Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

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40 NCHRP LRD 76 real property taxes, and special assessment will be given.437 The BIA Affairs issued a new Fee-to-Trust Handbook in June 2016 which provides additional details on the process.438 The Fee-to-Trust Handbook includes a procedure for si- multaneously requesting a trust acquisition and a reservation proclamation. Reservation proclamations are authorized by 25 U.S.C. § 5110,439 which provides: The Secretary of the Interior is hereby authorized to proclaim new Indian reservations on lands acquired pursuant to any authority con- ferred by this Act, or to add such lands to existing reservations: Pro- vided, That lands added to existing reservations shall be designated for the exclusive use of Indians entitled by enrollment or by tribal membership to residence at such reservations. The Fee-to-Trust Handbook defines a reservation proclama- tion as a formal declaration issued by the Secretary of the Inte- rior, or his or her designee, proclaiming that certain lands are a new reservation or an addition to an existing reservation. A reservation proclamation can encompass multiple trust parcels or a portion of a parcel taken into trust. 440 F. STATE SOVEREIGN IMMUNITY IN SUITS INVOLVING TRIBES States are not immune from suits brought by the federal gov- ernment on behalf of Indian tribes.441 However, states do have immunity from federal suits brought by Indian tribes subject to Ex Parte Young exceptions.442 The Ex Parte Young443 doctrine 437 25 C.F.R. § 151.11. 438 Department of Interior, Bureau of Indian Affairs, Office of Trust Services, Division of Real Estate Services Acquisition of Title to Land in Fee or Restricted Fee Status (Fee-to-Trust) Handbook, Release #16-47, v. IV (rev. 1) (6/28/16), available at, https://www.bia.gov/sites/bia.gov/files/assets/public/raca/ handbook/pdf/Acquisition_of_Title_to_Land_Held_in_Fee_or_ Restricted_Fee_Status_50_OIMT.pdf (accessed July 8, 2018) (hereinaf- ter Fee-To-Trust Handbook). 439 Formerly 25 U.S.C. § 467. 440 Fee-To-Trust Handbook, supra note 438, at 5. 441 United States v. Minnesota, 270 U.S. 181, 46 S. Ct. 298, 70 L. Ed. 539 (1926). 442 Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S. Ct. 2578, 115 L. Ed. 2d 686 (1991). The Eleventh Amendment pro- vides as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prose- cuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Blatchford Court commented: Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sover- eignty, [citations omitted] and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the “plan of the convention” [cita- tions omitted]. Id. at 779, 775, 111 S. Ct. at 2581, 115 L. Ed. 2d at 694. 443 Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). be found at 25 C.F.R. Part 151.433 These procedures require notice to state and local governments when there is any re- quest for land to be purchased in, or converted to, Indian trust status. The types of land may be taken into trust status is described in 25 C.F.R. § 151.3: Land not held in trust or restricted status may only be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress. No acquisition of land in trust sta- tus, including a transfer of land already held in trust or restricted sta- tus, shall be valid unless the acquisition is approved by the Secretary. (a) Subject to the provisions contained in the acts of Congress which authorize land acquisitions, land may be acquired for a tribe in trust status: (1) When the property is located within the exterior boundaries of the tribe’s reservation or adjacent thereto, or within a tribal consolida- tion area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic develop- ment, or Indian housing. (b) Subject to the provisions contained in the acts of Congress which authorize land acquisitions or holding land in trust or restricted sta- tus, land may be acquired for an individual Indian in trust status: (1) When the land is located within the exterior boundaries of an In- dian reservation, or adjacent thereto; or (2) When the land is already in trust or restricted status. Part of the process for taking land into trust involves noti- fying state and local governments with regulatory jurisdiction over the land. When the state and local governments are noti- fied, these entities are asked to provide written comments on the potential impact to regulatory jurisdiction, real property taxes, and special assessments.434 The process differs slightly for appli- cations to take land into trust when the land is located within a reservation or is contiguous to a reservation than when it is outside or noncontiguous to a reservation.435 For both types of applications, one of the factors the Secretary of the Interior con- siders is “jurisdictional problems and potential conflicts of land use which may arise.”436 The farther the land is from the tribe’s reservation, the greater scrutiny the application will receive and the more weight any concerns raised by state and local govern- ments related to potential impacts on regulatory jurisdiction, 433 25 C.F.R. § 151.1 prescribes the purpose and scope of these regulations: These regulations set forth the authorities, policy, and proce- dures governing the acquisition of land by the United States in trust status for individual Indians and tribes. Acquisition of land by individual Indians and tribes in fee simple status is not cov- ered by these regulations even though such land may, by opera- tion of law, be held in restricted status following acquisition. Acquisition of land in trust status by inheritance or escheat is not covered by these regulations. 434 Id. §§ 151.10, 151.11. 435 Id. §§ 151.10, 151.11. 436 Id. §§ 151.10(f), 151.11(a).

