The legacy of Bryan v. Itasca County: How an erroneous $147 county tax notice helped bring tribes $200 billion in Indian gaming revenue

Minnesota Law Review

Volumn 92, Issue 4, 2008, Pages 919-970

  Washburn, Kevin K ^a,b  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 44849108736     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (364)

1. Interview with Helen Johnson, in Cass Lake, Minn. (May 25, 2007); see also Complaint, Bryan v. Itasca County, No. 25081 (Minn. 9th Jud. Dist. Dec. 8, 1973),
2. reprinted in Appellant's Brief app. at A-2 to -3, Bryan v. Itasca County, 228 N.W.2d 249 (Minn. 1975) (No. 44947).
3. Interview with Helen Johnson, supra note 1.
4. 426 U.S. 373 (1976).
5. See Interview with Mariana Shulstad, former Field Solicitor, U.S. Dep't of the Interior, in Minneapolis, Minn. (Sept. 1, 2006); Interview with Steven Thorne, Esq., in St. Paul, Minn. (Aug. 22, 2006); see also infra note 132 (listing the cases associated with the Leech Lake hunting and fishing litigation).
6. See, e.g., ROBERT N. CLINTON ET AL., AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM 885-90 (4th ed. 2003);
7. DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 499-504 (5th ed. 2005).
8. 480 U.S. 202 (1987).
9. E.g., Alexa Koenig & Jonathan Stein, Lost in the Shuffle: StateRecognized Tribes and the Tribal Gaming Industry, 40 U.S.F. L. REV. 327, 348 (2006).
10. Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162 (2000) and 28 U.S.C. § 1360 (2000)). With respect to the current civil portion of Public Law 280: (a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State: State of Indian country affected Alaska[:] All Indian country within the State. California[:] All Indian country within the State. Minnesota[:] All Indian country within the State, except the Red Lake Reservation. Nebraska[:] All Indian country within the State. Oregon[:] All Indian country within the State, except the Warm Springs Reservation. Wisconsin[:] All Indian country within the State. (b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. (c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section. 28 U.S.C. § 1360.
11. Bryan v. Itasca County, 426 U.S. 373, 384 (1976).
12. See NAT'L INDIAN GAMING COMM'N, BIENNIAL REPORT OF THE NATIONAL INDIAN GAMING COMMISSION 1998-2000, at 3 (n.d.), available at http://www.nigc.gov (follow "Reading Room" hyperlink; then follow "Reports" hyperlink; then follow "Biennial Reports" hyperlink; then select "1998-2000 Biennial Report" pdf icon) ("In 1988, tribal governmental gaming produced approximately $500 million in total annual revenue.");
13. STEVEN ANDREW LIGHT & KATHRYN R.L. RAND, INDIAN GAMING & TRIBAL SOVEREIGNTY: THE CASINO COMPROMISE 40 (2005) (estimating the figure at $110 million in 1988 and noting that the Indian gaming industry grew rapidly throughout the 1980s);
14. Kevin K. Washburn, Recurring Problems in Indian Gaming, 1 WYO. L. REV. 427, 434 (2001) (estimating the annual revenue of Indian gaming at the time of the passage of the Indian Gaming Revenue Act in 1988 at approximately $500 million);
15. Press Release, Fed. Bureau of Investigation, U.S. Dep't of Justice, Protecting Indian Country from Crime: The Indian Gaming Working Group (June 30, 2004), available at http://www.fbi.gov/pressrel/pressrel04/ 063004indiangaming.htm (estimating revenues of $100 million in 1988).
16. See Hearing on Off-Reservation Gaming Before the S. Indian Affairs Comm., 109th Cong. (2006) (statement of Sen. Daniel K. Inouye), available at http://www.senate.gov/~scia/2006hrgs/020106hrg/Inouye.pdf ("I have personally witnessed the Indian gaming industry grow to a multibillion dollar industry. It has proven to be the most successful economic development tool for Indian country.");
17. Carter W. Hick, The Indian Gaming Regulatory Act: Why Tribes Can Build Casinos off the Reservation, 10 GAMING L. REV. 110, 110 (2006) ("It cannot be denied that Indian gaming is the most successful and lucrative economic development activity available to tribes. The business of Indian gaming generates billions of dollars annually.");
18. Steven Andrew Light & Kathryn R.L. Rand, Reconciling the Paradox of Tribal Sovereignty: Three Frameworks for Developing Indian Gaming Law and Policy, 4 NEV. L.J. 262, 279 (2003-2004) ("[E]ven modest casino revenues and employment can have a dramatic effect on tribes and the states in which reservations are situated.").
19. Kathryn R.L. Rand, There Are No Pequots on the Plains: Assessing the Success of Indian Gaming, 5 CHAP. L. REV. 47, 53-54 (2002).
20. In Minnesota, two large local law firms, Dorsey & Whitney, LLP, and Faegre & Benson, LLP, have successful Indian law practices, as do many other firms. Outside Minnesota, many of the nation's largest and most successful law firms handle Indian law matters. See, e.g., Little Six, Inc. v. United States, 280 F.3d 1371, 1372-73 (Fed. Cir. 2002) (listing "Dorsey & Whitney, LLP, of Minneapolis, MN" as representing Little Six, Inc., a tribally owned operation); Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 910 (9th Cir. 1995) (listing Arnold & Porter of Denver, Colorado as representing the Hopi Tribe); Shakopee Mdewakanton Sioux (Dakota) Cmty. v. Babbitt, 906 F. Supp. 513, 515 (D. Minn. 1995) (listing Faegre & Benson of Minneapolis, Minnesota as representing the Shakopee Mdewakanton Sioux Tribe).
21. See infra text accompanying notes 32-37, 57-60, 104-05, 135-79, and 200-10 (demonstrating that there were different attorneys at the complaint, appeal, petition for certiorari, and Supreme Court argument phases of the litigation, respectively).
22. See Interview with Helen Johnson, supra note 1; see also Telephone Interview by Julie A. Strother with Helen Johnson, in Cass Lake, Minn. (July 9, 2007) (indicating that "Charwood" was Helen Johnson's maiden name).
23. See Bryan v. Itasca County, 426 U.S. 373, 375 (1976).
24. See Telephone Interview by Julie A. Strother with Helen Johnson, supra note 15; Interview with Helen Johnson, supra note 1.
25. Interview with Helen Johnson, supra note 1.
26. See Complaint, supra note 1, at A-2.
27. See Interview with Helen Johnson, supra note 1.
28. Id.
29. United States v. Rickert, 188 U.S. 432, 438 (1903); M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 343 (1819).
30. Bryan v. Itasca County, 228 N.W.2d 249, 251 (Minn. 1975) ("The issue raised on this appeal is whether the State of Minnesota, or its political subdivisions, may impose a personal property tax upon a mobile home owned and occupied by an enrolled member of the Chippewa tribe of Minnesota who resides within a reservation upon land held in trust by the United States government for the tribe."), rev'd, 426 U.S. 373 (1976).
