Cabazon at 30: Do the Canons of Construction of Federal Indian Law Remain Viable?

by Ralph A. Rossum, author of The Supreme Court and Tribal Gaming

This spring marks the thirtieth anniversary of the United State Supreme Court’s decision in California v. Cabazon Band of Mission Indians (1987), the landmark decision that gave the nation tribal gaming. The most recent statistics available from the National Indian Gaming Commission show what an enormous impact Cabazon (along with the Indian Gaming Regulatory Act [IGRA] of 1988) has had:  In 2015, 238 gaming tribes with 474 gaming facilities operating in 28 states generated $29.9 billion in gross revenues. These revenues have helped to promote tribal economic development and self-sufficiency and to fund strong tribal governments.

The Court ruled on behalf of the Cabazon Band because it employed long-established canons of construction of federal Indian law; it construed ambiguous language in Public Law 280 to the tribe’s benefit and held that California could not exercise civil-regulatory jurisdiction in Indian County. But, perhaps because of the financial success of the gaming tribes and their aggressive use of casino profits to influence the political process, advance tribal interests, and negotiate more favorable state-tribal gaming compacts (through lobbying, campaign contributions, endorsement of candidates, and political organization), the Supreme Court since Cabazon has become decidedly less inclined to employ these canons to the tribes’ advantage. With one exception, the Court has handed the tribes one defeat after another.

The one exception is United States v. Lara (2004). In Duro v. Reina (1990), the Supreme Court held that an Indian tribe lacked sovereign authority to prosecute Indians who were not members of that tribe. Disagreeing with that decision, Congress the next year amended the Indian Civil Rights Act of 1968 in order to “recognize and affirm” the “inherent power” of Indian tribes to exercise criminal jurisdiction over “all Indians.” In Lara, the Court held that this congressional recognition was a relaxation of previous restrictions that Congress had placed on the exercise of the tribes’ inherent sovereign authority and not a delegation of federal prosecutorial power to them, and that, therefore, a federal prosecution of Billy Jo Lara for assaulting a federal police officer did not violate the Double Jeopardy Clause of the Federal Constitution’s Fifth Amendment, where he had previously been prosecuted for and convicted of “violence to a policeman” under the law of an Indian tribe of which he was not a member. The Court’s decision was, from the tribes’ point-of-view, a gratifying re-affirmation of the concept of inherent tribal sovereignty.

Lara dealt with the criminal jurisdiction of tribal courts. Four years later in Plains Commerce Bank v. Long Family Land and Cattle Company (2008), the Supreme Court addressed the civil jurisdiction of tribal courts, and, by then, its turn against the tribes was clearly apparent. Plains Commerce Bank, a non-Indian bank, sold land it owned in fee simple on the Cheyenne River Sioux Indian Reservation to non-Indians. The Longs, an Indian couple who had been leasing the land with an option to purchase, claimed the bank discriminated against them by selling the parcel to non-Indians on terms more favorable than the bank offered to sell it to them. The couple sued in tribal court, claiming discrimination, breach of contract, and bad faith. Over the objection of the Plains Commerce Bank, the tribal court concluded that it had jurisdiction and an Indian jury ruled against the bank. The court awarded the Longs damages plus interest and also gave the Longs an option to purchase that portion of the fee land they still occupied, nullifying the bank’s sale of the land to non-Indians. In a 5–4 decision, Chief Justice Roberts emphasized how limited the Court’s understanding of tribal sovereignty was; he underscored that “tribes do not, as a general matter, possess authority over non-Indians who come within their borders,” and pronounced that “this general rule . . . is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians.”  He noted that “our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it.” On that basis, he held that the “Tribal Court lacks jurisdiction to hear the Longs’ discrimination claim because the Tribe lacks the civil authority to regulate the Bank’s sale of its fee land.”

