70 J. Kan. Bar Assn. 1, 24-32 (2001). Tribal v. State Government: Drawing the Lines.

• Author: By Julene L. Miller

Kansas Bar Journals

Volume 70.

70 J. Kan. Bar Assn. 1, 24-32 (2001).

Tribal v. State Government: Drawing the Lines

Kansas Bar Journal70 J. Kan. Bar Ass'n, January 2001, 24-32 (2001)Tribal v. State Government: Drawing the LinesJulene Miller, Tribal v. State Government: Drawing the Lines, J. Kan. Bar Ass'n, January 2001, 24-32By Julene L. MillerI. Introduction and Background

Does a state government have jurisdiction and authority over acts occurring on, people residing in, and land located within the boundaries of Indian reservations and Indian trust lands? What is the extent of tribal jurisdiction and authority over non-Indians and non-tribal members within those boundaries? State and tribal governments throughout the United States historically have struggled to discern the full extent of their respective lines of jurisdiction and sovereignty. The State of Kansas and the Native American tribes with reservation and trust lands in Kansas are no different.[1] This struggle has intensified significantly during recent years, due primarily to the tribes' newly found source of financing and influx of tourism following the United States Supreme Court's decision in California v. Cabazon Band of Mission Indians,[2] and enactment and implementation of the federal Indian Gaming Regulatory Act of 1988 (IGRA).[3]

The IGRA essentially establishes a framework for regulating the conduct of gaming on Indian lands. Congress passed the IGRA in direct response to the Court's decision in Cabazon,[4] which held that the State of California did not have the power, under the statutes then in existence, to regulate gaming conducted by a tribe on its reservation because the state's gambling laws were merely civil or regulatory, as distinguished from criminal or prohibitory.[5] The IGRA, in establishing a statutory procedure to regulate such gaming, gives the states a role in that regulation through a compacting process.[6] With regard to casino-style games, tribes and states are to negotiate compacts to govern the conduct of gaming on Indian lands. A tribe wishing to have casino gaming must request the state in which its Indian lands are located to negotiate, and the state and tribe are to negotiate compact terms in good faith. Terms may include the scope of gaming, authorized to be conducted; the regulatory scheme, and how the parties will resolve any differences that may arise.[7]

In the 139 years that passed between Kansas' statehood and the enactment of the IGRA in 1988, the courts decided only three reported cases which directly pitted an Indian tribe against the State of Kansas.[8] In stark contrast, during the twelve years that the IGRA has been on the books, at least eight such cases have been filed.[9] Although the specific issues involved in each of these cases differ, one factor is consistent throughout - whether the tribe's or the state's governmental powers extend to the point that they have been exercised.

As their economies have grown and developed, the tribes in Kansas have moved aggressively to test the bounds of their authority, raising substantial issues in their wake. This article is intended to assist Kansas practitioners by acquainting them with this rapidly developing area of the law.

2. Historical Context, Prior to Indian Gaming

   1. The Organic Act of 1854 and the Act for the Admission of Kansas Into the Union

      Efforts to discern the relationship between Kansas and the Indian tribes residing within its boundaries predate statehood. For example, the Organic Act of 1854, an Act to Organize the Territory of Kansas,[10] provides:

      [N]othing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with an Indian tribe, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the territory of Kansas, until said tribe shall signify their assent to the president of the United States to be included within the said territory of Kansas, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed.[11]

      Similar language is found in the Act for the Admission of Kansas Into the Union in 1861.[12]

      Judicial interpretations of these two important nineteenth century federal statutes have been inconsistent. In a case decided soon after the Act for Admission, for example, the Kansas Supreme Court construed the second part of the proviso in section 19 of the Organic Act to mean that, if there was no provision in any treaty with the tribe at issue declaring "that the lands of that tribe shall not, without its consent, be included within the territorial limits or jurisdiction of any state or territory," then all the lands of that tribe would be included within the limits and jurisdiction of the territory of Kansas.[13] The Tenth Circuit Court of Appeals very recently adopted this interpretation.[14]

      In contrast, a case decided by the Kansas Supreme Court in 1997 seems to imply that, if there is no provision in any treaty with the tribe declaring that the lands of the tribe shall be included within the geographical boundaries and jurisdiction of the state, then the lands of that tribe will not be considered so included.[15] However, it is important to note that the holding in this case was subsequently clarified by the supreme court to mean only that the first part of the proviso reserves in the federal government plenary powers over the tribes.[16] This means that Congress has primary authority over the rights and responsibilities of Native American tribes, and any tribal or state authority is subject to federal law.[17] In the absence of federal law, answers to the questions surrounding jurisdiction and authority remain open to debate.

   2. Kansas Cases Dealing With Jurisdictional Issues

      Prior to enactment of the IGRA in 1988, most Kansas cases involving Indian law issues resulted from disputes over taxation,[18] land ownership,[19] choice of law[20] or judicial jurisdiction.[21] All of these cases were between individual tribal members on the one hand, and on the other hand either the United States or the state of Kansas. Several of these cases analyzed the state's criminal jurisdiction over individual tribal members and acts occurring on the reservations.[22] As earlier indicated, only three cases directly pitted a tribal government against the state government,[23] one of which involved the authority of the state to enforce its gambling laws on the tribe's reservation.[24] Thus, gaming was an issue of interest for Kansas' tribes even before Cabazon and IGRA.

   3. Federal Policies Affecting Tribal Status

      Whatever the reason for the relative dearth of litigation between tribal and state government in Kansas prior to enactment of the IGRA, it clearly was not because of settled law or consistency in treatment of the tribes by the federal government. For most of the late nineteenth and early twentieth centuries, the federal government's philosophy toward Indians could best be described as erratic.[25] Early changes in federal philosophy with regard to Indians are illustrated by In re Heff.[26] In Heff, the U.S. Supreme Court analyzed the effect of the federal General Allotment Act of 1887,[27] and in that context observed:

      The relation between the [federal] government and the Indians and the rights and obligations consequent thereon have been the subject of frequent consideration by this court. ... In a general way it may be said that the recognized relation between the government and the Indians is that of a superior and an inferior, whereby the latter is placed under the care and control of the former. [Citation omitted.] In the early dealings of the government with the Indian tribes the latter were recognized as possession [sic] some of the attributes of nations, with which the former made treaties, and the policy of the government was, sometimes by treaties and sometimes by the use of force, to put a stop to the wanderings of these tribes and locate them on some definite territory or reservation, there establishing for them a communal or tribal life. While this policy was in force, and this location of wandering tribes was being accomplished, much of the legislation of Congress ran in the direction of the isolation of the Indians, preventing general intercourse between them and their white neighbors in order that they might not be defrauded or wronged through the superior cunning and skill of those neighbors. The practice of dealing with the Indian tribes as separate nations was changed by a proviso inserted in the Indian Appropriation Act of March 3, 1871 (16 Stat. at L. 566, chap. 120, carried into § 2079 Rev. Stat.), which reads: "No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." From that time on the Indian tribes and the individual members thereof have been subjected to the direct legislation of Congress...