31. Interview with Helen Johnson, supra note 1.
32. Complaint, supra note 1, at A-2 to -3.
33. Interview with Helen Johnson, supra note 1.
34. Id.
35. Stipulation of Facts, Bryan v. Itasca County, No. 25081 (Minn. 9th Jud. Dist. Dec. 8, 1973), reprinted in Appellant's Brief app. at A-12, Bryan v. Itasca County, 228 N.W.2d 249 (Minn. 1975) (No. 44947); see also Tax Notice to Russell Bryan (June 6, 1972) (on file with Anishinabe Legal Services, Cass Lake, Minn.).
36. Interview with Helen Johnson, supra note 1.
37. Letter from Helen Bryan, signed R. Bryan, to Leech Lake Reservation Legal Services Project (n.d.) (on file with Anishinabe Legal Services, Cass Lake, Minn.).
38. See id.; see also Interview with Helen Johnson, supra note 1 (including the statement by Helen Johnson that she wrote the note, but signed it as Russell Bryan).
39. Complaint, supra note 1, at A-3 to -4.
40. See United States v. Rickert, 188 U.S. 432, 438 (1903); M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 343 (1819).
41. See Complaint, supra note 1, at A-3 ("[I]n actuality the County of Itasca and State of Minnesota have no lawful authority to assess or impose a tax upon his personal property . . . ."); see also Stipulation of Facts, supra note 28, at A-13 (stating that the tax involved personal property).
42. See infra text accompanying notes 88 and 174.
43. See Findings of Fact, Conclusions of Law and Order for Judgment, Bryan v. Itasca County, No. 25081 (Minn. 9th Jud. Dist. Dec. 8, 1973), reprinted in Appellant's Brief app. at A-18, Bryan v. Itasca County, 228 N.W.2d 249 (Minn. 1975) (No. 44947) (stating that Patrick Moriarty was replaced by Nicholas Norden as attorney for the plaintiffs).
44. Id.
45. See id. (indicating that District Judge James F. Murphy was the judge deciding the case); Memorandum, appended to Findings of Fact, Conclusions of Law and Order for Judgment, Bryan, No. 25081, reprinted in Appellant's Brief app. at A-22 to -25, Bryan, 228 N.W.2d 249 (No. 44947) (indicating Judge Murphy's consideration of certifying the question to the state supreme court and outlining the legal principles used to support his decision).
46. Memorandum, supra note 38, at A-22.
47. Id.
48. Id. at A-22 to -23.
49. Id. at A-23.
50. Id. at A-25 (stating that the following twenty pages of analysis was taken from the brief filed by the Commissioner of Taxation); see also id. at A-26 to -47 (constituting the entire attached analysis from the Commissioner of Taxation's brief).
51. Interview with Gerald Seck, Esq., in Minneapolis, Minn. (Aug. 10, 2006).
52. Id.
53. Id.
54. Id.
55. Id.
56. Id.
57. Id.
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
63. Id.
64. Id.
65. Id.
66. Native American Rights Fund, Our History, http://narf.org/about/history. htm (last visited Mar. 6, 2008) ("In 1970 with funding from the Ford Foundation, California Indian Legal Services[-]one of the federally-funded legal services programs serving California Indians[-]implemented a pilot project to provide legal services to Indians on a national level. That project became known as the Native American Rights Fund (NARF).").
67. Telephone Interview with Dan Israel, Esq., in Boulder, Colo. (Apr. 4, 2007).
68. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154 (1980); see U.S. CONST. art. I, § 8; Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 573 (1832).
69. Colville, 447 U.S. at 154.
70. During the termination era, Congress took several actions intended to end the trust relationship between the tribes and the federal government. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 1.06, at 89-97 (Nell Jessup Newton et al. eds., 2005). Congress adopted House Concurrent Resolution 108 in 1953. Id. at 94. [I]t is the policy of Congress, as rapidly as possible, to make the Indians . . . subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all of the rights and prerogatives pertaining to American citizenship . . . . [I]t is declared to be the sense of Congress that, at the earliest possible time, all of the Indian tribes . . . should be freed from Federal supervision and control and from all disabilities and limitations specifically applicable to Indians . . . . H.R. Con. Res. 108, 83d Cong. (1953).
71. Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. REV. 535, 541 (1975).
72. Id. (citing State Legal Jurisdiction in Indian Country: Hearings on H.R. 495 and H.R. 3624 Before the Subcomm. on Indian Affairs of the H. Comm. on Interior and Insular Affairs, 82d Cong. 16 (1952) (statement of Rep. D'Ewart)).
73. See 18 U.S.C. § 1152 (2000) (stating that the general laws of the United States "shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe"); id. § 1153 (listing offenses that, when committed in Indian country by an Indian against an Indian, are subject to "the same law and penalties as all other persons . . . within the exclusive jurisdiction of the United States" and if the offense is not punishable at the federal level, it "shall be punished in accordance with the laws of the State in which the offense was committed"); Goldberg, supra note 64, at 541 (describing the "irrationally fractionated" nature of law enforcement on Indian reservations in 1953); cf. Ex parte Crow Dog, 109 U.S. 556, 572 (1883) (finding that the conviction of an Indian for the murder of another Indian in Indian territory was void for lack of jurisdiction).
74. Goldberg, supra note 64, at 541; see also 5 NAT'L AM. INDIAN COURT JUDGES ASS'N, JUSTICE AND THE AMERICAN INDIAN: FEDERAL PROSECUTION OF CRIMES COMMITTED ON INDIAN RESERVATIONS 7 (1974) (describing the many issues surrounding "allocation of jurisdiction for crimes committed on Indian reservations").
75. The statute specified five states that were willing to take responsibility for law enforcement over reservations, but allowed for the assumption of jurisdiction by other states. See Goldberg, supra note 64, at 537-38.
76. Act of Aug. 15, 1953, ch. 505, § 2(a), 67 Stat. 588, 588 (codified as amended at 18 U.S.C. § 1162(a) (2000)).
77. See Goldberg, supra note 64, at 541.
78. Act of Aug. 15, 1953, ch. 505, § 4(a), 67 Stat. at 589.
79. See Goldberg, supra note 64, at 538 ("Among the matters in dispute were whether states assuming jurisdiction under PL-280 acquired the power to tax and zone on Indian reservations . . . ."). But see Omaha Tribe of Indians v. Peters, 382 F. Supp. 421, 424 (D. Neb. 1974) (holding that Public Law 280 grants the states jurisdiction to tax tribal members on reservations), aff'd, 516 F.2d 133 (8th Cir. 1975), vacated, 427 U.S. 902 (1976).
80. ROLAND C. AMUNDSON, THE FIRST TEN: AN INFORMAL HISTORY OF THE FIRST TEN YEARS OF THE MINNESOTA COURT OF APPEALS 29-31 (1993) (explaining that on November 2, 1982, the Minnesota Constitution was amended to create the Minnesota Court of Appeals and that the first members of the Court of Appeals took the oath of office in November 1983).
