Another Supreme Court move away from recognition of tribal sovereignty.

• Author: Searles, Janis
• Position: Case Note

1. Introduction II. Congressional Abrogation of Treaty Rights

   1. Shifting Standards of Abrogation

   2. The Dion Standard III. Judicial Erosion of Tribal Sovereignty: The Montana and

      Brendale Decisions

   1. Montana v. United States

   2. Brendale v. Confederated Tribes & Bands of the Yakima

      Nation IV. South Dakota v. Bourland

   1. The Cheyenne River Reservation and the Fort Laramie Treaty

   2. The Flood Control Act of 1944

   3. The Cheyenne River Act of 1954

   4. The Lower Court's Decisions

   5. The Supreme Court on Bourland

      1. The Montana Analysis

      2. The Dion Standard

      3. Bourland's Ramifications

5. A Possible Solution for the Bourland Situation

   1. The Corps Regulations

   2. Changes in the Corps Regulations VI. Conclusion

1. INTRODUCTION

   Over the past twenty years, the United States Supreme Court has handed down a series of decisions that fundamentally undermines the rights of Indians to govern themselves and to control their lands free from interference by state and federal governments.(1) By continually revising traditional principles of judicial interpretation of treaty rights and their relation to subsequent legislation, the Court has contributed to the erosion of tribal sovereignty.(2) The Court's revisions have resulted in a judicial standard that makes finding a congressional abrogation of treaty rights, especially abrogation of treaty rights to regulate, increasingly easy.

   The Court's recent decisions demonstrate an increasing willingness to allow state jurisdiction to reach into reservations and a corresponding unwillingness to allow tribal jurisdiction to reach beyond tribal members, either on or off reservations.(3) In addition, the Court is unsympathetic to the distinctions between sovereignty and property(4) that could enable tribes to salvage some semblance of self-determination and counter the disastrous effects of the ill-conceived allotment era of the late nineteenth and early twentieth centuries.(5) Rather than regard tribes as sovereign entities whose reservations are extraterritorial to the states in which they are located, the Court views tribes as private organizations(6) whose power must not be allowed to extend over nonmembers.(7) Thus, the Court is often able to circumscribe a tribe's power by interpreting federal statutes of general applicability as abrogating treaty rights.(8)

   In its most recent case involving tribal jurisdiction, South Dakota v. Bourland,(9) the Court took another step away from the traditional tenets of Indian law(10) to find an abrogation of treaty rights implied from congressional silence. In Bourland, the federal government, the tribal trustee, passed a general statute condemning riverfront property along the Missouri River for a dam project.(11) The Court determined that this general statute and subsequent legislation abrogated the tribe's treaty right to regulate on the taken land, relying on two recent decisions(12) which fly in the face of nearly a century of established precedent and utterly ignore the canons of construction. In those cases, as well as in Bourland, the Court departed from the foundational principles that have shaped the field of Indian law since the early nineteenth century.(13) The "effects test" that the Court used in Bourland is in fact a coup d'etat of the Court over Congress in the area of treaty rights abrogation.(14)

   This Note examines the Court's methodology in Bourland and suggests that the Court's willingness to infer abrogation sets yet another dangerous precedent against preserving tribal sovereignty. Section II briefly overviews the various judicial tests used to determine whether a treaty has been abrogated, including the Court's most recent formulation. Section III surveys two recent cases, Montana v. United States(15) and Brendale v. Confederated Tribes & Bands of the Yakima Nation,(16) in which the Court departed from its traditional approach to determining treaty abrogation and preserving tribal sovereignty. Section IV examines the Bourland decision and its ramifications. Section V suggests that because Congress empowered the Army Corps of Engineers with authority over the dam project, changes to the Corps regulations could provide a solution to the particular situation in Bourland. This Note concludes that the majority-dissent pattern of the Supreme Court's recent decisions is a mirror image of the majority-concurrence pattern in the Marshall Trilogy,(17) the nineteenth century cases in which Chief Justice Marshall forged the fundamental concepts that, until recently, defined tribes, power and their relationship to the United States. Those cases established the federal government as the bulwark of authority to protect tribes from state encroachment. The Supreme Court's recent move away from traditional Indian law principles indicates tribes should focus their energies on nonlitigation alternatives to preserve and foster their sovereignty, such as agreements with states and federal agencies and discussions with members of Congress.

