The Supreme Court's “Whack-A-Mole” Game Theory in Federal Indian Law, A Theory That Has No Place In The Realm of Environmental Law

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  • Dean B. Suagee

American Indian and Alaska Native tribes inhabit special places in the landscape of American democracy. This article begins and ends with this principle-federally recognized tribes have a special status in our system of government. Over the course of American history we should have learned that tribal sovereignty within a recognized homeland is crucial for tribes to be able to maintain their cultural distinctiveness, to exercise what might be called cultural self-determination.

By “cultural self-determination” I mean the process of a tribe deciding for itself how its way of life changes over time, including deciding what aspects of other cultures the people who comprise a tribe adapt for their own uses. The concept of cultural self-determination overlaps with the concept of “cultural sovereignty,” although I will save my thoughts on this topic for the end of this article.

In 2001, the United States Supreme Court issued decisions in two cases, Atkinson v. Shirley and Nevada v. Hicks, that tribal leaders and their lawyers see as posing ominous threats to tribal sovereignty. Tribal leaders re¬sponded to the decisions in these two cases by launching the Tribal Sovereignty Protection Initiative under the auspices of the National Congress of American Indians (NCAI). The Tribal Sovereignty Protection Initiative is a multifaceted campaign that includes seeking legislation by Congress to undo some of the damage that the Court has inflicted on tribal sovereignty. As far as I can tell, most of non-Indian America is completely unaware that tribal leaders believe that tribal sovereignty is so threatened that they must devote a great deal of their limited time and money to a campaign to persuade Congress to reign in the Court. I would like to think that many Americans would care if they understood what the Court has been doing, but understanding what the Court has been doing is challenging, to say the least. Before trying to explain the Court’s case law, then, I think that the appropriate starting point for this critique is to acknowledge that it is important for America, as a nation, for Indian tribes to continue to exist as distinct cultures and with the right to decide for themselves the extent to which they remain distinct cultures.

The survival of tribal cultures matters, and not just for present and future generations of tribal members. While most Americans may pay little attention to the survival of tribes as distinct cultures, America would be a very different place without Indian tribes. The history of each tribe’s relations with the expanding American society is woven into the fabric of our national character. This history is part of our collective national soul. Many Americans have a vague sense of remorse about historical wrongs suffered by tribal peoples. There are many good reasons for such remorse, and I would personally like to see more people remedy their vague feelings of remorse by learning more about the stories of specific tribes in specific places. Nevertheless, despite a history with a surplus of low points, we have arrived at a point at which some 562 federally recognized tribes inhabit their own special places in the American landscape. The fact of their existence enriches the American national character.

That this many tribes exist today is no accident. Each tribe has its own stories of suffering and perseverance, its heroes and heroines, and its friends and allies in non-Indian America. Most tribes have stories about how the larger so¬ciety has tried to persuade or force them to stop living as Indians, to give up their cultural traditions and religious beliefs and become assimilated into the mainstream. For modern day tribal members, many assimilationist forces are pervasive in American society, from the widespread sense that the American way of life is the crowning achievement of western civilization to the amazing array of material possessions available to all those who can afford to buy them.

Modern day pressures to assimilate are but the most recent episodes in these ongoing sagas. During two eras of federal Indian policy, “allotment” and “termination,” the federal government enacted and implemented laws intended to force Indians to become assimilated into the mainstream as individuals, and to give up their collective existence as tribes. Most people in modern America seem to know very little about these two eras of federal Indian policy-to the extent that modern Americans have a vague sense of remorse, it seems to be focused on the warfare and forced removals that occurred in earlier times. For most Americans, the history of relations with Indian tribes seems to have ended in the late Nineteenth Century, perhaps with the Wounded Knee massacre of 1890, which is, after all, the final chapter of the classic history book Bury My Heart at Wounded Knee. Indian people and the lawyers who work for them know that his-tory did not stop then, and that much of the damage inflicted on tribal cultures by the American society occurred after the outright warfare stopped, especially during the allotment era and the termination era. Indian people tend to know about this history because present-day tribal communities cope with the legacy of one or both of these two eras. Lawyers who practice in the field of Indian law have to learn some of this history to be able to make any sense of the law. Those of us who are both tribal members and lawyers sometimes wish that we did not have to recount the salient points before we can move on to what we really want to write about. (And, personally, I admit that I often skim over the historical summaries in the writings of others; as an environmentalist, I regret that so many trees have had to give their lives for continuing education of the American public on this topic.) So, dear reader, if you already know this history, please feel free to skip the next five paragraphs. For everyone else, I have tried to be brief, and just cover the key points. A few references are provided for those who want to learn more on their own.

The “allotment” era, which stretched from the late 1800s to 1934, takes its name from the General Allotment Act of 1887. During the allotment era, the federal government took commonly held tribal lands and divided these lands up into “allotments” that were given to individual tribal members. On some reservations, allotment was imposed by “agreements” that reflected the lack of bargaining power on the tribal side of the negotiations. On other reservations allotment was imposed against the will of tribal leaders and in violation of treaties, and tribal resistance to allotment resulted in a Supreme Court ruling that it is constitutionally permissible for Congress to break treaties with tribes. So-called “surplus” lands were opened up for settlement by non-Indians, who, by their examples, were supposed to help Indians along the road to assimilation. The allotments to tribal members were subject to federal trust restrictions for a limited period of time, and, when the trust restrictions were lifted, much of this land passed out of Indian ownership. The federal government complemented the land-ownership prong of its assimilationist strategy by taking Indian children away from their homes and sending them to boarding schools.

