another eighteen thirty four report that it cited saying tribes are lawless. But if you read the full report it specifically says the non Indians on tribal land are subject to tribal jurisdiction.

The court also relied on language from a treaty, but bizarrely, not the treaty with the Sequamish.

It didn't examine the Sequamus Treaty, it examined the Choctaw Treaty. So that's really interesting legal jiu-jitsu.

So that's not great. Nor are the real world effects of the Olifant decision.

The outcome of Olafant was spelled out in the opinion actually in the last paragraph of the opinion the court note. We are very aware of the prevalence of non-Indian crime on Indian reservations. The court says that's not our problem. Congress can solve it if it wants. So what you see after that is unsurprising. Non Indians know they're immune from tribal jurisdiction, so they go on the reservations and commit crimes.

Neither petitioner was ever prosecuted in federal court, and crime on reservations, particularly violent crime committed by non Indians, remains an enormous problem. Nevertheless, there is real pushback to the idea that tribes should be able to police crime on their own land.

That's the big fear that non Indians are gonna be railroaded in tribal courts, that tribes are just gonna go rogue and implement some peculiar sentencing ritual and just think about it from the tribal perspective. There's lots of incentives for tribes to treat non Indians fairly because who controls Congress and the political ramifications would be really bad. Not to say that no tribe's ever gonna do something bad, but

Probably not practical to think that most tribes just want to go rogue and start prosecuting non Indians. It's not politically smart.

Another complicating factor is that as a result of allotment, many reservations today look like checkerboards, where it's nearly impossible to tell based on where you're standing if the tribe or the state or the federal government has jurisdiction.

You open up a strap on the reservation, somebody goes steal from you. What cops do you call? The tribal police, the state police, the federal police? It's incredibly inefficient. It creates all this uncertainty.

What is also bad for business is that the Supreme Court later expanded on its ruling in Oliphant to restrict tribal jurisdiction over civil matters. And one result of that is that if parties doing business in Indian country have a dispute, it can take years of litigation just to decide where the case should be heard. For instance, the case of Dollar General, the Mississippi Band of Choctaw Indians.

The Mississippi Choctaw is a great example of how tribal economic development benefits everybody. Philip Martin became chief in the nineteen seventies, implemented numerous reforms that helped the tribe become a great employer in the state. It has lots of businesses, a couple of casinos, but it also has manufacturing, numerous other substantial businesses.

One business that was attracted to the reservation was Dollar General, which opened a store.

So to do it it entered a lease with the truck. And the lease agreement specifically said all disputes will be adjudicated in the Choctaw Tribal Court. And all disputes will be governed by Choctaw law, which should be pretty standard. If you want to do business in Missouri, you're probably going to follow Missouri law and have Missouri court. So, pretty standard provision.

The federal government had jurisdiction, but it declined to prosecute.

So what the family decided to do was file a civil suit in tribal court. And Dollar General contested tribal jurisdiction, saying the tribal court was unfair, a sham and all this stuff.

Its judges had degrees from top notch law schools, one was a law professor, one had argued before the US Supreme Court. And Dollar General would later change its tune, acknowledging an oral argument in front of the Supreme Court. That the tribal court is completely legitimate.

So the argument wasn't about the fairness of the particular court, it was that some tribal court might be unfair.

In federal district court, the tort claims against the store manager were dismissed because the court said the manager had not consented to being sued in tribal court. But Dollar General had, and on appeal to the Fifth Circuit, that ruling was affirmed.

In a two to one decision, it said, Of course, you can have jurisdiction over this case. They consented to tribal jurisdiction. The lease specifically says we're gonna govern all these things under tribal law. And one of my favorite footnotes in uh modern court history, Dollar General says this could be unfair. The Fifth Circuit wrote, We assume Dollar General knew child molestation was illegal under Cha Ta law.

The dissent, on the other hand, thought the idea of hailing non Indians into tribal court, even if they'd agreed to it, was beyond the pale.

But one of the Fifth Circuit judge says this is the craziest thing he's ever heard of having a non Indian company subject to tribal jurisdiction. And it got appealed to the US Supreme Court.

The court heard oral argument in twenty fifteen, and it was apparent that several of the justices were concerned about potential impacts of ruling in favor of tribal jurisdiction.

Because tribes are not governed by the due process clause.

Yes, but they are governed.

Unconstitutional.

Okay.

