Category Archives: Law

Tribal Courts – Phases of History

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                Understanding Tribal Courts is easiest with a familiarity of the stages of history. Professor Ray Austin breaks the past into three parts (not including our modern stage of development). According to Austin the stages are Pre-Reservation, BIA Reservations, post BIA-Res.

                The Pre-Reservation stage was Tribal society as it existed before European encroachment. The tribes were self-governed and most had intricate systems of law and order. They were self-policing and the basis for all decision making was culture and tradition.

                In the BIA era the tribes had their sovereignty stripped and all governance was replaced with BIA officials. There was widespread parentalism (a term coined by Prof. Jamie Ratner) and oversight. Courts were created to punish traditional practices (dancing, bride-price, ceremonies and festivals, etc.).

                Finally the BIA began shifting power back to the tribes and the Court of Indian Offenses were replaced with tribal courts. Today the tribes assert self-governance where they can and try to piece together the shambles of their sovereignty. Some have been successful some have not.

                Below is the information on the three phases in table format. The table is the brainchild of Prof. Ray Austin and I take no credit for its creation:

                The First column is things as they were, the second is the changes implemented, and the third is the result of the BIA policy. 

Pre-European Influence

BIA Control

Post-BIA

Tribal Self-Sufficiency

Indian Agent Control

BIA Oversight

Tribal Culture

BIA Policy

Dependency on Gov.’t

Self-Sustaining

Starvation/Disease

Despair/Hoplessness

Tribal Gov.’ts

Agent Control

Tribal Gov’t w/ BIA Oversight

Self-Policing

BIA Police

Tribal Police

Custom & Tradition

BIA Law and Order

Tribal Codes

Traditional Dispute Resolution

Courts of Indian Offenses

Tribal Courts.

Disclaimer 1: This article does have an editorial slant, despite my attempt to be unbiased. I fully recognize that the table above may be subject to disputes of interpretation.

Disclaimer 2: Law Summaries are created by a non-barred individual, they are not meant to replace legal guidance or advice.

Tribal Courts – The Humanity Aspect

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                Lawyers tend to see things in black and white, in statutes and legal fictions. In practice the waters are much muddier than they first appear. In this regard, consider Chairman Macdonald of the Navajo tribe.

                Chairman Macdonald continues to demand respect and, if inclined to study, a legal historian will find news articles replete with his struggle for tribal sovereignty. The scholar will also find numerous references to the Chairman’s legal troubles.

                Around 1978 Chairman Macdonald found himself in trouble for appropriating tribal funds for personal use. The Chairman decided to hire the most expensive defense attorney of the day . The tab for the attorney’s services came to around 70k. Never one to give up, the Chairman had the tribal council vote to give him the money.

                This resolution was challenged in the tribal courts, where the judges decided the resolution was improper. It was the tribes’ money, they said, he couldn’t use it for personal purposes. MacDonald then consulted legal professors who suggested the creation of a superior court to tribal court, with judges appointed by MacDonald. The Chairman quickly carried out their advice and appointed his allies as judges on his new Navajo Supreme Judicial Council. The new court overturned the decision; MacDonald got his money, and was acquitted.

                My Professor, Ray Austin, cites this story as a warning about the mixing of the branches of tribal government. The Navajo still govern themselves without a constitution, so there was no protection from MacDonald’s actions. However, the Navajo continue to use culture and tradition (particularly the practices of Dine’) as a prototypical constitution or guideline for practice.

                In the end, people and chairmen come and go and make mistakes, but the proper drafting of statutes and a firm foundation can a be a protection when things go wrong. As a follow up to the Chairman’s story, he ended up being acquitted of the initial crime (70k buys a darn good lawyer), but was later arrested along with his allies and convicted in Federal Court. This was not before the council tried to expel MacDonald who then urged his supporters to riot. The army got called in, mobs with 2x4s and nails…it became a mess. The history is too much to relate in a short post, but the principle of a strong foundation in culture & tradition or in a constitution (if culture and tradition are unavailable) are essential to the protection of tribal governments against humanity’s weakness.

Law Summaries are created by a Non-Barred Individual. These summaries are not meant to replace legal guidance or counsel.