NCHRP LRD 76 41 Supreme Court held that the suit against the state was barred by Eleventh Amendment sovereign immunity, citing.448 The Court then considered whether an Ex Parte Young exception was avail- able. While explicitly stating that the Ex Parte Young doctrine remains valid, the Court noted: Today…it is acknowledged that States have real and vital inter- ests in preferring their own forum in suits brought against them, interests that ought not to be disregarded based upon a waiver presumed in law and contrary to fact. See e.g., Edelman v. Jordan, 415 U.S. 651, 673, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). In this case, there is neither warrant nor necessity to adopt the Young device to provide an adequate judicial forum for resolving the dis- pute between the Tribe and the State. Idaho’s courts are open to hear the case, and the State neither has nor claims immunity from their process or their binding judgment.449 The Court continued: “Our recent cases illustrate a careful balancing and accommodation of state interests when deter- mining whether the Young exception applies in a given case… 450[t]his case-by-case approach to the Young doctrine has been evident from the start.”451 The Court went on to find the Ex Parte Young exception inapplicable, holding that “[t]he dignity and status of its statehood allows Idaho to rely on its Eleventh Amendment immunity and insist upon responding to these claims in its own courts, which are open to hear and determine the case.”452 While there is not a plethora of case law on the topic, the Ninth Circuit addressed state sovereign immunity in tribal court in Montana v. Gilham.453 The suit involved the fatal injury of a tribal member when the car in which she was a passenger struck a permanently anchored highway sign at the intersec- tion of U.S. Highways 2 and 89 within the external bound- aries of the Blackfeet Indian Reservation in Montana. The decedent’s mother, Toni Gilham, brought an action against the driver of the car (who was intoxicated at the time of the accident) and the State of Montana in Blackfeet Tribal Court, alleging negligent design, construction, and maintenance of the intersection. Montana filed a motion to dismiss for lack of jurisdiction based upon sovereign immunity. The tribal court denied the motion and the case proceeded to trial, resulting in a judgment against the driver and Montana for $280,000.454 Appeals by Montana to the Blackfeet Court of Appeals and the Blackfeet Supreme Court on the immunity issue were not successful. These courts found that Article II, 448 Id. at 268–69, 117 S. Ct. at 2034, 138 L. Ed. 2d at 447. The court citing Blatchford 501 US at 779-82, 111 S. Ct. at 2581, 115 L. Ed. 2d at 694-95, stated, “we reasoned that the States likewise did not surrender their immunity for the benefit of the tribes. Indian tribes, we therefore concluded, should be accorded the same status as for- eign sovereigns, against whom States enjoy Eleventh Amendment immunity.” Coeur d’ Alene Tribe, 521 U. S. at 268–69, 117 S. Ct. at 2034, 138 L. Ed. 2d at 447. 449 Id. at 274, 117 S. Ct. at 2035, 138 L. Ed. 2d at 451. 450 Id. at 278, 117 S. Ct. at 2038, 138 L. Ed. 2d at 454. 451 Id. at 280, 117 S. Ct. at 2039, 138 L. Ed. 2d at 454-55. 452 Id. at 287–88, 117 S. Ct. at 2043, 138 L. Ed. 2d at 459. 453 133 F.3d 1133 (Filed Oct. 22, 1997). 454 Id. at 1134. permits suits in federal courts seeking prospective injunctive relief to end a continuing violation of federal law when the suit is brought against a state official acting in their official capacity. The Supreme Court considered state sovereign immunity in the context of a suit brought by an Indian tribe in Seminole Tribe of Florida v. Florida.444 In that case, the tribe brought suit to compel negotiations for a state-tribal gaming compact under the IGRA. Congress passed IGRA in 1988, pursuant to the Indian Commerce Clause, to provide a statutory basis for the operation and regulation of gaming by Indian tribes.445 The Act provided in Section 2710(d)(1) that class III gam- ing must, among other things, be conducted in conformance with a tribal–state compact. Section 2710(d)(7) provided that a tribe could bring an action in federal court against the state for refusal to bargain in good faith for a state–tribal gaming compact. The Supreme Court held that Congress’s attempt to abrogate the sovereign immunity of the states in IGRA was a violation of the Eleventh Amendment. The Supreme Court also found that the suit could not proceed as an Ex Parte Young action because IGRA created “a detailed remedial scheme for the enforcement against a State” mandating “only a modest set of sanctions against a State, culminating in the Secretary of the Interior prescribing gaming regulations where an agreement is not reached through negotiation or mediation.” The Court reasoned that permitting tribes to bring Ex Parte Young actions to enforce Section 2710(d)(7) would render the remedial scheme described in IGRA superfluous.446 A year later, the Court issued another decision involving the doctrine of Ex Parte Young, in Idaho v. Coeur d’ Alene Tribe of Idaho,447 again illustrating its careful balancing and accommo- dation of state interests when determining whether the Young exception applies in a given case, particularly where there is a state judicial remedy available. The case involved an action by a tribe alleging ownership in the submerged lands and the bed of Lake Coeur d’Alene and various navigable tributaries and efflu- ents (submerged lands) lying within the original boundaries of the Coeur d’Alene Reservation in Idaho. The Tribe sought a de- claratory judgment establishing its exclusive use and occupancy and the right to quiet enjoyment of the submerged lands. The 444 517 U.S. 44. 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). 445 25 U.S.C. § 2702. 446 Seminole Tribe of Florida, 517 U.S. at 73, 116 S. Ct. at 1132, 134 L. Ed. 2d at 278. Chief Justice Rehnquist stated: “The situation presented here, however, is sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the avail- ability of that doctrine” Id. at 73, 116 S. CT. at 1132, 134 L. Ed. 2d at 277. He went on to state, Here, of course, we have found that Congress does not have authority under the Constitution to make a State suable in federal court under § 2710(d)(7). Nevertheless, the fact that Congress chose to impose upon the State a liability which is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indi- cates that Congress had no wish to create the latter under § 2710(d)(3). Id. at 75-76, 116 S. Ct. at 1133, 134 L. Ed. 2d at 279. 447 521 U. S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438. (1997).