Washington Lawyer - March/April 2025 - 16

FEATURE
ATURE
The act was the result of 15 years of
change, influenced by American Indian
activism, the civil rights movement,
and grassroots political participation.
MARY SMITH (right), VENG Group
FIGHT FOR SELF-DETERMINATION
Since the U.S. Constitution granted Congress the authority to " regulate
Commerce with foreign Nations, and among the several States, and with
the Indian Tribes, " there have been shifts in jurisprudence as well as executive
and administrative actions regarding the relationship between
sovereign tribes and the federal government.
In the early 1800s, U.S. Supreme Court Justice John Marshall clarified the
relationship in an iconic trilogy of cases: Johnson v. McIntosh (1823), Cherokee
Nation v. Georgia (1831), and Worcester v. Georgia (1832). In these cases,
Justice Marshall affirmed tribal sovereignty and a nation-to-nation relationship
with tribes not subject to state law. He also articulated the paternalistic
doctrine of federal trust responsibility, writing in Worcester:
" From the commencement of our government, Congress has passed
acts to regulate trade and intercourse with the Indians; which treat them
as nations, respect their rights, and manifest a firm purpose to afford that
protection which treaties stipulate. " In Cherokee Nation v. Georgia, he described
tribes as " domestic dependent nations " in a " state of pupilage. "
Notoriously, President Andrew Jackson and his congressional allies contravened
Marshall's principles with the 1830 Indian Removal Act, which provided
for " voluntary " removal to tracts of land west of the Mississippi River.
The choice was a pretense, and the U.S. government uprooted tribes in
the East, creating a mass displacement known as the Trail of Tears.
Nonetheless, the Marshall trilogy remains bedrock within American legal
discourse and jurisprudence, say Geoffrey Strommer and Steve Osborne,
partners at Hobbs, Straus, Dean & Walker, LLP. Strommer, who has been
actively involved in drafting and lobbying for amendments to the ISDEAA
since 1992, was lead counsel in the two cases that established the right of
tribal contractors to enter into fully funded facility leases under section
105(l) of the act. In 2015 he argued before the U.S. Supreme Court in
Menominee Indian Tribe of Wisconsin v. United States regarding health care
administration costs. Osborne works primarily on issues arising from the
negotiation, performance, and enforcement of tribal contracts and compacts
under the ISDEAA. His firm also represented the Northern Arapaho
Tribe, whose case was consolidated with that of the San Carlos Apache in
the 2024 Supreme Court case Becerra v. San Carlos Apache Tribe.
" On the one hand, you have the government acting in a self-appointed
trust relationship, taking the tribes under its protection. And often that
protection is from the state and local governments, " Osborne says. " On the
16 WASHINGTON LAWYER
* MARCH/APRIL 2025
other hand, we have tribes asserting their self-governance authority and
pushing back against the paternalism. That tension is still playing out. "
Pavel also sees the trilogy of cases as solidified and vital. " The Cherokee
Nation in southeast Georgia was a force; they were landholders, and they
had operating economies. The Chickasaw and the Choctaw, too - all of
those tribes that were the focus of the Southeast removal experience,
like all tribes, were forces in the economy of the nation, " Pavel says. " There
was a responsibility of government to treat them as governments. We
are still trying to animate Justice Marshall's vision of what that federal-
tribal relationship was meant to be. "
AGENCY RESISTANCE
The original 1975 ISDEAA set high principles for self-determination, but
bureaucratic resistance from the U.S. Department of the Interior (DOI)
and HHS (formerly the Department of Health, Education, and Welfare)
was an obstacle to Indian authority, with governmental officials asserting
prerogatives to restrict or deny contracts and other arrangements.
" When the statute was enacted, conceptually it was intended to allow
tribes to go to the IHS and the Department of the Interior's BIA [Bureau
of Indian Affairs], primarily but not exclusively, and take over the funds
those agencies use for Indian people in their communities. The BIA and
IHS staff were not really enthusiastic about doing this over the first 15
years, " Strommer says.
The IHS and BIA did enter into agreements with tribes, but " instead of reducing
the staff in both agencies, the staff grew because they just shifted
their mission from delivering services to micromanaging how tribes
were delivering services, " adds Strommer.
As Native Americans voiced their dissatisfaction, Congress responded
with major amendments, including an additional Title III in 1988 directing
the DOI secretary to establish what became the " Indian Self-Governance
Demonstration Project. " The amendment authorized the establishment
of programs giving tribes broad funding redesign and
reallocation authority.
In 1994 Congress amended the ISDEAA by adding Title IV to permanently
implement the tribal self-governance program within the DOI, enabling
tribes to assume programs, functions, services, or activities that were formerly
provided by the federal government.
Courtesy of Mary Smith
Washington Lawyer - March/April 2025

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