Major Documents

Following are narrative summaries of certain federal laws and significant federal and tribal documents that Warm Springs tribal leadership will come into contact with on a frequent basis. It is intended to provide a background for some of the legal principles which apply to the relationships of the Tribes with the federal and state governments and the functioning of the government of the Tribes. The field of federal Indian law is extremely complex and is still developing. This outline is not intended to cover all issues which may arise. Source: Arnett, H. G. (2016). Major Tribal Documents, 27th Tribal Council Workshop. Karnopp, Petersen LLP: Bend, OR.

Constitution of the United States, “Indian Commerce Clause”

• Article I, Section 8(3) of the Constitution of the United States provides that the Congress shall have the power: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
• This is the source of the supremacy of federal law relating to Indian tribes, and of Congress’ “plenary power” in the field of Indian affairs.

Early Congressional actions

• In 1789, the first Congress of the United States enacted four statutes which established the basic outlines of early Indian legislation. These established the Department of War (with jurisdiction over Indian affairs), provided for government of territories (the Northwest Ordinance), appropriated money for negotiating treaties with Indian tribes, and established a salary for a “superintendent of Indian affairs.”
• These four early statutes established the essential administrative and financial machinery for dealing with Indian affairs. Congress invoked four major sources of authority: (1) the power to make war and, presumably, peace; (2) the power to govern territories; (3) the power to ratify treaties; and (4) the power to spend money.
• Between 1790 and 1834, Congress enacted several “trade and intercourse” acts, which established the primacy of the Federal Government, over the states, in dealings with Indian tribes. Trade and intercourse acts prohibited any conveyance of Indian land without the approval of the Federal Government. Beginning of the concept of “trust land”.

Treaty with the Tribes of Middle Oregon of June 25, 1855

• Government-to-government agreement between the United States and the Tribes and Bands of Middle Oregon. It defines the relationship between the Tribes and the United States.
• The Treaty of 1855 is a grant from the Tribes to the United States, with the Tribes reserving all rights and property not specifically granted to the United States. United States v. Winans, (1905). (“Reserved rights” doctrine).
• Judicially established rules of construction (“canons of construction”) are that treaties be liberally construed to favor Indians, Choate v. Trapp, (1912), that ambiguities in treaties will be resolved in favor of the Indians, Winters v. United States, (1908), and that treaties should be construed as the Indian would have understood them, Choctaw Nation v. United States, (1943).
• The Treaty of 1855 preserved the sovereignty of the Tribes, except to the extent it was specifically relinquished and subject to the “plenary power” of the United States. Treaty’s reservation of the “exclusive use” tribal homeland affirmed the Tribe’s inherent sovereign power to govern its land and people. (“Inherent sovereignty” doctrine). Worcester v. Georgia, (1831).
• The Treaty of 1855 created the trust responsibility of the United States to the Tribes. The trust responsibility was first stated by U.S. Supreme Court Chief Justice John Marshall in Cherokee Nation v. Georgia, (1831), when the Court concluded that Indian tribes:
  “may, more correctly, perhaps, be denominated domestic dependent nations … in a state of pupilage … their relation to the United States resembles that of a ward to his guardian.”
• As with treaties with foreign nations, the Treaty of 1855 was subject to ratification by the Senate (which occurred on March 8, 1859) and proclamation by the President (which was done by President James Buchanan on April 18, 1859) The Treaty of 1855 is part of the supreme law of the land.
• The Original Treaty of 1855 is kept in the Archives of the United States in Washington, D.C., which is where the Declaration of Independence, the Constitution, and other significant government documents are housed.

