#11472 - Statues Of General Applicability - Federal Indian Law

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

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 law is neither repealed by the EEOA nor is it impermissible under the 5^th Amendment

   5. Reasoning

      1. Not repealed by the EEOA:

         1. Ct uses non-Indian law (but similar to) canons

            1. Repeals by implication are not favored – Congress needs to clearly do this or there must be other evidence Congress wanted to repeal

            2. general policy should not override specific policy unless it was very clearly intended

      2. Not impermissible under 5^th Amendment

         1. Indian Commerce Clause singles out Native Americans as having a special relationship

            1. it would be absurd to say tribes have to be treated like everyone else

            2. its OK to treat them differently

         2. Its not a racial preference “it’s political in nature”

            1. analogizes to Senator needing to be from a certain state

               1. pretty difficult argument given the blood requirement

               2. there seems to be a recognition that Congress needs some special tools to deal with Indian Country

                  1. states are also allowed to treat tribe members differently IF it is to further develop FEDERAL goals

                     1. but its subject to strict scrutiny if a state is furthering a state goal

         3. The entire field of Indian law would be destroyed if Congress couldn’t treat tribes differently

   6. Rule that comes out of case: Congress (or a state) may treat tribes or NAs specially as long as its tied rationally to federal goals of Indian law (a little more difficult than rational basis)

      1. This begs the question of whether a member of a tribe from Michigan will further...