81. See Appellant's Brief, Bryan v. Itasca County, 228 N.W.2d 249 (Minn. 1975) (No. 44947).
82. See id. (listing Dan Israel and two other attorneys from the Native American Rights Fund on the cover page of the brief).
83. Amicus Curiae Brief of the Minnesota Chippewa Tribe at 29, Bryan, 228 N.W.2d 249 (No. 44947).
84. Id. at 30.
85. Interview with Carol Becker, in Minneapolis, Minn. (Sept. 8, 2006).
86. Brief for United States as Amicus Curiae in Minnesota Supreme Court, Bryan, 228 N.W.2d 249 (No. 44947).
87. Compare id., with Letter from Reid Peyton Chambers, Assoc. Solicitor for Div. of Indian Affairs, U.S. Dep't of the Interior, to Wallace H. Johnson, Assistant Att'y Gen., U.S. Dep't of Justice (Nov. 22, 1974) (on file with the Minnesota Historical Society, Files of Bernard Becker, Minnesota State Archives) (referencing a previous letter sent by his office asking the Department of Justice to seek leave of the Minnesota Supreme Court to file an amicus brief in Bryan v. Itasca County, and including proposed text for an amicus brief).
88. Interview with Gerald Seck, supra note 44.
89. Id.; see also Interview with Helen Johnson, supra note 1 (explaining the Bryans' limited involvement with the appeal).
90. Interview with Gerald Seck, supra note 44.
91. Interview with Mariana Shulstad, supra note 4.
92. Id.
93. See Bryan v. Itasca County, 228 N.W.2d 249, 254 (Minn. 1975), rev'd, 426 U.S. 373 (1976).
94. Interview with Steven Thorne, supra note 4. Thorne later headed the state's Department of Natural Resources and then worked as a private attorney at Jacobson, Buffalo, Magnuson, Anderson & Hogen, P.C., an Indian law boutique firm in Minnesota. Id.
95. Appellant's Brief, supra note 74, at 19-22.
96. See Interview with Gerald Seck, supra note 44.
97. See id.; Interview with Steven Thorne, supra note 4.
98. See Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162 (2000) and 28 U.S.C. § 1360 (2000)); see also William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 374 (1990) (discussing the intent of Congress in passing Public Law 280 and the concurrent termination legislation).
99. Bryan v. Itasca County, 228 N.W.2d 249, 251 (Minn. 1975), rev'd, 426 U.S. 373 (1976); Appellant's Brief, supra note 74, at 1.
100. Act of Aug. 15, 1953, ch. 505, § 4(a), 67 Stat. at 589.
101. See Bryan, 228 N.W.2d at 255-56.
102. Id. at 250.
103. 382 F. Supp. 421 (D. Neb. 1974), aff'd, 516 F.2d 133 (8th Cir. 1975), vacated, 427 U.S. 902 (1976).
104. See id. at 422; Telephone Interview with Dan Israel, supra note 60; see also Peters, 382 F. Supp. at 422-26 (discussing McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973), the language of Public Law 280, and the fact that Public Law 280 does not give the state jurisdiction over Indians by "implication," but rather does so clearly and expressly); Bryan, 228 N.W.2d at 251, 253-55 (discussing the same).
105. Bryan, 228 N.W.2d at 256.
106. Interview with Gerald Seck, supra note 44.
107. Id.
108. Id.; Interview with Helen Johnson, supra note 1.
109. John H. Brandt, Nests and Eggs of the Birds of the Truk Islands, 64 CONDOR 416, 417 (1962).
110. Interview with Gerald Seck, supra note 44.
111. Id.
112. Id.
113. Bryan v. Itasca County, 423 U.S. 923 (1975).
114. Telephone Interview by Julie A. Strother with Michael Hagedorn, Esq., in St. Paul, Minn. (Sept. 7, 2006).
115. Interview with Gerald Seck, supra note 44.
116. Id.
117. Id.; see also Telephone Interview with Dan Israel, supra note 60.
118. Brief for the Petitioner, Bryan v. Itasca County, 426 U.S. 373 (1976) (No. 75-5027).
119. See Omaha Tribe of Indians v. Peters, 382 F. Supp. 421 (D. Neb. 1974), aff'd, 516 F.2d 133 (8th Cir. 1975), vacated, 427 U.S. 902 (1976).
120. Telephone Interview with Dan Israel, supra note 60.
121. Id. (emphasis added).
122. See Brief for the Petitioner, supra note 111, at 32-33; Telephone Interview with Dan Israel, supra note 60.
123. See Brief for the Petitioner, supra note 111, at 11 ("The limited scope of the civil jurisdiction conferred can be most clearly perceived by comparing Public Law 280 with the contemporaneous termination acts enacted by the same 83rd Congress which unlike Public Law 280 made use of explicit language to confer specific taxing authority . . . ."); Telephone Interview with Dan Israel, supra note 60.
124. See Brief for the Petitioner, supra note 111, at 11; Telephone Interview with Dan Israel, supra note 60.
125. Brief for the Petitioner, supra note 111, at 12-13.
126. Interview with Gerald Seck, supra note 44.
127. Id.
128. Telephone Interview by Julie A. Strother with Michael Hagedorn, supra note 107.
129. Letter from Gerald Seck, Esq., to Bernie Becker, Esq. (Mar. 26, 1976) (on file with the Minnesota Historical Society, Files of Bernard Becker, Minnesota State Archives).
130. Id.
131. Letter from Daniel H. Israel, Esq., to Bernie Becker, Esq. (Feb. 18, 1976) (on file with the Minnesota Historical Society, Files of Bernard Becker, Minnesota State Archives).
132. Interview with Carol Becker, supra note 78.
133. Id.
134. See Eric S. Janus, A Memorial to Bernie Becker, 17 WM. MITCHELL L. REV. 409, 412 (1991).
135. See Interview with Mariana Shulstad, supra note 4; Interview with Steven Thorne, supra note 4.
136. Interview with Carol Becker, supra note 78.
137. Interview with Steven Thorne, supra note 4.
138. Id.
139. See Leech Lake Citizens Comm. v. Leech Lake Band of Chippewa Indians, 355 F. Supp. 697, 697 (D. Minn. 1973) (declining to enjoin the state from entering into agreements with the Chippewa Indians to address hunting and fishing), aff'd, 486 F.2d 888 (8th Cir. 1973); Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001, 1004-06 (D. Minn. 1971) (holding that the Nelson Act, which provided for allotment of Indian lands, had not abrogated Indian hunting and fishing rights); see also State v. Forge, 262 N.W.2d 341, 343 (Minn. 1977) (describing the "long and acrimonious history of litigation concerning fishing and hunting rights in the Leech Lake area").