In the spring of 2008, I attended a conference on tribal sovereignty at the Columbus School of Law at the Catholic University of America; the Plains Commerce Bank case was about to be argued before the Supreme Court, and several tribal leaders and their attorneys were present. I learned from their commentaries that parties filing amicus briefs on behalf of the Long Family were admonished to avoid using the term, tribal sovereignty, for fear that the Court’s reaction to its use would be negative.

In Carcieri v. Salazar (2009), the Court was called upon to interpret the provision of the Indian Reorganization Act of 1934 (IRA) authorizing the secretary of the interior to acquire land and hold it in trust “for the purpose of providing land for Indians.”  The IRA defines Indian to “include all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction.” The Narragansett Tribe in Rhode Island, which lost federal recognition in 1880 but regained it in 1983, asked the secretary of the interior to accept land into federal trust to reestablish its reservation, and the secretary complied. The tribe asserted that it would use the land to build apartments, but the State of Rhode Island worried that the Narragansett might also use it to build a casino and that it would lose real estate taxes if the land were placed in trust. Consequently, Rhode Island sued, arguing that the secretary lacked the authority to acquire the land in question because the phrase now under Federal jurisdiction meant under jurisdiction in 1934 when the act was passed. The lower federal courts concluded that the meaning of now was ambiguous (because now could mean currently) and that under the canons of construction customarily applied under federal Indian law, the IRA was to be liberally construed in favor of the Indians, with all ambiguities resolved in their favor, and with tribal property rights and sovereignty preserved unless Congress’s intent to the contrary was clear and unambiguous. The Supreme Court, however, reversed. Justice Thomas declined to apply the canons and held for a six-member majority that “the phrase ‘now under Federal jurisdiction’ refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment.” Interestingly, Justice Stevens, who dissented in Cabazon in which the canons of construction were applied, dissented here because they were not: “The Court ignores the ‘principle deeply rooted in [our] Indian jurisprudence’ that ‘statutes are to be construed liberally in favor of the Indians.’ See Cohen[‘s Handbook of Federal Indian Law] §2.02(1), p. 119 (‘The basic Indian law canons of construction require that treaties, agreements, statutes, and executive orders be liberally construed in favor of the Indians.’).”

In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchack (2012), the Court continued to complicate efforts by tribes to bring land into federal trust for gaming purposes The band, an Indian tribe federally recognized in 1999, requested that the secretary take into trust on its behalf a tract of land in Wayland Township, Michigan, which it intended to use “for gaming purposes.” The secretary took title to the property in 2009, one month before the Carcieri decision. David Patchak, who lived nearby, filed suit in federal district court asserting that the IRA did not authorize the secretary to acquire the property because the band was not a federally recognized tribe when the IRA was enacted. Alleging a variety of economic, environmental, and aesthetic harms as a result of the band’s proposed use of the property to operate a casino, he requested injunctive and declaratory relief reversing the secretary’s decision to take title to the land. Without reaching the merits, the district court dismissed his suit, ruling that he lacked standing to sue, only to be reversed by the Court of Appeals for the District of Columbia Circuit. In an 8–1 vote, the Supreme Court affirmed the appellate court and held that Patchak had standing to challenge the secretary’s acquisition of the land. Speaking for the Court, Justice Kagan argued that the IRA requires the secretary to acquire land with its eventual use in mind, after assessing the potential conflicts that use might create. And, she continued, because the IRA encompasses the land’s use, neighbors to that use (like Patchak) are reasonable challengers of the secretary’s decisions, and their interests, whether economic, environmental, or aesthetic, come within the IRA’s regulatory ambit.

In Michigan v. Bay Mills Indian Community (2014), Justice Kagan held for a five-member majority that tribal sovereignty prevented Michigan from suing the tribe in question for operating a casino located outside of Indian country because Congress in IGRA had not delegated to the states that power.  That would seem to be a victory for the tribes, and a reemergence of a more sympathetic Court, but the tribe’s victory was pyrrhic, for Justice Kagan went on to make clear that Michigan could “resort to other mechanisms, including legal actions against the responsible [tribal] individuals” who were operating the casino.

