A lawsuit in Washington state and another case before the U.S. Supreme Court are part of a coordinated campaign that experts say is pushing once-fringe legal theories to the nation\u2019s highest court and represents the most serious challenge to tribal sovereignty in over 50 years.<\/p>\n
OregonLive | Oregonian<\/a><\/strong><\/p>\n By Karina Brown\u00a0|\u00a0<\/span>Underscore News<\/strong><\/p>\n A lawsuit in Washington state and another case before the U.S. Supreme Court are part of a coordinated campaign that experts say is pushing once-fringe legal theories to the nation\u2019s highest court and represents the most serious challenge to tribal sovereignty in over 50 years.<\/p>\n Maverick Gaming, which operates 19 card rooms in Washington and casinos in Nevada and Colorado, is challenging a 2020 law that allows sports betting only on tribal lands. The lawsuit, filed in federal court in Washington state, claims the law created a \u201cdiscriminatory tribal gaming monopoly.\u201d<\/p>\n But it goes further, arguing gaming compacts between Washington state and tribes are based on race and therefore discriminate unconstitutionally against people who run non-tribal casinos. The argument takes aim at the inherent right of tribal nations to govern themselves and at centuries of U.S. law that recognizes tribal governments\u2019 political parity alongside their state and federal counterparts.<\/p>\n \u201cIt could have really big impacts on basically every law Congress has passed that has to do with tribes and tribal citizens,\u201d said Rebecca Nagle, a journalist, citizen of the Cherokee Nation and host of the\u00a0\u201cThis Land\u201d<\/a>\u00a0podcast, which explored the Brackeen case in detail. \u201cIt\u2019s really the legal foundation for the rights of Indigenous nations in this country.\u201d<\/p>\n The political status of tribal nations is laid out in the Constitution and affirmed by hundreds of years of legal precedent. The U.S. government had to negotiate and, in nearly 400 cases, sign treaties with Native American tribes because of their political, cultural and military strength. Just as the federal government honors the treaties it has signed with France or Germany, it\u2019s bound by those it has agreed to with sovereign Indigenous nations.<\/p>\n \u201cYou don\u2019t make treaties with a race or an ethnic group,\u201d said Daniel Lewerenz, an assistant law professor at the University of North Dakota and attorney with the Native American Rights Fund. \u201cYou make treaties with a political entity, with a sovereign.\u201d<\/p>\n OLD ARGUMENTS GAIN GROUND<\/b><\/p>\n \u201cHow does the federal government promote tribal sovereignty and not discriminate against the rest of us?\u201d asked Lana Marcussen, CERA\u2019s attorney for 25 years.<\/p>\n A 2018\u00a0report<\/a> by the Montana Human Rights Network listed CERA as an anti-Indigenous hate group. (CERA rejects the label.) Travis McAdam, the researcher who authored that report and has been monitoring anti-Indigenous groups for decades, said CERA is the major national advocacy group for a dispersed anti-Indigenous movement mostly made up of small, local groups who focus on specific tribal sovereignty issues like water rights, casinos or hunting and fishing rights.<\/p>\n \u201cAnywhere there is a local organization or community members that are opposing tribes on tribal sovereignty or basically anything, eventually CERA is going to show up,\u201d McAdam said. \u201cAt its core, the anti-Indigenous movement is about destroying tribal sovereignty, getting rid of tribes and erasing tribal culture.\u201d<\/p>\n In effect, CERA has for decades nurtured ideas long rejected by Congress, the courts and a succession of U.S. presidents. But within the current climate of rising extremism and white nationalism, McAdam worries a major ruling would bring them back into the mainstream.<\/p>\n \u201cAnti-Indigenous groups have used those taking points for decades, but the idea that tribal sovereignty and treaty rights somehow penalize nonmembers \u2014 that argument fits into mainstream circles now much better than it did a decade ago,\u201d McAdam said.<\/p>\n In the Termination Era beginning in the 1950s, the federal government enacted policies based on a viewpoint similar to the one espoused by CERA and Marcussen: that Indigenous people should assimilate into American society and give up their Indigenous identities, and that the rights negotiated in treaties and codified in federal laws were preventing them from doing so.<\/p>\n Congress quickly passed 46 laws terminating 109 tribes around the United States, including 62 in Oregon \u2014 more than any other state.<\/p>\n The result was disastrous for Native Americans.<\/p>\n Termination unilaterally dissolved tribal membership and ended the U.S. government\u2019s obligations toward terminated tribes, including the services guaranteed in treaties in exchange for land. Termination policies also allowed the government to seize millions of acres of tribal lands rich with minerals and timber.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n \u201cThe justification for termination was that the federal trust responsibility between the federal government and tribes was holding Native Americans back,\u201d Nagle said. \u201cIt\u2019s just kind of a rinse and repeat argument, that equality for Native people is treating Native people the same as everybody else. That\u2019s a very coded way to talk about erasing the special trust relationship that the U.S. federal government has with tribes.