Correct, but Congress has brought the due process clause to tribes in the form of ICRA.

Under federal law, tribal courts must abide by constitutional protections and safeguards we all recognize. Not as a matter of first principles, it's just part of the deal that Congress imposed on tribes if they want to have tribal courts. But the idea that a non Indian might be subjected to unfair procedures or unfamiliar tribal law seems to have a lot of purchase.

As a general matter, does it violate due process for a non member to be subjected to a jury verdict with a jury consists solely of tribal members?

Well first of all that's not necessarily what's going on here. There's no jury

I understand that, but it's kind of a yes or no question.

Ultimately, the court did not issue an opinion. Justice Scalia died after oral argument, and the remaining justices split four to four. Which meant the tribe's victory at the Fifth Circuit remained intact. But big questions are still unanswered.

So this leaves open the question, when do tribes have jurisdiction? It literally said we consent to tribal jurisdiction for all events arising from this dispute on this reservation. But we just don't know'cause it's split four to four. Forum selection clause and choice of law provisions are almost always unblinkingly enforced by courts, but when a tribal court's involved, federal courts are not so sure.

And because the Supreme Court has said that parties must exhaust their remedies in tribal court, Parties to a business dispute must first litigate in tribal court, often spending years on appeals and racking up legal fees the whole time, only potentially to find out that they were in the wrong court. In the dollar general case, it took ten years of litigation just to answer that threshold question.

So it creates lots of uncertainty, which further undermines business development. Because again, do you want to spend ten years trying to figure out which court to litigate your tort in?

Another major impediment to prosperity in Indian country is the federal government's hundred-plus-year-old practice of mismanaging Indian property. Property that the federal government holds in trust as guardian, steward, and fiduciary of Indians' interests. For example, the case of United States versus Navajo Nation.

So Navajo Reservation, it's vast, it's basically the size of Ireland or West Virginia, and it has lots of natural resources on its reservation, coal, oil, gas, uranium. And to lease those minerals, federal approval is required.

Today, the Navajo Nation is also home to abject poverty, on par with developing countries. And you can see why. In the 1960s, a coal company entered a lease agreement with the Navajo to mine coal on the reservation at royalty rates that were far below the prevailing market rates paid to property owners off reservation. By nineteen eighty three, the lease had generated one hundred and forty seven million dollars for the Peabody Coal Company, and only two point seven million for the Navajo.

So Navajo wants to renegotiate this lease, and Navajo is trying to get the same rate as the nearby private landowners for its coal.

Coal, and the local Bureau of Indian Affairs office agreed. The Navajo should get what surrounding property owners were getting, Peabody Coal should pay no less than twenty-five percent in royalties.

However, when the local BIA transfers that to the DC Bureau of Indian Affairs, it says, oh, Navajo should get twenty, which has not explained why. They came with the twenty, but just five percent less than everybody else. But still Peabody Cole was not very happy with this. So Peabody Cole hired the former Secretary of Interior's roommate to go talk to the Secretary of Interior about this potential lease increase.

Peabody hired a lobbyist who was a close personal friend to the Secretary of the Interior, the highest official in the Interior Department, and not the sort of person who would usually get involved in a leasing dispute. But that's what the Secretary did.

So what it amounted to was the Secretary of the Interior and Peabody Cole negotiating against the Navajo Nation on this lease rate increase. And the Navajo, no matter what it wants to do, it cannot get a rate increase or any rate it wants. The Secretary of the Interior has to approve it. And the Secretary of Interior says the most I'm gonna do is twelve point five percent.

The Navajo did not know about any of those backdoor dealings and That didn't come out until about ten years later when the lease was again up for renewal and some documents inadvertently came to light.

So Navajo decides to file a lawsuit in federal court. And the Federal District Court said the federal government has violated every basic fiduciary duty there could be by dealing with Peabody Coal in this way. And the Federal Court of Appeals said says clearly this is a breach of the federal government's trust obligation with the tribes.

The Navajos sued the federal government seeking money damages, and in 2001, the U.S. Court of Appeals for the Federal Circuit. said that money damages are an available remedy and that the suit could proceed. There is no plausible defense for a fiduciary to meet secretly with parties having interests adverse to those of the trust beneficiary, adopt the third party's desired course of action in lieu of action favorable to the beneficiary.

Mr. Needler, could I just go back for a second to the Secretary's private communications with the coal company? Is it your position that did not breach any fiduciary obligation whatsoever?

