STATEMENT OF THOMAS LECLAIRE

DIRECTOR, OFFICE OF TRIBAL JUSTICE

BEFORE THE COMMITTEE ON INDIAN AFFAIRS, UNITED STATES SENATE

CONCERNING THE TRIBAL GOVERNMENT PROVISIONS OF THE

PROPOSED TOBACCO LEGISLATION

PRESENTED ON FEBRUARY 12, 1998

Mr. Chairman and Members of the committee, good morning and thank you for inviting me to here today. I am Thomas LeClaire, Director of the office of Tribal Justice, Department of Justice.

At the outset, I should emphasize that I am here today to briefly discuss our preliminary views on Federal Indian law and policy as it relates to various legislative proposals concerning the marketing, sale, and regulation of tobacco. The views that I express today are limited to Federal Indian law and policy issues, and are not intended to set forth a general Administration policy position on the proposed tobacco legislation.

THE FEDERAL TRUST RESPONSIBILITY AND GOVERNMENT-TO-GOVERNMENT RELATIONS WITH INDIAN NATIONS

When working with Indian nations it is important to bear in mind the fundamental principles that guide the Federal Government's relations with Indian tribes and nations.

The United States has a unique legal relationship with Indian tribes as set forth in the Constitution, treaties, statutes, court decisions, executive orders, and administrative action. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. E.g., Treaty with the Delaware Nation, 1778, 7 Stat13; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). In hundreds of treaties and agreements, our Nation guaranteed the right of Indian tribes to the "highest and best form of

government -- self-government. Ex Parte Crow Dog, 109 U-S- 556, 568-69 (1883).

Congress has acknowledged that "the United states has a trust responsibility to [Indian tribes] that includes the protection of the sovereignty of each tribal government." See e.g., 25 U.S.C. S 3601(2); see also 25 U.S.C. §§ 450, 1451, 1601, 2501-2502, 3701, and 4101. Under our Federal trust responsibility to protect Indian nations, the United States should exercise the highest standard of care concerning tribal government authority.

The Administration and the Attorney General respect and honor the commitments of the United States to Indian nations. Congress and the Executive Branch recognize the importance of working with Indian nations on issues concerning tribal government, trust resources, and Indian treaty rights within the framework of government-to-government relations. We respectfully submit that any legislation in this area relating to tribal governments should be consistent with Federal government-to-government relations with Indian nations and the status of Indian tribes as domestic nations under the protection of the United States.

DEFINITIONS

In legislation, the term "Indian tribe" should be defined by reference to the Federally Recognized Indian Tribe List Act because the Secretary of the interior maintains a list of federally recognized Indian tribes under that Act. 25 U.S.C. § 479a. The House Committee on Resources emphasized the importance of federal recognition to Indian tribes:

Federal recognition is a] formal political act[;] it permanently establishes a government-to-government relationship between the United States and the recognized tribe as a "domestic dependent nation," and imposes on the government a fiduciary trust relationship to the tribe, and its members.

H.R. Rep. 103-7811 103rd Cong., 2nd Sess. (1994) at 2; 1994 U.S.C.C.A.N. 3768, 3769.

If the terms "American Indian" and "Alaska Native" are used, we recommend that those terms be defined by reference to the term "Indian" set forth in the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450(d), which is based on tribal membership in a federally recognized Indian tribe. Morton V. Mancari, 417 U.S. 535 (1974) (tribal membership is a political status" related to the status of Indian tribes as governments).

TRIBAL REGULATORY AUTHORITY

As domestic dependent nations, Indian tribes are distinct, self-governing political communities that possess governmental authority over their members and their territory. Merrion v.Jicarilla Apache tribe, 450 U.S. 130, 141 (1982)- Indian tribes have plenary authority over Indians, see 25 U.S.C. § 1302 (Indian tribes possess criminal jurisdiction over all Indians within tribal territory), and possess civil authority over the conduct of non-Indians, who enter tribal lands or engage in commercial relations with the tribe or its members in Indian country. Kerr. McGee v. Navajo Nation, 471 U.S. 195 (1985); Montana v. United States, 450 U.S. 544 (1981); 18 U.S.C. § 1151 (Indian country defined).⁽¹⁾

Accordingly, if tobacco legislation is enacted to establish minimum federal law requirements for the manufacture, marketing, distribution, and sale of cigarettes, Indian tribes should have the opportunity to establish tribal law requirements for Indian country consistent with the federal -minimum standards. Tribal legislative authority should not be limited by state law requirements, and state law requirements should not be incorporated by reference in Indian country because Indian peoples have "the right to make their own laws and be ruled by them." Williams v, Lee, 358 U.S. 217 (1959).