Treaty of 1865

• Ten years after the Treaty of 1855, a supplemental Treaty of 1865 was signed.
• This treaty claimed to relinquish off-reservation rights reserved by the Treaty of 1855 and require tribal members to secure a pass from the Indian agent to leave the reservation.
• The Treaty of 1865 has only 21 tribal signatures, while the Treaty of 1855 contained over 150 signatures.
• The U.S. Government’s records from the time indicate that the Treaty of 1865 was a fraud on the people, and that their only understanding was that the pass system was to protect them from hostile non-Indians and that they would have never knowingly relinquished their off-reservations rights.
• The Treaty of 1865 has never been enforced and there are numerous federal and state statutes, court decisions and administrative rules recognizing the continued validity of off-reservation rights under the Treaty of 1855.
• The Tribes have never observed or recognized the Treaty of 1865. It was very nearly declared a nullity by Congressional action in late 1996 and efforts to have that done are continuing.

Wheeler–Howard Act or Indian Reorganization Act (IRA) of 1934 (48 Stat. 984)

• Resulted from the 1928 “Meriam Report,” legislation proposed by Commissioner of Indian Affairs, John Collier appointed in 1933. Represented a major shift in federal Indian policy away from the assimilation policy of the late 19th Century, which had as its centerpiece the 1887 General Allotment Act, to a policy of support for tribal governments.
• The IRA was part of Collier’s attempt to encourage economic development, self-determination, cultural plurality, and the revival of tribalism. It was intended to stop the disastrous impacts of the 1887 General Allotment Act (Dawes Act), which resulted in loss of two-thirds of Indian land over 50 years. The IRA prohibited further allotments and authorized tribes to acquire lands in trust (“fee-to-trust” process).
• The IRA allows tribes, at their option and upon a vote of the adult members to adopt a Constitution and Bylaws pursuant to the terms of the Act, which provided a congressional sanction of tribal self-government. Initially, 187 tribes voted to accept it and 77 rejected it. This is Section 16 of the IRA.
• IRA also allows tribal members to vote to receive a Charter as a federal corporation. This is Section 17 of the IRA.
• IRA also has important provisions protecting land and preserving existing rights.

Constitution and Bylaws of the Confederated Tribes of the Warm Springs Reservation of Oregon

• Adopted by tribal members pursuant to §16 of the IRA by a vote of 181 for and 77 against at an election held on December 18, 1937.
• Defines the relationship between the Tribal Council, as governing body, and the tribal members.
• Is a grant by the people of specific powers to the Tribal Council, reserving to the people all powers not specifically granted. Art. V, §. 4.
• Was approved by the Secretary of the Interior on February14, 1938.
• Constitution has been amended by vote of the people fourteen times.

Corporate Charter of the Confederated Tribes of the Warm Springs Reservation of Oregon ratified April 23, 1938

• Adopted pursuant to §17 of the IRA by a vote of 180 for and 62 against at an election held on April 23, 1938.
• Corporate charters under the IRA were intended to provide tribes with the opportunity to have a modern form of doing business which would be recognizable and familiar in circles of commerce.
• Corporate Charter has been amended four times. Important amendments provided for leasing of power sites on the reservation and allowed the establishment of “Business Enterprises” by a vote of the people. Warm Springs Forest Products, Warm Springs Power Enterprise, and Warm Springs Composite Products are all organized as business enterprises under the Corporate Charter. Other tribal enterprises, such as Warm Springs Casino and Resort Enterprise, are organized under the Tribe’s Constitution, Article 5, Section 1(f) and (o).
• Defines relationship between the Tribe, as a corporate and business entity, and the outside world.

Public Law 280 (18 U.S.C. §1162)

• A 1953 (“Termination Era”) Federal law that extends state criminal and civil jurisdiction to Indian Country in six original states (ten others were later included), including Oregon. However, the Warm Springs Reservation was specifically excluded from the application of P.L. 280 at the request of the Tribe.
• P.L. 280 was passed by Congress because of the perception that there was a break down of law and order in much of Indian country because of jurisdictional questions and too few resources. P.L. 280 was also an expression of the “Termination Era” policy that prevailed in Congress in the 1950s and early 1960s.
• Exemption from P.L. 280 has permitted the Confederated Tribes to govern the Warm Springs Reservation with relatively little interference from state and local governments. Warm Springs is the only Oregon reservation that has never been subjected to state jurisdiction by P.L. 280. Later amendments to P.L. 280 permitted ‘retrocession” of state jurisdiction to Tribes that were originally subject to P.L. 280, which has happened in Oregon with the Umatilla Tribe and the Burns Paiute Tribe.
• Note that P.L. 280 deals with Indian territory, rather than tribes, and that the exemption is for the Warm Springs Reservation, not for the Tribes. What this means is that Warm Springs trust lands located outside the Warm Springs Reservation are subject to P.L. 280.