Did not it did not breach a legal fiduciary obligation. There is a sense in which everything that the Secretary of the Interior does, or for that matter everything the United States government does. with respect to Indians is is of a fiduciary nature in a moral sense, in a political sense.

At the Supreme Court, the government argued that of course the government has a moral and political duty to protect tribal interests. But that didn't mean it had an enforceable legal duty. Maybe the tribe could file a different kind of lawsuit, the government said, but it couldn't seek money damages.

Certainly it was unfortunate.

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And is there any other remedy for the tribe potentially?

As a remedy against the United States, the only suit would be conceivably an APA action.

Is there any rule, regulation, or anything in the APA that forbids an extraordinary?

No, there's not. And I didn't mean to imply that an APA suit would be successful. All I meant to say is that that would be the avenue in which to test that.

Unfortunately, in 2003, the Supreme Court gave the Secretary a pass.

The Supreme Court, however, says Oh nothing to see here. Sure. Peabody might have done some questionable things, the Secretary of the Interior might not have been on the up and up. However, there was no statute. that the Secretary of the Interior violated. That is, no law specifically said the Secretary of the Interior couldn't go talk to private parties about how to screw over the Navajo, since there was no law saying it couldn't do this, nothing to see here.

Congress did pass a law in nineteen thirty eight called IMLA, the Indian Mineral Leasing Act, which gave the BIA the authority over mineral leases on Indian land for quote, the protection of the interests of the Indians, end quote. But the Supreme Court said that nothing in IMLA told the Secretary not to participate in secret meetings to undermine the interests of the Indians.

Nothing in the MLA or its regulations proscribed a secretary from communicating ex party with Peabody or with the tribe. Furthermore, at the times relevant here, neither the Imla nor its implementing regulations expressly directed the Secretary to pursue the best interests of the tribe over those of the Kolessie.

The decision came down to something we've talked about before sovereign immunity. You cannot sue the federal government without its consent. And the court held, Congress has not given consent to be sued for violating its trust obligations.

However one might appraise the Secretary's actions, we are bound by this positive precedent. No relevant statute or regulation allows us to conclude that the Secretary's conduct violated an obligation enforceable against the United States in an action for damages.

Interestingly, on remand, the Court of Appeals again ruled in favor of the Navajo, holding that other laws that the Supreme Court hadn't considered did indeed waive sovereign immunity. But the Supreme Court took up the case again, and in two thousand nine it reversed.

Once again we reverse. The three statutes that the Federal Circuit relied upon do not provide any more sound of a basis for the tribe's breach of trust lawsuit than those we considered and rejected the first time we considered this case. Nor can the government's control over Indian coal, standing alone, create fiduciary duties enforceable in suits for money damages.

In total, the tribe estimated its losses from the Secretary's machinations at more than$600 million.

Indians knew for a very long time the federal government was not managing assets well, to put it mildly. You could see this oil well, you'd ask the federal government where's hey the revenue coming from it, and you wouldn't see anything.

In addition to signing off on tribal government deals with non-Indian companies, the federal government also directly collects revenues from oil, gas, coal, minerals, timber, farm, and the market. grazing, and more on Indian land, and has for over a hundred years. That money was supposed to be held in trust in interest-bearing accounts and First to tribes and to individual Indians. But for decade after decade,

Yeah.

Billions upon billions of dollars disappeared into the ether. And round after round of investigations and reports by Congress. by the Government Accountability Office, the Office of Management and Budget, by the Interior Department's Inspector General, and others, condemned the BIA for not knowing basic things like How many trust accounts it should have, and how much money should be in them. As did Indians themselves.

Eloise Cobell, one day she asked the local Bureau of Indian Affairs agent about that, and the BIA told her, Oh, you're just a girl. You're not competent enough to understand math. So she goes off get an accounting degree, she starts a bank.

My parents lived on the Blackfeet Indian Nation and people would gather. We didn't have T V, telephones, nothing. So people would gather and they'd talk about if I could get my money, I'd buy my children some school clothes. And I think that I was very young, like five years old, and I kept thinking in my mind How come they can't get their money?

That is Eloise Cobel, speaking at Dartmouth College. Eloise would become the lead plaintiff in a class action, trying to find out where the money had gone. She was born on the Blackfeet Reservation in Montana, surrounded by desperate poverty. Three of her siblings did not live to adulthood.