2. CONGRESSIONAL ABROGATION OF TREATY RIGHTS

   By virtue of its plenary power over Indian affairs,(18) Congress can unilaterally (i.e., without tribal consent) abrogate treaty rights.(19) Problems arise, however, when Congress passes a federal statute of general applicability that affects treaty rights, but is silent regarding intent to abrogate a particular treaty right.(20) As with other areas of law, the goal of the judicial inquiry is to determine legislative intent. This inquiry is supposedly guided by canons of construction(21) designed to ensure fairness and influenced by the trust relationship(22) between the tribes and the United States.(23) The trust relationship gives the federal government the power to control and manage tribes, "subject to limitations inhering in such a guardianship."(24) Tribes have successfully used the trust relationship to protect themselves from federal actions.(25) This trust relationship arid the canons of construction provide the essential framework for judicial interpretation of tribal rights.

   Canons of construction require a court to read a treaty or other agreement between the United States and a tribe with an eye to protecting tribal interests. Courts have also applied these rules of construction to statutes concerning Indian rights.(26) The canons require that any ambiguous expressions be interpreted in favor of the tribe.(27) As drafter, the United States should not benefit from any lack of clarity, or from the use of highly technical language;(28) courts must construe terms as Indians themselves would have understood them.(29) Also, courts should interpret the document in light of the overarching principle that agreements between the United States and tribes are to be liberally construed in favor of the tribes so as to accomplish their protective purposes.30 However, in the Supreme Court's Bourland decision, which construed two statutes, the canons are conspicuously absent.

   1. Shifting Standards of Abrogation

      Over the years, the Court developed various tests to determine whether Congress intended to abrogate a treaty.3, For example, at one time or another, the Court has 1) required Congress to expressly declare its intention to abrogate,(32) 2) indicated that explicit statutory language of intent to abrogate is preferred,(33) 3) held that abrogation will not be lightly implied,(34) and 4) allowed the legislative history of the statute and the surrounding circumstances to provide adequate evidence of legislative intent.(35) The general principle behind these standards is that legislative intent to abrogate must be clear,(36) but the difficulty lies in determining what suffices as clear evidence of legislative intent. While the various standards reflect a judicial disposition that is protective of tribal rights, the different formulations of what constitutes clear evidence have led to inconsistent results.(37) Generally, in cases where Congress did not make an explicit statement, courts have found abrogation only where the legislative history of a statute provided sufficiently compelling evidence of Congressional intent to abrogate.

   2. The Dion Standard

      In an effort to clarify what an acceptable showing of legislative intent to abrogate is, the Court announced a new test in United States v. Dion.(38) Dion concerned a conflict between a treaty right to hunt and three statutes that purportedly abrogated that right.(39) The case arose after agents of the U.S. Fish and Wildlife Service arrested Dwight Dion, Sr. for shooting eagles protected under the statutes and offering to sell feathers and other parts of the birds. As a defense, Dion pointed to the Yankton Sioux Tribe's treaty right to hunt on its reservation. The Supreme Court's decision addressed the issue of whether Congress abrogated the treaty right to hunt eagles in the Eagle Protection Act.(40)

      In Dion, the Court announced a new three-part test enunciating standards for determining how to find clear and plain legislative intent to abrogate. According to Justice Marshall, writing for a unanimous court, "What is essential is [1] clear evidence that [2] Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and [3] chose to resolve that conflict by abrogating the treaty."(41) The Court's application of the Dion test to the Eagle Protection Act illustrated how the Court envisioned the test would work.

      The Eagle Protection Act makes it a crime to do just about anything with a dead or living eagle or eagle part.(42) However, under certain circumstances, the Act allows the Secretary of the Interior to issue permits to take, possess, or transport eagles for the religious purposes of Indian tribes.(43) This permit provision provided the Court with a strong suggestion that Congress intended to abrogate Indian treaty rights to hunt eagles.(44) To demonstrate the strength of this suggestion, the Court carefully examined the permitting scheme under the new...