1. www.gtlaw.com EidT@gtlaw.com © 2011 Troy A. Eid All Rights Reserved TRIBAL SOVEREIGNTY IN ACTION Presidential Academy in American History and Civics Education University of Colorado School of Law Janelle Doughty, MSW Director Department of Social Services Ute Mountain Ute Tribe jdoughty@utemountain.org Troy A. Eid Chair, Indian Law & Order Commission Shareholder, Greenberg Traurig, LLP eidt@gtlaw.com June 10, 2011

2. - 2 - 2 TRUE OR FALSE? Indians legally became citizens of the United States in 1789, when the U.S. Constitution was ratified.

3. - 3 - 3 FALSE: Native Americans as a group became citizens in 1924, although some individual Indians who adopted “the habits of civilized life” were permitted to become citizens earlier.

4. - 4 - 4 TRUE OR FALSE? Indian tribes hold the legal title to reservation lands.

5. - 5 - 5 FALSE:  The U.S. government holds the title for reservation lands as the trustee for the tribes.  Tribes may not sell or exchange these trust lands without permission from the federal government. Cherokee nation v. Georgia (1831).

6. - 6 - 6 TRUE OR FALSE? Congress can pass a law that changes a treaty between the U.S. government and an Indian tribe.

7. - 7 - 7 TRUE: Congress may unilaterally modify or break such treaties. Lone Wolf v. Hitchcock (1903).

8. - 8 - 8 FOUR PILLARS OF FEDERAL JURISDICTION 1.Indian Tribes are Sovereign: Tribes are domestic dependent sovereigns– independent entities with inherent powers of self-government, but subject to the ultimate authority of the federal government.

9. - 9 - 9 FOUR PILLARS OF FEDERAL JURISDICTION 2.Congress has Plenary Power Over Tribes: Congress ’ power over tribes is plenary – absolute. Santa Clara Pueblo v. Martinez (1978).

10. - 10 - 10 FOUR PILLARS OF FEDERAL JURISDICTION The Major Crimes Act, 18 USC § 1153, is an example of federal intrusion on the traditional power of tribes to even punish their own members for crime, upheld in U.S. v. Kagama (1886).

11. - 11 - 11 FOUR PILLARS OF FEDERAL JURISDICTION 3.States generally lack power over Tribes: The power to regulate tribes is wholly federal; state governments are excluded unless Congress delegates power to them. Worcester v. Georgia (1832) (state law has “ no force ” in the Cherokee Nation)

12. - 12 - 12 FOUR PILLARS OF FEDERAL JURISDICTION In some states, Indians were forbidden to vote in state elections until after World War II even though they were U.S. citizens.

13. - 13 - 13 FOUR PILLARS OF FEDERAL JURISDICTION EXCEPTION: State law applies to a crime by a non- Indian against a non-Indian in Indian Country. U.S. v. McBratney (1881) and U.S. v. Draper (1896).

14. - 14 - 14 FOUR PILLARS OF FEDERAL JURISDICTION 4.Federal Indian law is so confusing because federal policy toward Indians has been so inconsistent over the years.

15. - 15 - 1700s - 1850  Trade and Intercourse Acts (1790-1834): Congress used its Constitutional power in Article I, Section 8 to regulate commerce with tribes, with the President using his treaty-making power. 15

16. - 16 - 16 1700s - 1850  Federal intrusion was limited to preventing tribes to sell/exchange land to non-Indians without permission; to preventing tribes from entering into treaties with foreign countries; and to punishing non-Indians who committed crimes on tribal lands.

17. - 17 - 17 Reservation Era: 1850-1877  Tribes ceded most of their lands and “ reserved ” small portions to themselves or were moved to distant reservations.

18. - 18 - 18 Allotment Era: 1877-1934  The General Allotment Act (Dawes Act) authorized President to allot portions of reservation land to individual Indians, without their or their tribes ’ consent.

19. - 19 - 19 Allotment Era: 1877-1934  Allotments of 160 acres were to be made to each head of a family and 80 acres to others, double if the land was suitable only for grazing, but these quantities were later cut in half.

20. - 20 - 20 Allotment Era: 1877-1934  “ Civilizing ” policy was symbolized by the Dawes Act, and by the creation of Indian boarding schools in 1878 ( “ kill the Indian to save the man ” ).

