INDIGENOUS LAW SUMMARIES: RECENT
CASES
by
Carl Christensen, Visiting Assistant Professor
The Center for Excellence in Native Hawaiian Law promotes discourse
between the legal community, the Native Hawaiian community, and the
community at large. To further this goal, the Center is providing brief
summaries of selected state and federal court decisions that impact,
or may impact, Native Hawaiians. This issue of Ka He‘e includes
summaries of Day v. Apoliona, Navajo Nation v. U.S. Forest Service,
Pono v. Molokai Ranch, Ltd., State of Texas v. United States. The Access
Fund v. U.S. Dep’t of Agriculture, and Miner Electric, Inc. v. Muscogee
(Creek) Nation.
Day v. Apoliona, 496 F.3d 1027 (9th
Cir.) (panel decision), later order __ F.3d __ (9th Cir. Oct. 11, 2007)
(granting State of Hawaii’s motion to intervene for the purpose of filing
a petition for rehearing and rehearing en banc).
This is an update and review of a case discussed in
the December 2006 issue of Ka He‘e.
More than twenty years ago, the U.S. Court of Appeals
determined that Native Hawaiians who are eligible beneficiaries of the
Hawaiian Homes Commission Act (HHCA) may bring suit in federal court
pursuant to 42 U.S.C. § 1983 (§ 1983) to enjoin unauthorized use of
lands held by the State of Hawai‘i in trust “for the benefit of native
Hawaiians” pursuant to the HHCA and § 5(f) of the Hawaii Admission Act
(Admission Act). Keaukaha-Panaewa Community Ass’n v. Hawaiian Homes
Comm’n, 739 F.2d 1467 (9th Cir. 1984) (generally known as “Keaukaha
II” to distinguish it from an earlier Ninth Circuit decision in the
same case). Subsequently, the Ninth Circuit has reaffirmed the holding
of Keaukaha II on a number of occasions, among them a case entitled
Price v. Akaka, 3 F.3d 1220 (9th Cir. 1993) (known as “Akaka
II” to distinguish it from an earlier case with a similar name).
In 2005, several eligible HHCA beneficiaries brought
an action against the Trustees of the Office of Hawaiian Affairs in
U.S. federal District Court pursuant to § 1983 in which they sought
to enjoin OHA’s allegedly unlawful expenditure of revenues derived from
the § 5(f) “Ceded Lands Trust” for the benefit of Native Hawaiians who
are of less than 50% Hawaiian ancestry and are, thus, not eligible to
receive benefits under the HHCA. The parties subsequently filed cross-motions
for summary judgment to resolve legal questions fundamental to the case.
The State of Hawai‘i, not a party to the suit, filed a brief as friend
of the court (amicus curiae) arguing that a recent U.S. Supreme Court
decision, Gonzaga University v. Doe, 536 U.S. 273 (2002), had
so changed the law relating to § 1983 actions that Keaukaha II had been
effectively overruled and was no longer good law. This theory, if accepted
by the courts, would deprive Native Hawaiians of the right they have
enjoyed since 1984 to ask the federal courts to enforce the State’s
trust responsibilities with regard to the HHCA and Admission Act land
trusts. Although acceptance of the State’s argument would have terminated
the plaintiffs’ action against the OHA Trustees, the Trustees did not
join in the State’s Gonzaga argument.
Judge Susan Oki Mollway agreed with the State that Gonzaga
had effectively overruled Keaukaha II and dismissed the plaintiffs’
action. Day v. Apoliona, 451 F. Supp. 2d 1133 (D. Hawai‘i 2006).
The plaintiffs did not accept this result, however, and appealed the
case to the U.S. Court of Appeals for the Ninth Circuit. The State of
Hawai‘i again filed an amicus brief making its Gonzaga argument.
On August 7, 2007, a three-judge panel of the Ninth
Circuit reversed, stating that “we cannot agree that there is a conflict
[between Keaukaha II and Gonzaga] sufficient to justify a district court
or a three-judge panel of this court disregarding well-established precedent.”