Tribal Courts – Constitution Only Interpretation

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            I left off last time talking about authority for court decisions. Among the possible authorities I included culture. If you’re an Indian Law theorist and teaching at the University of Arizona, you include culture as perhaps the premium form of authority. But what does the inclusion of culture look like?

            There are five methods of cultural inclusion:

  • 100% Custom as the Law
  • Culture as a Canon of Construction (Interpreting the Constitution)
  • Custom and Constitution Combined into a new law.
  • Non-Tribal Law Only.
  • Non-Tribal Law Supported by Custom.

One example of non-tribal law was the case of Frias v. Appellant (A Hopi Case). In Frias a tribal council filed ethics charges against its chairman. The council voted for conviction and the chairman was now trying to appeal the decision. The decision was that trial level was the appropriate venue. The appellate court did not have original jurisdiction. The foundation for the decision was the tribal constitution.

Despite the vast trove of cultural options, the Hopi in this case relied entirely on their constitution for the decision. Next post, we’ll turn to the Navajo Courts and describe how the Navajos used cultural tradition as the basis for a decision in Halona v. MacDonald.

Law Summaries are Prepared by a non-barred individual. They are not meant to replace legal guidance or advice.

Tribal Courts – The Question of Authority

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            Upon the establishment of tribal government and tribal courts a pivotal question becomes one of authority. Tribal government exists with endless variation and a young Indian Lawyer needs to make the best use of the tools provided.

            The two most obvious tools are the constitution and the treaty. For example, the Pascua Yaqui tribe has a constitution formed in the style of an Indian Reorganization Act constitution. There are mentions of secretarial approval, the legislative body has strong influences in the judicial and executive branch, and there are options for the Federal Government to declare portions of the constitution invalid. Additionally, the criminal powers of the judicial branch are linked with statutory precedent from years ago. All in all, the constitution is restrictive and will play a prominent role in court decision making.

            The Navajos, by contrast, eschew a constitution altogether. A historical perspective on this is required for full understanding. Originally the Navajo were entirely independent and were governed by the principles of Dine’. Once the United States began conducting full-scale offensives against the Navajos the power of the tribes was curtailed. To maintain order the United States created a governing style based on village under “chiefs” and “sub-chiefs.”

            These “chiefs” ran the courts of Indian Offenses, they were responsible for stopping many crimes, most of which were linked to the culture of the Navajos. Years later when the Indian Reorganization Act was put into effect, the Federal Government wanted the Navajos to be the first to adopt a constitution.

            The Navajos refused as a form of social protest. Today the Navajos continue to operate a government without a constitution. The foundations of rule are a blend of statute and tradition. Navajo Courts, likewise, have integrated Dine’ precepts into their formal decision making.

            So the first rule of practice: Learn your authority. Getting evidence of culture can be difficult (especially for us German-Irish). Two lawyer skills that need cultivation in any form of employment, patience and listening, will be invaluable.

Law Summaries are Created by a Non-Barred individual. They do not constitute legal advice or expertise.

Tribal Courts – Overview

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                Following on the heels of my series on “Federal Indian Law.” I am now branching into an examination of Tribal Courts generally and the Navajo Court specifically.

                As with FIL, the series will involve extrapolation from history. I will specifically cover how Navajo culture and history have influence its tribal court system.

                As with every other series, the reader is warned that these are the opinions of an amateur. I merely relate information through expository essays and I cannot say for certain that my interpretations are correct. I likewise cannot say that the implications of my interpretations are trustworthy. I would like to believe they are, but I’d be foolish If I accepted it as a given.

                I hope the reader will find this series instructive and come away with a fuller appreciation not just of Federal Indian Law, but of the lawmaking and keeping practices of a highly complex tribal culture.

Law Summaries do not constitute legal guidance and are no substitute for proper consultation with a barred attorney.

Partnership Tax – Allocating Liabilities

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      I’ve written about allocating gain, loss, and deductions; what about allocating liabilities? A liability is an amount of money you owe. When using the word “liability” for tax purposes, the words change. What you owe becomes an “obligation” and a liability is an obligation that meets the following criteria:

  • It Creates or Increases basis in an asset.
  • It gives rise to an immediate deduction, or
  • Gives rise to a non-deductible expense and is not chargeable to the capital account.

I’ll save the confusion, loans are liabilities.