And, finally, in Adoptive Couple v. Baby Girl (2015), Justice Alito for a five-member majority refused to construe liberally the Indian Child Welfare Act of 1978, enacted to help preserve the cultural identity and heritage of Indian tribes, and thereby prevent a non-Indian family, proceeding under state law, from adopting an Indian child. To do otherwise, as Justice Thomas pointed out in his concurrence, would oblige the Court to accept an unconstitutional law: “The Constitution does not grant Congress power to override state law whenever that law happens to be applied to an Indian.”

As a result of its rulings in Plains Commerce Bank, Carcieri, Match-E-Be-Nash-She-Wish, Bay Mills, and Adoptive Couple, tribal leaders now seek to keep cases from reaching the Supreme Court, believing that it is better to accept adverse decisions by lower courts, where the impact is geographically limited, than risk having those adverse decisions affirmed by the Supreme Court and applied nationally.

In Cherokee Nation v. Georgia (1831), Chief Justice Marshall described the tribes as being in “a state of pupilage.” Because not grown up, they needed the Court’s solicitude and the protection of what developed into the canons of construction of federal Indian law. Cabazon allowed the tribes (or at least the gaming tribes) to grow up. The political muscle these tribes now exercise seems to have convinced the Court that they no longer need the Court’s (or the canons’) protection. Thirty years ago, tribal leaders celebrated Cabazon as a great victory; it was, but its legacy has proven to be more complex and challenging than they imagined at the time.


 

Ralph A. Rossum is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of multiple UPK titles, including Antonin Scalia’s Jurisprudence, Understanding Clarence Thomas & Text and Tradition.

 

Donald Trump, His Porn Pledge & the Historic Relevance

Nixon porn exploBy Douglas M. Charles

In the current presidential election cycle, we have witnessed unprecedented firsts from the nominee of the Republican Party, Donald Trump. We have seen this major-party presidential candidate say racist, misogynist, xenophobic and all manner of unorthodox or shocking things, like threatening to pull out of NATO and praising Vladimir Putin. We’ve also seen him borrow from the political past. He’s dredged up and embraced the previously discredited America First movement of the early 1940s, and he’s borrowed the Law and Order mantle of Richard Nixon in 1968. In early August Trump announced, to some excitement and drama, that he had signed the Children’s Internet Safety Presidential Pledge, a declaration crafted by an anti-pornography group claiming it seeks to protect children (they all do) and calling itself Enough Is Enough. This latest news item involving The Donald is also nothing new. Focusing on pornography or obscenity and appealing to people’s perceptions of decaying morality has been a standard GOP modus operandi since the late 1960s and Richard Nixon and ever after.

By the late 1960s, after various Supreme Court rulings liberalized federal anti-obscenity law, leading to a boom in the pornography industry, some Americans unsurprisingly became concerned. Around the same time (1970), in the realm of politics, political scientists concluded that Democrats won elections on economic issues while Republicans won by appealing to social issues. The GOP and Nixon fully embraced this idea and appealed to the great “silent majority” of Americans who worried about crime and respected decency, and Nixon squeaked out an electoral victory. Nixon continued to push social issues as president and focused on the pornography boom as something dangerous to Americans. A scientific presidential commission had even been formed by President Lyndon Johnson to study the issue, and the report was due out during Nixon’s first months in office.

The commission concluded that pornography did not contribute in any significant way to America’s various social problems of the time. Nixon would have nothing of it, and pushed the issue going so far as to arrange an all-out effort to discredit the commission’s report and advocating for the strengthening of federal anti-obscenity law. Nixon staffers even drafted an internal report on “The Pornography Explosion” and wanted to “activate all of the anti-obscenity groups” against the commission’s report. Nixon hoped to change the law (but the GOP had only minority numbers in Congress) or push for new obscenity prosecutions to develop a possible new Supreme Court ruling in its favor. Neither happened, but Nixon’s appointing of four conservative Supreme Court justices did slow, if not stop, the liberal trend in obscenity case rulings.