140. See Amicus Curiae Brief of the Minnesota Chippewa Tribe, supra note 76.
141. Interview with Carol Becker, supra note 78; Telephone Interview by Julie A. Strother with Michael Hagedorn, supra note 107.
142. Bryan v. Itasca County, 426 U.S. 373, 373 (1976).
143. Interview with Carol Becker, supra note 78.
144. Id.
145. Chief Justice Burger, who presided over the Court, graduated from the William Mitchell College of Law. See Transcript of Oral Argument at 1, Bryan, 426 U.S. 373 (No. 75-5027) (indicating that the oral argument was heard before Chief Justice Burger and the eight other Justices); Sandra Day O'Connor, In Memoriam, A Tribute to Warren E. Burger, 22 WM. MITCHELL L. REV. 7, 7 (1996) ("Chief Justice Burger graduated magna cum laude in 1931 from Saint Paul College of Law, the earliest forerunner of William Mitchell College of Law.");
146. see also Robert M. Jarvis, A Brief History of Law School Names, 56 J. LEGAL EDUC. 388, 406 (2006).
147. See Interview with Margaret Treuer, Tribal Judge, in Bemidji, Minn. (May 25, 2007).
148. Transcript of Oral Argument, supra note 138, at 4.
149. See id. at 5.
150. Id. at 5-6.
151. Id. at 7.
152. Id. at 7-8.
153. Id. at 8.
154. Goldberg, supra note 64.
155. Id. at 540-42.
156. Act of Aug. 15, 1953, ch. 505, § 4(b), 67 Stat. 588, 589 (codified as amended at 28 U.S.C. § 1360(b) (2000)); Transcript of Oral Argument, supra note 138, at 8 (asking about subsection B of the civil jurisdiction section of Public Law 280, "which purports to be an exemption from a much more general type of authority").
157. Transcript of Oral Argument, supra note 138, at 9.
158. Id. at 8-9.
159. Id. at 9.
160. Id. at 9-10.
161. Id. at 12.
162. Id.
163. Id.
164. Id. at 11.
165. Id.
166. Id. at 13, 15.
167. Id. at 13-14.
168. Id. at 14.
169. Interview with Margaret Treuer, supra note 139.
170. Id.
171. See Transcript of Oral Argument, supra note 138, at 11; Interview with Margaret Treuer, supra note 139.
172. Interview with Margaret Treuer, supra note 139. Treuer was one of the first members of the White Earth Band of Ojibwe Indians to earn a law degree, earning her J.D. from Catholic University of America in 1977. Admitted to the Minnesota Bar in 1977, Treuer currently serves as a tribal court judge in Minnesota and has served on the Leech Lake Tribal Court, the Bois Forte Band of Chippewa Tribal Court, the Upper Sioux Indian Community Tribal Court, and the Red Lake Nation Tribal Court as chief judge. Id.
173. Id.; see also Anishinabe Legal Services, Who We Are, http://www.alslegal.org/index2.htm (last visited Mar. 6, 2008) (stating that Anishinabe means "the people" in the Ojibwe language).
174. See Transcript of Oral Argument, supra note 138, at 15.
175. Id. at 15-17.
176. Id. at 16-17.
177. Id. at 18.
178. Id. at 19.
179. Id.
180. See McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 180-81 (1973) (holding Arizona's income tax unlawful when applied to Navajo Indians living on the reservation and deriving their income from reservation sources).
181. See Transcript of Oral Argument, supra note 138, at 19.
182. Id. at 21-22.
183. Id. at 22.
184. Id.
185. Id.; Interview with Margaret Treuer, supra note 139 (describing Justice White's question).
186. Interview with Margaret Treuer, supra note 139.
187. Transcript of Oral Argument, supra note 138, at 22-23.
188. Interview with Margaret Treuer, supra note 139.
189. Interview with Steven Thorne, supra note 4.
190. See Transcript of Oral Argument, supra note 138, at 1; Interview with Steven Thorne, supra note 4.
191. See Transcript of Oral Argument, supra note 138, at 23-25. Although Luther is asked a question almost immediately, the Court gave Luther significant time to develop and establish his argument before any back-and-forth questioning. Id. Notably, Luther was allowed the equivalent of two full pages of transcribed text to outline his argument, although Becker was allowed three. Id. at 3-6, 23-25.
192. Id. at 24.
193. Id.
194. Id. at 25.
195. Id.; see also Omaha Tribe of Indians v. Peters, 382 F. Supp. 421, 421 (D. Neb. 1974) (involving a challenge to a state income tax "levied against an Indian's income derived from employment performed wholly upon an Indian reservation"), aff'd, 516 F.2d 133 (8th Cir. 1975), vacated, 427 U.S. 902 (1976).
196. Transcript of Oral Argument, supra note 138, at 26.
197. Id. at 26-27.
198. Id. at 27.
199. Id.
200. Id. at 29.
201. Id. at 29-30.
202. Interview with Margaret Treuer, supra note 139.
203. Transcript of Oral Argument, supra note 138, at 30.
204. The loss for words here is curious. Luther may have been trying to avoid the word "government," or he may have been honestly unsure of what to call the tribal government.
205. Id. at 31.
206. Id.
207. See id. For comparison purposes, Becker's opening argument ranged across more than twenty-one pages of the oral argument transcript, and his rebuttal ran three more pages. See id. at 3-23, 31-34. Luther's entire argument filled only eight pages from beginning to end. See id. at 23-31.
208. Id. at 32.
209. Id. Though it was an expedient argument, the notion that Congress had selected particularly dysfunctional or undeveloped tribes for the extension of state authority under Public Law 280 is dubious in retrospect. See Goldberg, supra note 64, at 543.
210. Transcript of Oral Argument, supra note 138, at 33.
211. Id. at 33-34.
212. Id. at 34.
213. Id.
214. Id.
215. Interview with Carol Becker, supra note 78.
216. See id.; Telephone Interview by Julie A. Strother with Michael Hagedorn, supra note 107.
217. Telephone Interview by Julie A. Strother with Michael Hagedorn, supra note 107.
218. See supra text accompanying notes 143-59.
219. See Interview with Margaret Treuer, supra note 139.
220. Telephone Interview with Dan Israel, supra note 60.
221. Interview with Gerald Seck, supra note 44.
222. Interview with Carol Becker, supra note 78.
223. See Justices Bar State's Taxation of Reservation Indians, N.Y. TIMES, June 15, 1976, at 19; Interview with Helen Johnson, supra note 1.
224. See Interview with Gerald Seck, supra note 44.
225. See supra text accompanying notes 50-53; see also Jackie Crosby, Coleman Campaign Opens with Promises, STAR TRIB. (Minneapolis, Minn.), Jan. 13, 2005, at B1 (stating that Nick Coleman, writer for the Minneapolis-based Star Tribune, and his brother Chris Coleman, candidate for Mayor of St. Paul, are the children of the late Senator Nicholas Coleman).