      There are two kinds of liabilities: recourse and non-recourse. The difference is essentially how far you’re on the hook for the money. The separation is important because they are allocated entirely differently for tax purposes.

      Figuring out the recourse liability involves figuring out who bears the economic risk of the liability, to do that we apply the “doomsday scenario”. The doomsday scenario involves the following steps:

  • All partnership assets (including cash) are worthless.
  • All debts become due.
  • All property is disposed of in a taxable transaction for nothing more than the satisfaction of their loans.
  • The capital accounts are balanced accordingly.
  • The partnership liquidates.

Read it again…have you figured out why it’s a doomsday scenario? When you apply these steps you may come up with chunks of money that are still owned to creditors. That is the amount of recourse debt. Recourse debt is money you are required to pay upon the dissolution of the partnership. When you apply the above formula you’ll get your answer, that’s how the debt has been allocated.

      Nonrecourse debt is usually allocated according to shares of partnership profits. It’d be nice if it was that simple, but it’s not. Before you divide the non-recourse allocation along profit lines, you have to carve out some chunks and serve them to bitter partners. Distributing non-recourse liabilities goes in the following three steps:

  1. Allocate chunks of loss according to partnership minimum gain.
  2. Allocate chunks according to gain recognized in doomsday scenario above.
  3. Allocate remainingliabilities according to profit share.
    1. Profit share takes into account all facts and circumstances.

If you want a great example of this in action, take a look at Rev. Rul. 95-41, the court goes step by step and applies the test. It looks a lot like allocating deductions, you carve out bits and then split the rest.

      A few notes before wrapping up, if a debt is part recourse part non-recourse split it (economic risk test will help you do this) and allocate accordingly.

      Finally, when you’re dealing with partnerships owning shares of partnerships, remember that anything a parent partnership acquires must be divided as well (AB has 20k of liabilities from ABCDE partnership, and AB must allocate the liability between themselves).

      I really can’t harp on the revenue ruling enough. It’s really more effective and structured than any example I could give and it’s probably on Google. Enjoy!

Disclaimer: Law Summaries are created by a non-barred individual. These summaries are not meant to replace genuine legal advice and expertise.

Federal Indian Law – Water Rights Pt. 2

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      After studying the broad foundation of water rights, it’s time to look at the nitty gritty. Tribes have rights to water, but how much is the question. The rights can be adjudicated in Federal Court or State Court. McCarran Amendment 43 U.S.C.A. § 666 (1952). Adjudication in State Court can be joined by the United States as a party. This can lead to undesirable results.

      There’s always a chance with two venues that they’ll start overlapping cases. To settle this, a case started in Federal Court will be dismissed if already proceeding in State Court. Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). The tribes were not particularly happy with the result but the Court’s logic was: the state can adjudicate and if they do a bad job the Supreme Court can fix things.

      The litigation to quantify water usage started to proceed in state courts and the first big landmark was that tribes were allowed enough water for their “purpose.” In Re General Adjudication of All Rights to Use Water in the Big Horn River System. In the cited case, the purpose was decided to be agriculture. The amount reserved was based on the PIA of the reservation, later when the tribe tried to use the allotted water for other than agricultural use they were denied.

      Deciding the PIA became a sticky issue as well. Often soil experts, hydrologists, and other scientists had to figure out just which land was irrigable and how much water it would take. For tribes with flat reservations, this yielded a good share of water; for tribes in the mountains, there was hardly anything.

      The “purpose” amount test was not limited to farming. Tribes who subsisted on hunting/fishing were granted enough water to maintain their ecosystems. The PIA test suffered its first real setback with the emergence of the “Gila River” factual inquiry test. In Re the General Adjudication of All Rights to Use Water in the Gila River, 35 P.3d 68 (Ariz. 2001).

      The new test broke away from PIA and looked at a variety of factors to determine enough water to fulfill the reservations “purpose.” It remains to be seen what the next development in this area of law will be. Since adjudication remains in the state courts, however, it will fall to lawyers and likely be unique by area.

Disclaimer: Law Summaries are created by a non-barred individual. These summaries are not meant to replace genuine legal advice and expertise.

Federal Indian Law – Tribal Religion

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      Tribal Religion and its protection are always problematic because the framework is wholly different from western religions. As a result, the protective institutions of religion rarely work as needed.