This trend then continued with certain GOP presidents. During the Reagan years pressure mounted again to do something about pornography, which resulted in Reagan’s attorney general, Ed Meese, releasing his own utterly un-scientific report concluding that pornography resulted in sexual violence and social problems. Even still during the 1980s fewer than 100 people were charged under federal anti-obscenity statues and only 71 convicted, a dismal record reflecting the continuing liberal evolution of Americans’ attitudes about the issue. Still, the issue was good for Republican base politics.

Reagan’s successor, George H. W. Bush, however, was not much interested in this aspect of social politics and neither, of course, was the Democrat Bill Clinton. But when George W. Bush ran for president in 2000 he resurrected it as an appeal to his right-wing evangelical base who wanted something done about obscenity and pornography. Bush won the election and even tried, but failed, to reinstate federal prosecutions of adult obscenity — unsurprisingly claiming an aim to protect children, an age-old proclamation —  which had previously faded away. When Barrack Obama assumed office in 2009 he ended the Bush effort (except for the focus on child pornography) as a drain on resources, but socially conservative Republicans tried to push back and demanded the Obama Justice Department do something about the alleged threat pornography posed to American society.

So Trump’s resurrecting the old ratty dog of pornography and its threat is really nothing new. It’s an effort to motivate the GOP’s socially conservative based in hopes to drum up votes. Could anything come of Trump’s anti-pornography pledge? Perhaps. But obscenity prosecutions have actually diminished steadily not just from the 1960s but throughout most of the 20th Century and into the next. It would be legally and socially very difficult for a President Trump to revive anti-pornography targeting and prosecutions; George W. Bush tried and failed miserably. American culture and social attitudes have just evolved too far to care much and see successful prosecutions. Then again, it would also depend on Trump winning the election, and that seems unlikely.

Douglas M. Charles is the author of UPK books, The FBI’s Obscene File: J. Edgar Hoover and the Bureau’s Crusade Against Smut & Hoover’s War on Gays: Exposing the FBI’s “Sex Deviates” Program.

Crime Control vs. Expanding Police Power: The Supreme Court’s decision in Utah v. Strieff

9780700622573The  Supreme Court’s recently ended term only had a few search and seizure cases, but the decision in Utah v. Strieff provides evidence of the continuing power of the crime control narrative on the Court, and involves one of the central issues explored in The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy, namely, the evolution or devolution of the exclusionary rule in a jurisprudence of crime control.  The case openly forgives police misconduct, by exaggerating the social costs of excluding evidence, and creating yet another rationale for permitting illegal police activity to go unchallenged.

In this case, Edward Strieff was subject to what the lower courts conceded was an illegal Terry stop, lacking reasonable suspicion. After the stop, the officer learned that Strieff had an outstanding warrant for his arrest.  Strieff was arrested and searched incident to that arrest, and incriminating evidence was found.  The question is whether that evidence is tainted by the illegality of the Terry stop.  Does the “fruit of the poisonous tree” doctrine apply, or does the intervening act of discovering the existence of a warrant preclude the use of the exclusionary rule.

In 5-3 decision, Justice Thomas held that the existence of the warrant was sufficient to “break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person.”  Justice Sotomayor wrote a stinging dissent, exposing how the Court was diminishing Fourth Amendment rights.    Her words are worth quoting at length:

“This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. … If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.”
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.”

While the Court in Strieff makes concessions for the need for police discretion to protect public safety, Justice Sotomayor really illustrates what is at stake for the future.  Allowing an illegal stop to stand just because of the happy accident of the existence of an outstanding warrant rewards police misconduct, rather than deterring it.  What this case does is demonstrate that the jurisprudence of crime control remains deeply embedded in the minds of many justices, and the majority of justices refuse to acknowledge, as Justice Sotomayor does, the threat that this approach presents for constitutional civil rights and liberties.   The Fourth Amendment is certainly still in flux, but the jurisprudence of crime control remains the dominant paradigm.