226. Interview with Gerald Seck, supra note 44.
227. Bryan v. Itasca County, 426 U.S. 373, 374 (1976) (indicating that the decision was unanimous).
228. Interview with Carol Becker, supra note 78.
229. Interview with Margaret Treuer, supra note 139.
230. See Omaha Tribe of Indians v. Peters, 382 F. Supp. 421 (D. Neb. 1974), aff'd, 516 F.2d 133 (8th Cir. 1975), vacated, 427 U.S. 902 (1976); supra text accompanying notes 96-97 (describing Dan Israel's role as counsel in the case).
231. Peters, 427 U.S. 902 (granting certiorari, vacating the Eighth Circuit's decision, and remanding the case back to the Eighth Circuit).
232. Omaha Tribe of Indians v. Peters, 537 F.2d 318, 318 (8th Cir. 1976).
233. Interview with Helen Johnson, supra note 1. While the ruling garnered them little local attention, the Bryans received a grateful letter from the Minnesota Chippewa Tribe. The letter, from Arthur Gahbo, President of the Minnesota Chippewa Tribe, read: Dear Mr. and Mrs. Bryan: As the President of our Tribal organization, I must take this opportunity, [o]n behalf of the Minnesota Chippewa tribe and our thousands of Indian people, to express our sincere appreciation and admiration for your courage, your dedication, and your perseverance that resulted in the recent favorable United States Supreme Court decision that strengthene[d] and solidified the issue of Tribal Sovereignty. Because of your noble stand in the face of tremendous odds and against enormous opposition, a precedent of Tribal self-government has been set nationwide that can only benefit Tribal people throughout this vast country. Please accept this letter and these humble tokens as emblems of your Tribe's heartfelt appreciation to your Tribal Spirit. Letter from Arthur Gahbo, President, Minn. Chippewa Tribe, to Mr. & Mrs. Russell Bryan (Aug. 9, 1976) (on file with Helen Johnson). Enclosed with the letter were two bronze tribal medallions. Id.; Interview with Helen Johnson, supra note 1. The Tribe also gave the Bryans a trip to Escanaba, Michigan to attend a meeting of the Tribal Executive Committee of the Minnesota Chippewa Tribe, where they were honored with a dinner and briefly introduced to the assembled tribal leaders. Interview with Helen Johnson, supra note 1.
234. Dennis Cassano, State Forbidden to Tax on Reservations, MINNEAPOLIS TRIB., June 15, 1976, at 1A.
235. Justices Bar State's Taxation of Reservation Indians, supra note 215, at 19.
236. Ed Zuckerman, Court Limits Taxing on Reservations, ST. PAUL PIONEER PRESS, June 15, 1976, at 14.
237. See Robert J. Nordhaus et al., Revisiting Merrion v. Jicarilla Apache Tribe: Robert Nordhaus and Sovereign Indian Control over Natural Resources on Reservations, 43 NAT. RESOURCES J. 223, 268-69 (2003) (discussing the book The Brethren and its allegation that the Supreme Court disliked both Indian and tax law cases, making an Indian tax law case an undesirable choice for certiorari); Comments of DP (Aug. 20, 1975), attached to Preliminary Memorandum from Mason, Summer List 10, Sheet 4 (Aug. 19, 1975) (on file with the Library of Congress, Collections of the Manuscript Division) (discussing whether or not the Court should grant certiorari in the Bryan case).
238. Comments of DP, supra note 229.
239. See Bryan v. Itasca County, 426 U.S. 373, 379 (1976); Goldberg, supra note 64, at 541-42.
240. See Bryan, 426 U.S. at 387-92.
241. See Transcript of Oral Argument, supra note 138, at 5 (describing Public Law 280 as a "lawyer's statute").
242. See Bryan, 426 U.S. at 384-85.
243. Id. at 385 n.11. This argument surely elevated the importance of a nameless legislative clerk somewhere.
244. See id. at 389-90; supra text accompanying notes 112-18.
245. Bryan, 426 U.S. at 389 (footnote omitted).
246. See id. at 381 (citing Daniel H. Israel & Thomas L. Smithson, Indian Taxation, Tribal Sovereignty and Economic Development, 49 N.D. L. REV. 267 (1973)).
247. See id. at 385-86 & n.12, 388 n.13; see also supra text accompanying notes 145-47.
248. See Goldberg, supra note 64, at 543-44.
249. See Bryan, 426 U.S. at 385-86 ("[C]ertain tribal reservations were completely exempted from the provisions of Pub. L. 280 precisely because each had a 'tribal law-and-order organization that functions in a reasonably satisfactory manner."' (citing H.R. REP. NO. 83-848 (1953), as reprinted in 1953 U.S.C.C.A.N. 2409, 2412)).
250. As it had at the request of Associate Solicitor Reid Chambers at the state supreme court, the United States once again appeared as amicus curiae, and filed a brief authored by Harry Sachse, an Assistant to the Solicitor General, and several attorneys from the Department of Justice. See Memorandum for the United States as Amicus Curiae, Bryan, 426 U.S. 373 (No. 75-5027); see also supra note 80 and accompanying text (describing Chambers' letter to the Department of Justice, requesting that it file a brief with the Minnesota Supreme Court).
251. Bryan, 426 U.S. at 388 n.14; see Memorandum for the United States as Amicus Curiae, supra note 242, at 10.
252. See infra text accompanying notes 255-70.
253. Bryan, 426 U.S. at 384.
254. Id. at 388.
255. See supra text accompanying notes 88 and 174-75; see also Brief for the Petitioner, supra note 111, at 15 (arguing primarily about tax immunity, not regulatory immunity).
256. Telephone Interview by Julie A. Strother with Michael Hagedorn, supra note 107 (noting that there were some reservations about Justice Douglas).
257. See supra text accompanying notes 143-52.
258. See Owen Fiss, Tribute, A Life Lived Twice, 100 YALE L.J. 1117, 1120 (1991) ("Brennan could be trusted to choose his words in a way that would minimize the disagreement among the [J]ustices, not only to avoid those silly squabbles . . . but also to produce a majority opinion and strengthen the force of what the Court had to say.");
259. Richard J. Lazarus, The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement Within the Supreme Court, 57 HASTINGS L.J. 759, 772 n.56 (2006) ("Justice Brennan was well known for using his personal charm and his related ability to forge majorities on the Court.").
260. A letter from Justice Harry Blackmun to Justice Brennan is illustrative of some of the behind-the-scenes navigation Brennan used to strengthen his majority opinion. Blackmun suggested a softening of the language in the opinion, writing: I know all "these guys" on the Minnesota Court. For some reason the sentence near the middle of page 9 beginning with the word "Accordingly" struck me as a little blunt . . . . Do you think it could be softened, as by inserting the words "we feel that" before "the construction"? . . . [I]f we can, I prefer to take a sympathetic approach this time. Letter from Harry A. Blackmun, Assoc. Justice, U.S. Supreme Court, to William J. Brennan, Jr., Assoc. Justice, U.S. Supreme Court (June 4,
261. Letter from Lewis F. Powell, Jr., Assoc. Justice, U.S. Supreme Court, to William J. Brennan, Jr., Assoc. Justice, U.S. Supreme Court (June 4, 1976) (on file with the Library of Congress, Collections of the Manuscript Division).
