Federal Indian law is a dynamic, ever-expanding field that continues to evolve and overlap with other practice areas as Native American tribes expand their economic and political reach. In this Q&A, David Mullon and Kyle Scherer, the co-chairs of Venable's Native American Law and Policy practice, discuss some of the most pressing issues facing tribes and their past work in the public sector and at Venable. David Mullon is a citizen of the Cherokee Nation and the former general counsel and minority staff director of the Senate Committee on Indian Affairs. Kyle Scherer is a member of the Munsee Delaware Nation and the former deputy solicitor for Indian affairs at the U.S. Department of the Interior.
Q: What are some of the current trends in federal Indian law?
Kyle: Native Nations have been hit particularly hard by the COVID-19 pandemic. Like the rest of country, managing this crisis is front and center for most every tribal leader. Thankfully, through the Coronavirus Aid, Relief, and Economic Stability (CARES) Act and the American Rescue Plan Act, these hard-hit communities have received a combined appropriation of $40 billion. This directed funding represents the single largest federal investment in Indian Country. Managing the compliance, reporting, and oversight requirements can be cumbersome, however, which has allowed experienced Native American attorneys opportunities to help tribal clients navigate various agency regulations and guidelines.
As part of the economic recovery, I'd additionally expect tribes to look to Opportunity Zones as a way of attracting non-Indian businesses and capital. Enacted in 2017 as part of the Tax Cuts and Jobs Act, investments in designated economically distressed communities can provide substantial federal tax incentives. At present, 362 such Opportunity Zones are located on tribal lands, and it's my hope that investors will give these American Indian and Alaska Native communities a hard look, as they have much to offer.
Q: When you say Indian Country, what do you mean?
Kyle: That's a good question. Technically, it's a term of art found at 18 U.S.C. § 1151; it refers to all Indian reservations, Indian allotments, and dependent Indian communities. Each of these categories has its own history, but generally, you can think of Indian Country as those areas over which tribal jurisdiction exists, either because the land is held in trust by the United States, or there are federally imposed restrictions on alienability.
Q: Trust land acquisitions seem to be one of the most litigated areas of federal Indian law, sometimes with one tribe opposing another tribe's request. Could you talk a little about why this process is so controversial?
Kyle: Sure. As I mentioned, trust land is synonymous with Indian Country, which means that it's land on which states have little or no ability to enforce their laws. Because of this jurisdictional status, tribes are able to pursue economic development opportunities without state interference, from smoke shops to casino-style gambling. The ability of any tribe to acquire new trust lands, however, is governed by the Indian Reorganization Act – a statute enacted in 1934 that draws distinctions between tribes, depending on whether they were a "recognized Indian tribe now under federal jurisdiction." In 2009, the Supreme Court provided clarity on the meaning of "now," but even today, this provision is fiercely debated, and forms the basis of many challenges to trust land acquisitions.
Q: Indian law is generally complex, but are there certain states or territories where it can be particularly challenging?
David: There's a lot of consistency in federal Indian law throughout the United States, but a number of special laws have been enacted in both Alaska and Oklahoma that are applicable only to the Indian reservations and the Indian peoples in each of these two states. The basis of these distinctions lies in the unique history of these regions – how they joined the Union, and how Congress subsequently dealt with the very diverse Indian communities residing there. From 1834 to 1907, much of Oklahoma was formally the Indian Territory, which was itself a sad legacy of the forced relocation of many tribes indigenous to Alabama, Florida, Georgia, Mississippi, and North Carolina. A number of statutes were enacted specifically to address the circumstances of the tribes in the Indian Territory, even after the Indian Territory joined the Union as the state of Oklahoma. Alaska is similarly unique, with certain laws directed toward Alaska Natives prior to statehood that still govern the land and its people today.
Q: It seems that the status of lands in Alaska is very much a live issue. Could you provide some background on this?
Kyle: Sure. We're all familiar with the history of treaty-making in the United States. Treaties form the basis of the federal government's trust responsibility toward Native Nations and represent solemn obligations undertaken as part of negotiations over land, mutual assistance, and other matters. In Alaska, there are no treaties. This was an issue as early as 1867, but became a problem in 1959, when the newly admitted state was attempting to select lands from the public domain pursuant to the Statehood Act. With competing aboriginal claims, land selection was complicated, and in 1966, the secretary of the interior froze all transfers to the state until the various Alaska Native claims were resolved. This resolution ultimately occurred in 1971, when President Nixon signed into law the Alaska Native Claims Settlement Act (ANCSA). Among other things, ANCSA repealed all but one of Alaska's Indian reservations. For many years, it was the position of the Department of the Interior that ANCSA effectively prohibited future trust land acquisitions. This view has evolved in recent years, and the Office of the Assistant Secretary for Indian Affairs will be engaging in consultation on this issue later this year. Whatever the decision, I'm sure the issue will be litigated, as it's an incredibly complicated area of law that reflects the frenetic history of federal Indian policy in Alaska.
Q: Can you share an example of the land issues that are present in Oklahoma?
David: I represented the Muscogee (Creek) Nation as part of a team of lawyers from different firms before the Supreme Court in McGirt v. Oklahoma, which is indisputably one of the most significant Indian law decisions in the history of the United States. There are five large tribes located in eastern Oklahoma, which together made up the majority of the former Indian Territory. One such tribe is the Muscogee (Creek) Nation. The case revolved around the question of whether the tribe's reservation had been disestablished through a series of statutes enacted in the early twentieth century. Ultimately, in an opinion written by Justice Neil Gorsuch, the Supreme Court affirmed the existence of the Muscogee (Creek) Nation's reservation, which has major implications for criminal law and tribal jurisdiction, as well as civil regulatory enforcement.
Q: Does the decision have implications for other tribes?
David: Yes, the outcome of the McGirt case extends far beyond the Muscogee (Creek) Nation, as there are four other tribes in the state – the Cherokee, Choctaw, Chickasaw, and Seminole nations – with near-identical legal histories. Since the McGirt decision, federal and state courts have found the reservations of these tribes to have remained similarly intact. Substantively, this means that reservations make up 43% of Oklahoma, which creates a dramatically altered legal environment for the entire eastern half of the state.
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