Statues Of General Applicability Outline

1. Statues of General Applicability

   1. Congress passes laws all the time that apply to everyone and do not mention whether they apply or not to tribes

      1. most cases are not like Dion where Congress at least considered the effect on tribes

   2. There is dictum from a case that says unless Congress specially says otherwise general acts of Congress apply to Indians

      1. never been repudiated but highly problematic in light of other fundamental Indian Law principles

         1. Reich v. Great Lakes Indian Fish and Wildlife Comm’n

            1. 7^th Circuit tries to work out the conflict noted above

            2. Issue: whether the fair labor standards applies to the tribes

            3. There were wardens with police power for several tribes that made sure treaty rights were upheld and that NAs to hunting and fishing in an acceptable way – they work a lot of hours in one particular season and they would not get overtime if they were normal policemen bc normal policemen are exempted from the law but there is no mention of exemption of these wardens

            4. There is no evidence that Congress considered the tribal context in any way

            5. This is related to a treaty right in that the officers are there to protect it but not directly a treaty right at issue

               1. thus no need to seek clear statement

                  1. b/c there is no treaty right directly at issue

               2. but its still looming in the background

            6. Hold: Law applies to the tribes but like police, tribal police fall under the exception

            7. Reasoning:

               1. Comity

                  1. the idea is treating sovereigns and quasi sovereigns with greater respect than other litigants

                  2. principles that support excepting other sovereigns (like stat governments) from the law should apply to the tribal officers as well

               2. Seemingly trying to tread as lightly as possible on tribal rights within the bounds of interpretation – so the law itself has to apply to the tribe but makes sense not to apply it to the officers

                  1. pragmatic opinion

                  2. canons: laws are to be interpreted in favor of the tribes and with the backdrop of tribal sovereignty

                  3. Courts have difficulty figuring out if general applicability laws apply – generally hold that they do apply unless conflicts with treaty rights or self governance

                     1. more likely to apply the laws to individual Indians – whereas state law will rarely apply to tribes or tribal members directly

2. Equal Protection

   1. A potential constraint on federal power

   2. an obvious issue b/c there is no doubt the laws treat tribes differently (at least partially based on race)

   3. Morton v. Mancari

      1. BIA had a policy preference of hiring and promoting NAs – non NA BIA employees sued based on:

         1. the Equal Opportunity Act

         2. 5^th Amendment

      2. the preference required:

         1. to be part of a federally recognized tribe

         2. be or more degree of Indian blood

      3. Issue: In light of the Equal Employment Opportunity Act is was this preference repealed?

         1. Ps argued that it did bc the law says you cannot discriminate based on race or national origin

      4. Hold: this...

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