And then I became the treasure of the tribe and I once again started looking at simple statements. I couldn't make any sense of the statements that were coming in on the tribal trust funds. Putting that aside, individual Indian people would come to me and say, Can you write a letter? I need my money from the agent. I'd write letters and it was always just they'd never return letters, never get an account statement. So you knew something serious was wrong, said

And not just on one reservation.

And I had traveled throughout Indian country and just seen the effects of what was happening. And I remember this lady we brought her in to testify from Navajo. Two oil wells are pumping right above her house. and they were polluting a little stream that she had for her sheep and killing her sheep and They weren't getting any money, so she said her and her husband took their little toolbox, went up there, and shut everything off.

Thank you.

Shut the whole well down. And she said all kinds of BIA police surrounded them. They couldn't get'em to do anything about the pollution and not getting any money, but once they shut the oil company down, they had all kinds of attention. But people at home, we have a lot of oil and gas at home and they're living in shock.

In nineteen ninety-four, after years of hearings and reports detailing the problems with trust accounts, Congress passed the American Indian Trust Fund Management Reform Act, ordering Interior to put things right. But Eloise Cobell had gone to Washington, DC over and over and after years of pounding the pavement, it had become clear that the Interior Department had no intention of complying.

They finally set a meeting up to the And I remember going to the Department of Justice and it was all attorneys. Department of Justice attorneys, Department of Interior attorneys. And I just couldn't believe it. And the fellow that was running the meeting, he said, Now Eloise, don't come in here with any false expectations and I just got so angry. I just said, you ought to be ashamed of yourself.

Mm.

in nineteen ninety six. And this time sovereign immunity was not an issue, because Eloise and the other plaintiffs were not asking for money damages for past wrongs. Rather, relying on the nineteen ninety-four legislation, they were asking for an accurate accounting of their individual trust accounts going forward. Which isn't to say that the government didn't try to get the case thrown out on sovereign immunity grounds, they just didn't see it.

By many accounts it's the largest class action ever filed. There are at least three hundred thousand plaintiffs, but many think there could have been over five hundred thousand Indian plaintiffs who were aggrieved. Part of the reason we don't know is the federal government's records are just so screwed up.

The government also argued, perhaps not unreasonably, that while Congress had ordered the BIA to clean up its act, it hadn't actually provided the funding necessary to do that. And indeed, the federal judge who heard the case was initially very sympathetic. But that sympathy evaporated over the course of the litigation.

Years of litigation. A lot of them were deviations where the government start destroying all the documents, individual Indian records. and we had a protective order over them. And Secretary Babbitt and Secretary Rubin were both held in contempt of court for destroying documents.

Not only did the government fight tooth and nail on every conceivable issue, it also destroyed records, ignored court orders, and lied to the judge, which eventually got them in a little bit of trouble.

And interestingly, the case is assigns to Judge Royce Lamberth, who's a Reagan appointee. And Judge Lamberth is basically just flabbergasted at how bad the federal government is mismanaging Indian assets. In one of my favorite quotes from the Cobel litigation, he says, If the Department of Interior is willing to lie to this court, why would anybody think the Department of Interior would be hesitating to lie to Indians?

They constantly, constantly want it to lie and deny about any accounting. Oh yeah, we can do any accounting. In the meantime they're destroying documents.

In two thousand five, Judge Lamberth issued an opinion lambasting the department. Quote The entire record in the world. Tells the dreary story of Interior's degenerate tenure as trustee delegate for the Indian Trust. A story shot through with bureaucratic blood.

Fowl ups, and peppered with scandals, deception, and dirty tricks, and outright villainy, the end of which is nowhere in sight.

Fashion Cultural genocide against the Indians are merely the echoes of a horrible bigoted government past. serves as an appalling reminder that the terrible power of government and the frailty After that, a federal appeals court, while agreeing that the Interior Department's conduct had been quote deposited. Ignominious and incompetent. Granted the government's request to have Judge Lamberth removed from the case for lacking objectivity. And ultimately, after over fifteen years of litigation.

With the government agreeing to pay$1.4 billion to class members, about$500 for each individual plaintiff who owned Trustland, plus more for certain others. Which again was not a damages award. It was just a very tiny fraction of the money that should have been in their accounts between nineteen ninety four and two thousand nine. The settlement also included a big chunk of money to buy back fractionated land.