Day v. Apoliona, 496 F.3d 1027, 1029 (9th Cir. 2007). The court
went on to discuss the relevance of trust law to the question of whether
or not a private right of action exists to enforce § 5(f), id. at 1033-34,
and then addressed the effect of Blessing Blessing v. Freestone, 520
U.S. 329 (1997) and Gonzaga, concluding that “neither undercut[s] the
theory or reasoning underlying [Price v. Akaka, 3 F.3d 1220
(9th Cir. 1993) (“Akaka II”)] in such a way that the cases are clearly
irreconcilable,” and concluded that neither case “so affected the reasoning
of Akaka II that the case has lost its binding force.” Day, 496 F.3d
at 1034-35.
In an unusual move, the State of Hawai‘i filed a motion
with the Ninth Circuit seeking to intervene in the case as a party so
that it could file a petition for rehearing [by the three-judge panel
that had already issued an opinion favorable to the plaintiffs] and
rehearing en banc [i.e., by a panel of eleven Ninth Circuit judges].
Navajo Nation v. U.S. Forest Service,
479 F.3d 1024 (9th Cir.) (panel opinion), later order ___ F.3d ___ (9th
Cir. Oct. 17, 2007) (vacating panel opinion and granting en banc review)
In the last issue of Ka He‘e we discussed this
important decision of the U.S. Court of Appeals for the Ninth Circuit,
in which the court held that the Religious Freedom Restoration Act barred
approval of the use of recycled wastewater for snowmaking at a site
in Arizona that is sacred to numerous Indian tribes. The opinion was
a major victory for the protection of tribal sacred sites. On October
17, 2007, the Ninth Circuit announced that it had granted the defendants’
petitions for en banc review, stating that “[t]he three-judge panel
opinion shall not be cited as precedent by or to this court or any district
court of the Ninth Circuit, except to the extent adopted by the en banc
court.” A discussion of this case by Prof. Vikram Amar of the University
of California Davis School of Law can be accessed at this link: http://writ.lp.findlaw.com/amar/20071026.html
Pono v. Molokai Ranch, Ltd.
(appeal pending before the Hawai‘i Intermediate Court of Appeals)
At 9:00 a.m. on Wednesday, December 12, 2007, the Intermediate
Court of Appeals of the State of Hawai‘i will hear oral argument in
Pono v. Molokai Ranch, Ltd., in the Hawai‘i Supreme Court.
This is a land use case that raises some of the same issues as the Hokuli‘a
case on the Island of Hawai‘i, but which remain unresolved following
the voluntary settlement of the land use aspects of the Hokuli‘a controversy
(Hokuli‘a water pollution issues were resolved in Kelly v. 1250
Oceanside Partners, 111 Hawaii 205, 140 P.3d 985 (2006)). Moloka‘i
Ranch has constructed permanently-installed wooden-framed tents and
associated toilet facilities on its land on the Island of Moloka‘i.
These facilities are rented to tourists on a short-term basis and are
located on land classified within the Agricultural District by the State
Land Use Commission pursuant to Chapter 205, Hawai‘i Revised Statutes.
The plaintiffs appeal from adverse rulings in the Maui trial court.
The legal issues on appeal are: (1) whether or not this activity violates
Chapter 205, H.R.S., or the Moloka‘i Community Plan; and (2) whether
the trial court had jurisdiction to decide plaintiffs’ claims on the
merits.
State of Texas v. United States,
497 F.3d 491 (5th Cir. 2007).
This case asks whether the Secretary of the Interior
has the authority, under the Indian Gaming Regulatory Act (IGRA) or
any other law, to promulgate rules establishing a mechanism whereby
the Secretary can authorize an Indian tribe to conduct gaming otherwise
prohibited by State law where the State has refused to bargain in good
faith with the tribe to negotiate a compact authorizing and regulating
such gaming pursuant to IGRA.
In the 1980s, various Indian tribes sought to conduct
on-reservation gambling operations as a means of generating revenues
to finance tribal governments and for other purposes. Some states sought
to enforce state anti-gambling laws against these tribes, but in California
v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), the U.S.