1972 McQuinn Act

• Immediately after the 1855 Treaty when the treaty signing tribes and bands moved to the Warm Springs Reservation, tribal leaders complained that the survey of the Reservation’s northern and northwestern boundaries was incorrect and not in compliance with the boundaries described in the 1855 Treaty. Eventually, the survey, called the Campbell–Hadley line, was acknowledged by the Government to be erroneous and correct survey, called the McQuinn line, was accepted as the correct northern and northwestern boundaries of the Reservation. However, it took many decades of persistent efforts by Warm Springs tribal leaders for Congress to finally correct the erroneous survey by passing the 1972 McQuinn Act, which restored to the Reservation 120,000 acres located between the Campbell-Hadley line and the McQuinn line. Most of the land in the McQuinn strip was part of the Mt. Hood National Forest. The Act included a 20 year phase out of public access to former forest service lands. The phase out ended in 1992 and from that point forward the McQuinn strip became fully integrated into the rest of the Warm Springs Reservation.

1972 Warm Springs Inheritance Act

• Also in 1972, Congress passed the Warm Springs Inheritance Act, which allows the Tribe to purchase the interests of any non-member in trust land within the Reservation and within the 1855 Treaty ceded area, which otherwise might pass out of tribal member ownership through inheritance. This method of consolidating Tribal land holdings and avoiding the effects of “fractionated” ownership of trust allotments by non-members has been incorporated into later national Indian legislation such as the Indian Land Consolidation Act and its amendments. Through the Warm Springs Inheritance Act, the Tribe has re-acquired thousands of acres of trust land and kept such trust lands from falling into non-member ownership.

1975 Indian Self Determination and Education Assistance Act

• In 1975, Congress enacted the “Indian Self Determination and Education Assistance Act”, which is better known as “Public Law 93-638.”. This very important federal law is the centerpiece of what is called the “self-determination” era of federal Indian policy. It provides a mechanism for tribes to take over BIA and Indian Health Service programs that serve their reservations. The federal funds that paid for the BIA and IHS programs are “contracted” to the tribes to run the programs themselves, subject federal oversight. The law has been amended several times and now allows tribes to “compact” for BIA and IHS programs on a broader basis. Some tribes, such as the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana, have “compacted” for virtually all federal programs previously operated by the BIA and the IHS on the Flathead Reservation. Other tribes, such as Yakama and, to a certain extent, Warm Springs, still have the BIA operating some programs, such as realty and roads, and the IHS still providing health services. Such tribes are called “direct service” tribes.

1982 Per Capita Act

• Warm Springs and other timber tribes have for many years made small “per capita” payments to its members of the revenue generated from the utilization of the Tribe’s trust timber resources. Such per capita payments have always been regarded as tax exempt to the tribal member recipients. In 1982 Congress passed a law that permitted tribes, rather than the BIA, to issue the trust per capita checks from the tribe’s trust account. The1982 law also re-affirmed that trust per capita payments were non-taxable. However, in 2012, the IRS informed Warm Springs (and other tribes) that it now considered trust per capita payments to be taxable. For the past year, Warm Springs has worked with other tribes, the Department of Interior and Congress to force the IRS to comply with the 1982 Per Capita Act and treat trust per capita payments as tax exempt. Tribal officials are expecting a successful resolution of this issue in 2013.