262. Letter from Byron R. White, Assoc. Justice, U.S. Supreme Court, to William J. Brennan, Jr., Assoc. Justice, U.S. Supreme Court (June 4, 1976) (on file with the Library of Congress, Collections of the Manuscript Division).
263. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209-10 (1987) (White, J.).
264. Eskridge & Frickey, supra note 91, at 374-75 (footnote omitted).
265. See COHEN'S HANDBOOK OF FEDERAL INDIAN LAW, supra note 63, at 119.
266. Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137, 1168 (1990). A problem with this theory is that it ignores a more fundamental problem with the canon: its terms are so ambiguously broad as to make it elastic enough to be applied in virtually any context involving Indians. Indeed, from the standpoint of Indians, many harmful laws, from the allotment acts to Public Law 280, have been enacted ostensibly for the benefit of the Indians. For example, the allotment acts, through which Indian tribes ultimately lost nearly 100 million acres of land, were frequently justified on the basis that they would assist with the advancement of Indians.
267. See, e.g., Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 580 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)). Likewise, Public Law 280 masqueraded as a law designed to address the problem of "lawlessness" on Indian reservations, a purpose that was certainly designed to benefit Indians. See supra note 64 and accompanying text.
268. See Eskridge & Frickey, supra note 91, at 354-62 (describing the considerations used in the practical reasoning model).
269. Id. at 375 ("[W]e believe the case was correctly decided . . . .").
270. Id. at 373-74.
271. See Frickey, supra note 257, at 1165-67, 1179 (demonstrating that the Court used post enactment considerations when analyzing Public Law 280 in Bryan, rather than strictly adhering to the language of the statute).
272. See id. at 1179.
273. Id. at 1212.
274. See id. at 1212-14, 1239-40.
275. Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 431 (1993).
276. 31 U.S. (6 Pet.) 515 (1832).
277. Frickey, supra note 265, at 432. Frickey argues that both the Bryan Court and the Worcester Court viewed the issues in the cases to be "structural and rooted in sovereignty, rather than to involve the regulation of a disadvantaged minority group" and both "assumed a baseline of ongoing tribal sovereignty that should be judicially protected against all but clear congressional intrusion." Id.
278. The other two cases in the trilogy are Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), and Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
279. Frickey notes that "the Court buried its best textual argument in a footnote [which] suggests that it did not consider the apparent meaning of the statutory language of great importance." Frickey, supra note 257, at 1166 n.173.
280. It is hard to imagine a more important case in which the Supreme Court limited a federal statute in such a way, unless, of course, it is Cabazon, which also dealt with Public Law 280 and followed Bryan's narrow interpretation. In affirming Bryan and its broad implications, Cabazon also focused strongly on contemporary federal policy specific to Indian gaming. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216-17 (1987) (referencing President Reagan's statements in regard to Indian policy, as well as then-current policies of the Department of the Interior).
281. See Cassano, supra note 226; Zuckerman, supra note 228; Justices Bar State's Taxation of Reservation Indians, supra note 215; see also supra text accompanying notes 226-28 (illustrating that the newspaper headlines after the Bryan decision all focused on the states' inability to tax Indian reservations).
282. Bryan v. Itasca County, 426 U.S. 373, 384 (1976).
283. See Kevin K. Washburn, Tribal Self-Determination at the Crossroads, 38 CONN. L. REV. 777, 790-93 (2006) (describing the rise of modern tribal self-governance in the late 1960s and 1970s).
284. See id.
285. See AMBROSE I. LANE, SR., RETURN OF THE BUFFALO: THE STORY BEHIND AMERICA'S INDIAN GAMING EXPLOSION 49-50 (1995) (discussing the history of the Cabazon Band's gaming enterprise).
286. Id.
287. Id. at 34, 44-45, 54, 92.
288. See id. at 51-54, 60; W. DALE MASON, INDIAN GAMING: TRIBAL SOVEREIGNTY AND AMERICAN POLITICS 48-49 (2000).
289. See Seminole Tribe of Florida, Seminole Casino Hollywood, http://www.seminoletribe.com/enterprises/hollywood/casino.shtml (last visited Mar. 6, 2008) ("Seminole Casino Hollywood was the first high stakes operation in the country opening on December 14, 1979 at 5:00pm[, a]fter court challenges by the State of Florida . . . .").
290. See Seminole Tribe of Fla. v. Butterworth, 658 F.2d 310, 311 (5th Cir. 1981).
291. See, e.g., Oneida Tribe of Indians of Wis. v. Wisconsin, 518 F. Supp. 712, 713 (W.D. Wis. 1981) (involving bingo operations on an Indian reservation).
292. See, e.g., Barona Group of Capitan Grande Band of Mission Indians v. Duffy, 694 F.2d 1185, 1189-90 (9th Cir. 1982) (holding that the California bingo laws were civil/regulatory and thus could not be applied to Indian reservations); Butterworth, 658 F.2d at 311, 316 (holding that the Florida law prohibiting bingo was "civil/regulatory," not "criminal/prohibitory," and thus could not be applied to the Seminole Tribe); Oneida Tribe of Indians, 518 F. Supp. at 720 (holding that Wisconsin's regulation of bingo could not be applied to the Oneida Tribe because it was a civil regulation).
293. See supra note 282; see also Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245, 245 (D. Conn. 1986) (holding that Connecticut could not regulate bingo games occurring on an Indian reservation).
294. 480 U.S. 202 (1987).
295. Id. at 207 (discussing the scope of jurisdiction in Public Law 280 states).
296. See Appellants' Closing Brief at 14-15, Cabazon, 480 U.S. 202 (No. 85-1708) (arguing that Public Law 280 gives California the ability to enforce its gaming prohibitions); Brief of Appellees at 7-8, Cabazon, 480 U.S. 202 (No. 85-1708) (arguing that Public Law 280 does not confer state jurisdiction over regulatory matters such as gaming).