\u201d<\/p>\n Members of suddenly landless tribes scattered, with many moving from their former reservations to cities under federal relocation policies aimed at forcing assimilation. Termination caused dire social disarray and further impoverishment. For the leaders of terminated tribes, it also squashed the ability to prevent such harm.<\/p>\n All three branches of the U.S. government firmly repudiated termination policy in the 1960s and \u201870s, pushing proponents to the political sidelines. Two presidents from opposing parties refused to enforce termination, the courts reaffirmed treaty rights, and in 1975 Congress replaced it with the current federal tribal policy known as self-determination.<\/p>\n Indigenous leaders and activists pushed for more protections of their rights, and Congress soon passed more laws, including the Indian Child Welfare Act, the Indian Healthcare Improvement Act, and the American Indian Religious Freedom Act.<\/p>\n And after decades of work, many terminated tribes eventually won back federal recognition of their sovereignty \u2014 but not their land, in most cases.<\/p>\n So modern-day efforts to undermine tribal sovereignty ring familiar to people like Lewerenz, the Native American Rights Fund attorney.<\/p>\n \u201cThe people who have tried to get whatever it is that Indians have \u2014 whether that\u2019s land or fish or children \u2014 have always done so by trying to claim the mantle of equality,\u201d Lewerenz said.<\/p>\n KEY CASES SHARE ATTORNEY<\/b><\/p>\n Maverick Gaming and Chad and Jennifer Brackeen are also backed by the same legal team.<\/p>\n The Brackeens are challenging ICWA, a 1978 law that requires caseworkers to give preference to Indigenous families in foster and adoption placements of children who are members of a federally recognized tribe.<\/p>\n The law was aimed at correcting centuries of injustice.<\/p>\n Between 1819 and 1969, the federal government took many thousands of Indigenous kids from their homes and forced them to attend brutal schools that employed \u201csystematic militarized and identity-alteration methodologies,\u201d according to a\u00a0report<\/a> released by the U.S. Department of the Interior in May.<\/p>\n After the federal government ended mandatory attendance at American Indian boarding schools, officials continued to remove overwhelming numbers of Indigenous kids from their families and place them in foster or adoptive care outside their communities.<\/p>\n When Congress passed ICWA in 1978,\u00a0studies showed<\/a> that state child welfare agencies and private adoption companies were taking between 25% and 35% of Native kids from their families. And 85% of those children were placed with non-Indigenous families.<\/p>\n Native families are still four times as likely as white families to have kids removed from their homes, according to the National Indian Child Welfare Association.<\/p>\n But some private adoption companies and evangelical groups argue that the law gives preference to Indigenous people as a racial group and therefore violates the equal protection clause of the Fourteenth Amendment to the Constitution.<\/p>\n The Brackeens, a white couple, sought to adopt a 4-year-old girl in foster care, the baby sister of a boy they had already adopted. Devout evangelical Christians, the Brackeens\u00a0told The New York Times<\/a> they saw adoption of foster kids as a way to \u201crectify their blessings.\u201d The Navajo Nation wanted to place the girl, who is Cherokee and Navajo, with a Navajo family, as laid out by the Indian Child Welfare Act. But when that placement fell through, both Indigenous nations supported the Brackeens\u2019 adoption.<\/p>\n Despite their happy ending, the Brackeens are the lead plaintiffs in a federal lawsuit claiming the act is based on a racial preference that unfairly prioritizes Indigenous families as adoptive parents.<\/p>\n For a child welfare dispute that started out in a small Texas family court, the Brackeen case draws unusual firepower.<\/p>\n Texas Attorney General Ken Paxton intervened in the case on the couple\u2019s behalf.<\/p>\n And Matthew McGill,\u00a0an attorney<\/a>\u00a0with the high-powered firm Gibson, Dunn & Crutcher who argued the Citizens United case before the Supreme Court in 2010, took the Brackeens\u2019 case pro bono. He argued on their behalf before the U.S. Supreme Court in November.<\/p>\n His law firm is also known for\u00a0representing<\/a> Chevron in the longstanding lawsuit filed by Indigenous communities in Ecuador, as well as Energy Transfer Partners, architect of the Dakota Access Pipeline. The latter proposal has drawn fierce opposition from the Standing Rock Sioux Tribe, along with the Yankton Sioux, the Oglala Sioux and the Cheyenne River Sioux Tribes, who say the pipeline\u2019s route under nearby Lake Oahe threatens their main source of drinking water and could pollute the waters they hold sacred.<\/p>\n McGill also successfully argued the Supreme Court case that led to the court\u2019s\u00a02018 ruling<\/a> allowing states to legalize sports betting. The firm counts among its clients several major international casino operators.<\/p>\n Two years after McGill\u2019s win in the sports betting case, Washington Gov. Jay Inslee signed a bill allowing sports betting only under Washington\u2019s tribal-state gaming compacts, setting the stage for the Maverick lawsuit.<\/p>\n In January 2022, McGill filed the Maverick lawsuit, as well. He did not respond to requests for an interview.<\/p>\n On its surface, the case is connected to his litigation around betting and gaming. But the legal arguments parallel those of the Brackeen adoption case.