Individual Indian claimants, after over a century of mismanagement of their assets, got five hundred bucks apiece.

It should be a lot more, but it's probably as fair as we're gonna get with the United States government.

Sadly, in 2011, less than a year after the settlement was signed off on, Eloise Cobel died of cancer. The government never actually did provide an accounting. Today, the BIA has taken some positive steps to modernize and better manage individual Indian money accounts, though it is still not following best practices. At least according to a GAO report from twenty twenty three.

Spotted Tail is the US government's favorite Sue, to put it simply. He's a complicated character, and basically he saw The US government had a lot more people and a lot bigger guns, so they give him lots of power. He determines rations on the reservations. He has his own house. So he's doing well where basically everybody else is living in squalor.

Spotted Tail had been a successful war leader, but he'd been imprisoned and during that time learned English, and ultimately he decided that the best path forward for the Sioux was to concede much of the tribe's territory to the US government. And that is perhaps why another Indian named Crow Dog murdered him, although other motives may have been present as well.

He was sleeping with other tribal members' wives, and this does not go over well. So one of the more traditional Sioux, Crow Dog, decides to kill Spotted Tail. and this is resolved pursuant to sue custom. The family of the murderer and the victim get together and work out a settlement or a restitution. And the payment was six hundred bucks, eight horses and a blanket. The blanket being a metaphor for things are covered up and we're good to go.

But the federal government was not. Up until that point, an Indian committing a crime against another Indian in Indian territory had been Indian business. But officials at the Bureau of Indian Affairs had been trying to get those crimes prosecuted in federal court. As a part of their effort to control Native Americans and to destroy and replace tribal law.

So the US attorney from Deadwood comes in and decides to prosecute Crow Dog for the murder of Spotted Tail. And Crow Dog is sentenced to hang before an all white jury and his English isn't so great either, so the fairness of his trial is questionable.

After the trial, he was allowed to return to the reservation to put his affairs in order on the condition that he come back to be hanged.

And there's a blizzard right before he's supposed to come back, and who's gonna ride two hundred miles through a blizzard to be hanged? Turns out Crow Dog's that guy. So when Crow Dog shows up, now the local whites are kind of reassessing their stereotypes about Indians. They must have some kind of sense of honor and morality if you're gonna keep your word, if it means being hanged.

The government's treaty with the Sioux did not authorize the prosecution of crimes among Indians. Nor had Congress ever passed a law purporting to give federal courts jurisdiction over such crimes. So did the federal government even have the authority to prosecute in the first place?

And the Supreme Court said no, it cannot, because there's no treaty that gave the federal government power over this case, or there's no statute.

In addition to the lack of authority, the Supreme Court also cited basic fairness, or at least what passed as basic fairness in the 19th century. Quote. It tries them not by their peers, nor by the custom of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception.

It says the whites are superiors of a different race, and it wouldn't be fair to have Crow Dog or any other Indians subjected to the white man's morality versus the red man's revenge, which is also interesting to note. The white man's morality? Hang on. The red man's revenge, let's restore harmony to the community.

After the decision, Crow Dog was released and he returned to the reservation. Interestingly, the line level officials at the Bureau of Indian Affairs did not at first abide by the Supreme Court's decision, which resulted in the imprisonment of none other than Spotted Tail's son, who was also named Spotted Tail. He had killed a horse thief, and once again the matter had been settled by Sioux tribal law.

you get a few federal responses. One is the creation of Federal Courts of Ending Offences, now known as the Code of Federal Regulations Courts, and they continue to this day.

Without any authorization from Congress or consent from tribes or The Bureau of Indian Affairs just on its own created its own courts to prosecute Indians, including for things that were not crimes, like adultery, or refusing to abandon traditional practices like sundancing and healing ceremonies. Those courts still exist today, though now they are focused on actual crimes.

In addition to the courts of federal regulations, Congress decides to pass a major crimes act.

In eighteen eighty six, Congress, at the urging of the BIA and for the first time, claimed jurisdiction over crime among Indians on a reservation, turning murder and six other major crimes into federal crimes. And very soon thereafter, federal officials got a test case up to the Supreme Court, which involved the murder of a Euroc Indian by another Euroc in Northern California, the case of United States V. Kagama.

In California where the Kakama case arose, things were really bad to put it for Indians mildly. California was actively paying for Indian scalps. I guess it worked pretty good because they increased the bounty from twenty five cents a scalp to five dollars a scalp.