1988 Treaty Indian Fishing Tax Exemption

• In 1988, to resolve court battles between Treaty Indian fishermen in the Pacific Northwest and the IRS, Congress passed a law expressly exempting from state and local taxation the income earned by Indians enrolled in tribes with Treaty fishing rights that is derived by treaty fishing rights related activities. Thus, Warm Springs tribal fishermen and those tribal members who are employed by the Tribe or a tribal organization (such as CRITFC) to work on Treaty fishing rights related activities, are not subject to state or federal income tax on their income earned from such Treaty fishing and fishing rights related activities.

1988 The Indian Gaming Regulatory Act (“IGRA”) and Warm Springs Compacts

• IGRA was adopted by Congress in 1988 after the U.S. Supreme Court decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), which upheld the right of Tribes to conduct any type of gaming that the state where the tribes are located does not criminally prohibit, as opposed to civilly regulate.
• IGRA provided the states with a role in Indian gaming, through the requirement of a Class III gaming compact, that had been denied by the Supreme Court in Cabazon.
• Under IGRA, gaming is divided into three classes: Class I, which is traditional Indian gaming and subject only to tribal jurisdiction; Class II, which is games like bingo and electronic games in which players play against one another and not against the “house” and is under tribal jurisdiction provided the tribe regulates the games pursuant to a tribal ordinance approved by the National Indian Gaming Commission and operates Class II gaming consistent with National Indian Gaming Commission regulations; and Class III, which is Las Vegas-type casino games, and must be conducted under a “compact” between the tribe and the state. The state, however, has no role with regard to Class I and Class II tribal gaming.
• IGRA provides that tribes may conduct any type of game that is allowed in the state by anyone at any time. If a state does not negotiate in good faith for a Class III compact, IGRA provides that the tribe may sue the state in federal court. However, the U.S. Supreme Court held in Seminole Tribe of Florida v. Florida, 116 U.S. 1114 (1996), that the provision for suit was unconstitutional under the 11th amendment to the Constitution of the U.S. The effect of that decision is to deny tribes any remedy if a state will not negotiate in good faith. There have been proposals for legislation to correct this, however these have been unsuccessful. The Secretary of Interior, however, has adopted regulations allowing the Secretary to issue compacts if the state refuses to negotiate in good faith for a Class III gaming compact. This issue continues to be the subject of intense political activity in Congress and within the Administration.
• Although the Tribe is exempt from P.L. 280, Warm Springs is not exempt from the state’s role in Class III gaming through the compact requirement of IGRA.
• Pursuant to IGRA, Warm Springs negotiated and executed a Compact with then Oregon Governor Barbara Roberts on Jan.6, 1995. The Compact was amended by agreement with Oregon Governor John Kitzhaber and was set to expire on March 30, 1999, but was extended several times. An Amended and Restated Compact for the casino at Kah-nee-ta was signed with Governor Ted Kulongoski on April 6, 2005. This compact was amended and restated again in 2011 to provide for a relocation of the Class III casino from Kah-Nee-Ta to its new location on Highway 26 in the Warm Springs community. This Compact, which is a perpetual compact, was signed by Governor Kitzhaber on August 26, 2011 and later approved by the Secretary of Interior.
• Warm Springs also negotiated with Class III compact with former Governor Ted Kulongoski governing gaming at a site in Cascade Locks. This compact was approved by the Secretary of Interior on March 1, 2011, although by its terms the Cascade Locks compact does not take effect unless the Cascade Locks casino site is taken into trust and approved for gaming by the Secretary of Interior.
• The Tribes regulates its gaming activities through its governmental entity the Warm Spring Gaming Commission. The tribal gaming ordinance currently provides for three Gaming Commissioners appointed by the Tribal Council.