297. See Brief of the Appellants at 9, 34-42, Cabazon, 480 U.S. 202 (No. 85-1708); Appellants' Closing Brief, supra note 286, at 14-15; Brief of Appellees, supra note 286, at 11, 33, 35-36, 39, 42-43, 47 n.33, 48-49; Brief of the States of Arizona et al. as Amici Curiae in Support of the State of California at 3, 6-7, 21-23, 25, 27-28, Cabazon, 480 U.S. 202 (No. 85-1708) [hereinafter Arizona Brief]; Amici Curiae Brief of Chehalis Indian Tribe et al. in Support of Appellees at 2, 13-15, 18, 22, Cabazon, 480 U.S. 202 (No. 85-1708) [hereinafter Chehalis Brief]; Amici Curiae Brief of States of Florida et al. in Support of Appellants' Jurisdictional Statement at 16, Cabazon, 480 U.S. 202 (No. 85-1708) [hereinafter Florida Brief]; Brief for Amicus Curiae State of Minnesota in Support of Appellants at 3, 7-9, 20 n.9, Cabazon, 480 U.S. 202 (No. 85-1708) [hereinafter Minnesota Brief]; Brief Amici Curiae of Pueblo of Laguna et al. at 10, 12, 18-19, Cabazon, 480 U.S. 202 (No. 85-1708); Brief of the San Manuel Band of Mission Indians as Amicus Curiae in Support of Appellees at 5, 15-16, 19-21, 26-31, Cabazon, 480 U.S. 202 (No. 85-1708); Brief of the Tulalip Tribes of Washington et al. as Amici Curiae in Support of the Cabazon and Morongo Tribes at 15-17, 21, 27, 39, 41-62, Cabazon, 480 U.S. 202 (No. 85-1708) [hereinafter Tulalip Brief]; Brief of the States of Washington et al. as Amici Curiae in Support of Appellants at 4, 9-12, Cabazon, 480 U.S. 202 (No. 85-1708) [hereinafter Washington Brief]. For briefs that did not discuss Bryan extensively, see Brief of the Jicarilla Apache Tribe et al. as Amici Curiae in Support of the Appellees at 7-8, Cabazon, 480 U.S. 202 (No. 85-1708); Motion of the Pueblo of Sandia et al. for Leave to File Brief Amici Curiae at 24, Cabazon, 480 U.S. 202 (No. 85-1708); and Brief of the Seminole Tribe of Florida and the Fond du Lac Band of Lake Superior Chippewa of Minnesota as Amici Curiae in Support of the Appellees, Cabazon, 480 U.S. 202 (No. 85-1708) [hereinafter Seminole Brief].
298. See Brief of the Appellants, supra note 287, at 35 (noting that unlike California's gaming laws, "the property tax laws involved in Bryan were not regulatory; they raised revenue but did not regulate conduct"); Florida Brief, supra note 287, at 16 (disagreeing with lower courts' interpretation of Bryan by arguing that "the courts fashioned a legal theory premised on this Court's ruling in a tax case").
299. See Appellants' Closing Brief, supra note 286, at 14-15; Brief of the Appellants, supra note 287, at 9.
300. 463 U.S. 713 (1983).
301. See id. at 734-35; Brief of the Appellants, supra note 287, at 35 (arguing that in Rice, the Court itself "cast doubts on Bryan's 'civil regulatory-criminal prohibitory' distinction").
302. Brief of the Appellants, supra note 287, at 35-36.
303. See Arizona Brief, supra note 287, at 23-24. The Arizona brief also took issue with the Bryan Court's selective reliance on Carole Goldberg's article, Public Law 280: The Limits of State Jurisdiction over Reservation Indians. See Goldberg, supra note 64. In a curious argument that essentially elevated Goldberg's article to a status above the actual legislative history of Public Law 280 or the Supreme Court's own analysis, Arizona accused the Bryan Court of failing to acknowledge statements in Goldberg's article which would support state jurisdiction where there is a penal sanction for a regulation. See Arizona Brief, supra note 287, at 23-26.
304. Minnesota Brief, supra note 287, at 3.
305. Washington Brief, supra note 287, at 11-12. The brief notes: Can a State circumvent the holding of Bryan engrafting criminal sanctions onto its tax laws, for example, and thereby make them applicable to reservation Indians? We would agree that the States may not do this. But the reason is not to be found in the illusory distinction developed by the lower courts. Rather, it is to be found in the language of § 2(b). . . . Congress, in § 2(b), carefully excluded from the scope of § 2(a) any such use of its criminal law system. Id.
306. Brief of Appellees, supra note 286, at 42-43 (citation omitted); see also Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 657 (9th Cir. 1975) (involving the applicability of county zoning ordinances and building codes to Indian reservations).
307. Brief of Appellees, supra note 286, at 43.
308. See supra text accompanying notes 256-64.
309. See Brief of the Oneida Indian Nation of New York as Amicus Curiae in Support of the Cabazon and Morongo Bands of Mission Indians of California at 2-3, 7, California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (No. 85-1708); Seminole Brief, supra note 287, at 4.
310. See Tulalip Brief, supra note 287, at 41; see also Chehalis Brief, supra note 287, at 13 (noting that Bryan "specifically held that state civil regulatory laws were not included within Public Law 280's grant of jurisdiction").
311. Tulalip Brief, supra note 287, at 51.
312. Id. at 52.
313. See supra text accompanying notes 253-54.
314. Cabazon, 480 U.S. at 203.
315. Id. at 209.
316. Id. at 209-10.
317. 694 F.2d 1185, 1189-90 (9th Cir. 1982) (holding that the California bingo laws were civil/regulatory and thus could not be applied to the Indian reservations).
318. 658 F.2d 310, 311, 316 (5th Cir. 1981) (holding that the Florida law prohibiting bingo was "civil/regulatory," not "criminal/ prohibitory," and thus could not be applied to the Seminole Tribe).
319. Rice v. Rehner, 463 U.S. 713, 734-35 (1983) (upholding state authority in the context of liquor licensing).
320. Cabazon, 480 U.S. at 209-10 & n.8.
321. Id. at 210-11.
322. Id. at 210-11 & n.10.
323. Id. at 216-19.
324. Id. at 222 (Stevens, J., dissenting).
325. For example, the dissent drew a distinction between the state personal property tax at issue in Bryan and the commercial transactions between Indians and non-Indians at issue in Cabazon and in Rice. Id. at 223.
326. See supra text accompanying notes 275-80 (discussing the development of gaming operations on Indian reservations after Bryan).
327. See supra note 10 and accompanying text (illustrating the rapid growth in gaming revenues); see also 25 U.S.C. § 2701(5) (2000) (affirming the holding of Cabazon and stating that Congress finds that "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity").
328. Indian Gaming Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified as amended at 25 U.S.C. §§ 2701-2721 (2000)).
329. See Kevin K. Washburn, Federal Law, State Policy, and Indian Gaming, 4 NEV. L.J. 285, 289-93 (2003-2004).
330. See id. at 291.
331. See Washburn, supra note 10, at 428-30 (describing the effect of the IGRA on Indian gaming).
332. See id. at 429-30; cf. Oversight Hearing on the Regulation of Indian Gaming: Hearing Before the S. Comm. on Indian Affairs, 109th Cong. 38-42 (2005) (prepared statement of Kevin K. Washburn) (arguing that, in the wake of Cabazon, the federal government should play a more active role in the regulation of tribal gaming).