-Written by Craig Curtis and Michael Gizzi, authors of The Fourth Amendment in Flux

A Court Even More in Flux after the Death of Justice Scalia

9780700622573Justice Scalia had a heart attack and died shortly after The Fourth Amendment in Flux went to press.  Any preliminary votes he cast in conference are null and the Court is left with just eight justices until a new nominee is confirmed.  His death left the Court with a large number of pending cases the decision of which are affected in a significant way by his absence, including two undecided Fourth Amendment cases.

We argued in our book that Justice Scalia played a major role in the debates over the application of the Fourth Amendment.  In the Afterword that we wrote for the book after it went to press and which is available in the e-book edition as well as on the press’s web site we discuss some of the issues that will continue to put pressure on the Court and the ramifications of the departure of Justice Scalia including the future of the third party doctrine using a cell phone to track an individual’s location and the use by law enforcement of commercially collected meta-data.

The Fourth Amendment truly is in flux, and as we argue in our book, the last five years have seen significant shifts on the Court.  The 2016 presidential election remains critical for determining the direction that the Court will take on these, and other issues.  Will the jurisprudence of crime control continue to be challenged, or will it remain the primary paradigm for Fourth Amendment cases?  Learn more in The Fourth Amendment in Flux. 

–Written by Michael C. Gizzi and R. Craig Curtis, authors of The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy

Louis Fisher on Congress and Protecting Individual Rights

5829925604_36b5677f9e_bAt a time when Congress seems determined to set new lows for being dysfunctional, it may seem strange to publish a book that explains how lawmakers for more than two centuries have protected the rights of blacks, women, children, religious liberty, Native Americans, and other minorities. The purpose is not merely to give credit to the legislative institution and understand how its performance compares favorably to the record of the executive and judicial branches. The book underscores the evident risks of putting our faith solely in Presidents and the Supreme Court. Such a decision moves us from democracy to a government with two elected officials in the executive branch and none in the judiciary. This book does more than remind us of what Congress once accomplished. It encourages a debate on specific steps needed to strengthen U.S. democracy and restore the capacity of members of Congress to discharge their constitutional duties. The intent of the book is to stimulate a dialogue on how we can protect and renew what the Framers hoped to create: a system of self-government.

–Written by Louis Fisher, a Scholar in Residence at the Constitution Project and author of the forthcoming book, “Congress: Protecting Individual Rights.”

Before The Recent Announcement By the Boy Scouts of America, There Was the Case of Scouts of America v. James Dale

9780700619511The Washington Posts writes, “The executive committee of the Boy Scouts of America has unanimously approved a resolution that would drop the group’s blanket ban on openly gay leaders, a key step that puts the organization on the verge of its second historic shift in three years.”  Read “Judging the Boy Scouts of America:  Gay Rights, Freedom of Association, and the Dale Case” for context on Scouts of America v. James Dale, a lawsuit that made its way through the courts over the course of a decade, culminating in 2000 with a landmark ruling by the U.S. Supreme Court. In “Judging the Boy Scouts of America,” Richard J. Ellis tells the fascinating story of the Dale case, placing it in the context of legal principles and precedents, Scouts’ policies, gay rights, and the culture wars in American politics.

Peter Wallenstein Revisits “Loving v Virginia” and the Supreme Court Ruling for The Daily Beast

9780700620005The court’s ruling in Loving v. Virginia—and the states’ reactions to it—paved the way for gay marriage explains Peter Wallenstein in this compelling and timely article with The Daily Beast. To learn more about the parallels between the court cases, explore “Race, Sex, and the Freedom to Marry: Loving vs Virginia” by Peter Wallenstein.

The Betwixt Years of William Howard Taft

9780700620012In a recent New York Times article on what makes a great ex-president, Professor Justin S. Vaughn of Boise State University features William Howard Taft and his work as Chief Justice of the Supreme Court. For the full story of Taft’s years as an ex-president that led to the Court read Chief Executive to Chief Justice: Taft betwixt the White House and Supreme Court by Lewis L. Gould.