21. - 21 - Allotment Era: 1877-1934 21

22. - 22 - 22 Allotment Era: 1877-1934

23. - 23 - 23 Allotment Era: 1877-1934  Title for allotted land was to remain with the U.S. government for at least 25 years (but could be and often was extended by the President), whereupon the allottees received a patent, became U.S. citizens, began paying taxes, and were subject to state criminal and civil law.

24. - 24 - 24 Allotment Era: 1877-1934  So-called “ excess ” land not allotted to individual Indians was opened to non-Indian settlement.  Total Indian land base shrank from 138 million acres in 1887 to 48 million in 1934, creating the jurisdictional “ checkerboard ” effect.

25. - 25 - 25 Indian Reorganization Act Era (1934-1953)  Indian Reorganization Act of 1934: Congress restored some aspects of tribal sovereignty, repealing the General Allotment Act, extending existing allotments in perpetual trust status (or with restraints on alienation), and restoring any remaining “ excess ” lands to tribes.

26. - 26 - 26 Indian Reorganization Act Era (1934-1953)  Tribes were authorized to organize and adopt constitutions and bylaws, through a tightly controlled self-referendum process, subject to BIA and Interior approval.

27. - 27 - 27 Termination Era: 1953-1968  1953: Congress passes the Termination Act to “ as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States. ”

28. - 28 - 28 Termination Era: 1953-1968  Several tribes were terminated, made subject to state law, and their lands privatized.

29. - 29 - 29 Termination Era: 1953-1968  Public Law 280 specifically extends state civil and criminal jurisdiction in a number of states without the tribes ’ consent.

30. - 30 - 30 Tribal Self-Determination Era: 1968-Present  Congress acts to strengthen tribal self-government, and delegates various federal programs to tribal governments.

31. - 31 - 31 Tribal Self-Determination Era: 1968-Present  Congress in 1968 enacts the Indian Civil Rights Act, which provides most but not all of the protections of the Bill of Rights against violations by tribal governments.

32. - 32 - 32 Tribal Self-Determination Era: 1968-Present  Indian tribes are older than the U.S. Constitution, so the protections of the Bill of rights did not previously apply to civil rights by tribal governments. Talton v. Mayes (1896).

33. - 33 - 33 Tribal Self-Determination Era: 1968-Present  President Nixon officially ends the termination policy in 1970.

34. - 34 - 34 Tribal Self-Determination Era: 1968-Present  Despite Congress ’ policy of self-determination, the Supreme Court has limited tribal sovereignty in several decisions, notably Oliphant v. Suquamish Tribe (1978) (tribes lack criminal jurisdiction over non-Indians).

35. - 35 - 35 THE JURISDICTIONAL MAZE:  Who does what  To whom  On which land?

36. - 36 - SOVEREIGNTY IN ACTION  Based on United States v. Wood (District of Colorado, 2007) KEY FACTS 1.Mr. Jaime Wood (non-Indian) impaired from marijuana, crosses center line while driving on state highway right-of-way within exterior boundaries of Southern Ute Indian Reservation. 2. Wood's vehicle collides with van, traveling opposite direction, carrying three people:  Grandpa (non-Indian, lives on the Reservation), the driver  Grandma, (enrolled SUIT member, lives on the Reservation), front-seat passenger  Eight-year-old granddaughter (some degree of Indian blood, not enrolled, lives in Denver), riding backseat in child safety seat 36

37. - 37 - KEY FACTS, Continued 3.Grandpa is injured and trapped in vehicle until freed by first-responders. 4.Grandma dies on impact. 5.Grand-daughter burns to death in safety seat 37

38. - 38 - QUESTIONS PRESENTED 1.Which crime(s) did Wood commit? 2.Which jurisdiction(s) is/are responsible for investigating and prosecuting this crime? 3.Does it matter which agencies arrived first at the crime scene? 38

39. - 39 - Questions Presented, Contd. 4.Which criminal law(s) apply -- Southern Ute Tribal law, Colorado State law, and/or Federal law? 5.Who decides if Grand-daughter was an 'Indian,' and how is the term 'Indian' defined? 6.In which court(s) will this case, or cases, be heard? 7.If Wood is convicted, which law(s) will be used for sentencing? 39

40. - 40 - Questions Presented, Contd. 8.What role, if any, does traditional/customary Ute law play in sentencing? 9.If Wood spends time behind bars, which jurisdiction(s) might incarcerate him? 10.If Wood asks to be pardoned, or have his sentence commuted (reduced), who decides: Southern Ute Tribal Chair, Governor of Colorado, and/or the President? 40