1992 Declaration of Sovereignty

• Beginning in 1990, the Tribal Council worked on drafting a “Declaration of Sovereignty” with the assistance of Indian Law Professor Charles Wilkinson of the University of Colorado (and formerly the University of Oregon) School of Law, Richard Trudell of the American Indian Lawyer Training Program, Inc. and the Tribal Attorneys.
• This document attempts to set forth each of the three Confederated Tribes’ own traditional concept of their inherent and retained sovereignty.
• The Declaration of Sovereignty was executed by some members of the Tribal Council on April 30, 1992.

1997 Water Settlement Agreement

• Pursuant to the “Winters Doctrine”, established by the U.S. Supreme Court in the Winters case in 1908, Indian tribes have a reserved right to as much water as is necessary to meet the purpose of their reservation, even though the treaty establishing the reservation did not specifically mention water rights.
• This water right is “unquantified,” meaning it is not defined as to the amount, but is subject to quantification by a federal or state court proceeding or by negotiation.
• Water rights litigation has always been very protracted and expensive to all involved.
• The standard measure by which courts quantify the Indian reserved water right is by “practicable irrigable acreage,” the amount of water required to irrigate crops that will grow economically on the reservation lands that have the soils, climate and topography to support agriculture.
• In the early 1980s, the Tribes began the process of negotiating the settlement of the water rights of the Warm Springs Reservation.
• The Water Settlement Agreement was executed by the Tribes, the United States, and the State of Oregon on November 17, 1997.
• The agreement does not rely on practicable irrigable acreage, but reserves to the Tribes for consumptive or in stream use all of the water arising on the Reservation, as well as consumptive rights and guarantees of in stream flows on bordering streams.

The Federal Power Act, the Pelton case, and the Pelton Project License

• The Federal Power Act (“FPA”) was originally adopted by Congress in 1910 and has been amended several times since that time. It provides for a comprehensive scheme for the development of hydro-electric power on navigable streams of the United States.
• When the Federal Power Commission (now the Federal Energy Regulatory Commission or “FERC”) issued the original license for the Pelton Project (which also includes the Round Butte and reregulating dams) to Portland General Electric Company (“PGE”), the State of Oregon objected and took the case all the way to the U.S. Supreme Court.
• In the Pelton case, Federal Power Commission v. Oregon, 349 U.S. 435 (1954), the Supreme Court held that the consent of the State of Oregon was not required because the consent of the Tribes had been obtained and the power site was federal lands and Indian power site reserves.
• In 1982 the Tribes became a co-licensee of the Pelton Project for purposes of construction and operation of the generating facility at the re-regulating dam. The re-regulating dam generating facilities are wholly owned by the Tribe.
• The original Pelton Project license expired on December 31, 2001. Prior to expiration, the Tribes and PGE gave competing Notices of Intent to seek a new license. This competitive filing ultimately led to the Tribes and PGE reaching, in 2000, a Global Settlement Agreement regarding the terms of ownership, operation, and compensation. This paved the way for the Tribe and PGE to file a joint-license application.
• Under the Global Settlement Agreement, the Tribe owns 33.33% of the project and has the right to acquire an additional 16.66% interest at the end of 2021 and an additional .02% at a later date. Exercising these rights will result in the Tribe becoming the majority owner of the Pelton Project.
• On June 21, 2005, FERC issued a new 50 year license to the Tribe and PGE for the Project, including the Tribe’s re-regulating dam generation facilities.
• To finance many of the Protection, Mitigation and Enhancement requirements of the new License and to refinance certain other obligations, in 2009, the Tribe issued two bond series in an aggregate amount of $58.55 million.