The overall consequence was a great deal of cultural disintegration and socioeconomic misery, but Indian people tended to insist on continuing to be Indians. Although it failed to achieve its assimilationist objective, the allotment era was very successful in accomplishing what many people regard as its real objective, which was to get Indian land out of Indian possession. During the period from 1887 to 1934, about two-thirds of Indian land passed out of Indian possession. Some tribes escaped having their reservations allotted, generally those without apparent agricultural potential, but for many tribes, the allotment era meant a fundamental betrayal of promises made to tribal leaders scarcely one or two generations earlier. Reservations that had been promised as permanent homelands were now also homes to many non-Indian landowners. In other works I have said that the laws of the allotment era should be acknowledged as an attempt by the federal government to commit cultural genocide of Indian tribes, that is, the destruction of tribes as distinct cultures. I said this not in the sense that we should judge the actions of that era by contemporary standards of international human rights law, but rather in the sense that it is appropriate to apply contemporary human rights norms to present day proposals to give legal effect to the policy underlying the laws of the allotment era.

In 1934, in recognition of the disastrous consequences of the allotment era, Congress rejected this policy and enacted the Indian Reorganization Act (IRA) of 1934. Much has been written about the IRA and about the way in which it was implemented by the federal government. For purposes of this article, the key point is that it put an end to the policy of breaking up tribal landholdings and distributing allotments to individual tribal members. While the IRA did not undo the damage that allotment had done, it does provide legal authority for the Secretary of the Interior to acquire title to land in trust for tribes.

After the Second World War, the federal government once again embarked on a policy of trying to force Indians to stop being tribes and become assimilated into the mainstream as individuals. During this “termination” era, the federal government abruptly terminated the federally-recognized status of more than 100 tribes. While termination per se was imposed on specific tribes, assimilationist policies were applied to many tribes that were not terminated. For example, the federal government devoted substantial resources to relocation of Indian families from reservations to urban areas, and it was in this era that Congress enacted the law commonly known as Public Law 280, which transferred criminal and civil adjudicatory jurisdiction over many reservations to states without any requirement for tribal consent.

Once again, this policy of forced assimilation had disastrous consequences, and, although the policy was never expressly repudiated, it was abandoned and replaced with a policy that is still in effect, known as “self-determination” after the Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975. No particular legal event marked the beginning of the self-determination era, and several acts of Congress consistent with self-determination had been enacted during the decade preceding the ISDEAA. During the self-determination era, tribal governments have made enormous strides in providing a range of governmental programs and services that were previously run by Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS). Tribes have also made much progress in exercising governmental authority based on inherent tribal sovereignty, including the administration of tax laws that provide the kinds of revenue that modern governments need to provide the kinds of services that citizens expect. And, as most Americans are now aware, many tribes operate casinos and other kinds of gaming operations as a means of generating revenue for government programs.

For about four decades now, the policies of the legislative and executive branches of the federal government in relation to Indian tribes have been supportive of tribal self-determination and self-government. Over the past twenty-five years, however, the Supreme Court has had other ideas. During this period, the Supreme Court has been quite active in making it hard for tribes to carry out their responsibilities as modern governments. Many legal scholars have written on this subject, trying to explain and call attention to what the Court has been doing. Drawing on the works of other scholars, this article examines the Court’s recent decisions in the field of federal Indian law. To the extent that the Court’s recent decisions exhibit doctrinal coherence, that coherence can be characterized by what I call the Court’s “whack-a-mole” game theory. This article also offers some observations on the implications of the Court’s recent decisions for the realm of environmental protection in Indian country.

Part I of this article offers a brief explanation of the Court’s “whack-a-mole” game theory in federal Indian law, including the concept of “implicit divestiture” of tribal powers, a concept on which all of “whack-a-mole” game theory rests. Part I also offers some discussion of how this theory was applied by the Court in Atkinson v. Shirley and Nevada v. Hicks. Part II takes note of some of the long-standing principles of federal Indian law and identifies some of the themes and techniques that the Court has used to reach results that are inconsistent with long-standing principles of federal Indian law. Part II also suggests that the cumulative effect of the Court’s use of these themes and techniques demonstrates that over the last quarter century the Court has taken for itself the law-making role in Indian affairs that, under the Con¬stitution, rightly belongs to Congress.

Parts III and IV move on to the realm of environmental law. Part III raises some issues regarding the implications of the Court’s recent case law for the policy of the U.S. Environmental Protection Agency (EPA) in Indian country, a policy that has been in place since 1984. Part IV offers a fairly conservative line of reasoning, drawing on federal preemption in the Indian law context, supporting the conclusion that the Court’s “whack-a-mole” game theory is simply not relevant in the realm of environmental and cultural resources law. In essence, this line of reasoning runs like this: (a) ” whack-a-mole” game theory is based on the concept of implicit divestiture; (b) the Court invented implicit divestiture to deal with a situation in which there were no statutes or treaties from which to discern the intent of Congress; (c) in the realm of environmental and cultural resources law, Congress has enacted statutes that reflect the assumption that these are subjects in which the tribes do possess retained inherent sovereignty; therefore, (d) it is inappropriate to apply the concept of implicit divestiture, and (e) the proper inquiry is whether a state may exercise concurrent jurisdiction or whether the field has been preempted by operation of federal law. I offer this line of reasoning with no pretense that the current Court would find it persuasive the Court’s disregard for long-standing principles of federal Indian law renders representation of tribes before the Court a very risky endeavor.

Part V offers some observations on seeking legislation to reclaim the role of Congress in the field of federal Indian law, including a constitutional line of reasoning based on the doctrine of separation of powers and a line of reasoning based on international human rights law. I hope to develop the human rights line of reasoning in more detail in subsequent work.