      There are studies showing that tribal prosperity is in some way linked to the protection of culture and sacred sites. Even without this, many tribal religions are linked to stewardship of the land. The first amendment protects the exercise of religion and prevents the establishment of a government sect. When modern development encroached on tribal sacred places, it is unsurprising that the tribes rallied around the First Amendment.

      In 1985 the Supreme Court upheld a state’s interest in building a road close to a Native American sacred site. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). The Court openly acknowledged that this would burden tribal religion but argued that the first amendment only prevented three encroachments on religious freedom:

  • Outright Prohibition
  • Indirect Coercion
  • Penalties for practice.

The burdening of religious practices or lowering of the experience was not a problem. The lack of strict scrutiny took the teeth out of litigation. The document (other than the first amendment) that tribes hoped would protect their religious practices, the American Indian Religious Freedom Act, had no remedy.

      This was painfully clear at the Congressional level where the AIRFA was said to be a “policy” standpoint. It’s like the “mission statement” in Jerry Maguire; it’s what the Federal Government “hoped” for. The only redeeming factor was that the AIRFA required a consultation with tribes in any NEPA assessment. Before development could occur, the tribes had to be consulted.

      The tribes won victories in later years by pushing for sacred sites to receive recognition under the National Historical Preservation Act. This act protected historical sites, and the tribes successfully included religious areas under its scope.

      Efforts to close recreational outdoor areas for religious purposes met with defeat (devil’s tower climbing ban). During the Devil’s Tower litigation the rock climbers said that preventing rock climbing amounted to an establishment of Native American religion. What ended up having success was convincing private owners to allow voluntary bans for religious purposes.

      A more difficult question came up when tribal members lost workman’s comp for smoking peyote. Normally this wouldn’t be a problem, but they claimed the peyote was smoked for religious purposes. Employment Division Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). The Supreme Court argued that a generally applied statute that happened to curtail religions was not subject to strict scrutiny. Peyote smoking would lose you benefits, even if it was your religion.

      Attempting to undo the damage, the Clinton administration enacted the Religious Freedom and Restoration Act. The RFRA mandated that there could be no substantial burden on religion unless there was a compelling state interest and it was the least restrictive means. The victory was short lived; Congress ruled that this was an encroachment on state power.

      I’ve painted a bleak picture for those seeking to preserve historic sites and my Professor left me with a few ground rules of the trench-weary Indian Lawyer. One: Delay is your friend, the longer you delay the better your chances of changing things. Two: Uncertainty is your advantage, be unpredictable to throw wrenches into the works. I can’t pass judgment on whether or not to use these methods (they’re not mine after all), but that was the advice we were given.

Disclaimer: Law Summaries are created by a non-barred individual. These summaries are not meant to replace genuine legal advice and expertise.

Federal Indian Law – Water Rights Overview

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      We’re going to turn now to water rights in a two part series. Water rights specific to reservations are so much an outgrowth of generic water rights that some foundation must be laid before proceeding.

      The old-school of water rights was “first in time, first in right.” You could use as much water as you needed, so long as you did not infringe on someone with a superior claim. This wasn’t so much of a problem in the east where rainfall was plentiful; in the west it was a problem.

      The riparian doctrine of “First in time, first in right” continued through the gold rush and here it began to cause problems. The riparian doctrine wasn’t really an issue if you were farming, but mining uses far more water and the water it returns is unusable.

      Things settled into a routine where appropriations of water (first come first served) topped any Federal Grant. In fact the states were allowed to choose their brand of water rights (appropriation v. riparianism). Kansas v. Colorado, 206 U.S. 46 (1907). The general belief was that Federal patent only transferred land, and water regulation belonged to the states. From here the tribes enter the picture once more.

      The vast amounts of water used by miners left reservations in the arid desert with little or no water to meet their needs. In an effort to fix things, the Supreme Court ruled that reservations had been granted as much water as they needed. Winters v. U.S., 207 U.S. 564 (1908). Now this looks like a win, but there was a problem. If you’re in the old west and you try to enforce tribal water rights by taking them from miners you’ll get shot. As a result the tribes have a right and no way to enforce it (this is a trend you may have noticed).