The Endangered Species Act (“ESA”) and the 1997 ESA/Tribal Rights Secretarial Order

• The Endangered Species Act (“ESA”), a very strict environmental law that protects plants and animals that are in danger of extinction, was passed by Congress in the early 1970’s.
• It is an unsettled legal question as to whether the ESA applies to tribes and whether it overrides Indian treaty hunting and fishing rights, but it clearly applies to federal actions.
• In the early 1990’s, the National Marine Fisheries Service (“NMFS”), which administers the ESA for salmon and steelhead, “listed” several Snake River salmon stocks for protection under the ESA. More recently, NMFS listed “Mid-Columbia steelhead,” which includes Deschutes River steelhead, as a threatened species. Also, the U.S. Fish and Wildlife Service has listed Northern Spotted Owls and bull trout as threatened species, both of which are found on the Reservation and utilize the Reservation as habitat. A “listing” means that strict controls are imposed on any activity that might kill a listed species.
• The listing of Snake and Columbia River salmon and steelhead stocks has affected the Tribes’ Columbia River fisheries because the listed fish are subject to harvest by tribal fishermen exercising treaty rights on the Columbia.
• The potential conflict between the ESA and tribal treaty rights and tribal sovereignty led Warm Springs and other tribes to negotiate a “Secretarial Order” issued in 1997 by the Secretary of Commerce and the Secretary of Interior (the two federal departments charged with enforcing the ESA). The Secretarial Order lays out how the Federal Government will carry out its duties under the ESA is a manner that is consistent with the Federal trust responsibility and is respectful of Indian treaty rights and tribal sovereignty. The 1997 ESA/Tribal Rights Secretarial Order is still in effect, and has worked to avoid a legal showdown between tribes and the federal government over treaty rights vs. the ESA.

2010 Tribal Law and Order Act

• In 2010, Congress enacted the most significant legislation affecting Tribal Courts and criminal justice in Indian Country since the passage of the Indian Civil Rights Act in 1968. The 2010 Tribal Law and Order Act in designed to address crime in Indian country by enhancing the capabilities of Indian tribal courts. The most important part of the legislation allows tribal courts, if certain standards are met, to impose “enhanced” sentences for up to three years in prison for the most serious crimes committed in their jurisdiction. To exercise the enhanced sentencing authority, tribal courts must provide law trained personnel at all levels of the tribe’s criminal justice system (public defender, prosecutor, tribal judge, appellate judge). Warm Springs is working toward meeting the standards so that the Warm Springs Tribal Council will be able to exercise the enhanced sentencing authority.

1968 Indian Civil Rights Act including 2013 VAWA Amendments

• In March, 2013, Congress “re-authorized” the Violence Against Women Act (“VAWA”) to permit Indian Tribal Courts, in certain circumstances, to criminally prosecute non-Indians for crimes involving domestic violence. This legislation, which amends the 1968 Indian Civil Rights Act, overrules the U.S. Supreme Court’s 1978 decision in Oliphant v. Suquamish Tribe, which held that tribes lacked criminal jurisdiction over non-Indians. The VAWA amendments are subject to a two year phase-in, and tribes exercising criminal jurisdiction over non-Indians in domestic violence cases must meet the criminal procedure safeguards set out in the 2010 Tribal Law and Order Act. Currently, three tribes (Confederated Tribes of the Umatilla Indian Reservation, Tulalip Tribes of Washington and the Pascua Yaqui Tribe of Arizona) have been approved by the U.S. Department of Justice to exercise the expanded criminal jurisdiction provided for in the 2013 VAWA amendments.

Warm Springs Tribal Code, Chapter 30 (Limited Waivers of Sovereign Immunity)

• This important Tribal code chapter sets out a uniform procedure for the Tribe to consider whether to provide a limited waiver of tribal sovereign immunity in contracts and legal agreements so that the terms of such contracts and agreements are fully enforceable. Especially in the area of the Tribe’s business relationships, other parties often insist on the enforceability of legal agreements in order to do business with the Tribe and its enterprises.

Warm Springs Tribal Code, Chapter 120 (Ordinance 94), Enrollments

• In 2012, after years of consideration and discussion, the Tribal Council adopted an ordinance (no. 94, chapter 120 of the Tribal Code) setting out the procedures and requirements for enrollment, which are embodied in the Tribal Constitution and its amendments. The ordinance puts in tribal code form the past practices and procedures used by the Tribal Council in carrying out the Constitution’s enrollment provisions.