In the decades preceding the case, something like eighty percent of the Indian population of the state perished from war, disease, starvation, and outright murder.

And there was laws to legally authorize the slavery of Indians, they didn't call it slavery, but was for the welfare of the Indians to keep them as an indentured servant without paying them, but it was slavery for all intents and purposes. And many tribes in California still remember those times very vividly.

In eighteen eighty-six, the federal government finally came across the murder of an Indian in California that it wanted to punish.

Interestingly, a property dispute. A Eurot guy stabbed somebody on the reservation because he wanted that piece of property.

city with homes, gardens, orchards, and fishing spots all privately owned. And the tribe's criminal law was property based as well, according to the anthropologist Alfred Craig. Quote Every injury and offense can be exactly valued in terms of property. Every invasion of privilege or privilege. must be exactly compensated. End quote. But the Eurox traditional system Property rights had been disrupted by the BIA, which had begun to allow the

And Kagama's argument, the Indian defendant, was, hey, I'm guilty of sin, but you don't have the power to pass this law. The federal government responded by saying, Oh yes, we do. We have this thing called the Indian Commerce Clause, which grants Congress the power to regulate commerce with the Indian tribes. And that's the federal government's only constitutional argument.

It is a basic fundamental principle of American law that the federal government has limited powers that are spelled out in the Constitution. And the provision authorizing Congress to regulate commerce with Indians doesn't really seem to cover prosecuting crimes among Indians.

The Supreme Court agrees the Commerce Clause doesn't do this, it says that would be a quote very strained construction of the clause, to assume that Commerce Clause gives Congress the power to regulate murder on an Indian reservation.

Nevertheless, the court sided with the government and it upheld the Major Crimes Act.

Because the federal government has a plenary power over the Indian tribes because Indian tribes are quote the wards of the nation. They depend on the federal government for its protection. So because they're dependent on the federal government, the federal government has this duty to look after Indian tribes, even if there is no constitutional authority to do it. And that remains the law.

The court said that while there may not be any constitutional basis for it, the federal government has plenary power to do what it will when it comes to Indian affairs. not only to punish crime, but in very short order the plenary power was used to break treaties and confiscate millions upon millions of acres of Indian land. And it was said, for Native Americans owned good.

Everybody knows it makes no sense. There's nothing in the Constitution that authorizes this. Clarence Thomas, who's not exactly the greatest proponent of tribal sovereignty, says this is clearly based upon racist ideas. Unfortunately, that's what the plenary power doctrine comes down to.

Justice Thomas has said that the plenary power doctrine is The idea that tribes are on the one hand sovereign nations, while also on the other, properly subject to all-encompassing, unbridled federal control, is quote, schizophrenic. Justice Gorsuch, meanwhile, has called the doctrine an a-textual and ahistorical mistake. And with all that in mind, it might not surprise you to learn that there is an ironic postscript to the case.

Prior to contact with Europeans generally, Native Americans certainly had a variety of property rights. They owned a bow and arrow that they made. They owned the pottery that they made, material property, personal property especially, that were owned by individuals. And then some property was owned by the family or the clan. The teepee was typically owned by the wife.

That is doctor Terry Anderson, the John and Jean Denult Senior Fellow at the Hoover Institution at Stanford University, and the leader of the institution's project on renewing indigenous economies.

They didn't, however, have much top down governmental, if you will, or tribal property. Tribes had territories, the Blackfeet territory in Montana was a place that no one else dared go. when the Lakota Sioux moved onto the plains. They controlled much of the plains as their territory. But there was no sense that the tribe owned the property. Within the tribe, there again were families, clans and various smaller groups that had what today we'd call property rights.

Contrary to persistent myth, tribes did not own all land and property in common.

It's clear from the history that sedentary tribes, those that stayed more or less in one place and grew crossing. had more secure land tenure rights, property rights, than did the more nomadic tribes that, for example, roamed the plains killing buffalo. And it's pretty easy to understand why. You can define the boundaries of a piece of land that you're going to have a farm on, and in the southwest they mark those boundaries with stones, and the stone would have carved on it

One thing that happens when you own property is that you invest in it.

I had the good fortune of touring the Mountain Ute Private Park. They own the park within their boundaries, and I was standing in the midst of a cliff dwelling, my wife and me and the native guide to the And it just occurred to me the investment that had to be made to build these buildings up on cliffs and these corn storage bins where they kept corn for years.