Supreme Court found no explicit congressional authority for the application
of state law on Indian reservation in such cases and rejected the State
of California’s efforts to enforce its regulatory laws on the Cabazon
Band’s reservation. In response to Cabazon, Congress enacted the Indian
Gaming Regulatory Act (IGRA) to provide states with a role in the regulation
of tribal gaming while preserving gaming as an option for tribes seeking
economic development.
Under IGRA, tribes were permitted to conduct social
games played for minimal value (“Class I gaming”) without outside regulation.
Bingo and related activities (“Class II gaming”) was to be regulated
by the newly created National Indian Gaming Commission. All other forms
of gaming, including slot machines, casino games, dog racing, etc. (“Class
III gaming”) could be undertaken only under the terms of a Tribal-State
compact negotiated between the tribe and the state in which it was located.
Congress recognized, however, that some states would refuse to negotiate
a compact allowing Class III gaming, so it sought to balance the new
authority granted to the states under IGRA by authorizing tribes to
bring suit in federal court against any state that failed to enter into
“good-faith negotiations” with any tribe that sought to execute such
a compact. If a state was found in such an action to be refusing to
negotiate in good faith, the court could require mediation of the dispute
and, ultimately, the Secretary of the Interior was empowered to authorize
Class III gaming activities even over the state’s objections. Clearly,
then, Congress did not intend that a tribe would be left without a remedy
in the event a state refused to negotiate a Tribal-State compact on
reasonable terms.
The U.S. Supreme Court upset this careful balance with
its decision in State of Florida v. Seminole Tribe of Florida,
517 U.S. 44 (1996), in which it held that under the Eleventh Amendment
Congress lacked the power to abrogate state sovereign immunity by authorizing
tribes to sue states in federal court. The Seminole Court further held
that the provisions of IGRA were severable, and that the invalidation
of the pro-tribal provision allowing tribes to sue states that refused
to negotiate a compact in good faith did not require the invalidation
of the IGRA provisions that expanded state jurisdiction over tribal
activities.
After Seminole was decided, the Secretary of
the Interior sought to re-establish Congress’s balance between tribal
and state interests by promulgating administrative rules establishing
an alternative process for tribes attempting unsuccessfully to negotiate
a reasonable compact with a state that asserts state sovereign immunity
to deprive the tribe of the congressionally-mandated judicial remedy.
Under this alternative process, such a tribe could submit a gaming proposal
to the Secretary for approval, the relevant state had 60 days to comment
on the tribe’s proposal or to offer a counter-proposal, after which
the Secretary could appoint a mediator or, ultimately, disapprove the
tribe’s proposal or allow the tribe to conduct Class III gaming activities
on such terms as the Secretary saw fit.
In 1995, the Kickapoo Traditional Tribe of Texas petitioned
the State of Texas to enter into a compact to allow Class III gaming
on the tribe’s reservation. Texas refused to enter into negotiations,
and a tribal suit seeking a judicial declaration of the State’s lack
of good faith was dismissed pursuant to Seminole. The Tribe then sought
approval for its gaming proposal under the Secretary’s administrative
process; Texas responded by bringing suit against the United States
and the Secretary of the Interior for a declaration that the Secretary
lacked statutory authority to create such an administrative mechanism
and that, in any event, the rules violated the constitutional Separation
of Powers and the Non-Delegation Doctrine. The trial court dismissed
the State’s suit as unripe, and the State appealed.
In a split decision, the Court of Appeals reversed.
The majority held, first, that the State of Texas suffered a redressable
injury as soon as it was required to participate in an arguably invalid
administrative process, and thus the case was not unripe. On the merits,
the court held that IGRA unambiguously prohibited Class III gaming in
the absence of a Tribal-State compact and that the Secretary lacked
statutory authority to “fill the gap” in the statutory scheme that was
created when the Seminole Court deprived tribes of a judicial remedy
for a state’s refusal to negotiate a compact. Accordingly, the administrative
rules were invalidated and the tribe was left with no remedy for the
State’s refusal to enter into negotiations for a compact. The dissent
would have held that ever since the 1830s statutory authority had existed
for the President, acting through the Secretary, to exercise broad authority
to prescribe regulations over Indian affairs, that this authority was
broad enough to encompass the rulemaking at issue in this case, and
that as IGRA contained no language limiting that pre-existing authority,
the regulations were valid.