Consistent with the Federal Indian Self-Determination Policy, legislation should provide tribal government institutions with the opportunity to enforce federal and tribal law requirements relating to tobacco within Indian country. Some of the smaller tribes may not have the regulatory infrastructure in place to enforce tobacco regulatory laws at this time, so tobacco legislation might include some type of federal certification process by the Secretary of the Interior (or Health and Human Services) to determine whether an Indian tribe has the governmental infrastructure necessary to enforce the laws.⁽²⁾

If the Secretary makes the requisite certification, then the Indian tribe should be recognized as the front line authority for tobacco regulation in Indian country. If the Secretary does not make the necessary certification, the Food and Drug Administration (or other federal agency) should be authorized to enforce federal tobacco laws in the applicant tribe's Indian country. An Indian tribe should have an opportunity to reapply for the necessary federal certification, so that it may perform tobacco regulatory functions when its tribal government institutions become capable of doing so.

Finally, even where Indian tribes are certified as capable of enforcing federal and tribal tobacco regulatory laws, the Federal Government should retain concurrent authority to enforce federal law. (States should not be delegated federal regulatory authority in Indian country in the absence of tribal consent because that would infringe on tribal self-government. Cf. 25 U.S.C. § 1326 (Indian people must, by referendum, approve any extension of state authority in Indian country under Public Law 280); Washington v. Confederated Tribes of the Colville .Reservation, 447 U.S- 134 (1980) (tribal governments are not dependent on, or subordinate to, the States.⁽³⁾

RESERVATION GENERATED VALUE

Based on the United States' recognition of tribal rights to self-government, Indian tribes and reservation Indians generally are exempt from state regulation and taxation in Indian country. See e.g., California v. Cabazon Band Of Mission Indians, 480 U.S. 202 (1987) (regulation); Moe v. Salish & -Kootenai, 425 U.S. 463 (1974) (taxation). In addition, when Indian tribes and Indians generate value on their reservations, federal law may also preempt state taxation of non-Indians engaged in Indian commerce. See White Mountain Apache Tribe v. Backer, 448 U.S. 136 (1980) (non-Indian engaged in reservation timber production with Indian tribe was exempt from state motor fuel taxation).

In New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), for example, the Supreme Court held that non-Indian hunters using a tribal hunting enterprise on reservation lands were exempt from state hunting regulations. The Court explained the basis for its decision as follows:

The Tribe has engaged in a concerted and sustained undertaking to develop and manage the reservation's wildlife and land resources specifically for the benefit of its members. The project generates funds for essential tribal services and provides employment for members who reside on the reservation. . . . The Tribal enterprise . . . clearly involves "value generated on the reservations by activities involving the Tribe."

Id. at 340. Accordingly, the State had no authority to impose license requirements and fees on non-Indians using the valuable hunting resources generated by the Tribe on its reservation.

It is possible that some Indian tribes may raise tobacco, or engage in manufacture of Native American tobacco products. if so, tribal sales may be considered to be based on reservation generated value, and reservation sales of products based on such value to non-Indian would then be exempt from state taxation.⁽⁴⁾ Legislation in this area should, consistent with the regulatory objectives of the !statute, preserve that avenue of development for Indian tribes under the Indian self-determination policy.

PROTECTION OP AMERICAN INDIAN RELIGIOUS USES OF TOBACCO

For centuries, tobacco has been considered essential to the practice of American Indian religions as well as to the preservation of Native American culture and tribal identity. In order to protect this religious exercise from government interference, religious use of tobacco by members of federally recognized tribes should be exempted from any comprehensive tobacco legislation.