333. Bryan did not necessarily authorize Indian gaming outside of Public Law 280 states. In the absence of Public Law 280, this authority presumably was never in doubt. But it was in Public Law 280 states where Indian gaming first flourished. Tribes in Public Law 280 states, such as Florida and California, had a much greater incentive to engage in Indian gaming than those in other states because such tribes were located more strategically close to large non-Indian populations that could make such gaming especially profitable. See Washburn, supra note 319, at 287-88, 293-96 (analyzing the impact of Public Law 280 and the factors that make Indian gaming successful).
334. Press Release, Nat'l Indian Gaming Comm'n, NIGC Announces 2006 Indian Gaming Revenue (June 4, 2007), available at http://www.nigc.gov/ ReadingRoom/PressReleases/PR63062007/PR63072007/tabid/784/Default.aspx (putting the total Indian gaming revenue at $25,075,829,000 for 2006).
335. NAT'L INDIAN GAMING COMM'N, supra note 10, at 8 (stating that the size of the Indian gaming industry had increased nearly twenty-fold by 1999).
336. See U.S. GEN. ACCOUNTING OFFICE, GAO/GDD-97-91, TAX POLICY: A PROFILE OF THE INDIAN GAMING INDUSTRY 6 fig.1 (1997) (displaying a chart with Indian gaming revenues from 1985-1995, totaling nearly fifteen billion dollars); NAT'L INDIAN GAMING COMM'N, supra note 10, at 25 (reflecting the tribal gaming revenues from 1996-1999, which totaled nearly thirty-two billion dollars); Press Release, supra note 324 (putting the total Indian gaming revenue for 2006 at over twenty-five billion dollars);
337. National Indian Gaming Commission, Tribal Gaming Revenues 2000-2005, http://www.nigc.gov/Portals/0/NIGC%20Uploads/Tribal%20Data/ tribalgamingrevenues05.pdf (last visited Mar. 6, 2008) (showing the tribal gaming revenues from 2000-2005, totaling just over ninety-seven billion dollars).
338. See Interview with Helen Johnson, supra note 1.
339. See supra text accompanying notes 29-32.
340. See Transcript of Oral Argument, supra note 138, at 22-23; see also supra text accompanying notes 177-79 (describing the discussion of poverty during the oral argument).
341. See Transcript of Oral Argument, supra note 138, at 27 (responding to a Justice's question about state imposition of inheritance taxes, C.H. Luther stated that "the Indians are so impoverished that it is doubtful that the inheritance tax would apply").
342. See Sam Deloria, Commentary on Nation-Building: The Future of Indian Nations, 34 ARIZ. ST. L.J. 55, 60 (2002) (discussing the moral superiority associated with poverty and oppression).
343. See id.
344. Patrick Moriarty filed the complaint. See supra text accompanying notes 32-34. Nicholas Norden substituted in as counsel while the case was pending in the state district court. See supra text accompanying notes 36-37. Jerry Seck argued the state appeal. See supra text accompanying note 57. Kent Peterson filed the petition for certiorari. See supra text accompanying notes 104-05. Bernie Becker argued before the Supreme Court. See supra text accompanying notes 135-79 and 200-10.
345. See Jack Katz, Lawyers for the Poor in Transition: Involvement, Reform, and the Turnover Problem in the Legal Services Program, 12 LAW & SOC'Y REV. 275, 286-97 (1978).
346. The work of a law professor, Carole Goldberg, also loomed large in the oral argument and the Supreme Court's decision in the case. See Goldberg, supra note 64; supra text accompanying notes 145-47, 231-34, and 242-44.
347. See, e.g., Brief Amici Curiae of the Allottees Association and Affiliated Tribes and Bands of the Quinault Reservation et al. in Support of Respondents, Babbitt v. Youpee, 519 U.S. 234 (1997) (No. 95-1595) (illustrating the involvement of the DNA-People's Legal Services attorneys); Brief of Native American Rights Fund as Amicus Curiae in Support of Appellant, McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164 (1973) (No. 71-834) (illustrating the involvement of the Native American Rights Fund); see also Babbitt, 519 U.S. at 236-37 (finding an escheat-to-tribe provision of the Indian Land Consolidation Act was an unconstitutional taking); McClanahan, 411 U.S. at 165 (holding that a state income tax applied to reservation Indians, derived solely from reservations sources, was unlawful).
348. However, the Legal Services Corporation has undergone dramatic changes since the Bryan era. During the Reagan administration, the Legal Services Corporation saw its budget reduced significantly. See Liza Q. Wirtz, Note, The Ethical Bar and the LSC: Wrestling with Restrictions on Federally Funded Legal Services, 59 VAND. L. REV. 971, 983-84 (2006). In 1996, the Legal Services Corporation's budget was cut by over forty percent, forcing offices to reduce case loads and leave hundreds of thousands of cases unfinished. Id. Moreover, Congress went beyond the budget cuts to undermine the power of the Legal Services Corporation and enact significant limitations on how the Legal Services Corporation funding could be spent. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1321-53. This appropriations legislation prohibited Legal Services Corporation-funded programs from bringing or participating in class action lawsuits. See id.; Wirtz, supra, at 994. This development limited the ability of such offices to continue to do "impact" litigation. See Wirtz, supra, at 994-95. Attorneys in legal services offices continue to have the ability to represent clients like the Bryans, but they would no longer be able to style the case as a class action. Moreover, the extreme caseload placed on legal services attorneys would likely prohibit attorneys from reducing their case load, as Seck did, in order to spend time on larger issues.
349. See supra text accompanying notes 32-34, 88, and 174.
350. See supra text accompanying notes 32-33.
351. Richard W. Painter, Convergence and Competition in Rules Governing Lawyers and Auditors, 29 J. CORP. L. 397, 404 (2004).
352. See id. (describing the cognitive biases that influence lawyers' decision making).
353. See supra text accompanying note 174 (indicating that Becker sought to conclude his oral argument by attempting to resurrect the argument that the mobile home constituted real property).
354. See supra text accompanying notes 98 and 245-47.
355. See supra text accompanying notes 250-54 (describing Justice Brennan's charm and remarkable ability to gain the support of other Justices).
356. See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 359 (1979) ("One decision [Brennan] was assigned to write . . . addressed the question of whether Indians in Washington state could hunt and fish in the off season. . . . Brennan seethed at having to write this 'chickenshit case.'"). In a similar fashion, former Deputy Solicitor General Louis Claiborne, using Bryan as an example, once said that many Indian cases were unanimous because none of the Justices were interested enough to dissent.
357. Louis F. Claiborne, Special Feature, The Trend of Supreme Court Decisions in Indian Cases, 22 AM. INDIAN L. REV. 585, 586 (1998).
358. See Interview with Helen Johnson, supra note 1.
359. See id.
360. Id.
361. Telephone Interview by Julie A. Strother with Helen Johnson, supra note 15.
362. See supra note 165 and accompanying text.
363. Interview with Helen Johnson, supra note 1.
364. Id. (highlighting the quote on the wall of the Anishinabe Legal Services office).