The Access Fund v. U.S. Dep’t of Agriculture,
499 F.3d 1036 (9th Cir. 2007).
The U.S. Supreme Court held in Lyng v. Northwest
Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988), that the
Free Exercise Clause of the First Amendment did not require the United
States to avoid taking actions on public lands that would adversely
affect the religious practices of Indian tribes to whom those lands
were sacred. Lyng did not, however, address the question of whether
the United States may accommodate tribal religions by voluntarily restricting
its own activities on the public lands or by extending those restrictions
to the actions of third parties seeking access to public lands for recreational
or commercial use. Access Fund is one of a number of recent cases in
which private parties seeking to carry out such activities have alleged
that federal agencies violate the Establishment Clause of the First
Amendment when they voluntarily impose such restrictions for the purpose
of facilitating tribal religious practices.
Cave Rock, located partly within a National Forest near
Lake Tahoe, is regarded as a sacred site by members of the Washoe Tribe
as the location of a confrontation between “water babies,” prominent
characters in Washoe mythology, and “a small weasel brother,” regarded
as an ancestor of the Washoe people. It is also of significant historical
interest because of its documented use by tribal religious figures during
and after the initial period of European settlement of the area, the
presence of sites yielding important archaeological and paleoenvironmental
data, and the area’s use as a transportation corridor from prehistoric
times to the present. In recent years, Cave Rock has also become a popular
area for rock climbing, and climbers have installed numerous anchors
and bolts to facilitate the use of ropes necessary to prevent falls.
Much of this activity, and even the emplacement of various platforms
useful to climbers, has occurred without the authorization of the Forest
Service. The Washoe Indians regard the activities of rock climbers on
Cave Rock, and particularly the installation of climbing devices and
platforms, to be acts of desecration. Accordingly, the Tribe has repeatedly
requested that the Forest Service impose restrictions on such activities.
The Forest Service has taken action to protect the integrity
of Cave Rock. It has been found to be eligible for designation as a
“traditional cultural property” under the National Historic Preservation
Act and for inclusion on the National Register of Historic Places. Pursuant
to the NHPA and other statutes, the Forest Service developed a management
plan for the site and circulated a draft environmental impact statement
to obtain public comment on the various management options under consideration.
The draft EIS recognized the adverse effects of climbing and proposed
five management alternatives, ranging from taking no action at all to
imposition of a prohibition on all access to Cave Rock except by tribal
practitioners. The final EIS approved after public review and comment
adopted a management plan that would ban all climbing and require removal
of all existing bolts and other permanently installed climbing aids,
but that permitted the continuation of non-invasive recreational activities
such as hiking, picnicking, boating, and fishing.
The FEIS stated that restrictions on climbing “should
not be viewed as ‘requiring others to conform their conduct to Indian
cultural concerns’” but rather as necessary to “serve[] the goal of
protecting environmental, historical, and cultural resources.” It declared
that the determination of the site’s significance was “not based on
‘Washoe religious doctrine’ but rather on the secularly-derived historic
and ethnographic record.” The Access Fund, an advocate for the interests
of rock climbers, brought suit in district court to challenge the adoption
of the management plan, its principal allegation being that the ban
on rock climbing violated the Establishment Clause of the First Amendment.
The district court granted summary judgment for the federal defendants,
and the Access Fund appealed to the U.S. Court of Appeals for the Ninth
Circuit.