<\/p>\n Lewerenz said both cases could result in rulings that cast tribes as \u201cmerely private associations of people with a common racial ancestry.\u201d<\/p>\n \u201cIf that happens,\u201d Lewerenz said, \u201cthen it\u2019s hard to understand why they would have any governing power, any political power.\u201d<\/p>\n Nagle said that power flows from tribes\u2019 unique position as sovereign nations that predate the United States.<\/p>\n \u201cWhat racial group in the United States has its own land?\u201d she asked. \u201cIts own water rights and environmental regulations? Its own police force, its own elections, its own government?\u201d<\/p>\n Tribes fear they stand to lose almost everything: their right to self-governance, the resources to preserve their culture and traditions, and the main economic engine that provides for basic tribal services.<\/p>\n But for those with interests in the private casino industry, such a change could be a boon. The same goes for corporations looking to develop oil and gas leases without interference from Indigenous nations, whose right to co-manage the lands they stewarded for millennia is increasingly recognized by the federal government.<\/p>\n GAMING CHANGE COULD DEVASTATE TRIBES<\/b><\/p>\n The Washington State Legislature authorized gambling only for the state lottery, for tribes, for charitable and nonprofit gaming and, in a much more limited capacity, as a financial boost for bars.<\/p>\n But dozens of non-tribal, for-profit card rooms have expanded the category.<\/p>\n \u201cThose food and beverage establishments have somehow become these massive mini casinos,\u201d said Rebecca George, executive director of the Washington Indian Gaming Association.<\/p>\n That\u2019s where Maverick stepped in.<\/p>\n Its CEO, Eric Persson, declined repeated requests for an interview. But in press releases and news articles about the lawsuit his company filed, Persson says he supports tribal sovereignty.<\/p>\n In fact, Persson is a member of the Shoalwater Bay Indian Tribe, a tiny community located an hour southwest of Hoquiam, Washington, where he grew up. The tribe gave Persson a partial scholarship every semester, according to his spokesman, from undergrad through law school at Georgetown University. Persson is one of over 100 members the tribe estimates it has helped send to college.<\/p>\n Now, the tribe says, his lawsuit could devastate the tribe\u2019s ability to provide government services to its citizens \u2014 including its scholarship fund.<\/p>\n The Shoalwater Tribe is fighting for survival on several fronts. Its reservation is a tiny piece of land. The single square acre set aside by the U.S. government in 1866 is big enough to house the tribal headquarters and not much else. Rising sea levels caused by climate change have eaten into that territory as the ocean has slurped up houses on what used to be forested land above high tide.<\/p>\n \u201cHalf the reservation is underwater,\u201d said Larry Kerns, the tribe\u2019s chief financial officer.<\/p>\n The tribe is using gaming revenue to painstakingly buy back small chunks of its homelands, including areas atop nearby hills that would be a safer place to live. The tribe now owns nearly 5,000 acres.<\/p>\n \u201cIt\u2019s our land and we want it back,\u201d Kerns said. \u201cUnfortunately, we have to buy it back. They stole it from us, and we have to buy it back.\u201d<\/p>\n The Shoalwater tribal government made about $7 million last year in gaming revenue, according to Kerns. It pays for most of the tribe\u2019s governmental services, including education, tribal housing, elders\u2019 pensions, child welfare services, tribal policing and administration.<\/p>\n \u201cGaming income funds basically everything,\u201d Kerns said. \u201cWithout it, we\u2019d have to cut our programs by about 70%.\u201d<\/p>\n The Maverick case threatens it all.<\/p>\n In 2018, the company bought about half the card rooms in the state, adding to the casinos and card rooms it already owned in Nevada and Colorado. Persson immediately launched his campaign to allow sports betting in private clubs throughout the state. Maverick poured\u00a0millions<\/a>\u00a0into a political action committee and lobbied lawmakers in support of a bill in the Washington State Legislature that would allow sports betting in his clubs.<\/p>\n After that bill failed, he tried again with a narrower model, which he said would \u201clevel the playing field\u201d between tribal gaming operations and those that are privately owned by non-tribal entities. That bill also failed.<\/p>\n Lawmakers approved gambling in Washington in part to fund essential government services. Just like the state lottery raises money for education, tribal gaming raises money that tribes use to provide their citizens with education, healthcare, natural resources and behavioral health, George said.<\/p>\n \u201c(Persson) has a bottom line that he wants to grow,\u201d George said. \u201cBut for us, we want to get up to basic standards for our communities, and we still have a long way to go.\u201d<\/p>\n Thirty years after the first tribal casino opened in Washington state, poverty rates among reservation communities there are improving, because of the jobs they create and the government services they fund. But annual incomes among tribal members living on reservations in Washington state average just $18,600, according to a recent\u00a0report<\/a> by the gaming association.<\/p>\n \u201cIndian gaming has helped a lot,\u201d George said. \u201cBut we\u2019re still a good 50% behind the state average for poverty. So there\u2019s still a long way to go.\u201d<\/p>\n