      Winters gets stuffed away and the states continue to run things for the next fifty five years. It isn’t until the Colorado River is getting divided up in 1963 that the Federal Government asserts the tribal right to water once more. Arizona v. California, 373 U.S. 546 (1963). In the middle of dividing up water between four states there’s an aside directly relating to the tribes and it states:

  • Water was reserved for the tribes on the creation of reservations.
  • Water was reserved for present and future use.
  • Water was reserved for the entire PIA of the reservation.

The holding in Arizona v. California was based on winters and winters was based on the Marshall model. The problem with all Marshall Model cases is that: if they are applied strictly, Indians win too much. Consequently, there tends to be a lot of back pedaling.

      The new flavor in this branch of the law is negotiation. Arizona v. California had a ludicrous record and neither tribes nor states want to wander into that briar patch. The result is negotiation of water compacts declaring amounts etc. To finish I’ll give a few summaries of little branches of water law that have no Supreme Court precedent:

  • Groundwater: It seems that both the state courts and federal courts recognize groundwater as part of appropriated water for reservations. This has been enforced on the dividing line and enforced as an injunction to prevent groundwater use (when it infringed on a tribe’s cut of the water).
  • Water Quality: There are mixed results here. Sometimes the tribe can demand a certain water quality, sometimes not. There are suits and negotiations and the results appear to render the question a coin toss.

      The important fact to remember is that water law is like everything else in Indian Law a three piece pie with the states, Federal Government, and Tribes contesting for slices of each other’s pie.

Disclaimer: Law Summaries are created by a non-barred individual. These summaries are not meant to replace genuine legal advice and expertise.

Federal Indian Law – Tribal Gaming

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      If there is one thing that non-Indians bring to mind most readily when thinking about reservations it’s probably gaming. At least for the Californian, there is not a single election day goes by without a measure relating to tribal casinos.

      The grounds for Indian gaming were laid as early as the 1960s, but since that time there has been drastic expansion of the enterprise. Expanded enterprise means expanded litigation. Consequently, the legal framework of Indian Gaming is as complicated as any other issue.

      The first big chunk of foundation came when the state of California sued to prevent a tribal casino. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). California is a public law 280 state, and that means the state possesses regulatory jurisdiction over reservations.

      California argued that there were state laws prohibiting gambling and that the tribe should not be allowed to run its card clubs and bingo halls. The Supreme Court studied the law and decided that California did not prohibit gaming in fact. Instead, it regulated gaming (California has a state lottery, etc.). Because the state wanted to exercise regulatory power on a reservation, it was an unacceptable encroachment on tribal sovereignty.

      The decision in Cabazon was unpopular and Congress came up with a solution called the Indian Gaming Regulatory Act. The act divided gambling into three categories, with each allowed to a varying degree:

  • Class 1: Class one was social gaming between members. It was always permissible on the reservation and could not be prevented by the state.
  • Class 2: This class included Bingo, Video Bingo, Tip Jars, Lotto, Card games not played against the house. Class 2 has low margins and can be regulated by the state (in regards to hours, pot size, etc.)
  • Class 3: This is every other form of gambling (the most common forms). They are allowed if the state does not prohibit them. However, before they can be played the reservation must negotiate a gaming compact with the state.

      The IGRA seemed to be a method for tribes to raise revenue through gaming. However, it was very easy for the states to stall or refuse to negotiate the compacts.  Without a compact, the tribes cannot game.

      The tribe’s initial attempts to sue states not negotiating in good faith led to failures. While the IGRA was recognized as an abrogation of state sovereign immunity, the Court decided that Congress went outside its power to do so. Therefore the tribes had no remedy and the gaming compacts were at the mercy of the state. Often the state governments negotiated compacts that siphoned off a cut of profits to state coffers.

      The original remedy allowed the secretary and the tribe to negotiate a compact if the state was unwilling. When tribes attempted to take advantage of this, the Court viewed it as an illegal expansion of secretarial powers.

      The current state of Indian Gaming is far less rosy than it once was. However, even with the limitations imposed by states there are studies showing how effective tribal gaming is at raising revenues. More interestingly, there are studies showing how tribal revenues invested properly contribute to quick economic development of the tribes.

      The big questions for gaming became the placement of casinos (they must be on reservation land or close to tribal government buildings).

Disclaimer: Law Summaries are created by a non-barred individual. These summaries are not meant to replace genuine legal advice and expertise.