There are many examples of capital-intense large-scale operations. Indians built cities like Cahokia near present-day St. Louis, which was bigger than Paris and London in 1200 AD. In Chaco Canyon in New Mexico,

There are some fascinating examples of property rights. Let me focus a bit on the Pacific Northwest'cause they had what are now known as clam gardens, the area of beach where somebody cleared away the big rocks that were there. and hauled in the kinds of materials, smaller pebbles and sand, that would provide habitat for clams to grow. They would even bring in clam seeds and plant them.

Many of the details of the many various indigenous property rights systems have been lost to history. But not entirely. One tradition in the Pacific Northwest that is often pointed to as a rejection of property and evidence of redistribution is, doctor Anderson argues, actually the opposite, and even constituted a form of insurance.

The potlatch in the Pacific Northwest is a perfect example of this. The potlatch was a time when people would gather in the big long houses that were built from huge cedar planks. And in some cases the owner who had had a very prosperous salmon run and was quite wealthy and had managed resources well to get wealthy would actually give away much of his wealth. And in some cases would even destroy some just to demonstrate how rich that person was.

In his book, doctor Anderson argues that robust property rights systems were part of flourishing indigenous economies with high standards of living and vast trading networks.

My favorite example from the Lewis and Clark Journals is that when Lewis and Clark spent their first winter in the Mandan villages of North Dakota, they had a blacksmith with them, and he made trade access. Now these trade axes were very valuable. Who wouldn't want an axe instead of a stone? So they traded these in the Mandan villages to get food, blankets, horses.

There are many such examples. Shark teeth from the Pacific Ocean. Made their way to Cahokia, cocoa beans from Central Africa. made its way to Chaco Canyon in present day New Mexico. Copper from the Great Lakes made its way to Florida. Native Americans had trade languages. If you spoke Mobilian, you could trade with tribes from East Texas to North Carolina. If you spoke Chinook, you could trade with tribes from Northern California to Alaska.

The project that I direct at the Hoover Institution is entitled Renewing Indigenous Economies. And people often ask what's the renewing part? They can understand what it means to have an economy on a reservation, but what's the renewing part? Renewing requires tribes getting more control, getting more autonomy.

So that is our show. There are still many challenges in terms of restoring property rights and raising the standard of living in Indian country, but for both of our interviewees, their main argument is that restoring tribes' ability to self-govern is the only thing that will work.

The idea of privatizing the res it still has cachet. In some policy circles, tribes are poor, they've got trust land. If we privatize it, they can get rich like everybody else. There's a couple of problems with that, one being It confuses property rights with jurisdiction. So how it works now is you know, if land is held in trust, tribes have jurisdiction over it. If it gets placed in fee simple status, the state is gonna have jurisdiction over it.

Under current law, if land ceases to be held in trust and it's sold to a non Indian, tribal governments lose sovereignty over it, and it becomes part of whatever state where the reservation is located.

What you could do and I think would be something many tribes would be interested is hey, Congress passed this law saying, call it the Tribal Property Rights Act, where essentially each tribe could design their own property rights regime. Some of'em could look like Louisiana, some of them could look like California. They'd come up with something completely new.

That would spell the end of the one size fits all policy of allotment, and it would allow tribes and individual Indians to experiment with ways to put property to peaceful and productive use.

But if I had my druthers, we'd just treat tribes like other American governments. If you go to the Cushado Reservation you just follow Cushado law just like you would anywhere else. If we think federalism and jurisdictional competition are good, you know, this would add to the system.

On this podcast, we actually are a little more sympathetic to the idea of governments going wild and legalizing everything. at least in cases where there is no legitimate health and safety rationale for a given restriction. But be that as it may, what we hope you'll take away from the next Next time you hear about an Indian law case in the news or in the

Is the government or the court intent on treating a tribe or individual? As a dependent and a ward of the state, Or just tribal self determination?

Bound by Oath is a production of the Institute for Justice's Center for Judicial Engagement. This project was edited by Casa Lee and Charles Lipper at Volubility Podcasting. The episode was produced by John Ross. With special thanks to Professor Richard Minette for providing background on the Cobell litigation. In addition to the work of our interviewees, Adam Krippel and Terry Anderson, we also relied mightily on the scholarship of Sarah Krakoff, Sidney Harris, Armen Merging.