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:

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.