The Supreme Court "has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause."⁽⁵⁾ The accommodation doctrine permits the government to single out religion for special treatment under certain circumstances, usually in order to lift a generally applicable regulation, such as tobacco regulation, that significantly burdens the exercise of religion. such accommodation is currently required by the Federal Government under the Religious Freedom Restoration Act of 1993, 42 U.S. § 2000bb. The accommodation doctrine ordinarily prohibits the government from creating exemptions that prefer one religion of others -- in other words, exemptions that cover one religious group or sect but not others. However, this general prohibition does not apply to regulations that accommodate the religious practices of federally recognized Indian tribes. Rather, the federal government has broad latitude to accommodate the religious practices of such tribes because of the special government-to-government relationship between the federal government and federally recognized tribes.⁽⁶⁾ This special relationship provides Congress with broad authority to enact legislation in furtherance of its obligations to Indian tribes, including measures recognizing and protecting the unique aspects of Indian tribes as "separate peoples." See White mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980). Tribal religious practices reflect one such aspect of tribes. In light of this, the federal government may ensure that its actions do not interfere with or destroy Indian religion and culture.

The special relationship between the United states and Indian tribes provides the underpinning of elements of a number of federal statutes, such as the American Indian Religious Freedom Act Amendments, 42 U.S.C. 1996a, National Historic Preservation Act, 16 U.S.C. 470, and the Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001. These statutes, and others, recognize the singular characteristics of Native American culture and, therefore, contain provisions tailored to protect Native American cultural artifacts. A legislative exemption for the religious use of tobacco similarly-recognizes some of the differentiating characteristics of Indian religion. The Department believes therefore that the special Federal-tribal relationship -- in conjunction with the accommodation doctrine -empowers Congress to protect the religious use of tobacco by members of federally recognized tribes.

Finally, the history of attempts by the United States to curtail Indian religious exercise

provide an important justification for Congress to exercise its authority to accommodate Indian religious exercise. The mandate to protect religious liberty is deeply rooted in this Nation's constitutional heritage. American Indian religions, regrettably, have not always enjoyed freedom of religion. For example, from 1894 through the 1930's, the federal government banned " [t]he 'sun-dance'...and all other so-called feasts assimilating thereto," as well as [t]he usual practices of so-called 'medicine men."' Regulations of the Indian office 106 (1894). Against this background, it is important to incorporate protections for American Indian religious uses of tobacco in order to prevent unintended infringement on American Indian freedom of religion.

Mr. Chairman, that concludes my testimony. Again, thank you for inviting me to testify today.

ENDNOTES:

1. An Indian tribe may also retain' civil- authority over the activities of non-Indians on non-Indian lands within its reservation, if the activities threaten the tribe's political . integrity, economic security, or health and welfare. Montana v. United States, supra.

2. This certification process should focus on tribal governmental infrastructure, and not a comparison to state and local governments, because Indian tribes have distinct tribal government institutions based on their own unique histories.

3. Indeed, the States have often been hostile to tribal self governance. United States v. Kagama, 118 U.S. 375 (1886) ; see also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1931).

4. In contrast, where Indian tribes market prepackaged goods, without adding reservation value, non-Indian consumers may be required to pay non-discriminatory state sales taxes. Washington v. Colville, 447 U.S. 134 (1980) (prepackaged cigarettes).

5. Corporation of Presiding Bishops of Church of Jesus Christ of Latter-Day Saints v, Amos, 483 U.S. 327, 334 (1987) (quoting Hobbie v. Unemployment Appeals Comm'n -of Fla., 480 U.S. 136, 144-45 (1987)) .

6. Morton v. Mancari, 417 U.S. 535 (1974) (preferences for federally recognized Indian tribes are subject to less exacting scrutiny under the Equal Protection Clause than racial or ethnic preferences because of the historical and political relationship between tribes and the federal government). Two Courts of Appeals have extended Morton's logic to the Establishment Clause context. In Rupert v.-Director, U.S. Fish and Wildlife Service, 957 F.2d 32 (lst Cir. 1992) (per curiam) , the First Circuit upheld an exemption for federally recognized Indian tribes from the federal criminal prohibition on the possession of eagle feathers. The Fifth Circuit, in Peyote Way Church of God, Inc. v. Thornburqh, 922 F. 2d 1210 (5th Cir. 1991), similarly upheld exemptions for the Native American Church from federal and state laws prohibiting peyote possession.

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