The Ninth Circuit applied the well-known (though often
criticized) Establishment Clause standard of Lemon v. Kurtzman,
403 U.S. 602 (1971), to hold that the Forest Service’s efforts to accommodate
the Washoe Tribe’s religious practices did not violate the Establishment
Clause. Under the Lemon test, “an action or policy violates
the Establishment Clause if (1) it has no secular purpose; (2) its principal
effect is to advance religion; or (3) it involves excessive entanglement
with religion.” The court found the necessary secular purpose to be
the Forest Service’s desire to be “the preservation of a historic cultural
area,” stating that “we discern no support for the claim that the Forest
Service’s decision was taken for the predominant purpose of advancing
the Washoe religion.” It rejected the claim that the plan was an endorsement
of tribal religious practices, pointing out that the Washoe Tribe had
sought the exclusion of all recreational users, not just those engaged
in rock climbing; in balancing the interests of the Tribe and non-Indian
recreational users of the Cave Rock area, the Forest Service’s action
was “permissible accommodation rather than impermissible endorsement”
of the Tribe’s religious interests. Furthermore, the Service’s plans
to monitor activities on the site were “routine administrative or compliance
activities” rather than the intrusive “interference of . . . secular
authorities in religious affairs.”
Miner Electric, Inc. v. Muscogee (Creek)
Nation, ___ F.3d ___ (10th Cir. Sept. 19, 2007).
This case involves an unsuccessful challenge to tribal
sovereign immunity. Russell Miner parked a vehicle owned by Miner Electric,
Inc., at a casino located in Indian country and owned by the Muscogee
(Creek) Nation. A day later, tribal security officers seized the vehicle
and charged Mr. Miner with possession of suspected illegal drugs found
in the vehicle. Mr. Miner appeared in tribal court and entered a guilty
plea to a civil citation for disorderly conduct. The day of his court
appearance, the Nation served Mr. Miner with a notice of civil forfeiture
regarding the vehicle and some $1,400 in cash found in it. Miner Electric
intervened in the forfeiture action in tribal court to assert ownership
of the vehicle. The forfeiture order was upheld in a trial in tribal
court and in an appeal to the Muscogee (Creek) Nation’s Supreme Court.
Immediately after the denial of its appeal in the tribal
courts, Miner Electric and Mr. Miner initiated an action in U.S. District
Court, arguing that the tribal court lacked jurisdiction over a quasi-criminal
action against a non-Indian and that the forfeiture violated their rights
under the Fifth and Eighth Amendments and under Title I of the Indian
Civil Rights Act (ICRA). They further argued that they had exhausted
all tribal remedies and that the ICRA constituted a waiver of tribal
sovereign immunity that allowed the district court to take jurisdiction
over the case and to decide it on the merits. The district court agreed
and granted summary judgment to the Miners.
The Tenth Circuit Court of Appeals reversed. It noted
that the U.S. Supreme Court had recognized tribal sovereign immunity
in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), and
had in that case rejected the argument that Title I of the ICRA abrogated
tribal sovereign immunity. It rejected the Miners’ arguments that their
suit could proceed under exceptions to Martinez that had been recognized
by the Tenth Circuit in previous cases. It distinguished Tenneco
Oil Co. v. Sac and Fox Tribe of Indians of Oklahoma, 725 F.2d 572
(10th Cir. 1984), by noting that Tenneco had involved a suit
against tribal officials for declaratory and injunctive relief, whereas
the tribe itself was the sole defendant in the Miners’ action. “If the
sovereign did not have the power to make a law, then the official by
necessity acted outside the scope of his authority in enforcing it,
making him liable to suit. Any other rule would mean that a claim of
sovereign immunity would protect a sovereign in the exercise of power
it does not possess.”
It also distinguished Dry Creek Lodge, Inc. v. Arapahoe
and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), a case in which
non-Indian owners of a hunting lodge had been permitted to bring suit
in federal court to enjoin an Indian tribe from blocking the lodge’s
access road crossing tribal lands. The Tenth Circuit had allowed the
Dry Lodge action to proceed because in that case, unlike
Martinez, non-Indians were involved who had been denied access
to the tribal courts; the court distinguished the present case from
Dry Lodge because the plaintiffs, though non-Indians, had been
allowed to fully litigate their claims in tribal court. Accordingly,
as the Miners could show neither a congressional abrogation of tribal
sovereign immunity nor an express waiver of immunity by the Tribe, the
Court of Appeals reversed and vacated the district court’s ruling and
remanded the case for dismissal.